Somali Association of South Africa and Others v Refugee Appeal Board and Others (585/2020) [2021] ZASCA 124; [2021] 4 All SA 731 (SCA); 2022 (3) SA 166 (SCA) (23 September 2021)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 585/2020

In the matter between:

SOMALI ASSOCIATION OF SOUTH AFRICA

FIRST APPELLANT

HASSAN ABDINASIR OSMAN SECOND

APPELLANT

ALI JAMAC KHAYRE

THIRD APPELLANT

ABDULKADIR MOHAMED OMAR

FOURTH APPELLANT

ABDIRAHMAN ALI MAHAMED

FIFTH APPELLANT

MOHOMED AHMED

SIXTH APPELLANT

MOHAMED MAHMUD OSMAN

SEVENTH APPELLANT

MARYAMA MUHUMED KAHIN

EIGHTH APPELLANT

ABDULLAHI BASHIR HASSAN

NINTH APPELLANT

and

THE REFUGEE APPEAL BOARD

FIRST RESPONDENT

THE MINISTER FOR HOME AFFAIRS

SECOND RESPONDENT

THE DIRECTOR-GENERAL OF THE

DEPARTMENT OF HOME AFFAIRS

THIRD RESPONDENT

THE STANDING COMMITTEE FOR

REFUGEE AFFAIRS

FOURTH RESPONDENT

THE TSHWANE INTERIM REFUGEE

RECEPTION OFFICE

FIFTH RESPONDENT

THE PRETORIA REFUGEE RECEPTION OFFICE

SIXTH RESPONDENT

REFUGEE AFFAIRS

SEVENTH RESPONDENT

Neutral citation: Somali Association of South Africa and Others v The Refugee Appeal Board and Others (Case no 585/2020) [2021] ZASCA 124 (23 September 2021)

Coram: NAVSA ADP, VAN DER MERWE, MOLEMELA, MBATHA AND HUGHES JJA

Heard: 19 August 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. It has been published on the Supreme Court of Appeal website and released to SAFLII. The date and time for hand-down is deemed to be handed down on 23 September 2021.

Summary: Applications for refugee status – duty on decision-maker to assist asylum seeker to obtain as full a picture as possible on which to predicate a decision – information and evidence to be gathered or acquired in terms of the provisions of the Refugees Act 130 of 1998, the regulations and in accordance with the UNHCR Handbook – regard to be had to the provisions of both s 3(a) and 3(b) of the Act – persecution too narrowly viewed – onus to show that statutory requirements met on applicant but has to

be viewed with regard to a range of factors – applicant must be afforded an opportunity to confront and deal with adverse factors that might weigh against him or her – Refugee Appeal Board (RAB) and high court failed to consider that appeal was one in the wide sense – RAB failed to observe fundamental administrative law principles – decisions set aside – no basis for substitution order – structural interdict not warranted.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Mlambo JP sitting as court of first instance):

1 The appeal is upheld with costs, including the costs of two counsel.

2 The order of the high court is set aside and substituted as follows:

‘1.1 The applicants’ delay in bringing the review of the decisions by the Refugee Appeal Board outside the 180 day time limit prescribed in the Promotion of Administrative Justice Act 3 of 2000 is condoned.

1.2 The following decisions of the Refugee Appeal Board (“RAB”) are reviewed and

set aside:

(a) Appeal number 2923/14 of 14 October 2014, dismissing the appeal of Mr Hassan Abdinasir Osman.

(b) Appeal number 3459/14 of 1 December 2014, dismissing the appeal of Mr Ali Jamac Khayre.

(c) Appeal number 1212/14 of 21 November 2014, dismissing the appeal of Mr Abdulkadir Mohamed Omar.

(d) Appeal number 3848/14 of 2 March 2015, dismissing the appeal of Mr Abdirahman Ali Mahamed.

(e) Appeal number 2683/14 of 28 November 2014, dismissing the appeal of Mr Mohomed Ahmed.

(f) Appeal number 3455/14 of 14 October 2014, dismissing the appeal of Mr Mohamed Mahmud Osman.

(g) Appeal number 538/13 of 26 March 2014, dismissing the appeal of Mrs Maryama Muhumed Kahin.

(h) Appeal number 1790/13 of 22 May 2015, dismissing the appeal of Mr Abdullahi Bashir Hassan.

1.3 The 2nd to 9th applicants’ appeals are remitted to the Refugee Appeals Authority for hearings afresh, with hearings to commence not later than Monday 4 October 2021 and decisions to be rendered no later than Friday 5 November 2021.

1.4 The respondents are ordered to pay the appellants’ costs, including the costs of two counsel, jointly and severally, the one paying the other to be absolved.’

3 The hearings and the adjudication of the appeals referred to in the substituted order are to be conducted in terms of the principles set out in paras 71 to 92 of this judgment under the various subheadings.

Navsa ADP (Van Der Merwe, Molemela, Mbatha and Hughes JJA concurring)

Introduction

[1] This case is about how applications for refugee status must be dealt with and adjudicated. Before dealing with how the appeal arose, it is necessary, at the outset, to accept that 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. In the case of persons who have come to our country to seek asylum and those who might ultimately qualify for refugee status, the following two quotes are apposite:

‘Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons, who share a legitimate desire for knowing and having, but above all for being more.’[1]

The renowned author, Khaled Hosseini, is reported to have said the following:

‘Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us – except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.’[2]

International television news channels and other media regularly feature images of refugee crises unfolding in many parts of the world with the attendant human cost. A relatively recent stark image of the body of a three year-old toddler on a Turkish beach, after fleeing from war in Syria, springs to mind.[3] The skepticism, to which State authorities and decision-makers are sometimes prone in relation to applications for refugee status,

should be tempered by what is set out above and by the obligations of countries embodied in international instruments, which will be discussed in due course, and, of course by, the prescripts of domestic legislation. I deal with the background culminating in the present appeal in the paragraphs that follow.

[2] This is an appeal, with the leave of this Court, against a decision of the Gauteng Division of the High Court, Pretoria (the high court), per Mlambo JP, dismissing an application by the first to ninth appellants, for an order reviewing and setting aside decisions of the Refugee Appeal Board[4] (the RAB). That body had dismissed appeals by the second to ninth appellants against decisions of Refugee Status Determination

Officers,[5] refusing them refugee status. Their applications for refugee status are at the centre of this appeal. More particularly, the legality and fairness of the process adopted by the RAB in arriving at the impugned decisions are brought into question, including whether it complied with its duty to assist an asylum seeker to procure evidence and information on which the decisions were to be predicated. The alleged misapplication by the RAB of the statutory requirements for refugee status is a further important issue in this appeal.

[3] The first appellant is the Somali Association of South Africa, a registered non-profit organisation, which has amongst its objects, the organisation of the Somali refugee community and generally defending the rights and advancing the welfare of the Somali community in South Africa. A person seeking recognition as a refugee in South Africa is, in terms of the Refugees Act 130 of 1998 (the Act), an ‘asylum seeker’.[6] The second to ninth appellants are the eight asylum seekers who were refused refugee status. I shall, for convenience, where the context requires, refer to the second to ninth appellants collectively, as the eight asylum seekers or, where they are referred to separately, I shall refer to them as an asylum seeker in the sequence in which they appear as appellants. For example, the second appellant would be the first asylum seeker, the third appellant, would be the second asylum seeker and so on. It is in that order that the high court referred to them.

[4] The respondents are as they were in the high court. The RAB is the first respondent. The Chairperson of the RAB was cited in his official capacity as the second respondent. The third respondent is the Minister of Home Affairs (the Minister), the responsible Minister in terms of the Act. The Director-General of the Department of Home Affairs (the DG) was cited as the fourth respondent. The Tshwane Interim Refugee Reception Office was cited as the fifth respondent in the high court. The Pretoria Refugee Reception Office and the Standing Committee for Refugee Affairs were cited as the sixth and

seventh respondents, respectively. Only the RAB, its chairperson, the Minister and the DG filed opposing affidavits in the high court. They made common cause and were represented by the same counsel, both in the high court and before us.

[5] Over and above seeking a review and the setting aside of each of the eight decisions by the RAB, referred to in paragraph 1 above, the appellants had, in the high court, sought, in addition, the following extensive substantive relief, which included substitution orders and a structural interdict:

‘2 Each of the decisions of the RAB in paragraph 1 above are substituted with the following decision:

2.1 The appellant’s appeal against the decision of the Refugee Status Determination Officer is upheld

2.2 In terms of section 24(3)(a) of the Refugees Act 130 of 1998, the appellant is granted asylum.

3 The 5th and 6th respondents are directed to issue the second to ninth applicants with formal written recognition of refugee status as provided in section 27(a) of the Refugees Act read with the provisions of regulation 15 of the Refugee Regulations (Forms and Procedure), 2000 published in GN R366 in GG 21075, of 6 April 2000, as amended by GN R938 in GG 21573 of 15 September 2000, within 10 days of service of this order.

. . .

5 It is declared that the approach of the RAB to the decisions referred to in paragraph 1 above was unlawful and invalid in, inter alia, the following respects (“the repeated errors”):

5.1 The RAB treats political persecution as a necessary condition for refugee status in terms of section 3 of the Refugees Act 130 of 1998 (“Refugees Act”), and accordingly:

5.1.1 fails to consider and apply section 3(b) of the Refugees Act in appropriate cases; and

5.2.2 fails to recognise that other forms of persecution qualify applicants for refugee status in terms of section 3(a) of the Refugees Act.

5.3 The RAB refuses to consider the merits of an application for asylum unless it is convinced as a matter of certainty that the applicant for asylum is credible in all respects.

5.4 The RAB assesses the credibility of asylum seekers by having regard primarily to alleged inconsistencies in their evidence, and makes adverse credibility findings wherever it finds previous inconsistent statements in that evidence.

5.5 The RAB fails to put prejudicial country of origin information to applicants for asylum and fails to afford them a reasonable opportunity of responding to such information.

5.6 The RAB requires applicants for asylum to supply their own interpreters at their own expense, irrespective of whether it is practicable and necessary for the Department of Home Affairs to provide interpretation services.

6 The second and third respondents are directed:

6.1 Within 6 months of the date of this order, to investigate and identify the causes of the repeated errors in the RAB’s decision-making.

6.2 Within 12 months of the date of this order, to develop a plan or plans – in consultation with the first applicant, the applicants’ attorneys and other interested parties – to address the causes of these repeated errors in the RAB’s decision-making.

6.3 Within one week of the expiry of the deadline in paragraph 6.2 above, to file an affidavit with this Court and the applicant’s attorneys setting out:

6.3.1 the findings of the investigation conducted in accordance with paragraph 6.1 above; and

6.3.2 the plan or plans developed in accordance with paragraph 6.2 above.

7 The second and third respondents are directed to file reports, on affidavit, with this Court and the applicant’s attorneys, at least every 2 months from the date of this order, setting out the steps taken to comply with paragraph 6 of this order.’

[6] It is necessary to record that the Act was amended quite substantially, approximately one year after the high court’s judgment was delivered, with the amendments coming into effect during January 2020. New regulations were concomitantly promulgated. The material changes are those provisions that:

(a) replaced the RAB with the Refugee Appeals Authority (the RAA), the chairperson and some members of which are now required to have a legal qualification;

(b) deal with the ability of one member of the RAA being able to hear and determine an appeal;

(c) allow for the appointment of more persons to the RAA to deal with increased volumes of work,

(d) extend the bases for exclusion from refugee status;

(e) set out that a Refugee Status Determination Officer (RSDO) in adjudicating applications for refugee status must do so having regard to the provisions of the Promotion of Administrative Justice Act 3 of 2000 (previously there was reference to the just administrative

provisions of the Constitution) and must, in particular, ensure that an applicant fully understands the procedures, his or her rights and responsibilities, and the evidence presented.

[7] The attendant regulations also provide greater clarity on how the RSDO must conduct hearings in relation to applications for refugee status and how further information, evidence and clarification might be sought and obtained. They also provide that an interview must be recorded. The definition section, under ‘hearing before Refugee

Status Determination Officer’, envisages interviews being recorded, ‘either digitally or otherwise’. This ought to lead to greater transparency and accountability. Digital recordings, to a large extent, ought to exclude disputes concerning the nature and tenor of the interviews. But more about the amendments later. The eight asylum seekers were at the relevant times dealt with in terms of the Act and the regulations as they then stood.

[8] The Act, in its pre-amended and post amendment forms, deals with what was referred to earlier, namely the State’s interests to ensure that refugee status is granted to only those who qualify. It provides for the disqualification of unfounded applications and the cessation of refugee status.[7] The Act prescribes how applications for refugee status must be dealt with and provides for appeals. 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,[8] are maintained and promoted. Section 2 of the Act, in recognition of the aforesaid values, entrenches the international principle of non-refoulement,[9] an aspect noted by the high court and discussed later in this judgment.

[9] It is now necessary to set out what the appellants contended are the facts against which their appeals before the RAB should have been adjudicated. It is important, for reasons that will become apparent later, to stress that much of what appears immediately hereafter, concerning the circumstances under which the eight asylum seekers left their country of origin, is drawn from the founding affidavit in support of the application in the high court, rather than from the information supplied by the eight asylum seekers in their applications for asylum or from the information they supplied to the RAB.

The founding affidavits

Conditions in Somalia and the flight by the eight asylum seekers from their country of origin

[10] The eight asylum seekers described how they were compelled to flee the civil war and resultant humanitarian crisis that endured in Somalia between 2007 and 2012. They explained that Somalia has been in a state of civil war since 1990 and that it has not had a stable government since the fall of the Barre regime in 1991. They stated that estimates of the deaths caused by the conflict vary between 500 000 and 1 million and pointed to a report by the United Nations High Commission for Refugees (UNHCR), indicating that there are over 975 000 registered Somali refugees living in countries comprising the horn of Africa. The appellants ventured that the global figure must, therefore, be much higher.

[11] According to the appellants, the period between 2006 and 2012 was the most significant, as that was the time when they had fled the conflict in Somalia. They stressed that this was when the conflict was at its most intense with Al-Shabaab, a militant group that threatened the government, at the height of its power and influence, and that troops from African countries had been deployed to Somalia to counter that threat. There was extensive fighting involving warlords and clan-based militias. The conflict in Somalia had been concentrated in Central and Southern Somalia. The appellants detailed the various phases of the conflict and the role therein of Al-Shabaab, which according to them is the foremost militant group, with links to Al-Qaeda. In support of their own assertions the eight asylum seekers relied, additionally, on reports by the UNHCR.

[12] The Transitional Federal Government (the TFG) supported by Ethiopian troops retook the capital, Mogadishu, in the south of the country, in December 2006. In 2007, Al- Shabaab and its allies launched waves of attacks on the TFG and Ethiopian forces in Mogadishu. By March 2007, the African Union forces landed in Mogadishu in support of the TFG. Between 2007 and 2009 Al-Shabaab had gained control of most of Mogadishu and seized towns and villages in South and Central Somalia. By January 2009, Ethiopian forces withdrew from Somalia, and Al-Shabaab continued to extend its geographical control.

[13] Between 2011 and 2012, the conflict between African Union forces, in support of the TFG, and Al-Shabaab continued. By August 2011, Al-Shabaab had withdrawn from Mogadishu and had resorted to guerilla tactics in that city. In October 2011, Kenyan forces, at the invitation of the TFG, entered the fray. January 2012 saw Ethiopian forces capture towns in Central Somalia. In September 2012, the Somalia Federal Government (the SFG) was inaugurated.

[14] Between 2013 and 2015, the SFG and African Union forces waged campaigns against Al-Shabaab and other insurgent groups, recapturing towns, and villages. Effectively, so the appellants alleged, Al-Shabaab still retains control of much of South and Central Somalia.

[15] The United Nations sanctioned a further African Union troop surge in Somalia between July 2015 and May 2016. The appellants contended, with reference to a Danish Immigration Services report, dated May 2015, that Mogadishu is presently only nominally under government control and is struggling to provide basic security to its population. The appellants pointed out that notwithstanding that assessment, Kenya and some European countries started deporting refugees back to Somalia from 2013 already. They noted that the UNHCR and prominent human rights groups have condemned the forced return of refugees to Somalia. So, for example, Amnesty International, in a statement during October 2014, condemned such actions. The relevant part of the report quoted by the appellants reads as follows:

‘Countries should under no circumstances attempt to return individuals to south and central Somalia as the fragile security conditions have not led to a fundamental, durable and stable change.’

The UNHCR guidelines published in 2014 were in similar vein.

[16] The appellants asserted, emphatically, that South and Central Somalia remained in a state of civil war and that the need to protect Somalian refugees remains. Moving from the generalised statements concerning conditions in Somalia, the appellants proceeded to deal with the individual circumstances of the eight asylum seekers. Seven of them hail from Mogadishu. The first alleged that he had lost his mother and sister due to rocket fire during 2007. Two years later, whilst employed by an NGO, he received an anonymous telephone call threatening his life. This, it was alleged, was in line with the modus operandi of Al-Shabaab. He went on to describe how this caused him to terminate his services with the NGO. In 2009, his brother-in-law, who worked for a German NGO and who supported him financially, was murdered. This forced him to return to work with the NGO, his erstwhile employer. He claimed that late in 2009 he and a friend were kidnapped and blindfolded and taken to an Al-Shabaab prison, south of Mogadishu, where they received daily beatings and were warned not to work for the government. After two weeks, he escaped and fled to a government-controlled district of Mogadishu. He was later arrested on suspicion of being a member of Al-Shabaab and was held in detention for three days where he was beaten by government officials. His sister managed to negotiate his release during 2010. Thereafter he started saving money to fund his escape from Somalia. He left Somalia in 2011 and arrived in South Africa on 13 March 2011.

[17] The second asylum seeker alleged that he had also been victimised by Al- Shabaab. He owned a small stall in Bakaara market, which is Mogadishu’s largest marketplace. During 2006, a rocket landed in the market leaving him with shrapnel wounds. A year later, a bomb landed approximately 20 metres away from his stall, resulting in casualties. He was traumatised by this. In 2009, Al-Shabaab raided his home, killing his friend and abducting a neighbor. He too received an anonymous threatening telephone call. This was because it was claimed that he worked for the government. He went into hiding and used money from the sale of his business to escape from Somalia. He left Somalia in October 2009 and arrived in

South Africa on 7 February 2010.

[18] The third asylum seeker stated that he had left Somalia to escape the combined threats of Al-Shabaab and government forces. In May 2009, during the time that Al-Shabaab controlled many districts in Mogadishu, he was arrested and blindfolded by government soldiers. Thereafter, he was interrogated about whether he was a member of Al-Shabaab. During that time, he was subjected to beatings. He was subsequently released when family members paid a bribe. In August 2009, after he had returned to his employment at the Bakaara market, he was approached by Al-Shabaab, seeking to recruit him. He refused their offer. Sometime thereafter, he was arrested by members of Al-Shabaab, who took him to their training camp. This time he was coerced into joining them. He used a visit to his family to plot an escape to Kenya, from where he travelled to South Africa. He left Somalia in October 2009 and arrived here during 21 January 2010.

[19] The fourth asylum seeker fled Somalia, allegedly, to escape forced recruitment by Al-Shabaab. He too lived in Mogadishu during a period of great political instability and experienced the conflict between warring factions. He claimed that in May 2010 Al-Shabaab called at his home and demanded he join them. He told them he would seek his parents’ approval. During June 2010, they returned but he hid from them. He subsequently fled Somalia arrived in South Africa on 28 June 2010.

[20] The fifth asylum seeker, like the fourth, claimed that he had been subjected to Al-Shabaab’s forced recruitment drive in Mogadishu. He left Somalia during August 2007 and arrived in this country during December 2007.

[21] The sixth asylum seeker stated that his brother was killed by Al-Shabaab during March 2007. The sixth asylum seeker claimed that he had witnessed many battles and had lived in Somalia in constant fear of his life. In October 2008, he was shot in the upper thigh, after being caught in crossfire. He was admitted to hospital where he remained until he was discharged in June 2009. He left Somalia in October 2009 and arrived here in December 2009.

[22] The seventh asylum seeker and the only woman in the group had her home hit by a grenade during 2006, killing two of her eight children and leaving her with severe injuries. After she was discharged from hospital, she decided to leave Mogadishu and moved south, near the town of Dhobley, where there were also ongoing battles. She was subsequently injured in an explosion in Dhobley. In 2008, she moved once again to a camp of internally displaced persons. The combination of civil war, the constant danger of injury and death and severe deprivation, so she claimed, compelled her and her two daughters to leave Somalia. They arrived in South Africa in May 2010.

[23] The eighth asylum seeker, unlike the others, was born in a rural area outside the port city of Kismayo in Southern Somalia. He belonged to a nomadic family that kept livestock. In 2006, his family was displaced by fighting between insurgents and government forces, causing them to relocate to a town near the Kenyan border, outside the town of Dhobley. In 2008, his mother was killed in crossfire. In 2011, his uncle was caught up in a battle and was killed. Soon thereafter his cousin was killed in Dhobley by Al-Shabaab. He fled Somalia in 2012 and arrived in South Africa in June that year.

The refugee status determination process

[24] In their affidavits the eight asylum seekers described the refugee status determination process that each had been subjected to and set out the attendant circumstances. Each had completed the standard application form for refugee status at a Refugee Reception Office. These were required to be completed in English. None of them, at the time, was fluent in that language. Even though almost all of them were provided with an interpreter, the quality of the interpretation, so they alleged, was wanting. One of them was not provided with any interpreter at all.

[25] They claimed that their applications were then considered by Refugee Status Determination Officers (RSDOs). It is not clear whether all of them were afforded an interview, and those who could recall an interview stated that the interviews were cursory and suffered from a lack of proper communication. Their applications were subsequently all rejected by the RSDOs. Consequently, the eight asylum seekers noted appeals to the RAB. They submitted that an appeal before the RAB is a wide appeal, in that it is not confined to the record of the decision of the RSDO. Put differently, it amounts to a hearing afresh. Thus, so they contended, it was obligatory for the RAB to be proactive. It was submitted that the RAB had a duty to adequately question asylum seekers and to conduct further research so as to have as full a picture as possible to reach a decision on each of their applications.

[26] The appellants noted that their appeals conducted before the RAB were brief, averaging between 20 to 30 minutes and that questioning was limited. They were all required to provide their own interpreters. Many brought acquaintances to assist them. Two of them recruited other asylum seekers to assist. Communication was thus poor. In the result, all their appeals were dismissed. The RAB’s ‘judgments’ were, according to the appellants ‘startlingly similar, with large portions of the reasoning repeated verbatim, down to the same spelling and grammatical errors’. The RAB was accused of using

a pro forma ‘judgment’ with limited consideration of the individual circumstances of each of the eight asylum seekers.[10]

The grounds of review and the extensive relief sought

[27] The dismissal of the appeals by the RAB is what led to the application for review in the high court. The grounds of review were stated as follows:

‘141 As indicated above, the RAB’s decisions share at least four common errors of law, fact and procedure:

141.1 First, the RAB applied the wrong test, in that the members misinterpreted and misapplied section 3 of the Refugees Act;

[1] Pope Francis ‘Migrants and Refugees: Towards a Better World’ (2014), complete speech available from www.vatican.va.

[2] Khaled Hosseini, quote available from: www.unhcr.org.

[3] Alan Kurdi, the three year old-toddler who drowned in the Mediterranean in 2015, was part of a flow of refugees from the Middle East to Europe. The disturbing image which struck the conscience of the world was carried in major mainstream media outlets, including The New York Times, The Guardian UK and BBC news. See http://www.nytimes.com, https://www. theguardian.com, https://bbbc.co.uk.

[4] Established by s 12 of the Refugees Act 130 of 1998.

[5] They are appointed and operate in terms of s 8 and 24 of the Refugees Act 130 of 1998.

[6] Section 1 of the Act defines an ‘asylum seeker’ as ‘a person who is seeking recognition as a refugee in the Republic’. This definition is in line with an international understanding of the concept.

[7] See ss 3, 4 and of the Act and s 5 in its pre, and post amendment state.

[8] See Somali Association v Limpopo Department of Economic Development, Environment and Tourism and Others 2015 (1) SA 151 (SCA) at para 44 and Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) at paras 2-7, and the provisions of s 6 of the Refugees Act 130 of 1998 in relation to the applicable international instruments- now s 8A. See also Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) at paras 23-34 and in relation to how asylum seekers should be treated at paras 27 to 29.

[9] Section 2 reads as follows:

‘Notwithstanding any provision of this Act or of 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 domination or other events seriously disturbing or disrupting public order in either part or whole of the country.’

See also Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) BCLR 1 (CC); 2019 (1) SA 21 (CC) para 26.

[10] Appeals are adjudicated and ‘decisions’ are made by the RAB in terms of s 26 of the Act. The RAB’s duties and powers are set out in s 14 of the Act.

[11] Regulation 14 sets out the time limit within which an appeal in terms of s 26 must be lodged and states that it must be lodged in person at a designated Refugee Reception Office.

[12] Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC).

[13] Section 24(1)(b) of the Act.

[14] Section 24(1)(c).

[15] Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) SA 21 (CC).

[16] Under the 1951 Convention and the 1967 Protocol relating to the status of refugees-reissued, Geneva 2011.

[17] Refugee Appeal Board v Mukungubila [2018] ZASCA 191; 2019 (3) SA 141 (SCA).

[18] See Gavric fn 18 above paras 79-80 and AOL v Minister of Home Affairs 2006 (2) SA 8 (D) para 13.

[19] FNM v Refugee Appeal Board 2019 (1) SA 468 (GP).

[20] Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T)

[21] Immigration and Naturalization Service v Cardozo Tonseca [1987] USSC 32; 480 US 421 (1987) at 440.

[22] Fang v Refugee Appeal Board and Others 2007 (2) SA 447 (T).

[23] Van Garderen NO v Refugee Appeal Board and Others (TPD case no 30720/2006 19 June 2007).

[24] See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004(7) BCLR 687 (CC); Makungubila fn 25 above at para 31, Logbro Properties CC v Bedderson NO and Others [2002] ZASCA 135, [2003] 1 All SA 424 (SCA) para 21, Gauteng Gambling Board v Silverstar Development Ltd and Others (80/2004) [2005] ZASCA 19 para 29.

[25] See Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another [2015] ZACC 22; 2015 (5) SA 245 (CC); (2015 (10) BCLR 1199 para 47.

[26] See s 8B(1) of the Act.

[27] See s 31 of the Act.