Prohibited Persons and being undeclared

The Immigration Act and the Department of Home Affairs abhors fraudulent documents. Section 29(1)(f) provides ; The following foreigners are prohibited person and do not qualify for a port of entry visa, admission into the republic , visa or a permanent residence permit … anyone found in possession of a fraudulent visa, passport , permanent residence permit or identification document. Section 49(14) and 49(15) makes the use or attempted use of or uttering of any fraudulent document for the purpose of entering remaining in or departing from and residing in the republic a criminal offence, of which a person on conviction is liable to imprisonment of up to 15 years. So when one finds him of herself in possession of a fraudulent document how does one comeback from this immigration abyss?

 

 

There are two paths to rehabilitating yourself when you have been rendered a prohibited person for using or attempting to use or uttering a fraudulent visa, permit or Identity document. Section 29(2) makes provision for the Director General on good cause declare that person is no longer a prohibited person. This is done by way of submitting an application to Director General setting forth good cause why the person should be removed from the prohibited persons list.

 

Another avenue is in terms of section 32 of the Immigration Act and Regulation 30. Section 32 is an appropriate route in the event that the person is still in the country and looking to apply for a new visa. Regulation 30 provides 3 tests, that a person is an illegal foreigner, who has neither been arrested for the purpose of deportation nor been ordered to leave and who wishes to apply for a status after the expiry of his or her status.

 

Section 32 is applicable because by virtue of being in possession of a fraudulent permit or visa and have not been arrested ordered to leave then you meet the criteria under section 32.

 

The next criteria is that the person would need to show good cause why you failed to renew your previous visa. This would include the circumstances that led to you being in possession of fraudulent document. Often people are victims of an elaborate immigration scam and their permits would have worked for few times and so would be unaware of the fraudulent nature of their status until it is brought to their attention. They are as much victims of the fraud as is the state. It is important to be able to prove definitively that a third party was at play and in our experience, this works to the persons advantage.

 

The last criteria would be proof that the person is eligible for the visa that they intend to apply for. This is submitted in the form of all the required documents for the respective visa.

It is important to highlight that immigration issues of this kind do not go away with time. The Department will always discover that a person’s status is fraudulent or obtained in a fraudulent manner. So tackling these head on will be the best approach to any similar situation. The effect of coming forward to attempt to regularise your status is better than not doing anything. Any good faith effort to rehabilitate your status will certainly mitigate risks of being criminally convicted and will count as a positive in an application to remove the prohibited person status. It is also accepted that not every case can be rehabilitated.

 

www.samigration.com


The declaration of undesirability

On the 26th of May 2014 the Department of Home Affairs (the ‘Department’) showed its intent to amend the existing immigration laws that had been in effect since the 1st of July 2005.

Without any transitional period, the Department made it patently clear that a foreigner who overstays, as set out in the Immigration Regulations 2014, would no longer be sanctioned by a mere fine on departure, but rather by a compulsory and non-discretionary declaration of undesirability and on ban on any such foreigner from returning to South Africa for up to 5 years.

Therefore a foreign applicant departing South Africa who:

  • Has a previous visa and has renewed or changed status of same in South Africa and has a pending application attributed solely as a result of the Department’s inefficiency in failing to adjudicate expeditiously;
  • Has South African relatives remaining in South Africa despite he or she being the spouse, parent, child or dependent minor relative of a South African citizen or permanent resident;
  • Has overstayed through no fault on medical grounds;
  • Has overstayed due to simply ignorance or fault.

All the above cases would all be treated exactly the same since there is no discretion in the application of an overstay in the departure out of South Africa and being declared undesirable up to 5 years.

The immigration laws – section 30(1)(h), regulation 27 & directive 9

On the 26th of May 2014, the Department sought to repeal the Immigration Regulations of 2005 and introduced a series of statutory amendments to the Immigration Act of 2002, as amended, and to the previous Immigration Regulations of 2005.

Regrettably, in light of the severity of the effect of the new laws, very little consultation with the public and its own immigration advisory board took place by the then Minister Naledi Pandor and in so doing turned the face of our immigration policy on its head.

The introduction of new draconian sanctions, not only affecting those foreigners leaving South Africa for various reasons, but so too local South Africans – with the declaration of being determined to be an ‘undesirable’ person in terms of section 30(1)(h) of the Immigration Act 13 of 2002, as amended, read together with Regulation 27 of the Immigration Regulations, and most significantly, Directive 9 issued by the Director-General of Home Affairs.

So how do I become undesirable?

The effect of the 2014 Regulations and especially Directive 9 will now empower and instruct the immigration officials at the international airports and border posts of South Africa to impose a declaration of undesirability that will effectively bar the re-entry into South Africa for a fixed period of time before re-entry.

Any foreigner, no matter what the circumstance or context is, who has then overstayed, will on departure in terms of section 50(1), 30(1)(h) of the Act, read with Regulation 27 and Directive 9 be declared undesirable and issued with a Form 19 to confirm the declaration.

Can I appeal the undesirability and return to South Africa?

As outlined above, any foreigner who has overstayed, will as a matter of course be declared undesirable for a period of up to 5 years.

What the Department has allowed for is an appeal mechanism to the Director-General within 10 days or to the Minister of Home Affairs without a defined time period.

It was evident that after a mere few days of operation that the new laws on undesirability and imminent litigation by immigration law firms, like ourselves, against the Department they introduced a more visible and transparent internal appeal mechanism to those affected by such new laws.

In this way those foreigner who have been declared undesirable can now appeal and ventilate their case with the Department in a more transparent manner as to whether the ban should be lifted or not. And, as importantly, in a reasonable period of time.

Of course, it is not obligatory on the Department to lift the undesirability or in fact have the matter adjudicated in a short space of time.

www.samigration.com


Hackers Steal $600 Million in Likely Largest DeFi Crypto Theft

The Tether logo is seen on a smartphone in this arranged photograph taken in Washington, D.C., U.S., on Tuesday, Dec. 5, 2017. Tether, which started trading in 2015, is described as a stable alternative to bitcoin's wild price swings.

Hackers perpetrated what is likely the biggest theft ever in the world of decentralized finance, stealing about $600 million in cryptocurrency from a protocol known as PolyNetwork that lets users swap tokens across multiple blockchains. 

Tens of thousands of people are affected by the hack, PolyNetwork said in a letter posted on Twitter. About $33 million of the stablecoin Tether that was a part of the theft has been frozen by Tether’s issuer, making it unavailable to the attacker.

It isn’t clear from the PolyNetwork website who runs the protocol, which governs transactions that run on the application. DeFi, or decentralized finance has surged in popularity in the past few years in the wake of a boom in the development of applications that let people trade, borrow and lend funds to each other without intermediaries.

Security researcher SlowMist said it has found the attacker’s email, IP address and device fingerprints, the team reported on Twitter. It added that “this is likely to be a long-planned, organized and prepared attack.” Crypto exchanges including Binance are involved in helping PolyNetwork, Binance Chief Executive Officer Changeng Zhao said on Twitter.

“The hacker has begun to use decentralized exchanges to convert the stolen assets into other assets, including stablecoins,” Tom Robinson, co-founder of Ellitic, said in an email. “Tokens such as stablecoins can in theory be seized by their issuers, which could lead to them being returned to their rightful owners. However this isn’t possible for the stolen Ether, although it may be possible to seize these funds if they are sent to a centralized exchange to be cashed-out.”

With DeFi apps attracting billions in investor funds, they’ve also become frequent targets of attacks. This year, DeFi-related hacks made up more than 60% of the total hack and theft volume of crypto attacks, up from 20% in 2020, according to crypto security company CipherTrace. At $156 million, the amount netted from DeFi-related hacks in the first five months of 2021 already surpasses the $129 million stolen in DeFi-related hacks throughout all of 2020, CipherTrace said.

About $80 billion is locked in DeFi applications, making them an attractive target, according to tracker DeFi Pulse.

www.vsoftsystems.co.za


Australia still suffering critical skilled worker shortages despite decades of mass immigration

Nades and Priya Murugappan made a fundamental mistake when they separately fled to Australia from Sri Lanka almost a decade ago.

The pair, who met at the meatworks in Biloela on Queensland's Capricorn Coast and now have two children, lived in the town for four years.

They were on temporary protection visas before they were detained and sent to Christmas Island awaiting deportation.

Since 2019, they've existed in a guarded compound under 24-hour surveillance with daughters Kopika and Tharnicaa in an operation that has cost taxpayers more than $6 million.

Rather than flee their home country by boat, they instead should have applied for a skilled worker or student visa. It's a pretty certain bet they would have received one.

A quick flick through the Skilled Occupation List for workers from abroad shows everything from carpenters to chief executives, chefs and composers, clothing trade workers. And that's just the Cs.

The list seems to go on forever.

And even if your chosen occupation is removed, never fear.

"Pending nomination and/or visa applications will not be adversely impacted by the subsequent removal of any occupation from the skilled occupation list," the Home Affairs department website says.

For decades, our politicians have batted up their tough border control credentials with threats to turn back boats and a promise of imprisonment.

In reality, the tough measures have been meted out to those with the least ability to defend themselves: a handful of the poorest and weakest, who now have become pawns in a macabre game of political brinkmanship.

At the same time as we've been tough on refugees, Australia has thrown open the doors, with one of the largest per capita immigration programs in the developed world.

It has enticed around 4,000 new arrivals a week, mostly into the two biggest cities, Sydney and Melbourne.

But even now, after decades of mass immigration, it appears we still are suffering critical "skills shortages".

Fruit pickers, waiters and baristas are in short supply. Almost daily, there are calls to throw caution to the wind when it comes to COVID-19 and start importing workers again.

Low wages growth is hurting our economy

 

The RBA governor observed that wages were kept low by adding to the supply of workers.(

has taken quite a while. But Reserve Bank governor Phil Lowe set himself on a collision course last week with big business and sections of the federal government by stating the bleeding obvious

And that is, Australia has used immigration as a means for keeping the cost of labour subdued. Not that Dr Lowe put it so bluntly. But he made the point repeatedly that adding to the supply of workers keeps wages low.

It's pretty basic economics, really.

For years now, one of the key factors undermining our economic performance has been low wages growth.

Economists love to call it anything but what it is. They'll talk about underutilisation or excess capacity. But the graph below says it all.

In the past 12 months, there's been almost universal agreement that stagnating wages pose one of the greatest dangers to derailing our recovery, particularly given our eye-watering levels of household debt.  

But whenever wages start to rise, the calls to bring in more workers start immediately.

Interestingly, those making the most noise now are the ones who have benefitted the most from a constant influx of tourists, students and temporary workers. 

The flood of overseas workers, particularly in hospitality, has left many with barely enough work upon which to survive. And it has opened the door to exploitation and wages theft on a grand scale. 

Here is another graph, presented by Dr Lowe last week, showing data from the Reserve Bank of Australia and the Australian Bureau of Statistics.

GDP growth doesn't mean our lives are better

Australia has prospered greatly from immigration, particularly in the post-war period. It has enriched the nation in ways far more than can be measured by money.

Somewhere along the way, however, canny politicians figured out the great immigration con job: that by adding ever greater numbers of people, you automatically get GDP growth.

That's because GDP is a crude yardstick. It simply measures the amount of stuff you produce. The more people you've got, the more you consume, and the more you produce.

Big business loves it too.

Not only does the influx of workers keep wages low, but all those extra people also end up consumers of your products. You sell more, your profits rise and so do your bonuses.

What GDP doesn't measure is whether or not we all are better off as individuals.

As it turns out, we haven't performed anywhere near as well as we've been told. Once you divide GDP by the number of people — to get a like for like comparison — the picture looks very different.

Remember how we were the "miracle economy" with 30 years or so without a recession?

The green bars below point out at least three recessions and quite a number of near misses.

You've no doubt heard the grand visions: “This government will create a million new jobs over the next five years.”

And, bingo, just like that, it happens.

The thing is, when you are adding a million people over five years, you need to have a million extra jobs just to keep your head above water.

And the problem is that many of the new arrivals end up working part-time, in lower-paid jobs and in occupations that require far fewer skills than they possess. Doctors and engineers end up as Uber drivers. 

Foreign workers are greatest victims of wage theft

Wage theft has impacted far too many of Australia's professions.

The list is too long to compile. For years, revelations of wage theft within major Australian corporations became a blight on the nation. 

But big, public organisations that are open to scrutiny are only a small part of the problem. 

With such a huge influx, foreign workers, many of them desperate for employment and unaware of their rights, have been routinely exploited.

Students and temporary visa holders are the most vulnerable. But permanent arrivals share similar experiences.

Story after story of exploitation and sexual assault have littered newspapers, websites and current affairs programs.

Five years ago, a Senate inquiry released a report entitled: A National Disgrace. The Exploitation of Temporary Work Visa Holders.

Among other things, it concluded that temporary visa holders comprised around 10 per cent of the workforce and that the 457 visa program was impacting university graduates and depressing wages.  But it was the title that said it all. 

The Fair Work Ombudsman has conducted raids, issued fines and published reports on deliberate underpayment and exploitation, particularly within the hospitality industry.

But for months now, almost every day brings forth a new claim of "skills shortages" and the need to start importing workers because firms have to pay more. 

www.samigration.com


Court woes for Home Affairs official accused of helping Bushiri irregularly obtain permanent residency

Johannesburg - Court woes have continued to pile up for the Home Affairs senior official accused of aiding controversial pastor-turned-fugitive Shepherd Bushiri to irregularly obtain permanent residency.

The Labour Court in Johannesburg has dismissed Ronney Marhule’s application for leave to appeal its earlier judgment that went against him.

Judge Edwin Tlhotlhalemaje dismissed Marhule’s application in May that sought to bar his employer from using legal representation in the internal disciplinary proceedings against him.

Marhule, the suspended chief director of permits, maintained the department had no legal standing to use a lawyer in the disciplinary hearing.

His reasons included that the senior management service handbook did not allow for the use of lawyers in internal disciplinary hearings.

Home Affairs favoured fielding lawyers in the case, given the complexity and seriousness of issues to be traversed.

Judge Tlhotlhalemaje ruled in May that the court had no grounds to intervene in internal disciplinary proceedings and dictate how they should proceed.

Marhule approached Judge Tlhotlhalemaje again, on an urgent basis, to seek leave to appeal the May judgment. He intended to take the appeal to the Labour Appeal Court (LAC), which he believed would find differently.

After considering his argument, Judge Tlhotlhalemaje found Marhule had no prospects of convincing the LAC otherwise.

“There are no legitimate disputes on the law raised, nor are there any novel issues that deserve the attention of the LAC. Accordingly, the leave to appeal enjoys no reasonable prospects of the LAC coming to any different conclusion to that arrived in my judgment,” he said.

He further slapped Marhule with legal costs, saying the urgent application for leave to appeal had no merit.

“This matter ought not have come this far,” said Judge Tlhotlhalemaje.

Home Affairs charged Marhule and three other officials for allegedly approving the permanent residency applications of Bushiri without following due process.

An internal Home Affairs investigation found that since March 2016, when Bushiri’s application for permanent residence was received, its approval had been done without proper compliance with the department’s standard operating procedures, and was in contravention of the Immigration Act.

The Bushiris’ applications were captured and granted by its officials, using the incorrect section of the act, as a result of Bushiri and his wife Mary’s commissions or omissions, according to the department’s evidence. Bushiri, a Malawi national, faced criminal charges that included flouting South Africa’s immigration laws.

www.samigration.com