Rejection and Appeals: What to do when your application has been rejected.

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Rejection and Appeals: What to do when your application has been rejected.


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Old 15th March 2015, 09:12 PM
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Default Rejection and Appeals: What to do when your application has been rejected.

Rejection and Appeals: What to do when your application has been rejected.

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.

Final remarks.
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.

Immigration Specialists South Africa
[email protected]

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Old 16th March 2015, 08:15 AM
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Hi Tony556,
I was told by my lawyer that when you renew a Visitor visa >30 days (TRP under section 11(6) in my case), if the original TRP was submitted overseas (2 years ago in my case), DHA treats your renewal application as a new one, not a renewal, and therefore you have to resubmit all the original documents which have to be current (e.g. all relevant foreign police clearance certificates have to be < 6 months). I dissected the Immigration regulations of 2014 and could not find any mention of that rule re. renewal: the way i read the regulations (and everyone else I ask including a friend who is an advocate in SA), you only need a SA police clearance certificate. Also, on their website VFS Global links to a "draft version" of the immigration regulations which is slightly different from the final one that can be found on the DHA website, as a consequence, people might get confused (including VFS staff themselves) since the rules re. via renewal are slightly different between both versions. I notified VFS about this issue 2 months ago but no change has been made on their website. would you know the actual rules for RENEWAL of visitor visa >30 days under section 11(6) when submitting from South AFrica while the original visa application was successfully submitted from a SA high commission overseas 2 years prior? Is there any clear section in the immigration regulations of 2014 pertaining to the renewal of a visitor permit >30 days treated as a new application by DHA ? I could not find any reference to any such rule but then again I am not a lawyer.
Thanks for your help

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Old 16th March 2015, 08:38 AM
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Hi Oceanracer.

It is true that when you apply for a Visa abroad the Local home Office will not have a copy of the documents you submitted. everything remains with the embassy,. However that is not the reason why you have to submit all the documents afresh

The rules regarding the renewal of any visa are governed by the Act, so i would not rely on any information provided for other than what is in the Act. For instance the information on VFS website on the renewal of the 11(6) is very misleading and incomplete and i have had many clients fall victims to this.

Now on the renewal of your 11(6), remember that your primary right is to reside with your SAC Spouse. so you need to prove that you are still in a good faith life partnership and share financial responsibilities, etc. So this means you have to comply with all the requirements of Reg 3 all over again. Then you include either your work endorsement or Business which ever the case may be.

On the subject of the police clearance certificate from your home country, the rule is that if you have not been to your country since your last police clearance certificate you do not have to provide a new one but simply declare that you have not returned since the last time. This ofcourse begs the question how long a stay is considered one sufficient for a new police clearance? its unclear but then again unless you tell the department you have been to your country they have no way of verifying this information.

i hope i have answered your question
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Old 16th March 2015, 08:39 AM
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Hi Oceanracer.

It is true that when you apply for a Visa abroad the Local home Office will not have a copy of the documents you submitted. everything remains with the embassy,. However that is not the reason why you have to submit all the documents afresh

The rules regarding the renewal of any visa are governed by the Act, so i would not rely on any information provided for other than what is in the Act. For instance the information on VFS website on the renewal of the 11(6) is very misleading and incomplete and i have had many clients fall victims to this.

Now on the renewal of your 11(6), remember that your primary right is to reside with your SAC Spouse. so you need to prove that you are still in a good faith life partnership and share financial responsibilities, etc. So this means you have to comply with all the requirements of Reg 3 all over again. Then you include either your work endorsement or Business which ever the case may be.

On the subject of the police clearance certificate from your home country, the rule is that if you have not been to your country since your last police clearance certificate you do not have to provide a new one but simply declare that you have not returned since the last time. This ofcourse begs the question how long a stay is considered one sufficient for a new police clearance? its unclear but then again unless you tell the department you have been to your country they have no way of verifying this information.

i hope i have answered your question

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Old 16th March 2015, 09:01 AM
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Hi Tony556,
Thanks for the feedback. When I submitted my renewal application, VFS Global (through their online system) actually insisted I had to re-submit ALL four (4) police clearances certificates (those are from all the countries I lived in since I turned 18 including the USA). As a consequence, I did not anticipate I needed those again but since I was also about to submit an application for a PRP I had already apply yet again for all my PCC, FBI, French, NZ and of course SA. This took some time and some PCC got stuck in JYB thanks to the postal workers illegal strike. I received my NZ PCC in Nov despite the fact it left NZ in July. Needless to say I could not wait any longer for all my PCC to expire one by one so in October I submitted my renewal application w/ what i had at the time (all PCC were good except the old NZ PCC I had was 7 month old). they rejected my application on the ground of PCC older that 6 months. After that I checked the Immigration regulations of 2014 which clearly state that I only needed the SA PCC (and I have not been in any of the 3 other countries since I moved to SA). Now I am still waiting for the result of my appeal which I believe should not have been in the first place.
I understand that the documents required for a renewal are as below (according to the regulation document available at the dha website dha.gov.za/images/final_Immigration_Regulations_2014_1.pdf):

“In respect of the renewal of a visitor’s visa for a period exceeding three months:
1. Valid passport which expires in no less than 30 days after expiry of the intended date of departure from the Republic
2 A medical report.
3 A radiological report.
4 Proof of a valid air flight ticket or proof of reservation thereof (or sufficient financial means to purchase such ticket or to facilitate the return of the applicant)..
5 Proof of sufficient financial means.
6 A South African Police Clearance certificate where the applicant has been resident in the Republic for 12 months and longer


This list indicates that only information and or circumstances that may have changed since the original application are needed for processing by the Department. Therefore police clearance certificates from foreign countries are not necessary. The last sentence of the regulation 1(c) is clear as it states that “Provided that the certificate shall not be required from a foreign country in the case of renewal or extension of a visa but from the Republic;”.
It would, quite logically, appear that foreign police clearance certificates are not required for an extension or TRP and DHA’s rejection letter was unsubstantiated.

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Old 16th March 2015, 09:20 AM
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Hi Oceanracer

Your are quite right about the incorrect decision and i think this is typical example of an arbitrary decision by the Department, which will undoubtedly be successful on appeal unless they are smoking something else in Pretoria.

In terms of how long you will have to wait for that outcome your guess is as good as mine.

We will be publishing an article on what your options are when faced with an excessive delay in the coming days hopefully that will be of some value to you.

On The PRP you have to submit all PCC once more , the requirements on that application are very strict. so do not take any chances there
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Old 16th March 2015, 09:40 AM
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Thanks a lot for the info Tony556,
I thought I was correct in my evaluation of the situation, however my lawyer thought otherwise and insisted that the DHA's rejection decision had merit and I had to re-submit all 4 PCC <6 months in the first place as required by VFS with my renewal.
I was getting nervous about my appeal not going through since, according to the lawyer, my argument was flaw. I did put my new NZ PCC with my appeal anyway to prove my good faith. I am not worry about what they might smoke in Pretoria, I just wonder if they know any of the regulations or can even read! In the mean time, we are paying for their mistakes (incompetence) in time, lost business opportunities (in my case since I cannot leave the country until it is sorted) and lawyers' fees.
Thanks again for your comments and looking forward to your next posting on "options when faced with an excessive delay". cheers

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Old 16th March 2015, 10:08 AM
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Hi Tony,

Thank you so much for your post.

I am a bit confused regarding a few points.

You say that an appeal is not a time to submit more documents correct? But merely for DHA to reconsider what was submitted in the first place.

My TRP was rejected because of a missing SA police clearance and I was advised to obtain one (8weeks!!!) and then appeal including the police clearance. Was that not the correct way?

There are communications online from DHA where students who had visa rejected because of missing police clearances are told to appeal including the police clearance?

Am I missing something here?

Thanks a million

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Old 16th March 2015, 03:21 PM
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Hi Moto80.

The primary basis of Appeal and review proceedings is a Judicial process of Review. This process has been given expression through another Act known as the Promotion of Administration of Justice Act(PAJA). So on appeal you are saying to the person being asked to review the matter, that the first decision is incorrect because there is a defect in the decision make process. either the decision maker , was biased, or did not apply his or her mind to the matter properly or the decision is Arbitrary.

in practice however people use the appeal as an opportunity to cure a defect in the original application. And many have been fortunate not to be penalised for this. There is nothing stopping the DG or Minster from saying the decision to reject is correct and still stands. There may come a day when your appeal falls on to the desk of a well trained and legally astute mind who will be able to apply the principles correctly and in that instance the rejection will be final.

Im does that clarify your question? see the definitions below

Appeal -Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law. - legal dictionary

Review- To reexamine judicially or administratively; a judicial reconsideration for purposes of correction, for example, the examination of a case by an appellate court.

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Old 16th March 2015, 03:34 PM
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Thank you

I can see what you mean but I am hopeful that my appeal will go through especially based on the letter from DHA encouraging students to appeal due to missing Police Clearances.

Also VFS and DHA both told me to follow the appeals procedure and add the extra document.

VFS should never have allowed my first application go through the quality control procedure without a SA PC. I know that now

Regards

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