Cape High Court criticises Home Affairs for rejecting gay refugee’s asylum claim
Key ruling on LGBTQIA+ rights and administrative law

On 29 May 2025, the Western Cape High Court delivered a significant judgment overturning the Department of Home Affairs’ decision to reject the asylum application of a Chadian national who sought refuge in South Africa due to persecution based on his sexual orientation. In the case of M.A.M and Another v Director-General: Home Affairs and Another (Case No. 23987/2024), Judge Da Silva Salie highlighted severe flaws in the reasoning provided by the Refugee Status Determination Officer (RSDO).

Background of the case

The first applicant, a gay man from Chad, fled his home country after being imprisoned for homosexual activities, which remain criminalised there. Arrested in 2022, he was sentenced to 18 months in prison but was released in 2023 following a successful appeal. Fearing further persecution, he entered South Africa on a visitor’s visa and later applied for asylum. His partner, the second applicant, is a South African medical doctor, and together they challenged the asylum rejection in court.

Key findings of the court

The court found the RSDO’s decision to reject the asylum claim incoherent, contradictory, and unintelligible. Specific issues with the reasoning included:

• Citing irrelevant legal provisions from Chad’s Constitution.
• Misunderstanding the legal test for asylum, which requires a credible fear of persecution.
• Neglecting to assess the applicant’s claims against the actual conditions in Chad.
• Ignoring South Africa’s constitutional and international obligations to safeguard LGBTQIA+ individuals.
• Offering no substantial evaluation of the risks of future persecution or societal harm.

The role of PAJA

The case was reviewed under the Promotion of Administrative Justice Act (PAJA), which allows courts to overturn administrative decisions that are irrational, unsupported by facts, or lack proper reasoning. The applicants invoked section 7(2)(c) of PAJA, requesting exemption from exhausting internal remedies like appealing to the Refugee Appeal Authority due to “exceptional circumstances”.

The court agreed, ruling that the unintelligible and irrational nature of the RSDO’s decision made it impossible for the applicant to know what he was appealing against. This qualified as an exceptional circumstance under PAJA.

Outcome of the case

The High Court granted the following orders:

• Exemption from exhausting internal remedies.
• Setting aside the RSDO’s decision.
• Remitting the case to a new RSDO for reconsideration, with instructions to provide clear, lawful reasons.
• Ordering the Department of Home Affairs to cover the costs of the application.

Significance of the judgment

This ruling emphasises the importance of rational and clear decision-making in administrative law, particularly in life-altering cases like asylum applications. It serves as a critical reminder that officials must act fairly, lawfully, and in alignment with constitutional principles.

Furthermore, the judgment reinforces South Africa’s commitment to protecting LGBTQIA+ rights in asylum law. It upholds the nation’s constitutional values of dignity, equality, and non-discrimination while reminding the state of its obligations under international human rights treaties.

For more information and advice, contact Dee-dee Mathelela, Head of our Dispute Resolution Practice.