The main issue was the lawfulness of the decision to effectively close the Refugee Reception Centre. The court held that just as s 8(1) of the Refugees Act authorised the Director-General to establish Refugee Reception Offices, it authorised him or her to close them, but only ‘after consultation with the Standing Committee’.
The Standing Committee was enjoined to ‘function without any bias and must be independent’ and its functions included formulating and implementing procedures for the granting of asylum, regulating and supervising the work of Refugee Reception Offices, liaising with representatives of the United Nations High Commissioner for Refugees and non-governmental organisations, and advising the Minister of Home Affairs and the Director-General on any matters they refer to it.
A meeting was held with several stakeholders in 2012 where they were told that the Department plans to obtain other suitable premises from which to continue operating the office. Representatives of the Department met with the Standing Committee to inform its members that there was a ‘policy shift’ to move Refugee Reception Offices close to ports of entry on the northern borders, and shortly after, the Cape Town office was closed.
The court a quo had held that the Director-General failed to consult with the standing committee before making the decision, in consequence of which the decision was unlawful. The Supreme Court of Appeal held that the evidence shows that the decision had already been made by the time the Department met with the Standing Committee, but that the consultation requirement in the Act entailed only that the committee should not be denied an opportunity to be heard.
The respondents argued that the decision constituted administrative action that was liable to review. The court held that the question whether a Refugee Reception Office was necessary for achieving the purpose of the Act was quintessentially one of policy, and this meant that it did not constitute administrative action. The respondents also argued that it was open to review under the principle of legality, which entails that the decision must be rationally related to its purpose. The court could not find evidence, on the brief and incomplete information provided in the affidavits alone, that the decision was irrational. The court held, however, that there were circumstances in which rational decision-making calls for interested persons to be heard, and in this case the authorities' failure to hear from the stakeholders when deciding whether that office was necessary for fulfilling the purpose of the Act, was not founded on reason and was arbitrary.
Refugee Reception Office; closure of refugee reception office; review of the decision; administrative action; doctrine of legality
This appeal concerns a Refugee Reception Office that was established in Cape Town. The Refugee Reception Office processed applications for asylum seekers and refugees. In 2012 the Director-General of the Department of Home Affairs (the second appellant) decided that applications for asylum would no longer be received at the Cape Town office, which would thenceforth deal only with applications to extend permits that had already been issued. In effect, the decision amounted to closure of the Refugee Reception Office. The decision was challenged on review in the Western Cape High Court and, pending review, the court issued an interim order to the authorities to ensure that the Refugee Reception Office remained open and fully functional. The authorities petitioned the President of the Supreme Court of Appeal (SCA) for leave to appeal against the interim order. The review succeeded and the court a quo declared the decision unlawful and set it aside.
The decision of the Director-General to close the Cape Town Refugee Office was declared unlawful, and set aside.
A decision made by authorities must be rationally related to its purpose to be considered constitutional, according to the doctrine of legality. In circumstances where it is rational for a decision to involve consultation with stakeholders, non-consultation can render it irrational and liable to be set aside.