Access Chapter 2 Challenges Department of Home Affairs’ Attempt to Dismiss Discrimination Case
PRETORIA, 20 November 2023 — Access Chapter 2, a human rights organization dedicated to promoting and protecting the human rights of LGBTIQ persons, is pushing back against the Department of Home Affairs’ attempt to dismiss the discrimination case on behalf of our client, who
we will refer to as *David1, an asylum seeker from Malawi. The Department’s response, which seeks dismissal without cost, sidesteps the core issue of discrimination raised in the case.
David, born on October 17, 1994, faced rejection of his asylum application on grounds of discrimination, specifically based on his sexual orientation as a gay man. The Refugee Status Determination Officer (RDSO) dismissed his application, asserting that being gay and Christian is incompatible. Furthermore, the RDSO disregarded the trauma of Mulaisho’s past, including a rape incident at the age of fourteen, showcasing a lack of empathy and understanding.
Access Chapter 2 contends that the Department of Home Affairs has failed to address the constitutional implications of discrimination against David, iolating Section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The legal team representing the Department has not adequately considered the impact of discrimination on human dignity, a key factor highlighted in Section 14 of PEPUDA, which typically outlines factors that must be considered when determining if a person has been treated unfairly.
Moreover, the organization argues that the Department’s response falls short of the requirements set by the Promotion of Administrative Justice Act (PAJA). The lack of clear reasoning provided by the RDSO for the rejection of David’s asylum application hinders his ability to appeal effectively, as required by Section 3 of PAJA.
The decision by the RDSO is riddled with discriminatory remarks and assumptions. David’s plea for asylum, grounded in the fear of persecution due to his sexual orientation, was met with scepticism
and prejudice. The RDSO’s narrow view of persecution and failure to consider well-established case law, such as Van Garderen N.O. v Refugee Appeal Board and others (2006) 28 and Makumba v Minister of Home Affairs and Others (2014) 30, further underscores the lack of due diligence in the decision-making process.
Access Chapter 2 emphasizes that the discrimination faced by David is a broader issue that extends beyond his individual case. The organization calls upon government officials to confront personal biases and prejudices that may influence asylum decisions, especially those related to sexual orientation.
“It is deeply disheartening that a pandemic as deadly as discrimination based on sexual orientation is still left unchallenged within our public nstitutions. This is stripping away to the core humanity’s dignity and pride,” said Steve Letsike, Executive Director for Access Chapter 2.
Access Chapter 2 is determined to pursue justice for David and challenges the Department of Home Affairs to address the discrimination at the heart of this case. The organization remains committed to advocating for the rights of all individuals, regardless of their sexual orientation, and calls for a fair and just resolution in the South African courts.
Media Advisory: The Equality Court sitting at the Pretoria Magistrate Court will tomorrow (21 November 2023 at 08:30) deliver judgement on the matter. Media is invited to cover this important moment in the legal justice of queer (LGBTIQ) refugees and asylum seekers.
___STATEMENT ENDS—-
Statement issued by Access Chapter 2
For media enquiries please contact AC2 Communications
066 461 5758
Mpho Buntse (Spokesperson)