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[2015] ZAGPPHC 444
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Chihomba v Chairperson: Refugee Appeal Board and Others (16418/2012) [2015] ZAGPPHC 444 (16 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO. 16418/2012
DATE:
16 JUNE 2015
In
the matter between:
STEPHEN
CHIHOMBA
....................................................................................................
APPLICANT
And
CHAIRPERSON:
REFUGEE APPEAL
BOARD
................................................
1
ST
RESPONDENT
REFUGEE
STATUS DETERMINATION OFFICER:
MARABASTAD
REFUGEE RECEPTION OFFICE
.........................................
2
ND
RESPONDENT
THE
MINISTER OF HOME
AFFAIRS
...............................................................
3
RD
RESPONDENT
THE
DIRECTOR GENERAL: HOME
AFFAIRS
..............................................
4
TH
RESPONDENT
JUDGMENT
BOTES
AJ
INTRODUCTION
1. The
Applicant’s status as a refugee, as is envisaged in the
Refugees Act, No 130 of 1998 (hereinafter referred to as “
the
Act”
), is at stake. The Applicant
applies
for an order in the following terms:
1.1
Reviewing and setting aside the decision of the First Respondent made
on 14 June 2011 dismissing
his appeal;
1.2
Substituting the decision of the First Respondent with an order
declaring that he is recognized
as a refugee in terms of Section
24(3)(a) of the Act and ordering the Second and Fourth Respondents to
issue him with a formal
recognition of refugee status permit in terms
of Section 27(a) of the Act within 15 days; or
1.3
In the alternative to the relief in paragraph 1.2
supra
,
directing that his appeal in his asylum application be reconsidered
by the First Respondent and directing the Second to Fourth
Respondents to re-issue him with a temporary asylum seekers permit in
accordance with the provisions of Section 22 of the Act pending
the
final determination of the hearing contemplated herein.
2. The First,
Second, Third and Fourth Respondents (hereinafter referred to
collectively as “
the Respondents”
) oppose the
application on the following basis:
2.1
The decision sought to be impugned was taken on 14 June 2011 and on
the Applicant’s
own version, he became aware of this decision
on or about 23 September 2011, on which day he ought to have departed
South Africa
with effect from that day;
2.2
He decided to enter South Africa primarily as an economic migrant and
not an asylum seeker;
2.3
The application for asylum was not
bona fide
but simply
opportunistic;
2.4
This review application is an afterthought and a desperate attempt by
the Applicant to escape
the consequences of deportation; and
2.5
The Applicant failed and omitted in his application for asylum to
adduce sufficient
facts in support of his application for
asylum and to justify his sojourn in South Africa.
3. Ms Hobden
appears on behalf of the Applicant and prior to the commencement of
her argument she requested leave to hand up a further
affidavit which
was deposed to by the Applicant on 28 October 2014 in which the
Applicant confirms that a temporary asylum
seeker permit was
issued to him by the Department of Home Affairs, in accordance with
the provisions of Section 22 of the Act,
on 21 October 2014, which
permit is valid until 21 April 2015. I accepted the Applicant’s
further affidavit provisionally
and subject to the caveat raised by
Mrs Manaka who appears on behalf of the Respondents.
3.1
Ms Hobden submits that the Applicant is entitled to sojourn in South
Africa by virtue of
the temporary permit that was issued to the
Applicant and that he therefore enjoys the rights which asylum
seekers have, as intended
in the Act.
3.2
Mrs Manaka however raised a caveat pertaining to the validity of the
temporary permit upon
which the Applicant relies. Mrs Manaka
doubts the authenticity and the validity of the temporary permit and
it seems that
she is not convinced that the temporary permit is
authentic. I am not called upon to determine the validity of
the temporary
permit which seems to have been issued by the
Department of Home Affairs on 21 October 2014 and I am prepared to
accept, for purposes
of this judgment, that the Applicant enjoys the
status of an asylum seeker and that he is entitled to sojourn in
South Africa until
21 April 2015.
4. It is the
Applicant’s case that:
4.1
The First Respondent misconstrued the burden of proof and “
real
risk”
;
4.2
The First Respondent failed to take into account relevant
considerations and improperly
contextialised other considerations
that were provided in his claim;
4.3
The First Respondent incorrectly require individual past persecution;
and
4.4
The First Respondent relied upon sparse or no country of origin
information.
THE
FACTS PRESENTED AND RELIED UPON BY THE APPLICANT IN HIS APPLICATION
FOR ASYLUM
5. The Applicant
was born on 7 August 1982 and is currently 30 years old. He was
born in Masvingo, Zimbabwe and originates
from the Shona Ethnic
group.
5.1
The Applicant completed his A-levels (equivalent to a matric
qualification) in 1999 to pursue
a career as a teacher in Zimbabwe.
5.2
His parents were divorced and he lived with his mother who resided in
a rural village known
as Bikita. Bikita seems to be a small
village, but historically a strong hold of the Zanu-PF party presided
over by President
Robert Mugabe. President Mugabe has been
elected to office during 1987.
5.3
The Applicant became politically active while being a teacher and
publically supported the
Movement for Democratic Change (hereinafter
referred to as “
the MDC”
) led by Mr Morgan
Tsvangirai. The 2002 National Election was vigorously contested
between the MDC and Zanu-PF. Agents
and supporters of Zanu-PF
assaulted and abducted MDC members and supporters, which resulted
therein that Zimbabweans feared for
their lives and sought refuge
elsewhere in Zimbabwe and in neighbouring countries.
5.4
During 2002 the Applicant “feared” persecution by Zanu-PF
security forces and
left his teaching position in Masvingo and took
refuge in New Marimba Park, a suburb of Harare, the capital of
Zimbabwe.
5.5
The Applicant’s mother’s youngest sister is a qualified
medical doctor and she
practiced from a surgery in Harare. She
also resided in Harare together with the Applicant’s elder
sister and his younger
half brother. The Applicant worked as an
aide in his aunt’s medical practice.
5.6
The Applicant’s aunt was an outspoken MDC supporter and she
dedicated her medical
practice towards the treatment of MDC
supporters and members. Many victims of the violent election
campaign were treated
by the Applicant’s aunt during 2002.
5.7
The Applicant’s aunt received anonymous threats in the mail and
by telephone, demanding
that she should close her medical practice.
The Applicant suspected that these threats were forthcoming from
Zanu-PF supporters.
5.8
President Mugabe was re-elected as President of Zimbabwe during the
2002 elections.
The Applicant remained in Zimbabwe after the
2002 elections but approximately two years later, during the winter
of 2004, his aunt
was arrested by three members of the Central
Intelligence Organization (hereinafter referred to as “
the
CIO”
). The CIO is a Government institution and
operates as Zimbabwe’s secret police force.
5.9
The Applicant’s aunt was held in custody for several weeks in
Harare, but after her
attorneys became involved, she was released
without any charges being laid against her.
5.10
The Applicant’s mother remarried some years ago (whilst the
Applicant was still a young boy) and from
the said marriage a boy,
named Tinesh, was born. Approximately a year after the
Applicant’s aunt was arrested by members
of the CIO, Tinesh was
abducted from the Applicant’s aunt’s medical practice.
Tinesh also worked at the medical
practice as an aide. Tinesh
was allegedly murdered in 2005.
5.11
Tinesh’s body was found a few weeks after the abduction in
Harare’s sewer system. Little
is known about the
circumstances of Tinesh’s abduction and murder and it seems
that the murderers are still at large.
5.12
The Applicant’s aunt closed her medical practice approximately
2 years after Tinesh’s murder
and relocated to the United
Kingdom during 2007.
5.13
Approximately two years after Tinesh’s death (during the winter
of 2007) the Applicant decided to return
to his birthplace situated
at Bikita, to visit his mother. As mentioned above, Bikita is a
small rural village and Zanu-PF
stronghold.
5.14
The news of the Applicant’s return spread like a veld fire soon
after he arrived and on the day of
his return a neighbour warned the
Applicant that Zanu-PF was “
coming for him”
.
The neighbour is known to the Applicant “
Esnat”
.
5.15
The Applicant adhered to Esnat’s advice and left Bikita the
same day. He walked 25 km during
the night to fetch a bus in a
neighbouring township.
5.16
The Applicant returned to the house where he lived with his aunt, his
elder sister and Tinesh (now deceased).
5.17
Shortly after the Applicant’s return to Harare, the village
heads of Bikita convened a public meeting
during which the
Applicant’s mother was informed that her name would be removed
from the local list of anti-retroviral recipients.
The
Applicant’s mother was diagnosed as HIV positive some years ago
and received anti-retroviral medication from the Zimbabwean
Government.
5.18
Pursuant to the Applicant’s mother’s name being removed
from the list of recipients of anti-retroviral
medicine, she was
compelled to travel to Masvingo in order to obtain the necessary
medication from a public hospital.
5.19
The Applicant believes that his mother’s perceived support for
the MDC is the reason why she was removed
from the list. The
decision to remove her from the list was taken by the village heads
after it became apparent that she
(the Applicant’s mother)
refused to turn the Applicant over to local Zanu-PF militants during
2007. Be that as it may,
the Applicant nevertheless decided to
remain in Harare.
5.20
Approximately a year later, during March 2008, Presidential and
Parliamentary Elections were held and violent
crackdowns on the
political opposition (the MDC) reached crisis levels. The
Applicant became more fearful than ever that
he would be apprehended
by Zanu-PF forces for his support of the MDC.
5.21
As a result of the violent crackdowns and persecution of MDC
supporters during the run-up to the National General Election
in
March 2008, the Applicant decided to leave Harare and to seek refuge
in South Africa.
5.22
The Applicant entered South Africa on 5 March 2008, through the
Beitbridge Border Post. He obtained residence in South
Africa
and he currently resides in Benoni where he obtained a job as a
security guard.
5.23
The Applicant lodged an asylum application at the Second Respondent
and completed a BI-1590 eligibility form
whereafter an interview was
conducted with Mrs A Mabaso, Refugee Status Determination Officer.
The application was apparently
lodged on 12 June 2008,
notwithstanding the fact that the BI-1590 form was completed and
signed by the Applicant on 9 October 2008.
I accept for
purposes hereof that the date which appears on the aforementioned
form is incorrect and that it was completed by the
Applicant prior to
12 June 2008.
5.24
The Applicant confirms that the information, which appears in the
BI-1590 form, contains, in basic terms,
the grounds for his
application for asylum in South Africa. The Applicant
formulates these reasons in his founding affidavit
as follows:
-“
I
am from a small village in the district of Bikita, in the Masvingo
Province of Zimbabwe. I am from the Shona Ethnic group.”
-“I
fled my home country fearing persecution at the hands of members of
the Zanu-PF due to my political opinions and activities.”
-“As
a supporter of the leading opposition group, Movement for Democratic
Change (“MDC”), since 2000 - 2001 and
further, as a clerk
at a medical centre which provided medical treatment and assistance
to MDC members and activists, I was targeted
by the Zanu-PF, as were
members of my family who also gave their support to the MDC.”
5.25
The BI-1590 form which forms part of the record seems to be a second
application form, and not the initial
application form that was
completed by the Applicant during June 2008, all of which are
explained by the Applicant in a supplementary
affidavit dated 8
August 2012.
5.26
In the application form which is attached to the Applicant’s
aforementioned supplementary affidavit
the following questions and
answers appear:
“
Question
:
Why are you applying for asylum?
Answer
:
Because the Zanu-PF Government has scrapped off my mother and my
brother from the list of those who are getting the ARVs from
the
Government. This came because of me being sympathetic with the MDC.”
And:
“
Question
:
Which measures did you take to solve your problem?
Answer
:
I cross over to SA where I can further my education and also where I
can afford of buying them drugs.”
And:
“
Question
:
Do you wish to return to your home country? If no, please give
reasons:
Answer
:
Because the current situation is not conducive for me to go back.”
5.27
I accept for purpose of this judgment that the Applicant completed
the BI-1590 form in his own handwriting
and that he, at the time,
understood what was expected from him.
5.28
The Applicant has been residing in South Africa since 5 March 2008
and it seems that he hasn’t been
in Zimbabwe since then.
THE
OUTCOME OF THE APPLICATION FOR ASYLUM AND THE FINDING OF THE REFUGEE
APPEAL BOARD
6. Mrs Mabaso
interviewed the Applicant on 12 June 2008, pursuant to him applying
for asylum. Mrs Mabaso had regard to the
following documents:
6.1
The Refugee’s Act, No 130 of 1998;
6.2
The Handbook on Procedure and Criteria for Determining Refugee
Status;
6.3
The BI-1590 application form;
6.4
The Country of Information for Zimbabwe
(sic)
.
7. Mrs Mabaso
formulated the reasons advanced by the Applicant for leaving Zimbabwe
as follows:
-“You
claim that the reason you left your country is because of the
political situation.”
-“You
claim that you were a supporter of MDC and Zanu-PF deprived your
mother and younger brother to get ARV drugs from the
Government.”
-“You
claim that you came to South Africa to look for a job in order to
take care of your family.”
8. Mrs Mabaso
found that the Applicant failed to prove that he will suffer
persecution in future in the event that he return to
Zimbabwe.
Mrs Mabaso furthermore found that the Applicant’s claim was
politically motivated but with no fear of persecution.
The
Applicant’s application for asylum was accordingly rejected.
9. The Applicant
invoked his right of appeal and lodged an appeal with the First
Respondent. The Refugee Appeal Board was
presided over by Mr T
Damstra and the hearing was held on 16 September 2009.
10. Mr Damstra
dismissed the Applicant’s appeal on 14 June 2011 by reason of
the fact that he has failed to discharge the
burden of proof.
Mr Damstra classified the Applicant as an economic migrant and not a
refugee in need of international protection.
Refugee status was
therefore declined by the First Respondent.
11. It seems that
the Applicant was notified of the First Respondent’s decision
on 23 September 2011. This application
was issued by the
Registrar of this Court on 20 March 2012, in terms of which the
Applicant applies to have the decision of the
First Respondent,
issued on 14 June 2011, reviewed and set-aside.
12. The Applicant
brings this application in accordance with the provisions of Rule 53
of the Uniform Rules of Court and
Section 6
of the
Promotion of
Administrative Justice Act, No 3 of 2000
.
13. A copy of the
First Respondent’s decision is attached to the Applicant’s
founding affidavit in support of this application,
marked
Annexure
“SC1"
. The Applicant holds the view that:
13.1
The notes which were taken by the First Respondent do not coherently
record his claim for refugee status
and the information pertinent to
his claim is not included in the notes despite the fact that he
recall presenting such information
to Mr Damstra;
13.2
With the correct information, which would include the fact that the
Applicant’s neighbour, Esnat, warned
him that Zanu-PF were
“
coming for him”
and that due to his presence in
Bikita his mother and brother’s names were removed from the
list of ARV recipients, the First
Respondent would have come to a
different conclusion;
13.3
The full and complete details of his situation and the basis for his
asylum application were not recorded;
13.4
The First Respondent did not explicitly asked the Applicant what the
true reason for his decision was to
seek asylum in South Africa;
13.5
The reasons for his decision to apply for asylum are recorded in
paragraphs 74 and 75 of his founding affidavit
in support of this
application; and
13.6
The First Respondent did not ensure that all the relevant facts were
in front of it before it made the decision
to dismiss his appeal.
14. The Applicant
stated the following reasons for his decision to apply for asylum in
South Africa in paragraphs 74 and 75 of his
founding affidavit in
support of this application:
-“I
came to South Africa because I had a legitimate fear of being
persecuted in Zimbabwe and did not feel safe anywhere in
the
country.”
-“I
am informed that having secondary or surrogate considerations and
motives for escape should not disqualify me from refugee
status, so
long as I also have a well-founded fear of being persecuted.”
THE
GROUNDS UPON WHICH THE FIRST RESPONDENT RELY IN ITS OPPOSITION OF
THIS APPLICATION
15. Mr M Chipu
was a member of the Appeal Board which considered the Applicant’s
appeal. Although Mr Damstra presided
over the appeal, Mr Chipu
confirms the information which are reflected and contained in the
decision which is attached to the Applicant’s
founding
affidavit, marked
Annexure “SC1"
.
16. Mr Chipu
states that the First Respondent considered the provisions of the
Act, more particularly Section 3 thereof, and was
furthermore alive
to what is meant by “
a well founded fear of persecution”
.
17. Insofar as
the burden of proof is concerned the First Respondent referred to the
Handbook on Procedures and Criteria for Determining
Refugee Status
where it is stated that “
it is a general principle that the
burden of proof lies on the person submitting a claim”
and
the standard of proof is a reasonable risk which was considered in
light of the all the circumstances and is a forward-looking
test.
18. The First
Respondent furthermore considered the situation in Zimbabwe at the
time of the hearing of the Applicant’s appeal
and found that
the political situation in Zimbabwe has stabilized. The
First Respondent came to the conclusion that
the Applicant failed to
prove the existence of a reasonable risk of persecution in the
future.
19. The First
Respondent concluded that the Applicant decided to travel to South
Africa and to establish himself in South Africa
to obtain a financial
benefit and not because he feared persecution. The fact that
his mother was taken off the list of patients
who were eligible to
receive anti-retroviral medication has nothing to do with his fear of
persecution. The First Respondent
could therefore not find any
persecution pertaining to the Applicant and concluded that the
Applicant, on his own version, came
to South Africa to look for a job
in order to support his mother and his brother. The First
Respondent therefore classified
the Applicant as an economic migrant
and not a refugee in need of international protection.
THE
LEGAL PRINCIPLES APPLICABLE TO THIS APPLICATION
20. In terms of
Section 3 of the Act, a person qualifies for refugee status if that
person:
“
(a)
Owing to a well-founded fear of being persecuted by reason of his or
her race, tribe, religion, nationality, political opinion
or
membership of a particular social group, is outside the country of
his or her nationality and is unable or unwilling to avail
himself or
herself of the protection of that country, or, not having a
nationality and being outside the country of his or her
formal
habitual residence is unable or, owing to such fear, unwilling to
return to it; or
(b)
Owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either
a
part or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence
in order to
seek refuge elsewhere.”
21. The
determination of refugee status as set out in the Act appears to be
governed by objective factors.
21.1
Thus, in the Handbook on Procedures and Criteria Determining Refugee
Status published in terms of the United Nations 1951 Convention
relating to the status of refugees, together with the 1967 Protocol,
a person is considered to be a refugee as soon as he or she
fulfils
the criteria contained in the definition.
21.2
This would necessarily occur prior to the time at which his or her
refugee status is formally determined.
See:
Harerimana
v Refugee Appeal Board
2014(5) SA 550 (WCC) at par 11
.
22. Hathaway “
The
Law of Refugee Status”
2005, provides further guidance as
to the concept of refugee status. He contends that it is
reasonable for groups and individuals
to “
disengage from
fundamentally abusive national communities”
, at which point
refugee law provides protection.
23. The Act
furthermore provides for the determination of refugee status:
23.1
An asylum seeker presents himself at the office of the Second
Respondent, where an officer assists him in
the application for
asylum.
23.2
This application is evaluated by the Second Respondent who, in terms
of Regulation 10(1), must conduct a
non-adversarial hearing to elicit
information bearing on the Applicant’s eligibility for refugee
status and must ensure that
the Applicant fully understands the
procedures. Section 24(2) of the Act states that the Second
Respondent is obliged to
have due regard to the rights referred to in
Section 33 of the Constitution of the Republic of South Africa, 1996,
particularly
to ensure that the Applicant fully understands the
procedures, his or her rights and responsibilities and the evidence
presented.
23.3
The Second Respondent is then obliged to make a decision as to
whether or not the Applicant is in fact a refugee and entitled
to
protection from South Africa.
23.4
In terms of Section 24 of the Act the Second Respondent may grant or
refuse refugee status and asylum. An application may therefore
be
rejected as “
unfounded”
or “
manifestly
unfounded”
.
23.5
An Applicant whose application is rejected as unfounded may then
lodge an appeal with the First Respondent.
24. Section 26 of
the Act provides some guidance to the First Respondent and its
activities:
“
(1)
Any asylum seeker may lodge an appeal with the Appeal Board in the
manner and within the period provided for in the rules if
the Refugee
Status Determination Officer has rejected the application in terms of
Section 24(3)( c).
(2)
The Appeal Board may after hearing an appeal confirm, set-aside or
substitute any decision taken by a Refugee Status Determination
Officer in terms of Section 24(3).
(3)
Before reaching in a decision, the Appeal Board may:
(a)
invite the UNHCR representative to make oral or written
representations;
(b)
refer the matter back to the Standing Committee for further enquiry
and investigation;
(c)
request the attendance of any person who, in its opinion, is in a
position to provide the Appeal Board with relevant information;
(d) of its own
accord make further enquiry or investigation; and
(e)
request the Applicant to appear before it and to provide any such
other information as it may deem necessary.
(4)
The Appeal Board must allow legal representation upon the request of
the Applicant.”
25. The status
and approach to be adopted by the First Respondent were scrutinized
and examined in
Tantoush v Refugee Appeal Board & others
2008(1) SA 232 (T)
.
25.1
In paragraph 86 of the aforementioned judgment Murphy J, on the basis
of Section 12(3) of the Act, noted
that the First Respondent must
function without bias and must be independent.
25.2
Not only is it required to be impartial in its decisionmaking, but,
in addition, it must be independent.
DID
THE FIRST RESPONDENT ERR IN FACT OR IN LAW AS ALLUDED TO BY THE
APPLICANT IN PARAGRAPHS 15 AND 55 OF HIS FOUNDING AFFIDAVIT
?
26. The Applicant
relies on the grounds or reasons alluded to in paragraph 55 of his
founding affidavit in support of this application.
The high
water mark of the Applicant’s case is to be found in paragraphs
40 and 41 of the founding affidavit where the Applicant
states the
following:
“
40.
I am fearful of returning to Zimbabwe because of the continuing
political violence and instability.
Based on my personal experience
as well as the experiences of family members, I believe I am at risk
of persecution on the basis
of my political opinion and activities if
I am compelled to return to my country of origin.
41.
I remain fearful of returning to Zimbabwe because I am informed
and do verily belief that
the country remains dangerous and unstable
and that I will not be safe from members and supporters of Zanu-PF.
I believe
it remains unsafe for me in my village, where my mother
resides, because I will be quickly recognized and remembered as an
MDC
supporter and suffer adverse consequences at the hands of local
Zanu-PF forces.”
27. On a proper
analysis and interpretation of the evidence adduced by the Applicant
in his founding affidavit, it seems that supporters
of the MDC were
persecuted in Zimbabwe by virtue of their outspoken support for the
MDC. It seems that supporters of the
MDC are persecuted by
reason of the fact that they do not support the ruling Zanu-PF
party.
28. The
chronology of events is, for purposes of this judgment, significant:
28.1
The Applicant feared persecution by Zanu-PF security forces during
2002 when he left his position as teacher
and took refuge in Harare.
28.2
His mother’s sister (his aunt) was arrested sometime in the
winter of 2004.
28.3
His younger half brother, Tinesh, was abducted and murdered during
2005.
28.4
The Applicant returned to his village of birth, Bikita, in the winter
of 2007. Esnat warned the Applicant
that “
the Zanu-PF were
coming for him”
, whereafter he decided to leave the village
and to travel back to Harare.
28.5
Shortly thereafter the Applicant received information that his mother
was informed that her name was removed
from the local list of
anti-retroviral recipients.
28.6
Shortly before the National Presidential and Parliamentary Elections
in March 2008, the Applicant fled to
South Africa.
28.7
The Applicant settled in Benoni where he obtained a job as a security
officer.
29. The First
Respondent found the Applicant to be a credible witness. The
Applicant testified in a honest, frank and open
manner and was
consistent with his previous statements.
29.1
From the Applicant’s testimony it was clear that his aunt, the
medical doctor, was harassed by security
forces and detained for a
period of 3 weeks prior to the National Elections during 2004.
29.2
His younger half brother was abducted and murdered in 2005.
29.3
The Applicant was, prior to March 2008, not persecuted by Zanu-PF
members or the Zimbabwean security forces.
29.4
In his evidence before the Second Respondent, the Applicant mentioned
that he came to South Africa to find
employment in order to support
his mother
et al
.
29.5
The First Respondent therefore came to the conclusion that the
Applicant’s motive to travel to South
Africa was motivated by
economic reasons and not for the fear of persecution by the
Zimbabwean authorities.
29.6
The First Respondent therefore found that the Applicant has failed to
discharge the burden of proof.
30. The objective
facts and inherent probabilities constitute a hurdle which is
difficult for the Applicant to overcome.
30.1
I accept, for purposes of this judgment, that the Applicant became
worried and uncomfortable during the winter of 2007 when
he visited
his mother’s village situated in Bikita.
30.2
I furthermore accept that the Applicant feared to be persecuted after
he received news from Esnat that Zanu-PF
was hot in pursuit.
30.3
The Applicant left Bikita in the middle of 2007 (during the winter
months of June/July) and returned to Harare.
The Applicant was,
on his own evidence, not subjected to any harassment or persecution
by members of the Zimbabwe Security Forces
or Zanu-PF upon his return
from Bikita.
30.4
I furthermore accept that supporters of the MDC were nervous and that
they feared persecution shortly before
the National Elections in
2008.
30.5
The National General Elections were held in Zimbabwe on 29 March
2008. President Mugabe managed to
secure 85,5% of the votes and
Mr Tsvangirai obtained 9,3% of the votes. 233 000 votes cast
their vote in favour of Mr Tsvangirai.
30.6
The most recent National General Elections were held in Zimbabwe on
31 July 2013. President Mugabe
won 60% of the vote whilst Mr
Tsvangirai finished second with 34% of the vote. President
Mugabe therefore claimed a seventh
term as President of Zimbabwe.
More than 1,1 million people in Zimbabwe voted for the MDC, whilst
Zanu-PF secured just
more than 2,1 million votes.
30.7
Reports by the Zimbabwe Election Support Network Monitoring Group
said as many as one million people, mostly
in urban areas (which tend
to favour the MDC), were unable to cast their votes. Other
reports suggested that people had been
forced to vote for President
Mugabe.
30.8
The African Union also had monitors in place and said the election
could have been handled better, but reports
indicated a fair election
had occurred. Western Groups were not allowed to sent monitors
to Zimbabwe.
30.9
It seems that members and supported of the MDC were allowed a
reasonably fair opportunity to participate
in the National General
Elections which were held on 31 July 2013.
CONCLUSION
31. The Applicant
challenge the decision of the First Respondent on the ground that it
is inconsistent with the principle of non-refoulement
envisaged in
the Act.
31.1
It does not appear from the application why the Applicant still,
after more than 6 years, requires protection.
Nothing appears
from the application why he is unable to re-avail himself to
his country of origin so long after he feared
persecution shortly
before the 2008 National General Elections.
31.2
On the probabilities the circumstances which gave rise to the
Applicant’s fears have longed ceased.
31.3
The fact that his mother was deprived of anti-retroviral medication
does not give rise to “
a well-founded fear of being
persecuted”
, envisaged in Section 3(a) of the Act.
31.4
The principle of non-refoulement addresses
bona fide
Applicants for asylum and is incapable to cover economic migrants who
enter South Africa to benefit financially.
32. The political
situation in Zimbabwe has settled down over the years and most
Zimbabwean Nationals who travel to South Africa
do so for economic
reasons. In the premises the Applicant has failed to discharge
the onus of proof and the First Respondent’s
decision is not
susceptible for review.
33. The First
Respondent afforded the Applicant a reasonable opportunity to present
his case and correctly came to the conclusion
that no evidence was
adduced by the Applicant to support his fear for persecution in
Zimbabwe.
34. Persecution
is defined as the sustained or systemic violation of basic human
rights demonstrative of the failure of State protection.
The
Applicant was not subjected to any form of persecution and the fact
that his mother was denied anti-retroviral medicine in
2007 is of
little assistance for purposes of this application.
See:
Fang v Refugee Appeal Board & others
2007(2)
SA 447 (T)
.
35. The grounds
relied upon by the Applicant in paragraph 55 of his founding
affidavit are in my view unfounded and not supported
by the objective
facts and evidence. The First Respondent therefore came to the
correct conclusion and took into consideration
all the relevant facts
which were presented to it.
36. This
application should therefore be dismissed. I am mindful of the
fact that the Act provides for a procedure in terms
of which the
Applicant is entitled to pursue his remedies as provided for in the
Act. The Applicant has been in South Africa
since March 2008
and he laboured under the misapprehension that he was entitled to
asylum in accordance with the provisions of
Section 3 of the Act.
36.1
The Applicant’s conduct was honest, reasonable and fair.
He decided to travel to South
Africa in order to obtain gainful
employment. His mother was dependent on anti-retroviral
medication and she was dependent
on the Applicant for financial
assistance after her name was taken off the list by Zanu-PF members.
36.2
The Applicant’s brother was also diagnosed with HIV and he was
also dependent on the Applicant for
financial support. It does
not appear from the affidavits whether the Applicant’s mother
and his brother are still
alive or not. I have sympathy for the
Applicant and his personal circumstances. The provisions of the
Act are mandatory
and the Applicant’s personal circumstances
are to a large extent irrelevant in the determination of an
application of this
nature. It only comes into play insofar as
costs are concerned.
37. The Applicant
obtained gainful employment in South Africa as a security guard and I
accept for purposes hereof that he is dependent
on his income to make
ends meet. The Applicant’s conduct was not unreasonable
or unjustified. He perceived the
situation in Zimbabwe, during
2008, to be hostile and he feared persecution. Persecution
suffered by friends, family or other
similarly situated individuals
may be sufficient to establish a well-founded fear of persecution on
the part of the Applicant.
Although the Applicant must normally
provide a compelling reason for why he individually fears
persecution, the experiences of
similarly situated or close connected
individuals may be evidence that the Applicant’s personal fear
of becoming a victim
of persecution is well-founded. There is
no requirement that the Applicant must have been “
singled
out”
for persecution. His fears were unfortunately
not well-founded as provided for in Section 3(a) of the Act.
38. I am mindful
of the Applicant’s personal circumstances and the fact that he
has been in South Africa for more than 7 years.
I am therefore
not prepared to burden the Applicant with the costs of this
application.
In
the premises I make the following order:
1. The
application is dismissed.
2. No order is
made as to the costs of this application.
F
W BOTES
ACTING
JUDGE OF THE HIGH COURT
Heard
on: 31 October 2014
For
the Appellant: Adv. F HOBDEN
Instructed
by: LAWYERS FOR HUMAN RIGHTS
For
the Respondent: Adv.: N MANAKA
Instructed
by: STATE ATTORNEY
Date
of Judgment: 12 June 2015