The matter arose when the applicant sought to review two earlier decisions by the RSDO and RAB, which were to the effect that the applicant’s claim to asylum was unsuccessful.
The High Court considered the findings of the RSDO and concluded in the first instance that the RSDO relied on a number of irrelevant considerations for its ruling, such as that the applicant entered the country with fraudulent papers. Secondly, the RSDO’s finding that the applicant did not discharge the onus to prove that he has a well-founded fear of persecution, did not consider the risk of torture, detention or an unfair trial that the applicant might face in Libya. Thirdly, the RSDO was clearly compromised by the pressures exerted on her by Interpol officials. Accordingly the court held that the RSDO’s decision was fatally flawed and set it aside.
Considering the appeal before the RAB, the court held that the actions of the third respondent, one of the members of the board hearing the matter, as well as the overall contestation of the applicant’s case, amounted to a reasonable apprehension of bias within s 6 of PAJA. The court found that the RAB’s decision falls to be set aside on that basis alone but went on to consider other issues.
Thirdly, the court found that on the facts and supporting evidence, the applicant has a well-founded fear of persecution for his religious and political beliefs and thus declared him to be a refugee for the purposes of the Act. Therefore, the application was successful.
Refugees, asylum-seeker
The applicant, a Libyan national, left his country due to a fear of persecution by his government, for his political opinions. He was a known dissident of the policies and practices of the Libyan government of Colonel Qhadafi. He first left Libya in 1988, on a pilgrimage to Mecca, he later left for Pakistan, where he spent lived and worked for 13 years, with fraudulent documentation.
After losing his job in Pakistan, the applicant fled to Malaysia with his family, fearful that he might be repatriated back to Libya, he obtained a false South African passport. The applicant was arrested in Jakarta, Indonesia, and deported to South Africa, where he was arrested again and interrogated by South African and foreign intelligence officers but later released, when he applied for asylum. He was granted an asylum seeker’s permit, in terms of s 22 of the Act but inexplicably, he remained in unlawful detention for some time.
The applicant was arrested again, on an extradition request by the Libyan government. Since South Africa does not have an extradition agreement with Libya, it was for the President to consent to the extradition request, if he so choose. He did not.
The applicant, without the knowledge of his lawyers, was collected from prison by the Interpol officials and brought before the Department of Home Affairs, where he appeared before the RSDO, who admitted to being pressured by Interpol to give a negative decision. She gave that decision on March 2005.
The application was successful.
The proceedings before the RSDO and the RAB were fatally flawed because in the initial hearing, the RSDO gave a negative decision because of external pressure, which compromised her integrity and independence. Whereas in the matter before the RAB, there was a reasonable apprehension of bias and the finding that the applicant does not have a well-founded fear of persecution, was unfounded and fell to be set aside.