A R v Minister of Home Affairs (CCT 02/18) [2018] ZACC 52 (20 December 2018)

Section 12(1) of the Constitution — principle of non-refoulement — section 49(1) and 34 of the Immigration Act 13 of 2002 — illegal foreigner’s intention to apply for asylum — lawfulness of detention.

Refugees Act 30 of 1998 — constitutionality of subsections 22(12) and 22(13) — provisions are unconstitutional

Failure to renew visa — resulting in deemed abandonment of asylum application — violation of principle of non-refoulement — infringement of right to dignity, right to just administrative action and children’s rights — provisions arbitrary and irrational

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