Refugee Amendment Bill: Department of Home Affairs Briefing

NCOP Health and Social Services

17 June 2008
Chairperson: Ms J Masilo (ANC)
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Meeting Summary

The Department of Home Affairs briefed the Committee on the objectives of the Refugee Amendment Bill. It was stressed that all internal procedures for review must be exhausted before making appeals to the courts on refugee issues.  The Standing Committee for Refugee Affairs and the Refugee Appeal Board would be dissolved and replaced with a new Refugee Appeals Authority (RAA).  If an asylum seeker was not satisfied with the decision made on his status he could appeal to the RAA.  If still not satisfied, an asylum seeker could then appeal to the courts. The composition and qualifications of the Authority were outlined. Other amendments highlighted included the insertion of “gender” as one of the grounds for fear of persecution, inclusion of Civil Unions, and consistency with the Refugee Convention and future international agreements. Biometrics, but not DNA, would be a part of the application process. Asylum seeker permits would be issued pending decisions, and applications would be allowed to be withdrawn by the Director General as well as the Minister. Appeals could also be made in Magistrates and High Courts.

Members enquired about the new identification cards, whether the word “partner” did not need to be added to the new section 3(c), applications for refugee status if permanent residence status was withdrawn, the testing requirements, and unfounded applications. Members also asked how those crossing illegally into the country were able to get refugee status, the comparable situation in other countries, the time within which applications could be finalized, the degree of subjectivity in the process, and the focus on asylum seekers and not only on refugees. It was decided that further issues would be examined at a future meeting.

Meeting report

The Chairperson asked whether this Bill was a Section 75 or Section 76 Bill.

Adv Erasumus referred to page 16 of the Bill which stated that it was a Section 75 Bill.

Ms N Madlala-Magubane (ANC) asked for clarity regarding the new Clause 24, which dealt with the issuing of identity  cards similar to South African ones. She expressed concern as other departments would need to be educated on this new identity document,  like the South African Police Services.

Adv Erasmus  indicated that information sharing meetings had been held with other departments regarding these identity cards, and how the Department of Home Affairs legislation had to be implemented.

He explained what the new refugee identity document would look like, and noted that the new Population Register would indicate whether a person was a citizen or not.

Mr B Tolo (ANC) followed up with a question on why there should be legislation on the identity document if the Department was in the process of changing it to the Smart card.

Adv Erasmus said that the legislation spoke of an identity book or a Smartcard. The Smartcard included identification and this would be phased in.

Ms N Madlala-Magubane (ANC) asked why the word ‘partner’ was not included in Clause 13 after or before the word ‘dependants’, as the Civil Union Bill was recently passed.

Adv Erasmus explained that with regard to marriage or civil partnerships, any person would be able to register a partnership under the Civil Union Bill.

Mr Tolo expressed concern about the amount of detail the Bill contained. He said that once a board or body had been established in terms of the legislation it had to make provision for certain rights. He asked if spouses qualified automatically for refugee status.

Adv Busisiwe Mkwebane-Tshehla, Director: Refugee Affairs, DHA, responded that where the spouse cames in with her husband, the principal applicant would be the husband, so refugee status for the spouse and children would come automatically.  She added that status was not determined for each one separately.

Mr Tolo said that this would open up the possibility of people working around the system and marrying for convenience. He asked whether, if a divorce happened, whether the former spouse could qualify for refugee status as separate persons.

Adv Mkwebane-Tshehla responded that many people were taking chances with marriages of convenience. She said this did not work because the Department refused many such applications. Applicants needed to mention spouses and children on their initial application form. Status was not granted automatically.

Ms H Lamoela (DA) asked, in the event that any irregularities occurred with an asylum seeker, whether the South African government could send them back to their country of origin.

Adv Mkwebane-Tshehla responded that if an asylum seeker committed fraud or any other offence, the Department could not send them back to their country of origin, as it had signed Conventions and Protocols to that effect. Certain principles would apply, and the person would be taken to prison and follow the normal procedures in respect of commission of offences in the country.

Mr Tolo asked why, if Permanent Residence was withdrawn, a person could re-apply for refugee status.

Adv Erasmus explained that if a person had been a refugee in the country for five years, then he or she qualified for Permanent Residence, but if something happened, the Director-General has the authority to withdraw their status. The person could then reapply for refugee status and the DHA would review the circumstances in the country of origin to ascertain if persecution still applied.

Mr Tolo asked for clarity regarding the removal of the clause on obtaining DNA samples from applicants. He added that DNA samples could assist if the person was a criminal.

Adv Erasmus responded that the removal of the clause regarding DNA testing was to satisfy provisions in the Bill of Rights, and Clause 36 of the Constitution. He emphasised that the South Africa Bill of Rights prohibited the DHA from taking DNA tests as part of the biometrics because refugees were not criminals. He explained that this was why DNA testing was not part of the new legislation.

Ms Kgarebe (ANC) asked about qualifications and if people could be helped who were without qualifications.

Adv Erasmus replied that regarding the qualifications of Refugee Status Determination Officers (RSDOs), government training would take place, if this was lacking. The criteria provided in the regulations would ensure that training took place.

Ms Lamoela referred to Clause 11 and asked what the motivation was for the dissolution of the Standing Committee and the Refugee Appeals Board. She asked further how the change to a Refugee Appeals Authority would differ from the function of the other bodies.

Advocate Erasmus said that the Standing Committee functions were now performed by the Directorate: Refugee Affairs and questions of the law were addressed by the Directorate:Legal Services. The Department had removed the two bodies to streamline processes.

Ms Lamoela asked if there were Refugee Reception Offices on the borders.

Adv Mkwebane-Tshehla explained that the legislation did make provision for more offices, but for security reasons it could be difficult for people fleeing persecution in their countries to come to offices on the border when they enteredthe country, as they may be safer going to other centres.

Mr Tolo asked why the withdrawal of permits was removed from the Minister’s portfolio and passed to the Director-General, as this was a  political matter which should be located with the Minister.

Adv Erasmus responded that policy should be executed by the Director-General to relieve the Minister from administrative duties.

The Chairperson asked for clarity on Clause 6, regarding the re-application for refugee status after Permanent Residence had been withdrawn. She also asked for an explanation regarding Clause 10 and the Standing Committee.

Adv Erasmus indicated that the question of Permanent Residence had been addressed and the Standing Committee was being dissolved to allow for the Refugee Appeals Authority to fulfill those functions.

Mr Tolo expressed concern about the role that subjectivity played in decisions made by the  RSDO.

Adv Erasmus agreed that there was always subjectivity, but added that the decision made by the RSD is always subject to a review, and, according to the Promotion of Administrative Justice Act (PAJA) reasons have to be provided first, and internal remedies have to be exhausted first before going to court.

Mr Tolo asked about a situation where a person entered the country illegally and just arrived at the office and applies for refugee status. He wanted to know if such illegal activities were being encouraged. 

Adv Mkwabane-Tshehla responded that a person was allowed to enter the country illegally. The government has signed Conventions which allowed for the principle of non-refoulement,  and the legislation did allows persons to approach offices without border permits.

Mr M Sulliman (ANC) asked if an application for refugee status was made in a particular country, would that person be considered an asylum seeker.

Adv Mkwabane-Tshehla said that persecution was based on the five reasons for persecution as outlined in the Bill, Section 3(a), and according to the UN Convention an asylum seeker was anyone who applied for refugee status.

The Chairperson asked how long it took to process an application for refugee status, as she had heard about the long queues and waiting periods.

Adv Mkwabane-Tshehla responded that the current legislation allows for a period of 180 days to finalise an application.  It could be done quicker depending on the capacity of staff. The DHA was targeting the finalisation of applications in shorter periods, by reducing the waiting period from six to three months by implementing new standardised processes. There were some instances, like in Somalia, where it was not necessary for a waiting period as the situation in the country was well known.

Ms F Mazibuko (ANC) stated that she was sure the Department had done some studies in relation to similar scenarios in other countries. She asked whether there was a trend in other countries to give refugees identity documents similar to the ones given to citizens of those countries. 

Adv Makwabane-Tshehla commented that South Africa had acceded to the  UN Conventions without reservations, while other countries have reservations and this was a challenge for the country.

Adv Erasmus added that the DHA had reviewed   pieces of legislation from other countries, but the main piece of legislation was the Constitution, and also the protocols and conventions that South Africa has signed.

The State Law Advisor commented on drafting and delivery issues and referred to Clause 5 of the Bill to express her agreement with the amendment to Subsection 1. She reiterated that the decision taken by the RSDO was an administrative one.

The State Law Advisor stated that when taking DNA samples, one must ensure restricted access to such samples and the Department was not ready to deal with issues of disclosure.

She added that the Act was clear on administrative failures and if someone at the Department failed to  perform, the legislation could not address such matters.

Mr Tolo asked for the Department’s comments on what the State Law Advisor had said.

Adv Erasmus stated that if an administrative decision needs to be taken by the RSDO,  reasons had to be provided and a judicial review could be the next step.

The Chairperson asked the Department for comment on the Public Hearings that were held for this Bill.

 Adv Erasmus said that one of the main issues raised was the dissolution of the Refugee Appeals Board and the Standing Committee to create the Refugee Appeals Authority. The  definitions of biometrics and DNA were deleted from the Bill. He added that with regard to the identity issue, there was no discrimination against persons based on status and this was made clear at the Public Hearings.

Adv Erasmus noted that the protection and general rights of asylum seekers,  and the obligations of asylum seekers were well received at the Hearings. The issue of Manifestly Unfounded Applications, which was first deleted from the Bill, had now been brought back into the Bill.

Adv Mkwabane-Tshehla asked Adv Erasmus to add further comments on the Refugee Appeals Authority (RAA).

Adv Erasmus said that a question was raised about whether the Chairperson of RAA has to sit in on every appeal. This was not possible and the related section was redrafted. The RAA could attend as individuals, but an enabling provision had been created to allow for individuals to sit on the RAA. There was also inclusion of a provision for legally qualified persons besides the Chairperson to sit on the RAA if an appeal was heard. Ultimately the Minister could decide if all or one person needs to be legally qualified.

Adv Erasmus added that the Department did seek to align with other departments, regarding legislation, but other departments were supposed to operate within the provisions of the Act.

The meeting was adjourned



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