The court determined whether the appellant had a well-founded fear of being persecuted for reasons of political opinion or membership of a particular social group, in terms of section 3(a) of the Refugees Act 130 of 1998.
The court noted that the appellant bore the onus to prove his well-founded fear of persecution. The fear is “supported by an objective situation” that is assessed in subjectivity. He failed to discharge the onus for three reasons: first, he did not prove that he would be arrested if he returned to China. Second, the one-child policy was a law of general application that applied uniformly to all. Third, "parenthood" did not qualify as a social group in international refugee law.
Well-founded fear of persecution; political opinion; membership of a particular social group; onus of proof; violation of a law of general application
The appellant, a Chinese national, fled the People’s Republic of China (‘China’) after the violence of the 1989 Tienanmen Square protests. After having stayed in Lesotho, he entered South Africa in 1991. Initially, he was granted a temporary residence permit and a work permit. When his residence permit was revoked in 1996, he applied for asylum in South Africa. He feared prosecution upon return to China since he had voiced his opinion concerning the Tienanmen Square massacre and participated in protests. He also feared prosecution for violating China’s one-child policy since he had four children. His application for asylum was rejected, and an administrative appeal against that decision failed.
The matter was dismissed with costs.
In assessing the onus of proof, the High Court relied on section 3 of the Refugee Act 130 of 1998 and article 1A of the 1951 United Nations Refugee Convention, as well as interpretations of the Convention by scholars and the UNHCR Handbook. With regard to determining the criteria for membership of a particular social group, the court relied on previous case law from the UK, Canada, and Australia.