Gavric v Refugee Status Determination Officer and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J
• Judgment Date: 28 September 2018
• Citation: 2019 (1) SA 21 (CC)
• Docket Number: CCT 217/16 [2018] ZACC 38
• Hearing Date: 28 September 2018
• Counsel: A Katz SC (with D Simmonsz) for the applicant. MA Albertus SC (with GR Papier) for the respondents. S Budlender (with L Siyo) for the amicus curiae, People Against Suppression, Suffering, Oppression and Poverty.
• Court: Constitutional Court

Theron J (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, H Madlanga J and Petse AJ concurring):

Introduction

[1] This application raises important and novel questions about the ambit of the protection that South African law offers to foreigners under the Refugees Act [1] (the Act) and the Constitution. I

[2] This matter concerns a review to set aside the first respondent's refusal to grant the applicant refugee status as well as a constitutional

Theron J (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring)

challenge A to s 4(1)(b) [2] of the Act which excludes persons convicted of certain non-political crimes from being eligible for refugee status.

Background

[3] The applicant is Mr Dobrosav Gavric, a Serbian national who is B seeking refugee status in South Africa. The first respondent is the Refugee Status Determination Officer, Cape Town (RSDO), who refused the applicant's application for refugee status. While all six respondents filed a notice of intention to oppose and submissions, only the RSDO and the second and third respondents, the Minister of Home Affairs and the Director-General of the Department of Home Affairs, collectively filed C an answering affidavit. The amicus curiae (friend of the court) is People Against Suppression, Suffering, Oppression and Poverty (PASSOP), a community-based non-profit organisation which aims to protect and promote the rights of refugees, asylum seekers and immigrants in South Africa.

[4] D The applicant lived in Serbia until 2007, where he worked for the Serbian Police Force. During the 1990s, the former Republic of Yugoslavia disintegrated due to ethnic conflict which led to warfare and violence in Serbia — at the time, a territory controlled by the former Republic of Yugoslavia. The driving force behind the violent conflicts in E Serbia was the then-President Mr Slobodan Milosevic.

[5] During the wars Mr Milosevic used a paramilitary unit, Arkan's Tigers, to carry out ethnic cleansing operations. The unit was led by Mr Zeljko Raznatovic, commonly known as Arkan. After the wars ended, organised crime and the Milosevic government were closely F aligned. Arkan became both a powerful politician and a feared underworld figure.

[6] On 15 January 2000, Arkan and his two bodyguards were assassinated in a hotel in Belgrade, Serbia. The applicant was present at the hotel when the assassination occurred and was seriously injured in the G crossfire.

[7] The applicant was charged with the murder of Arkan and his two bodyguards. He was detained for three years in a Serbian prison while awaiting trial. During this time, the wing of the prison where the applicant was kept was cleared of all other prisoners to protect him from H other inmates. After three years, the applicant was released from prison and awaited his trial at home.

[8] The applicant was convicted for the murders of Arkan and his two bodyguards on 9 October 2008 in absentia (in his absence). He was initially sentenced to a term of 30 years' imprisonment but this was later I altered on appeal to 35 years' imprisonment by the Serbian Supreme

Theron J (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring)

Court. In 2012, the applicant lodged an appeal against his sentence in A the European Court of Human Rights. He sought to challenge his sentence under art 7 of the ECHR Convention. [3] This article prohibits retrospectivity in criminal matters. At the request of this court, the Registrar of the European Court of Human Rights indicated that the applicant's appeal was declared inadmissible on 6 February 2014. B

[9] The applicant entered South Africa in 2007 under a false name and passport. His real identity came to light when he became a victim and witness in a shooting incident in 2011. He was subsequently arrested and charged with possession of illegal substances (drugs) and fraud relating to having obtained official documents (driver's licence, passport C and firearm licence) under his false name. The applicant was detained on 27 December 2011. The Serbian Ministry of Justice dispatched a request for his extradition on 29 December 2011. The applicant is currently detained at Helderstroom Correctional Facility in the Western Cape pending the finalisation of the criminal charges, extradition proceedings and this case. D

[10] On 30 January 2012, the applicant applied to the RSDO for refugee protection (asylum) under s 3 of the Act [4] on the grounds that he had a well-founded fear of being killed by Arkan's supporters. This application was rejected on 14 February 2012. On 18 April 2012 the Standing Committee on Refugee Affairs (Standing Committee) set aside the E decision of the RSDO and the application was remitted to the RSDO to reinterview the applicant.

[11] On 19 November 2012, the RSDO concluded that the applicant's asylum application was excluded in terms of s 4(1)(b) of the Act on the grounds that he had committed serious non-political crimes (the decision). F In 2013, the applicant instituted proceedings in the High Court, which sought to review and set aside the decision, declare the applicant

Theron J (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring)

to A be a refugee and declare s 4(1)(b) of the Act constitutionally invalid. In addition, the applicant sought a declaratory order prohibiting the respondents from extraditing, deporting or otherwise returning him to Serbia.

[12] The High Court dismissed the application with costs [5] and an B application for leave to appeal to the Full Bench of the High Court was unsuccessful. The Supreme Court of Appeal refused leave to appeal. Leave to appeal is now sought from this court.

[13] The issues in this matter are whether —

(a)

leave to appeal and condonation should be granted;

(b)

C section 4(1)(b) of the Act should be declared inconsistent with the Constitution and invalid;

(c)

a decision that the applicant qualifies for asylum under s 3 of the Act must be made with or before a decision to exclude the applicant under s 4(1);

(d)

D the decision of the RSDO is subject to an internal review;

(e)

the decision of the RSDO ought to be reviewed and set aside; and

(f)

the applicant should be declared a refugee.

Jurisdiction and leave to appeal

[14] E This matter engages the jurisdiction of this court as it involves a constitutional challenge to s 4(1)(b) of the Act. Beyond this, it raises arguable points of law of general public importance, such as the definition of a political crime, the proper interpretation and application of the 'exclusion clause', whether an internal appeal process is available to an excluded person under the Act, as well as what the rights are of an F excluded person who may be persecuted upon returning to her country of origin. These are issues of great importance to asylum seekers and refugees, and impact their right to fair administrative action. Though not definitive, there are also reasonable prospects of success. It is in the interests of justice that leave to appeal be granted.

Condonation G

[15] The applicant filed his application for leave to appeal one court day late due to a mistake by his attorney concerning the date of the Supreme Court of Appeal order. The respondents filed their submissions on H 30 October 2017 instead of 27 October 2017. In both instances the delay was not excessive and it is in the interests of justice to grant condonation. Condonation is granted.

Merits

The I scheme of the Refugees Act

[16] The legal framework under which the applicant's application for asylum falls to be considered includes the provisions of the Refugees Act,

Theron J (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring)

the Extradition Act, [6] the Constitution and relevant international instruments. A [7] The preamble to the Act provides that effect must be given to the 'relevant international legal instruments, principles and standards relating to refugees; to provide for the reception into South Africa of asylum seekers; to regulate applications for and recognition of refugee status; and to provide for matters connected therewith'. Consonant with the preamble, the Act establishes a framework for the consideration and B determination of applications for asylum, the conferral of refugee status and for internal reviews and appeals.

[17] Section 2 of the Act contains a general prohibition against the return of a person to any country where her life, physical safety or C freedom will be threatened. [8] Section 3 (the inclusion clause) provides — subject to an application for asylum being made under s 21 of the Act —

'. . . a person qualifies for refugee status for the purposes of this Act if that person —

(a)

owing to a well-founded fear of being persecuted by reason of his D 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 E 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 dependant of a person contemplated in paragraphs (a) or (b)'. F

[18] Section 4 contains what is known as the exclusion clause, namely the grounds disqualifying a person from...