Atrocious past persecution should constitute special circumstances

The Litigation Unit is currently representing a client who was atrociously tortured in his country of origin, Angola. After he applied for asylum in South Africa, the Department of Home Affairs took in excess of 2 years to determine our client’s status and reach the decision to reject his asylum claim. Thereafter, the Refugee Appeal Board also dismissed our client’s appeal against the rejection of his asylum application. The Appeal Board held the view that the conditions in Angola have improved to such an extent that they felt it was possible for our client to return there. Although the Board was aware of the fact that our client went for regular psychological treatment as a result of the past persecution that he experienced, and even expressed sympathy for our client, it still held that the Refugees Act did not provide for the granting of asylum on humanitarian grounds. After the Board dismissed his application for asylum, the Unit assisted the client to apply for permanent residence, advancing that there existed special circumstances to grant such status. The Minister of Home Affairs denied the granting of permanent residence, and in doing so, provided no adequate reason for this decision. The Unit launched an application for review of both the Refugee Appeal Board’s and the Minister’s decisions. The Pretoria High Court heard the matter on 21 November 2006. It is our view that the Refugees Act does in fact provide for the granting of refugee status, even under circumstances where the conditions in a refugee’s country of origin have improved significantly. The Unit argued, in the alternative, that the unlawful delay in deciding the client’s asylum application, coupled with the psychological trauma which the client still experiences and which will be exacerbated should he be forced to return to Angola, constitutes special circumstances which make it appropriate for the client to be granted permanent residency in terms of section 31(2)(b) of the Immigration Act No.13 of 2002. The Court reserved Judgment.