The Justice Portfolio Committee's announcement that it will not be ‘fast-tracking' the Anti-Tracking Bill [‘ATB'] is to be welcomed by allowing for greater reflection on the proposed mechanics of this complex and critical Bill.
Some of the current provisions of the ATB, and particularly aspects of the immigration-related issues, as currently formulated, are in danger of failing the victims of trafficking, when it really matters, given the frailties of the Immigration Act [‘IA'] and the Department of Home Affairs.
A critical requirement of the proposed anti trafficking legislation is its capacity to create a safety net for the trafficked person by protecting the vulnerable victim against return to a situation where he or she would be at risk. To achieve this, the Department of Home Affairs is empowered, under certain conditions to allow the victim to reside in SA and where necessary to be allowed to earn a living whilst here.
The ATB accordingly provides for various amendments to the IA to permit, for example, a visitors permit to be issued to a trafficked person who is deemed to be vulnerable. The proposed amendment also provides that in particularly dire or intractable situations such that, the victim may not be able to return home, may also be permitted to apply for permanent residence.
In terms of the Bill, the discretion to decide whether or not a person is to be protected - whether by way of temporary or permanent residence - is vested in the Director General of Home Affairs. And therein lies one of the weaknesses of the ATB, particularly if the Director General has a discretion and decides, in exercising it, that a person does not qualify for an appropriate permit.
And the history of the current Immigration Act should not be forgotten. On the same day as Parliament passed the Immigration Act in 2002, the Minister of Home Affairs announced that the Act needed to be amended. A substantial amendment was brought about in 2004 and came into operation in July 2005. A further amendment was passed by Parliament in 2007 [Act 3 of 2007]. Astonishingly, three years later this Amendment has still not come into operation despite having been rushed through Parliament at the time to deal with urgent problems in the current Act - particularly with regard to temporary residence permits. And now, after a series of Ministerial assurances since then, the Department is once again busy designing a substantial re-working of the Act.
The bottom line, as Home Affairs' officials dealing with permits will concede, the Act is flawed in significant respects. And now the ATB wades into this morass without seeking to effect any corrections to the Act.
In terms of sections 8(3) and 8(4) of the IA, "any decision taken in terms of the Act" that negatively affects a person, can be appealed to the Director General. And should that appeal be declined by the Director General a further appeal lies to the Minister of Home Affairs in terms of section 8(6) of the Act. For purposes of the 2002 Act, Parliament expressly intended that there be two internal appeals available to an aggrieved person.
But the anomaly of how one now appeals to the Director General against a decision taken by the Director General [a problem that was created by the rushed 2004 Amendment Act], was considered in the matter of NCUBE v MINISTER OF HOME AFFAIRS [ECHC 2074/08 per Pakade J, 18 December 2008]. The Court held there that even where the Director General has delegated his authority, the decision by the official duly delegated, has in fact still been taken by the Director General. The Court went on to hold that all decisions taken in terms of the Act are in fact taken by the Director General. The Minister's application for leave to appeal on this point was refused and the Minister did not pursue this point in an application for leave to appeal to the Supreme Court of Appeal. The Court in Grahamstown held that there is in fact only a single appeal and that appeal lies to the Minister.
But the law reports and media are replete with instances of what might diplomatically be termed ‘unfortunate' decision-making by the Director General and/or the Minister of Home Affairs and/or their respective delegates.
The irony is that the Department of Home Affairs has at its disposal the ideal resource to determine questions such as whether or not it is dangerous for the victim to be returned to his country of origin or the country from which he or she was trafficked. This is the Refugee Appeal Board.
Whilst the Appeal Board is currently understaffed and under-resourced it is not only independent but it has assembled over a decade of experience in deciding precisely such questions. It would be the idea vehicle to which to refer appeals from persons seeking protection as vulnerable trafficked persons - so long as it was also adequately resourced to take on this added duty.
Written by: Chris Watters