High Court upholds corporate visa refusal: Implications for businesses

Dee-dee Mathelela, senior associate and head of the LnP Beyond Legal’s Dispute Resolution practice

Acting Judge Kekana AJ held that the Department’s decision was lawful, rational and procedurally fair. This judgment illustrates how businesses can - and must - structure their corporate visa applications to meet statutory requirements, and how legal practitioners should prepare robust review challenges when administrative authorities decline to recommend foreign-work permits.

Factual background

Sitrusrand Boerdery, a citrus-farming company, applied in February 2023 for a Department of Employment and Labour letter of recommendation to employ 762 foreign workers for its 2023 harvest season. After advertising locally in English, the farm received only 15 applications, none suitably qualified.

Accordingly, on 10 February 2023 it applied under section 21 of the Immigration Act and regulation 20(1)(b) for the certificate, asserting a shortage of local skills.

In response, the Department referred 1,244 potential candidates—identified via the national Essa system and regional recruitment drives, to Sitrusrand across four lists between 24 February and 22 March 2023. Sitrusrand’s feedback on 11 April 2023 confirmed that only 58 of 1,759 applicants met its criteria.

Nonetheless, on 12 April 2023 the Department’s Adjudication Committee rejected the application, finding that the required skills were available locally.

Grounds of review and court’s analysis

Sitrusrand challenged the refusal on three PAJA grounds:

• Failure to consider relevant factors (section 6(2)(e))
• Irrationality (section 6(2)(f)(ii))
• Procedural unfairness (section 3 of PAJA)

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Ground 1 – Failure to consider relevant factors

Sitrusrand argued the Committee did not consider its post-meeting feedback on the 1,759 candidates, which arrived on 11 April 2023, one day before the decision letter. The court, however, accepted the Department’s evidence that the chief director had reviewed all recruitment data, including Essa listings of almost 6,000 matches and the internally conducted drives. The voluminous referral lists and Sitrusrand’s own feedback were before the Committee, satisfying its duty to consider all representations.

Ground 2 – Rationality

Under PAJA, a decision is irrational if it lacks a logical connection to the information before the decision-maker. The court found that, facing thousands of potential applicants with verified skills listed on Essa, the Committee reasonably concluded local labour was sufficient. Sitrusrand’s inability to recruit did not negate the statistical reality of available candidates.

Ground 3 – Procedural fairness

Sitrusrand contended it was not afforded an opportunity to make oral representations before rejection. The court held that, as the prescribed statutory process envisioned written submissions via Form 13 and supporting affidavits, no separate hearing was required.

The Committee’s decision letter set out its reasoning clearly, and Sitrusrand’s written feedback had been considered. Requiring additional consultations would impose an undue administrative burden contrary to the Immigration Regulations’ streamlined procedure.

Practical implications

For legal practitioners

• Compile a complete record: Ensure every recruitment effort, advertisements, Essa referrals, interviews and feedback, is documented and annexed to the Form 13 application. Gaps will undermine review prospects.
  
• Anticipate rationality challenges: Structure your founding affidavit to explain why statistical availability (eg. thousands on Essa) does not equate to practical employability, distinguishing quality from quantity.
  
• Clarify procedural steps: Confirm whether regulations require a hearing or rely solely on written materials. If oral representations are not mandated, focus on robust written submissions.
  
• Select appropriate grounds: Use PAJA’s multifaceted grounds, failure to consider, irrationality, procedural unfairness, but tailor each to the decision-maker’s statutory duties and your client’s unique context.

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For corporate and HR clients

• Conduct diligent, inclusive recruitment: Advertise in multiple languages and media (newspapers, community centres, digital platforms) to demonstrate genuine attempts to source local talent.
  
• Recruitment efforts must be exhaustive: Superficial or narrowly targeted recruitment won’t suffice. Employers must show they’ve made a real effort to find local talent.
  
• Engage with departmental referrals: Promptly interview and report back on all referred candidates, showing good-faith consideration of Department-provided lists.
  
• Timing is crucial: Submit feedback and supplementary evidence before the Committee meeting or decision date. Late submissions or incomplete records can sink an application or review challenge or risk being disregarded.
  
• Plan contingencies: Recognise that refusal is possible even after extensive recruitment; develop alternative staffing or mechanisation strategies to mitigate operational disruption.
  
• Visa refusals are defensible: Courts will uphold refusals if departments follow lawful, rational, and fair procedures, even when employers face genuine labour shortages.
  
• No guaranteed hearings: The process is largely paper-based. Employers must make their case through written submissions alone.

Conclusion

The Sitrusrand Boerdery judgment confirms that administrative refusals of corporate-visa recommendations will stand when departments follow clear, rational and procedurally fair processes. Project sponsors and their legal advisers must therefore anticipate every stage of the statutory application, ensuring exhaustive recruitment records, timely feedback and targeted review grounds, to preserve their right to litigate effectively should administrative channels close.