Refugee Appeal Board

The Refugee Appeal Board determines appeals lodged against decisions rejecting claims for refugee status as being unfounded. Unless good cause is shown [RAB 4.5], the notice of appeal must be filed in person within 30 days of receipt of the letter of rejection at the refugee centre where that letter was handed to the asylum seeker [Reg. 14(1); RAB 4.1].

The Appeal Board may either confirm, set aside or substitute the decision taken by an RSDO [Act, 26]. Before reaching a decision, the Appeal Board may (i) invite the UNHCR representative to make oral or written representations; (ii) refer the matter back to the Standing Committee for further inquiry and investigation; (iii) request the attendance of any person who, in its opinion, is in a position to provide the Appeal Board with relevant information; (iv) of its own accord make further inquiry or investigation; and (v) request the applicant to appear before it and to provide any such other information as it may deem necessary.

Section 15 of the Refugees Act provides that, in the case of the Refugee Appeal Board, meetings must be convened by the chairperson and that the majority of members constitute a quorum; thus at least two persons have to be present, at a minimum. Further, the decision must be taken by a majority of votes. It is therefore required that the Refugee Appeal Board sit with its full complement of members or, at the very least, two. A decision of the Refugee Appeal Board, made by only one member, is invalid and must be set aside [Harerimana v RAB].

Burden of proof

In FNM v RAB, the North Gauteng High Court found that by simply stating that the burden of proof rested on the appelant and failing to carry out or use its inquisitorial and facilitative powers under s. 26 of the Act, the Refugee Appeal Board acted in a procedurally unfair manner.

Confidentiality matters

In Mail & Guardian Media Ltd v Chipu, the Constitutional Court declared s. 21 (5) to be inconsistent with s. 16 (1) (a) and (b) of the Constitution ‘to the extent that it precludes members of the public or the media from attending proceedings of the Refugee Appeal Board in all cases and fails to confer a discretion upon the Refugee Appeal Board to allow the public and media access to its proceedings in an appropriate case.’ This declaration of invalidity is to be suspended for a period of two years to enable Parliament to correct the constitutional defect in s. 21 (5).

Pending the correction of the defect, or the expiry of the two-year period, whichever occurs first, s 21 (5) is to be read as follows: ‘The confidentiality of asylum applications and the information contained therein must be ensured at all times, except that the Refugee Appeal Board may, on application and on conditions it deems fit, allow any person or the media to attend or report on its hearing if- (a) the asylum seeker gives consent; or (b) the Refugee Appeal Board concludes that it is in the public interest to allow any person or the media to attend or report on its hearing, after taking into account all relevant factors including- (i) the interests of the asylum seeker in retaining confidentiality; (ii) the need to protect the integrity of the asylum process; (iii) the need to protect the identity and dignity of the asylum seeker; (iv) whether the information is already in the public domain; (v) the likely impact of the disclosure on the fairness of the proceedings and the rights of the asylum seeker; and (vi) whether allowing any person or the media access to its proceedings or allowing the media to report thereon would pose a credible risk to the life or safety of the asylum seeker or of his or her family, friends or associates.’

Right to an hearing

The fact that s 26(4) of the Refugees Act provides that the Appeal Board must allow legal representations upon request of the applicant implies that (1) the applicant is entitled to be present at the hearing and (2) must be given notice of the hearing to be able to request and arrange legal representation [AOL v Minister of Home Affairs].