Judge slams Home Affairs for 'unintelligible, illogical babble' in gay case
Judge Gayaat Da Silva Salie set aside the rejection of the asylum application and ordered that it be heard afresh by another Refugee Status Determination Officer (RSDO) within six months.
The man, identified only as MAM in the judgment, said he fled Chad after he had been arrested and served a year in jail, convicted under the country's 'anti-homosexual' laws.
He came to South Africa on a visitor's visa in May 2023 and was involved in a relationship with a South African doctor.
In 2024 he applied for asylum. His last interview was in September 2024. He was then informed that his application had been rejected.
In his reasons, the RSDO gave a long explanation of the political system in Chad.
He then recorded: 'You were arrested and sentenced because of your sexual orientation and homosexuals are not allowed in your country. You stated that you were released by the court because you have use of a lawyer. When I assessed your information concerning homosexuals, there's a separation of powers between the executive and the judicial power in terms of homosexual laws. The government does not allow same sex relations and the courts released the offenders. Therefore your application has been rejected as unfounded.'
MAM, in his submissions, said he could not appeal this decision internally because it was 'unintelligible, irrational and failed to consider the applicable law in Chad'.
He said this constituted 'exceptional circumstances' which allowed him to approach a court, without exhausting his internal appeal remedies, as provided for in the Refugees Act.
Judge Da Silva Salie said MAM had submitted that he fled Chad after being imprisoned solely for being a homosexual man. He said his safety and freedom remain threatened in Chad. He indicated that his family had disowned him and he faced persecution from the state and society at large.
However, the respondents — the Director-General and the Minister of Home Affairs — opposed the application. They argued that the reasons were not only adequate but also clear.
They also argued that the matter did not meet the threshold of 'exceptional circumstances' to approach a court for judicial scrutiny without exhausting internal remedies.
Judge Da Silva Salie said the RSDO had concluded that the applicant's asylum claim was 'unfounded' relying primarily on the assertion that the judiciary in Chad is independent, and that although homosexuality is criminalised, some courts had released offenders.
'I find the argument that these reasons were clear and adequate to be rather problematic.
'They are contradictory and factually incoherent. The RSDO accepts the facts of criminalisation of homosexuality whilst simultaneously rejecting the credibility of his claim of fear of future persecution.
'This reflects a profound misunderstanding of the legal standards governing asylum, especially the well-founded fear of persecution provided for in the Refugees Act.'
She noted that the RSDO had also disregarded the legal framework that governed asylum decisions and South Africa's international obligations to the rights of LGBTQI+ people.
'The theoretical independence of the judiciary cannot override the reality that consensual same-sex conduct remains criminalised in Chad and that the applicant was prosecuted and imprisoned under those laws,' she said.
'If anything, the position can only be worse for him should he return as he would be a convicted person of homosexual offences. The assertion that 'the courts released offenders' ignores that harm has already occurred. '
She said the reasons lacked any intelligible or informative content which could assist MAM in formulating an internal appeal and were 'characteristic of a sequence of illogical babble'.
'It is unintelligible,' she said.
She cautioned that officials could not 'hide behind the hurdle to exhaust internal remedies', when they had provided obtuse and unfathomable reasons for application rejections.
'They are required to apply their minds and provide reasons which are clear, adequate, and provide a meaningful basis from which an applicant can comprehend, request further reasons and decide in an informed manner as to their further rights and remedies in law.'
Judge Da Silva Salie set aside the rejection application and ordered that MAM be interviewed by a different officer within six months.
She ordered the government respondents to pay the costs of the application.
This article first appeared on GroundUp. Read the original article here.
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