Cape Town - A family of Syrian refugees in Cape Town have been left shocked and stunned by a Home Affairs official who dismissed their asylum application as “unfounded”, declaring their home country “stable” and rejecting claims they feared for their lives if they returned to the war-torn country.
Humanitarian aid was, therefore, not warranted, the department’s finding said.
The decision, taken last year at a time when newspapers were full of reports about the war in Syria, including in the family’s home city of Damascus, has now led to the family seeking urgent intervention as their temporary asylum seeker permits expire in less than three weeks.
Following last year’s finding by the refugee status determination officer, Omar Banian, his wife Reem and their three young daughters, Shahd, Rand and Joudi, turned to the Refugee Appeal Board.
Six months after lodging their appeal, they still haven’t been given a hearing, a fact which officials blame on extensive delays, according to the family.
If they wish to request an extension to their temporary permits, they must travel to Pretoria to do so, a trip they can’t afford.
Approached for comment on Friday, Home Affairs Department spokesman Mayihlome Tshwete said they would look into the issue.
He said South Africa was one of the most progressive countries when it came to asylum seekers, taking in more than 72 000 people last year.
In the Banians’ case, the department would investigate to determine whether any official was at fault, Tshwete said.
The Banians arrived in Cape Town on March 18.
Since all new refugee matters are processed in Pretoria, the family had to travel there the following month to apply for asylum.
The hearing was delayed and they were given asylum- seeker permits in the interim.
A hearing was finally scheduled for July , at the offices of Refugee Status Determination Officer Wiseman Kubheka.
In an affidavit submitted to the appeal board, Banian said he was assisted by a Somalian translator at the hearing, who spoke a different dialect of Arabic to the one spoken in Syria.
Someone else had to be called to assist.
Nine questions were put to Banian:
From the line of questioning, Banian concluded Kubheka was trying to establish whether the family was Syrian.
He believed the rest of the questions were irrelevant, with no real effort made to establish why he had fled his home country.
Kubheka rejected the application as unfounded. In his written reasons he said the issue he had to determine was whether Banian’s fear of being killed was well-founded.
“According to the (department’s) country reports, it is stated that the government is trying harder to solve the conflict in the country. This is further confirmed by the Syrian constitution which guarantees the safety of the community or citizens.
“The protection by the state is further provided by, in Article 34, wherein a citizen is given assurance to participate in political, economic, social and cultural life and the law shall regulate that (sic).
“The regime is further conducting operations against Islamic State as part of the long war strategy for conflicts, all in the name of protecting innocent civilians (DHA 2015, Country reports, Syria),” Kubheka said.
He said Banian had himself said “the IS operates outside Damascus and the constitution guarantees safety to its citizens (sic)”.
He found the application did not warrant humanitarian aid.
Banian responded with an appeal to the Refugee Appeal Board in August, in which he questioned Kubheka’s alleged failure to consult a representative of the High Commissioner for Refugees in South Africa.
“Had the officer correctly discharged his obligations and taken into account the relevant factors resulting in my family and I fleeing Syria, he must have found that our application fell within the ambit of the act,” he said.
He said Kubheka applied his limited knowledge subjectively, when the family’s application was well-founded and his fears real.
Mustaque Holland, an advocate at the Cape Bar who is advising the family, confirmed the appeal was pending.
He is trying to assist them with the extension of their temporary permits.
“Mere days ago there were bombings in Damascus, providing the perfect opportunity for our government to heed the call of the Banian family and grant them asylum.
“This would go a long way in helping to ease their plight after narrowly escaping the humanitarian crisis in Syria that has raged on for the past five years, which has been described as close to hell on earth.”
Banian said officials told him the delay in obtaining a date for the appeal was the result of a backlog of pending cases.
Tshwete confirmed the backlog, which he said was the result of everyone who failed to obtain asylum lodging an appeal.
William Kerfoot, an attorney at the Legal Resources Centre who dealt with refugee matters, said the family could not have their permits extended in Cape Town because the the local reception office had been closed.
All newcomer asylum applications could be accepted only in Pretoria.
If they wanted to have their file transferred to Cape Town, they would have to write to centre management in Pretoria and prove exceptional circumstances warranted such a transfer.
Kerfoot said the refugee office in Port Elizabeth had been ordered to be reopened after the issue went to court, and that a case concerning the issue of extensions was pending in the Western Cape High Court.
Bram Hanekom, who serves on the board of human rights organisation People Against Suffering Oppression and Poverty, said refugee status determination officers needed to ensure refugees were treated with the “utmost dignity”.
“They need to be dealt with in a manner that reflects well on our country,” he said.
Abdullah January, who has been assisting the family in Cape Town, helped them travel to and from Pretoria to seek extensions on previous occasions, but said he was unable to do so again.
January said that it would help if the permits were granted for longer periods, so that the frequency of the family’s travels was reduced.
Tshwete said the purpose of the short extension period was to prevent asylum seekers from disappearing.
Home Affairs ignorant of the human tragedy
Syria was a textbook country producing refugees - and that's why it was "absolutely absurd" that a Department of Home Affairs official reportedly denied asylum to a Syrian family on the grounds that there was no war in their country and it was stable.
Last year, more than 21 000 people were killed in Syria, mostly civilians. Human rights organisations blame the Syrian regime for most of these deaths.
"It's absolutely absurd to reject a Syrian applicant on the grounds that there is no war in Syria," said Patricia Erasmus, the manager of refugee and migrant rights at Lawyers for Human Rights.
"You can reject people if you've found they are not Syrian, or maybe for fraud, but to give reasons that there is no war in Syria, that's absolutely laughable."
"It'?s ridiculous that in 2015 to not be aware that Syria is basically a textbook for refugee production. If you were to consider what a refugee-producing country looks like, Syria jumps into your mind first - it’s one of the world’s largest refugee producers. Just because we are far-flung from Syria, to say nothing is going on there because it's not loaded on to your system, it's terrifying.”
Anecdotal observations at its four clinics across South Africa, which saw 10 000 people a year, revealed a relatively low number of Syrian refugees in South Africa, said Erasmus, "though there certainly are a number seeking refugee status in South Africa".
"I had a case last year where a Syrian person at our clinic in Pretoria applied for refugee status. Home Affairs officials told him you can't apply for asylum here, there is no such country as our Syria on our system."
South Africa was turning its back on African refugees, too.
"There's a huge amount of ignorance in Home Affairs status determination procedures. They don't have the facts or knowledge... it'?s a disaster and completely tragic."
Jean Pierre Misago, a researcher at the African Centre for Migration and Society at Wits University, agreed. "This is totally wrong... That there is war in Syria there is no doubt."