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[2021] ZAECPEHC 18
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Mapingure v Chairperson standing Committee for Refugee Affairs and Others (2727/2019) [2021] ZAECPEHC 18 (30 March 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No.: 2727/2019
Date Delivered: 30 March 2021
In
the matter between:
TAURAI
MASHEL
MAPINGURE
Applicant
and
THE CHAIRPERSON STANDING
COMMITTEE
FOR REFUGEE AFFAIRS
First
Respondent
THE
REFUGEE STATUS DETERMINATION OFFICER
Second
Respondent
THE
MINISTER OF HOME AFFAIRS
Third
Respondent
THE DIRECTOR GENERAL OF THE DEPARTMENT OF
HOME
AFFAIRS
Fourth Respndent
JUDGMENT
Ronaasen AJ:
Introduction
[1]
The Refugee Act, 130 of 1998 (“the
Act”) has as its purpose to provide for the reception into the
Republic of South
Africa of asylum seekers and to regulate
applications for and recognition of refugee status for asylum
seekers.
[2]
The applicant, a Zimbabwean national,
unsuccessfully applied for asylum in South Africa in terms of the
Act. He now seeks
to review the administrative actions of the
first and second respondents, underlying the refusal of his asylum
application in terms
of the provisions of the Promotion of
Administrative Justice Act, 3 of 2000 (“PAJA”).
These administrative actions
include:
2.1.
the rejection of his application for
asylum;
2.2.
the result of the automatic internal review
allowed for by the Act in terms of which the decision to reject his
application for
asylum was upheld.
[3]
The respondents oppose the application.
The process to be followed by an asylum seeker
(“the process”)
[4]
The process commences when a potential
refugee into South Africa enters through a port of entry, which has
been determined as such
in terms of the
Immigration Act, 13 of 2002
.
A port of entry is typically a land border post, an airport or a
harbour.
[5]
An entrant to South Africa who, at the port
of entry, claims to be an asylum seeker, is issued with an Asylum
Transit Permit.
This permit is not renewable and its validity
endures for five days. The permit gives the asylum seeker the
requisite authority
to travel from the port of entry to the closest
Refugee Reception Office to apply for asylum in terms of the Act.
[6]
Should the holder of the abovementioned
permit fail to report in person to a Refugee Reception Office to
apply for asylum, before
the expiry of the permit, he/she
automatically becomes an illegal foreigner and may be dealt with in
terms of the provisions of
the
Immigration Act.
>
[7]
The asylum seeker is obliged to present his
application for asylum, in the prescribed form, in person, at a
designated Refugee Reception
Office.
[8]
The initial stage of the process involves
the taking of the asylum seeker’s fingerprints and the
capturing of his image and
biographical data in the refugee system.
[9]
An application for asylum must be made in
the form and contain the information prescribed in Annexure 1 of the
Regulations promulgated
in terms of section 38 of the Act, published
in Government Notice R366 contained in the Government Gazette 21075
of 6 April 2000.
The form is known as the Eligibility
Determination Form for Asylum Seekers and is designated as form
DHA-1590 (“the form”).
[10]
The form allows the asylum seeker to place
on record all relevant information within his/her knowledge which may
impact on the application
for asylum. It affords the asylum
seeker the opportunity to set out the reasons for fleeing his/her
country of origin and
why asylum is being sought in South Africa.
The form poses questions such as the asylum seeker’s reasons
for requiring
asylum, whether he/she was active in any political
organisation in the country of origin and the role he/she played in
such organisation.
Asylum seekers are also asked whether they
were ever arrested in their country of origin for political reasons
and as to the endeavours
they made to resolve the problems
experienced in their country of origin. Essentially the form,
through appropriate questioning,
is designed to determine whether an
asylum seeker, measured against the criteria in the Act, qualifies
for asylum.
[11]
Upon arrival at a Refugee Reception Office
an asylum seeker will ordinarily meet with a Refugee Reception
Officer, who receives
the application for asylum and conducts the
first interview with the asylum seeker. During this interview
the form is completed
and the capturing of the other information
referred to above is undertaken.
[12]
The next step in the process is to issue
the asylum seeker with a permit in terms of section 22 of the Act,
which has a validity
of six months, pending a final decision on the
application for asylum. The permit may be extended while the
process is underway.
The permit enables the asylum seeker to
work and study in South Africa and protects him/her from deportation
to the country of
origin pending completion of the process.
[13]
After the abovementioned initial
proceedings a further interview is conducted with the asylum seeker
by a Refugee Status Determination
Officer. The purpose of this
interview is to determine the asylum seeker’s refugee status in
terms of section 24 of
the Act. The officer conducting the
interview must make a fair adjudication of the application for asylum
and provide reasons
for the decision ultimately made. To this
end the responses given by the asylum seeker are recorded and form
part of the
official record or the so-called “interview notes”.
[14]
Section 24(3) of the Act (as it read at the
time of the applicant’s application for asylum in 2018/2019 and
prior to its amendment
with effect from 1 January 2021) empowers the
Refugee Status Determination Officer, in his/her discretion, to:
14.1.
grant asylum;
14.2.
reject the application as fraudulent; or
14.3.
reject the application as unfounded.
[15]
A rejection of an asylum application must
be accompanied by written reasons, which, in terms of section 24(4)
must be furnished
to the asylum seeker within five days.
[16]
The grounds for rejection of an application
for asylum referred to in paragraph 14.2, above is contained in
section 24(3)(b) of
the Act (as it read in 2018/2019) and is the
ground for rejection which forms the basis of this application.
[17]
A rejection of an asylum application in
terms of section 24(3)(b) is reviewed aotomatically by the Standing
Committee for Refugee
Affairs (“the Standing Committee”)
established in terms of the Act, in the manner contemplated in the
then section
25 of the Act. The Standing Committee could, after
having determined the review, confirm, set aside or substitute any
decision
taken by a Refugee Status Determination Officer in terms of
section 24(3)(b) of the Act.
The applicant’s case
[18]
The applicant’s grounds for review
are set out as follows in his supplementary founding affidavit,
submitted after the record
of proceedings was lodged in terms of rule
53:
“
GROUNDS
FOR REVIEW
10. This judicial
review application is predicated upon the following grounds:
10.1. The procedural fairness of the entire
refugee status determination process was riddled with irregularities
committed
by the RRO, RSDO and SCRA.
10.2. To establish procedural fairness
prescribed by the Constitution and expressed in PAJA need to begin at
the RRO
stage and continues throughout the office of the RSDO until a
decision by the SCRA to uphold or set aside the decision of the RSDO.
10.3. The decision was based on an error of
law. The RSDO used a higher standard to determine whether I
qualified
for asylum. The requisite criteria is that of
reasonable possibility of persecution. The RSDO used the
balance of probabilities
as a criteria.
10.4. The decision taken by the Third
Respondent and confirmed by the First Respondent was arbitrary,
capricious and
taken in bad faith. The administrator ignored
the crucial principles of rationality, reasonableness, fairness and
openness
in determining whether I qualify for asylum or not.
10.5. The Second Respondent in evaluating
and assessing the determination process had predetermined the outcome
of the
determination process. No effort was made to solicit
evidence whether favourable or unfavourable to the application.
The fact that I was not provided with opportunity to explain myself
at the second interviewed is clear indication of such prejudgment.
The RSDO was looking for any opportunity to identify contradiction in
order to declare my account as incredible.
10.6. The RSDO in making a decision
emphasized irrational consideration instead of a rational one.
The political
violence perpetrated by government police agents on me
was ignored and the RSDO did not give me adequate opportunity to
explain
myself sufficiently during the determination hearing.
10.7. Enquiries were concluded in a rush
manner without being given any chance to provide a response
satisfactory and
to the best of my ability.
10.8. There was an element of bias is
conducting the RSDP by the RSDO and SCRA. Their approach was
adversarial
instead of being inquisitorial as envisaged by the
International instrument to which the Republic is a contracting
party.
These instruments emphasise humanitarian approach in all
affairs relating to status of refugee. The way I was treated is
contrary to what is idealised by such instruments.
10.9. The approach of the RSDO was
adversarial rather that inquisitorial as recommended by the
International Instruments
relating to refugees affairs.
10.10. These instruments emphasize a humanitarian
approach in all affairs relating to status of refugees. The way
I was treated
is contrary to what is idealized by such instruments.
10.11. The emphases by RSDO on the lack of evidence on
my part as applicant whether I was beaten or not is rational and the
clear
ground for the decision to be reviewed and set aside.”
[19]
Similar “grounds” for review
are set out in the original founding affidavit.
[20]
The applicant’s approach in his
founding affidavits is largely argumentative and he fails to set out
a cogent factual basis
for the relief he seeks. He has not
dealt in any meaningful way with the difficulties the first and
second respondents had
with his asylum application. He
accordingly makes it extremely difficult for me to evaluate the
underlying facts and to apply
those facts to the provisions of PAJA.
Legal principles
[21]
The legal framework against which I must
consider whether the administrative actions concerned are reviewable
was succinctly set
out by Plasket, J (speaking for the Full Bench of
this Division) as follows in
WDR
Earthmoving Enterprises CC and Another v Joe Gqabi District
Municipality and Others ZAECGHC 45 (13 March 2017)
:
“
[8]
A court that
is approached to review an
administrative action does not have a free
hand to interfere in the administrative process. Its powers are
limited.
As Lord Brightman stated in
Chief
Constable of the North Wales Police v Evens “[j]udicial review
is concerned, not with the decision, but with the decision-making
process”.
This was made
clear by Innes CJ more than a century ago in
Johannesburg
Consolidated Investment Co Ltd v Johannesburg Town Council
when
he said
:
‘
Whenever a public body has a
duty imposed on it by statue, and disregards important provisions of
the statute, or is guilty of gross
irregularity or clear illegality
in the performance of the duty, this Court may be asked to review the
proceedings complained of
and set aside or correct them.’
[9] Less than
a decade later, after Union and the establishment of the Appellate
Division,
Innes ACJ, in
Shidiack v Union Government (Minister of
the Interior),
captured the limits of the review functions of a
superior court when he said that a court would be “
unable to
interfere with a due and honest exercise of discretion, even if it
considered the decision inequitable or wrong”.
The
reason for this is simple: the legislature mandated and
empowered administrators to administer, and not courts; and the
role
of the court is limited to ensuring that administrators do not stray
beyond the legal limits of their mandates.
[10] The passages I have
cited from the
Johannesburg Consolidated Investments
case and
the
Shidiack
case articulated the position when the review of
administrative action was common law jurisdiction of the superior
courts.
The principles stated still hold good now that the
power to review administrative action is sourced in the Constitution
and the
PAJA: the distinction between appeal and review, based
as it is on the doctrine of the separation of powers, remains in
place
and remains fundamentally important. Administrative
action may only be set aside by a court exercising its review powers
if it is irregular. It may not be interfered with because it is
a decision a judge considers to be wrong.”
[Detailed case references omitted]
[22]
The abovementioned principles are consonant
with the concept of judicial deference described by
Hoexter,
in (2000) 117 SALJ 484 at 501 – 2
,
as follows:
“
(A)
Judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies;
to
admit the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law
due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and
financial constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights
and a refusal to
tolerate corruption and maladministration. It ought to be
shaped not by an unwillingness to scrutinise administrative
action,
but by a careful weighing up of the need for – and the
consequences of – judicial intervention. Above
all, it
ought to be shaped by a conscious determination not to usurp the
functions of administrative agencies; not to cross over
from review
to appeal.”
[23]
In
Minister of
Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA)
at
[50] it was held that judicial deference does not imply judicial
timidity or an unreadiness to perform the judicial function.
It
merely recognises that the law itself places certain administrative
actions in the hands of the executive and not the judiciary.
[24]
These sentiments were endorsed by the
Constitutional Court in
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and
Others 2004 (4) SA 490 (CC)
at [48] as
follows:
“
In
treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the proper role of the
Executive within the Constitution. In doing so a Court should
be careful not to attribute to itself superior wisdom in relation
to
matters entrusted to other branches of government. A Court
should thus give due weight to findings of fact and policy
decisions
made by those with special expertise and experience in the field.
The extent to which a Court should give weight
to these
considerations will depend upon the character of the decision itself,
as well as on the identity of the decision-maker.
A decision
that requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the Courts. Often a power
will identify a goal
to be achieved, but will not dictate which route should be followed
to achieve that goal. In such circumstances
a Court should pay
due respect to the route selected by the decision-maker. This
does not mean, however, that where the decision
is one which will not
reasonably result in the achievement of the goal, or which is not
reasonably supported on the facts or not
reasonable in the light of
the reasons given for it, a Court may not review that decision.
A Court should not rubber-stamp
an unreasonable decision simply
because of the complexity of the decision or the identity of the
decision-maker.”
[25]
As to bad faith and other grounds of
review, in
Shidiack v Union Government
(Minister of Interior) 1912 AD 642 at 651 – 2
the
court held as follows:
“
There
are circumstances in which interference would be possible and right.
If for instance such an officer had acted
mala
fide
or from ulterior and improper
motives, if he had not applied his mind to the matter or exercised
his discretion at all, or if he
had disregarded the express
provisions of a statute – in such cases the Court might grant
relief. But it would be unable
to interfere with a due and
honest exercise of discretion, even if it considered the decision
inequitable or wrong.”
[26]
In approving the abovementioned passage the
Constitutional Court in
Pharmaceutical
Manufacturers of SA and Another: In re
ex
parte
President of the Republic
of South Africa and Others 2000 (2) SA 674 (CC)
at [83] stated that:
“
To
the extent that
Shidiack
requires public officials to exercise their powers in good faith and
in accordance with the other requirements mentioned by Innes
ACJ, it
is consistent with the foundational principle of the rule of law
enshrined in our Constitution. The Constitution,
however,
requires more: it places further significant constraints upon
the exercise of public power through the bill of rights
and the
founding principle enshrining the rule of law.”
Application of principles
[27]
The process, described above, was followed
in this case.
[28]
In evaluating whether the applicant has
established any ground for review in terms of section 6(2) of PAJA
the essential question
is whether the first and second respondents
acted contrary to the Act, which is the empowering provision by which
they had to be
guided.
[29]
The administrative actions of the first and
second respondents must be measured against the background of section
3 of the Act,
which provides as follows:
“
3.
Refugee Status
Subject to Chapter 3, a person qualifies for refugee
status for the purposes of this Act is that person –
(a)
owing to a well-founded fear of being
persecuted by reason of his or her race, gender, tribe, religion,
nationality, political opinion
or membership of a particular social
group, is outside the country of his or her nationality and is unable
or unwilling to avail
himself or herself of the protection of that
country, or, not having a nationality and being outside the country
of his or her
former habitual residence is unable or, owing to such
fear, unwilling to return to it; or
(b)
owing to external aggression, occupation,
foreign domination or other events seriously disturbing public order
in either a part
or the whole of his or her country of origin or
nationality, is compelled to leave his or her place of habitual
residence in order
to seek refuge in another place outside his or her
country of origin or nationality; or
(c)
is a spouse or dependant of a person
contemplated in paragraph (a) or (b).”
[30]
The respondents contend that the
applicant’s application for asylum was rejected essentially by
reason of his response to
a question posed by the second respondent
as to what South Africa could do for him, in the following terms:
“
I
want to get a legal document so that I can be able to work. I
have Two children. I want to support my children.”
[31]
Section 3 of the Act clearly does not allow
for refugee status to be granted to an asylum seeker on the basis of
the applicant’s
response set out in the preceding paragraph.
This, in my view, is decisive of the applicant’s application if
the further
considerations, set out below, are taken into account.
[32]
The applicant, furthermore, appeared to be
less than forthcoming in his interviews. When interviewed by
the Refugee Reception
Officer he told her that he was applying for
asylum because he had been assaulted and adversely affected by the
political situation
in Zimbabwe, hence his coming to South Africa.
When he was interviewed by the second respondent, however, he first
indicated
that he had been assaulted, but later denied that this was
the case.
[33]
The applicant’s explanation in his
founding affidavits for the discrepancies in the version put up to
the second respondent
are unpersuasive and are a further attempt to
conceal the true motive for his coming to South Africa, namely to
seek employment.
[34]
In section 1 of the Act a fraudulent
application for asylum is defined as meaning:
“……
an application for asylum based
without reasonable cause on information, documents or representations
which the applicant knows
to be false and are intended to materially
affect the outcome of the application.”
[35]
A consideration of the applicant’s
responses in the form satisfy me that his application for asylum was
based on representations
which he knew to be false and which were
intended to materially affect the outcome of the application and,
thus, fall within the
definition of a fraudulent application.
The misrepresentations are highlighted by the clear discrepancies
where he first
stated that he had been assaulted and then later
retracted this. His statements in this regard were a poor
attempt to disguise
the true reason for his coming to South Africa,
namely to obtain employment, by attempting to portray himself as a
victim of the
Zimbabwean political situation.
[36]
I do not agree with the submission that the
respondents applied a higher standard of proof than is generally
accepted in respect
of asylum applications, namely that of a
reasonable possibility of persecution. A consideration of the
documents in the record
satisfactorily demonstrate to me that the
applicant did not satisfy the standard of proof by showing that he
faced the reasonable
possibility of persecution in Zimbabwe. As
stated, his vague references to his being a victim of the political
situation
in Zimbabwe were calculated to disguise the true reason for
his coming to South Africa.
[37]
There is no substantiation for the
applicant’s assertions that the first and second respondents,
in applying the provisions
of the Act, acted with bias or in bad
faith.
[38]
I am accordingly satisfied with the reasons
furnished by the second respondent for her decision in refusing the
applicant’s
application for asylum on the basis of section
24(3)(b) of the Act. By parity of reasoning the decision of the
first respondent
to uphold the decision of the second respondent, on
review, is also unassailable.
[39]
Thus, there is no reason for me to
interfere in the decisions of the first and second respondents.
Order
[40]
The application is accordingly dismissed
with costs.
O
H RONAASEN
ACTING JUDGE OF THE HIGH COURT
By
agreement between the parties this application was determined without
the hearing of oral argument. Heads of argument on
behalf of
the applicant were signed by Mr Andile Ngqakayi and for the
respondents by Advocate V Madokwe.
The
parties were represented as follows:
The
applicant
:
Andile Ngqakayi Inc, Third Floor, Capitol Building, 545 Govan Mbeki
Avenue, North End, Port Elizabeth.
The
respondent
: The State Attorney,
29 Western Road, Central, Port Elizabeth.