Gavric v Refugee Status Determination Officer and Others

• Jurisdiction: South Africa

Gavric v Refugee Status Determination Officer and Others
2019 (1) SA 21 (CC)

2019 (1) SA p21

Citation	2019 (1) SA 21 (CC)
Case No	CCT 217/16; [2018] ZACC 38
Court	Constitutional Court
Judge	Mogoeng CJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J
Heard	September 28, 2018
Judgment	September 28, 2018
Counsel	A Katz SC (with D Simmonsz) for the applicant.; MA Albertus SC (with GR Papier) for the respondents.; S Budlender (with L Siyo) for the amicus curiae, People Against Suppression, Suffering, Oppression and Poverty.

Flynote : Sleutelwoorde

Immigration — Refugee — Qualification as — Exclusion — Whether refugee status G decision precondition for exclusion decision — Internal remedy after exclusion — Determination of whether crime political — Refugees Act 130 of 1998, s 4(1)(b).

Headnote : Kopnota

Applicant, a Serbian national, entered South Africa in 2007, and was later convicted in absentia of murder by a Serbian court. He was sentenced to 35 years' imprisonment. H

In South Africa applicant came to apply for asylum. His application was rejected by first respondent Refugee Status Determination Officer (RSDO).

However the Officer's decision was set aside by the Standing Committee for Refugee Affairs (SCRA), and remitted to her, for re-interview.

She concluded s 4(1)(b) disqualified applicant from refugee status. It provides: I

'A person does not qualify for refugee status . . . if there is reason to believe that he . . .

. . .

(b)

has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment . . . .' J

2019 (1) SA p22

Applicant A applied to the High Court to review and set aside the Officer's decision, and for declarators he was a refugee, and s 4(1)(b) was constitutionally invalid.

The High Court dismissed applicant's application, and application for leave to appeal to the Full Bench.

The Supreme Court of Appeal refused leave to appeal.

Here, B applicant applied to the Constitutional Court for leave to appeal.

Held

•

Leave to appeal and condonation should be granted (see [14] – [15]).

•

Section 4(1)(b) was constitutional. (Applicant asserted it had unconstitutional consequences; and gave an Officer an overbroad discretion to make a C decision affecting constitutional rights. The court held that s 4(1)(b) was saved by s 2, with which it had to be read. Section 2 contains the principle of non-refoulement.) (See [20] – [22] and [31].)

•

It was not a precondition for a s 4 (exclusion) decision, that an Officer have taken a s 3 (refugee status) decision. An officer could take a s 4 decision where there had been no s 3 decision, or after there had been a s 3 decision D (see [32] – [33] and [44]).

•

On an exclusion decision under s 4, the internal remedy was an appeal to the RAB (see [47] and [53]).

•

Applicant was exempted of his obligation to exhaust internal remedies before instituting his review (s 7(2)(c), Promotion of Administrative Justice Act 3 of 2000). (See [64] – [65].)

•

The E Officer's exclusion decision should be reviewed and set aside. (It was unreasoned, and based on documents (court judgments) and information, applicant did not have an opportunity to make representations on.) (See [66], [69], [71] – [72] and [81].)

•

The court could make a substitution order (see [83]).

•

The approach to deciding if a crime was political should be flexible, not F overly inclusive or exclusive, and should take account of our historic context. The factors at [106] should be considered. (See [92] and [106].)

•

Section 4(1)(b) disqualified applicant from refugee status. (There was reason to believe he had committed the crimes concerned (murder); and they were not of a political nature.) (See [107], [110], [113] and [115].)

•

The High Court's order of costs against applicant should be set aside G (see [119] – [120]).

Leave to appeal granted; the appeal upheld; and the High Court's order set aside. Further, the Officer's disqualification decision set aside; and declared that applicant excluded from refugee status. No order as to costs. (See order, after [121].)

Jafta J, H dissenting, would have granted leave to appeal, but would not have substituted the exclusion decision, or have made an asylum-application decision (see [163]). This, for inter alia, the following reasons.

•

With both decisions the Constitutional Court would be the court of first and last instance, which would deny applicant his right of appeal and deprive the High Court and Supreme Court of Appeal of their jurisdiction I (see [123] – [124] and [130]).

•

With respect to the exclusion decision, the existence of the internal appeal entailed that this remedy had to be exhausted before review, and there were no exceptional circumstances justifying exemption from it (see [134] – [135] and [140] – [141]).

•

Nor were there exceptional circumstances justifying substitution of the J decision (see [147] – [148]).

2019 (1) SA p23

•

Indeed, the majority's grounds to set aside the exclusion decision — A inadequate reasons and procedural unfairness — warranted remittal (see [162] – [163]).

Cases cited

Southern Africa B

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): referred to C

Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC) (1998 (12) BCLR 1449; [1998] ZACC 16): referred to

Commissioner, South African Police Service, and Others v Maimela and Another 2003 (5) SA 480 (T): referred to

Democratic Alliance v President of the Republic of South Africa and Others D 2016 (2) SACR 494 (WCC) (2016 (8) BCLR 1099; [2016] 3 All SA 537): dictum in paras [73] – [75] applied

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd and Others 2014 (5) SA 138 (CC) (2014 (3) BCLR 265; [2013] ZACC 48): dictum in paras [135] – [136] applied

Du Bois v Stompdrift- Kamanassie Besproeiingsraad 2002 (5) SA 186 (C): E referred to

Du Preez and Another v Truth and Reconciliation Commission 1997 (3) SA 204 (A) (1997 (4) BCLR 531; [1997] 2 All SA 1): referred to

Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism and Another 2005 (3) SA 156 (C) ([2006] 2 All SA 44): dictum in paras [52] – [53] applied F

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Foulds v Minister of Home Affairs and Others 1996 (4) SA 137 (W): dictum at 149H applied

Gavric v Refugee Status Determination Officer, Cape Town [2016] 2 All SA 777 (WCC): referred to G

Helen Suzman Foundation v Judicial Service Commission and Others 2017 (1) SA 367 (SCA) ([2016] ZASCA 161): dictum in para [14] applied

Jeebhai and Others v Minister of Home Affairs and Another 2009 (5) SA 54 (SCA): referred to

Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) H 2010 (4) SA 327 (CC) (2009 (12) BCLR 1192; [2009] ZACC 23): dictum in para [64] applied

Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) (2001 (4) BCLR 312; [2001] ZACC 14): referred to

Magajane v Chairperson, North West Gambling Board and Others 2006 (5) SA 250 (CC) (2006 (2) SACR 447; 2006 (10) BCLR 1133; [2006] ZACC 8): referred to I

Mail & Guardian Media Ltd and Others v Chipu NO and Others 2013 (6) SA 367 (CC) (2013 (11) BCLR 1259; [2013] ZACC 32): distinguished

Makhetha v Minister of Police [2015] ZAGPPHC 928: referred to

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): referred to J

2019 (1) SA p24

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; A Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616; [2003] ZASCA 46): dictum in para [40] applied

Minister of Health and Others v Treatment Action Campaign and Others: In re Certain Amicus Curiae Applications 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023; B [2002] ZACC 13): referred to

Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) (2012 (10) BCLR 1017; [2012] ZACC 16): referred to

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120; [2003] ZASCA 142): referred to

MM v MN and Another 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; C [2013] ZACC 14): referred to

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685; [2001] ZACC 18): referred to

Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) D ([2006] 1 All SA 589; [2005] ZASCA 97): referred to

Nisec (Pty) Ltd v Western Cape Provincial Tender Board and Others 1998 (3) SA 228 (C): referred to

Nomala v Permanent Secretary, Department of Welfare, Eastern Cape and Another 2001 (8) BCLR 844 (E): referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; E 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Mogale GSJ 36/2009: referred to

Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC) (2018 (7) BCLR 856; [2018] ZACC 9): referred to

Snap-On Africa (Pty) Ltd v Joubert [2015] ZAGPPHC 821...