INTRODUCTION
1. The South African Human Rights Commission ("the Commission") welcomes the process of drafting legislation to regulate refugee affairs, as special legislation in this regard has been urgently requires for some time. In addition, the Commission welcomes many of the principles contained in the legislation.
DRAFTING PROCESS
2. The Commission were part of the process which generated the White Paper, the first draft bill, and a further version of the bill, which was agreed upon by the Task Team responsible for this process. However, having chosen to engage the assistance of a team of experts, the Department of Home Affairs then drafted a bill which was at variance with the one agreed upon by the Task Team.
3. The Commission found this development problematic, most notably because the Department gave no indication of why changes had been made, and the underlying difficulties giving rise to the need to amend. Further, having participated with the drafting, the Commission does not wish to have its name associated with a document which has not been scrutinised for compliance with our international obligations.
GENERAL COMMENTS
4. In addition to our specific comments on the bill as it currently stands, the Commission wishes to highlight various areas which offend international principles, and other weak areas in the legislation.
5. While the Department of Home Affairs, and the Minister in particular must take overall responsibility for refugee affairs, such as is set out in the Bill, the Commission was of the opinion that a specialised and trained secretariat should be established in the department to perform the functions created in the bill. Officers of this unit would work closely with a status determination committee, which will be devolved to the provinces where necessary.
6. This structure would ensure that the status-determination procedure would be one step removed from the Department. The Commission also recommended that this process must include civil-society representation, so as to ensure an independent and unbiased approach. This independence would be culminated in an independent, quasi-judicial tribunal to hear appeals.
7. Finally, the Commission motivated for the creation of a Refugee Council should be established, which will participate in policy in key areas, and assist in public education and awareness raising.
SUBMISSIONS
8. Section 4 – Exclusion from refugee status
To exclude a person from refugee status has radical repercussions for an asylum seeker. Accordingly, we recommend that the bill follow the wording of the Convention Relating to the Status of Refugees (UN, 1951) ("the 1951 Convention") as closely as possible. This would entail the inclusion of the word "serious" as follows:
Section 4(1)
"A person does not qualify for refugee status for the purpose of this Act if there is serious reason to believe…"
In addition, the provision relating to previous convictions could be redrafted to follow the exact wording of the 1951 Convention:
Section 4(1)(b)
"has committed a serious non-political crime outside the Republic prior to his or her admission into the Republic as a refugee"
9. Section 10 – Composition of Standing Committee
The Standing Committee ("the Committee") is established with various functions. Amongst these is the overview of decisions made by the Refugee Status Determination Officer ("the officer"), and specifically the consideration of applications referred to the Committee by the officer. One category of referral is for a question of law to be determined by the Committee. Although members of the Committee are appointed on the basis of their experience, qualifications and expertise, it is advisable for an amendment to be made requiring at least one member of the Committee to be legally qualified.
This would entail the insertion of a further requirement into section 10(2);
Section 10(2) "…at least one of whom is legally qualified."
10. Section 11- Powers and Duties of Standing Committee
In the section 24(4), the officer is obliged to refer to the Committee all applications which are refused on the basis of being manifestly unfounded, or abusive or fraudulent. In section 11(e), the power to review manifestly unfounded decisions is set out, and no reference is made to those which are rejected on the basis of being abusive or fraudulent. This appears to be an oversight, and the section should be amended to read:
Section 11(e) "… in respect of manifestly unfounded, abusive or fraudulent applications"
11. Section 12 – Establishment of Refugee Appeal Board
While provision is made in section 9(2) for the Committee to function without bias and to be independent, no such provision is made for the Appeal Board. Independence at this level and for this function is crucial. Section 34 of the Bill of Rights provides as follows:
"Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."
The Commission has motivated for this body to be in the form of a tribunal. However, the critical design principle is that the body be independent, and this has ramifications for the appointment of members, and other functions and duties. The Commission requests that the Portfolio Committee apply their minds to the creation of an independent and unbiased appeal forum.
The bare minimum in this regard would be the insertion of a new provision in section 12, such as exists with respect to the Standing Committee.
Section 12(3) "The Appeal Board must function without bias and must be independent."
12. Section 13 – Composition of Appeal Board
Given the function of the Appeal Board, it would be likely that the legal qualification of its members would enhance its operation. The bill provides that one member must be legally qualified. In the opinion of the Commission, this establishes a minimum, and should not be interpreted as limiting the number of legally qualified members. Clarity could be obtained by the following amendment:
Section 13(2) "At least one of the members of the Appeal Board must be legally qualified."
13. Section 21 - Application for Asylum
In addition to the duties assigned to the Refugee Receiving Officer, it is advisable to include the responsibility to advise applicants of the nature and conditions of the application. Although section 24(2)(c) provides that the Refugee Status Determination Officer should ensure that an applicant fully understands the procedures, it would be preferable for applicants to understand the procedures from the first interface with the process. This would entail the insertion of a further subsection.
Section 21(2)(*) "must ensure that the applicant fully understand the procedures, his or her rights and responsibilities"
The United Nations High Commission for Refugees ("the UN") has recommended that the bill be amended to reflect the obligation of the Reception Officer to accept any other documentation which an applicant wishes to submit in support of an application. The Commission supports this recommendation. It would entail the insertion of a further subsection into section 21:
Section 21(2)(*) "must accept any documentation submitted in support of an application."
A further recommendation made by the UN concerns the issue of confidentiality, and the need to ensure the confidentiality of information disclosed in an application. This could be provided for in a further subsection to section 21.
Section 21(5) "The confidentiality of asylum applications, and the information contained therein, shall be respected and insured at all times."
14. Section 22 – Asylum seeker permit
Section 22(6) sets out the circumstances in which a permit may be withdrawn, and include the rejection of the application on the various grounds, and the exclusion or cessation of refugee status. For the purpose of the section being consonant with the procedures established in section 36 of the bill, which provides for a fair and transparent process when removing a permit, it is suggested that the section be amended to read as follows:
Section 22(6) "The Minister may at any time, subject to the procedures set out in section 36 of this Act, withdraw an asylum seeker permit"
For the purposes of clarity, a permit should only be subject to removal once all remedies open to the applicant have been exhausted. Accordingly, the section should read:
Section 22(6)(c) "the application for asylum has been finally rejected"
Section 22(7) deals with the process associated with the contravention of any conditions attached to a permit, which following conviction is made an offence subject to a fine and or imprisonment. Contravening the conditions of a permit is a ground for withdrawal of a permit by the Minister in terms of section 22(6)(a). In order for this provision to be made consonant with section 22(7), the wording should make reference to a conviction.
More importantly, given that the contravention may result in the withdrawal of the permit, and the consequent ramifications involved in the removal of this protection, the offence of contravention should be performed both knowingly, and with an intention to defeat its purposes. The sections should be amended as follows:
Section 22(6)(a) "the applicant is convicted of contravention of the conditions endorsed on the permit, both knowingly, and with the intention of defeating the purposes of the permit."
15. Section 24 – Decision regarding application for asylum
Section 24(3)(d) empowers the Refugee Status Determination Officer to refer questions of law, and any application to the Standing Committee for determination. Thus, in addition to reviewing applications rejected on the basis of being manifestly unfounded, abusive or fraudulent, and providing decisions on questions of law, the Standing Committee is provided with a broad discretion to decide any application ab initio.
This is problematic, as the Committee is put in the same position as the Status Determination Officer in any matter which that officer cares to refer, and will be required to make an initial determination. It is not inconceivable that the Standing Committee will have to review it s own decision, should it reject an application on the basis of being manifestly unfounded. In addition, this discretion may result in the de facto creation of a further level of determination, as officers may tend to refer any application which is not entirely straightforward.
The memorandum to the bill envisages the role of the Standing committee to be one of monitoring, review, provision of guidance and data-collection. This vision does not incorporate the role of primary decision-maker in applications for asylum. It is noteworthy, that section 11, which sets out the powers and functions of the Committee, makes no reference to the role of status determination.
The Refugee Status Determination Officer is the functionary created in the bill to perform this function, and who is to be trained and developed to fulfil this function effectively and efficiently. The Standing Committee may review this function, but the function must be performed at this level. The Appeal Board can subsequently review it on appeal. The exception to this pattern concerns applications rejected by the officer on the ground of manifest lack of foundation, abuse and fraud, where a special and circumscribed review function of the Committee is triggered.
Accordingly, it is recommended that the wording of section 24(3)(d) is amended to remove the function of status determination from the Committee.
Section 24(3)(d) "refer any question of law to the Standing Committee"
16. Section 25 – Review by Standing Committee
The comments made under the previous heading are relevant here in terms of the discretion provided to the Standing Committee in section 25(3)(c) to grant or reject an application.
Following our recommendation, section 25(3)(c), should be deleted in its entirety.
17. Section 27 – Protection and general rights of refugees
Section 27(c) provides for the entitlement of a refugee to apply for an immigration permit after five years of residence. In addition to the ordinary qualifications, the section introduces a further requirement, namely that the Standing Committee certifies that the applicant will remain "stateless" indefinitely. This section is somewhat perplexing, as the notions of "stateless" and "indefinitely" are loose and undefined. In particular, the requirement of statelessness does not concord with the balance of the bill.
Should a further requirement be retained in this regard, the Commission recommends that the word "stateless’ be replaced by "refugee status".
Section 27(c) "… if the Standing Committee certifies that he or she will retain refugee status indefinitely"
18. Section 28 – Rights of refugees in respect of removal from the Republic
The inclusion of removal in the public interest is highly problematic, and did not appear in previous drafts of the bill. The 1951 Convention stipulates that expulsion may only be effected for the purposes of national security or public order, and it is recommended that the Convention is followed in the regard, and the reference to public interest is deleted.
Section 28(1) "Subject to section 2, a refugee may only be removed from the Republic on grounds of national security or public order."
19. Section 33 – Dependants of refugee
This section makes it necessary for any dependants of an asylum seeker to have an application in their own name, rather than being automatically incorporated into an application of a parent or guardian.
However, it replaces the wording of a section which appeared in previous drafts, which dealt comprehensively with the position and status of dependants. The Commission recommends that the previous drafting be incorporated into this section.
Section 33(2) "Where a dependant of a recognised refugee is in the Republic in accordance with an asylum seeker permit or residential permit issued to him or her in terms of this Act, and ceases to be a dependant by reason of his or her marriage, his or her attaining the age of 18 years or the cessation of his or her dependence upon the recognised refugee, as the case may be, he or she may be permitted to continue to remain in the Republic in accordance with the provisions of this Act.
Section 33(3) "Upon the death of a recognised refugee or upon his or her divorce, every person who, immediately before such death or divorce was within the Republic in terms of this Act as a dependant of such recognised refugee, may be permitted to continue to remain within the Republic in accordance with the provisions of this Act.
Section 33(4) "Nothing contained in this Act shall prevent a dependant of a recognised refugee or a person who has, in terms of subsection (1) or (2), been permitted to continue to remain in the Republic, from applying for recognition as a refugee in accordance with the provisions of this Act.
20. Section 37 – Offences and penalties
Following the setting out of the various offences, both specific, and a general catch-all category, the bill establishes the penalties, and states that those convicted must be declared prohibited persons, and dealt with in terms of the Aliens Control Act. Not only are many of the offences created in the subsections subject to similar provisions in other legislation, but the offences created in subsection (a) apply equally to South African citizens, and it would be nonsensical for convicted South Africans to be declared prohibited persons.
ZZ
It is recommended that the section be amended, so as to delete the reference to being dealt with as a prohibited person in terms of the Aliens Control Act.
21. Section 38 – Regulations
In terms of section 38(e), the Minister is given power to promulgate regulations regarding any conditions which may be attached to a permit.
Given that these conditions may impact upon certain of the rights contained in Chapter 2 of the Constitution, it is advisable that regulations in terms of that subsection be made subject to Parliamentary scrutiny.
Section 38(e) "the conditions of sojourn in the Republic of an asylum seeker, while his or her application is under consideration, provided that any conditions which impact upon the rights set out in Chapter 2 of the Constitution, must be approved by Parliament."
CONCLUSION
22. Despite the procedural complaints, and the submissions on various clauses in the bill, the Commission commends the introduction of the bill, and the commitment on the part of the Department and this Portfolio Committee to deal with it expeditiously in order that it be passed into law before the end of the year.
The Bill represents a commitment to deal with refugees accordingly to international law, and obligations, and will be a great step forward to appropriate treatment of asylum seekers.