Brief Summary

Refugee Law — Extension of Section 22 Permits — Applicants, having had their applications for refugee status refused, sought to review the Third Respondent's decision not to extend their section 22 permits pending judicial review of their refugee status applications. The Third Respondent contended that she lacked the statutory authority to extend the permits after internal remedies were exhausted. The legal issue was whether the Refugees Act empowers the refugee reception officer to extend section 22 permits under such circumstances. The Court held that the Third Respondent has the discretion to extend section 22 permits even after an applicant has exhausted internal remedies, and her refusal to do so was reviewable and set aside as it was based on a misinterpretation of her statutory powers.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application in the Western Cape Division of the High Court, Cape Town, concerning the lawfulness of a decision by a Refugee Reception Officer (the Third Respondent) to refuse to extend asylum seeker permits issued under section 22 of the Refugees Act 130 of 1998.

The applicants were Cishahayo Saidi and twenty-seven other foreign nationals from various African countries, all of whom had applied for asylum in South Africa. The respondents were the Minister of Home Affairs, the Director-General of the Department of Home Affairs, the Acting Manager of the Cape Town Refugee Facility (Ms Thembi Ndlovu), the Standing Committee for Refugee Affairs and its chairperson (in a nominal capacity), and the Refugee Appeal Board and a member cited in a nominal capacity.

Procedurally, the matter was initially enrolled for hearing on 29 September 2015, but was postponed and ultimately heard on 3 November 2015, with judgment delivered on 26 November 2015. The application arose against the backdrop that each applicant’s asylum application had been refused, internal remedies under Chapter 4 of the Refugees Act had been exhausted, and each applicant had launched High Court review proceedings to challenge the refusal of refugee status. Those review proceedings were still pending.

The general subject-matter of the dispute was whether, pending those judicial reviews, the Refugee Reception Officer was empowered under the Refugees Act to extend section 22 permits, and whether her refusal to do so (based on her understanding that she lacked authority absent a court order) constituted reviewable administrative action.

2. Material Facts

It was largely common cause that the applicants had applied for asylum and, while their asylum applications were pending, they were issued with asylum seeker permits in terms of section 22(1) of the Refugees Act. These permits were extended from time to time while the asylum applications were being determined.

It was also common cause that each applicant’s asylum application was ultimately refused, and that the applicants exhausted the internal remedies available under Chapter 4 of the Act. After that, each applicant instituted judicial review proceedings in the High Court to review and set aside the refusal of refugee status. Those review proceedings had not yet been finalised at the time of this application.

A further material fact, accepted by the court, was that prior to the Third Respondent assuming office, the practice at the Cape Town Refugee Facility had been that section 22 permits were extended pending the finalisation of High Court review proceedings, apparently upon confirmation from the State Attorney that review proceedings had been launched.

The dispute crystallised when the Third Respondent adopted a different approach. She took the view that it was unlawful to extend section 22 permits once an asylum applicant had exhausted internal appeal and review remedies under Chapter 4, and that only a court could direct her to extend such permits pending judicial review. As a result, permits issued to the applicants were not extended (or were to cease being extended) on the basis that she considered herself not empowered under the Act to do so.

3. Legal Issues

The central legal question was whether section 22(3) of the Refugees Act empowers a Refugee Reception Officer to extend the period of a section 22 permit after an asylum seeker has exhausted the internal remedies provided for in Chapter 4 of the Act, where the person has instituted judicial review proceedings in the High Court.

Flowing from that, the court had to determine whether the Third Respondent’s refusal to extend the applicants’ permits, based on her perceived lack of power, was reviewable and liable to be set aside, particularly under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

A further issue addressed was whether, on the facts, the applicants had established a legitimate expectation that their permits would continue to be extended pending the finalisation of their judicial reviews, and if so, what consequence should follow from that finding. This portion of the dispute concerned the application of legal doctrine to the established facts, and then a remedial assessment as to whether the court should substitute its own decision or remit the matter.

Overall, the dispute primarily concerned questions of law (statutory interpretation and the scope of administrative power), coupled with the application of those legal principles to largely common-cause facts, and concluded with a remedial discretion regarding substitution versus remittal.

4. Court’s Reasoning

The court approached the matter primarily as one of statutory interpretation, stating that the starting point is to ascertain the intention of the legislature by considering the language used and, where the words are clear, giving them their ordinary grammatical meaning. In this connection, the court referred to established interpretive authority.

The court considered the interaction between section 21(4), section 22(1), and section 22(3) of the Refugees Act. It held that sections 21(4) and 22(1) are concerned with an asylum applicant up to the point where a decision has been made and, where applicable, the person has had the opportunity to exhaust the internal rights of review or appeal under Chapter 4. The language of section 22(1) was emphasised as being peremptory: the Refugee Reception Officer must issue an asylum seeker permit pending the outcome of an application.

By contrast, the court read section 22(3) as conferring a discretion to extend permits “from time to time”. The court reasoned that it would be inconceivable for the legislature to confer a discretion to issue or extend permits in circumstances where the Refugee Reception Officer is already obliged by law to issue them. In the court’s view, section 22(3) must therefore have been designed to deal with instances outside the period where the Refugee Reception Officer’s duties are strictly compelled under section 22(1), and it noted that section 22(3) makes no reference to the exhaustion of internal appeals and reviews. The court treated this omission as meaningful in context.

On that basis, the court concluded that section 22(3) indeed provides the Refugee Reception Officer with the power (and discretion) to extend a section 22 permit in circumstances where an asylum application has been refused and the applicant has instituted judicial review proceedings. The court thus rejected the Third Respondent’s position that she lacked authority absent a court order.

Having found that the Third Respondent had the statutory power to extend the permits, the court considered whether her refusal decision should be reviewed under PAJA. The respondents accepted that the decision fell within the definition of administrative action contemplated in PAJA, and contended that it remained valid until set aside. The applicants advanced multiple PAJA review grounds, including material error of law, irrationality, unreasonableness, and unlawfulness/unconstitutionality.

The court’s reasoning focused on the error of law ground. It held that because the Third Respondent refused to extend the permits on the mistaken basis that she lacked statutory authority, her decision was materially influenced by an error of law as contemplated in section 6(2)(d) of PAJA. On that ground alone, the court held the decision fell to be reviewed and set aside.

The court then addressed legitimate expectation. It adopted the requirements articulated in the cited authorities, and noted that the respondents did not dispute the first three requirements (a clear representation, reasonableness, and that the representation was induced by the decision-maker). The respondents’ challenge centred on the requirement that the representation must be competent and lawful for the decision-maker to make. That objection depended on the premise that the Act did not empower extensions after internal remedies had been exhausted. Since the court had already found that section 22(3) does empower such extensions, the respondents’ objection fell away. The court was therefore satisfied that the applicants had established a legitimate expectation that their permits would be extended.

In relation to remedy, the applicants sought an order directing the Third Respondent to issue the permits, which was framed as an argument for substantive legitimate expectation. The court was not persuaded that it was appropriate to compel the extension of permits by way of substitution. Two principal considerations were identified. First, the Third Respondent had laboured under a material error of law and therefore had not exercised the discretion conferred by section 22(3) at all. Second, the court considered there to be insufficient material (beyond personal details) to assess whether refusal or extension would be reasonable in each case, and held this was a matter requiring fresh consideration by the Third Respondent now that she was aware of her discretion. The court therefore considered remittal to be the appropriate remedy.

Finally, as the applicants were successful, the court saw no reason to depart from the ordinary rule that costs follow the result.

5. Outcome and Relief

The court made a declaratory order that section 22(3) of the Refugees Act 130 of 1998 vests a Refugee Reception Officer with a discretion to extend section 22 permits from time to time, including after an applicant for asylum has exhausted internal rights of review or appeal under Chapter 4 of the Act.

The decision refusing to extend the applicants’ permits was reviewed and set aside, and the matter was remitted to the Third Respondent for reconsideration.

The respondents were ordered to pay the applicants’ costs.

Cases Cited

Venter v R 1907 TS 910.

National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W).

South African Veterinary Council v Szymanski 2003 (4) SA 42 (SCA).

Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C).

KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, KwaZulu-Natal and Others 2013 (4) SA 262.

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC).

Legislation Cited

Refugees Act 130 of 1998, sections 21(4), 22(1), and 22(3), and Chapter 4.

Promotion of Administrative Justice Act 3 of 2000, section 3 and section 6(2)(d), section 6(2)(f)(ii), and section 6(2)(h).

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court held that section 22(3) of the Refugees Act confers a discretionary power on a Refugee Reception Officer to extend an asylum seeker permit even after an asylum seeker has exhausted internal appeal and review remedies under Chapter 4, including where judicial review proceedings are pending in the High Court.

It further held that the Third Respondent’s refusal to extend the applicants’ permits was reviewable under PAJA and had to be set aside because it was materially influenced by an error of law, namely the mistaken view that she lacked statutory power absent a court order.

The court held that the applicants had established a legitimate expectation that permits would be extended, but declined to substitute its own decision by ordering extensions, and instead remitted the matter for proper exercise of the statutory discretion.

LEGAL PRINCIPLES

The judgment applied the principle that statutory interpretation begins with the language of the statute, construed according to its ordinary grammatical meaning where clear, in order to ascertain the legislative intention.

It applied the distinction between peremptory statutory duties and discretionary powers, holding that where a statute uses mandatory language (such as “must”), it imposes a duty, whereas separate provisions using permissive language (such as “may”) can confer a discretion intended to operate in circumstances not covered by the mandatory duty.

It applied the PAJA principle that administrative action is reviewable where the decision is materially influenced by an error of law (as contemplated in section 6(2)(d) of PAJA), and that such an error can be dispositive without requiring determination of other review grounds.

It applied the doctrine of legitimate expectation in accordance with the stated requirements, including that the underlying representation must be clear, reasonable, induced by the decision-maker, and lawful and competent for the decision-maker to make.

It applied remedial principles relevant to administrative review, indicating that where a decision-maker has not exercised a discretion due to an error of law, and where the court lacks sufficient material to determine the merits, the appropriate remedy is generally to set aside and remit rather than to substitute the court’s decision for that of the administrator.

Saidi and Others v Minister of Home Affairs and Others (17770/15) [2015] ZAWCHC 201 (26 November 2015)