Refugee Status Appeals Authority  




Before:                               B.O. Nicholson (Chairman)
                                         N. Fyfe (Member)
                                         P. Moharjer (UNHCR)

Counsel for the Appellant:    Mr Robson

Representative of NZIS:       Mr Lindsay

Date of Hearing:                 29 November 1991

Date of Decision:               20 February 1992



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 Muslim faith, whose home is in the state of Kashmir, India.

The appellant is married with two children. She was born in Madras in South India of Kashmiri parents, and lived there for five years before her family returned to live in Kashmir. She is married to one “X”, who is presently serving a lengthy term of imprisonment in New Zealand, having been convicted on drugs charges. He is not due for release until 1999, but may qualify for early release as early as 1994.

The appellant has an Indian passport and arrived in New Zealand on a visitor visa issued by the New Zealand High Commission in New Delhi in 1987. She arrived here in November of that year. She did not apply for refugee status earlier on in her stay in New Zealand because both she and her husband had applied for residence on business grounds.

The appellant’s two children have both been born in New Zealand, she having been married by proxy to her husband in the two days before she left for New Zealand, because he had already arrived in New Zealand some seven months previously.

She and her husband conducted a handcraft shop in Auckland. That business is now defunct. She has two brothers, one of whom is in New Zealand and applying for refugee status, but the whereabouts of the other is not known. She has two sisters, both living in Kashmir, married, and her mother lives with one of her sisters. Her father is dead. She has a further adopted sister who lives in New Delhi.

The appellant has lived mainly in Kashmir but has lived in New Delhi spasmodically as she used to conduct a handcraft stall there taking handcrafts from Kashmir to New Delhi for that purpose.

The appellant stated that Kashmir is in a state of great unrest due to a strong independence movement initiated by members of the Muslim faith, which the appellant says is receiving a measure of support from the government of Pakistan. Muslims are substantially in the majority of the population of Kashmir.

The appellant states that if she has to return to India without her husband, she will be placed in an extremely difficult position.

Her appeal is based on the fact that as a woman living apart from her husband, with two children and no means of support, and nowhere to live, she will be specially vulnerable in Kashmir to physical attack or other forms of abuse and discrimination at the hands of male Muslims. On the other hand if she returned to live in New Delhi then she fears that she would be the subject of physical attack and abuse and discrimination at the hands of Hindus and Muslims because she is a woman living apart from her husband with no means of support. She has cited on instance of being indecently attacked in New Delhi and says that there were other less serious incidents when she suffered abuse. She says that she would not expect to be the subject of any discrimination because she is Kashmiri but that she would expect to be discriminated against on the grounds of religion and because she is a woman living alone with nowhere to go.

The appellant says that her mother is elderly and confined to hospital frequently. Both of her sisters have husband whose income is insufficient to enable them to support the appellant and her two children. Her husband’s family were opposed to the marriage and blame her for her husband’s coming to New Zealand, and we infer for his present predicament, and that they have refused to meet her. She therefore cannot expect any assistance from them.

She and her adopted sister in New Delhi are on bad terms, and in any event she would have difficulty in finding the means to support the appellant and the way of life of the household is entirely different from that of the appellant, though both the appellant and her sister are Muslims.

Moreover, under Muslim custom, she would not be able to live in the household of any of her brothers-in-law unless she was accompanied by her husband.

This appellant has told us in evidence of a matter which was not revealed at her initial interviews with the Refugee Status Section. It appears that she and her husband conducted an affair in India for some five years before h left for New Zealand and before their subsequent marriage by proxy which resulted in her coming to New Zealand. This is an added reason for her expectation that she would be rejected by members of her husband’s family and her own, as such conduct is contrary to the accepted rules of conduct in her community.

The appellant’s application for refugee status was put forward by appellant’s counsel on the basis that there would be persecution on the grounds of race, religion and membership of a particular social group.

The definition of a refugee, as contained in the 1951 Refugee Convention and the 1967 Protocol requires the appellant to show that owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, she is outside the country of her nationality and is unable, or owing to such fear is unwilling to avail herself of the protection of that country. In terms of this Authority’s decision in Refugee Appeals Nos. 1/91 and 2/91 re TLY and LAB and 11/91 re S, we find the issues to be considered in this case as follows:

1.    Is there a genuine fear?

2.    Is the harm feared of sufficient gravity to constitute persecution?

3.    Is there a real chance that persecution will occur?

4.    Will the state fail in its duty to protect the appellant from serious harm?

5.    Is the harm feared related to any of the five grounds recognised in the Convention, or is it related to other factors?

The Refugee Status Section, in its decision, found that the appellant does have a genuine fear of persecution in India and that the persecution is for a United Nations Convention reason but that the fear was not well-founded. We agree that the appellant’s account of events and her concern for her safety is a credible one. We find on the first issue that there is a genuine fear. Her stated fear is of physical abuse and even kidnapping and sexual attack. We consider that the harm feared is of sufficient gravity to constitute persecution.

On the third issue, as to whether there is a real chance that persecution will occur, we find this issue must be answered in the appellant’s favour. We think that the decision of the Refugee Status Section did not fully take account of the appellant’s social position were she to return to India under the circumstances that she has outlined to the Immigration Service and to the Authority. We accept her statement that she would be in an extremely vulnerable position if she returned to Kashmir under her present circumstances. We are satisfied that if she returned there as a Muslim woman separated from her husband and with no male family support behind her, she would be discriminated against by her fellow Muslims and that she may well suffer assault and/or sexual abuse at the hands of fellow Muslims. We are satisfied too that there is a further danger that in Kashmir she could be subject to similar abuse at the hands of the Indian army, whose reputation for violence in that state, she says, is well known.

On the question of whether or not she could resettle in New Delhi, where she has lived from time to time in the past, we consider that the situation is somewhat similar. We find that she would not be subjected to discrimination on the grounds of her race, as a Kashmiri, but that she would be likely to suffer discrimination and abuse, and even sexual attacks of the nature she has described occurred in 1984, on the grounds that she is a Muslim woman with no means of support or male protection. This type of abuse we find is likely to occur at the hands mainly of Hindus, but could also occur at the hands of fellow Muslims.

We find that there is a real chance that persecution will occur, whether she returns to Kashmir or New Delhi.

The fourth issue is whether the state will fail in its duty to protect the appellant from serious harm. The appellant herself says that she does not expect that the Indian government would actively discriminate against her, but that its ability to protect her in Kashmir is very limited. The activities of the army in Kashmir give her no confidence at all that she can be protected from this harm. The situation in New Delhi she considers would be that she would not expect the governmental authorities to go out of their way to assist her, although she does not consider that she would be subject to active discrimination at the hands of the government. From her evidence she clearly lacks any confidence in protection from the government. We are in doubt in all the circumstances as to whether or not the state would be able to protect her in New Delhi or Kashmir. We resolve that doubt in favour of the appellant.

The final issue is whether the harm feared relates to any of the five grounds recognised in the Convention or is it related to other factors. We return to the submission on the appellant’s behalf that the persecution complained of resulted from her membership of a particular social group as well as from matters of race and religion. The suggestion that the appellant’s racial origin as a Kashmiri was a cause of persecution cannot be sustained in our view. In Kashmir, the issue of race would not arise. In New Delhi, on the appellant’s own evidence before us, she did not expect to suffer ill-treatment because of her racial origin.

On the grounds of religion, however, she did expect and had experienced ill-treatment in New Delhi as a Muslim woman, at the hands of Hindus. Again this issue would not arise in Kashmir where the Muslim community is in the majority.

The appellant’s strongest claim, however, appears to arise from her claim to membership of a particular social group. This Authority considered the interpretation of the words “membership of a particular social group”, in Refugee Appeal No. 11/91 Re S in relation to a claim that membership of a family of landowners came within that class of persons. In the event the Authority found it unnecessary to decide the issue. This present case is of an entirely different nature. The difficulty of interpretation of the phrase has been dealt with at length by authors on refugee law. Goodwin-Gill in The Refugee in International Law (1983) at p 30 states:

“Jurisprudence on the interpretation of the term 'social group’ is sparse. A superficial linguistic analysis suggests people in a certain relation or having a certain degree of similarity, or a coming together of those of like class or kindred interests. A fully comprehensive definition is impracticable, if not impossible, but the essential element in any description would be the factor of shared interests, values, or background - a combination of matters of choice with other matters over which members of the group have no control.

In determining whether a particular group of people constitutes a 'social group’ within the meaning of the Convention, attention should therefore be given to the presence of uniting factors such as ethnic, cultural, and linguistic origin; education; family background; economic activity; shared values, outlook, and aspirations. Also relevant are the attitude to the putative social group of other groups in the same society and, in particular, the treatment accorded to it by state authorities. The importance, and therefore the identity, of a social group may well be in direct proportion to the notice taken of it by others, particularly the authorities of the state. The notion of social group thus possesses an element of open-endedness which states, in their discretion, could expand in favour of a variety of different classes susceptible to persecution.”

Hathaway in The Law of Refugee Status (1991) at p 160 after considering both restrictive and liberal views on the meaning of the phrase, went on to quote with apparent approval the approach adopted by the United States Board of Immigration Appeals in the Matter of Acosta (Interim Decision 2986, 1 March 1985) as follows:
“We find the well-established doctrine of ejusdem generis, meaning literally, 'of the same kind’, to be most helpful in construing the phrase 'membership in a particular social group’. That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words ... The other grounds of persecution ... listed in association with 'membership in a particular social group’ are persecution on account of 'race’, 'religion’, 'nationality’, and 'political opinion’. Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed ... Thus, the other four grounds of persecution enumerated ... restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution. Applying the doctrine of ejusdem generis, we interpret the phrase 'persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or conscience. Only when this is the case does the mere fact of a group membership become something comparable to the other four grounds of persecution ...”
Hathaway at p 161 comments:
“This formulation includes within the notion of social group (1) groups defined by an innate, unalterable characteristic; (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights.
By basing the definition of membership of a particular social group’ on application of the ejusdem generis principle, we respect both the specific situation known to the drafters - concern for the plight of persons whose social origins put them at comparable risk to those in the other enumerated categories - and the more general commitment to grounding refugee claims in civil or political status. Beyond that, the linkage between this standard and fundamental norms of human rights correlates well with the human rights-based definition of persecution’. Most important, the standard is sufficiently open-ended to allow for evolution in much the same way as has occurred with the four other grounds, but not so vague as to admit persons without a serious basis for claim to international protection.”
Again, at p 162 the learned author observes:
“Gender-based groups are clear examples of social subsets defined by an innate and immutable characteristic. Thus, while gender is not an independent enumerated ground for Convention protection, it is properly within the ambit of the social group category. The Executive Committee of the UNHCR endorsed this approach in its 1985 conclusion on Refugee Women and International Protection’:
...States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhumane treatment due to their having transgressed the social mores of the society in which they live may be considered as a particular social group’ within the meaning of Article 1A(2) of the 1951 United Nations Refugee Convention.
The decision in Zekiye Incirciyan offered the first clear indication that Canadian law would follow the international lead. This case involved a Turkish widow, who had no close family in that country. She was harassed on a daily basis by young men, was sexually assaulted, and was the object of an abduction attempt. The Immigration Appeal Board found that the government was unwilling to protect the claimant because, in the authorities’ view, it was inappropriate for her to be living without the protection of a male relative. Accordingly, the Board determined Mrs Incirciyan to be a refugee by reason of her membership of a particular social group composed of single women living in a Moslem country without the protection of a male relative.’ This category meets the test for a particular social group, since gender and the absence of male relatives are not within the control of group members, and choice of marital status is a freedom guaranteed under core norms of international human rights law. Early decisions of the Immigration and Refugee Board have similarly recognised the appropriateness of the social group designation for women in Lebanon and for Tamil women in Sri Lanka.”
We accept in the light of the views expressed by Hathaway and the decision in Inciraiyan that the appellant is a member of a particular social group within the meaning of those terms in the Convention.

Insofar as the situation in Kashmir is concerned, we are satisfied that the appellant has established that the persecution that she would suffer relates to the fact that she is a member of a particular social group, consisting of Muslim women living separate from their husbands in a Muslim community with no accommodation and no male family or financial support available to them and with a reputation for having transgressed the mores of their community.

If on the other hand she returned to the New Delhi area, we find that she would suffer persecution on religious grounds from the Hindu majority in the community as a Muslim woman without the protection of male relatives. Moreover, she could also suffer persecution from the Muslim minority in the area as a member of a particular social group for the same reasons.

The appeal is allowed, but we emphasise that we regard the refugee status of the appellant as temporary, since our findings are based on the inability of her husband to accompany her back to India at present. The New Zealand Immigration Service should review her circumstances upon her husband’s release from prison with a view to possibly cancelling her status and returning her to India with her husband.

“B O Nicholson”