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[2020] ZAGPJHC 216
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Y Y v Minister of Home Affairs and Others (32581/19) [2020] ZAGPJHC 216 (16 September 2020)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 32581/19
In
the matter between:
Y
Y (born
C)
Applicant
and
MINISTER
OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
HOME
AFFAIRS
Second Respondent
VFS
VISA PROCESSING (SA) (PTY) LTD
t/a
VFS
GLOBAL
Third Respondent
JUDGMENT
HEARD
REMOTELY VIA ZOOM PLATFORM ON 1 SEPTEMBER 2020]
FA
SNYCKERS AJ:
INTRODUCTION
1
In this application the applicant seeks a mandamus that the second
respondent (“DG”) issue to her a relative’s
visa
under
section 18(1)
of the
Immigration Act 13 of 2002
.
2
Section 18(1)
reads as follows:
“
A relative’s
visa may be issued for the prescribed period by the Director-General
to a foreigner who is a member of the immediate
family of a citizen
or a permanent resident, provided that such citizen or permanent
resident provides the prescribed financial
assurance.”
3
The matter arises because, when the applicant applied to the third
respondent (“VFS Global”), through which such
applications are processed, she was advised that her application
could not be processed and that she should present herself to the
Department of Home Affairs for deportation as she was “
V-listed
as a prohibited person”
. The Minister and the DG
adopt the attitude that, as the applicant is “
V-listed”
,
no relative’s visa could be issued to her and that her
appropriate relief, if any, would be to bring proceedings to set
aside the decision to have her “
V-listed”
.
FACTUAL
CONTEXT
4
There is some uncertainty in the papers arising from what appears to
be a divergence between the applicant’s version in
the founding
and replying affidavit, on the one hand, and, on the other hand, what
the Deputy DG deposes appears from the Department’s
records.
5
The applicant’s husband is a permanent resident of South Africa
and their child a South African citizen. According
to the
applicant, she initially entered South Africa somewhere before 2011
and was granted asylum by the Department.
6
Given the centrality to this application of the applicant’s
alleged asylum, with respect to the “
V-listing”
at
issue in this application, it is disconcerting that the applicant
gives no particulars at all in relation to the granting to
her of
asylum, whether in her founding affidavit or in her replying
affidavit. This the more so in light of the fact that
according
to the respondents’ version, said to be derived from the
Department’s records, no extracts from which are
attached to
the papers, there is no record of the applicant’s original
entry into South Africa prior to her marriage in February
2011, and
her first recorded entry was in October 2011.
7
Be that as it may, the applicant proceeds to relate that in February
2011 she got married, and she attaches the marriage certificate.
At the time her husband was already a permanent resident of the
Republic.
8
The applicant was then issued with a relative’s visa (in terms
of
section 18(1))
on 1 October 2012 – in terms of the
regulations promulgated for the purposes of
section 18(1)
of the Act,
regulation 17(3)
determines that such a visa shall be issued for a
period of two years maximum. The relative’s visa was
therefore scheduled
to expire on 30 September 2014.
9
In February 2014 a minor son was born to the applicant and her
husband – an unabridged birth certificate is attached.
10
The child was then issued with a South African identification number,
which is provided, as the husband was a permanent resident.
The
child is also possessed of a South African passport, a copy of which
was attached to the papers.
11
The applicant states that this is not a marriage of convenience but
that the family lives together and has always done so.
The
applicant then gives evidence with reference to extracts from
passports of some of her travels (although stating that a previous
passport was lost). She says that in May of 2014 she travelled to
China to look after her ill mother and attempted to return in
August
2015, but was advised by the Chinese authorities that South African
immigration advised that “
there was something wrong with her
relative’s visa”
. She said she could only be
advised on enquiry that her relative’s visa was “
not
valid”
.
12
The relative’s visa had expired on 30 September 2014.
13
It may be
noted that
section 30(1)(h)
was introduced into the
Immigration Act
effective
2014, in terms of which the expiry of any visa was a
sufficient reason for which a foreigner may be declared “
an
undesirable person”
.
This is was so even if an application for an extension was pending –
see
Johnson
v Minister of Home Affairs
2014 JDR 1320 WCC.
[1]
14
The applicant then says that “
my husband and my minor son
could not be in my absence”
and that in desperation she
entered the Republic illegally through Swaziland. It may be
noted that her husband and minor
son had been in her absence for over
a year. Nevertheless, I accept fully that it was critical for
the applicant to be reunited
with her family as soon as possible –
but the fact remains that the applicant’s current presence in
the Republic was
the result of illegal entry, on her version, in
April 2015.
15
The applicant says that she then wanted to regularise her status in
the country and “
explained her predicament”
to the
Department and that she received some assistance from an unknown
person with empathy. The precise facts surrounding the
interaction
with the Department are not furnished.
16
The upshot was another application for a relative’s visa which
was issued on the 14
th
of July 2016 expiring on 14 June
2018. The applicant says that she travelled extensively after
this new relative’s
visa was issued without experiencing any
immigration issues – this is corroborated with extracts from
her passport.
17
The next
event in the history was the need to apply for a “
renewal”
of the relative’s visa that was to expire in June 2018.
[2]
Application was made a week before the expiry date on the 7
th
of June 2018, “
through
the correct channels”
with VFS Global. The applicant says that was advised that it
could take up to a year for her application to be processed
and
followed up with VFS Global at the beginning of 2019. The
applicant says that she “
was
informed by the third respondent that I was not entitled to an
extension of my visa at it appeared from the system of the Department
of Home Affairs that I was V-listed as a prohibited person and could
therefore not sojourn in the Republic of South Africa.
I was
informed that I was an illegal immigrant and should immediately hand
myself over to the authorities to be deported”.
18
The applicant says that she tried to explain about her being married
to a permanent resident and that her son was a citizen,
but was
referred to the Department.
19
She contacted the Department and was apparently advised that she
should hand herself over for deportation.
20
On this basis this application was brought in terms of which the
court is asked to direct the DG to issue a relative’s
visa in
terms of
section 18(1)
and that “
the applicant is
immediately upon granting of this order issued a Form 20
authorisation in terms of
section 7(1)(g)
read with
section 32(1)
and
regulation 26(2)
of the
Immigration Act 13 of 2002
as amended to
remain within the Republic of South Africa pending the applicant’s
receipt of the relative’s visa as
envisaged in prayer 1 above”
.
21
The reference to
regulation 26(2)
appears to be an error and appears
to have been intended to be a reference to
regulation 30(2).
THE
DEPARTMENT’S POSITION AND ISSUES
22
The deponent to the answering affidavit is the Deputy
Director-General. He tells the court that the computer records
of
the Department on its so-called “
movement control system”
contained records that were irreconcilable with the applicant’s
version as to her movements in and out of the country.
One is
told
inter alia
that the airport stamp dated 22 May 2018
“
cannot be authentic as the movement was not captured and
they would have refused her entry at a port of entry as she was
already
V-listed”
.
23
This allegation is difficult to reconcile with the following critical
allegation in paragraph 25 of the answering affidavit:
“
Ms Y Y was placed
on the visa entry and stop list on 4 June 2018 because of the
fraudulent asylum seeker permit which she had.
She rendered
herself to become a prohibited person in terms of
section 29(1)(f)
of
the
Immigration Act&rdquo
;.
24
The deponent to the affidavit does not indicate where he got the
information from to which he testified in paragraph 25.
He does
not say that he personally accessed the system, nor is any detail
provided as to how the entry came to be made, nor which
“
fraudulent
asylum seeker permit”
was at issue, nor when and how
somebody within immigration made a determination that
section
29(1)(f)
of the
Immigration Act was
at issue. I revert to this
below.
25
In essence,
the Department’s submissions and case before me amounted to the
following: there were two decisions at issue in
this case. The
first was a refusal to grant the applicant the “
renewal”
of her relative’s visa in terms of
section 18(1).
The
second was the “
V-listing”
that, apparently according to the departmental system, was entered as
a note on the system on the 4
th
of June 2018, with reference to a “
fraudulent
asylum seeker permit which she had”
.
Neither decision was being reviewed by the applicant; instead the
applicant was simply applying to court for a
mandamus
that powers under
section 18(1)
should be exercised in her favour.
This, counsel submitted, was incompetent in circumstances at the very
least where the
V-listing decision was not being challenged on review
and stood until set aside, on the well-known principle in
Oudekraal.
[3]
With respect to the decision to decline to grant a visa, Counsel
urged that the present application could not be regarded
as an
application to “
review”
that decision, and that the Department was not afforded the
“
opportunity”
to provide an explanation with reasons and the record in regard to
such decision, as would ordinarily flow pursuant to a review.
26
The Department also submitted that it was inappropriate to grant the
mandamus
, in circumstances where the applicant, on her own
version, had entered the country illegally, and this was the first
that the Department
became aware of such fact.
27
It is important to distinguish two potential decisions and two
potential “
reviews”
. The first is the
asserted refusal to issue the relative’s visa. The second
is whatever decision is embodied
by the “
V-listing”
.
28
As for a “
decision”
to decline to issue a
relative’s visa, on the assumption that there was such a
decision, the ordinary remedy in relation
to such a decision would be
to seek to have it set aside on review and then to seek whatever
appropriate relief accompanied such
review such as, in exceptional
circumstances, an assumption (substitution) of the power granted to
the official by the court.
In the instant case, on the
assumption that such a decision to refuse existed, the applicant
proceeded straight to seeking mandatory
relief, without asking that
any particular decision be reviewed or set aside.
29
Judicial review need not occur pursuant to the provisions of
Rule 53
,
but should, at the very least, be directed at an identifiable
decision, before relief, particularly in the form of a
mandamus
,
is formulated and sought. This, by itself, might however not
necessarily be fatal to an application that recognisably challenges
a
decision and simply neglects to ask that the decision be set aside as
part of the relief and remedy sought.
30
In the instant case, however, it does appear as though it is highly
questionable whether there is a “
decision”
with
respect to the exercise of the powers under
section 18(1)
, that would
be the target of any review. The applicant’s contention in this
regard is that VFS Global did not purport to
make any such decision,
nor was any such decision made by the DG or any duly delegated
person; the applicant was simply advised
by those tasked to process
applications, namely VFS Global, that the application could not be
processed because of the V-listing.
31
The Act
provides for mechanisms of communicating adverse decisions to the
persons concerned. This is governed by section 8(1)
and section
8(3) and (4) of the Act. It is an interesting question whether
a decision made somewhere within the Department
by some unnamed
official, but not communicated to the person concerned in terms of
section 8, is even a decision capable of review,
or becomes a
decision only once “issued” to the person concerned.
Certainly, the actions of VFS Global do not
in the circumstances
appear to me to amount to a decision for the purposes of being
susceptible to judicial review under the Promotion
of Administrative
Justice Act 3 of 2000 (PAJA).
[4]
32
In my view, there has not as yet been a decision on the part of the
DG or any duly delegated person declining to grant a relative’s
visa in terms of section 18(1).
33
As for the “
V-listing”
, the first difficulty is to
identify precisely what “
decision”
is at issue
here. “
V-listing”
is the term employed to refer to
the entry on the Department’s system of a note to the effect
that someone is a prohibited
person as contemplated in
section 29
of
the
Immigration Act or
has been declared undesirable by the
Director-General as envisaged by section 30(1) of the Act.
34
It is interesting to note that section 30(1) specifically envisages
an official decision, by an identified official, namely the
Director-General, to declare someone undesirable for any one of the
reasons stated in the section. Section 29 for its part,
however, does not charge any particular official with the power to
determine or declare whether someone is a prohibited person;
instead
it provides that “
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 resident’s permit”
and proceeds to list people in relation to which certain facts exist
(apparently objectively).
35
Counsel for the Department submitted that the effect of section 29
was to render someone prohibited “
by operation of law”
.
Literally speaking, and on the theory of objective legality, this may
well be so, but one still requires some official to
exercise some
power adverse to the foreigner in question to trigger this
provision. The answer appears to rest in section
8(1) which
reads as follows:
“
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 …”
36
It
appears from this section and from its interaction with section 8(3),
which sets out a procedure in relation to any decision
in terms of
the Act “
other
than a decision contemplated in sub-section (1)”
,
that decisions with respect to being deemed “
prohibited”
in terms of section 29 outside the ambit of being refused entry to a
port are at issue in section 8(1). Once an immigration officer
“
finds
any person to be an illegal foreigner”
,
this then triggers the procedure in section 8(1). With respect to
being declared undesirable under section 30, however, the provisions
of section 8(3) would apply. I am fortified in this conclusion
by my reading of the decision of the Constitutional Court
in
Koyabe.
[5]
37
As we have seen, the terse and uncorroborated apparently hearsay
evidence of the Deputy DG contained in paragraph 25 of the answering
affidavit refers to a note having been made of a V-listing because of
a fraudulent asylum seeker permit that rendered the applicant
prohibited in terms of section 29(1)(f). It does not help that
paragraph 31.2 of the answering affidavit states the following:
“
The applicant is
not entitled to the relief which he sought as he (sic) is V-listed as
an undesirable person in the country”.
38
Whether the reference to “
an undesirable person”
was loose in the context of the earlier reference to being prohibited
in terms of section 29(1)(f) is difficult to say in light
of the
absence of any material to assist the court in relation to the
decision with respect to which the alleged “
V-listing”
would be evidence.
39
The response from the applicant to reliance on the V-listing was to
say that it was inexplicable that there could be reference
to a
“
fraudulent asylum seeker permit”
, especially on
the 4
th
of June 2018, as the only asylum seeker permit
that was ever at issue was the original asylum seeker permit on the
strength of
which the applicant had entered the country. In this
regard, as already remarked, the applicant for some reason provides
no detail,
not even a date, in relation to this original asylum
seeker permit. Be that as it may, the submission is to the
effect that
the subsequent marriage of the applicant and subsequent
visas were subsequent administrative decisions that would have
superseded
and purged any unlawful act relating to the asylum seeking
or any decision that pertained to such unlawful act.
40
Although
not couched in these terms, I considered the applicant’s
position to be a collateral challenge to whatever decision
was hinted
at by the hearsay evidence in the answering affidavit relating to the
V-listing said to have been entered on the 4
th
of June 2018. Counsel for the Department submitted that this
was not an appropriate case for a collateral challenge such
as
addressed and canvassed in the decision in
Merafong
.
[6]
41
It was also submitted that any subsequent decisions on which the
applicant seeks to rely would have been issued in ignorance
of the
alleged fraud, and also in ignorance of the now admitted illegal
entry in April of 2015.
42
It is unfortunately entirely unclear from the papers what decisions
would have been made when, and which would have superseded
which, on
the basis of what.
43
It is not tenable for the Department to submit that it did not have
the “
opportunity”
to justify or set out the
reasons for any decisions that may have been the subject of review –
in answer to an application
such as the instant, whatever the
Department’s views as to its merits or prematurity, the
Department had every opportunity,
and duty, to set out the facts
fully with respect to whichever decisions were at issue.
44
One thing is clear, on these papers, nobody suggests that a decision
was duly communicated or issued in terms of section 8(1)
or in terms
of section 8(3) such as to trigger the domestic remedies provided for
in these two sub-sections.
45
Nevertheless, the power granted by section 18(1) is a power couched
in discretionary terms and, although I am prepared to accept
that the
bases upon which refusal could properly be granted would necessarily
be restricted, it appears inappropriate to me for
this court simply
to substitute the functions of the DG in terms of section 18(1) with
respect to this applicant, despite the woeful
evidence relating to
the existence of the relevant decision on which the alleged V-listing
was based. As already noted, any order
directing that a relative’s
visa be issued would in any event have needed to have been made
subject to compliance with the
financial assurance requirement of
s18(1) and the documentary prerequisites of Regulation 17(3), in
relation to which there was
no evidence in the papers.
46
I take my guidance from the
Koyabe
decision. It seems to
me that what is at issue, on the papers, is potentially a decision in
terms of section 29(1)(f) which,
if the Department believes it to
exist and can vouch for it, needs to be formally issued in terms of
section 8(1). As confirmed
in
Koyabe,
the issuing of
such a decision must be accompanied by reasons. Given the
provisions of section 8(2)(b), in terms of which
a person who has
requested a review of a decision issued in terms of section 8(1) (and
who is not one arriving by means of a conveyance
on the point of
departing), “
shall not be removed from the Republic before
the Minister has confirmed the relevant decision”,
it is
not appropriate to grant the ancillary relief sought by the
applicant, but rather to confirm the operation, pending the outcome
of any internal remedy the applicant wishes to follow, of section
8(2)(b).
47
In my view, in the present circumstances, it is not appropriate to
make any costs order.
ORDER
48
The following order is made:
1. The second respondent,
personally or through any duly delegated immigration officer, is
directed, in respect of any finding that
the applicant is a
prohibited person, to act in terms of the provisions of
section 8(1)
of the
Immigration Act 13 of 2002
with respect to the applicant and
any such finding.
2. The act of informing
on the prescribed form in terms of
s8(1)
shall be accompanied by
reasons.
3. The act of informing
and reasons referred to in 1 and 2 above shall be served on the
applicant through electronic service by
email to the applicant’s
attorneys of record at all three of the following email addresses:
peterjay@jayattorneys.com
;
zaskiabooysen@jayattorneys.com
;
legal@hswartattorneys.com
.
4. The period of three
days referred to in
section 8(1)(b)
of the
Immigration Act shall
commence upon the service to the last of the email addresses referred
to above, in the event that such service occurs on different
days.
5. Any confirmation of
the relevant decision by the Minister as contemplated in
section
8(2)(b)
shall be served on the applicant in the same way as directed
in 3 above.
6. The applicant shall
not be removed from the Republic before the Minister has confirmed
the relevant decision.
7. There shall be no
order as to costs.
FA
SNYCKERS AJ
16
September 2020
Date
of Hearing:
31 August 2020
Judgment
Delivered: 16 September 2020
APPEARANCES:
On
Behalf of the Applicants: AJ Swanepoel
Instructed
By: Jay Inc
Pretoria
On
Behalf of the Respondents: FH Mhambi
Instructed
By: State Attorney
Johannesburg
[1]
An application for leave to appeal against interim relief granted in
this case was dismissed in the Constitutional Court –
Minister
of Home Affairs v Johnson
2015 JDR 0576 CC.
[2]
It was accepted by counsel for the applicant in argument before me
that the prerequisites of
section 18(1)
(financial assurance) and
regulation 17(3)
(prescribed documentation) needed to be fulfilled
for purposes of a “renewal” – but submitted that
in practice
these were accepted and required for the initial grant
only.
[3]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004 (6) SA 222 (SCA).
[4]
See
Kuzwayo
v Representative of the Executor in the estate of the late Masilela
[2011]
2 All SA 599
SCA, para 28.
[5]
Koyabe
& Others v Minister for Home Affairs & Others (Lawyers for
Human Rights as amicus curiae)
2010 (4) SA 327 (CC).
[6]
Merafong
City v Anglo Gold Ashanti Ltd
2017
(2) SA 211
(CC).