Court decision a victory for asylum seekers
Source: Groundup, 03/10/2017
The ruling by the Supreme Court of Appeal that the Cape Town Refugee
Reception Office must be opened is a victory for asylum seekers. The
court found that the director-general of the Department of Home
Affairs had used his power unlawfully.
On 29 September, the Supreme Court of Appeal (SCA) found the decision
of the director-general of the Department of Home Affairs to close the
Cape Town Refugee Reception Office to be unlawful and set the decision
aside; overturning a High Court decision. The SCA ordered the
Department of Home Affairs to re-open the office within six months.
This is the second time that the closure of the Cape Town Refugee
Reception Office has come before the Supreme Court of Appeal. The
director-general (DG) first decided to close the office in 2012;
however, the decision was set aside by the High Court and an order
given that the office must be re-opened.
On appeal, the SCA confirmed the setting aside of the decision. The
SCA found that the DG had failed to comply with procedural
requirements in making the decision; specifically, he had failed to
consult organisations working with asylum seekers. But the SCA
nevertheless overturned the order requiring the re-opening of the
office and instead referred the matter back to the DG for a decision
on its future.
The DG consulted organisations working with asylum seekers before once
again taking the decision to close the office. This decision has been
widely opposed because of its impact on asylum seekers living in Cape
Town who are forced to travel to offices in Masina, Pretoria or Durban.
In its findings last week, the SCA noted that asylum seekers suffer
significant prejudice and are not able to exercise their rights under
the Refugees Act 130 of 1998 if the refugee reception offices are
located far away from the areas in which they live and work. Asylum
seekers must report to the refugee reception office several times
throughout the lengthy application procedure.
Requiring them to travel to distant offices several times places a
burden on a vulnerable group, possibly preventing them from obtaining
or renewing the permits which allow them to be in South Africa and
exposing them to arrest and detention.
Issues were also raised by the SCA about the ability of the offices in
Masina, Pretoria and Durban to handle the increased workload which
would result from the closure of the Cape Town office and the
prejudice faced by applicants as a result of backlogs.
The SCA noted that urban areas such as Cape Town attract large numbers
of asylum seekers because of better access to basic services and work
opportunities. The court found that the DG should have taken into
account the high number of asylum seekers in Cape Town and the high
level of demand for a refugee reception office in Cape Town. His
failure to do so meant that his decision was irrational, the court said.
The SCA found that the DG does have the power to close a refugee
reception office in terms of the Refugees Act, but that he must
exercise this power lawfully. The act only empowers the DG to close a
refugee reception office if the DG determines that the office is no
longer necessary for the purposes of the act. His failure to consider
whether the office was necessary for the purposes of the act meant
that he had failed to comply with the act.
The SCA also found that the DG had used his power for an ulterior
purpose â€" a purpose other than the one for which the power was given.
The DG stated that he closed the office to enable the government to
exercise more control over the asylum application process. He wanted
to restrict access to refugee reception offices in urban areas to
prevent abuse of the process by people who are not genuinely in need
of asylum. The SCA found that this was not a lawful use of the DGâ€™s
The SCA rejected the DGâ€™s submission that there are no suitable
premises for a refugee reception office in Cape Town. The court said
that an office could be located a short distance outside Cape Town,
provided it could easily be reached by public transport, or could be
located in satellite offices.
Therefore, the SCA found that the decision was unlawful and set it
aside. This time, the SCA ordered the Department of Home Affairs to
re-open and maintain a fully functioning Cape Town Refugee Reception
The SCA found that an order requiring the reopening of the office was
necessary because asylum seekers had already been prejudiced for more
than five years by the absence of an office in Cape Town; the decision
of the DG was flawed in substance as opposed to procedurally flawed as
in the first case and the court considered it likely that an order
referring the matter back to the DG for a reconsideration of the
decision would be ignored.
The court also required the DG to make frequent reports on the steps
being taken to re-open the office to ensure that the Department
complies with its order.
The decision is a victory for asylum seekers and a harsh criticism of
attempts by the Department of Home Affairs to exclude asylum seekers
from urban areas and to limit their ability to exercise their rights
under the law. DM