The SCA overturned the decision of the Western Cape High Court and remitted the matter back to the Department of Home Affairs.
Two Burundian women will be able to reapply for asylum-seeker status after their appeal to the Supreme Court of Appeal (SCA) succeeded this week.
The SCA overturned the decision of the Western Cape High Court and remitted the matter back to the Department of Home Affairs.
The amicus curiae in the matter, Scalabrini Centre of Cape Cape Town, welcomed the outcome.
Head of advocacy and legal adviser James Chapman, said: “The Scalabrini Centre is thrilled with the judgment from the SCA, which makes clear provision for sur place asylum applications.
The judgment recognises the importance of protecting people from violence, torture or persecution in cases where new circumstances have arisen that would make it unsafe to return to one’s country.
“The court recognises in the judgment the logic that if there is a change in circumstances in one’s country, like war breaking out, or people of a person’s demographic start to be the subject of persecution, torture or genocide, then South Africa has an obligation to protect the person from being sent back to their country.
“The court pointed out that Home Affairs was ‘wrong’ to require a person to leave the country and apply for asylum while in their country of origin, which would put them at serious risk,” said Chapman.
The high court had dismissed the women’s applications on the basis that a re-submission of an asylum application after the initial one had been unsuccessful amounted to abuse of the asylum system provided for in the Refugees Act 130 of 1998.
After the rejection of their initial applications made in 2014 and being declared as illegal foreigners, they had to leave the country in 30 days after receiving the notice.
However, after four years of not appealing the outcome or going back to Burundi, the appellants averred that circumstances changed in Burundi.
According to their submissions, widespread political violence broke out, following which, thousands of Burundians fled the country and those who remained were subjected to oppression, torture, rape and other forms of violence.
The applicants said that it was therefore not safe for them to return to Burundi, as this would place them at risk of persecution or serious threat to their lives, safety and/or physical freedom.
The judgment read: “The appellants did not explain the nearly four years of inactivity on their part since being informed of the decisions to decline their applications. Be that as it may, the appellants were subsequently interviewed in September 2018. Nothing was heard from the department after the interviews, and after an enquiry by the appellants, an official of the department stated that their case was ‘closed’.”
Judge Tati Makgoka remitted the matter to the department for it to consider the new applications and to establish whether there had been a deterioration in the political situation in Burundi since the appellants left that country and if it was persisting. If the department finds that this was true, it must also be established if the women have a well-founded fear of persecution if they are to return to Burundi.
Enquiries to the Home Affairs Department were not answered by deadline on Thursday.
Cape Times