Refugee Amendment Bill [B30-2010]: public hearings

Home Affairs

25 October 2010
Chairperson: Mr B Martins (ANC)
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Meeting Summary

The University of Cape Town Law Clinic submitted that it was unhappy with the lack of clarity on the constitution and rules governing the proposed Status Determination Committee. The Clinic expressed its dissatisfaction with the lack of clarity on the powers to be granted to the Director-General for the review of refugee status applications. It sought clarity on the qualifications a member of the Status Determination Committee would have to have prior to being placed on the Committee. There was concern over the lack of a proposed oversight body to monitor the work of the Status Determination Committee.

The Forced Migration Studies Programme of Wits University welcomed the establishment of the Status Determination Committee as an effort to encourage proper deliberation in the status determination process. It was concerned however that the intended effect of the SDC would not be realised. Instead, the result of the SDC establishment may be a system that must increase its already disproportionate focus on efficiency in order to deal with demand, while sacrificing quality. The FMSP submitted that Refugee Status Determination Officers were not given sufficient time, resources, or training to properly conduct a status determination decision. The establishment of a status determination committee would not alleviate those pressures and may in fact make them worse unless the committee was given adequate training as well as time to conduct a proper status determination hearing and decision.

Southern African Catholic Bishops Conference in conjunction with the Scalabrini Centre of Cape Town welcomed the clarity of the proposed definition of ‘biometrics’ in the Bill as it would hopefully assist with the identification of children, which had been a matter of considerable difficulty. The SACBC stated that in its experience, the A4 paper document containing ‘refugee status’ was not durable, and suggested that an alternative form of document be explored similar to a driver’s licence or credit card.

The Conference and SCCT took issue with Clause 5 on the time period to be allocated to refugees wishing to register the births of their children. The period was unrealistically short, given the capacity of Home Affairs and the reality that so many refugees and asylum seekers were themselves unregistered and not always able to obtain much-needed administrative assistance. The SACBC emphasised that nothing should detract from the principle that children of refugees who accompany their parents, unaccompanied minors, and refugee children born in South Africa, should be regarded as having the same rights as children of South African parents. Failure to register a child’s birth as stipulated in Clause 5 should not stand in the way of that principle.

The Lawyers for Human Rights submission incorporated most of the concerns raised by fourteen civic organisations. The LHR sought better explanation of the constitution of the proposed Status Determination Committee and a better explanation of “dependent” in relation to refugees seeking status determination. It expressed concern over the poor nature of refugee status determination decisions in the current system and the lack of knowledge or inadequate training of refugee status determination officers. It expressed concern over the Bill’s proposed limitation of powers for the United Nations High Commission for Refugees in dealing directly with refugees. It highlighted the need for refugees to gain travel documents and proper identity documents which were more durable and similar to South African citizen’s identity documents.

South African Media and Gender Institute submitted that it wished to see the reconstitution of the definition of “biometrics” in the Refugees Act which the Bill proposed to delete. The general definition of biometrics was “the measurable physiological or behavioural characteristics that can be used in verifying the identity of individuals” as was stated in the Refugees Act, as amended by 2008 Refugees Amendment Act. It wished to see a description of biometrics in the Bill which did not allow for refugees to be characterised via racial profiling or stereotyping. The Institute took issue with the proposed deletion of a particular section in the Act. The deletion now allowed political offices bearers to hold a position on the Refugee Appeals Authority. Allowing political figures to hold positions of decision-making power over marginalised people meant the decisions made were political decisions with probable detrimental consequences to the applicant.

The Law Society of South Africa submitted that the memorandum on the objects of the Bill implied that asylum seekers whose applications were regarded as manifestly unfounded, abusive or fraudulent were being done a favour by not having an appeal – they “need not apply for an appeal”. The LSSA felt the statement was misleading. All too often findings of ‘abusive, fraudulent or manifestly unfounded applications’ were made in respect of genuine, if poorly motivated, applications and revealed a regrettable ignorance of the Refugees Act, of the relevant country, the country conditions and of the provisions of the United Nations High Commission for Refugees’ definitive Handbook on how to assess applications.

The LSSA submitted that a further factor in this phenomenon may well be the time pressures under which overworked officials operate to get decisions out as required by their supervisors, however laudable it may be to obtain speedy outcomes. The Refugee Status Determination Officers were not, in practice, required to ensure that asylum applicants were made aware by the Department of the requirements of the Refugees Act or Conventions in order to qualify for refugee status, much less of pertinent developments in case law.

The People against Suffering Suppression Oppression and Poverty (PASSOP) highlighted the high rate of rejected applications when the process of speeding up status determination was one of the main Department goals as stated by the Bill. It submitted that before providing a reasonable mechanism for dealing with rejected applicants, it would be reckless to attempt to accelerate the rejection process. It recommended that the Department first clarify its immigration policy before approving a Bill that may see the rejection of hundreds of thousand asylum seekers. PASSOP submitted that it was clear that the Department wanted to document foreigners but that process would only take them out of legal status; encourage crime, xenophobia, exploitation and victimisation.

Members commented on the necessity of having stringent laws guarding against excess illegal immigration. They sought clarity on the problems about biometrics and the need to remove the provision about serious non-political criminals. Members commented that the qualification of the members of the Status Determination Committee seemed to be a point of serious concern amongst civic societies. Members commented that the problem of economic migrants posing as genuine refugees needed to be addressed and interrogated. They expressed concern over the registration of births for refugees and the long waiting period that was tied to registering such births. They sought clarity on the issue of a conflict of interest arising from political office bearers being allowed to sit on the SDC. They commented that not all refugees who came into the country having committed crimes in their countries of origin, were seeking genuine refuge but were using the country as a haven from prosecution. The Portfolio Committee had to look at ways of dealing with refugees whose applications had been rejected. There was a conundrum over the need to speedily process refugee applications and the need to ensure that the results were fair. There was a need to affirm the principle of a need for a Status Determination Committee over status determination officers.

Meeting report

 

 

University of Cape Town Law Clinic Submission
Ms Tal Shreier, UCT Law Clinic representative, said it was unhappy with the lack of clarity on the constitution and rules governing the proposed Status Determination Committee (SDC) and on the powers to be granted to the Director-General with regard to the review of status applications.

The Clinic queried the reintroduction of a rejected status application with the term “manifestly unfounded”. It sought clarity on whom the Director General of DHA would assign to decide on what constituted a manifestly unfounded application and on what grounds such a person or entity would deem an application to be so. The Clinic asked what would happen to the backlog that was under the Standing Committee for Refugees Affairs.

The Clinic sought clarity about the qualifications a member of the Status Determination Committee would have to have prior to being placed on the Committee. There was concern over the lack of an oversight body to monitor the work of the proposed SDC. The Clinic welcomed the Department’s inclusion of a more inclusive clause in the Bill addressing the dependants of a refugee seeking asylum in the country. The Clinic submitted that a wider use of language needed to be used in the clause incorporating more people who may be dependent on a particular refugee and would thus be eligible to receive the same status as that refugee.

The UCT Law Clinic said the Department should remove a provision in the Bill which provided the threat of rejection for an applicant found to have committed a crime in their country of origin. The Law Clinic said a determination of the seriousness of the crime should be conducted before an applicant was refused a permit.

Discussion
Mr M Mnqasela (DA) sought clarity on the UCT Law Clinic’s submission on the need to remove the provision about a serious non-political crime. He used a hypothetical example of a refugee who committed murder or rape in the country of their origin and then sought asylum in South Africa.

Ms Shreier responded that South Africa had signed onto conventions which provided guidelines for the grounds under which a refugee who had committed a crime in the country of origin could be sent back to said country to face trial. South Africa could not knowingly send a refugee back to a country where they would face death due to the crime they had committed.

Forced Migration Studies Programme (FMSP): Wits University submission

Dr Roni Amit, Senior Researcher, said that the FMSP endorsed the submission by Lawyers for Human Rights. It welcomed the establishment of the Status Determination Committee as an effort to encourage deliberation in the status determination process. It felt concerned however that the intended effect of the SDC would not be realised. Instead, the result of the SDC establishment may be a system that must increase its already disproportionate focus on efficiency in order to deal with demand, while sacrificing quality.

 

The FMSP submitted that refugee status determination officers (RSDOs) were not given sufficient time, resources, or training to properly conduct a status determination decision. As a result, almost every decision was cut and pasted, often in an illogical manner without any reasoned argument. This had given rise to an overwhelming number of decisions based on information on the wrong claimant, the wrong country or the wrong set of facts.

 

The establishment of a status determination committee would not alleviate these pressures and may in fact make them worse unless the committee was given adequate time and training to conduct a proper status determination hearing and decision. This would require significantly greater resources than were currently being devoted to the status determination process.

 

The FMSP submitted that status determination officers were not adequately trained on the law regarding refugees. Individuals who had suffered serious persecution and were in need of protection, and who qualified for such protection under the Refugees Act, were improperly denied refugee status because of incorrect applications of the law. For example, individuals who escaped after being detained and brutally tortured as a result of their political beliefs, had been told that they suffered no persecution and can safely return home.

 

FMSP recommended that the following changes to legislation around refugee status determination be adopted in order to rectify negative issues surrounding it:

 

Refugee Status Determination Officers (RSDOs) must interview 10 people per day and issue 10 decisions on that same day: outlawing the use of daily targets for interviews and decisions, which results in short, cursory interviews and no time to issue a proper decision leading to procedurally unfair outcomes

 

The DHA should outlaw same day adjudications (conduct interview and issue decision on the same day) so that the status determination committee has proper time to research claims and make a proper decision

 

The DHA should legislate the manner in which the status determination committee should operate, including proper procedures for conducting an interview and reaching a decision, to ensure a fair, deliberative process-this could include legislating a checklist of procedures/questions that must be covered during the status determination interview

 

The DHA should legislate the key elements that should be contained in a proper status determination decision (e.g. full description of the applicant's claim, a well-reasoned decision that considers the particulars of the individual claim, and does not simply cut and past generic country information)

 

The DHA should legislate a set of monitoring and review procedures to ensure that every decision meets the minimum standards of procedural fairness as outlined in the Promotion of Administrative Justice Act and to ensure that every decision provides a proper basis of review during the appeal procedure-eliminate the current review procedures, where only positive decisions were reviewed

 

It should legislate mechanisms to ensure that DHA was accountable when its systems fail to operate correctly and individual rights were violated, including clear lines of authority and responsibility when legal obligations were not carried out.

Discussion
The Chairperson said that the report which had been written in conjunction with its submission had been circulated to members.

Ms A Lovemore (DA) said that she had read the FMSP’s report on refugee status determination and had found its findings shocking. She asked if that report would be included in the FMSP submission to the Department. She asked which areas of law did status determination officers seriously lack.

Dr Amit replied that the report would be included in the submission to the Department. There were currently cases where RSDOs misunderstood the law, both local and international, and did not deal appropriately with individual refugee applications. There was a lack of understanding of international conventions important in handling refugee issues, to which South Africa was a signatory.

Mr J Thibede (ANC) commented that the qualification of the members of the Status Determination Committee seemed to be a point of serious concern. Legal expertise may not play a major role in determining the veracity of a story given by an applicant seeking refuge in the country and he saw no point why that should be overemphasised.

Dr Amit responded that there was emphasis on legal expertise being amongst the important skills of a determination officer because South Africa was signee to many conventions and an RSDO had to be aware of how best to treat individual cases whilst being mindful of international law. There were currently cases where RSDOs misunderstood the law and did not deal appropriately with individual refugee applications. This damaged the country’s image and credibility in dealing with refugee issues.

The Chairperson commented that the focus of the discussions thus far had been on refugees and laws around refugees but civic organisations needed to keep in mind the issue of economic migrants who sometimes sought protection via the refugee status route. This issue needed to be interrogated.

Southern African Catholic Bishops Conference and Scalabrini Centre of Cape Town Submission
Ms Lois Law, Catholic Parliamentary Liaison Office Researcher and Lena Opfermann, Rights Advocacy Officer: Scalabrini Centre Cape Town presented their joint submission.

The SACBC and SCCT welcomed the amendment of the Refugee Act 130 of 1998 and the Refugee Amendment Act 33 of 2008 in order to clarify how applications for refugee status which were rejected as manifestly unfounded should be dealt with; and to improve certain definitions.

They welcomed the clarity of the proposed definition of ‘biometrics’ as it would hopefully assist with the identification of children, which had been a matter of considerable difficulty. In their experience, the A4 paper document containing ‘refugee status’ was not durable, and they suggested that an alternative form of document be explored similar to a driver’s licence or credit card. They welcomed the extension of the term ‘dependant’ to include ‘a refugee who was dependent on him or her’ as this would include ‘unaccompanied minors’ and other vulnerable persons for whom the said refugee may have assumed responsibility during the chaos and confusion that characterize conflict and the flight there from.

The Conference and SCCT took issue with the Clause 5 of the Bill about the time period to be allocated to refugees wishing to register the births of their children. The period was unrealistically short given the capacity of Home Affairs and the reality that so many refugees and asylum seekers were themselves unregistered and not always able to obtain much-needed administrative assistance. The SACBC emphasised that nothing should detract from the principle that children of refugees who accompany their parents, unaccompanied minors, and children of refugees who were born in South Africa, should be regarded as having the same rights as children of South African parents. Failure to register a child’s birth as stipulated in Clause 5 should not stand in the way of that principle.

The Conference and SCCT raised concern over Clauses 6(a) and 8(c) which proposed the deletion of reference to possible consultation with a UNHCR representative. It was not clear why such consultation was no longer deemed necessary or desirable. The expertise and experience of the UNHCR was a useful resource for the envisaged Status Determination Committee. They recommended that the Refugees Act be amended in a way that enhanced the protection of unaccompanied minors. The Department of Home Affairs staff should be trained in attending to unaccompanied children in a sensitive way.

Discussion
Ms Lovemore asked what the SCBC and SCCT would like to see included in the Bill.

Ms Opfermann replied that they would like to see more interaction between the Department of Home Affairs and the Department of Social Development in order to best address refugee issues through interdepartmental cooperation. The organisations sought more explicit language in the Bill to address the issue of unaccompanied minors because the current language was vague.

Ms D Mathebe (ANC) expressed concern over the registration of births for refugees and the long waiting period that was tied to registering such births.

Mr T Maseremule (ANC) commented that there were worrying allegations of religious organisations being linked to human trafficking.

The Chairperson said that the issue that Mr Maseremule raised was one for discussion at another time.

Ms Opfermann commented that unaccompanied minors were often the victims of human trafficking. Documenting unaccompanied minors would assist in deterring human traffickers.

Mr Thibede commented that the submission raised the interesting point of unaccompanied minors. He sought the views of the SCBC and SCCT on the issue of unaccompanied minors being dealt with in a proposed Children’s Court which they had raised in their submission.

Ms Opfermann replied that the Children’s Court should be supplemented by social workers who assessed the condition of unaccompanied children. This would provide the best remedy for dealing with an unaccompanied minor.

The Chairperson said that the Committee took on board the issues raised by the submission and would try to legislate for unaccompanied minors so that they were not left out of the Bill.

Lawyers for Human Rights (LHR) submission
Ms Kajaal Ramjathan-Keogh, Head of the LHR Refugee and Migrant Rights Programme, said the LHR submission had received the endorsement of fourteen civic organisations working in the area of refugees. It incorporated most of the concerns raised by these civic organisations. The LHR sought better explanation of the constitution of the proposed Status Determination Committee and of “dependent” as delineated by the Bill in relation to refugees seeking status determination. It expressed concern over the poor nature of refugee status determination decisions in the current system and the lack of knowledge or inadequate training of refugee status determination officers.

It expressed concern over the proposed limitation of powers of the United Nations High Commission for Refugees in dealing directly with disaffected refugees. Refugees needed to gain travel documents and proper identity documents which were more durable and similar to South African citizen’s identity documents. The LHR proposed that refugees who had been in the country for 5 years or more should be permitted to apply for permanent residence once their refugee status had been approved. The appeal processes for refugees who had had their application turned down needed to be further clarified and be more transparent to avoid refugees being rejected based on illogical or unlawful reasons. Refugee determination officers needed to be aware of international conventions as they related to people who could not be sent back to their country of origin if they faced death.

Discussion
Ms Lovemore asked if the LHR would consider fair processing of a refugee to include the refugee having an interpreter present at the application process. She asked what the requirements should be for people asked to serve on the Status Determination Committee.

Ms Ramjathan-Keogh replied that the LHR felt that the presence of an interpreter at a status determination interview was vital for a refugee where the determination officer could not understand the refugee. Legal training would have to be a requirement of people serving on the SDC along with a set of standards for assessing applications.

Mr Maseremule asked why the colour of the refugee identity document was important.

Mr Mnqasela commented that the LHR submission made reasonable sense. He reiterated the question asked by Mr Maseremule on the colour of the identity document.

The Chairperson answered both Mr Maseremule and Mr Mnqasela’s questions on the colour of the identity document for refugees by stating that the colour of the South African identity document was green and currently refugees were issued a maroon coloured document. This was discriminatory and hindering in that when attempting to open a bank account, a refugee could not do so with the current identity document they received.

Mr Thibede complimented the LHR on its submission and the inclusive nature of it. He commented that the proposed SDC should not be negatively judged if it produced a lot of status determination decisions in a short space of time. The real issue with the SDC would be the level of training of the people on the Committee.

Ms M Maunye (ANC) asked if the LHR suggested that the waiting period for the refugee appeal process needed to be shortened.

Ms Ramjathan-Keogh responded that the period should be shortened but the quality of the decisions given should be beyond reproach.

Ms M Makhuba commented that the definition of the “dependent” as suggested by the LHR would be too broad.

South African Media and Gender Institute (SAMGI) submission
Ms Veronica Jacob, Researcher: SAMGI, said that her organisation wished to see the reconstitution of the definition of “biometrics” in Section 1 of the Refugees Act which the Bill proposed to delete. The general definition of biometrics was “the measurable physiological or behavioural characteristics that can be used in verifying the identity of individuals” as was stated at the time in the Refugees Act, as amended by section 1 of Act 33 of 2008.

SAMGI wished to see a description of “biometrics” in the Bill which did not allow for refugees to be characterised via racial profiling or stereotyping. The Institute took issue with the proposed deletion of paragraph (f) of Section 8E of Act 130 of 1998, as inserted by section 11 of the Refugees Amendment Act, 2008. The deletion allowed political office bearers to hold a position on the Refugee Appeals Authority.

This was a blatant conflict of interest as office holders had a responsibility to the political party who appointed them as a result of election as well as to the public whose interests they were entrusted to serve. Allowing political figures to hold positions of decision-making power over marginalised people meant the decisions made were political decisions with probable detrimental consequences to the applicant. The Institute stated that the Bill in its entirety was not flawed. The efforts of the Committee to clarify aspects of procedural ambiguity were necessary.

Discussion
Ms Lovemore sought clarity on SAMGI’s comments about using biometrics for racial profiling as she did not understand it.

Ms Jacob responded that SAMGI was merely stating that it did not wish for refugees to be classified according to their race or background. They felt that the biometrics section that had been deleted would allow for such profiling.

Mr Thibede sought clarity on the conflict of interest arising from political office bearers being allowed to sit on the SDC.

Ms Jacob responded that political office bearers were more likely to be beholden to their constituents and the electorate as opposed to carefully taking consideration of the position of a refugee seeking status determination.

Law Society of South Africa Submission
Mr William Kerfoot, LSSA representative, said that the Memorandum on the Objects of the Bill implied that asylum seekers whose applications were regarded as manifestly unfounded, abusive or fraudulent were being done a favour by not having an appeal – they “need not apply for an appeal”. The LSSA felt that that statement was misleading. The LSSA submitted that all too often findings of ‘abusive, fraudulent or manifestly unfounded applications’ were made in respect of genuine, if poorly motivated, applications and revealed a regrettable ignorance of the Refugees Act, of the relevant country, the country’s conditions and of the provisions of the United Nations High Commission for Refugees’ definitive Handbook on how to assess applications.

The LSSA submitted that a further factor in this phenomenon may well be the time pressures under which overworked officials operate to get decisions out as required by their supervisors, however laudable it may be to obtain speedy outcomes. The Society further submitted that Refugee Status Determination Officers were not, in practice, required to ensure that asylum applicants were made aware by the Department of the requirements of the Refugees Act or Conventions in order to qualify for refugee status, much less of pertinent developments in case law. The Department does not even present the would-be applicant with an explanatory note.

The LSSA submitted that an automatic review of a rejected asylum application by the Director-General without the asylum seeker being afforded an opportunity to make submissions on the rejection of an application as manifestly unfounded, was procedurally unjust. The Director-General was hardly likely, on top of all his other duties, to attend to these personally – especially should the Department not want to increase the backlog and delays. The Director-General would inevitably delegate the function, which raised further concerns about the independence and practicality of the proposed internal Department process. Such a procedure would lead to considerable substantive injustice according to the LSSA.

The LSSA submitted that the provision should be amended to provide that the asylum seeker shall be afforded an express right and given a reasonable opportunity to make submissions to the Director-General prior to the decision of their status application being reviewed. The LSSA endorsed the establishment of the Status Determination Committee (SDC) aimed at clarifying the situation and ensure that applications for asylum seekers in terms of the Act were dealt with “efficiently, promptly and in a less subjective fashion”. However, its establishment gave rise to deep concern especially given the backlog that had arisen, notwithstanding the large number of Refugee Status Determination Officers throughout the country.

The LSSA was concerned about the lack of particularity in the Bill – and the proposal that the Minister will be invited to engage in the constitutionally dubious practice of legislating by regulation with regard to:
▪ The constitution of the SDC
▪ The number of members forming the SDC
▪ The functioning of the SDC
▪ How often the SDC will meet
▪ The composition of the SDC
▪ The qualifications of the members of the SDC.

Given the unfortunate low standard of adjudication by Refugees Status Determination Officers, it was particularly important to ensure that members forming the SDC were properly trained and qualified.

The LSSA recommended that the Bill be amended to provide that any asylum seeker or refugee who has resided in the country for a particular period as an asylum seeker, be entitled to apply for permanent residence without need for further inquiry, unless the Department has evidence to the contrary, which can be tabled as part of the application for permanent residence.

Clause 2 of the Bill was problematic in that a clearly trivial, non-political crime committed outside the Republic may serve to exclude the asylum seeker – contrary to the express requirements of both the UN and OAU Conventions.

Discussion
Mr Mnqasela commented that not all refugees who came into the country having committed crimes in their country of origin were here seeking genuine refuge but were using the country as a haven from prosecution.

Mr Kerfoot disagreed and said that the country had an obligation to respect the conventions it had signed which prevented it from sending back refugees who could potentially face death in their country of origin

Ms Lovemore sought clarity on what constituted a ‘procedurally unjust matter’ raised in the submission.

Mr Kerfoot replied that a procedurally unjust matter arose when a refugee’s application was denied for illogical or inexplicable reasons.

People against Suffering Suppression Oppression and Poverty Submission
Mr Braam Hanekom, PASSOP Coordinator, highlighted the high rate of rejection of applications when the process of speeding up status determination was one of the main Department goals as stated in the Bill. Before providing a reasonable mechanism for dealing with rejected applicants, it would be reckless to attempt to accelerate the rejection process.

The organisation felt that the Bill should not be approved until the provisions on how the Department would deal with refugees whose applications were rejected (other than deportation) were aptly provided. PASSOP noted that it was necessary to provide a speedy process but not when the rejection rate was so high, the refugees currently in South Africa should be accommodated. The recommendations themselves were not negative but they would likely create havoc in the current South African context which was less than perfect.

PASSOP recommended that the Department first clarify its immigration policy before approving a Bill that may see the rejection of hundreds of thousand asylum seekers. It was clear that the DHA wanted to document foreigners but that process would only take them out of legal status; encourage crime, xenophobia, exploitation and victimization.

Discussion
Ms Lovemore asked what PASSOP would like added in the Bill to address the inordinately high rejection rate of refugee applications.

Mr Hanekom responded that PASSOP would like to see explicit language in the Bill that defined how the SDC was constituted and expected to carry out its work. There must be provisions in the Bill to assist refugee applicants in applying for status determination.

Mr Mnqasela commented that the offering of the opportunity to apply for permanent residence after a refugee has been in the country for a period that exceeded 5 years was a good point. He commented that the Committee had to look at ways of dealing with refugees whose applications had been rejected. There was a conundrum over the need to speedily process refugee applications and the need to ensure that the results were fair.

Mr Thibede affirmed the principle of a SDC over status determination officers. RSDOs needed to be qualified to deal aptly with refugee issues and required training in order to do the best job possible.

The meeting was adjourned.

 

 

 

 

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