The court noted that in terms of the Refugees (Recognition and Control) Act the decision of the minister was final. Thus, in the absence of any statutory law that placed an obligation on the minister to ensure that the conditions of the country of origin were safe before repatriating refugees, the minister was not obliged to do so under the Act.

The court determined whether it could interdict the process given the circumstances. The court found that the Tripartite Agreement created an obligation for the safe repatriation of refugees. The applicants as beneficiaries of the Agreement had an enforceable right if there was a breach of the Agreement.

Country
Issuing court
Date of judgment

Refugee law; refugee status; political persecution; return; repatriation; deportation

Case citations
[2016] 1 BLR 321 (HC)
Nationality of refugee/asylum seeker
Facts

The applicants were granted refugee status on various dates between 1998-2002. In 2002, the governments of Botswana, Namibia and the United Nations High Commissioner for Refugees (UNHCR) formed a tripartite commission (the Commission) charged with facilitating the return of the applicants to Namibia and ensuring that the conditions for their return were ideal. 

A decision was made by the Botswana Government under the provisions of the Refugees (Recognition and Control) Act to revoke the applicants’ refugee status post 31 December 2015. The decision was endorsed by both the Namibian Government and the UNHCR. The applicants opposed the repatriation for fear of being persecuted.

This was an application for an order staying the repatriation of the applicants to Namibia.

Decision/ Judgment

The interim order was granted, staying the implementation of the repatriation and/or deportation of the applicants to Namibia.

The applicants were awarded costs of the application.

Basis of the decision

The Tripartite Agreement created an obligation for the safe repatriation of refugees. The applicants as beneficiaries of the Agreement had an enforceable right if there was breach of the Agreement.

Reported by
Supported by the UNHCR