Judge slams asylum process decision-making

Pretoria News – 17 Jul 2018
THE Gauteng High Court, Pretoria, has issued a scathing indictment of the quality of administrative decision-making in South Africa’s asylum-seeker process.
Handing down judgment in the matter of FNM v the Refugee Appeal Board and Others, Judge AJ Dodson set out a scathing indictment of the quality of administrative decision-making in South Africa’s asylum seeker process.
The applicant was an asylum-seeker who fled from the conflict-ridden eastern region of the Democratic Republic of Congo and sought refuge in South Africa in 2013.
During his interviews before the Refugee Status Determination Officer, the applicant was not provided with competent interpretation. As such, much of the crux of his claim for asylum was lost, leading to the rejection of his application.
The Refugee Appeal Board (RAB) further rejected his appeal without providing him with a hearing despite the procedural irregularities inherent in the initial process or applying an inquisitorial approach to their decision making as required by law.
Lawyers for Human Rights launched these judicial review proceedings on his behalf to challenge the procedural and substantive unfairness of these decisions.
In his judgment, Judge Dodson chastised the RAB for failing to adopt the requisite inquisitorial and facilitative approach in its interview with the applicant, Also, for failing to make use of its full powers under the Refugees Act. The courts have in the past criticised the Department of Home Affairs for failing to give effect to asylum seekers’ right to just administrative action and exercise the powers afforded to it by the Refugees Act.
Judge Dodson also criticised the RAB for focusing only on information which favoured the applicant’s return to the DRC, suggesting a pre-determination of the outcome of his claim, before even affording him a thorough hearing.
He also commented on the long delay in the administrative process as the applicant applied for asylum in 2013 and was only given a decision in late 2016.
“Having regard to the incompetence displayed by the Refugee Appeal Board in its decision-making in this case, its apparent unwillingness to apply the correct burden of proof and indications of bias in its assessment of the country of origin information, it would be unjust and inequitable to expect the applicant to place his fate once more in the hands of the Refugee Appeal Board,” said the judge.
The court thus exercised its discretion and granted the applicant’s prayer for substitution, directing that he be granted refugee status and issued with the appropriate documentation. This case is significant for the development of refugee and administrative law in South Africa, demonstrating that SA courts are willing to grant an extraordinary remedy like substitution, where the apex of administrative decision making fails to assist one of the most vulnerable sectors of society.
Lawyers for Human Rights (LHR) head of strategic litigation Wayne Ncube said: “We welcome this judgment and hope Home Affairs and the Refugee Appeal Board take the critiques raised by Judge Dodson to heart and begin to discharge their duty to asylum seekers in earnest.
“Many asylum seekers face similarly flawed adjudication processes with regards to their asylum claims and do not have access to legal representation to pursue fair administrative justice through our court system.
“The department and Refugee Appeal Board need to conduct thorough, unbiased enquiries into the claims lodged by persons fleeing heinous circumstances and persecution in their home countries otherwise people will face refoulment.”
Many asylum seekers face similarly flawed adjudication processes with regards to their claims LHR’s Wayne Ncube

South Africa: Home Affairs On Live-Capture System Upgrade

16 July 2018 – DHA
As announced on Wednesday, 11 July, the Department of Home Affairs started upgrading its live-capture system last Friday, 13 July 2018, to enable automation of birth registration and re-issue of marriage and death certificates that are already in the national population register, and the printing of parents’ details in children’s passports.
The uploading of the new software began on Saturday 14 July, although with some glitches. Nationally, of the 38 large offices, 29 have been completed. The remaining 9 large offices will be completed on Monday, 16 July. In Gauteng, 15 offices were successfully tested, out of the 29 live capture offices in the province. The remaining Gauteng offices will also be completed tomorrow. The rest of the provinces will be tested as per schedule issued on Wednesday.

New process for getting police clearance certificate

July 12, 2018 – SAPS
To mitigate identity fraud, the South African Police Service (SAPS) is introducing a new process for obtaining a police clearance certificate (PCC).
“SAPS has devised one such method to improve security measures to mitigate this risk,” SAPS said on Thursday.
A police clearance certificate is a document issued by the SAPS Criminal Record and Crime Scene Management stating whether or not any criminal offence has been recorded against the person.
It’s a document which provides confirmation of a person’s criminal status.
When and how will the effects take place?
Members of the public are no longer expected to deliver their documentation to the Criminal Record Centre in Pretoria, as was previously the practice.
It is now the sole responsibility of the SAPS to compile and deliver the form to the Criminal Record Centre (CRC) on behalf of the applicant.
Any costs involved?
This service is rendered at R114 per application. The required tariff is payable in cash at the nearest police station, by bank-guaranteed cheque, banker’s draft or electronic payment in the SAPS account in favour of the National Commissioner.
Bank details
• ABSA cheque account number 4054522787
• Branch code 632005
• Swift code ABSA ZAJJ
According to the SAPS, in the case of an electronic payment, the letters ‘PCC’ followed by the initials and surname of the applicant must be indicated as the reference.
The letters ‘PCC’ will indicate that the payment is for a police clearance certificate. Proof of payment must be attached to the application (SAPS 91(a), which will be provided to the applicant at his/her nearest police station.
What the process entails?
The first step to obtaining a police clearance certificate is to visit your nearest police station in SA and notify a member of the SAPS that you wish to apply for a SA police clearance certificate.
The member will then guide you accordingly to the relevant member who will be responsible for the processing of your application. The applicant will be expected to subject himself/herself for a full set of fingerprints for the (SAPS 91a), which is the SA police clearance certificate form.
The applicant must ensure that he or she is in possession of a copy of his or her South African identity document or in possession of his or her official passport, a copy of which will be certified at the police station and attached to the application.
The applicant must provide a statement regarding his/her previous convictions and indemnify the SAPS against any liability which may result from furnishing information in this regard.
Finalised police clearance certificates will be returned to the station of origin and the applicant will be contacted for collection.
Upon collection, the applicant must again present the original Identity document or passport as confirmation of identity.

DFAT rules officials’ employees must have Australian bank accounts

8 July 2018 — Canberra Times

Why it matters
• The Salvation Army says it’s helping up to four domestic workers – employees of foreign officials living in Australia – escape exploitation each year.
• It can be difficult for the Australian government to assist such workers because of international laws around diplomatic immunity.
• The Department of Foreign Affairs has tried to assist by making it a requirement that domestic workers are paid into an Australian bank account.
The Department of Foreign Affairs has told diplomats living in Australia their domestic workers must be paid into an Australian bank account following revelations of slavery-like practices in diplomatic residences.
The fact sheet, recently issued to diplomats and consular corps living in Australia, further stipulated that foreign officials could not cancel an employees’ visa, nor could they stop them leaving their place of work outside working hours.

The former Pakistan High Commissioner to Australia, Naela Chohan, was accused of keeping a domestic worker in her basement.
Photo: Melissa Singer
In bold, they were told: “It is a Department of Foreign Affairs and Trade requirement that the employee’s salary be paid through bank transfer into an Australian bank account”.
The tightened rules follow revelations on ABC’s Four Corners in February that more than 20 domestic workers had sought help from the Salvation Army’s anti-human trafficking arm The Freedom Partnership in about a decade.
National policy and advocacy coordinator Heather Moore this week told the Sunday Canberra Times the figure had steadily increased over time to up to four domestic workers requesting assistance each year. The figure included men and women from Africa, Asia and South America stationed in residences throughout Australia, she said.
“[DFAT is] making some changes but we don’t think they’re going far enough and we don’t think they’re going fast enough,” Ms Moore said.
Ms Moore said she understood another new requirement was that only heads of mission could hire workers under the 403 visa program.
She pointed out one case, outlined by Four Corners, alleging a former employee of Pakistani High Commissioner Naela Chohan was verbally abused, worked up to 19 hours a day and slept in a storage space in the basement of Ms Chohan’s home. Shahid Mahmood’s $100-weekly pay was wired to his family in Pakistan.
Ms Chohan denied the claims and has since left the posting.
Ms Moore said: “We’re concerned that simply limiting it to the head of mission will not necessarily stem the tide of abuse. Neither does that address the sense of isolation that domestic workers experience.”
Responding to allegations of exploitation is difficult for Australian authorities, who battle claims of diplomatic immunity.
The Freedom Partnership has continually urged DFAT to connect domestic workers with a “knowledgeable” non-government organisation to ensure diverse pathways out of exploitation.
Currently, DFAT holds annual interviews with domestic workers, which advocates said could take place over the phone.
It is understood the federal government has implemented processes to verify whether the new bank account requirements were being met but DFAT would not comment on rates of compliance.
“The department has long advocated in favour of private domestic workers having their own personal Australian bank accounts,” a DFAT spokesperson said.
“In early 2018 DFAT made this a requirement for overseas missions in Australia in order to ensure private domestic workers were being paid in accordance with Australian employment standards.”

Chinese investors wary of SA red tape – official

Jun 22 2018 – Fin 24
Chinese investors are concerned about the lengthy lead time it takes for South Africa to conclude investment deals and turn around projects, a top leader in the National Planning Commission said on Wednesday.
According to Tshediso Matona, head of the National Planning Commission secretariat, the complexities associated with multi-approval plans have been singled out as a major disincentives by Chinese investors looking invest in the country.
“The Chinese investors have repeatedly raised [the] concern that South Africa always takes a long time to make decisions when it comes to investment projects,” said Matona, during a Vision 2030 forum to discuss the National Development Plan (NDP).
“The Chinese have deep pockets, but these are the disincentives they have raised.”
The National Planning Commission developed the NDP. The NDP outlines the long-term vision and strategic plan for the country’s economic growth. The government’s blueprint is aimed at stimulating growth and address inequalities and unemployment by 2030, through partnerships between the public and the private sector.
The plan was adopted by Cabinet in September 2012.
Matona said infrastructure development was one of the key priorities of the NDP, and that fresh approaches were needed in project management in order to address the current fragmented regulatory framework.
The former CEO of Eskom said projects such as rail, road and energy infrastructure would benefit from improved and innovative implementation strategies.
He said he was encouraged by the private sector’s willingness to support the NDP, but urged the government to demonstrate decisive leadership in driving the plan.
“Government must demonstrate political commitment and leadership to really drive the plan, because we can’t expect the private sector to work with a plan that they don’t see as having [the] full backing of the state,” said Matona.
Matona also lamented the poor economic growth rate, saying it would take a great deal of work to achieve the estimated 1.5 % rate for 2018.
The two-day Vision 2030 Summit, which is attended by business and government leaders, is aimed at coming up with practical solutions to drive the plan.

Deceptively simple ways SA can boost investor sentiment

Jul 14 2018 – Fin 24

Dutch football legend Johan Cruyff famously said: “Football is a simple game. It is just very hard to play it simple.”
The same rings true for President Cyril Ramaphosa’s plan to bolster investment in South Africa.[1] The president’s seemingly simple goal is made much harder by the country’s business environment, which has been deteriorating in recent years.
Ramaphosa can, however, implement a handful of measures to boost the country’s standing among investors.
Decline
Leading economic indices empirically demonstrate how the local economy is today less competitive – relative to others – than it was only a few years ago. Many emerging market peers (including some African states) are now ranked higher than South Africa, whereas in the early and mid-2000s the country was a leading performer on the emerging market stage. The hopeful, albeit waning aura around Ramaphosa is not enough to bolster sustainably the country’s image, or to loosen domestic and foreign investors’ purse strings.
Global indices, which measure different facets of countries’ business environments, show South Africa’s decline from 2014 to 2018:
• The World Bank’s Doing Business index: South Africa plunged from 41 to 82. Botswana, Kenya, Mauritius and Rwanda are better positioned on the 190-country index, which sees a large set of subject matter experts rank economies according to the conduciveness of the regularly environment to starting and operating a business.
• The World Economic Forum’s (WEF) Global Competitiveness Index: South Africa slipped from 53 to 61, out of 137 economies. Mauritius, Rwanda and an array of other emerging markets are better placed. The WEF measures competitiveness by a quantitative and qualitative investigation of institutions, policies, and factors that determine the level of productivity of an economy.
• Index of Economic Freedom: A smaller drop from 75 to 77 in this index, run by the influential US-based think tank, The Heritage Foundation, and The Wall Street Journal. Botswana, Mauritius and Rwanda ranked much better. The index measures four economic aspects over which governments exercise control: rule of law, bureaucratic size, regulatory efficiency, and market openness.
• World Competitiveness Rankings: South Africa dropped from 52 to 53 in the Swiss-based IMD’s 63 country index.] No other African country is included, but emerging economies including India, Mexico, the Philippines, Thailand and Turkey all perform better. The IMD measures competitiveness by comparing countries’ infrastructure, institutions and policies that encourage value creation by companies.
• A.T Kearney FDI Confidence Index: South Africa dropped out of the index but was 13 out of 25 in 2014. Brazil, India and Mexico consistently make the list. The index is drawn from an annual survey of global executives who rate which markets are likely to attract foreign direct investment (FDI) over the next three years. It is a lead indicator and has over the past two decades closely tracked the top receivers of FDI in later ears.
Perception is reality
Observers who may dismiss these findings as “mere opinion” or an “academic exercise” fail to appreciate that perception often is reality. These snapshots provide a global benchmark that help shape a country’s international narrative; investors’ views – just like those of everyone else – are shaped by imperfect and incomplete information.
South Africa’s declining rankings, coupled with international publications’ unfavourable media coverage (some more balanced than others), portray a country in decline.
There are strong suggestions that this narrative has real-world consequences. As economist Mike Schüssler pointed out, negative net FDI accompanied South Africa’s drop in the rankings. In other words, since 2014, more South African firms invested offshore than foreign firms invested locally.
None so blind…
Trite as it may sound, South Africa jockeys for investment in a competitive international market. Foreign and domestic companies often make investment decisions based on the relative attractiveness of one destination versus another. It is incumbent on each country to present a compelling case for investment. Firms, especially those based offshore, tend to have little sympathy for socio-economic challenges and historic injustices, remaining focused on generating maximum profit at minimum risk.
As cold and calculating as this stance may be, it provides countries – at least those that care to listen – with a relatively simple roadmap to attract investment. For the last several years, South Africa has not walked on this path, and local and foreign firms have reacted in kind.
SA’s next steps
Where, then, does this leave South Africa? Disheartening as these findings are, it is encouraging that Ramaphosa – unlike his predecessor – acknowledges the decline and has taken initial steps to reverse it. This includes courting wealthy nations, where the bulk of FDI originates, and reforming state-owned enterprises and arms of government e.g. South African Revenue Service.
As mentioned previously, however, it will require a concerted multi-stakeholder effort over an extended period to address the deep-seated constraints on the country’s investment environment. There is no silver bullet to restore investor trust. Building a positive reputation takes time; so does rebuilding it. In the meantime, the presidency should redouble its focus on low-hanging fruit to improve South Africa’s battered image.
Ramaphosa should focus on issues that are nominally under his direct control. He would do well to heed a World Bank study that found a country’s investment climate (e.g. investor-friendly policy, regulation and bureaucratic efficiency) appeared to be a leading driver of FDI, preceded only by market size and potential growth.
This hints at why states such as Mauritius and Rwanda, with small economies, could bolster FDI inflows by providing an attractive environment. South Africa’s one-stop shops, which are being rolled-out to facilitate investment, is a positive step in this direction. The presidency should go further and review all macro-level policy and regulations to ensure it encourages – or at least does not discourage – investment. There can be no sacred cows in such a process.
Pretoria needs to employ a marketing strategy that highlights the country’s unique value proposition and clearly differentiates it from other emerging markets. In the past, for instance, South Africa was positioned as the gateway to the rest of Africa, a hub from which firms could enter the world’s second fastest growing region.
Importantly, government should be seen to be improving the business environment. While the presidency may be taking measures to shift investor perceptions, too little information filters through to the public realm too infrequently. Investor’s perceptions will improve faster if government openly and unequivocally espouses pro-business plans and actions on all public platforms – not just the usual investment junkets and foreign trips. Communication should be managed centrally from the Union Buildings to ensure consistent and credible messaging, properly contextualising South Africa’s contentious policy debates. Special attention should be given to issues that investors have flagged as concerns, including land reform, the mining charter, national health insurance and free higher education.
There may be not be any quick fixes to South Africa’s investment challenge, but neither are the solutions a complete mystery. It will require political will to present companies with a predictable, competitive environment and a compelling business case for why investing now will maximise profits later.
With simple measures in place, the process of regaining investor confidence can and will occur – similarly to Ernest Hemingway’s description of going bankrupt – gradually, then suddenly. As long as Pretoria guard’s against scoring any more own goals.

Children born to illegal moms and local dads are SA citizens

13 July 2018, – The Star
Johannesburg – Home Affairs has been ¬accused of violating human rights after refusing to grant citizenship to children born to undocumented mothers, but whose fathers are South African. In a scathing judgment delivered at the North Gauteng High Court, Acting Judge Moses Mphaga has ordered the department to “forthwith register the birth” of a 4-year-old child of a Joburg father and a ¬Chinese female immigrant whose stay in the country is illegal.
The boy was born at Flora Clinic, near Roodepoort, in 2013. After his birth, Home Affairs officials told the parents that his birth would not be registered due to the mother’s illegal status.
The parents, whose attempts to marry were also barred by Home Affairs, ¬believed there was no reason for the department to deny their child citi¬zenship because he was born in South Africa, and one parent was a citizen. Judge Mphaga found that the department relied on an “internal policy” adopted in 2014 to block the registration of children born out of such relationships.
“The practical effect of this policy is to refuse the child the recognition as a South African citizen, to which he is entitled as a right,” Judge Mphaga wrote in the judgment. In its opposing affidavit, the department had sought to defend the policy.
It said: “When the mother of a child born in South Africa is an illegal refugee or illegal immigrant, the child will only be issued with a handwritten recognition of birth certificate, as the child is not a South African citizen.
“When one of the parents is an illegal refugee or illegal immigrant, the child cannot be registered on the Birth Registry, as the system would then automatically issue the child with a South African identity number which it (sic) does not meet the requirements.”
Judge Mphaga said this policy contradicted a section of the Citizenship Act that grants automatic citizenship to children born in or outside the country to parents of whom one is South African.
“Accordingly there can be no valid reason for the department to rely on an internal policy which effectively refuses to recognise the South African citizenship of the applicants’ child,” he said.
This was a second ruling within two weeks against Home Affairs for denying citizenship to children of local men and undocumented ¬mothers. In a judgment delivered at the High Court in Grahamstown, in the Eastern Cape, Acting Judge Apla Bodlani ruled in favour of a defence force member and his Congolese wife.
They fell in love while the soldier was posted to the Democratic Republic of Congo (DRC), and had a customary marriage in that country.
“In September 2015, the wife travelled to South Africa on a DRC passport, having been issued, on September 23, 2015, with a visitor’s visa. At the time of expiration of her visa, she was highly pregnant, and thus could not apply for a new visa, in as much as she could not travel back to the DRC,” Judge Bodlani pointed out in his judgment.
But Home Affairs refused to register the child. Judge Bodlani declared the 2014 regulation of the ¬department unconstitu¬tional. Liesl Muller, a lawyer with Lawyers for Human Rights, said dozens of children in similar situations across the country had become stateless.
“Last year I visited Aliwal North, and found about 70 children who did not have birth certificates. In our law clinic every day I see (South African) fathers who want to take responsibility for their children, but Home Affairs won’t let them,” she said.

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