About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 40
|
|
Bhuiyan and Others v Minister of Home Affairs and Another (2585/2011, 2599/2011) [2011] ZAECPEHC 40 (15 September 2011)
Page
|
17
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
In the matters between:
ALI BHUIYAN
…..........................................................
Applicant
in Case No: 2585/2011
NUR ISLAM
…..............................................................
Applicant
in Case No: 2586/2011
IFTEHAR AHMED
…....................................................
Applicant
in Case No: 2587/2011
MOSAROF MOSAROF
…............................................
Applicant
in Case No: 2588/2011
RIAD HOWLADER
…...................................................
Applicant
in Case No: 2589/2011
YOUSUF IQBAL
….......................................................
Applicant
in Case No: 2590/2011
SAIFUL ISLAM RANA
….............................................
Applicant
in Case No: 2591/2011
AKASH RAJNIBHAI
…................................................
Applicant
in Case No: 2592/2011
SAYED MOHAMMED FAZUL ALAM
…......................
Applicant
in Case No: 2593/2011
IMAN HOSSAIN
….......................................................
Applicant
in Case No: 2594/2011
RASEL GOLAM
….......................................................
Applicant
in Case No: 2595/2011
KADIRE IBIRO ERSUMO
…........................................
Applicant
in Case No: 2599/2011
And
THE MINISTER OF HOME AFFAIRS
…..................................................
1
st
Respondent
DIRECTOR GENERAL: DEPARTMENT OF
HOME AFFAIRS
…..........
2
nd
Respondent
Coram:
Chetty, J
Heard:
1 September 2011
Delivered:
15 September 2011
Summary:
Practice and
Procedure
– Urgent applications – Time limits imposed
for filing of opposing affidavits woefully inadequate – Abuse
of
process –
Immigration Act
– Illegal foreigners
– Applies to all persons entering the Republic of South Africa
in contravention of Act –
Mere intention to apply for refugee
status not triggering operation of
Refugees Act
.
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
1. There has of late developed an
unfortunate practice of launching applications on the grounds of
extreme urgency affording the
state attorney grossly insufficient
time, not only to obtain instructions from various government
departments, but moreover from
drafting opposing affidavits within
truncated time periods imposed by attorneys representing the
applicants. The majority of the
matters currently in vogue, concern
applications by illegal foreigners in which the relief sought is
either for his/her immediate
release from custody pending a
determination of such person’s status, whether as refugee or
asylum seeker and, to prohibit
such persons deportation pending the
finalization of the aforesaid proceedings.
2. The tendency has been to file the
certificate of urgency, which the practice rules require be placed
before a judge before the
papers are read, either late on Wednesday
or on a Thursday or Friday morning in the expectation that interim
relief, whether an
order for the applicant’s immediate release
or an order preventing his/her deportation, will be obtained.
Persuaded, no doubt,
by the uncontested version of the applicants,
the relief is granted, and the matter then postponed for later final
adjudication,
invariably the following week’s opposed motion
court day. Certificates of urgency in each of these matters were
placed before
the duty judge on Wednesday, 24 August 2011. It would
appear that, given the orders which issued on Friday, 26 August 2011,
that
the judge was satisfied that the matters were sufficiently
urgent so as to warrant an abridgment of the time limits. Given the
limited period within which to file the answering papers, a task
which proved to be well nigh impossible given the volume of the
applications, the respondents were constrained to agree to a
postponement. In each matter an order issued in terms of which the
respondents were directed not to deport the individual applicants,
the matters were postponed to the following weeks opposed motion
court roll and orders were made relating to the filing of further
affidavits and heads of argument.
3. When the first matter was called I
directed counsel’s attention to the fact that in none of the
matters had there been
compliance with the practice directions
relating to the indexing and pagination of the papers. No proper
explanation for this unsatisfactory
state of affairs could be
advanced and in the ordinary course I would have struck the matters
from the roll. However such a course
would only have burdened the
opposed motion court roll for the following week and I decided that,
given the similarity of the various
matters, that they be heard as
one.
[4] The applicants are predominantly
from Bangladesh, save for the applicants in case no’s 2592/2011
and 2599/2011 who are
from India and Ethiopia respectively. The
relief sought and the legal contentions advanced in each of the
matters are identical
and the parties were in agreement that the
outcome of one matter would determine the fate of each of the others.
The same counsel
moreover appeared for all the applicants and so too
those representing the respondent. The same argument was consequently
advanced
on behalf of the applicants collectively.
4. The orders sought in each instance
are framed as follows: -
“
2.1 That the Second Respondent is directed to assist the
Applicant to properly complete an application for asylum, in the form
as
prescribed in Annexure 1 of the Refugee Regulations (Forms and
Procedure) 2000, at the Refugee Reception Office nearest the
Applicant’s
current location and at a date and time deemed meet
by the above Honourable Court;
2.2 That, upon the completion of paragraph 2.1 supra, the
Respondents are compelled to comply fully with the provisions of
section 21
of the
Refugees Act 130 of 1998
;
2.3 That any process of deportation currently pending in respect
of the Applicant be cancelled;
2.4 That the Applicant be released, immediately, from detention;”
5. It will be
gleaned from the aforegoing that the relief sought is predicated upon
the supposition that each of the applicants
are asylum seekers and
their fate, as such, falls to be determined in accordance with the
provisions of the
Refugees
Act
1
.
The respondents on the other hand contend that the applicants are
illegal foreigners as defined in the
Immigration
Act
2
(the Act) and
liable for deportation in accordance with the provisions thereof.
6. It is common
cause that, save for Mr.
Kadire
Ibiro Ersumo
(
Ersumo
),
who was arrested on 15 August 2011 in Willowmore, the remaining
applicants were all arrested outside the Port Elizabeth refugee
reception office (RRO). That fact alone, declared counsel for the
applicants, evinced a clear intention on the part of each applicant
to seek asylum. Consequently, so he submitted, they could not be
regarded as illegal foreigners as defined in the Act nor was the
Act
applicable to them. The argument is fallacious.
7. The Act,
inter
alia
,
regulates the admission of all persons to, their residence in, and
their departure from the Republic of South Africa. The purpose
of the
Act is to be found in its preamble. It is devoted to foreigners and
regulates their entry to and departure from the Republic
of South
Africa, their residence in this country and is aimed at setting in
place a system of immigration control which is aimed
at ensuring
that:-
“
(a) temporary and permanent residence
permits are issued as expeditiously as possible and on the basis of
simplified procedures
and objective, predictable and reasonable
requirements and criteria, and without consuming excessive
administrative capacity;
(b) security considerations are fully satisfied and the State
retains control over the immigration of foreigners to the Republic;
(c) interdepartmental coordination and public consultations enrich
the functions of immigration control;
(d) economic growth is promoted through the employment of needed
foreign labour, foreign investment is facilitated, the entry of
exceptionally skilled or qualified people is enabled, skilled human
resources are increased, academic exchanges within the Southern
African Development Community is facilitated and tourism is promoted;
(e) the role of the Republic in the continent and the region is
recognised;
(f) the entry and departure of all persons at ports of entry are
efficiently facilitated, administered and managed;
(g) immigration laws are efficiently and effectively enforced,
deploying to this end significant administrative capacity of the
Department of Home Affairs, thereby reducing the pull factors of
illegal immigration;
(h) the South African economy may have access at all times to the
full measure of needed contributions by foreigners;
(i) the contribution of foreigners in the South African labour
market does not adversely impact on existing labour standards and
the
rights and expectations of South African workers;
(j) a policy connection is maintained between foreigners working
in South Africa and the training of our citizens;
(k) push factors of illegal immigration may be addressed in
cooperation with other Departments and the foreign states concerned;
(l) immigration control is performed within the highest applicable
standards of human rights protection;
(m) xenophobia is prevented and countered;
(n) a human rights based culture of enforcement is promoted;
(o) the international obligations of the Republic are complied
with; and
(p) civil society is educated on the rights of foreigners and
refugees.”
8. Section 9 of the Act governs the
admission to and departure of persons from the Republic of South
Africa and provides as follows:
-
“
9 Admission
and departure
(1) Subject to this Act,
no person shall enter or depart from
the Republic at a place other than a port of entry.
(2) Subject to this Act, a citizen shall be admitted, provided
that he or she identifies himself or herself as such and the
immigration
officer records his or her entrance.
(3)
No person shall enter or depart from the Republic-
(a)
unless
in possession of a valid passport
;
(b)
unless,
if he or she is a person under the age of 16 years who does not hold
a passport, he or she is accompanied by his or her
parent who holds a
passport in which his or her name was entered in terms of the South
African Passports and Travel Documents Act,
1994 (
Act
4 of 1994
), or on
behalf of any government or international organisation recognised by
the Government of the Republic;
(c)
except
at a port of entry
, unless-
(i) in
possession of a certificate issued by the Director-General granting
permission upon application to enter
or depart from the Republic at a
place other than a port of entry within a certain period not
exceeding six months at a time, provided
that for good cause the
Director-General may withdraw such permission; or
(ii) exempted as an individual or falling within
a category of persons exempted by the Minister, on the recommendation
of the Director-General, which exemption may be withdrawn by the
Minister;
(d)
unless the entry or departure is
recorded by an immigration officer; and
(e)
unless examined by an immigration
officer as prescribed.
(4) A foreigner who is not the holder of a permanent residence
permit may only enter the Republic as contemplated in this section
if-
(a)
his or her passport is valid for not
less than 30 days after the expiry of the intended stay; and
(b)
issued with a valid temporary
residence permit, as set out in this Act.”
(emphasis
supplied)
In terms of the definition section, an
illegal foreigner is thus defined as
“
a foreigner who
is in the Republic in contravention of this Act”
.
9. The circumstances under which each
of the applicants entered the Republic of South Africa emanate not
from themselves but from
third persons who allege that they are
either related to or friends of the individual applicants. Mr.
Mohin
Uddin
(
Uddin
) deposed to both the founding
affidavit and answering affidavit in
Bhuiyan
,
Ahmed
,
Mosarof
,
Iqbal
, and
Rana
; Mr.
Rajesh Patel
(
Patel
) in
Rajnibhai
;
Rafiqul Islam
(
Islam
) in
Islam
and
Howlader
; Mr.
Alfaj
Ahmed
(
Ahmed
) in
Alam
and
Golam
and Mr.
Hossain Saym
(
Saym
) in
Hossain
.
Each of them moreover described themselves as Bangladesh citizens and
asylum seekers. The reason advanced why they and not the
applicants
themselves deposed to the affidavits is that by virtue of the
applicants’ incarceration in the Lindela repatriation
facility
in Gauteng, they were unable to themselves depose to the affidavits.
Whence and how the Applicants
came into the Republic of South Africa
10. The circumstances in which each of
the applicants came into the Republic of South Africa appear from the
founding affidavits,
and, shorn of excess verbiage, can be summarized
as follows –
10.1
Bhuiyan
allegedly left
Bangladesh on 15 June 2011 and entered the Republic of South Africa
on 28 June 2011 via Mozambique. How he got there
and thence to Port
Elizabeth is not adverted to, save that he arrived in Port Elizabeth
and met up with
Uddin
. On 19 August 2011 he was
standing in the queue outside the RRO when he was arrested and
detained.
10.2
Islam
and
Howlader
allegedly landed together at Cape Town International airport by air
on 18 June 2011, arrived in Port Elizabeth on 19 June 2011,
and were
arrested whilst queuing at the RRO in Port Elizabeth on 19 August
2011. How the two of them arrived in Port Elizabeth
is not disclosed.
10.3
Ahmed
allegedly fled
Bangladesh on 15 July 2011, entered the Republic via Mozambique on 19
July 2011 and was arrested in a queue at the
RRO on 17 August 2011.
10.4
Mosarof
fled Bangladesh on
20 July 2011, entered the Republic and was also arrested in a queue
outside the RRO on 17 August 2011.
10.5
Iqbal
fled Bangladesh on
18 June 2011, arrived in the Republic on 1 July 2011 and was arrested
whilst standing in a queue outside the
RRO on 19 August 2011.
10.6
Rana
fled Bangladesh on 3
August 2011, arrived in the Republic via Mozambique on 10 August 2011
and was arrested standing in a queue
outside the RRO on 19 August
2011.
10.7
Rajnibhai
fled India,
landed on some unspecified date at O.R. Tambo International, arrived
in Port Elizabeth on 26 June 2011 and was arrested
in a queue outside
the RRO on 17 August 2011.
10.8
Alam
entered the Republic
via Mozambique on some unspecified date during July 2011, came to
Port Elizabeth four days later and was arrested
in a queue outside
the RRO on 17 August 2011.
10.9
Hossain
entered Mozambique
on 30 July 2011, exited therefrom through a forested area into the
Republic of South Africa on 3 August 2011,
and was arrested in a
queue outside the RRO on 17 August 2011.
10.10
Golam
too entered the
Republic on some unspecified date during July 2011 through a forested
area from Mozambique and was arrested in
a queue outside the RRO on
17 August 2011.
11. Each of the applicants lay claim
to asylum on an identical basis, formulated as: -
“
. . . due to severe political persecution which he was
subjected to by the members of the opposing parties. The situation
became
intolerable for the Applicant in Bangladesh and he decided to
flee from the said country and seek asylum elsewhere.”
The Indian national,
Rajnibhai
,
similarly lays claim to asylum but on the grounds of religious
persecution by virtue of his Islamic faith in a predominantly Hindu
society.
12. The aforegoing synopsis of the
applicants’ flight from and travails en route to their ultimate
destination, viz, Port
Elizabeth are sourced entirely from the
founding affidavits deposed to by
Uddin
,
Islam
,
Patel
,
Ahmed
and
Saym
. They
contend that their hearsay accounts of the applicants’
circumstances are a true reflection of what had been relayed
to them
by the applicants themselves at the Mount Road police station
following upon their incarceration.
13. The aforegoing constituted the
factual matrix upon which relief was sought as a matter of extreme
urgency. The applicants were
portrayed as genuine asylum seekers and
the actions of the respondents’ officials lambasted. Their
conduct, the deponents
claimed, was so deplorable that a punitive
costs order was imperatively called for.
14. The respondents were, as
adumbrated hereinbefore, required to file their opposing affidavits
by no later than 12 noon on Thursday,
25 August 2011 i.e. in 24 hours
time. When the matter was called on 26 August 2011, they were
afforded further time to comply,
viz, until 2 p.m. on Thursday, 30
August 2011. In terms of a time table agreed upon, the replying
papers were to be filed by 1
p.m. on Wednesday and heads of argument
by 15h30 the same day.
15. The opposing papers, and in
particular, the applicants’ passports, tell an entirely
different story. It demonstrates that
the versions deposed to by the
deponents in the founding affidavits as allegedly conveyed to them by
the applicants to be a total
and utter fabrication.
15.1
Bhuiyan
was issued with a Bangladesh passport
at the Bangladesh High Commission in Pretoria on 19 July 2011. His
South African address is
reflected as 5977 Enkuluek, Weni,
Queenstown, Republic of South Africa. Following his alleged flight
from Bangladesh owing to
“
political persecution”
he nonetheless, on arrival
surreptiously in South Africa repaired to the Bangladesh High
Commission to apply for a Bangladesh passport.
15.2
Islam’s
passport bears the date 6 June 2011
and the stamp of the Bangladesh High Commission, Pretoria. On a page
titled
“
observations”
,
his South African address is reflected as 26 Park Road, Mansions,
Germiston, Republic of South Africa. The visa section of the
passport
is endorsed with the remark that his passport had gone missing.
During argument, I invited Mr.
Moorhouse’s
response to the fact that
Islam’s
passport contained no South African
passport control entry stamp. His immediate answer was that it was
not inconceivable that those
entrusted with the stamping of passports
at Cape Town International airport may have omitted to do so.
Scrutiny of the passport
itself proves, not only that Mr.
Moorhouse’s
submission is nonsensical, but that it
is moreover contrived. He must have realized when reading the
opposing papers that the passport
had been issued in Pretoria 12 days
prior to
Islam
arriving in the country. Counsel’s
conduct in making the aforesaid submission is, to say the least,
astounding and reprehensible.
15.3
Ahmed
had a valid Bangladesh passport issued
to him in Sylhet, Bangladesh which had been renewed until 2014.
15.4
Mosarof’s
Bangladesh passport bears a stamp of
the Mozambican Immigration control which records his arrival in that
country on 9 July 2011.
No exit stamp nor South African immigration
entry stamp is to be found therein.
15.5
Howlader’s
passport was issued to him in Pretoria
at the Bangladesh High Commission on 29 July 2011 and reflects a
South African address,
to
wit
, 2 Bulrush Street,
Arcadia, Port Elizabeth, Republic of South Africa. The founding
affidavit in his application reflects that after
landing in South
Africa on 18 June 2011 at Cape Town International Airport, he arrived
in Port Elizabeth on 19 June 2011 and remained
here until his arrest.
His passport proves the falsity of the allegations proffered on his
behalf that he arrived in South Africa
from Bangladesh on 18 June
2011 with
Islam
.
Like the latter, his passport bears no South African passport control
entry stamp.
15.6
Iqbal
holds a Bangladesh passport valid
until 22 June 2013. The visa section contains a number of stamps, the
last, a stamp by the Tanzanian
authorities on 29 March 2011.
15.7
Rana’s
passport shows that he left Dhaka in
Bangladesh on 28 May 2011. The visa section contains a stamp of the
Mozambican authorities
that he entered that country on 2 June 2011.
15.8
Alam’s
Bangladesh passport was issued in
Bangladesh on 19 August 2008. The visa section bears a Mozambican
stamp and is dated 10 July 2011.
15.9
Hossain’s
Bangladesh passport was issued on 27
April 2009 and reflects that he left Dhaka on 19 July 2011. The visa
section indicates that
he was issued with a visa to visit Mozambique.
15.10
Golam
was issued with a Bangladesh passport
in Pretoria at the Bangladesh High Commission on 20 July 2011. It
contains an endorsement
to the effect that his existing passport had
gone missing. It moreover contains an address, being his South
African address, as,
Bloemfontein, Republic of South Africa.
15.11
Rajnibhai’s
passport conclusively establishes the
falsity of the averments made in the founding affidavit. His Indian
passport was issued on
10 November 2010. It shows that he left
Mumbai, India on 22 July 2011. The allegations made in the founding
affidavit that he arrived
in Port Elizabeth on 26 June 2011 is
clearly false and so too the further allegations that he was taken to
the Refugee Reception
Office in Port Elizabeth on 6 July 2011. His
passport further indicates that his passport was stamped at O.R.
Tambo as
“
transit
”
in
conformity with a transit visa issued to him in terms of which he was
permitted 72 hours sojourn in South Africa en route to
and from
Mozambique.
16. What emerges from the aforegoing
analysis of the applicants travel documents and the plethora of lies
made in support of their
claim to be refugees is that the applicants
are clearly not refugees. They journeyed to South Africa for no other
purpose save
their economic salvation. They are, to borrow the
phraseology of Mr.
Bofilatos
,
economic migrants, and nothing else. Refugees or asylum seekers they
certainly are not.
17. Yet, in order to circumvent the
provisions of the Act, attorneys acting on their behalf on a weekly
basis, regularly launch
several applications, all on an urgent basis,
in which the relief sought is the
“
refugee’s
”
or
“
asylum seeker’s”
immediate release, that he be assisted
in applying for refugee status, and costs of suit on a punitive
scale. There are, no doubt,
cases where persons genuinely seek asylum
and the courts will, where appropriate, come to their assistance.
None of these matters
nor the overwhelming majority of the others
which routinely clog the court rolls fall into that category. These
cases epitomize
the abuse which has hitherto endured.
18. Although the aforegoing remarks
are of equal application to the
Ersumo
matter, I deal separately with his,
merely for the sake of convenience. He deposed to his own affidavit.
He too, in common with
the other applicants, claims to have fled his
country of origin, Ethiopia, as a result of political persecution and
seeks asylum
in South Africa. To that end he alleges that he
journeyed from there to Kenya and thence to Zimbabwe and entered
South Africa at
the Musina border post at the end of May 2011. He
alleges that he was issued with an asylum transit visa and made his
way to Pretoria.
There his attempts to apply for asylum at the local
Refugee Reception Office proved unsuccessful and he then proceeded to
the North
West Province. En route thereto, his belongings, including
his asylum transit visa, was stolen which he duly reported to the
Wolmaranstad
police station. The respondent confirms that the
applicant reported to the Wolmaranstad police station on 10 June 2011
and made
a written statement to them. It appears that the applicant
was then furnished with a copy of the statement.
19. The applicant alleges that he then
journeyed to his cousin in Willowmore and thence to Cape Town where
his application for asylum
was frustrated by the respondents’
officials. He then decided to return to Willowmore with the intention
of then going to
Port Elizabeth to apply for asylum, but he was then
arrested on the ground that he was an illegal foreigner. In his case
too, the
argument was advanced that by virtue of his intention to
apply for asylum, the
Act
was not of application and that he
fell to be dealt with in accordance with the provisions of the
Refugees Act
>. As adumbrated hereinbefore the argument advanced
is untenable.
20. The Act is of general application
to all persons who enter the Republic of South Africa. Entrance, in
contravention of the provisions
of the Act is unlawful and anyone
doing so is an illegal immigrant,
caedit quaestio
. If such
person thereafter wishes to apply for asylum then he/she is of course
entitled to seek such recognition in terms of the
provisions of the
Refugees Act
>. Pending the finalization of that process, he/she
remains an illegal foreigner and liable to be dealt with in terms of
the provisions
of the Act.
21. It follows that none of the
applicants are entitled to the relief they seek and that the
applications fall to be dismissed.
Costs
22. Counsel for the applicants
submitted that in the event of their applications being dismissed,
they not be mulcted with costs
in as much as the applications involve
constitutional litigation. This submission, in conformity with the
others, is plainly nonsensical.
The averments made and the legal
submissions which flowed therefrom are contrived and this is a proper
case where an adverse costs
order against each of the applicants is
justified.
23. In the result the following orders
will issue: -
In each of the matters, case no’s,
2585/2011, 2586/2011, 2587/2011, 2588/2011, 2589/2011, 2590/2011,
2591/2011, 2592/2011,
2593/2011, 2594/2011, 2595/2011 and 2599/2011,
the applications are dismissed with costs on a scale as between
attorney and client.
________________________
D. CHETTY
JUDGE
OF THE HIGH COURT
Obo of the 1
st
to 11
th
Applicants: Adv A.C Moorhouse
Instructed by: Jogee Ahmed Attorneys,
Suite 3, Bolton Chambers, 587 Govan Mbeki Ave, North End, Port
Elizabeth, Tel: (041) 4841893
Obo the 12
th
Applicant: Adv
A.C Moorhouse
Instructed by:
McWilliams & Elliott, 83 Parliament Street, Central, Port
Elizabeth, Ref: T. Radloff,
Tel:(041)
582 1250
On behalf of the Respondents: Adv M
Bofilatos SC / Adv S. Rugunanan
Instructed by: State Attorneys, 29
Western Road, Central, Port Elizabeth, Tel: (041) 585 7921 Ref: L
1
Act
No, 130 of 1998
2
Act
No, 13 of 2002