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

Source: Sa Migration, 25/09/2017

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 wise to seek
the aid of a professional to assist you.
Final remarks.
. 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.
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