The majority judgment of the court held that an internal appeal was available to applicants excluded under section 4 of the. The appellant was not required to exhaust internal remedies under PAJA and the court could consider his review application rather than remitting it back to the Refugee Appeal Board.

In respect of the constitutionality of section 4(1)(b), the majority held that the section was in line with international standards and treaties. Further, section 2 of the Act encapsulates the principle of non-refoulement.

The majority then set aside the RSDO’s decision to exclude the appellant on two grounds: firstly, it was procedurally unfair for the RSDO to rely on documents which he had not been given an opportunity to see or make submissions on; and secondly, the RSDO had not provided adequate reasons for her decision.

In substituting the decision, the court determined the test for what would constitute a political crime under the Act.  The court outlined four factors to be used:

(a) whether the motive was political rather than for personal or financial gain,

(b) whether there was a direct link between the crime, the political motivation and the specific political goal,

(c) whether the crime was proportional and

(d) whether the political goal is in line with our constitutional values

In applying this test, the court found no evidence to conclude that the crime was politically motivated. The court, therefore, held that the appellant was excluded from refugee status.

The minority held that remittal was appropriate since it was undesirable for the court to sit as the court of first and last instance. Additionally, the appellant had not exhausted all internal remedies like appeal to the Refugee Appeals Board.