Refugees Amendment Act, 2011

Asylum seeker applications - effect of delay - relevance of criminal record in South Africa - overriding principle of non-refoulement

Delay does not impede right to asylum - only the Refugee Status Determination Officer is authorised to consider application merits - Immigrant Act must be read in harmony with the Refugees Act and international law

 Immigration Act 13 of 2002 – section 49(1)(a) – lawfulness of detention of foreign national for illegal entry and stay in South Africa in contravention of Immigration Act 13 of 2002 – such detention is lawful and does not violate section 2 of the Refugees Act 130 of 1998 – the mere expression of an intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 until good cause for the illegal entry and stay is shown – Refugees Act 130 of 1998 – section 21(1B) – requirement to show good cause for illegal entry and stay in South Africa is disjunctive to application for asylum – regulation 8(3) – requirement to show good cause for illegal entry into South Africa before being permitted to apply for asylum is consistent with Article 31 of the 1951 United Nations Convention Relating to the Status of Refugees – protection in section 2 of the Refugees Act 130 of 1998 begins when application for asylum has been made.

Stare decisis – whether high court can deviate from Constitutional Court decision – Constitution Seventeenth Amendment Act 2012 – Constitutional Court - highest Court in all matters – decisions binding on all Courts – decision in A v Minister of Home Affairs has settled the law - binding authority.