By Lesirela Letsebe

The Constitution grants everyone the right to human dignity, life and freedom and security of the person under ss 10, 11 and 12(1). The protections under s 12(1) provides the right –

‘(a) not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial;

(c) to be free from all forms of violence from either public or private sources;

(d) not to be tortured in any way; and

(e) not to be treated or punished in a cruel, inhuman or degrading way.’

Further, in terms of s 33(1) and (2) of the Constitution, everyone ‘has the right to administrative action that is lawful, reasonable and procedurally fair’. Accordingly, a person ‘whose rights have been adversely affected by administrative action has the right to be given written reasons’. In terms of s 33(3) government enacted the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to afford persons aggrieved by administrative action a platform to approach courts or tribunals for redress.

Section 39(1) enjoins the courts, tribunals or forums, when interpreting the Bill of Rights, to: ‘Promote the values that underlie an open and democratic society based on human dignity, equality and freedom’ and to ‘consider international law’. It may also ‘consider foreign law’. Subsection (2) provides that when interpreting any legislation, and when developing the common law, every court, tribunal or forum must ‘promote the spirit, purport and objects of the Bill of Rights’. ‘Any legislation’ in this article refers to the Refugees Act 130 of 1998 (the Refugees Act), the Prevention of Combating and Torture of Persons Act 13 of 2013 (the Anti-Torture Act), and PAJA.

The Refugees Act

South Africa is a party to the 1951 Convention Relating to Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. To fulfil its treaty obligations, in 1998 and 2013 South Africa (SA) enacted the Refugees Act and Anti-Torture Act respectively. These Acts ensure that the country receives and treats refugees within its territory, in accordance with the standards and principles established in international law. It may equally not expel or extradite persons if doing so would expose them to persecution outside the country. Section 6 of the Refugees Act provides that it must be interpreted and applied with due regard to the above international human rights law instruments and the Universal Declaration of Human Rights. Compliance with the international norms and standard means that SA will under ss 2 and 3 of the Refugees Act, read together with s 8 of the Anti-Torture Act, protect and grant asylum to any person within its territory who –

‘(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; or

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

The interrelation between ss 2 and 3 is explained in Gavric v Refugee Status Determination Officer, Cape Town and Others [2016] 2 All SA 777 (WCC) at para 68:

‘Section 2 of the Act enshrines the international customary law rule of non-refoulement and it protects all the citizens and not only refugees. This means therefore that as per the language used in sections 2 and 3 of the Act, even persons who are found not to be refugees, if they meet the requirements in section 2 can be protected against return to their home countries.’

Procedure for refugee status determination

The procedure for refugee status determination is regulated under chs 3 and 4 of the Refugees Act. To that end, it established the Refugee Reception Office (the Office), which is composed of Refugee Reception Officers and Refugee Status Determination Officers; Standing Committee for Refugee Affairs (the Committee); and Refugee Appeal Board. The Office receives asylum applications in terms of s 21 via the completion by the applicant of the Eligibility Determination Form for Asylum Seekers (BI-1590), and must ensure that it is properly completed before submitting it to the Status Determination Officer for status determination. The Committee and Refugee Appeal Board respectively exercise review and appeal functions over Status Determination Officer’s decisions and do so independently.

In terms of s 24(1) of the Refugees Act, the Status Determination Officer may on receipt of the BI-1590 application form, in order to make an informed decision –

• request any information from an applicant or the Office concerned;
• where necessary, consult with and invite a United Nations High Commissioner for Refugees (UNHCR) representative to furnish information on specified matters; and
• may with the permission of the asylum seeker, provide the UNHCR representative with such information as may be requested.

Subsection (2) enjoins the Status Determination Officer, when considering asylum applications, to have due regard for the rights set out in s 33 of the Constitution. In particular, the Officer is required to ensure that the applicant fully understands the procedures, their rights, responsibilities and the evidence presented. In practice, the Officer considers the contents of the BI-1590 application form and conducts a face to face interview with the asylum applicant. Thereafter, the Status Determination Officer must –

• grant asylum;
• reject the application as ‘manifestly unfounded, abusive or fraudulent’;
• reject it as ‘unfounded’; or
• refer any question of law to the Committee for review.

The nature of the Status Determination Officer’s rejection determines whether review by the Committee or appeal before Refugee Appeal Board should take place. A finding that a claim is manifestly unfounded, abusive or fraudulent, will trigger automatic review by the Committee, while the Refugee Appeal Board will, on application, determine an appeal over a finding that the claim is unfounded.

Adjudications of the Committee Reviews and Refugee Appeal Board appeals

If the Status Determination Officer rejects the asylum claim as manifestly unfounded, abusive or fraudulent, it must in terms of s 24(4) of the Refugees Act furnish the applicant with written reasons within five working days after the decision, plus advise them of their right to make written submission to the Committee within 14 days. The Status Determination Officer must also, within ten days of its decision, submit to the Committee the record of proceedings and a copy of the reasons given for the decision. Problems abound about this –

• there are no clear guidelines on how applicants’ written submissions are received and processed by the Committee; and
• there exists little or no evidence that such submissions ever receive any meaningful attention whatsoever.

The Status Determination Officer’s decisions are often merely endorsed by the Committee without any input by the affected applicant. This is often because an affected asylum seeker would have been ignorant of the need to make written submissions on time or at all, due to language barriers. Under s 25(5) the Committee may reverse the Status Determination Officer’s decision or to make directions for the reconsideration of the claim, with the necessary guidance on what is to be done to achieve this. The Committee’s endorsement of a Status Determination Officer’s decision is final and only subject to review by the High Court under PAJA’s provisions.

If the Status Determination Officer rejects an asylum claim under s 24(3)(c) as ‘unfounded’, the applicant has 30 days after receiving the decision within which they may lodge a notice of appeal.  Section 26(4) provides for the appellant to be allowed legal representation if so requested. The Refugee Appeal Board must where necessary afford the appellant the services of an interpreter at the appeal hearing, failing which it must afford seven days within which, they may procure their own interpreter (reg 5 of the Refugee Regulations (Forms and Procedure) 2000). In Bolanga v Refugee Status Determination Officer and Others (KZD) (unreported case no 5027/2012, 24-2-2015) (Penzhorn AJ) the court emphasised the importance, during refugee status determination, of ensuring that the applicant is not disadvantaged by a language barrier.

Section 13 provides that three Refugee Appeal Board members must preside over appeals, namely the chairperson and two other members, one of whom must be legally qualified. Decisions where the Refugee Appeal Board was not properly constituted were held to be invalid and set aside on review. This was the case in Harerimana v Chairperson, Refugee Appeal Board and Others 2014 (5) SA 550 (WCC), where only one Refugee Appeal Board Member had presided during the appeal hearing. As with the Committee, the Refugee Appeal Board may under s 26(3) of the Refugees Act consult other sources of information to verify the asylum claim before reaching its decision.  Overlooking relevant country of origin information would go against the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee States (2011) at paras 196 and 197. This is in recognition of the fact that as they flee, asylum seekers hardly ever carry evidentiary material for use in the host country of asylum. The decision in Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T), in addition to emphasising the Refugee Appeal Board’s latter role, offers an analysis on the Refugee Appeal Board’s wide appellate role over Status Determination Officer’s decisions.

As to the standard of proof, the UNHCR Handbook, at para 42 states that in general the applicant’s fear should be considered to be well-founded if they can establish, ‘to a reasonable degree’, that their continued stay in their country of origin has become intolerable. The applicant is not required to prove a ‘real risk’ on a balance of probabilities. The appropriate standard is ‘a real possibility of persecution’. Lastly, reg 3 of the Refugee Regulations states that the whole refugee status determination process is generally expected to conclude within 180 days from the date the asylum application was first lodged.

Conclusion

In conclusion, a fair refugee status determination procedure should be sensitive to the Bill of Rights, heed the warning in the UNHCR Handbook that ‘unless he seeks adventure or just wishes to see the world, a person would not normally abandon his home and country without some compelling reason,’ and ensure that deserving cases enjoy the humanitarian protection in SA.

Lesirela Letsebe BIur LLB (UL) LLM (UP) is an in-house advocate (Counsel) at Lawyers for Human Rights in Johannesburg.

This article was first published in De Rebus in 2018 (September) DR 17.