Court hears of ‘defects’ in Somalis’ asylum case
Home Affairs, minister to clarify board’s rejection of their bids
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.