- February 7, 2023
- |Administrative Law, Concise Law Reports (CLR)
The first applicant is the the General Manager: Building of Nexus Group Holdings (Pty), a wholly owned Namibian company, involved in the construction business who had been so employed since 2015, based on on employment permits, which have been renewed regularly. The current employment permit expires on 4 October 2023. In July 2020, the applicants, as a married couple of South African citizenship launched an application for permanent residence permits in their names and on behalf of their three minor children. However, in January 2021, the applicants were informed via a letter drafted by the first respondent, the Immigration Selection Board, that their application was rejected. The reason advanced was ‘s 26(3)(d), insufficient means of sustenance. The applicants appealed to the second respondent, the Immigration Selection Board, to reconsider the application. On 17 August 2021, the first respondent responded, in writing, to the appeal filed by the applicants, informing them that:
‘Your PRP application is rejected, the Board maintains its previous decision that stated that, applicant does not meet the requirements of Section 26(3)(d) of the Immigration Control Act 1993, in that applicant has no sufficient means of sustenance.’
The applicants launched the current application in November 2021, challenging the reasons for the rejection. The basis of the applicants’ application was that they should have been issued permanent residence permits on the basis that the first applicant met the requirements set out in section 26(3)(a) to (e) of the Act. The respondents’ defence was that the Immigration Selection Board was entitled to reject the applications for permanent residence because the applicants have not met the requirement that the applicants have sufficient means of sustenance.
PRINSLOO J set out to determine the following issues
‘[31] Whether or not the Board applied their mind to the applicants’ application for the permanent residence permit, particularly if the applicants’ financial information was adequately considered.
[32] Whether the Board was entitled to reject the applicants’ application for permanent residence permits on the basis of ‘insufficient means of sustenance’ whilst not factoring in the further requirements contained in s 26(3)(d) of the Act.’
In considering those issues, the court analyzed the provisions of the Act and authorities, and held that:
- The court was of the considered view that the applicant should have been given the opportunity to make representations regarding the conclusion before the final decision was made.
- 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.
- Held further that the Board did not exercise its discretion properly when it failed to consider several facts before making its final decision.
As a result, the decision refusing the applicants’ application for permanent residence permit is reviewed and set aside, with costs of the application, the one paying the other to be absolved. The respondents were directed to take the necessary step to ensure that the Immigration Selection Board reconsider the applicants’ application for a permanent residence permit in a lawful and procedurally fair manner within 30 days from date of the court order.