Refugee Amendment Bill: deliberations

Meeting report

Introductory Remarks
The Chairperson announced that the Department of Home Affairs (Department and DHA) would assist the Committee in engaging with all the submissions received during the public hearings on the Refugee Amendment Bill (Bill). He stated that the Committee intended to complete this process today and then go through the Bill clause by clause on the following day.

Clause 1 - Definitions
Biometrics
Mr Adam Salmon, Parliamentary Researcher, noted the submission made by the UCT Law Clinic concerning the definition of biometrics in the Bill. It was felt that the provision obliged the use of all the measurements and that the word “includes” should be substituted with “may include”.

Ms H Weber (DA) enquired how the word “behavioural” fitted in the definition of biometrics.

Adv Deon Erasmus, Chief Director: Legal Services, DHA, expressed uncertainty as to why the Department had included this word in the definition, and maintained that the Committee could decide whether to retain or delete the word.

The Chairperson asked what the general practice was for collecting DNA data without having proper legislation in place and the safety of such data. In addition, he mentioned that the current state of the Population Register, which contained information on citizens, was contaminated and not a reliable source of information.

Adv Erasmus indicated that he could not comment about where the DNA information would be stored and how secure it would be because that concerned system issues.

Ms Busisiwe Tshela, Director: Refugee Affairs, DHA, informed the Committee that the Department was sill using the Population Register to create Identification Numbers for refugees.

Adv Erasmus conceded that the Department might run into trouble with the current definition because it allowed for DNA testing, which included the removal of blood samples. He argued that such a provision could be deemed unconstitutional and unjustifiable in terms of section 36 of the Constitution.

Mr Mukesh Vassen, Legal Advisor, Parliament, observed that the new biometrics system would only be used for refugees, and, as such, created a distinction between refugees and other people.

The Chairperson remarked that the Department could run into problems if it looked at its IT solutions without applying the law. He believed that the Department did not apply its mind seriously around this particular area and flagged it for further discussion on the following day. Lastly, he emphasised that the Committee needed to be guided by clear laws that respected the Constitution of the country.

Dependant
Mr Salmon explained the amendment proposed by the Law Society of South Africa (LSSA), regarding the definition of dependant. LSSA proposed that the term “or any person shown to be lawfully dependant” be inserted after the phrase “of the immediate family”. This was intended to widen the amount of persons who qualified as dependants of a refugee.

Adv Erasmus countered that it was difficult to determine whether someone was lawfully dependant or not. For that reason, it was felt that it was necessary to restrict the definition to only include a certain category of persons.

No further comments were made on this subject.

Fraudulent application for asylum
The Department raised no objections regarding the amendment proposed by LSSA (see document).

Spouse
Mr Salmon highlighted the submission made by LSSA regarding the definition of this word (see document).

The Chairperson enquired whether the definition (in the Bill) corresponded with those in the Civil Union Act and the Marriage Act.

Adv Erasmus explained that that it was not necessary to amend the definition of spouse as requested because it was already covered under the definition of marriage.

Referring to LSSAs submission, Mr Salmon suggested that reference should be made to the Immigration Act (as opposed to the Refugee Act) for purposes of continuity. It was also advanced that the two aspects in the definition should be combined.

Adv Erasmus explained that the phrase “a permanent homosexual or heterosexual relationship as prescribed” meant that it would be done in terms of regulations as was the case in the Immigration Act.

Residence
Mr Salmon articulated the concern of the UCT Law Clinic concerning this definition. UCT Law clinic contended that there was a conflation of two concepts-nationality and residence.

Adv Tsietsi Sebelemetja, Acting Director: Drafting (Legal Services), DHA, rejected this input because there was no reference to nationality in the current definition, and therefore there was no problem of conflation.

The Chairperson advised the Committee to flag this issue.

Ms Weber sought clarification how nationality and residence could be used in the same clause.

Adv Yolande Van Aswegen, Legal Administration Officer, Drafting, DHA, commented that many of the submissions were based on the previous Bill that was published before it was certified and that this particular comment fell into that category.

The Chairperson remarked that the Committee was not made aware of this during the public hearings. Consequently, he advised the Committee to proceed with caution when it engaged with the remaining submissions.

Unfounded application
The Standing Committee on Refugee Affairs (SCRA) submitted that the definitions of the terms “manifestly unfounded” and Refugee Reception Office” should be retained.

The Department and the Committee struggled to comprehend what was being requested and that more time was needed to reflect on the amendment.

Adv van Aswegen announced that the Department decided not to retain the definition of the term “manifestly unfounded”, when it decided to abolish the SCRA.

Adv Erasmus clarified that all applications that were found to be manifestly unfounded had a direct review to the SCRA. Currently, this structure (SCRA) was being dissolved and as a result, there was no basis for the retention of those definitions.

Clause 2
Mr Salmon outlined the concern raised by the United Nation High Commissioner for Refugees (UNCHR) regarding this section. (See document)

Adv Sebelemetja responded that Department did not have any problems with retaining the wording in this section. He added that there should perhaps be another paragraph that catered for any other legislation rather than singling out a particular legislation.

The Legal Resource Centre (LRC) proposed that the words “domestic legislation” be factored into subclause 6(1)(e).

The Department and the Committee concurred with this suggestion.

Clause 3
Mr Salmon summarised the submission of the SCRA, which recommended that section 2 and 3 of the Act correspond.

Adv Erasmus maintained that there was a difference between the two sections and therefore they did not need to correspond.

The Chairperson stated that the Committee would note the Department’s comments and revisit this matter at a later stage.

Clause 4          
The UNCHR and the LRC considered clause 4 (a) and proposed changes to it. The former believed that given the wide meaning of ethnicity and race, or membership of a particular social group, the word tribe should be deleted as it was redundant. The latter suggested that a further category be inserted after “political opinion”, namely “adherence to or refusal to adhere to local custom”.

Adv Erasmus indicated that the Department had no firm position on whether to retain or exclude the word tribe. In response to the LRCs recommendation, he indicated that their concern was already captured under religion.

In subsection (c), the UNCHR and Lawyers for Human Right (LHR) emphasised the notion of family unity and the need for spouses and dependants to join the refugee applicant. In its submission, UNCHR asserted that derivative status should be dealt with in the regulations.

Ms Tshela indicated that the Department was currently applying what the UNCHR was saying, i.e. an individual could acquire refugee status based on the fact that either individual had connection to a recognised refugee.

Clause 5
Mr Salmon provided a summary of all the submissions made for this section. (See document)

In response to the LHR’s submission to change “reason to believe” to serious reason to believe”, Adv Erasmus expressed confusion regarding what constituted seriousness in this specific context. He stated that this was a subjective and administrative decision made by an official.

The Committee discussed whether to define the term “non-political crime” as proposed by LRC. Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, stated that this was not necessary because the original provision in the principal Act was already adequate.

A state law advisor believed that the seriousness of the crime should be taken into account in the Bill, which was not the case in the principal Act.

Adv Erasmus countered that it would be difficult to determine what a serious crime was.

The Chairperson stated that this issue should be tagged for further discussion.

Ms Tshela rejected SCRA’s submission that the words “in the country of refuge” should be substituted with “in the Republic”. She reasoned that the Department had acceded to the AU Convention Governing the Specific Aspects of Refugee Problems in Africa, without any reservation. Therefore, she maintained that there was nothing wrong with aligning the provision with that Convention and taking the words directly from that Convention.

Mr Salmon summarised the recommendation of the UCT Law Clinic and the UNCHR, which called for the removal of the words “recognised refugee” because the mere holding of refugee status from another country should not lead to exclusion from status in South Africa.

Ms Tshela stated that the Department did not reject such individuals and re-considered their facts and assessed their case. If an individual did qualified, they would be granted refugee status.

Clause 8
Mr Salmon recited the changes put forward by SCRA an LHR. The former entity argued that the Minister’s power to delegate should be excluded under this section. The latter contended that the functions in subsection 8(2) should not be delegated to any public servant, rather only to DHA employees.

In response to the former Adv Erasmus stated the Minister had the power to delegate her power to the DG and if an applicant appealed their decision, the matter was directed to the Minister.

In response to the latter contribution, Adv Tsietsi and Ms Tshela clarified that a DG could not delegate a power to an official in another department.

The Chairperson voiced concern that the police may be assigned powers to deal with issues of immigration.

Adv Erasmus explained that police officers were designated as peace officers in terms of the Immigration Act. Police only derived powers of search and seizure in terms of that legislation.

The Committee tagged this subject for further discussion.

Clause 10
Mr Salmon outlined the concerns and amendments raised by the different stakeholders. (See document)

Adv Erasmus countered that all of the concerns related to procedure and administrative functions performed by the DG. He maintained that the work of the Refugee Reception Offices was supervised by the Directorate of Refugee Affairs, which was accountable to the DG. The DG was ultimately responsible and accountable to parliament.

It was decided that “may” should be substituted with “must” in subclause 10(1).

Clause 11
SCRA and the Refugee Appeals Board (RAB) identified that the envisaged section 8(B) required the Chairperson to be legally qualified, but it is the members ho would be making the decisions that should be legally qualified.

Similarly, LSSA specified the appropriate legal experience and standing that a chairperson should have.

Adv responded that there were two options available. Firstly, the Department could decide whether 1 person, who was legally qualified, should deal with an appeal. Secondly, the Department could determine that a three person panel should deal with an appeal, and from those; at least one person should be legally qualified excluding the chairperson.

Mr F Beukman (ANC) enquired about the current composition of the Board, in terms of qualification.

The state law advisor clarified that currently all members of the board were legally qualified. He added that this was a coincidence because the existing law did not require such an arrangement. The Department proposed that there should be a 3 person panel that would determine an appeal. From this, one should be legally qualified and the remaining members should possess other skills and experience in dealing with issues of refugees.

Mr Beukman recognised the value in having a mix board. However, he cautioned against court applications against the decisions of the RAA.

Ms Lufundo noted that the Bill as it currently stood, allowed the chairperson to determine an appeal process and who must consider an appeal. This was done in line with international best practice. Finally, she indicated that it would not be a fair administrative process if one person determined an appeal.

Adv Erasmus indicated that currently, the chairperson would have to sit on each appeal. He argued that this was impractical.

Adv Tsietsi agreed that there should be at least three members that decided an appeal. In addition at least one member of the board should be legally qualified.

The Chairperson asked what the rationale was behind having a 3 person and not a 2 person appeal board.

The state law advisor explained that the rationale behind 3 people was that if two people differed, there was one person that could make a decision.

Ms Tshela stated the structure of the Appeal Board would be increased and wondered whether the idea of decentralisation should be considered in each province.

The Chairperson insisted that the Committee need to look at the role of parliament in the establishment of the boards.

Afternoon session

Clause 11 continued…
Mr Salmon articulated the remaining contributions made by the different stakeholders relating to this clause. (See document)

The Chairperson queried whether the Department currently considered appeals in writing or conducted personal hearings. He also sought to establish how the Department assisted people who could not read and write.

Ms Tshela clarified that currently the appeal was lodged at the Refugee Offices. Applicants were provided with forms, which were designed by the Refugee Appeal Board (RAB). In it, the applicant had to give reasons why they were appealing against a decision given by a RSDO. Individuals were assisted by Lawyers for Human Rights and other NGOs and the Appeal Board employed the services of interpreters and translators.

Mr Beukman commented that it would be time consuming and costly to prepare the appeals in writing. Accordingly, he suggested that the form currently used by the Department would be the route to go.

Adv Tsietsi added that in terms of the Bill, the Refugee Appeals Authority (RAA) would make its own rules regarding the procedure on how to approach it. The form would be more appropriate because it would give guidance as to which particular issues an individual needed to indicate when they made an appeal.

The Chairperson queried whether there would be a framework that would guide the RAA to develop its own rules.

Adv Tsietsi indicated that the Act made provision for the development of regulations and rules. While the RAA was an independent body, it still had to conform to what the Act said.

Referring to the Refugee Appeals Boards’ submission, the Chairperson asked the Department why it had left out the word “hear” in subsection 14(1)(a). RAB claimed that it was accepted international best practice that all appeals must be “heard” before they can be determined.

Adv Erasmus was not certain whether “hear” meant oral or written evidence. He reiterated that the RAA would determine the process for determining an appeal.

Adv Tsietsi stated that if appeals were going to be in writing, clause 19 of the Bill made provision for the RAA to call any person if they needed to hear any oral evidence. Consequently, all appeals would be in writing and if there was a need for any oral evidence, this was provided for in the Bill.

The Chairperson stated the Committee needed to digest this issue (of written and oral) further because Members did not want to limit the applicant’s engagement with the RAA.

The SCRA proposed that 8E (b) be reworded. It reasoned that the current provision allowed for a serious, dishonest offender to serve on an authority that is supposed to be upholding human rights.

Adv Erasmus contradicted this viewpoint. He explained that this provision did not allow a person to be appointed on the RAA if they were sentenced to imprisonment during the preceding four years.

The Chairperson stated that the Committee would continue with its deliberations the following day. He anticipated that this process would be finalised the following day.

The Chairperson thanked the Department for their participation and hard work.

The meeting was adjourned.