Press Release: Somali asylum seeker given second chance in his application
Published by Legal Resources Centre 17 February 2016
For Immediate Release: 17 February 2016
On Friday 12 February 2016, a full bench decision in the Western Cape High Court upheld an appeal by Mr Mohamed Liban (the Appellant), a Somali national represented by the Legal Resources Centre, whose application for asylum had been rejected as manifestly unfounded.
Mr Liban submitted an application for asylum at the Maitland Refugee Reception Office and was duly interviewed by the Refugee Status Determination Officer (RSDO) on 4 October 2011. He was later informed that his application for asylum was rejected as manifestly unfounded. Because of language barriers, he did not understand that he had to make written submissions to the Standing Committee for Refugee Affairs (SCRA) within 14 days.
On 27 March 2012, before his permit was due to expire, Mr Liban was advised to approach the Legal Resources Centre for legal advice, which he did. Given his asylum claim, the LRC drafted and submitted written submissions on his behalf to the SCRA for consideration in the review of his application.
Even though the SCRA, in general, considers written submissions submitted after 14 days, the SCRA in the Appellant’s case refused to consider the submissions on the basis that they had made a final decision on his application on 28 October 2011. The SCRA stated further that because they had made a decision on the Appellant’s claim, they no longer had powers to reconsider their decision in light of the doctrine of functus officio doctrine (a doctrine regulating decision-making of officials). The court a quo agreed with this decision and found against the Appellant.
The full bench appeal was lodged against the decision of the court a quo. Writing for the full bench, Allie J found in favour of Mr Liban holding that the decision of the SCRA had to be communicated to the Appellant as an affected party for it to be a final decision (that cannot then be reconsidered by the SCRA in terms of the functus officio doctrine).
As the RSDO had not communicated the decision of the SCRA to the Appellant when written submissions were sent, the SCRA should have considered them when making their decision in review of the rejection.
In light of this finding, the court ordered the Appellant’s application for asylum to be sent back to the SCRA for further consideration in line of their obligations in section 25 of the Refugees Act.
We welcome the decision of the High Court in confirming that the SCRA’s decision is only final when it has been communicated to the affected party; especially in a case such as this where there had been delays on the part of the RSDO to communicate the SCRA’s decision to the Appellant.