Refugees Amendment Bill [B30-2010]: changes made due to Committee concerns in response to public submissions

Meeting report

Further Clarifications to Questions Raised by the Portfolio Committee on 2 November 2010
Mr Modiri Matthews, Acting Deputy Director General for Immigration: Department of Home Affairs, presented the Committee with the Departments responses to questions that had been raised in the 2 November meeting on the Refugees Amendment Bill.

The Department had decided to make some amendments to the Refugees Amendment Bill based on queries raised by members in the previous meeting. Mr Matthews referred to Clause 2 of the Bill on the exclusion of persons from obtaining asylum due to certain offences committed in their countries of origin, which if committed in the RSA would be punishable by imprisonment. The Department had resolved to add the words “without the option of a fine” after the words “imprisonment”.

In Clause 3 on the makeup of the proposed Status Determination Committee (SDC), the Department noted that the intention was to have the Director-General establishing the Status Determination Committee in a manner to be provided for in the Regulations. The Department would ensure that before the finalisation of the Regulations and approval thereof by the Minister, the Committee would be provided with the draft Regulations for comment. The Department added that the composition of the SDC would be in a manner that ensured that persons with various skills and knowledge of refugee matters were appointed. The SDC was not a statutory body but an administrative structure to efficiently improve the status determination process.

On concerns raised about Clause 4 which deleted the provision in the Act disqualifying a political office bearer from appointment to the Refugee Appeals Authority, the Department was of the view that the definition of a political office bearer or clarification as to which political office bearers were disqualified should be inserted in the provision. Thus the Department would retain Section 8E(f) but add the words, “holding a position in the national executive committee of any political party” after the words “office bearer” in order to amend Section 8E(f) as introduced in the Refugees Amendment Bill of 2008:

8E. A person may not be appointed as a member of the Refugee Appeals Authority if that person—
(f) is a political office bearer holding a position in the national executive committee of any political party.

On Clause 7 dealing with the automatic review of manifestly unfounded decisions, the Department reiterated that the process of automatic review was procedural therefore there was no need to make it obligatory for the applicant to make representations upon consideration of a manifestly unfounded case. The Refugee Amendment Act of 2008 empowered the Director General to, before reaching a decision, request any person to provide information, or to make further inquiries into the matter or request the applicant to provide any information requested.

It was important to differentiate between the principles applicable to the review process and appeals in the context of the Refugee Amendment Act of 2008 and the automatic review process for those decisions which indicated that the asylum application was not within the ambit of Section 3 of that Act. In conducting the review, the Director General would look into factors such as the reasons advanced by the asylum applicant (bearing in mind Section 3 of the Refugee Amendment Act) and the procedure followed in the adjudication process (bearing in mind Section 24 of the Refugee Amendment Act) and any other factors relevant to the application that the Director General may deem necessary to arrive at a decision.

Discussion
Ms A Lovemore (DA) thanked the Department for making changes to some of the clauses Members had queried in the previous meeting. She commented that ordinarily Regulations for an Act did not come back to the Committee for comment and she was happy that the Department had included a promise to come back to the Committee with the Regulations. She asked whether the regulations pertaining to the issue of unaccompanied minors, contained in the Bill, would be drafted by the Department of Home Affairs or another Department. She voiced her dissatisfaction with the proposed manner in which manifestly unfounded cases would be dealt with. What was the difference between the Refugees Appeal Authority and the process of automatic review?  

Adv Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs replied that the regulations on unaccompanied minors would be drafted by the Department of Home Affairs. He explained that the automatic review would only be instituted in cases where it was clear that an applicant was not in the country seeking genuine refuge or asylum thus their cases were manifestly unfounded. Manifestly unfounded cases arose from applicants/applications which did not meet the requirements noted in Section 3 of the Refugee Amendment Act, 2008. The Refugee Appeals Authority dealt with applicants whose application had been deemed unfounded based on the merits of an application.  

Mr M Mnqasela (DA) added his appreciation to the Department for taking note of the issues flagged in the previous meeting. He voiced particular satisfaction with the correction to Clause 2. He commented that the Department did not appear to take on enough concerns raised at public hearings and seemed to sometimes dismiss some of the comments the public submitted.  Submissions should be taken seriously to avoid producing Bills and Acts which were imperfect and questionable in a court of law.

Ms Z Balindlela (COPE) said that her party had strong belief in giving due and proper consideration to the submissions made by members of the public. She voiced her satisfaction with the proposed amendments to Clauses 2, 3 and 4 but would have to wait to see the regulations pertaining to Clause 7 before adding further comment.

Ms Lovemore said that her concern over the automatic review process was the initial phase where a refugee was classified by a Refugee Status Determination Officer (RSDO), since some RSDOs had been shown to be incompetent. In light of the inefficiencies that existed in the Department in processing applications, would it not be more prudent for the Department to take into account the time spent in the country by an applicant prior to being granted refugee status when considering an application. This was with a view to possibly granting such an applicant permanent residence. She expressed dissatisfaction with the issue of refugees who had been in the country for five to seven years waiting for a refugee permit. She saw no plausible reason not to consider awarding such people permanent residence.  

The Chairperson commented that since RSDOs were going to be replaced by the Status Determination Committee, there was no use in rehashing that topic.

Mr Matthews reiterated the points made by Adv Erasmus on what constituted a manifestly unfounded case

and what constituted an unfounded case.

Mr Tsietsi Sebelemetja, Director: Legal Services, Department of Home Affairs responded to Ms Lovemore’s queries, saying that the Department had established a directorate to research countries where refugees emanated from to assess the situations in those countries. The Refugees Appeal Authority (RAA) would function according to rules which it created. The RAA would seek to act with a certain number of members (to be decided by the Chairperson of the Authority) deciding on the acceptance or rejection of a refugee application as opposed to an individual being tasked with that responsibility. The Department sought to avoid conflating refugee status and permanent residence issues in the Refugees Amendment Bill and rather sought to address permanent residence provisions in the Immigration Act, 2002. Refugee applications were dealt with in less than seven years and in some instances refugee applicants disappeared before their interview with Home Affairs officials. This meant applicant applications were logged in the system but the applicants not located so there were factors in the inefficiencies with dealing with refugee applications.

Ms Lovemore commented that refugee status applications were never processed in a day in her experiences with talking to refugees. She asked what the problem was with taking into account the time spent in the country by an applicant prior to being granted refugee status when considering an application with a view to possibly granting such an applicant permanent residence.

The Chairperson explained that there was a process to be followed before a person could be granted permanent residence and that process was dependent on a person first being granted refugee status.

Ms D Mathebe (ANC) commented that a solution needed to be found to the problem of time taken prior to awarding a person refugee status.

Mr Mnqasela commented that when issues were raised by members, they expected them to be fully followed through and taken relatively seriously.

Ms P Maduna-Peterson (ANC) commented that the Committee should not waste time going back on issues which had already been discussed at length.

Ms Lovemore said that the Department should change the wording of the Bill to allow for the Department to take into account the time spent in the country by an applicant prior to being granted refugee status when considering an application, with a view to possibly granting such an applicant permanent residence. She commented that refugee status could be taken away at any time by the Department and there was no security for refugees despite the time they had spent in the country waiting for refugee status.

Mr J Thibede (ANC) commented that although he had joined the debate late, he saw no logical reason for the Department to change its take on granting refugee applicants refugee status as opposed to granting them permanent residence (based on the time they had spent in the country prior to receiving status). Legislation should be tabled to do away with inefficiencies rather than legislate for inefficiencies.

Mr Sebelemetja replied to Ms Lovemore’s query and said that to his understanding, Ms Lovemore was suggesting that a refugee be considered for permanent residence from the moment he/she submitted the application which could not be done under the legislation in existence. In some cases a refugee did not show up for their interview for status determination and that added to the inefficiencies affecting the awarding of status to refugees.

Mr Matthews added that a refugee application connoted that a person was escaping persecution from their home country and permanent residence application connoted a person who sought to live in the country permanently, members had to look at the issue with that in mind.

Ms Bongiwe Lufundo, State Law Adviser from the Office of the Chief State Law Adviser said that Section 27 (d) of the Refugees Act of 1998 dealt specifically with the issue that Ms Lovemore was querying. It stated that a refugee would become eligible to apply for permanent residence when he/she had lived in the country for a continuous period of 5 years after having received refugee status. That provision seemed to address the issue raised by Ms Lovemore.

Adv Frank Jenkins, Parliamentary Legal Adviser commented that Ms Lufundo’s interpretation of Section 27 (d) of the Refugees Act of 1998 seemed to be correct. He did however understand the concerns raised by Ms Lovemore and the issue of security of refugee status was important.

The Chairperson said that Section 27 (d) of the Refugees Act of 1998 seemed to cover the permanent residence issue.

Adv Erasmus said that Section 22 in the Refugee Amendment Act of 2008 offered protection to a person who had received refugee status, so that that status was not revoked without proper explanation or cause. 

Mr Sebelemetja added that the Department had done research into the practices of other countries on the issue of refugee status determination and the same provisions existed in other countries. The Department was in line with other countries in what it had put forth in the Refugees Amendment Bill.

The Chairperson said that another meeting would be convened where the Bill would be further deliberated on.  

The meeting was adjourned.