Ziaul and Others v Minister of Home Affairs and Another (136725/2024) [2024] ZAGPPHC 1316 (17 December 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 136725/2024

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES/NO

DATE: 17/12/24

SIGNATURE

In the matter between:

HOQ MD ZIAUL

First Applicant

ABO TEMESGEN ALEMU

Second Applicant

UMER HAYAI AHMED

Third Applicant

AHAMEFULE IHEANACHO COLLICE

Fourth Applicant

SIWORE TSEGAYE LEMMA

Fifth Applicant

TEREFA DANGHEW ABRHMI

Sixth Applicant

MOHAMMAD YUSHUF

Seventh Applicant

HOSSAIN MOHAMMAD ISMAEL

Eighth Applicant

and

MINISTER OF HOME AFFAIRS

First Respondent

DIRECTOR-GENERAL OF THE

Second Respondent

DEPARTMENT OF HOME AFFAIRS

JUDGMENT

Joyini AJ

INTRODUCTION

[1] The applicant was before this Court on urgent basis on 10 December 2024, seeking an order in the following terms: that the application be treated as urgent and the court dispense with the normal forms and services in accordance with the provisions of Rule 6(12); that the second respondent be ordered to respond in writing within ten (10) days from the date of the Court Order, to the applicants’ online applications for the extension of their temporary asylum seeker visas/permits under the following numbers: P[...], P[...], P[...], P[...], P[...], B[...], P[...], and P[...]; that the second respondent be ordered to extend the applicants’ asylum seeker temporary visas within fourteen (14) days from the date of the Court Order; and that the first and second respondents be ordered to pay the costs of this urgent application on a High Court party and party scale B, including but not limited to Counsel’s cost for consultation, preparation and court appearance jointly and severally the one paying the other to be absolved.

[2] The application is unopposed. The respondents were properly served but opted not to participate in the proceedings.

BACKGROUND FACTS

[3] The applicants, whose country of origin is Bangladesh, have applied online for the extension of their temporary asylum seeker visas/permits under the numbers referred to in paragraph 1 above. The applicants have since been waiting for the response from the respondents without any success despite several follow up letters. Their permits have since expired putting them at a risk of being arrested, detained and deported.

[4] As an Asylum Seeker in South Africa, one will be issued a Section 22[1] permit which is normally valid for a period up to six months and legalizes one’s stay in the Republic of South Africa temporarily pending a final decision on one’s application. The permit can be extended by the Refugee Reception Office while the process of status determination is in progress.

[5] With the online extension, a holder of an asylum seeker visa (section 22) or a refugee status (section 24), is able to request an extension of visa validity through email, without having to physically go to a refugee reception office. In terms of process, when making a request for online extension, an applicant sends an email message to a dedicated email address. An applicant will then receive a response outlining the process to follow, a template and list of required documents. Once all documents are sent and received at Home Affairs, the Department will consider the request and communicate its decision by email. In cases where a request cannot be processed online and requires that the requester should appear in person at a Refugee Reception Office, a letter stating that will be sent. This letter will provide such a person with the office name, date and time of their appointment. Applicants did not get the response.

DISCUSSION AND ANALYSIS

Urgency

[6] For all the reasons alluded to by the applicants in their papers, the application is urgent. The urgency thereof is triggered by the fact that the applicants have since been waiting for the response from the respondents without any success despite several follow up letters.

Another trigger for urgency is the fact that their permits have since expired putting them at a risk of being arrested, detained and deported.

Are the applicants’ asylum applications abandoned?

[7] In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others[2], the unanimous decision of the Constitutional Court struck down provisions in the Refugees Act which dictate that asylum seekers who have not renewed their visas within one month of the date of its expiry are considered to have permanently abandoned their asylum applications. Acting Judge Ashton Schippers, writing for the Constitutional Court, said the provisions and a linked regulation, violated a number of constitutional rights in that the “deemed abandonment” provisions meant asylum seekers were cut off from essential services. These included access to banking, education and healthcare. They also exposed asylum seekers and their children to the constant risk of arrest, detention and deportation. “All this, simply because a visa has not been renewed,” said Acting Judge Schippers. I am bringing in this decision because the applicant’s permits have since expired whilst they are waiting for the response from the respondents. This fact makes this decision relevant.

Is an extension automatic?

[8] An asylum seeker is someone who claims, in an application to the Department of Home Affairs, to have fled from a place where they have been persecuted or where they are in danger. A refugee is someone who has been granted asylum either by government or a court. Before asylum seekers get official refugee status they are granted a temporary permit which allows them to remain in the country until their application has been dealt with. The question that arises is: up to what point is such an extension allowed? And is the extension automatic or does a Refugee Reception Officer have the discretion to refuse an extension?

[9] In Saidi and Others v Minister of Home Affairs and Others[3] the case before the Constitutional Court was brought by several asylum seekers from Cape Town whose applications for official refugee status had been rejected. After exhausting internal appeals, they applied for an extension of their temporary permits pending judicial review. The extension was not granted. The High Court found that a Refugee Reception Officer does have the discretion to extend a permit pending judicial review. However, the Court found that the extension is not automatic but at the discretion of the officer. The Supreme Court of Appeal largely upheld the decision of the High Court. Home Affairs appealed to the Constitutional Court to rule that a Refugee Reception Officer can only extend a permit until internal remedies in terms of the Act have been exhausted. The asylum seekers cross-appealed and wanted the Constitutional Court to go further than the Appeal Court decision and find that an extension is not only permitted but also automatic. The Constitutional Court explained that two legal issues had to be addressed: Whether a Refugee Reception Officer has the power to extend a permit pending judicial review; and if so, whether an extension is automatic or whether the Refugee Reception Officer must exercise discretion.

[10] The Constitutional Court also emphasised that courts must prefer an interpretation of legislation that protects fundamental rights in terms of the Bill of Rights. If Home Affairs’s interpretation were adopted an asylum seeker’s rights to just administrative action, access to courts, life, human dignity, and freedom and security could be infringed. For all these reasons, the court rejected Home Affairs’s interpretation and found that a Refugee Reception Officer does have the power to extend a permit, pending judicial review. Here, the court found that the principle of “non-refoulement” — not sending a person back to a place where he or she would be in danger — would suggest that an extension must be automatic. The court also said that if a Refugee Reception Officer did have discretion to refuse to extend a permit this would create a discrepancy in the Act. This is because the Act enables the Minister in certain prescribed circumstances to withdraw a permit but does not prescribe the circumstances under which a decision not to extend a permit may be made. Yet a refusal to extend a permit and the withdrawal of a permit have the same effect. The court found that it would not make sense that the Act gives more discretion to the Refugee Reception Officer

than to the Minister. So the court found that the only interpretation that would make sense is that an extension is automatic and the Refugee Reception Officer has no discretion at all.

Failure to make a decision

[11] In Mazingane and Others v Minister of Correctional Services and Others[4], it was held:

“[80] Under PAJA, failure to make a decision can also be an administrative action. The decision is then defined as a decision that is proposed or required to be made under an empowering provision. This element of decision implies a finality in administrative action and will apply to the entire process. The Minister’s failure to make a decision is also an administrative action.

[81] In terms of ss 6(2)(g) and s 6(3) of PAJA, a court may review an “administrative action” – including a failure to make a decision – if there is a duty on the administrator to make a decision and they have not done so.

[83] In the instances where there is no time prescribed for making a decision, the timeframe is “a reasonable time” (i.e. if there has been an unreasonable delay as per s 6(3)). This will, of course, depend on the facts of each case.”

Conclusion

[12] It is common cause that the respondents have failed to make a decision by failing to respond to applicants’s applications for the extension of their temporary asylum seeker visas/permits.

[13] Section 22(1) of the Refugees Act reads: “The Refugee Reception Officer must, pending the outcome of an application in terms of section 21(1), issue to the applicant an asylum seeker permit in the prescribed form allowing the applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on the permit.”[5]Temporary permits issued in terms of this section are critical for asylum seekers. They do not only afford asylum seekers the right to sojourn in the Republic lawfully and protect them from deportation but also entitle them to seek employment and access educational and health care facilities lawfully.

[14] With regard to the caselaw referred to above, I am of the view that the applicants are entitled to a response to their applications for the extension of their temporary asylum seeker visas/permits. It is my humble view that this conclusion finds support in the authorities referred to above. It is also in line with the letter and spirit of the Refugees Act. I find that the applicant’s applications for the extension of their temporary asylum seeker visas/permits must be considered and extended by the respondents as a matter of urgency.

COSTS

[15] The applicant has sought a costs order against the respondents. It is common cause that the respondents have not participated in the proceedings. There is no submission on the papers as to why a cost order should be granted against the respondents. I am not persuaded that a cost order should be granted against the respondents. As such, no order as to costs is made.

ORDER

[16] In the circumstances, the following order is made:

[16.1] The application is declared urgent;

[16.2] The second respondent is ordered to respond in writing within ten (10) days from the date of this Court Order, to the applicants’ online applications for the extension of their temporary asylum seeker visas/permits under the following numbers: P[...], P[...], P[...], P[...], P[...], B[...], P[...], and P[...];

[16.3 The second respondent is ordered to consider and extend the applicants’ asylum seeker temporary visas within fourteen (14) days from the date of this Court Order; and

[16.4] No order as to costs.

T E JOYINI

ACTING JUDGE OF THE HIGH COURT, PRETORIA

APPEARANCES:

For the applicants: Adv S.B. Mngomezulu Instructed by: Jafta (Lerato) Attorneys For the respondents: No appearance Instructed by: No appearance Date of Hearing: 10 December 2024 Date of Judgment: 17 December 2024

This Judgment has been delivered by uploading it to the Court online digital data base of the Gauteng Division, Pretoria and by e-mail to the Attorneys of record of the parties. The deemed date and time for the delivery is 17 December 2024 at 10h00.

[1] Refugees Act 130 of 1998.

[2] (CCT 51/23) [2023] ZACC 45; 2024 (4) BCLR 592 (CC); 2024 (3) SA 330 (CC) (12 December 2023)

[3] (CCT107/17) [2018] ZACC 9; 2018 (7) BCLR 856 (CC); 2018 (4) SA 333 (CC) (24 April 2018)

[4] (2024/00411 ; 2024/00414 ; 2024/00353 ; 2024/00360 ; 037664/2022) [2024] ZAGPJHC 1092 (28 October 2024)

[5] (Section 21(1), which is referred to in the quotation, reads: “An application for asylum must be made in person in accordance with the prescribed procedures to a Refugee Reception Officer at any Refugee Reception Office.”)