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[2017] ZASCA 123
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Minister of Home Affairs and Another v Ahmed and Others (1383/2016) [2017] ZASCA 123; 2017 (6) SA 554 (SCA) (26 September 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
1383/2016
In the matter
between:
THE MINISTER OF
HOME AFFAIRS
FIRST APPELLANT
THE
DIRECTOR-GENERAL, HOME AFFAIRS
SECOND APPELLANT
and
TASHRIQ
AHMED
FIRST RESPONDENT
ARIFA MUSADDIK
FAHME
SECOND RESPONDENT
KUZIKESA JULES
VALERY SWINDA
THIRD RESPONDENT
JABBAR
AHMED
FOURTH RESPONDENT
Neutral citation:
The Minister of Home Affairs v Ahmed
(1383/2016)
[2017] ZASCA 123
(26
September 2017)
Bench:
Ponnan, Leach and Majiedt JJA and
Plasket and Schippers AJJA
Heard:
28 August 2017
Delivered:
26 September 2017
Summary:
Asylum seekers in terms of the
Refugees
Act 130 of 1998
may not, while they are in the country, apply for a
visa in terms of
s 10(2)
of the
Immigration Act 13 of 2002
, read with
regulation 9(2) of the Immigration Regulations.
ORDER
On appeal from
:
Western Cape Division, Cape Town
(Sher AJ sitting as court of first instance):
1
The appeal is upheld.
2
The order of the court below is set aside and replaced by the
following
order:
‘
The
application is dismissed.’
JUDGMENT
Ponnan JA (Leach
and Majiedt JJA and Plasket and Schippers AJJA concurring):
[1] The question
raised by this appeal is whether holders of asylum seeker permits
in terms of s 22 of the Refugees Act 130
of 1998 (the RA) may, whilst
they are within this country, apply for a visa in terms of the
Immigration Act 13 of 2002 (the IA).
The court a quo (Western Cape
Division, Cape Town) (per Sher AJ) held that they are entitled to do
so.
[1]
The appellants – the Minister of Home
Affairs (the Minister) and Director General of that Department (the
DG) (collectively
referred to as the DHA) appeal that decision with
the leave of Sher AJ.
[2] The second, third and
fourth respondents are in South Africa as asylum seekers. Each
applied for a visa in terms of the IA.
The DHA rejected those
applications ostensibly in line with departmental policy. The policy
was set out in Immigration Policy Directive
21 of 2015 issued by the
DG on 3 February 2016 (Directive 21). Aggrieved by that refusal, the
three respondents and their attorney
(the first respondent) applied
on 21 April 2016 to the court a quo for urgent relief. The
application succeeded before the court
a quo and on 21 September 2016
the following order issued:
‘
(i)
Immigration Directive 21 of 2015, which was issued by the
Director-General of the
Department of Home Affairs on 3 February
2016, is declared to be inconsistent with the Constitution of the
Republic of South Africa
1996 and invalid, and is set aside.
(ii)
Second respondent is directed to permit the second applicant to
submit an application
for a visitor’s visa in terms of
s
11(b)(iv)
of the
Immigration Act, no. 13 of 2002
, within 15 days from
date of this Order.
(iii)
Second respondent is directed to consider third applicant’s
appeal against the refusal
of his application for a critical skills
visa, as rejected by him on 4 January 2016, in the light of this
judgment and to make
a decision in the appeal within 15 days of the
date of this order.
(iv)
Second respondent is directed to consider fourth applicant’s
appeal against the refusal
of his application for a critical skills
visa, as rejected by him on 6 October 2015, in the light of this
judgment and to make
a decision in the appeal within 15 days of the
date of this order.
(v)
Second respondent shall be liable for applicants’ costs of
suit, including the
costs of two counsel where so employed.’
[3] According to the
first respondent, who deposed to the founding affidavit in support of
the relief sought in the court a quo,
during September 2003 the Cape
Town office of the Legal Resources Centre brought an application
against the DHA on behalf of thirteen
asylum seekers. That matter was
settled and an order, which came to be known as the ‘Dabone
Order’,
[2]
issued by agreement between the parties. Following
upon the Dabone Order, the DG issued a directive, namely Circular 10
of 2008.
Circular 10 provided that ‘asylum seekers in
possession of a permit issued in terms of s 22 of the [RA] can apply
for one
of the temporary residence permits contemplated in the [IA],
as well as permanent residence in terms of section 26 or 27 of the
[IA].’
[4] On 3 February 2016 the
DG issued a new directive – Directive 21 – which is
headed: ‘Withdrawal of Circular
10 of 2008 confirming the 11
November 2003 Dabone Court Order’ and provides in material part
as follows:
‘
It
is the considered view of the Department that no change of condition
or status should be premised on the provisions of the
Immigration Act
for
a holder of an asylum seeker permit whose claim to asylum has not
been formally recognized by [the Standing Committee for Refugee
Affairs].’
The Directive concluded
with these words:
‘
In
view of the above provisions I wish to advise all Immigration
Officials that Departmental Circular 10 of 2008 has fallen away
since
the 26
th
of May 2014 and is hereby officially withdrawn. . . . All
applications for change of status from asylum seeker permit to
temporary
residence visa which are still pending in the system should
be processed as per this directive regardless of the date of
application.’
[5] Such details as
can be gleaned from the papers pertaining to each of the second,
third and fourth respondents are somewhat sketchy.
The second
respondent, Ms Arifa Fahme, is married to Mohamed Fahme. Both are
Indian citizens. Mr Fahme is the holder of a work
permit pursuant to
which he is employed as the manager of a supermarket. Ms Fahme is the
holder of an asylum seeker permit in terms
of
s 22
of the RA. She
first entered the country on 3 June 2009. Her permit was extended on
12 occasions and eventually expired in 2016.
Mr Fahme entered the
Republic of South Africa in 2015. Ms Fahme applied for a visitor’s
visa in terms of
s 11
of the IA. The DHA’s agent, VFS Global,
refused to accept the application. It apparently did so on the
strength of Directive
21. The third respondent, Mr Kuzikesa Swinda,
is a citizen of the Democratic Republic of Congo. His details were
first captured
on 19 April 2010 by an Refugee Reception Officer
(RRO). His permit was extended on 13 occasions and eventually expired
on 1 August
2016. In the interim, Mr Swinda applied for a critical
skills visa in terms of
s 19
of the IA. The critical skill he is said
to possess is that of an IT Security Specialist. On 4 January 2016
his application for
a critical skills visa was rejected. The fourth
respondent, Mr Jabbar Ahmed, is a Pakistani national. His details
were first captured
by an RRO on 26 September 2014. His permit was
extended twice and expired on 26 October 2015. Like the third
respondent, he too
made an application for a critical skills visa -
in his case as a sheep shearer. On 6 October 2015 his application was
also rejected.
[6] The written reasons
given by the DHA for rejecting the applications of the third and
fourth respondents for critical skills
visas were in identical terms,
namely:
‘
The
applicant cannot be granted a temporary residence visa (trv) until
their asylum application has been finalized and their asylum
claims
have been proven to be true as currently the application has been
referred to rab [note: Refugees Appeal Board] as the asylum
claims
were found to be unfounded and thereby rejected. The applicant has
been granted an opportunity to exhaust his or her rights
of appeal
and
sec 26(2)
of the
Refugees Act No 130, 1998
states that the appeal
board may after hearing an appeal confirm, set aside or substitute
any decision taken by a refugee status
determination officer, as an
adjudicator in permitting a decision to grant trv would not be
correct/premature as the applicant’s
asylum status has yet to
be finalized (which could result in confirmation, setting aside or
substitution of the current rejection),
such decision will then
provide direction in the processing of a trv.’
Both Mr Swinda and Mr
Ahmed lodged internal appeals with the DHA against those decisions.
Those appeals have been held in abeyance
because, so the contention
goes, if the argument advanced on behalf of the DHA carries the day,
then all three respondents could
not even have applied for the visas
in question whilst in this country, much less require the DHA to
consider and determine them.
[7] In my view, the
court a quo’s conclusions appear to rest on an erroneous
interpretation of the IA. Accordingly, the IA
is where one must
start.
Section 10
of that Act, headed ‘Visas to temporarily
sojourn in Republic’,
provides:
‘
(1)
Upon admission, a foreigner,
[3]
who is not a
holder of a permanent residence permit, may enter and sojourn in the
Republic only if in possession of a visa issued
by the
Director-General for a prescribed period.
(2)
Subject to this Act, upon application in person and in the prescribed
manner, a foreigner
may be issued one of the following visas for
purposes of –
.
. .
(
l
)
applying for asylum as contemplated in section 23.’
[4]
Thus, the regulation of
refugees starts, ironically, with s 23 of the IA, which provides:
‘
(1)
The Director-General may, subject to the prescribed procedure under
which an asylum transit
visa may be granted, issue an asylum transit
visa to a person who at a port of entry claims to be an asylum
seeker, valid for a
period of five days only, to travel to the
nearest Refugee Reception Office in order to apply for asylum.
(2)
Despite anything contained in any other law, when the visa
contemplated in subsection (1)
expires before the holder reports in
person at a Refugee Reception Office in order to apply for asylum in
terms of s 21 of the
Refugees Act, 1998 (Act 130 of 1998), the holder
of that visa shall become an illegal foreigner and be dealt with in
accordance
with this Act.’
[8] Refugees entering
the Republic of South Africa are not automatically recognized as
such. In order to have their status recognized
they must fulfil the
requirements for asylum in terms of the RA. The RA distinguishes
between asylum seekers and refugees.
[5]
As
Minister of Home
Affairs v Somali Association of SA Eastern Cape & another
[2015] ZASCA 35
;
2015 (3) SA 545
para 3 observed:
‘
It
is thus important to understand how asylum is sought and conferred in
terms of our law. According to s 21 of the [RA],
[6]
every person
who wishes to obtain asylum must apply in person to a Refugee
Reception Officer (the Officer) at any Refugee Reception
Office
(RRO). To that end, the Officer must ensure that the application form
is properly completed and where necessary assist the
applicant in
that regard. The Officer may conduct such enquiry as is deemed
necessary in order to verify the information furnished
by the
applicant and, thereafter submit the application together with such
information as may have been obtained to a Refugee Status
Determination Officer (RSDO). Pending the outcome of that application
the Officer must, in terms of s 22 of the [RA],
[7]
issue such
applicant with an asylum seeker permit allowing him or her to sojourn
in the Republic temporarily. Until the issuance
of a s 22 permit
(also described as an asylum seeker permit), such person is
considered an illegal foreigner and subject to apprehension,
detention and deportation in terms of the [IA]. . . . An asylum
seeker permit is thus essential to enable an asylum seeker to live,
work and function in South Africa prior to the determination of his
or her status.’
Once asylum is
granted, a refugee has a range of rights including the entitlement to
apply in terms of s 27(c) of the RA for an
immigration permit.
[8]
[9] Section 10(2) of
the IA expressly envisages an ‘application in person and in the
prescribed manner’. As to the prescribed
manner: it is to the
Immigration Regulations
[9]
that one must look. Regulations 9(1) and 9(2)
prescribe the manner in which most visa applications must be made.
They read:
‘
(1)
An application for any visa referred to in section 11 up to and
including sections 20 and
22 of the Act shall be made on Form 8
illustrated in Annexure A together with all supporting documents and
accompanied by . . .
[10]
(2)
Any applicant for any visa referred to in subregulation (1) must
submit his or her
application in person to –
(
a
)
any foreign mission of the Republic where the applicant is ordinarily
resident or holds
citizenship; or
(
b
)
any mission of the Republic that may from time to time be designated
by the Director-General
to receive applications in respect of any
country in which a mission of the Republic has not been established.’
Importantly, in terms
of s 10(8) of the IA, an application for a change in status does not
provide a status and does not entitle
the applicant to any benefit
under the Act, except for those explicitly set out in the Act, or to
sojourn in the Republic pending
the decision in respect of that
application.
[10] The general rule
therefore is that an application for a visas by a foreigner must be
made abroad and not in South Africa. That
general rule applies to the
respondents’ visa applications for a visitor’s visa (in
the case of the second respondent)
in terms of s 11 and a work visa
(in the case of each of the third and fourth respondents) in terms of
s 19 of the IA. It follows
that the respondents could not lawfully
apply for either a visitor’s or work visa in South Africa.
Applications for visas
of that kind could only have been made
abroad.
[11] The main exception to
that general rule is to be found in s 10(6) of the IA, which allows
certain foreigners, who
are in South Africa, to apply for a change in
their status. In that regard s 10(6) provides:
‘
(
a
)
Subject to this Act, a foreigner, other than the holder of a
visitor’s or medical treatment
visa, may apply to the
Director-General in the prescribed manner to change his or her status
or terms and conditions attached to
his or her visa, or both such
status and terms and conditions, as the case may be, while in the
Republic.
(
b
)
An application for a change of status attached to a visitor’s
or medical treatment
visa shall not be made by the visa holder while
in the Republic, except in exceptional circumstances as prescribed.’
‘
Status’,
according to s 1(1) of the IA, means ‘the status of the person
as determined by the relevant visa or permanent
residence permit
granted to a person in terms of this Act’. And that section
defines a ‘visa’ to mean visas issued
in terms of the IA.
Regulation 9(5) elaborates:
‘
(5)
A foreigner who is in the Republic and applies for a change of status
or terms and conditions
relating to his or her visa shall –
(
a
)
submit his or her application, on Form 9 illustrated in Annexure A,
no less than 60
days prior to the expiry date of his or her visa; and
(
b
)
provide proof that he or she has
been admitted lawfully into the Republic,
Provided
that no person holding a visitor’s or medical treatment visa
may apply for a change of status to his or her visa
while in the
Republic, unless exceptional circumstances set out in subregulation
(9) exist.’
[12] These provisions
create an exception to the general rule that visa applications must
be made abroad. They also make clear that
the exception only applies
to the holders of certain categories of visa issued in terms of the
IA. Section 10(6)(a) provides in
the first place for an application
for a change in ‘status’ and in the second for a change
in the ‘terms and
conditions attached to his or her visa’.
By definition both are confined to those who are here under visas
issued in terms
of the IA. The definition of ‘status’
makes it clear that it relates to a person’s status under a
visa or permanent
residence permit issued in terms of the IA. They do
not apply to asylum seekers, who do not have any status under the IA
and are
in the country pursuant to asylum seeker permits issued in
terms of the RA.
Both s 10(6)(a) and
regulation 9(5) exclude the holders of visitor’s and medical
treatment visas from this exemption. Holders
of those visas
ordinarily may not apply for a change of status in South Africa. The
general rule, that applications for visas must
be made abroad,
prevails in their case. It would thus be most anomalous not to allow
them the benefit of the exemption but to extend
it to asylum seekers
who enjoy no status under the IA at all.
[13] When asylum
seekers arrive at a South African border post, they are given an
asylum transit visa for only five days to allow
them to apply for
asylum at the nearest RRO. They thereafter become subject to the RA
and do not enjoy any status under the IA.
Section 22(2) of the RA
puts this beyond doubt. It states that, upon the issue of any asylum
seeker permit to an applicant, ‘any
permit issued to the
applicant in terms of the [IA], becomes null and void, and must
forthwith be returned to the Director-General
for cancellation.’
This provision militates against any suggestion that an asylum seeker
enjoys any status under the IA.
[14] Asylum seekers
are thus bound by the general rule laid down by s 10(2) of the IA
read with regulation 9(2) of the Immigration
Regulations that
applications for visas must be made abroad. The respondents could not
lawfully apply for visitor’s and work
visas within South
Africa. The DHA therefore correctly declined their applications. The
court a quo found that nothing prevented
the two Acts being read
together such that an asylum seeker or refugee could make application
for the full range of visas and permits
provided for by the
Immigration Act. In
that, the court overlooked this general rule.
[15] One final aspect
remains: The court a quo took the view that the Minister may, in
terms of
s 31(2)(
c
)
of the IA, for good cause waive any prescribed requirement. It opined
‘there was no suggestion by the [DHA] that any of
the
requirements necessary to obtain either a visitor’s visa . . .
or a so-called critical skills visa . . . could not be
so waived by
the Minister if he or she deemed it appropriate’.
In
terms of
s 31(2)(
c
)
‘upon application, the Minister may under terms and conditions
determined by him or her for good cause, waive any prescribed
requirement or form. This provision does not avail the respondents
because they did not apply to the Minister to waive the requirement
that applications for visas be made abroad. If they had made such an
application, and the Minister had refused it, their remedy
would have
been an application for review. The Minister’s power to waive
is thus of no assistance to them in this case.
[16] It follows that
the appeal must succeed. The appellants did not seek costs either in
this court or the one below.
[17] In the result:
1.
The appeal is upheld.
2.
The order of the court below is set aside and replaced by the
following order:
‘
The
application is dismissed.’
_________________
V M Ponnan
Judge of
Appeal
APPEARANCES:
For
the Appellants:
W H Trengrove SC (with him K Pillay and A Nacerodien)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
the Respondents:
A Katz SC (with him A Brink)
Instructed
by:
Kassell
Sklaar Cohen Attorneys, Cape Town
Symington &
De Kok Attorneys, Bloemfontein
[1]
The j
udgment of the court a quo is
reported sub nom
Ahmed & others v Minister of Home Affairs &
another
[2016] ZAWCHC 123; [2016] 4 All SA 864 (WCC).
[2]
The first applicant in that matter was Mr Moustafa Dabone.
[3]
A foreigner is defined as an individual who is
not a citizen.
[4]
The other types of visas contemplated by
s 10(2)
of the IA are:
(
a
)
transit through the Republic as contemplated in
section 10B
;
(
b
) a
visit as contemplated in
section 11
;
(
c
)
study as contemplated in
section 13
;
(
d
)
conducting activities in the Republic in terms of an international
agreement to which the Republic is a party as contemplated
in
section 14
;
(
e
)
establishing or investing in a business as contemplated in
section
15
;
(
f
)
working as a crew member of a conveyance in the Republic as
contemplated in
section 16
;
(
g
)
obtaining medical treatment as contemplated in
section 17
;
(
h
)
staying with a relative as contemplated in
section 18
;
(
i
)
working as contemplated in
section 19
or
21
;
(
j
)
retirement as contemplated in
section 20
;
(
k
)
an exchange program as contemplated in
section 22.
[5]
The RA defines
an ‘asylum seeker’ as
‘a person who is seeking recognition as a refugee in the
Republic’ and a ‘refugee’
as ‘a person who
has been granted asylum in terms of this Act’.
[6]
Section 21 of the RA, headed ‘Application
for asylum’, reads:
‘
(1)
An application for asylum must be made in person in accordance with
the prescribed procedures to a Refugee Reception Officer
at any
Refugee Reception Office.’
[7]
Section 22 of the RA, headed ‘Asylum seeker
permit’, reads:
‘
(1)
The Refugee Reception Officer must, pending the outcome of an
application in terms of section 21(1), issue to the applicant
an
asylum seeker permit in the prescribed form allowing the applicant
to sojourn in the Republic temporarily, subject to any
conditions,
determined by the Standing Committee, which are not in conflict with
the Constitution or international law and are
endorsed by the
Refugee Reception Officer on the permit.
(2)
Upon the issue of a permit in terms of subsection (1), any permit
issued to the applicant in terms of the Aliens Control
Act, 1991
[Immigration Act], become null and void, and must forthwith be
returned to the Director-General for cancellation.’
[8]
Section 27(c) provides:
‘
A
refugee is entitled to apply for an immigration permit in terms of
the Aliens Control Act, 1991,
[8]
after five years’ continuous
residence in the Republic from the date on which he or she was
granted asylum, if the Standing
Committee certifies that he or she
will remain a refugee indefinitely.’
[9]
GN R413,
GG
37679, 22 May 2014.
[10]
The documents envisaged by Regulation 9(1) are:
‘(
a
) a valid
passport in respect of each applicant;
(
b
) a yellow fever
vaccination certificate if that person travelled or intends
travelling from or transiting through a yellow fever
endemic area:
Provided that the certificate shall not be required where that
person travelled or intends travelling in direct
transit through
such area;
(
c
) a medical and
radiological report in respect of each applicant, excluding
applicants for the visa contemplated in s 11(1)(
a
) of the
Act: Provided that a radiological report shall not be required in
respect of children under the age of 12 years or pregnant
women;
(
d
) in respect of
dependent children accompanying the applicant or joining the
applicant in the Republic, proof of parental responsibilities
and
rights or written consent in the form of an affidavit from the other
parent or legal guardian, as the case may be;
(
e
) in respect of
a spouse accompanying the applicant or joining the applicant in the
Republic, a copy of a marriage certificate
or proof of a
relationship as contemplated in regulation 3; and
(
f
) payment of the
applicable application fee.’