Refugee Status Appeals Authority
REFUGEE APPEAL NO. 2245/94
AT AUCKLANDBefore: R.P.G. Haines (Member)
Appearing for the Appellant: Mr Ujagar Singh
Appearing for the NZIS: No appearance
Date of Hearing: 30 September 1994
Date of Decision: 28 October 1994
This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, an Indian national of the Sikh faith born in the Punjab.
INTRODUCTIONThe unusual feature of this case is that it is the second time that the appellant has appealed to this Authority.
Briefly, the appellant arrived in New Zealand on 9 January 1990. His application for refugee status was not received by the New Zealand Immigration Service until 10 May 1991. The appellant was interviewed by the Refugee Status Section on 6 December 1991. By letter dated 26 March 1992, he was advised that his application had been declined. The grounds for the decision were that the appellant’s fear was not well-founded and that he could, in any event, relocate elsewhere in India. From that decision the appellant appealed.
The first appeal to this Authority was heard on 3 February 1994. In a decision dated 10 May 1994, the appeal was dismissed. The appellant received notice of that dismissal on 22 May 1994. The grounds for the decision were that the appellant’s case lacked credibility and, in any event, he could relocate.
On 27 May 1994, the appellant filed a second refugee application.
The second refugee application was declined by the Refugee Status Section in a letter dated 6 July 1994 on the narrow grounds that the appellant’s application did not meet the jurisdictional criteria stipulated by the Terms of Reference for the lodging of a second application. From this decision the appellant has appealed. It will be referred to as his second appeal.
The second appeal was heard on 30 September 1994 by a differently constituted Authority. The appellant was represented by Mr Ujagar Singh who, it would seem, has become the appellant’s advisor since the delivery of the decision on the first appeal. Prior to that, the appellant was represented by an Auckland barrister.
The two principal issues which are raised by this appeal are:
1. Whether under the Terms of Reference which came into force on 30 August 1993 the Authority has jurisdiction to hear this second appeal.
2. Whether the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention.
The Authority has decided that the answer to the first issue is “Yes” and that the answer to the second is also “Yes”.
To understand the Authority’s analysis of these issues, it is necessary to examine in greater detail the appellant’s original claims and the case as presented at the second appeal hearing.
THE FACTUAL BASIS OF THE APPELLANT’S FIRST REFUGEE APPLICATIONThere was a considerable effluxion of time between the lodging of the appellant’s refugee application on 10 May 1991 and the hearing of the first appeal on 3 February 1994. During this time the appellant supplemented his original statement by seven further documents. In the interests of brevity, reference will be made only to the appellant’s case as presented at the first appeal hearing.
In general outline, the appellant’s case is that he comes from a predominantly Sikh village situated in the district of Kapurthala where the family own sixteen acres of land. He has an elder brother, [HS], and an elder sister who has residence status in New Zealand. At the end of 1987, [HS] went into hiding to avoid arrest by the Punjab police who suspected him of being a member of the All India Sikh Students Federation (AISSF).
In 1988, when the appellant was seventeen years of age, following his matriculation, he began attending a college in Kapurthala. There he joined the AISSF. His activities were confined to taking part in meetings, strikes and rallies.
At first, the appellant’s involvement in the AISSF did not bring him into conflict with the police. However, in April 1989, while working on the family farm he was approached by two of his college friends who were also members of the AISSF. They were in the company of two older men aged between twenty-five and thirty years. They were introduced to the appellant as Federation members from Amritsar. There was nothing unusual about the appearance or dress of the four persons and none of them were carrying weapons. They asked the appellant for food, drink and accommodation. They left the following morning.
In June 1989, police officers arrived at the family home in search of the appellant. He was away at the time visiting relatives. The appellant’s father was taken to the police station where he was assaulted by being kicked and slapped. He was told to present the appellant to the police or the family home would be burnt down. The father was held by the police overnight.
Three to four days later, following the appellant’s return home, he attended at the police station in the company of his father and members of the village panchayat. The appellant was detained at the police station for three days and two nights. During this time he received sustained beatings of some severity and was given neither food nor water. He was questioned intensively by the police about the four men who had stayed overnight in the family home and his own activities in the AISSF. He was only released after his father and members of the panchayat intervened. A bribe of Rs 20,000 was also paid. On his release the appellant was confined to bed for a month recovering from his injuries. During this time he was treated by the village hakim.
The family determined that it was unsafe for the appellant to remain in the Punjab and through an agent a passport was obtained. It was issued on 23 June 1989. In the period August 1989 to December 1989 the appellant left home and stayed with various relatives in a radius of twenty-five to one hundred kilometres distance from his village. After his aunt in New Zealand provided a sponsorship, the appellant was issued with a New Zealand visa on 27 December 1989 and, as mentioned, arrived in New Zealand on 9 January 1990.
In support of his case, the appellant has produced the following documentation:
1. An aerogramme dated 12 October 1989 from his father to his New Zealand aunt requesting that she arrange a sponsorship for the appellant “as soon as possible”. In this aerogramme the appellant’s father outlines the events of June 1989. He refers to his arrest, the beating and the order that he present the appellant to the police station. He describes the surrender of the appellant to the police, his detention and the fact that upon the appellant’s release on the third day his (the appellant’s) arms and legs were swollen and that he was confined to bed thereafter for a long time. He expresses the fear that were the appellant to be arrested again, he would be killed by the police. Mention is also made of the appellant’s release being secured by payment of a bribe of Rs 20,000. The postmark on the aerogramme is clearly visible and the document contains every appearance of being genuine.
2. A letter dated 21 May 1991 from the village sarpanch to the appellant informing him that he (the appellant) has been implicated in cases under sections 212 and 216 of the Indian Penal Code and sections 3 and 4 of the Terrorist and Disruptive Activities Act (TADA). These references are explained in a Refugee Status Section file note at page 50:"s 212 of IPC is for the offence of harbouring an offender (i.e. screening offender from legal punishment). s 216 of IPC is for the offence of harbouring offenders who have escaped custody or whose apprehension has been ordered.The letter from the sarpanch advises the appellant that the cases are still pending in the “Judge Designated court, Kapurthala, Punjab”. The appellant is advised not to return to India.
A/N is also charged under 3/4 TADA(P) Act. (Terrorist and Disruptive Activities (Prevention) Act.) This section 3(4) relates to harbouring terrorists and is punishable with imprisonment for not less than five years and may be extended to life imprisonment.”
3. An aerogramme dated 20 December 1991 from the sarpanch to the appellant in response to a request made by the appellant for details of the charges laid by the police. This request was made by the appellant following an enquiry made by the interviewing officer at the Refugee Status Section on 6 December 1991. The sarpanch advises that he went to the police station to request the officer-in-charge to provide him (the sarpanch) with a statement in writing of what the charges against the appellant were. The officer declined to give this information in writing, saying that it was necessary for the appellant to first surrender himself. Again, the appellant is advised not to return to India. The aerogramme is written in Punjabi.
4. A letter (in English) dated 24 December 1991 from the sarpanch to the appellant. This document merely provides in English the information contained in the aerogramme and was obviously intended to save the appellant the difficulty of obtaining in New Zealand a translation of the aerogramme dated 20 December 1991.
5. A statement by the village sarpanch dated 13 July 1992 confirming that since the appellant’s departure for New Zealand, police enquiries at his family home had continued.
6. An affidavit by the appellant’s mother recording that on 3 February 1993, the family home was raided by a party of police and the appellant’s parents questioned as to the whereabouts of the appellant. In this raid, two other young men from the village had been arrested by the police.
7. A statement from the sarpanch dated 6 March 1993 confirming that a police raid had taken place on 3 February 1993, that there had been a search of the appellant’s home, that the appellant’s parents had been questioned as to the appellant’s whereabouts and that two other young men from the village had been arrested. The sarpanch records that neither man had yet appeared before a Court and it was suspected that they had been killed by the police.
8. An undated aerogramme post-marked 27 September 1993 from the appellant’s mother to her sister-in-law who is the appellant’s paternal aunt. In this letter the appellant’s mother describes how she and her husband had returned home from her sister’s daughter’s marriage to find the police waiting for them. They were questioned as to their activities. The police were particularly interested whether the appellant had also attended the wedding. When they were told that he had not, the appellant’s mother and father were threatened by the police and angrily questioned as to the appellant’s whereabouts. The police also questioned the parents as to the whereabouts of their other son, [H]. The appellant’s aunt is asked to look after the appellant and to advise him not to return to India.
The appellant’s case on his first application was that in view of his treatment at the hands of the police in June 1989 and the evidence of continued police interest in him, there was a real chance of persecution were he to return to the Punjab.
At the Refugee Status Section interview, the appellant was accepted as a credible witness but his application was declined on the basis that he had remained for six months in the Punjab without being arrested; he had not produced documentary evidence to suggest that warrants for his arrest had been issued and it was expected that he could avoid further arrest by living in other parts of India. The decision did not expressly take into account the fact that during the six month period in question the appellant was in hiding. The finding that he had been able to avoid further arrests is therefore of little relevance. This Authority has on previous occasions held that a person successfully in hiding cannot be said to be experiencing no further problems at the hands of the police: Refugee Appeal No. 167/92 Re RS (18 December 1992). In addition, it is not always possible for documentary evidence to be obtained to establish the existence of a warrant of arrest. Therefore, the failure to produce such a document does not necessarily indicate that one does not exist.
The appellant’s case on the first appeal failed on the following principal grounds:
(a) The appellant had claimed at the appeal hearing that his brother had gone into hiding at the end of 1987. The memorandum in support of the appeal, however, was so worded as to suggest that the appellant had only in recent times been told this fact. It stated that the brother was “now in hiding”. Attention was also drawn to the fact that neither in his first statement nor at the Refugee Status Section did the appellant mention the fact that his brother had been in hiding since 1987. Confronted with this, the appellant at the first appeal hearing attributed his failure to mention this information to the fact that he had been upset at the time of the Refugee Status Section interview.
At the second appeal hearing the appellant gave the same answer. He also stated that the reference in the appeal memorandum to the brother “now” being in hiding was a misunderstanding between him and his counsel. He had not meant to convey the impression that the brother had only recently gone into hiding.
(b) Another aspect of the case highlighted in the first appeal decision is the fact that whereas the memorandum refers to the appellant’s father looking after sixteen acres of family land, the appellant claimed at the first appeal hearing that the farm had been leased out since December 1992.
At the second appeal hearing this apparent anomaly was fully explained. In essence, his father still owns the land but someone else works the farm. The profit from the produce is shared with the father on a fifty-fifty basis.
(c) As to the several documents produced by the appellant, they were described as having “an air of sameness about them” and their contents were rejected. No analysis, however, was made of the documents or of what was said to be their “sameness”. cf. Bains v Canada (Minister of Employment and Immigration) (1993) 20 Imm LR (2d) 296, 300 (FC:TD) and Ioda v Canada (Minister of Employment and Immigration) (1993) 21 Imm LR (2d) 294 (FC:TD).
(d) The first decision of this Authority also remarked that it was unusual that no- one had informed the police that the appellant was in New Zealand as this would have obviated the need for the frequent visits to the family home. The view taken was that it was unlikely that the police would have a continuing interest in the appellant. This, however, is very much a speculative judgment, the validity of which would depend on how much was known of conditions in the home country and of the family’s assessment of the amount of information which could safely be provided to police officers who were clearly hostile to the appellant. These issues are not explored in the first appeal decision.
(e) Also relied on was the appellant’s reluctance to tell anyone of the treatment he had sustained at the hands of the police. Adverse mention was made of the fact that the appellant’s first statement, while mentioning a beating at the hands of the police, gave no detail.
The Authority’s first decision does make reference to the fact that at the Refugee Status Section interview, when describing his treatment at the hands of the police, the appellant broke down. However, the significance of this fact is not dealt with.
Clearly the appellant finds the recounting of the incident painful. The experienced interviewing officer recorded (at page 38 of the file):“At this point he began to cry and asked “please don’t ask me anymore questions about police torture”. I then asked if he would prefer a male officer to talk to and he said he didn’t want to tell anyone.”At the conclusion of the interview, the officer suggested to the appellant’s representative that the appellant consult a forensic medical specialist. The appellant’s recorded reaction was that he was “a little nervous about this” but he was advised by the interviewing officer that he did not have to if he did not wish to. A decision on the refugee application was in fact delayed to enable the appellant to obtain a medical report, but for reasons which have never been explained, no such report was in fact obtained. Significantly, the appellant’s credibility was accepted by the interviewing officer.
While the appellant’s failure to obtain a medical report is regrettable, his failure to do so and his reluctance to recall his treatment at the hands of police do not necessarily indicate an absence of credibility. Much will turn on the tribunal’s assessment of the appellant’s overall credibility. It would certainly not be unusual for a victim of police brutality to be reluctant to talk about the experience even while appreciating the need for the information to be disclosed.
RECENT DEVELOPMENTSAccording to the statement accompanying the second refugee application, the appellant’s family learnt on 15 April 1994 that their son [H] had been killed by police in the Jalandhar district one week earlier. They received this information from three armed youths who visited the family home one evening and who claimed that [H’s] death had been in a false encounter with police. The following day the appellant’s father, along with the panchayat, went to the police station in order to verify the death of [H]. The officers refused to give any information but detained the appellant’s father overnight and questioned him as to how it was that he knew that [H] had been killed in an encounter. He (the father) was accused of having contact with terrorists. The appellant’s father was also warned that the appellant was still wanted by the police. When the police were told by the father that the appellant had been in New Zealand since 1990, the police gave the father two months to produce the appellant, either to a Court or to the police. The father was only released after the intervention of a member of the Punjab legislative assembly.
It is also said that on 12 May 1994, an announcement was made by the police in the family village that the appellant was required to surrender himself to a Court within two months.
The appellant claims that this information was conveyed to him and his sister in telephone calls made by his father on 21 April 1994 and 13 May 1994.
Mr Ujagar Singh told the Authority that following the lodging of the second refugee application, the appellant received from his father a letter confirming the foregoing together with a local newspaper, the Sandhya Chirag, in which the death of [H] is reported. In response to an Immigration Service request dated 20 June 1994 for all further information to be produced, Mr Ujagar Singh attended the Refugee Status Section on 29 June 1994 and delivered to an officer there the original letter (in Punjabi), a translation, the original newspaper article and a translation.
None of these documents reached the file though subsequent enquiries made by the Refugee Status Section at the request of the Authority have established that the documents were in fact delivered as claimed. They cannot now be located.(1) Fortunately, Mr Ujagar Singh retained copies of the respective English translations and these were made available at the second appeal hearing.
The English translation of the newspaper article reads:“Three Dead in Police EncounterOn 7 April 1994 near the river Byas, the police party was checking the vehicles. When police party signalled a vehicle to stop then they fired at police. In encounter 3 militants were killed by the fire of police. According to police sources, among the dead one is [HS] resident of village [D] who was absconder for the last seven years. Other two killed are mentioned as [MS] and [KS].”The village referred to is the appellant’s home village.
In addition to relying on these recent developments (namely the death of the appellant’s brother in a police encounter, the detention of the appellant’s father and the demand by the police that the appellant surrender himself), Mr Ujagar Singh also relies on the recent Human Rights Watch report, Dead Silence: The Legacy of Human Rights Abuses in Punjab (May 1994) and submits that there is a real chance of persecution if the appellant returns to India.
ASSESSMENT OF THE APPELLANT’S CREDIBILITY
In order to decide the jurisdictional issue, a determination must be made as to the appellant’s credibility and as to the acceptance or rejection of the facts he advances in support of his case. In view of the unfavourable credibility assessment made at the first appeal, the Authority on the second appeal went to some lengths to test the appellant’s case and to explore credibility issues from a number of different angles.
This exercise was facilitated by the fact that this Authority had access to information that was not available to the Authority at the first hearing, namely the Human Rights Watch report, Dead Silence: The Legacy of Human Rights Abuses in Punjab (May 1994).
The Authority has come to the conclusion on the facts as now presented that the appellant is a credible witness and his account is accepted in its entirety. Particular account has been taken of the following:
(a) The appellant is a relatively young and immature person. He has been deeply affected by his experiences at the hands of the Punjab police. Recounting those experiences is a very painful exercise for him and this Authority considers that nothing adverse can be read into his failure to give a detailed, blow-by-blow account of the beatings in his first statement and at the Refugee Status Section interview. The memorandum submitted in support of the first appeal hearing did contain ample detail. It is consistent with well-documented methods of torture employed by the Punjab police.
(b) The appellant’s failure (until the first appeal hearing) to mention the fact that his brother went into hiding at the end of 1987 is unfortunate, but due account must be taken of the fact that the appellant’s first statement is an extremely brief document, being just under one typewritten page in length. He was asked at the Refugee Status Section where his brother lived and is recorded as saying “brother in Punjab”. It is accepted that this was an opportunity for the appellant to volunteer the fact that his brother was in hiding. However, allowance must be made for the fact that where asylum seekers are dealing with an interviewer across a language barrier, important information is frequently not communicated unless a specific question is directed to the issue. Again, each case will turn on its own facts as to whether a failure to mention a particular fact is significant in the credibility context. In the context of this case the important facts are that the information did eventually emerge and second, the newspaper report of the brother’s death does specifically mention that the police alleged that the brother was an “absconder for the last seven years”. This is entirely consistent with the appellant’s account.
(c) Given the recent record of persistent and widespread human rights abuses by the Punjab police, this Authority does not find it unusual that the family provided the police with no information about the appellant. Nor are the continued police visits to the family home unusual in the Punjab context. The Human Rights Watch report amply documents the zealousness with which the authorities pursue persons suspected of sympathizing with Sikh extremists.
(d) As to the documentation comprising the aerogrammes, letters and statements, this Authority finds them uncontrived and persuasive. It respectfully disagrees with the earlier stigmatization of “sameness”.
(e) The letter from the appellant’s father and associated newspaper article said to be delivered to the Refugee Status Section on 29 June 1994 by Mr Ujagar Singh are accepted to exist. In these circumstances reliance can be placed on the respective copies of the English translations.
Overall, the appellant, an immature and emotional individual, has found himself caught up in events which he barely comprehends and which have left him emotionally traumatized. The inconsistencies in his account are attributable to the fact that he does not have an ability to express himself fluently. He has, however, given his account consistently.
The first issue is whether the Authority has jurisdiction to hear the appeal.
THE JURISDICTION OF THE AUTHORITY TO HEAR THE APPEALThe Refugee Status Section and this Authority operate under Terms of Reference which came into force on 30 August 1993. Under Part 1, the Refugee Status Section has jurisdiction to consider a second or further refugee application provided the criteria specified by paragraph 3 are met. Paragraph 3 provides:“A person who has previously had a claim to refugee status finally determined by the Refugee Status Section or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Section, unless since the original determination, circumstances in the claimant’s home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim.”Under Part 2 of the Terms of Reference, the Refugee Status Appeals Authority has jurisdiction to hear an appeal where the Refugee Status Section has concluded that the criteria stipulated by paragraph 3 have not been met. Paragraph 5(1) of the Authority’s Terms of Reference confers power on the Authority:“(f) To determine an appeal, by a person who has made a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant’s home country have not changed to such an extent that the further claim is based on significantly different grounds to the original claim.”Whether there is jurisdiction in the particular case to entertain a second refugee application is a question of mixed fact and law. In most cases, the second application will have to be heard in its entirety before a determination under paragraph 3 can be made. Once the facts of the second claim are explored, and findings of credibility and fact made, it is anticipated that little difficulty will arise in practice in the interpretation and application of paragraph 3.
We stress two points only. First, fine semantic and philosophical distinctions are to be avoided. The case must be looked at in the round and with the humanitarian purpose of the Refugee Convention in mind. The Authority would not be attracted by a submission that an individual who can now establish a well-founded fear of persecution is to be rejected as a refugee and refouled simply because of the adoption of a narrow interpretation of the Terms of Reference and an abstruse, if not meaningless, definition of what constitutes a change of circumstances or what constitutes “significantly different grounds to the original claim”.
Second, we do not overlook the fact that the refugee determination system can be abused by the spurious submission of repeat claims to which only cosmetic changes have been made. In this respect, a mean must be found between too broad an interpretation on the one hand and too narrow an interpretation on the other.
Finally, we repeat what we said in Refugee Appeal No. 2254/94 Re HB (21 September 1994) at 23:“The difficulty is that all too often the facts on which a refugee application is based are in a state of flux. Thus, a fear of persecution may at a particular point in time be found to be not well-founded because the agent of persecution is unaware of the particular claimant’s circumstances, activities or beliefs. However, the situation can change suddenly and dramatically. An agent of persecution who in one moment may have no interest whatsoever in an individual, may in the next, upon receipt of further information, determine that the individual is to be detained and severely punished. Thus, whether a fear of persecution is well-founded at any particular point in time depends on an assessment of risk in the country of origin. That assessment must necessarily focus on the attitude of the agent of persecution. As the attitude of the agent of persecution changes, so will the strength or weakness of the claimant’s case. These changes are unquestionably:The essential issue to be addressed is whether since the original determination, i.e. the first appeal:“... circumstances in the claimant’s home country ....”The next issue is whether a claim which is initially determined not to be well-founded can be resubmitted upon the receipt of evidence establishing that the agent of persecution, previously uninterested in the claimant, has undergone a change in attitude and embarked upon a course to locate and persecute the individual. Would a further application for refugee status be said, in these circumstances, to be:“... based on significantly different grounds to the original claim.”Again, the Authority is of the clear view that an affirmative answer must be given. Were it otherwise, it is difficult to envisage circumstances in which a second application for refugee status could ever meet the requirements of the Terms of Reference. Nor can any policy grounds be discerned for excluding a second claim for refugee status where a previously benign state agent turns on an individual with persecutorial intent.”
1. Circumstances in the applicant's home country have changed
2. To such an extent that the further claim is based on significantly different grounds to the original claim.
For the appellant, it was submitted that the changes in circumstance were:
(a) The death of the appellant’s brother in April 1994.
(b) The detention of the appellant’s father in the same month.
(c) The announcement that the appellant is required to surrender himself to the Court or to the police within two months from May 1994.
(d) The recently formed Shiromani Akali Dal (Amritsar) has demanded a “separate Sikh area”. See the Canadian publication Charhdi Kala, May 5- 11, 1994.
(e) One of the rival claimants to power in Afghanistan, Gulbuddin Hekmatyar, had issued a press release recognizing “the Khalistan movement”. See Charhdi Kala, July 7-13, 1994.
Paragraphs (d) and (e) were said to provide a basis for a finding that there is now a civil war between Sikhs and Hindus and that the Punjab struggle has been internationalized. The Authority finds this contention untenable. It is based on the flimsiest of evidence and is imbued with a sense of unreality.
If a change of circumstances claim is to succeed, it must be based on the first three contentions, namely paragraphs (a), (b), and (c).
It is important to note that the Refugee Status Section implicitly accepted the truth of the claim that the brother has been killed by the police as well as the father’s account of subsequent developments in the Punjab.
The view taken by the Refugee Status Section, however, was that at the time of the first appeal hearing it was already known that the appellant’s brother had gone into hiding, as was the fact that the appellant himself faced police charges and was a wanted man. It was therefore concluded that the second refugee application was not based on significantly different grounds to the original claim.
In the Authority’s view this approach is far too narrow, if not semantic, and fails to address the central issue, namely whether on the new facts the appellant’s fear of persecution is now well-founded.
Any assessment of the appellant’s second refugee application must take into account recent country information. The following quotations are taken from Human Rights Watch, Dead Silence: The Legacy of Human Rights Abuses in Punjab (May 1993):
page 4-5“Those who were most at risk - who continue to be at risk - are young Sikh men who were members of one of the Akali Dal political parties, or other political or student groups, or whose relatives or friends were politically active. Amritdhari, or baptized Sikhs, those who subscribe to a strict interpretation of Sikh practices, have also been targeted. The families and acquaintances of suspected militants are particularly vulnerable, as they have been systematically targeted and arrested as a way of forcing suspected militants to identify themselves to the police. Sikhs who previously have been detained during sweep operations, even if they have never been charged, are also at risk. Those who have left Punjab, or who have attempted to relocate to other states in India to escape police persecution, may also be in greater danger because such efforts are construed as conclusive evidence that they are militants.”page 20-21“The second group of people targeted are young Sikh men suspected of collaborating with the militants or being sympathizers with the Khalistan movement. A police officer told us:At the time of Operation Bluestar in 1984 when an armed confrontation occurred between Sikhs and government forces surrounding the Golden Temple in Amritsar, a profile was developed of who was considered to be anti-government and pro-Khalistan. Based on that profile, young Sikh men between the ages of eighteen and forty, who have long beards and wear turbans, are considered to be pro-Khalistan. Whenever the police receive a report from an informant or any other individual that Sikh militants have visited the home of a Sikh family, the police are despatched to raid the home of that family. Pursuant to that raid, any Sikh male who fits the profile described above is arrested.Police persecution in Punjab has driven a large number of Punjabi Sikhs to seek asylum abroad. According to one of the police officers interviewed by PHR/HRW, those who are denied asylum and returned home face grave risks:In the light of this information, and while allowing that it reflects conditions in the Punjab in 1992 at the height of the government crackdown (Dead Silence: The Legacy of Abuses in Punjab (May 1994) 1), it does invite serious reconsideration of the Authority’s finding in the first appeal that continuing police interest in the appellant was “unlikely” and that young Sikh males were able to return to India undetected and to relocate in other states.Another group of individuals who are subject to police scrutiny is anyone who has returned to India after having been deported from the United States, Germany, Canada, England or any other country. Once a deportee reaches an airport in India, he is immediately placed in custody. In Delhi, all returning Sikh deportees are held in the Dhiar Jail. Upon incarceration, a wireless message is sent to Punjab enquiring whether the person is on the police blacklist for political activities. I personally know of an incident in which five Sikh deportees were being held in detention in Bombay after returning from deportation. A wireless message was received at my station, as well as all other stations in Punjab. The message identified the individuals and invited any local station to come and get them if they were wanted. I later learned that all five were killed by the authorities in “police encounters”.”
The conclusion reached is that the new evidence that has been produced (the death of the brother, the detention of the father, the renewed interest in the appellant by the police), added to the new country information, does satisfy the requirement in the Terms of Reference that:“Circumstances in the claimant’s home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim.”To underline this conclusion it should be indicated that on the facts, the appellant satisfies all of the requirements for the grant of refugee status. It would be absurd if in these circumstances he were to be denied recognition of refugee status through a narrow and begrudging interpretation of paragraph 3. It is to be remembered that the refugee definition is declaratory, not constitutive: UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 28. Were a refugee to be denied recognition of his or her status by a narrow interpretation of paragraph 3, this could well result in New Zealand being be in breach of the non-refoulement obligation contained in Article 33 of the Convention.
It only remains to explain the basis of the holding that the appellant is a refugee.
THE INCLUSION CLAUSE ISSUESThe Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”The four principal issues in this appeal are:
1. Is the appellant genuinely in fear?
2. Is it a fear of persecution?
3. Is that fear well-founded?
4. Is the persecution he fears persecution for a Convention reason?
In this regard we refer to our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).
In the same decision this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.
ASSESSMENT OF THE APPELLANT’S CASEAs previously mentioned, the appellant’s credibility is accepted and the Authority finds that he has a bona fide subjective fear of persecution. It is further accepted that fear of further torture at the hands of the police and death by way of extra- judicial execution in a “false encounter” amount to persecution.
It is also accepted that the persecution feared by the appellant is for a Convention reason, namely his actual or imputed political opinion. It is clear that he has been identified as a sympathizer with the militants. As has been seen from the quote taken from Human Rights Watch, Dead Silence: The Legacy of Abuses in Punjab (May 1993) 20, persons similarly situated to the appellant are considered by the police to be anti-government and pro-Khalistan.
The only issue left for determination is whether the appellant’s fear is well-founded. The Authority accepts the veracity of the information concerning the death of the appellant’s brother, the detention of his father and the renewed demand for the appellant to surrender himself to the authorities. These developments when viewed against the background of what is now known of human rights violations by government forces in Punjab, lead to only one conclusion. There is more than a real chance that on the appellant’s return to India he will be arrested at the airport and once his name is broadcast to police stations in Punjab, he will be delivered into the hands of the authorities for detention and ill-treatment. On the facts, the issue of relocation does not arise.
CONCLUSIONIn summary, the conclusions of the Authority are as follows:
1. The appellant holds a bona fide subjective fear of returning to India.
2. The harm feared by him is of sufficient gravity to constitute persecution.
3. There is a real chance of the feared harm occurring were he to return both to India and to the Punjab.
4. The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his political opinion (actual or imputed).
For these reasons the Authority finds that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.
“R P G Haines”
1 The contents of the documents, insofar as they were relayed in the appellant’s second refugee application, were taken into account by the Refugee Status Section.