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[2015] ZAKZDHC 13
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Bolanga v Refugee Status Determination Officer and Others (5027/2012) [2015] ZAKZDHC 13 (24 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, DURBAN
CASE
NO: 5027/2012
In
the matter between:
CHRISTIAN
BOKETSA
BOLANGA
.......................................................................
APPLICANT
and
REFUGEE
STATUS DETERMINATION OFFICER
…...............................
1ST
RESPONDENT
M.D
MOROBE N.O
….................................................................................
2ND
RESPONDENT
MINISTER
OF HOME AFFAIRS
…...........................................................
3RD
RESPONDENT
DIRECTOR
GENERAL, HOME AFFAIRS
…............................................
4TH
RESPONDENT
REFUGEE
APPEAL BOARD
….................................................................
5TH
RESPONDENT
STANDING
COMMITTEE ON REFUGEES
….........................................
6TH
RESPONDENT
ORDER
1. The decisions of the
first and fifth respondents on 17 October 2006 and 21 July 2011,
dismissing the applicant‟s application
for refugee status and
asylum and his subsequent appeal against such dismissal,
respectively, are reviewed and set aside.
2. It is declared that the
applicant is a refugee entitled to asylum in the Republic of South
Africa in terms of
section 3
of the
Refugees Act 130 of 1998
.
3. The third respondent is
directed to issue to the applicant written recognition of refugee
status in terms of
section 27(a)
of the
Refugees Act within
ten days
of the date of this order.
4.
The third respondent is ordered to pay the costs of this application.
JUDGMENT
PENZHORN
AJ:
[1] The applicant is a
citizen of Democratic Republic of Congo (DRC) and is currently in
South Africa on a temporary asylum seekers
permit. He seeks the
following
relief:
“
1. The decision of the RAB of 21 July 2011
rejecting the applicant‟s appeal against the decision of the
RSDO is reviewed and
set aside;
2. The decision of the RSDO rejecting the applicant‟s
application for refugee status and asylum is reviewed and set aside;
3. It is declared that the applicant is a refugee who is
entitled to asylum in South Africa as contemplated by
sections 2
and
3
of the
Refugees Act 130 of 1998
;
4. The Minister of Home Affairs is directed to issue
permanent residence permits to the Applicant, his wife and this three
children,
described more fully in the Founding Affidavit annexed
hereto;
5. Those of the Respondents who oppose this application
are to pay the Applicant‟s costs of the application.”
[2] The applicant arrived
in South Africa on 25 January 2005 with his wife and two year old
son. On 27 January 2005, that
is more than ten years ago, he
lodged an application for asylum with the Refugee Reception Office in
Durban.
[3] The application was
rejected by the first respondent, the Refugee Status Determination
Officer (“the RSDO”), on
17 October 2006, that is almost
two years later, and this decision was communicated to the applicant
on 20 November 2006.
[4] The applicant lodged an
appeal against this decision and this appeal was heard by the fifth
respondent, the Refugee Appeal Board
(“the RAB”), on 20
November 2007, which reached a decision on 21 July 2011 and the
decision was handed to the applicant
on 11 January 2012, that is more
than four years after the appeal was heard.
[5] The present application
to review and set aside the decisions of the RSDO and the RAB was
filed in May 2012. A notice
of opposition was filed, on behalf
of the third respondent only, on 29 August 2012.
[6] Notice in terms of
Rule
30A
was given to the respondents on 31 January 2014 to furnish the
record of proceedings before the RSDO and the RAB in terms of
Rule 53.
To date no such records have been filed. In
fact, to date no opposing and/or responding papers of any kind have
been
filed. All I have before me from any of the respondents is
the notice of opposition filed on behalf of the third respondent.
[7] When the matter was
called before me in motion court on 13 February, at the request of
counsel for the third respondent and
in the light of the aforegoing
facts, I stood the matter down in order for him to take
instructions. When the matter was
then called later he
indicated to me that all the responsible officials dealing with this
matter were in meetings and could not
be reached. I then
indicated to both counsel that unless I heard from them by the end of
the day I would proceed to give
judgment. I did not and this is then
the judgment.
[8] The applicant‟s grounds of review are the
following:
a. The
RAB was not properly constituted when it heard the appeal in that it
did not consist of the required three persons as required
by
section
13(1)
of the
Refugees Act;
b
. the
RSDO and the RAB erred in failing to take into account relevant
factors when coming to their respective decisions;
c. the
applicant was not afforded a fair hearing before either the RSDO or
the RAB;
d. the
decisions of the RSDO and the RAB were not rationally connected to
the material which was before them; and
e. the decision of the RAB was inconsistent with
previous decisions which had been made by it, and was accordingly
arbitrary in
the circumstances.
[9] The history of the
matter as set out in the applicant‟s founding affidavit, which
is not disputed on the papers before
me, is as follows (and here I
largely repeat the applicant‟s own words as they appear in his
affidavit):
[9.1]
He fled to South Africa from the Democratic Republic of Congo (“the
DRC”) because he had experienced, and feared
that he would
continue to experience, persecution at the hands of both the majority
and opposition political parties. He
believes that he will
continue to face such persecution if he were to be forced to return
to the DRC.
[9.2]
He and his wife come from the district of Zongo in the Equateur
province of the DRC.
[9.3]
His persecution began in late 2000 in Zongo, where he lived with his
wife and small baby. He was at that time pastor
of his own
church in Zongo, and preached to the people, and in particular to the
rebels, not to fight. His messages of peace
came to the
attention of Jean-Pierre Bemba, the head of the Movement for the
Liberation of Congo (“the MLC”), which
was at that time a
rebel group, and who objected to his pacifistic stance.
[9.4] Over a period of six months, he was repeatedly
beaten and tortured by the MLC rebels in an attempt to force him to
stop preaching.
These beatings took place with a variety of
objects, including sticks, guns and hammers. Towards the end of
this period,
the rebels forces also targeted his wife and she was
also beaten and tortured, and he was arrested and imprisoned for ten
days.
[9.5]
When he was released he and his wife and their small baby tried to
escape the rebel forces by moving to the city of Mbandaka
which is
about 400km from Zongo, also in the Equateur province. They
travelled by foot and hitched lifts.
[9.6] In Mbandaka, because he had fled Bemba‟s
rebel forces, it was assumed that he supported the ruling party, the
People‟s
Party for Reconstruction and Democracy (“the
PPRD”), under Joseph Kabila. In fact he supported neither
party.
He was asked to work for the PPRD and to become a
recruiter and to use his pastoral ministry to encourage those who
followed him
to join the PPRD. He refused to do so
[9.7] As a result of his refusal he was accused of being
a spy for Bemba, and the PPRD came to his house a number of times
over
the next two weeks and beat both him and his wife. After
about six weeks in Mbandaka he was arrested and imprisoned for five
days.
[9.8]
The travel from Zongo to Mbandaka had taken its toll on their baby
who had fallen ill, and who died while he was in prison.
He was
released from prison in order to attend the funeral, and used this
opportunity to escape the PPRD forces.
[9.9]
He and his wife then travelled to Kinshasa, where he knew a fellow
pastor. Kinshasa was a stronghold of the ruling party
and the
fellow pastor, being afraid, told him that he could not hide him and
his wife as it was too dangerous.
[9.10]
Thus, after two days, they fled the capital to the province of Kasai
where they hid in a small village called Katalai for
about three
years.
[9.11] The PPRD did not give up on their search for him
despite their movements and the lapse of time. His mother in
law,
who had remained in Mbandaku, then became the target of the PPRD
and they harrassed her, beating, raping and torturing her on a
number
of occasions in order to find out where he was. His mother in
law managed to contact him and told him to flee because
she feared
for their lives.
[9.12]
They did not know what to do. They had no money and no
possessions. While they were hiding in Kasai, his wife
became
pregnant in early 2004, which created a further obstacle to
travelling.
[9.13]
He was informed in late 2004 that his mother in law had been killed
by the PPRD forces, and this prompted them to flee from
the DRC.
Their child, a son, was born on 29 October 2004, and they left the
DRC in early January 2005, when their son was
old enough to travel.
They travelled to Lumbashi, where they waited for two days, and then
hid in a truck that brought them
to South Africa.
[10] The applicant goes on
to say that he fears that both the MLC and the PPRD still have reason
to wish to harm his family and
himself should they return to the DRC,
as demostrated by their attacks on his mother in law, and that the
PPRD in particular would
not have forgotten his refusal to join their
party as a recruiter, or his sermons and messages against their
violent tactics.
[11] The reasons for
rejecting his application for asylum by the RSDO appear from its
decision of 20 November 2006, annexure CB2
to the founding affidavit,
and these can be summarised as follows:
(a) It found that the applicant had not exhibited a
well-founded fear of persecution;
(b) that the reason for his leaving the DRC was that he
was deserting the army, alternatively refusing to perform compulsory
military
service;
(c) that
en route
to South Africa the applicant
passed through other countries where he could have sought refuge;
(d) that there was no evidence of any systematic history
and/or occurrence of human rights abuse in his case; and
(e) that there was no indication that he was
individually sought by the government (of the DRC).
[12] It is clear from the
founding affidavit that the applicant disputes each of these
findings.
[13]
The RAB dismissed the applicant‟s appeal in terms of its
decision of 21 July 2011, annexure CB3 to the founding papers,
from
which it will be seen that it did so for basically three reasons,
they being: (a) It found that his political profile was
such that he
could not be regarded as a threat to the government or the MLC and
that he was therefore “unlikely” to
be targeted by the
authorities or the MLC (at page 4 of its reasons);
(b)
that he had not submitted evidence of his political opinion and had
not convinced the RAB of the authenticity of his claims
to a
political opinion that may have resulted in persecution (at page 5);
and
(c) that the fact that his family and himself had
remained in Kasai and “Lubumbashi” for a total of four
year since
the persecution started before leaving the country
“undermines any claim of persecution on return” or
demonstrates
a “lack of interest by alleged persecutors”
(at page 5).
[14] The first ground of review deals with the RAB not
being properly constituted.
[15] It will be seen from
annexure CB3 that the applicant‟s appeal was heard by one
member only of the RAB, MD Morobe.
Section 13(1) of the
Refugees Act 130 of 1998 (“the Act”) deals with the
composition of the RAB and requires that it
consists of “a
chairperson and at least two other members”. See in this
regard
Harerimana v
Refugee Appeal Board
2014 (5) SA
550
(WCC) at p 555J - 556E.
[16] It is accordingly
clear that the “Appeal Board” was not properly
constituted when it heard and dismissed the applicant‟s
appeal
and for this reason alone the decision is reviewable.
[17] The second ground of
review deals with the alleged failure on the part of both the RSDO
and RAB to take into account relevant
factors when coming to their
respective decisions.
[18] Here it is stated by
the applicant in his founding affidavit that both bodies failed to
take into account relevant recent country
reports on the DRC, which
describe the prevailing situation in the DRC in detail and which
clearly indicate that it would not be
safe for the applicant and his
family to return to their home country. In this regard the RAB
made the following finding:
“
In reaching its decision the Board has thoroughly
assessed the claim and has had due regard to the objective background
information
on the appellant‟s country of origin.”
[19] The RAB does not
explain however which “objective background information”
was taken into account. It also
does not indicate which of that
“objective background information” supports the decision
to refuse the appeal and which
of that information goes against it.
The RAB in fact does not really deal with the current situation in
the DRC.
[20] The RAB also found the following:
“
It is the finding of the Board that the
appellant‟s testimony did little to convince the board of the
authenticity of its
claims to a political opinion that may result in
persecution.”
[21] This is disputed by
the applicant in his founding affidavit and he claims that he did
indeed relate to the RAB the facts upon
which he basis his claim of
persecution, namely his opposition to the violent tactics of the PPRD
and the MLC, in particular his
refusal to join the ranks of the PPRD
while he was in Mbandaka, which was the basis for his political
persecution. He states
that the second respondent, who presided
at his appeal, did not ask him to explain the circumstances under
which he was able to
remain in the DRC for four years from when the
persecution started until he fled the country. Despite this the
RAB made the
finding that the fact that he was able to remain there
for four years “undermines any claim of persecution on return”
or demonstrates a “lack of interest by alleged persecutors”.
[22] The applicant goes on
to say that had the RAB asked him why he had spent that length of
time in the DRC before fleeing, he
would have explained the
following, and here I quote from paragraph 49 of his founding
affidavit:
“
Our decision to flee the DRC was made as a last
resort only after we had made every attempt to survive in our home
country.
During the four years before we fled the DRC, my
family and I attempted to live in various cities and towns and to
avoid the attention
of the MLC and PPRD, but found that persecution
was widespread, and that we were not safe in any of these places.
During
those four years, the political unrest only worsened, and our
persecution continued. Thus, after the birth of our son in
October 2004, we fled the DRC.”
[23] On the applicant‟s
version, which is not disputed by the second respondent, he was not
asked at his appeal hearing why
he was able to spend all this time in
the DRC in circumstances where he claims to have been persecuted.
Here it must be remembered
that the applicant was unrepresented and
also that there was clearly a language problem, which I will deal
with later.
[24] Before making such a
finding then it was clearly incumbent upon the second respondent to
afford the applicant an opportunity
to explain himself. On his
version she did not do so and in the absence of a record of
proceedings contradicting the applicant
or an affidavit by the second
respondent, I must accept that this is indeed what transpired at the
hearing.
[25] The third ground of
review involves the language barrier between the applicant and the
officials dealing with his application.
[26] Here the applicant
states that when he arrived in South Africa in January 2005 he did
not speak any English. When he
attended the reception office in
Durban he was given a nine page form to fill in dealing with
“Eligibility Determination
Form of Asylum Seekers”.
The form was in English. He was not offered the services of an
interpreter. Also
when he returned to the reception office a
second time, although he brought a friend with him who understood
more English than
he did, he was not offered an interpreter and again
there were difficulties in recording what he said. He was also
not afforded
an interpreter when appearing before the RSDO and also
before the RAB. He does say that when his appeal was heard on
20 November
2007 he understood more English than he did in 2005, but
he was “by no means fluent and I did not understand all of the
questions that were put to me by the Second Respondent. Again I
was not given the option of using an interpreter.”
[ This seems to be in clear
contravention of section 34 of the Act which requires:
“
When
considering an application, the Refugee Status Determination Officer
must have due regard for the rights set out in section
33 of the
Constitution and in particular ensure that the applicant fully
understands the procedures, his or her rights and responsibilities
and the evidence presented.”
[28] Clearly this also
applies to an appeal before the RAB, when an appellant appears in
person.
[29] Here Regulations 4 and
5 of the regulations pursuant to the Act provide inter alia that a
refugee reception officer must ensure
that an applicant is provided
with adequate interpretation and, where this is “not
practicable”, that the applicant
can be required to provide his
own interpretation, but must be given at least seven days advance
notice that he or she is required
to bring an interpreter to the
interview. According to the applicant he was neither offered
the services of an interpreter
nor told to bring one with him.
[30] It seems obvious that
where there is a language difficulty at a hearing before a body such
as the RSDO or the RAB, to the extent
that the applicant does not
fully understand the proceedings or he is not properly understood,
which is the case here on the applicant‟s
version, such a
hearing can clearly not be said to be fair. Again, in the
absence of a record of proceedings or an opposing
affidavit, I must
accept what is stated by the applicant in this regard.
[31] The fourth ground of
review deals with the alleged failure by the RAB to properly apply
the law.
In
this regard the RAB made the following finding:
“
The appellant fears that he will be persecuted
upon his return to his country for reason of his political opinion.
However, the Board finds that the appellant‟s
political profile was such that he could not be regarded as a threat
to the
government or the MLC. He is therefore
unlikely
to be targeted by the authorities or the MLC.” (my
underlining)
[32] But this is not the
test. The test is whether there is a “reasonable
possibility of persecution” which must
be considered in all the
circumstances of the case. See
Tantoush v Refugee Appeal
Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(TPD) paragraph [97] at p 266B.
[33]
The RAB also made the following finding:
“
It is also interesting that he was able to remain
in Kasai and Lubumbashi for a total of four years before leaving the
country.
During this time nothing happened to him. This
factor alone does not incline the Board to find that he may have been
at risk
of
imminent
harm.” (my underlining)
[34]
The question is not whether the risk of harm is imminent but rather
whether it is real.
[35] I have already dealt
with the applicant‟s complaint relating to language difficulty
when presenting his case. Once
there is such a problem, it is
not really helpful for the RAB to make the following finding in
regard to the applicant‟s
testimony:
“
It is the finding of the Board that the
appellant‟s testimony did little to convince the Board of the
authenticity of his
claims to a political opinion that may result in
persecution.”
[36] On the evidence before
me the applicant‟s claim of persecution must be accepted as
genuine. The RAB has chosen
not to place the record of
proceedings before the court to indicate in what manner, if any, the
applicant may have been less than
convincing. It has also
chosen not to question anything he says in his founding affidavit,
either on the basis that it is
at odds with what he had said before
either the RAB or the RSDO, or that for any other reason it should
not be believed.
[37] The fifth ground of
review complains of the RAB being inconsistent with previous
decisions made by it in similar circumstances.
[38] In this regard the
applicant refers to recent cases before the RAB, including one
relating to one Tressor Mongali Matolelo,
in which the RAB apparently
found that the DRC was in fact in such a state of disturbance and
disruption as to prohibit the return
of asylum seekers to that
country.
[39
Here it is again unhelpful that the RAB did not respond to this.
In addition, this is also the effect of the applicant‟s
evidence now before me.
[40] In his affidavit the
applicant states that there “is overwhelming evidence that the
country (the DRC) is in a sustained
state of public disorder and
disruption”. In this regard he annexes the UNHCR 2010
Country Report and also excerpts
from the
“
Third
joint report of seven United Nations experts on the situation in the
Democratic Republic of Congo” of 9 March 2011.
Also a
UNHCR article published in June 2012 entitled “Renewed clashes
and insecurity causing displacement in Eastern DRC”.
These all speak of the unstable and indeed dangerous situation
existing in the DRC.
In
the UNHCR report appears the following passage:
“
Violence in the eastern and western parts of the
country characterised by atrocities committed by various armed
groups, including
sexual and gender based violence, has resulted in
the displacement of more than 1.7 million people. The
continuing instability
hampered UNHCR‟s programmes by reducing
access to certain areas.”
The
report continues, under the heading “favourable protection
environment”:
“
Through its protection monitoring mechanism, the
office was able to record and report some 19900 violations of human
rights related
to sexual violence, arbitrary detention, abduction and
the usurpation of land and property”
Under
the heading “persons of concern” the report lists 2.3
million such persons in the DRC, comprising refugees, asylum
seekers,
IDP‟s and returnees, either from the DRC itself or from
neighbouring countries. Under the heading “constraints”
the report states:
“
Rampant violence and continuing human rights
violations remain major sources of concern, while access to affected
populations was
hampered by poor infrastructure… Moreover,
weak administrative and judiciary structures make it difficult for
people to
seek justice.”
[41] All this again remains
unanswered on the papers before me. In any event this
information comes from reputable publications
of which I am entitled
to take cognisance. Here I note that the RAB itself quotes the
UNHCR on page 5 of its reasons.
[42] It follows from the
aforegoing that in my view the decisions of both the RSDO and the RAB
must be reviewed and set aside.
[43] The question that then
arises is whether the matter should be referred back to the RAB or
RSDO to rehear the matter or to substitute
my decision for that of
the
RAB
and RSDO.
[44] The applicant‟s
personal circumstances appear from paragraph 75 of his affidavit
which reads as follows:
“
75. My wife (Nadine Ngandosuka) and I have lived
in Durban for the past seven years. We both have steady jobs: I
work at the
Silversands Hotel, Durban, as a security guard and my
wife works as a housekeeper at Arm International, a firm of
immigration practitioners.
I also continue to preach and have a
small communal church, Assembly of God, situated at 23 Winder Street.
We
have three children:
a. A
son aged seven, born in DRC shortly before we departed to South
Africa;
b. A daughter aged two years nine months, born in South
Africa;
c. A daughter aged one year and six months, born in
South Africa.”
[45] In terms of section
8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA) a court is given the power
on review to substitute its
decision for that of the body taken on review “in exceptional
circumstances”. In
this regard Davis J states the
following in
Harerimana‟s
case at pages 557H-558A:
“
When a court sets aside a decision of a body such
as the RAB, the default position must be to refer the matter back to
the designated
body to enable it to reconsider the issue and make a
fresh decision. As Heher JA said in
Gauteng Gambling Board v
Silverstar Development Ltd and Others
2005 (4) SA 67
(SCA)
para 29:
“
An administrative functionary that is vested by
statute with the power to consider and approve an application is
generally best
equipped by the variety of its composition, by
experience, and its access to sources of relevant information and
expertise to make
the right decision. The court typically has
none of these advantages and is required to recognise its own
limitations.”
A court must show respect for a legislative design which
creates a specialist body to deal with the task of making decisions
of
an administrative nature. Besides, review cannot simply be
conflated into an appeal to usurp these decision-making powers,
thereby expanding the powers of courts into areas which a legislative
framework has expressly eschewed.”
[46] In
UWC v MEC for
Health and Social Services
1998(3) SA 124 (C) Hlophe J (as he
then was) provided guidelines in respect of determining whether a
case was sufficiently exceptional
for a court to substitute its own
decision for that of the designated body or tribunal. The
judgment reads as follows at
page 131D-E:
“
Over the years South African Courts have
recognised that in exceptional circumstances the Court will
substitute its own decision
for that of a functionary who has the
discretion under the Act. Where the end result is in any event
a foregone conclusion
and it would merely be a waste of time to order
the tribunal or functionary to reconsider the matter, the Courts have
not hesitated
to substitute their own decision for that of the
functionary. … The Courts have also not hesitated to
substitute their
own decision for that of a functionary where further
delay would cause unjustifiable prejudice to the applicant.”
[47] Dealing with the first
consideration, namely whether on the facts before me the result is a
foregone conclusion, it seems to
me that a clear case has been made
out by the applicant for refugee status. Although the facts now
before me may not have
been placed before the RSDO and the RAB as
fully and as clearly articulated as they are now before me, due
perhaps to language
difficulties and the applicant not being legally
represented, I have no doubt that if they were to be placed before
the RSDO or
the RAB, and if considered properly, the conclusion that
a compelling case for refugee status has been made out is all but
inevitable.
[48] This brings me to the
second consideration, namely prejudice to the applicant resulting
from a further delay in these proceedings.
[49] It has taken the
applicant ten years to get this far, and had it not been for the fact
that he has been legally represented
for the last approximately three
years, one wonders how much longer the process will have taken, that
is if it would ever have
reached this court at all.
[50] Why did it take the
RSDO almost two years to deal with the applicant‟s application?
And the RAB more than four years
to come to a decision? Was it work
pressure or simply administrative inefficiency? Here it is
particularly regrettable that neither
the RSDO nor the RAB have
chosen to explain these delays.
[51] In the
Harerimana
case Davis J stated the
following at page 560G:
“
This decision must surely be strengthened by the
disturbing fact, unacceptable in these cases, that it was more than
four years
after his initial interview that applicant was ultimately
notified that his claim for refugee status had been unsuccessful.”
[52] On the facts before me I would substitute
“unacceptable” with “deplorable”.
[53] Here one shudders to
think of the many thousands of refugees in similar situations in our
country who have been or are being
subjected to the same treatment as
the applicant has been by those to whom the law has entrusted their
fate. How many have
waiting ten years, fifteen years perhaps,
or have simply given up? How many have had access to lawyers?
[54] It is of course so
that the matter was first placed before this court almost three years
ago. The delay since then is
clearly unsatisfactory. It
was however partly due to the third respondent filing a notice to
oppose, which was then not followed
up by any opposing papers.
[55] Must I now refer the
matter back to the RAB or the RSDO for the process to take another
five years, six years, whatever? Clearly
not.
[56] This leaves paragraph
4 of the relief sought, namely that the third respondent be directed
to issue permanent residence permits
to the applicant, his wife and
three children. Here the applicant states the following in
paragraphs 82, 83, 85 and 86 of
his affidavit:
“
82. My application for asylum was first made on
23 January 2005. I received notice that my appeal had been
refused on 11 January
2012 – almost seven full(y) years after I
arrived in the country, and given until 22 February 2012 to leave the
country.
83. While waiting for first the RSDO and then the Appeal
Board to make their decisions, I have lived in South Africa with my
family
for seven years and two of my children were born in this
country and know no other. I attended the Refugee Centre
frequently,
hoping that the Appeal Board decision would have been
taken. I also attended in order to register the birth of my
daughters
in the file and to extent my asylum seeker and work
permits.
85. It is submitted that, had the RSDO and the Refugee
Appeal Board made their decisions correctly and within a reasonable
time,
my family and I would have been resident in this country for
long enough to earn our permanent residence permits (which are
applicable
to foreigners who have been residing in South Africa on
the basis of their work permits for a minimum period of five years,
along
with their spouses and dependants).
86. In the current situation, the original RSDO decision
was taken on 17 November 2006. Had this been correctly decided,
my
family and I would have by now qualified for our permanent
residence permits and I humbly request this Honourable Court to make
an order directing the Fourth Respondent to award us same.”
[57] This issue, namely
whether or not the applicant and his family should be granted
permanent residence, was not however before
either the RSDO or the
RAB.
It
is then also not an issue before me and I accordingly cannot grant
this relief.
[58] In this regard I trust
however that the official or officials entrusted with deciding this
issue will, when doing so, have
regard to the facts set out in this
judgment and more particularly the personal factors relating to the
applicant and his family
set out in paragraph [56] above.
[59] In the result I make the following order:
[59.1] The decisions of the first and fifth respondents
on 17 October 2006 and 21 July 2011, dismissing the applicant‟s
application
for refugee status and asylum and his subsequent appeal
against such dismissal, respectively, are reviewed and set aside.
[59.2]
It is declared that the applicant is a refugee entitled to asylum in
the Republic of South Africa in terms of
section 3
of the
Refugees
Act 130 of 1998
.
[59.3]
The third respondent is directed to issue to the applicant written
recognition of refugee status in terms of
section 27(a)
of the
Refugees Act within
ten days of the date of this order.
[59.4] The third respondent is ordered to pay the costs
of this application.
______________________
GH
Penzhorn AJ
Judgment
reserved :13 February 2015.
Judgment
delivered : 24 February 2015.
Counsel
for Applicant: Adv. SF Pudifin – Jones
Instructed
by : Neerajh Ghazi Attorneys Durban
Counsel
for third Respondent : Mr Ngubane
Instructed
by : Office of the State Attorney, Durban