The court held that even if one was to accept the appellant’s story about his attempts to obtain refugee status on reaching South Africa was untrue, that did not mean that he did not wish to apply for that status. When the Immigration Officer found him at his cousin’s business premises he clearly encountered him within the meaning of reg 2(2) of the Refugee Regulations. He had not yet made an application for refugee status in terms of reg 2(1). If he did not then indicate his wish to apply for refugee status, he had, by the time the instant proceedings commenced, indicated such an intention.
The court held that whilst reg 2(1) of the Refugee regulations (Regulations) stated that an application for asylum had to be submitted without delay, neither it nor the Refugees Act prescribed a time within which such an application had to be made, nor did the Refugees Act suggest that delay in making an application was of itself a ground for refusing an otherwise proper claim for refugee status.
The court further held that reg 2(2) of the Regulations applied to any foreigner encountered in South Africa, whose presence in South Africa was illegal. Therefore, there was no warrant in the submission that undue delay deprives the asylum seeker of the rights afforded by reg 2(2).
South African Refugee Act; South African Immigration Act; illegal foreigner; asylum seeker; application for asylum; immigration officer; prescribed time limit; delay in applying for asylum
In the instant case the appellant, a foreigner seeking asylum in South Africa, was arrested when not in possession of an asylum transit permit or an asylum seeker permit. The appellant submitted that based narrowly on reg 2(2), he was entitled to a declaratory order that his original arrest and detention were unlawful.
On the other hand, the respondents contended that irrespective of the truth of the appellant’s statements he had become an illegal foreigner in terms of s 23(2) of the Immigration Act and was accordingly liable to be detained and deported in terms of s 34 of that Act. The respondents’ stance was that no application for asylum had been made under the Refugees Act and, even if one was made, that would not affect the appellant’s status as an illegal foreigner or the validity of his detention.
The court held that the appellant had to first be issued with an asylum transit permit valid for 14 days. His continued detention would then on any basis become unlawful and he had to be released. He would be obliged to apply for asylum within 14 days. If he did not do so, he would again become an illegal foreigner and be subject to the relevant provisions of the Immigration Act. In order to ensure that he was not prevented from applying for asylum within the 14-day period, the Minister and Director-General, as the representatives of the Department of Home Affairs would be directed to afford him priority when he reported to the Refugee Reception Office for that purpose.
The word “encountered” in Reg 2(2) had to be given its ordinary meaning which was to meet or come across unexpectedly. The regulation did not require an individual to indicate an intention to apply for asylum immediately he or she was encountered, nor should it be interpreted as meaning that when the person did not do so there and then he or she was precluded from doing so thereafter. The purpose of sub-s 2 was clearly to ensure that where a foreign national indicated an intention to apply for asylum, the regulatory framework of the Refugee Act kicked in.