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Kalisa v Chairperson of the Refugee Appeal Board and Others (17413/2017) [2018] ZAWCHC 156

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Kalisa v Chairperson of the Refugee Appeal Board and Others (17413/2017) [2018] ZAWCHC 156

23rd November 2018

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[1] The applicant was born in Burundi. He left there as a young child in 1994 when his parents fled with him to neighbouring Rwanda, reportedly because of the persecution to which his father was subjected at the time by reason of his affiliation to an ethnically aligned political grouping known as the ‘Union pour le Progrès National’.  It is well known that Burundi is a country with a long history of violent ethnic hostility between the Hutu and Tutsi elements of its population.

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[2] According to the applicant his family lived a hand to mouth existence in Rwanda, where they were denied any civic rights and forced to survive on the margins of society.  This did not, however, prevent him from being politically active in Rwanda.  According to his evidence in this court he joined or aligned himself with an opposition political movement there.[1]

[3] In 2005, at the age of 18, the applicant left Rwanda and came to South Africa, where he applied for asylum.  The application was refused by the refugee status determination officer at the refugee reception centre at Port Elizabeth in 2007.  The applicant lodged an appeal against that decision to the Refugee Appeal Board, as provided in terms of s 26(1) of the Refugees Act 130 of 1998 (‘the Act’).  The Appeal Board gave the applicant notice of a date in March 2008 upon which his appeal would be considered, and advised that he might appear before it on that day to make further representations in support of his application for asylum.  The applicant failed to appear at the hearing, and it would appear the appeal was dismissed on account of his non-appearance without any consideration of the merits of the matter.

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[4] It was around the time of his appeal to the Refugee Appeal Board that the applicant relocated from Port Elizabeth to Cape Town, where he found fixed employment.  On arrival in Cape Town he reported to Cape Town refugee reception centre for the purpose of renewing the asylum seeker permit that had been issued to him in terms of s 21 of the Act pending the final determination of his application for asylum.

[5] Soon after the applicant’s arrival in Cape Town widespread incidents of xenophobic violence broke out against foreign nationals of African origin living locally.  He was one of many such people who took refuge in a facility set up by the government at the Youngsfield military base in Wynberg to shelter targets of the xenophobia.  Apparently at the insistence of officials of the Department of Home Affairs, the applicant submitted a fresh application for asylum while he was at Youngsfield.  That was during 2008.

[6] After the violence had subsided, and he was able to go back to work, the applicant continued to report periodically at the relevant Cape Town offices of Home Affairs for the extension of his asylum-seeker’s permit.  It was when he presented there on 18 August 2017 that he was first informed that his aforementioned appeal to the Refugee Appeal Board had been unsuccessful and given a limited period within which to leave the country.  (His 2008 application for asylum had in the meantime also been rejected as ‘unfounded’.  He lodged an appeal against that decision in 2013.  Upon being given notice that the result of that appeal was available for collection the applicant went to ground, and for a period of 22 months thereafter neglected to extend his asylum seeker’s permit.)

[7] As to be expected, having regard to the many years that had passed since his arrival in the country, the applicant had by 2017 established a life for himself here.  Not only had he been in fixed employment for several years, he had also met and formed an intimate relationship with a woman from the Democratic Republic of the Congo, Ms Jolie Tuyishime, who is also living here.  The relationship resulted in a child being born to them in 2015.[2]  The applicant has testified that he subsequently married his partner by customary rites; apparently the rites of one or the other of their places of origin, no particularity has been provided.  They have since become parents to a second child.  Ms Tuyishime was granted formal refugee status in South Africa on 23 March 2015.  The certificate issued to her in this regard reflects her marital status as single.  The information endorsed on the certificate suggests that she was interviewed by a refugee reception officer on 10 February 2015.

[8] The applicant did not leave the country, as directed.  His position became critical when his employers gave him notice that they were obliged to dismiss him because he had become an illegal alien.  He then approached the Refugee Law Clinic at the University of Cape Town.  The Law Clinic assisted him with the institution of the current proceedings whereby, in the first stage, in terms of an order granted by agreement between the parties,[3] he obtained the interim regularisation of his residence status pending the determination of his application, in a second stage of the proceedings, for the judicial review and setting aside of the rejection of his application for asylum.  This judgment deals with the review application.

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