Ayele Derio v The Chief Immigration Officer and The Co-Ministers of Home Affairs and ATNHW BILHCW

### Preamble
1
HH 170-2012
HC 3642/12
AYELE DERIO
versus
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AYELE DERIO
versus
THE CHIEF IMMIGRATION OFFICER
and
THE CO-MINISTERS OF HOME AFFAIRS
and
ATNHW BILHCW

HIGH COURT OF ZIMBABWE
MATHONSI J
HARARE 11 APRIL 2012

Urgent Chamber Application

Mr Bherebhende for the plaintiff
Mr T. Dhodho for the 1st & 2nd respondents

MATHONSI J: The applicant is an Ethiopian national who hails from Southern Ethiopia and speaks the haaye language spoken in that part of Ethiopia. He says he arrived in Zimbabwe via Nyamapanda border post in September 2011 seeking political asylum and was taken to Tongogara Refugee Camp where he has remained until his recent arrest and incarceration at Mutare prison.

The applicant has stated that until January 2012 he was accommodated at the Camp by the third respondent, another Ethiopian national who is accused by the applicant of being a “human trafficker”. He says that a few weeks after his arrival at the refugee camp, the third respondent offered to show him around Zimbabwe but instead took him to Musina South Africa, where he had his finger prints and photograph taken. He did not appreciate what was happening but later discovered that the third respondent had processed a refugee permit for him in South Africa and wanted the applicant to work for him in trafficking Ethiopians from Southern Ethiopia.
 The applicant says he refused to work for the third respondent resulting in the later vowing to fix him. For that reason he moved out of the third respondent’s house. On 6 March 2012 Immigration Officers visited Tongogara Refugee Camp and issued him with a temporary refugee permit. He had, upon his arrival in Zimbabwe, made an application for asylum which is still to be considered by the Refugees Committee.

When the third respondent discovered that he had been issued with a temporary refugee permit, he approached the Immigration Officers and showed them the South African Refugee permit obtained illegally in that country resulting in the applicant’s arrest and detention at Mutare Prison, where he has remained to this date. The applicant denies being responsible for the issuance of the South African permit and insists that he only made an application for refugee status in Zimbabwe, which application is still pending.

He challenges his arrest and detention as being in violation of section 9 of the Refugees Act [Cap 4:03] (the Act) and pleads for his immediate release. Section 8(i) of the Act provides:

“Notwithstanding any other enactment, any person who has applied in terms of section 7 for recognition of his status as a refugee, and any member of his family, shall have the right to remain in Zimbabwe

(a) until such person has been recognized as a refugee in terms of that section; or

(b) In the event of the application of such person being unsuccessful, until such person has had an opportunity to exhaust his right of appeal in terms of subsection (5) of that section; or

(c) Where such person has appealed in terms of subsection (5) of that section and his appeal has been unsuccessful, until such person has been allowed a reasonable time, not exceeding 3 months, and, if he is in detention, has in addition, been afforded reasonable facilities, to seek admission to a country of his choice.”

In the opposing affidavit filed on behalf of the first and second respondents by Prosper Kambarami, the Principal Immigration Officer In Charge of the legal desk, it is denied that a temporary refugee permit was ever issued to the applicant or that he ever made an application in terms of section 7.

Kambarami attached an asylum seeker temporary permit issued by the South African Home Affairs office to the applicant but did not explain how the respondents came to have it. He also did not explain how the applicant was accommodated at the refugee camp for all this time if he had not lodged an application for refugee status.

On a balance of probabilities, I am of the view that the applicant did make an application for asylum and to the extent that he has applied for refugee status, he is entitled to remain in Zimbabwe. This is so, as signified by the decision to issue him with a temporary refugee permit.

In terms of section 9 of the Act;

“ Notwithstanding the Immigration Act [Cap 4:02] or section 16, subsection (1) of section 26, subsection (1) of section 27, subsection (1) of section 28 or subsection (1) of section 29 of the Customs and Excise Act [Cap 23:02] no proceedings shall be instituted or continued against any person or any member of his family in respect of his unlawful entry into or unlawful presence within Zimbabwe”

(a) if such person applies in terms of section 7 for recognition of his status as a refugee, until a decision has been made on the application and where appropriate, such person has had an opportunity to exhaust his right of appeal in terms of that section; or

(b) if such person has become a recognized refugee.”

The applicant was arrested and detained on 6 March 2012. More than a month later, he is still languishing in remand prison in Mutare. He has not been deported and neither has he been notified of the outcome of his application made in terms of section 7. I have already pointed out that he is entitled to remain in Zimbabwe by virtue of the fact that he has made an application in terms of section 7 of the Act which application has not been determined. In terms of section 9 of the Act, no proceedings can be instituted or continued where an application for refugee status has been made. The respondents insists that they are holding the applicant pending his deportation as he was in the country illegally and that once funds to buy him a ticket are available he will be departed. With the greatest respect, this is untenable. The respondents cannot deprive an individual his liberty while they look for money. In any event, he is entitled to remain in Zimbabwe.

I am aware that in terms of section 15 of the Act, a recognized refugee or protected person can be expelled from Zimbabwe where the Minister considers the expulsion necessary or desirable on the grounds of national security or public order. Indeed, in terms of section 16 of the Act, an authorized officer may arrest and detain any recognized refugee or protected person pending the completion of arrangements for his expulsion from Zimbabwe. However, such arrest and detention can only be done in respect of a person “whose expulsion has been ordered in terms of section 15”, and purely for purposes of completing arrangements for deportation.

In casu, the minister has not ordered the expulsion of the applicant. If he has such order has not been served on the applicant and would also be invalid by reason of failure to comply with subsection (2) of section 15 which accords the applicant a right to be given a written notice of the intention to expel him and to make representations to the Minister.

There is nothing that can justify the continued detention of the applicant. If the first respondent has a case justifying his deportation, that should have been done by now because a month is just too long.

I therefore conclude that the applicant has made a good case for the relief sought. Accordingly I grant a provisional order in terms of the draft order filed of record the interim relief of which is as follows:-

Pending the return day it is hereby ordered that;
First respondent is directed to forthwith release the applicant from detention.

*Bherebhende Law Chambers* applicant’s legal practitioners
Civil Division of the Attorney General’s office respondent’s legal practitioners
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