No precedent for refugees

2009-09-02 11:18

Verashni Pillay

Johannesburg - A ruling by Canadian authorities to grant a white South African man refugee status is unlikely to set a precedent or pave the way for others, an immigration law expert says.

"Do they book a plane and get to Canada? Bottom line is: no. It would be very difficult to replicate the circumstance," immigration attorney, Chris Watters told News24.

Watters pointed out that asylum seekers were assessed on a case-by-case basis.

"In terms of the UN conventions on refugees, refugee protection is very specific to the person's circumstances. He has to show that he can't avail himself of protection from the South African courts and that there's nowhere else in the country he can go to be safe."

Persecuted if he returned home

The Canadian immigration and refugee board panel ruled last Thursday that Brandon Huntley, 31, who grew up in Mowbray, Cape Town, would be persecuted if he returned home to South Africa.

He claimed he had been attacked seven times by black South Africans.

The Ottawa Sun reported that he presented "clear and convincing proof of the state's inability or unwillingness to protect him".

This is the first time a white South African has been granted refugee status in Canada claiming persecution from black South Africans.

Watters said he could not comment on the validity of Huntley's claims until he had read the ruling.

A representative of the South African High Commission in Ottawa, Anesh Maistry, said if a transcript became available, they would forward it to South African authorities.

Not binding

Watters meanwhile said the ruling, which has caused an outpouring of criticism in South Africa, could not set a precedent as it was not a court decision.

"At the level of administrative tribunal the ruling is not binding. It might be persuasive but it's not binding," he said.

However, there existed a part of refugee law that could be applied to all members of a social group, such as whistle blowers or abused women.

But the group would need to have innate characteristics that resulted in their persecution. Watters said he doubted whether white South Africans would qualify.

"The innate characteristics fall apart - not everyone has this same experience," he said. "I think it's would be unlikely that someone's going to say that white South Africans are a persecuted social group in South Africa."

Decision could be revised

Meanwhile, Beeld reported that the Canadian immigration and refugee board panel's decision could be revised.

Spokesperson Stéphane Malépart said if the Canadian government or a person who is involved with the case wishes the case to be legally revised, they must first obtain authorisation from the country's federal court. If they were to be granted authorisation, the court would decide whether the case was handled within the confines of the law.

If the court should find that the case was not handled within the confines of the law, it will be referred to the refugee protection department. A new council member must then revisit the case, Beeld reported.