Wednesday February 13, 2019

Lawyers for Human Rights (LHR) has described the Pretoria high court’s decision to dismiss an application by eight Somali asylum seekers to review their rejected applications as shocking.

The head of LHR’s strategic litigation programme, Wayne Ncube, said the organisation intended to appeal the decision. “We feel it does not reflect the facts in the papers or take into consideration judicial precedence from superior courts or the prevailing country information from Somalia,” he said.

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Ncube said he couldn’t comment further, but that LHR intended to reflect on their criticism of the decision in greater depth in the appeal.

LHR acted on behalf of the eight asylum seekers, who fled Somalia and came to South Africa at various times from 2007, when the war in Somalia was at its zenith. Officials at the refugee reception offices (the first port of call for asylum seekers once they are granted entry to the country) declined all eight of their asylum applications.
They appealed, but the understaffed and under-resourced Refugee Appeals Board (RAB) again denied them.

In their appeal to the high court, the applicants highlighted a number of errors in making their case, including that the RAB had a “restrictive interpretation” of the term “persecution”. But Judge Dunstan Mlambo, the judge president of the Gauteng division of the high court of South Africa, dismissed the appeal suit.

‘Everyone under threat’

In his judgment, Mlambo said it was “immediately apparent” that the RAB had focused on when the asylum seekers were personally exposed to “conduct amounting to persecution”.

“The RAB considered whether each of the asylum seekers was exposed to any personal threat or harm leaving them with no option but to flee Somalia … [The RAB] considered the situation insofar as it related to each applicant. In this regard, the RAB considered if the asylum seekers had other family members living with them when they decided to leave Somalia,” Mlambo said.

“The basis for this approach is clear. If the civil war was the reason for the asylum seekers to flee Somalia, clearly the violent circumstances presented by that armed conflict cannot be selective, everyone living in the affected area would have been under threat.”

On this basis, Mlambo agreed with the refugee reception offices and the RAB, and concluded that the eight asylum seekers’ lives were not threatened, nor would they be under threat should they return to Somalia.

He said the criticism levelled against the RAB’s approach to the asylum seekers’ applications was misconceived and that there was no foundation for them to argue that the RAB had applied a “restrictive interpretation of the term ‘persecution’”.

The eight applicants’ experiences of persecution in Somalia include threats, intimidation, close friends and family being killed during the civil war and being caught in the crossfire.
Threats, kidnapping and torture

One of the applicants worked for a non-governmental organisation (NGO) based in the Somali capital of Mogadishu, where he started receiving threats from members of militant group Al-Shabaab. He left his job soon after this.
His brother-in-law, who also worked for an NGO, started receiving death threats from Al-Shabaab and, not long after, was assassinated by members of the group.

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He returned to his NGO job and, soon after this, men he believed belonged to Al-Shabaab kidnapped and tortured him and a friend.

He said that after two weeks in captivity, he managed to escape his captors and flee to a government-controlled area in Mogadishu. Here, soldiers arrested him and accused him of being a member of the very same organisation from which he had just escaped.

They later released him from detention and, while saving up to flee Somalia, he continued to receive threatening phone calls from Al-Shabaab until he fled the country in January 2011 and arrived in South Africa in March that same year.
Bombed and injured

Another one of the applicants owned a stall in Bakaara Market, Mogadishu’s largest open-air market. In 2006, he was severely injured when a rocket landed in the market. The following year, another bomb exploded in the vicinity of his stall in the same market, killing a number of people.

The man said that, in 2009, a group of Al-Shabaab members raided his home and killed a friend who had been living with him while away from home. When he got home, he found they had kidnapped one of his neighbours as well. Soon after this, he started receiving threatening calls, accusing him of working for the government.

In his application, the man said that even though he didn’t work for the government, just being suspected or accused of doing so had put his life in danger. He fled from Somalia in October 2009 and arrived in South Africa in February the following year.
Living in fear

Another one of the applicants said he witnessed many battles in Mogadishu and was living in constant fear. Al-Shabaab members killed his brother and, in October 2008, he was caught in the crossfire during fighting and shot in the upper thigh.

He was only released from hospital in June the next year and left Somalia in October 2009, arriving in South Africa on December 10.

Despite these and similar stories about their experiences in Somalia, Mlambo agreed with the RAB’s decision to reject their applications.

“The RAB found that it could not believe the applicants on their versions that they were personally at risk and that they were forced to flee Somalia. In fact, where the RAB made credibility findings, this is borne out by the facts before it,” he said.

Mlambo concluded by saying that the applicants had “presented hopelessly inadequate cases and the RAB can therefore not be faulted for denying them refugee status”.

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