- February 7, 2023
- |Administrative Law, Concise Law Reports (CLR)
Kitching v The Chairperson of the Immigration Selection Board NAHCMD (7 February 2)
In reviewed and seting aside the decision of the Immigration Board refusing the applicant’s application for permanent residence permit, the court disccused the folowing legal principles.
The starting point was section 26 of the Immigration Control Act provides for applications for permanent residence permits. The parties agreed that the only requirement in issue was the one set out in section 26(3)(d) of the Act. That being said, the court added that the issue does not relate to the whole of section 26(3)(d) as the particular sub-section can be divided into three further requirements that must be complied with. These additional requirements are:
- a) the applicant has sufficient means to maintain himself or herself and his or her spouse and dependent children (if any); or
- b) the applicant is likely to earn sufficient means to maintain himself or herself and his or her spouse and dependent children (if any); or
- c) the applicant has such qualifications, education and training or experience as are likely to render him or her efficient in the employment, business, profession or occupation he or she intends to pursue in Namibia.
The court considered the wording of the section within the general rule of construction. In that case, the words of a statute must be given their ordinary, literal or grammatical meaning. If by so doing, it is ascertained that the words are clear and unambiguous, then the effect should be given to their ordinary meaning unless it is apparent that such a literal construction falls within one of those exceptional cases in which it will be permissible for a court of law to depart from such a literal construction, for example, where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent (Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others (1) (APPEAL 432 of 2009) [2009] NAHC 94 (24 December 2009) at para 7).
‘[36] It is clear from reading the sub-section that the requirement operates disjunctive from each other because of the operative word or. The sub-section does not require an applicant to comply with all three requirements as it is read in the alternative. Yet the Board solely regarded the first requirement necessitating the applicant to have sufficient means to maintain himself, his spouse (if any), and children.’
In respect of the requirement of ‘sufficient means of sustenance’, the applicant audited statements setting out their financial position. The applicants further submitted their bank statements for the period of three months (April – June 2020) in support of their application. It appears that the Board regarded the starting balance and closing balance in respect of the three months in question and drew an inference in respect of the income to the disposal of the applicants. The Board was of the view, despite the information available to it, that the first applicant did not have sufficient means of sustenance, yet there is no guide as to what income amount would satisfy the requirement of the Act.
‘[40] In Viljoen v Chairperson of the Immigration Selection Board (A 149/2015) [2017] NAHCMD 13 (26 January 2017) where the court was faced with a similar situation, Parker J stated as follows:
‘[27] …The Board expected applicant to have presented information which, in my view though, would at best be speculative and at worse worthless. What kind of information – true information – can any human being produce to indicate truly what amount of money would be sufficient to maintain another human being over a period of time. Forget about predictions by economists about such matters. Their predictions are mere theorizing and suppositions: they are ex ante essentially. Even if, for arguments sake, what the Board sought was not speculative and worthless information. What could have prevented the Board to give a hearing to (Mr and Mrs Bosho) and request them to produce within a time limit proof of their earnings? This is what any reasonable administrative body which is minded to act fairly and reasonably and minded to apply its mind to the question at hand would do. On this score the Board did not act reasonably.’
[41] The financial position of the applicants served before the Board and the facts relating to their financial situation stand unchallenged. It is therefore difficult to understand on what basis the Board made the finding that the first applicant did not have a sufficient means of sustenance.
[42] Apart from the disposable income earned every month, the applicants are also owners of immovable property. Instead of considering that the applicants have immovable property in their favour, it would appear that it counted against the applicants. Ms Meyer advanced an argument that as the applicants still own property in their native country of South Africa, it indicates that the applicants have no intention of making Namibia their permanent home. There are absolutely no merits in the argument advanced.
[43] Ms Meyer further advanced an argument that the Board is not necessarily duty-bound to consider (as part of the financial proprietary of the Applicants) properties outside of the borders of Namibia, but rather properties owned within the country.
[44] If this is so, the question that begs an answer is whether such information is in the applicants’ knowledge and whether it could reasonably be expected from the applicants to have known?
[45] The Board clearly based its conclusion on unmentioned facts or assumptions which are based on the knowledge gained by its members over time and by virtue of their work. In my view, it would be incumbent on the Board to inform the applicants of such facts, assumptions and knowledge to afford them the opportunity to respond to it (Chairperson of the Immigration Selection Board v Frank 2001 NR 107 (SC) at 175F-176A).
[46] In the minority judgment of Chairperson of the Immigration Selection Board v Frank Strydom, CJ stated:
‘In the context of the Act, the process for the application of a permit was set in motion by the submission of a written application by the first respondent. If on such information before it, the application is not granted, and provided the Board acted reasonably, that would be the end of the matter. However, there may well be instances where the Board acts on information they are privy to or information given to them by the Chief of Immigration (see sec. 26(2)). If such information is potentially prejudicial to an applicant, it must be communicated to him or her in order to enable such person to deal therewith and to rebut it if possible. (See Loxton v Kendhardt Liquor Licensing Board, 1942 AD 275 and Administrator SWA v Jooste Lithicum Myne (Edms) Bpk, 1955(1) SA 557(A). However, where an applicant should reasonably have foreseen that prejudicial information or facts would reach the appellant, he or she is duty bound to disclose such information. (See Wiechers op. cit. P. 212.)’
[47] In the majority judgment, O’Lynn AJA stated as follows:
‘The principles of administrative justice requires that in circumstances such as the present, the Board should have disclosed such facts, principles and policies to the applicants for the resident permit and allowed an opportunity, to respond thereto by letter or personal appearance before the Board or both. This the Board had failed to do’.
[48] I am of the considered view that the applicant should have been given the opportunity to make representations regarding their financial position and immovable before the final decision was made.
In conclusion,
[49] It is trite that the Board should exercise its discretion in reaching a decision in a matter of this nature. However, in exercising its discretion, the Board must act fairly and reasonably and comply with requirements imposed in terms of Article 18 of the Namibian Constitution. In the current instance, the Board did not arrive at its decision fairly and reasonably.
[50] The Board did not exercise its discretion properly when it failed to consider several facts before making its final decision.
[51] These facts include the uncontradicted evidence of the financial position of the first applicant, the immovable properties at his disposal, the income generated from the said properties and the remainder of the requirements of s 26(3)(d) of the Act.’