Language Is Part of Justice: What Happens When Immigration Decisions Are Not Properly Explained or Translated?
Immigration decisions can determine whether a person may remain with their family, continue working, pursue an asylum claim or enter South Africa. Yet applicants are sometimes handed refusal letters containing legal terminology, standardised reasons or instructions they cannot understand.
A decision may exist on paper, but if the affected person cannot understand what was decided, why it was decided or how to challenge it, access to justice becomes largely theoretical. In immigration law, language is therefore not merely an administrative convenience. It is an essential part of procedural fairness.
The constitutional right to fair administration
Section 33 of the Constitution provides that everyone—not only South African citizens—has the right to administrative action that is lawful, reasonable and procedurally fair. Anyone whose rights have been adversely affected is also entitled to written reasons.
The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) gives effect to this constitutional right. Where an immigration decision materially and adversely affects a person, procedural fairness ordinarily requires:
adequate notice of the proposed or final decision;
a reasonable opportunity to make representations;
a clear statement of the decision;
notice of any available appeal or review procedure; and
notice of the right to request reasons.
The Department of Justice explains that administrators should use plain and straightforward language so that the affected person understands what is happening. Adequate reasons must contain enough detail to explain why the decision was reached; simply repeating a provision of legislation will not ordinarily be sufficient. Reasons should also be written in a language the requester can understand.
A refusal letter must provide more than a conclusion
A notice stating that an application was “unsuccessful”, “did not meet the prescribed requirements” or was rejected under a particular section of legislation may communicate the result without adequately explaining the decision.
Proper reasons should ordinarily identify:
which legal or documentary requirement was not satisfied;
which evidence was considered;
whether any information was rejected or regarded as unreliable;
the factual findings made by the decision-maker; and
how those findings led to the final decision.
In Khan v Minister of Home Affairs and Another, the High Court confirmed that a person adversely affected by the refusal of an immigration waiver application was entitled to reasons for that decision. The principle is important: an applicant cannot prepare a meaningful challenge when the real basis of the refusal remains unknown.
Reasons do not have to persuade the applicant that the decision was correct. They must, however, reveal a rational connection between the evidence, the applicable law and the outcome.
When translation becomes necessary
The Constitution does not necessarily require every immigration document to be translated automatically into every language requested by an applicant. The circumstances of each matter remain important.
However, where a person cannot understand the language used and the decision has serious consequences, the absence of appropriate interpretation or translation may make the process procedurally unfair. This is particularly significant where:
an asylum seeker is being interviewed about persecution or danger in the country of origin;
the applicant is expected to respond to allegations or inconsistencies;
a person is informed that they are prohibited, undesirable or liable to deportation;
appeal rights and strict deadlines are being communicated; or
detention, removal or possible refoulement is involved.
A person cannot meaningfully answer questions, correct a misunderstanding or exercise a right of appeal if the information is communicated in a language they do not properly understand.
The special position of asylum seekers
Language protection is especially important in refugee-status proceedings. Asylum seekers frequently arrive from countries where South Africa’s official languages are not spoken. Their claims may also involve trauma, fear, cultural differences and events that are difficult to explain even with competent interpretation.
The refugee-law framework requires applicants to be assisted through competent interpretation during the status-determination process. The interpreter must do more than translate isolated words. The interpretation must enable the applicant to understand the questions and communicate the substance of the claim accurately.
In Katabana v Chairperson of the Standing Committee for Refugee Affairs, the Court considered the obligation to ensure that an asylum seeker is provided with a competent interpreter. A defective interpretation process can affect the reliability of the interview record and, ultimately, the legality of the decision. Katabana v Chairperson of the Standing Committee for Refugee Affairs
The Supreme Court of Appeal has also emphasised that refugee decision-makers must assist in developing as complete a picture as possible before determining an asylum claim. This obligation is inconsistent with a mechanical interview in which language difficulties are ignored and apparent contradictions are used against the applicant without clarification. Somali Association of South Africa v Refugee Appeal Board
How language failures affect credibility findings
Translation errors can fundamentally alter an asylum claim. A date may be recorded incorrectly, a political organisation may be misidentified or the distinction between detention, interrogation and prosecution may disappear in translation.
The decision-maker may then treat these errors as contradictions and conclude that the applicant is not credible. That approach may be unlawful where the official failed to:
use a competent interpreter;
confirm that the applicant understood the interpreter;
clarify apparent inconsistencies;
read or explain the recorded statement to the applicant; or
allow the applicant to correct material errors.
Credibility findings must be based on a fair and reliable process. A person should not be refused protection because the administration misunderstood their evidence.
The Immigration Act and effective notice
Section 8 of the Immigration Act 13 of 2002 establishes procedures for reviewing and appealing certain immigration decisions. Affected persons must be informed of the decision and the procedures available to challenge it.
This information must be communicated effectively. A document may not provide meaningful notice where the applicant cannot understand:
what decision was made;
the reasons for the decision;
the authority to which the challenge must be submitted;
the documents that must accompany it; or
the deadline for taking action.
A poorly explained or untranslated decision can therefore prejudice an applicant twice: first through the adverse outcome, and again by preventing an effective appeal.
What can an affected person do?
A person who receives an unclear or incomprehensible immigration decision should act without delay.
They should:
Keep the original notice, envelope, email and proof of the date on which it was received.
Request the complete written reasons and the record of the decision.
Ask for clarification or translation in a language they understand.
Record any problems experienced with an interpreter, including the language or dialect used.
Obtain copies of interview notes, application forms and supporting documents.
Lodge the appropriate internal appeal or review within the applicable deadline.
Seek urgent legal assistance where detention, deportation, family separation or non-refoulement is involved.
Under section 5 of PAJA, a person whose rights have been adversely affected may generally request written reasons within 90 days of becoming aware of the administrative action. The administrator must ordinarily provide adequate written reasons within 90 days of receiving that request. A judicial-review application under PAJA must generally be brought without unreasonable delay and within 180 days, subject to the rules concerning internal remedies.
Requesting reasons does not necessarily suspend an immigration appeal deadline. Applicants should therefore obtain advice immediately rather than waiting for the reasons process to be completed.
Can the decision be set aside?
A court may review and set aside an immigration decision where language or communication failures resulted in procedural unfairness, prevented the applicant from presenting their case, produced an unreliable factual record or denied the applicant a meaningful opportunity to challenge the decision.
The usual remedy is to return the matter to the responsible authority for reconsideration through a lawful and fair process. Depending on the circumstances, the court may also direct the Department to provide competent interpretation, reconsider the application within a specified period or refrain from removing the affected person until the matter has been properly determined.
Conclusion
Administrative justice is not achieved merely by printing a decision and handing it to the person affected. The decision must be intelligible, properly reasoned and communicated in a manner that enables the person to understand and respond.
This is particularly important in immigration and refugee matters, where an unexplained sentence or mistranslated answer may separate a family, end a career or return a person to persecution.
Language is not separate from justice. In many immigration cases, it is the means through which justice becomes possible.
This article provides general legal information and does not constitute legal advice. Immigration and refugee matters are fact-specific and often subject to strict deadlines. For assistance with an unexplained refusal, defective interpretation, immigration appeal or judicial review, contact Ndou Attorneys Inc.
Comments