Matthew Francis Watkins and Anor v The Attorney General (2017/HP/A005) [2017] ZMHC 518 (3 May 2017)

J1 IN THE MATTER OF: AND IN THE MATTER OF: /:J 0 ~ - - - . ; 'J,. P,..· 8ox sooG1 LIJS~ Section 10 (S);ft e Deportation Act, 2010 lmmigration and Appeal against the decision of the Hon. Minister of Home Affairs dated the 22nd of February, 2017 BETWEEN : MATTHEW FRANCIS WATKINS CHARLOTTE DIANE WATKINS AND 1 ST APPELLANT 2ND APPELLANT • THE ATTORNEY GENERAL RESPONDENT Before Honourable Mrs Justice M. Mapani-Kawimbe in Chambers on the 3rd day of May, 2017 • For the Applicant For the Respondent Mrs. 0 . Chirwa, Messrs Ranchord Chungu Advocates Mrs. D. M. Shamabobo, Assistant Senior State Advocate JUDGMENT J2 Legislation Referred To: 1. Section 10 (5) . of the Immigration and Deportation Act, 2010 • This is an appeal against the decision of the Minister of Home Affairs dated 22nd February, 2017 refusing the Appellants' Appeal against the decision of the Director General of Immigration of 14th April, 2016. Three ground of appeal have b een advanced as follows : 1. That the Minister of Home Affairs fell in error when he rejected the appeal of MATTHEW FRANCIS WATKINS against the decision of the Director General of Immigration not to issue the said MATTHEW FRANCIS WATKINS with an employment permit. That the Minister of Home Affairs failed to take into consideration the submission by the 1 st Appellant that the position in issue was advertised both locally and internationally and only one Zambian citizen who was not as professionally experienced as the 1 st Appellant had applied for the position. That the candidate was subsequently employed as the 1 st Appellant's understudy to assume training under the 1 st Appellant. 2. That Charlotte Diane Watkins, the 2 nd Appellant is the lawfully wedded wife of the 1 st Appellant and the 1 st Appellant's application for an employment permit listed her as such and a the 2 nd Appellant as a permit was similarly sought for Spouse/Dependant which the Minister of Home Affairs wrongly refused in the appeal and the process referred to under paragraph 1. 3. That the decision of the Minister of Home Affairs on the 22nd February, 2017, was null and void, and the decision of the Director General of Immigration was similarly null and void because they were delivered outside the time limited under Section 10 (3) and (4) of the Immigration and Deportation Act No. 18 of 2010 respectively AND that failing to comply with the statutory time limits has the effect of granting the Appellants the permits they sought. J3 The background of this appeal is that sometime in September, 2015, Ms Patricia Chapple who was then General Manager of a lodge operated by Family Legacy Missions Zambia Limited resigned from her position on 30th September, 2015. Thereafter, Family Legacy Missions Zambia Limited engaged the services of A to Z Solutions Limited, a recruitment agency to advertise and shortlist suitable candidates to fill the vacancy. The Appellant was one of the five (5) candidates interviewed by the recruitment agency and hired by Family Legacy Missions. Interviews were conducted by A to Z Solutions Limited on 2 nd November, 2015 by a panel of three who graded the applicants on a fixed criteria. The 1st Appellant was awarded the highest grade by the panel and offered the position of General Manager based on his qualifications and extensive experience. Only one Zambian citizen applied for the position, and was found to be unsuitable for the position as she required more work expenence. She was nonetheless engaged as an understudy of the 1st Appellant for a period of two years after which she would take over the position of General Manager. • • J4 The 2 n d Appellant Charlotte Diane Watkins d eposed a n Affidavit where she states that on 19th February, 2016 , h er spouse Matthew Francis Watkins the 1s t Appellant submitted through his Lawyers Messrs Ranchhod Chungu Advocates an application for Employment Permit as General Manager at Family Legacy Missions • Zambia Limited. She states that the Appellants entered Zambia through Kazungula Border Post on 28th February, 2016, as shown in the exhibit marked "CDWl." She further states that the 1s t Appellant's application for Employment Permit was rejected twice by the Director Gen eral of Immigration and an appeal to the Minister of Home Affairs was subsequently made on 7 th July, 2016 and 15th February, 2017 . • The deponent states that she is dependent on the 1st Appellant and when his application was rejected, the Department of Immigration asked her to apply for a Temporary Permit, which she did as shown in the exhibit marked "CDW2." The deponent avers that on 15th September, 2016, a Temporary Permit was issued to h er and was valid up to 24th November, 2016, as shown in the J5 exhibit marked "CDW3." On 22nd November, 2016, she made an application to renew her Temporary Permit as the decision of the Minister of Home Affairs had not been passed on the 1s t Appellant's appeal as shown in the exhibit marked "CDW4." The deponent avers that on 5 th December, 2016, her application for a Temporary Permit was approved and was served with an Approval Letter on 30th January, 2017, as shown in the exhibit marked "CDWS." The Temporary Permit was valid from 24th November, 2 01 6 to 2 4 th January, 2 017 as shown in the exhibit marked "CDW6." The deponent s tates that on 20 th January, 2017, she made a second application for renewal of her Temporary Permit as the decision of the Minister of Home Affairs had not been made as shown in the exhibit marked "CDW7." On 20th February, 2017, she collected her Temporary Permit which was valid from 24th January, 2 017 to 24th April, 2017 as shown in the exhibit marked "CDWS." • e J6 She further avers that on 22nd February, 2017, the 1s t Appellant was told that his appeal to the Minister of Home Affairs was unsuccessful at the Immigration Headquarters and was asked to collect his letter of rejection that very day. Thereafter the Appellants were both issued notices of prohibited immigrant status dated 22nd February, 2017, and ordered to leave the country within seven days as shown in the exhibit marked "CDW9." The deponent states that she has never applied for an Employment Permit nor worked in Zambia during her stay as she was dependent on her husband. Frank Michelo swore an Affidavit in Opposition behalf of the Respondent where he concedes that the 1st Appellant was offered employment by Family Legacy Missions Zambia Limited on 19th February, 2016, as General Manager. He states that the 1st Appellant lodged an application for an Employment Permit on the same date which was considered by the Immigration Permits Committee (IPC), composed of officers from all security wings and the Ministry of Labour. That upon consideration of the 1st Appellant's Employment Permit, the IPC resolved to defer the • • J7 application for inspection to establish the need, if any, for an expatriate expertise at Family Legacy Missions Zambia Limited. The deponent avers that an inspection of the premises was conducted on 5 th April, 2016, by the m embers of the IPC who concluded that the position of General Manager did not require any special skill to warrant the 1s t Appellant's employment and thereby rejected his application. The deponent further avers that the Minister a gr eed with the d ecision of the IPC that the position of Gen er a l Manager did n ot require an expatriate and consequently rejected the 1s t Appellant's a ppeal. Both Learned Counsels filed written submissions for which I am indebted. Learned Counsel for the Appellants submitted in grounds 1 and 2 that the Immigration Depart1nent's policy is ba sed on the principle that an immigrant to Zambia must have a contribution to make in the form of skills, p r ofession or capital. Tha t immigrants should not deprive Zambian Nationals of • e - ---------·- ·---- J8 employment while at the same time should not be a charge on the State. Counsel submitted that Zambianisation is defined as the process of adequately preparing Zambian nationals with requisite qualifications and skills to take over jobs occupied by foreign nationals. Counsel ref erred to the First Schedule of the Immigration and Deportation Act, which sets out the guidelines that are considered when issuing an employment permit. In particular, Class A of the First Sch edule provides that: "Any person who intends for gain to engage in any trade, business, profession, employment or other occupation:- (a) for which the person is fitted by virtue of the person's academic or professional qualifications, standard or education, skill and financial resources; (b) in which that person having regard to the productivity and the efficiency of the persons already engaged therein, there is not already sufficient number of persons engaged or available in Zambia to meet the require ments of the inhabitants of Zambia or (c) which is likely to benefit the inhabitants of Zambia generally." • • Counsel went on to argue that the 1s t Appellant had proved that he is a specially skilled professional who has worked for various international entities ranging from Perrmont Gaborone J9 International Convention Centre, which hosted International Summits for Heads of State, the· First Lady of the USA in 2011, to Ingwenya Country Escape, Muldersdrift outside Johannesburg where he coordinated and ran all operations excluding hotel accommodation. Counsel also argued that the 1st Appellant was only engaged for a short period of two years after which his • understudy would take over the position of General Manager. Counsel contended that the 2 nd Appellant only held a Temporary Permit and not a spouse permit as a lleged by the Respondent. In ground 3, Counsel ref erred me t o section 10 of the Immigration and Deportation Act, which states that: • "10(1) After making a decision under this Act, which adversely affects a person, other than the decis ion relating to deportation and removal, an immigration officer shall notify the person of the decision and the reasons of the decision and give the person at least forty eight hours to make representations. 10(2) The immigration officer shall, where the person makes any representation under subsection ( 1) within fourteen days of receiving the representation, notify the person of the decision made, with respect to the representation. 10(3) Any person affected with the decision of the immigration officer under subsection (1) may within forty eight hours of receiving the decision appeal to the Minister. 10(4) The Minister, may upon receiving an appeal under subsection (3), reserve or modify the decision of the immigration officer within ten days. J10 Provided that the Minister shall not take any decision before consulting the Director General Immigration and obtaining the Director's advice. 10(5) Any person aggrieved with the decision of the Minister under subsection (4) may within forty eight hours of the Minister's decision if appropriate appeal to a Court which may suspend, reserve or modify the decision." Counsel contended that the prov1s1ons of Section 10 of the Immigration and Deportation Act, were completely disregarded and • reprised the background events giving to the inconsistences as follows: On 19th February, 2016, the 1st Appellant submitted an application for an Employment Permit as General Manager at Family Legacy Missions Zambia Limited. On the same date, he made a payment of ZMWl,000.00 for the application. On 4th March, 2016, he reported to the Immigration Headquarters where he was issued with a Report Order which required him to report to an Immigration Officer on 4 th April, 2016. The 1st Appellant's application was deferred by the Department of Immigration for an inspection which was conducted on 1st April, 2016. On 19th April, 2016, the 1st Appellant's application was r ejected in preference for • Zambianisation. J11 The Department of Immigration by a notice dated 1st July, 2016, informed the 1st Appellant that his application was rejected for Zambianisation and on 7th July, 2016, an appeal against his rejection was submitted to the Minister of Home Affairs. In addition, Family Legacy Missions Zambia Limited submitted an appeal against the rejection of the 1st Appellant's Employment Permit to the Minister of Home Affairs, which was similarly rejected . • Counsel contended that throughout the process of the 1st Appellant's application for an Employment Permit, the time limits set out in Section 10 of the Immigration and Deportation Act were not adhered to. She prayed to the Court to reverse the decision of the Minister . • In response, Learned Counsel for the Respondent submitted that section 5 (2) of the Immigration and Deportation Act, provided that: "The functions of the Department are to: - (c) regulate the migration of any person to Zambia but at the same time promoting economic growth, encouraging the training of citizens and residents by employers by the following, as the case may be: J12 {i) Ensuring that business in Zambia may employ slcilled foreigners who are reliant on intentional exchanges of people and personnel, as provided under ·any other law. {ii) Enabling exceptionally skilled or qualified people to sojourn in Zambia." Counsel argued that the 1st Appellant who held a Diploma in Catering and Resort Management did not possess special skills that warranted his employment as an expatriate. She further argued that in line with the Government's policy of Zambianisation, a Zambian citizen could take up the employment of General Manager as opposed to foreign expertise. Sh e insisted that it was immaterial that the 1st Appellant obtained the highest grade during the interview. She considered that the determining factor was that a foreign national had to be exceptionally skilled. Counsel contended that t h e 1st Appellant had not demonstrated that he was exceptionally skilled in order to be granted an Employment Permit . • • In ground 2, Counsel referred me to section 23 ( 1) of the Immigration and Deportation Act, which sets out thus: "Subject to section twenty one, a spouse permit may be issued by the Director General to the spouse of the following: {a) A citizen; or {b) An established resident." J13 Counsel cited section 2 of the Immigration and Deportation Act which defines an established r esident as: "Established resident means , in relation to any date, a person who is not a citizen or a prohibited immigrant and who has been ordinarily and lawfully resident in Zambia for a period of four years immediately preceding that date." Counsel submitted that the 2 nd Appellant who is married to the 1st Appellant was not an established resident within the meaning of section 2 of the Act and did not qualify to be granted a spouse permit. In ground 3, Counsel cited section 10 (3) and (4) of the Immigration and Deportation Act where she contended that the 1st Appellant's letter of appeal was delivered to the Minister on 16th February, 2017. The Minister rendered his decision on the appeal on 22nd February, 2017, within ten days of having received it as required by law. She argued that the letters from Appellant's Counsel dated 7 th July, 2016 showing that a letter was written on that date were inconsequential as there was no proof to show when they were delivered to the Minister of Home Affairs. • • J14 Counsel argued in the alternative that section 10 of the Immigration and Deportation Act, is not mandatory iri that the Minister was required to render a decision within 10 days. Further, the law does not provide for a permit to be granted by default if the appeal is not heard within 10 days by the Minister of Home Affairs. She prayed to the Court to dismiss the appeal in its entirety on the ground that it lacked merit. She also prayed for costs . I have paid t h e closest attention to the submission of both Counsels in this case . As I see it, this appeal underscores one issue for determination, whether the Minister's action to reject the 1st Appellant's applica tion for an Employment Permit offended the provisions of the Immigration and Deportation Act . The rules on Zambianisation and employment permits are well known and have been reprised by the parties in their written submissions. It is therefore scarcely necessary for me to recount those principles. In the present case, the 1st Appellant was employed as General Manager by Family Legacy Missions, Zambia • • J15 Limited. It is alleged that h e topped t h e interview and has specialist e-J,F.~ e~ based on his credentials in his Curriculum Vitae. • • His qualifications as listed 1n his Curriculum Vitae are as follows: "(i) Education Last School Attended: Wendywood High School, Johannesburg Grade passed: Matric Year: 2001 (i) Tertiary Training Institution: Dame lin College, Randburg, Johannesburg Qualification: Degree in Hotel, Catering & Resort Management Dates: 2002 - 2003 Qualification: Certificate in Event Management Dates: 2004 - 6 months Course, 2 nights a week (ii) Other Training First aid, Level 1 "Investment in Excellence" Course Disciplinary experience in all areas of industrial relations I currently chair disciplinary enquiries when needed by the HR department and therefore am well aware of the formalities. Due to the fact that laws are different in Botswana, I spent a few days researching the differences when I first arrived. (iii) Computer Skills MS word, Excel, Outlook, Apex (aka Jade), plus Point, Plus Central, Fidelio, Lanmark, Micros and Opera." J16 Without attempting to lend an expert interpretation of the 1st Appellant's qualifications, I find that it would be safe to conclude that the 1st Appellant carries his trade in hotel hospitality. His qualifications reveal that he has attained a sufficient level of tertiary education. Further, he has participated in the organization of high level meetings with high profile participants. However , the question remains and that is whether his credentials are enough to support his application for an Employment Permit. In the premises, I am inclined to agree with Learned Counsel for the Respondent that the 1st Appellant does not demonstrate exceptional expatriate expertise to afford him the opportunity of working as General Manager at Family Legacy Missions Zambia Limited. His type of training is at tertiary level and is being offered locally. This being the case, I find that a Zambian national can easily be recruited for that position. The 2 nd Appellant who is the 1st Appellant's spouse and dependent on him, is disentitled from being granted a spouse • J17 permit as her husband is neither a citizen nor an established '· resident. In view of the foregoing, I ·find that it is hardly necessary for me to consider the contention that the Minister failed to comply with the statutory time limits. In consequence, I have no hesitation in holding that the Minister was on firm ground when he rejected the 1st Appellant's application for an Employment Permit. I accordingly, dismiss this appeal and award costs to the Respondent to be taxed in default of agreement. Leave to appeal is granted. Dated this 3 rd day of May, 2017 rf t1{ic Jl)?L vu ___ .1 M . Ma p a ni-Ka win1be HIGH COURT JUDGE