Refugees and Immigration Amendment Bills: presentation of NCOP proposed amendments

Meeting report

Immigration Amendment Bill [B32B-2010]
Mr Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, said that gave a clause by clause explanation of the amendments proposed by the NCOP. He noted that most of the amendments to the Immigration Amendment Bill (the IA Bill) were technical in nature, relating to words or grammar in clauses. The NCOP felt that there were instances where the wording was too repetitive and suggested omission of some phrases to make the IA Bill flow better. In particular, the NCOP had proposed the omission of “in consultation with” in some clauses.

Mr Erasmus then outlined the clauses in which amendments were proposed. Words to be inserted were underlined, and those to be excluded appeared in square brackets.

Clause 2
On page 3, in line 55, the word “definition” had been spelt wrongly. On page 4, in line 10, the word “the” should be omitted, so that the relevant phrase would read: “ ‘visa’ means the authority to temporarily sojourn in the Republic for [the] purposes of-”

The NCOP also proposed that, on page 4, in line 11, the word “a” be omitted before the word “transit”.

The NCOP felt that on page 4, in line 19, subparagraph (f), the comma after the word “Republic” should be left out.

Clause 3
The NCOP proposed that on page 4, line 36, the comma after the word “State” in subparagraph (ii) be omitted.

Clause 4
The NCOP proposed that on page 4, line 55, the word “a” should be inserted before the word “port”. In addition, the word “the” before the word “visas” should be omitted, in subparagraph (e).

Clause 7
The NCOP had proposed that on page 6, line 24, a comma be inserted before the word “a” and the word “the” should be omitted, before “purposes”. “

In addition, it had proposed new wording for subclause (2). Mr Erasmus  noted that the new words were underlined, and those to be deleted were enclosed in square brackets:
”(2) Subject to this Act, upon application in person and in the prescribed manner [and on the prescribed form, one of the temporary residence permits contemplated in sections 11 to 23 may be issued to], a foreigner may be issued one of the following visas for [the] purposes of-”

Clause 8
The NCOP proposed that on page 7, line 7, the word “the” should be omitted before the word “purposes”, in subparagraph (a).

Clause 11
The NCOP suggested that on page 8, line 15, there should be a comma after the phrase “invested in”.

Clause 13
The NCOP had proposed that on page 9, at lines 36 and 37, the wording “in consultation with the prescribed departments” should be omitted. Secondly, it proposed the substitution of the word “permit” with “visa”.

Clause 17
The NCOP suggested that in subparagraph (b), at line 26 of page 10, line 26, the word “to” be omitted, and that the word “and” be inserted, so that the clause read “the substitution for paragraphs (a) and (b)”.

Clause 20
The NCOP suggested that on page 11, line 33, the comma after the word “declaration” be omitted.

Clause 21
The NCOP proposed that on page 11, at line 52, in subclause 21(2)(a), a comma be inserted after the word “Republic”.

Similarly, on page 12, lines 2 and 11, a comma should be inserted after the word “Republic”. 

Clause 24
The NCOP suggested that on page 13, line 49, a comma be inserted after the word “Act”. In line 50 it proposed to insert a semi-colon after the word “year”.

On page 14, in line 22, the NCOP proposed that the words “option without a fine” should be inserted after “years”, in subclause (9).

Clause 26
The NCOP had proposed that on page 15, at line 44, the word “no” should be omitted and the word “an” be inserted, in subparagraph (iii).

Discussion
Ms A Lovemore (DA) asked why the NCOP had proposed the removal of the words “in consultation with” in Clause 13. She said that she was concerned that the Department seemingly was taking it upon itself to determine how many foreigners were coming into the country.

Mr Jackson Mckay, Deputy Director General: Immigration, Department of Home Affairs, said that the only reason the NCOP had for removing this phrase was that the Members of the Select Committee had felt that there was over-emphasis on the use of the phrase “in consultation with”. In fact, no corporate permit could be issued without consultation of both the Departments of Home Affairs and of Trade and Industry. The Department of Home Affairs could not issue permits without consultation.

The Chairperson asked Members to confine themselves, at this point, only to asking questions of clarity. All substantive issues in the Bill had already been debated extensively.

Ms Lovemore said that she would have liked to see an impact regulatory assessment done on this Bill as the transport industry would be affected by the domestic transport conveyance list.

Mr M Mnqasela (DA) said that the amendments proposed to Clause 18 did have an impact on the Bill and the actions of the Department of Trade and Industry. He wanted to know what would govern the numbers of people allowed into the country.

Mr Erasmus replied that Clause 13, amending section 21(c) of the Immigration Act, dealt with the maximum number of foreigners who could be employed. The applicant for the corporate visa also had to justify the number of foreigners needed.

Mr Mnqasela was concerned about the issue of job creation for local South Africans, within the country. He was aware that the Department of Trade and Industry was engaging with other Southern African Development Community (SADC) countries, to enhance economic ability and trade opportunities.

Mr A Gaum (ANC) asked whether the amendments regarding consultation had initially come from the Department.

Mr Erasmus replied that the Department had proposed these amendment to the NCOP, who had agreed.

Ms Lovemore said that there could be very different interpretations of the words “after consultation with” and “in consultation with”. She wanted clarity, as the meaning of “after consultation” could be interpreted that minimal consultation only was needed.

Mr Gaum said that Ms Lovemore should not introduce new notions into the meeting, to confuse the meanings of clauses. She was placing the Committee in a difficult position, because it was necessary for the Portfolio Committee to agree with the amendments proposed by the Select Committee, if the Bill were to move forward.

The Chairperson asked for clarity on the rules governing section 75 bills, saying that she was under the impression that with a section 75 bill, it would be up to the Portfolio Committee to accept or reject the amendments proposed by the NCOP.

Mr Theo Hercules, Senior State Law Advisor, Office of the Chief State Law Advisor, replied that this was correct. This Committee could decide whether to adopt or reject the proposed amendments to the Bill.

Mr Mckay added that the purpose of introducing these amendments was not to undermine the Portfolio Committee. Through every process in dealing with the Bill, the Department had found ways to improve the clarity or simplicity of the Bill. The NCOP had agreed that the changes proposed to the wording were useful in enhancing its clarity.

Refugees Amendment Bill [B30B-2010]
Mr Erasmus then proceeded to present the amendments suggested, by the NCOP, to the Refugees Amendment Bill (the RA Bill)

Clause 3
On page 3, at line 31 onwards, the NCOP had proposed the insertion of a new subclause (2), as follows:

“(2) Each Refugee Reception Office must consist of at least on Status Determination Committee established by the Director-General in the prescribed manner to consider and deal with the applications for asylum in accordance with section 24; provided that the Status Determination Committee may establish subcommittees of no less than two members.”

Clause 4
On page 3, after line 35, the NCOP proposed that following be inserted:
“Amendment of section 8C of Act 13 of 1998 as inserted by section 11 of Act 33 of 2008”

“6. 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 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 such member is legally qualified.”.

Clause 6
The NCOP had proposed that on page 4, in line 7 and line 11, the words “or any of its subcommittees”
should be inserted after the word “Committee.

Clause 8
The NCOP had proposed similar insertions of “or any of its subcommittees” also on page 5, in line 4 and line 8.

Discussion
Mr Mnqasela said, in relation to the changes proposed in clause 4, that one person could not be in charge of making decisions as this presented a danger to the Department. The Committee had gone through this issue many times before.

Mr Mnqasela asked why subcommittees might be needed, as previous briefings stated that Refugee Status Determination Officers (RSDOs) were not qualified. It was comforting to know that the Status Determination Committees were established, but the subcommittees would broaden the risk for problems in the long term.

Mr Mckay replied that there was currently a huge backlog with the applications of foreigners. The subcommittees would be set up to deal with the different categories of rejections, such as those rejected because they were unfounded, manifestly unfounded, and other categories. This would help with the Refugees Appeals Authority’s work. Appeals were currently clogged because there were a large number of appeals, but there was not steady enough work being done on them.

The Chairperson asked how many people were going to make up the Status Determination Committees.

Mr Mckay replied that this would be outlined in the regulations, but it would be between eight to ten persons.

Ms Lovemore said that she was concerned whether people who would be sitting on the committees and subcommittees would be legally qualified and knowledgeable about the country and issues of xenophobia. Currently, the RSDOs did not have that expertise. The idea of subcommittees had some merit, as long as they were viable.

Mr Mckay replied that at least one person in the committees and subcommittees had to be legally qualified and have knowledge about the refugee situation across the African continent, in order to help make the correct decisions.

The meeting was adjourned.