Author: alovemore

Refugees Amendment Bill 2010

Comments from ANNETTE LOVEMORE MP

Amendments Proposed by 2010 Bill (as amended) | Proposal | Motivation

Clause 1(b) (Amending Section 1) :
‘dependant’, in relation to an asylum seeker or a refugee, [includes] meansany unmarried dependent child or any destitute, aged or infirm
member of the immediate family of such asylum seeker or refugee who is dependent on him or her

‘dependant’, in relation to an asylum seeker or a refugee, includesany unmarried dependent child or any destitute, aged or infirm member of the immediate family of such asylum seeker or refugee who is dependent on him or her

The wording of the Bill provides for  a closed list of possibilities; allowance must be made for some discretion to be exercised  in unusual circumstances.

Clause 2(b) (Amending Section 4(1)(b)) :
has committed [a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee] a crime which is not of a political nature and which, if
committed in the Republic, would be punishable by imprisonment, without the option of a fine

Retain wording of the 2008 Act :
“has committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee”

South Africa is a signatory to the UN and OAU Conventions. Our legislation must be in line with the provisions of these conventions. The relevant sections of both conventions are shown below.

United Nations Convention and Protocol Relating to the Status of Refugees, 1951
CHAPTER 1: Provisions
ARTICLE 1 : Definition of the Term “Refugee”
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
...(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee...

OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa, 1969
ARTICLE 1 : Definition of the Term “Refugee”
4. This Convention shall cease to apply to any refugee if:
...(f) he has committed a serious non-political crime outside his country of refuge after his admission to that country as a refugee...

Clause 4 (amending Section 8E) :
Section 8E of the principal Act is hereby amended by the deletion of paragraph (f)
(thus allowing political office-bearers to be members of the Refugee Appeals Authority)

Retain the wording of the Refugees Amendment Act of 2008 :
“A person may not be appointed as a member of the Refugee Appeals Authority if that person—
...(f) is a political office bearer.”

Every political office bearer will have a political agenda. There is no cogent reason for the inclusion of a political office bearer if a comprehensive migration policy is in place, and if the Appeals Authority is sufficiently capacitated to deal with appeals within the ambit of local and international legislation, conventions and protocols.

Clause 5 (amending Section 21B(2)) :
Any asylum seekeror refugee whose child is born in the Republic must,
within one month of the birth of his or her child, register such a child [as a
dependant] in terms of the Births and Deaths Registration Act, 1992 (Act No. 51
of 1992), and submit the certificate issued in terms of that Act at any Refugee Reception Office, to be included as a dependant of such asylum seeker or refugee.

Any asylum seeker or refugee whose child is born in the Republic must, within three monthsof the birth of his or her child, register such a child terms of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), and submit the certificate issued in terms of that Act at any Refugee Reception Office, to be included as a dependant of such asylum seeker or refugee.

We accept that South African citizens are required to register a birth within one month of that birth. However, there are no repercussions for not doing so, and late registrations of births are accepted.

In the case of asylum seekers, particularly, and of refugees, the lack of registration might well compromise the process of seeking asylum, both for the primary applicant and an unregistered dependent child. 

Additional time must be allowed given the possible dire consequences of non-compliance with the tight timeframe of one month.

Clause 6(f) (amending Section 24(5)) :
(5) (a) An asylum seeker whose application for asylum has been
rejected in terms of subsection (3)(b) and confirmed by the Director-
General in terms of section 24A(3), must be dealt with in terms of the
Immigration Act.
(b) An asylum seeker whose application for asylum has been rejected
in terms of subsection (3)(c), must be dealt with in terms of the
Immigration Act, unless he or she lodges an appeal in terms of section
24B(1).

24(5)(a) asylum seeker whose application for asylum has been rejected in terms of subsection (3)(b) confirmed by the Director-General in terms of sections 24A(2) and24A(3), must be dealt with in terms of the Immigration Act.

24 A. (1) The Director-General must review any decision taken by a Refugee Status Determination Officer in terms of section (3)(b).
(2) Before reaching a decision, the Director-General must  - 
(a) request any person who is in a position to do so, including the asylum seeker in question,  to provide him or her with information relevant to the matter being dealt with;
(b) make such further inquiries into the matter being dealt with as he or she deems appropriate; and
(c) request the applicant to provide such other information as the Director-General may deem necessary...

The proposed amendment removes the review of applications rejected as manifestly unfounded. The Department's proposed amendment of an automatic review of manifestly unfounded decisions is directly contradictory to the provisions of Section 33 of the Constitution and to the Promotion of Administrative Justice Act 3 of 2000, which provides for due process of law,an essential element of which is the opportunity to be heard.
 
The assumption that a reception centre has correctly determined an application to be manifestly unfounded is based on the assumption of competent officials, accurate country information and an accurate submission by the applicant. None of these are currently in place. This reality must be recognised, and a right of appeal must be allowed.

The United Nations Convention states : “The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.”

South Africa must respect and give effect to its international obligations.

Clause 9 (amending Section 27(c)) :
permanent residence in terms of section 27(d) the Immigration Act after five years of continuous residence in the Republic from the date on which he or she was granted asylum, if the [Director-General] Minister, after considering all the relevant factors and within a reasonable period of time, certifies that he or she would remain a refugee indefinitely

permanent residence in terms of section 27(d) the Immigration Act after five years of continuous residence in the Republic from the date on which he or she applied for asylum, [if the Minister, after considering all the relevant factors and within a reasonable period of time, certifies that he or she would remain a refugee indefinitely]

The requirement of classifying a person as an “indefinite refugee” is not in line with international practice.

Article 34 of the United Nations Convention deals with naturalisation, and reads : “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”

Arguments around possible refoulement be considered when an application for permanent residence is made.

If the objectives of this Bill are achieved, the documentation of refugees should take far less than the current 5 to 7 years to process. To require a person to spend more than 5 years in the country, with the uncertainty of deportation constantly a threat, is unacceptable and is not in line with international practice, despite the Department’s protestations to the contrary. The same requirement does not apply to economic migrants, and policies and legislation should be fair to all.

General : The Scrapping of the Standing Committee for Refugee Affairs (Refugee Amendment Act of 2008)

Serious consideration must be given to developing and equipping a similar, but efficient,  independent oversight body.

Ideally, the Standing Committee is currently in place to provide :
-	Oversight of the operations of the Refugee Reception Centres;
-	Independent, efficient and competent review of decisions made by Status Determination Officers
-	A source of interpretation on matters of law

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