Court name
High Court Main Division
Case number
APPEAL 207 of 2015
Case name
Mashozhera v The Chairperson of the Immigration Selection Board
Media neutral citation
[2016] NAHCMD 38
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 207/2015


DATE:
25 FEBRUARY 2016


REPORTABLE


In
the matter between:


TAFADSWA
HASTINGS
MASHOZHERA
.....................................................................APPLICANT


And


THE
CHAIRPERSON OF THE IMMIGRATION


SELECTION
BOARD.......................................................................................FIRST
RESPONDENT


THE
CHIEF OF
IMMIGRATION..............................................................SECOND
RESPONDENT


Neutral
citation: Mashozhera v The Chairperson of the Immigration
Selection Board
(A 207/2015) [2016] NAHCMD 38 (25 February 2016)


Coram:
PARKER AJ


Heard:
20 January 2016


Delivered:
25 February 2016


Flynote:
Immigration – Permanent residence – Requirements for
– Applicant averring he satisfied the requirement that he has
such qualifications, education and training and experience as are
likely to render him efficient in business he intended to pursue –
Averment made by applicant’s counsel during hearing of matter –
Copy of application applicant made to first respondent’s Board
not placed before court for the court to determine if such
information was placed before the Immigration Selection Board –
In any case court found that applicant was an illegal immigrant
within the meaning of Act 7 of 1993, subsec 1, read with sebsec 2 of
s 39 – For that reason Board not competent to authorize issue
of permanent resident permit to applicant in terms of Act 7 of 1993 –
It will be offensive of the Act as it would defeat the object of the
Act and thwart the intention of the Legislature if the Board was
ordered to authorize the issue of a permanent resident permit to the
applicant – Consequently, the application was dismissed with
costs.


Summary:
Immigration – Permanent residence – Requirements for –
Applicant averring he satisfied the requirement that he has such
qualifications, education and training and experience as are likely
to render him efficient in business he intended to pursue –
Averment made by applicant’s counsel during hearing of matter –
Copy of application applicant made to first respondent’s Board
not placed before court for the court to determine if such
information was placed before the Immigration Selection Board –
In any case court found that applicant was an illegal immigrant
within the meaning of Act 7 of 1993, subsec 1, read with sebsec 2 of
s 39 – For that reason Board not competent to authorize issue
of permanent resident permit to applicant in terms of Act 7 of 1993 –
Applicant failed to place before court the prescribed application he
submitted to the first respondent’s Board – Court
therefore not in position to determine whether information now placed
before he court in counsel’s submission about applicant being
likely to earn sufficient means to maintain himself and his family
was placed before the Board for the Board’s consideration –
Court found that the applicant was an illegal immigrant and was
therefore precluded from being issued with any of the permits
prescribed by Act 7 of 1993, including permanent residence permit,
just as an illegal immigrant could never so long as his or her
residence in Namibia remained unlawful acquire citizenship of Namibia
– Consequently, application dismissed with costs.


ORDER


The
application is dismissed with costs, including costs of one
instructing counsel and one instructed counsel.


JUDGMENT


PARKER
AJ:


[1]
This matter concerns an application to review the decision of the
Immigration Selection Board (‘the Board’) to reject the
applicant’s application for a permanent resident permit (‘PR
permit’) referred to in s 26 of the Immigration Control Act 7
of 1993. The respondents have moved to reject the application.


[2]
An earlier such application was similarly rejected. An application to
review that decision was not pursued to its conclusion because the
dispute between the parties was settled on condition that the Board
reconsidered its decision. The Board did so, and in the process
invited the applicant to make oral representation to the Board. After
reconsidering the application, the Board rejected the application
once more. It is that decision which is the subject matter of the
instant proceedings.


[3]
It is important to note, as will become apparent in due course, that
the applicant filed a supplementary affidavit after having sought and
obtained further documents in terms of the rules of court.


[4]
The decision of the Board is contained in a letter dated 19 May 2015,
and reads in material parts as follows:


1.
After granting applicant an opportunity to be heard, the permanent
residence permit was rejected.


2.
The applicant has not met the requirements of Section 26(3)(d) of the
Immigration Control Act, in that he has not satisfied the Immigration
Selection Board that he has sufficient, or is likely to earn
sufficient means of sustenance. Applicant’s only source of
income is the salary he gets from NAMFISA while on a temporary
residence permit viz employment permit. Should the salary from
NAMFISA cease, he will have no income; NAMFISA has not offered
applicant any permanent position.’


[5]
Thus, the applicant’s challenge to the Board’s decision
is based solely on the following, according to Mr Tjombe, counsel for
the applicant: Section 26(3)
(d)
of Act 7 of 1993 prescribes three alternative requirements which an
applicant for a PR permit must satisfy. I agree. They are that the
applicant must establish (a) that he or she has sufficient means to
maintain himself or herself and his or her spouse and dependent
children, if any (‘requirement 1’); or (b) that he or she
is likely to earn sufficient means to maintain himself or herself and
his or her spouse and dependent children, if any (‘requirement
2’), or (c) he or she 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 (‘requirement 3’).


[6]
According to Mr Tjombe, the Board rejected the applicant’s
application solely on the ground that he had failed to satisfy
requirement 1, without the Board considering any of the other two
alternative requirements. In this regard, counsel submits that the
applicant did place information before the Board tending to show that
he was ‘a competent auditor, in possession with (of) the
required qualifications, education, training and experience’,
and the applicant ‘would (be) likely (to) be efficient in his
employment or profession which he intends to pursue in Namibia
(requirement 3)’. Counsel submits further that ‘the
Immigration Selection Board failed to consider that Mr Mashozhera
(applicant) is likely to earn sufficient means to maintain himself
and his family (requirement 2)’.


[7]
The respondents’ opposition to the instant application is based
on a number of grounds. As I see them, they are based on the
interpretation and application of the relevant provisions of Act 7 of
1993. The grounds were articulated by Mr Namandje, counsel for the
respondents. They are as follows: (a) ‘The applicant failed to
allege and prove that he has, in a prescribed application, satisfied
the Board that he has fulfilled the requirements under s 26(3) of Act
7 of 1993. The second ground is this: ‘The applicant by virtue
of the provisions of section 39(1) and (2)
(h)
of the Act had since become a prohibited immigrant when his last work
permit expired on 31 October 2015’. ‘In such
circumstances’, so submits Mr Namandje, ‘the first
respondents’ board will be precluded from authorizing the
issuance of the permanent residence permit to him by virtue of
provisions of section 25(5)
(b)(iii)
of the Act’.


[8]
Looking at the object of Act 7 of 1993, as spelt out in the long
title and the intention of the Legislature as can be gathered from
the Act itself, I am prepared to hold that a person who is an illegal
immigrant in Namibia, within the meaning of subsec 1, read with
subsec 2, of s 39 of Act 7 of 1993, is precluded from being issued
with any of the immigration permits prescribed by that Act, that is,
an employment permit, and a permanent residence permit, just as an
illegal immigrant could never, so long as his or her residence in
Namibia remained unlawful acquire citizenship of Namibia (See
Minister of Home Affairs v Dickson and
Another
2008 (2) NR 665 (SC) at 683F.)
It follows that an illegal immigrant is precluded from being issued
with any of those permits. Thus, in the instant case, if I found that
the applicant is a prohibited immigrant, as Mr Namandje submitted,
then the Board is not competent to authorize the issue of a PR permit
to the applicant.


[9]
It is not disputed that the applicant’s last work permit
expired on 31 October 2015. The applicant bears the onus of placing
sufficient and relevant evidence before the court in order to succeed
in his application. For instance, it is critical for the applicant to
establish that he is not a prohibited immigrant in Namibia. It must
be remembered that the applicant has been aware since 14 January
2016, when he received the respondents’ legal representatives’
heads of argument, that this is one of the legal contentions that the
respondents would make during the hearing. Nothing prevented the
applicant from applying to the court to file further affidavits to
counter the respondent’s legal contentions.


[10]
I allowed the making of the legal contentions because they arise from
the facts alleged on the papers (
Swissborough
Diamond Mines v Government of the Republic of South Africa

1998 (2) SA 279 (T) at 324H-I). And it has been held, ‘Any
party is entitled to make any oral legal contention open to him on
the facts as they appear on the affidavits’.  (
The
Municipality of Walvis Bay v The Occupiers of the Caravan Sites at
the Long Beach Caravan Park Walvis Bay Republic of Namibia

2005 NR 207 (HC) at 208H-209A). If the respondents were entitled to
make their legal contention orally arising from the facts, they are
even more entitled to make such legal contention in writing in the
heads of argument of their legal representative which was filed and
was received by applicant’s legal representative some six days
before the hearing. In that event, it can be said that the applicant
was given sufficient notice and ample time to take the necessary
steps to counter the respondents’ legal contention. But he did
nothing to challenge that contention.


[11]
Thus, in the absence of any challenge to the respondents’ legal
contention that the applicant is an illegal immigrant in terms of Act
7 of 1993 and none is readily apparent on the papers, I must accept
the respondents’ legal contention and find – as I do –
that the applicant is an illegal immigrant in Namibia, according to
Act 7 of 1993.


[12]
According to s 39(1) of that Act –


(1)
any of the persons referred to in subsection (2) who enters or has
entered Namibia or is in Namibia, shall be a prohibited immigrant in
respect of Namibia.’


[13]
It follows that the applicant is a prohibited immigrant in Namibia on
the basis that the applicant is not ‘entitled to be or to
remain in Namibia’ in terms of Act 7 of 1993. On the basis that
his employment permit expired as at 1 November 2015. And there is
nothing on the papers tending to show that the applicant was on any
other permit allowing him to be or to remain in Namibia lawfully in
terms of Act 7 of 1993. It will, therefore, be offensive of the Act
as it would defeat the object of the Act and thwart the intention of
the Legislature if the Board was ordered to authorize the issue of a
PR permit to the applicant – an illegal immigrant.


[14]
Having so concluded, the application must be dismissed without any
further enquiry into whether the decision of the Board rejecting the
applicant’s application is correct or wrong. In any case, on
the issue as to whether the applicant satisfied any of the three
requirements prescribed by s 26(3)
(d)
of Act 7 of 1993, as Mr Namandje submitted, the application on a
prescribed form in terms of Act 7 of 1993 that the applicant says he
submitted to the respondents (or a copy of it) is not before the
court; and so, the court would not be in a position to determine what
information the applicant had placed before the Board. In the absence
of the application, it would be unjustified and unjudicial for the
court to assume that the applicant placed before the Board the
information relating to requirements 2 and 3 (see para 5 of this
judgment), which is now canvassed by Mr Tjombe during the present
proceedings.


[15]
Based on all these reasons, I refuse to grant any of the relief set
out in the notice of motion. It follows inexorably that the
application fails; whereupon, I make the following order:


The
application is dismissed with costs, including costs of one
instructing counsel and one instructed counsel.


C
Parker


Acting
Judge


APPEARANCES


APPLICANT:
N Tjombe


Of
Tjombe-Elago Inc., Windhoek


RESPONDENTS:
S Namandje


Instructed
by Government Attorney, Windhoek