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

Source: SA Migration, 09/05/2018

Home Affairs : Rejection and Appeals: What to do when your
application has been rejected.
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.
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) and deals primarily with
decisions to refuse entry to a foreigner at a port of entry. These
sections are often very contentious
Legal Basis of appeals and reviews
The above section provides that any adverse decision by the
Department must be communicated in writing with reasons.
For this reasons applicant 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. When can a Decision be appealed? An
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.
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.
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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