A Parliamentary Content adviser presented a summary of submissions on the Refugees Amendment Bill. The Agency for Refugee Education, Skills Training and Advocacy (ARESTA) submitted that a clause be revised to require an asylum seeker’s written and informed consent to public access at a Refugee Appeal Board (RAB) hearing. It was also submitted that all factors relevant to confidentiality and protection against risk to life had to be required in the amendment. Mail and Guardian submitted that the manner in which discretionary powers of the RAB with regard to access were exercised, had to be further defined in the amendment. COSATU Parliamentary Office; the Law Society of South Africa; Lawyers for Human Rights and the Catholic Parliamentary Liaison Office all supported the Bill, but there was common concern about the failure of the Department of Home Affairs (DHA) to introduce legislation within two years, as required by a Constitutional Court ruling of 27 September 2013. Jo’burg Child Welfare submitted that the protection of children in terms of the Constitution and the Child Act had to be more emphatically stated in the amendment, as it related to media presence and publication, confidentiality and possible mental and emotional hardship.
In discussion, the ARESTA submission regarding informed and written consent to public access, received the most attention. The DHA and the Chairperson of the RAB were asked if it would imply that appellants would have to be educated about risks related to access granted, with the accompanying burden on administrative resources. It was also pointed out that the requirement of written consent could run up against problems of language and translation. It was also asked who would be making decisions about whether consent was indeed informed. The hearing process could also be delayed by such requirements. The Committee shared the concern expressed in a number of submissions about the failure of the DHA to introduce legislation within two years, as required by a Constitutional Court hearing of 2013. The DHA was urged to move faster with legislation. There was debate about whether certain requirements had to be included in legislation, or dealt with by the rules.
Summary of submissions made on the draft Refugee Amendment Bill, 2015
Mr Adam Salmon, Parliamentary Content Adviser, told the Portfolio Committee (PC) that seven submissions were received in response to the latest amendment to the Refugee Act.
ARESTA commented that clause 1 or 21(5)(a) permitted public access to the RAB if the asylum seeker gave consent. ARESTA recommended that the clause be revised to require the asylum seeker’s written and informed consent.
With regard to clause 1 or 21(5)(b) ARESTA submitted that the subsection gave the greatest weight to public interest while confidentiality and the protection of identity and risk to life were merely listed as “relevant factors”. It was recommended that the (5)(b) clause be amended by inserting “all relevant factors, including but not limited to”, and by inserting “providing that there is no serious possibility that anybody’s safety may be jeopardised if the information were to be made public”.
Mail and Guardian submitted that the interim wording of a Constitutional Court ruling was limited with regard to defining the manner in which The RAB should exercise its discretionary power. A draft was proposed that stressed the need to balance the interests of the appellant in retaining confidentiality with the public interest in full disclosure of the evidence that led to the hearing.
COSATU Parliamentary Office supported the Bill on the grounds that it enhanced constitutional provisions for transparency and accountability, but was disappointed that the DHA failed to adhere to the Constitutional Court ruling that legislation had to be introduced within two years.
The Law Society of South Africa supported the proposed amendments as it was in line with Constitutional Court recommendations.
Lawyers for Human Rights supported the Bill but were likewise disappointed that the DHA did not introduce legislation within two years as required by the Constitutional Court ruling.
The Catholic Parliamentary Liaison Office (CPLO) found it extremely worrying that the dissolution of the RAB and the establishment of the Refugee Appeal Authority (RAA), stipulated by the Refugees Amendment Act of 2008, had not come into operation as yet.
Jo’burg Child Welfare submitted that children who had to give testimony required special provisions under the Constitution and the Child Act at hearings before the RAB. It was recommended that the proposed amendment had to contain emphatic provision that no media could be present at a child appellant hearing, and that no information be published that could lead to the identification of a child. Children also had to be protected from undue mental and emotional hardship through being entitled to testify through an intermediary.
The Chairperson asked the DHA for comments.
Mr Moses Malakate, DHA Deputy Director, said that the Jo’burg Child Welfare submission that children had to be protected, was more of a process than a legislative issue. Submissions from the Law Society of South Africa and Lawyers for Human Rights were not considered important. The DHA agreed with the Catholic Parliamentary Liaison Office who applauded efforts to bring the Refugee Act in line with the Constitution. The DHA agreed with ARESTA about written consent, but was inclined to view it more as a process issue. There was no need for it to be included in a sub clause.
The Chairperson asked Mr Maemo Chipu about his experience with appeals, with regard to how matters were handled and workloads.
Mr Maemo Chipu, RAB Chairperson, replied that there were two applications related to access to hearings. The respondent was the asylum seeker in terms of constitutional law. The RAB decided about refusals. The process relied on the asylum seeker. If information was already in the public domain there was no need for conditions. There were work backlogs. Most cases were prominent asylum seekers. The media were part of the process. It was not foreseen that there would be many applications for access to hearings.
The Chairperson asked if the large workload was related to the Court ruling.
Mr Chipu replied that the backlog had been there for some years, and was not related to access issues.
The Chairperson asked about procedure with regard to children.
Mr Chipu replied that minors usually were accompanied by an adult main applicant. The RAB normally did not have to deal with children’s issues.
The Chairperson referred to the proposal that under subheading (b) on page 3, “but not limited to” be added. He asked if that could cause problems.
Mr Deon Erasmus, DHA Chief Director: Legal Services, replied that ARESTA wanted it stated that it was not an exhaustive list of relevant factors. “But not limited to” would simply make it absolutely clear that it was not an exhaustive list.
Ms Kassan opined that it was already stated that it was not an exhaustive list, in paragraph 47 of the Chipu (Mail and Guardian) Constitutional Court judgment. She was of the opinion that the words “but not limited to was superfluous.
The Chairperson remarked that it amounted to tautology. The submissions were not being contested. Appeal procedure was being dealt with, rather than policy matters.
Mr M Hoosen (DA) asked Mr Chipu if there were any cases involving unaccompanied minors. He asked how such cases were dealt with.
Mr Chipu replied that there were no cases involving unaccompanied minors, unless the main applicant died or returned home. The Act stipulated that the process could continue. The matter was then referred back to the Department.
Ms Daksha Kassan, Parliamentary Legal Adviser, added that the 2008 amendments provided stronger protection for minors. Minors had to be dealt with in terms of the Children’s Act.
Mr Hoosen asked about authority granted to the RAB to set conditions. Conditions had to be set even after granting access, to protect confidentiality.
Mr Hoosen referred to the “and/or” phrasing commented on by ARESTA. He asked if it meant that the media could do one or the other, but not both. He asked if “or” could be omitted. He asked if the decision to grant access could be appealed against.
Ms Kassan replied that “or” was disjunctive, whereas “and” was adjunctive, which implied togetherness. The RAB could decide whether it was to be “and”, “or” or both. For High Court purposes the Promotion of Administrative Justice Act (PAJA) was the overarching Act with regard to confidentiality.
The Chairperson pointed out that the first part of the Bill conferred direction on the RAB to allow access to proceedings.
Mr A Figlan (DA) asked about outstanding applications, and whether it involved children or adults.
Mr Chipu replied that there were outstanding applications due to the backlog. Backlogs were due to lack of capacity. Applications to attend were presented to the asylum seeker to respond to. Conditions had been stated by the Constitutional Court. But the asylum seeker was not to be jeopardised. If the media was allowed to report, there was to be no photographs, if the matter was not in the public domain.
Ms O Maxon (EFF) asked for clarity about written consent. She asked if it would be stipulated who may attend. She agreed with the Catholic Bishops Conference that the introduction of new legislation had taken too long.
Mr D Gumede (ANC) remarked that no one seemed to be opposed in principle. Immigration issues had been discussed at the Departmental colloquium at the end of June. New developments could improve legislation. He supported the position that the legislation could be better aligned with the Constitution. More permanence was needed in legislation. The instructions of the judge had to be complied with. The Department was asked to provide legislation. The Department had to act in line with public expectations, or face protest, which could escalate into violence.
Ms D Raphuti (ANC) said that she hoped that amendments were passed before 27 September. Laws, rules and policies had to be in place to protect the public.
Mr Erasmus replied that amendments of 2008 and 2011 had been delayed because capacity to implement them was still lacking. A 2015 Refugees Amendment Bill was to be introduced, which would draw all amendments together. The JCPS Cabinet Committee had granted permission to publish it for comments in August 2015. It would be introduced in Parliament by the end of September or early October.
The Chairperson noted that there had been a Departmental colloquium some weeks before, which was aimed at a wholesale review of policy. Amendments were for the purpose of compliance with the Court ruling. The Committee had to deal with the review of policy. The question was whether the PC had to spend resources when there was going to be a review at the end of the year. The amendments were of a technical nature.
The Chairperson referred to the issues of informed consent and written consent, raised by ARESTA. The question was what it could bring into the process. There could be an added burden on administration. There could be problems of language and translation, which would call for administrative assistance. He asked what informed consent would entail, in terms of what would be required. The impact on the length of appeal hearings had to be considered.
Ms Kassan replied that informed consent entailed a full understanding of repercussions of granting consent. Consent had to be freely granted. For that to happen, the RAB might have to inform appellants. It could impose an added burden.
Mr Chipu added that all administrative actions were reviewable. The Constitutional Court could ask what happened when the media were not present. RAB decisions could be reviewed by the Court.
Mr Hoosen referred to the balance between granting access and ensuring confidentiality. If an asylum seeker refused media access and the RAB granted it, the asylum seeker could not go to the Constitutional Court. The RAB had to give the appellant a safeguard.
The Chairperson noted that authority was vested in the RAB, as the Bill granted it discretion in terms of access. The question was if another centre of authority was needed. There had to be certainty about who had the final say. The RAB had to regard the interests of the asylum seeker, but it would be problematic to have a policy where the asylum seeker could stop the process.
Mr Erasmus replied that the RAB was an independent body. The Minister could not review its process. There could be a judicial review in Court. An asylum seeker had to motivate why access had been agreed to or not. The Court would pronounce on whether the decision had been rational or not. The media could not freely attend a hearing. There had to be an application.
The Chairperson reminded the DHA that there was a high influx of bills at the end of the year. The envisaged 2015 Refugees Amendment Bill might only receive due attention in 2016. The DHA had to put its foot on the pedal. There were a number of interested parties involved, and the process was a long one.
The Chairperson referred to written consent. He asked what would happen if the asylum seeker could not write. He asked who would determine if there was informed consent, and at what level that would happen. There had to be a system that worked. If a person could not write, the question was who would decide if consent was acceptable. The time factor had to be borne in mind. There were conditions that had to be created for a hearing to be possible.
Mr Malakate replied that the analogy of a patient being informed of risks pertaining to a surgical procedure was apt. In hospitals the patient was informed of risks and then granted consent by signing a form. The RAB administration had to explain the risks related to media access. The written agreement had to show that the asylum seeker had been informed. It was not necessary to put those requirements in the legislation. If placed in the legislation, it would mean that it had to happen. Flexibility could be built in the rules, with regard to oral agreement.
Mr Erasmus added that written consent provided proof, and was part of the process. He agreed that the requirement had to be in the rules, and not in the legislation.
The Chairperson remarked that it was essential that asylum seekers be fully aware of the repercussions of granting access. But the requirement that consent be both demonstrably informed and written, could add administrative burdens.
Mr Erasmus replied that there had to be a process to indicate that the appellant had to be informed. There could be difficulties in that regard. The question was whether consent implied that the appellant had indeed been informed. It might be necessary to ask the appellant if s(he) agreed, and if not, to indicate why.
The Chairperson noted that ARESTA insisted that an asylum seeker was to have a full understanding of risks involved, and possible repercussions. The question was whether the appellant had to be educated about risk, and how it could be tested if the appellant had indeed been informed.
Mr Chipu replied that to require both informed and written consent could be an impediment. The RAB had to look at the facts and decide.
Mr Hoosen agreed that the RAB needed a written record of the process. Informed consent could present difficulties, especially if there were language barriers. Such challenges had to be accommodated.
The Chairperson asked who would decide whether there was a full understanding of risks and repercussions. The question remained whether the RAB would have to educate asylum seekers. To test whether there was full understanding called for more than the rules could capture. He asked how translators would be found. It had to be taken into account that vulnerable people were being dealt with.
Mr Hoosen remarked that issues of informed consent could be accommodated in the rules if possible, but it had to be dealt with.
The Chairperson said that rules could be enquired about in due course, but currently it was a technical amendment that was being dealt with. The Mail and Guardian had suggested that the wording of the Constitutional Court ruling be amended. It might prove necessary for the Court to explain.
The Chairperson asked if there could be agreement about the current text. He read through section 1(5). He pointed out that (i) to (vi) were minimum conditions.
Mr Hoosen referred to the suggestion that “written” be inserted under (a).
The Chairperson asked if the RAB had applied its mind to the requirement that the asylum seeker supply reasons for refusing access. He questioned the use of the phrase that the RAB had to “conclude”, under (b).
Mr Hoosen said that if permission was refused, it had to be written. If consent was granted, it could be possible to only sign a form.
The Chairperson asked if it was currently done in that way.
Mr Chipu replied that consent had to be put on record.
The Chairperson remarked that the asylum seeker could at least sign, or make a mark.
Mr Hoosen opined that including “written” could have no massive impact.
The Chairperson asked if the rules could be clear about consent granted in writing.
Mr Erasmus replied that the rules could not override the Act. Whatever was included in the Act had to be done. If it was included in the rules, it provided an escape.
The Chairperson again asked if it could be sufficient to only sign, if consent was granted, as in consent to a surgical procedure. It might not be necessary to write a submission. He asked what kind of record the RAB had recourse to, on their files.
Mr Chipo replied that it was not necessary to state that consent had to be written. People who wanted access to a hearing knew that they would have to inform the other person, as in a court process. The RAB was a tribunal. It was there to make a decision, not to fight either of the parties. Whoever wanted access had to bring in an application as if before the law. The Constitutional Court had not required that it be written. In access applications the asylum seeker responded first, and then the public applicant. There were documents that enquired why access was wanted, and who the parties concerned were. The asylum seeker responded, and then the public applicant replied.
The Chairperson asked if the response from the asylum seeker could be said to be in writing.
Mr Chipu replied in the affirmative.
Ms Kassan added that the applicant filed in Court. It resembled a notice of motion application. There was currently not a form given to the asylum seeker to sign, but it could be said that there was written consent.
The Chairperson proposed that there be voting on the following Tuesday. It was sufficient for the day to agree to the current text. The Bill had to proceed to the NCOP.
Ms Kassan noted that the Bill had not yet been introduced in the National Assembly (NA).
The Chairperson agreed that it had to be introduced in the NA.
The meeting was adjourned.
- Law Society of South Africa submission
- COSATU submissions
- The Mail and Guardian Centre for Investigative Journalism submissions
- Lawyers for Human Rights submissions
- Jo’burg Child Welfare submissions
- Catholic Bishop’s Conference, Parliamentary Liaison Office submission
- Agency for Refugee Education, Skills Training and Advocacy (ARESTA) submission
- Parliamentary Content Adviser: Summary of submissions made on draft Refugee Amendment Bill, 2015
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