Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70537/97
(RE-HEARING OF REFUGEE APPEAL NO. 70224/96)
AT AUCKLANDBefore: A B Lawson (Member)
Counsel for Appellant: Mr S Anderson
Representative for NZIS: No Appearance
Date of Hearing: 27 May 1997
Date of Decision: 14 August 1997
This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service, declining the grant of refugee status to the appellant, an Indian of the Sikh religion formerly of the State of Uttar Pradesh, India.
INTRODUCTIONThis appeal was first heard on 3 December 1996 and 17 December 1996 and the decision of the Authority was delivered on 20 February 1997. This decision will be referred to as the “First Decision” and it is recorded as Refugee Appeal No. 70224/96 Re GS (20 February 1997). In the circumstances about to be explained, the First Decision should be read with this present decision (hereinafter referred to as the “Second Decision”).
The necessity for a Second Decision arises from the fact that as appears at p 13 of the First Decision, leave was granted to counsel to obtain certain letters (with translations) and to provide them to the Authority, together with the envelopes, by 28 January 1997. The intention was that such material, if filed, would be taken into account in the First Decision. The First Decision was published on 20 February 1997 without the decision- maker being aware of the filing of any material pursuant to the leave granted. Counsel, Mr S R Anderson, forwarded a memorandum to the Authority dated 4 March 1997 in which he claimed that he had, in fact, delivered an earlier memorandum with two letters said to be from the appellant's wife pursuant to the leave granted. He stated that he was positive that he had filed the memorandum before 30 January 1997 and possibly prior to 28 January 1997. As a consequence of this, the Secretariat instituted a full search and inquiry within the Secretariat but no such memorandum or material could be discovered, nor could any officer recall the actual delivery. Mr Anderson then supplied a copy of the memorandum which he said he had filed in January along with a copy of one of the letters. Unfortunately, he had not retained a copy of the other letter and hence, no copy of that was available. The content of the letters will be referred to later in this Second Decision.
The question which arises is how the Authority is to deal with a final decision which fails to take into account post-hearing submissions filed by the appellant pursuant to leave granted at the hearing. In particular, does the Authority have jurisdiction to re-open an appeal in such circumstances?
The principal decisions of relevance are Refugee Appeal No. 59/91 Re R (19 May 1992) and Refugee Appeal No. 680/92 Re DS (27 February 1995). In the first decision the appellant sought to re-open the appeal on the grounds that subsequent to the delivery of the decision, fresh evidence had come to hand. The Authority held that in those circumstances, there was no jurisdiction to re-open the appeal and the Authority was functus officio. In the second decision, the Authority considered its approach to non- appearance cases and addressed the issue whether there was jurisdiction to re-hear an appeal dismissed on the grounds of non-appearance. It held (following Canadian caselaw) that there was such jurisdiction. The decision was based on the premise that an appeal can be re-opened where there has been a failure in natural justice. The Authority relied (inter alia) on the decision in Ridge v Baldwin  AC 40, 79, where Lord Reid said:"I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid."The point to be noted is that the House of Lords anticipated that the decision-maker would reconsider the whole matter afresh.
This passage was specifically adopted and applied by the Supreme Court of Canada in Chandler v Alberta Association of Architects  2 SCR 848, 863.
More recently, the very point at issue was considered in Ke v Canada (Minister of Citizenship & Immigration) (1995) 31 Imm LR (2d) 309 (FC:TD). In this case, after the tribunal had delivered its decision, it discovered that written submissions had been filed by the specified date. It therefore issued an addendum indicating that the submissions had been considered but the decision to dismiss the refugee claim stood. As will be seen from p 313 of the report, McKeown J was of the view that the error made by the tribunal in making a decision without considering the submissions of counsel tainted the whole proceeding so as to require the tribunal to start afresh. The tribunal had not started afresh by simply reading the submissions after the fact and then determining simply whether its own decision should be changed. Rather, the tribunal was required to start the matter afresh and at the very least, to discuss with counsel possible ways in which this could be done. Different alternatives were available. The guiding principle is that the person affected must have a proper opportunity to present his case. While McKeown J did not attempt an exhaustive enumeration of the ways in which the hearing can start afresh, it is clear that the following alternatives are available:
(a) A re-hearing de novo;
(b) A reconvened hearing at which counsel is invited to present the case in the light of the tribunal's earlier decision. This may on occasion need to embrace the possibility of the appellant giving further evidence and certainly includes counsel having an opportunity to make submissions on the case at large, including the first decision.
(c) In some cases, counsel may seek only an opportunity to make submissions as to why the first decision was erroneous with a view to influencing the second decision.
The Authority is of the view that the decision in Ke should be followed and applied in New Zealand. In the result, it would not be appropriate for the Authority in the present circumstances to consider the publication of an addendum to the First Decision in which the overlooked submissions are addressed.
Accordingly, on 18 April 1997 a formal letter was sent to Mr Anderson setting out the Authority's views on the matter and pointing out that, although the appellant had been unable to confirm that the documentation had in fact been delivered on or about 28 January 1997 (the last date granted by the Authority for that purpose) nevertheless, the Authority decided in fairness to the appellant that the appeal be reconvened. The Authority's letter indicated, also, that it desired to hear counsel's submissions as to how the matter should then be dealt with, i.e. by way of submissions, further evidence or a complete rehearing. The letter was in the following terms:
“The Authority has now fully considered your correspondence in this matter and I have been asked to convey the following advice:This Authority and Mr Anderson conferred on 8 May 1997 and it was then agreed that a hearing be re-scheduled at which the appellant was to be present and he was then to tender such further evidence as he or his counsel wished, and he would be questioned further by counsel and the Authority. At that reconvened hearing, counsel could also make submissions and the hearing was to be treated in all respects as a full re-hearing de novo and a further or Second Decision would then issue. In the meantime, the immigration authorities were instructed not to take any further action by way of removal procedures pending the publication of this further decision.
1. the Authority has no record of receiving your memorandum or the two letters referred to.
2. Full enquiries have been undertaken by the Secretariat amongst all staff members likely to be involved and no one can recall receiving or handling the documents. (sic).
3. The Authority notes that you appear unable to confirm that the documentation was delivered on or before 28 January 1997.
4. The Authority clearly nominated 28 January 1997 as the date for receipt and recorded the same in writing.
5. Despite the above the Authority has decided that in fairness to the appellant the appeal be reconvened. At the reconvened hearing the Authority will wish to hear Counsel’s submissions as to how the matter should be dealt with. This may be by way of submissions, further evidence or a complete rehearing. The appellant should be present and prepared to give further evidence.
6. However given the understanding held by the Authority that your client resides outside Auckland the Authority is prepared to hold a short preliminary meeting with you if that would assist you in reach a position on the matter. Following such meeting and then if necessary set a date later for formal hearing when the appellant would need to be present in Auckland. (sic).
I should be grateful if you would kindly let me have your response before 30 April 1997 in order that appropriate fixture arrangements can be made. In the event that no response is received from you by this date - a firm half day fixture date will then be set to reconvene the appeal.”
At the resumed hearing on 27 May 1997 a further memorandum of counsel was produced together with a further letter received from the appellant’s wife and a medical certificate. These documents will be referred to later in the course of this Second Decision.
RE-HEARING 27 MAY 1997At the commencement of the hearing, the Authority indicated that it did not intend to question the appellant in respect of any matters other than the material relevant to the issue concerning the harassment by the police of the appellant’s wife and children. However, it was made clear that if the appellant, himself or his counsel wished to traverse any other matter whatsoever, whether previously traversed in the first appeal decision or not, then counsel and the appellant were free to do so and the Authority would consider fully such material. Mr Anderson adopted the common-sense approach and agreed that this course was appropriate and if he wished to raise any other matters he would do so, otherwise it was agreed that the findings made in the first decision would stand and be read as part of this second decision unless otherwise stated. Accordingly, this Second Decision proceeds on the basis that it incorporates all the findings of fact and issues arising in the First Decision except insofar as they are specifically referred to in this Second Decision.
In the circumstances, therefore, this Second Decision has fortunately been able to be confined to the sole issue as to whether or not the appellant’s wife and children have been subjected to harassment and beatings by the police in the course of visits made by the police subsequently to the appellant’s arrival in New Zealand.
DOCUMENTSOne relevant document only was produced at the first Appeal hearing, i.e. a letter from the appellant’s wife dated 3 January 1996. [Referred to at page 11 of the First Decision]. That the letter made no mention of the wife having been beaten by the police and when it later emerged in evidence that there had been other letters received by the appellant from the wife alleging police brutality against her and the children leave was then granted for the production of such letters on or before 28 January 1997, as discussed above.
The following documents were produced by Mr Anderson on or after 5 March 1997 (when he realised the problem that had occurred):
(a) Letter from the appellant’s wife to the appellant stated to bear a postmark for 24th of either March or April 1996. Mr Anderson said that the original letter indicated that it had been posted on one or other of those dates. However, on the photocopy kept by Mr Anderson it was not possible to read the postmark date. Nevertheless, that letter has been accepted by this Authority as having been sent to the appellant in March or April 1996.
(b) The other letter which was stated to bear a postmark dated 15 July 1996 could not be supplied because no photocopy had been kept. However, in the memorandum sent to the Authority [undated but presumably in late January 1997], it was stated:“That letter confirms an arrival of the police at the farm and their search of the premises and lists their abusive language followed by a beating of the wife with sticks together with threats of further violence and the letter speaks eloquently of the wife’s fears and the effects on the children.” (sic).(c) Further documents were supplied at the hearing, namely:
1. Letter from the appellant's wife to the appellant undated but said by him to have been received on 4 or 5 May 1997 in the same envelope as the second letter referred to below from Dr [name deleted].
2. A letter or certificate from Dr [name deleted] dated 22 April 1997.
The material matters raised in the documents listed above were as follows:1. Letter from wife, said to have been received on 24 March or April 1996 (where relevant) reads as follows:“But here situation is much bad than previous. Now it seems that police has no limitations. Nobody is here to control them. When I was tortured by police continuously then I approached the village Sarpanch R Singh, to take him to local MLA Mr [X] ... explained the whole story to Mr [X] ... [X] tried to ignore us then he asked me to hand over you to the police ... then [X] said in reality we can’t do anything in such type of cases. Police never listen to anybody. I return back to home by bus, I could not sleep during the night. In the early morning there was police in front of our home. It seems that they were knowing everything what happened yesterday. They were shouting which stupid minister could save you. God can’t save you even from us saying that they pulled me out of home catching me from here, one man started beating me with a stick, kids woke up and start shouting for help. One policeman smashed the kids. He was saying they would eliminate the whole family. When I became conscious then I saw that I was lying on the bed and auntie was sitting beneath me. She told me the doctor had given me injection and a few tablets to take. I requested our aunt to send message to my parents so they can take us to their home. We can’t stay anymore here, nobody here to help us - during the next morning while I was half dead reached maternal home. I am here along with kids since for a week ... Now parent start feeling me burden on them.”2. The letter said to be postmarked 15 July 1996, [copy lost but counsel’s memorandum referred to its contents] stated:“That letter confirms on arrival of the police at the farm and their search of the premises and lists their abusive language followed by a beating of the wife with sticks together with threats of further violence and the letter speaks eloquently of the wife’s fears and the effects on the children.” (sic)3. Letter from wife said to have been received in envelope on 4 or 5 May 1997. The material parts of that letter read:“I received your letter 10 days before and came to know about you. I was unable to write a return letter quickly because I obtained a medical letter from doctor with great difficulty. Doctor was not ready to give any certificate about my health and treatment undertaken by him. He is also afraid of police. When I was injured he was not ready to give any treatment but he admitted me when his wife convinced him to do this. When I requested him to give certificate about my injuries and treatment he became angry and said 'now you want me to be bullied by police’. He stood up from his chair and refused to give me any certificate. He asked me whether I want to use this certificate in court. He told me that when police will know about this certificate, they will remove his skin. When I requested and promised him that I was not going to use his certificate in any where in India, then he asked his compounder (assistant) to write about my injuries. I don’t know what he has written in certificate. I signed this letter with great difficulty. I am sending which I got. I don’t know still how long I have to bear these tortures. I can’t explain my problems, only God knows, your wife.” (sic)4. Letter from Dr [name deleted] dated 22 April 1997 reads:“It is certified that [XY] wife of [AB] was treated here for head injuries. She also had wounds in head due to hair pulling. She also had split muscles. She was admitted here in serious unconscious conditions. She also had split skin wounds all over her body. She was released from this hospital after 13 days treatment.
Signed [name deleted] MB BS MD Physician and Heart Specialist, address.” (sic).
THE 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."In terms of Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) the principal issues are:
1. Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?
2. If the answer is Yes, is there a Convention reason for that persecution?
Because the issue of relocation arises in this case, the decision of this Authority in Refugee Appeal No. 523/92 Re RS (17 March 1995) requires two additional issues to be addressed:
(a) Can the appellant genuinely access domestic protection which is meaningful?
(b) Is it reasonable, in all the circumstances, to expect the appellant to relocate elsewhere in the country of nationality?
ASSESSMENT OF THE APPELLANT’S CASE
CredibilityThe Authority has found that its credibility findings set out in the first Appeal decision have been clearly confirmed. The overall impression formed at the first Appeal hearing likewise has been confirmed and the tendency of the appellant to embellish his story and wildly exaggerate his fears and the actions of the police are likewise confirmed. The reasons for finding against the appellant on credibility at this second Appeal hearing, confined as it was to the issue mentioned above, are as follows and again, the cumulative effect is significant:
1. Wife and Children at Home Farm - Communication by Telephone
The Authority would first refer to evidence given by the appellant at the first Appeal hearing where he said that the police did not go to his in-laws place, but the police had been harassing the people who had leased the appellant’s farm and when his wife called at the farm, neighbours informed the police and the police at first, questioned her and then beat her and kicked her. The appellant at the first Appeal hearing said this happened two or three times and then his wife had stopped going to the farm. At this second Appeal hearing on 27 May 1997, the appellant was asked why it was that his wife continued to go the farm and particularly, why she persisted in taking the children with her. The appellant finally said that he had “told her off too” for taking the children and told her not to go to the farm “rarely, expect when she really had to”. He added he had told her “not to go any more and it is quite possible she will not go any more”.
However, it was explicit and implicit in the story given to this Authority at the first Appeal hearing that his wife and children were sent to her parent’s place [about 200 kilometres away] for protection at the same time as the appellant left for New Zealand in October 1995. It was, likewise explicit and implicit in his story that they had remained there for their protection continuously up to the date of that first Appeal hearing. Apart from corresponding by letter, which will be referred to shortly, the appellant was asked at the second appeal hearing when he had last spoken to his wife on the telephone. He said it was about two weeks ago (i.e. about last week of April 1997), and one before that was about mid April 1997. He was asked where she was when she spoke on the telephone and he confirmed that she spoke to him using a telephone at a friend’s house about one kilometre away from his house on the family farm. Both calls took place in that way. He said that last year he did not telephone her much, he telephoned a few times but it was very costly. Those telephone calls were made in the same way using the friend’s telephone about a kilometre away from the appellant’s house on the farm.
2. Correspondence with Wife
The first intimation that the appellant’s wife had any problems with the police was contained in the letter dated 3 January 1996 (page 42 of the file) referred to in the first Appeal decision. On that occasion the wife said in the letter that:“one day two police came to the house when I was outdoors. I gave a message to the neighbours that I should contact the assistance of an inspector of police immediately. - He said what should I do now? Should I look after children or visit police station.”That letter, of course, did not refer to any physical ill-treatment by the police but it is clear from that letter that the appellant was then at the family farm and had the children with her. The letter also said that the children do not go to school. The appellant said that the children did not go to school for two or three months after he left and thereafter, went to school at the village of the wife’s parents. However, in context (of the letter of 3 January 1996), the reference to the children not being at school by implication refers to their home school in the home village. This letter in its context implies, therefore, that she and children were at the farm and had never left it.
The letter produced as having been written about March/April 1996 clearly indicates that the wife and children are at the farm and have been there for at least some days.
The letter said to have been postmarked 15 July 1996, likewise clearly indicates that, at that time the wife and children were at the farm.
The final letter produced said to have been written in April 1997 and which was sent with the doctor’s certificate, again shows that the wife was at the farm at the time of the alleged police ill-treatment which was shortly before that letter was written.
In short, therefore, all of the letters produced to this Authority written by the wife to the appellant clearly indicate that, at about the times the letters were written the wife and children were all at the farm. This was despite the fact that the appellant had told the Appeal Authority at the first Appeal hearing on 17 December 1996 that she had now stopped going to the farm. The Authority does not accept as credible that if the story about police brutality to the appellant’s wife and his children was true, that the wife would continue to visit the farm and indeed take the children with her, particularly as there are other ways of dealing with any business matters which were then proffered by the appellant as excuses for the wife’s obviously unwise and indeed reckless conduct.
It can be seen, therefore, that all correspondence received shows that the wife and children were at the home farm and the telephone calls referred to were to the home farm all quite inconsistent with and indeed contrary to the original story of going to live with the in-laws for protection from the police.
The Authority put to the appellant that the actions of his wife in persisting in going to the farm and taking the children with her, were inconsistent with police brutality. To that he said that when the lessees “want to make payments, they call my wife over otherwise there are a lot of quarrels”. He said:“They (the lessees) start up all sorts of little incidents. Neighbours do silly things like not letting water go into the land and things like that because she is a woman. The neighbours take advantage of that and take things, some of the implements or they damage or break things”.It was put to him that surely the lessees could deal with such tings themselves and he said they “could but they do not want to become in a fight”. The Authority does not accept that it was necessary for the wife, herself, to go to the farm to attend to any of those problems. It was part and parcel of the appellant’s case as given at the first Appeal hearing that his uncle had originally organised leasing the farm and it is noteworthy that the aunt came to his wife’s assistance as recently as April 1997. If the wife really was in fear of the police to the extent asserted it would have been a simple matter for the uncle to attend to any of the business or problems mentioned. Furthermore, the appellant has a brother who farms his own property close by and although he said his brother was estranged from him, it would surely not be too difficult for his wife at least to obtain some assistance from him in the circumstances. Furthermore, it is not overlooked that the appellant’s farm and family live in Uttar Pradesh, not in the Punjab. He confirmed that the police concerned were the local Uttar Pradesh police. Attacks on a wife, and particularly on children, by police in Uttar Pradesh, or even in the Punjab, are not consistent with the experience of this Authority or with country information available to it.
4. Further Inconsistencies
A further inconsistency is also apparent to the Authority concerning what the wife told the police. The appellant maintained that the reason for the police harassment of his wife and family was because of him. However, his wife would not tell the police that he was in New Zealand. It would seem that had she done so the police interest may well have dissipated. However, it was then put to the appellant that the neighbours whom he claimed had been informing the police about his wife, most certainly would have known and therefore would surely have told the police that he was in New Zealand. The appellant agreed with that proposition and accepted that perhaps the police would have been told by neighbours or indeed by his uncle, aunt, or his brother. It is not plausible that the appellant’s wife persisted in telling the police she did not know where he was when it was that answer which, on his story, was the very reason why the police became incensed. His departure overseas must have been common knowledge in the village and district and the police simply would have had no reason to waste their time on fruitless expeditions to the farm.
There was another curious aspect of the appellant’s evidence concerning the wife’s allegation of harassment by police. The appellant said that the injuries referred to in the medical report had been sustained in April 1997. He had spoken to his wife on the telephone but she was crying and said that she would write the details in the letter. He was asked when the injuries had occurred because the doctor’s letter did not give a date but he said that she was crying when he asked her“How could he believe this had happened to her and explained to his wife that the judge was having difficulty in believing him and so he requested she tell him in detail”.As a result the doctor’s certificate was obtained. That evidence explains how it came about that his wife tried to get a doctor’s certificate to support her story.
5. Doctor's Certificate
The doctor’s certificate is suspect. The wording is plainly non-professional. It is conceded that it was written not by the doctor himself but by a “compounder” or assistant. It makes no reference to police. In the Authority’s experience there appears to be little difficulty in obtaining medical certificates in appeal cases such as this, many of which are forged. However, as the cause of the injures are not stated, little weight can be given to it.
6. Country Information
The Authority supplied Mr Anderson with a copy of the “Response to Information Request No. IND26376EX dated 17 February 1997 from the Documentation Information and Research Branch, Immigration and Refugee Board, Ottawa, Canada”. The Authority sought his comments on matters raised in that document, in particular the expressions of opinion that people who are not high profile militant suspects are not at risk in the Punjab today (see page 10-11). The circumstances in this case are such that the appellant could not be categorised as a high profile suspect. Leave was granted to Mr Anderson to submit any comments or submission on the matter on or before 10 June 1997.
The Authority received a Memorandum of Submissions from Mr Anderson on 10 June 1997 pursuant to leave reserved. The Authority has fully considered those submissions. In view of the findings on credibility the issues raised in the country information canvassed is no longer a material issue. However, the Authority is not persuaded by counsel’s submissions that the appellant could be classified as sufficiently “high profile” to be at risk - even if his credibility had been accepted.
FINDINGSAs earlier indicated, the Authority adopts the findings on the facts and credibility already made in the first Refugee Appeal No. 70224/96 Re GS (20 February 1997), which is to be read as part of this Second Appeal Decision.
CONVENTION REASONThe Authority refers to and confirms the findings set out in the first decision (at page 17) namely that, even if the appellant’s evidence was accepted as credible that on the three occasions described by the appellant, he was interrogated, detained or beaten by the
Punjabi police, he has not suffered persecution by the Punjabi police for a Convention reason.
RELOCATIONThe Authority refers to and adopts the reasons given at page 19 of the first Appeal decision as to relocation, namely that, in the Authority’s view the appellant could genuinely access domestic protection which is meaningful and it is reasonable in all the circumstances to expect the appellant to relocate elsewhere in India.
CONCLUSIONAs the appellant is not accepted as credible, all issues are answered in the negative. However, even if his account was accepted as credible the Authority finds that the appellant has not suffered persecution at the hands of the Punjab police for a Convention reason. The Authority further considers that the appellant could genuinely access domestic protection which is meaningful elsewhere in India and it is reasonable in all the circumstances to expect the appellant to relocate elsewhere in India. The relocation in this case does not involve him moving from his home village or his home state of Uttar Pradesh. It simply involves a restriction upon or discontinuance of visits to the Punjab in the course of his subsidiary seed business. It may only require him to so organise the Punjab aspects of that business to avoid the possibility of the type of difficulties which he alleges he has experienced in the past.
Accordingly, the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined, the appeal is dismissed.
“A B Lawson”