The North Gauteng High Court in Pretoria has issued a scathing indictment of the quality of administrative decision-making in South Africa’s asylum seeker process.

Handing down judgment on Thursday last week in the matter of FNM v the Refugee Appeal Board and Others (Case number 71738/2016), Judge AJ set out a scathing indictment of the quality of administrative decision-making in South Africa’s asylum seeker process.

The applicant in the matter 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 and 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 (LHR) launched these judicial review proceedings on his behalf, to challenge the procedural and substantive unfairness of these decisions.

In his judgment, Judge Dodson chastises the RAB for failing to adopt the requisite inquisitorial and facilitative approach in its interview with the applicant and failing to make use of its full powers under the Refugees Act. 

The courts have in the past criticised the Department of Home Affairs (DHA) for failing to give effect to asylum seekers’ right to just administrative action and exercise the powers afforded to it by the Refugees Act. 

In his ruling last week, Judge Dodson also criticises 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 inordinately 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 RAB 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 RAB,” 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 our 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 our society.

LHR’s Head of Strategic Litigation Programme’s Wayne Ncube said: “We welcome this judgment and hope that DHA and the RAB takes the critiques raised in it 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 DHA and RAB 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.”