Refugees Amendment Bill [B19-2015]: briefing by Parliamentary Legal Adviser; New immigration regulations: Consideration of problems

Meeting report

The Chairperson invited the Parliamentary Legal Advisor to brief the Committee on how the Committee should proceed to remedy the invalidity of section 21(5) of the Refugees Act, 1998.

Ms Daksha Kassan, Parliamentary Legal Advisor briefed the Committee on the progress of the Refugees Amendment Bill, 2015. She said that there were rules to be followed to remedy the constitutional defect. The Committee would be guided by Rules 239, 240 and 241 of the National Assembly. These stated that once the National Assembly gave permission to initiate the Bill, the Committee ought to draft the Bill and the memorandum explaining the Bill. The Bill ought to be published in the Government Gazette for members of the public and institutions to comment on it. This should be done at least within three weeks.

Ms Kassan stated that the purpose of the Bill was to address the Constitutional Court judgment in the Chipu case by amending the Refugees Act 130 of 1998, so as to confer discretion upon the Refugees Appeals Authority to allow the public and the media access to its proceedings in appropriate cases; and to provide for matters therewith. The Bill would be enacted by the Parliament as “Amendment of section 21 of Act 130 of 1998, as amended by Section 13 of Act 33 of 2008.” Section 21(5) of the Refugees Act, 1998 would be amended by the substitution of the following section:
“The confidentiality of asylum applications and the information contained therein must be ensured at all times, except that the Refugee Appeals Authority may, on application and on conditions it deems fit, allow any person or the media to attend or report on its hearing if :-

1. the asylum-seeker gives consent; or
2. the Refugees Appeals Authority concludes that it is in the public interest to allow any person or the media to attend or report on its hearing, after taking into account all relevant factors including:

1. the interests of the asylum-seeker in retaining confidentiality;
2. the need to protect the integrity of the asylum process;
3. the need to protect the identity and dignity of the asylum-seeker;
4. whether the information is already in the public domain;
5. the likely impact of the disclosure on the fairness of the proceedings and the rights of the asylum-seeker;
6. whether allowing any person or the media access to its proceedings or allowing the media to report thereon would pose a credible risk to the life or safety of the asylum-seekers, or of his or her family, friends or associates.

Ms Kassan said that the reference to the Refugees Appeals Authority in section 21(5) of the Refugees Act, 1998 ought to be construed as reference to the Refugee Appeal Board, as provided in the said Act, until such time that section 11 of the Refugees Amendment Act 33 of 2008 came into operation. She stressed that the Refugees Amendment Act, 2008, dissolved the Refugee Appeal Board and thus established the Refugee Appeals Authority.

The Bill was expected to come into operation on 27 September 2015. Should the proposed amendment come into operation, there would be no organisational and personnel implications, neither should there be financial implications for the state. At the time of initiation of the Bill, only the Department of Home Affairs had been consulted as a stakeholder. Other stakeholders were expected to be consulted at later stage.

Ms Kassam said that there was a constitutional implication. The Constitutional Court’s declaration of invalidity of section 21(5) of the Act would take effect on 26 September 2015. The temporary reading-in remedy would fall away. Should the Bill not come into operation on 27 September 2015, there would be a gap in the law.

Referring to the Parliamentary procedure, she said that the Bill would be dealt with in terms of section 75 of the Constitution. This was due to the fact that the Bill did not contain provisions to which the procedures set out in section 74 and 76 of the Constitution would apply. The Committee was of the opinion that it was not necessary to refer the Bill to the National House of Traditional Leaders, since it did not contain provisions pertaining to customary law or customs of traditional practices.

Discussion
Ms O Maxon (EEF) sought clarity on whether the Bill would be referred to the National Council of province (NCOP) for consideration, and whether the three weeks for comments also applied to the NCOP.

Mr M Hoosen (DA) sought clarity on the formulation of paragraph 5(b)(vi). Was it possible for the Refugee Appeals Authority (RAA) to prevent the media from reporting?

The Chairperson responded that the Committee needed a draft Bill to be sent out for comments.
There would be consultations. Mr Hoosen should not worry about the formulation because the Committee would consider these provisions in light of consultations and comments.

Ms Kassam responded that the Bill would not be published again by the NCOP.

Ms S Nkomo (IFP) seconded Mr Hoosen on the determination of the RAA’s power, and sought clarity on what other stakeholders could have been consulted. She felt that there was nothing that could stop the Committee from referring the Bill to the National House of Traditional Leaders for comments, even if it contained nothing related to customary law or customs of traditional practices. 

Mr D Gumede (ANC) said that the point made by Mr Hoosen ought to be looked at. He was of the view that the Committee should stick to the wording of the judge, because the principle Act was about to be holistically amended. The amendment proposed by the judge of Constitutional Court should be adopted as it stood.

The Chairperson responded that that was the spirit. The wording of judge could serve as a basis. On the question of consulting stakeholders, he said that the Department of Home Affairs had been consulted as an executive authority. The publication of the Bill would help the Committee to solicit inputs from other stakeholders. Nothing could stop anyone from making comments on the draft Bill. These inputs would be reviewed and considered before the Committee approved the Bill.

Mr Hoosen remarked that the Committee had the power to look at the Bill’s implications first, to see how these implications could be avoided.

The Chairperson invited the Department to comment on the Bill.

Adv Tsietsi Sebelemetja, Deputy Director: Drafting, Department of Home Affairs (DHA) responded that the Department did not have any comment, and would therefore be happy to comment on the Bill after it was published.

Mr Hoosen moved the adoption of the draft Bill.

Mr B Nesi (ANC) seconded Mr Hoosen.

The Chairperson declared that the initial draft of the Bill was adopted. He went on to seek clarity on whether the Bill should, for publication purposes, be translated only into isiXhosa, isiZulu and Sesotho or in all official languages, to solicit inputs and comments from all the people. It seemed like publication of the Bill might be problematic. 

Ms Nkomo was of the view that publication should be made in all languages, because all South Africans were taxpayers.

The Chairperson sought clarity from the Parliamentary Legal Advisor on what the norm for the publication of a Bill was. Was it traditionally published in all languages?

Ms Kassam said that she would respond to this question after consultation.

Mr Eddie Mathonsi, Committee Secretary, interjected and said that the Bill should be translated in all languages.  He would make sure that all translations were available.

The Chairperson stated that the financial implications ought, for translation purposes, be taken into account on the basis of a reasonableness approach. It was therefore necessary for the Committee to make further inquiry and find out in how many languages the Bill should be advertised.

The Chairperson announced that an ad hoc committee on foreign nationals had been established and that three members of Committee would be part of that committee. Mr Mathonsi would also serve as the ad hoc committee secretary. The Committee was anticipating that all inputs and comments would have been received by 28 July 2015. It would be moving to consider and adopt the Bill into which inputs had been incorporated, by 4 August. In August, the Bill would be referred to the NCOP for consideration. By September, the Bill would be tabled in Parliament for adoption and three weeks before the date of invalidity kicked in, the Bill would be sent to the Office of the President for assent.

Consideration of the third term programme
The third term programme was considered and adopted with minor changes.

Consideration and adoption of minutes
The minutes of 19 and 26 May 2015 were considered and adopted.

New immigration regulations: Consideration of problems
Ms Nkomo raised the issue of problems related to more restrictive immigration measures which had been adopted to strengthen national security. She said the media had been underscoring that these restrictive measures had an impact on the economy because they affected the tourism industry. The tourists who had children were finding difficult to travel in South Africa due to the requirements that they had to meet for them to travel with their children. These requirements had been introduced in order to combat child trafficking. She was of the view that these measures should be reconsidered, to allow parents and their children to travel to South Africa.

The Chairperson responded that there were things that the Committee should be clear about. Members were aware that the Department of Home Affairs had to play a role in national security matters and that South Africa was facing a challenge of child trafficking. Included in the new immigration regulations were measures to fight against child trafficking. It was obvious that the introduction of these measures would make it difficult for child traffickers to carry on with their dirty work. They were therefore crying in the media, because the new measures acted as a barrier to their child trafficking businesses. Every time the state changed the status quo, people who were enjoying it would feel pinched.

South Africa had opened its doors in 1994 to all foreign nationals and now it had moved to closing them half way. Crimes that were being committed should be brought to an end. The new immigration regulations made a demand on foreign travellers that they should travel with an unabridged certificate of their children. This requirement should be adhered to, because this was intended to illustrate that the child a person was travelling with, was their child. Other countries were, for example, requesting yellow fever certificates. No one could therefore argue that these simple measures were affecting the tourism industry, because they were being requested for the purpose of promoting national security.

He agreed that the new measures would of course have an impact on migratory movements. However, it needed to be noted that the Department of Home Affairs was not against people who wished to travel with their children. The statistics illustrated shocking figures of child trafficking. They showed that a number of children who were entering into South Africa were very high compared to children who were leaving South Africa. Could anyone explain what was happening to the large number of children who were not returning home?

Another issue that needed to be acknowledged was the challenge of undocumented migrants. It was awkward that South Africa did not know how many undocumented migrants were in its territory. Migrants were making use of the country’s porous border to their advantage. On top of this, a large number of foreign nationals were overstaying. The new immigration measures could respond to all these highlighted challenges. It was imperative for South Africa to know all foreign nationals in the country for the purpose of its security. South Africa would open its doors to those foreign nationals who wanted to be known, but did not want to deal with those foreign nationals who were hiding their faces. At the global economic forum, South Africa had also announced that it would introduce a new policy on refugees and asylum-seekers. Referring to the new immigration regulations, the CEO of South African Airways had welcomed these measures, even though he had noted that they would have an impact on tourism industry.

The meeting was adjourned.