THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 821/2022
In the matter between:
AMINA IRANKUNDA FIRST APPELLANT
ARAVA NIYONKURU SECOND APPELLANT

and

DIRECTOR OF ASYLUM SEEKER
MANAGEMENT: DEPARTMENT
OF HOME AFFAIRS FIRST RESPONDENT
CAPE TOWN REFUGEE RECEPTION
OFFICE MANAGER SECOND RESPONDENT
MINISTER OF HOME AFFAIRS THIRD RESPONDENT
DIRECTOR-GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS FOURTH RESPONDENT
CHAIRPERSON OF THE STANDING
COMMITTEE FOR REFUGEE AFFAIRS FIFTH RESPONDENT
SCALABRINI CENTRE OF CAPE TOWN AMICUS CURIAE

2

Neutral citation: Irankunda and Another v Director of Asylum Seeker
Management: Department of Home Affairs and Others (with Scalabrini Centre
of Cape Town intervening as Amicus Curiae) (821/2022) [202 4] ZASCA 87
(5 June 2024)
Coram: ZONDI, MAKGOKA and MOLEFE JJA, and KATHREE -
SETILOANE and UNTERHALTER AJJA
Heard: 7 September 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email; publication on the Supreme Court of Appeal
website; and release to SAFLII. The time and date for hand -down is deemed to
be 11h00 on the 5th day of June 2024.
Summary: Immigration – Refugee Act 130 of 1998 – whether asylum seeker
entitled to submit subsequent applications after initial application has been
declined.
The 1951 United Nations Relating to the Status of Refugees Convention – The
1969 Organization of African Unity (OAU) Convention Governing the Specific
Aspects of Refugee Problems in Africa.
Sur place refuge claims – nature of – basis for such claims – principle of non -
refoulement.

3


ORDER


On appeal from: Western Cape Division of the High Court, Cape Town
(Slingers J, sitting as a court of first instance):
1 The appeal is upheld with costs.
2 Paragraphs (iv) and (v) of the order of the high court are set aside and replaced
with the following:
‘(iv) The first and second respondents are directed to accept the applicants’
sur-place refugee claims applications, within five working days of the granting of
this order, and to determine such applications within 21 working days thereafter.
(v) The first and second respondents are ordered to pay the costs of the application,
jointly and severally.’


JUDGMENT


Makgoka JA (Zondi and Molefe JJA, and Kathree -Setiloane and
Unterhalter AJJA concurring):

[1] This case implicates two interrelated concepts of international law. The
first is the customary international law principle of non-refoulement, in terms of
which a person fleeing persecution should not be made to return to the country
inflicting it. The second is refuge e status sur place, which entails that a person
enters the country of refuge on one basis, and thereafter, supervening events in
their country of origin render them refugees.

[2] The appellants appeal against the judgment and order of the Western Cape
Division of the High Court, Cape Town (the high court). That court dismissed the
first and second appellants’ application to compel the first and second

4

respondents to accept their asylum seeker re-applications. The appeal is with the
leave of the high court.

The parties
[3] The appellants are Burundian nationals. They seek to submit further
asylum applications in South Africa after their initial applications were
unsuccessful. The first respondent is the Director of Asylum Seeker Management
in the Department of Home Affairs ( the Director). The Director had determined
that the appellants may not again apply for asylum in South Africa without
returning to their country of origin.

[4] The second respondent is the Cape Town Refugee Reception Office
Manager, who manages the Cape Town Refugee Reception Office (the CTRRO).
The second respondent oversees the work of the Refugee Status Determination
Officers (RSDOs), based at the CTRRO. The s econd respondent is, in practice,
the manager responsible for issuing and renewing asylum seeker permits at the
CTRRO. The third respondent is the Minister of Home Affairs (the Minister), a
Member of the National Executive responsible for the administratio n of the
Refugees Act.1

[5] The fourth respondent is the Director General of the Department. He is
responsible for the implementation and administration of the Refugees Act and
the Refugee Regulations.2 The fifth respondent is the Chairperson of the Standing
Committee for Refugee Affairs (the SCRA). He is responsible for, among other
things, reviewing decisions by RSDOs. The SCRA is the body which made the
final decisions on the previous applications made by the appellants for asylum in
South Africa. No direct relief was sought against the SCRA, and it is cited to the

1 Refugees Act 130 of 1998.
2 Published in Government Notice R366 in Government Gazette 21075 of 6 April 2000.

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extent that it may have interest in this matter. It is convenient to refer to the first
to fifth respondents, collectively as ‘the Department’.

[6] Scalabrini Centre of Cape Town (Scalabrini) sought to intervene as amicus
curiae. To establish its interest in the matter, Scalabrini asserted the following. It
is a registered non -profit organisation with a strong track record in protecting
migrant and refugee rights through its advocacy work and involvement in public
interest litigation on refugee rights. It has been involved in litigation in this Court
and the Constitutional Court.3

[7] The basis on which a party may be admitted as an amicus to a case is well
settled. In Certain Amicus Curiae Applications 4 the Constitutional Court laid
down the following guidelines: (a) the role of an amicus is to draw the attention
of the Court to relevant matters of law and fact to which attention would not
otherwise be drawn; (b) an amicus has a special duty to the Court to provide
cogent and helpful submissions that assist the Court; (c) an amicus must not
repeat arguments already made but must raise new contentions; and (d) generally
these new contentions must be raised on the data already before the Court.

[8] In the present matter, the Presiding Judge was satisfied that Scalabrini’s
intended submissions satisfied all of the above guidelines. He accordingly
admitted it as amicus curiae in the case and allowed it to file heads of argument
and to make oral submissions. Scalabrini’s late filing of its application to
intervene was also condoned.


3 Scalabrini Centre of Cape Town and Others v Minister of Home Affairs and Others [2017] ZASCA 126; [2017]
4 All SA 686 (SCA); 2018 (4) SA 125 (SCA); Scalabrini Centre of Cape Town and Another v Minister of Home
Affairs and Others [2023] ZACC 45; 2024 (4) BCLR 592 (CC).
4 In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and

Others 2002 (5) SA 713 (CC) para 5. See also Children's Institute v Presiding Officer, Children's Court,
Krugersdorp, and Others [2012] ZACC 25; 2013 (2) SA 620 (CC); 2013 (1) BCLR 1 (CC) para 26.

6

The issue for determination
[9] The issue in the appeal is whether a person whose application for refuge
has been declined is entitled to submit further applications, and if so entitled: (a)
the circumstances under which such applications may be submitted; and (b) the
factors to be taken into account when considering such applications. To answer
these questions, I consider: (a) the relevant international instruments foundational
to refugee law; (b) our domestic refugee legislation; and (c) some foreign law. I
will consider the merits of the appeal within that framework.

The applicable international and regional instruments
[10] Refugees are guaranteed legal protection in South Africa under
international treaties and domestic legislation. The 1951 United Nations Relating
to the Status of Refugees Convention (the UN Convention) and its 1967 Refugee
Protocol, as well as the 1969 Organization of African Unity (OAU) Convention
Governing the Specific Aspects of Refugee Problems in Africa (the OAU
Convention)5, are key treaties. South Africa has acceded to both treaties.

[11] Article 1A(1) of the UN Convention read with Article 1A(2) of the
Protocol and Article 1 of the OAU Convention define a refugee as: any person
who is outside their country of origin and is unable or unwilling to return or avail
themselves of its protection, owing to a well -founded fear of persecution for
reasons of race, religion, nationality, membership in a social group, or political
opinion.

[12] Thus, the protection afforded in the UN Convention requires a person’s
fear of persecution to be based on one of the five enumerated grounds, namely
race, religion, nationality, membership in a particular social group and political

5 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa,
10 September 1969, 1001 U.N.T.S 45.

7

opinion. On the other hand, the OAU Convention recognises that in addition to
the UN Convention grounds, refugee status may arise due to other factors. Its
definition specifically protects refugees experiencing armed conflict in war-torn
countries. It provides:
‘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.’

The principle of non-refoulement
[13] Both the UN Convention and the OAU Convention contain the well-known
protection against refoulement. Article 33(1) of the UN Convention provides as
follows:
‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.’
Clause 3 of Article II of the OAU Convention provides:
‘No person shall be subjected by a Member State to measures such as rejection at the frontier,
return or expulsion, which would compel him to return to or remain in a territory where his
life, physical integrity or liberty would be threatened…’

[14] Article 33(1) of the UN Convention and Clause 3 of Article II of the OAU
Convention find expression in s 2 of the Refugees Act, which reads as follows:
‘Notwithstanding any provision of this Act or any other law to the contrary, no person may be
refused entry into the Republic, expelled, extradited or returned to any other country or be
subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or
other measure, such person is compelled to return to or remain in a country where—

other measure, such person is compelled to return to or remain in a country where—
(a) he or she may be subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership of a particular social group; or

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(b) his or her life, physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination or other events seriously disturbing or disrupting
public order in either part or the whole of that country.’

Sur place refugee claims
[15] The concept of refugee sur place is expressly recognised by the United
Nations High Commissioner for Refugees (UNHCR), the body responsible for
overseeing the implementation of the UN Convention. In its Handbook on
Procedure and Criteria for Determining Refugee Status, 6 (the UNHCR
Handbook) it explains the concept and gives guidelines for determining whether
a person is a refugee sur place. It provides as follows:
‘A person who was not a refugee when he left his country, but who becomes a refugee at a later
date, is called a refugee ‘sur place’.
A person becomes a refugee “sur place” due to circumstances arising in his country of origin
during his absence. Diplomats and other officials serving abroad, prisoners of war, students,
migrant workers and others have applied for refugee status during their residence abroad and
have been recognized as refugees.
A person may become a refugee “sur place” as a result of his own actions, such as associating
with refugees already recognized, or expressing his political views in his country of residence.
Whether such actions are sufficient to justify a well-founded fear of persecution must be
determined by a careful examination of the circumstances. Regard should be had in particular
to whether such actions may have come to the notice of the authorities of the person’s country
of origin and how they are likely to be viewed by those authorities.’7

[16] Thus, the UNHCR Handbook recognises two categories of refugees: first,
those who fear returning to their countries due to circumstances arising in their
country of origin during their absence; and second, those who fear return ing to
their countries due to their own actions while residing in a host country.

their countries due to their own actions while residing in a host country.
Regarding the latter category, for example, the UNHCR Guidelines on

6 UNHCR Handbook and Guidelines on Procedure and Criteria for Determining Refugee Status, re -issued
February 2019.
7 Ibid paras 94-96.

9

International Protection No. 9, identifies members of the LGBTI+ community
who do not express their sexual orientation in their country of origin due to fear
of persecution, but do so in a nother country. They would be entitled to make a
sur place claim.

Domestic legislation
[17] To give effect to the relevant international legal instruments, principles and
standards relating to refugees, South Africa enacted the Refugees Act. Its long
title says that it is enacted ‘to provide for the reception into South Africa of
asylum seekers; to regulate applications for and recognition of refugee status; to
provide for the rights and obligations flowing from such status . . . ’.

[18] Section 2 provides that no person may be refused entry into the Republic,
expelled, extradited or returned to any other country, if as a result thereof, they
will be forced to return to a country where they may suffer persecution on account
of one of the reasons stated in the UN Convention, or their life, physical safety or
freedom would be threatened.

[19] The grounds upon which an asylum seeker may apply for asylum in South
Africa is set out in s 3 of the Refugees Act, which reads as follows:
‘Subject to Chapter 3, a person qualifies for refugee status for the purpose of this Act if 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 othe r events seriously
disturbing public order in either a part or the whole of his or her country of origin or

10

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 dependent of a person contemplated in paragraph (a) or (b).’

[20] The following observations are worth noting about the grounds in (a) and
(b): (a) is modelled on the UN Convention, while (b) is based on the expanded
definition of a ‘refugee’ in the OAU Convention, which definition, as mentioned,
specifically protects refugees experiencing armed conflict from war -torn
countries.

[21] The asylum application process commences when an asylum seeker reports
to a Refugee Reception Office under s 21(1)( a) of the Refugee s Act. This
application must be made in person within five days of entry into the Republic.
Such a person must be assisted by an officer designated to receive asylum seekers.
In terms of s 21(1)( b) an asylum applicatio n must be made in person as per the
prescribed procedures to a Refugee Status Determination Officer (the RSDO) at
any Refugee Reception Office or any other place designated by the Director -
General by notice in the Gazette. Upon considering the application, the RSDO
must, in terms of s 24(3), make one of the following decisions:
(a) grant asylum;
(b) reject the application as manifestly unfounded, abusive or fraudulent; or
(c) reject the application as unfounded.
A ‘manifestly unfounded application’, means an asylum application made on
grounds other than those contemplated in section 3’ , and an ‘unfounded
application, in relation to an application for asylum in terms of section 21, means
an application made on the grounds contemplated in section 3, but which is
without merit’.8


8 Section 1 of the Refugees Act.

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[22] In terms of s 24(3), the decision of the RSDO to grant asylum or to reject
asylum is ‘subject to monitoring and supervision’, whereas the decision to reject
the application as manifestly unfounded, abusive or fraudulent, is subject to
review by a designated member of the Standing Committee. If an application is
rejected as either being manifestly unfounded, abusive or fraudulent in terms of
s 24(3)(b) or being unfounded in terms of s 24(3)( c), the RSDO is enjoined to:
(a) furnish the applicant with written reasons within five working days after the
date of the rejection; and (b) inform the applicant of his or her right to appeal in
terms of s 24B.9

[23] As to how the asylum seeker is to be dealt with once their application is
rejected, depends on the reason for the rejection. In terms of s 24(5)( a), if the
reason for the rejection is that the application is manifestly unfounded, abusive
or fraudulent, and such a decision is confirmed by the Standing Committee in
terms of s 24A(2), then the asylum s eeker ‘must be dealt with as an illegal
foreigner in terms of section 32 of the Immigration Act’. On the other hand, if the
reason for the decision is that the application unfounded, the asylum seeker must,
in terms of section 24(5)(b), ‘be dealt with in terms of the Immigration Act, unless
he or she lodges an appeal in terms of section 24B(1)’.

[24] Section 24A(1) provides for the review by the Standing Committee of any
decision taken by the RSDO to reject an application as being manifestly
unfounded, abusive or fraudulent. The Standing Committee may also act in terms
of s 9C(1)( c) in respect of any decision taken to grant or reject an asylum
application.10 In terms of s 24A(3) the Standing Committee may, after having
determined a review, confirm, set aside or substitute any decision taken by RSDO

9 Section 24(4) of the Refugees Act.

9 Section 24(4) of the Refugees Act.
10 In terms of s 9C(1)(c) the Standing Committee may monitor and supervise all decisions taken by Refugee Status
Determination Officers and may approve, disapprove or refer any such decision back to the Refugee Reception
Office with recommendations as to how the matter must be dealt with.

12

that the application is, in terms of s 24(3)( b), manifestly unfounded, abusive or
fraudulent. The asylum seeker must be informed of the Standing Committee’s
decision within five working days of such decision, ‘whereafter the Standing
Committee is functus officio’.11

[25] In terms of s 24B appeals against the decisions of the Standing Committee
lie with the Refugee Appeals Authority (the Appeals Authority), which may set
aside or substitute any decision taken by the RSDO that, in terms of s 24(3)( c),
the application is unfounded. In terms of s 24B(5), if new information, which is
material to the application, is presented during the appeal, the Appeals Authority
is obliged to refer the matter back to the RSDO to deal with that asylum seeker
in terms of the Refugees Act.

Jurisprudence on sur place claims
[26] South Africa has not yet developed a significant jurisprudence on sur place
refugee claims. In Ruta v Minister of Home Affairs, 12 the Constitutional Court
made a passing reference to the issue. This is understandable, as the dispute there
centered around two issues, namely: (a) the effect of delay on entitlement to apply
for refugee status; and (b) the operation of the exclusionary provisions of the
Refugees Act, particularly s 4(1)(b). As far as we could establish, this is the first
case in this Court in which a sur place claim was directly asserted. Although we
are not called upon to determine the merits of the appellants’ claim th at they
qualify as sur place refugees, it is important to give some guidance as to how
such claims should be considered.

[27] Given the absence of authority on this issue in our jurisprudence, it is useful
to look to foreign law, as permitted by s 39(1)(c) of the Constitution. I do so

11 Section 24A(4).
12 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC).

13

bearing in mind what the Constitutional Court said in H v Fetal Assessment
Centre13 about the utility of foreign law and how it should be approached. The
Court explained:
‘Foreign law has been used by this Court both in the interpr etation of legislation and in the
development of the common law. Without attempting to be comprehensive, its use may be
summarised thus:
(a) Foreign law is a useful aid in approaching constitutional problems in South African
jurisprudence. South African courts may, but are under no obligation to, have regard to it.
(b) In having regard to foreign law, courts must be cognisant both of the historical context out
of which our Constitution was born and our present social, political and economic context.
(c) Th e similarities and differences between the constitutional dispensation in other
jurisdictions and our Constitution must be evaluated. Jurisprudence from countries not under a
system of constitutional supremacy and jurisdictions with very different constitutions will not
be as valuable as the jurisprudence of countries founded on a system of constitutional
supremacy and with a constitution similar to ours.
(d) Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed
through the prism of the Bill of Rights and our constitutional values.’

[28] With these guidelines in mind, I consider the jurisprudence of two
comparable common law jurisdictions – the United Kingdom (the UK) and
Canada, as to the treatment of sur place refuge claims. Hopefully, this will serve
as a basis for developing and shaping our jurisprudence on sur place refuge
claims. Axiomatically, our jurisprudence will be informed by our constitutional
values; our national legislation (the Refugees Act); the OAU’s expanded
definition of a ‘refugee’; and the injunction of s 233 of the Constitution which
commands us to give an interpretation of the Refugees Act ‘that is consistent with

commands us to give an interpretation of the Refugees Act ‘that is consistent with
international law over any alternative interpretation that is inconsistent with
international law’.


13 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) para 3 1.

14

[29] In the UK, the relevant legislation is the Asylum and Immigration Appeals
Act 1993. In Canada, the applicable legislation is the Immigration and Refugee
Protection Act.14 Although there may be different conceptual bases between these
and our Refugees Act, the UK and Canadian legislations, like ours, are premised
on articles 1 and 33 of the UN Convention, which, respectively, set out the
definition of ‘refugee’, and contain the well -known protection against
refoulement. Thus, the basic premise of these articles is the protection of persons
with well-founded fears of persecution.

[30] I consider, in turn, five aspects which I deem relevant to the present case,
namely: (a) the effect of bad faith and/or fraud in applications for refuge; (b)
countries in a state of war; (c) whether a claimant will be specifically affected by
events in their home country; (d) whether the risk of persecution is personalized
or generalized; (e) change of government in the claimant’s country of origin.
a.
Bad faith and/or fraud
[31] In the UK, the leading case is Danian v Secretary of State for the Home
Department.15 There, the Court of Appeal concluded that the fact that a refugee
sur place had acted in bad faith should not on its own exclude him or her from
the protection of t he UN Convention. Such a person should not be deported to
their home country if their fear of persecution is genuine and well-founded for a
Convention reason, and there is a real risk that such persecution may take place.
Although such an applicant’s credibility is likely to be low and the claim must be
rigorously scrutinised, they are still entitled to the protection of the Convention if
a well-founded fear of persecution is accepted.

14 Immigration and Refugee Protection Act (SC 2001, c 27).
15 Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000; [2000] Imm AR 96, [1999]
INLR 533 (Danian).

15

[32] In that case, a Nigerian national had been given leave to live in the UK as
a student in 1985. In 1990 he was convicted of a criminal offence for working in
breach of the conditions of his leave to remain in the UK as a student. Following
his conviction, a deportation order was issued against him. Resisting his
deportation, he applied for asylum on two grounds: first, that he had suffered
discrimination and il l-treatment in Nigeria; and second, that political activities
that he had undertaken in the UK on behalf of the pro -democracy movement
would place him at risk was he to be deported to Nigeria. The Immigration Appeal
Tribunal (the Tribunal) found that his p olitical activity before 1995 would not
have come to the attention of the Nigerian authorities, and his political activities
after 1995 were motivated by a desire to tailor a false asylum claim. It further
held that a refugee sur place who has acted in bad faith to create a risk of
persecution is not entitled to the protection of the UN Convention.

[33] The Court of Appeal disagreed with the Tribunal’s reasoning, and set aside
the decision of the Tribunal. Lord Justice Brooke, who gave the leading opinion,
reasoned:
‘I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith
falls out with the Geneva Convention and can be deported to his home country notwithstanding
that he has a genuine and well -founded fear of persecution for a Convention reason and there
is a real risk that such persecution may take place. Although his credibility is likely to be low
and his claim must be rigorously scrutinised, he is still entitled to the protection of the
Convention, and this country is not entitled to disregard the provisions of the Convention by
which it is bound, if it should turn out that he does indeed qualify for protection against
refoulement at the time his application is considered.’16




16 Danian fn 37.

16

[34] The court also referred with approval to Mbanza17 in which it was said:
‘If, therefore, despite having made such a claim and having had it rejected he can nevertheless
at any time thereafter and on whatever basis satisfy the authorities that he has a well -founded
fear of persecution for a Convention reason if he is returned to the country of his nationality, it
would be a breach of the United Kingdom's international obligations under the Convention to
return him to face possible death or loss of freedom.’

[35] The issue in M v Secretary of State 18 was whether a person whose claim
for asylum is fraudulent could nevertheless benefit from the terms of the UN
Convention. In his asylum application, the appellant had made false claims about
his arrest, imprisonment and escape from Zaire .19 His asylum appli cation was
refused based on these falsehoods. The applicant appealed to the Tribunal,
contending that he was at risk of persecution if he returned to Zaire because he
had made an asylum claim. The Tribunal dismissed the appeal because: (a) a
person who put forward a fraudulent and baseless claim for asylum could not
bring himself within the convention and (b) in any event, the evidence was
insufficient to show that there was a reasonable likelihood that the appellant
would be persecuted, as required by the UN Convention.

[36] The Court of Appeal held that the making of a false asylum claim could
not act as a total barrier to reconsideration of an applicant's status as a potential
refugee, since it was possible that, by the very act of claiming asylum, an
applicant could put himself at risk of persecution. However, where an application
is rejected on the basis that it was based on fraudulent facts, this would affect the
claimant’s credibility. He would likely find it extremely difficult to demonstrate

17 Mbanza [1996] Imm AR 136; [1995] EWCA Civ 44.

17 Mbanza [1996] Imm AR 136; [1995] EWCA Civ 44.
18 M v Secretary of State for the Home Department [1996] 1 All ER 870, [1996] 1 WLR 507, United Kingdom:
Court of Appeal (England and Wales), 24 October 1995, available at:
https://www.refworld.org/jurisprudence/caselaw/gbrcaciv/1995/en/15975 [accessed 08 May 2024].
19 Now Democratic Republic of Congo.

17

to the requ ired standard a genuine subjective fear of persecution within article
1A(2)a of the UN Convention.

[37] In Canada, the position is also that there is no ‘good faith’ requirement in
making a sur place claim. A decision-maker should not reject a sur place claim
solely on the basis that the claimant was acting for an improper motive without
examining the potential risk to the claimant upon return to their country of
origin.20 Professor Hathaway sums up the effect of lack of good faith in sur place
refugees claims as follows:
‘It does not follow, however, that all persons whose activities abroad are not genuinely
demonstrative of oppositional political opinion are outside the refugee definition. Even when
it is evident that the voluntary statement or action was f raudulent in that it was prompted
primarily by an intention to secure asylum, the consequential imputation to the claimant of a
negative political opinion by authorities in her home state may nonetheless bring her within the
scope of the Convention definit ion. Since refugee law is fundamentally concerned with the
provision of protection against unconscionable state action, an assessment should be made of
any potential harm to be faced upon return because of the fact of the non -genuine political
activity engaged in while abroad.’21

[38] In Ghasemian22 the court followed the reasoning of the English Court of
Appeal in Danian and held that opportunistic claimants are still protected under
the UN Convention if they can establish a genuine and well -founded fear of
persecution for a Convention ground. There, an Iranian Muslim national had
asserted sur place refugee status on the basis that she had converted to
Christianity while in Canada. On that b asis, she said, she would be persecuted
were she to return to Iran. The decision -maker rejected her application on the

20 See, for example, Ngongo, Ndjadi Denis v M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25,
1999.
21 J C Hathaway The Law of Refugee Status 4 ed (1991) at 39.
22 Ghasemian, Marjan v M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003 ; 2003 FC 1266. See also,
Ding v Canada (Citizenship and Immigration) 2014 FC 820; Yang v Canada (Citizenship and Immigration) 2012
FC 849.

18

basis that her conversion to Christianity was not genuine, but a ruse for her to
remain in Canada. Thus, the basis of her application (he r conversion) was not
made in good faith.

[39] The court held that while it was open to the decision -maker to reject
her sur place claim based on a lack of subjective fear, the decision -maker
misconstrued her evidence regarding her alleged lack of fear of rep risals and
applied the wrong test by rejecting her claim on the basis that it was not made in
good faith, i.e., she did not convert for a purely religious motive.

Countries in a state of war or political upheaval
[40] In R v Secretary of State ex p Adan 23 the UK House of Lords considered
the distinction between persecution and the ordinary incidents of civil war. It held
that where a country is in a state of civil war, it is not enough for an asylum -
seeker to show that he would be at risk if he were returned to his country. He must
be able to show fear of persecution for Convention reasons over and above the
ordinary risks of clan warfare. The matter concerned a Somalian national who
had fled Somaliland because of civil war in his country. The court found t hat all
sections of society in northern Somalia were equally at risk so long as the civil
war continues. There was no ground for differentiating between the claimant and
the members of his own or any other clan. Accordingly, it held that the claimant
was not entitled to refugee status.

Whether a claimant will be specifically affected by events in their home country
[41] Where a claimant will be not specifically affected by events in their home
country, and will be affected to the same degree as all citizens of their country, a
sur place claim would ordinarily fail. In Zaied v Canada (Citizenship and

23 Adan, R (on the application of) v Secretary of State for Department [1999] EWCA Civ 1948, [1999] 4 All ER

774, [1999] COD 480, [1999] 3 WLR 1274, [1999] Imm AR 521, [1999] INLR 362.

19

Immigration)24 the applicants based their sur place claim on the insecurity and
major upheaval in his country of origin, Tunisia, which occurred after the
claimants had left countr y. They had obtained a six months’ visa in Canada in
September 2008, which was extended for a further six months. In March 2010 the
applicants applied for asylum as sur place refugees alleging possible religious
persecution in Tunisia as minority Shi’ite Muslims in a predominantly Sunni
country, which was refused by the Refugee Protection Division (the RPD).

[42] On review, the Federal Court found that it was reasonable for the panel to
draw negative inferences from, inter alia, the fact that: (a) the applicants did not
provide clear explanations to the panel’s questions about their persecutors; (b) the
applicants made a claim for refugee protection following a two -year stay in
Canada and following two visa extensions; and (c) the applicants’ responses
indicated that they wished to remain in Canada for economic and family reasons.

[43] Concerning the sur place refugee claim, the court concluded thus: the
evidence of what could happen to the applicants if they were to return to Tunisia
was speculative. It did not demonstrate how their situation differed from those of
other Shi’ite Muslims in Tunisia. It was therefore reasonable to conclude that
there was no connection between that situation and the applicants’ claim for
refugee protection in that they were affected to the same degree as all
Tunisians. The applicants were not specifically affected by the events arising from
the revolution. They would therefore face the same fate as the rest of the Tunisian
population.




24 Zaied v Canada (Citizenship and Immigration) 2012 FC 771.

20

Whether the risk of persecution is personalized or generalized
[44] In Prophète v Canada25 a national of Haiti claimed to have been the target
of gang violence on multiple occasions, in the form of vandalism, extortion, and
threats of kidnapping. He alleged that he was targeted because he was a known
businessman, and perceived to be wealthy. His application for asylum in Canada
was rejected by the Refugee Protection Division of the Immigration and Refugee
Board on two grounds: (a) his fear of persecution had no nexus with any of the five
grounds contained in the definition of Convention refugee; (b) he failed to
demonstrate that he would be subject to danger or to a risk to his life or cruel or
unusual treatment owing to his personal circumstances or those of similarly situated
individuals.

[45] On review of the Board’s decision, Justice Tremblay -Lamer pointed out
the difficulty in analyzing personalized risk in situations of generalized human
rights violations, civil war, and failed states. She addressed the second of the two
conjunctive elements contemplated by paragraph 97(1)(b)(ii), in circumstances in
which the first of those elements (personal risk) had been established. She
determined that s 97(1) can be interpreted to include a sub-group within the larger
one that faces an even more acute risk. She explained:
‘The difficulty lies in determining the dividing line between a risk that is “personalized” and one
that is “general”. Under these circumstances, the Court may be faced with applicant who has been
targeted in the past and who may be targeted in the future but whose risk situation is similar to a
segment of the larger population. Thus, the Court is faced with an individual who may have a
personalized risk, but one that is shared by many other individuals.’26

[46] After a survey of the jurisprudence of the Federal Court, the court concluded
that the applicant did not face a personalized risk that is not faced generally by other

that the applicant did not face a personalized risk that is not faced generally by other
individuals in or from Haiti. The risk of all forms of criminality was general and

25 Prophẻte v Canada (Minister of Citizenship and Immigration) 2008 FC 331.
26 Ibid para 18.

21

felt by all Haitians. While a specific number of individuals may be targeted more
frequently because of their wealth, all Haitians are at risk of becoming the victims
of violence. Consequently, the application for judicial review of the Immigration
and Refugee Board decision was dismissed.

[47] Subsequently, in Baires Sanchez v Canada (Citizenship and
Immigration),27 the Federal Court narrowed the test further. It held that in order
to show that a risk is not generalized, applicants must establish that the risk of
actual or threatened similar violence is not faced generally by other indi viduals
in or from that country, and that applicants must demonstrate that the respective
risks that they face are not prevalent or widespread in their respective countries
of origin, in the sense of being a risk faced by a significant subset of the
population. This case also concerned apprehension of risk at the hands of
gangsters, this time in El Salvador. The court concluded that the gang violence
(including murder), was a risk faced widely by people in El Salvador.28

[48] In Portillo v Canada 29 the Federal Court developed a two -step test for
determining whether the risk is generalized or personalized. First, the RPD must
determine the nature of the risk faced by the claimant under the following subsets:
(a) an assessment of whether the claimant faces an ongoing or future risk; ( b)
what that risk is; ( c) whether it is one of cruel and unusual treatment or
punishment and; and (d) the basis for the risk. Secondly, the correctly described
risk faced by the claimant must then be compared to that faced by a sig nificant
group in the country at issue. This is to determine whether the risks are of the
same nature and degree. In this enquiry, it will typically be the case that where an

27 Baires Sanchez v Canada (Citizenship and Immigration) 2011 FC 993.
28 Ibid para 23.
29 Portillo v Canada (Citizenship and Immigration) 2012 FC 678.

22

individual is subject to a personal risk to his life or risks cruel and unusual
treatment or punishment, then that risk is no longer general.30

Change of government
[49] Where there has been a change of government in the claimant’s country of
origin, and it is asserted this had eliminated the cause of fear of prosecution,
Canadian courts have held that in such cases, the evidence must be subjected to a
detailed analysis to determine whether the change is significant enough to
eliminate the claimant’s fear of persecution. 31 The decision-maker must consider
the objective basis of the claimant’s fear of persecution, the alleged agents of
persecution and the form or nature of the persecution feared.

[50] This evaluation must relate to the particular circumstances of the claimant
and the decision -maker should prov ide a clear indication or explanation for its
finding.32 It should not rely on or give much weight to changes that are short -
lived, transitory, inchoate, tentative, inconsequential or otherwise ineffective in
substance or implementation. 33 The changes which are being relied on as
removing the reasons for the claimant’s fear of persecution are not to be assessed
in the abstract but for their impact on the claimant’s particular situation. 34 The
decision-maker must consider the quality of the institutions of the democratic
government.35





30 Ibid paras 40 and 41.
31 Ahmed v Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.), at 223- 224.
32 Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993 para 4.
33 In this regard, in its Discussion Paper (2021) Chapter 7, the Immigration and Refugee Board of Canada has
made a useful collation of cases in which the issue is discussed.
34 Alfaro v Canada (Citizenship and Immigration) 2011 FC 912 para 16.
35 Soe v Canada (Public Safety and Emergency Preparedness) 2018 FC 1201.

23

The appellants’ appeal
Factual background
[51] It is now convenient to turn to the present appeal. As mentioned, both
appellants are Burundian nationals. The first appellant entered the country
illegally in May 2008 and applied for asylum in September 2009. She stated in
her application for asylum that her parents died a long time ago and that she
wished to work and study in South Africa. The second appellant entered the
country illegally in May 2009 and applied for asylum in August 2009. She also
stated that she wished to study, work and have access to medical facilities in
South Africa. According to her application form, she informed the RSDO that she
wished to return to Burundi and that nothing would happen to her if she did.

[52] The appellants’ applications were rejected by the RSDO as being
manifestly unfounded in terms of terms of s 24(3)(b) of the Refugees Act. The
refusal of the applicants’ asylum applications was automatically reviewed by the
Standing Committee which confirmed the finding of the RSDO in February and
December 2014, resp ectively. Thereafter, they were both informed in writing
that, in terms of the Immigration Act,36 they were illegal foreigners, and had to
leave the country within 30 days of receipt of the notice.

[53] The appellants neither left the country nor appealed against the decisions
of the Standing Committee. By virtue of not challenging the rejection of their
initial applications, it must be accepted that the appellants’ reasons for leaving
Burundi were those advanced in their initial applications. The upshot is that the
appellants did not flee Burundi because of any persecution, nor did they have a
well-founded fear of persecution upon their arrival in South Africa. On their

36 Immigration Act 13 of 2002.

24

version, their alleged fear of persecution only arose in 2015, when, according to
them, the political situation in Burundi changed for the worse.

[54] On 3 August 2018, after over four years of inactivity on the appellants’
part, an attorney on behalf of the appellants, wrote a letter to the Manager of the
Cape Town Refugee Reception Office, and stated that the appellants accepted
that their asylum applications had been finally rejected. The appellants averred
that, after the rejection of their applications, circumstances changed in B urundi.
Widespread political violence broke out, following which, thousands of
Burundians fled the country. Those who remained were subjected to oppression,
torture, rape, and sexual violence. The applicants said that it was therefore not
safe for them to return to Burundi, as this would place them at risk of persecution
or serious threat to their lives, safety and/or physical freedom. For these reasons,
they considered themselves to be sur place refugees, and made new applications
for asylum as such.

[55] The appellants did not explain the nearly four years of inactivity on their
part since being informed of the decisions to decline their applications. Be that as
it may, the appellants were subsequently interviewed in September 2018. Nothing
was heard from the Department after the interviews, and after an enquiry by the
appellants, an official of the Department stated that their case was ‘closed’. On
25 October 2018 the official wrote to the appellants’ attorney as follows:
‘A failed asylum seeker who has n ot departed the Republic after he/she was rejected must be
deported, that’s my instruction to the Officials and I am [a]waiting their update. Those who
return from their countries and wish to apply, they are free to apply at any Refugee Centre
accepting newcomers.’

25

In the high court
[56] The stance by the Department triggered an application by the appellants in
the high court on 29 November 2018. The appellants sought an order directing
the Department to accept their asylum seeker applications based on their sur place
refugee claims within five days of the order. In their founding affidavit, the
appellants advanced substantially different reasons for leaving Burundi to seek
asylum in South Africa, to those they furnished in their unsuccessful asylum
applications. This time they alleged that they left Burundi because of persecution
at the hands of members of rebel soldiers. Both alleged that they were abducted
and raped, and their family members killed. As a result, they suffered trauma and
loss in Burundi, whic h led them to flee to South Africa to seek asylum. The
appellants attributed this to misunderstanding between them and immigration
officials, due to language barriers.

[57] The appellants alleged that in April 2015 – after their asylum applications
had been re jected, the spiral of political violence in Burundi worsened due to
then-President Nkurunziza’s announcement that he would seek a third term in
office. This led to mass oppression, torture, sexual violence, illegal arrests, and
killings. These political developments, they asserted, placed them at risk of harm
if they were to return to Burundi, as demanded by the Department and would
violate the principle of non -refoulement. Thus, they were entitled to make new
applications as sur place refugees.

[58] Accordingly, the appellants sought an order directing the Department to
accept their new asylum applications under s 21 of the Refugees Act without
requiring them to leave the country.

[59] In its answering affidavit, the Department accepted that foreigners w ho
leave their countries of origin for reasons other than being refugees can become

26

sur place refugees. In these circumstances, the Department accepted that a
foreigner can apply for asylum without departing South Africa. However, the
Department did not accept that the appellants are sur place refugees. According
to the Department, the circumstances upon which the appellants rely for their sur
place refugee applications, existed in their country at the time of their departure.
To contend that the circumstances worsened since then, did not render them sur
place refugees. They were not refugees when they left Burundi, given the reasons
originally furnished to the RSDO.

[60] According to the Department, when the asylum process is completed and
an application is finally rejected, the Refugees Act does not contemplate that they
may apply for asylum again. Such people must depart the Republic, and their
continued presence in the Republic , until their departure , is regulated by the
provisions of the Immigration Act.

The judgment of the high court
[61] The high court accepted the contention by the Department that an asylum
seeker whose application has been unsuccessful should leave the country. It said
that to allow for resubmission without the asylum seek er leaving the country
would:
(a) result in a never-ending cycle of asylum applications, and thus undermine the
public interests in finality of decisions. As soon as an asylum application is
refused, the asylum seeker would simply re -submit a new applicat ion, thereby
rendering him or her subject to the protections and general rights set out in s 27A
of the Refugees Act. This, the high court reasoned, would render the asylum
system nugatory, as the asylum seeker need only continuously apply for asylum
to be granted the right to stay in the country in terms of s 27A(b).
(b) render s 24(5)(a) of the Refugees Act invalid because as soon as an application
is finally determined, the asylum seeker need merely indicate an intention to

27

reapply for asylum to escape the provisions of s 24(5)(a) and avoid being dealt
with in terms of the Immigration Act.
(c) render s 21(4) of the Refugees Act to be tautologous or superfluous.

[62] The high court emphasised the fact that the appellants’ asylum applications
had been finally determined as manifestly unfounded and they had accepted this
decision. Thus, reasoned the court, the shield of non-refoulement had been lifted.
The high court said that o n the appellants’ approach, the application of the
Immigration Act could potentially be deferred indefinitely as an asylum seeker
could always have an asylum application pending.

[63] Consequently, the high court concluded that there was no general
obligation on the Department to accept a new application for asylum upon the
refusal of an application that was found to be manifestly unfounded. The high
court reasoned that the Refugees Act does not contemplate th at a failed refugee
application can be re-submitted. The court reasoned that an interpretation of the
Refugees Act which allowed for such re-submission would defeat the purpose of
the legislation and would result in a never -ending process. For all of these
reasons, the high court dismissed the appellants’ application. However, the high
court subsequently granted the appellants leave to appeal to this Court against
paragraphs (iv) and (v) of the high court’s order. 37

In this Court
[64] Before us, the parties persisted with their respective positions adopted in
the high court. The appellants do not request this Court to determine whether
indeed they qualify as sur place refugees, and are thus entitled to asylum on that
basis. All they see k is for an order directing the Department to consider their

37 Paragraphs (i), (ii) and (iii) concerned a third applicant in the high court, who is not before this Court.

28

applications. Thus, the merits of those claims need not be determined in this
appeal.

[65] As mentioned, what is at issue is whether a person whose refugee
application has been declined is entitled to submit subsequent applications. With
reference to international instruments and comparative law, I have already
established that there is no bar to subsequent claims, as long as there is a valid
basis to do so.

[66] At the heart of refugee law is the princi ple of non -refoulement. In our
domestic law, this finds expression in s 2 of the Refugees Act. It provides:
‘Notwithstanding any provision of this Act or any other law to the contrary, no person may be
refused entry into the Republic, expelled, extradited or returned to any other country or be
subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or
other measure, such person is compelled to return to or remain in a country where—
(a) he or she may be subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership of a particular social group; or
(b) his or her life, physical safety or freedom would be threatened on account of external
aggression, occupation, foreign do mination or other events seriously disturbing or disrupting
public order in either part or the whole of that country.’

[67] The Constitutional Court pointed to the significance of this section as
follows:
‘This is a remarkable provision. Perhaps it is unprece dented in the history of our country’s
enactments. It places the prohibition it enacts above any contrary provision of the Refugees
Act itself – but also places its provisions above anything in any other statute or legal provision.
That is a powerful decre e. Practically it does two things. It enacts a prohibition. But it also
expresses a principle: that of non -refoulement, the concept that one fleeing persecution or
threats to “his or her life, physical safety or freedom” should not be made to return to the

threats to “his or her life, physical safety or freedom” should not be made to return to the
country inflicting it.’38

38 Ruta para 24.

29

[68] The appellants and Scalabrini, on the one hand, emphasised the absolute
nature of this principle of non-refoulement. The appellants submitted that having
regard to the principle of non-refoulement, there was nothing in the Refugees Act
that precluded an asylum seeker from submitting a second or further applications
if there is a reason to do so. By ordering the appellants to leave the country and
submit their subsequent applications while in their country of origin, the high
court’s order breached this principle.

[69] Scalabrini contended that the right does not fall away just because an
adjudication process has declared that a person is not entitled to refugee
protection under the Refugees Act. Thus, so went the submission, if a person is
not granted refuge protection under the Refugee s Act but factually meets the
definition of being a refugee, such a person cannot be compelled to return to the
country from which they fled. Compelling them to return to such a country would
violate customary international law.

[70] Scalabrini centred its submissions on the existence of conflict as a raison
de’etre for asylum systems in the first place. According to Scalabrini, for as long
as conflict persists in its various manifestations, asylum seekers maintain the right
to make subsequent applications. On the other hand, the respondents contended
that the principle of non-refoulememt applies once, and upon a final rejection, the
protection is lifted.

[71] It is convenient to clarify the reach of the principle of non -refoulement.
When it is said that the principle is absolute, it means this: the protection afforded
by the principle endures for as long as an asylum seeker has not exhausted all
available remedies, including internal appeals and judicial review. But once these
processes are exhausted, and an asylum application is finally rejected, the
protection falls away. For, it is implicit in that rejection that the claimant does not

30

meet the definition of a refugee. In other words, they do not have a well-founded
fear of persecution for a Convention reason, as envisaged in article 1A(1) of the
UN Convention.

[72] Under those circumstances, requiring them to return to the country from
which they fled would not violate customary international law. As explained by
the Constitutional Court in Ruta:
‘Until the right to seek asylum is afforded and a proper determination procedure is engaged
and completed, the Constitution requires that the principle of non-refoulement as articulated in
section 2 of the Refugees Act must prevail. The “shield of non-refoulement” may be lifted only
after a proper determination has been completed. . .’39

[73] Also, as correctly observed by this Court in Somali Association v Refugee
Appeal Board and Others 40 (Somali Association ) ‘there is a legitimate State
interest and concern to ensure that refugee status is granted only to those who
qualify, to disqualify unfounded applications and to provide for the cessation of
refugee status’. (Emphasis added.)

[74] The construction of the principle favoured by the appellants and Scalabrini
is at odds with the above dicta. If their construction were correct, there would
never be an end to a cycle of asylum applications. I do not think that the principle
goes as far as to suggest that once an asylum seeker makes an application, he or
she will never be returned to their country of origin , irrespective of the outcome
of such an application or its final determination.

[75] This brings me to the Refugees Act, and the context in which the principle
of non-refoulement should be construed. The legislation does not, without more,

39 Ruta para 54.
40 Somali Association of South Africa and Others v Refugee Appeal Board and Others [2021] ZASCA 124; [2021]
4 All SA 731 (SCA); 2022 (3) SA 166 (SCA) para 1.

31

contemplate that applicants whose applications for asylum have been lawfully
refused can remain in the country and simply re-submit their applications. A new
application can only be brought based on substantially different or changed
circumstances. An application brought on the same facts would likely constitute
an abuse of the asylum system. Absent a new basis or new facts, a failed applicant
for asylum is not entitled to make one application after another. There has to be
finality to the processes.

[76] Therefore, the suggestion that one can without more, submit one
application after the other when the previous one has been finally determined, is
not what the Refugees Act contemplates. For such applicants, the period between
the final rejection of their asylum and their departure, is regulated by the
Immigration Act. Without any permit to remain in the country, such applicants
are regarded as illegal foreigners as d efined in the Immigration Act. Section 32
of the Immigration Act provides that ‘any illegal foreigner shall depart unless
authorised by the Department to remain in the Republic’.

[77] Thus, a failed asylum applicant can only remain in the country on either of
the following bases: (a) that the final determination of their asylum application is
pending; (b) that he or she has authorisation by the Department to remain in the
country; or (c) that there is some other lawful basis to remain in the country. This
is the essence of the rule of law – a foundational value of our Constitution.

[78] Applied to the present case, one should bear in mind the following. The
appellants have neither applied to review the decisions to reject their initial
asylum applications nor do they h ave authorisation from the Department to
remain in the country. Ordinarily, that rendered them illegal foreigners under the
Immigration Act, as they had no legal basis to remain in the country.

32

[79] However, by asserting sur place claims, the appellants sought to remove
themselves from the clutches of the Immigration Act and placed themselves back
in the purview of the Refugees Act. The appellants alleged that after their asylum
applications had been rejected, the situation in thei r country of origin became
risky for them to return home. They said that this entitled them to submit
subsequent applications for asylum without being obliged to leave the country.
The high court was, correctly so, concerned that this amounted to an abuse of the
system, especially that for four years since their applications were refused, the
appellants did nothing about their situation. As mentioned, there is no explanation
for this period, during which the applicants lived in the country without any
lawful basis, thus rendering them illegal foreigners in terms of the Immigration
Act. Having said that, it was not the high court’s place to determine whether the
appellants’ sur place applications were genuine. That duty fell on the Department
after having had regard to the merits of the application. This is where the high
court erred.

[80] The basis for the new applications was, on the face of it, different from the
initial one. This time, it was alleged that since the rejection of their initial
applications, circumstances in their country of origin have changed for the worse,
which exposed them to the risk of harm were they to return home. Hence, they
claim to be sur place refugees. In the circumstances, the Department was obliged
to consider the applications, investigate the grounds on which they are made, and
decide whether there was merit in the applications. The Department was not
entitled to simply refuse to consider the applications. Indeed, the high court
recognised that there may well be circumstances that would allow an applicant to
re-submit an application. However, it did not explain or explore what those
circumstances might be.

33

Conclusion
[81] Be that as i t may, it was wrong of the Department to demand that the
appellants leave the country and make such applications while in the country of
origin. To be clear, once a refugee sur place claim is made, there is no basis to:
(a) demand that an asylum seeker ret urns to their country of origin pending the
determination of their application; or (b) reject the application on the basis that
the initial one had been finally determined. The Canadian courts have held that
once an applicant asserts a sur place claim before a decision-maker, it must be
addressed. Failure to do so amounts to a reviewable error. 41 The claim must be
addressed, even if it is raised late, even in post -hearing evidence.42 In the same
breath, the Department should have considered and determined the appellants’
sur place claims. It follows that the failure to do so constituted a reviewable error.

[82] These conclusions must be understood to be subject to some cautionary
observations. First, a sur place claim is not validly made by reformulating a claim
that has already been finally determined. Second, a sur place claim must set out
a proper evidential basis for the claim. What circumstances have changed, the
evidence of that change, and their specific co nsequences for the applicant must
be set out in the application. Absent this content, an application may be
summarily rejected. Third, there is much scope for abuse, in which sur place
claims are made, sometimes on a repeated basis, without proper founda tion, to
extend protections for lengthy periods of time. This should not be tolerated. And
the Department should develop expedited procedures to bring to finality sur place
claims that facially have no basis.


41 See for example, Manzila v Canada (Minister of Citizenship and Immigration) (1998) 165 FTR 313; [1998] FCJ
1364 paras 4 and 5; Gebremichael v Canada (Minister of Citizenship and Immigration) 2006 FC 547 para 52;

Hannoon v Canada (M.C.I.) (2012), 408 F.T.R. 118 (FC).
42 Gurung, Subash v M.C.I. 2013 FC 1042.

34

[83] The appeal must succeed . The decision of the Department should be set
aside and remitted to the Department for it to consider the appellants’ new
applications. In doing so, the Department should, generally, be faithful to the
injunction of this Court in Somali Association:
‘In dealing with such applications, it must be emphasised, once again, that State authorities are
required to ensure that constitutional values, including those that embrace international human
rights standards set by international conventions and instruments in relation to those seeking
asylum, adopted by South Africa are maintained and promoted.’43

[84] In particular, the Department should have regard to the principles discussed
in this judgment, and principally, whether:
(a) there has been a deterioration in the political situation in Burundi since the
appellants left that country, and whether such situation persists to the date of the
inquiry. The Department will no doubt receive up -to-date evidence about the
situation in Burundi before it reaches its decision on the appellants’ applications
and determine them based on the facts known at the date of the inquiry.
(b) If the answer to (a) above is in the affirmative, whether the appellants, as a
result, have a well-founded fear of persecution were they to return to Burundi.
(c) If the answer to (c) above is in the a ffirmative, whether such fear of
persecution is owed to:
(i) any of the five UN Convention grounds, ie race, nationality, membership of a
particular social group or political opinion; or
(ii) events seriously disturbing public order in either part or the whole of Burundi
as envisaged in the OAU Convention.

[85] Costs should follow the result. There should not be any costs order
occasioned by the participation of the amicus.


43 Somali Association para 8.

35

Order
[86] The following order is made:
1 The appeal is upheld with costs.
2 Paragraphs (iv) and (v) of the order of the high court are set aside and replaced
with the following:
‘(iv) The first and second respondents are dir ected to accept the applicants’
sur-place refugee claims applications, within five working days of the granting of
this order, and to determine such applications within 21 working days thereafter.
(v) The first and second respondents are ordered to pay the costs of the application,
jointly and severally.’



__________________
T MAKGOKA
JUDGE OF APPEAL

36

APPEARANCES:
For appellants: D Simonsz
Instructed by: UCT Refugee Rights Clinic, Cape Town
University of Free State Law Clinic, Bloemfontein

For respondents: De Villiers-Jansen SC (with him T Mayosi)
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein.

For amicus curiae: J Bhima
Instructed by: Lawyers for Human Rights, Johannesburg
EG Cooper Madjiet Inc., Bloemfontein.