Bahamboula v Minister of Home Affairs

• Jurisdiction: South Africa
• Judge: Information not supplied
• Judgment Date: 08 May 2014
• Docket Number: 1476/14
• Court: Western Cape High Court, Cape Town
• Hearing Date: 10 April 2014
• Citation: 2014 JDR 0954 (WCC)

Bahamboula v Minister of Home Affairs
2014 JDR 0954 (WCC)

2014 JDR 0954 p1

Citation	2014 JDR 0954 (WCC)
Court	Western Cape High Court, Cape Town
Case no	1476/14
Judge	Information not supplied
Heard	April 10, 2014
Judgment	May 08, 2014
Appellant/; Plaintiff	Annie Pelagie Bahamboula; Abebe Legesse Biru; Givemore Talkmore Choga; Mireille Yolande Nsikou Dimba; Jean Pierr Habimana; Sihle Beauty Ncube; John Ilunga Tshishimbi
Respondent/; Defendant	Minister of Home Affairs; Director-General of the Department of Home Affairs; Chief Director:Asylum Seekers Management; Acting Manager Of The Cape Town Refugee Reception Office

Summary

Immigration — Refugee — Asylum seeker — Asylum seeker permit — Extention of — Validity of extension policy making number of previous extensions decisive consideration — Mootness of relief sought where internal memorandum introducing such policy withdrawn — Application rendered moot and accordingly dismissed.

Judgment

INTRODUCTION

1.

The Applicants (represented by Mr Simonsz) instituted these proceedings on an urgent basis in which they seek inter alia the following relief:

2014 JDR 0954 p2

1.1

A declaration that the Internal Memorandum of the Department of Home Affairs dated 21 January 2013 ("the Internal Memorandum") is unlawful and invalid insofar as it allows and/or requires the refusal of extensions of permits in terms of section 22 of the Refugees Act No 130 of 1998 ("extensions") to asylum seekers based on the number of extensions previously obtained by that asylum seeker.

1.2

An Order directing the Respondents immediately to ensure that no asylum seeker is refused an extension due to the number of extensions previously obtained by that asylum seeker.

2.

The application was opposed by all four Respondents (represented by Messrs Bofilatos SC and Papier).

3.

This Judgment is structured as follows:

3.1

First, I address the legal framework in respect of asylum seekers.

3.2

Second, I address the relevant evidence.

3.3

Third, the applicable law is discussed.

3.4

Finally, my findings and reasons therefor are addressed.

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THE LEGAL FRAMEWORK

4.

Key aspects of the legal framework applicable to the complaint raised by the Applicants are set forth hereunder.

5.

The point of departure is the Refugees Act No 130 of 1998 ("the Act"). By way of background, the Act allows for persons to qualify for refugee status and regulates the process and requirements in respect thereof.

6.

A person whose refugee status has not yet been determined is called an asylum seeker and afforded certain rights under the Act.

7.

Chapter 3 of the Act deals with applications for asylum:

7.1

Key aspects governing applications for asylum are: (a) that they must be made in person in accordance with the prescribed procedures to a Refugee Reception Officer at any Refugee Reception Office [1] ; (b) the Refugee Reception Officer must deal with the application in accordance with the Act [2] ; (c) no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if: (i) such person has applied for asylum in terms of the relevant provisions in the Act, until a decision has been made on the application and, where applicable, such person has had an

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opportunity to exhaust his or her rights of review or appeal in terms of Chapter 4 of the Act; or (ii) such person has been granted asylum. [3]

7.2

Section 22 governs an asylum seeker permit. Given its relevance to these proceedings, the section warrants quoting in full:

"(1) The Refugee Reception Officer must, pending the outcome of an application in terms of section 21 (1), issue to the applicant an asylum seeker permit in the prescribed form allowing the applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on the permit.

(2) Upon the issue of a permit in terms of subsection (1), any permit issued to the applicant in terms of the Aliens Control Act, 1991, becomes null and void, and must forthwith be returned to the Director-General for cancellation.

(3) A Refugee Reception Officer may from time to time extend the period for which a permit has been issued in terms of subsection (1), or amend the conditions subject to which a permit has been so issued.

(4) The permit referred to in subsection (1) must contain a recent photograph and the fingerprints or other prints of the holder thereof as prescribed.

(5) A permit issued to any person in terms of subsection (1) lapses if the holder departs from the Republic without the consent of the Minister.

(6) The Minister may at any time withdraw an asylum seeker permit if-

(a)

the applicant contravenes any conditions endorsed on that permit; or

(b)

the application for asylum has been found to be manifestly unfounded, abusive or fraudulent; or

(c)

the application for asylum has been rejected; or

(d)

the applicant is or becomes ineligible for asylum in terms of section 4 or 5.

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(7) Any person who fails to return a permit in accordance with subsection (2), or to comply with any condition set out in a permit issued in terms of this section, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment."

7.3

Section 23 regulates the detention of asylum seekers in circumstances where the Minister has withdrawn an asylum seeker permit in terms of section 22 (6).

7.4

Section 24 regulates the decision-making process and ultimate decision regarding applications for asylum.

8.

The nub of the Applicants' complaint (at the inception of these proceedings) was that the Internal Memorandum reflects the extension policy, the effect of which is that it "allows and/or requires Department officials to refuse to extend s22 permits based on the number of previous extensions obtained by any given asylum seeker."

9.

There can be no dispute (and indeed there is none) that the Internal Memorandum prescribed a process for the extension of section 22 permits that have reached twelve extensions and could result in the refusal of a section 22 permit based on the number of prior extensions that have been granted. In instances where an asylum seeker has been granted twelve extensions, the relevant office must first obtain the necessary authorisation from the Asylum Seeker Management Unit in Pretoria, before a further extension can be granted.

2014 JDR 0954 p6

10.

In their founding affidavit, the Applicants raised the following complaints in relation to the Internal Memorandum and in support of the declaratory order they seek:

10.1

First, it is unlawful because it violates the rights of all asylum seekers to have valid section 22 permits granted to them.

10.2

Second, there is no lawful basis for the Memorandum which was issued by the Third Respondent who had no powers under the Act or any Regulation to control or influence the issue of section 22 permits.

10.3

Third, the Internal Memorandum is irrational due to its "illogical disconnection between who is responsible for the enforcement of the extensions policy and who is punished."

10.4

Fourth, the Internal Memorandum and the extensions policy are being implemented in an arbitrary and vague fashion.

10.5

Fifth, the extension policy is unreasonable and unlawful because of the drastic consequences it creates for asylum seekers.

10.6

Sixth, the Internal Memorandum is unconstitutional.

10.7

Seventh, the process followed in adopting the Internal Memorandum was an improper one.

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11.

As regards the directory relief sought, the Applicants contend that it is complementary to the declaratory relief and founded on the right of all asylum seekers in terms of the Act and the Constitution to a valid section 22 permit.

THE EVIDENCE

12.

In their founding affidavits, the Applicants contended that they are all lawful asylum seekers in South Africa and had all recently been refused extensions of their section 22 permits at the Cape Town Refugee Reception Office, due to the enforcement of the extension policy by Departmental officials.

13.

In addition to the application having been brought on behalf of the Applicants, it was brought on behalf of and in the interests of all asylum seekers in South Africa "who may be affected by the extension policy" as well as in the public interest. In this regard, the Applicants aver that the extension policy has national effect.

14.

The Applicants have further explained that in the course of the three months preceding the application, UCT Clinic has been approached by very large numbers of asylum seekers who are in exactly the same position as the Applicants. In support of this averment, a list of 301 persons is attached to the founding affidavit.

15.

In their answering affidavits the Respondents oppose the relief sought on the following main bases:

2014 JDR 0954 p8

15.1

The Internal Memorandum does not authorise and nor has any official refused the extension of a section 22 permit based on the number of extensions that an asylum seeker had previously obtained.

15.2

The Department of Home Affairs does not have a policy which seeks or has the effect of refusing the extension of section 22 permits of legitimate asylum seekers and which prevents the issuing of extensions based on the number of prior extensions, to the Applicants or any other asylum seeker in South Africa.

15.3

The Second Respondent decided on 31 January 2014 that the Cape Town Refugee...