Thousands of skilled migrants with valid visas to come to Australia are stranded overseas, needing government permission to travel back and reunite with their families and jobs.

Under measures to contain the COVID-19 pandemic since March 20, foreign nationals have required a travel exemption to enter Australia even if they already have a visa, though the Department of Home Affairs has refused to disclose the legal basis for this requirement. This includes both short-term visitors and long-term residents on visas.

A spokesperson for the Australian Border Force said the agency had received 109,743 requests for a travel exemption to enter Australia as of August 31. Of those, ABF granted permission for 16,860 people to enter Australia, including 5142 cases associated with critical skills or industry sectors and 3419 on compassionate grounds.

Soren and Ingri Madsen with their children, Philip and William, in their Sydney home. Their eldest son, Victor, has a visa to join them but has been refused a travel exemption to enter the country.

A request can cover more than one person and there can be multiple requests from the same person; resubmitted applications counted as new requests until the system changed in mid-July.

There are thought to be more than 40,000 skilled migrants on 457 and 482 visas currently outside the country, based on figures from Home Affairs and the Bureau of Statistics. That includes people who have left Australia permanently but still hold a valid visa as well as those keen to return.

Chef Chris Farrell, who has lived in Sydney for six years and has an Australian partner, returned to the UK to visit his dying mother Janet.

Senators and MPs are fielding hundreds of requests for help from temporary migrants who need permission to return to Australia. The Sun-Herald has spoken to more than half a dozen people in this situation, including couples living apart and parents separated from children.

Chris Farrell, 33, is a chef for acclaimed Sydney restaurant Three Blue Ducks on a sponsored 457 visa. He has lived here for six years, recently qualified for permanent residency, has an Australian girlfriend and a lease in Rosebery in the inner south.

In July, Mr Farrell travelled to Britain to see his mother who is dying of cancer. He has applied five times for approval to return, with support from his employer, but has been refused every time. "I'm absolutely devastated," Mr Farrell said. "Cancer has ruined my family and now I feel like I have been punished because I wanted to say goodbye to my mum."

Soren Madsen from Denmark is on a 482 visa running international logistics company Scan Global, which helped import face masks during the pandemic. He lives in Manly with his wife and 10-year-old twin boys, while his eldest son Victor, 22, has a visa and was meant to rejoin his family after finishing university in Amsterdam.

But Victor was refused a travel exemption and instead had to return to Denmark, a country where he has not lived since he was 13, has no job and only two relatives. "He's a strong young man but it's not like he's smiling," Mr Madsen said of his son. "He is confident and he's just waiting, but it takes a little bit of a toll."

Labor immigration spokeswoman Kristina Keneally said employers waiting for critical staff to be let back into the country were frustrated that Prime Minister Scott Morrison had "one rule for his mates, and another for everyone else".

"British billionaire Lord Sugar has been given an exemption by the Morrison government to travel into the country to film a reality television show, but small and medium sized businesses I talk to keep being told 'no, you can't have your staff back'," she said.

Once foreign nationals obtain a travel exemption, they would join the queue of Australians unable to get flights because international arrivals are capped at 4000 a week and 30 per plane. Australian citizens and permanent residents require permission to leave the country under the Biosecurity Act but not to return. All international arrivals must pay for a 14-day quarantine stay in a hotel.

Prime Minister Scott Morrison said on Friday a deal with the states to lift the arrivals cap to 6000 a week within the next few weeks would mean most people, if not everyone, stranded overseas could return by Christmas. A spokesman said he was referring to the 24,000 citizens and permanent residents who have registered their desire to return to Australia with the Department of Foreign Affairs and Trade.

Aradhya Ojha is trapped in India with her mother and brother, separated from her father. The whole family have valid visas and have lived in Sydney since February 2018.

Bineet Ojha, a risk analyst on a 457 visa for one of the big four banks, works in Sydney while his wife Vandana Mohanty, their son Arihant, 7, and baby daughter Aradhya are stranded in India without permission to return. He only saw his newborn for a few days in January before he had to go back to work, while the rest of the family was meant to follow in April.

"My husband has not been able to see our 8-month-old daughter for more than seven months now," Ms Mohanty said. "He is a complete stranger to her and missing all her milestones. Our son is also hugely missing his father, who is his best buddy."

Greens immigration spokesman Nick McKim said the government needed to do more to help citizens but this was "not mutually exclusive" with helping temporary migrants. His office had 400 cases on its books of visa holders trapped overseas, including 28 families where parents are separated from their children and 140 where couples are separated and this would "only be a fraction of the total".

"Most of these people have built lives in Australia - they work here, they run businesses here, their kids go to school here, they pay taxes here, they've made their homes here," Senator McKim said. "It's been six months, and the government can't simply keep avoiding this issue."

Senator McKim said ABF's decision making was "opaque". The criteria that ABF uses to decide a travel exemption request was only published for the first time last week.

The ABF said between March 20 and August 31 it refused permission for 6100 foreign nationals to enter Australia. It declined to provide detailed information about the remaining 86,783 requests, saying it included requests that did not contain sufficient information, those that were withdrawn and those from people already exempt.

Abul Rizvi, the former deputy secretary of immigration, said there was no good legal basis for requiring someone with a valid visa to also obtain a travel exemption. There is a public health clause in the Migration Act but Mr Rizvi said "legally it would be a stretch" because you would have to prove the person actually has COVID-19.

UPDATE: Vandana Mohanty and her children received an exemption to travel back to Sydney, late on Saturday night after publication.

www.samigration.com

22 September 2020 – Times Live

Advocate Amanda Ledwaba has been involved in the arrest of high-profile foreign nationals including Sam Chabalala, pictured here.
Image: Mpumalanga Hawks

The Public Servants Association of SA has lashed out at the department of home affairs for suspending a senior bureaucrat involved in investigating foreign nationals who allegedly obtained SA citizenship fraudulently.

The PSA has accused the department of victimising and harassing advocate Amanda Ledwaba after acting director-general Jackie McKay placed her on suspension.

In a letter of suspension last week Tuesday, McKay claimed that Ledwaba abused her powers when she investigated the citizenship status of certain foreign nationals.

But the PSA’s Reuben Maleka has hit back at the department, accusing it of leashing Ledwaba to stop her from investigating how powerful foreign nationals linked to politicians obtained SA citizenship.

McKay said Ledwaba, the department’s director of law enforcement, will be investigated and possibly face a disciplinary hearing. He said she will be investigated for allegations, by whistle-blowers, that she abused her power “to investigate and/or cause to be investigated various individuals with regard to their status in SA”.

He also accused her of issuing instructions “to officials of the department to investigate or cause to be investigated various individuals with regards to their status in SA. Ledwaba had also communicated with third parties outside the department when she was not authorised to do so and unlawfully benefited third parties in contravention of legislation.”

Ledwaba referred all queries to Maleka.

Maleka said McKay suspended Ledwaba because she was investigating the citizenship status of powerful and politically-connected illegal foreign nationals who live and conduct business in the country.

Maleka, who has appointed an attorney to deal with Ledwaba’s case, said: “Amanda is dealing with very high and sensitive matters of illegal foreign nationals who are well-connected and doing business in the country. The attached suspension letter says nothing but is a clear indication of victimisation and (they) intend to dismiss her at all costs because she is upholding the Immigration Act in totality,” Maleka said.

Ledwaba’s suspension follows the arrest earlier this month of Kebone Masange, head of the human settlements department in Mpumalanga.

Masange was arrested by immigration officials for being an illegal immigrant. He was charged with fraud and for being in possession of three identity documents which officials claim Masange, who was born in Zimbabwe, obtained fraudulently.

Ledwaba has also been involved in the arrest of other high-profile foreign nationals including Sam Chabalala, Bongani Mhlanga and Zenzo Mahlangu.

Chabalala, a businessman from Emalahleni, shot to prominence in July last year during the annual Durban July horse race and fashion show. Pictures of him and a fleet of ultra-luxury cars taken on the N3 highway to Durban were circulated on social media. Two months later, Chabalala was arrested for allegedly being in possession of a fraudulently obtained identity document.

In 2017 Ledwaba was involved in the deportation of Zimbabwean nationals, friends and business partners Mahlangu and Mhlanga.

At the time Mahlangu was general secretary of the SA Transport and Allied Workers Union (Satawu).

Mhlanga was the founder of the Mvunonala group, which crashed amid allegations of looting of over R500m from the Amplats Group Provident Fund.

The department’s spokesperson, Siya Qoza, said Ledwaba was not suspended for doing her job.

“Adv Ledwaba was not placed on precautionary suspension 'for investigating high profile businessmen who have obtained SA citizenship illegally'. The reasons for the decision are contained in the letter placing her on precautionary suspension. It is disingenuous to suggest that Adv Ledwaba would be placed on precautionary suspension for doing her job. On the contrary, the department supports all officials who are committed to rooting out corruption and executing their functions diligently.”

He did not disclose the allegations made against Ledwaba by the whistle-blower.

“The department is not at liberty to provide this detail at this stage because the matter is still under investigation,” Qoza said, adding that the decision to suspend Ledwaba was taken after careful consideration of all the facts and within the bounds of the law.

“All the necessary fair labour procedures were followed,” he said.

www.samigration.com

The draft Taxation Laws Amendment Bill (TLAB), which is open for public comment, will introduce changes for South Africans looking to take their retirement funds abroad.

In an analysis of the proposed change, law firm ENSAfrica said that the changes primarily deal with formal emigration with the draft bill suggesting a much stricter process from 1 March 2021 onward.

“Members of preservation funds and retirement annuity funds may withdraw from such funds if they formally emigrate from South Africa for exchange control purposes and their emigration is approved by the South African Reserve Bank,” said ENSAfrica.

However, it was announced in the 2020 Budget Review that the concept of emigration for exchange control purposes will be phased out.

“As a result, the requirement of formal emigration will be removed and a new requirement for the withdrawal of lump-sum benefits from these retirement funds is proposed, effective from 1 March 2021 – namely, that the person is not a resident (i.e. for tax purposes) for an uninterrupted period of three years or longer.

“It appears that this requirement is intended to apply to three consecutive tax years, although the amendment refers simply to years.”

Changes 

Jean du Toit, head of Tax Technical at Tax Consulting SA, said that under the current rules taxpayers can withdraw their retirement funds prior to their retirement date, upon emigration for exchange control purposes.

This emigration process must be recognised by the South African Reserve Bank in a process known as ‘financial emigration’, he said.

Du Toit said that under the new bill, reference to the emigration process is substituted with a new test that requires a person to prove they have been non-resident for tax purposes for an unbroken period of at least three years.

“This new test will apply from 1 March 2021. How this must be proved other than ‘financial emigration’ remains unclear at this stage.

“Practically, after the effective date, your retirement benefits will be locked in South Africa for at least three years. The proposed amendment signals a big policy shift from a fiscal perspective, but this is one piece to a bigger puzzle that should have those who seek to emigrate on high alert.”

Based on daily interaction with employers, executives and expatriates, Du Toit said that the following groups of people should give this change careful consideration:

• Does it remain prudent for South African executives to keep taking a tax break and maximising their South African approved retirement savings?

• Where you have large retirement savings, the opportunity will soon be over to make best possible investment decisions – soon some will go towards cheaper access to finance.

• South Africans looking to leave in the next couple of years will benefit from at least expediting their process on retirement savings, being they are locked in for 3 years.

• South Africans who have already left, but who have not yet done financial emigration, should consider doing this within the next 6 months before the window closes.

• Those who have already financially emigrated, but left investments behind, should reconsider their position.

• South Africans with children or other foreign beneficiaries, should relook at their investments and to align with this new landscape

www.samigration.com

South Africans abroad are facing a passport renewal nightmare.

SAPeople editor Jenni Baxter sat down with Adrian Roos MP (DA Shadow Deputy Minister of Home Affairs) and Justin Adams (DA Abroad UK and Europe Chairperson) to discuss the critical situation SA citizens abroad are facing in obtaining their South African passports from Home Affairs and the SA embassies.To assist South Africans abroad the DA, DA Abroad and SAPeople are petitioning the Minister of Home Affairs

Some of the points raised in the discussion include:

• This is a long-standing issue. For years (since at least 2014), many South African passport renewals abroad have been taking six months… but now this has become the norm, and some renewals are taking around 12 months! The Covid-19 Pandemic has exacerbated this, and Embassies are struggling with a backlog.
• This is a crisis heading for a catastrophe. Many South Africans abroad are desperate – unsure when they’ll ever get their passports, and facing subsequent problems abroad regarding their healthcare and right to live and work in their new countries.
• Accessing embassy staff is near impossible for many South Africans abroad – phone calls and emails go unanswered for weeks on end, and direct visits to Embassies that should be open are futile as they turn out to be closed. In the UK, the SA High Commission’s website has been down for over a month. Many desperate expats have turned to SAPeople and the DA Abroad for help.
• The current process includes a manual application with photos and fingerprints which are then sent in a diplomatic bag to Dirco in SA (along with other documents). Dirco sorts the bag and sends the passport applications to Home Affairs where they handle the manual applications, before sending them back to Dirco, back into a diplomatic bag (perhaps waiting for it to fill) and back to the country abroad. Instead of taking a max of two months which could make sense, it’s taking an extra four months at least!
• According to Home Affairs the diplomatic bag is sent monthly, but it appears more like they wait until the bag is full.
• A woman in South America has been stuck since 2018, sending her photos six times! And each time it is only when it finally gets to Home Affairs in Pretoria that an issue with the photos is detected.
• In SA, for locals, applications have sped up with a turn-around of two weeks. Applications are conducted manually or digitally (in larger offices). Citizens are able to submit electronic applications where their photos are taken digitally and automatically encrypted and sent to the printer.
• If the larger embassies and commissions abroad could adopt the same digital system as the larger offices in SA, it would save a LOT of time, chopping out the need for any diplomatic bag to be sent to SA. It would dramatically improve matters with only the physical document needing to be sent back.
• Home Affairs says it doesn’t have the budget, but since March a new tax on some South Africans working abroad is asking them for up to 45% of their foreign income. It appears South Africans abroad are good enough to pay tax, but not good enough to get a decent service from the government.
• Comparing the situation for South Africans to other foreigners living abroad, many foreign expats wait only two weeks to a month for their country’s passport. India – which is also in the BRICS set of countries – recently announced a two-day turn around, and said if there are any problems, it may take up to two weeks!
• Communication has not been great with Home Affairs saying Embassies are open, when they’re closed. It’s difficult for many South Africans who don’t live close to their Embassy to travel, only to discover it’s closed. Accessibility needs to be improved – officials need to answer phones and emails.
• The system appears chaotic at the moment. People have been known to wait eight months and then go into the Embassy and pretend they received notification that their passport was ready – and sure enough, they are handed their passport. Months later they receive a notification that their passport is ready (despite them already having it in their hands for a few months)… which raises many questions!
• While some embassy staff are very sweet and as helpful as they can be, some are frustrated and South Africans abroad have reported being treated badly by rude staff. Home Affairs’ motto is “we care” but the way South Africans abroad are being treated seems to say something different.
• South Africans abroad have a right to be treated with respect, and to be helped. A passport is a document that you are constitutionally entitled to and it is the government’s responsibility to ensure you have that right and to help you.
• There appears to be no understanding at Home Affairs in SA of what a nightmare South Africans abroad are going through. One retort from the office was that “they can just travel back to SA”, but not everyone can just afford a flight back to SA (over £500 from the UK) and travelling to SA is not the only reason a citizen needs a passport.
• Some desperate expats, who can afford it, are being driven to fly home to renew their passports in SA. The legality of this is unknown.
• Some South Africans who have had a bad experience with trying to renew their passports are giving up. This will have huge implications on SA. Each South African abroad is a walking advertising board – we’d rather they were saying something positive, and spending their dollars/pounds on holidays and properties back home. (In Australia alone there are over 680,000 South Africans!) There are also foreign investors and potential tourists who are also giving up on SA because of the lack of service at some missions abroad.
• The solutions seem so simple. It feels like there isn’t a “political will” to look at this challenge (which is why it’s imperative that we get 20,000 people to sign the petition!)
• The Petition aims to firstly: ask for the Minister to ensure that South Africans living and working abroad have an emergency extension to their passport, just to cover the 6 to 12 months average wait for renewals. This has been successfully done in other countries like Kuwait.
• The Petition aims to secondly: ask that Home Affairs co-ordinate with Dirco to ensure all the facilities are fully open for business and Covid-safety compliant so that South Africans can get access to renew their passport which is a constitutional right, and for which Home Affairs is responsible.
• In the longer term, the Petition would like Home Affairs and Dirco to liaise to reduce the unacceptable current turn-around times at many of the embassies and consulates abroad, with solutions like an electronic application process and courier services that applicants pay for, as occurs with other countries.
• The SA government could be breaking the law, since there is an international law that states a country cannot leave its citizens stateless.
• If you are absolutely desperate, the DA is able to assist through the Parliamentary process. Write to assist@da.org.za – although this is not a long-term solution.
• If you are affected, or know someone who is affected, please sign. And please get the whole family and all your friends to sign. Anyone can sign. We have to get 20,000 signatures to take this to Parliament to get a portfolio committee to spark a debate and formally drive this urgent issue so that it can be resolved. We have listened to desperate South Africans’ cries for help, and this is the best way to get the solutions they need.

Ground up  21 September 2020

Concerns are growing about the number of refugees’ and asylum seekers’ documents expiring at the end of October. The Department of Home Affairs has not said how it intends dealing with the disruption caused by Covid-19, insofar as this paperwork is concerned.

The Scalabrini Centre in Cape Town has written to home affairs asking for the department’s plan regarding documents held by refugees that are on the point of expiring.

“We have not seen the plan. We are hopeful that the department will make it public,” said Sally Gandar, head of advocacy and legal advisor at Scalabrini Centre.

Scalabrini hopes the plan will include longer renewal periods for asylum documentation. It also wants an online renewal system and for people to be allowed to renew their documentation at the refugee reception office nearest to where they live.

Gandar said, “The minister indicated in a parliamentary reply that on 1 January 2020, there were 188,296 active asylum files on home affairs systems, and in a further parliamentary reply that there were 80,758 refugees with active Section 24 certificates recorded on the National Immigration Information System (NIIS). 

“All of these people are affected by the current situation, though in varying ways.” (Section 24 certificates allow asylum seekers to stay in the country for two years.)

Gandar confirmed that home affairs provided for an automatic renewal of documentation for refugees during lockdown. “The directions gazetted by home affairs on 10 June provided for a deemed extension of all documentation issued in terms of the Refugees Act (this includes asylum seeker documents and refugee documents) until 31 July.

“Home affairs gazetted further directions on 31 July which provided for a deemed extension of all documentation until 31 October 2020. These directions are presently in force,” she said.

“The directions state that after the deemed extension date, asylum and refugee document holders will have a month in which to renew their documentation. 

“The impact will likely be that the refugee reception offices across the country will need to expect and plan for high numbers of people coming to renew their documentation within that time frame.”

Despite home affairs’ announcements, refugees and asylum seekers have been struggling to access services during lockdown. They have faced difficulties with banks blocking their accounts, hospitals refusing to treat them and schools refusing to enrol their children. They have also encountered difficulties while applying for unemployment insurance.

A refugee from Eastern Congo, who arrived in Cape Town in 2006 and has two children born in South Africa, said that his asylum document expired during lockdown. He also lost his job during this period. He said he went to the labour department in Bellville to apply for UIF, but was told that his document was not valid. He is struggling to pay school fees, buy groceries and pay rent.

“Nobody would like to employ me with an expired document. Not having proper documents also affects my children’s future. I am struggling to register my Grade 7 child for high school,” he said.

Questions were sent to home affairs spokesperson Siyabulela Qoza and media manager David Hlabane, but no response has been received.

www.samigration.com