South Africa: Submission to the White Paper Task Group on Refugee Policy

Human Rights Watch Submission to the White Paper Task Group on Refugee Policy July 1998

Introduction

Human Rights Watch welcomes the completion of the draft White Paper on Refugee Policy and the simultaneous release of the Draft Refugee Bill (1998) (hereafter referred to as >the bill=) as an important step in bringing South Africa=s refugee protection system in line with its international obligations and its domestic aspirations. We note with appreciation the fact that the makeup of the White Paper Task Force reflected the Department=s willingness to include all stakeholders in the policy making process, and that the provisions of the White Paper and the bill reflect a commitment to bring South African law into line with international law. The policy position expressed in the White Paper that refugee protection is fundamentally an issue of human rights protection is welcomed. Human Rights Watch further welcomes the recognition in the White Paper of the need to raise public awareness to fight rising xenophobia in South Africa, as well as the need to include civil society in many aspects of policy formulation and implementation. Combating intolerance and xenophobia should be an important part of any refugee policy, and the prominence given to this issue in the White Paper shows a strong commitment to this issue.

This submission builds on our earlier work on the human rights of asylum seekers, refugees and undocumented migrants in South Africa. Human Rights Watch made a submission to the Green Paper Task Force, entitled The Human Rights of Undocumented Migrants, Asylum Seekers and Refugees in South Africa. Our Green Paper submission set out in detail South Africa=s obligations pertaining to these categories of persons under international law, and raised some concerns which Human Rights Watch had with the refugee determination regime then in place in South Africa. In March 1998, Human Rights Watch released a book-length report, AProhibited Persons:@ Abuses Against Undocumented Migrants, Asylum Seekers, and Refugees in South Africa. The report, based on two years of research and extensive interviews, documented a wide range of abuses against these groups and included detailed recommendations to end these abuses.

In general, Human Rights Watch believes that the bill should be consistent with the 1951 UN Convention and 1967 Protocol Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. UNHCR guidelines on refugee status determination and refugee protection contained, inter alia, in the following documents should also be taken into account in the drafting of the bill:

- UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

- UNHCR Handbook on Voluntary Repatriation

- UNHCR Guidelines on the Protection of Refugee Women

-:UNHCR Guidelines on Prevention and Response to Sexual Violence Against Refugees

- UNHCR Guidelines on the Detention of Asylum Seekers

- UNHCR Note on the Cessation Clauses

- UNHCR Note on the Applicability of Exclusion Clauses

Independence of the Refugee Determination Procedures

In Sections 3.1 and 3.1.1, the White Paper clearly adopts the position that refugee determination should be the domain of an expert and independent body which is reasonably independent of government, and that the process requires Aa familiarity with the legal and empirical realities of human rights protection, and the ability effectively to communicate across cultural, linguistic and other divides.@ Section 3.1.1. recognizes the need to insulate the process from political interference. Section 3.1.2 recommends the establishment of such an independent functional entity in the Department. The White Paper is consistent with the prior recommendations of Human Rights Watch.

Section 6(2) of the bill states that the Standing Committee and Appeals Board shall be without bias and independent. Human Rights Watch recommends that the bill should also state explicitly that the Standing Committee and Appeals Board shall operate free from political interference, as this is not necessarily synonymous with being independent. The appointment and removal process for the members of the Standing Committee and the Refugee Appeals Board is exclusively in the hands of the Minister. This stands in sharp contrast with the procedures followed by other independent statutory bodies such as the Commission for Conciliation, Mediation and Arbitration (CCMA) and may jeopardize the independence of the Standing Committee and Refugee Appeals Board. Human Rights Watch urges for an independent appointment procedure similar to that followed for the CCMA, and suggests that it may be appropriate for the candidates to be nominated by the Judicial Service Commission (JSC). The process of selection and appointment should be transparent and provide opportunities for consultation with interested parties such as the South African Human Rights Commission, UNHCR and relevant NGOs.

Section 9(1) states that members to the Committee and Board shall be appointed with due regard to their experience, qualifications and expertise. To avoid misinterpretation and to bring the refugee bill in line with the White Paper, Human Rights Watch recommends that the refugee bill should explicitly state: AMembers of the Standing Committee and the Refugee Appeals Board shall have before appointment, or be required to acquire before taking up employment, a familiarity with the legal and empirical realities of refugee and human rights protection.@

Procedural Safeguards and the Refugee Determination Process

Human Rights Watch agrees with the concerns raised in the White Paper about the current backlog in the asylum determination procedures (Section 3.2) and perceptions of lack of procedural safeguards in the current asylum determination process (Section 3.3). In particular, Human Rights Watch wishes to amplify the concerns of the White Paper and our own report AProhibited Persons@ about the lack of adequate procedural safeguards under the current refugee determination process. In the past, the Department has been less than willing to make public the standards used to review asylum applications, and has refused to issue reasons for denials. Human Rights Watch recommends an increased transparency in the determination procedures, which will require the publication of guidelines to be followed at all stages of decision making.

The system proposed by the White Paper, consisting of an initial interview with a Refugee Receiving Officer who is responsible for preparing the case file, followed by an interview with a Refugee Status Determination Officer who makes the initial decision on the application, is a significant improvement. The availability of an appeal to the Refugee Appeal Board, as well as to judicial review by a court of law, provide important safeguards in the system.

While the proposed bill retains this essential structure, Human Rights Watch believes that the bill could be significantly improved by providing a more detailed description of the procedures to be followed. The current draft bill does not explicitly provide for a right of appearance by the applicant in front of the Standing Committee or the Appeals Board when the applicant=s case is considered (although these bodies have the discretion to request the applicant to appear). Considering the importance of the issues to be decided on, Human Rights Watch believes that the asylum seeker should have the right to present his or her case in person to these bodies.

The current version of the bill allows for the dismissal of asylum applications on the grounds of being Amanifestly unfounded, abusive or fraudulent@ (Section 20(3)(b)). However, the bill does not specify which procedures will be followed for such determinations, and what criteria will be used to reach such a determination. The power to deny applications based on the ground of them being Amanifestly unfounded@ is a very broad one, and needs to be carefully circumscribed in order to prevent abuse. In the view of Human Rights Watch, many Western countries have expanded the use of the Amanifestly unfounded@ category to such an extent that they have significantly undermined the right to asylum, and Human Rights Watch questions the necessity for such fast-track procedures in a well-functioning refugee determination framework.

Human Rights Watch urges that the Amanifestly unfounded@ procedures are strictly limited and circumscribed to avoid the development of a similar situation in South Africa. An asylum application should only be considered Amanifestly unfounded@ after a full and fair consideration of the case. The criteria used to make such determinations, and the procedures to be followed, should be carefully detailed in the bill. An automatic right to appeal and mandatory review prior to deportation should exist for such decisions.

Human Rights Watch welcomes the proposal in the White Paper that the time-frame for the refugee status determination procedure should be no longer than six months (Section 3.2.2). We believe that such a time frame should be reflected in the bill.

The Rights of Asylum Seekers During the Status Determination Process

The rights of asylum seekers, including the right of asylum seekers to be provided with relevant information at the time they seek asylum, should be clearly defined in the bill. Asylum seekers should be entitled to basic information about their rights and obligations, asylum procedures, and useful contact numbers within the Department of Home Affairs, UNHCR, NGOs and legal representation offices. Such information should be available in various languages asylum seekers understand and in a simple format, at places of entry into South Africa as well as appropriate public places. Prior to commencing the asylum determination procedures, the refugee receiving officer should provide the asylum seeker with this information, and should go over the information with the applicant, and answer any questions which the applicant may have.

Second, asylum applicants should be provided with legal representation or legal aid, or be referred to relevant NGOs for assistance in the completion of their application. Asylum applicants often incorrectly answer questions because of misunderstandings or because they fear that giving an honest answer may lead to deportation. The assistance of suitably qualified persons can remedy such problems.

Third, state-sponsored, independent interpretation and translation facilities must be provided at all stages of the status determination process, and the asylum seeker must also have the option of utilizing an interpreter of his or her choice. Any written decisions should be made available to the applicant in a language he or she understands, or should be translated by an interpreter. Under the current system, translators often abuse the system by extorting bribes and fees from asylum seekers who are unfamiliar with their rights. Such abuses must be stopped.

The language of the bill is often technical, yet it provides essential information for the refugee and asylum seeker about their rights, obligations, and the procedures to be followed for refugee determination. Because many asylum seekers are not English speakers or may have limited education, the technical nature of the bill makes such essential information inaccessible to them. In the past, some corrupt officials have exploited the limited knowledge of asylum seekers and their fear of deportation to extract bribes and other Afees.@ Human Rights Watch strongly recommends that the Department, in consultation with relevant NGOs and the South African Human Rights Commission, creates a plain-language version of the bill, setting out the rights and obligations of asylum seekers and refugees, as well as the relevant procedures under the bill and the contact information for various agencies which are able to assist asylum seekers and refugees (the Human Rights Commission, DHA complaints line, refugee boards etc.). This information should be available in a variety of languages which asylum speakers are familiar with, such as French, Portuguese, and Kiswahili.

Exclusion of Persons from Recognition of Refugee Status

The grounds for exclusion from recognition of refugee status in Section 2(4)(a) to 8 are consistent with the exclusion clauses of the 1951 Convention, Article 1F(a) to (c). Human Rights Watch suggests, however, that Section 2(4) (a) should be extended to read: Ahe or she has committed a crime against peace, a war crime or a crime against humanity, as defined in the relevant international instruments drawn up to make provision for such crimes, customary international law, and relevant jurisprudence@. This reflects the fact that definitions of such crimes now exist in much wider body of law than was the case at the time the 1951 Convention was drafted. The regulations to be adopted under the bill should set out the different crimes of relevance under this Section, and their definition. Where applicable, South Africa should cooperate with such international tribunals as the International Criminal Tribunals for the Former Yugoslavia and Rwanda to bring perpetrators of crimes against peace, war crimes and crimes against humanity to justice. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states that, Aconsidering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive.@ The regulations to be adopted under the bill should reflect this caution.

Cessation of Refugee Status

Grounds for cessation of refugee status are contained under Article 1C of the 1952 Convention Relating to the Status of Refugees. While Sections 2(5)(a) to 2(5)(e) of the bill are consistent with the cessation clauses of the 1951 Convention, Sections 2(5)(f) and 2(5)(g) are not grounds for cessation as stipulated under the 1951 Convention and, in the view of Human Rights Watch, do not comply with international refugee law. Section 2(5)(f) stipulates that a person shall cease to be recognized as a refugee if Ahe or she is ordered to be removed from the Republic in terms of Section 30" of the bill. Section 30, however, refers to the removal of refugees from the Republic for reasons of national security, and is based on Article 32 of the 1951 Convention on expulsion. The removal or expulsion of a refugee from a country does not necessarily mean that such a person no longer has need of international protection, nor that they can be returned to their country of origin. Section 2(5)(f) is, therefore, not a valid ground for cessation of refugee status.

Section 2(5)(g) states that a person shall cease to be recognized as a refugee if Ahe or she has committed a non-political crime outside the Republic after his or her admission into the Republic.@ Again, this is not a ground for cessation as contained in the 1951 Convention. Article 1F(b) of the 1951 Convention provides for any person to be excluded from protection under the Convention if Ahe has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee@. Exclusion from international refugee protection is, however, fundamentally different from cessation of refugee status and such a distinction should be maintained in the bill. Section 2(5)(g) is, therefore, not a valid ground for cessation of refugee status.

As a general rule we refer to Clause 116 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which states that: AThe cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status@ (our emphasis). Such guidelines should be incorporated into the regulations to be adopted under the bill.

Removal of Refugees from the Republic

Section 30 of the bill regarding removal of refugees from the Republic corresponds with Article 32 of the 1951 Convention on Expulsion. Nevertheless, Human Rights Watch wishes to emphasize that removal for national security and public purposes must be strictly construed in the context of human rights instruments and current scholarship. In particular, a threat to Anational@ security means a threat to the very existence of the nation as a whole, and not merely an administrative, political or logistical burden to the country or the locality where a port of arrival is situated. Nor may states invoke this rationale to justify the denial of asylum or detention and removal of refugees simply on the basis of their political opinion or national or ethnic origin. The power to remove refugees on the grounds of public order should not be used to limit the rights of refugees to exercise their internationally recognized rights to freedom of assembly, association and speech. Expulsion is a very serious measure which should only be applied when the threat to national security and public order is of the greatest magnitude.

Identity Documents

The identity documents proposed by the White Paper in Section 4(7) are a significant improvement over the current system which relies on temporary permits to Aprohibited persons.@ Refugees will be given an identity document with a bar code, similar to those issued to citizens and permanent residents. The identity document will make it possible for refugees to enter into employment contracts, register for study, open a bank account, etc. One of the problems which Human Rights Watch discovered during its investigation was that police and other officials would on occasion destroy legitimate documents by ripping up the permit which consisted of a sheet of paper with the requisite stamps and signatures (Section 49 permit). Human Rights Watch strongly recommends that more durable identification documents are issued for both asylum seekers and refugees in order to prevent such abuses.

Human Rights Watch welcomes the provision in Section 17 of the bill that asylum seekers be provided with permits. Asylum seekers permits should, however, be given to all asylum seekers at the time of submitting an asylum application until such time as a final decision on the asylum case has been given when they can be withdrawn. This principle should be reflected in the wording of Section 17. In particular, Section 17(3) should make it clear that a permit is issued until such time as a final decision is reached on the asylum case. Similarly, Section 17(5) should stipulate that an asylum seeker permit can only be withdrawn when a final decision on the asylum case has been reached. Such a decision could either be a recognition of refugee status, in which case a refugee identity document will be provided (Section 32), or a rejection of refugee status (Section 5(c)). In the case of a rejection, however, an asylum seeker permit should not be withdrawn until the asylum seeker has been able to exercise his or her full rights to appeal the decision.

Human Rights Watch believes that an asylum seeker permit should not be withdrawn until there has been a full and fair consideration of the asylum case. As explained earlier, Human Rights Watch does not believe that the use of fast-track procedures for so-called >manifestly unfounded cases= provides asylum seekers with a full and fair consideration of their asylum application. We do not, therefore, believe that an asylum seeker permit should be withdrawn if an application is found as a preliminary matter to be manifestly unfounded (Section 17(5)(b)).

It is not clear from the wording of the bill whether or not the withdrawal of an asylum seeker permit results in the dismissal of an asylum application. The consequences of a withdrawal of an asylum seeker permit should be clearly explained in the bill and such withdrawals should not interfere with or obstruct the refugee determination procedure. In particular, the grounds in Section 17(5)(a) and 17(5)(d) should not result in a dismissal of the asylum application.

The conditions under which asylum seeker permits may be issued, referred to in 17(1), 17(3), 17 (5)(a) and 17(6), are left to the discretion of the Standing Committee in terms of Section 21(I). Human Rights Watch suggests that these conditions should be contained in the bill itself, or alternatively should be issued as regulations, in order to avoid possible abuse. Such conditions should not circumvent the basic principle outlined above that an asylum seeker be provided with a permit at the time he or she submits an application and until such time as a final decision has been reached on the asylum claim.

Human Rights Watch recommends that the asylum seeker permit clearly sets out the rights granted to asylum seekers. For example, the permit should clearly state whether or not the asylum seeker may be employed, whether the asylum seeker may engage in informal sector work such as hawking (with the appropriate permits from the relevant authorities), or whether the asylum seeker is permitted to open a bank account. Many employers refuse to hire asylum seekers because they do not believe that the asylum seeker can legally work, and even police officers often seem unaware about the rights of asylum seekers. A clear statement on the rights of asylum seekers would provide clarity for both the asylum seeker and persons whom the asylum seeker approaches for employment or other opportunities.

Human Rights Watch welcomes the creation of an improved identity document for refugees as provided for in Section 32 of the bill. Again, we recommend that this identity document clearly sets out the rights of refugees to allow refugees to know and effectively exercise their rights. It is envisioned in the bill that the identity document will be a durable document. Section 33 envisions the granting of travel documents to refugees in a manner which will be prescribed by the Minister.

Protection of Unaccompanied Minors

The White Paper recognizes the vulnerable position of unaccompanied minors in Section 4(9), and states specifically that AUnaccompanied minors shall be considered as children in need of care, and therefore subject to the Child Care Act of 1983.@ The bill adopts this view in Section 27, requiring that children in need of care are brought to the Children=s Court and allowing the Children=s Court to make orders for the provision of assistance to children applying for asylum.

The principle of family unity is somewhat recognized in Sections 17(1) of the bill, which grants asylum seeker permits to an asylum seeker and his or her dependants. Section 28 of the bill governs the granting of refugee status to dependants of refugees who become of age or otherwise obtain independent status. The bill does not, however, specifically grant dependants of refugees the right to refugee status. In line with the principle of family unity contained in the Final Act of the 1951 Convention, Human Rights Watch urges the South African government to recognize the right of dependants of a refugee to refugee status even when they have not accompanied the head of household. Thus, the children and spouse of a recognized refugee should be allowed to join the head of household, even when they are currently living in another country. Human Rights Watch proposes that the bill specifically recognizes the right of dependants of refugees to refugee status. The right of family unity should be recognized in Section 26 of the bill.

Recognition of Gender-Related Persecution

Section 4.9 of the White Paper specifically addresses this issue: ARefugee receiving officers and status determination officers shall receive training with regard to the needs of refugee women and children, and, where possible, service to women shall be by women.@ Section 2(2) recognizes that persecution on the grounds of membership of a particular social group includes persons at risk on account of gender or sexual orientation. Human Rights Watch proposes that the White Paper should adopt an inclusive interpretation of gender-related persecution which would include, intern alia sexual violence, or sex-specific abuse; persecution related to coerced female genital circumcision (FGM); domestic violence; persecution for transgression of social mores (e.g. arranged marriages, religious customs); persecution related to coerced family planning practices (e.g., forced sterilization, forced abortions); and persecution on the grounds of sexual orientation. Reference should be made to the UNHCR draft guidelines on gender-related persecution which include the above categories. Human Rights Watch has documented the plight of women as targets of sex-specific abuse in several contexts, including during the genocide in Rwanda (AShattered Lives@ Sexual Violence During the Genocide). Human Rights Watch believes that the special needs of victims of sex-specific violence should be recognized in the White Paper.

As the bill adopts the standard language of the U.N. and OAU conventions, gender-related persecution is not specifically included as a ground for asylum. It has become common practice of many states to include gender-related persecution under the residual category of persecution on the basis of membership in a Aparticular social group.@ However, Human Rights Watch believes that states should explicitly recognize gender-based persecution as a ground for asylum. The Department should adopt clear guidelines to address the special needs of victims of sex-based abuse such as sexual violence. These special needs include access to counseling and appropriate and humane interviewing procedures.

Detention of Asylum Seekers

Unfortunately, the issue of detention of asylum seekers is not addressed in the White Paper. Although most asylum seekers are not detained in South Africa, Human Rights Watch did interview some persons in detention at rural police stations who claimed to be asylum seekers. The detention of asylum seekers, who are often severely traumatized because of persecution in their home countries, is an issue which merits attention in the White Paper and any proposed refugee legislation. In the view of Human Rights Watch and the UNHCR Guidelines on the Detention of Asylum-Seekers, asylum seekers should in general not be detained.

Section 18 of the bill allows for the detention of asylum seekers whose asylum seeker permit is withdrawn in terms of Section 17(5). Human Rights Watch does not, however, believe that the detention of an asylum seeker on the grounds stipulated in Section 17 (5) should result in the withdrawal of an asylum seeker permit. In other words, even asylum seekers in detention should be allowed some form of identity papers. Furthermore, as indicated earlier, declaring an application to be >manifestly unfounded= is not, in the view of Human Rights Watch, a sufficient ground for detention (Section 17(5)(b)). All asylum seekers should be allowed a full and fair hearing of their asylum application and should not be detained for the purposes of determining the merits of their case. In terms of Section 17(5)(a) and Section 18, an asylum seeker could be detained for contravention of the conditions endorsed on the asylum seeker permit. As the detention of asylum seekers should be avoided, the conditions of the asylum seeker permit should be clearly defined in the bill or its accompanying regulations to avoid possible abuse.

Section 31 further requires that the detention of an asylum seeker is reviewed after 30 days. Human Rights Watch feels that administrative detention orders allowing for the detention of a person for 30 days are inconsistent with international law and the South African Constitution. Asylum-seekers, who have not been convicted or even accused of any crime, should at a minimum be granted the protections of Article 35 of the Constitution, which requires that any arrested person is brought before a court as soon as possible, but not latter than 48 hours after arrest. Any extension of detention should be judicially approved and supervised. Detention should be subject to periodic review and should be subject to a maximum time limit. Non-custodial alternatives should be sought, and detention should only be pursued as a solution of last resort. Under no circumstances should asylum seekers be detained with criminal suspects, convicts, or those awaiting trial on criminal charges, unless they themselves are criminally accused or convicted. Detention conditions should be non-punitive and in line with international and constitutional standards. The current provisions of the bill, leaving the place, length and manner of the detention to the discretion of the Minister, are unacceptable in the absence of clearly defined norms.

Reception of and Accommodation for Refugees in Mass Influx

Human Rights Watch is concerned about the requirement that the Minister of Home Affairs consults with the Ministers of Correctional Services and Defense prior to designating a center or place of accommodation for a mass influx of refugees, in so far as this suggests a willingness to resort to the use of closed camps and military bases during mass influxes. During the influx of Mozambican refugees, a large number of Mozambican refugees were accommodated without the need to resort to such draconian measures. Human Rights Watch recommends that the use of closed camps, military bases and other restrictive forms of detention are avoided, even in the event of mass influx. In the case of a mass influx, refugees must be treated in accordance with international human rights and refugee protection standards. These standards should be clearly defined in the bill or its accompanying regulations.

During the event of a mass influx, all efforts should be made to ensure that the human rights and humanitarian needs of refugees are met. To the extent possible, the refugee determination procedures of the bill should be adhered to. When a declaration of group refugee status is made by the Minister in terms of Section 2(2) of the bill, all persons so declared to be refugees should still be issued with identity documents. The power of the Minister to revoke such a grant of group refugee status by notice in the Gazette, as contemplated in Section 2(3) of the bill, should be qualified. In order to ensure compliance with the 1951 Convention, the Minister should only have the power to revoke such declarations on the grounds of one of the grounds for cessation contained in Section 2(5)(a) to 2(5(e) of the bill. When group refugee status is revoked in terms of Section 2(3), individual refugees should have the opportunity to individually apply for refugee status.

Naturalization of Long-Term Refugees

Sections 2(5) and 4(8)(2) of the White Paper address this issue, recommending that Awhere certain refugees have developed strong family, social and economic links with South Africa to the point of regarding it as their new home country, the government shall give favorable consideration to any application for naturalization which may be submitted by such refugees.@

Section 26(b) of the bill grants refugees the right to apply for naturalization after 5 years from the date on which he or she was recognized as a refugee. It is recommended that the South African Citizenship Act (1995) is amended to specifically recognize a five year residence period as an asylum seeker and/or refugee as one of the permissible grounds for obtaining naturalization. Because of the long delay periods currently existing in the refugee determination process, the period should commence from the period the asylum seeker first establishes residence in South Africa. The goal of the naturalization procedure should be to allow for long-term refugees to normalize their status after a five-year period, and the current delays in the refugee determination process could delay the opportunity for legitimate refugees to normalize their status by several years. If the time schedules proposed by the White PaperCsix months for ordinary refugee determinationsCare adhered to, the problem of long delays in naturalization will also be minimized.

The bill also has another lacuna in this regard which should be corrected. Under the current procedure, only refugees are eligible to apply to become naturalized after a period of five years. However, the bill provides that refugee status can be withdrawn if the conditions in a refugee=s home country change so that the home country becomes safe enough to allow for return (Section 5(e)). This could create a situation where a decision is made to withdraw refugee status of a refugee who has lived in South Africa for over five years, and because refugee status has been withdrawn, the person would not longer be eligible to apply for naturalization. Section 2(5) of the White Paper regarding cessation of refugee status recommends, however, that Awhere certain refugees have developed strong family, social and economic links with South Africa to the point of regarding it as their new home country, the government shall give favorable consideration to any application for naturalization which may be submitted by such refugees@. It is the view of Human Rights Watch that such a provision should be made explicit in the bill.

The Minister=s Discretionary Powers under the Bill

Human Rights Watch is of the opinion that the discretionary powers granted to the Minister under the current version of the bill are too wide, and that many of the issues left to the discretion of the Minister or to subsidiary regulations should be clearly defined in the bill itself. Matters such as the Minister=s power to appoint the members of the Standing Committee and Appeals Board without consultation, the powers of the Minister to withdraw asylum seeker permits (Section 17(5)) and to order the removal of refugees on the grounds of national security or public order, and the broad power to make regulations in terms of Section 37 seriously jeopardize the independence of the refugee determination procedures. Many of the powers granted to the Minister could be handled in a more independent way by the statutory bodies created by the bill.