Abraham and Another v Minister of Home Affairs (12515/2008) [2008] ZAGPHC 212 (4 July 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

PRETORIA

UNREPORTABLE

CASE NO: 12515/2008

DATE: 4/7/2008

In the matter between:

KIRAN ABRAHAM 1st APPLICANT

RAJEELA MOHAN 2nd APPLICANT

versus

THE MINISTER OF HOME AFFAIRS RESPONDENT

JUDGMENT

MAKHAFOLA, AJ:

INTRODUCTION:

[1] Two applicants, a couple, married in India on 17 April 2005, are Indian citizens who hold valid Indian passports. They reside at 491 West Avenue, Ferndale Johannesburg. They have instituted review proceedings against the Minister of Home Affairs whereby they seek an order which fully appears hereinafter.

[2] The order sought by the applicants is in the following terms:

a) Reviewing and setting aside a decision taken by the Respondent to confirm a decision declaring the Applicants to be illegal foreigners as contemplated in section 32 of the Immigration Act 13 of 2002;

b) Reviewing and setting aside the decision taken by the Respondent to reject the Applicants’ application for extension of their temporary residence permits;

c) Reviewing and setting aside an instruction given to the Applicants by the respondent on or about 28 February 2008 to leave the Republic of South Africa;

d) Ordering the Respondent to pay the costs of this application; and

e) Granting the applicants such further and/or alternative relief as the Honourable Court deems just and equitable.

MAIN DISPUTE:

[3] Gleaned from the affidavits filed on record the dispute is whether the Respondent’s decision to confirm a decision declaring the Applicants as illegal foreigners constitutes a fair administrative action or not in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

COMMON CAUSE FACTS:

[4] These are:

a) The Applicants are Indian citizens in possession of valid Indian passports;

b) The Applicants are in possession of work permits which were found to be

fraudulent;

c) The Applicants had on their own accord approached an immigration officer one Mr Mnisi of the Department of Home Affairs to report a suspected irregular temporary residence permit;

d) Both Applicants were interviewed by Mr Mnisi and had made statements to him during the interview;

e) Both Applicants were declared illegal foreigners and were ordered to depart from the Republic through Annexures “C” KA2 and RM2;

f) That application Annexure “F” for a review and appeal against a decision declaring the Applicants illegal foreigners and requesting them to leave South Africa was made to the Respondent.

CASE FOR THE APPLICANTS:

[5] The 1st Applicant arrived in South Africa for the first time in 1996 as a visitor and stayed with his parents in Mpumalanga for about three months. His father is a medical superintendent of a Provincial Hospital. Since then he had regularly visited South Africa. The Applicants married each other in India on 17 April 2005. Before their marriage the 1st Applicant came to South Africa with a visitor’s permit. In August 2004 he obtained employment at Marcus Evans. After obtaining employment he applied for and was granted a temporary residence permit in the form of a work permit which was valid for one year.

[6] His wife, the 2nd Applicant entered this country with a visitor’s permit during July 2005 and this was her first entry. She also applied for and was granted a temporary residence permit in the form of a work permit during August 2005. Since then they have been living in the country as husband and wife with temporary permits and have not left the country to date.

[7] Their passports were destroyed in a flooded room. Thereafter they applied and obtained new passports from the Indian Embassy. He approached an immigration agent to assist them extend their temporary residence just to discover that their permits were irregular. On advice from their attorney they approached the Department of Home Affairs to have the matter investigated. The unscrupulous agent is one Mazibuko.

[8] They had an interview with Mr Comfort Mnisi about their irregular temporary residence permits. On realising that the Applicants possessed fraudulent documents he issued them with orders to leave South Africa by 16 March 2007 at 12h20 as illegal foreigners. He also advised them to take the decision on review to the Director-General of the Department of Home Affairs.

[9] Their attorney, on their behalf, made submissions to the Director-General who rejected the submissions because they had obtained fraudulent work permits. The Director-General further intimated that the Applicants are considered prohibited persons in terms of Section 29 (f) of the Immigration Act, and that they should leave the Republic by 27 August 2007.

[10] Thereafter, the Applicants’ attorney made submissions in the form of a review and appeal to the Respondent. The Respondent dismissed their review and appeal after scrutinising the fraudulent documentation and various submissions by the Applicants. In a reply to the Applicants’ attorney of record the Respondent reiterated the provisions of Section 29 (1) of Act 13 of 2002 and quoted it and recommended that the Applicants leave the Country within 14 days.

CASE FOR THE RESPONDENT:

[11] According to the deponent to the answering affidavit one Comfort Spinola Mnisi is employed as an immigration officer and is stationed at the Head Office of the Department of Home Affairs in Pretoria. He avers that the Department has never granted any work permit to the 1st Applicant. He states further that the Applicants did not satisfy the requirements required by the Act for them to be issued with the said permits.

[12] The deponent intimates that the Applicants did not satisfy the requirements of Section 19 of the Immigration Act. The Applicants entered the Republic with lawful passports but their permits were fraudulent. He had also verified the records of the Department and found that the Applicants’ work permits are fraudulent.

[13] The Applicants have cooperated with him but according to him they are, by virtue of that, not exonerated from the operation of Section 29 (1) (f).

[14] He further states that the Director-General did consider the Applicants’ review against the decision of being declared illegal foreigners. The letter responding to the Applicants’ attorney relating to the review was signed by him per procrationis.

[15] He further states that an appeal was directed to the Respondent who dismissed it. Sections 21 and 48 of the Act are applicable to the Applicants and further that “PAJA” is also applicable but that there are no grounds to review the Respondent’s decision.

THE LAW:

[16] Section 8 (1) Act 13 of 2002 provides: “An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the minister to review that decision and –

[17] Section 8 (4) Act 13 of 2002 provides: “An Applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection (3), make an application in the prescribed manner to the Director-General for the review or appeal of that decision.”

[18] Section 8 (5) Act 13 of 2002 provides: “The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision.”

[19] Section 8 (6) Act 13 of 2002 provides: “An Applicant aggrieved by a decision of the Director-General contemplated in subsection (5) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for review or appeal of that decision.”

[20] Section 8 (7) Act 13 of 2002 provides: “The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.”

[21] Section 11 (2) Act 13 of 2002 provides: “The holder of a visitor’s permit may not conduct work, unless authorised by the Director-General in the prescribed manner and subject to the prescribed requirements and conditions.”

[22] Section 19 Act 13 of 2002 deals with work permits.

[23] Section 29 Act 13 of 2002 states: “Prohibited persons –

(1) (f) the following foreigners are prohibited persons and do not qualify for a visa, admission into the Republic, a temporary or a permanent residence permit: “anyone found in possession of a fraudulent residence permit, passport or identification document.

(2) The Director-General may, for good cause, declare a person referred to in subsection (1) not to be a prohibited person.”

[24] Section 31 (2) Act 13 of 2002 provides: “Upon application, the Minister may under terms and conditions determined by him or her, give exemptions to certain persons to be admitted and sojourn in the Republic.”

[25] Section 32 Act 13 of 2002 provides –

(1) Any illegal foreigner shall depart, unless authorised by the Director-General in the prescribed manner to remain in the Republic pending his or her application for a status.

(2) Any illegal foreigner shall be deported.

[26] Section 48 Act 13 of 2002 provides that: “No illegal foreigner shall be exempt from a provision of this Act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered.”

PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (PAJA):

[27] Section 3 (1) stipulates that: “Administrative action which materially and adversely affects the rights and legitimate expectations of any person must be procedurally fair.”

[28] Section 3 (2) (a) provides that: ”A fair administrative procedure depends on the circumstances of each case.”

[29] Section 6 (1) provides that: “Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.”

[30] Section 6 (2) (d) states that: “A court or tribunal has the power to judicially review an administrative action if – the action was materially influenced by an error of law.”

[31] Section 6 (2) (e) (iii) states that: “A court or tribunal has the power to judicially review an administrative action if – irrelevant considerations were taken into account or relevant considerations were not taken into account.”

[32] In LITTLEWOOD AND OTHERS V MINISTER OF HOME AFFAIRS AND ANOTHER 2006 (3) SA 474 (SCA) at 477 paragraph [3] the court stated that in terms of section 28 (2) of the Aliens Control Act 96 of 1991 the Minister of Home Affairs is authorised to exempt any person from the provisions of Section 23 - if the Minister was satisfied that there were “special circumstances which justified his or her decision”.

[33] In SIDAROV V MINISTER OF HOME AFFAIRS 2001 (4) SA 202 (T) at 209 the court said: “Administrative action to be lawful, must be rational in respect of the reasons advanced for its execution, must be procedurally fair and objectively reasonable.”

CONSTITUTION ACT 108 OF 1996:

[34] Section 33 (1) provides that: “Everyone has the right to administrative action that Is lawful, reasonable and procedurally fair.”

[35] Section 33 (2) states that: “Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”

ARGUMENTS ON BEHALF OF THE PARTIES:

[36] It was vehemently argued on behalf of the Applicants that the correct procedures were not followed in the handling of the Applicants’ matter. The immigration officer and not the Director-General took the decision declaring the Applicants prohibited persons in terms of Section 29 (f) of the Act as evidenced by Annexure “E” signed pp by Mnisi, CS, and that this procedure was flawed and was reviewable.

[37] It was further argued that there is no answer in the opposing affidavit that the Director-General had taken such a decision.

[38] The Respondent’s decision to confirm a decision not taken by the Director-General was unlawful and irregular. Further, the Minister has authority in terms of Section 31 to exempt a person from the provisions of the Act where special circumstances exist. And, therefore, the Respondent was requested to regularise the Applicants’ stay in South Africa by exempting them.

[39] The Respondent failed to exercise her discretion at all. The Applicants could have been assisted by both the Respondent and the Director-General by applying Sections 29, 31 and 32 of the Act.

[40] The argument centred amongst other cases, on the Littlewood case (supra) to support the review application.

[41] On the other hand it was contended on behalf of the Respondent that all procedures had been followed by all who were involved in the Applicants’ matter. The immigration officer’s decision was referred to the Director-General who considered it and tendered reasons why the Applicants have been declared prohibited persons. The decision of the Director-General was also considered by the Minister who, also gave reasons for her decision.

[42] The Sidorov case was quoted as requiring what the Minister had done. Other relevant cases were also quoted to bolster the arguments. It was contended that the Applicants did not apply for work permits in terms of Section 19 of the Act from their home place. They have been declared prohibited persons because they have violated the Act, and in terms of Section 48 they are illegal foreigners.

FACT ANALYSIS AND EVALUATION:

[43] On facts alone the Applicants are in terms of the law illegal foreigners who on their own version are in possession of fraudulent temporary residence permits which have indicated that they were issued in New Delhi which is false.

[44] They allege that they had obtained employment legitimately because of their qualifications and skills. This, cannot be true because the Applicants are in the Republic on visitor’s permits. On his own version the 1st Applicant avers on page 6 paragraph 8, of the founding affidavit that he obtained employment at Marcus Evans after he had entered South Africa on a visitor’s permit. Consequent to that he was granted a temporary residence permit.

[45] For all intents and purposes taking an employment, whilst in the country on a visitor’s permit without being authorised by the Director-General is a direct contravention of Section 11 (2) of the Immigration Act.

[47] On the 1st Applicant’s own version page 10 paragraph 18 of the founding affidavit the immigration officer did advise the Applicants’ attorney to act in terms of Section 8 (4) of the Immigration Act for a review or appeal to the Director-General about his decision taken in terms of Section 8 (1) of the Immigration Act. This was accordingly done by the Applicants’ attorney.

[48] The Director-General rejected the review or appeal to him and advanced reasons for his decision. This is in compliance with the procedure required by the Act. The document embodying the rejection of the Applicants’ representations was signed by CS Mnisi on behalf of the Director-General. The Director-General complied with Section 8 (5) of the Immigration Act by confirming the decision of the immigration officer.

[49] Further representations by the Applicants’ attorney following the decision of the Director-General were made to the Respondent in terms of the Act and procedure. The Respondent rejected the appeal, and advanced reasons for doing so more pertinently citing possession of fraudulent documentation as very serious. It is clear from Annexure “G” which embodies the decision of the Respondent that she had fully considered the appeal. She complied with Section 8 (7) of the Immigration Act and finally confirmed the decision of the Director-General.

[50] The immigration officer, the Director-General and the Minister could not do better than follow the Immigration Act to the letter as they have done.

[51] It could not have been expected that the Minister should act mero motu in terms of Section 31 (2) of the Immigration Act in the absence of an application from the Applicants to be exempted to be admitted and sojourn in the Republic. The Section requires an application which application was never launched by the Applicants.

[52] The facts in the Littlewood case relied upon heavily by the Applicants are distinguishable and the old Aliens Control Act was then applicable at the time. The Littlewoods had severed their ties in Britain and had established a home here, and had a small business, whilst their children were settled at school. Littlewood completed an application to the South African authorities for a temporary residence permit for 12 months and for a work permit and when in London he delivered it to the High Commission.

[53] Further facts are that the Littlewoods had applied for exemption which was rejected by the Minister. In casu, as I have said before, there is no application for exemption by the Applicants. In addition the wording and provisions of Section 48 of the Immigration Act read together with Section 31 (2), in my view oust the Applicants from exemption from the Minister. It is not known if the Applicants have severed ties with India and intend to make the Republic a home in the form of having settled in the country, should they be granted permanent residence.

[54] It does not appear that the Minister’s administrative action has contravened the provisions of Section 33 of the Constitution and “PAJA” as quoted above. The Minister has given written reasons for her decision because it has adversely affected the Applicants.

[55] I now turn to consider the prayers in the notice of motion. I do not find that there was any procedural unfairness in the manner the Respondent’s team had handled this matter to its finality to justify the granting of the prayers prayed for by the Applicants. The Applicants have failed to make a case entitling them to assistance by this court.

ORDER:

In the result, the Application is dismissed with costs.

_________________

MAKHAFOLA, K

ACTING JUDGE OF THE HIGH COURT

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