Court hears of ‘de­fects’ in So­ma­lis’ asy­lum case

Home Af­fairs, min­is­ter to clar­ify board’s re­jec­tion of their bids

The Star Early Edition - - NEWS - ZELDA VEN­TER

WHILE the world cel­e­brated World Refugee Day yes­ter­day, eight So­ma­lis re­flected on their own lives and their fear of the prospect of hav­ing to re­turn to their war-torn coun­try of ori­gin.

Their le­gal team, mean­while, fought a bat­tle for them and oth­ers in sim­i­lar sit­u­a­tions.

The eight, who can be iden­ti­fied only by their ini­tials out of fear for per­se­cu­tion, spent the World Refugee Day sit­ting the in the pub­lic gallery of the high court in Pre­to­ria.

They can­not speak English and were un­able to speak to The Star’s sis­ter pa­per, the Pre­to­ria News as they did not have an in­ter­preter present.

The group sat hud­dled to­gether and were hope­ful that Pre­to­ria Judge Pres­i­dent Dun­stan Mlambo would rule in their favour and grant them refugee sta­tus in South Africa.

This is af­ter the Refugee Ap­peal Board (RAB) turned down their ap­peal against the ini­tial re­fusal by the Depart­ment of Home Af­fairs to grant them refugee sta­tus.

One of the main rea­sons stated for their al­leged un­fair hear­ing be­fore the RAB, was that their cases could not be pre­sented prop­erly due to the lan­guage bar­rier. They, like other refugees, were obliged to bring their own in­ter­preters to ex­plain why they should not be send back to So­ma­lia.

The in­ter­preters them­selves of­ten bat­tled with the lan­guage bar­rier.

The eight, with the aid of Lawyers for Hu­man Rights (LHR), how­ever, fought a much wider bat­tle, other than just want­ing refugee sta­tus.

LHR ad­vo­cate Nick Fer­reira ar­gued that the main prob­lem was that the RAB ap­plied the law wrongly in de­cid­ing many refugee mat­ters. This, he said, had been the prac­tice with the pre­vi­ous RAB and it was con­tin­u­ing with the newly ap­pointed board.

The board of­ten sim­ply cut and pasted and gave the same rea­sons for its re­fusals, he pointed out.

These sys­temic de­fects were high­lighted in the many cases of this na­ture which served be­fore the court and where the RAB’s de­ci­sions were over­turned. Fer­reira said only a few refugees were able to ac­cess the courts and it was thus vi­tal that these “de­fects” were ad­dressed.

Apart from want­ing refugee sta­tus for these eight ap­pli­cants, he also asked for a wider or­der that the min­is­ter of home af­fairs and his di­rec­tor-gen­eral in­ves­ti­gate the flaws and cre­ate a plan to ad­dress them.

Fer­reira said in De­cem­ber, 2015 the RAB had 144 000 out­stand­ing cases it had to ad­ju­di­cate on and this num­ber grew by the day. He said if the court did not ad­dress the big­ger prob­lem, the courts would be over­bur­dened if peo­ple chal­lenged the de­ci­sions.

He high­lighted a “re­peat pat­tern of four er­rors” in RAB hear­ings, which in­clude that the board “mis­ap­plied” the test for refugee sta­tus as stip­u­lated by the Refugees Act and that it did not af­ford the refugees a chance to state their case be­fore the board.

Fer­reira said for the ma­jor­ity of these asy­lum-seek­ers, the de­ci­sions on ap­peal were the fi­nal word, although the de­ci­sions may be wrong, as they would never be able to ac­cess the court.

The eight So­ma­lis ar­rived in South Africa at dif­fer­ent times and have been here for some time. They were is­sued with ini­tial asy­lum-seeker per­mits and went through lengthy refugee sta­tus de­ter­mi­na­tion pro­cesses. These had mean­while lapsed and their ap­pli­ca­tions for asy­lum re­jected.

They said they faced per­se­cu­tion and even death if they had to re­turn to their home coun­try. A woman, iden­ti­fied only as MN, lost two of her eight chil­dren when her home in Mogadishu was hit by a grenade dur­ing a bat­tle and she was left with se­vere in­juries.

Another ap­pli­cant, iden­ti­fied only as KL, lived in con­stant fear in Mogadishu as he wit­nessed many bat­tles. His brother was mur­dered by al-Shabaab and he fled af­ter he was threat­ened with death if he did not join the mili­tia.

The RAB had dis­missed all their fears as un­founded.

It was ar­gued by coun­sel for the min­is­ter and Home Af­fairs that the RAB was an in­de­pen­dent body and could not be in­ter­fered with.

It was also said that the ap­pli­cants made un­sub­stan­ti­ated and gen­eral ac­cu­sa­tions against the board.

The eight will in the mean­time have to wait a while longer to hear their fate, as judg­ment was re­served.

PLIGHT OF REFUGEES: A Syr­ian child walks on a beach where refugees and other mi­grants live in makeshift tents near the Souda refugee camp on Chios Is­land. On World Refugee Day, more than 60 000 refugees and mi­grants are still stranded in Greece await­ing re­lo­ca­tion to other coun­tries of the EU or back to Turkey un­der a de­por­ta­tion deal launched 15 months ago.

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