Refugees Amendment Bill: adoption

NCOP Health and Social Services

24 June 2008
Chairperson: Mr B Tolo (Mpumalanga; ANC)
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Meeting Summary

The Committee elected an Acting Chairperson. The Department of Home Affairs legal drafter briefed the Committee formally on the scope and purpose of the Refugees Amendment Bill, which sought to amend certain definitions in Clause 1, to provide for the delegation of powers, and to provide for matters related to the establishment of Refugee Reception Offices. It further addressed the dissolving of the Standing Committee for Refugee Affairs and the Refugee Appeals Board and allowed for the creation of the new Refugee Appeals Authority, and set out the way it would be constituted and provisions around its officials. The Bill dealt with procedural aspects of the refugee status determination process, and set out the obligations and rights of asylum seekers. He highlighted a change to Clause 14, to allow refugee parents to register a newly born child at any Refugee Reception Office. He explained the process in relation to Manifestly Unfounded Applications in Clause 16, noting that all internal processes had first to be exhausted before an applicant could approach the Court. The Court considering matters was now stated as the Magistrates Court rather than the High Court.

Members raised questions around the registration processes for children of refugees, the status of children born in South Africa and the process for acquiring residence and adoption, as also how refugees and asylum seekers would be advised of their rights and the procedures to follow. Members voted to accept the Motion of Desirability, and then proceeded to adopt the Bill, having considered all clauses. It was decided that a report would be given in the House by the Chairperson.

Meeting report

Appointment of Acting Chairperson
Mr Arico Kotze (Committee Secretary) reminded the Committee that the Chairperson of the Committee had indicated that she would not be able to attend the meeting. He added that according to Rule 92 of the National Council Of Provinces, if the Chairperson of the Committee was unable to attend, the Committee may elect another of its members as acting chairperson. He then asked for nominations.

Ms N Madlala-Magubane (Gauteng; ANC) nominated Mr B Tolo, and he took the Chair.

Refugees Amendment Bill (the Bill): Department of Home Affairs (DHA) Briefing
The Acting Chairperson noted that the Bill had been only informally discussed last week as it had not yet been on the ATC. The Department was therefore asked to brief the Committee formally. 

Advocate Deon Erasmus, Chief Director: Legal Services: DHA, briefly reviewed the purpose and scope of the Bill. He noted that it sought to amend certain definitions in Clause 1, to provide for the delegation of powers, and to provide for matters related to the establishment of Refugee Reception Offices. More importantly, it also addressed the dissolving of the Standing Committee for Refugee Affairs and the Refugee Appeals Board and allowed for the creation of the new Refugee Appeals Authority (RAA). The constitution and members of the RAA were also detailed. The Bill would also provide for clarification and revision of procedures relating to the refugee status determination process. The obligations and rights of asylum seekers were also in the Bill, as the existing legislation was silent on those issues. The Bill would further repeal or amend other sections of the principal Act.

Adv Erasmus brought to the attention of the Committee a change to Clause 14. During the deliberations it was noted that the original wording of this clause required a newly-born child to be registered as a dependent at the Refugee Reception Office that had processed the parents’ application. He pointed out that people would move around and it would be highly inconvenient to expect them to return to the original office where they had registered. Therefore the Clause was amended to include the word “any”, so that the child could be registered at the nearest Refugee Reception Office.

Adv Erasmus also pointed out that the Committee had raised an issue in regard to Manifestly Unfounded Applications in Clause 16. During its deliberations the Portfolio Committee on Home Affairs had decided that Manifestly Unfounded Applications was to be retained and certain amendments were made. The Standing Committee for Refugee Affairs dealt with the reviews of the Manifestly Unfounded Abusive and Fraudulent Application, but since this Standing Committee was to be dissolved, the Director-General of Home Affairs would then perform this function. Any decision by the Director-General could be appealed to the RAA. All the internal processes had to be exhausted before a Court judgement could be sought. The definition of Court had been amended from the “High Court” to the “Magistrate’s Court”.

Ms K Kgarebe (North West; UCDP) asked if the refugee office was temporary and if the child of the refugee would be considered a South African citizen.

Ms Busi Mkhwebane-Tshehla, Director: Refugee Affairs: DHA, replied that in the case where both parents were asylum seekers, the child had to go through a formal registration and was also termed as an asylum seeker.

Ms Madlala-Magubane asked if the Department could explain what was the status of the child that was born in South Africa.

The Chairperson responded that a child born of refugees remained a refugee unless one of the parents was South African.

Mr M Thetjeng (Limpopo; DA) asked what would be the case of a child who, having been born in South Africa, then returned to his home country, but later decided to apply for citizenship on the basis of his South African birthplace.

Ms Mkhwebane-Tshehla replied that it would depend on the number of years the parents of the child remained in South Africa. If the person who was a refugee was in the country for more than five years, he or she could apply for permanent residency, which would allow him or her to reside permanently in South Africa as a non-national. After another five years they could then apply for citizenship. It would depend on the circumstances of each particular case.

Mr Thetjeng asked if the child would have to go through all the same processes if he had already reached an age of maturity and then travelled back and forth from his country to South Africa.

Adv Erasmus replied that Clause 20 of the Bill specifically stated what the refugee was entitled to, and that set out that he would be entitled to permanent residence after five years of continuous residence in the country, calculated from the date that he was granted asylum. If the child was acknowledged as a refugee and had been in the country continuously for five years, that child has the right to apply for permanent residence. In terms of the legislation in place, the five years could not be interrupted and a person would first have to apply for permanent residence, and then citizenship.

The Chairperson asked how would this information on all the procedures and avenues reach the applicants.

Adv Erasmus replied that reasons had to be provided for every decision taken. The options were provided in the amended legislation. According to the Bill, reasons had to be furnished whenever an applicant was refused, and the further information and avenues the applicant could then pursue had to be provided.

Mr Thetjeng asked for further clarification on the term “unaccompanied child”.

Adv Erasmus replied that a child was defined as someone under the age of 18 years. There would be situations where children were brought into the country and left destitute. Those children were then regarded as unaccompanied and in need of care. The Department would bring this fact to the relevant authorities since their care fell outside the DHA domain. This was in line with the Children’s Act.

Members of the Committee noted that they had no further questions.

The Acting Chairperson read out the Motion of Desirability to amend the Refugees Act 1998. This was accepted by Members.

The Acting Chairperson noted that the Committee, having considered all the clauses, was in agreement on the Bill.

The Committee voted to adopt the Bill

The Acting Chairperson noted that the report of the Committee would be presented in the House. This was a Section 75 Bill. He and asked if the Committee wanted a statement or debate in Parliament.

The Committee decided that they would deliver a statement, and that it would be given by the Chairperson.

Committee Business: Adoption of Minutes
Mr Thetjeng was not impressed with the fact that there was misinformation regarding the agenda of the meeting.

Mr Kotze explained that no notices were sent regarding the meeting; the notice that was sent was the regarding the Refugee Amendment Bill. The agenda item was on the order paper. He had notified the relevant officials. 

The Acting Chairperson noticed that this Committee had a tendency to hand over responsibility to the Chairperson and he suggested that the load of work be shared.

Mr T Setona (Free State; ANC) responded that although he agreed with the Chairperson, the rights of the Committee members had to be respected.

Mr Thetjeng responded that the responsibility of the Chairperson was to request another member of the Committee to make the statement.

Ms Kgarebe noted that the Whip of the Committee informed her that the statement was a political issue and should be done by the Chairperson.

The Acting Chairperson believed that the Committee should take collective responsibility.

The Committee adopted the Minutes of 17 June 2008 with amendments.

The Acting Chairperson adjourned the meeting.


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