Refugees Amendment Bill: public hearings

Meeting report

Refugees Amendment Bill: Public Hearings
University of Cape Town (UCT) Law Clinic Submission
Ms Fatima Khan, Attorney at UCT Law Clinic, said that that there were many issues regarding refugees that needed to be addressed. She noted that the Law Clinic was concerned at the lack of an extensive consultation process. The Department should also have consulted with traditional leaders as it had been widely reported that many of the leaders were dealing with refugees on a day to day basis.

In regard to the reception offices, the Law Clinic believed that there should be an independent body that performed the work of the Reception Officers.  The Department made a serious omission by removing sections that pertained to training of Refugee Officers. There needed to be adequate monitoring of the reception officers and the Refugee Status Determination Officers (RSDOs) and there definitely needed to be trained officers as well.

Another area of concern was the fact that xenophobia existed at many levels in South African society, including amongst Department of Home Affairs (DHA) officials themselves. The police in particular had been inexperienced in dealing with asylum seekers.  The Departmental officials should engage in proper training so that they could properly deal with asylum seekers, and give the proper protection to refugees and asylum seekers under the relevant legislation.

Discussion
Mr M Sibande (ANC) noted that there needed to be a distinction between refugees and those looking for greener pastures. He also noted that that in general people made a mistake by not consulting traditional leaders, and many argued that traditional leaders did not strengthen their bases. The issue of integration, was still of great concern and the institutions should go to other provinces and conduct proper research on how integration was taking place.

The Chairperson said the presentation had correctly highlighted the fact that traditional leaders were an important component of asylum seekers.

Mr P Mathebe (ANC) said that Ms Khan had noted that she consulted 5 000 refugees in one year. He asked for further elaboration on this on this as he wondered how accurate that statement was.

Mr K Morwamoche (ANC) asked the Clinic to comment on the fact that the police were involved in the consultations whereas the immigration officers were not.  The Clinic should also comment on the deportations of prohibited persons, and on the insufficient budget for deportation.  The Clinic was also asked to elaborate on the equipment and documentation at the holding facilities. The submission raised many concerns where the immigration areas contradicted each other, and he asked that clarity should be provided on why the Department still disregarded the submissions. 

Mr R Sikakane (ANC) also noted that if it were necessary for the traditional leaders to be consulted, then the Law Clinic should comment on the contribution those leaders could make in regard to the Amendment Bill was concerned. The Clinic had also stated that the preferred solution was integration; however the South African public still needed to be educated on asylum seekers. He asked if it was legal for banks to hold monies that belonged to refugees.

Ms Khan replied that the Law Clinic was of the view that if government had indeed done proper consultations, then these should have included all those who dealt with asylum seekers, and there should then have been a very wide range of consultations. Traditional leaders had been reported to have assisted asylum seekers; therefore they too should have been given an opportunity to comment on their interactions with refugees.  In relation to the figure of 5 000 that had been questioned, she noted that this was in fact a conservative guess. She noted that in some periods the Law Clinic would be approached by as many as 250 people per day. Both the immigration officers and the police were consulted. In respect of the deportations, the Law Clinic spoke on behalf of the refugees who had a prima facie case. However many other people had legitimate refugee claims yet they were deported simply because they could not access the correct services by the Department of Home Affairs.

Mr W Skhosana (ANC) asked the Clinic to comment on the issue of permits and whether it would be worthwhile to issue two permits, the first permit for identification, and the second for access to services.

Ms Khan replied that on the issue of temporary permits, the first document a refugee received was the Section 22 permit. Once the refugee had been granted refugee status and his case had been assessed then only could he be issued with a 13-digit number.

Ms M Maunye (ANC) noted that she was concerned with the issue of local integration. The majority of South Africans had started to become more accommodating to non-South Africans. In regard to the documentation, given South Africa’s historical background, she asked for comment on how a proper balance could be struck. She pointed out that it was also difficult for South Africans to receive documentation.

Ms Khan said that there was indeed much goodwill being shown to the refugees on the part of many South Africans out there, but there were also other areas where there was no improvement, so one could not deny that there was still a measure of xenophobia.

Mr Morwamoche asked the Department to comment why the drafters had not include the recommendation from the Courts regarding the rights of asylum seekers. Ms Khan had noted that the Appeal Board was going to appeal their own decision, and he asked for clarity whether it was possible for such a situation to occur. He also asked that the Clinic should comment on whether the definition of illegal foreigner extended beyond an undocumented asylum seeker. He said that the members of the Refugee Appeal authority would have to be legally qualified in terms of the Amendment Bill and feared that there might be a potential conflict with members of the Standing Committee who would have to serve on this appeal authority.

Mr Deon Erasmus, Director: Drafting, Legal services, DHA, replied that the rights for asylum seekers had clearly been set out, and there was a specific clause in the Amendment Bill, which had been created to deal with these issues. In regard to the Refugee Appeal authority, he noted that once it had made a decision, the individual had the right to appeal the decision, and use all other means possible to have it challenged.  Most of the issues raised in the presentation were administrative issues, however in regard to the unlawful arrests the Department made a few grammatical changes in the Amendment Bill.  He clarified that an undocumented asylum seeker was not necessarily regarded as an illegal immigrant.

Mr Morwamoche noted that it was reported that the four judges of the appeal authority were currently not able to cope with the overload of work, yet the Department was proposing that there be only one judge in terms of the Bill. He wondered whether this would work.

Mr Erasmus responded that the issue was an administrative act, and that the turnaround strategy was still looking into operational issues.

The Chairperson asked Mr Erasmus to comment how he expected Parliament to pass a Bill without sufficient clarity.

Mr Mzukisi Makapse, representative for Refugee Affairs, DHA, replied that the turnaround strategy was looking into all aspects of the Department, and took into consideration the Refugee Amendment Bill. There was a concrete proposal in dealing with the issue of the Amendment Bill, because many felt that that the Appeal Board and the Standing Committee were understaffed. Therefore a new body needed to be created to deal with issues. The Department appreciated the work that was being done by organisations such as the Law Clinic in assisting the refugees.

Mr Makapse noted that South Africans were not inherently xenophobic, but that there were many developmental challenges that were being faced. Therefore there was a process of refugee integration taking place within the Department. Whatever the outcome of the process was, it had to be mutually beneficial for both the refugees and local members of the South African communities. He agreed that it would be ideal if the Department could issue of documentation immediately, however certain processes needed to be followed to make sure that documents were issued to the right person.

Standing Committee for Refugee Affairs (Standing Committee): Submission
Mr Claude Schravesande, Chairperson, Standing Committee for Refugee Affairs, proposed changes to several clauses of the Amendment Bill. He noted that Section 2 of the Act should correspond with Section 3, and that this was not the case. Section 4 of the Act was supposed to cover determination of who was not a refugee. The Standing Committee had reason to believe that no single RSDO in the Department had the ability to deal with this as presently worded, as it was far too complicated. He noted that although the Bill sought to remove the Refugee Reception Officer from the Act, there was no removal of the relevant wording relating to the function performed by that official. The Standing Committee recommended that Refugee Reception Officer be retained, or the function should be given to officials other than the RSDOs.

Discussion
The Chairperson asked for the Standing Committee to comment on its experiences with the Department of Home Affairs

Mr Schravesande replied that relations had been very poor. The Standing Committee tried to approach the Director General and the relevant managers in order to discuss various matters, but the relations were continuing to worsen.

The Chairperson asked the Department to comment on the relations with the Standing Committee
 
Mr Makapse acknowledged that there had been problems in the relationship, particularly when the Standing Committee required certain files. Given the poor filing systems at the refugee offices, the Standing Committee had difficulty in recovering the files. The Department finally had implemented systems that would attend to the matter. He pointed out that the past difficulties did not only affect the Standing Committee but the refugees as well.
 
The Chairperson asked Mr Makapse to state how long he had been a director at the Department

Mr Makapse responded that he was not a director, but was present as a representative in respect of matters pertaining to policy and legislation within Refugee Affairs

The Chairperson said that it was unacceptable that the Committee was not dealing with the people responsible for the division, and the Committee could not rely on legal staff to answer on operational matters. Clarity should be provided on whether the Standing Committee had statistics on the cases that needed to be reviewed.

Mr Morwamoche said that it was not right for the Committee to process this Bill without the proper representatives from the Department being present to answer questions. In their document, the Standing Committee did not mention whether immigration officers had been consulted. The submission also claimed that it was not necessary to have a Chief Financial Officer, and he asked for more elaboration on this issue. He also asked for comment on the monitoring of the provincial offices, and what would be their task in ensuring the availability of documents for court procedures.

Ms Maunye asked if there was a working a relationship between the Department and the Standing Committee.

Mr Schravesande replied that the statistics were readily available and were supplied to the Department on a regular basis. The Departmental cases that needed to be reviewed were far and few between. The statistics were only complementary to the backlog project. He confirmed that the immigration officers were involved in the consultation process, and the process was headed by the Department. The Standing Committee’s budget was R4.5 million, which was a drop in the ocean compared to the budgets of other governmental organisations and compared to the Department. This was the reason why it did not believe that there was a need for a Chief Financial Officer. The Standing Committee did not exercise total independence in regard to budget allocations and expenditure, as the Director General of DHA was the accounting officer. However, the Standing Committee believed that their independence had not been compromised by not having a Chief Financial Officer, and noted that it would also be very costly to employ one. He explained that the Standing Committee was mandated to monitor the refugee offices. The Standing Committee therefore monitored close to 8 000 refugee applications through the Refugee Reception Officers. The Standing Committee had never withheld documents from anybody, and would always be willing to provide the necessary documents needed for legal processes.

In regard to the working relations with the Department, Mr Schravesande noted that there was a Committee set up to improve the working relations between the Department and the Standing Committee, which was to be chaired by the Director General. Not more than five meetings took place. When this issue was raised by the Standing Committee, it was decided to hold an additional two meetings, but these did not take place. In regard to the backlogs, he clarified that there was nothing in the legislation that was causing the backlogs, and that the problem was rather in the way in which the legislation was being implemented. 

Mr Morwamoche noted that some of the backlogs were a result of systems not speaking to each other. He asked whether there was any double counting of backlogs taking place.

Mr Schravesande replied that it was not the Standing Committee that counted the backlogs, but the Department of Home Affairs. There were indeed cases where double counting had taken place, and there were also cases where individuals had abandoned their applications, and yet they were still counted as backlogs.

Mr Skhosana asked for clarity on the composition of the Standing Committee, and asked whether there was any progress in requiring the Chairperson of the Standing Committee to hold legal qualifications.

Mr Schravesande noted that the Standing Committee consisted of a Chairperson and three members. The Chairperson was not legally qualified, but the three members were.

The Chairperson noted that it was important for all issues to be looked into and understood before the Committee could pass the Bill. 

Refugee Appeal Board Submission
Mr Tjerk Damstra, Acting Chairperson, Refugee Appeal Board, made a submission proposing that several amendments be made. He noted that it was clear that the Bill did not require members of the Refugee Appeal Authority to be legally qualified. The Appeal Board, however, deemed it necessary for all members of the Refugee Appeal authority to be legally qualified in view of the quasi-judicial work they performed.  Refugee law was a highly specialised area of law that required insight that only a legally qualified person possessed.  

The Appeal Board conducted an average of 50 appeal hearings in one week. Appeal hearings were conducted at the regional Refugee Reception Offices at six-weekly intervals. This meant that every second week, selected members traveled to their Appeal offices and conducted hearings. If the Chairperson had to hear all the appeals, then he would be constantly out of office, and no appeals could be conducted during the time that the Chairperson was visiting other offices. Apart from creating a tremendous strain on the Chairperson, valuable time would be wasted. He therefore proposed that there must be changes in respect of the relevant parts of Section 8.

Discussion
The Chairperson asked the Appeal Board to comment on their working relationship with the Standing Committee for Refugee Affairs, and the Department of Home Affairs.  He also asked the Board to comment on its budget allocation, and the composition of the Board.
 
Mr Damstra replied that the Appeal Board consisted of four members, and that he had been Acting Chairperson since June 2005.  The Minister was responsible for appointing a Chairperson and since 2005 no formal appointment had been made to the post of chairperson. The only possible reason for the delay in the appointment was due to the fact that the Minister was waiting for the Amendment Bill to be passed. He reported that the Board’s budget was similar to that of the Standing Committee.

Mr Sikakane asked the Appeal Board to comment on the number of appeals the board heard each month.

Mr Schravesande noted that the issues that the Amendment Bill was trying to address existed at the time in which he was still working in the Department, and he believed therefore the amendments were necessary.

Mr Damstra noted that the figures given in the written submissions reflected the period 2002 to 2007.  In 2002 the Braamfontein office alone received 162 appeals. He then gave a comparison in this office for 2007, noting that the figures went up to 464.  The figures for Cape Town’s office went up significantly from 169 in 2002 to 626 in 2007.  In 2002 there were still four members in the board, and it was clear that they performed far better in 2002. He noted that after an appeal had been heard the members hearing it would have to write up their decision. Matters had now reached the point where the appeals were so numerous and the pressure so intense that there was no time for members to write decisions. Therefore the Appeal Board was struggling to cope with the increase in numbers of appeals.

The Chairperson asked, given the current state of the Appeal Board, if the proposals in the Bill would resolve the capacity challenges that were currently being faced.

Mr Damstra replied that if the proposals as framed in the Bill were accepted, then the Minister would be in a position to appoint new members.

The Chairperson asked whether the matter had been raised with the Department.

Mr Damstra replied that last year the Board had met with the Director General and the Department’s legal section, and as a result of that meeting it was decided to amend Section 8. However the Department had not followed through on its decision.

Mr Morwamoche asked for clarity on the definition of illegal foreigner, and why it did not go beyond an undocumented asylum seeker.

Mr Skhosana noted that Appeal Board seemed to be a full time job for all members. He asked for further clarity on how the Board would deal with appeals from other provinces, since it was based in the main cities.  The Appeal Board should also comment on whether it had looked into what other countries on the African continent were doing, as well as the international practices.

The Chairperson said that it was important to engage with regional counterparts

Ms Khan noted that the Law Clinic came before the Appeal Board with cases all the time. She noted that the letters of rejection that were given to the refugees were of poor quality. There needed to be continuous training of Refugee Status Determination Officers. She asked if Mr Damstra could comment on the matter, and on how the poor quality of the letters was affecting the work of the Appeal Board.

Mr Damstra replied that the Board conducted appeal hearings in all the major refugee centres. Where there was a Refugee Reception Office, the Board would schedule hearings.  He noted that refugee problems existed all over the world and the Board would look into all the different authorities, including those on the Continent, and study what their practices were. In regard to the question around the letters of rejection, it was true that some of the letters were very poorly constructed. The Appeal Board went through a detailed process in which individual cases were scrutinised. It should be noted that about eight out of every ten decisions that were made by the RSDOs were correct, but that the reasoning given in support of those decisions was poor.

The Chairperson said that one had to measure the work that had been done with the proposed amendments. There was a necessity to be cautious about bringing amendments to Parliament, when there was no capacity to implement the law. Parliament would not amend a Bill simply for the sake of doing so. There had to be a convincing argument in support of the amendments sought. Mr Damstra had raised some critical issues in his proposals, and they needed to be discussed.

Ms Maunye asked Mr Damstra to comment on how long he had been Acting as Chairperson. She asked whether the RSDOs were included in the workshops that the Board had held.

Mr Damstra replied that he had been in an acting position since May 2005. In regard to the workshops, he confirmed that the RSDOs were present.

Mr Morwamoche commented that according to the law, Mr Damstra was only supposed to be in his position for six months.

Mr Damstra replied that his contract was renewed every six months.

Mr Erasmus spoke to the issue of the discussions between the Board and the Department. He said that when they had met, an agreement was reached on the suggestions made by the Appeal Board, and these were incorporated in the initial draft. However when the Bill went to the State Law Advisors, they were not happy with some of the provisions, and they had amended the provisions before certification. Once the amendments were made, the Bill was published in its present form.

In respect of the training, Mr Erasmus noted that training was an administrative function, and the issue went back to the Department to implement the correct action. Therefore it was not possible to legislate for the training of officials

The Chairperson noted that it was unfortunate that the proper officials were not present at the meeting. Ms Khan was not suggesting that the training should be legislated, but she was emphasising that the Clinic was confronted by incompetent officials on a regular basis.

Lawyers for Human Rights (LHR) Submission
Ms Kaajal Ramjathan-Keogh, Head: Refugee and Migrant Rights Programme, Lawyers for Human Rights, noted that this organization was concerned that a number of the obligations placed on Refugee Reception Officers had been discarded. This resulted in the absorption of the role of the Refugee Reception Officers into the role of the RSDOs. Another area of particular concern was the treatment of children in the asylum process. There was still a lack of clarity on who held responsibility for dealing with children, especially those who were unaccompanied children. In an attempt to streamline the asylum determination procedure, it was of concern that a number of entitlements accorded to asylum applicants during the application process had been disregarded.

Discussion
The Chairperson noted that the entitlement of the refugees was guaranteed in the Constitution. He asked Lawyers for Human Rights to comment on why entitlement should be made specific in the Bill.

Ms Ramjathan-Keogh replied that the documents issued to the refugee did not list what the refugee was entitled to. Therefore it was difficult for South African society to accept asylum seekers. Many asylum seekers’ children were not attending schools, because their rights were not explicitly stated and they were not aware of them.

The Chairperson noted that the Committee raised a similar point around the explicit reference to the rights of the refugees, and on the issue of children refugees. There had been some very technical amendments that Lawyers for Human Rights had proposed, and the Committee would work closely with the Department in attending to some of the issues that had been raised. 

The Chairperson noted that the issue of documentation kept coming up again, but with the new systems that the Department had put in place, the Committee had been assured that there would be a fast tracking of the maroon identification document.

Law Society of South Africa (LSSA): Submission
Mr William Kerfoot, Representative: Law Society of South Africa (LSSA), said that biometrics, as defined, included taking fingerprints and photographs. This was not disputed by the LSSA’s Committee that focused on refugees. However, biometrics also included taking of DNA samples. The justification for such a grave invasion of the asylum seeker’s rights to privacy, dignity and equality was not made clear. More importantly there was no provision in the Act setting out who was to manage the database, nor was there any indication of who was to act as the appeal mechanism to protect the privacy of asylum seekers.  Given that criminal elements within the Department had access even to the Department’s population register, the LSSA felt that unregulated access to the DNA of asylum seekers could not be automatically taken as justified. The LSSA urged that such a critical issue not be left to regulation, but be addressed in the Bill itself by Parliament.

Clause 24 stated that if a person was detained in terms of the Act for longer than 30 days, a Magistrate was to “review” the detention. The LSSA Committee was deeply concerned at the vagueness of what was a critical oversight mechanism, in respect of extremely vulnerable person. It was suggested that the Bill must provide that the detainee should be allowed to make written and/or oral representations; and that clause 24 be substantially re-worked in order to contain meaningful content.

Discussion
Mr Sikakane said that he was worried about the extension of legally qualified persons as suggested in the written submission. If the level of legal qualification was increased, then he feared that the Bill would be hit by a skills shortage.

Mr Kerfoot commented that the Refugee Appeal Board had to make very profound and far reaching decisions. When dealing with appeals, extensive research, together with a thorough knowledge of law, was necessary. For this reason the LSSA believed that the members would need to have legal qualifications.

The Chairperson noted that the Committee would look into the issue of qualifications for the appeal board, as it was a necessary point for debate.
 
The Chairperson noted that the Committee had looked into the issue of biometrics during the Committee’s oversight visit to Germany.  However at no point were there any public consultations on the issue of biometrics, and at some point the Committee would have to engage on the matter. The Department should comment on their approach in dealing with the matter. 

Mr Erasmus replied that there were many risks that were involved in biometrics, and there was the possibility of constitutional challenges. Therefore before the matter was taken forward, it had to be dealt with very carefully.

The Chairperson asked Mr Kerfoot to state why LSSA had raised the issue.

Mr Kerfoot replied that biometrics was an enormous invasion to an individual’s privacy, and in the wrong hands it could do enormous harm. The matter had to be dealt with very thoroughly and carefully by the Committee. Lawyers for Human Rights believed that there was no justification for the taking of samples.

The meeting was adjourned.