Somali Association of South Africa and Others v Refugee Appeal Board and Others

• Jurisdiction: South Africa
• Citation: 2022 (3) SA 166 (SCA)

Somali Association of South Africa and Others v Refugee Appeal Board and Others
2022 (3) SA 166 (SCA)

2022 (3) SA p166

Citation	2022 (3) SA 166 (SCA)
Case No	585/2020; [2021] ZASCA 124
Court	Supreme Court of Appeal
Judge	Navsa ADP, Van Der Merwe JA, Molemela JA, Mbatha JA and Hughes JA
Heard	September 23, 2021
Judgment	September 23, 2021
Counsel	NC Ferreira (with C McConnachie) for the appellants.; W Mokhare SC (with L Mboweni) for the respondents.

Flynote : Sleutelwoorde

Immigration — Refugee — Asylum application — Proper application of ss 3(a) and (b) of Refugees Act — Ambit of 'persecution' and 'fear' thereof — Standard of proof — Assessment of credibility — Decisionmaker's duty to assist in establishing facts — Duty to disclose adverse information — Interpreters — Refugees Act 130 of 1998, ss 3(a) and (b).

Headnote : Kopnota

Second to ninth appellants were Somalis who had fled violence in that country and who had made their way to South Africa (see [10]). Once here, they applied for asylum at a Refugee Reception Office, completing the requisite form, as required by the office, in English, with the assistance of translators, allegedly of poor quality (see [24]).

The application forms were then considered by Refugee Status Determination Officers, with some of the asylum seekers being afforded interviews, allegedly of a cursory form, and characterised by ineffective communication (see [25]). All of the applications were subsequently refused (see [25]). Thereafter, the appellants had lodged appeals with the Refugee Appeal Board, and were granted hearings of 20 to 30 minutes, to which they were required to bring their own interpreters. Communication was once again poor and questioning limited. The Board later dismissed all the appeals (see [26]).

Appellants then brought a review of the decision in the High Court, asserting that the Board had erred in construing s 3(a) of the Refugees Act 130 of 1998 to be the sole criterion for the grant of asylum, and overlooking that s 3(b) was an independent ground, which the facts of each application implicated (see [29] and [31]). (Section 3(a) requires, inter alia, proof of 'a . . . fear of being persecuted by reason of . . . race, tribe, religion, nationality, political opinion or membership of a particular social group . . .'; and s 3(b) of 'events seriously disturbing or disrupting public order . . .' (see [28]).)

Appellants further contended that the Board had overly narrowly interpreted 'persecution' (see [32]); had applied the wrong onus (placing it entirely on the asylum seeker where it was properly shared with the Board) (see [33]); had stumbled in assessing credibility (setting too high a bar for a positive finding thereof) (see [38]); erred on the standard of proof (certainty) (see [37]); and denied audi by failing to disclose prejudicial information and allow its challenge (see [39]).

The respondents' counter was that in substance the review was an appeal on the merits, and that in deciding it the court would usurp the Board's powers (see [54] – [55]).

The High Court proceeded on the matter against a background of the facts before the Board, rather than on those facts supplemented by material in appellants' affidavits (see [60]). It disagreed that persecution was too narrowly viewed (appellants had simply failed to establish such) (see [64]); found s 3(b) had been applied (see [65]); and ruled there was no support for a shared onus (see [67]).

2022 (3) SA p167

It found further that it ill-behoved it to dictate as to assessment of credibility (see [68]); that disclosure of adverse information was unnecessary (the cases were 'hopelessly inadequate' to begin with) (see [69]); and that non-provision of interpreters had caused no harm: appellants had brought their own (see [70]).

Here, with the Supreme Court of Appeal's leave, appellants made appeal (see [2]). It considered the following:

•

The refugee status determination process was an inquisitorial and facilitative one, and to this end Refugee Status Determination Officers and the Refugee Appeal Board were under a duty to assist in the obtaining of the facts of a particular case, both in their questioning of the applicant — this including a duty to clarify inconsistencies — and through their own research (see [72], [74] – [76] and [82]). This where the Board was invested with a wide appellate jurisdiction and was not bound to the Refugee Status Determination Officer's record (see [81]).

•

The High Court's holding that the information supplied by the appellants was of such poor quality as not to trigger the duty of assistance was belied by the High Court's own summation of the evidence before the Refugee Status Determination Officer and the Board (see [82]).

•

The information supplied by the appellants had been sufficient to require consideration of whether s 3(b) was implicated (see [83]).

•

The High Court ought to have recognised that the Board's confinement of s 3(a) to fear of political persecution was overly narrow, as likewise, its treatment of qualifying fear: specifically exclusion of fear based on threats to family and friends that the applicant would be the next to be targeted (see [84] – [85]).

•

The High Court's view that there had been no need to confront the appellants with information adverse to their cases was erroneous. It came against a background of the Board's failure to assist with gathering information and was controverted by case law obligating such disclosure and recognising a right of response (see [86]).

•

Insofar as provision of translators was concerned, there was indeed a qualified right thereto (where practicable), but nonetheless the decisionmaker was under a duty to ensure effective communication (see [87]).

•

As regards onus, this the appellants bore, but the standard of proof was a qualified balance of probabilities, qualified in that the case made had to be considered in light of a refugee's circumstances: possible difficulties in obtaining corroborative evidence, a possible reluctance to speak freely, and so on. Accordingly, the assessment was 'more flexible than would otherwise be the case', and the same went for assessment of credibility (see [92]).

•

Then the substitution request: appellants' invitation to the appeal court to itself decide whether refugee status was warranted. This invitation the court refused: it was not in as good a position to decide the matter as the specialist appellate tribunal, and nor was the decision foregone (see [93]).

•

The same went for the structural interdict sought, which prescribed investigation of the Board's repeated errors: it had been rendered redundant by a recent statutory overhaul that, among other things, replaced the Board with a new structure (the Refugee Appeals Authority) that notionally would be better able to effect the statute's scheme (see [94] – [95]).

Ordered, that the appeal be upheld and the High Court's order set aside and substituted with an order setting aside the Board's dismissals of the appellants' appeals, and remitting them for hearing before its successor tribunal, the Refugee Appeals Authority (see [99]).

2022 (3) SA p168

Cases cited

Southern Africa

Aol v Minister of Home Affairs and Others 2006 (2) SA 8 (D): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): applied

Fang v Refugee Appeal Board and Others 2007 (2) SA 447 (T): referred to

FNM v Refugee Appeal Board and Others 2019 (1) SA 468 (GP): referred to

Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA): referred to

Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): dictum in paras [79] – [80] applied

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424; [2002] ZASCA 135): referred to

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120; [2003] ZASCA 142): referred to

Refugee Appeal Board and Others v Mukungubila 2019 (3) SA 141 (SCA): dictum in para [34] applied

Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) (2019 (3) BCLR 383; [2018] ZACC 52): referred to

Somali Association of South Africa and Others v Limpopo Department of Economic Development, Environment and Tourism and Others 2015 (1) SA 151 (SCA): referred to

Somali Association of South Africa and Others v Refugee Appeal Board and Others [2019] ZAGPPHC 78: reversed on appeal

Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T): considered

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) (2015 (10) BCLR 1199; [2015] ZACC 22): dictum in para [47] applied

Van Garderen NO v Refugee Appeal Board TPD 30720/2006: referred to.

United States

Immigration and Naturalization Service v Cardozo Tonseca 480 US 421 (1987): referred to.

Legislation cited

The Refugees Act 130 of 1998, ss 3(a) and 3(b): see Juta's Statutes of South Africa 2020/21 vol 7 at 4-19.

Case Information

NC Ferreira (with C McConnachie) for the appellants.

W Mokhare SC (with L Mboweni) for the respondents.

An appeal against a decision of the Gauteng Local Division.

Order

1.

The appeal is upheld with costs, including the costs of two counsel.

2.

The order of the High Court is set aside and substituted as follows:

'1.1

The applicants' delay in bringing the review of the decisions by the Refugee Appeal Board outside the 180-day time limit

2022 (3) SA p169

prescribed in the Promotion of Administrative Justice Act 3 of 2000 is condoned.

1.2

The following decisions of the Refugee Appeal Board (RAB) are reviewed and set aside:

(a)

Appeal No...