Refugees Bill [B135-98]: briefing & discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
27 OCTOBER 1998
REFUGEES BILL [B135 - 98]: BRIEFING & DISCUSSION

Documents handed out:
Proposed amendments to the Refugees Bill by Department (see appendix)
Public Submissions:
Human Rights Watch
Lawyers for Human Rights
National Consortium on Refugee Affairs
South African Catholic Bishops Conference
South African Human Rights Commission
United Nations High Commissioner for Refugees (UNHCR)

SUMMARY
The committee was briefed on the Refugee Bill. Deliberations began in earnest. The committee planned to reconvene a little later the following day to allow study of the written submissions which had arrived only in time to be handed out at this meeting.

MINUTES
The meeting was chaired by Mr D Lockey (ANC) and attended by about 12 ANC members and 8 opposition members, joined later by 4 ANC members from the NCOP. The chairperson introduced Mr A Tredoux and Adv V De La Hunt from the drafting Task Team, whom the Minister had requested to brief the Committee on the Bill. He also introduced Adv Malathu (Deputy Director General of Home Affairs) and several other officials from the Department.

Mr Tredoux commenced by stating that the Bill incorporates the obligations accepted in terms of South Africa's signature to international protocols as well as the rights and obligations spelt out in our own Constitution; the social and economic interests and needs of South Africa in its specific circumstances and the lessons to be learnt from the experiences of other nations with their own legislation. It aims to provide a fast-track procedure to make possible a reduction in the backlog of applications.

He then led the Committee through the Bill's contents pages, with the following comments:
Cl 3 is based on international legislation
Cl 4 applies mainly to "bogus applications"
Cl 9 establishes the Standing Committee for Refugee Affairs to formulate
policy and monitor the consistency of standards nationally
Cl 13 requires the Appeal Board to have at least one legally qualified
member
Cl 17 is based on other similar legislation
Cl 23 would only apply in exceptional circumstances
Cl 24 provides for an (initial) decision to be made by the Refugee Status
Determination Officer (RSDO)
Cl 27 provides for refugees to have the same rights and protection as
citizens
Cl 29 prohibits the detention of refugees for more than 30 days
Cl 38 provides for the promulgation of regulations to control a possible
mass influx, in consultation with the Premier of the province concerned.

Written submissions had been received very late and the Department was compiling amendments in terms of their suggestions, which would be finalised by the morning of 28 October. Mr Momberg (ANC) reminded the committee that a joint meeting with the NCOP was to have been arranged to discuss their proposed amendments, in order to expedite the Bill. As a result four ANC members from the NCOP joined the meeting until 12 o'clock, with a promise to return.

The Department had listed 8 proposed amendments so far:
Cl 6 (missed this)
Cl 8 (1) Replace the Minister with the D-G as it is a purely administrative matter
Cl 13 (1) (a) Delete, as it applies to the whole Bill
Cl 21 Include a time-frame of 14 days from arrival within which application for an asylum-seeking permit must be made
Cl 24 (3) Because the RSDO is not required to have legal qualifications, he should not be required to make a judgement, only to make a recommendation to the Standing Committee
Cl 26 (2) Delete, because it would be strange for the Minister to appeal against a decision of an official or a body he has appointed
Cl 30 (2) Delete, because it is not really necessary/advisable for the ID to be similar in appearance to that of a citizen
Cl 39 Replace "may" for "must" and do not make consultation compulsory, in order to expedite procedures.

The chairperson then took questions and comments on specific clauses, mostly from ANC members, and quite a number he posed himself. These were mostly answered by the drafters, in particular Mr Tredoux:
Cl 3 : It was felt that reference should be inserted to membership of a group declared by the Minister to be refugees in terms of Clause 35 (1).

Cl 5 (1) (b) : Ms Smuts (DP) felt this clause could be problematic, particularly if applied in the way a similar clause is applied to dual citizenship.

Cl 5 (2) : Mr Momberg (ANC) felt there would always be individual cases which should be treated on merit.

Cl 6 (1) : The chairperson felt that the Act must be applied "and interpreted" with due regard to international agreements.

Cl 10 : It was stated that, in line with the White Paper, the Standing Committee should have at least one member with legal qualifications. It was also queried how many members were envisaged, as they would be full-time, with salaries found from the Home Affairs budget.

Cl 12 : It was pointed out by the chairperson that, as declared in the White Paper, the independence of the Appeal Board was essential.

Cl 13 (3) : It was felt by the chairperson that this was not phrased in clear language.
Cl 22 (3) : The powers of the Refugee Reception Officer were queried, and the possibility of corruption noted. Mr Tredoux pointed out that the situation would be monitored by the Standing Committee. The period referred to is that of "asylum-seeking" before a determination has been made, during which employment may be taken up.

Cl 24 : This was seen as a major structural issue.
Cl 24 (2) (b) : It was felt that legal representation should be allowed, but not offered, as it leads to delays and is needed at the end of the process not at the beginning.
Cl 24 (2) (c) : There is a need for a language clause and interpretation should be provided where required.

Cl 24 (3) : The role of the RSDO is central to the whole structure and received considerable debate. He may be seen as an extension of the Standing Committee, making decentralisation possible. The Refugee Reception Officer takes the initial statement and facilitates the completion of the application form for asylum .The RSDO hears oral evidence and makes the determination - an "awesome responsibility" even if he is well trained, though his determination may be reviewed/monitored by the Standing Committee or even the Appeal Board. If all the determinations have to be made or reviewed by the Standing Committee or a panel, can there be decentralisation and can the backlog be reduced ?

Mr Tredoux stated that the aim is fair: comprehensive interviews at ground level with properly trained RSDOs, as promptly as possible, leaving a possibility of review. Fast-tracking is to reduce the workload of the appeal Board and the consequent backlog. It was confirmed that an Appeal Board decision may still be overturned by the High Court.

Cl 30 (2) : The need for the ID issued to refugees to be similar in appearance to that for citizens or permanent residents was debated at length - Similar cards endorsed "Refugee" would cost less ; different colour/appearance would be more easily recognisable in grassroots situations; no guidelines had been found in international protocols ; refugee status is by its nature temporary, dependent on conditions in the home country, so these ID cards would not be issued from the Population Register.

Cl 33 : The UNHCR requested clarification on the issue of dependants. The drafters had endeavoured to provide for individual applications for each person.
Cl 34 : It was proposed to include an additional refugee obligation - to monitor the political situation in the home country (for example, the change in Mozambique since the elections.) The chairperson pointed out that this function was effectively handled by UNHCR .

Cl 35 : Mr Chikane queried whether the drafters had considered the experiences and legislation in other countries which had suffered mass influx of refugees. Adv de la Hunt pointed out that there were specific provisions covering such mass influx which would be controlled by Ministerial promulgation.

The meeting adjourned at 12.50. It would re-adjourn only at 9.30 the next morning to allow study of the written submissions which had arrived only in time to be handed out at this meeting. Meanwhile the law advisers would consult with the Department to consider the new proposals for a change in the structure.

In a mini-debate Ms Smuts (DP) asked to address the committee on the issue of foreign spouses of South African nationals being threatened with deportation. This was accepted as affecting very many cases and causing considerable hardship.

Mr Momberg (ANC)said that efforts were being made to reduce the incidence of "marriages of convenience". In each case both sides of the story needed to be heard, with or without legal representation. The criteria/regulations seem to be changed continually. It was decided to ask to meet with the Migration Section of the Department the following week to ask for clarification of the regulations.

Appendix
Proposed Amendments [B135-98]: 27/10/98
REFUGEES BILL [B 135-98]

ARRANGEMENT OF THE ACT
On page 1 line 12 to insert "Interpretation"

DEFINITIONS
(xi) On page 6, line 13 to insert "without reasonable cause" after "based".
(xiv) On page 6, line 22 to delete and substitute with:
(xiv) "refugee" means any person who is a refugee in terms of section 3 of this Act;

CLAUSE 6
1. On page 8, line 42 to insert "Interpretation" before "Application.
2. On page 8, line 43 to insert "interpreted and" before "applied".

CLAUSE 8
On page 10 line 9 omit "Minister" and substitute "Director-General".

CLAUSE 10
On page 10 line 38 to insert the following paragraph:
(4) "At least one of the members of the Standing Committee appointed in terms of section 10(1) must be legally qualified."

CLAUSE 12
On page 12 line 6 insert the following paragraph:
(3) The Appeal Board must function without any bias and must be independent.

CLAUSE 13
1. On page 12 line 10 and 11 to delete (a).
2. On page 12 line 16 and 17 to delete (3) and substitute:
(3) A person may not be appointed as a member of the Appeal Board if he or she
(a) is not a South African citizen;
(b) has been sentenced to imprisonment without the option of a fine during the preceding four years.

CLAUSE 21
On page 14 line 39 by the insertion of the following paragraph;
(5) The confidentiality of asylum applications and the information contained therein shall be ensured at all times.

CLAUSE 24
On line 32 and 33, by the deletion of (a) and (b).

CLAUSE 25
On page 18 line 11 by the deletion of (c) and the substitution of the following paragraph:
After the Standing Committee has decided a question of law referred to it in terms of section 24(3)(d), the Standing Committee shall refer the application back with such directives as are necessary and the Refugee Status Determination Officer shall decide the application in terms of this section.

CLAUSE 26
1. On page 18 line 20 by the deletion of paragraph (b)
2. On page 18 line 22 by the deletion of paragraph (2)

CLAUSE 27
On page 18 line 52 to delete "stateless" and replace with "refugee".

CLAUSE 28
On page 20 line 5 by the deletion of this section and the substitution of the following:
(1) Subject to section 2, a refugee may be removed from the Republic on grounds of national security or public order.

CLAUSE 30
On page 20 line 39 by the deletion of (2) and the substitution of the following paragraph:
(2) An identity document referred to in subsection (1) must be in the prescribed form

CLAUSE 33
On page 22 line 6 by the insertion of the following paragraphs:
(2)Where a dependant of a recognised refugee is within the Republic in accordance with an asylum seeker permit or residential permit issued to him in terms of this Act, and ceases to be a dependant by reason of his or her marriage, his or her attaining the age of majority or the cessation of his or her dependence upon the recognised refugee, as the case may be, he or she may be permitted to continue to remain within the Republic in accordance with the provisions of this Act.

(3) Upon the death of a recognised refugee or upon his or her divorce, every person who, immediately before such death or divorce was within the Republic in terms of this Act as a dependant of such recognised refugee, may be permitted to continue to remain within the Republic in accordance with the provisions of this Act

(4) Nothing contained in this Act shall prevent a dependant of a recognised refugee or a person who has, in terms of subsection (2) or (3), been permitted to continue to remain in the Republic from applying for recognition as a refugee in accordance with the provisions of this Act

CLAUSE 37
On page 24 line 4 and 5 by the deletion of these lines and the substitution of the following:
"is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment."

CLAUSE 39
On page 24 line 24 by the deletion of the word "proper" and the substitution of appropriate".

Appendix
Proposed Amendments [B135-98]: 27/10/98
REFUGEES BILL
[B 135-98]

ARRANGEMENT OF THE ACT
On page 1 line 12 to insert "Interpretation"

DEFINITIONS
(xi) On page 6, line 13 to insert "without reasonable cause" after "based".
(xiv) On page 6, line 22 to delete and substitute with:
(xiv) "refugee" means any person who is a refugee in terms of section 3 of this Act;

CLAUSE 6
1. On page 8, line 42 to insert "Interpretation" before "Application.
2. On page 8, line 43 to insert "interpreted and" before "applied".

CLAUSE 8
On page 10 line 9 omit "Minister" and substitute "Director-General".

CLAUSE 10
On page 10 line 38 to insert the following paragraph:
(4) "At least one of the members of the Standing Committee appointed in terms of section 10(1) must be legally qualified."

CLAUSE 12
On page 12 line 6 insert the following paragraph:
(3) The Appeal Board must function without any bias and must be independent.

CLAUSE 13
1. On page 12 line 10 and 11 to delete (a).
2. On page 12 line 16 and 17 to delete (3) and substitute:
(3) A person may not be appointed as a member of the Appeal Board if he or she
(a) is not a South African citizen;
(b) has been sentenced to imprisonment without the option of a fine during the preceding four years.

CLAUSE 21
On page 14 line 39 by the insertion of the following paragraph;
(5) The confidentiality of asylum applications and the information contained therein shall be ensured at all times.

CLAUSE 24
On line 32 and 33, by the deletion of (a) and (b).

CLAUSE 25
On page 18 line 11 by the deletion of (c) and the substitution of the following paragraph:
After the Standing Committee has decided a question of law referred to it in terms of section 24(3)(d), the Standing Committee shall refer the application back with such directives as are necessary and the Refugee Status Determination Officer shall decide the application in terms of this section.

CLAUSE 26
1. On page 18 line 20 by the deletion of paragraph (b)
2. On page 18 line 22 by the deletion of paragraph (2)

CLAUSE 27
On page 18 line 52 to delete "stateless" and replace with "refugee".

CLAUSE 28
On page 20 line 5 by the deletion of this section and the substitution of the following:
(1) Subject to section 2, a refugee may be removed from the Republic on grounds of national security or public order.

CLAUSE 30
On page 20 line 39 by the deletion of (2) and the substitution of the following paragraph:
(2) An identity document referred to in subsection (1) must be in the prescribed form

CLAUSE 33
On page 22 line 6 by the insertion of the following paragraphs:
(2)Where a dependant of a recognised refugee is within the Republic in accordance with an asylum seeker permit or residential permit issued to him in terms of this Act, and ceases to be a dependant by reason of his or her marriage, his or her attaining the age of majority or the cessation of his or her dependence upon the recognised refugee, as the case may be, he or she may be permitted to continue to remain within the Republic in accordance with the provisions of this Act.

(3) Upon the death of a recognised refugee or upon his or her divorce, every person who, immediately before such death or divorce was within the Republic in terms of this Act as a dependant of such recognised refugee, may be permitted to continue to remain within the Republic in accordance with the provisions of this Act

(4) Nothing contained in this Act shall prevent a dependant of a recognised refugee or a person who has, in terms of subsection (2) or (3), been permitted to continue to remain in the Republic from applying for recognition as a refugee in accordance with the provisions of this Act

CLAUSE 37
On page 24 line 4 and 5 by the deletion of these lines and the substitution of the following:
"is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment."

CLAUSE 39
On page 24 line 24 by the deletion of the word "proper" and the substitution of appropriate"