Permanent residence permits
16 January 2023 17:00 by Merilyn Kader
In Hoque and Others v Minister of Home Affairs and Another  4 All SA 129 (WCC), rejection of applicant’s application for a permanent residence permit not just and equitable, decision by minister therefore set aside.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Immigration - Permanent residence permits: The applicants in Hoque and Others v Minister of Home Affairs and Another  4 All SA 129 (WCC) were Bangladeshi nationals seeking permanent residence in South Africa. The first applicant had obtained a general work permit. On expiry of that permit in 2019, he applied for a critical skills visa. In 2015, the first applicant had applied for a permanent residence permit in terms of s 26(a) of the Immigration Act 13 of 2002. The second applicant, applied for a permit in terms of s 26(b) on the basis that she was married to the first applicant, and two of the minor children, applied for permits in terms of s 26(c). The refusal of the applications gave rise to the litigation. The applicants sought –
- condonation of the delay in instituting their application;
- a declaration that the first applicant was not a prohibited person in terms of s 29(1) of the Immigration Act; and
- the review and setting aside of the respondents’ decisions in rejecting the applications for permanent residence permits.
Did the Minister act lawfully when he rejected the first applicant’s application for a permanent residence permit? The court found that the respondents had failed to place sufficient evidence before the court to justify the impugned decisions, and the review relief sought by the applicants had to succeed.
Section 8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) allows a court in proceedings for judicial review to grant any order that is just and equitable, including orders setting aside the administrative action and varying it, instead of remitting the matter for reconsideration by the original decision-maker. The court decided that this was a matter in which it should substitute a decision.
Section 7(1) of PAJA requires applications for judicial review to be brought within 180 days of the impugned decision. The court was satisfied that it would be in the interests of justice to extend the 180-day period prescribed to allow for the consideration of the review relief sought by the applicants. It was declared that the first applicant was not a prohibited person (s 29(1) of the Immigration Act), and the second respondent was directed to issue permanent residence permits to the applicants.
Merilyn Rowena Kader
Legal Editor at LexisNexis