B. Challenges and Representations on Immigration Appeals against refusals of Visas and Permanent Residence Permits
Statistically, the Department refuses the majority of visa and permanent residence applications, and worst of all this results in people having to wait months, if not years, for a negative outcome. This is highly unfair and unacceptable conduct.
Much of the refusals on the part of the Department are baseless and devoid of any legal substance and or the correct assessment of the factual matrix. It would be foolish to believe that the Department ‘get it right’ all the time. To the contrary, they ‘get it wrong’ most of the time.
Sadly, there is no quick fix to such poor decision-making and will remain a reality for the indefinite future, whether through the Department’s Head Office in Pretoria or at the various South African Missions abroad.
The ability to understand the technical legal provisions of the Act and the 2014 Regulations, and the wider laws relating to administrative and constitutional law all play a part in the objective preparation of legally compliant and quality assured appeal applications.
Note: It has been made clear in our courts in the matter of Director-General, Department of Home Affairs and Others v Link and Others (A324/18)  ZAWCHC 138;  4 All SA 720 (WCC); 2020 (2) SA 192 (WCC) (17 October 2019) that the Department is obliged to apply themselves properly when adjudicating any application and this requires that the decision in the event of a refusal must be clear and adequate to allow the recipient of a refusal to clearly discern the basis of the refusal.
In the matter, the court went on to hold that if the decision by the Department fails to properly make out a basis with reasons for its decision then such refusal can immediately be reviewed by our courts.
At Smiedt & Associates we will call on our client to supply the refusal letter to ourselves and then consider the merits of such refusal both in terms of the Act and the Regulations and such wider laws, if required, to assess its correctness in law and on the facts.
Often, the Department may apply the law correctly but fail to consider the facts correctly or vice-versa or mistakes are made by the Department both on the facts and the law.
Once we have satisfied ourselves of the merits of the refusal we will report to the client on our assessment and way forward. Where the Department has made a mistake in its decision, we will recommend the preparation of an appeal and seek to substantiate and reinforce, with additional evidence, if necessary, to make out an extremely compelling appeal.
If, however, the case is such that the refusal was correct on the facts and the law, we will advise our client accordingly and recommend making a new submission and not waste further time and resources investing in an appeal only to be disappointed.