Archive from February, 2019

Missed appointment not enough to refuse refugee asylum – court judgment

A man whose father fled Burundi during political turmoil and genocide there in 1994, has been given a fresh start at applying for asylum in South Africa after he was embroiled in a dispute with authorities for about a decade over a missed appointment.
Although Western Cape High Court Judge Ashley Binns-Ward felt it was not up to him to decide whether Alexis Kalisa could stay in SA or not, he referred Kalisa’s matter back to the Refugee Appeal Board so that his asylum application could be determined afresh.
Kalisa’s travails began in 1994 when his parents fled Burundi for neighbouring Rwanda during a time of extreme turmoil in the region, following the death of the presidents of Burundi and Rwanda in a plane crash and severe conflict between Hutus and Tutsis.
The judgment noted that Kalisa’s father was being persecuted in Burundi because of his affiliation to a political grouping known as the “Union pour le Progres National” (the Union for National Progress).
Kalisa’s family lived from “hand to mouth” in Rwanda and he joined or aligned himself with an opposition political movement there.
In 2005, at the age of 18, he left Rwanda for South Africa and applied for asylum.
It was refused by the refugee status determination officer at the refugee reception centre in Port Elizabeth in 2007.
He lodged an appeal against the decision to the Refugee Appeal Board but skipped the appointment in 2008. As a result, his bid failed.
In the judgment, it emerged that Kalisa moved to Cape Town and in a wave of xenophobic violence in 2008, found himself living at a temporary site for foreign nationals set up at the Youngsfield Military Base in Cape Town.
While there, he was encouraged to regularise his presence in South Africa and on the insistence of the Department of Home Affairs, submitted a fresh application for asylum in 2008.
After the violence subsided and he could go back to work, he periodically had his asylum-seeker permit extended.
But in August 2017 he was told that because his previous appeal to the Refugee Appeal Board had been unsuccessful, he had to leave South Africa.
He took the matter to court where the law clinic had argued that it would be inhumane to separate the family.
Binns-Ward found that authorities were supposed to consider the merits of the matter whether he was present or not, instead of turning him down because he failed to turn up for the hearing.
The court provided a strict timeline for Alexis Kalisa, the Department of Home Affairs, and lawyers from the University of Cape Town’s Refugee Law Clinic, which represented him, to adhere to.
The judge’s orders include that the 2008 decision of the Refugee Appeal Board dated April 3, 2008 rejecting his application for asylum be set aside and that the matter be sent to the authorities for a fresh start.
While this is being dealt with, the validity of Kalisa’s permit must be extended, the court ordered.
In the meantime, Kalisa has made a life for himself in South Africa with two children and his partner, who is from the Democratic Republic of Congo

Constitutional Court win paves the way for immigration progress

Immigration law expert Stefanie de Saude Darbandi, representing a family from the Democratic Republic of the Congo (DRC), has helped bring about a change in immigration law by taking the case to the high court and Constitutional Court. This welcome development secures a change in the regulations relating to citizenship by naturalisation, allowing foreigners to apply for citizenship after five years’ permanent residence.
Darbandi, representing the Mulowayi family from DRC, took their case to the Western Cape high court and then the Constitutional Court after their application for citizenship was rejected on the grounds that regulations stated they had to be resident in South Africa for 10 years before they could apply. She argued that regulations prescribing a 10-year period of residence before a foreigner can apply for citizenship were contrary to the Citizenship Act, which prescribes only a five-year period.
Darbandi applied to the Constitutional Court, effectively for confirmation of an order of the Western Cape high court, declaring regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 invalid and setting aside the regulation.
She explains that the regulations were not aligned with section 5(1)(c) of the Act, which states: “The Minister may, upon application in the prescribed manner, grant a certificate of naturalisation as a South African citizen to any foreigner who satisfies the Minister that (c) he or she is ordinarily resident in the Republic and that he or she has been so resident for a continuous period of not less than five years immediately preceding the date of his or her application.”
Darbandi says the Constitutional Court’s finding is good news for foreigners seeking South African citizenship, and removes one of the hurdles in the way of immigration.
“There are encouraging signs of reform in South African immigration law and processes, and the department of home affairs appears to be supporting these positive developments,” she says.
However, more progress needs to be made if South Africa is to succeed in its efforts to attract up to 800 000 high-level foreign skills and large numbers of foreign investors to the country, Darbandi says.
“We can’t be a ‘closed border country’ if we want the economy to grow. While this Constitutional Court finding is a step in right direction, making the regulations less restrictive and South Africa more appealing to foreigners, all stakeholders need to work together to make visa and immigration regulations and processes less restrictive.”
Darbandi has long campaigned for uniform application of visa and immigration policies, and for a more open approach to immigration in general. As a founding member of a new Task Team for Immigration Reform, which is backed by Business Leaders South Africa, she aims to continue working to address shortcomings in the current system, which, she says, still forces too many people to suffer wrongful outcomes, delays and various injustices.
“Immigration has been found to have a measurable positive impact on GDP growth, yet our laws, and the inconsistent way in which regulations and policies are enforced, are closing our borders to foreign investors and skilled foreign workers who could both address our in-country skills gaps and support much-needed knowledge transfer,” Darbandi says.

Home Affairs denies mass surveillance capabilities of face-matching database

The technical specifications of the system ‘would not allow it’, the department has claimed.
The Department of Home Affairs has told a Parliamentary Joint Committee on Intelligence and Security that the government’s identity-matching capability could not be used for mass surveillance, as its technical specs simply would not allow for it.
“The services enabled by the legislation are not intended to provide agencies with mass surveillance capabilities. Indeed, the technical design of the system could not facilitate this … as it requires users to input a single still image at a time to conduct a query,” Acting First Assistant Secretary at Home Affairs’ Identity and Biometrics Division Andrew Rice told the committee on Friday, ahead of the departmental leadership change.
“It can’t be connected directly to a live CCTV feed. Even if the agencies attempted to circumvent this by conducting multiple queries in close succession, the way the service operates makes it implausible that agencies could do this to support real-time identification of multiple individuals within a crowd, for example.”
The comments were made following an appearance in front of the same committee earlier that day by Human Rights Law Centre executive director Hugh de Kretser, who raised concerns over the ability of agencies to have real-time surveillance of crowds of people “going about their business, going about their daily lives, and scan faces to merge contemporaneously or almost contemporaneously with a database of images”.
The committee was specifically reviewing the Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018, which were introduced by the Australian government in February to allow for the creation of a system to match photos against identities of citizens stored in various federal and state agencies.
The Australia-wide identity-matching initiative will allow state and territory law-enforcement agencies to have access to the country’s new face-matching services to access passport, visa, citizenship, and driver licence images from other jurisdictions.
The Face Verification Service (FVS) is a one-to-one image-based verification service that will match a person’s photo against an image on one of their government records; while the Face Identification Service (FIS) is a one-to-many, image-based identification service that can match a photo of an unknown person against multiple government records to help establish their identity.
“Face identification service users will receive a gallery of possible matches in response to each query they submit. The system does not provide a single confirmed match. It is then up to users with appropriate facial-recognition training to consider the gallery of possible matches returned by the system and select a short list for further investigation,” Rice explained on Friday.
“Only at that point does the agency receive biographic information about the short-listed candidates — the final identity solution decision still needs to be made by the user agency.”
He said the system has been specifically designed in such a way as to ensure there is always a person in the loop in FIS transactions.
“The system is designed not to rely solely on the technology for identity resolution decisions,” he continued.
“We need to make sure — and this is what we’re doing with the jurisdictions and with agencies that will be prescribed under the Bill — to put in place a training regime to make sure that the officers who access the service have got the right skills, encouraging agencies … to think about the face identification service as being a specialist capability that a small group of people do and do all the time. That’s what happens in our department at the moment. The face resolution staff are a small team, and that’s all they do. It’s about putting in the range of controls to deal with the fact that, because of the very nature of biometrics, there will be some probabilistic anomalies that have to be sorted out.”
Facing the same committee in May, Rice said the department had purchased a facial recognition algorithm from a vendor to be used for the FIS, however Home Affairs received immunity from disclosing who the contract was awarded to, citing mostly security concerns.
“The FIS enlivens significantly a threat to assumed identities, so that’s security and law enforcement covert operatives and witnesses under protection, so we received an exemption under the Commonwealth procurement rules to not publish the identity, the name of the vendor that’s providing the facial recognition service,” Rice said at the time.
“It’s just reducing the potential vectors of attack.”
Rice told the joint committee that as all of the vendors providing biometric or facial recognition services use different algorithms, naming the vendor employed would potentially increase the threat of attack.
On Friday, he held firm on the department’s position, saying knowing which vendor it is gives the potential for some kind of intrusion against that company in order to gain access to information relating to the algorithm.

Victorian government pushes back on in-classroom surveillance

Victorian Education Minister James Merlino wants the few private schools using the surveillance tech to undertake rigorous privacy assessments and ensure students have explicit guardian or parental consent to participate.
The Australian government in August last year kicked off a trial that saw surveillance cameras placed in classrooms to monitor if students were in attendance.
The now-completed trial took place in a few private schools in the state, and the funding was accounted for at a federal level. According to the Digital Rights Watch — a charity aimed at educating on and upholding the digital rights of Australians — the next phase of the trial was to roll out the program to state-run schools.
The initiative would involve the placement of cameras within classrooms that scan the faces of students and then compare the images against photos kept on file. Any instances of missing students would then be reported.
However, Victorian Education Minister James Merlino has moved to block the initiative from being rolled out, calling it “Big Brother-like”.
With concerns over the privacy of students and the level of consent kids are capable of providing, Victoria’s Information Commissioner Sven Bleummel told ABC RN Drive that he personally wouldn’t let his child participate.
He explained the tech that would be in classrooms would not just be for initial roll call in the morning, rather they would be constantly scanning the students throughout the day.
“We have to make some fundamental choices about the society we live in and the idea that our children should consider it normal to be in a fairly constant state of surveillance, I think is a rather unhealthy one,” he told ABC.
Additionally, the Victorian government wants schools to undertake a rigorous privacy assessment of the surveillance technology and receive explicit, informed consent from parents and carers.
“The second category of risk is the much more understandable and tangible risk of information being secure,” Bleummel said, pointing to the security concerns brought up by the Australian government’s My Health Record initiative.
He said he was concerned that although the system itself may be strongly encrypted, the biometric information is still captured.
“Unlike a password, you can’t reset your facial geometry,” he added.
On the topic of consent, Bleummel said parental sign off isn’t a sufficient safeguard, particularly when parents might feel obliged to say yes only to avoid having their child ostracised, posing the question that it might not be a fully voluntary consent given.
Another issue with consent, according to the Information Commissioner, is the length and complexity of the terms and conditions in documents that provide such services, pointing to social media sites as one example, saying people often do not actually know what it is they’re consenting to.
“Fundamentally, we believe that students have a right to not be recorded without their — or their guardian’s — consent,” Digital Rights Watch Chair Tim Singleton Norton told ZDNet.
“It’s imperative that every parent or guardian understand just what is at stake here. Constant monitoring of their child’s face, along with the very real possibility of a mass data breach, should be of concern. This is not the world we want to build for our children.”
The Department of Home Affairs is currently responsible for the operation of a central hub of a facial recognition system that will link up identity-matching systems between government agencies in Australia.
The Australia-wide initiative will allow state and territory law enforcement agencies to have access to the country’s new face matching services to access passport, visa, citizenship, and driver licence images from other jurisdictions.
The Face Verification Service (FVS) is a one-to-one image-based verification service that will match a person’s photo against an image on one of their government records, while the Face Identification Service (FIS) is a one-to-many, image-based identification service that can match a photo of an unknown person against multiple government records to help establish their identity.
Access to the FIS is limited to police and security agencies, or specialist fraud prevention areas within agencies that issue passports, as well as immigration and citizenship documents.
The Department of Home Affairs told a Parliamentary Joint Committee on Intelligence and Security in May it had purchased a facial recognition algorithm from a vendor to be used for the FIS, but claimed immunity on disclosing the contracted vendor.

Well done Home Affairs and Standard Bank

I recently applied for my Smart ID card through the eHomeAffairs portal, and was surprised at how well it worked.
I booked and paid for my ID application via the Home Affairs website, and selected Standard Bank Centurion – which contains a Home Affairs office – as my application point.
Besides an hour-and-a-half wait to have my biometrics captured, the experience was pleasant. The facilities were excellent and the staff were friendly – which is all you can ask for.
My application took place on 11 January 2018, and I was told I would receive an SMS when my ID was ready for collection.
Quick turnaround
On 23 January, less than two weeks after I visited the Home Affairs branch, I received an SMS stating that my Smart ID was ready for collection.
I waited until that Friday to collect my ID – 25 January – and returned to Standard Bank Centurion.
After I arrived at the branch and stated I was there to collect my ID, an employee checked my details and gave me a ticket with a number on it, and asked me to take a seat in the waiting area.
My ticket number was called after 15 minutes, and I was instructed to enter the collection section. In there, you are required to provide your thumb prints on an electronic fingerprint scanner, and sign on a digital signature pad.
Once my details were verified, a Home Affairs employee handed me my Smart ID with a letter detailing the features of card.
And that was it – I had my ID and could be on my way.
I also received an SMS right after collecting my ID card stating that it had been collected.
Having visited “regular” Home Affairs branches in the past, the process of applying for and obtaining my Smart ID card through the Home Affairs online portal and linked bank branch was a pleasure.
Well done Home Affairs for the smooth system and quick turnaround, and well done Standard Bank on hosting the office at your branch.

A South African’s guide to surviving the dreaded Home Affairs queue

Most South Africans dread going to Home Affairs. Who wants to queue anyway?
Anything Home Affairs-related is such an enormous, overbearing task that we simply shy away from important things like collecting our ID cards or that equally pesky task of changing a surname.
Forms to fill in, queues leading out the door, coupled with our troubling weather – hot or cold, it’s equally annoying. Mixed together it all just builds up to a very unpleasant experience.
If you need to visit your friendly Home Affairs office at some point in the near future, rejoice! Gabriel Sithole from Vuma103fm compiled the ultimate checklist of do’s and don’ts to get you through the day.
He shared the wisdom on Facebook and explained that it’s his “citizen’s duty to inform you as a member of the public, that somewhere in your lifetime, you WILL have to go to a government department. I have compiled just ten topics that will help you in getting things going well for you.”
Entering the premises
To start off on the right note, greet the security staff. Sithole says it is essential and said not greeting them is a sign of disrespect or arrogance. He adds:
“If you want things to go smoothly for you, acknowledge these ladies and gents.”
Good manners
Good manners never hurt anyone. Sithole suggests that you greet everybody loudly. A simple “Howzit,” “Sanbonani,” or “Heita” will suffice. By greeting others, you inform your fellow citizens that you are approachable.
“This is an investment for you, because when the queue slows down, you WILL need someone to talk to. This is super-critical.”
Seating arrangement
Once seated, don’t act like you’re at home, chilling on the couch and watching Netflix. Respect your seat neighbour’s boundary and stay out of their space. And then possibly the most crucial bit of advice:
“While seated, PLEASE do not play your Whatsapp voice notes, for ALL of us to hear. You won’t like it when we comment…now that you invited us into your private space.”
If you’re in for the long run, you’ll need sustenance to get you through the day. But Sithole warns not to “show off by eating your protein bars and drinking green liquids called smoothies.” Don’t be pretentious, toe?
“Please South Africa! A crunchie will do! A squashed, melted lunch bar is even better. It says, ‘You are with us.’”
ithole says that checking your wristwatch is a no-no. He continues:
“You’ve been on your phone since you got here. Does it not have a clock? Then why are you making all of us anxious by looking at your wrist! STOP IT!!”
Talking in the queue
Talking loudly is important. If you don’t, you might be earmarked as a gossiper, and nobody wants that. Sithole says others want to be part of the conversation too, but suggests to keep the topics light and relatable.
Sports, fuel prices, the weather and SABC channels are all in order. Discussing Netflix, Showmax and DSTV will only get you alienated. He also warns:
“Feel free to ask for our input as well. As long as you have not been served and I’m sitting next to you… I’m your EVERYTHING. I’m your pastor, brother, psychologist, tv guide, your consumer watchdog, financial advisor, marriage counsellor. I’m your EVERYTHING. Treat me as such!”
Phone etiquette
This should go without saying but please don’t play music on your phone. However, don’t wear headphones either and put your phone on vibrate. If you do need to take an urgent phone call, be quick about it:
“Be brief! Why are you having a conference call with ALL of us? We do not care about your tender deal that you got. Why are you here with us, if you are so “loaded”. Respect us please!”
Body Language
Find the balance between being comfortable without slouching. If you slouch, other citizens might think you’ve been queuing the entire day, and that will only make them lose hope. He suggests:
“Relax! Don’t tense up!! You are making us unsure why we are or if we are in the line! Just…just…just sit properly damnit!”
Service window
This is the most crucial bit of advice: When you do get to the service window or counter, greet the employee loudly and friendly. Sithole said everybody in the queue behind you would be judged by your actions and how you approach service personnel.
“Do not greet them by their name on the name badge. This only proves that you think you are smart and you can read. Call them “Sisi or Boetie”. DO NOT say “baba, uncle, bro…mama. Why not? Read the above point again for an answer.”
Always carry cash and don’t ask that dreaded question: “Do you take cards?” Sithole said this isn’t Woolworths. Always take cash. He says it’s important to look “humble and depressed,” and flaunting your Umhlanga accent will win you no favours here.

“Be interested in the employee/official hard work. Mention something random like, “Wow you guys start early!” Or ” It’s tough to work with people hey.” Show them you are on their side! You and I know good and well that you HATE every moment. Common man Smokes and mirrors! Remember our hopes as we are sitting down… rest upon your attitude at this window.”
Bonus tip: Say goodbye
Sithole said it’s important to greet the employee or official when you are done. However, under no circumstances do you greet those behind you in the queue. He explains:
“We haven’t been served yet! Just keep walking to your good life and leave us alone. Can you not see that we have service problems, hence we still sitting here! You insensitive piece of….”