Question NW2246 to the Minister of Home Affairs

Reply:

(1) Those are decisions finalised by SCRA.

(2)(a)&(b) The information is tabulated in the tables hereunder:

(aa) FOR SCRA

Year	Decisions taken by RSDO (a)	Unfounded (In cases of appeal referred to RAB) (i)	Manifestly Unfounded automatic refer to SCRA (ii)
2008	69114	Not Available
2009	50622	18856	27199
			Upheld 18239	Set Aside 472
2010	77071	24827	42161
			Upheld 30995	Set Aside 196
2011	43953	16875	20275
			Upheld 6680	Set Aside 13
2012	63228	25037	31965
			Upheld 38628	Set Aside 263
2013	68241	35402	25553
			Upheld 9404	Set Aside 94
2014	75733	29545	36958
			Upheld 22972	Set Aside 247
2015	60640	14093	44048
			Upheld 16884	Set Aside 1777
2016	41241	21693	16391
			Upheld 24516	Set Aside 1894
2017	27980	6819	18894
			Upheld 15534	Set Aside 1843

Please note: In 2008 the statistics for rejections were not divided into unfounded and manifestly unfounded.

(bb) FOR RAB:

CASES RECEIVED BY RAB AS UNFOUNDED AND FINALISED
YEAR	UNFOUNDED REFERRED TO RAB (i)	RECEIVED	FINALISED (ii)
2008	Not Available	3877	1550
2009	18856	4601	4139
2010	24827	4879	3420
2011	16875	4362	5434
2012	25037	4958	4886
2013	35402	9413	2743
2014	29545	15452	4466
2015	14093	14475	4993
2016	21693	4455	2670
2017	6819	10117	5261

3(a) The information is as follows:

Year	(aa) Asylum Seeker	(bb) Refugee Status
2013	630	712
2014	399	523
2015	1089	1021
2016	435	792
2017	238	1115
2018	14	758
Total	2805	4921

Grand total of litigation instituted by asylum seekers and refugees to date is 7,726 (2805 + 4921)

3(b) Litigation brought against the Department by asylum seekers is essentially contextualised as follows:-

New Asylum Seekers: These are illegal foreigners detained at Lindela Repatriation Centre (“Lindela”) or Police Stations, seeking urgent court orders to be released from detention on the basis that they are new asylum seekers who want to be afforded opportunity to apply for asylum. In most such cases, courts do not award costs to the applicants and simply order their release, so as to allow them to apply for asylum. This is in line with the Supreme Court of Appeal judgment of BULA and Others / Minister of Home Affairs and Others in which the court held that once intention to apply for asylum is indicated, asylum seeker is entitled to protective provision by the Republic under International Law. These court applications are mostly not settled in both parties favour in that asylum seekers (applicants) are released from detention and afforded the opportunity to apply for asylum and no costs order is made against the Department.

Asylum Seekers Appeals to the Refugee Appeal Board (“RAB”): These are asylum seekers whose applications have been rejected by the Refugee Status Determination Officer (“RSDO) on the grounds that their applications are unfounded. Such asylum seekers may appeal the RSDO’s decision to the RAB. During the period 2013 – 2016, the RAB experienced capacity challenges which led to a huge backlog in finalising the appeals. This resulted in litigation in which asylum seekers whose applications are pending before the RAB would launch court applications compelling the RAB to either furnish them with interview dates and/or finalise decisions. Because of the nature of this litigation, the Department and/or RAB had no legal grounds to oppose them and as a consequence, there were costs orders occasioned by these applications. However, since the capacity constraints have been addressed at the RAB, this nature of litigation has ceased.

Failed Asylum Seekers: These are those asylum seekers/applicants whose applications have either been rejected by the Standing Committee on Refugee Affairs (“SCRA”) or RAB. The rejection by SCRA or RAB renders such asylum seekers illegal foreigners in the Republic and therefore liable for arrest and detention for the purposes of deportation. Upon arrest, failed asylum seekers approach the courts to seek orders to review and set aside the rejections. Such applications are normally brought in two parts, namely, Part A and Part B. In Part A, the applicants seek orders to be released from detention pending finalisation of Part B. In Part B, they seek orders to review and set aside the decision of the RAB or SCRA. Ordinarily, in Part A of the application, there are no orders as to costs. However, in Part B, parties incur costs. Part B is seldom set down for hearing as the intention of the failed asylum seekers is never to prosecute the review, but rather to secure the indefinite stay in the Republic. Costs in these review applications are also reserved pending the finalisation of these review applications.

The nature of litigation instituted by refugees against the Department is mainly two-fold:

(i) Certification in terms of Section 27(c) of the Refugees Act

These applications are meant to compel SCRA to recognise the applicants as indefinite refugees.

(ii) Refugees Identity and Travel Documents

These applications are meant to compel the Department to issue refugees with South African Refugee Identity Documents (“refugee IDs”) and/or Travel Documents.

Ordinarily, the Department does not oppose these applications as there are no legal grounds to oppose them. The applicants merely seek orders to compel the Department to finalise their applications for refugee IDs and/or Travel Documents. In such matters, costs are confined to the issuing of high court applications only.

4(a-c) The information is as follows:

Area of responsibility	2017	Legacy	Total
RSDO	623	997	1620
SCRA	9836	30490	40326
RAB	5246	142548	147794