Cape Town - A Russian woman who was declared a prohibited person after she was found in possession of a fraudulent work visa, has won her court bid against the Department of Home Affairs with costs, to remain in the country pending her application for status.
“The second respondent (Director General, Department Home Affairs) is directed to authorise the first applicant, in terms of section 32(1) of the Act, to remain in the Republic pending her application for a status, and such authority shall be given within 10 days of being served with this order,” Western Cape High Court Judge Matthew Francis ruled.
The woman arrived in South Africa in 2010. She was sought out in Moscow, Russia, to be a dancer at the Mavericks Revue bar in Cape Town and, to that end, obtained a work permit at the South African Embassy in Moscow to take up this work position, according to court papers. The work permit was issued in 2010 and was valid until July 2013.
Prior to her work permit expiring, she successfully applied for a study visa, or “study permit” as it was then known, to study business management using the services of an immigration consultant, to make the application.
For all permits thereafter she continued using the services of immigration consultants.
However sometime in 2011 after she met her partner and moved in with him in 2014, she submitted an application for a spousal visa together with a request for work authorisation in terms of section 11(6) of the Immigration Act.
On November 22, 2018, the visa application was rejected on the basis that she was in possession of a fraudulent visa.
Later that month she was arrested and incarcerated at the Somerset West Correctional Services Prison on fraud charges.
She however argued that it was only when she was arrested that she became aware that the work visa obtained on her behalf by one of the consultants, and issued by the Department, was obtained fraudulently.
Being in possession of a fraudulent visa, she was then declared a “prohibited person”.
On December 19, 2018 she was released on bail and the case was eventually provisionally withdrawn.
In February 2019, she submitted an appeal to the DG against the Department’s rejection of her application for a spousal visa. However, the appeal was again rejected.
On May 17, 2021, she launched a court application to review the DG’s decision.
The application was granted and the impugned decision was remitted to the DG for reconsideration.
However the DG again dismissed her representations, contending that she had previously obtained a visa, she should have been conversant with the Department’s processes, among others.
However, Judge Francis found: “The DG must have regard to all the facts placed before him by way of representations when exercising his discretion under section 29(2) of the Immigration Act.
“Nowhere in the reasons provided by the DG is there any indication that the DG, or his officials pursued or attempted to investigate the first applicant’s explanation.
“If the first applicant is forced to return to Russia without (her children), a real risk exists that the minor children may become alienated or estranged from her since there is no guarantee when (or indeed if) she will be able to return to South Africa given Russia’s current state of war.”
“On the undisputed facts before this court, the applicant is an innocent party and the fact that she was in possession of a fraudulent passport, should not be held against her.”
The DHA did not respond to requests for comment by deadline on Tuesday.
Cape Times