Refugees Amendment Bill; Border Management Authority Bill: deliberations, with Deputy Minister

Meeting report

The Chairperson stated he hoped that the Border Management Authority Bill would be finalised for the Committee to consider the Bill clause per clause. With regard to the Refugees Amendment Bill, Members had agreed that they would be deliberating on it. The Department of Home Affairs (DHA) would assist Members to consider the newly drafted proposals for their insertion into the Refugees Amendment Bill. The Democratic Alliance had promised to make a proposal on the Bill. It was agreed that the proposal should be submitted by Thursday, 23 February 2017 so as to give Members an opportunity to peruse the proposal. On the day of the meeting, the Chairperson had not yet received such proposal. He remarked that it should be noted that the DHA was the only department which was not adequately resourced even though it dealt with the living and the dead on the one hand and citizens and non-citizens alike on the other.

Committee proposed amendments to Refugees Amendment Bill: Department briefing
Mr Deon Erasmus, DHA Chief Director: Legal Services, stated that as per the previous meeting, some provisions were amended in accordance with Members inputs and suggestions. Under clause 3, the term “in any way” was substituted by “in the prescribed circumstances.” The phrase “the Minister resolves” was substituted by “the Minister issues an order”. Amendment was effected in clause 13 dealing with the Standing Committee for Refugee Affairs (SCRA). The term “administrative monitoring and supervisory work” was substituted by “administrative functions”. Under clause 18, shelter and basic necessities would be provided by UNCHR or other charitable organisations or persons.  Reasons to be accepted for failing to renew the asylum-seeker visa were extended to include “other compelling reasons of similar nature”. Those reasons were hospitalisation or any other form of institutionalisation. He noted that those asylum-seekers whose cases were finalised and rejected would become illegal foreigners who ought to be dealt with in terms of the Immigration Act. 

Discussion
The Chairperson remarked that the duties and obligations entrusted with SCRA should not fall in the cracks. The obligations of SCRA should be clarified in the Bill.

Mr M Hoosen (DA) said that he hoped that there would be another opportunity to discuss the Bill. He sought clarity on the deletion of phrase “in any way”. What was the justification for removal?  He wanted to understand the phrase “compelling reasons of a similar nature” – what was the justification for insertion of that phrase? He felt that there might be other compelling reasons of not a similar nature.

Mr Erasmus responded that the phrase “in any way” was deleted because public submissions pointed out that the phrase “in any way” was vague. He said that it was substituted by “in the prescribed circumstances”. That meant that there would be regulations elaborating on those circumstances. He noted that there could be other circumstances of a different nature that could be raised by an asylum-seeker. That was covered by the amendment because the amendment opened the door to deal with an appeal case on its own merit.

Mr Mandla Madumisa, Acting Chief Director: Asylum Seeker Management, agreed. He noted that the circumstances that could prevent an asylum-seeker to report to the Refugee Reception Office (RRO) were very complex.

Ms O Hlope (EFF) sought clarity on the meaning of the term “illegal foreigners” and remarked that she hoped that the DHA was not referring to African brother and sisters.

Mr Erasmus responded that when all remedies available were unsuccessfully exhausted, an asylum-seeker would become an illegal foreigner who would be dealt with as such in terms of the Immigration Act.

The Chairperson asked Ms Hlope to assist the Committee to find the term that could be used to refer to an undocumented foreigner. The term ‘illegal foreigner’ would be used to refer to illegal or undocumented migrants or asylum-seekers irrespective of the colour of the person. All colours or races (that is black, white and yellow) would be regarded as illegal foreigners if their claim for asylum fails. He understood the compassion of Ms Hlope towards Africans but this could not blind her in failing to take firm action. He asked Mr Hoosen why the DA’s submission on the Refugees Amendment Bill was not submitted and was thus delaying the consideration of the Bill.

Mr Hoosen apologised for the delay. He noted that the submission was not ready because there were some principles that he had to consult on to have a well-argued proposal. It was not the DA’s intention to put the Bill on hold. He promised that he would submit the proposal as soon as it was ready.

Consideration of Committee proposed amendments (A List) to Refugees Amendment Bill
The Committee went through the proposed amendments.

Referring to section 22(12) as amended by clause 18 of the Bill, Mr Hoosen sought clarity on insertion of “compelling reasons of a similar nature”. He understood that the DHA was trying to go beyond institutionalisation and hospitalisation, but ‘similar nature’ had implications of limiting reasons to hospitalisation. On the prescribed period to report to the RROs, he was of the view that if there was a prescribed time for an asylum-seeker to report to the DHA, why there was no prescribed time for the DHA to decide on the claim for asylum. The DHA ought to make a decision within a prescribed time.

The Chairperson said that this would have a severe implication. If a prescribed time was put in place and the DHA did not comply with such prescribed time, asylum-seekers would be taking the DHA to court.

Mr Erasmus responded that the DHA operated under the Promotion of Administrative Justice Act (PAJA). A prescribed time could not be provided due to investigations that could be conducted in certain matters to determine the credibility of an asylum-seeker’s story. Should an asylum-seeker be aggrieved that his/her application was delayed, he or she could rely on PAJA to take DHA to court. On the question of ‘similar nature’, the DHA was trying to keep the provision consistent with international standards. However, DHA would reconsider the provision to see how it could be broadened to accommodate other compelling reasons.

The Chairperson sought clarity on whether the deletion of ‘similar nature’ would bring the system into crisis.

Mr Madumisa responded that they would try to find another word that could be used to imply compelling reasons but the DHA did not intend to deviate from the standards set out under international instruments.

Mr Mkuseli Apleni, Home Affairs Director-General, responded that reasons that would be accepted were those of health or those circumstances that a person could not have control over.

Ms B Dambuza (ANC) remarked that compelling reasons should not arise out of health circumstances. Compelling reasons should be defined for the refugee status determination officers (RSDOs) not to take reasons for granted.

Mr Hoosen said that he was very concerned about the statement of Mr Apleni holding that compelling reasons should be limited to health circumstances. He was of the view that the phrase ‘similar nature’ should be deleted.

The Chairperson sought clarity on to whom the reason should appear compelling.

Mr Hoosen stated that the Committee should take into consideration the vulnerabilities of refugees with regard to accessing national courts. It should be borne in mind that some refugees did not understand the impact of the decision that was taken. A specific period for dealing with an application for asylum should be included in the legislation in order to take the DHA accountable. Referring to section 36(2) as amended by clause 27, he noted that the provision referred to the prescribed time to withdraw the refugee status and that the prescribed time was five days but the Bill failed to mention that the decision making should be done within a prescribed period.

Ms Fatima Chohan, Deputy Minister of Home Affairs, responded that both the Committee and the DHA should think about the precise circumstances which an asylum-seeker could provide as compelling reasons. With regard to withdrawing the refugee status, there should be a prescribed time to take a decision and to ensure that the decision was communicated. When a person received the notice or communication, he or she ought to be afforded an adequate period of time to seek legal advice to appeal. Refugee status could be withdrawn if the DHA found that the refugee status was acquired fraudulently, or granted in error, or if the DHA invoked the cessation of refugee status clause. These three situations could not be treated the same but differently. Those who received refugee status fraudulently could not be given more than three month to appeal. This case was not similar to the cases of those genuine refugees to whom the cessation clause would apply. For example, withdrawing the refugee status of Angolan refugees was a Cabinet decision which was communicated in the Government Gazette. Since a higher number of genuine refugees could be affected, they had to be given an adequate time to respond.

The Chairperson agreed. The argument raised by Mr Hoosen was all about improvement of the efficiency of the DHA. The notice of the decision taken should be communicated to an asylum applicant or a refugee and such decision should be taken within the prescribed time.

Mr Apleni stated that serving of notices would be difficult because the DHA had no physical address of its client (refugees and asylum-seekers). They changed their physical address from time to time. Serving notices would be a fruitless exercise. Rather, the DHA would communicate to their files and when the person came to the RRO – that was when he/she would receive the decision report. It was difficult to communicate with members of the Angolan community concerning their cessation clause. Most of notices were returned to the DHA offices.

The Chairperson agreed that if communications to physical addresses would be difficult, the DHA should communicate to the file.

Mr Hoosen was not convinced. Communicating to the file meant that a person would hear about the decision when he or returned to an office. What would happen if the person did not return?

Ms D Raphuti (ANC) suggested that there should be a designated cell phone number that could be allocated to a client so that it could be used for communication purposes. There should a kind of a bulletin communicating information to refugee clients. Some clients were irresponsible and could not be expected to return.

The Chairperson stated that communications to file would be problematic because some asylum-seekers did not return to DHA to hear the decision simply because they knew their cases would not pass owing to the fact that they were escaping an economic crisis in their country.

Mr Hoosen said that the issue was not about communications per se but taking a decision within a prescribed time. A prescribed time would not cause much trouble but ensure accountability.

Mr Apleni said that the onerous duty to check whether the DHA had adjudicated an application case rests with an applicant. The DHA’s obligations to communicate with asylum-seekers and refugees were limited to communicating to their files.

Ms Yolande van Aswegen, Principal State Law Advisor, noted that she had picked up certain aspects in the provisions of the Refugees Amendment Bill that needed to be amended to address their vagueness. She referred to these problems as legal technicalities that needed to be addressed prior to finalising the Bill. These technical problems were communicated to the DHA.

Mr Erasmus said that the legal team would consider the reformation of these clauses she had identified.

Mr Hoosen asked about exclusion from refugee status on the ground of commission of crime outside the Republic and felt that it was unfair to exclude an applicant on the ground of the alleged commission and not on the ground of a conviction of a crime.

Mr Erasmus responded that an asylum-seeker should be disqualified for refugee status if he or she has committed schedule 5 or 6 offences, for example, murder.

The Chairperson agreed. He noted that those who committed serious crimes of a non-political nature should be excluded from refugee status. For example, those who committed crimes such as bank robbery and rape. He remarked that South Africa ought to be made clean of criminals who were running from another criminal justice system.

Mr Hoosen said that the law should be crafted in manner that would assist the vulnerable. The law should not refer to commission of crime but conviction of crime because there was a tendency for governments to issue an arrest warrant for trumped-up charges.

Ms T Kenye (ANC) was concerned about crimes committed in the Republic – for example in cases where refugee criminals would be granted bail and return back to their own countries so as to evade justice in South Africa.

Mr Erasmus, referring to section 4(1)(b), said that the drafters were using the UNHCR Handbook as a guideline. The clause applied to crimes of a non-political nature. Should a person commit a crime in South Africa, he/she could be arrested and tried. If convicted, he or she should be denied all benefits of asylum.

The Chairperson noted that the Bill was excluding criminals whether they committed crimes in or outside the Republic.

Ms Hlope asked what the DHA meant when referring to crimes of a political nature. Was there any definition?

The Chairperson remarked that South African past crimes should be referred to as a reference to understand what political crimes meant.

In his attempt to describe a political crime, Mr Apleni said that a political crime would be an instance where the government adopted a law preventing people from demonstrating. Yet people contravene the law to raise their political grievances through demonstration and these people get arrested.

The Deputy Minister seconded him. She said that we all understand what political crimes entail. There might be political crimes that were not similar to the crimes committed by South Africans during the liberation struggle. Worth noting was that the Refugees Amendment Bill was talking about serious crimes of a non-political nature. There was a set of certain circumstances that might be regarded as serious crimes, including rape and murder. However, people might be prosecuted for their political belief or certain political acts that were proscribed by law. Refugees would be disqualified for refugee status if they have committed serious crimes. Refugees could not be given preferential treatment if they have committed serious crimes classified under schedule 5 and 6 or which attract imprisonment. A refugee was expected to make a case that the crimes he was charged with or convicted of were trumped-up charges.

Ms N Mnisi (ANC) remarked that the question of exclusion of refugees on the basis of commission of serious crimes could not have a wholesale approach but each case should be dealt with on its own merit.

The Chairperson noted this. He asked the Principal State Legal Advisor to assist the Committee to define a crime of a political nature.

Ms van Aswegen responded that there was no universal definition of the term. The definition could be provided by a court of law or the clause should state ‘crimes that could be viewed as political crimes’. The UNHCR documents as well as conventions were silent on the definition of a political crime.

The Chairperson noted that the concept of political crime should be defined and that the DHA should consider incorporation of Members’ inputs and suggestions. They should come back with a clear instrument.

Mr Hoosen proposed that the Bill should be amended to capture Members’ inputs.

The Chairperson stated that they should agree on the A list prior to consideration of the Refugees Amendment Bill clause by clause.

Border Management Authority Bill [B9-2016]: consideration of the proposed amendments
In response to the Chairperson asking if the list of amendments were considered to be the official proposed amendments (the A List) of the Committee, Mr Erasmus indicated that it was.

Ms Sueanne Isaac, Parliamentary Legal Advisor, went through the proposed amendments (see document).

Mr Hoosen asked if the differences between National Treasury and the DHA were resolved.

The Chairperson responded that Cabinet was happy with the BMA Bill and it had gone through the public participation process. Referring to the differences between Treasury and DHA, he noted that the frontline customers would belong to BMA officers and the collection of customs would belong to SARS. This included the revenue collections. This was done in line with the National Treasury’s request not to fragment the collection of revenue. Members supported this approach because the collection of the revenue by BMA officers could create problems. Revenue would only be collected by BMA officers as part of fines and such revenue would immediately be transferred to the SARS account. There might be an MOU that would enable the BMA officers to do certain activities including search and seizure. On border crossing, the BMA ought to be involved and no one else should be involved. SARS was adamant that customs should not be the mandate of the BMA. However, they wanted to wait and see how the BMA policy would be implemented. This illustrated the lack of confidence in the BMA policy and this was problematic. The BMA Bill was initiated with intent to create a single authority in the border environment. It had been difficult to control various institutions dealing with the borderline and ports of entry to ensure the security of the nation. The BMA Bill was trying to address this problem. 

Mr A Figlan (DA) noted that in the previous meeting, the Chairperson mentioned that there was a letter from National Treasury advising the Committee that it would sit with the Deputy President, along with the DHA, on the matter. Was there an agreement between the National Treasury, the Deputy President and the Minister of Home Affairs on the question of collection of revenue?

Ms Hlope said that Members had a problem with the clause regulating collection of revenue. It was still an outstanding matter and Members should not move to approve the BMA Bill if the question of collection of revenue was not properly addressed.

The Chairperson responded that National Treasury, the Minister of Home Affairs and the Deputy President met last year but did not agree on something. This year, they had met and agreed that they should draft a MOU on how matters should be resolved. The MOU had not yet been drafted. However, it was agreed that the word ‘facilitation’ should be used in lieu of collection. That denoted that the BMA would facilitate the collection of revenue and would not collect revenue.

Mr Apleni stated that it should be borne in mind that the taxes were paid to the South African Reserve Bank (SARB) prior to transporting goods to South Africa. Some would not have paid taxes or would have not complied with SARS regulations. There were fines imposed. At ports of entry, the BMA officers would check the goods to see whether the taxes were paid. If not paid, the BMA officers would go to SARS to inform it that the taxes were not paid. SARS would direct the BMA officers on what fine could be imposed.

Ms Raphuti supported the facilitation approach and urged the DHA to define the term facilitation to make the matter clearer.

Ms Dambuza felt that a clause should be inserted about cooperation between SARS and BMA or explaining what facilitation entailed. More guidance should be provided and it should elaborated on in the MOU.

Mr Erasmus briefed the Committee on minor amendments that were effected.

Border Management Authority Bill [B9-2016]: voting
The Chairperson stated that the outstanding matter could not stop the Committee from adopting the Bill. The outstanding matter could be addressed at the NCOP level. Members should know that they had the power to legislate and to take decisions insofar legislative matters were concerned.

Mr Raphuti moved for adoption of the BMA Bill. Ms Kenye seconded her.

Mr Hoosen said that the DA could not support the BMA Bill unless the outstanding matter was resolved.

The Chairperson stated that the BMA Bill was adopted.

The Deputy Minister sought clarity on how many Members supported the Bill. She suggested that Members should vote for and against it.

The Chairperson responded that all members present supported the BMA Bill except Mr Hoosen who recorded his objection to the adoption of the Bill but he was not against the BMA Bill.

The meeting was adjourned.