The grounds for review were: 1) the Refugee Appeal Board misinterpreted and misapplied section 3 of the Refugees Act by applying the wrong test; 2) the members ignored the duty to adopt a shared burden of proof; 3) the members misunderstood the purpose of credibility findings and adopted an overly narrow understanding of credibility; and 4) the decisions were all procedurally unfair. 

The Supreme Court accepted that there was a legitimate State interest and concern to ensure that refugee status was granted only to those who qualify. On the issue of whether the incorrect test was applied, persecution was not the only criterion to grant refugee status. The Refugee Appeals Board unjustifiably limited itself to considering whether the eight appellants fled Somalia on the basis that they were persecuted on grounds of political opinion. A narrow view of persecution was considered in the applications for refugee status. On the issue relating to the burden of proof, this was placed exclusively and unfairly on the shoulders of the eight asylum seekers as the courts have endorsed the concept of a shared burden. As regards the third ground of review, the wrong approach was adopted in assessing the credibility of the eight asylum seekers and over-emphasised its importance. On the issue of procedural unfairness, the asylum seekers argued that there was no indication that prejudicial country of origin information was presented for the appellants to contest. 

Country
Date of judgment

Refugee law; refugees; refugee status; application for refugee status; evidence; refugee appeal board; review; judicial review; Refugees Act; fleeing war; fleeing events disturbing public order; civil war

Case citations
[2021] ZASCA 124
Nationality of refugee/asylum seeker
Facts

The first to ninth appellants were asylum seekers who allegedly fled Somalia due to civil war. This case was an appeal against a High Court decision not to review and set aside decisions of the Refugee Appeal Board. The Refugee Appeal Board dismissed the appeals lodged by the eight asylum seekers against decisions of Refugee Status Officers. The matter concerned the legality and fairness of the Refugee Appeal Board process in arriving at its decision to dismiss the appeals.

Decision/ Judgment

The RAB failed to assist the asylum seekers to obtain relevant information and evidence. An impermissibly narrow view of persecution was relied on because the eight appellants were not allowed to respond to what the decision-makers considered adverse to their case, which fundamental fairness dictated. This must be flexibly applied on the issue of a shared burden of proof. Refugees might have little evidence available, and the requirement of evidence must not be strictly applied.

Basis of the decision

The Appeals Authority must observe a fair procedure, which requires it to assist an asylum seeker and to assist in gathering evidence. The inquisitorial and facilitative nature of the proceedings means that an assessment of whether to grant refugee status is more flexible.

Reported by
Supported by the UNHCR