British/Canadian citizen partially successful in dispute with home affairs after being declared ‘prohibited person’

A Canadian and UK citizen who applied to be a permanent SA resident has been partially successful in reviewing home affairs’ refusal to lift his status as a “prohibited person” after it said he had been issued with a fraudulent visa.

The Cape Town high court found that the department of home affairs had checked a wrong number in its system and thus its decision was irrational.

In May 2017, a man known as “RAA” was issued a temporary retired person’s visa. Though he holds Canadian and British citizenship, he applied for permanent SA residency towards the end of 2017. For both the visa and residency, he used an immigration agency — Ecclesia Global — to which he paid R80,000 for the service.

After submitting the application for permanent residency, RAA was flagged as a “prohibited person” by the department of home affairs. According to law, when a person is flagged as “prohibited”, they are not allowed entry, admission, a visa or permanent residency. Home affairs said the reason for the flagging was due to the visa being fraudulent.

In 2022, RAA applied to the the director-general of home affairs, Tommy Makhode, to lift this prohibition.

RAA, who was still abroad at the time, attached proof of payments to his request, but it turned out the only proof was for payment for the permanent residency application. There was no proof of payment for the visa, which was the main issue.

In July 2022, Makhode rejected RAA’s request for the prohibition removal for three reasons: there was no proof of payment to Ecclesia for the visa; RAA had been in the country on a visitor’s permit and was not allowed to change his visa conditions; and the visa had been issued based on a passport that was allegedly not recorded in home affairs’ system.

RAA then took Makhode’s rejection on review in the Cape Town high court. In court last week, RAA’s lawyer conceded that he had not provided proof to Makhode that he had interactions with Ecclesia in relation to the visa.

Makhode, in court papers, confirmed the proof required was not specifically proof of payment, but any proof such as a letter of appointment of Ecclesia or an email. However, none of this was attached when RAA applied to lift the prohibition in 2022. As a result, Makhode refused RAA’s request.

Though initially Makhode argued that RAA had failed to exhaust internal appeals before coming to court — by not appealing to the minister of home affairs first — this was “correctly” abandoned by Makhode’s counsel in court, according to acting judge Kate Hofmeyr.

In her judgment , Hofmeyr rejected RAA’s reliance on previous high court matters to claim Makhode failed to understand his powers correctly.

Makhode “did not misunderstand the question before him”, said Hofmeyr. But all that RAA had done was “merely [assert] that he was innocent of the fraud” and failed to provide proof he had used Ecclesia. RAA also knew what constituted sufficient proof, he just erroneously thought he had provided it. RAA lost on this ground.

Where home affairs went wrong

As noted, Makhode based his decision on the claim the visa was issued using a passport not in home affairs’ system. However, it turned out Makhode was wrong. As Hofmeyr explains, “[Makhode] had checked the wrong number in the system.”

In law “once a bad reason plays a material role in the decision under attack”, Hofmeyr said, it is “not possible to conclude” a rational — and therefore lawful — decision was made. This is so even when there exists other good reasons for the decision.

As a result, Hofmeyr concluded, “the decision (to not lift the prohibition) ought, accordingly, to be reviewed and set aside.”

This did not mean RAA’s prohibition was lifted. The matter will be remitted back to Makhode.

Despite RAA’s partial victory, Hofmeyr outlined there were unanswered questions RAA had to answer, such as why he had no copies of his visa application, but copies of ATM receipts to Ecclesia.

RAA could apply again to lift the prohibition but has 10 days to supplement his request. Makhode was given 60 days to decide thereafter and pay costs.

moosat@businesslive.co.za