Siyad v minister of home Affairs and Others (46038/2016) [2020] ZAGPPHC 54 (6 February 2020)

IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 46038/2016

6/2/2020

AHMED HUSSEIN SIYAD

APPLICANT

and

THE MINISTER OF HOME AFFAIRS

FIRST RESPONDENT

THE CHAIRPERSON: REFUGEE APPEAL BOARD

SECOND RESPONDENT

L NDLOVU N.O

THIRD RESPONDENT

THE REFUGEE STATUS DETERMINATION OFFICE: TIRRO FOURTH

RESPONDENT

THE MINISTER OF HOME AFFAIRS

FIFTH RESPONDENT

THE DIRECTOR GENERAL: DEPARTMENT OF HOME AFFAIRS SIXTH RESPONDENT

JUDGMENT

NV KHUMALO J

INTRODUCTION

[1] This is an application for a review of a decision taken by the 1st, 2nd , 3rd and 4th Respondents refusing the Applicant, Mr Ahmed Hussein Sayid ("Sayid"), a national of Somalia, refugee status and asylum. The order Sayid seeks is in the following terms:

[1.1] Reviewing, setting aside and declaring unlawful and unconstitutional the 1st, 2nd, and 3rd Respondents' decision made on S March 2016 and received by the Applicant on 18 December 2015.

[1.2] Reviewing and setting aside and declaring unconstitutional the 4th Respondent decision.

[1.3] In terms of s 3 (a) and/or (b) of the Refugees Act, 1998 (Act No. 130 of 1998) ("the Act"), declaring that the Applicant is granted refugee status.

[1.4] Directing the 5th and 6th Respondents forthwith to issue the Applicant with as 24 of the Act permit.

[1.5] In the alternative remitting the matter to the Refugee Appeal Board (RAB) with the following directions:

[1.5.1] The RAB is directed to re-hear and make a decision on the Applicant's appeal within two month of the court's order, and;

[1.5.2] The Respondents must renew the Applicant's section 22 asylum seeker permit until his application for refugee status has been finally determined, which includes his right of review under the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

[2] The 1st Respondent is the Refugee Appeal Board (RAB) that determines appeals against decisions of the 4th Respondent in terms of s 26 of the Refugees Act 130 of 1998 (the Act) and 14 (1) (b) of the Regulations to the Refugees Act ("the Regulations"). The 2nd Respondent is the Chairperson of the Refugee Appeal Board whose decision the Applicant seeks to review and set aside. He is cited in his official capacity. The 3rd Respondent, L Ndlovu is cited in her representative capacity as a member of the RAB. She together with the Chairperson, L Chipu heard and dismissed Sayid's Appeal against the RSDO decision. The 4th Respondent, the Refugee Status Determination Office ("RSDO") of the Tshwane Interim Refugee Reception Centre ("TIRRO")

is the official responsible for the initial determination of the asylum Application. The 5th Respondent is the Minister of Home

Affairs cited in his official capacity and the 6th Respondent, is the Director General who is responsible for the administration and implementation of the Immigration Act and the Refugees Act. The Application is opposed by all the Respondents.

[3] S 3 of the Act reads:

A person qualifies for refugee status for the purposes of the 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 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 of the whole of his or her country 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.

[4] According to Sayid's Founding and Supplementary Affidavits he is an asylum seeker who fled his home country Somalia in 2009. He fled after being threatened to be killed by AI­ Shabaab men accusing him of living in the western culture and not attending the mosque. He was listening to Tupac music at the time and liked to play soccer. He was not going to change, therefore a few weeks later he decided to leave the country in the company of one Abduralman. They travelled by truck for three days from Mogadishu to Kismayo, which is closer to the Kenyan border. They then travelled by boat from Kismayo to Mombasa in Kenya. They were in transit in Mombasa for less than 12 hours after which they changed to another boat that travelled to Mozambique. They were then put in a container in a truck that took them across the border to South Africa, entering without a passport. Closer to the border, they jumped out of the truck and walked for three to four hours until they crossed into South Africa, jumping through a fence through at an area that was not heavily guarded. They took a taxi to a place called Mohamed's Lodge in Pretoria West where Somalians live.

[5] Sayid applied for asylum in December 2009 at the Tshwane Interim Refugee Reception Office ("TIRRO"). According to him as he could not speak English properly, he was assisted at TIRRO by an interpreter from Somalia to complete the Bl -1590 form who asked for R300 for the services. He could not pay but the interpreter assisted him anyway. On the same day he was interviewed by the Refugee Status Determination Officer ("RSDO"), which is the 4th Respondent, in an interview that lasted 10 minutes. The RSDO did not ask him too many questions, except being asked through a translator his reason for leaving Somalia. He told them about his family and was not allowed to say anything further. He denies that he ever said his family fled to a rural area as is reflected on the RSDO decision. He does not however elaborate on what exactly he told the officer. Following the interview he was called to collect an asylum seeker's permit. He does not remember receiving a written decision but a month later when he went to renew or extend his permit he was given a form to complete which he suspects was a Notice of Appeal. He completed it with the help of one Mohamed, a friend. He thereafter regularly renewed his permit.

[6] According to the RSDO Notice he was notified of the refusal by the RSDO on the same day 8 December 2009 and also that he is expected to note his appeal within thirty (30) days from the date of the decision. His notice to appeal was, according to the documents lodged for the first time after three (3) years on 23 January 2013. The stated reason for his claim's refusal was that it was unfounded.

[7] He alleges that an appeal hearing with the RAB was initially booked for him on 23 January 2013. It was postponed a few times until\it finally took place on 27 February 2013. The Appeal was heard before one member of the RAB. He attended with Mohamed who interpreted for him and a lawyer instructed by Mohamed. He alerted the RAB member to the incorrect recording on his permit of 5 January 1989 as his birth date instead of 29 December 1991. The RAB member did not ask him many questions except about his family and for the reason why he left Somalia. He told the RAB about his house that was destroyed and some members of his family that were killed. Also that he fled because of war in Somalia. After the appeal hearing he was furnished with a letter to take to TIRRO for his permit to be renewed. When he returned to TIRRO he was told to approach the RAB for a decision. Back at the RAB he was told that the member of the RAB has resigned and his documents were misplaced. He was consequently given another date, the 12 December 2013 for an appeal hearing in Pretoria.

[8] At this second hearing he attended alone with no lawyer or interpreter. The hearing was conducted by two members, a man and a woman, M Chipu and L Ndlovu, the 2nd and 3rd Respondent. Except for his personal details he was asked for his reason for having left Somalia and whether he would be willing to go back. He told them he would be willing if there is peace in Somalia which was not there. He told them about the civil war there and the fact that he might be killed. They wanted to know what he thought might be the reason his application was rejected by the RSDO. He told them his interpreter might not have told his story correctly and that it lasted for only 10 minutes. He had also told them that if he is granted asylum he was hoping to make a living by having access to health, education and all the things that someone needs to make life possible. The appeal lasted less than 30 minutes. Pending the outcome of the appeal he had continued to renew his asylum seeker permit. On 18 December 2015 he received the RAB decision dismissing his appeal. He consulted his attorneys for advise on the legal implication of the decision and the errors it contained in relation to his asylum claim which he regarded as impacting on the procedural and substantive aspects of his rights to a fair refugee status determination. The RAB has refused his Application on the basis that:

[8.1] He did not suffer any persecution or harm in terms of s 3 of the Act. He did not have a well-founded fear of persecution. He was therefore not compelled to leave his country of origin.

[8.2] He stayed in Kenya for a period of one month and was given protection by that country. There is nothing in his evidence that indicate that he was persecuted in Kenya because of his nationality. He left Kenya because he was seeking a better life for himself.

[8.3] living conditions do not fall within the threshold of s 3 of the Refugees Act therefore cannot be regarded as persecution. He enjoys/ed the protection of each country he has taken residence in. He would not qualify or be recognised as a refugee under ks 4(1) (d) of the Refugees Act.

[8.5] The board finds that he has not discharged the burden of proof that has rested on him to justify the granting of asylum in terms of the Refugee Act.

[9] The Applicant brought this application only on 10 June 2016 more than 180 days from the date of the decision and the matter only set down for hearing in June 2018. The Applicant has applied for condonation

for the delay in bringing the Application. The court was persuaded that there was a reasonable explanation of the delay and being

appreciative of the importance of the matter granted condonation. The Applicant was represented by Mr Letsebe and the Respondents by Ms N Rantho.

Grounds for Review

[10] The Applicant contends that the RAB should have provided him with an interpreter during the appeal hearing or notified him and afforded him (seven (7) days within which he should source his own interpreter. At his second hearing he had neither an interpreter nor a lawyer but the hearing was allowed to proceed. He argues that in the circumstances where he had limited understanding of the English language and the RAB members also with none or little knowledge of his mother tongue, for the purposes of the Refugees Act, PAJA and the Constitution it means there was no hearing at all. The same consideration being applicable to the situation at the reception

office at TIRRO where he relied upon a volunteer as a result of their failure to provide interpretation services for the purposes of completing the form and conducting the RSDO interview. As a result he argues that the RAB's failure to deal with and remedy the RSDO's flaws constitutes a violation of its statutory duties as an appellate body under the Refugees Act. The flaws also combined with its own flaws constitute a violation of his rights to procedural fairness in the determination of his asylum claim. Mr Letsebe argued that not affording the Applicant an interpreter during the proceedings amounted to an irregularity that justifies a review of the proceedings.

Misapplication of the Law on the burden of proof

[11] The Applicant argues that the RAB misapplied the law when in paragraph 8 of its decision it stated that:

"the burden of proof is on the Appellant to show that he is entitled to refugee status" and "the standard of proof is that of a reasonable possibility of risk", further that this reasonable risk must be considered in the light of all the circumstances i.e. past persecution and a forward looking appraisement of risk "whereafter it concluded that the Appellant has not discharged the burden of proof which rested on him"

[12] He argues that the Application of the burden in the abovementioned manner is incorrect as it is inconsistent with the test applied when determining the strength of the person's refugee claim as provided for in the UNHCR Handbook on Procedures and Criteria for determining refugees status which enjoins the adjudicator to meet the asylum seeker halfway, and assist with the resources at its disposal in proving the asylum seeker's claim. As a result of the misapplication of the burden and standard of proof, the RAB was bound to come to the wrong conclusion that Applicant has failed to discharge the burden that rested on him. Further that the misapplication of the test meant that the RAB wrongly rendered Applicant's otherwise persecutory circumstances as being at odds with the qualifying circumstances defined under s 3 (b) of the Act. It is also not mentioned if he has met or failed to meet the burden of proof that he is eligible to be granted refugee status. Reference is made to "Credibility" without stating anything further which he has concluded to mean his claim was found to be unbelievable.

Incorrect test

[13] The Applicant also contends that incorrect test applied to his refugee status. He submits that he has consistently based and is eligible to a determination of his refugee status under Section 3 (a) and 3 (b) and is entitled to be granted refugee status, if:

[13.1] He or she can show that he or she has faced persecution or threat of persecution by reason of his or her association or perceived association with any attributes listed ins 3(a) of the Act; and or

[13.2] country of origin information shows the prevalence of events seriously disturbing or disrupting the public order, as is revealed in the reports to which he has referred to below, and has attested to in his affidavit. ·

He argues that he has met the basis of the first criterion in s 3 (a) that requires individualised fear of persecution on either of the attributes listed in it by virtue of the fact that while in refuge in Ceelashabiya he fell victim to AI-Shabaab militants who perceived his life style to be pro-western ways and anti-Islam, more so because as they said, he did not attend mosque.

[14] He also contends that he qualifies to be granted refugee status under s 3 (b) by virtue of events in his country that are seriously disturbing and disrupting public order in many parts of the country. Whereby the Somali Government cannot, despite foreign assistance by the African Union peace forces and others, contain the violent situation in the country. On the basis of this criteria and the clear evidence of his eligibility, to be granted the refugee status under s 3 (a) and (b), from the RAB's decision it would appear that the RAB applied only the first criterion under s 3 (a). Even then it still

failed to appreciate the manifest human rights violations prevailing in Somalia.

[15] The RAB has therefore contravened the express statutory provisions of the Act and its approach bound to yield an irregular finding that he is ineligible to refugee status when it would have been dangerous for him had he remained in Somalia, and remains dangerous for him to be expected to return there. Mr Letsebe argued that in that sense the court did not apply the law properly by making irrelevant considerations and disregarding relevant considerations.

Misapplication of s 4 (d) of the Refugees Act

[17] The Applicant refers to the real situation in his country and argues that the RAB had failed to consider his country's information as if they had done so they would have found that persecutory circumstances prevailed that induced him to flee Somalia and refusing him refugee status would result in him being deported and being exposed to persecution and possible death in his country. The RAB's drawing of a negative inference against his refugee claim was irregular and inconsistent with the Refugees Act.

[80] It is further submitted by the Applicant that the RSDO decision is no decision as is contemplated in s 24 (2) in that it is unlawful, irrational and procedurally unfair in that it neither contains nor provides reasons imposed under s 33 (2) of the Constitution. In its decision it records that he fled Somali by reason of civil war. The relevant sections 3 is quoted without any linkage of his situation to the section but as a matter of formality without attaching any value or substance to it. In so doing wrongfully negating the rights accruing to him under subsection (a) and (b).

(81] The Applicant's contention in this regard is similar to the contention he raised on the procedural fairness of the RAB and the RSDO processes. The fact that the Applicant had access to the services of an interpreter who was from the same home country and with O level qualifications rules out that the Applicant might have been subjected to a process that he could not understand and therefore his rights compromised.

[82] The RSDO furnished the Applicant with a decision in writing. The reasons, albeit very brief, formed part of the decision. The RSDO also referred to Credibility as well. The reasons may not be lengthy or be accepted by the Applicant however they dealt with other information that was considered, including incidents of safety and that there is no war.

Violation of the principle of non- refoulment

[83] At the heart of the Refugee law is the principle of non-refoulment (non-return). Section 2 of the Act establishes a general prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances. It reads:

2. 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 turned 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.

[84] Applicant has argued that the RSDO and later RAB's decision has the effect that he will, if not rescued by the intervention of this honourable court, eventually face the expulsion from this country or deportation to Somalia. He is advised that if expelled or deported, South Africa would have violated his human rights under the Refugees Act, the Constitution and International Law, for his re-entry into Somalia has the potential that he will suffer physical harm or even death.

[85] In Saidi and Others v Minister of Home Affairs and Others (2018] ZACC 9 Madlanga J captured the essence of the principle of non-refoulement when he stated that 'This is not about non return for the sake of it; it is about not returning asylum seekers to the very ills­ recognised as basis for seeking asylum- that were the reason for their escape from their countries of origin.' Having given consideration to the grounds that Applicant submitted to the RSDO and RAB for having left Somalia and his sojourning in the neighbouring Kenya, and ultimately arriving in South Africa and what has motivated his final move to this country, there is nothing that has been placed before the two bodies that indicates real threat to his life, physical safety or freedom at his home country. He has been found to have relied on general instability that he alleged was prevailing.

[86] The non-refoulment principle has been found by the European Court of Human Rights in a Hirsi Jamaa unanimous Judgment, to not admit any reservations, with Judge Pinto de Albquerque highlighting the principle's peremptory nature by stating that:

"When there is risk of serious harm as a result of foreign aggression, internal armed conflict, extrajudicial death, forced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, or trial based on a retroactive penal law or on evidence gathered by torture or inhuman and degrading treatment in the receiving State, the obligation of non- refoulement is an absolute obligation."

[87] This indicates how serious the issue of non refoulement is viewed by the courts and therefore reliance on a general report on the historical situation of a country which does not refer to real and imminent danger to the asylum seeker as submitted by Mr Lebetso, is not what was envisaged by s 2. The RAB had to establish if there was a factual likelihood that Appellant will face persecution if he goes back to Somalia. Considering the Applicant's account and claim, understandably, the RAB could not reach such a conclusion. There might be hardship in acclimatising but no war reported or possibility of reasonable risk that the Applicant will be exposed to the atrocities referred to in s 2 if he is to return to his home country.

[88] Under the circumstances the following order is made:

THE ORDER

1. The Application is dismissed with no order as to costs.

N V KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION: PRETORIA

For the Applicant:

Mr Letsebe

Instructed by:

LAWYERS FOR HUMAN RIGHTS

Johannesburg Law Clinic

Tel: 012 320 2943

Ref: Elemari Temperman

For the Respondents: Ms Rantho

STATE ATTORNEY, PRETORIA

Tel: 012 309-1515

Ref: Ms n Fudumele