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


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].