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Oct 28, 2011

South African asylum seeker suffers setback in Canada

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The media reported recently, and perhaps with a little less passion than previously, that Canada’s Federal Court of Appeal had dismissed Brandon Huntley’s appeal against the refusal of his application for refugee status in Canada at the beginning of this month. The courts had reportedly termed the appeal “totally unmeritorious”.

Huntley has applied to be recognised in Canada as a refugee because, besides various other claims, white people in South Africa are the victims of a deliberate and ongoing campaign of ‘genocide’.

The latest series of media reports may have created a false impression. In 2010, Canada’s Federal Court, which is much like our High Court, upheld the Canadian government’s application to overturn the decision of the Immigration and Refugee Board (IRB).

It was the IRB which had originally approved Huntley’s application for refugee status. Importantly, as part of its decision, the Federal Court had referred Huntley’s application for asylum back to the IRB to be considered afresh having regard to the Federal Court’s reasoning and criticisms of the earlier decisions.

In response to the decision of the Federal Court, Huntley asked the court to allow him to appeal against that decision and to take it to the Federal Court of Appeal. The Federal Court refused to grant him permission. But Huntley’s lawyers are not appealing whether or not he is a refugee – that issue has still to be heard again by the IRB. The case in the courts now turns on the circumstances in which a decision by the Federal Court can be appealed to the Federal Court of Appeal.

So, Huntley has approached the Federal Court of Appeal to challenge the lawfulness of the refusal by the Federal Court to grant him permission to appeal to the Federal Court of Appeal. And so it was on the narrow point of when one can and cannot appeal a decision of the Federal Court to the Federal Court of Appeal that Huntley’s present appeal was rejected as being “totally unmerit- orious”. It is not his application for refugee status that was rejected by the appeal court.

However, the Federal Court of Appeal did comment that, in any event, it did not consider that the Federal Court had committed any error that could be taken on appeal or that the Federal Court had been biased against Huntley.

His application for asylum must, accordingly, still be presented again to the IRB once Huntley exhausts his challenges to the appellate arrange- ments of the Canadian Federal Court system. And, if the media reports are correct, Huntley now plans to approach the Canadian Supreme Court (the equivalent of our Constitutional Court) to challenge the decision of the Federal Court of Appeal.

It is, therefore, unlikely that Huntley will be returning to South Africa any time soon.

Edited by: Martin Zhuwakinyu
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