War before long battle with red tape
KENNEDY Tshiyombo was forced to do combat training by rebel soldiers who abducted him off the street; then he was thrust into the civil war in the Democratic Republic of Congo in 2006.
Faced with either gunning down his compatriots or being killed himself, Tshiyombo fled from his captors, only to be arrested by the government and imprisoned for being a rebel.
He escaped and came to South Africa in 2007 to avoid persecution. But not even civil war could prepare Tshiyombo, 38, for the nearly decade-long battle he faced with the Department of Home Affairs.
For eight years, Tshiyombo struggled with communication barriers, unfair consideration and administrative blunders by the department, which at one stage lost the temporary asylum seeker permit he had been issued on arrival.
In June, the department’s Refugee Appeal Board rejected his application for refugee status, but last week the Western Cape High Court overturned that decision.
In a scathing judgment, Judge Ashley Binns-Ward accused the department of “systematic failure to comply with its procedural obligations” and ruled that the appeal board, as well as Home Affairs Minister Malusi Gigaba and others, would be held personally liable for the cost of the case unless they gave compelling reasons as to why they should not. SURVIVOR: Kennedy Tshiyombo has won his standoff with home affairs to be get refugee status
He also said they should give reasons why the pattern of poor handling of refugee cases should not be handed over to the public protector for investigation. “It is plain that there is a systematic dysfunctionality in the relevant branch of the Department of Home Affairs, which has resulted in its persistent failure or inability . . . to comply with its legal obligations in matters in which its decisions are taken to judicial review,” Binns-Ward said.
The decision by the court to overturn the department’s decision, and order it to award Tshiyombo refugee status within 10 days, came as a huge relief to the married father of two, who feared for his life if he had to return home.
“I feel much better now, but there is still a long way to go,” said Tshiyombo, who is a construction worker and lives with his family near Stellenbosch.
“If I was sent back it was going to be difficult to survive. If they catch me, they’re going to kill me. I wouldn’t survive one month.”
Advocate Suzanna Harvey, who represented Tshiyombo, said the department had acted “irrationally” in its decision to reject Tshiyombo’s application.
“They are supposed to understand there are often language difficulties; newly arrived refugees are often traumatised and don’t have documents to prove things,” Harvey said.
Her sentiment was echoed by the Scalabrini Centre of Cape Town, which deals with refugees.
“It is not an isolated incident,” said spokesman Corey Johnson.
“As of late, we’ve noticed a trend of Burundian asylum seekers being rejected, and [decisions to determine their refugee status] do not reference any of the recent political strife and violence in that country.
“These poor decisions contribute to the high numbers of backlogs before the appeal board . . . many asylum seekers are stuck for years awaiting final adjudication.”
Department spokesman Mayihlome Tshwete said there was “not an attitude against refugees” in the department.
“The department is a custodian of the Refugee Act and always tries to uphold the constitutional standard expected of it,” he said. “South Africa is among the top receiving countries of refugees in the world. There’s an excessive attempt to meet the demand with the limited resources we have.”
Tshwete said the department had a number of legal issues to consider before deciding whether it would appeal the court’s decision, and that all its representations would be made on December 10.