FNM v Refugee Appeal Board and Others (71738/2016) [2018] ZAGPPHC 532; [2018] 4 All SA 228 (GP); 2019 (1) SA 468 (GP) (12 July 2018)

REPUBLIC Of. SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE

(2) OF INTEREST TO OTHER JUDGES

(3) REVISED.

CASE NO: 71738/2016

12/7/2018

In the matter between

FNM

Applicant

and

THE REFUGEE APPEAL BOARD

First Respondent

CHAIRPERSON: THE REFUGEE APPEAL BOARD

Second Respondent

MARABASTAD REFUGEE RECEPTION OFFICE

Third Respondent

MINISTER OF HOME AFFAIRS

Fourth RespondentDIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS

Fifth Respondent

JUDGMENT

DODSON AJ

Introduction

[1] The applicant is a citizen of the Democratic Republic of Congo ("DRC"). He claims refugee status in terms of the Refugees Act.[1] His efforts to achieve this through the administrative processes created by the Refugees Act have thus far failed. He seeks to review a decision of the Refugee Appeal Board ("RAB") in which he sought unsuccessfully to overturn a decision of the Refugee Status Determination Officer ("RSDO '')[2] rejecting his claim for refugee status.

[2] Apart from the review and setting aside the decision of the RAB, the applicant also asks for the substitution by this court of its decision with a decision confirming his refugee status.

Factual background

[3] In his founding affidavit, the applicant avers that he was born in Kasai­ Oriental Province of the DRC on 1 March 1990. He says that in 2008 his family relocated to Goma where his father had found work. Goma is in the east of the DRC, close to Lake Kivu and the border with Rwanda. There he completed his secondary school and went on to pursue tertiary studies at the University of Goma. While there he asserts that he participated in marches and political activities led by an opposition political party known as the Union for Democracy and Social Progress ("UDPS").

[4] During December 2011 he avers that he, along with other students and UDPS supporters, participated in an anti-government protest aimed at the results of the recent election. While protesting, soldiers from the Armed Forces of the DRC (the "FARDC") broke up the protest and rounded up a group of 13 protestors of whom he was one. They were arrested and taken away by truck to a military compound in the south of Goma. There, it was made clear to them that the government did not approve of their participation in opposition politics and that they were going to be taught some discipline. They were beaten by the soldiers, handcuffed and kept under guard. They were then forcefully conscripted and trained in order to be integrated into the FARDC.

[5] He completed his basic military training over a period of nine months in the FARDC and asserts that he still bears a scar from a bullet wound on his ankle which he suffered during a training exercise.

[6] He avers that on 20 July 2012, while stationed near a village in North Kivu, the M23 rebels launched a surprise attack against them.

The M23 rebels had been fighting the FARDC for some time when this happened. Fighting lasted for approximately four to five days, during which he saw many people die and he feared for his life. Among the dead were FARDC soldiers and civilians.

[7] He asserts that in the "chaos of the battle" he had an opportunity to desert from the FARDC, along with other soldiers who were doing the same. He managed to secure some civilian clothes and disposed of his uniform. He spent about three to four days in the bush but was then captured by a group of the M23 rebels and taken to their camp in the forest. He was held with other local villagers who had been captured.

While in captivity, two of the villagers were killed in front of them.

[8] After spending about five or six days with the M23 rebels, he was posted as a lookout in the forests. While there he saw an opportunity to escape and did so. He then spent about six weeks in the forests of the eastern DRC, surviving by walking from village to village and begging for food.

[9] After that he travelled south for approximately two months on foot and eventually made his way to Lubumbashi in the extreme south of the DRC near the border with Zambia. There he found a truck driver who helped him to cross the border into Zambia and travel through Zimbabwe to South Africa.

[10] The last time he saw his family was before his arrest. He says that he has no idea of their whereabouts or fate.

The administrative process

[11] Upon arrival in South Africa, he spent several days in Musina before travelling to Pretoria to apply for asylum at the Marabastad Refugee Reception Office ("RRO")[3]. This was in October 2013.

[12] Because his English was poor he asked another Congolese man, whom he understood to work for the Department of Home Affairs, to assist him with the completion of the relevant application form. The man asked him for payment for doing so but he was not in a position to pay him as he did not have any money. He asserts that he told this person his "entire story" in French but noticed that he only wrote down a few of the words in response to each of the questions on the relevant form. He was told by a woman official through the interpreter to return to the RRO the following day.

[13] The plaintiff avers further that upon his return the next day, he was called into the office of an immigration official who was an RSDO. The applicant asked another Congolese man whom he understood also to work for the Department of Home Affairs to interpret for him during the interview. Before going into the RSDO's office he explained to him the full sequence of events that had resulted in his fleeing the DRC.

[14] The interview lasted for about 2 to 3 minutes and essentially involved a conversation between the person interpreting for him and the RSDO. None of the words exchanged between them were translated to the applicant.

[15] After the conversation, the interpreter turned to him and, speaking in Lingala, told the applicant that he had a good case but that he would need to pay him R3 000. When the applicant indicated he did not have the money, he was told that he would be given an asylum permit for a month and that he could pay the money when he returned to receive the RSDO's decision.

[16] Upon his return on 18 November 2013, he did not have the money and did not offer to pay anything. He received a decision from the RSDO rejecting his asylum claim.

[17] The main reason for her decision was as follows:

''According to the country of information of D.R.C. (sic), published by the telegraph on 19 May 2013, Hundreds of Congolese rebels have withdrawn from Gama as promised under a regionally brokered deal, while police entered the key eastern city to take over control. The M23 rebels, army mutineers who sparked international anger when they seized Gama last week in a ·lightning advance, have withdrawn from Gama, the main town in the Democratic Republic of Congo's mineral-rich east. The pull out came as more than 270 Congolese policemen arrived in Gama's port, having crossed Lake Kivu from government­ controlled Bukavu some 100 kilometres south."

[18] After receiving the RSDO's decision he promptly had someone assist him to complete the notice of appeal form and had it commissioned the following day on 19 November 2013. Because he could not speak English he asked a man who spoke French and some English to fill out the notice of appeal for him. He understood the position to be that he would only

need to provide a synopsis of his claim and that he would be given an opportunity to explain himself fully at a hearing before the RAB. He avers that he therefore confined the information given to that pertaining to his capture by and subsequent

escape from the M23 rebels.

[19] Because of his lack of English he was unable to verify whether the interpreter had correctly recorded the information. The appeal document takes the form of a sworn affidavit. The relevant section of the form on which the affidavit is attested begins with the following invitation:

"Give reasons, in detail, why you disagree with the decision of the Refugee Status Determination officer ... and all supporting documents. (If space is insufficient please use additional page(s))"

[20] The applicant's appeal records the following:

"/ left DRC because of war between the government army and the M23 rebels group. I was a student [in] University of Gama. Then one day I was walking around with some of my friends and we met almost 15 rebels of M23 groups that started to embarrass us so we can join them and give them more information about the government army but we were not agree with their ideas so they start beating us then me and one of my friends we run away when we saw them killing two of us (sic). So from that time we became totally unsafe because they were asking about me and my friend that I ran away with so they can finish us up. That is what Jed me to run away to South Africa for my safe (sic)."

[21] The applicant avers further that he attempted to submit his notice of appeal to the Marabastad RRO the following day on 20 November 2013. However he avers that security officials would not allow him to enter the RRO to lodge it. There was a long line of people waiting to gain access to the premises of the RRO that day and he was therefore not allowed to enter.

[22] He says he tried several times over the next few weeks to gain access to the RRO to lodge his notice of appeal but all in vain. He eventually managed to do so on 6 January 2014 which was after the 30 day period allowed for the noting of appeals.

[23] The officials provided him with a request for condonation form and told him to have it commissioned at a police station which he duly did. However, when he returned to submit it he was told that it was too late for that day and that he should come back the following day. He returned the following day on 7 January 2014 and deposited his request for condonation along with his notice of appeal.

[24] On 14 March 2016 he was informed that the RAB had dismissed his application for condonation. The following day he visited the offices

of Lawyers for Human Rights who took up his case. I will revert below to the content of the decision of the RAB.

Country of origin information

[25] The applicant in his founding affidavit, deposed to on 9 September 2016, goes on to provide "country of origin information". It is supported by annexures consisting of a number of publications about the situation in the DRC. These include -

[25.1] A report by Human Rights Watch dated 11 September 2012, reporting from Goma, which documents a litany of atrocities on the part of the M23 rebels in eastern Democratic Republic of Congo, including widespread war crimes and summary executions of young men and boys who tried to escape their ranks. The report also goes on to refer to abuses by the FARDC, including in Goma.

[25.2] A report by the US Department of State entitled “2013 Trafficking and Persons Report”. The report refers to the abduction and forcible recruitment of Congolese men, women and children by indigenous and foreign armed groups to bolster their ranks and serve as body guards, labourers, porters, domestic workers, combatants and sex slaves. It also reports that:

"In April 2012, the security situation in eastern DRC deteriorated rapidly when several hundred former members of the militia group National Congress for the Defence of the People who had been loosely integrated into the FARDC mutinied and formed the M23, an armed group backed by Rwanda... The government's reallocation of security personnel and resources toward fighting M23 rebels in north and south Kivu created a security vacuum in the areas from which the FARDC was forced to withdraw; the resulting increase in activity of other armed groups - such as the LRA and FDLR - increased the vulnerability of men, women and children to trafficking in the regions where these groups operated. The M23 forcibly recruited adults and children in north Kivu province and in Rwanda. Due to the heightened conflict, an additional 500,000 people were displaced in eastern DRC, and displaced persons in north Kivu were particularly vulnerable to the abduction, forced conscription, sexual violence and illegal taxation by armed groups and government forces. The FARDC launched a recruitment campaign during the year targeting those aged 18 to 25."

[25.3] A document dated 26 January 2006, prepared by the Immigration and Refugee Board of Canada, which describes the harsh legal consequences of deserting the FARDC, including the death penalty for desertion during wartime and sentences of up to 20 years for desertion during peace time.

[25.4] An article dated 14 July 2016 by a post-doctoral fellow based at the University of the Western Cape, which details the harsh treatment of soldiers prosecuted in courts martial conducted by the FARDC.

[25.5] A Human Rights Council report of July 2013 refers to - "the widespread use of torture and ill-treatment by defence and security forces in the country" which "remain a major human rights concern". Most cases of torture and ill-treatment registered by the Joint Human Rights Office "are perpetrated by members of the ... National Intelligence Agency and FARDC" ;

[25.6] The Report of the Secretary General on the United Nations Organisation Stabilisation Mission in the Democratic Republic of Congo dated 9 March 2016. There it is reported that-

"The security situation remained volatile in the eastern Democratic Republic of the Congo, and deteriorated in parts of north Kivu and lturi provinces. The ... ADF ... FDLR ... and other Mayi-Mayi groups remain active in ... north Kivu"

and the report goes on to record -

"As I witnessed during my visit to the eastern part of the country on 23 February 2016, the humanitarian situation in the Democratic Republic of Congo remains a source of serious concern, the result of the activities of armed groups, inter­ communal violence, continued displacement and an influx of refugees. Military operations against armed groups also led to population displacement in some areas... The dismantling of sites for internally displaced persons in eastern Democratic Republic of Congo by the Government, without sufficient consultation of the humanitarian community, contributed to the further displacement of some of the most vulnerable populations, especially women and children. On 12 January 2016, the closure by the Government of the camp at Mukoto, in Masisi territory in North Kivu resulted in 4250 persons being displaced once again. The humanitarian community encouraged the government to respect its international obligations,

including those related to the closure of sites for internally displaced persons."

and that -

"Little progress was made towards the implementation of the Nairobi Declarations of 12 December 2013, including with respect to the repatriation of ... M23 ... elements, despite the initiatives of the task force established in December 2015 by the international conference on the Great Lakes Region on the repatriation of ex-M23 elements."

[25.7] United Nations Security Resolution No. 2293 adopted on 23 June 2016 also-

"reaffirm[ed] the importance of completing the permanent demobilisation of former 23 March Movement (M23) combatants, stressing the importance of ensuring that its ex-combatants do not regroup or join other armed groups."

[26] Based on all of these developments, the applicant asserts that he fears for his life in the event of his being forced to return to the DRC, particularly at the hands of the FARDC army officials whom he fears would punish him for having deserted them.

[27] The respondents' answering affidavit is deposed to by a Mr Mohale, the chairperson of the RAB. Insofar as the application for condonation of the late filing of the appeal is concerned, the chairperson takes up the attitude that this is a non-issue because the condonation was granted. The applicant's contention that condonation was refused he says " is ii/­ conceived and should be rejected".

[28] He accepts that the applicant has a limited ability to communicate in English. He does not dispute the applicant's involvement in marches and political activities while at university. However, he draws attention to the differences in the versions between the applicant's founding affidavit and what is contained in his appeal application. He denies the allegations relating to what took place when the applicant lodged his original application for asylum and his being informed of its refusal, but offers no explanation of the denial.

[29] He does not dispute the applicant's explanation of the circumstances surrounding the preparation of the notice of appeal. However, he disputes the applicant's explanation of the paucity of information provided in the appeal document and draws attention to the above-quoted paragraph in the form, which invites reasons " in detail" and suggests making use of additional pages. There was no reason, he says, for the applicant to expect to have an oral hearing of any sort because the provisions pertaining to an interview are directory and not peremptory. He denies that the applicant was unable to verify what had been written down in the notice of appeal and asserts that what was written down was what had been conveyed by the applicant.

[30] Because the country of origin information in the founding affidavit was not provided by the applicant in the appeal, the chairperson asserts that the evidence is irrelevant to the review proceedings, which are confined to the record of the decision and the information available at the time.

[31] The chairperson insists that the applicant made the application for refugee status solely in terms of section 3(b) of the Refugees Act and not on the basis of both sections 3(a) and (b) as claimed. With reference to section 3(b), the applicant limited his case to the tension between the M23 rebels and the government. The applicant he says is not entitled to "sneak new grounds of the refugee status that were not mentioned before in his application and the appeal to the board".

[32] Further, the chairperson asserts that any requirement that the applicant be interviewed was provided for in the interview before the RSDO. The chairperson also denies that the persons soliciting the bribes were in any way connected with the respondent but were " his fellow Congolese that he asked to interpret for him and not officials."

[33] The chairperson denies that there was any flaw in the decision-making of either the RSDO or the RAB.

The findings of the Refugee Appeal Board

[34] The RAB's decision was forwarded to the RRO in Marabastad under cover of a letter announcing that-

"The above mentioned person's application for condonation has been dismissed for the reasons set out in the decision enclosed herewith."

[35] The decision of the RAB is characterised in the opening paragraph as one for "condonation and permission to file a late notice of appeal". Part of the decision is dedicated to setting out the legal position. In doing so, the RAB records that:

"The accepted principle of 'semper necessitates probandi incumbit illi qui agit', that is 'he who alleges carry the burden to prove' (sic), is confirmed by the UNHCR Handbook on Procedure and Criteria for Determination of Refugee Status, p 47. para 1197."

[36] The decision goes on to consider three reported judgments dealing with condonation and concludes -

"10. It is clear that the appellant's explanation for late filing play (sic) an important role in considering the application for condonation but also prospect of success (sic)."

[37] Then follows the nub of the RAB's reasoning under the heading "Finding".

In paragraph 11 of the decision the RAB holds that -

"The appellant lodged the notice of appeal after 19 days of the expiry of the 30 day period and the board gives him the benefit of the doubt and condones the late filing." (emphasis added)

[38] Based on the purported condonation, the RAB then proceeds to deal with the merits of the appeal as follows:

"12. The appellant in the Notice of Appeal indicated that he left his country of origin because of the fighting between the Kabila soldiers and the M23 rebels. He alleged that the M23 rebels were forcing young men his age to join them and in fear for his safety, he then decided to leave his country of origin and came to seek refuge in South Africa.

13. Use of the term 'fear' in Refugee Status Determination was intended to emphasise the forward looking nature of test, and no to rant refugee status in an assessment of the refugee applicant's mind (sic). The central issue being whether or not an individual can safely return to his or her country of origin (JC Hathaway - The Law of Refugee Status p 69). It is enough that the appellant had fear of harm before he left country of origin but that at the moment he no longer has it (sic).

14. There has been some positive political and security developments in the DRC since the appellant left his country of origin on 09 October 2013."

[39] The decision then goes on under the heading "Country of origin information on DRC" to deal with various reports pertaining to the position prevailing in the DRC. In particular, reference is made to -

[39.1] a "UN-Briefing and Consultations on the DRC Mission Report - 21 February 2013'' suggesting that "among the Secretary-General's conclusions is that despite instability in the eastern DRC, there has been progress in other areas."

[39.2] An Al Jazeera report dated 6 November 2013 referring to the M23 rebel group announcing that-

"It would disarm and pursue political talks just hours after government forces drove its fighters out of their last two hilltop bases of Tshanzu and Runyoni before dawn. A two week UN backed offensive had cornered the rebels in the lush hills along the border with Uganda and Rwanda [ie in the eastern DRC]."

[39.3] A report from Oxfam International dated 27 January 2014 based on a survey of 1800 individuals which highlighted "some positive recent developments" including in Rutshuru and Nyiragongo areas in north Kivu, also in the eastern DRC.

[39.4] A VOA[4] report dated 14 February 2015 referring to the successful holding in 2015 of a music festival in Gama. Page 7 of the RAB's decision, which contains the balance of this report is missing. However, the report is available on the internet and goes on to quote local people as saying life in Goma "is already improving" and "already changed a lot from the days when the M23 rebel group ruled the city". However, the report also says:

"Violence returned to the city last month when police opened fire on demonstrators. They were protesting changes in Congo's electoral law."

and one of the organisers goes on to say -

"it is not always clear that Goma is making progress. Tensions lie seemingly just below the surface. But peace ... is a process."

[39.5] Another report, also partially cut off because of the missing page of the RAB's decision, can also be located on the internet.[5] It is dated 26 February 2015 and refers to an offensive by FARDC in eastern Congo against the FDLR armed grouping, the FDLR being a group of Rwandan rebels. The article concludes with a quote from a resident of a village in the area who reports that "the situation was calm on Thursday. We are fine. We can no longer hear guns being fired."

[39.6] An "MHCD" Report dating from 2015 pertaining to the Uvira District in South Kivu province where it is reported that the district enjoys peace and security and at that time received foreign visitors and concludes there are a few places in the DRC where there is insecurities (sic) but they are far from the cities, major towns and villages.”[6]

[40] After referring to these various reports, the RAB's finding then simply states:

"23. The appellant will be safe if he returns to his country of origin.

24. In the light of the objective country information of the DRC there is no basis for the appellant's claim in terms of section 3(b) of the Refugee (sic) Act of 1998."

[41] What follows under the heading "Conclusion" is the following:

"25. The application for condonation to file a late notice of appeal is hereby dismissed. In terms of Rule 6(4) it is deemed that no Notice of Appeal has been lodged." (Emphasis is in the document itself)

Review Grounds

[42] It is not necessary for me to deal with all of the review grounds raised. consider only those which follow.

Condonation

[43] As appears from the foregoing summary, the RAB in paragraph 11 of its decision decides to "give [the applicant] the benefit of doubt" and purported to condone the late filing of the appeal. However, in the concluding paragraph the RAB decided to dismiss the application for condonation. It is not logically possible in one and the same decision to both grant and dismiss an application for condonation.

[44] Having regard to this flaw in the decision, the administrative action taken by the RAB was -

[44.1] not rationally connected to the reasons given for it, as contemplated in section 6(2)(f)(ii)(dd) of the Promotion of Administrative Justice Act, 3 of 2000 ("PAJA"); and

[44.2] so unreasonable that no reasonable person could have so exercised the power, as contemplated in section 6(2)(h) of PAJA, and is reviewable.

Burden of proof

[45] In paragraph 6 of its decision, the RAB places the burden of proof[7] squarely on the applicant to prove his case on the basis of the principle that he who alleges must prove.

[46] In Tantoush v Refugee Appeal Board and Others[8] this Court held as follows:

“[97] The RAB's finding that the applicant was required to prove a real risk on a balance of probabilities is not correct. The appropriate

standard is one of a 'reasonable possibility of persecution' - see Immigration and Naturalization Service v Cardoza-Tonseca [1987] USSC 32; 480 US 421 (1987) at 440. Two decisions of this division have concluded similarly, namely Fang v Refugee Appeal Board and Others 2007 (2) SA 447 (T) and Van Garderen NO v Refugee Appeal Board.[9] In the latter Botha J stated:

'In my view by simply referring to the normal civil standard, the RAB imposed too onerous a burden of proof. It is clear ... that allowance must be made for the difficulties that an expatriate applicant may have to produce proof. It is also clear that there is a duty on the examiner himself to gather evidence.

Later in the judgment the learned judge added:

'All this confirmed my view that the normal onus in civil proceedings is inappropriate in refugee cases. The inquiry has an inquisitorial element. The burden is mitigated by a lower standard of proof and a liberal application of the benefit of doubt principle.

[98] These dicta, with which I respectfully agree, are premised upon the provisions of paras 196 and 197 of the UNHCR Handbook, which read:

'196. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

[99] The application by the RAB of the normal civil standard was thus an error of law and one which caused it not to exercise its discretion properly. The materiality of the error is interwoven with the approach the RAB took to the evidence, and particularly the credibility of the applicant."

[47] Section 26(3) of the Refugees Act bears out, and facilitates the adoption of, the required inquisitorial and facilitative approach by the RAB to the burden of proof in that it provides that -

"[b]efore 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 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;

(e) request the applicant to appear before it and provide any such other information as it may deem necessary."

[48] In summarising the nature of the burden of proof in its decision, the RAB simply stated that the burden rested on the applicant. It made no reference to the required inquisitorial and facilitative approach. Nor did it refer to the lower standard of proof that applies or the requirement of a liberal application of the benefit of doubt principle. No reference was made to its powers under section 26. Nor were any used.

[49] The substantive content of the decision also suggests that the incorrect approach was adopted. Whilst it is so that the RAB gathered country of origin information, it did not do so in the facilitative manner required. Instead, the RAB's selection of, and quotation from, the information gathered reflects a pre-determined focus on showing that the prevailing conditions in the eastern DRC favoured return. The applicant has shown through the documents attached to his founding affidavit that there were other credible reports by recognised institutions, readily available, that suggested on-going instability in the eastern DRC. A proper application of the relevant burden required that all reasonably accessible relevant evidence be listed and analysed in a neutral manner, whether supportive of the applicant or otherwise.

[50] In applying the burden of proof incorrectly and in failing to carry out the facilitative, inquisitorial exercise required, the RAB acted in a procedurally unfair manner in breach of section 6(2)(c) of PAJA and the action taken by the RAB was materially influenced by an error of law as contemplated in section 6(2)(d) of PAJA.

[51] To the extent that the RAB failed to use or consider using its powers in terms of section 26(3), it was also guilty of administrative action that was not rationally connected to the purpose of the empowering provision, as contemplated in section 6(2)(f)(ii)(bb) of PAJA.

[52] On these grounds too, the decision is reviewable.

Procedural fairness

[53] It is a well-established principle that before a tribunal decides a matter on the basis of new information that it has obtained, it must inform the party of its intention to do so and provide the party with an opportunity to be heard in relation to the information before arriving at its decision.[10]

[54] The RAB ought, before relying on the country of origin information that it had gathered, to have requested the applicant in terms of section 26(3)(e) to appear before it and provide its response to that information along with any other information that the applicant or his legal representatives may have been able to elicit in response. At the very least, it ought to have afforded the applicant an opportunity to provide a written response to that information. It did neither.

[55] This ground of review has been recognised specifically in the context of a hearing before the RAB in the matter of AOL v Minister of Home affairs and Others.[11] There the court held as follows:

"It is quite clear that the basis for the decision of the fourth respondent was a report by the United Kingdom Country Information and Policy Unit - April 3003 - Uganda Assessment [the information from this document is then summarised] ... The applicant was not, however, given any opportunity to deal with this evidence, which was prejudicial to the applicant's application, before taking its decision. It is clear that an individual should be furnished with all information prejudicial to his case before a decision is taken. Baxter (supra) at 554.

In addition in Kotze v Minister of Health ... it was held that the Director-General's consideration of information which did not form part of the applicant’s

application, amounted to a denial of procedurally fair administrative action. The applicant should have been given an opportunity to deal with any information which did not form part of his application, and which was later taken into account when considering the application. Bums Administrative Law under the 1996 Constitution at 172."[12]

[56] In this respect, the committee's decision is reviewable in terms of section 6(2)(c) of PAJA in that it proceeded unfairly.

Failure to apply section 3(a) of the Refugees Act

[57] Section 3 of the Refugees Act provides in relevant part as follows:

"3 Refugee status

Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act 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 former 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"

[58] The applicant complains that the board failed to consider section 3(a) as a basis for his entitlement to refugee status. The respondents' answer to this is that no information to support refugee status under 3(a) was placed before the RAB. Rather, the information in this regard was sought, impermissibly, to be introduced for consideration through the founding affidavit in the review application.

[59] However, if regard is had to the averments in the applicant's appeal documentation, they included the following:

"I was walking around with some of my friends and we met almost 15 rebels of M23 groups that started to embarrass us so we can join them and give them more information about the government army but we were not agree with their ideas so they start beating us. Then me and one of my friends we ran away when we saw them killing two of us."

[60] Having regard to what I have already said about the inquisitorial and facilitative nature of the enquiry to be conducted by the RAB, the words "but we were not agree with their ideas" and the reference to them being beaten at least required the RAB to investigate further whether or not there were indeed grounds for recognising refugee status under section 3(a).

[61] Even in the absence of such an allegation by the applicant, Khan and Schreier in Refugee Law in South Africa[13] state as follows:

"Irrespective of the sequence of application of the refugee definitions, it is important to note that an asylum seeker who clearly fits into the s 3(b) refugee definition should be provided the opportunity, within the formal asylum application process, to explain fully if he or she also has individualised reasons for fleeing: that is, a fear of persecution on one of the s 3(a) definition's enumerated grounds, and to have this information officially recorded on his or her application. Failure to ascertain this may have a negative implication for a refugee at a later stage. For example if the government decides to invoke cessation of refugee status for individuals from that person's particular country on the basis of ceased circumstances, exemption from cessation involves an examination of past persecution".

[62] This approach is consistent with the correct application of the burden of proof that I have explained above.

[63] It is clear from paragraph 24 of the decision, and it is not in dispute, that the RAB only considered the possibility of refugee status being granted under section 3(b). On this basis too, the decision is reviewable in terms of section 6(2)(e)(iii) of PAJA in that relevant considerations were not considered and section 6(2)(d) on the basis that the administrative action of the RAB was influenced by an error of law.

Application of section 3(b) of the Refugees Act

[64] In Radjabu v Chairperson of the Standing Committee for Refugee Affairs and others[14] Binns-Ward J dealt with the interpretation and application of section 3(b) as follows:

"[5] ... The definition of the category of refugee in issue is, with only very slight modification, based on the aforementioned provisions of the 1969 OAU Convention.

[6] Determining whether a person qualifies for refugee status under this category appears to me to require (i) an assessment by the relevant authority of the existence of objectively ascertainable circumstances in the person's country of origin, and (ii) assuming that it is satisfied upon such assessment that such circumstances correspond with any of those stipulated in the definition, a decision whether their effect on the individual concerned has been such as to force him or her to leave the place where he or she ordinarily resided. The qualifying criteria thus posit refugee status in the category concerned being determined with regard to the causative effect of a given situation on an individual. The test is predominantly objective in character, but the required consideration by the relevant authority of the causative effect of the circumstances involved on the person concerned introduces a subjective element that demands that the individual's personal circumstances be taken into account. It is through a determination of the causative effect of the given circumstances on the particular applicant for refugee status that the authority decides whether he or she has been "compelled" on account of their existence to leave his or her place of habitual residence. ... The notion that the refugee was forced by circumstances to leave his or her home that is inherent in the definition means that where volition rather than compulsion is the predominant factor in the person's decision to leave his or her home, he or she does not qualify as a refugee in terms of section 3(b) of the Refugees Act. It is in drawing the distinction that a value judgment is called for. The facts of many cases will make identifying the predominant factor difficult. The assessed credibility of the person claiming refugee status will be an important determinant in the decision-making.

[7] The provisions of section 6 of the Refugees Act, which regulate how the statute must be interpreted and applied enjoin a humanitarian approach to decision-making concerning refugee status ...".

[65] I agree with this interpretation and approach. Turning to the RAB's decision, there is no discernible attempt to follow this interpretation or approach. In paragraph 12 of the decision, the RAB ascribes the applicant's departure from his country of origin as being caused by "the fighting between the Kabila soldiers and the M23 rebels" and forced conscription of young men of his age by the M23. No mention is made of the applicant having been beaten, along with his friends. Nor is any mention made of the killing of two members of his group or his fear that "they can finish us up".

[66] Paragraph 30 of the decision is difficult to follow but seems to suggest that the enquiry under section 3(b) is objective and that "the central issue" is whether or not the individual can safely return to his or her country of origin.

[67] As appears from the Radjabu judgment, whilst the enquiry is "predominantly objective", there is also a subjective element that must take into account how the given, objective circumstances, impacted on that particular applicant an his or her assessment that he or she was compelled to leave.

[68] The decision reflects none of the subjective component of the enquiry. Instead the RAB purported to summarise the country of origin information on the DRC and then in the following paragraph 23, without any reasoning, simply asserted that "[t]he appellant will be safe if he returns to his country of origin" and that "[i]n the light of the objective country information of the DRC there is no basis for the appellant's claim in terms of section 3(b)".

[69] In doing so, there was no attempt to conduct any rational analysis of the country of origin information as against the provisions of section 3(b) and the applicant's particular circumstances. The RAB jumped to a conclusion.

[70] Moreover, even if one assumes the reliability of the country information relied on (which in some respects is open to doubt) the RAB also failed to have regard to references in its own information suggesting that the security situation in the eastern DRC was still unstable. I refer in this regard to the summary of the information set out above.

[71] The foregoing analysis assumes that it was necessary in terms of section 3(b), in addition to assessing the position when the applicant left the DRC, also to enquire into whether or not it was safe for the applicant to return at the time that the RAB made its decision. It is open to question whether an enquiry into whether or not it is safe for the applicant to return at the time of the RAB's decision, is a requisite exercise under section 3(b). This aspect is dealt with more fully below.

[72] Even on the assumption that such an enquiry was required, the RAB's decision is reviewable -

[72.1] in terms of section 6(2)(d) of PAJA in that the administrative action taken by it was materially influenced by errors of law as to the nature of the enquiry under section 3(b}, particularly pertaining to the subjective element of the enquiry;

[72.2] in terms of section 6(2)(e)(iii) of PAJA because relevant considerations were not considered, again, in particular, the subjective element of the enquiry; and

[72.3] in terms of section 6(2)(f)(ii)(cc) and (dd) in that the RAB's administrative action and decision-making was not rationally connected either to the information before the RAB or to the reasons given.

Conclusion on reviewability

[73] On each of the foregoing grounds, the decision of the RAB was thus flawed with reference to the review grounds in section 6(2) of PAJA. In the circumstances, the decision of the RAB stands to be reviewed and set aside.

[74] The question which then arises is what the appropriate just and equitable remedy should be in terms of section 8(1) of PAJA.

Relief

[75] The applicant seeks substitution by this court of its decision for that of the RAB in terms of section 8(1)(c)(ii)(aa) of PAJA.

[76] The considerations relevant to whether or not a court should order substitution on the basis that exceptional circumstances

are present, were laid down in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa and Another[15] as follows:

"[46] A case implicating an order of substitution accordingly requires courts to be mindful of the need for judicial deference and their obligations under the Constitution. ...

[47] To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively. 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. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances."

Is the court in as good a position as the RAB to make the decision?

[77] The court has available to it a full setting out in the founding, answering and replying affidavits, of the main facts relevant to the applicant's claim for refugee status. This enables it, to a significant degree, to respect the inquisitorial and facilitative approach to the burden of proof that I have outlined above. The court is not confined to the terse summaries which formed the basis of the decisions of the RSDO and the RAB.

[78] The court also has available to it both the applicant's and the RAB's research efforts in establishing what the conditions in the DRC are, or, at least, were, at material times. What the court does not have available to it is the opportunity to conduct an oral interview. However, having regard to all the information now available, and the absence, apparent from the answering affidavit, of any evidence to contradict the applicant's version as to his involvement in political activities and his fear of persecution, it is doubtful at this stage whether an oral enquiry would be of much assistance. On balance, the court is in as good a position as the RAB to make the decision.

Is the decision a foregone conclusion?

[79] With reference to section 3(a), the applicant has referred to his involvement in the political activities of the Union for Democracy

and Social Progress, an opposition political party. The respondents do not dispute this. He refers to his having been assaulted at the hands of government soldiers because of his participation in opposition politics. This the RAB does dispute on the basis that it was not referred to in his appeal documentation. However, the information in his appeal documentation is limited by reason of the RAB's failure to adopt the appropriate inquisitorial and facilitative approach, as well as the problems that the applicant had a result of not being conversant in English. If the respondent wished properly to dispute these averments, there was a need to say more.

[80] One of the RAB's own country information documents refers to the police opening fire 1n January 2015 on people conducting political

demonstrations.[16] In these circumstances, the applicant has done enough to satisfy the burden of proving a well-founded fear of being persecuted by reason of his political opinion.

[81] With reference to section 3(b), the applicant has shown, objectively in my view, that there were events seriously disturbing and disrupting public order in the eastern part of the DRC where he lived, that compelled him to seek refuge in South Africa. His assertions as to the conduct and activities of both the FARDC and the M23 at the time of his fleeing, particularly pertaining to forced conscription of young men and aggression towards the local population, are supported by the objective information and reports that I have referred to above. Even the documentation relied upon by the RAB lends credence to the applicant's contentions in this regard.

[82] What counts against the applicant somewhat is that in his founding affidavit, the dates that he refers to in the lead up to his

departure from the DRC do not account for the full period from the time that he escaped from the M23 rebels to the time that he arrived in South Africa. That is something that the RAB might have enquired into further in an oral hearing on remittal. But one must weigh against that the failure of the respondents to make anything of this in the answering affidavit and the prejudiced position that the applicant would find himself in having to try to account for the time so many years after the traumatic events. Those circumstances would limit the value of any evidence elicited on this issue in an oral hearing.

[83] What then of the situation prevailing in the eastern DRC at the time when the RAB made its decision in February 2016 and when the application was launched in September 2016? The parties treated this issue as being a separate component of the enquiry under section 3(b).[17]

[84] To me this is not self-evident. Section 3(b) seems to me to contemplate an enquiry into the circumstances prevailing at the time that the applicant left his place of habitual residence in order to seek refuge elsewhere. The applicant referred to Mubala v Chairperson of the Standing Committee for Refugee Affairs and Others[18] as confirming the need for such an updated enquiry. However the court in that case was referring to the situation where the circumstances preventing a person from returning to his or her country of origin arise after the person has already left that country. As the court there pointed out, section 2 of the Refugees Act, which encapsulates the international law principle of non refoulement, comes into play in that situation.[19] That would certainly require an enquiry into the position in the country of origin at the current time. But the applicant has not sought to make such a case.

[85] Section 4, which deals with exclusion from refugee status, makes no mention of a change in conditions between the time when the person claiming refugee status left and the time when his or her application is evaluated.

[86] Section 5(1)(e) and (2) of the Refugees Act[20] deal with cessation of refugee status where "the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist and no other circumstance have arisen which justify his or her continued recognition as a refugee." As the emphasised portions show, this section contemplates a person who has already been recognised as a refugee. There is also a specific procedure for the withdrawal of refugee status in section 36 of the Refugees Act.

[87] It therefore seems to me on a reading of the statute as a whole, that even if there is a significant delay between the time when the person claiming refugee status left the country of origin and the time of the assessment of that claim either by the RSDO or by the RAB or by a court considering substitution on the basis of the affidavits, the conditions that must be considered are those that prevailed upon his or her departure. If he or she qualifies in terms of section 3(b), refugee status must be given. However, it would be open to the authorities if there had been substantial changes in the conditions in the country of origin to apply section 36 read with section 5(1)(e) and (2) of the Refugees Act, if the requirements of those provisions are satisfied.

[88] Notwithstanding what I have said, I will assume in favour of the respondents that it was necessary for the RAB to assess the position afresh at the time of its hearing and for the court to do so (in considering substitution) with reference to the position at the time that the application was launched.

[89] I have summarised above both the applicant's and the RAB's country of origin information. As already pointed out, the RAB's country of origin information in certain respects confirms ongoing instability in the eastern DRC. There are also question marks as to the reliability of the RAB's information. None of the documents referred to the position at the time of the RAB's decision, in February 2016. The closest in time was the MHCD report, which dated from 2015. However that was a document which sought to persuade people to visit the Uvira district of the south Kivu province in the DRC in order to perform volunteer work. It cannot be considered objective.

[90] By contrast, the applicant put up two reports from Human Rights Watch as well as the March 2016 Secretary General's report to the Security Council, along with UN Security Council Resolution 2293 of 23 June 2016. All of these documents point to ongoing instability in the eastern DRC in 2016.

[91] Having regard to all of these considerations it is a foregone conclusion, on a proper and rational application of the facts to the law, that the applicant qualifies for refugee status in terms of sections 3(a) and (b) of the Refugees Act.

Other relevant factors, justice and equity

[92] On top of this, there were serious delays in the decision-making process. The applicant arrived in South

Africa in October 2013. The matter only received the attention of the RAB in February 2016, an inordinately long period for an

administrative decision-making process.

[93] The RAB also displayed incompetence. The quality of its written decision is poor. It is internally contradictory, unclear, indicative of a lack of understanding of the governing legislation and lacking in reasoned analysis of the information available to it. This should not be the case when the RAB is meant to represent the apex of the administrative decision-making process.

[94] Added to this, the RAB failed properly to apply the burden of proof - this despite its having been criticised in relation to its application of the burden of proof in judgments of the High Court going back almost a decade.[21]

[95] It is relevant in considering whether or not it is just and equitable for this court to substitute its decision for that of the RAB, that the RAB's decision is neither policy-driven nor polycentric. It is regulated by legislation and international treaties. Separation of powers concerns arising out of substitution are therefore lessened and the need for deference reduced.[22]

[96] Having regard to the incompetence displayed by the RAB in its decision­ making in this case, its apparent unwillingness to apply the correct burden of proof and indications of bias in its assessment of the country of origin information, it would be unjust and inequitable to expect the applicant to place his fate once more in the hands of the RAB. In Trencon, it was accepted that considerations such as these "would weigh heavily in favour of a substitution order'.

[97] In the circumstances, the applicant has shown that exceptional circumstances are present rendering it is just and equitable that an order of substitution be granted.

[98] An order is accordingly granted -

(1) Directing that the name and identity of the applicant be kept private and confidential and not be disclosed to the public and/or press, unless and until this Honourable Court should, on application, order otherwise;

(2) Directing the applicant to prepare a public court file wherein his name is concealed;

(3) Directing that the original court file (where the full name of the applicant is disclosed) shall be kept in safe custody by the Registrar and shall not be accessible to the public;

(4) Reviewing and setting aside the decision of the first respondent made on 12 February 2016 to dismiss the appeal of the applicant;

(5) Substituting the decision of the first respondent and declaring that the applicant qualifies as a refugee in terms of section 3(a) and (b) of the Refugees Act;

(6) Directing the fourth and fifth respondents to issue the applicant with formal written recognition of refugee status as provided in section 27(a) of the Refugees Act read with the provisions of regulation 15 of the Refugee Regulations (Forms and Procedure), 2000 published in GN R366 in GG 21075 of 6 April 2000, as amended by GN R938 in GG 21573 of 15 September 2000, within 10 days of service of this order;

(7) Directing the respondents to pay the applicant's costs.

AC DODSON

Acting Judge of the High Court

Date of hearing: 10 May 2018

Date of judgment: 12 July 2018

For the applicant: PM Pillay

Instructed by: Lawyers for Human Rights, Johannesburg Law Clinic

For the respondents: M Vimbi Instructed by: State Attorney, Pretoria

[1]Act No. 130 of 1998.

[2] The designation of officers of the Department of Home Affairs as refugee status determination officers is dealt with in section 8(2) of the Refugees Act.

[3] The Refugees Act provides for the establishment of refugee reception offices in section 8(1).

[4] Seemingly an organization involved in teaching English – see https://learningenglish.voanews.com/a/goma-aims-for-healing-peace-through­

music/2652516.html

[5] http://www.dai;ymail.co.uk/wires/afp/article-2970522/Villagers-flee DR-Congo-army-pursues-Rwandan-rebels.html

[6] MHCD is seemingly a non-governmental organisation by the name of Mission in Healthcare and Development and the quote emanates from an appeal to encourage volunteers to come to the DRC and work with them.

[7] The preferred term in South African law is onus of proof, if reference is being made to the overall duty of a particular party to prove his or her case or defence, as the case may be. Burden is usually used in the sense of an evidentiary burden, which may shift depending on whether or not a party has made out a prima facie case. However, the term "burden of proof' seems to be preferred in UN documents and in writings on refugee law as describing the overall duty, so I use that term here.

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

[9] TPD case No 30720/2006 19 June 2007

[10] Theron v Ring van Wellington 1976 (2) SA (1) (A) at 29 A-E and at 46 A; Maharaj v Chairman, Liquor Board 1997 (1) SA 270 (N) at 277 G-1; Farjas (Pty) Ltd v Regional Land Claims Commissioner, Kwazulu­ Natal 1998 (2) SA 900 (LCC) at para 29 - 30; Logbro Properties cc v Bedderson NO and others 2003 (2) SA 460 (SCA) at para (23] - (26]; Majake v Commission for Gender Equality and Others (09/14527) (2009] ZAGPJHC 27 (12 June 2009)

[11] 2006 (2) SA 8 (D&CLD)

[12] At p 13F - p 148

[13] 2014 Juta at pp77-78.

[14] [2015] 1 All SA 100 (WCC)

[15] 2015 (5) SA 245(CC)

[16] See paragraph 39.4 above.

[17] Hence the country of origin information put up by both parties pertaining to the period after the applicant's leaving the DRC in October 2013.

[18] (10971/2013) (2013) ZAWCHC 208 (8 November 2013) at p 11.

[19] Section 2 reads as follows: "2. General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where- (a) 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; or (b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country."

[19] Section 2 reads as follows:

"2. General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances

Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where-

(a) 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; or

(b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country."

[20] Section 5 in relevant part, reads as follows: "5. Cessation of refugee status (1) A person ceases to qualify for refugee status for the purposes of this Act if­ (a) ... (e) he or she can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee. (2) Subsection (1)(e) does not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself

of the protection of the country of nationality".

[20] Section 5 in relevant part, reads as follows:

"5. Cessation of refugee status

(1) A person ceases to qualify for refugee status for the purposes of this Act if­

(a) ...

(e) he or she can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee.

(2) Subsection (1)(e) does not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself

of the protection of the country of nationality".

[21] See Tantoush above and the judgments referred to there.

[22] Trencon above at paras (49] and [50]