It has been almost a year since the new Immigration laws were introduce by the Minister of Home Affairs, and while there were several grumbles about whether or not he laws were fair and constitutional it appears that the laws are here to stay. As with any change there comes with it a lot of miscommunication and an increase in the number of failed applications. It appears that there has been a sharp increase in the number of visa and permit application being rejected and many prospective immigrants are left to wonder how on earth they can navigate this now even more complex immigration system. In this article we will unpack the reasons why some applications get rejected and when and how to do an appeal to have the decision reviewed.
The primary basis of appeals and review in the context of immigration is contained in the Act itself. Section 8 of the immigration act provides the basis on which applicants can appeal to either the Director General or the Minister to review any adverse decision made by the Department. Section 8(1) and 8(2) deal primarily with decisions to refuse entry to a foreigner at a port of entry. These sections are often very contentious and will be dealt with in another piece dealing on what to do when you find yourself refused entry. In this article we a will focus primarily on sections 8(3)-8(7).
Legal Basis of appeals and reviews
Section 8(3) provides that: any decision in terms of this Act, other than a decision contemplated in subsection (1) that materially and adversely affects the rights of any person shall be communicated in the prescribed manner and shall be accompanied by the reasons for that decision
The above section provides that any adverse decision by the Department must be communicated in writing with reasons. For this reasons applicants whose applications have been rejected have a right to be informed and be given written reasons. This section is given expression in the form of a Rejection letter issued by the Department. Upon receiving the rejection letter the applicant has 10 working days (2 weeks) to appeal the decision. The applicant will appeal to either the Director General in terms of S8 (4) or to The Minster in terms of S8 (6) and both the Director General and / or minister have an obligation to consider such appeal and make a decision either to modify or confirm the decision. Sections 8(5) and 8(7) provide that the Director General and Minister respectively shall consider the application and shall either confirm , reverse or modify that decision, meaning that in either case a decision must be forthcoming from the two offices.
The above sections embody the fundamental constitutional right to Fair and Just administrative action contained in s 33of the Constitution. This right places an obligation on State officials, i.e., Home Affair, in performing their functions to conduct themselves in an objective and unbiased manner and to ensure that fair decisions are reached timeously. A decision that does not comply with these principles is one that an applicant can approach either the Director General or Minister to review.
When can a Decision be appealed?
In appeal is not a second chance to submit documents not submitted in the first application. It is not enough to simply supplement the documents submitted but there must be a ground to review the decision of the adjudicator based on the documents already present. In appealing the decision the applicant is saying to the Director General or Minister that “based on the documents I submitted in my original application this decision is wrong and must be reversed”
A decision that is biased, arbitrary, and capricious in nature can be appealed.
Bias: A decision is considered biased when it is influenced by a predisposition of the adjudicator. In this case the adjudicated forms an opinion based on factors outside the facts presented before him/her in the application. A common occurrence is found in the adjudication of work visa and spouse visa application where reference to high unemployment levels and prevalence of marriages of convenience are made. Such comments indicate that the adjudicator did no approach the application objectively as such the applicant has a right to appeal the decision.
Arbitrary: A decision is considered arbitrary when it has no legal basis and random. For instance where an application for a Spouse Visa with a work endorsement is rejected on the basis that the applicant did not provide a Labour Certificate. In this instant the Labour certificate is not a requirement for a Spouse Visa- Work Endorsement and therefore the decision is arbitrary because it has no legal basis. Many rejections are arbitrary and can be successfully appealed.
Capricious: quite similar to an arbitrary decision and often an arbitrary decision is also capricious but no always. A decision is capricious when it does not follow the law or logic and often whimsical in nature. For example, applicant A applies for a visa without providing proper authentication, a trend has developed and not application is ever denied on that basis. Applicant B applies without proper authentication and is rejected on that basis, while the decision may be correct it may be considered capricious due the sudden unexplained change.
How to appeal an adverse decision successfully?
Once it has been established that an adverse decision can be appealed an applicant can then prepare an appeal to that effect. It is important to put your case with as much detail as possible and attach all relevant documentation.
It is also important to know what the law says about the requirements of that particular visa or permit.
The appeal must highlight any or all of the points that make the decision either arbitrary, biased and or capricious.
Appeals can be quite technical and where possible it is advisable to seek the aid of a professional to assist you.
The most important thing to remember about appealing an adverse decision is that it is not a second bite of the cherry but rather a chance to correct a wrong decision. If you are certain that the decision is wrong then a well thought out and prepared appeal will have an adverse decision reversed. It is unclear how long should the Director General or Minister Take to consider an appeal but generally and in our opinion it should not take more than the time it take to consider an application. Reviewing a decision already made does not require the consideration of the entire application afresh but the points that are being challenged in the appeal. Legislation and the courts are yet to make pronouncements on how long is a reasonable period to wait for an appeal before the delay is considered unreasonable. Where such a delay occurs applicants will have recourse to the High Court as excessive delays are reviewable by the court.