S (On the application of Abdul Nahimana ( On his own behalf and on behalf of refugees and asylum seekers in Malawi)) and Mkumbira v Minister of Homeland Security in Malawi (Judicial Review Cause 18 of 2021) [2022] MWHCCiv 2 (12 August 2022)

Judicial review – Sufficient interest required for application – Applicants found to have insufficient locus standi to make application for judicial review.

Without notice applications – Duty of full disclosure – Courts retain the power to remove permission to seek judicial review where material facts are suppressed by the applicant.

This application sought a judicial review and stay of the defendant's decision, which required refugees and asylum seekers residing outside Dzaleka Refugee Camp in rural Malawi to return to the camp by April 28, 2021. The claim emphasized inadequate time for relocation arrangements, absence of basic necessities at the camp, and discrimination based on their status.

The court noted that the defendant's decision applied to refugees in rural areas, making the Government Notice irrelevant to the claimants residing in urban areas. Despite the assumption that the claimants, if asylum seekers or refugees, would have locus standi, the phased execution of the Government Notice prioritized rural areas. The court would have removed the permission for judicial review and the stay order, considering the claimants lacked sufficient interest due to the phased approach and the focus on rural areas. The same rationale would apply if other consolidated applications were individually considered by the court.

The court held that the 1st claimant intentionally withheld and misrepresented evidence, failing to fulfil the obligation of full and frank disclosure in a without notice application. It concurred with the defendant that the 1st claimant was an illegal resident, not a refugee, and lacked standing. The 2^nd claimant, being a Malawian citizen, was also unaffected and lacked standing. The appeal was dismissed with costs awarded to the defendant.

The 1^st claimant failed to discharge his duty to give the court of first instance a full and frank disclosure of all relevant facts. It further held that the claimants had not established a sufficient interest in the matter at hand to lodge the appeal.