Refugees Amendment Bill [B30B-2010]: consideration and finalisation

NCOP Health and Social Services

23 March 2011
Chairperson: Ms R Rasmeni (ANC, North West)
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Meeting Summary

The Committee met with the Department of Home Affairs to finalise and vote on the Refugees Amendment Bill [B30B-2010]. The Deputy Minister of Home Affairs informed Members about the purpose and background of the Bill. The main objective of the Bill was to amend the Refugees Act, 1998 (Act No. 130) in order to clarify how applications for refugees status rejected as manifestly unfounded and unfounded had to be dealt with. As defined in the Act, a manifestly unfounded application was an application for asylum made on the grounds other than those acceptable according to the Act. There were three categories under which a person could qualify for refugee status. These categories determined whether that person could be granted asylum status. In addition, the Deputy Minister outlined South Africa’s obligations on asylum seekers and refugees by contextualising the difference between the two. The legislative framework, Asylum Seeker Mandate (ASM) as well as permits and products and the problem statement were included in the presentation. In line with these amendments was a proposed transformation approach. Lastly, the presentation highlighted also spoke around high level proposed amendments and dealt with the amendments clause by clause.

Members were asked to vote on the proposed amendments and all provinces present voted in favour of the Bill and the proposed amendments.

Meeting report

Opening remarks:
The Chairperson said that due to time constraints, the Department of Home Affairs would not deliver its presentation. Rather, the Deputy Minister would speak around the key points and highlight what needed to be brought to the attention of the Members before voting would commence.

Department of Home Affairs, Refugees Amendment Bill [B30B-2010]: presentation
Hon. Fatima Chohan, Deputy Minister, Department of Home Affairs, explained that the three categories under which an application qualified for refugee status was if that person:
owing to a well founded fear of being persecuted by reason of his or her race, gender, tribe, religion, nationality, political opinion or membership of a particular social group, was outside the country of his or her nationality and was unable to avail himself or herself of the protection of that country
•owing to external aggression, occupation, foreign domination or other events seriously disturbing public order in either part or the whole of his or her country of origin or nationality
•was a spouse or dependant of a person contemplated in the above two paragraphs

An unfounded application on the other hand was an application made on the above mentioned grounds, but which was without merit.

Ms Chohan said that South Africa was a signatory to a number of international conventions, and the 1996 Constitution guaranteed fundamental rights to all individuals, including refugees and asylum seekers. The Bill of rights entrenched the rights to human dignity, freedom and security of the person, and the right of everyone in South Africa. Ms Chohan highlighted the difference between an asylum seeker and a refugee. An asylum seeker was a person who had fled his or her country of origin and was seeking recognition as a refugee in the Republic of South Africa, and whose application was still under consideration. A refugee was an asylum seeker who had been granted asylum status and protection in terms of the Refugees Act No. 130 of 1998.

Ms Chohan said that the problem statement of the Department highlighted that the status determination system was failing. At the first stage of determination the emphasis was on establishing the authenticity of the application, analysis of the founded fear of persecution and risk assessment. The challenge here was that the adjudication process relied on an individual, who was the Refugee Status Determination Officer (RSDO), who was low level and not in a position to carry out the task at hand. This resulted in the systems credibility being undermined. Applications for asylum from persons whose claims did not fall within Section 3 of the Refugees Act were clogging up the process. It was proposed that a provision for the Refugee Status Determination Committee be made into the Act to introduce the collective decision-making process in the adjudication of the claims. This would address the challenge of responsibility to adjudicate asylum claims being concentrated on the individual RSDO’s. It would also improve the credibility of the process as it ensured quality checks.

Ms Chohan highlighted that another amendment to the Bill focused on the provision for the registration of a child born of an asylum seeker in terms of the Birth and Deaths Registration Act No. 51 of 1992. This was to provide that an asylum seeker or refugee must, after registration of a child born in the Republic, submit the certificate issued in terms of the Birth and Deaths Registration Act, at any Refugee Reception Office in order to have the said child as a dependent of such an asylum seeker or refugee. This was to provide the child with basic services such as healthcare and education. Also, the function that was vested in the Director General to certify that person would remain a refugee indefinitely was now vested with the Minister. The function to withdraw a refugee status was also with the Minister.

Ms Chohan explained that asylum seekers, whose applications were rejected as manifestly unfounded, abusive or fraudulent, need not have applied for an appeal. Their applications were automatically reviewed by the Director General in terms of Section 24B. Applications rejected as unfounded, on the other hand, were dealt with by the Refugees Appeals Authority in term of Section 24B. This Bill therefore sought to clarify the situation by creating a Committee that would deal with applications for asylum in terms of the Act instead of the Refugee Status Determining Officer, as was currently the case. This would ensure that the applications for asylum in terms of the Act were dealt with efficiently, promptly and in a less subjective fashion. Once the Committee had rejected the applications as manifestly unfounded, the Director General would automatically review such a decision under Section 24A. If the applications were rejected as unfounded, the asylum seeker may lodge an appeal with the Refugee Appeals Authority.

Proposed amendments to the Refugees Amendment Bill [B30B-2010]
New Clause
Due to time constraints, the Department could not do a clause by clause explanation of the Bill (slides 22 to 45). Ms Chohan explained that the Department had proposed certain amendments to the Bill for the purpose of further clarification. In addition to these proposed amendments, they were proposing a new clause, on page 3, before line 36, to insert the new clause, “Amendment of Section 8C of Act 130 of 1998 as inserted by Section 11 of Act 33 of 2008. Section 8C of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) An appeal contemplated in subsection (1)(a) [must] shall be determined by a single member or such number of members of the Refugee Appeals Authority as the chairperson may deem necessary: Provided that at least one of such members is legally qualified.”.

Clause 6
On page 4, in line 7, to insert after “Committee” the words “or any of its sub-committees”. “(2) When considering an application for asylum, the [Refugee Status Determining Officer] Status Determination Committee or any of its sub-committees-“

On page 4, in line 11, to insert after “Committee” the words “or any of its sub-committees”. “(3) The [Refugee Status Determination Officer] Status Determination Committee or any of its sub-committees must at the conclusion of the hearing conducted in the prescribed manner-“

Mr Frank Jenkins, Senior Parliamentary Legal Advisor, said that he wanted to note that the words “or any of its sub-committees” was only used in certain places where decisions were being made, but not in all places where there was reference to the Status Determination Committee. In Clause 8, page 5, line 4 and line 9 there should also be reference to the sub-committees to avoid misinterpretation.

Ms Chohan said that the Department did not oppose these amendments. It would be drafted and sent to the Committee.

The Chairperson said that the Committee would vote on the Bill with the inclusion of the amendments to Clause 8 as noted by Mr Jenkins.

Ms D Rantho (ANC, Eastern Cape) asked how the registration process of refugee children would work.

Ms Chohan replied that newly born children would have to be registered at a Home Affairs office within 30 days of birth. These children would be registered on the Births and Deaths Register, and not on the National Populations Register. Thereafter, the parent would have to take the birth certificate to their nearest Refugee Registration Centre, so that the child could be added to that specific register for refugees. This was for the alignment of refugee parents and children, and for the provision of basic school and healthcare services for that child.

Mr Mashamaite (ANC, Limpopo) asked how the amendments itself would impact on the current legislation with regards to the RSDO’s.

Ms Chohan replied that the basis would remain the same; just the decision-making person would be changed. A more skilled person would now be making the decision.

The Chairperson asked the Member to vote.

Ms D Rantho (ANC, Eastern Cape) voted in favour of the Bill.

Ms B Mncube (ANC, Gauteng) voted in favour of the Bill.

Mr T Mashamaite (ANC, Limpopo) voted in favour of the Bill.

Ms M Makgate (ANC, North West) voted in favour of the Bill.

Mr M De Villiers (DA, Western Cape) voted in favour of the Bill.

The Committee adopted the Bill with amendments.

The meeting was adjourned.



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