South African gets second chance

By Sukhram Ramkissoon

Sukhram Ramkissoon
Sukhram Ramkissoon

A Caucasian family was recently refused protection by the Refugee Protection Division of the Immigration and Refugee Board and they sought judicial review of that decision.

They requested the court to set aside the negative decision and return the matter to another panel of the board for redetermination.

They are citizens of South Africa who claimed they fear persecution because they are white. The wife and daughter also claimed to fear persecution because they are women. They left South Africa in April 2010, went to England and arrived in Canada in June 2010, applying for refugee protection shortly thereafter.

In May 2013, the Refugee Board decided the applicants were neither conventional refugees nor persons in need of protection and dismissed their claims.

The board took a negative view of the applicants’ credibility and noted that many of the incidents in the narratives did not personally affect them. For the few that did, the board said they were vaguely dated and contradictory.

In challenging the board’s decision, they argued it was unreasonable and complained that it give the impression the wife’s fear of rape was added as an afterthought when it had plainly been included in the narrative from the beginning.

Further, the board had rejected the principal applicant narrative on the basis that it saw no significant changes in South Africa between 2010 and 2013. The applicants counter this perversely ignores that the president of the country and the African National Congress’ youth leader had sung songs about killing white people on political platforms and Genocide Watch had elevated South Africa to stage six of the eight stages of genocide.

Indeed, the applicants say the board failed entirely to consider how the risk other white South Africans faced could be relevant to their claim. It rejected the evidence for lacking definitive proof that the crimes had racial connotations, but they say they explained what those connotations might be in their narrative.

They pointed out that crimes against white people frequently involved mutilation and brutality even when nothing was stolen; they observed that political leaders had sung about killing white people even after a South African court declared the song racist; and they also provided expert evidence from a reporter and the president of Genocide Watch indicating these crimes were racially motivated.

Moreover, they criticize the board for concluding that rape was just a symptom of the overall criminality.

The judge in allowing judicial review, stated: “However, the board’s reasons regarding the female applicants’ fear of rape do reveal some serious misunderstandings of the law.” The board misstated the test for state protection, since it suggests that only claimants who have approached the state for protection can satisfy the test. However, that is not the case. Claimants can also rebut the presumption of state protection by showing “that their home state, on an objective basis, could not be expected to provide protection.”

The assessment of credibility is ultimately up to the board who heard the testimony.

That said, some of the complaints are meritorious. Specifically, the board’s assessment of the principal applicant’s updated narrative is puzzling. In it, the applicant said he had become more fearful of returning to South Africa because Julius Malema, then youth leader of the African National Congress (the governing party), sang a revolutionary anti-apartheid song called Kill the Farmer, Shoot the Boer, which he felt threatened by since as Boer is a word for a South African white person.

Even after a South African court ruled the song was hate speech, Malema continued to sing it and Jacob Zuma, president of the country, also sang it at the 100th anniversary of the African National Congress. Over the time period between the making of the claim and the hearing, Genocide Watch also updated the danger of genocide because of political shifts and warned white Afrikaners to leave.

Therefore, because the objective fear analysis was also tainted by applying the incorrect tests, I am of the view that the decision as a whole was unreasonable. The judge granted judicial review and referred the matter to another panel of the board for redetermination.

Sukhram  Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto. Phone 416-789-5756.