COMMENTS OF THE STANDING COMMITTEE FOR REFUGEE (SCRA) ON THE

REFUGEES AMENDMENT BILL

PREAMBLE TO THE COMMENTS
The Amendment bilI seeks to dissolve the Standing Committee and the Appeals Board and create an Appeals Authority. It further seeks to relieve the current SCRA of its duties. in terms of section 27( c) of the Act (certification for permanent residence), section 36 (withdrawal of status) and review of applications found to be manifestly unfounded, abusive or fraudulent in terms of section 24(3)(b). The functions mentioned in section 27(c) will be vested in the Refugee Status Determination Officer (RSDO) while section 36 will be vested in the Director-General. It should be noted that the SCRA has considered 3510 applications in respect of section 27(c) in the last three years since the appointment of the current members. Of these 2660
were approved and 850 rejected. Prior to the appointment of the current members this function was performed by the Department and they considered a very small number (no stats available) and approved none. The SCRA has withdrawn the status of 34 refugees while the Department withdrew about five. Again no stats are available.

The review procedure in respect of section 24(3)(b) falls away completely and becomes an appeal procedure. That is to say the fast track procedure falls away. Here is should be noted that the only procedure required in terms of the Act that is completely up to date, working smoothly and without a backlog, is this fast track procedure so why it would be removed and replaced with an appeal procedure that already has a backlog of about two years is not clear. The SCRA strongly recommends that the fast track procedure in respect of manifestly unfounded, abusive and fraudulent applications should be retained and that the SCRA is also retained. If it is decided to merge the two bodies then the Bill should give the new Appeals authority a sub committee to deal with fast track cases and this procedure should be retained.

Since its appointment, the SCRA has reviewed 4403 applications that were found by the RSDOs to be manifestly unfounded, abusive or fraudulent. It is not clear how the Appeals Authority will cope with this additional workload. There were two rounds of consultation during the development of the bill. At the end of
the first it was decided that the SCRA and the RAB should continue to exist and perform their respective functions but that the functions of the SCRA should be amended to remove all the purely administrative functions. This was agreed unanimously but when the first bill was published it differed totally from what was decided. This was pointed out to Legal Services and the Bill was subsequently withdrawn. The whole process was repeated.

During this second round of consultations a final workshop was held and again the two bodies had been removed and the functions of the SCRA moved to the Department. Once again this was against the advice of all in the workshop with the exception of one junior official from Refugee Affairs. However his wishes were included in the Bill and not those derived Tom two rounds of expensive consultation with the countries experts.

COMMENTS

The comments hereunder are numbered as in the Bill.

SECTION 1

The definitions of the term "manifestly unfounded" and "Refugee Reception Officer" should be retained and will be further commented later on under the appropriate sections.

The proposed definition of an unfounded application should not have the proposed (a)

included. This should be a definition of its own i.e. "manifestly unfounded" applications.

See the above comment.

SECTION 3

Section 2 of the Act must correspond exactly with section 3. This is not currently the case nor is it in the Bill. Section 2 of the Act aims at entrenching the principle of non refoulment and 3 determines who it is that should not be refouled therefore they cannot differ. It is recommended that section 2 of the Act be amended to simply refer to the persons mentioned in section 3.

SECTION 5

Section 4 of the Act is the so called exclusion clause and determines who is not a refugee. Currently the Act does not mandate anyone to determine or decide who falls under this section, nor does the Act set out any procedure for dealing with such persons. The amendment seeks to place the responsibility in the hands of the Refugee Status determination Officers but still does not set out procedures e.g. can such a person appeal the decision and, if so, who considers the appeal.

The Standing Committee is of the opinion that no single RSDO in the department has the ability to deal with this section as it is far too complicated. This authority should rest with the DG and should not be subject to delegation. The Minister should consider appeals in this regard. It should be noted that there are very few such cases and the burden on the DG and Minister would not be onerous.

The consequences of falling under this section should be clearly spelt out.

It is also recommended that the insertion under (b) should read "in the Republic" and not "in the country of refuge".

SECTION 8
The Minister's power to delegate under the proposed amendment to section 36 of the Act
should also be excluded under this section. Section 36, as proposed, will allow the DG to
withdraw refugee status and the Minister to consider appeals against the decision of the
DG. This being the case the Minister cannot delegate this power as the delegation would
have to be to the DG who is the person making the initial decision. Even if the DG
delegates the power to withdraw status the responsibility remains with the DG.

SECTION 10
The removal of the Refugee Reception Officer ITom the Act does not remove the function
performed by this official. The applicant will still have to be assisted with the application
and asylum seeker permits will still have to be issued and amended. The amendment
envisages the RSDO performing these functions but the RSDOs cannot cope with their
current workload. An RSDO should be a dedicated decision maker and should perform
the minimum of administration tasks. The SCRA recommends that the Refugee
Reception Officer be retained.

SECTION 11

The envisaged section 8(B) requires the Chairperson to be legally qualified but it is the members who will be making decisions and should be legally qualified.

The envisaged section 8(C)(2) requires the Chairperson to be party to every consideration of appeals. This would be logistically impossible and would mean that only one case could be considered at a time. It is strongly recommended that the proposal be amended to allow the Chairperson to determine the number of members who must consider appeals. This would enable the Appeals Authority to consider a number of appeals at the same time thereby increasing its decision making capacity.

It is further recommended that the Act be amended to require all appeals to be in writing and the Appeals Authority to consider such appeals on paper rather than personal hearings. These personal hearings are very time consuming and the reason why there is currently an extensive backlog in the appeals procedure. The Act in any case allows the Appeals Authority to request the applicant to appear before it when necessary.

8E(b) should be reworded. As it is it would allow for a serious, dishonest offender to serve on an authority that is supposed to be upholding human rights.

8J is not necessary. This authority is far too small to employ a CFO and will use the Department's budgeting, expenditure and reporting processes. This being the case Parliament is already adequately informed of the expenditure and work done by the SCRA and the RAB.

SECTION 13
This amendment does away with the Refugee Reception Officer and requires the RSDO to do the work that is now done by the RSDO. The RSDO's have failed totally to cope with their current workload and despite an increase in their numbers they will not cope with this additional work. They will not only have to assist the applicants with their applications but also issue them with asylum seekers permits, renew these permits and
schedule hearings. AIl this is currently done by RROs. During the workshops in which the amendments were discussed, the rationale behind this proposed amendment could not be explained. At first it was said that steps in the procedure would be eliminated but it is clear that this is not the case. It is recommended that the RROs be retained or that these functions are expressly given to officials other than RSDOs who should do what they are appointed for i.e. make refugee determinations.

SECTION 16

This section amends section 24(3) of the Act. It allows the RSDO to make one of two decisions i.e. to grant or reject the application. In rejecting the application the RSDO has two options i.e. (3)(b) or (3)(c) but there is only one procedure to be followed for both decisions this being the appeal procedure. The implications hereof are that ftaudsters and abusers of the procedures will now be able to exploit the system for years while their appeals are pending instead of being taken out of the system expeditiously as is currently the case. This is a real step backwards and will allow the refugee application to be further overloaded and have no positive benefits at all. It is unfathomable why the only procedure in the Act that is currently working properly is to be amended.

The proposed (6) does not make sense.

In closing the SCRA would like to thank the Portfolio Committee for the opportunity to address it on this amendment bill and undertakes to be available for any further discussions as the Committee deems necessary.

CSCHRAVESANDE

CHAIRPERSON OF THE STANDING COMMITTEE FOR REFUGEE AFFAIRS