Refugee Appeals Authority

The Refugee Appeals Authority is an independent body which must function without any bias.

Appeals, against asylum applications rejected as unfounded, must be submitted on the prescribed form within 10 working days of receipt of the letter of rejection from the Refugee Status Determination Officer and state the grounds for the appeal.

Failure to appeal will result in the decision of the Refugee Status Determination Officer being considered final. An asylum seeker who fails to lodge an appeal within 10 working days may lodge an application for condonation and provide documentary evidence in support of this application.

An asylum seeker who, having been called to appear at an appeal determination by the Refugee Appeals Authority, fails to appear at the appointed date and time, may have his or her appeal determined on the basis of documents already before the Refugee Appeals Authority at the discretion of the presiding member of the Refugee Appeals Authority.

Before making a decision, the Refugee Appeals Authority may request the asylum seeker to appear before it or to provide any such other information as it may deem necessary. After having determined an appeal, the Refugee Appeals Authority may, confirm, set aside or substitute any decision taken by a Refugee Status Determination Officer.

The Refugee Appeals Authority must refer a matter back to the Refugee Status Determination Officer to deal with such asylum seeker if new information, which is material to the application, is presented during the appeal.

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].