Somali Association of South Africa and Others v The Refugee Appeal Board and Others

Eight Somali asylum seekers fled Somalia between 2007 and 2012 due to civil war, violence by Al-Shabaab militants, and threats to their lives. They applied for refugee status in South Africa but their applications were rejected by Refugee Status Determination Officers (RSDOs). Their appeals to the Refugee Appeal Board (RAB) were also dismissed in decisions between 2014 and 2015. The asylum seekers, supported by the Somali Association of South Africa, applied to the High Court for review of the RAB decisions, alleging procedural unfairness, misapplication of the Refugees Act 130 of 1998, and systemic deficiencies in decision-making. The High Court (Gauteng Division, Pretoria) dismissed their review application. The asylum seekers appealed to the Supreme Court of Appeal. The asylum seekers alleged the RAB had: (1) applied the wrong legal test by focusing only on political persecution under s 3(a) and ignoring s 3(b) of the Refugees Act; (2) failed to apply a shared burden of proof; (3) overemphasized credibility and required certainty rather than a reasonable possibility; (4) breached the audi alteram partem rule by not confronting them with adverse country information; and (5) used template decisions with identical wording and errors.

• Whether the RAB and RSDOs had a duty to assist asylum seekers in gathering evidence and information to present as full a case as possible
• Whether the RAB correctly applied sections 3(a) and 3(b) of the Refugees Act 130 of 1998
• What is the proper standard of proof in refugee status determinations
• Whether the RAB took an impermissibly narrow view of 'persecution'
• Whether the RAB complied with the audi alteram partem principle
• Whether appeals before the RAB are appeals in the wide sense
• Whether a court can substitute its own decision for that of the RAB
• Whether a structural interdict was warranted to address systemic deficiencies in the RAB's decision-making

The appeal was upheld with costs, including costs of two counsel. The High Court order was set aside. The RAB decisions dismissing all eight asylum seekers' appeals were reviewed and set aside. The appeals were remitted to the Refugee Appeals Authority for fresh hearings to commence by 4 October 2021 with decisions to be rendered by 5 November 2021, conducted in accordance with the principles set out in paragraphs 71-92 of the judgment. The respondents were ordered to pay the appellants' costs jointly and severally, including costs of two counsel.

Decision-makers in refugee status determinations (RSDOs and the RAB/RAA) have a statutory duty, arising from sections 21, 24 and 26 of the Refugees Act read with PAJA and Constitutional obligations, to adopt an inquisitorial and facilitative approach by assisting asylum seekers to gather evidence and information to present as full a picture as possible before making a decision. Appeals before the RAB/RAA are appeals in the wide sense, not confined to the RSDO record - the RAB/RAA may make its own enquiries and gather evidence. Both sections 3(a) and 3(b) of the Refugees Act must be considered in determining refugee status - s 3(b) provides for refugee status based on "events seriously disturbing or disrupting public order" without requiring individualized persecution. "Persecution" under s 3(a) must be interpreted broadly to include persecution based on race, tribe, religion, nationality, political opinion or membership of a particular social group, not limited to political persecution. The standard of proof in refugee determinations is a "reasonable possibility" not a balance of probabilities, and must be applied flexibly considering: difficulties refugees face obtaining evidence; the requirement for liberal application of benefit of the doubt; and that credibility is one factor among several, not an absolute prerequisite. The audi alteram partem principle requires that asylum seekers be confronted with adverse information (including country of origin information) and given an opportunity to respond before adverse decisions are made.

The Court made observations about the separation of powers, noting that courts should be cautious not to usurp the functions of administrative bodies with specialist knowledge and experience. Substitution orders should only be granted in exceptional circumstances where the court is in as good a position as the administrator to make the decision and the outcome is a foregone conclusion. The Court noted that while there appeared to be force in submissions about past systemic deficiencies and "obdurate rigidity" in the RAB's approach, the recent amendments to the Refugees Act and new regulations establishing the Refugee Appeals Authority with legally qualified members and clearer procedural obligations may address these concerns, making a structural interdict unnecessary at this stage. The Court acknowledged the legitimate State interest in ensuring refugee status is granted only to those who qualify and in preventing unfounded applications, but emphasized this must be balanced against Constitutional values and international human rights obligations. The Court quoted Pope Francis and author Khaled Hosseini on the human dimension of refugee crises, noting that skepticism by State authorities should be tempered by international obligations and domestic law prescripts.

This judgment is significant in South African refugee law for comprehensively setting out the obligations of decision-makers in refugee status determination processes. It emphasizes that: (1) The process is inquisitorial and facilitative, not merely adversarial; (2) Decision-makers have an active duty to assist asylum seekers in gathering evidence and presenting their cases; (3) Both sections 3(a) and 3(b) of the Refugees Act must be considered, with s 3(b) providing a broader basis for refugee status based on general conditions of violence and public disorder, not requiring individualized persecution; (4) "Persecution" must be interpreted broadly, not limited to political persecution; (5) The standard of proof is flexible - "reasonable possibility" rather than balance of probabilities, with liberal application of benefit of the doubt; (6) Credibility is one factor among many, not an absolute prerequisite; (7) Procedural fairness requires confronting applicants with adverse information; (8) Appeals to the RAB/RAA are appeals in the wide sense, not confined to the RSDO record. The judgment aligns South African refugee law practice with Constitutional values, PAJA requirements, and international best practice reflected in the UNHCR Handbook. It addresses concerns about overly restrictive and formalistic approaches to refugee status determination that were prevalent under the RAB system.