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[2015] ZAWCHC 139
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J.M v Refugee Appeal Board and Others (13427/2012) [2015] ZAWCHC 139 (17 August 2015)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
(
WESTERN CAPE DIVISION, CAPE
TOWN
)
CASE
NUMBER
:
13427/2012
DATE
:
17 AUGUST 2015
In
the matter between:
J
M
Applicant
And
THE REFUGEE
APPEAL BOARD
1
st
Respondent
M J CHIPU
N.O.
2
nd
Respondent
THE REFUGEE STATUS DETERMINATION
OFFICER, M
NXELEBA
N.O.
3
rd
Respondent
THE DIRECTOR-GENERAL, DEPARTMENT
OF HOME
AFFAIRS
4
th
Respondent
THE MINISTER
OF HOME
AFFAIRS
5
th
Respondent
J U D G M E N T
DAVIS,
J
:
This is an application to review and
set aside a decision of the second respondent, acting on behalf of
the first respondent, upholding
the decision of the third
respondent’s refugee status determination officer (RSDO), who
determined that applicant’s
application for asylum refugee
status was unjustified. In addition to the prayers in the
notice of motion for the review
and setting aside of these decisions,
applicant also seeks relief by way of substitution and has asked this
Court for an order
declaring that she is refugee as contemplated by
the Refugees Act 130 of 1998 (“the
Refugees Act&rdquo
;) as well
as an order directing fourth respondent to issue her with a document
concerning her status as a refugee in terms of
section 27(a)
of the
Refugees Act.
FACTUAL
BASIS FOR THIS APPLICATION:
According to applicant’s
founding affidavit, she is a citizen of Rwanda. During the
genocide in that country she remained
at a boarding school in Rwanda
while the rest of her family fled to Uganda. Her father was a
teacher. She also qualified
as a teacher in Kigani in 2009.
After graduation she obtained a teaching post in Rurenge in the
Nyagatare District in the
Eastern part of Rwanda from where her
family came.
Her father had met Fausdon Kayumba
Nyamwasa (“Nyamwasa”) while in exile in Uganda.
Later he became a member of
the Rwanda National Congress (“RNC”).
It appears that applicant also became a member in 2010.
Nyamwasa
fled Rwanda in February 2010 and sought asylum in South
Africa. I should add that, although there was some dispute
raised
in the papers, it appears from the judgment in
Consortium
for Refugees and Migrants in South Africa v President to the Republic
South Africa and Others
(Case number 30123/2011: unreported
judgment of the North Gauteng High Court) that Nyamwasa was granted
refugee status in South
Africa on 22 June 2010.
Applicant’s father then fled to
Uganda in July 2011 as he feared for his safety as a result of his
involvement in opposition
politics. After her father and later
her uncle had left for Uganda, members of the local defence unit came
looking for applicant.
It appears from this narrative, which I
have summarised from applicant’s founding affidavit, that she
avers that she was
subjected to rumours that her father had fled
because of his political views and that she shared these views, which
in her affidavit
she confirms she indeed did.
In September 2011 the Executive of the
sector in Rurenge sent the principal of the school, where she taught,
a letter demanding
that the applicant report to the local police.
The purpose of this report is to explain why she was “
trying
to organise people for the opposition
”. Applicant did
not report to the police, although she told her principal that she
would do so. She then phoned
her father who advised her to
leave the country. The applicant also came to the independent
conclusion that she was unsafe.
Her fear was based on the
experience of others who were active in opposition politics.
Applicant’s father advised her
that Rwanda exiles are not
entirely safe in Uganda and that she should rather proceed to South
Africa, where a former colleague
of his had sought asylum.
Applicant arrived in South Africa on 4
October 2011. She applied for asylum on 10 October 2011.
She has spoken, according
to her affidavit, to her father on a few
occasions since her arrival in South Africa, the last occasion being
in July 2014.
Her father informed her of the difficulties in
Uganda and the fear of being under surveillance and of his wish to
come to South
Africa. In October 2014 she was informed that her
father was no longer in Uganda but in custody in Ruwanda.
Subsequent
thereto she has not obtained any further information.
The applicant did not speak English
when she entered South Africa. She was thus assisted to
conclude the Eligibility Determination
Form. Her lack of
English was confirmed by the Refugee Reception Office and is evident
at para 9A of the Eligibility Determination
Form.
The applicant’s hearing before
the RSDO took place on 11 October 2011 when she was assisted by an
interpreter from Burundi.
She was handed the RSDO’s
rejecting her claims as unfounded on the same day. The RSDO
found that there were no threats
to her life and that she could not
demonstrate a reason of further persecution. It was also found
that she was not entitled
to international protection because her
government could protect her.
She appealed the decision of the third
respondent. The second respondent upheld the decision of third
respondent. The
critical findings, in justification of
upholding this appeal are the following:
“
The
appellant failed to explain the blood relation between his father and
the leader of the RNC, it appeared that the father was
a member of
the RNC and there was no blood relation as alleged in her claim.
The appellant had stated that she is a member
of RNC and it appeared
in the appeal hearing that she was not a member of RNC. The
appellant claim (sic) is not credible.
As it has appeared
during the appeal hearing at Cape Town on 2 February 2012 that is
only his father (sic) who was an ordinary
member of RNC, not the
entire family as claimed. It is difficult to believe that the
appellant was affected by the father’s
activities since her
mother and siblings are in Rwanda (sic).
The reasons that made the appellant to
leave Ruwanda are not accommodated in terms of
section 3
of The
Refugees Act 130 of 1998
. The appellant never experienced any
reasonable risk of harm or persecution while in Rwanda except the
talks of her colleagues
which does not amount to persecution.
It is trite law that persecution has to be accumulative or systematic
which find no
expression in the appellant’s claim (sic).
The fact that the father is a member of RNC cannot be persecution to
the
appellant (sic). There is no evidence presented by the
appellant to show that those associated with RNC are persecuted in
Rwanda.”
By contrast the applicant insisted
that at no stage did she say that she was related to Nyamwasa as in
“
family
”. She stated that she asserted that
her father was connected to him and with a member of the party which
he had formed.
The interpreter Ms Mpawenimana deposed to an
affidavit in which she said the following:
“
There was no
communication problems at all through the applicant. I have
interpreted on countless occasions for Rwanda asylum
applicants.
What I communicated to the RSDO was not inaccurately conveyed by me.
I had had no reason to give the incorrect
interpretation. In
particular I highlight that the applicant told me that her father was
related to Kayumba Nyamwasa (sic).
I would not have mistaken
the meaning between on the one hand the idea that her father knew
Kayumba and on the other that they
were related. I invite the
applicant to state the exact phrase that she used to convey what she
meant so that I can respond
with my interpretation understanding.
What she said was clear to me namely, that her father and Kayumba
Nyamwasa were related.”
In response to this challenge to
specify the words used, applicant stated in her replying affidavit
that she had used the word “
ubunwe
” which is
similar to the French word “
unite
”.
Significantly on page 2 of NGC1, which is the content of the notes
taken by the first respondent, applicant said
that her father was a
friend of Mr Nyamwasa. To the comment in the findings of the
first respondent that “it is difficult
to believe that the
appellant was affected by the father’s activities since the
mother and siblings are in Ruwanda”
it is significant that in
the document entitled Appeal against the decision by the Refugees
Status Determination Officer, it is
stated in the section “Give
reasons and detail why you disagree with the decision of the Refugee
Determination Officer”:
“
As members
of the RNC we were victimised and as the educated person of my family
I was next in the family to face this persecution”.
Second respondent’s affidavit
also stated that the applicant could not give details about the RNC.
Applicant responded
that she could not recall being asked about the
party. She did make a comment that, in the absence of any
reference this
exchange in second respondent’s contemporaneous
notes, it was unlikely that he would remember this detail.
Significantly,
applicant draws the Court’s attention, in her
replying affidavit, to the fact that the various deponents on behalf
of the
respondents’ are seeking, after three years, to
reconstruct the interview. In the second respondent’s
notes he
wrote that the applicant said that her father was a friend
of Nyamwasa. Later in his notes he recorded that he asked her
to explain the relation between her father and Nyamwasa.
Ms Mpawenimana’s contention that
the applicant only admitted that she was not a blood relative towards
the end of the interview,
is somewhat incongruous in the light of
these averments. So much for the case put up by the applicant.
I turn now to
the question of who is a refugee.
THE RELEVANT LAW:
Section 3(a)
of The
Refugees Act which
states that a person qualifies for refugees status for the purpose of
that if that person “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 evade himself or herself of the protection
of that
country will not having a nationality and being outside the country
of his or her former habitual residence, is unable
or owing to such
fear unwilling to turn to.
This definition follows upon Article
1(A)(2) of the 1951 United Nations Convention Relating to the Status
of Refugees (“The
1951 Convention”) to which South Africa
is a party. Further,
section 2
of the
Refugees Act sets
out the
fundamental principle of non-refoulment which is a basic principle of
refugee protection. The section headed “
General
Prohibition of Refusal of Entry, Expulsion and its Condition will
return to another country in certain circumstances
”
provides:
“
Notwithstanding
any provisions of this Act or any other law to the contrary, no
person may be refused entry into the Republic, expelled,
expedited or
returned to any other country or be subject to any similar measure if
as a result of such refusal, expulsion, return
or other measure such
person is compelled to return or remain in the country where he or
she may be subjected to persecution on
account of his or her race,
religion, nationality, political opinion or membership of a
particular social group.”
The question which third respondent,
in particular, was required to answer was whether, on the facts of
this case there is a reasonable
possibility that the applicant be
persecuted if returned to Rwanda and whether the reason for the risk
of persecution is included
in the definition on the convention.
The phrase “well-founded fear” contains both a subjective
and objective
requirement. There must be a state of mind, fear
of being persecuted, and a basis which was well-founded for this
particular
fear. See, for example,
Tantoush v Refugee Appeal
Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T) at paras 97 to 98.
Protection is restricted to persons
who can demonstrate a present or prospective risk of persecution.
Therefore, what
is required is an assessment of the risk going
foward. In
R v Secretary for the Home Department
ex
parte
Sivakumaran
[1988] 1 ALO ER 193 (HO) the House
of Lords held that a well-founded fear of persecution meant that if
the applicant was returned
to his or her own country, there was a
reasonable degree of likelihood that he or she would be so
persecuted.
In this case in deciding with the
applicant who made out his claim that his fear of persecution was
well-founded, the Secretary
of State, the House of Lords found that.
Account had to be taken of facts and circumstances known to him or
established to
his satisfaction but possibly unknown to the applicant
to determine whether the applicant’s fear was objectively
justified.
Since the Secretary of State had before him
information which indicated that there would be no persecution of
Tamils generally
or any other particular group of Tamils or the
applicant in Sri Lanka, he had been entitled to refuse the
application on the ground
that there existed no real risk of
persecution.
Of equal relevance is Regulation 11(2)
of the Regulations in South Africa Refugee (6 April 2000) which
provides that:
“
In the
absence of documentary evidence, an applicant’s credible
testimony and considerations or conditions in the country
of fear of
persecution or harm may suffice to establish eligibility for refugee
status.”
These regulations follow the
recommendations of paragraph 196 of UNHCR Handbook on Procedures and
Criteria for Determining Refugee
Status:
“
It is a
general legal principle that the burden of proof lies in the person
submitting the claim. Often however an applicant
may not be
able to support his statements by documentary proof or other proof.
Even [if] such independent research ...[is]
not ... successful and
[the applicant] may ... [have made] statements [which are] not
susceptible to proof. In such cases
if the applicant’s
account appears credible he should, unless there are good reasons to
the contrary, be given the benefit
of the doubt.”
The application of these legal
principles
Applicant’s claim for asylum and
refugee status is based on grounds that owing to a well-founded fear
of persecution on account
of her political opinions or imputed
opinions and the social group, to which she belonged, she was forced
to flee Rwanda.
Whether or not her fear was well-founded must
be considered in the light of the objectively ascertainable facts
regarding the human
rights situation in Rwanda. So much
is clear from the law which I have outlined.
Of particular interest are reports
generated by the United States Department of State regarding the
political conditions in Rwanda,
which reports were attached to the
answering affidavit of second respondent. To the extent that
these are relevant and were
supplied not by the applicant but by the
respondent, the following suffices to give an indication of the
findings:
“
The Freedom
March 2010 Freedom in the World report declared Rwanda ‘not
free’, with particularly low political rights
and civil
liberties scores. In 2008 the Economist stated that the Kagame
government ‘allows less political space and
press freedom at
home and [does] Robert Mugabe.”
This is a most disturbing claim given
claims about the egregious abuses of civil liberties in Zimbabwe
which have been heard in
our Courts. See for example National
Commissioner of the Southern African Police Service v Southern
African Human Rights
Litigation Centre
2015 (1) SA 315
(CC).
The report continues of this, “In spite of this donors have
remained broadly supported of the government, and
largely ignored the
violation of citizen’s human rights. Kugame defends his
regime from criticism over its human rights
record by saying “this
is not about criticism or debate or opposition. It is a line
drawn on the basis of what is right
and wrong for us.” In
the government’s view their suppression is legitimate as they
are protecting society from
a resurgence of ethnic tensions of the
1990’s, although critics and opposition groups see their
efforts as ways to shore
up RPF political dominance.
These accounts, which form part of the
answering affidavit finds support in documentation which the
applicant provided to this Court.
For example, a report
of United States Department of State of 25 June 2015 documents a
depressing litany of human rights
abuse in Rwanda. I shall but
refer to certain claims which reflect the nature of the report:
“
The most
important human rights problems in the country where discrepancies,
government harassment, arrest and abuse of political
opponents, human
rights advocates and individuals perceived to pose a threat to
government control and social order: disregard
for the rule of law
amongst security forces and the judiciary: and restrictions on civil
liberties. Due to restrictions on
the registration and
operation of opposition parties and non-transparent vote counting
practises, citizens do not have the ability
to change their
government through fair and free elections.”
In the report the following was
documented:
“
On April 23
Rwandan SSF reportedly detained Norbit Manirafashao, a refugee under
United Nations High Commissioner for refugees ...
protection in Goma,
the DRC and forcibly repatriated him into Rwanda. Manirafashao
reportedly was held
in cumnunicado
until his appearance in Court on May 19 when authorities charged him
in Ruvavu District for crimes against state security while
50 other
defendants connected to the January to May arrests of alleged FDLR
agents.”
In the light of these facts, applicant
contends that she is unwilling to return to Rwanda as there is more
than a reasonable possibility
that, having lived in South Africa as
an asylum seeker of some years, she will draw particular attention to
herself on her return.
The fact that the applicant has lost
contact with all of her family has resulted in her having a
heightened fear of consequences
of return. While her mother is
not educated, her father had been able to contact her. Although
this information was
not before the RSDO or the second respondent,
should her father have indeed returned to Rwanda and he is in jail,
whether he returned
on his own accord or was abducted, she will quite
be all the more vulnerable, given her connection to him.
In its decision the first respondent
committed a number of egregious errors. I shall document the
key ones. Applicant
was entitled to the services of a competent
interpreter at all stages of the process. As the RRO noted on
10 October 2011
applicant could not speak English. It was
clear that a competent interpreter was required. The applicant
puts
up a plausible case regarding the question of whether she said
Nyamwasa was her relative. It appears probable that what she
said was that they were related in a political, as opposed to a blood
sense. If these were mistakes, which were made by the
interpreter, provided by the fifth respondent, they resulted in the
second respondent making a most damaging credibility finding
against
the respondent, a mistake which I might add was a primary source of
the reasons for the adverse finding against the applicant.
By refusing to allow the applicant to
use the assistance of a competent interpreter in the status
determination hearing, it follows
that the second respondent could
have not adopted the procedure that it was fair or proper and
accordingly the applicant did not
have a meaningful opportunity to be
heard. Further, the fact that the second respondent stated in
his reasons “
it is difficult to believe that the appellant
was affected by the father’s activities since her mother and
siblings are in
Ruwanda
” indicates an improper appreciation
of the conspectus of facts in Rwanda.
If she is the only person in the
family apart from her father who is educated and holds a prominent
position as a teacher, that,
in the context of the political context
described by both applicant and respondents’ permits a
plausible inference to be
drawn, that she would be targeted and that
given her status she would have a real apprehension of being so
targeted.
The applicant did not present evidence
regarding a political historical social context of Rwanda. It
is also true that this
evidence is fundamental to the claim for
asylum. But then she was not properly informed of the onus
which had been deposed
upon her at the hearing. Secondly in
this connection, both the second and third respondents should have
considered her claim
within this political context, a context, given
the papers put up by the respondents, should have been well known to
them.
It does not appear from the written reasons provided by
the second and third respondents that did so. Hence this Court
is
not able to disregard the political description set out of the
situation in Rwanda, as provided in the first respondent’s
own
papers.
When all of these mistakes are taken
together, I cannot but agree with Ms de la Hunt, who appeared on
behalf of the applicant, that
a reasonable decision maker would not
have come to the decision that the applicant did not have a
well-founded fear of persecution.
On this basis the decisions
which were taken to refuse her asylum stand to be set aside.
SUBSTITUTION:
In the light of these findings
applicant now seeks an order declaring that she is a refugee in terms
of
section 3
of the
Refugees Act and
a further order which in regard
to refugee status and asylum. In effect, she asks this Court to
substitute its decision for
that of Refugee Status Determination
Officer RSDO and the Refugee Appeal Board.
Ms Mangcu Lockwood, who appeared on
behalf of the respondents, urged this Court not to substitute its
decision for that of the first
respondent, if the Court were to come
to the conclusion which it has namely, that the decision stands to be
set aside.
She submitted that, even if the
respondents had shown incompetence or indeed bias, there are a number
of officials involved in the
determination of asylum applications.
There is not only one designated functionary who operates at the RRO
or the RSDO stage.
Thus, even if the applicant’s
application had not been properly handled by the particular
individuals who dealt with applicant,
her case could now be dealt
with by other officials.
Further, the complaint regarding the
interpreter could be cured by remitting the matter to the
respondents’ and for provision
to be made for another
interpreter or to allow the applicant to be accompanied by her own
interpreter. In Ms Mangcu Lockwood’s
view another factor
which should be taken into account was that applicant relies on new
information which she failed to mention
in her application for
asylum, including the claim that her family has fled Rwanda and that
her father may now be jailed in Rwanda.
Accordingly respondents’ have
not had the opportunity to investigate these claims. It would
be appropriate if the matter
was remitted back to the respondents’
for a fresh determination. In support of these submissions Ms
Mangcu Lockwood
referred to the decision of Rogers, J in
Mayemba v
Chairperson of the Standing Committee for Refugee Affairs
[2015]
ZAWCHC 86
; 10 June 2015).
In that case Rogers, J took into
account the fact that four years had elapsed since the asylum
application had been made.
He decided that the adjudication of
an asylum application was concerned with the current state of affairs
in the country of origin.
In this connection he referred to
section 5
of the
Refugees Act, while
the circumstances in relevant
parts of Rwanda may have changed, Rogers J was of the view that it
was preferable for such information
in the first instance to be dealt
with in terms of the statutorily prescribed procedures contained in
sections 21
and
24
of the
Refugees Act. Rogers
J also noted (ar
par 38):
“
The power of
substitution confirmed by
s8(1)(c)(ii)(aa)
is one to be exercised
only in exceptional circumstances and when, upon a proper
consideration of all the relevant facts, a court
is persuaded that
the decision to exercise the power should not be left to the
designated functionary ... Circumstances which may
favour
substitution or where a further delay would cause unjustifiable
prejudice or the original decision maker has exhibited bias
or
incompetence or the outcome is a foregone conclusion.”
The only consideration in this case
which should give the Court pause as to whether exceptional
circumstances as described by Rogers,
J exist, is whether the outcome
is a foregone conclusion in the light of the political context which
has been set out by both parties
in the papers presented to this
Court. However, substitution can only take place in exceptional
circumstances. The
fact that one designated function has failed
to perform in terms of the statutorily prescribed functions set out
in the
Refugees Act, is
not on its own, sufficient to justify a
finding of exceptional circumstances Ms Mangcu Lockwood is correct
that there are other
functionaries who will perform their duties with
greater care and consideration of the evidence, context and with the
aid of a
proper interpreter.
In my view, all of these facts dictate
that, in this case, a similar conclusion to that arrived at by
Rogers, J in Mayenba
supra
should be followed.
Accordingly it is appropriate to remit the applicant’s asylum
application for determination for
a fresh RSDO within strict time
limits so that the matter can be decided expeditiously with the
benefit of accurate interpretation
and the further benefit of
consideration of the political context, which is set out in both
applicant’s and first respondent’s
papers.
For these reasons therefore the
following order is made:
(1)
THE SECOND RESPONDENT’S
DECISION OF 31 JANUARY 2012 DISMISSING THE APPLICANT’S APPEAL
AGAINST THE THIRD RESPONDENT’S
DECISION AND REJECTING
APPLICANT’S APPLICATION FOR REFUGEE STATUS AND ASYLUM IS
UNFOUNDED, IS REVIEWED AND SET ASIDE.
(2)
THE THIRD RESPONDENT’S
DECISION OF 26 JANUARY 2006 REJECTING THE APPLICANT’S
APPLICATION FOR REFUGEE STATUS AND ASYLUM
AS UNFOUNDED, IS REVIEWED
AND SET ASIDE.
(3)
THE APPLICANT SHALL WITHIN TWO
MONTHS OF THIS COURT ORDER OR WITHIN SUCH FURTHER PERIOD AS THE
PARTIES MAY AGREE IN WRITING SUBMIT
FRESH APPLICATION FOR ASYLUM IN
ACCORDANCE WITH
SECTION 21
OF THE
REFUGEES ACT 130 OF 1998
AND THE
FURTHER PROVISIONS OF
SECTION 21.
26
(OR AS THE CASE MAY BE OF THE
ACT) SHALL APPLY TO SUCH APPLICATION. THE REFUGEE STATUS
DETERMINATION OFFICER ASSIGNED TO
DEAL WITH THE FRESH APPLICATION
SHALL NOT BE THIRD RESPONDENT. THE DETERMINATION BY THE REFUGEE
STATUS DETERMINATION OFFICER SHALL
BE COMPLETED WITHIN TWO MONTHS
AFTER THE APPLICATION HAS BEEN SUBMITTED OR ANY FURTHER PERIOD THAT
THE PARTIES MAY AGREE BETWEEN
THEMSELVES IN WRITING.
(4)
THE RSDO ASSIGNED IN THE CASE
SHALL COMMIT THE APPLICANT TO APPOINT AN INTERPRETER OF HER OWN
CHOICE TO ASSIST HER AT THIS PERIOD.
(5)
APPLICANT’S COSTS SHALL BE
PAID BY THE RESPONDENTS’ JOINTLY AND SEVERALLY, THE ONE PAYING
THE OTHER TO BE ABSOLVED.
THE APPLICANT’S COSTS INCURRED
IN RESPECT TO THE APPLICATION FOR RELIEF IN PART A SHALL BE PAID BY
THE FOURTH RESPONDENT.
__________________
DAVIS, J