Exhausting Internal Remedies in Refugee Law
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In May 2025, the High Court of South Africa handed down two judgments on two similar cases.
Both were instances of asylum seekers bringing review applications after their claims for refugee status were rejected. Both were brought on the same basis in the same court, and both were opposed on the same point of law (both were also brought by the same firm of immigration attorneys). One might be forgiven for thinking that the cases would have similar outcomes.
The first case, N.R. v Director General: Home Affairs, was handed down on 5 May. The applicants were Ukrainian nationals who had sought asylum following the outbreak of the Russia / Ukraine war. Their claims were rejected by two separate Refugee Status Determination Officers (“RSDOs”), who held that the respective applications were unfounded.
The reasons provided leave something to be desired. First, they were identical, despite purportedly having been written by two different RSDOs and issued on different dates. Second, they referred to Ukraine having gained the upper hand in the ongoing Russian / Ukrainian conflict, with the consequence that the asylum seekers would not face harm if they returned.
The second case, M.A.M. v Director General: Home Affairs, was heard and decided on 29 May. The applicant was a citizen of Chad who had been convicted and imprisoned in his home country on charges of homosexual activities. On his release from prison, he travelled to South Africa, where he applied for refugee status.
Imprisonment on the grounds of sexual orientation would ordinarily provide quite a strong claim for asylum. Not for the RSDO. With a vague reference to the separation of powers in Chad, the RSDO found that it had been the government that had imprisoned the applicant, but the courts that had released him. Accordingly, the claim had been rejected as unfounded.
In both cases, the applicants had received woeful RSDO decisions (the court in M.A.M. went so far as to describe the reasoning as “egregiously unmeritorious”). Despite this, both faced the same hurdle in having said decisions reviewed: section 7(2)(a) of the Promotion of Administrative Justice Act (“PAJA”) requires a party seeking judicial review of administrative action to first exhaust any internal remedy they may have. In the context of N.R. and M.A.M., this meant exercising the automatic right of appeal provided for in section 24B of the Refugees Act. Neither party had done so, choosing – presumably on legal advice – to take the decision directly on review.
The duty that a party exhaust internal remedies serves an important function. It “recognises the proper role of the executive within the Constitution” and that “such internal remedies may require specialised knowledge which may be of a technical and practical nature.” It upholds the fundamental separation of powers in our democracy and should not, therefore, be easily sidestepped. Nevertheless, this is just what the applicants in N.R. and M.A.M. attempted to do.
Both applications relied on section 7(2)(c) of PAJA, which permits a court to exempt applicants from exhausting internal remedies when there are exceptional circumstances, and when an exemption would be in the interests of justice. The lack of intelligible reasons, said the applicants, was just such an exceptional circumstance. This is where the two High Court judgments part ways.
In N.R., the court held that this did not amount to an exceptional circumstance (an unkind observer might note, inadequate reasons from an RSDO are more often the norm than the exception) and found that the appropriate remedy was to appeal the decision. In addition, PAJA provided the applicants with another remedy under section 5(2): the right to request adequate reasons. Taken together, these available remedies meant that the applicants could not review the RSDO decisions until they had exhausted the appeal process.
By contrast, the court in M.A.M. held that the reasons were so unintelligible that “requesting additional reasons would not have cured the defect, nor would it have enabled a meaningful appeal to the Refugee Appeal Authority.” Relying, inter alia, on Koyabe v Minister of Home Affairs, the court held that the sheer unintelligibility of the decision justified direct review.
“It is one thing to invoke the specialised knowledge of refugee adjudicative bodies as a reason to limit direct judicial review; it is quite another to witness the consequences of this deference in practice.”
What the M.A.M court fails to give due weight is that, in the refugee context, an appeal itself cures the lack of adequate reasons and adequate reasons are not required for a meaningful appeal. An appeal in the asylum system differs, for example, from ministerial review, rendering the reliance on Koyabe misplaced. The Refugee Appeals Authority of South Africa (“RAASA”) is not restricted to hearing pettifogging points on the reasons given by an RSDO, instead it is given wide powers in its appellate role to include new information, to make its own inquiries, and to hear representations from the United Nations Refugee Agency.
I believe the judgment in M.A.M. is wrong, but it would be unwise to regard it only as a misapplication of the law. Rather, it is indicative of a deeper malaise within the refugee system. It is one thing to invoke the specialised knowledge of refugee adjudicative bodies as a reason to limit direct judicial review; it is quite another to witness the consequences of this deference in practice.
In a recent parliamentary response, the Minister for Home Affairs informed the National Assembly that over the past five years, the RAASA has finalised a total of 14 400 appeals. Of these, a measly 933 were accepted, a rate of 6.48%. The time taken to finalise these applications is itself notable. Between 2019 and 2024, the average number of days taken to finalise a case varied from 1876 to 3079, or, to put it another way, between five and eight years.
This suggests a refugee system that at best is lamentably inept and at worst actively seeks to undermine the rights of those seeking asylum. The desperate attempts by the RSDOs to justify their decisions in N.R. and M.A.M. – the identical, divorced-from-reality reasons in the case of the Ukrainians, the pitiful gesture to the separation of powers to wave away homophobic persecution – these point to the latter. I hope this conclusion is wrong. But regardless which conclusion is correct, neither justifies the courts in departing from the prescripts of PAJA, not without stating clearly that the state of the refugee system itself is an exceptional circumstance which fails to provide an available, effective, and adequate remedy, and that asylum seekers should be permitted to bypass it in favour of direct review.
