Court lambasts Home Affairs Department for treatment of asylum seeker

The high court had harsh words for the department of home affairs because it took seven years to finalise an asylum application by a Congolese national who fled persecution in his homeland.

It described as deplorable the treatment of Democratic Republic of the Congo (DRC) citizen Christian Bolanga, who fled to South Africa in 2005.

On Tuesday, the Durban High Court reviewed and set aside the decision of the department’s refugee status determination officer (RSDO) who dismissed Bolanga’s application for refugee status in 2006.

It also set aside the Refugee Appeal Board's dismissal of Bolanga's appeal in 2012.

Acting Judge Guido Penzhorn declared that Bolanga was a refugee entitled to asylum and ordered Minister of Home Affairs Malusi Gigaba to issue to Bolanga a written recognition of refugee status within 10 days.

Bolanga applied to the high court in 2012 to review the appeal board’s decision to refuse him asylum.

While the minister of home affairs filed a notice to oppose the review, he did not file any opposing papers.

In his judgment on Tuesday, Penzhorn agreed with Bolanga that the appeal board was not properly constituted when it heard and dismissed Bolanga’s appeal.

He also disputed the appeal board’s finding that Bolanga was unlikely to be targeted by the authorities or the rebel party, the Movement for the Liberation of Congo (MLC).

“The test is whether there is a ‘reasonable possibility of persecution’ which must be considered in all the circumstances of the case,” Penzhorn said.

Penzhorn said on the evidence before him, Bolanga’s claim must be accepted as genuine.

The judge decided not to refer the matter back to the RSDO for reconsideration because of prejudice to Bolanga.

He said it had taken Bolanga 10 years to get this far, and were it not for the fact that he had been legally represented, he did not know how long the matter would have taken.

Penzhorn said he did not know how many thousands of refugees in similar situations were being subjected to the same treatment as Bolanga by those to whom the law had entrusted their fate.

“How many have been waiting ten years, fifteen years perhaps, or have simply given up?”

Bolanga welcomed the judgment while the Department of Home Affairs could not be reached for comment.

In his affidavit before the court, Bolanga, a pastor, stated that his persecution began in late 2000 in the Equateur province of the DRC where he preached to the rebels not to fight.

MLC objected to his pacifist stance. He was repeatedly tortured by the MLC rebels in an attempt to stop him from preaching.

He escaped to another city where it was assumed he supported the ruling party under President Joseph Kabila. When Bolanga refused the ruling party’s request to recruit for it, he was accused of being a spy for MLC leader Jean-Pierre Bemba and was arrested and imprisoned. He first escaped to DRC capital Kinshasa before fleeing to South Africa.