5 months ago
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The home affairs minister will have to make a fresh decision on whether an Angolan family, whose 17-year-old son is battling an incurable disease should be granted a special exemption for permanent residence due to his poor health.
While the Western Cape High Court largely agreed with then-minister of home affairs Aaron Motsoaledi's reasons for declining to grant a permanent residence status to the boy and his family, the judge placed the rights of two minor children at the pinnacle of his decision to refer the matter back to the minister for reconsideration.
Acting judge Nazreen Bawa said the children were minors, adding that there was no indication from the reasons furnished that their rights were taken into account.
“Though he indicated that he was aware of the rights in the constitution and the Children’s Act and took them into account, there is no indication from the reasons furnished that the minister did indeed apply his mind to the fact that two of the applicants were minor children who have already spent several years in SA,” said Bawa.
The 17-year-old boy has severe dystonic spastic cerebral palsy. He is developmentally delayed and non-verbal and suffers from a form of quadriplegia.
He is unable to walk, and talk and cannot take care of himself. He also suffers from chronic pain arising from his body's rigidity and immobility and requires highly specialised medical treatment and care for the rest of his life.
His family came to SA in 2013 using visitor visas which expired in January 2014, and has since been in the country unlawfully. The boy's father, however, went back to Angola, stopped sending money and had cut ties with the family.
The family approached the department of home affairs in February 2014 to apply for a medical treatment visa for the boy to stay in SA. But they were informed to do so from Angola – which they failed to do due to expenses and the boy's health.
The family later sought the special exemption for permanent residence due to the boy's condition and his need to continue receiving specialised treatment in SA.
In his response, the minister said while it was understandable that the boy receives medical treatment and therapy in SA relating to his medical condition, the act does make provision for foreigners to obtain visas for medical treatment.
He also reminded the family about SA's economy, the high rate of unemployment and that the family's responsibility lies with their country of origin.
However, in court documents, the family said the boy was accepted at a special care centre that provides care, activity and therapy for children and adults with severe to profound physical disabilities.
In addition, given that the boy was reliant on his mother and sibling, permanent residence was sought by the family as a unit.
The minister, however, said he fully appreciated the challenges the boy might face on return to Angola.
However, the family's application lacked detailed and satisfactory evidence of the lack of appropriate medical treatment and care in Angola.
The minister said severe disability and the relative lack of capacity in Angola to deal satisfactorily with such disability was not sufficient to justify an exemption and grant the family permanent residency.
Therefore, the fact that the boy would be better off under SA healthcare was not in and of itself a justifiable basis for granting permanent residence.
He also argued there was an insufficient basis to conclude that the charitable treatment received would continue indefinitely.
However, the family took the minister's decision back to court for review and in his judgment, Bawa said: “I do not read the minister’s reference to medical visas in his reasons as a conclusion that the applicants could have obtained medical treatment visas in terms of section 17 of the Immigration Act, nor was he saying that they should rather have applied for such visa.”
Bawa also said that the conclusion that the applicants are dependent on charity was not a factual error based on what was put before the minister.
He also said the centre which the boy goes to does not provide meals or other necessities nor is it a residential facility shelter to the boy and his family – therefore there was no mistake of fact on the part of the minister.
Bawa further said: “The minister submitted that the paramountcy of the best interests of the child does not operate as a trump to all other rights and considerations. Indeed, this is correct but it does require a balancing of rights to be undertaken and there is no indication that such balancing occurred.
“On the totality of the evidence presented before this court, the inescapable conclusion is that the minister failed to consider the impact of his decision on the [minor children] about their rights.”
Bawa then reviewed and set aside the minister's decision because he failed to consider relevant information under Promotion of Administrative Justice Act.
He then referred the matter back to the minister for reconsideration and to do so within six months.
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