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[2016] ZAECPEHC 85
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Okoroafor v Minister of Home Affairs and Another (3536/2016) [2016] ZAECPEHC 85; 2017 (3) SA 290 (ECP) (18 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 3536/2016
Date Heard: 13
October 2016
Date Delivered: 18
October 2016
In
the matter between:
OGWO
CHUKWU OKOROAFOR
Applicant
and
MINISTER
OF HOME AFFAIRS
First Respondent
DIRECTOR
GENERAL OF HOME AFFAIRS
Second
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The
applicant is a Nigerian national who claims to have come to South
Africa in order to seek asylum. He has been in South
Africa for
an extended period and it is common cause that he has never
personally submitted an application for an asylum seeker
permit.
During 2016 he was encountered by an immigration officer under the
Immigration Act, 13 of 2002 (herein the
Immigration Act) and
has been
arrested as an illegal immigrant. He is currently in detention
pending deportation. The applicant seeks his
immediate release
and certain ancillary relief as appears later herein so as to enable
him to apply for asylum.
[2]
There are
numerous disputes of fact which arise on the papers. I think
that it is fair to say that the respondents have established,
with
the assistance of a considerable volume of documentation, that the
bulk of the averments made by the applicant are patently
false.
In any event, the applicant seeks final relief and it is now well
established that where disputes of fact arise on
affidavits, a final
order may only be granted if those facts averred in the applicant’s
affidavits which have been admitted
by the respondent, together with
the facts alleged by the respondent, justify such an order.
(See
Stellenbosch
Farmers’ Winery Limited v Stellenvale Winery (Pty) Limited
1957 (4) SA 234
(C) at 235E-G and
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints
(Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-I.)
[3]
The facts
which are to be accepted for purposes of the adjudication of the
present matter reveal that the first respondent entered
South Africa
on 9 June 2013 under a visitor’s permit. The applicant’s
file at the Department of Home Affairs
further contained a document
purporting to be an asylum seeker temporary permit and purportedly
issued in favour of the applicant
on 9 December 2013. It is
evident,
ex
facie
the permit, that the conditions stated in the permit were
acknowledged and accepted by one Hu Guiqin. In terms of the
provisions
of the Refugees Act, 130 of 1998 (herein the
Refugees Act)
an
applicant for an asylum seeker permit is to report and apply
personally and he must accept and agree the conditions stipulated in
the permit. The immigration officer who investigated the
applicant’s circumstances, one Klaasen, therefore checked
the
permit number on the National Immigration System which contains a
record of all the issued permits and numbers. He established
that the permit in issue was allocated to a different permit holder
and accordingly the permit in the applicant’s file was
fraudulently obtained.
[4]
Klaasen
established that on 7 February 2014 the applicant, armed with this
fraudulent document, made an application for a change
of his existing
status as envisaged in
section 10(6)
of the
Immigration Act. He
sought to change his status from a holder of a temporary asylum
seeker permit to a relative’s visa as contemplated in
section
18
of the
Immigration Act, subject
to the condition that he reside
with his South African life partner. The applicant was
represented at the time by a registered
immigration practitioner.
[5]
Klaasen’s
investigations reveal that the application for a relative visa issued
on the basis of a permanent life partner was
also fraudulently sought
and obtained in that no permanent life partner ever existed. He
traced the alleged life partner
and obtained an affidavit from her
wherein she confirmed that she has never had a relationship with the
applicant but was paid
a certain amount of money in order to purport
to marry him.
[6]
In view of
these circumstances Klaasen brought charges against the applicant in
terms of the provisions of
section 49
of the
Immigration Act.
Two
charges were levelled against him relating to his presence in
South Africa and the fabrication of documentation. The
applicant
pleaded guilty to both charges on 21 September 2016 and was
duly convicted. In respect of the first count, he was sentenced
to a fine of R1 000 or 1 (one) month imprisonment and on count
two he was sentenced to 3 (three) months imprisonment without
the
option of a fine which was suspended for a period of three (3)
years.
[7]
Upon the
applicant’s release from prison following the payment of the
fine referred to earlier Klaasen arrested the applicant
in terms of
the provisions of
section 34
of the
Immigration Act as
an illegal
foreigner. The applicant’s constitutional rights
contained in section 35 of the Constitution were duly explained
to
him and he signed an acknowledgement of receipt thereof.
Klaasen further delivered a notice to him apprising him that
he had
been declared an undesirable person as envisaged in
section 30(1)(g)
of the
Immigration Act and
explained the import thereof to him.
A notice of a decision adversely affecting his rights in accordance
with section 8(3)
of the
Immigration Act, including
the reasons
therefore and a notification of deportation as envisaged in
section
34(1)(a)
of the
Immigration Act were
handed to him and the content
was explained to him. Klaasen contends that the applicant
refused to sign the documentation
as an acknowledgement of receipt
thereof. In these circumstances, although the applicant had not
specifically requested that
the detention warrant be confirmed by a
magistrate, Klaasen proceeded to have the warrant confirmed by a
magistrate in terms of
section 34(1)(b)
of the
Immigration Act.
This
was duly done on 23 September 2016.
[8]
It is
common cause that whilst the applicant was detained pending
deportation legal representation was arranged through a relative
who
is resident in South Africa. His legal representative visited
him in detention and after consulting with the applicant
advised the
immigration officers that the applicant intended to apply for asylum
and accordingly requested his release and the
issue of a permit in
terms of
Regulation 2(2)
of the regulations published in terms of the
Refugees Act. The
immigration officers, however, refused.
[9]
Regulation
2(2)
of the regulations provides:
“
(2) Any
person who entered the Republic and is encountered in violation of
the Aliens Control Act, who has not
submitted an application pursuant
to subregulation 2(1), but indicates an intention to apply for asylum
shall be issued with an
appropriate permit valid for 14 days within
which they must approach a Refugee Reception Office to complete an
asylum application.”
(The
Aliens Control Act has been repealed and the
Immigration Act
substituted
therefor.)
[10]
Regulation
2(2)
has been the subject of scrutiny of the Supreme Court of Appeal
on numerous occasions. In
Bula
and Others v Minister of Home Affairs
and
Others
2012 (4) SA 560
the Supreme Court Appeal held that it was not
incumbent upon an individual to indicate his intention to apply for
asylum at the
time of his arrest. Where an attorney
subsequently advised the Department of Home Affairs of the intention
of the individual
to apply for asylum he is entitled to be treated in
terms of
Regulation 2(2)
, to be freed from detention and to be issued
with an appropriate permit valid for fourteen days within which he is
obliged to approach
a Refugee Reception Office. The applicant
accordingly contends that he is entitled to be issued with a
Regulation 2(2)
permit.
[11]
The
respondents, however, contend that the applicant is precluded from
submitting an application for an asylum seeker permit by
virtue of
the provisions of
section 4
of the
Refugees Act. The
material
portion of
section 4
provides:
“
Exclusion
from refugee status
(1)
A person does not qualify
for refugee status for the purposes of this Act if there is reason to
believe that he or she-
(a)
…
(b)
has committed a
crime which is not of a political nature and which, if committed in
the Republic, would be punishable by imprisonment;
…”
[12]
The
respondents argue that the undisputed facts reveal that the applicant
was convicted of two crimes committed in the Republic
of South Africa
relating to contraventions of the
Immigration Act and
was sentenced
to three months imprisonment without the option of a fine, suspended
for a period of three years.
[13]
It is
contended therefore firstly that on a proper interpretation of
section 4(1)(b)
of the
Refugees Act it
should be read to refer not
only to offences committed outside of the Republic of South Africa
but also to offences committed in
South Africa; and secondly that the
Immigration officers correctly concluded that applicant is therefore
not entitled to apply
for an asylum seeker permit.
[14]
In support
of the latter contention I have been referred to the judgment of
Abdi
v Minister of Home Affairs
2011 (3) SA 37
(SCA) at 48A-B where Bertelsmann AJA stated:
“
The
Department's officials have a duty to ensure that intending
applicants for refugee status are given every reasonable opportunity
to file an application with the relevant refugee reception office —
unless the intending applicant is excluded in terms of
s 4 of the
Act.”
[15]
The Supreme
Court of Appeal in Abdi’s matter were not called upon to
consider the interpretation of section 4 of the Act and
did not
attempt an interpretation thereof. I do not consider that the
Supreme Court of Appeal attempted thereby to lay down
a rule of law
that any person who may fall into one of the categories set out in
section 4 is precluded from making application
for asylum and the
dictum appears to me to be obiter.
[16]
In further
support of this contention and the contention that section 4(1)(b)
relates not only to offences committed outside of
the Republic of
South Africa but also to offences committed in the Republic, I was
referred to the unreported judgment in this
Division of
Ozoekwe
v Minister of Home Affairs
(case no. 2674/2008 delivered on 26 February 2009. In
Ozoekwe
,
Jones J referred to
section 4(1)(b)
of the
Refugees Act and
at para
[7] stated:
“
The applicant suggested that he
is not hit by the exclusion because the section applies only in the
event of the commission of a
crime in the country of origin and not
in the Republic. In my opinion that interpretation of the
section is so absurd as
to be preposterous; if a crime is
committed in the Republic and if it is punishable here with
imprisonment, it falls within
the section just as much as it would
have if it were committed elsewhere. The result is that the
respondents’ officials
need not have considered the applicant’s
application for asylum at all. He had no right to bring it.”
[17]
In
considering the provisions of
section 4(1)(b)
I am mindful thereof
that, sitting as a single judge in this Division, I am bound by the
judgment of Jones J unless I am convinced
that he had clearly erred.
It appears, however, on a perusal of the judgment that Jones J’s
remarks were confined to
section 4(1)(b)
viewed in isolation.
[18]
In seeking
to interpret statutory provisions regard should be had to the context
in which the words are used in the Act as a whole
and the surrounding
circumstances relating to the apparent scope, purpose and limits of
the Act as well as its background (compare
Jaga
v Dönges NO and Another; Bhana v Dönges NO and
Another
1950 (4) SA 653
(A) at 662H.) Chapter 1 of the
Refugees Act
deals
with the interpretation, application and administration of the
Act.
[19]
When regard
is had to the structure of Chapter 1 of the Act it emerges that
section 2 deals with general prohibitions of the refusal
of entry,
expulsion or extradition or the return to another country of an
arriving illegal immigrant in certain circumstances.
Section 3
deals with the requirements to qualify for refugee status.
Section 4 relates to the exclusion from refugee
status of an arriving
foreigner whilst section 5 relates to the cessation of refugee status
after the arrival of the foreigner.
[20]
Section 6
of the Act enjoins the court in interpreting the Act to have due
regard to various international conventions, including,
the OAU
Convention governing the specific aspects of refugee problems in
Africa (the OAU Convention of 1969). It is significant
that
sections 2
,
3
,
4
and
5
of the
Refugees Act are
the mirror image of
paragraphs 1-5 of Article 1 of the OAU Convention of 1969.
[1]
In particular
section 4
of the
Refugees Act gives
effect to paragraph
5 of Article 1 of the OAU Convention of 1969. As alluded to
earlier
section 4
of the
Refugees Act deals
with circumstances which
exist upon the arrival of the foreigner in his country of refuge
while
section 5
, by contrast, deals with circumstances which arise
after his arrival and which causes his refugee status to cease.
In the
circumstances I consider that section 4(1)(b) clearly refers
to an offence committed prior to the arrival of the foreinger in his
country of refuge which, had that crime been committed in the
Republic of South Africa, would have been punishable by
imprisonment.
I am fortified in this view by the provisions of
paragraph 5(b) of the OAU Convention of 1969 which stipulates that
the Convention
shall not apply to any person with respect to whom the
country of asylum has serious reason for considering that:
“
(a) …;
(b) he committed a serious
non-political crime outside the country of refuge prior to his
admission to that country as a refugee.”
[21]
Moreover,
it seems to me that the interpretation contended for by the
respondent would give rise to the absurdity that no illegal
foreigner
could then ever qualify for a permit in terms of Regulation 2(2)
because his mere illegal presence in South Africa constitutes
an
offence in terms of
section 49(1)(a)
of the
Immigration Act which
is
punishable on conviction with imprisonment not exceeding two years.
[22]
For these
reasons I consider that the dictum by Jones J in
Ozoekwe
is clearly incorrect. When due regard is had to the background
to the
Refugees Act and
the intended scope of Chapter 1 thereof,
which is to give effect to the OAU Convention of 1969, as is apparent
from
section 6
of the
Refugees Act, I
do not think that to give
effect to the ordinary English meaning of
section 4(1)(b)
is
necessarily absurd or preposterous.
[23]
In any
event,
section 4
provides that a person does not qualify for refugee
status for purposes of the Act “if there is reason to believe”
that certain circumstances exist. It is by no means a precise
measure which may be determinable by any individual. Similar
terminology appears in
sections 10
and
12
of the
Insolvency Act, 24
of 1936
, which drove De Beer JP in
Sachs
Morris (Pty) Limited v Smith
to describe the provision as an “abstruse metaphysical
conception”. (See
Sachs
Morris (Pty) Ltd v Smith
1951 (3) SA 167
(O) at 171A.) It is certainly a matter upon
which individuals might differ. This gives rise to the question
as to who
would be entitled to decide that there is reason to believe
that a foreigner is excluded from refugee status. Paragraph 5
of Article 1 of the OAU Convention of 1969 provides that the
provisions of the Convention will not apply to a person in respect
of
whom “the country of asylum has serious reason for considering
that” certain circumstances exist. It
concludes by
recording that it is for “the contracting state of asylum”
to determine whether the applicant is a refugee.
[24]
When regard
is had to the structure of the
Refugees Act, and
more particular
Chapter 2 thereof, an applicant seeking asylum must make an
application at a refugee reception office in person
(section 21(1)).
The refugee reception officer is obliged to accept the application
from the applicant.
(Section 21(2)(a).)
At the time when an
application is made the applicant is required to provide his
fingerprints or other prints taken in a
prescribed manner and, if he
is older than 16 years to provide two photographs of himself with
such dimensions as may be prescribed
(section 21(3)).
The
refugee reception officer may then conduct such enquiries as she or
he deems necessary in order to verify the information
furnished in
the application.
(Section 21(2)(c).)
Once an application
has been received in terms of
section 21
the refugee reception
officer is obliged to issue the applicant with an asylum seeker
permit.
(Section 22(1).)
Section 22(6)
however provides
that the Minister may at any time withdraw an asylum seeker permit
if-
“
(a)
… (c);
(d) the applicant is or becomes
ineligible for asylum in terms of
section 4
or
5
.”
[25]
Section 4
,
as I have alluded to earlier, deals with circumstances where the
applicant is ineligible on arrival and
section 5
deals with
circumstances where he becomes ineligible. Of significance,
however, is that only the Minister may withdraw the
permit. I
do not lose sight of the fact that the Minister is entitled to
delegate his functions (see
section 7
of the
Refugees Act), however
,
such functions must still be exercised and performed in accordance
with directions of the Minister and the Minister may himself
still
perform those functions. This provision sits comfortably with
paragraph 5 of the OAU Convention of 1969.
[26]
What does
not sit comfortably with the provisions of the
Refugees Act or
the
OAU Convention of 1969 is the notion that an individual immigration
officer, appointed under the
Immigration Act, or
any other law
enforcement officer, is entitled to decide, as Klaasen did in this
case, that “there is reason to believe”
that a foreigner
is disqualified in terms of section 4(1)(b) of the Refugee Act, no
matter what the strength of the evidence before
him. The
decision does not lie with him.
[27]
In the
circumstances and for the reasons set out above I consider that the
argument on behalf of the respondents in respect of section
4(1)(b)
is unsound.
[28]
The
respondents do not however confine their argument to
section 4
of the
Refugees Act. It
is contended, in the alternative, that the
applicant expressly waived his right to apply for asylum when he
sought a change of
status. As a holder of a temporary asylum
seeker permit, albeit fraudulently obtained, he must be taken to have
been aware
of his rights to apply for asylum when he chose to apply
for a change in status. He was, after all, assisted by an
immigration
practitioner who would have explained his rights to him
and, so the argument goes, he therefor expressly waived his
rights
to apply for asylum by submitting an application for a change
of status.
[29]
In the
alternative, it is argued that he had tacitly waived his rights for
asylum through the following conduct which it is argued
is
inconsistent with an intention to enforce a right to apply for
asylum.
1.
He arrived
in the Republic of South Africa on 9 June 2013;
2.
he
initially entered the Republic on a visitor’s visa;
3.
he
thereafter obtained a fraudulent temporary asylum seeker permit valid
until June 2014;
4.
in February
2014 the applicant applied to change his status from that of
temporary asylum seeker to the holder of a relative’s
visa;
5.
the
relative’s visa was fraudulent in that the applicant did not
enter into the life partnership upon which the visa was based;
and
6.
a period of
three years expired from when the applicant entered the country when
he, for the first time indicated an intention to
apply for asylum.
[30]
The
respondents accept that they bear the onus to prove a decision by the
applicant to abandon the right to apply for asylum and
that he had
knowledge of his right to apply for asylum when the waiver took
place. I do not consider that the respondents have
discharged this
onus. The overwhelming probabilities suggest that the applicant
obtained a fraudulent asylum seeker permit
upon entry into the
country in order to evade the attentions of immigration officers.
His application to change his status
was equally fraudulent and
directed again at misleading immigration officers. It does not
follow, in my view, that he thereby
necessarily intended to convey
that he would not avail himself of the opportunity to apply for an
asylum seeker permit if his endeavours
to evade the attention of the
immigration officers failed. In
Ersumo
v Minister of Homer Affairs and Others
2012 (4) SA 581
(SCA) the Supreme Court of Appeal again considered
the provisions of
Regulation 2(2).
Wallis JA summarised the
position at 589G-590A as follows:
“
No
distinction is drawn between one type of illegal presence and
another. In other words, it makes no difference whether the
individual
entered the country and never sought an asylum transit
permit, or whether they obtained such a permit and allowed it to
lapse by
not reporting to a refugees reception office. Nor is there
any reference to the duration of the illegal presence, or to
any
mitigating factors, such as poverty, ignorance of these legal
requirements, inability to understand any of South Africa's official
languages, and the like. There is also no reference to aggravating
factors, for example, that their illegal entry was deliberate
and
that they have deliberately sought to avoid the attentions of the
authorities.
Regulation 2(2)
applies to any foreigner encountered in
South Africa, whose presence in this country is illegal. It
says, as this court held
in
Bula
,
that any such person who then indicates an intention to apply for
asylum must be issued with an asylum transit permit, valid for
14
days, and permitted to apply for asylum.”
[31]
What
does emerge from this passage is that whatever schemes an illegal
foreigner may have devised to escape the attentions of the
authorities, it would not disqualify him from obtaining a
Regulation
2(2)
permit. An extended illegal presence in South Africa
similarly does not disqualify him from insisting upon the delivery of
a
Regulation 2(2)
permit when detected. In all the
circumstances therefore I do not consider that the respondents have
established that the
applicant ever took a decision to abandon the
right to apply for asylum.
[32]
Finally,
there remains the issue of costs. As alluded to earlier the
present is not merely a matter which is resolved by the
application
of the principles set out in
Plascon-Evans
Paints
supra
.
In the present matter the respondent has comprehensively refuted the
entire history attested to by the applicant under oath
and has
annexed documentary evidence clearly indicative thereof that the
applicant has intentionally attempted to mislead this
court. On
this basis the respondents argue that I should, as a token of
disapproval, disallow the applicant’s costs.
I consider
that there is merit in this argument.
[33]
In
the result, I make the following order:
1.
It
is declared that the applicant’s detention is unlawful.
2.
The
second respondent is directed, in terms of
Regulation 2(2)
of the
Regulations in terms of the
Refugees Act, 130 of 1998
, forthwith to
issue the applicant with an appropriate permit valid for fourteen
(14) days within which the applicant must approach
a Refugee
Reception Office and complete an asylum application.
3.
Upon
being furnished with such a permit the applicant will be entitled to
his immediate release from detention and shall not thereafter
be
subject to detention in terms of either the
Refugees Act or
the
Immigration Act for
as long as the said permit remains valid or he is
in possession of a valid asylum seeker temporary permit.
4.
The
first and second respondents are directed, upon completion of an
asylum application within the said fourteen (14) days, to accept
the
applicant’s asylum application and to issue him with an asylum
seeker temporary permit, in terms of
section 22
of the
Refugees Act,
pending
the final determination of his application for asylum,
including the exhaustion of his rights of review or appeal in terms
of Chapter
4 of the
Refugees Act.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv C Pask instructed by JCM Attorneys, Port Elizabeth
For
Respondents: Adv J Nepgen instructed by The State
Attorney, Port Elizabeth
[1]
Article 1, as quoted by the Supreme
Court of Appeal in
Adbi v
Minister of Home Affairs,
supra
,
provides:
“
Definition of the term
“Refugee”
1.
For the purposes of this
Convention, the term refugee shall mean every person who, owing to
well-founded fear of being persecuted
for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is outside the country
of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection
of that country, or
who, not having a nationality and being outside
the country of his former habitual residence as a result of such
events is unable
or, owing to such fear, is unwilling to return to
it.
2.
The term refugee shall also
apply to every person who, owing to external aggression, occupation,
foreign domination or events
seriously disturbing public order in
either part or the whole of his country of origin or nationality, is
compelled to leave
his place of habitual residence in order to seek
refuge in another place outside his country of origin or
nationality.
3.
In the case of a person who
has several nationalities, the term a country of which he is a
national shall mean each of the countries
of which he is a national,
and a person shall not be deemed to be lacking the protection of the
country of which he is a national
if, without any valid reason based
on well-founded fear, he has not availed himself of the protection
of one of the countries
of which he is a national.
4.
This Convention shall
cease to apply to any refugee if:
(a)
he has voluntarily re-availed himself of the protection of the
country of his nationality, or,
(b)
having lost his nationality, he has voluntarily reacquired it, or,
(c)
he has acquired a new nationality, and enjoys the protection of the
country of his new nationality, or,
(d)
he has voluntarily re-established himself in the country which he
left or outside which he remained owing to fear of persecution,
or,
(e)
he can no longer, because the circumstances in connection with which
he was recognised as a refugee have ceased to exist, continue
to
refuse to avail himself of the protection of the country of his
nationality, or,
(f)
he has committed a serious non-political crime outside his country
of refuge after his admission to that country as a refugee,
or,
(g)
he has seriously infringed the purposes and objectives of this
Convention.
5.
The provisions of this
Convention shall not apply to any person with respect to whom the
country of asylum has serious reasons
for considering that:
(a)
he has committed a crime
against peace, a war crime, or a crime against humanity, as defined
in the international instruments
drawn up to make provision in
respect of such crimes;
(b)
he committed a serious
non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c)
he has been guilty of acts
contrary to the purposes and principles of the Organization of
African Unity;
(d)
he has been guilty of acts
contrary to the purposes and principles of the United Nations.
For the purposes of this Convention,
the Contracting State of Asylum shall determine whether an applicant
is a refugee.