Long title
To amend the Refugees Act, 1998, so as to amend, insert and delete
certain definitions; to provide for delegation of powers; to provide
for certain matters with regard to the establishment of Refugee
Reception Offices; to provide for the dissolution of the Standing
Committee for Refugee Affairs and the Refugee Appeal Board; to provide
for the establishment of the Refugee Appeals Authority; to provide for
the clarification and revision of procedures relating to refugee status
determination; to provide for obligations and rights of asylum seekers;
to provide for the repeal of certain obsolete provisions; and to effect
certain technical corrections; and to provide for matters connected
therewith
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[Act 2008_033_000 Long title unamended wef 0000/00/00]
1. Amendment of section 1 of Act 130 of 1998
The following section is hereby substituted for section 1 of the
Refugees Act, 1998 (hereinafter referred to as the principal Act):
"Definitions
1. In this Act, unless the context [shows that another meaning is intended] [ indicates otherwise] -
[ (i) ] 'abusive application for asylum' means an application for asylum made-
(a) with the purpose of defeating or evading criminal or civil proceedings or the consequences thereof; or
(b)
after the refusal of one or more prior applications without any
substantial change having occurred in the applicant's personal
circumstances or in the situation in his or her country of origin; [ (xiv)
(ii) 'Aliens Control Act, 1991' means the Aliens Control Act, 1991 (Act No. 96 of 1991); (xxiv)
(iii) 'Appeal Board' means the Refugee Appeal Board, established by section 12; (ii)
(iv) ] 'asylum' means refugee status recognised in terms of this Act; [ (iii)
(v)] 'asylum seeker' means a person who is seeking recognition as a refugee in the Republic; [ (iv)
(vi) ] 'asylum seeker permit' means a permit contemplated in section 22; [ (v) ]
[
'biometrics' means the measurable physiological or behavioural
characteristics that can be used in verifying the identity of
individuals, and may include the use of photographs, fingerprints, hand
measurements, signature verification, facial patterns and retinal
patterns; ]
[ (vii) ] 'child' means any person under the age of 18 years; [ (x) ]
['court' means a magistrate's court ] ;
[(viii) ] 'Department' means the Department of Home Affairs; [ (vii)
(ix) ] 'dependant', in relation to an asylum seeker or a refugee, includes [ the spouse, ]
any unmarried dependant child or any destitute, aged or infirm member
of the immediate family of such asylum seeker or refugee; [ (i)
(x) ] 'Director-General' means the Director-General of the Department; [ (viii)
(xi) ] 'fraudulent application for asylum' means an application for asylum based without reasonable cause on [facts, ] information, documents or representations which the applicant knows to be false and [which facts, information, documents or representations] are intended to materially affect the outcome of the application; [ (vi) ]
[
'immediate family' means the immediate family as defined in section 1
of the Immigration Act;
'Immigration Act' means the Immigration Act,
2002 (Act No. 13 of 2002); ]
[ (xii) ]
'manifestly unfounded application' means an application for asylum made
on grounds other than those on which such an application may be made
under this Act; [ (xi) ] " [sic - quotation mark]
[ 'marriage' means-
(a) either a marriage or a civil partnership concluded in terms of the Civil Union Act, 2006 (Act No. 17 of 2006);
(b) a marriage concluded in terms of-
(i) the Marriage Act, 1961 (Act No. 25 of 1961); or
(ii) the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998);
(c) a marriage concluded in terms of the laws of a foreign country; or
(d) a marriage concluded in terms of Islamic or other religious rites; ]
[ (xii) ] 'Minister' means the Minister of Home Affairs; [ (xiii)
(xiv) ] 'prescribed' means prescribed by regulation;
[ (xv) ] 'refugee' means any person who has been granted asylum in terms of this Act; [ (xviii) ]
[ 'Refugee Appeals Authority' means the Refugee Appeals Authority established in terms of section 8A; ]
[ (xvi) ] 'Refugee Reception Office' means a Refugee Reception Office established under section 8(1); [ xx
(xvii) 'Refugee Reception Officer' means a Refugee Reception Officer referred to in section 8(2); (xix)
(xviii)] 'Refugee Status Determination Officer' means a Refugee Status Determination Officer referred to in section 8(2); [ (xxi)
(xix) ] 'regulation' means any regulation made under this Act; [ (xvi) ]
[
'residence' means a status recognised by competent authorities of a
particular country that affords a person the right to sojourn in that
country with the rights and obligations attached thereto; ]
[ (xx) 'rules' means the rules made by the Appeal Board under section 14(2); (xv)
(xxi) ] 'social group' includes [ , among others, ] a group of persons of particular gender, sexual orientation, disability, class or caste; [ (xii) ]
[ 'spouse' means a person who is a party to-
(a) a marriage as defined in terms of this Act; or
(b) a permanent homosexual or heterosexual relationship as prescribed; ]
[ (xxii) 'Standing Committee' means the Standing Committee for Refugee Affairs, established by section 9; (xvii)
(xxiii) ] 'this Act' includes the regulations [made in terms of this Act; ] [ (ix) ]
[ 'unfounded application', in relation to an application for asylum in terms of section 21, means an application-
(a) made on the grounds other than those contemplated in section 3; or
(b) made on the grounds contemplated in section 3, but which is without merit; ]
[ (xxiv) ] 'UNHCR' means the United Nations High Commissioner for Refugees. [ (xxii) ] .".
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2. Insertion of section 1A in Act 130 of 1998
The following section is hereby inserted in the principal Act after section 1:
"Interpretation and application of Act
[ 1A. This Act must be interpreted and applied in a manner that is consistent with-
(a) the 1951 United Nations Convention Relating to the Status of Refugees;
(b) the 1967 United Nations Protocol Relating to the Status of Refugees;
(c) the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa;
(d) the 1948 United Nations Universal Declaration of Human Rights; and
(e) any domestic law or other relevant convention or international agreement to which the Republic is or becomes a party. ] ".
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3. Amendment of section 2 of Act 130 of 1998
Section 2 is hereby amended by the substitution for paragraph (b) of the following paragraph:
"(b)
his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination or other
events seriously disturbing [ or disrupting ] public order in [either] [ any ] part or the whole of that country.".
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4. Amendment of section 3 of Act 130 of 1998
Section 3 of the principal Act is hereby amended by the substitution
for paragraphs (a), (b) and (c) of the following paragraphs,
respectively:
"(a) owing to a well-founded fear of being persecuted by reason of his or her race, [ gender, ] tribe, religion, nationality, political opinion or membership of a
particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail himself or herself of
the protection of that country, or, not having a nationality and being
outside the country of his or her former habitual residence is unable
or, owing to such fear, unwilling to return to it; or
(b) owing to external aggression, occupation, foreign domination or [other] events seriously disturbing [ or disrupting ]
public order in either a part or the whole of his or her country of
origin or nationality, is compelled to leave his or her place of
habitual residence in order to seek refuge [elsewhere] [ in another place outside his or her country of origin or nationality] ; or
(c) is a [spouse or ] dependant of a person contemplated in paragraph (a) or (b).".
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5. Amendment of section 4 of Act 130 of 1998
Section 4 of the principal Act is hereby amended by-
(a) the substitution in subsection (1) for the words preceding paragraph (a) of the following words:
"A person does not qualify for refugee status for the purposes of this Act if [ there is ] [ the Refugee Status Determination Officer has ] reason to believe that he or she-";
(b) the substitution in subsection (1) for paragraph (b) of the following paragraph:
"(b) has committed [ a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment ] [ a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee] ; or"; and
(c)
the substitution in subsection (1) for paragraph (d) of the following
paragraph:
"(d) enjoys the protection of any other country in which he
or she [ has taken residence] [ is a recognised refugee, permanent resident or citizen] .".
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6. Amendment of section 5 of Act 130 of 1998
Section 5 of the principal Act is hereby amended by the substitution in
subsection (1) for paragraph (c) of the following paragraph:
"(c) he or she becomes [ a permanent resident or ] a citizen of the Republic or acquires the nationality of some other country and enjoys the protection of [ the ] [ that ] country [ of his or her new nationality] [ : Provided that a person whose permanent residence status is withdrawn is not prevented from re-applying for refugee status] ; or".
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7. Repeal of section 6 of Act 130 of 1998
Section 6 of the principal Act is hereby repealed.
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8. Substitution of section 7 of Act 130 of 1998
The following section is hereby substituted for section 7 of the principal Act:
"Delegation of powers
[ 7.
(1) The Minister may, subject to the conditions that he or she may deem
necessary, delegate any power conferred on him or her by this Act,
excluding a power referred to in section 8B(2), 8F, 8G or 38, to any
officer or employee of the Department, but shall not be divested of any
power so delegated.
(2)
The Director-General may, subject to the conditions that he or she may
deem necessary, delegate any power conferred on him or her by this Act,
excluding a power referred to in section 8I, to any officer or employee
of the Department, but shall not he divested of any power so delegated. ] ".
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9. Substitution of heading to Chapter 2 of Act 130 of 1998
The following heading is hereby substituted for the heading to Chapter 2 of the principal Act:
REFUGEE RECEPTION OFFICES [ , STANDING COMMITTEE FOR REFUGEE AFFAIRS] AND REFUGEE [APPEAL BOARD] [APPEALS AUTHORITY] ".
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[Act 2008_033_009 unamended wef 0000/00/00]
10. Substitution of section 8 of Act 130 of 1998
The following section is hereby substituted for section 8 of the principal Act:
"Refugee Reception Office
8. (1) The Director-General may [ , by notice in the Gazette, ] establish as many Refugee Reception Offices in the Republic as he or she [ , after consultation with the Standing Committee, ] regards as necessary for the purposes of this Act.
(2) Each Refugee Reception Office must consist of at least [ one Refugee Reception Officer and ] one Refugee Status Determination Officer who must-
(a) be [officers] [ an officer ] of the Department, designated by the Director-General [ for a term of office determined by the Director-General ] ; and
(b) have such qualifications, experience and knowledge of refugee matters [ as ] [ that ] makes [ them ] [ him or her ] capable of performing [ their ] [ his or her ] functions [ in terms of this Act ] .
(3) The Director-General [must,
with the approval of the Standing Committee, ensure that each officer
appointed under this section receives the additional training necessary
to enable such officer to perform his or her functions properly] [must
appoint such number of officers as he or she deems necessary to perform
administrative functions connected with the Refugee Reception Office] .".
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[Act 2008_033_010 unamended wef 0000/00/00]
11. Insertion of sections 8A to 8J in Act 65 of 1996
The following sections are hereby inserted in the principal Act after section 8:
"Refugee Appeals Authority
[ 8A. (1) There is hereby established a Refugee Appeals Authority.
(2) The Refugee Appeals Authority is independent and must function without any bias.
(3) The headquarters of the Refugee Appeals Authority must be determined by the Minister. ]
Composition of Refugee Appeals Authority
[ 8B. (1) The Refugee Appeals Authority consists of-
(a) a chairperson who is legally qualified; and
(b)
such number of other members as the Minister may determine, having
regard to the likely volume of work to be performed by the Refugee
Appeals Authority: Provided that at least one of such members is
legally qualified.
(2)
The chairperson and other members of the Refugee Appeals Authority are
appointed by the Minister with due regard to their experience,
qualifications and expertise, as well as their ability to perform the
functions of the Refugee Appeals Authority properly. ]
Functions of Refugee Appeals Authority
[8C. (1) The Refugee Appeals Authority must-
(a) subject to subsection (2), determine any appeal lodged in terms of this Act; and
(b) advise the Minister on any matter which the Minister refers to the Refugee Appeals Authority.
(2)
An appeal contemplated in subsection (1)(a) must be determined by such
number of members of the Refugee Appeals Authority as the chairperson
may deem necessary: Provided that at least one of such members is
legally qualified.
(3)
The Refugee Appeals Authority may determine its own procedure and make
its own rules, which may not be in conflict with the provisions of this
Act.
(4) Rules made under subsection (3) must be published in the Gazette. ]
Term of office of members of Refugee Appeals Authority
[ 8D.
(1) A member of the Refugee Appeals Authority serves for a period of
five years and is eligible for reappointment upon expiry of his or her
term of office.
(2) A member may resign by tendering a written notice of resignation to the Minister. ]
Disqualification from membership
[ 8E. A person may not be appointed as a member of the Refugee Appeals Authority if that person-
(a) is not a South African citizen;
(b) has been sentenced to imprisonment without the option of a fine during the preceding four years;
(c) is an unrehabilitated insolvent;
(d) has been judicially declared of unsound mind;
(e) has been removed from an office of trust on account of misconduct involving theft, fraud or corruption; or
(f) is a political office bearer. ]
Removal from office of member of Refugee Appeals Authority
[ 8F.
(1) The Minister may remove a member of the Refugee Appeals Authority
from office on account of misconduct or inability to perform the
functions of his or her office effectively and efficiently.
(2)
The Minister may remove a member of the Refugee Appeals Authority in
terms of subsection (1) if such member has been given an opportunity to
make representations or comments on the matter and the Minister has
taken any such representations or comments into consideration. ]
Filling of vacancies in Refugee Appeals Authority
[ 8G.
Whenever a vacancy arises in the Refugee Appeals Authority as a result
of death, resignation or removal from office of a member of the Refugee
Appeals Authority, the Minister may appoint a suitable person for the
remainder of the term of office of such member. ]
Remuneration of members of Refugee Appeals Authority
[ 8H.
The members of the Refugee Appeals Authority must receive such
remuneration, allowances and other benefits as the Minister may
determine with the concurrence of the Minister of Finance. ]
Administrative staff of Refugee Appeals Authority
[ 8I.
The administrative work connected with the performance of the functions
of the Refugee Appeals Authority must be performed by officers of the
Department designated by the Director-General for that purpose. ]
Annual Reports of Refugee Appeals Authority
[ 8J.
(1) The Refugee Appeals Authority must, within 30 days after the end of
each financial year, prepare a report on all its activities during that
financial year and on its financial position as at the end of that
financial year.
(2)
The Refugee Appeals Authority must, immediately after the report
contemplated in subsection (1) is finalised, submit the report together
with the audited balance sheet and accounts pertaining to the funds of
the Refugee Appeals Authority to the Minister for tabling in Parliament.
] ".
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[Act 2008_033_011 unamended wef 0000/00/00]
12. Repeal of sections 9 to 20 of Act 130 of 1998
Sections 9 to 20 of the principal Act are hereby repealed.
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13. Amendment of section 21 of Act 130 of 1998
Section 21 of the principal Act is hereby amended by the substitution
for subsections (1), (2) and (3) of the following subsections,
respectively:
"(1) An application for asylum must be made in person in accordance with the prescribed procedures to a [ Refugee Reception Officer] [
Refugee Status Determination Officer] at any Refugee Reception Office [ or
at any other place designated by the Director-General by notice in the
Gazette] .
[ (2)
The Refugee Status Determination Officer must, upon receipt of the
application contemplated in subsection (1), deal with such application
in terms of section 24. ]
(3) When making an application for asylum, every applicant [ , including his or her spouse and dependants, ] must have his or her [ fingerprints or other prints ] [ biometrics ] taken in the prescribed manner [
and every applicant who is 16 years old or older must furnish two
recent photographs of himself or herself of such dimensions as may be
prescribed ] .".
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[Act 2008_033_013 unamended wef 0000/00/00]
14. Insertion of sections 21A and 21B in Act 130 of 1998
The following sections are hereby inserted in the principal Act after section 21:
"Unaccompanied child and person with mental disability
[ 21A.
(1) Any unaccompanied child who is found under circumstances that
clearly indicate that he or she is an asylum seeker and a child in need
of care contemplated in the Children's Act, 2005 (Act No. 38 of 2005),
must-
(a) be issued with an asylum seeker permit in terms of section 22; and
(b)
in the prescribed manner, be brought before the Children's Court in the
district in which he or she was found, to be dealt with in terms of the
Children's Act, 2005.
(2)
Any person with a mental disability who is found under circumstances
that clearly indicate that he or she is an asylum seeker, must-
(a) be issued with an asylum seeker permit in terms of section 22; and
(b)
in the prescribed manner, be referred to a health establishment
contemplated in the Mental Health Care Act, 2002 (Act No. 17 of 2002),
to be dealt with in terms of that Act. ]
Spouse and dependants of asylum seekers and refugees
[
21B. (1) A person who applies for refugee status in terms of section 21
and who would like one or more of his or her spouse and dependants to
be granted refugee status must, when applying for asylum, include the
details of such spouse and dependants in the application.
(2)
Any refugee whose child is born in the Republic must, within one month
of the birth of his or her child, register such a child as a dependant
at any Refugee Reception Office.
(3)
Where a dependant of a recognised refugee is within the Republic in
accordance with an asylum seeker permit or has been granted asylum in
terms of this Act and ceases to be a dependant by virtue of marriage or
cessation of his or her dependence upon the recognised refugee, as the
case may be, he or she may apply in the prescribed manner to be
permitted to continue to remain within the Republic in accordance with
the provisions of this Act.
(4)
Where a spouse of a recognised refugee is within the Republic in
accordance with an asylum seeker permit or has been granted asylum in
terms of this Act and ceases to be the spouse as a result of divorce or
death of the recognised refugee, as the case may be, he or she may be
permitted to continue to remain within the Republic in accordance with
the provisions of this Act: Provided that, in the case of divorce, the
Director-General is satisfied that a good faith spousal relationship
existed between the recognised refugee and such spouse for a period of
at least two years after having been granted asylum.
(5)
Nothing contained in this Act prevents a dependant who has, in terms of
subsection (3), been permitted to continue to remain in the Republic
from applying for recognition as a refugee in accordance with the
provisions of this Act. ] ".
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[Act 2008_033_014 unamended wef 0000/00/00]
15. Amendment of section 22 of Act 130 of 1998
Section 22 of the principal Act is hereby amended by-
(a) the substitution for subsections (1), (2), (3) and (4) of the following subsections, respectively:
"(1) The [ Refugee Reception Officer] [ Refugee Status Determination Officer] must, pending the outcome of an application in terms of section 21(1), [ issue to ] [refer] the applicant [ to the officers contemplated in section 8(3) to be issued with]
an asylum seeker permit in the prescribed form allowing the applicant
to sojourn in the Republic temporarily, subject to any conditions [ ,
] determined [ and endorsed ] by the [Standing Committee] [Director-General] , which are not in conflict with the Constitution or international law [ and are endorsed by the Refugee Reception Officer on the permit] .
(2) Upon the issue of a permit in terms of subsection (1), any permit issued to the applicant in terms of the [ Aliens Control Act, 1991, ] [ Immigration Act ] becomes null and void [ , ] and must [ forthwith] be returned to the Director-General for cancellation.
(3) [ A Refugee Reception Officer] [ The officers contemplated in section 8(3) ] [ may ] [must, pending the decision on the application in terms of section 21, ] from time to time extend the period for which a permit has been issued in terms of subsection (1) [ , or amend the conditions subject to which a permit has been so issued ] .
(4) The permit referred to in subsection (1) must contain [ a recent photograph and the fingerprints or other prints] the [ biometrics ] of the holder thereof [ as prescribed ] .";
(b) by the deletion of subsection (5); and
(c) by the substitution in subsection (6) for the words preceding paragraph (a) of the following words:
The [ Minister] [ Director-General ] may at any time withdraw an asylum seeker permit [ in the prescribed manner] if-. [sic - no use of quotation marks]
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[Act 2008_033_015 unamended wef 0000/00/00]
16. Substitution of section 23 of Act 130 of 1998
The following section is hereby substituted for section 23 of the principal Act:
"Detention of asylum seeker
23. If the [ Minister] [ Director-General ]
has withdrawn an asylum seeker permit in terms of section 22(6), he or
she may, subject to section 29, cause the holder to be arrested and
detained pending the finalisation of the application for asylum, in the
manner and place determined by him or her with due regard to human
dignity.".
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[Act 2008_033_016 unamended wef 0000/00/00]
17. Amendment of section 24 of Act 130 of 1998
Section 24 of the principal Act is hereby amended by-
(a) the deletion of subsection (1);
(b) the substitution for subsections (2), (3) and (4) of the following subsections, respectively:
"(2) When considering an application [ for asylum] , the Refugee Status Determination Officer [ -
(a) ] must have due regard [ for the rights set out in section 33 of the Constitution] [ to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) ]
, and in particular, ensure that the applicant fully understands the
procedures, his or her rights and responsibilities and the evidence
presented; and
[ (b) may consult with or invite a UNHCR representative to furnish information on specified matters] .
(3) The Refugee Status Determination Officer must at the conclusion of the hearing-
(a) grant asylum; [ or ]
(b) reject the application as manifestly unfounded, abusive or fraudulent; or
(c) reject the application as unfounded [ ; or
(d) refer any question of law to the Standing Committee] .
(4) If an application is rejected in terms of subsection (3)(b) [ or (c), the Refugee Status Determination Officer must ] -
(a) [ furnish the applicant with ] written reasons [must be furnished to the applicant] within five working days after the date of the rejection [ or referral ] ;
(b) [
the record of proceedings and a copy of the reasons referred to in
paragraph (a) must be submitted to the Standing Committee within 10
working days after the date of the rejection or referral ] [ inform the applicant of his or her right to appeal in terms of section 24B ] ."; and
(c) by the addition of the following subsections:
" [ (5) An asylum seeker whose application for asylum has been rejected in
terms of subsection (3)(b) or (c), must be dealt with in terms of the
Immigration Act, unless he or she lodges an appeal in terms of section
24A(1).
(6)
An application must 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: Provided that the asylum seeker advances valid reasons for the
non-renewal of the asylum seeker permit. ] ".
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[Act 2008_033_017 unamended wef 0000/00/00]
18. Repeal of sections 25 and 26 of Act 130 of 1998
Sections 25 and 26 of the principal Act are hereby repealed.
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19. Insertion of sections 24A and 24B in Act 130 of 1998
The following sections are hereby inserted in the principal Act after section 24:
"Review of applications rejected in terms of section 24(3)(b)
[ 24A.
(1) The Director-General must review any decision taken by a Refugee
Status Determination Officer in terms of section 24(3)(b).
(2) Before reaching a decision, the Director-General may-
(a)
request any person who is in a position to do so to provide him or her
with information relevant to the matter being dealt with;
(b) make such further inquiries into the matter being dealt with as he or she deems appropriate; and
(c) request the applicant to provide such other information as the Director-General may deem necessary.
(3) The Director-General may confirm or set aside a decision made in terms of section 24(3)(b).
(4)
The Director-General must inform the Refugee Status Determination
Officer concerned of his or her decision in the prescribed manner and
within the prescribed time. ]
Appeals to Refugee Appeals Authority
[ 24B.
(1) Any asylum seeker whose application has been rejected in terms of
section 24(3)(b) or (c) may lodge an appeal with the Refugee Appeals
Authority in the prescribed manner.
(2)
The Refugee Appeals Authority may, after having determined an appeal,
confirm, set aside or substitute any decision taken by a Refugee Status
Determination Officer in terms of section 2A(3)(b) or (c).
(3) Before making a decision, the Refugee Appeals Authority may-
(a) invite a UNHCR representative to make oral or written representations;
(b)
request the attendance of any person who, in its opinion, is in a
position to provide the Refugee Appeals Authority with relevant
information;
(c) of its own accord make further inquiries; or
(d) request the asylum seeker to appear before it or to provide any such other information as it may deem necessary.
(4) The Refugee Appeals Authority must allow legal representation upon the request of the asylum seeker.
(5)
The Refugee Appeals Authority must refer a matter back to the Refugee
Status Determination Officer to deal with such asylum seeker in terms
of this Act if new information, which is material to the application,
is presented during the appeal. ] ".
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[Act 2008_033_019 unamended wef 0000/00/00]
20. Amendment of heading to Chapter 5 of Act 130 of 1998
The following heading is hereby substituted for the heading to Chapter 5 of the principal Act:
"RIGHTS AND OBLIGATIONS OF REFUGEES [AND ASYLUM SEEKERS] ".
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[Act 2008_033_020 unamended wef 0000/00/00]
21. Substitution of section 27 of Act 130 of 1998
The following section is hereby substituted for section 27 of the principal Act:
"Protection and general rights of refugees
[ 27. A refugee is entitled to-
(a) a formal written recognition of refugee status in the prescribed form;
(b)
full legal protection, which includes the rights set out in Chapter 2
of the Constitution of the Republic of South Africa. 1996, except those
rights that only apply to citizens;
(c)
permanent residence in terms of section 27(d) of the Immigration Act
after five years of continuous residence in the Republic from the date
on which he or she was granted asylum, if the Director- General, after
considering all the relevant factors and within a reasonable period of
time, certifies that he or she would remain a refugee indefinitely;
(d) an identity document referred to in section 30;
(e) a travel document if he or she applies in the prescribed manner; and
(f) seek employment. ] ".
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[Act 2008_033_021 unamended wef 0000/00/00]
22. Insertion of section 27A in Act 130 of 1998
The following section is hereby inserted in the principal Act after section 27:
Protection and general rights of asylum seekers
[ 27A. An asylum seeker is entitled to-
(a)
a formal written recognition as an asylum seeker in the prescribed form
pending finalisation of his or her application for asylum;
(b) the right to remain in the Republic pending the finalisation of his or her application for asylum;
(c) the right not to be unlawfully arrested or detained; and
(d)
the rights contained in the Constitution of the Republic of South
Africa, 1996, in so far as those rights apply to an asylum seeker. ] ".
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[Act 2008_033_022 unamended wef 0000/00/00]
23. Amendment of section 28 of Act 130 of 1998
Section 28 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) If an order is made under this section for the removal from the Republic of a refugee, any [spouse or ] dependant of such refugee who has not been granted asylum, may be
included in such an order and removed from the Republic if such [spouse or ]
dependant has been afforded a reasonable opportunity to apply for
asylum but has failed to do so [ , ] or if his or her application for asylum
has been rejected.".
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[Act 2008_033_023 unamended wef 0000/00/00]
24. Substitution of section 29 of Act 130 of 1998
The following section is hereby substituted for section 29 of the principal Act:
"Restriction of detention
29.
(1) No person may be detained in terms of this Act for a longer period
than is reasonable and justifiable and any detention exceeding 30 days
must be reviewed immediately by [ a judge of the High Court of the provincial division] [ a court ] in whose area of jurisdiction the person is detained, [designated by the Judge President of that division for that purpose]
and such detention must be reviewed in this manner immediately after
the expiry of every subsequent period of 30 days [ of detention] .
(2) The detention of a child must be used only as a measure of last resort and for the shortest [appropriate] [ possible ] period of time, [ taking into consideration the principle of family unity and the best interest of the child ] .".
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[Act 2008_033_024 unamended wef 0000/00/00]
25. Substitution of section 30 of Act 130 of 1998
The following section is hereby substituted for section 30 of the principal Act:
"Identity document to refugee
[ 30.
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. ] ".
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[Act 2008_033_025 unamended wef 0000/00/00]
26. Repeal of sections 31, 32 and 33 of Act 130 of 1998
Sections 31, 32 and 33 of the principal Act are hereby repealed.
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[Act 2008_033_026 unamended wef 0000/00/00]
27. Substitution of section 34 of Act 130 of 1998
The following section is hereby substituted for section 34 of the principal Act:
"Obligations of refugees
[ 34. (1) A refugee must-
(a) abide by the laws of the Republic; and
(b) inform the Refugee Reception Office of his or her residential address and of any changes to that address.
(2)
The address contemplated in subsection (1) is, for the purposes of this
Act, deemed to be the address to which the service of processes or
correspondence may be made. ] ".
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[Act 2008_033_027 unamended wef 0000/00/00]
28. Insertion of section 34A in Act 130 of 1998
The following section is hereby inserted in the principal Act after section 34:
"Obligations of asylum seekers
[ 34A. (1) An asylum seeker must-
(a) abide by the laws of the Republic;
(b) renew his or her permit in person at any Refugee Reception Office in the Republic; and
(c) inform the Refugee Reception Office of his or her residential address and of any changes to that address so provided.
(2)
The address contemplated in subsection (1) is, for the purposes of this
Act, deemed to be the address to which the service of processes or
correspondence may be made. ] ".
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[Act 2008_033_028 unamended wef 0000/00/00]
29. Substitution of section 36 of Act 130 of 1998
The following section is hereby substituted for section 36 of the principal Act:
"Withdrawal of refugee status
[ 36.
(1) Subject to the provisions of the Promotion of Administrative
Justice Act, 2000 (Act No. 3 of 2000), and after consideration of all
the relevant facts, the Director-General may withdraw a person's
refugee status if such person-
(a)
has been recognised as a refugee due to fraud, forgery or false or
misleading information of a material or substantial nature in relation
to the application;
(b)
has been recognised as a refugee due to an error, omission or oversight
committed by the Refugee Status Determination Officer in good faith; or
(c) ceases to qualify for refugee status in terms of section 5.
(2)
A person whose refugee status is withdrawn in terms of subsection (1),
must be dealt with in terms of the Immigration Act, unless he or she
lodges an appeal in terms of subsection (3).
(3)
A person whose refugee status is withdrawn in terms of subsection (1),
may lodge an appeal with the Refugee Appeals Authority within a period
of 30 days from the date of receipt of the decision. ] ".
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[Act 2008_033_029 unamended wef 0000/00/00]
30. Amendment of section 37 of Act 130 of 1998
Section 37 of the principal Act is hereby amended by the deletion of
the word "or" at the end of paragraph (c) and the addition of the
following paragraphs:
" (e) [ intentionally assists a person to receive public services to which such person is not entitled; or
(f) provides false, inaccurate or unauthorised documentation, or any benefit to a person,
or otherwise assists such person to disguise his or her identity or
status, or accepts undue financial or other considerations, to perform
an act or to exercise his or her discretion in terms of this Act. ] ".
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[Act 2008_033_030 unamended wef 0000/00/00]
31. Amendment of section 38 of Act 130 of 1998
Section 38 of the principal Act is hereby amended by the substitution
in subsection (1) for paragraphs (b) and (d) of the following
paragraphs, respectively:
"(b) the manner in which and period within which a matter must be referred to the [Standing Committee] [ Refugee Appeals Authority] ;
(d) the manner [ in which] and the period [ in ] [within] which applications for asylum which are [manifestly] unfounded, fraudulent or abusive, must be dealt with;".
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[Act 2008_033_031 unamended wef 0000/00/00]
32. Repeal of sections 39 and 40 of Act 130 of 1998
Section 39 and 40 of the principal Act are hereby repealed.
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[Act 2008_033_032 unamended wef 0000/00/00]
33. Transitional provisions and savings
(1) The Standing Committee for Refugee Affairs established by section 9
of the principal Act and the Refugee Appeal Board established by
section 12 of the principal Act are hereby dissolved.
(2) The members of the Standing Committee for Refugee Affairs and the
Refugee Appeal Board in office immediately before this Act takes
effect, become members of the Refugee Appeals Authority established by
section 8A and must be regarded as having been appointed to the Refugee
Appeals Authority in terms of section 8B(2).
(3) The Minister must appoint one of the members contemplated in subsection (2) as chairperson of the Refugee Appeals Authority.
(4) The members contemplated in subsection (2) holds [sic - use of word] office for the
unexpired period for which such members have been appointed as members
of the Standing Committee for Refugee Affairs or Refugee Appeal Board,
as the case may be, as at the date of such members' assumption of
office in the Refugee Appeals Authority in terms of subsection (2).
(5) Any reviews pending before the Standing Committee for Refugee
Affairs immediately before this Act takes effect, must be regarded as
reviews before the Director-General and must be dealt with by the
Director-General in terms of the principal Act, as amended by this Act.
(6) Any matters pending before the Refugee Appeal Board immediately
before this Act takes effect must be regarded as matters before the
Refugee Appeals Authority and must be dealt with by the Refugee Appeals
Authority in terms of the principal Act, as amended by this Act.
(7) Any decisions and determinations made by the Standing Committee for
Refugee Affairs and the Refugee Appeal Board in terms of the principal
Act immediately before this Act takes effect, remain in force.
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[Act 2008_033_033 unamended wef 0000/00/00]
34. Short title and commencement
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.
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[Act 2008_033_034 unamended wef 0000/00/00]
