An evaluation of South Africa's application of the OAU refugee definition

Refuge

Volumn 25, Issue 2, 2008, Pages 53-63

  Schreier, Tal Hanna ^a  

^a UNIVERSITY OF CAPE TOWN   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; GOVERNANCE APPROACH; IMMIGRATION POLICY; REFUGEE; RESEARCH WORK; VIOLENCE;

SOUTH AFRICA;

EID: 77955735217     PISSN: 02295113     EISSN: None     Source Type: Journal    
DOI: 10.25071/1920-7336.26031     Document Type: Article

References (66)

1. 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted on 10 September 1969 by the Assembly of Heads of State and Government, CAB/LEG/24.3 (entered into force on 20 June 1974 [OAU Convention].
2. The Addis Ababa Document on Refugees and Forced Population Displacements in Africa, adopted by the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, Addis Ababa (8-10 September 1994) at para. 3.
3. The OAU Convention firstly, in Art 1(1), repeats the Refugee Convention refugee definition (with the 1967 Protocol's addition, which removed the geographical and temporal limitations from same) and then includes this additional definition of a refugee at Art 1(2): ... the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
4. Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (entered into force 22 April 1954) [Refugee Convention); and Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (entered into force 4 October 1967).
5. Section 3(a) and 3(b) of the South African Refugees Act 130 of 1998 [Refugees Act].
6. M. Rankin, "Extending the limits or narrowing the scope? Deconstructing the OAU refugee definition thirty years on" (UNHCR Working Paper No. 113, April 2005) at 12, online: (date accessed: 2 January 2008).
7. L. de la Hunt, "Refugee Law in South Africa: Making the Road of the Refugee Longer" in A Reference Guide to Refugee Law and Issues in Southern Africa (Lusaka: Legal Resources Foundation, 2002) at 34. De la Hunt supports this inclusive interpretation, claiming that the OAU definition should "apply universally and equally to all applicants, regardless of their country of origin."
8. Section 35 of the Refugees Act, entitled "Reception and accommodation of asylum seekers in event of mass influx," provides the Minister with the ability to grant refugee status to a group or category of persons, although what is meant by a group of persons is unclear.
9. The concept of "prima facie refugee determination" refers to the provisional granting of refugee status to a person or persons without the formal requirement of conducting an individual refugee status determination to establish whether or not the displaced person(s) qualify. Rather than the granting of refugee status based on a legal definition, prima facie refuge determination is essentially a device or a method to enable, in urgent situations such as a mass influx, appropriate protection measures to be taken when individual refugee status determination procedures are impractical. According to the UNHCR, in effect it is the number of refugees that triggers the mechanism for prima facie refugee status. See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1992), 13, at para. 44.
10. I. van Beek, "Prima facie asylum determination in South Africa: A description of policy and practice" in Perspectives on Refugee Protection in South Africa, ed. J. Handmaker, L. de la Hunt, and J. Klaaren (Pretoria: Lawyers for Human Rights, 2001), 18.
11. Ibid.
12. Department of Home Affairs, Directorate of Refugee Affairs, 2006 Annual Report on Asylum Statistics (January 2007), obtained by author from the UNHCR branch office in Pretoria; on file with author). This report states (at 4) that "during 2006, Refugee Affairs experiences multifaceted challenges in dealing with mass influx of asylum seekers"and states (at 6) that "the mass influxes of asylum seekers have overwhelmed the already fragile refugee services."
13. J. du Plessis, "Home Affairs puts in overtime" Pretoria News (28 April 2008).
14. Supra note 12 at 4.
15. Supra note 12 at 6 confirms that this practice still takes place, in order to "lessen administrative load of refugee offices, then redirect manifestly unfounded cases to relevant directorates and finally provide assistance to deserving asylum seekers."
16. A. Tuepker, "On the Threshold of Africa: OAU and UN Definitions in South African Asylum Practice" (2002) 15:4 Journal of Refugee Studies 418.
17. Supra note 7 at 36.
18. Ibid, at 35.
19. Ibid.
20. Ibid, at 36. This practice is confirmed by the author's personal experience, having through the course of her employment, read hundreds of RSDO's rejection letters, which predominantly state that the asylum seeker does not qualify for refugee status because while he or she showed fear of past persecution, it could not be found that he or she would be persecuted upon return to the country of origin.
21. Ibid, at 36.
22. Supra note 13, in which the Department of Home Affairs estimates that "between 1000 to 2000 foreigners were trying to apply for [asylum seeker] permits every day."
23. Supra note 16 at 413.
24. Supra note 7 at 36.
25. Section 36 of the Refugees Act allows the Minister to withdraw refugee status from someone who ceases to remain a refugee for the reasons set out in Section 5 of the Refugees Act.
26. Pro forma letter appended to each Bl-1155 Form (Refugee Regulations, 2000), also referred to as the Section 24 Refugee Status document.
27. For example, by focusing on the first instance decision and allowing the appellant to argue grounds of appeal regarding same.
28. According to first-hand observations by the author between 2006 and 2008, the Appeal Board practice indicates this position. In this regard, the Board members usually advise the appellant that the appeal hearing is a de novo one. Furthermore, the Board members rarely refer to the appellant's file in order to confirm or dispute any facts stated at the Appeal, and reference by the appellant or his or her legal representative to an error made by the RSDO at first instance is usually only acknowledged by the Board member but not dealt with in detail.
29. Currently on the Department of Home Affairs website, online: (accessed on January 28,2008). Incidentally, there exists no statutory obligation on the Board to report its decisions, in terms of the Refugees Act, its Regulations, or the Appeal Board Rules 2003.
30. Email response to author's question by Refugee Appeal Board Chairperson, Mr. Tjerk Damstra, July 3 2007 (notes on file with the author).
31. In a conversation with the author on 7 February 2008 (notes on file with the author).
32. Email response to authors question by Refugee Appeal Board Chairperson, Mr. Tjerk Damstra, 4 January 2008 (notes on file with the author).
33. Section 26(1) of the Refugees Act.
34. Upon providing the author with these decisions, the Chairperson of the Appeal Board requested the author to protect the anonymity of the appellants, hence the use only of the Appeal Board decision number to identify the decision reviewed.
35. Refugee Appeal Board decision number 159/2004 at 3.
36. Ibid, at 7.
37. Refugee Appeal Board decision number 418/05 at 6.
38. Ibid, at 7.
39. The Michigan Guidelines on Weil-Founded Fear, Third Colloquium on Challenges in International Refugee Law Convened by the Program in Refugee and Asylum Law, University of Michigan Law School, March 26-28, 2004, online: (accessed 25 January 2008).
40. Ibid, at 4-5.
41. Section 5(l)(e) of the Refugees Act.
42. Prior to the Refugees Act being implemented, the Standing Committee for Refugee Affairs was the body that was responsible for individual refugee status determinations in South Africa.
43. Refugee Appeal Board decision number 4013/03,6, at para. 20.
44. Ibid, at para. 18.
45. Ibid, at para. 20.
46. Mayongo v. Refugee Appeal Board & Others, 2007 J.O.L. 19645 (T).
47. Ibid, at para. 8-9.
48. Refugee Appeal Board decision number 294/04 at 5.
49. Ibid., quoting J. Hathaway, The Law of Refugee Status (Canada: Butterworths, 1991) at 203.
50. Refugee Appeal Board decision number 002/06 at para. 23.
51. Ibid, at para. 24.
52. Refugee Appeal Board decision number 378/05 at para. 21-22.
53. Due to a delay in the asylum seeker fleeing his country, it may be determined that the harm that the asylum seeker was facing was not serious; in other words it did not amount to persecution, such that it required him or her to immediately flee the country. See supra note 12 at 25, note 166, on this point.
54. Supra note 6 at 24-25.
55. Ibid, at 25.
56. Refugee Appeal Board decision number 38/05 at para. 23.
57. Refugee Appeal Board decision number 415/04 at para. 22.
58. Ibid.
59. Refugee Appeal Board decision number 1433/06 at para. 8.
60. Ibid, at para. 18.
61. Ibid, at para. 19.
62. Ibid, at para. 22.
63. Ibid.
64. Refugee Appeal Board decision number 729/06 at para. 13.
65. G. Okoth Obbo, "Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa" (2001) 20:1 Refugee Survey Quarterly 79 at 113.
66. Supra note 10 at 28.