How to apply?
The Refugees Act allows anyone to seek asylum on the sole condition that he or she attends in person at a Refugee Reception Office in South Africa. Home Affairs’ officials have a duty to ensure that intending applicants for refugee status are given every reasonable opportunity to file an application with the relevant Refugee Reception Office [Abdi v Minister of Home Affairs]. Section 21(2) of the Act prescribes that the Refugee Reception Officer must accept the refugee application form from the applicant, make sure the form is properly completed, and, where necessary, assist the applicant in this regard. Where practicable and necessary, the applicant must be provided with competent interpretation [Reg. 5(1)]. A temporary asylum seeker permit, usually referred to as a ‘Section 22 permit’, must then be issued to the applicant [Reg. 22(1)] and to each of his or her dependents, if any [Reg. 16(4)].
Regulation 10(1) compels the Refugee Status Determination Officer, aka the RSDO, to conduct a non-adversarial hearing to receive and, where necessary, to elicit information bearing on the asylum seeker’s eligibility for refugee status, notably as far as the area where the applicant comes from is concerned and the situation prevailing in that area with regard to s 3(b) of the Act [Katabana v SCRA]. The RSDO must also ensure that the applicant fully understands the procedures, his or her rights and responsibilities and the evidence presented. A temporary asylum seeker permit, usually referred to as a ‘Section 22 permit’, must then be issued to the applicant
In turn, the applicant must respond to any questions asked by the RSDO regarding his or her identity and the reasons for seeking asylum. The applicant may have counsel or a representative in attendance, present witnesses and submit affidavits of witnesses or other evidence. At the end of the hearing, the applicant’s counsel or representative has the opportunity to make a statement on the evidence presented. Comments may also be submitted in writing [Reg. 10(3) et seq.]. Each status determination must be made on a case-by-case basis [Reg. 12(1)] and the applicant must be given the opportunity to peruse the country data and challenge the prejudicial information considered by the RSDO [AOL v Minister of Home Affairs].
Burden of proof
According to the UNHCR Handbook [para 196], “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt“.
Status determination should begin with the presumption that the claimant is telling the truth [Khan, F & Scheier, T Refugee Law in South Africa (Juta, 2014) 41]. There is a subjective and objective component to a well-founded fear. The subjective component may be based on the applicant’s reaction to events that impinge on his personality, but to make it well-founded fear, there must be other proof of objective facts that lend support to the applicant’s subjective fear [Fang v RAB].
The RSDO has an obligation to provide the applicant with a written decision identifying the reasons for rejecting the application [Act, 24(4)]. These reasons must be adequate [PAJA, s 5(2)] and individualised [Reg. 12(1)] so as to “enable the applicant to make out a proper case on review or appeal” [Khan, F & Scheier, T op. cit 165]. In addition, the decision must be “justifiable in terms of the evidence”, “related rationally to the facts” [Katabana v SCRA] and be free of error of law, such as an incorrect standard of proof [Fang v RAB].