The applicants said that it was not safe for them to return to Burundi and that they are sur place refugees. The court held that refugees sur place were an international category of refugees who enter the country of refuge on one basis, but are rendered refugees on another, different basis by supervening events in their country of origin. The applicants thus wished to make a new application for asylum based on new facts.
The applicants argued that, having launched the main application, they would, as of right, be issued with asylum seeker permits because they were actively seeking asylum. The respondents informed them via a letter in 2019 that, since the applicants were illegal foreigners, and had been so for several years, and thus fell squarely in the ambit of the Immigration Act 13 of 2002, as they had no documentation regularising their sojourn and stay in the Republic of South Africa.
The court held that the letter of May 2019 was the trigger for this application, which meant that the applicants had made out a case for urgency. Further, the respondent's argument was based in the notion that the Immigration Act 13 of 2002 trumps the Refugees Act, a view that has been considered and rejected in the Ruta judgment.
Refugees sur place; refugee law; urgency; interim relief; requirements for interim relief; interplay between immigration law and refugee law
The applicants arrived in South Africa from Burundi between 2006 and 2012 and applied for asylum in terms of the Refugees Act. Their applications were rejected by the fifth respondent (the Chairperson of the Standing Committee for Refugee Affairs) in 2014 as being 'manifestly unfounded'. Subsequent to the rejection of their applications, and in 2015, widespread political violence broke out in Burundi and as a result, hundreds and thousands of Burundians fled the country. Those who remained had been subjected to oppression, torture, rape and sexual violence. The applicants wished to make a new application, but the authorities refused to accept and consider their applications for asylum.
The application for urgency was successful and the respondents were directed to issue the applicants with permits.
The court based its decision on the requirements for interim relief in the Setlogelo case, which are that an applicant seeking interim relief must show that:
“(a) the right that forms the subject matter of the main action and that the applicant seeks to protect is prima facie established, even though open to some doubt;
(b) there is a well-grounded apprehension of harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;
(c) the balance of convenience favours the granting of interim relief; and
(d) the applicant has no other satisfactory remedy.”
The court found that the applicants had shown that they had a clear right to the relief they ultimately seek in the main application, a well-grounded apprehension of harm and no other satisfactory remedy.