1. Martin J. Bauwens – martin@refugee.co.za
Refugees Amendment Bill, Submissions to the Portfolio Committee on Home Affairs Date: 15 November 2016
Martin J. Bauwens –

2. Exclusion From Refugee Status
s. 2: Will not qualify for refugee status, asylum seekers who:
did not enter the country through an official port of entry
failed to apply within 5 days of entering SA
are fugitives from justice
Submissions:
irregular entry: compatibility with flight scenario?
late applications: procedural fairness – DHA capacity to deal with influx
justice escapees: RSDO capacity to assess judicial system of foreign country
apparent absence of review/appeal by for disqualification decisions

3. Cessation of Refugee Status - 1
s. 5: Will cease to qualify for status, recognized refugees who has:
returned to visit his or her country of origin
re-availed himself “in any way” to the protection of his country (f.i. passport)
committed a serious crime in SA
used fraudulent a visa, permit or travel document
Submissions:
visit to home country: should be judged on individual merits or circumstances
re-availment must be voluntary, not constrained, with no automaticity
crime & fraudulent document cessation: inconsistent with 1958 Geneva Convention

4. Cessation of Refugee Status - 2
s. 5: Will also cease to qualify for status, recognized refugees who are:
subject to a individual decision by Minister to revoke status
part of a category of refugees for which Minister has collectively ceased status
collective revocation must be implemented by SCRA by notice in Gazette
Submissions:
mass revocation inconsistent with Geneva Conv. individualized asylum process
inconsistent with SCRA’s statutory independence
safeguard issue: sole decision of Minister (no cabinet or UNHCR involvement)

5. SCRA & RAA Independence
DHA may impose a vetting investigation on SCRA and RAB members which include the use of polygraph (National Strategic Intelligence Act, s. 2A).
Applications for asylum found to contain false, dishonest or misleading information, must be rejected by the review (SCRA) or appeal (RAB) bodies.
Submissions:
use of polygraph inconsistent with international standards
automatic rejections inconsistent with statutory independence of:
SCRA: independent body (s. 9A(2) of Refugees Act)
RAB: specialist administrative court (s. 12(3) of Refugees Act)
reverse discrimination against other DHA officials

6. DHA & SCRA Powers: Clarification Needed
s. 9C(1)(c): SCRA is now entitled to monitor and supervise all RSDOs’ decisions, approve, disapprove or refer such decision back to the RRO with recommendation as to how the matter must be dealt with;
s. 9H: SCRA monitoring and supervisory work on RSDOs to be performed by DHA officers specifically designated by DG.
Submissions:
may SCRA now quash any decision granting refugee status or confer status to any asylum seeker whose asylum claim has been rejected by RSDOs’ as manifestly unfounded or unfounded?
monitoring & supervision of all RSDOs’ decisions by designated DHA officials?
Is SCRA or DHA becoming the ultimate decision maker in asylum process?

7. Right to Work & Study
Right to work & study no longer automatic. DHA to assess whether asylum seeker is able to sustain himself. Letter of employment or enrollment is required. No right to work if applicant has been offered assistance by UNHCR.
Submissions:
has DHA secured commitment from UNHCR to assist asylum seekers in SA?
assessment of applicant’s ability to sustain himself: extra workload on DHA
freedom to engage in productive work is an intrinsic component of human dignity protected by s. 10 of the Constitution

8. Conclusion Asylum process to be streamlined
Do away with distinction between unfounded and manifestly unfounded
Merge SCRA and RAB into a single appeal body
Appeal body to adjudicate with 3 judges or 1 judge if appeal manifestly unfounded
SCRA refugee certification no longer required
Individual regularization of stay where special circumstances exist, f.i:
long-term failed asylum seekers
Skills, family or medical reasons
Arbitration to replace High Court judicial review

9. Thank You!
Martin J. Bauwens