Judicial Review

The decisions made by the Department of Home Affairs, the Standing Committee for Refugee Affairs and the Refugee Appeal Board, or the failure to take a decision by one of these bodies, may be reviewed by the High Court of South Africa on the ground:

  • that administrative action was procedurally unfair: for instance, where the applicant did not receive the assistance of an interpreter and was not informed of his right to bring an interpreter to assist him [Katshingu v SCRA], where the Appeal Board was not properly constituted [Harerimana v RAB], where the applicant was not given notice of his right to make representations before the Standing Committee or to be heard by the Appeal Board [AOL v Minister of Home Affairs] or where the applicant did not get the opportunity to deal with evidence upon which the rejection was based upon;
  • that the rejection was taken in bath faith, arbitrarily or capriciously: for instance where the adverse decision was made after the applicant refused to pay a bribe or provide sexual favours [Khan, F & Scheier, T Refugee Law in South Africa (Juta, 2014) 196];
  • that the decision was affected by an error in law: for instance, where an incorrect standard of proof was applied to the facts presented by the asylum seeker [Tantoush v RAB] or where an incorrect application was made in relation to the perpetrators of harm or to the internal flight alternative [Katabana v SCRA];
  • that the decision maker was biased, or acted under unwarranted dictates or that the decision was taken for an ulterior motive: these are fundamental defects which may not be cured by the Appeal Board on appeal [Tantoush v RAB];
  • that the decision is based on irrelevant considerations or relevant considerations were not considered: the failure to take up-to-date and relevant information on the situation prevailing in the country of origin and on the applicant’s personal situation is ground for review [Katshingu v SCRA];
  • that the decision is unreasonable: the failure to consider relevant information, together with the consideration of irrelevant information, is indicative that the decision maker failed to apply his mind to the application [Katshingu v SCRA]. In Katabana v SCRA, the court held that, in light of the evidence, the decision taken could not be rationally related to the facts as presented.
Judicial Review


Remedies

On review, the High Court may:

  • set aside the initial decision or the decision following internal review or appeal, or both of them, and remit the matter for reconsideration with or without instructions [Khan, F & Scheier, T op. cit 198]. In Mayemba v SCRA, the court found the whole determination process to be flawed and allowed the applicant to submit a fresh refugee application.
  • substitute a decision: s 8(1)(c)(ii)(a) of PAJA provides for substitution by the court of a decision in exceptional circumstances, for instance where the facts are not an issue, where further delay would cause unjustifiable prejudice [Katshingu v SCRA], where up-to-date information is available and the applicant’s credibility is not an issue [Khan, F & Scheier, T op. cit 199] or where the decision maker has shown bias or incompetence [Katshingu v SCRA].
Change of Status

The Western Cape High Court ruled on 21 September 2016 that there is no express provision in either the Immigration Act or the Refugees Act barring a failed asylum seeker, i.e. one whose application for asylum has been rejected or withdrawn, from subsequently making an application for temporary residence rights in terms of the Immigration Act [Ahmed v DHA].