1. 1 REFUGEES AMENDMENT BILL, 2008 Presentation to the Select Committee on Social Services 17 June 2008 Caring, compassionate and responsive

2. 2 BACKGROUND Caring, compassionate and responsive 5 The Amendment Bill seeks to amend definitions; provide for delegation of powers; provide for matters relating to the establishment of Refugee Reception Offices; provide for the dissolution of the Standing Committee for Refugee Affairs and the Refugee Appeal Board; provide for matters relating to the Refugee Appeals Authority; provide for clarification and revision of procedures relating to refugee status determination; to provide for obligations and rights of asylum seekers; provide for repeal of certain sections; and effect certain technical corrections.

3. 3 Clause 1 Substitution of section 1 Caring, compassionate and responsive 6 Inserts the definitions of “biometrics”, “court” as well as “immediate family”, “marriage”, “residence” and “spouse”, as they appear in the Immigration Act, 2002, with the addition of a “civil union” in terms of the Civil Union Act, 2006. Inserts the definition of “residence” to clarify its meaning as contemplated in article 1A(2) of the 1951 United Nations Convention on Status of Refugees (“1951 UN Convention”).

4. 4 Clause 2 Insertion of section 1A Caring, compassionate and responsive 7 The contents of the new section 1A in clause 2 was contained in section 6 of the principal Act (which is repealed by clause 7). The newly inserted paragraph (e) provides that the Act must be interpreted an applied in a manner that is consistent with any domestic law or other relevant convention or international agreement to which the Republic is or becomes a party.

5. 5 Clause 6 Amendment of section 5 Caring, compassionate and responsive 8 Clause 6 amends section 5(1)(c) of the Act to provide that a person shall not be prevented from re-applying for refugee status if his or her permanent residence status is withdrawn. Clause 8 Substitution of section 7 Clause 9 substitutes section 7(2) and 7(3) of the Act to empower the Director-General to delegate powers, however, it restricts the power to designate officers of the Department to perform administrative work connected with the functions of the newly established Refugee Appeals Authority.

6. 6 Clause 10 Substitution of section 8 Caring, compassionate and responsive 9 Section 8 deals with the establishment of Refugee Reception Offices and their composition. The new composition of the Refugee Reception Office no longer makes provision for Refugee Reception Officers. Clause 10 removes the requirement that the Director- General must establish Refugee Reception Offices “after consultation with the Standing Committee”. The Director-General may now, by notice in the Gazette, establish as many Refugee Reception Offices in the Republic as he or she regards necessary (see clause 13).

7. 7 Clause 10 Substitution of section 8 (continued) Caring, compassionate and responsive 10 Section 8(2)(b) of the Act, dealing with qualifications of Refugee Status Determination Officers, is amended in order to provide for such qualifications to be prescribed. The new subsection (3) empowers the Director- General to appoint such number of officers as he or she deems necessary to perform the administrative functions connected with the refugee status determination process.

8. 8 Clause 11 Insertion of sections 8A to 8I Caring, compassionate and responsive 11 This clause dissolves the Standing Committee for Refugee Affairs and the Refugee Appeal Board and establishes a new body known as the “Refugee Appeals Authority”. The clause further inserts sections 8A to 8I into the Act which relate to the establishment of the Refugee Appeals Authority, its composition, functions and powers, the periods of office, removal from office, filling of vacancies and remuneration of members of the Refugee Appeals Authority, administrative staff of the Refugee Appeals Authority and annual reports.

9. 9 Clause 13 Amendment of section 21 Caring, compassionate and responsive 12 Clause 13 amends section 21 of the Act in order to provide for an application for asylum to be made in person to the Refugee Status Determination Officer at any Refugee Reception Office or at any other place designated as such by the Director-General by notice in the Gazette. This clause further amends section 21(3) of the Act to provide that every applicant, including his or her dependants or spouse, must have his or her biometrics taken.

10. 10 Clause 14 Insertion of sections 21A & 21B Caring, compassionate and responsive 13 Clause 14 inserts section 21A into the Act, which section deals with an unaccompanied child and mentally disabled person. In terms of the amendment [the new section 21A(1)] an unaccompanied child should be issued with an asylum seeker permit and should, in the prescribed manner, be brought before the Children’s Court to be dealt with in terms of the Children’s Act, 2005.

11. 11 Clause 14 (continued) Caring, compassionate and responsive 14 In terms of the amendment [the new section 21A(2)] a person with mental disability should also be issued with an asylum seeker permit and should be accompanied to a health establishment as contemplated in the Mental Health Care Act, 2002. The newly inserted section 21B deals with the dependants and spouse of asylum seekers and refugees and contains the provisions of the current section 33 of the Act that will now be repealed by clause 25.

12. 12 Clause 15 Amendment of section 22 Caring, compassionate and responsive 15 Clause 15 amends section 22 of the Act to provide that the Refugee Status Determination Officer must refer the applicant to an officer contemplated in section 8(3) of the Act to be issued with an asylum seeker permit, pending the outcome of the application. An officer contemplated in section 8(3) of the Act must also extend the permit from time to time, pending the decision on the application. This section further provides that the permit must contain the biometrics of the holder of the permit.

13. 13 Clause 15 (continued) Caring, compassionate and responsive 16 Clause 15 further amends section 22(6) of the Act in order to provide that the Director- General may at any time withdraw an asylum seeker permit in the prescribed manner. In terms of the principal Act, before the amendment, such withdrawal could only be done by the Minister.

14. 14 Thank You Caring, compassionate and responsive 18 Clause 16 Amendment of section 24 Section 24 of the Act (decisions of the Refugee Status Determination Officer) is amended in order to insert subsection (5) to provide that an asylum seeker whose application for asylum has been rejected, may be dealt with in terms of the Immigration Act, 2002. Subsection (6) is also inserted into the Act to provide that an application may be deemed to be abandoned if the asylum seeker has not renewed his or her asylum seeker permit within 90 days after it has expired.

15. 15 Thank You Caring, compassionate and responsive 18 New clause 18 (“old” clause 19) Insertion of sections 24A and 24B This clause inserts sections 24A and 24B into the Act. Section 24A provides for the review of applications rejected in terms of section 24(3)(b) of the Act by the Director-General. Section 24B provides for appeals to the newly established Refugee Appeals Authority.

16. 16 Thank You Caring, compassionate and responsive 19 New clause 24 (“old” clause 25) Substitution of section 30 This clause substitutes section 30 of the Act that deals with the issuing of identity documents to refugees and provides that a refugee must, upon application in the prescribed manner and on the prescribed form, be issued with an identity card or document similar to a South African identity card or document.

17. 17 Thank You Caring, compassionate and responsive 20 New clause 26 (“old” clause 27) Substitution of section 34 This clause substitutes section 34 of the Act and provides for the obligations of refugees. New clause 27 (“old” clause 28) Insertion of section 34A This clause inserts section 34A into the Act and provides for the obligations of asylum seekers.

18. 18 Thank You Caring, compassionate and responsive This clause inserts paragraphs (e) and (f) after paragraph (d) in section 37 of the Act in order to provide for two additional offences. New clause 31 (“old” clause 32) Repeal of sections 39 and 40 This clause repeals sections 39 and 40 of the Act which deal, amongst others, with the training of staff. Caring, compassionate and responsive 21 New clause 29 (“old” clause 30) Amendment of section 37

19. 19 New clause 32 (“old” clause 33) Transitional provisions and savings Caring, compassionate and responsive This clause contains the transitional provisions and savings. New clause 33 (“old” clause 34) Short title and commencement This clause contains the short title and commencement and provides that this Act is called the Refugees Amendment Act, 2008, and comes into operation on a date determined by the President by proclamation in the Gazette.

20. 20 Thank You Caring, compassionate and responsive 22 Consequential amendments Clause 3 amends section 2(b) of the Act to correct certain technical aspects. Clause 4 amends section 3(a) by inserting the word “gender” after the word “race” to emphasize that gender also qualifies as a reason for persecution. Section 3(b) of the Act is amended to align the contents thereof with that of article 1A(2) of the 1951 UN Convention. Furthermore, it inserts the words “spouse or” before the word “dependant” in section 3(c) of the Act, to allow for a spouse of the person who qualifies for refugee status, to also qualify.

21. 21 Thank You Caring, compassionate and responsive 23 Consequential amendments (continued) Clause 5 amends section 4 of the Act by inserting “Refugee Status Determination Officer” and further aligning the Act with article 1F(b) of the 1951 UN Convention. Clause 7 repeals section 6 of the Act which dealt with the interpretation and application of the Act. Clause 9 substitutes the heading to Chapter 2 of the Act in order to correct certain technical aspects (i.e. consequential amendments).

22. 22 Consequential amendments (continued) Caring, compassionate and responsive 24 Clause 12 repeals sections 9 to 20 of the Act which deal with aspects relating to the Standing Committee for Refugee Affairs and the Refugee Appeal Board, as both the aforementioned bodies are dissolved. The Refugee Appeals Authority is established in terms of clause 11 of the Amendment Bill. “Old” clause 17 of the Bill has been deleted. The new clause 17 (“old” clause 18) repeals sections 25 and 26 of the Act which deals with reviews by the Standing Committee for Refugee Affairs.

23. 23 Consequential amendments (continued) The new clause 19 (“old” clause 20) substitutes the heading to Chapter 5 of the Act in order to correct certain technical aspects (i.e. consequential amendments). The new clause 20 (“old” clause 21) substitutes section 27 of the Act in order to clearly set out the protection and rights a refugee is entitled to. The new clause 21 (“old” clause 22) inserts section 27A into the Act in order to clearly set out the protection and rights an asylum seeker is entitled to.

24. 24 Caring, compassionate and responsive The new clause 22 (“old” clause 23) amends section 28 of the Act and inserts the words “spouse or” before the word “dependant” in order to allow for the removal of the dependant or spouse of a refugee who has been ordered to be removed from the Republic. The new clause 23 (“old” clause 24) amends section 29 of the Act in order to provide for the review of a decision to detain an asylum seeker to be made in the Magistrate’s Court rather than the High Court. Consequential amendments (continued)

25. 25 Caring, compassionate and responsive The new clause 25 (“old” clause 26) repeals sections 31, 32 and 33 of the Act, the substance of which sections are contained in sections 21A and 21B inserted into the Act by clause 14. The new clause 28 (“old” clause 29) substitutes section 36 of the Act in order to correct certain technical aspects and further provides for the withdrawal of refugee status on the basis of two grounds. An appeal against such withdrawal may be lodged with the Refugee Appeals Authority within 30 days after receipt of the decision to withdraw refugee status. The new clause 30 (“old” clause 31) amends section 38 of the Act in order to correct certain technical aspects (i.e. consequential amendments). Consequential amendments (continued)

26. 26 Caring, compassionate and responsive THANK YOU