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Judge slams asylum process decision-making

Source: Pretoria News, 17/07/2018

THE Gauteng High Court, Pretoria, has issued a scathing indictment of the quality of administrative decision-making in South Africa’s asylum-seeker process. Handing down judgment in the matter of FNM v the Refugee Appeal Board and Others, Judge AJ Dodson set out a scathing indictment of the quality of administrative decision-making in South Africa’s asylum seeker process. The applicant was an asylum-seeker who fled from the conflict-ridden eastern region of the Democratic Republic of Congo and sought refuge in South Africa in 2013. During his interviews before the Refugee Status Determination Officer, the applicant was not provided with competent interpretation. As such, much of the crux of his claim for asylum was lost, leading to the rejection of his application. The Refugee Appeal Board (RAB) further rejected his appeal without providing him with a hearing despite the procedural irregularities inherent in the initial process or applying an inquisitorial approach to their decision making as required by law. Lawyers for Human Rights launched these judicial review proceedings on his behalf to challenge the procedural and substantive unfairness of these decisions. In his judgment, Judge Dodson chastised the RAB for failing to adopt the requisite inquisitorial and facilitative approach in its interview with the applicant, Also, for failing to make use of its full powers under the Refugees Act. The courts have in the past criticised the Department of Home Affairs for failing to give effect to asylum seekers’ right to just administrative action and exercise the powers afforded to it by the Refugees Act. Judge Dodson also criticised the RAB for focusing only on information which favoured the applicant’s return to the DRC, suggesting a pre-determination of the outcome of his claim, before even affording him a thorough hearing. He also commented on the long delay in the administrative process as the applicant applied for asylum in 2013 and was only given a decision in late 2016. “Having regard to the incompetence displayed by the Refugee Appeal Board in its decision-making in this case, its apparent unwillingness to apply the correct burden of proof and indications of bias in its assessment of the country of origin information, it would be unjust and inequitable to expect the applicant to place his fate once more in the hands of the Refugee Appeal Board,” said the judge. The court thus exercised its discretion and granted the applicant’s prayer for substitution, directing that he be granted refugee status and issued with the appropriate documentation. This case is significant for the development of refugee and administrative law in South Africa, demonstrating that SA courts are willing to grant an extraordinary remedy like substitution, where the apex of administrative decision making fails to assist one of the most vulnerable sectors of society. Lawyers for Human Rights (LHR) head of strategic litigation Wayne Ncube said: “We welcome this judgment and hope Home Affairs and the Refugee Appeal Board take the critiques raised by Judge Dodson to heart and begin to discharge their duty to asylum seekers in earnest. “Many asylum seekers face similarly flawed adjudication processes with regards to their asylum claims and do not have access to legal representation to pursue fair administrative justice through our court system. “The department and Refugee Appeal Board need to conduct thorough, unbiased enquiries into the claims lodged by persons fleeing heinous circumstances and persecution in their home countries otherwise people will face refoulment.” Many asylum seekers face similarly flawed adjudication processes with regards to their claims LHR’s Wayne Ncube


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