Cape Town - The Western Cape High Court has granted a second chance to a man declared a “prohibited person” by the Department of Home Affairs (DHA) to have his status reconsidered after it emerged that the reason for the declaration was based on an error.
Robert Arthur, who holds dual British and Canadian citizenship, was flagged as a “prohibited person” after he applied to the DHA for permanent residence and it was discovered that he had been issued with a fraudulent temporary retired person’s visa in May 2017 through an immigration agency he had used.
After being prohibited from re-entering South Africa from abroad, Arthur applied to the director-general (DG) to lift his prohibited status in terms of the Immigration Act.
In his application, Arthur said he had paid the agency R80000 for his retired person’s visa and his permanent residence applications and went on to attach what he said was proof of payment.
However, the proof of payments attached to the application were incomplete as they only related to his payments to the agency for his permanent residence application in late 2017 and not for his temporary retired person’s visa.
All that the DG had before him, when he decided the application, was Arthur’s assertion that he was innocent of the fraud and an incorrect claim that, attached to the application, was the proof of payments for his retired person’s visa.
The DG did not grant the application and notified Arthur on July 6, 2022 that his application had been unsuccessful.
The DG gave three reasons for his decision, including 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.
However, it turned out the DG was wrong in this instance because he checked the incorrect number through the system.
Acting Judge Kate Hofmeyr said: “The law is clear: once a bad reason plays a material role in the decision under attack, it is not possible to conclude that there is a rational connection between the decision and its reasons.”
As a result, Judge Hofmeyr reviewed and set aside the DG’s July 2022 decision to refuse Arthur’s application and it was agreed that Arthur would be given an opportunity to supplement his application and the DG would then be given 60 days to consider it and make a decision.