Refugees Amendment Act 2008

8/3/2019 Refugees Amendment Act 2008

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Government Gazette

REPUBLIC OF SOUTH AFRICA

Vol. 521 Cape Town 26 November 2008 No. 31643

THE PRESIDENCY

No. 1274 26 November 2008

It is hereby notified that the President has assented to the following Act, which ishereby published for general information:–

No. 33 of 2008: Refugees Amendment Act, 2003.

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A C T

To amen d t h e Ref u gees Act , 1998 , so as t o amen d , in ser t an d d e le t e cer t a in

def init ions; to provide for delegat ion of powers; to provide for certain matters with

regard to the establishment of Refugee Recept ion Off ices; to provide for the

d is so lu t ion of t h e S t an d in g Co mm it t ee f or Ref u gee Af fa irs an d t h e Ref u gee Ap p eal

Board ; t o p rovid e f or t h e es t ab l i sh men t of t h e Ref u gee Ap p eals Au t h or i t y; t o

provide for the clarif icat ion and revis ion of procedures relat ing to refugee status

d et ermin at ion ; t o p rovid e f or ob l igat ion s an d r igh t s o f asy lu m seek ers ; t o p rovid e

for the repeal of certain obsolete provis ions; and to ef fect certain technical

correc t ion s ; an d t o p rovid e f or mat t ers con n ect ed t h erewit h .

BE IT ENACTED by the Par l iament of the Republic of South Afr ica, as

fo l lo ws :—

Am en d m en t of s ec t ion 1 of Act 130 of 1998

1. Th e following sec tion is hereb y substitu ted for section 1 of the Refugee s Act, 1998

(hereinafter referred to as the principal Act):

"Def init ions

1. In this Act, unless the context [ sh ows t h at an ot h er mean in g i s

i n t e n d e d ] in d ica tes o th erwise—

[ ( i) ] 'ab u s ive ap p l icat ion f or asy lu m ' means an application for asylum

m a d e —

(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 ) 'Al ien s Con t ro l Act , 199 1' mea n s t h e Al ien s Con t ro l Act , 1991 ( Act

N o . 96 of 1991); (xxiv)

( i ii ) 'Ap p eal Boa rd ' mea n s th e Ref u gee Ap p eal Boar d , e s t ab l i sh ed b y

sect ion 12; ( i i )

( iv ) ] 'asy lu m' means refugee s tatus recognised in terms of th is Act; [( iii)]

[ ( v )] 'asy lu m seek er ' means a person who is seeking recognit ion as a

refugee in the Republic; [ ( iv) ]

[ ( v i) ] 'asy lu m seek er p erm it ' means a permit contemplated in section 22;

[(v)]'b iomet r ics ' means the measurable physio logical or behavioural

characteristics that can be used in verifying the identity of individuals,



A c t N o . 3 3 , 2 0 0 8 R E F U G E E S A M E N D M E N T A C T , 2 0 0 8

and may include the use of photographs, fingerprints, hand measure

ments, signature verification, facial patterns and retinal patterns;

[ (vi i) ] 'child ' means any person under the age of 18 years ; [ (x) ]

'cou rt ' means a magis trate ' s cour t ;

[ ( v i i i ) ] 'Dep art men t ' means the Depar tment of Home Affairs ; [(vii)]

[ ( ix) ] 'dependant ' , in relation to an asylum seeker or a refugee, includes

[ the spouse, ] any unmarr ied dependant ch ild or any desti tu te, aged orinf irm member of the immediate family of such asylum seeker or

refugee; [( i)]

[ ( x ) ] 'Direc t or - Gen eral ' means the Director-General of the Depar tment;

[(viii)]

[ ( x i) ] ' f rau d u len t ap p l icat ion f or asy lu m' means an application for

asylum based without reasonable cause on [facts,] information ,

documents or representat ions which the applicant knows to be false

and [ wh ich f ac t s , in f ormat ion , d ocu men t s or rep resen t at ion s ] are

intended to materially affect the outcome of the application; [ (vi) ]

' i m m e d i a t e f a m i l y ' mea ns the imm ediate family as def ined in section

1 of the Immigration Act;

' I m m i g r a t i o n A c t ' means the Immigration Act, 2002 (Act No. 13 of

2 0 0 2 ) ;

[ ( x i i ) 'man i f es t ly u n f ou n d ed ap p l icat ion ' means an application for

asylum made on grounds o ther than those on which such an

application may be made under th is Act; [ (x i )]"

' m a r r i a g e ' m e a n s —

(a ) either a marr iage or a civ il par tnership conclud ed in terms of the

Civil Union Act, 2006 (Act No. 17 of 2006) ;

(b ) a ma rriag e conc luded in term s of—

(i) the Marriage Act, 1961 (Act No. 25 of 1961); or

( i i) the Recognit ion of Customary Marr iages Act, 1998 (Act

N o . 120 of 1998);

(c ) a marr iage conclud ed in terms of the laws of a foreign country ;

or

(d) a marr iage conclud ed in terms of Is lamic or o ther rel ig ious r i tes ;

[ ( x i i ) ] 'Min is t er ' means the Minis ter of Home Affairs ; [(xiii)][ ( x iv) ] 'p rescr ib ed ' means prescr ibed by regulat ion;

[ (xv) ] 'refugee' means any person who has been granted asylum in terms of

th is Act; [ (xvii i ) ]

'Ref u gee Ap p eals Au t h or i t y ' means the Refugee Appeals Author i ty

established in terms of section 8A;

[ (xvi) ] 'Refugee Recept ion Off ice' me ans a Refugee Re ception Office

established under section 8(1) ; [ xx]

[ (xvii) 'Refu gee Recep t ion Off icer' me ans a Refug ee Recept ion Off icer

referred to in sect ion 8(2) ; (xix) ]

[ (xvii i ) ] 'Refu gee Status Dete rm inat io n Off icer' mea ns a Refugee Status

Determination Officer referred to in section 8(2); [ (xxi) ]

[ ( x ix) ] ' regu lat ion ' means any regulat ion made under th is Act; [ (xvi) ]

' res id en ce ' means a s tatus recognised by competent au thor i t ies of a

particular country that affords a person the right to sojourn in that

country with the r ights and obligations at tached thereto ;

[ ( xx) ' ru les ' mea n s th e ru les ma d e b y t h e Ap p ea l Board u n d e r sec t ion

14(2) ; (xv) ]

[ (xxi) ] 'social gro up ' in c lu d es [ , amon g ot h ers , ] a group of persons of

particular gender, sexual orientation, disability, class or caste; [ (xi i) ]

' sp ou se ' means a person who is a par ty to—

(a) a marriage as defined in terms of this Act; or

(b) a permanent homosexual or heterosexual relat ionship as pre

scr ibed;

[ ( xx ii ) 'S t an d in g Co mm it t ee ' mea n s t h e S t an d in g Comm it t ee f or Ref u gee

Affairs , established by sect ion 9; (xvii) ]

[ (xxii i ) ] ' th is Ac t ' includes the regulat ions made in terms of th is Act; [ ( ix) ]

'u n f ou n d ed ap p l icat ion ' , in relation to an application for asylum interms of section 21 , mea ns an app lication—

(a) mad e on the grounds o ther than those contempla ted in section 3 ;

or




(b) made on the grounds contemplated in section 3 , but which is

without mer it ;

[ ( x x i v ) ] ' U N H C R ' means the United Nations High Commissioner for

Refugees , [ (xxii) ] ." .

Insert ion of sect ion 1A in Act 130 of 1998

2. The following section is hereby inserted in the principal Act after section 1:

" In t erp ret at ion a n d ap p l icat ion of Act

1A . This Act must be in terpreted and applied in a manner that is

consis tent with—

(a) the 1951 United Nations Convention Relating to the Status of

Refugees;

(b) the 1967 United Nations Protocol Relat ing to the Status of Refugees;

(c) the 1969 Organization of Afr ican Unity Convention Gove rning the

Specif ic Aspects of Refugee Problems in Afr ica;

(d) the 1948 United Nations Universal Declarat ion of Human Rights ; and

(e) any domestic law or o ther relevant convention or in ternational

agreement to which the Republic is or becomes a par ty ." .

Amen d men t of s ec t ion 2 of Act 130 of 1998

3 . Section 2 is hereby am ended by the substitu t ion for paragraph (b) of the following

paragraph:

"(b) his or her life, physical safety or freedom would be threatened on account of

external aggression , occup ation , foreign dom ination or o ther events ser iously

dis turb ing [ or d i sru p t in g] public order in [e ither] any part or the whole of

that country ." .


4. Section 3 of the principal Act is hereby amended by the substitution for paragraphs(a), (b ) and (c ) of the fo llowing paragraphs, respectively :

"(a) owing to a well-founded fear of being persecuted by reason of his or her race,

gender , t r ibe, rel ig ion , nationali ty , poli t ical opin ion 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 o ther events

ser iously d is turb ing [ or d i sru p t in g] 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 [ e l s ewh ere] 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).".


5. Section 4 of the pr incipal Act is hereby amended by—

(a) the substitution in subsection (1) for the words preceding paragraph (a) of the

fo llowing words:

"A person does not qualify for refugee status for the purposes of this Act

if [ there is ] the Refugee Status Determination Off icer has reason to

b e l iev e th a t h e o r sh e— ";

(b) the substitution in subsection (1) for paragraph (b) of the fo llowing paragrap h:

"(b) h as co mmit ted [a crime which is not of a polit ical nature and

wh ich , i f commit t ed in t h e Rep u b l ic , wou ld b e p u n ish ab le b y

i m p r i s o n m e n t ] a ser ious non-poli tical cr im e outs ide 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 fo llowing paragraph:

"(d) enjoys the protection of any other country in which he or she [has

t ak en res id en ce] is a recognised refugee, permanent res ident or

c i t izen . " .


6. Section 5 of the principal Act is hereby amended by the substitution in subsection

(1) for paragraph (c) of the fo llowing paragraph:

"(c) he or she becomes a permanent res ident or a ci t izen of the Republic or

acquires the nationality of some other country and enjoys the protection of

[ the] that country [of h is or her new nat ionality] : Provided that a person

whose permanent res idence s tatus is withdrawn is not prevented f rom

re-apply ing for refugee s tatus; or" .

Repe al of sect ion 6 of Ac t 130 of 1998

7. Section 6 of the principal Act is hereby repealed.

Subst itut ion of sect ion 7 of Act 130 of 1998

8. The following section is hereby substituted for section 7 of the principal Act:

" Delegat ion of p owers

7. (1) The Minister may, subject to the conditions that he or she may

deem necessary , delegate any power conferred on h im or her by th is Act,

excluding a power referred to in section 8B(2), 8F, 8G or 38, to any officer

or employee of the Depar tment, but shall not be d ivested 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 h im or her by th is

Act, excluding a power referred to in section 8I, to any officer or employeeof the Depar tment, but shall not be d ivested of any power so delegated ." .

Subst itut ion of head ing to Chap ter 2 of Act 130 of 1998

9 . The following heading is hereby substituted for the heading to Chapter 2 of the

pr incipal Act:

R E F U G E E R E C E P T I O N O F F IC E S [ , S T A N D I N G C O M M I T T E E F O R

R E F U G E E A F F A I R S] A N D R E F U G E E [ A P P E A L B O A R D ] A P P E A L S

A U T H O R I T Y .


10.The following section is hereby substituted for section 8 of the principal Act:

'Ref u gee Recep t ion Of f ice

8 . (1) The Director-General may, by notice in the Gazette, establish as

many Refugee Reception Off ices in the Republic as he or she[ , after

con su l t at ion wi t h t h e S t an d in g Com mit t ee , ] regards as necessary for the

purposes of this Act.

(2) Each Refugee Reception Office must consist of at least [ on e Ref u gee

Recept ion Off icer and] one Refugee Status Determination Off icer who

m u s t —

(a ) be [officers] an officer of the Department, designated by the

Director-General [ for a term of of f ice determined by the Director-

Gen eral ] ; and

(b ) have such qualif icat ions , exper ience and knowledge of refugee

matters [as] that makes [ t h e m ] 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 of f icer appointed under this sect ion

receives the addit ional training necessary to enable such of f icer to

p erf orm h is or h er f u n ct ion s p rop er ly] must appoin t such number of

officers as he or she dee ms necess ary to perform adm inistra tive functions

connected with the Refugee Reception Off ice." .

Insert ion of sect ions 8A to 8J in Act 65 of 1996

11 . The following sections are hereby inserted in the principal Act after section 8:

" Ref u gee Ap p eals Au t h or i t y

8 A . (1) There is hereby es tablished a Refugee Appeals Author i ty .

(2) The Refugee A ppeals Author i ty is independe nt and mus t function

without any b ias .

(3) The headquar ters of the Refugee Appeals Author i ty must be

determined by the Minis ter .

Comp os i t ion of Ref u gee Ap p eals Au t h or i t y

8B . (1) The Refugee Appeals Authority consists of—

(a ) a chairperson who is legally qualified; and

(b) such number of o ther members as the Minis ter may determine, having

regard to the likely volume of work to be performed by the Refugee

Appeals Author i ty : Provided that at leas t one of such members is

legally qualified.

(2) The chairperson and o ther mem bers of the Refugee App eals

Author i ty are appoin ted by the Minis ter with due regard to their expe r ience,

qualifications and expertise, as well as their ability to perform the functions

of the Refugee Appeals Author i ty proper ly .

Fu n ct ion s of Ref u gee Ap p eals Au t h or i t y

8 C . (1) The Refugee Appeals Author i ty must—

(a) subject to subsection (2), determine any appeal lodged in terms of this

Act; and

(b) advise the Minis ter on any matter which the Minis ter refers to the

Refugee Appeals Author i ty .

(2) An appeal con template d in subsection (l)(a) must be determined by

such number of members of the Refugee Appeals Author i ty as the

chairperson may deem necessary : Provided that at leas t one of such

members is legally qualif ied .

(3) The Refugee Appeals Author i ty may determine i ts own procedure

and make its own rules, which may not be in conflict with the provisions of

th is Act.

(4) Rules made under subsection (3) must be published in the Gazette.

Term of of f ice of members of Refugee Appeals Authority

8 D . (1) A mem ber of the Refugee Appe als Author i ty serves for a per iod

of five years and is eligible for reappointment upon expiry of his or her term

of office.

(2) A mem ber m ay res ign by tender ing a writ ten notice of res ignation to

the Minis ter .

Disq u al i f i cat ion f rom memb ersh ip

8 E . A person may not be appoin ted as a member of the Refugee Appeals

Author i ty if that person—

(a) is not a South African citizen;




(h ) has been sentenced to imprisonment without the option of a fine

dur ing the preceding four years ;

(c ) is an unrehabil i tated insolvent;

(d ) has been judicial ly declared of unsound m ind;

(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 f rom of f ice o f memb er of Ref u gee Ap p eals Au t h or i t y

8F . (1) The Minis ter 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 Minis ter may remove a member of the Refugee Appeals

Author i ty in terms of subsection (1) if such member has been g iven an

oppor tunity to make representat ions or comments on the matter and the

Minis ter has taken any such representat ions or comments in to consider

at ion .

Fi l l in g of vacan c ies in Ref u gee Ap p eals Au t h or i t y

8 G . Whenever a vacancy ar ises in the Refugee Appeals Author i ty as a

result of death, resignation or removal from office of a member of the

Refugee Appeals Author i ty , the Minis ter may appoint a su itab le person for

the remainder of the term of office of such member.

Remu n erat ion of memb ers of Ref u gee Ap p eals Au t h or i t y

8 H . The members of the Refugee Appeals Author i ty must receive such

remuneration , al lowances and o ther benef i ts as the Minis ter may determine

with the concurrence of the Minis ter of Finance.

Ad m in is t rat ive s t af f o f Ref u gee Ap p eals A u t h or i t y

8I, The adminis trat ive work connected with the performance of the

functions of the Refugee Appe als Author i ty m ust be performed by officers

of the Depar tment designated by the Director-General for that purpose.

An n u al Rep ort s o f Ref u gee Ap p eals Au t h or i t y

8 J . ( 1) The Refugee A ppeals Author i ty must , with in 30 days af ter the end

of each financial year, prepare a report on all its activities during that

financial ye ar and on its financial posi tion as at the end of that financial year.

(2) The Refugee Ap peals Author i ty must , immed iately af ter the repor t

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 Author i ty to the Minis ter for tab ling in Par l iament." .

Repeal of sect ions 9 to 20 of Act 130 of 1998

12 . Sections 9 to 20 of the principal Act are hereby repealed.

Am en d m en t of s ec tion 21 of Act 130 of 1998

13. Section 21 of the principal Act is hereby amended by the substitution for

subsections (1) , (2) and (3) of the fo llowing subsections , respectively :

"(1) An application for asylum must be made in person in accordance with the

prescr ibed procedures to a [Refugee Recept ion Off icer] Refu g ee S ta tu s Dete rmi-



A ct N o . 3 3 , 2 0 0 8 R E F U G E E S A M E N D M E N T A C T, 2 00 8

nation 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 contem plated in subsection (1) , deal with such application in terms of

section 24 .

(3) Wh en m aking an application for asylum, every ap plicant , including h is or her

spouse and dependants , must have h is or her [ f ingerprints or other prints]biometr ics taken in the prescr ibed manner [ an d every ap p l ican t wh o i s 16 years

old or older must furnish two recent photographs of h imself or herself of such

d imen s ion s as may b e p rescr ib ed ] . " .

Insert ion of sect ions 21A and 21 B in Ac t 130 of 1998

14. The following sections are hereby inserted in the principal Act after section 21:

" Un accomp an ied ch i ld an d p erson wi t h men t a l d i sab i l i t y

21 A. (1) Any unac com panied ch ild who is found under circu mstan ces

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) ,

m u s t —

(a) be issued with an asylum seeker permit in terms of section 22; and

(b) in the prescr ibed manner , be brought before the Ch ildren ' s C our t in the

district in which he or she was found, to be dealt with in terms of the

Ch i ld ren ' s Act , 2 0 0 5 .

(2) Any person with a mental d isabil i ty wh o is found unde r circum

stances that clear ly 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 prescr ibed manner , be refer red to a health es tablishment

contem plated in the Mental H ealth Care Act, 2002 (Act No. 17 of

2002) , to be dealt with in terms of that Act.

S p ou se an d d ep en d an t s o f asy lu m seek ers an d re f u gees

2 1 B . (1) A person who applies for refugee status in terms of section 21

and who would l ike one or more of h is or her spouse and dependants to be

granted refugee s tatus must , when apply ing for asylum, include the detai ls

of such spouse and dependants in the application .

(2) Any refugee whose child is born in the Republic m ust , with in one

month of the birth of his or her child, register such a child as a dependant at

any Refu gee Rec eption Office.

(3) Wh ere a dependan t of a recognised refugee is with in the Republic in

accordance with an asylum seeker permit or has been granted asylum in

terms of th is Act and ceases to be a dependant by v ir tue of marr iage or

cessation of h is or her depen dence upon the recognised refugee, as the case

may be, he or she may apply in the prescr ibed manner to be permitted to

continue to remain with in the Republic in accordan ce with the provis ions of

th is Act.

(4) Where a spouse of a recognised refugee is with in 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 w ith in the Republic in accorda nce with the provis io ns

of th is Act: Provided that , in the case of d ivorce, 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.



A c t N o . 3 3 , 2 0 0 8 R E F U G E E S A M E N D M E N T A C T, 2 00 8

(5) Noth ing contained in th is Act prevent s a depen dant who ha s , in term s

of subsection (3) , been permitted to continue to remain in the Repub lic f rom

applying for recognit ion as a refugee in accordance with the provis ions of

th i s Act . " .


15 . Section 22 of the pr incipal Act is hereby amended by—

(a ) the substitution for subsections (1), (2), (3) and (4) of the following

subsections , respectively :

" (1 ) Th e [Refugee Recept ion Off icer] 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 so journ in the Republic temporar i ly , subject to

any condit ionsf , ] determined and endorsed by the [ S t a n d i n g C o m m i t

t ee ] Director-General , which are not in conf l ict with the Consti tu t ion or

in ternational law [and are endorsed by the Refugee Recept ion Off icer

on t h e p ermit ] ,

(2) Upon the issue of a permit in terms of subsection (1), any permitissued to the applicant in terms of the [ Al ien s Con t ro l Act , 1991 , ]

Immigration Act becomes null and void[ , ] and must [ f or t h wit h ] b e

returned to the Director-General for cancellat ion .

(3 ) [A Refugee Recept ion Off icer] The officers contemplated in

section 8(3) [ m a y ] must, pending the decis ion on the application in term s

of section 21 , f rom time to t ime extend the per iod for whic h a permit has

been issued in terms of subsection (1)[ , or amen d t h e con d i t ion s

su b j ec t t o wh ich a p ermit h as b een so issued] .

(4) The permit refer red to in subsection (1) must contain [a recent

p h ot ogr ap h a n d t h e f in gerp rin t s or o t h er p r in t s ] the b iometr ics of the

holder thereof [ as p rescr ib ed ] . " ;

(b ) by the deletion of subsection (5); and

(c ) by the substi tu t ion in subsection (6) for the words preceding paragraph (a) ofthe fo llowing words:

T h e [ Min is t er ] Director-General may at any t ime withdraw an asylum

seeker permit in the presc ribed ma nne r if—.



" Det en t ion of asy lu m seek er

23 . If the [ Min is t er ] 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 ar res ted and detained pending the realisat ion of the

application for asylum, in the manner and p lace determined by h im or her

with due regard to human d ignity ." .


17 . Section 24 of the pr incipal 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 consider ing an application for asylum, the Refugee Status

Determination Off icer—

(a) must have due regard [ for the rights set out in sect ion 33 of the

Con s t i t u t ion ] to the provis ions of the Promotion of Adminis trat ive

Justice Act, 2000 (Act No. 3 of 2000) , and in par t icu lar [ , ] ensurethat the applicant fu l ly unders tands the procedu res , h is or her r ights

and responsib il i t ies and the evidence presented; and




(b) may consult with or invite a UN HC R representat ive to furn ish

information on specif ied matters .

(3) The Refugee Status Determination Off icer must at the conclusion

of the hear ing—

(a) grant asy lum; [or]

(b) reject the application as manifes t ly unfounded, abusive or f raudu

lent; or

(c) reject the application as unfounded! ; o r

(d) re f er an y q u es t ion of law t o t h e S t an d in g Commit t ee ] .

(4) If an application is rejected in terms of subsection (3)( b) or (c), th e

Refugee Status Determination Off icer must—

(a) furn ish the applicant with writ ten reasons [must be furnished to

t h e ap p l ican t ] 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

i n p a r a g r a p h (a) mu st b e su b mit t ed t o t h e S t an d in g Commit t ee

within 10 working days af ter the date of the reject ion or

referral] inform the applicant of his or her right to appeal in terms

o f sec t io n 2 4 B." ; an d

(c) by the addit ion of the fo llowing subsections:

"(5) An asylum seeker whose application for asylum has been rejectedin 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

2 4 A(1 ) .

(6) An application must be deem ed to be abandoned if the asy lum

seeker has not renewed h is or her asylum seeker permit with in 90 days

af ter i t has expired: Provided that the asylum seeker advances valid

reasons for the non-renewal of the asylum seeker permit ." .

Repeal of sect ions 25 and 26 of Act 130 of 1998

18. Sections 25 and 26 of the principal Act are hereby repealed.

Insert ion of sect ions 24A and 24B in Ac t 130 of 1998

19 . The following sections are hereby inserted in the principal Act after section 24:

"Review of applicat ions rejected in terms of sect ion 24(3)(b)

24 A . (1) The Director-General must rev iew any decis ion taken by

a Refugee Status Determination Officer in terms of section 24(3)(b).

(2) Before reaching a decis ion , the Director-Gene ral m ay —

(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 fur ther inquir ies in to the matter being dealt with as he or

she deems appropr iate; and

(c) request the applicant to provide such o ther information as the

Director-General may deem necessary .(3) The Director-General may conf irm or set as ide a decis ion made in

terms of section 24(3)(b).

(4) The Director-General m ust inform the Refugee Status D eterm ination

Officer c oncerned of h is or her decis ion in the prescr ibed m anne r and with in

the prescr ibed t ime.




Ap p eals t o Ref u gee Ap p eals Au t h or i t y

2 4 B . (1) Any asylu m seeker whose application ha s been rejected in terms

of section 24(3)(b) or (c) may lodge an appeal with the Refugee Appeals

Author i ty in the prescr ibed manner .

(2) The Refugee Appeals Author i ty may, af ter having determined an

appeal, confirm, set aside or substitute any decision taken by a Refugee

Status Determination Officer in terms of section 24(3)(b) or (c).

(3) Before making a decis ion , the Refugee Appeals Author i ty may—

(a) invite a UNHCR representat ive to make oral or wr it ten representa

t ions;

(b) request the attendance of any person who, in its opinion, is in a

posit ion to provide the Refugee Appeals Author i ty with relevant

information;

(c) of its own accord make further inquiries; or

(d) request the asylum seeker to appear before i t o r to provide any such

other information as i t may deem necessary .

(4) The Refugee Appeals Author i ty must al low legal representat ion

upon the request of the asylum seeker .

(5) The Refugee Appeals Author i ty must refer a matter back to the

Refugee Status Determination Officer to deal with such asylum se eker interms of th is Act if new information , wh ich is mater ial to the app lication ,

is presented dur ing the appeal ." .

Am en d men t of h ead in g t o Ch ap t er 5 o f Act 130 of 1998

20 . The fo llowing heading is hereby substi tu ted for the heading to Chapter 5 of the

pr incipal Act:

" R I G H T S A N D O B L I G A T I O N S O F R E F U G E E S A N D A S Y L U M S E E K

E R S " .


2 1 . The following section is hereby substituted for section 27 of the principal Act:

' 'Protect ion and general r ights of refugees

2 7 . A refugee is en ti t led 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 Consti tu t ion of the Republic of South Afr ica, 1996, except those

rights that only apply to citizens;

(c) permanent res idence in terms of section 21(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 Direc tor-Gen eral , af ter

consider ing al l the relevant factors and with in a reasonable per iod of

tim e, certifies that he or she would rema in a refugee indefinitely ;

(d) an identi ty document refer red to in section 30;(e) a travel document if he or she applies in the prescr ibed manner ; and

(f) s e e k e m p l o y m e n t . " .




Insert io n of sect ion 27 A in Act 130 of 1998

22 . The fo llowing section is hereby inser ted in the pr incipal Act af ter section 27:

'Prot ec t ion an d gen eral r igh t s o f asy lu m seek ers

2 7 A . An asylum seeker is en ti t led to—(a) a formal writ ten recognit ion as an asylum seeker in the prescr ibed

form pending finalisation of his or her application for asylum;

(b) the right to rem ain in the Re publ ic pen ding the finalisation of his or her

application for asylum;

(c) the right not to be unlawfully arrested or detained; and

(d) the r ights contained in the Consti tu t ion of the Republic of South

Africa, 1996, in so far as those rights apply to an asylum seeker.".


23 . Section 28 of the pr incipal Act is hereby amended by the substi tu t ion for

subsection (3) of the fo llowing 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 grantedasylum, may be included in such an order and removed f rom the Republic if such

spouse or dependant has been af forded a reasonable oppor tunity to apply for

asylum but has failed to do so, or if his or her application for asylum has been

re jec ted . " .

Subst itu t ion of sect ion 29 of Act 1 30 of 1998

24 . The following section is hereby substituted for section 29 of the principal Act:

" Res t r ic t ion of d e t en t ion

29 . (1) No person may be detained in terms of this Act for a longer period

than is reasonable and just if iab le and any detention exce eding 30 days mu st

be reviewed immediately by [ a j u d g e of t h e High C ou rt o f t h e p rovin c ia l

d iv i s ion ] a court in whose area of jur isd ict io n the person is detained ,

[ d es ign at ed b y t h e Ju d ge Pres id en t o f t h at d iv i s ion f or t h at p u rp ose ]

and such detention must be reviewed in th is manner immediately af ter the

expiry of every subsequent per iod 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 [ ap p rop r iat e ] possib le per iod of t ime, tak ing in to

consideration the principle of family unity and the best interest of the

c h i l d . " .


2 5 . The following section is hereby substituted for section 30 of the principal Act:

" Id en t i t y d ocu men t t o re f u gee

30 . A refugee must , upon application in the prescr ibed ma nner and on the

prescr ibed form, be issued with an identi ty card or document s imilar to a

South Afr ican identi ty card or doc um ent ." .

Rep eal o f s ec t ion s 31 , 32 an d 33 of Act 1 30 of 1998

26 . Sections 31 , 32 and 33 of the pr incipal Act are hereby re pealed .





27 . The following section is hereby substituted for section 34 of the principal Act:

'Obligat ions 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 co ntem plated in subse ction (1) is , for the purpose s of th is

Act, deemed to be the address to which the serv ice of processes or

co r r esp o n d en ce may b e mad e . " .

Insert ion of sect ion 34A in Act 130 of 1998

28 . The fo llowing section is hereby inser ted in the pr incipal Act af ter section 34:

" Ob l igat ion s of asy lu m seek ers

3 4 A . (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 R ece ption Office of his or her residen tial a ddre ss

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 serv ice of processes or

co r r esp o n d en ce may b e mad e . " .

Subst itut io n of sect ion 36 of Ac t 130 of 199 8


" Wit h d rawal o f re f u gee s t at u s

36 . (1) Subject to the provis ions of the Promotion of Adminis trat ive

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 s tatus

if such person—

(a) has been recognised as a refugee due to fraud, forgery or false or

mislead ing information of a mater ial or substantial nature in relat ion to

the application;

(b) has been recognised as a refugee due to an error , omission or overs ight

committed by the Refugee Status Determination Off icer in good fai th ;

or

(c ) ceases to qualify for refugee status in terms of section 5.

(2) A person whose refugee s tatus 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 w hose refugee s tatus is withdraw n in terms of subsection

(1) , may lodge an appeal with the Refugee Appeals Author i ty with in a

per iod of 30 days f rom the date of receip t of the decis ion ." .


30 . Section 37 of the pr incipal Act is hereby amended by the delet ion of the word

"or" at the end of paragraph (c ) and the addit ion of the fo llowing paragraphs:

"(e) in tentionally ass is ts a person to receive public serv ices to which such person

is not entitled; or




(f) provides false, inaccurate or unauthor ised documentation , or any benef i t 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 h is or her d iscret ion in terms of th is Act," .


3 1 . Section 38 of the pr incipal Act is hereby amend ed by the substi tu t ion in subsection

(1) for paragrap hs (b) and (d) of the fo llowing paragraphs, respectively :

"(b) the manne r in which and per iod with in which a matter must be referred to the

[ S ta n d i n g C o m m i t t e e] Refugee Appeals Author i ty ;

(d) the manner in which and the per iod [ in] within which applications for asylum

which are [ man i f es t ly ] unfounded, f raudulent or abusive, must be dealt

w i t h ; " .

Repeal of sect ions 39 and 40 of Act 130 of 1998

32 . Section 39 and 40 of the pr incipal Act are hereby repealed .

Tran s i t ion al p rovis ion s an d sav in gs

3 3 . (1) The Standing Committee for Refugee Affairs es tablished by section 9 of the

pr incipal Act and the Refugee Appeal Board es tablished by section 12 of the pr incipal

Act are hereby d isso lved .

(2) The me mb ers of the Standing Comm ittee for Refugee Affairs an d the Refugee

Appeal B oard in office im media tely before th is Act takes effect, be com e m em bers of the

Refugee Appeals Author i ty es tablished by section 8A and must be regarded as having

been appoin ted to the Refugee Appeals Author i ty in terms of section 8B(2) .

(3) The Minis ter must appoin t one of the members contemplated in subsection (2) as

chairperson of the Refugee Appeals Author i ty .

(4) The m emb ers conte mplate d in subsection (2) holds office for the unexpired per iod

for which such members have been appoin ted 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 of f ice in the Refugee Appeals Author i ty in terms of subsection(2) .

(5) Any review s pending before the Standing Com mitte e for Refugee Affairs

immediately before th is Act takes ef fect , must be regarded as reviews before the

Director-General and must be dealt with by the Director-General in terms of the

pr incipal Act, as amended by th is Act.

(6) Any ma tters pending before the Refugee Appea l Board imm ediately before th is

Act takes ef fect must be regarded as matters before the Refugee Appeals Author i ty and

must be dealt with by the Refugee Appeals Author i ty in terms of the pr incipal Act, as

amended by th is Act.

(7) Any decis ions and determinations ma de by the Standing Com mitt ee for R efugee

Affairs a nd the Refugee Appeal B oard in terms of the pr incipal Act imm ediately before

this Act tak es effect, rem ain in force.

S h ort t i t l e an d commen cemen t

3 4 . This Act is cal led the Refugees Amendment Act, 2008, and comes in to operation

on a date determined by the President by proclamation in the Gazette.

Documents

Refugees Amendment Act 2008