Can white South African farmers be refugees?

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Recently the Minister for Home Affairs has confirmed he still wants to provide humanitarian visas to 'persecuted' white South African farmers. Irrespective of any political issues for this concern for farmers in South Africa from one racial group, there are a number of legal hurdles they could face in order to meet the strict definition of refugee in Australian law.

Windmill on South African farmLet us consider the (hypothetical) case of Mr Hansie, a farmer from South Africa who is racially a Caucasian. He arrives in Australia as a visitor to visit the Gold Coast for the Commonwealth Games. Once here he seeks advice about lodging a protection visa.

He states that his farm is fairly isolated, and his wife and children live there, together with some local workers. The farm does reasonably well, he and his family are financially well off, and he makes sure his workers are properly paid.

Only last week, two men came to him and threatened him if he did not give the farm to 'African people'. His neighbour was attacked the week before by, Hansie thinks, the same men; he was left badly injured and is now in hospital. Hansie contacted the local police but they said they could do nothing because they were under-resourced, and advised him to get his own private security.

In order to meet the definition of refugee in Australia, Hansie must prove he has a well-founded fear of persecution for one or more of the five Refugee Convention reasons — race, religion, nationality, particular social group or political opinion.

There are other hurdles in Australia — such as s36(3) which prevents a grant of a protection visa if the person has a right to enter another country even temporarily. So if Hansie had a visitor visa for the UK in his passport, because his brother lives in London, his case could be refused just for that reason.

Let us assume his UK visitor visa has expired. The fear of persecution needs a link to the Refugee Convention — and here it could be race (Caucasian), maybe imputed political opinion (against the political groups wanting to forcibly acquire farms for redistribution), and maybe a particular social group of white or Caucasian farmers.

 

"It would be difficult to argue that Hansie could not work in some other occupation, even if he needs training or reskilling, if that meant he would not be targeted."

  

The race argument needs evidence that the main reason he was threatened was his race. The motivation of the persecutors needs to be established and it must link to the Refugee Convention. Let us assume that Hansie can prove the men said they were threatening him because he was a white farmer.

The particular social group of white/Caucasian farmer is more problematic, because the law says that if a person can modify their occupation or behaviour to avoid persecution, they should, unless the modification would 'conflict with a characteristic that is fundamental to their identity of conscience'. It would be difficult to argue that Hansie could not work in some other occupation, even if he needs training or reskilling, if that meant he would not be targeted.

Then he must prove his well-founded fear of persecution relates to 'all areas of the receiving country'. This means he must show he has a well-founded fear in all of the Republic of South Africa. If it could be shown that he could move to, say, Capetown and live there without fear of being targeted, that would be enough to refuse the case. Can Hansie move to Cape Town and work in another business — would that avoid risk for him?

So while there maybe evidence of persecution of Caucasian farmers because of their race, our law says that if he can reasonably relocate to another part of the country, then the case should be refused. Just because you can prove your fear is genuine is not enough to meet the refugee definition.

The 'all areas of receiving country' and relocation issues can be difficult to rebut. Many Afghan Hazaras are currently facing this in their case with Immigration or the Review Authority saying it is possible to for them to relocate or move to other parts of Afghanistan. The Hazaras argue this is not possible, but that is a common reason for refusal of their cases.

The potential legal hurdles outlined above all assume that Hansie is actually here in Australia to apply. What if he is not? Well, there are five humanitarian visas for people living overseas, but three of them require the person to be outside their country of origin. To be a refugee, you must be outside your country; there are no refugees still in their home countries.

Only the subclass '201 in-country special humanitarian' visa is relevant, unless the very rarely used 'emergency rescue subclass 203' visa is used. The in-country special humanitarian visa is rarely used. It was originally designed to help get El Salvadorians resettled away from the civil conflict then in El Salvador, without requiring them to leave the country, which was a dangerous thing to do.

For many years the subclass was dormant, then it was reused for resettling interpreters and those who worked with the Australian Defence Forces in Iraq and Afghanistan, after many interpreters in Iraq and Afghanistan where threatened.

Given this is the only current visa option for the Minister, it is remarkable that he wants to give priority to a group who have not been internationally recognised as being in great need of resettlement. Meanwhile, millions of Syrians continue to be displaced in neighbouring countries, and Iraqis as well. Not to forget the Rohingyas in Bangladesh and nearby countries, or the many who are fleeing violence and human rights abuses in Africa and parts of central Asia.

There will always be someone as or more deserving of resettlement. If you just accept the most needy, then you must provide significant support services to help people become established. Otherwise you are setting them up to fail as a marginalised group.

There is a valid argument that we should accept some skilled refugees because they may not need as much support here as the unskilled. Economics are not often a relevant fact in refugee assessment — you can be rich and meet the refugee criteria or poor and not meet the criteria. Accepting a mix of refugees with some able to become established quickly, would then enable more attention be given to those who really need it.

 

 

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and former member of the board of the IARC.

Topic tags: Kerry Murphy, refugees, asylum seekers, South Africa, farmers, Peter Dutton

 

 

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Existing comments

Memo to Peter Dutton: There's a richly talented South African, now South Australian, writer (Nobel Prize winner). There's a very successful children's author and artist from Vietnam. There are countless others who have moulded Australia into diversity. Don't make it so difficult for people, of any colour, to continue to make Australia what it can be. Sincerely, Pam.
Pam | 08 April 2018


Note the spin in language in the Humanitarian Program: refugee subclasses 200, 2001,203 require the applicant to be outside their country of persecution ie to have fled. The so called humanitarian subclass is a sponsorship connected to a link in Australia, usually a (former refugee) relative who beggars themselves to sponsor a family member... the replacement for what once was ‘refugee family reunion’ ’ In the spirit of the U.N. Convention. Humanitarian sponsorship shifts the financial burden of administrative and settlement costs to sponsors. The mindset of ministers and many officials confuses humanitarian needs and priorities with selected immigration of people with skills and attributes we need and want. Cherrypick got ‘real’ refugees along migrant selection lines has become common. A dilution of humanitarian principles.
Frederika STEEN | 09 April 2018


I don't agree. As almost every western country has discovered many of the "refugees" from the ME and Africa are young males and are coming for economic reasons and are not in fear for their lives. White South Africans are experiencing persecution and genocide under black rule. The farm massacres are appalling and vicious. http://www.radiofreesouthafrica.com/graphic-photos-farm-murders-south-africa/
Suzanne | 23 May 2018


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