/ 26 February 2015

Refugee wins asylum after 10 years in legal limbo

Refugee Wins Asylum After 10 Years In Legal Limbo

Two important decisions just delivered by courts at opposite ends of South Africa illustrate some of the serious difficulties experienced by refugees and the often “deplorable” way they are treated by officials.

Last week, Abdul Akanakimana, who fled Burundi in 2008 after his family was murdered by rebels, was finally officially given asylum. But it was granted only when the high court in Cape Town agreed to overturn the initial decisions of a refugee status determination office and the standing committee for refugee affairs.

In a similar action, Christian Bolanga, a pastor from the Democratic Republic of the Congo (DRC), was granted asylum by the high court in Durban this week, after battling for a shocking 10 years against administrative incompetence.

Again, his refugee status was granted by court order when a judge overturned his initial rejection by local officials.

Bolanga arrived in South Africa with his wife and young son during January 2005 and immediately lodged an application for asylum with the Refugee Reception Office in Durban. Both that initial application and subsequent appeals were turned down by officials. The first took almost two years to be communicated to him; he was told the result of his unsuccessful appeal more than four years after it was heard.

What happened next is almost unbelievable. Bolanga brought a high court application to review and set aside the earlier decisions. It was opposed by the minister of home affairs in August 2012, meaning the matter had to be resolved in court, but nothing further was heard from the government or its local officials dealing with refugees.

No records of appeal filed
No records of Bolanga’s appeal or initial application were filed, nor any grounds for opposition. When the case was called in court earlier this month, counsel for the minister asked for the matter to stand down so he could ask his client (the minister) for instructions as there was nothing in the files. He later told the court that “all the responsible officials dealing with the matter were in meetings and could not be reached”.

Nothing further was heard from the state by the end of that day – or since. This means that the taxpayer will pay the costs of a case that the state did not defend despite its initial indication of opposition. If in fact there were no grounds to oppose the application, all that time and expenditure could have been saved by an out-of-court settlement.

There was thus, during the hearing, no contest by the state of Bolanga’s claim that the initial appeal was not properly constituted as only one official – rather than three as legally required – heard the matter. Bolanga’s other legal challenges to the way officials handled his application appeal were also uncontested.

In his affidavit he spoke of his persecution, torture and imprisonment and the torture, imprisonment, rape and murder of his family members by fighters on both sides of the conflict in the DRC. He also said should he and his family return they would again be targeted.

Local officials, however, said he had not shown any good reason to be granted refugee status and that it was “unlikely” anything would happen if he returned. The high court said no explanation was given by officials for how they had reached this conclusion. Further, there had been a serious language problem: he spoke no English when he arrived in South Africa and yet was presented with a form in English to complete. He was not offered the help of an interpreter when he made his initial application or when he appealed.

This, said acting judge Guido Penzhorn, clearly contravened the law which requires officials to make sure applicants “fully understand” procedures and evidence presented. Otherwise a hearing “can clearly not be said to be fair”, the judge commented, and, as the state failed to put up any evidence such as a record of the proceedings, or even an opposing affidavit, the court was obliged to accept Bolanga’s claim that he was not given any help by an interpreter.

A number of other crucial criticisms of the way his application had been handled had to be accepted by the court because the state left the claims unanswered.

Having found his criticisms justified, and realising the outcomes of both his initial application and subsequent appeal should be set aside, what was the judge to do next – refer the matter back for an official decision, or make the decision himself?

Judge reluctant to prejudice any longer Penzhorn said if the facts he had been given were placed before the relevant authorities, they would make a “compelling case” for refugee status. He was reluctant to prejudice Bolanga any longer: his case had taken 10 years so far and if he had not found legal representation his matter might never had reached the high court at all.

It was “particularly regrettable” that there was no explanation from officials for why it took almost two years to deal with his application and more than four years for an appeal decision. Calling the situation “deplorable”, the judge added: “One shudders to think of the many thousands of refugees in similar situations … subjected to the same treatment as [Bolanga] by those to whom the law has entrusted their fate.”

In his opinion it was “clearly” not correct for him to refer the whole case back for an official decision. He therefore declared Bolanga was a refugee entitled to asylum and the minister had to issue written documentation to this effect within 10 days – as well as pay the costs of the case.

The earlier matter decided last week concerns Abdul Akanakimana, who arrived in South Africa from Burundi in December 2008. He left after rebels burnt his and his parents’ home to the ground and killed the rest of his family as well as his neighbours.

When he arrived in South Africa he applied for refugee status and asylum but because he understood no English he asked a fellow refugee to help him complete the forms. Obviously he could not check that they were correctly completed. Within two hours his application was rejected. When he appealed some time later he was again turned down so he asked the high court for help.

Officials wasting public money Just as in Bolanga’s case, officials wasted public money in their handling of the matter: it was referred to oral evidence during which all the issues were canvassed and it became clear that officials bungled.

For example, during the oral hearing the refugee who initially interpreted for Akanakimana, Sudi Omar, said on the day he helped complete the form he was “in a hurry to attend to his own affairs” and he did not recall being asked to interpret crucial elements of the initial discussion.

During the oral hearing, officials made concessions about their handling of the matter that scuppered their case. They offered to set aside both decisions on Akanakimana as being wrongly made, and to start the process again with a competent interpreter they would provide. They also agreed to tight deadlines for deciding whether to give him refugee status – this after their earlier extremely lengthy delays.

But the court said that it was no more than an agreement to follow the law this time round. It was “cold comfort”, said Judge Thandazwa Ndita, and there had been no proper explanation for why officials “disregarded” the law. Nor for why they had not granted Akanakimana refugee status as soon as they realised their many mistakes.

Officials’ actions “clearly” showed “dereliction of duty and bad faith”, said the judge, and the written appeal decision had included “substantial misinformation” about the test to be applied in such cases.

Deplorable failure of the system
Though they had a good outcome, these two cases show the high court was manifestly alarmed by officials’ “bad faith” conduct, the deplorable failure of the system and the waste of public money through poor litigation decisions.

James Chapman, a senior attorney at the University of Cape Town’s refugee rights unit, whose staff were involved in the Akanakimana case, said they were thrilled with the outcome “and by the fact that a detailed costs order was made in our favour”, but that it was sad that the question of their client’s status needed to have gone to court at all. It caused considerable extra costs over an issue that was not defensible.

In their experience, the department provided interpreters in most instances but where this did not happen it presented serious problems that were often difficult to rectify.

“Akanakimana is not an isolated case; it illustrates some of the problems applicants for refugee status may experience.” Systemic delays such as those seen in both cases were a double-edged sword: although it was obviously undesirable to make applicants wait for years for a decision, it could also present problems when decisions were made hastily by officials who were not properly trained.

“We have seen cases with incredible delays; it’s not all doom and gloom and the department gets it right in some cases”, particularly where officers have been given proper training.

The deputy minister of home affairs, Fatima Chohan, said the department would need to study the high court judgement in detail before commenting, adding that the appeal board is an independent body.

Happy that nightmare is over

Speaking to the Mail & Guardian by phone this week, Christian Bolanga said both he and his wife had lost their jobs (he as a security guard, and she as a housekeeper) in January 2012, when their asylum-seeker temporary permits were taken away and replaced with one month’s notice to leave the country.

“For 10 years, we were going to home affairs, every one month or two months we had to go there – you feel bad going there; they don’t treat us like human beings there,” he said. “It’s been 10 years of stress.”

He said that the future of his 10-year-old son’s schooling had also been uncertain. “The school kept telling us that if our permit expired, our son couldn’t remain there. So every two months, there was so much pressure.”

Bolanga credited Bradley Naidoo, an associate at a Durban-based law firm, for fighting his case on a pro bono basis for the past three years, after the Refugee Appeal Board had turned down his appeal.

“I’m very surprised at the treatment foreigners receive here,” he said. “I am a pastor, and I serve people in a church here – many of them are facing the same problem we have faced, but they don’t have a Bradley Naidoo to assist them.”

He concluded that his family was looking forward to a fresh start in South Africa. “I can’t go back to the Democratic Republic of the Congo now – my life is here. We’ve just returned from home affairs – for the first time they treated me like a normal person, and told me like a human being that they would call us soon. We are very happy that this matter is finished. Now my kids will get papers to go to school.” – Fatima Asmal