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Paul (Surinder) v Refugee Status Appeals Authority

High Court Auckland M109/97
27 August 1997; 27 August 1997
Morris J

Judicial review - Reasonableness - Specialist tribunal

Relocation - Internal flight alternative

In 1989 the plaintiff, a citizen of India, arrived in New Zealand and in 1990 applied for refugee status. In 1993 when his application was dismissed he appealed to the Refugee Status Appeals Authority (RSAA). In 1995 the appeal was dismissed, the RSAA holding that the appellant could relocate, as he could genuinely access meaningful state protection in India, and it was reasonable in all the circumstances to expect him to do so. The plaintiff sought judicial review of the decision of the RSAA.

Held: On the evidence, the RSAA could have come to no other conclusion than the one it reached. There was no evidence that the plaintiff would be of any interest to authorities outside his home area. The RSAA is a specialist tribunal and due regard must be had to its experience (see paras [3], [8] & [9]).

Application dismissed

Counsel
S D Patel for the plaintiff
B H Dickey for the defendants

MORRIS J [1] The plaintiff seeks a review of a decision of the Refugee Status Appeals Authority given on 7 December 1995 refusing him refugee status. In support of the application he has filed an affidavit and I have had put before me a transcript of the evidence and hearing before the Authority and a copy of its decision. I have also had the benefit of extensive submissions from Mr Patel and Mr Dickie.

[2] The statement of claim as filed raised three grounds on which I was asked to rule the decision wrong but two of these have been abandoned and the application has proceeded on the basis the decision of the Authority was unreasonable and was one which no reasonable tribunal could come to on the evidence before it. There is no challenge to the law as stated and applied by the tribunal in its decision and therefore it is necessary and has been necessary for me to consider the evidence placed before it as drawn to my attention by counsel and the findings of fact made by the tribunal in its judgment.

[3] I remind myself in considering the application this tribunal has, what can fairly be described as a specialist tribunal which no doubt has had considerable experience in the field in which it operates and I must therefore pay due regard to such experience in considering the submissions made before me.

Background

[4] I gather the plaintiff arrived in New Zealand on 2 August 1989 from India. He is an independent citizen who prior to his arrival in this country lived in the state of Punjab. He lived at his parent's home with his wife and three infant children. He is a Hindu by faith. Prior to his leaving India, he suffered persecution from the police because of his imputed political opinions. He was also threatened with execution by Sikh extremists who demanded food and shelter from him on at least one occasion. I gather from the document supplied by Mr Patel, on the day following his having to give food and shelter to these extremists he was forcibly taken into police custody and accused of sheltering and harbouring Sikh terrorists. He remained in police custody for two days during which time he was interrogated and tortured and was released only after, as I understand it, his father-in-law made payment - a euphemistic name for a bribe - to the police. His injuries suffered while in police custody required hospitalisation and subsequent to his release he hid for four months until arrangements were made for him to travel to New Zealand. I understand from Mr Patel during these four months the police on at least three, if not more, occasions made enquires as to his whereabouts but he was able to evade capture by moving about the area of his 'village staying with relatives and friends but not moving beyond a radius of 100 miles from his home village. The steps taken were such as to enable him to avoid detection. It is unclear whether this was because of the minimal interest by the police or his ability to hide successfully. It is probably a combination of both.

[5] Subsequent to his arrival in New Zealand, the plaintiff applied for refugee status on 17 October 1990. He was interviewed by a Refugee Status branch employee in July 1993 and on 10 August 1993 a decision was given declining his application. The appellant appealed to the Refugee Status Appeals Authority ("Appeals Authority") on 2 August 1993. The hearing of his application came before the Appeals Authority on 25 July 1995 and was, as I have said, refused on 7 December of that year.

[6] The Appeals Authority judgment expands over no less than 12 pages. It accepted the facts as I have outlined them and in particular the plaintiff's claims of police arrest and beatings. It accepted there was what one can term an informant in his home village who no doubt was the cause of the police being informed of his whereabouts and the bringing of the police to his home. The Appeals Authority accepted the plaintiff's fear was genuine. They were of sufficient gravity to constitute persecution and fell within the grounds recognised by the Convention on Refugees. This is not disputed by the respondents to this appeal. The sole issue is whether the Appeals Authority was justified in finding the plaintiff could genuinely access protection which was meaningful by relocating elsewhere in India and concluded in all the circumstances it was reasonable to expect him to do so. The Appeals Authority accepted if the plaintiff were to return to his home village, his return would be reported to the police by an informer and accordingly the police interest in him would be rekindled and could result in his apprehension, interrogation and further maltreatment. But it went on to say this:

"We consider that as an Ad Dharmi of the Hindu faith there is no reason why meaningful protection by the state would not be available to this appellant if he were to relocate elsewhere in India. The appellant's counsel did submit, in the memorandum filed before the hearing of this appeal, that the appellant "believes that if he were returned to India he would be detained the moment he arrived at the airport". No basis for such belief was advanced . We are aware of the report of the Human Rights Watch and Asia Physicians for Human Rights Group entitled "Dead Silence - The Legacy of Abuses in Punjab" and published in 1994. In this report it was suggested that Sikhs deported to India after absconding can be subjected to a wireless network check at Delhi airport through police stations in Punjab and, if the subject's name is on a police black list then he could be returned in custody to a police station in his home district where he could face further police prosecution.

This appellant, however, is not a Sikh, nor does he have the appearance of a Sikh. There is no evidence to suggest that he would be perceived, at Delhi airport, to have been deported. Nor would he be perceived to be a person whose circumstances would require that he be investigated and questioned. This aspect of that report accordingly has no relevance to this case. We therefore conclude that the appellant has not established a case on which we could find that he is unable genuinely to access domestic protection which is meaningful by relocating elsewhere in India.

The remaining issue therefore is one as to whether or not it is reasonable to expect the appellant to relocate. In this regard the following factors of the appellant's case are relevant:

1. In the six years since the one isolated instance of persecution by the police of this appellant, their attempts to find him have been localised and routine, rather than wide-reaching and relentless.

2. We accept that the appellant has been subjected to severe and brutal treatment which resulted in serious internal injury and required surgery for the abscess which developed. Recovery and recuperation took two months. We have noted, however, that this episode was an isolated one which took place some six years ago. It is the only incident of police maltreatment which the appellant suffered at the hands of the authorities. There is no evidence before the Authority which would suggest that such an event has had a major psychological impact on the appellant, of a long-lasting nature, nor that there is any important degree of permanent disfigurement, pain, or disability which resulted.

3. The appellant is an educated man with a university degree. He speaks Hindi and English as well as Punjabi. He held substantial employment as a storekeeper in a leather factory. He would accordingly be better qualified and placed than many to re-establish himself in a new environment. In this regard, we note that the appellant has 10 members of his extended family who live in India. He also has a married sister. We therefore consider that the appellant would have available to him, at the very least from one of his family members, any support or assistance he may require to start a new life elsewhere in India.

After careful consideration of all of these factors and mindful of the presumption that a state will protect its nationals this Authority concludes that a case has not been established upon which we can find that this appellant could not access domestic protection which is meaningful by relocating elsewhere in India, or that it would be unreasonable to expect him to do so."

[7] Having made these findings the Appeals Authority concluded:

"1. The appellant has a genuine fear of both the terrorists and the police.

2. In each case the harm feared is of sufficient gravity as to constitute persecution.

3. The harm feared in each case relates to a ground recognised in the Convention, namely the political opinion imputed to the appellant by the terrorists and the police.

4. In the case of persecution by terrorists, the fear is not well-founded.

5. In the case of persecution by the police, the fear is well-founded as to part only of the country or origin, namely the appellant's home district.

6. The appellant can genuinely access protection which is meaningful by relocating elsewhere in India and it is reasonable in all the circumstances to expect him to do so".

[8] Mr Patel accepts there is nothing in the notes of evidence to contradict any of these findings but has asked me to draw the inference that the informant would be active and would learn of the plaintiff's return to India when the plaintiff contacted his wife and children and would then contact the police and thus leading to his further arrest and interrogation. He submits the Appeals Authority, in coming to its conclusions, failed to take such a possibility into account although as I pointed out to him, no such submission appears to have been made to the Appeals Authority and one wonders if it was worth anything, why it was not made known to the Appeals Authority by the plaintiff's then counsel. Although the submission was not made to the Appeals Authority, I have considered the evidence to see whether I myself could conclude there was anything to justify such a submission. I can find nothing. It is accepted India is a vast country. It has many millions of citizens. This plaintiff was able to evade arrest and detection in an area where he was known for a period of two months and within a radius of some 100 miles of his home village. There is simply nothing to suggest, as the Appeals Authority has indeed indicated, the police would pay any attention to him at all or indeed the Authorities would pay any attention to him at all in any part of India apart from the immediate vicinity of his home village.

[9] In my view on the evidence before it, the Appeals Authority could come to no other conclusion but the one it reached. I would have come to the same conclusion. The application is accordingly dismissed. In the circumstances I make no order as to costs.

Solicitors for the plaintiff: Sandringham Law Centre (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)