The Department of Home Affairs issued an Immigration Directive which required departmental functionaries to refuse all applications for temporary or permanent residence visas made by the holder of an asylum seeker permit. The court found that the directive was treated as binding by the departmental officials tasked to implement it and it was therefore open for the court to make a determination whether the directive was not empowered by the statute and therefore invalid.
The status of a directive is an important question in relation to whether it can be challenged under the Promotion of Administrative Justice Act.
A directive is an official policy document which guides government departments on how to apply legislation and does not always have clear statutory authority. It is nonetheless of great practical importance.
Directives are neither legislation nor subordinate legislation. This does not mean a directive is unenforceable or has no legal status. There are different types of directives.
- They may be statutorily required in which case they are tested against the empowering legislation.
- In other cases the application of the statutory directive may be challenged on the grounds of infringing certain fundamental rights like equality.
- Thirdly, the directive may not be expressly required by legislation but may be an internal document that regulates implementation and application of statutory powers granted to functionaries, as in this case. The question is then whether the directive can only be challenged individually by someone affected or can be challenged generally as in the case of legislation either by administrative action or a legality review.
Because the Directive was treated as binding by functionaries, the court examined its validity.
As to validity, the court found that the Directive could not have the effect of contradicting the regulations under the Immigration Act. It was not officially published nor made accessible to the public. It was merely issued by the Director General as an operational guide. It can hardly be suggested to be law or carry sufficient weight to override regulations. The Directive was declared unlawful.
This is an important judgment under administrative law because a lot of things are done by departmental directives and official policy documents.