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.
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
Asylum seekers and refugees’ entitlement to apply for licences to trade in spaza and tuck-shops – no blanket prohibition against self-employment either in terms of the Constitution or applicable legislation – s 22 of the Constitution not a bar – right to dignity implicated – vulnerable position of asylum seekers and refugees considered – South Africa’s international obligations noted.
Foreigner seeking asylum in South Africa – arrested when not in possession of an asylum transit permit or an asylum seeker permit – arrested as an illegal foreigner in terms of s 34(1), read with s 23(2) of the Immigration Act 13 of 2002 – claiming asylum and release from detention in terms of ss 2 and 21(4) of the Refugees Act 130 of 1998 – relationship between Immigration Act and Refugees Act – foreigner can rely on Refugees Act at any stage – delay in indicating a wish to apply for asylum not a ground for preventing such an application
