The well-intended objects sought to be achieved by the South African government via the Refugees Act 130 of 1998 (the Act) are not immune from abuse by fraudsters masquerading as asylum seekers. The Act articulates government’s objects as being to: give effect within the Republic of South Africa to the relevant international legal instruments, principles and standards relating to refugees; provide for the reception into South Africa of asylum seekers; regulate applications for and recognition of refugee status; provide for the rights and obligations flowing from such status; and provide for matters connected therewith.
Although equally well-intended, the presumption per paragraph 39 of the United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) that an asylum claim is well-founded until it is rebutted by the relevant Refugee Status Determination Officer (RSDO) has its own difficulties. And so is the inviolable international proscription endorsed in Section 2 of the Act that a host country cannot refuse entry into the Republic; expel; extradite or return an asylum-seeker to home country before the asylum claim is fully determined by the relevant administrative and or judicial bodies.
Section 4 of the Act allows RSDOs to deny refugee status to a person in respect of who there is reason to believe that s/he has committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes; or has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment; or has been guilty of acts contrary to the objects and principles of the United Nations Organisation or the Organisation of African Unity; or enjoys the protection of any other country in which he or she has taken residence. However, a conclusion by the RSDO that a person is ineligible for refugee status on any of the grounds under Section 4 of the Act only follows after state resources and time have already been exhausted. Nonetheless and no doubt, the status determination process remains a necessary endurance.
The asylum application process
The asylum application process is described under sections 21, 22; 24, 25 and 26 of the Act, read together with section 6 of the Promotion of Administrative Justice Act 2 of 2000. As the custodian and administrator of the Refugees Act [including the Immigration Act 12 of 2002], the Department of Home Affairs has established and entrusted the Refugee Reception Offices to deal with asylum applications. Within Refugee Reception Offices are designated Refugee Reception Officers (RROs) and RSDOs (Section 8(2)). The role of RROs is generally described under Section 21 to receive and process asylum applications. Under this process an asylum seeker completes an Eligibility Determination Form for Asylum Seekers and in it must state, inter alia, ‘information on country of origin; the reasons why he seeks asylum; information on previous criminal convictions, the date and nature of the crime(s) committed; whether he is already recognised by the United Nations High Commission for Refugees; and finally, a declaration that the information provided in the Form “is to the best of my knowledge true and correct.”
Once the Eligibility Determination Form is completed, the RRO will review its contents, ensure that it is properly completed; may conduct such enquiry as s/he deems necessary in order to verify the information furnished in the application; make preliminary comments and then submit the application to the RSDO who will in turn deal with it in terms of Section 24 of the Act. Section 22(1) provides that the RRO must, pending the decision of the RSDO on the application, issue to the applicant an asylum seeker permit in the prescribed form allowing the bearer to sojourn in the Republic temporarily, “subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the [RRO] on the permit.”
Section 21(4) proscribes the institution or continuation of proceedings against a person in respect of unlawful entry into or presence within the Republic “if –
- such person has applied for asylum .... until a decision has been made on the application and, where applicable, such person has had an opportunity to exhaust his or her rights of review or appeal in terms of Chapter 4; or
- such person has been granted asylum.”
Section 24 provides that the RSDO may upon receipt of the asylum application from the RRO and in order to make a decision, request any information or clarification s/he deems necessary from the applicant or the RRO. The RSDO may also, where necessary, consult with and invite a UNHCR representative to furnish information on specified matters; and may with the permission of the asylum seeker, provide the UNHCR representative with such information as may be requested. At the conclusion of the interview the RSDO must grant asylum; or reject the application as manifestly unfounded, abusive or fraudulent; or reject the application as unfounded; or refer any question of law to the Standing Committee for Refugee Affairs (SCRA)(s.24(3)).
Section 24(4) requires that the RSDO furnish written reasons to the applicant within five working days after the date of the rejection or referral, if an application is rejected as manifestly unfounded. The RSDO must also submit the record of proceedings and a copy of the reasons of the decision to SCRA within 10 days after the date of rejection or referral. Through its supervisory and monitoring role over the work of RROs and RSDOs, SCRA has a duty to review a decision submitted to it by the RSDO. It may invite the UNHCR representative to make oral or written representations; request the attendance of any person who is in a position to provide it with information relevant to the matter; on its own accord make such further enquiry and investigation into the matter as it may deem appropriate; and request the applicant to appear before it to provide such other information as it may deem necessary (s.25). SCRA may confirm or set aside the RSDO decision; and must decide on a question of law referred to it by the RSDO; and refer the application back to the RSDO with the necessary directives in line with which the RSDO must decide it. It also has a duty to inform the RSDO of its decision in a prescribed manner and within the prescribed time.
Examples of Potentially Fraudulent or Abusive Asylum Claims
Fraudulent or abusive nature of the asylum claims is almost obvious to the RROs and RSDOs for all the officials can immediately notice is a story or information that is far divorced from the definition of refugee status under Section 3 of the Act. Less complicated examples of fraudulent applications include when an asylum seeker simply states that the reason they left their country to South Africa was to improve their economic situation. It is fraudulent because the applicant joined and clogged a wrong queue of otherwise legitimate asylum seekers when the correct queue was within reach in the country of origin, where s/he ought to have applied for a passport, and then a visa via a South African embassy there before embarking on an illegal trip to the country. That process is regulated under the Immigration Act 13 of 2002. Another example is of someone who came to South Africa on a valid passport and visa, but who for reasons unconnected for fear of persecution, is unwilling to return to their home country when the visa expires, but decides to apply for asylum purely to remain in the country to undermine the objects of the Refugees Act and circumvent the objects of the Immigration Act (that being namely, to provide for the regulation of admission of persons to, their residence in, and their departure from the Republic; and for matters connected therewith).
In his book ‘Of Myths and Migration: Illegal Immigration into South Africa (2003 Edition, page 110)’ author, Hussain Solomon, shares what I consider to be a perfect example of the fraudulent or abusive nature of some asylum applications, and equally, of the unintended effects of the presumption that an asylum seeker is considered to have a legitimate asylum claim until proven otherwise by the RSDO. Solomon’s example is as follows:
“Soon after Mobutu Sese Seko and the capture of Kinshasa by Kabila’s forces, four generals loyal to Mobutu arrived in South Africa claiming refugee status. While their appeal for refugee status was still being processed, Aziz Pahad, South Africa’s Deputy Foreign Minister, announced that Kabila’s government wanted these generals back to stand trial for corruption. South Africa’s human rights obligations under the 1951 UN Convention, however, prevented Pretoria from handing them to Kinshasa until their claim to refugee status was proven to be unfounded.
While the tedious process of the verification of refugee status continued, the generals set up the National Front for the Liberation of Congo from the sale of R32 million worth of cobalt which they had had in their possession shortly before fleeing Kinshasa. The group aimed to hire mercenaries and to launch military attacks from the Southern Congo, Zambia and Angola in order to get these to secede from the rest of the DRC [Democratic Republic of Congo] by military means. The planning for this intervention and the hiring of mercenaries were done while the generals were in South Africa awaiting verification of their refugee status claim.
The end-result was that the generals were denied refugee status, but before they could be repatriated to Kinshasa, they had left the country.”
The allegations of criminal activities made against Donovan Krejcir on page 21 of Zondo J’s judgment in Mail and Guardian Media Ltd and Others v Chipu N.O. and Others (CCT 136/12)  ZACC 32, paragraph 36, if found to be true, would render his application for asylum in the country fraudulent and an abuse of South Africa’s asylum system. The same would apply to former Rwandan general, Faustin Kayumba Nyamwasa’s asylum claim if the Court in the ongoing matter of CoRMSA [Consortium for Refugees and Migrants in South Africa] v the President of the Republic of South Africa & Others, Case No. 30123/11 (Gauteng Provincial Division of the High Court), agrees with CoRMSA’s argument over his unfitness to be accorded refugee status in the country.
Lukombo v Minister of Home Affairs and Others (2013/13552) [2013 ZAGPJHC 142 (13 June 2013]), offers another practical example of fraudulent asylum applications. In this case the court found that Lukombo had applied for asylum three times, each time using different names as Samuel Papi (his father’s name); Ardy Mukula; and finally as Mankula Lukombo. On the first two occasions, he was successively issued with new asylum seeker permits, but was thwarted on the third attempt and warned that he had committed fraud. He had immediately fled and evaded arrest until he was finally captured and sent to Lindela for deportation. The court dismissed an urgent application for his release with an adverse costs order.
I am tempted to agree with CoRMSA in arguing (in its written submissions to the Court in the abovementioned case) that:
The converse would in my view otherwise likely fortify the lay public’s perception and others’ argument that South Africa is a banana republic, a safe haven for even fugitives from justice or fraudsters. Excluding such persons from refugee status, irrespective of their social or other standing would go a long way in preserving the sanctity of refugee protection in the country. If Hussain Solomon’s example; and that of CoRMSA and Mail and Guardian Media Ltd cases above are anything to go by, South Africa could as well be hosting warlords; perpetrators of human rights violations; or assassination squads masquerading as victims of persecution.
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- Lesirela Letsebe (BIuris LLB (University of Limpopo), LLM (University of Pretoria) is an attorney at Lawyers for Human Rights in Johannesburg.