The court held that the applicants were prejudiced because they were not provided with professional assistance to articulate and motivate their fear. They were all under the age of 16. The adverse finding regarding their fear of persecution, the failure to provide them with the assistance of a person conversant with child mentality was an irregularity that vitiated the proceedings before the Refugee Status Determination Officer (RSDO).
The court held that by simply referring to the normal civil standard, the RAB imposed too onerous a burden of proof. It was clear that allowance had to be made for the difficulties that an expatriate applicant could have to produce proof. It was also clear that there was a duty on the examiner himself to gather evidence. Another factor that was relevant was the duty cast on the examiner by the best interests of the child principle. The normal onus in civil proceedings was inappropriate in refugee cases. The enquiry had an inquisitorial element. The burden was mitigated by a lower standard of proof and a liberal application of the benefit of doubt principle.
The court further held that the applicant’s claim could be accommodated under s 3(a). The human right abuses to which they would be exposed as young girls could be described as persecution on account of their membership of a social group, namely that of female children. To the extent that the children could not be able to articulate the fear of such persecution it had to be presumed in their best interest.
Children's rights; Asylum seeker(s); minors; application for asylum; application for refugee status; irregularity; burden of proof in application for refugee/asylum status; civil proceedings; female children; fear of persecution; membership of social group
The instant application sought to review the decision of the Refugee Appeal Board (RAB) that denied asylum to the applicants. The applicants argued that the board erred: by failing to consider the best interests of the child when dealing with the application for asylum; by using the wrong standard of risk for the purposes of s 3(a) of the Refugee Act (real risk instead of well-founded fear; and applying the wrong standard of proof in respect of applications for asylum brought by unaccompanied minors (in normal parlance, orphans).
The respondents contended that the appropriate test in respect of the burden of proof was that of “real chance”; that within the extensive body of human rights data there was no evidence to show that the appellants would be at risk in their country of origin.
The court held that RSDO and the RAB seemed to accept that the mere fact of a peace agreement and the establishment of a transitional government, transformed the DRC into a peaceful country. The evidence was that in spite of all that tension persisted and abuses by armed groups, even government troops, continued. There was therefore not sufficient evidence of a cessation of the circumstances that entitled the applicants to refugee status. Therefore, the decisions of the RSDO and the RAB should be reviewed and set aside.
Allowance had to be made for the difficulties that an expatriate applicant may be required to produce proof. It was also clear that there was a duty on the examiner himself to gather evidence. Another factor that was relevant was the duty cast on the examiner by the best interests of the child principle. The normal onus in civil proceedings was inappropriate in refugee cases.