Immigration Act 1987

18D Determination of appeal by Board

• (1) In determining an appeal under section 18C of this Act the Board shall do 1 of the following things:

  • (a) confirm the decision to refuse the visa or permit as having been correct in terms of the Government residence policy that was applicable at the time the application for the visa or permit was made by the appellant; or

  • (b) reverse the decision as having been incorrect in terms of the Government residence policy that was applicable at the time the application for the visa or permit was made by the appellant; or

  • (c) note the correctness of the original decision in terms of the Government residence policy that was applicable at the time the application was made on the basis of the information provided to the immigration officer or visa officer before the time of the decision, but reverse that decision on the basis of any information properly made available to the Board in accordance with section 18F of this Act that reveals that the issue of the visa or the grant of the permit would have been correct in terms of the applicable Government residence policy; or

  • (d) note the correctness of the original decision in terms of the Government residence policy that was applicable at the time the application was made on the basis of the information provided to the immigration officer or visa officer before the time of the decision, but determine the appeal by cancelling the decision and referring the application back to the Secretary of Labour for consideration under that policy as if a new application had been made which included any additional information properly provided to the Board; or

  • (e) where the Board—

    • (i) considers that the decision to refuse the visa or permit was made on the basis of an incorrect assessment in terms of the Government residence policy that was applicable at the time the application was made; but

    • (ii) is not satisfied that the appellant would, but for that incorrect assessment, have been entitled in terms of that policy to the immediate grant of a visa or permit,—

    determine the appeal by cancelling the decision and referring the application back to the Secretary of Labour for correct assessment in terms of that applicable Government residence policy; or

  • (f) confirm the decision as having been correct in terms of the Government residence policy that was applicable at the time the application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to that Government residence policy.

  (2) Where the Board determines to reverse a decision to refuse a visa or permit under paragraph (b) or paragraph (c) of subsection (1) of this section, the Board shall—

  • (a) consider whether or not it is appropriate that requirements should be imposed on the appellant in accordance with section 18A(2) of this Act, when a residence permit is granted to the appellant; and

  • (b) if it considers that the imposition of requirements is appropriate, in its decision specify any such requirements with such degree of generality or particularity as the Board thinks fit.

  (3) Where the Board refers an application back to the Secretary of Labour under subsection (1)(e) of this section, the Board may give the Secretary such directions as it thinks fit as to how a correct assessment of the application should be carried out.

  (4) The Board shall, as soon as practicable, notify the appellant in writing of its decision on the appeal and the reasons for that decision.

  (5) Subject to section 115 of this Act, the decision of the Board on an appeal under section 18C of this Act shall be final, and, except where a Court otherwise directs, the Board shall have no jurisdiction to reconsider the appeal after the appellant has been notified of the decision.

  Section 18D: inserted, on18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

  Section 18D heading: amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

  Section 18D(1): amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

  Section 18D(2): amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

  Section 18D(3): amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

  Section 18D(4): amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

  Section 18D(5): amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).