Refugees Amendment Bill: Department of Home Affairs briefing

Meeting report

Refugees Amendment Bill: Department of Home Affairs (DHA) Briefing
The Chairperson advised the Department that the Committee wanted to know what the Department’s plans were with regard to monitoring the movement of refugees into the country. It had come to his attention that some refugees were coming through the border illegally, without documents and crossing at places that were not border posts. He also asked the Department to clarify whether they had the capacity to deal with the large numbers of refugees entering the country.

The Chairperson asked the Department what steps they had taken to align the Bill with International protocol. He asked them to list any challenges they had faced in doing this. He said that the Committee had been investigating other nations to observe how far they had gone with aligning their refugee laws to international protocol. Finally he asked the Department to verify whether the amendments to the Bill were informed by the challenges they had been facing.

Advocate Deon Erasmus, Acting Chief Director, Legal Services, Department of Home Affairs, gave the presentation on the proposed amendments to the Bill. He began by explaining that one of the main challenges that the refugee administrators had been facing was the Constitutional provision that regulated administrative action. By nature the work of the refugee offices was administrative action. According to section 33 of the Constitution, before an administrative decision was eligible for review or appeal in the courts, all the internal procedures available must have been exhausted. The problem was that the internal procedures regulating refugee matters were not sufficient to deal with the large numbers and varying refugee issues that arose.

Advocate Erasmus explained that when an application for refugee status was found to be unfounded the decision was then eligible for appeal according to Promotion of Administrative Justice Act (PAJA) and the Constitution. He said that it became necessary for the Department to review the internal remedies available.

Adv Erasmus said that the amendments to the Bill sought to create an authority to deal with appeals before the matter was referred to the courts. He said that at the moment all questionable decisions were taken to the Standing Committee for Refugees (SCR) for appeal. The problem was that many refugees found themselves without remedy when they were denied asylum.

Adv Erasmus pointed out that the proposed amendments provided for the establishment of a Directorate of Refugee Affairs and the Refugee Appeals Authority (RAA). He said that the effect would be that the decisions of the SCR would then fall away. If a person was not satisfied with the decision made on his status he could appeal to the RAA. If still not satisfied after that, then he could appeal to the courts, according to PAJA and the Constitution.

Adv Erasmus highlighted that the amendments proposed that the Chairperson of the RAA must sit with two other members. The proposed Act would require that the Chairperson must be legally qualified.

Adv Erasmus explained that the proposed amendments were informed by International protocol. He said that they had input from the United Nations High Commissioner for Refugees (UNHCR) when putting together the relevant amendments to the Bill. He said that since the Southern Africa Development Community (SADC) protocol on ‘free trade and movement of persons’ was yet to be ratified the Department would still need to look into free movement of persons. It was impossible to implement something that was had not been ratified. However he acknowledged that if the Act was passed without adding the SADC protocol then it would be inadequate.

Finally Adv Erasmus brought to light two important changes made to the Act. The first was the requirement in Section 8 (c) that the Chairperson of the RAA must be present at all sittings of the Appeal Authority. He argued that this may not be feasible, considering the large numbers of appeal matters that would certainly come through. The second was the amendment of section 24, which removed the ground “manifestly unfounded” as a ground for refusal to grant asylum.

Discussion
Mr P Mathebe (ANC) asked the Department if they could disclose the number of appeals that they deal with every day.

Mr Richard Sikakane, Refugee Affairs, DHA,  explained that the Department did not have the exact numbers. However, he said that considering the backlog and the fact that the number of applications had risen, he estimated that they probably received about 400 appeals a day in the Johannesburg office. He said that the reason why no statistics were available was because the SCR was an independent body.

Mr Mathebe said that it was not feasible for the Chairperson to be expected to sit on all the appeal hearings.

The Chairperson noted that this matter would be dealt with at the ‘Turnaround’ meeting.

Mr K Morwamoche (ANC) extended Mr Mathebe’s question. He asked whether the Department had the capacity to capture the outcomes of the appeals. He also questioned why the amendment Bill proposed that the Chairperson of the RAA had to be legally qualified. He asked the Department to clarify what ‘legally qualified’ meant.

Adv Erasmus explained that the term referred to a person with a legal qualification such as an LLB or a BProc.  He said that if such person was conversant with Refugee laws and Constitutional law then this would be an added advantage..

Mr Mathebe asked whether a person with a law diploma would be considered.

Adv Erasmus said that such people would be considered. He said that law qualifications could vary, and included diplomas.

Mr Mathebe went on to ask whether people with Public Service Law qualifications would be considered.

The Department did not comment.

The Chairperson asked whether the Department had looked at the issues raised by the Auditor General.

Adv Erasmus explained that the Department noted that the Appeal Board had been hearing cases de novo, which was not permitted. He said that they acknowledged that the Appeal Board had no authority to do this and would ensure that this did not occur in the future.

Ms Lee Anne De La Hunt, Special Advisor to the Minister of Home Affairs, added that the problem was that the DHA did not have a centralised system. A person could apply at one office and then go on to apply again at another, which resulted in the duplication of applications. She said that a new system had been created that linked all refugee centres’ databases. The client information would now be captured biometrically. She explained that this would make the data more reliable and in future the Department would be able to provide statistics regarding refugee matters. She concluded by saying that the Department was currently training their officials on this system and they would be ready by the end of April.

Adv Erasmus pointed out that the current Bill changed the definition of biometric information. 

Mr M Lowe (DA) asked the Department to clarify what was meant by the terms “refugee” and “asylum”. He said that according to his understanding an asylum seeker would apply to be recognised as a refugee. He said that if so the name of the legislation was a misnomer because it should be the Asylum Seekers Act not the Refugees Act.

Ms De La Hunt explained that the term refugee was an international term used to define one who seeks asylum. She said that the term refugee denoted the status of the person. The term asylum seeker was an technical term used in the administration process, to describe a person seeking refuge in another country. She said that the two terms were interchangeable and referred to the same character.

Mr Lowe expressed that he was still confused about the meaning of the two terms.

Mr Sikakane explained that a refugee was one who sought asylum. He said that it was the practice internationally to refer to refugees as asylum seekers.

Adv Erasmus added that the Act sets out the rights and obligations of asylum seekers.

Ms H Weber (DA) expounded on Mr Lowe’s question. She said that the confusion lay in understanding why the Bill was so named when in fact an asylum seeker sought refugee status.

Adv Erasmus explained that when a person who was an asylum seeker had the status of refugee according to international norms. Once asylum was confirmed then the person received documentation to that effect. That person was then recognised by the State as a refugee. He said that if a person was denied asylum then he would be deported.

Mr I Mfundisi  (UCDP) pointed out that many Zimbabwean and Mozambican immigrants did not fall under the category of refugee. He went on to ask why the Bill prohibited a person from being appointed onto the RAA if they had been removed from office for misconduct or corruption. He asked whether this prohibition extended to people who were removed from their office for political reasons. He also asked if the prohibition stood if a person was jailed and released five years prior to his seeking appointment on the board. He expressed that this would be discriminatory, because some people were rehabilitated after they had served time in jail.

Adv Erasmus explained that the provision only operated where the person was incarcerated in the preceding four years before appointment. He explained that the provision related to matters of misconduct and criminal cases such as theft, fraud and corruption. He said that since misconduct could be dealt with internally then it was possible that one may have been removed for political reasons. Nonetheless the Bill still applied to such cases. Once a person had been found to be guilty of misconduct or any crime he or she was not eligible to be appointed to the office of the RAA.

The Chairperson asked what the role of parliament would be in the appointment of the independent Appeal Board. He said that it was necessary for the Committee to have a role as part of their oversight duties.

Adv Erasmus explained that the RAA would be an independent board and as such any decision they made would be reviewable only by the courts in terms of PAJA and the Constitution.

The Chairperson asked whether the Committee could play a role in the selection  process for the RAA. He gave the example that they could give nominees, to be reviewed by the Department.

Adv Erasmus asked the Chairperson to clarify whether he was suggesting that the Committee should nominate members, or that the Department should nominate members then the Committee would review the names brought forward for selection.

The Chairperson said that the Department could advertise the positions through the media and thereafter the selection process could be at the discretion of the Committee. He added that it was also necessary for the Department to reflect on the type of people they required for the Board.

Ms Weber added that it was the practice in other Departments for the Portfolio Committee to interview applicants for positions to be filled by the Department. She gave the example of Independent Communications Authority of SA, whose members were interviewed by the Portfolio Committee.

The Chairperson concluded that the Committee and the Department would engage further on this issue at a later stage.

Mr Morwamoche posed a question on the restriction of detention of asylum seekers. He noted that the Bill proposed that no one may be detained for more than 30 days without review. He asked whether this stipulation was feasible and whether it would be adhered to.

The Chairperson stated that he had questioned whether this was actually the practice. He said that it was a known fact that the Department deported many people on a daily basis. He asked whether asylum seekers actually did get the opportunity to exhaust the due process.

Adv Erasmus explained that in terms of the Immigration Act, an illegal immigrant had the right to have a deportation order reviewed at his/her own request. He said that most people refused to do so and preferred to leave the country immediately.

The Chairperson asked the Department to clarify whether the people were actually informed of their rights when they were being detained. He refused to accept the argument that people preferred to return to their own countries rather than appeal against the deportation orders.

Adv Erasmus argued that the people who refused to go through the appeal procedure were not asylum seekers but they were illegal immigrants. He said that they knew that they were illegal immigrants and did not intend to appeal any decisions made by the Department once they were to be deported back to their own countries. 

Mr Jason Lackay, Deputy Director General, DHA, acknowledged that there had been many xenophobic attacks. He said that those arrested by officials were read their rights and had the choice to appeal, but they often chose to be deported.

Mr Morwamoche asked the Department to clarify what the position was with regard to detention of illegal immigrants.

Adv Erasmus repeated that when a person was detained for more than 30 days then the case must be reviewed by the courts. If the detention extended past 90days then the officials were required to obtain a detention order.

Mr Morwamoche highlighted that this was one of the issues raised by the Auditor General. He said that although this was the law this was not always the case in practice.

The Chairperson pointed out that the Department was failing to answer the Committee’s question of how they dealt with the issues highlighted by the Auditor General. He said that the Department continued to skirt around the issue, but were not providing any practical solutions.

Ms De La Hunt stated that the Department was aware that what was sometimes clear on paper may be difficult to put into practice. She said that the proposed upgrading of the IT system would help to resolve some of these issues.

Mr Morwamoche posed the question again whether the Department had considered the issues raised by the Auditor General. He said that it seemed as though no one was responsible for this as there had been no clear response.

Ms De La Hunt interceded that the Auditor General’s report was the basis for the ‘turnaround’ meeting.

The Chairperson asked whether the creation of the RSDO (Refugee Status Determination Officers) had been finalised by the Bill. He asked whether the Department had begun to made preparations to capacitate itself for the enactment of the Bill.

Mr Sikakane noted that all the 200 posts that had been identified had been filled or would continue to be filled. He also added that the Department was presently training its officials in anticipation of the enactment of the Bill.

Adv Erasmus intimated that the Department could not say that it was fully ready. Many more appointments still needed to be made. He explained that the coming into effect of the Act would be suspended until the required regulations were made.

Mr Lackay said that the Department was looking at capacity and would continue working towards filling all its required posts.

Mr Morwamoche said that the Auditor General’s report raised concerns regarding the failure of the DHA to fill financed posts.

Mr Sikakane explained that the ‘turnaround’ identified the posts that needed to be filled. He said that these financed posts had now been filled. However, he then contradicted himself by adding that some posts still needed to be filled.

Mr Mathebe pointed out the contradiction.

The Chairperson noted that the Director General of the DHA had said that it had been difficult to fill these posts. He thought that nothing much had been done with regard to filling these posts.

Mr Tsietsi Sebelemetja, Acting Director: Drafting: Legal Services, DHA, explained that the capacity problem at DHA was one that stemmed from staffing, systems and infrastructural deficiencies. He said that the Department was currently running projects to create more sites to deal with the refugee backlog. He said that they were gathering materials to capacitate the Department. He pointed out that in Cape Town the refugee office was moved to Nyanga as this was a better equipped site. He also said that the process was under way to fill all the vacancies in the refugee offices.

Mr Lackay stated that some of the measures explained above were short term measures and that there would be long term measures that would be implanted in the future. He said that one such initiative was the creation of the Immigration Bureau that would deal with most of these issues. He also said that the Department was set to build more sites to deal with refugee matters. He assured the Committee that they would be briefed on the progress during the course of the year.

Mr Morwamoche conceded that Mr Mathebe was right to say that the Department was contradicting themselves with regards to the vacancies. The Department could not claim that it was difficult to fill these posts when the posts were financed. He said it was clearly not an issue of funding so he did not understand what the problem was.

Mr Morwamoche added that since the devolution of powers it was now possible for Provincial managers to appoint level 1 to level 8 officials so there should not be any problem with filling vacancies. He said that it was disappointing that there was such a shortage of front-line staff at DHA offices.

The Chairperson pointed out that this would be dealt with in more detail at the ‘turnaround’ meeting. He then focused attention on the Kiliko judgement. The judgment in this case was tabled. He asked whether the Department was familiar with this case.

Adv Erasmus tried to explain that the proposed legislation dealt with the issues raised in the case.

The Chairperson agreed that although the legislation dealt with policy, it did not deal with the issue of capacity. He asked how the Department planned to deal with its challenges of capacity. He went on to ask how the proposed legislation could allow refugee administrators to create new centres without consultation with the Board.

The Chairperson also asked whether this, by implication, could be extended to assuming that the Department could open the borders without consulting parliament. He asked how the Portfolio Committee could be expected to perform oversight when it was disregarded.

Adv Erasmus pointed out that the RAA was intended to be an independent body and as such would not be required to consult with anyone.

Mr Mathebe pointed out that the RAA could not be an independent body if its members were appointed by the Ministry.

Mr Morwamoche added that the removal of the requirement for consultation would result in  interference with the public’s Constitutional rights.

Adv Erasmus explained that the Matatiele Constitutional Court case dealt with the issue of consultation, but this was not applicable in this instance, as that had related to new legislation.

Mr Morwamoche stated that when he looked at the people consulted he realised that Traditional Leaders had been omitted.

Adv Erasmus explained that according to his understanding of the term consultation, the Department was required to consult with certain parliamentary groups. When the Bill was gazetted for public comment then this obligation on the Department fell away. The onus would then move to the respective institutions or interested parties to read and comment on the document.

Ms Bongile Lufundo, Principal State Law Advisor, Office of the State Law Advisor, explained that the memorandum of objectives did not refer to Traditional Leaders as a group that needed to be consulted. She said this was not necessary because the Bill did not deal with issues of custom or customary law, but rather dealt with administrative issues.

The Chairperson said that the mention of certain matters in the Bill, such as the word “spouse” would to his mind necessitate this consultation.

Mr Morwamoche added that where the issue of marriage arose, then the question of customary law and customs would also always arise.

Ms Lufundo reiterated that the Bill was not dealing with the regulation of customs.

Ms N Mathibela (ANC) pointed out that many immigrants were settled in within the jurisdiction of Traditional Leaders, and as such these matters were of interest to Traditional Leaders.

Ms Lufundo explained that while immigrants may live in rural areas, they would still require to go to refugee centres when they were seeking asylum.

Ms Mathibela asked what the procedure would be if the immigrant belonged to a local tribe.

The Chairperson terminated the debate on this topic. He suggested that the Department should take the time to determine and recognise stakeholders in the refugee debate.

Mr Mathebe emphasised that he believed that it was necessary to consult Traditional Leaders.

Mr Morwamoche added that as an African country it was necessary to avoid being too Western in practice and ignoring the role of Traditional Leaders.

The Chairperson said that the comments of the Members had been noted.

The Chairperson asked who was responsible for children and mentally ill people seeking asylum.

Adv Erasmus explained that although the legislation provided that children would be dealt with according to the Children’s Act, and mentally ill people would be dealt with according to the Mental Health Act, certain regulations still needed to be put into place to define the manner in which they were to be dealt with.

Ms S Ntombela (ANC) asked the Department to clarify how a person would be categorised as mentally ill.

Adv Erasmus elucidated that the term included anyone certified as mentally ill.

Ms De La Hunt added that this provision was introduced to cater for those who could not fend for themselves in the application process.

Mr W Skhosana (ANC) asked whether the age restriction would be 16 years of age or less.

Adv Erasmus explained that the Children’s Act lowered the age of majority from 21 to 18 years of age. A child would be considered to be anyone under the age of 18. The Department anticipated the coming into effect of the Children’s Act and had therefore tried to align this Bill with that Children’s Act. He also noted that the Bill was aligned to the Recognition of Customary Marriages Act, the Civil Union Act and the Marriage Act.

The Chairperson asked why the RAA would not be able to make any final decisions.

Adv Erasmus stated that the RAA could only deal with the facts before it. If someone were to bring up new information then the matter must be sent back to the authority that had first dealt with the matter. He said that the RAA was not permitted to hear matters de novo.

Mr Sebelemetja added that the case was only returned to the authority of first instance where the new information materially affected the claim. He said that if the new information did not change the complexion of the case, then this was not necessary.

Mr Makatse explained that the courts always kept a record of all the cases they heard so they could provide the statistics for the number of appeals that they had heard.

Mr Morwamoche reiterated that it was not feasible to expect one person to deal with all the appeals.

The Chairperson questioned whether there were any interim measures in place to deal with the backlog. He added that there was no need for the Department to respond to this last remark, as this would be dealt with at the ‘turnaround’ meeting.

Ms Mathibela asked the Department if it was aware of certain immigrants who had been sent to Lindela Refugee Centre and were awaiting deportation, yet were well known as drug lords and rapists. She asked whether they would be deported without being charged or serving time in prison.

Mr Sebelemetja said that the rule of law was that when an immigrant committed an offence against the law of the land then he could be charged and sentenced. If required to serve prison time he would have to do so. Thereafter such a person may apply to have their refugee status reactivated. He said that issues of refugee status in such cases would be dealt with by refugee status offices.

Ms Mathibela pointed out that the arresting officials said that they had arrested 150 men. She asked whether they would just be deported without paying for their crimes.

Adv Erasmus explained that for a criminal case to be instituted, a complainant must lodge a claim against the offender. A docket was then opened for the case. Thereafter the State would prosecute the matter on behalf of the complainant. If there was no charge, there was no case. He said that if the immigrant was charged, convicted and jailed, he could, on coming out of the jail, either be classified as a prohibited person, in which case he would be deported, or alternatively, if not so classified, he would be allowed to apply to have his refugee status reactivated.

The Chairperson explained that any further issues would be dealt with at the ‘turnaround meeting’.

The meeting was adjourned.