South Africa's Assylum Process Is Flawed

Asylum review process flawed — LSSA

REFUGEES
Published 26 Oct 2010

Article by: Sapa0 Comments



Asylum seekers should be given the right and opportunity to make submissions to the Home Affairs director-general before the decision to reject their application is reviewed, the Law Society of SA (LSSA) said on Tuesday.

An automatic review by the director-general without the asylum seeker being afforded an opportunity to make submissions on the rejection of their application as "manifestly unfounded", was procedurally unjust, LSSA representative William Kerfoot told the home affairs portfolio committee.

The committee is currently holding public hearings on the draft Refugees Amendment Bill.

Kerfoot said that some years ago an eminent senior counsel provided an opinion confirming that these "reviews" could not be conducted without affording the affected person a hearing, even if it was merely an opportunity to make written submissions.

It also needed to be borne in mind that the DG was hardly likely, on top of all his other duties, to attend to these personally - especially should the department not want to increase the backlog and delays.

The DG would inevitably delegate the function, which raised further concerns about the independence and practicality of the proposed internal department process.

"Such a procedure will, it is therefore submitted, lead to considerable substantive injustice," he said.

The LSSA urged that this provision be amended to provide that the asylum seeker be afforded an express right and be given a reasonable opportunity to make submissions to the DG prior to the decision being reviewed.

The questionable quality of far too many refugee status determinations in the department at present was generally acknowledged.

Without denying that "manifestly unfounded" applications did get made, the LSSA submitted that all too often findings of "abusive, fraudulent or manifestly unfounded applications" were made in respect of bona fide, if poorly motivated, applications - and sometimes even well-deserving applications.

This revealed a regrettable ignorance of the Refugees Act, of the relevant countries, their country conditions and of the provisions of the United Nations High Commission for Refugees' definitive handbook on how to assess applications, he said.

A further factor might well be the time pressures under which overworked officials operated to get decisions out as required by their supervisors, however laudable it might be to obtain speedy outcomes.

The courts both here and in other countries had warned against applying what was termed "armchair logic" to critically assess the bona fide applicant's version of events, especially when some of these people might be traumatised, physically ill and ill-equipped in English - if at all - and were the classic "stranger(s) in a strange land".

"But tragically that is what is happening," Kerfoot said.

Given the unfortunate low standard of adjudication by Refugees Status Determination Officers, it was particularly important to ensure that members forming the status determination committee were properly trained and qualified.

The vague and unsatisfactory concept "indefinitely" in the bill, should be removed. Emphasis should be placed on the time the asylum seeker or refugee had lived in South Africa, he said.

"It is unconscionable that, for example, Angolan refugees who have been in the country for 15 years or longer and now apply for permanent residence should be disqualified because it is not believed that they will remain refugees 'indefinitely'."

The LSSA also recommended that the bill be amended to provide that any asylum seeker or refugee who had resided in the country for a particular period as an asylum seeker, be entitled to apply for permanent residence without need for further inquiry. This was unless the department had evidence to the contrary, which could be tabled as part of the application for permanent residence.

At the very least, and as a matter of common decency and to provide for a durable solution to the condition of refugees (as government was required to do in terms of its obligations under the Refugee Conventions), the bill should provide that a person with refugee status could apply after five years' residence in SA - calculated from the time he or she entered the country as an asylum seeker.

This did not preclude the department from opposing the application, as was already the case, Kerfoot said.