SZALM v Minister for Immigration

[2004] FMCA 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALM & ORS v MINISTER FOR IMMIGRATION [2004] FMCA 262

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political and particular social group persecution in Zimbabwe – whether the RRT overlooked a relevant consideration considered – the RRT failed to consider an element of the applicants’ claims, namely that they suffered persecution through the seizure of their land – application granted.

Migration Act 1958 (Cth), ss.91R, 474

Kadiroglu & Ors v Minister for Immigration [1998] 1656 FCA
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24
S395/2002 v Minister for Immigration [2003] HCA 71
SDAV v Minister for Immigration [2003] FCAFC 129

Applicants:

SZALM

SZALN
SZALO
SZALP
SZALR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ689 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 29 April 2004

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, solicitor

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal made on 11 April 2002 and handed down on 9 May 2002 is invalid and of no effect.

2. A writ of certiorari shall issue, quashing the decisions of the Refugee Review Tribunal.

3. A writ of mandamus shall issue, requiring the Minister to cause the Refugee Review Tribunal to redetermine the matter according to law.

4. The respondent is to pay the applicants’ costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ689 of 2003

SZALM, SZALN, SZALO, SZALP, SZALQ, SZALR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 April 2002 and handed down on 9 May 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The applicants are a mother and father and their children.  The applicants challenge a joint decision of the RRT in two cases, one brought by the first, second, third and fourth applicants and the other by the fifth and sixth applicants.  The applicants claim to fear persecution in Zimbabwe on the grounds of political opinion and membership of a particular social group.  In relation to the second ground, the initial facts as stated in the protection visa application filed on 15 November 2000 referred to the family being forced to leave their farm in Zimbabwe by “war veterans” (court book, page 4) but these facts were not related to a “social group” claim until the application was brought to the RRT (court book, page 68). 

2. The applicants proceed on the basis of their application filed on 30 April 2003.  Of the three grounds set out in the application only the second ground is pressed.  That is that the RRT failed to exercise its jurisdiction by not taking into account a relevant consideration, being whether the applicants faced persecution in Zimbabwe as members of a particular social group, being non-African land owners.  Mr Jones, for the applicants, prepared written submissions which were filed on 22 April 2004.  He also made oral submissions.

3. Mr Lloyd, for the Minister, relied upon his written submissions filed in chambers on 23 April 2004, augmented by his oral submissions.

4. At the outset of the hearing, I raised with counsel the existence of two previous applications by these applicants which had earlier been dealt with by me.  The applications were dealt with under the names of Applicant NAKR of 2002 v Minister for Immigration (file number SZ505 of 2002) and Applicant NAKV of 2002 v Minister for Immigration (file number SZ504 of 2002).  The fact that there were two separate previous applications probably reflects the fact that different members of the family had made independent protection visa applications.  The two applications were dealt with by me concurrently.  The outcome in both matters was that the applicants withdrew by notice of discontinuance filed on 29 August 2002.  I declined to make a costs order in either matter against the applicants on the basis that they had acted promptly following the provision of legal advice.

5. The applicants withdrew their earlier applications upon legal advice at a time when the legal understanding of the operation of s.474 of the Migration Act 1958 (Cth) was different from what it is now. The present application was filed relatively soon after the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. No issue was raised in opposition to the application on the basis of abuse of process by the Minister. Mr Lloyd submitted that it was a matter for the Court to determine whether the second application should be heard. I elected to hear it.

Submissions

1. Mr Jones relevantly submits as follows:

   From the claims as made to the Department and the RRT it is clear that the social group the applicants claim to belong to can be described as “non-African landowners”.  The family is of Indian Muslim background.

   A substantial amount of evidence was before the RRT to the effect that the so-called “war veterans” are agents of the Zimbabwean State whose functions include the violent expulsion of non-indigenous land owners from their land.

   The Department did not believe the applicants’ claim that their land had been expropriated by the “war veterans”.  However evidence was provided to the RRT that this was the case (court book, pages 78-80).  The RRT did not dispute this evidence.

   The RRT in its decision failed to consider the social group claim at all.  It referred only to the political claims, concluding that it was “not satisfied the applicants face a real chance of persecution if they return to Harare because of their membership of the MDC [the Movement for Democratic Change which is the main Zimbabwean opposition party] by ZANU-PF [the governing party] supporters or war veterans” (court book, page 156.7).

   The RRT noted that “the applicants were able and did relocate to Harare from their family farm”.  However even if this amounts to a finding that the applicants could avail themselves of an “internal flight” option in respect of their political views, which is not entirely clear, the fact that the RRT failed entirely to consider the social group claims means that it cannot have turned its mind to whether effective protections against persecution on that ground will be available if the applicants return to Harare or some other part of the country.  The existence in any part of the country (an afortiori in the capital city) of an illegally dispossessed, identifiable social group could be seen as a continuing threat to an authoritarian regime which would make future repressiona more-than-remote possibility.

   The RRT failed to address a significant part of the applicants’ case as put to it.  This amounts to a clear failure to exercise its jurisdiction under the Act and takes the decision outside the definition of a “privative clause” decision.

1. Mr Lloyd relevantly submits as follows:

   The applicants allege that the RRT failed to consider a social group claim that they advanced.[1]  In particular, it is said that the RRT failed to consider whether the applicants face persecution on the ground that they are members of a particular social group of “non-African landowners” if they were to return to Harare.[2]

   It may be observed that the applicants did not define a particular social group in quite the terms now being advanced to the Court.  It may be accepted however that the applicants claimed to have suffered persecution by reason of their having been non-African farmers in conjunction with their political support for the MDC (court book, pages 71.5, 114.5).

   The harm that the applicants claimed to have suffered as non-African farmers was to have been forced off their farm.  It was accepted that they had suffered this harm and that they had relocated to Harare.

   The applicants did not claim that they would suffer harm in Harare as former farmers.  Their claims of facing harm in the future, in Harare, were focused upon their being supporters of the MDC (court book, pages 115.9-116.1).

   The RRT characterised the applicants’ overall claim in the following language (court book, page 155.5):

   The applicants claim that as supporters of the MDC and as farm owners they were targeted by war veterans and ZANU-PF youth.

   This is an accurate reflection of the applicants’ claim.

   The RRT accepted the applicants claim that they had received threats from war veterans “while on the family farm” (court book, page 155.8). Note that the threats which the applicants claimed to have received were to the effect that they would be harmed unless they left the farm immediately, which they in substance did (court book, page 115.4). The RRT also found that the applicants were able to relocate away from the threats they faced on their farm, to Harare (court book, page 156.4).

   The RRT also found that the applicants “… would not be of interest to ZANU-PF supporters or war veterans if they were now to return to Harare” (court book, page 156.7).

   It is readily apparent that the RRT did not fail to consider the applicants’ claims in relation to the harm they suffered as non-African farmers.  It was taken into account in the RRT’s findings and dealt with.  No jurisdictional error has been established.

   [1]Applicants’ submissions, paragraph 7.

   [2]Applicants' submissions, paragraph 8.

Consideration

1. In my view, the RRT fell into error in this case in failing to consider whether the applicants had been and would continue to be persecuted by the loss of their farm.  The RRT accepted that the applicants were targeted when on their family farm near Masvingo in Zimbabwe and that some of the threats directed at the applicants while on their farm were for the reason of their support for the opposition MDC Party (court book, page 156).  On the same page the presiding member added:

   However the Tribunal notes that the applicants have a flat in Harare, that the husband was running a business in Harare and that the eldest daughter and son attended school in Harare.  As such the Tribunal considers that the applicants when threatened on their farm were able to and did in fact relocate to Harare.

2. Further down the page the presiding member stated:

   The applicants were able and did relocate to Harare from their family farm. 

3. Although not specifically stated by the presiding member in his findings and reasons, I surmise from this that the presiding member accepted the applicants’ claims that they did own a farm in Zimbabwe and were forced off it. 

4. In her protection visa application (court book, page 4) the first applicant stated:

   Netridge is a family farm and we’ve lived there for years.  Before we realised the seriousness of the situation it was too late, our family farm was invaded by the war veterans, workers were abused and our lives were threatened.

   I was personally man handed, threatened with rape and death by the war veterans.

   They claimed our farm is part of the land resettlement scheme.  Things then got much worse.  Our workers were brutally bashed and left the farm, fearing for their lives.  Our decision to stay on the farm at the time is something we will live to regret.  They came back (the war veterans) on Saturday in May and not only bashed my husband leaving him bleeding and unconscious, I was beaten and my daughter was almost raped.  They were armed and dangerous and we fear for our lives, hence the need to flee Zimbabwe.

5. Later in her application (court book, page 5) the second applicant stated:

   I believe the war veterans and ruling party supporters may harm us.

   It is difficult to trust anyone at this stage as even the man off the street is taking advantage of the political situation.  The workers may also be pressured to give information about us.

   In Zimbabwe there is not only the issue of land resettlement: the fact that we support the opposition puts us in a worse position.  Also the problem is we are unable to conduct our lives normally, having printed t/shirts for the opposition party puts us in a worse position.  Also initially we refused to leave the farm.

6. In a subsequent submission (court book, page 114) the second applicant stated:

   As a family we fear our lives will be in danger and we fear persecution if we return to Zimbabwe.

   Our strong support as members of the MDC coupled with the occupation of our farm by the war veterans has made us a target politically and socially.  We supported [the] MDC politically and financially. … on many occasions the war vets would come to the farms and would torment us with death threats.  They would say things like they heard we are MDC supporters and we must vacate the farm, go back to “India” where you belong or face death.  They would tell us we are no different to the white farmers in our support for MDC so we will suffer the same as the white farmers. …

   On the Saturday 13/05/00 when I went to the door not knowing there was a group of war vets outside, I was confronted by one of them – supposedly the leader.  He actually told me to leave the farm immediately and that if they return and found us still there “you are dead” were his words.  The crowd (his followers) were screaming and shouting in his support.  It was the most frightening experience and felt almost as if that would be my/our last day alive.  After all we went through on that day, we never went back again. …

   NB  Long before the Land Acquisition Act, the family submitted an application for our farm Netridge to become a tourist farm, only because there is a Pioneer Cemetery on the farm and it is situated on the Beitbridge Rd.  Regardless of this the war veterans have still occupied the farm as at 9^th December 2001.

7. These claims were noted by the presiding member in his decision.  In addition, the presiding member stated this at pages 145-146 of the court book:

   In the application for review the applicants take issue with the Department’s decision stating among other things

   The most disappointing statement from the Department and on which I strongly disagree with, is where they state “many white owned farms were invaded, but there is no evidence of farms owned by other ethnic groups having been targeted.”  Furthermore they state “I do not accept the applicant’s farm was seized under the resettlement scheme” … The Department is correct in saying we are of coloured (Indian Origin) but that is not to say we are not under threat just as much as any white Zimbabwean … please find herewith extracts from the Zimbabwe Herald Newspaper clearly indicating not one, but two of our family (khan) farms have been targeted under the Land Acquisition Act.

8. On page 147 of the court book the presiding member states:

   The applicants stated that the Netridge farm was listed as a farm to be acquired in May 2001 and was taken on the 9 December 2001.

   It was pointed out to the applicants that there was no reference to the Netridge Farm on the Commercial Farmers Union website, which provides a listing of farm invasions and land acquisitions.  The applicant husband stated that they were not members of the Commercial Farmers Union but that his brother-in-law was and that they were members of the Rural Farmers Union, which represents the interests of smaller farms.

9. The presiding member then deals in some detail with the applicants’ evidence of the invasion of their farm by war veterans.  The presiding member then referred to extensive country information concerning the political situation in Zimbabwe and the last general elections.  The presiding member then states:

   The applicants’ claims may be summarised as follows.  The applicants claim that as supporters of the MDC and as farm owners they were targeted by war veterans and ZANU-PF youth.  The applicants fear for their safety if they return to Zimbabwe and claim that the state would not provide them with adequate protection. 

10. From the foregoing analysis of the applicants’ claims it should, in my view, have been apparent to the presiding member that although the applicants concentrated on their fear of physical harm from their political opponents should they return to Zimbabwe, it was an element or integer of their claims that they had suffered harm by dispossession of their family farm.  The presiding member dealt adequately with the applicants’ fear of physical harm by finding that they could relocate and had relocated to Harare where they would be relatively safe. 

11. In that regard, the applicants were at no greater risk of harm as dispossessed farm owners than they were as MDC supporters.  Indeed, the act of dispossession probably effectively removed the risk of physical harm by reason of membership of the particular social group of non African farm owners, and if there was any residual risk it was effectively dealt with by the presiding member by reference to the applicants’ relocation.  However, there was no consideration by the presiding member of whether the applicants had been persecuted by being forced off their family farm and whether that persecution by dispossession was continuing.  This was, in my view, a failure to take into account a relevant consideration, because it was an element or integer of the applicants’ claims.  To that extent, I reject Mr Lloyd’s submission that the RRT dealt adequately with the applicants’ claims insofar as they were based upon their membership of the particular social group of non-African land owners.  The presiding member dealt only with the risk of physical harm, not the issue of dispossession. 

12. I also reject Mr Lloyd’s oral submission that the applicants, by relocating to Harare, had given up their membership of the particular social group of non‑indigenous land owners.  In the first place, based on the applicants’ account, their move was not voluntarily.  They were driven off their farm by “war veterans” under threat of death or physical injury.  Secondly, where a claim of persecution is based upon asserted dispossession of land, it is erroneous to treat the applicants as having withdrawn from the particular social group upon that dispossession.  That approach is erroneous as it assumes that it is reasonable to expect the applicants to accept their dispossession and live their lives differently: S395/2002 v Minister for Immigration [2003] HCA 71.

13. It is not entirely clear whether the dispossession of land is serious harm amounting to persecution.  In Kadiroglu & Ors v Minister for Immigration [1998] 1656 FCA Moore J was prepared to assume that the expropriation or confiscation of property is a matter founding a claim for refugee status under the Convention. The answer probably depends upon the circumstances. Where land is seized unjustly or unlawfully by a government or its agents (or where a government condones or approves of seizure by individuals using threats of violence) and the land provides the livelihood of the person dispossessed, and the seizure is part of a pattern of seizures based on race, religion, political opinion or targeted at an identifiable social group, in my view all of the elements needed to satisfy the test of persecution under the Convention and s.91R of the Migration Act are present.

14. It might be thought that the applicants’ claims, if true, simply reflect lawlessness in Zimbabwe and that the farm, if acquired under the Land Acquisition Act of Zimbabwe, was acquired by the imposition of a law of general application. Based upon the common public perception of the events in Zimbabwe that seems to me unlikely. On the contrary, the public perception is that there have been targeted attacks upon the farms owned by non-Africans and that the Land Acquisition Act has been applied in a racially and politically discriminatory way. That would have been a matter for the RRT to determine if it had considered the issue. The RRT failed to consider the issue and that failure constitutes jurisdictional error unprotected by s.474: SDAV v Minister for Immigration [2003] FCAFC 129.

1. I will grant relief in the form of orders in the nature of prerogative writs and a declaration.

2. Costs should follow the event in this case.  Only one issue was raised and it was relatively straightforward.  On a party/party basis I assess costs in the sum of $4,000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 May 2004