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[2018] ZAGPPHC 805
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Jamole v Director-General Home Affairs and Another (40010/2017) [2018] ZAGPPHC 805 (12 February 2018)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 40010/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MULUGATA
DANIEL
JAMOLE
Applicant
and
THE
DIRECTOR-GENERAL HOME AFFAIRS
First
Respondent
THE
MINSITER OF HOME AFFAIRS
Second Respondent
JUDGMENT
DAVIS,
J
[1]
The
applicant is an asylum seeker with a valid asylum seeker permit. The
two Respondents are the Director-General of the Department
of Home
Affairs and the Minster of Home Affairs.
The
applicant's position and the "rejection letters":
[2]
The
applicant came to South Africa in 2006 already, that is more than
eleven years ago. He fled from Ethiopia due to political unrest
at
the time. He applied for asylum and was granted an asylum seeker
permit.
[3]
The permit, which has been extended from
time to time is one issued in terms of Section 22 of the Refugees
Act, No, 130 of 1998
(the
Refugees Act) which
provides as follows:
"22(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
. .."
[4]
Section 21 of the Refugees Act is the
section in terms of which asylum seekers apply for asylum. Such
applications are then decided
upon by a Refugee Status Determination
Officer in terms of section 24 of the said act who may, in terms of
section 24(3) grant
asylum, reject the application or refer any
question of law to the Standing Committee.
[5]
In terms of the statutory regime in
place at the time when the applicant initially entered the country it
was either required of
him or it was at least preferred that he
maintain himself. For this purpose he managed to transfer his
Ethiopian assets in excess
of R2, 5 million to South Africa in order
to establish a business.
[6]
In 2011 he was issued with a valid
business visa to conduct his own business, which he has been doing
since. The business has been
running for more than 10 years. This,
the applicant says, proves its feasibility. It is a well
established business, employs
7 people of which four are South
African citizens, and its capital investment complies with Reg 14 of
the Immigration Regulations,
2014 and which capital investment has
grown to over R5 million. The business is profitable and
tax-compliant.
[7]
Prior to the lapsing of the business
visa, the applicant applied for an extension of the visa for a
further period of 5 years to
2021. His application for extension
forms part of the founding papers and comprises some 208 pages.
[8]
On 29 June 2016 the applicant received a
letter dated 14 June 2016 wherein he was advised by the First
Respondent that his application
for extension of his business visa
was unsuccessful. The "rejection letter" simply stated as
reasons the following:
"Application
is rejected. The reasons for the decision is the following: (1)
comments: the applicant is not meeting the requirements
in respect of
feasibility and national interest."
[9]
. The applicant utilized the
internal remedy available in terms of Section 8
(4)
of the Immigration Act No 13 of 2002 (the
Immigration Act) and
appealed the rejection of his application for extension. His appeal
also forms part of the founding papers.
[10]
The appeal was also unsuccessful and in
the "rejection letter" dated 25 August 2016 the reasons
were simply noted as follows
by the relevant official:
"I
refer to your appeal in respect of a Business visa application. I
wish to inform you that I have decided
to
uphold the decision to reject your application for a
temporary residence visa. Reason for rejection dated
2016- 06-14 is
still valid. According to the recommendation letter from Department
of Trade and Industry is not recommending the
business as according
to them it does not meet the requirements in respect of the
feasibility and national interest".
[11]
Irrespective of the deficiencies of
sensibility contained in the letter, the applicant again made use of
the internal remedy available
as advised in the aforesaid rejection
letter and made written representations in terms of section 8(6) of
the Immigration Act.
These representations were made on 16 September
2016 and also form part of the founding papers.
[12]
Yet again, the representations were
unsuccessful and on 17 March 2017
the
"rejection letter" in this regard advised the applicant as
follows:
"Application
for review or appeal in terms of
section 8(6)
of the
Immigration Act,
2002
Re: yourself.
Your
application for an Appeal bears reference.
I
wish to inform you that I have decided to uphold the decision to
reject your application for Business Visa.
•
No
person holding an asylum seeker permit is allowed to change status
whilst in the country
Your
application for temporary residence is rejected."
[13]
The lack of particularity of reasons as well as the disjunctive and
conflicting contents of the three rejection letters prompted
the
applicant's present review application.
The
review application
[14]
The review application was brought on by
way of a notice in terms of
Rule 6
and not in terms of
Rule 53.
It
was previously postponed for service on the Minister of Justice and
Constitutional Development as a result of a constitutional
point
raised by the applicant with which I shall deal later.
[15]
When the matter again came before court
on 13 October 2017, a representative of the respondent made an
appearance in court, despite
no notice of opposition having been
filed. The matter was again postponed
sine
die
and an order was by agreement
made as follows:
"
2. The Respondents are ordered to consider and file an answer to the
Applicant' s application within 30 (thirty ) days from
the date of
this order, failing which the Applicant is entitled to approach this
court for an order on the same papers, duly supplemented.
3.
The Respondents are ordered to pay the costs .. ."
[16]
The respondents have failed to comply
with the aforementioned court order and no answering affidavits have
been filed by any of
them.
[17]
Instead, the applicant received yet
another "rejection letter" from the office of the First
Respondent, the relevant part
of which reads as follows:
"
Your application for an appeal dated 19 September 2016 bears
reference.
I
wish to inform you that I have decided to uphold the decision to
reject your application for a Business Visa
Section 15.
•
Rejected:
The decision is based on the fact that no person holding asylum
seeker permit may apply for a change of status while in
the Republic
in terms of
Sec 10
(6)(a) of the
Immigration Act (Act
no13of 2002) as
amended
•
Negative
recommendation form the Department of Trade and Industry (application
does not meet the requirements in respect of feasibility
and national
interest).
Your
application for temporary residence is rejected. Kindly be informed
that you are requested to leave the country within 14 working
days."
[18]
In response, not only did the
applicant's attorneys point out to the respondents that they have
failed to comply with a court order
but the obvious questions were
asked as to whether the letter, dated 9 November 2017 constituted
their answer to the application,
their reasons for the previous
decision, a repeat of their previous rejection letters or simply a
bona fide
error
(last mentioned question presumably based on the fact that the
Respondents were clearly
functus
officio
in respect of the 16
September 2016
Section 8
(6) appeal). Not surprisingly, no
clarification was forthcoming and the Respondents remained both
silent and in default until the
matter came before me on 5 February
2018.
Relief
claimed
[19]
Apart from a review and setting aside of
the decisions contained in the rejection letters dated 14 June 2014,
25 August 2016 and
13 March 2017, and the remittal thereof to the
Respondents, the applicant also claims that the Respondents be
"directed to afford due weight
to the factual and legal findings in this judicial review application
when reconsidering the
Business Extension Application of the
Applicant".
It is this
last-mentioned relief which necessitated this judgment (as opposed to
the simple granting of relief on an unopposed basis
by default).
[20]
In addition, the Applicant claims:
"l.
That the directive which was issued by the First Respondent on the
3rd February 2016 and in terms of which the First Respondent
withdrew
circular no 10 of 2008 confirming the 11 November 2008 Dabone Court
Order, is declared inconsistent with the constitution
of the Republic
of South Africa, 1996 and invalid and is set aside".
Analysis
[21]
In order for administrative action to
qualify for reviewability, the following seven elements must be
present, namely that it must
be
•
a
decision
•
by
an organ of state (or natural or juristic person)
•
exercising
a public power or performing a public function
•
in
terms of legislation
•
that
adversely affects rights
•
that
has a direct, external legal effect and which does not fall under any
of the listed exclusions.
See:
Hoexter,
Administrative Law in South Africa,
Second Edition at
197 and the cases mentioned there.
[22]
It is abundantly clear that the
decisions sought to be impugned by the applicant do not fall in the
listed exclusions (such as the
exercise of executive power,
legislative or judicial functions and decisions otherwise expressly
listed in the Constitution) and
otherwise satisfy all the above
elements.
[23]
In terms of the Promotion of
Administrative Justice Act, No 3 of 2000 (PAJA), a court will have
the power to review the decisions
if, in the context of this
application, the decisions were materially influenced by an error of
law (s 6(2)(d)), were taken for
a reason not authorized by the
empowering provision (s 6(2)(e)(i),) were taken because
irrelevant considerations were
taken into account or relevant
considerations were not considered (s 6(2)(e)(iii)) or were taken
arbitrarily (s 6(2)(e)(iv).) The
decisions may also be reviewed and
set aside if they were so unreasonable that no reasonable person
could have so exercised
the power in terms of which the decisions had
been taken (s 6(2)(h)) or where the decisions were otherwise
unconstitutional (s
6(2)(i)).
[24]
Despite the somewhat confusing and
contradicting contents of the "rejection letters" as
described above and in which both
the decisions and their purported
reasons appear, the decisions appear to be twofold, namely:
•
the
business visa extension application was refused
•
any
change in the applicant's status was refused.
[25]
The reasons for the refusal of the
business visa extension were simply that according to "comment"
received from a different
state department (the DTI), the applicant's
business was judged to be not feasible and not in the national
interest. As a reason
for the second decision, the reason furnished
was simply that the applicant may not, as the holder of an asylum
seeker permit apply
for a change of status while in the Republic.
[26]
Section 33(2) of the Constitution gives
every person adversely affected by a decision the right to be
furnished with written reasons
for such a decision. Section 5(2) of
the PAJA requires these reasons to be "adequate". Almost
fifteen years ago already
the Supreme Court of Appeal had in
Minister
of Environmental Affairs & Tourism v Pambili Fisharies {Pty) Ltd
2003
(6) SA 407
SCA laid down that
adequate reasons should be specific, be written in clear language and
be of a length and detail appropriate
to the circumstances. It should
not be in the form of vague generalities and should set out facts
which lead to the conclusion.
Decisions such as Kiva v M
inis
ter
of Correctional
Services
(2007)
28 ILJ 597(E),
Commissioner, South
African Police Service v Maimela
2003 (50 SA 480(T)
and Nomala v
Permanent Secretary, Department of Welfare 2001 (8)BCLR 844(E) all
lead one to the conclusion that, dependent on the
circumstances of
the case, the nature and complexity of the decision, the reasons
furnished should be in such a form and contain
such detail so that
the person affected knows exactly why his application had failed.
[27]
In the present matter, neither the
applicant not the court knows what the comment of the DTI entailed,
what it was based on, why
the existing and flourishing business was
not deemed to be feasible, whether the non-feasibility related to
size, tum-over, profitability,
number of employees or extent of
investment and neither does one know what yardstick was utilized to
determine "national interest"
or in what measure or fashion
did the business not satisfy such interest.
[28]
The lack of adequate reasons, both in
itself and as purported justification for the decision, renders the
decision, when weighed
against the facts set out by the applicant
arbitrary, irrational and so unreasonable that no reasonable person
would have made
the same decision. Alternatively, relevant
considerations have either been ignored or not been given their due
weight. All the
requirements of PAJA for reviewability mentioned
above have therefore been satisfied.
[29]
I now turn to the issue of whether a
person such as the applicant, holding an asylum seeker permit may
legally apply for a change
of status while in the Republic.
[30]
It must at the outset be remembered
that, in terms of
section 22(5)
of the
Refugees Act once
an asylum
seeker leaves the Republic without the consent of the Minister of
Home Affairs, his or her asylum seeker permit lapses.
Apart from
this, the very reasons why asylum seekers fled to the Republic are
often the main reason why they don't want to leave
the Republic and
any applications regarding their status or any change thereto are
therefore often made from within the Republic.
[31]
An asylum seeker permit issued in terms
of
section 22
of the
Refugees Act is
, by its nature, temporary. It
lapses once the application for asylum itself, made in terms of
section 21
of the said Act is granted by the Refugee. Status
Determination Officer in terms of section 24 (3) (a) or when the
application
has been rejected and all the appeal processes against
such rejection have been exhausted as provided in Chapter 4 of the
said
Act.
[32]
A person's status changes from that of
an asylum seeker to that of a refugee once asylum has been granted
(s.1
of the
Refugees Act). After
such change, a refugee may then
apply for an immigration permit in terms of
section 27(c)
of the same
Act after five years continuous residence in the Republic calculated
from date of the granting of asylum and if the
Standing Committee
certifies that he will remain a refugee indefinitely. This enabling
provision is mirrored by sec 27 (d)of the
Immigration Act which
provides that the First Respondent
"may
subject to any prescribed requirements, issue a permanent residence
permit to a foreign.er of good character who
...
is a refugee referred to in
section
27(c)of
the
Refugees Act'.
[33
]
The First Respondent contends that,
because of the existence of the enabling provision contained in
section 27
(c) of the
Refugees Act,
"no
change
of condition or status should be premised on the provisions of
the
Immigration Act for
a holder of an asylum seeker permit which
claim to asylum has not been formally recognized by SCRA"
(last-mentioned being a reference to
the Standing Committee for Refugees Affairs, established in terms of
section 9
of the
Refugees Act).
[34]
The First Respondent's above quoted view
is contained in "Immigration Directive No 21 of 2015". In
addition to the aforesaid
view, this directive states that the
"management and issuance of
asylum seeker permits is administered through the
Refugees Act while
the management and the regulation of admission of foreigners
...
is done through the
Immigration Act'.
The
directive further determines
that "Departmental Circular no10 of 2008" is "officially"
withdrawn. (It also
.mentioned that the circular has "fallen
away since 26 May 2014" but no detail, nor facts supporting this
alleged "falling
away" have been placed before the court).
[35]
Departmental Circular No 10 of 2008 was
a circular issued by the First Respondent on 18 April 2008 whereby an
unreported judgment
of the Cape Provincial Division (as it was then
known) in Dabone & Others v M
i
nister
of
Home Affairs and Another
case
no 7526/03 was made policy in the Department and which replaced a
previous passport instruction. I was not furnished with a
copy of the
unreported judgment but could trace the order itself on the Legal
Resources website. It provided that the Respondents
in that matter
(the same respondents in this matter) may no longer require that
asylum seekers cancel their permits issued in terms
of
section 22
of
the
Refugees Act in
order to apply for permanent residence in terms
of
section 26
and
27
of the
Immigration Act and
that the Respondent's
may no longer require that asylum seekers or refugees posess a valid
passport in order to be issued with
a temporary residence permit or
to apply for and be issued an amendment to such permit. The contents
of this order was incorporated
in Department Circular 10 of 2008 and
forwarded to all stakeholders, including the Standing Committee for
Refugees.
[36]
The applicant stated in his founding
affidavit that
"the dispensation
which followed after the Dabone judgment recognized the merit of the
principle that once an asylum seeker's
circumstances changed so that
he/she is no longer a refugee he/she could otherwise qualify for a
residence visa".
He further
accuses the Respondents of adopting a "formalistic approach"
[37]
Conceivably, the Respondents may be
concerned about foreigners entering the Republic in the guise of
asylum seekers only to gain
entry with the intention, not of seeking
asylum, but of obtaining residence. This concern is however already
statutorily catered
for by section 24(3)(b) of the Refugees Act which
provides that an application for asylum may be rejected if found to
be "manifestly
unfounded, abusive or fraudulent". On
similar grounds the asylum seeker permit itself may be withdrawn in
terms of section
21 (6)(b) or when a person ceases to be a refugee as
provided for in section 5 of the same Act.
[38]
There is however a fundamental difficulty with the
Respondents' position to which neither
the applicant nor its counsel
had referred me to and it is this: in a well researched judgment of
Sher AJ,
inter alia
reported as
Ahmed v Minister of Home
Affairs and Another
2017
(2) SA 417
WCC, the Immigration
Directive No 21 of 2015 has been declared to be inconsistent with the
Constitution and invalid and has been
set aside. I have perused this
judgment and the cases referred to therein and am in respectful
agreement with the learned judge
in the conclusions reached.
Consequently, any reliance on this Directive as justification for the
Respondents' decisions falls
away.
[39]
Furthermore,
and even in the absence of a declaration of invalidity (or even if
some appeal might be pending against it, of which
the Respondents
have failed to inform the court) the applicant in this matter is in
an even stronger position than the applicants
in the
Ahmed-case
.
The applicants in the latter were
failed asylum seekers, whilst the present applicant is, pending a
decision on his asylum application
not. His (current) position is
therefore less precarious than that considered in particular in
paragraphs [49] - [53] in. the A
hme
d-case.
[40]
The judgment and order in the
Ahmed-case
were given on 21 September 2016. The
Respondents must have been aware of this, having been parties
thereto. Despite this and insofar
as the Respondents rely on the
rejectment letter of 13 March 2017 (and, in their latest letter of 9
November 2017, insofar as this
may also constitute a decision to be
reviewed and not merely reasons for prior decisions), on the
contention
"that no person
holding an asylum seeker permit may apply for a change of status
while in the Republic in terms of
...
the
Immigration Act"
(and
not on the Directive itself), such a contention is clearly in itself
wrong in law and unconstitutional. The grounds of unconstitutionality
applicable to the Immigration Directive 21 of 2015 as set out in the
Ahmed-case
are
equally applicable to this ground of justification for the rejection
of the applicant's application. I do not find it necessary
to repeat
the contents of the said judgment, save to confirm that, as in
the
Ahmed-case,
the Frist Respondent's
decisions offend against the applicant's right to dignity in terms of
s.10 of the Constitution. Insofar as
the impugned Immigration
Directive has already been set aside by a court, it is not necessary
to do so again as requested by the
applicant in paragraph 1of its
notice of motion
Costs:
[41]
The conduct of the Respondents, both in
the manner in which they dealt with the applicant' s appeals contrary
to an existing judgment
of the High Court and in dealing with this
application in this court by failing to comply with a court order
made by consent, merit
a punitive costs order.
[42]
Order
1.
The decisions by the Respondents, dated
14 June 2016, 25 August 2016 and 13 March 2017 respectively
(including, insofar as either
of the Respondents may seek to rely on
a decision contained in the letter dated 9 November 2017, such
decision as well) in terms
of which the Business Permit Extension
Application (and the appeals / reviews in respect thereof) of the
Applicant had been rejected,
are hereby reviewed and set aside and
remitted to the Respondents for reconsideration.
2.
The Respondents are directed to accord
due weight to the findings expressed in this judgment when
reconsidering the Business Permit
Extension Application of the
Applicant.
3.
The Respondents are ordered to pay the
costs of the application on the scale as between attorney and client.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 5 February 2018
Judgment
delivered: 12 February 2018
APPEARANCES:
For
the Applicant: Adv. J Willemse
Attorney
for Applicant: McMenamin
Van Huysteen & Botes Inc
For
the Respondents: No
appearance
Attorney
or respondents: State Attorney, Pretoria