A couple from the Democratic Republic of Congo are no longer listed as “prohibited persons” after they were victorious in their bid at the Western Cape High Court.
The couple were accused of having obtained visas fraudulently after applying for temporary asylum seeker and work permits in 2016.
That year in April, the wife had applied for the permit which authorised her to work in South Africa. She then obtained employment and thereafter obtained a work visa through an agent recommended by work colleagues.
According to court documents, her employer at the time questioned the legitimacy of the permit as the date of issue reflected 2015 but after a verification process, the Department of Home Affairs “reported that the work visa was not issued by it and was a fraudulent document”.
With regard to the husband, he had been studying in Cape Town in 2013 when he applied for a permanent resident permit through a friend for which he had paid R13 000.
According to court documents, at no stage was the husband aware that there was anything irregular about the application. Once he obtained the permit, he travelled internationally many times without difficulty and also presented the permit without difficulty to the department when registering the birth of his daughter.
In both cases, neither of the two were afforded a hearing, notice or reasons prior to their prohibition.
This comes despite the fact that the wife was also instrumental in having an agent arrested for issuing her a fraudulent visa.
Court papers read: “On 3 November 2018, she left South Africa for the DRC where she met Mr Mosenga who assisted her in obtaining a new visa which she refers to as the 2018 visa. When she went to the airport in Lubumbashi, the officials there told her that this visa too was fake. She then filed criminal charges against Mr Mosenga. At the request of the police in Lubumbashi, she asked Mr Mosenga to meet her near the Consulate and when he did, he was arrested in her presence.”
In 2021 the husband applied to the director-general of the department to overturn his prohibition but his efforts were stubbed when his application was rejected in September 2021.
In his reasons rejecting the application, according to court records, the DG had said: “There is no evidence in your representation to prove that you were a victim of fraud. The fact that you travelled in and out of the country with your permanent residence permit uninterrupted does not exempt you from the provisions of section 48 of the Immigration Act 13 of 2002.”
Judge Yasmin Meer said: “I agree with the applicants that by not receiving notice or not being afforded an opportunity to make representations, the process by which the applicants were declared prohibited persons was unfair and unlawful, being contrary to PAJA.”
Cape Times