Until now, Home Affairs has not had to explain its decisions to refugees. It now must do so, writes Marion Edmunds
FOUR Angolan refugees and the Human Rights Commission (HRC)have won a decisive legal victory over the Department of Home Affairs, forcing officials to explain why they accept some refugees as legitimate asylum-seekers, and reject others.
Until Tuesday this week, when an order was issued in the Cape Town Supreme Court forcing the department to be open about its workings, departmental officials had taken decisions about the legitimacy of refugees without having to explain their reasoning, or reveal what facts were influencing their judgments.
Furthermore, rejected asylum-seekers only had seven days to lodge appeals against these mystery decisions without knowing why their cases were faulty. To add to their difficulties, the Appeal Board (which is literally one man, advocate John Leach, and his fax machine in “Pretoria) has, according to sources, seldom overturned Home Affairs’s decisions.
The refugees who have taken the government to task – Joao Pembele, Philippe Kutengala, Manzambi Fernando, Carlos Joaquim and Joao Mbala – in the first class action of its kind, have been coming up against Home Affairs’s brick wall for some time. They all claim they fled persecution in Angola, but all have had their applications for political asylum rejected by the department’s Standing Committee on Refugee Affairs, with no accompanying explanation.
Their tales of persecution vary, but they say they were caught up in MPLA-Unita clashes after Angola’s 1992 elections. Mbala, for example, claimed to have been arrested by MPLA forces in 1993 and locked in a container in Lubango with 100 fellow BaKongo tribe members. He said only he and 15 others survived in the container, while the other 84 died around him in captivity. After his release, he fled with his wife and new-born child to South Africa.
Like his fellow applicants, Mbala’s application for political asylum was rejected and his only course of action was to leave the country or to challenge the government’s lack of transparency in court.
The refugees, represented by the Legal Resource Centre, chose the latter path and with the HRC forced the Department of Home Affairs to agree to a court order, making it compulsory for the department to give reasons for its decisions.
They did this by serving an interdict on the ministers of Justice, Home Affairs and Foreign Affairs and on their directors general, asking for the Refugee Appeals Board to halt its operation. The subsequent court order will affect the fate of some 2000 refugees who have had their applications for asylum rejected and are waiting to appeal against the decision.
The attorney representing the refugees, William Kerfoot, said: “This is a really significant decision and “I am delighted that refugees’ rights can now be recognised and implemented.”
Kerfoot said that at times, the department’s decisions appeared to based on incorrect premises and these errors could not be exposed because the officials refused to explain themselves.
The HRC’s senior legal officer, Liesl Gerntholtz, said that the commission had decided to get involved because it had been swamped by complaints about Home Affairs from asylum-seekers and immigrants.
“Refugees are one of our priorities because they are an important human rights issue which this country is going to have to deal with. We have had many complaints from people, ranging from how people are treated by Home Affairs to more serious ones where, for instance, people have been deported to Mozambique without having had a chance to put their case, and in instances when they are not necessarily Mozambican.”
Gerntholtz quoted a case where they had been called to a prison outside Pretoria where Home Affairs was holding refugees in overcrowded cells.
“They were mostly asylum-seekers from Zaire and the Congo and they were not allowed exercise, nor were they allowed to make telephone calls, not to family or to lawyers,” she said.
Gerntholtz said that they had been negotiating with Home Affairs on a range of human rights matters, but the issue of giving reasons for decisions on refugees had been central to talks with the director general, Piet Colyn. She said she was surprised that the department had agreed to the court order by consent, when it had been unable to commit itself to the practice of giving reasons in earlier talks.
Advocate Anton Katz, an adviser to the newly appointed commission investigating future migration and immigration policy, said: “The process of determining refugee status satisfied the constitutional requirements of openness and transparency. Now asylum- seekers know why they are being rejected.
“From the reasons the department gives we will get a clearer idea of what constitutes a refugee in the new South Africa and how the criteria set out by the United Nations are being interpreted by South Africa.
“For 18 months, Leach’s Appeal Board has been hearing appeals by persons who have absolutely no idea what they are appealing against. This court order makes the government accountable for its own decisions.”