Arthur v Director General Home Affairs
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Hofmeyr AJ |
| Judgment Date | 10 August 2023 |
| Citation | 2023 JDR 2976 (WCC) |
| Hearing Date | 01 August 2023 |
| Docket Number | 17549/2022 |
Hofmeyr AJ:
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Hofmeyr AJ
This is an application to review, set aside, and substitute the decision of the Director General of Home Affairs not to lift the applicant’s prohibited person status.
The applicant was flagged as a “prohibited person” after he submitted an application to the Department of Home Affairs for permanent residence and it was discovered that he had been issued with a fraudulent temporary retired person’s visa in May 2017.
The discovery that he had a fraudulent visa meant that he became a prohibited person under section 29(1)(f) of the Immigration Act 13 of 2002. The section reads as follows:
“The following foreigners are prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit –. . . anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document”
Prior to this discovery, the applicant had been living in South Africa on the retired person’s visa and had been travelling to and from South Africa. He holds Canadian and British citizenship. Since the discovery of his fraudulent visa, the applicant has been prohibited from re-entering South Africa from abroad. He therefore took steps, after he received notification of his prohibited status, to apply to the Director General to “lift” his prohibited status in terms of section 29(2) of the Immigration Act. The section provides that:
“The Director-General may, for good cause, declare a person referred to in subsection (1) not to be a prohibited person”
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Hofmeyr AJ
The applicant says that he was entirely ignorant of the fact that he had been supplied with a fraudulent visa and that he had been using the services of an immigration agency. Despite this explanation, the Director General rejected his application under section 29(2). The question in this review is whether the Director General’s decision not to lift his prohibited person status was lawful, reasonable and procedurally fair. In order to place the Director General’s decision in its proper context, it is necessary to set out the salient facts.
The application under section 29(2)
After the applicant was notified that he was a prohibited person, he obtained the assistance of a firm of attorneys specializing in immigration matters in order to make an application to the Director-General. The application was submitted on 16 May 2022. The application, itself, is somewhat confused because, at times, it reads as though it is an appeal against the decision to refuse his permanent residence application and, then on other occasions, it is framed as an application in terms of section 29(2) of the Immigration Act.
Despite this ambiguity, the Director General approached the application on the basis that it was brought in terms of section 29(2) of the Immigration Act. Counsel for the applicant, Ms Ristic, confirmed that this how the applicant intended his application to be treated.
The application explained that the applicant had enlisted the services of an immigration agency called Ecclesia Global in Cape Town to assist him in making an application for a retired person’s visa in mid-2017 and then with submitting an application for permanent residence in December 2017. He said that he had found out about their services online
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Hofmeyr AJ
and visited their offices. He then said that he instructed the agency to assist him with his South African immigration affairs.
The section 29(2) application set out the particulars of the agency, its contact details and website address. The applicant explained that the agency had assisted him in obtaining his retired person’s visa in 2017 but that he no longer had a record of the application. He said that had paid the agency R80,000 for his retired person’s visa and his permanent residence applications and then the application went on to record the following:
“We attach hereto as annexure “F” proof of payments made to Ecclesia Global by our client.”
It is common cause between the parties, however, that the proof of payments attached to the application were incomplete. In fact, the only payment proof that was attached to the application related to the applicant’s payments to Ecclesia Global for his permanent residence application in late 2017. The application therefore did not contain proof of the payments that the applicant said he had made to Ecclesia Global for his temporary retired person’s visa.
This deficiency in his application to the Director General appears not to have been appreciated by the applicant, himself, because when he launched his review, he stated positively in his founding affidavit that he had submitted proof to the Director-General that he had paid Ecclesia Global for this retired persons visa. That was not, in fact, correct.
The applicant also claimed in the founding affidavit that he could not understand how the Director General “in the face of express evidence that [he] had paid Ecclesia Global . . . to
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Hofmeyr AJ
organise [his] temporary visa”, could have rejected his application under section 29(2) of the Immigration Act. But this statement overlooked the fact that it was the applicant who had failed to place this “express evidence” before the Director General.
The application also did not contain any further evidence substantiating the applicant’s claim that he had instructed Ecclesia Global to assist him with his retired person’s visa. There was simply no evidence provided of any correspondence between the parties or other exchange of documents for the purposes of submitting the application.
All that the Director General had before him, when he decided the section 29(2) application, was the applicant’s assertion that he was innocent of the fraud and an incorrect claim that, attached to the application, was the proof of payments to Ecclesia Global for his retired person’s visa.
The Director General’s decision
The Director General did not grant the application. He notified the applicant on 6 July 2022 that his section 29(2) application had been unsuccessful. He gave three reasons for his decision.
The first reason was that the applicant was in the country on a visitor’s permit and so was not permitted to change the conditions of his visa.
The second reason was that there was no proof of payment to Ecclesia Global prior to receipt of the retired persons visa as evidence that he was a victim of fraud perpetrated by the immigration agency.
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Hofmeyr AJ
The third reason, which the Director General recorded as an aggravating reason, was that the retired person’s visa had been issued to the applicant on a passport for which the Department had no record in its system.
The applicant’s founding papers proceed from the premise that the Director General’s decision was unreasonable because the Director General rejected his explanation of innocence despite the fact that proof of it had been placed before the Director General.
However, as Ms Ristic for the applicant fairly conceded in argument, that was not so. The applicant had not, in fact, presented any proof to the Director General of his interactions with Ecclesia Global that related to his temporary retired person’s visa.
In his answering affidavit, the Director General highlighted this point. He said that the problem with the applicant’s section 29(2) application was that there was no proof that the applicant had in fact instructed Ecclesia Global to assist him with his retired person’s visa. The Director General made it plain that he did not require any particular form of proof. He said that he was not insisting on proof of payment. On the contrary, proof could have been in the form of a letter of appointment, a signed document or even an email indicating that the applicant had appointed the agency to assist him in making the application. But none of this was included in the section 29(2) application.
Although the applicant had attached a proof of payment to Ecclesia Global for the retired person’s visa to his founding papers in the review, that information was not before the Director General when he made the decision to reject the 29(2) application. The Director General therefor defended the review on the basis that the applicant had not made out a proper case for lifting his prohibited status when he applied to...
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