A.M v Chairperson of the Refugee Appeal Board and Others (1102/2019) [2019] ZAWCHC 113 (28 August 2019)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

[WESTERN CAPE DIVISION, CAPE TOWN]

CASE NO: 1102/2019

In the matter between:

A M Applicant

and

THE CHAIRPERSON OF THE REFUGEE

APPEAL BOARD First

Respondent

THE REFUGEE STATUS DETERMINATION

OFFICER, MUSINA: R. L LEKGANYANE Second

Respondent

THE DIRECTOR – GENERAL OF THE

DEPARTMENT OF HOME AFFAIRS Third

Respondent

THE MINISTER OF HOME AFFAIRS Fourth

Respondent

JUDGMENT DATED: 28 AUGUST 2019

LE GRANGE, J:

Introduction:

[1] This is an application for the review and setting aside of a decision taken by the First Respondent (“RAB”) to confirm the decision of the Second Respondent in rejecting the Applicant’s application for asylum in terms of the Refugees Act, 130 of 1998 (“the Act”).

[2] In addition, the Applicant further seeks in terms of section 8 (1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000, (PAJA) an order from this Court (a declarator) that he be declared a refugee in terms of s 3 of the Act.

Background

[3] The Applicant is an Ugandan National. He was born on […] 1982 in […], Uganda and realised from a young age that he is a homosexual. He arrived in South Africa in February 2012. According to the Applicant, he fled his country of birth due to assault and for fear of victimisation owing to him being a homosexual. This victimisation, according to the Applicant arose from his family members. Apparently his parents and an uncle are particularly repugnant on his sexual orientation as they, like many other Ugandans, regard homosexuality as abnormal, improper and immoral.

[4] The Applicant further avers that his country of origin has become increasingly hostile towards homosexuals and seemed to promote and condone discrimination and violence towards such people.

[5] In his founding affidavit, in the present instance, the Applicant avers that homosexual conduct in Uganda was and remains criminalised,

pursuant to the 1950 Penal Code Act 120.[1] Conviction under this law can be punished with a sentence of up to life imprisonment.

[6] According to the Applicant homophobia is so normalised in Uganda that an Anti-Homosexuality Bill was passed by the Ugandan Parliament on 20 December 2013. The Bill was first introduced by a politician who urged that “homosexuals must be exterminated before they exterminate society”. Apparently, the effect of the Bill was not only that homosexuality was criminalised, but so too was promoting homosexuality – meaning that a person could go to jail merely for expressing a peaceful opinion.

[7] It is common cause that Uganda’s Constitutional Court, has invalidated the statute.

[8] The Applicant has further indicated in his ground of review before this Court, that extra-legal persecution suffered by homosexual

persons in Uganda includes: societal harassment, discrimination, intimidation and threats to their well-being; being publicly outed

and therefore exposed to further dangers, by newspapers or other media sources; having pride parades violently shut down by the police and other groups; confiscation of property and the termination of employment; being attacked and beaten, sometimes to death, or burnt alive; and being subjected to forced anal examinations, a discredited means of seeking “proof” of homosexual conduct that amounts to torture.

[9] In support of the above-mentioned facts, multiple reports and articles have been attached to the Applicant’s founding papers, in this Application.

[10] The Applicant arrived in South Africa in February 2012, and applied for asylum at the Musina Refugee Reception Office. He was interviewed by a Refugee Reception Officer (“RRO”). According to the Applicant, he had an inadequate interview as the RRO did not provide him with an interpreter and he had to rely on the assistance of another asylum seeker.

[11] The First Respondent denied that the Applicant had an inadequate interview. It was also denied that no interpreter was available.

According to the First Respondent, the Applicant had an interpreter of his own choice with him.

[12] It is common cause the RSDO rejected the Applicant’s asylum application and that he filed an appeal which was heard before the RAB on 3 July 2013. One member of the RAB member’s, Advocate M. P. Rakgogo heard the appeal and an official interpreter

was in attendance. The Applicant’s appeal was dismissed on 31 July 2013.

[13] It needs to be mentioned that the Department of Home Affairs at the time insisted that asylum seekers only renew their permits at the offices at which they applied for asylum. This practice has since been held to be unlawful.[2]

[14] According to the Applicant, he was living in Cape Town and struggled to find the money to return to Musina. He however attended on Musina in January 2014, but thereafter only managed to return in early 2015, when he was informed by the Department that he could not renew his permit until he paid a fine of approximately R3 000. In not paying the fine, the Applicant was an undocumented foreigner. The Applicant ultimately, re-accessed the asylum system on 11 September 2018, after paying a fine in Cape Town. He then received the RAB decision.

[15] It further needs to be mentioned, in trying to achieve his refugee status, the Applicant first visited the Cape Town Refugee Reception Office. According to the Applicant, it was too busy and had long queues and as such, he could not make the application. The Applicant left Cape Town to Pretoria Refugee Reception Office. According to him it was still the same, busy and had long queues. He thereafter, decided to travel all the way to Musina, in Limpopo to make an application.

[16] According to the Applicant, despite the delay from his side, he has a made out a case in terms of s 3(a) of the Act, to be granted refugee status on the basis that he fled due to events seriously disturbing and disrupting public order and his sexual orientation and membership to a particular social group.

Submissions

[17] Mr. Simonsz, who appeared on behalf of the Applicant argued that the RAB’s decision falls to be reviewed and set aside on a number of grounds. The main grounds relied upon, amongst others, were that: the RAB was not quorate when it made its decision; the RAB committed a material error of law in failing to recognise that it shares the burden of proof with the Applicant; The RAB failed to take into account any relevant information concerning events in Uganda, particularly with regards to the persecution of homosexual persons; and the RAB unreasonably and irrationally failed on the merits to find that homosexual persons are persecuted in Uganda. Mr. Simonsz further contended the decision taken by the RAB was clearly unreasonable. According to him the facts and circumstances of the case showed that the Applicant was compelled to leave his country owing to his sexual orientation and as a result of his well-founded belief of being persecuted by reason of his membership of that particular social group. The Applicant according to his view qualified, as a refugee under the Act, read together with certain international conventions. To this end, reliance was placed on the dictum of Harerimana v Chairperson, Refugee Appeal Board and Others[3].

[18] Mr. Ngombane, who appeared on behalf of the Respondents, conceded that the RAB was not quorate at the time of hearing the Applicant’s

appeal. He however argued that at best, for the Applicant, the matter should be remitted back to the RAB as it was constrained to the material before it when considering the appeal. In support of his contention reliance was placed on the matter of Somali Association of South Africa and Others v The Refugee Appeal Board and Others[4], where the court pointed out that ‘the RAB cannot be criticised nor can its decisions be attacked or sought to be set aside based on material that was not before it when it considered the asylum seekers appeals’[5]. According to Mr. Ngombane, the RAB is a statutory body which performs its functions impartially and it is best equipped in accordance with the dictates of its expertise, fairness and the law to make the right decision.

The Legal framework

[19] In terms of s 3 of the Act, the grounds upon which the Applicant would be granted refugee status, are set out. The Applicant is therefore required to meet these requirements. According to s 3 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 national or being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it, or

(b) owing to external aggression, occupation or 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: or

(c) is a dependent of a person contemplated in paragraphs (a) or (b).

[20] It is trite that the grounds set out in terms of s 3 (b) draw their origins from the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa[6]. The determination of refugee status as set out in the Act appears to be governed by objective factors. 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. This would necessarily occur prior to the time at which his or her refugee status is formally determined. Thus, “recognition of his refugee status does not make him a refugee but declares him to be one. He does not become a refugee because of recognition but is recognised because he is a refugee."[7]

[21] 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. Significantly,

Hathaway refers to the OAU definition and contends that as long as a person ‘is compelled’ to seek refuge because of an anticipated serious disruption of public order, he or she should not be placed in the position of having to demonstrate any linkage between his or her personal status (or that of some collectivity of which he or she is a member) and impending harm. Because the African standard emphasizes assessment of the gravity of disruption of public order rather than motive for flight, individuals are largely able to decide for themselves when harm is sufficiently proximate to warrant flight’.

[22] Turning to the procedures for refugee status, the Act provides for the determination of refugee status. An asylum seeker presents

himself or herself at a Refugee Reception Office, where an officer assists in the application for asylum. This application is evaluated

by the RSDO 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 makes this clear: the RSDO is obliged to have due regard to the rights set out in s 33 of the Constitution of the Republic of South Africa 108 of 1996, particularly to ensure that the Applicant fully understands the procedures, his or her rights and responsibilities

and the evidence presented.

[23] The RSDO is then obliged to decide as to whether or not the asylum seeker is in fact a refugee and entitled to protection from South Africa.

[24] In terms of s 24, the RSDO may grant or refuse refugee status and asylum. An application may be rejected as ‘unfounded’ or ‘manifestly unfounded’. An Applicant whose application is rejected as unfounded may then lodge an appeal with the RAB.

[25] In terms of s 13 (1) read with s 15 (5):

(1) The Appeal Board must consist of a chairperson and at least two other members, appointed by the Minister with due regard to a person’s suitability to serve as a member by virtue of his or her experience, qualifications and expertise and his or her capability to perform the functions of the Appeal Board properly.

(2) At least one of the members of the Appeal Board must be legally qualified.

[26] Section 26 of the Act provides some guidance to the RAB in its work:

(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 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 inquiry 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 inquiry of investigation;

(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.

[27] The status and approach to be adopted by the RAB was examined in Tantoush v Refugee Appeal Board and others[8] where the Court on the basis of s 12 (3) of the Act, noted that this body must function without bias and must be independent. Not only is it required to be impartial in its decision making, but, in addition, it must be structurally independent

Evaluation

[28] It is common cause that the RAB consisted only of one member, when the appeal of the Applicant was dismissed on 31 July 2013. Being aware of this difficulty and the dictum in Harerimana regarding the composition of the RAB, Mr. Ngombane on behalf of the First Respondent correctly conceded that the RAB was inquorate. In Harerimana at paragraph 20 the Court held that ‘…[T]o the extent that there is any doubt with regard to this conclusion, s 15 provides that, in a case of the appeal board, meetings must be convened by the chairperson and the majority of members constitute a quorum; thus at least two persons have to be present, at a minimum. Further, the decision must be taken by a majority of votes. Manifestly, it was required that RAB sit with its full complement of members (or at the very least, two)’.

[29] Having regard to the above-mentioned, it follows that the decision taken by the RAB on 31 July 2013 was legally invalid as it was not properly constituted. The implication of this finding is that the decision of the RAB must be set aside. The consequences of this finding are twofold. First, the matter may be remitted back to the RAB for a rehearing by a properly constituted body; or secondly, substitution of the decision can be effected by this court.

[30] The question thus arises whether this matter should be remitted back to a properly constituted appeal board or whether substitution should take place.

[31] It is now well established in our law that 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 them to reconsider the issue and make a fresh decision. In this regard see Gauteng Gambling Board v Silverstar Development Ltd[9], where the court held that:

“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.”

[32] However, as acknowledged in s 8 (1) (c) (ii) (aa) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), a court is granted the power on review to substitute or correct a defect arising from a decision in ‘exceptional circumstances’. The phrase ‘exceptional circumstances’ does not equate to a court adopting the view that it is in as good a position to make a decision as the administrative body. That would be to subvert the default position. But, fairness is a consideration which must be uppermost in the mind of a court in determining whether it is dealing with the kind of exceptional case which calls for substitution as opposed to a remittal.

[33] The concept of ‘exceptional circumstances' received a careful consideration in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another[10] where the court 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 tribunal or body. ‘The first is whether a court is in as good a position as the

administrator to make the decision. Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties.’

[34] According to the Applicant, this Court is in as good a – if not better – position than the First Respondent to determine the Applicant’s asylum application as his history was set out in detail in this application which included certain independent reports. According to the Applicant, the Respondents did not dispute the extensive evidence presented in this matter. The Applicant also asserted that there can be no reasonable doubt concerning any of these factors and that a reasonable possibility of persecution exists in his home country due to the fact that he is a homosexual.

[35] It was contended on behalf of the First Respondent that most of the material in the present review application was not before the RAB and this is not one of those exceptional matters where it would be just and equitable to consider substitution.

[36] As stated in Trencon supra at paragraph 47, the exceptional circumstances enquiry requires ‘an examination of each matter on a case by case basis that accounts for all relevant facts and circumstances’.

[37] In the present instance, it is clear from the papers filed of record that most of the documents and reports relied upon by the Applicant in the review and substitution were not before the RAB when it considered the appeal.

[38] In a recent decision of Somali Association of South Africa and Others v The Refugee Appeal Board and Others[11] Mlambo, JP stated that the RAB cannot be criticised nor can its decisions be attacked or sought to be set aside based on material

that was not before it when it considered the asylum seekers appeal. I am in agreement with this view. At the heart of the investigation

in any review challenge to the performance of a public function, like the RAB, is the necessity to consider the impugned decision, having regard to the material that was before the administrative functionary when it considered the matter.

[39] In my view, having regard to the papers filed of record, it would only be fair to refer this matter back to the RAB to enable it to reconsider the issue and make a fresh decision, despite the delay which in large part was also due to the difficulties the Applicant experienced which resulted in him being an undocumented foreigner for almost three years. 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.

[40] In view of the above-mentioned, it follows the Applicant’s application for substitution cannot succeed.

[41] In the result the following order is made:

The decision taken by the Refugee Appeal Board on 31 July 2013, is herewith reviewed and set aside.

The matter is remitted to a properly constituted RAB for consideration afresh, within 120 days after service of this order on the First Respondent or an official attendee at his/her office, failing which the Applicant may set down the matter upon 48 hour notice to the Respondents with the right to amplify its papers if necessary to consider the RAB’s failure to make a decision.

The Applicant’s costs to be paid as taxed or agreed upon by the Fourth Respondent.

________________

LE GRANGE, J

[1] Section 145 of this statute provides as follows: “Any person who— (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.”

[1] Section 145 of this statute provides as follows:

“Any person who—

(a) has carnal knowledge of any person against the order of nature;

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature,

commits an offence and is liable to imprisonment for life.”

[2] Nbaya and Others v The Director-General of the Department of Home Affairs and Others, WCD 6534/14, dated 3 June 2016.

[3] 2014 (5) SA 550 (WCC)

[4] (99766/15) [2019] ZAGPPHC 78 (30 January 2019)

[5] See ft 4 Paragraph 16

[6] See Harerimana paragraph 10 and further.

[7] See also Mayongo v Refugee Appeal Board and others [2007] JOL 19645 (T) at para 8.

[8] [2007] ZAGPHC 191; 2008 (1) SA 232 (T) at para 86

[9] 2005 (4) SA 67 (SCA) para 29

[10] 2015 (5) SA 245 (CC) at paragraph 47

[11] (99766/15) [2019] ZAGPPHC 78 (30 January 2019 at paragraph [16].