- The High Court in Johannesburg has ruled that Home Affairs unlawfully withdrew Dr Michel Mbuya’s refugee status when it tried twice to cancel his protection.
- Judge Mabeesele found both decisions were procedurally unfair and unconstitutional. The Standing Committee for Refugee Affairs had no authority to revisit its own ruling.
- The court restored Mbuya’s indefinite refugee status and ordered the department to pay legal costs at the highest scale, citing its disregard for due process and internal legal advice.
The Johannesburg High Court has ruled that the Department of Home Affairs unlawfully withdrew Dr Michel Ndayi Mbuya’s refugee status. Mbuya is a medical specialist from the Democratic Republic of the Congo who has lived in South Africa since 2006.
Judge M Mabeesele stated that the Standing Committee for Refugee Affairs had “no power to set aside its decision” once it communicated that to Mbuya. “The first respondent was functus officio,” the judge wrote. This means the committee had already exercised its authority and could not revisit the matter without going through the courts.
Mbuya was granted asylum in 2007 and was certified as a refugee indefinitely in 2014. In 2022 and again in 2023, the Standing Committee attempted to cancel that status, claiming he had “re-availed” himself of protection from the DRC by renewing his passport. The court found both attempts were unlawful withdrawals of his refugee status.
A scam, a passport, and a second unlawful attempt
Years earlier, Mbuya and other doctors were targeted by a scammer pretending to be an immigration consultant. He was advised to renew his DRC passport to apply for permanent residency. That renewal later became the basis for Home Affairs to argue that Mbuya no longer qualified for refugee protection.
The court found that the first withdrawal decision in 2022 was made without considering Mbuya’s written submissions. Worse, the committee attempted to correct its mistake with a second withdrawal in 2023, something Judge Mabeesele said it had no authority to do.
“The action is unlawful,” the judge ruled. “For this reason alone, the first respondent had no power to again invite the applicant to make written submissions and make a second decision.”
The judgment also revealed that Home Affairs’ own legal team had warned the committee to back off. In a letter dated 6 February 2023, the department’s Director of Litigation advised the chairperson to “leave the applicant as an indefinite refugee,” warning that “past mistakes… put the first respondent in a weak position to litigate.”
Refugee status restored, costs awarded
The court restored Mbuya’s indefinite refugee status and ordered Home Affairs to pay legal costs at an attorney-and-own-client scale. The judge’s final order declared both withdrawal decisions “unlawful and unconstitutional” and reaffirmed the applicant’s protection under section 27(c) of the Refugees Act.
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