Refugee Status Appeals Authority Database

Refugee Status Appeals Authority

REFUGEE APPEAL NO. 11/91

RE S

AT AUCKLAND
Before:                               R.P.G. Haines (Chairperson)
                                         G.W. Lombard (Member)
                                         J.M. Priestley (Member)
Counsel for the Appellant:    Mr R.P. Chambers

Counsel for the NZIS:           Mr R.J. Henshaw

Date of Hearing:                  10 July 1991

Date of Decision:                 5 September 1991


DECISION

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 and who has lived his entire life in that State.

The appellant’s application for refugee status was said by his counsel to be based upon the “membership of a particular social group” category in the 1951 Refugee Convention and the 1967 Protocol (the Refugee Convention). Whether this is an appropriate classification is a matter to which we shall return.

THE APPELLANT’S CASE
As mentioned, the appellant was born in the Punjab and is presently 30 years of age. He and his wife (also of the Sikh faith) were married in December 1987 and they have one daughter born in November 1989.
In 1985, some two years prior to his marriage, the appellant applied for and obtained an Indian passport. Although the Authority has not sighted the passport, it was told that the appellant had never used the passport prior to his departure for New Zealand and his arrival in this country on 7 March 1990. While it had been his intention in 1985 to travel overseas in order to see more of the world, his plans were disapproved by his father and he did not in fact leave the Punjab.

The appellant has never attended school and since an early age he has worked on his father’s farm situated in the Jullundur District. The farm is of some 40 acres in size and is owned and worked by the appellant’s father, said by the appellant to be some 45 years of age. It would appear that the appellant is an only child and the family living on the farm comprises his mother, father, wife and daughter.

In his written statement the appellant said that he and his family lived happily on the farm until one evening in December 1989 when five men arrived at the family home and requested food and accommodation. He could tell from their dress and faces that they were Sikhs. He complied with their request to provide food but told them that he was not in a position to provide accommodation. There was no difficulty and the men left without argument.

About two weeks later, however, the men returned. This time they were bearing arms. They wanted the appellant to join their group, said to be the Khalistan Commando Force. The appellant refused. The men then told him that if he could not join, he would have to pay the very substantial sum of three lakh Indian rupees for them to buy more weapons. They told him that if he refused to pay he would be killed. To underline the point they pushed the barrel of a gun into his throat and punched the appellant in the face several times. He was warned that he would be killed unless he produced the money. He was also told not to report the matter to the police otherwise the whole family would be killed.

Some 12 days after the second visit the men arrived at the home for a third time. The appellant was out at the time and the men spoke to his wife. She was told that unless the money was paid the appellant would be killed.

Upon returning home the appellant was told of the third visit and he immediately left home and went to stay with his mother’s relatives who lived some 90 kilometres away. The journey takes between six and seven hours by bus. There he stayed approximately 18 days. He learnt from a neighbour of his mother’s relatives that within a week of his arrival at this new location people had been making enquiries about him. Their identity was not known. The appellant assumed that they were the extremists who had visited the family farm. In the meantime, his family reported that visits were also made to the family farm by the five men and these visits have apparently continued since then, though details of their occasion and frequency have not been supplied.

All travel arrangements having been made through a travel agent the appellant left for New Dehli where he stayed for two days prior to his departure for New Zealand. The money was paid to the agent by his father who also escorted the appellant to New Dehli by train. The tickets were delivered to the appellant at the airport.

The appellant reported that he had spoken to his father by telephone approximately 20 days before the appeal hearing and had been told that it would be dangerous for him to return to the Punjab as people were still looking for him. The appellant’s wife had been sent to stay with her parents as a precaution.

The appellant acknowledged that at no time since his departure from the farm have the extremists made any threats against his father or other family members.

He told the Authority that it would be unreasonable for him to be required to move to a different part of the Punjab or to another state within India because of the following factors:

(a) Other races in India would hate him because he is a Sikh.

(b) He can only speak Punjabi and if he moved elsewhere in India he would not be able to speak the local language or dialect.

(c) He has no money.

(d) He would be unable to find employment.

The Authority notes that the last three factors could also be listed as disadvantages to the appellant settling in New Zealand. The first factor will be returned to shortly when the issue of protection is considered.

Against this factual background Mr Chambers in his opening submissions described the appellant’s well-founded fear as being based upon an ultimatum presented to him of “pay up or be killed”. In his closing submissions he returned to this theme, acknowledging that the case was very much one involving a straight-out demand for money.

ASSESSMENT OF THE APPELLANT’S CASE
The Authority, as mentioned, was not supplied with the appellant’s passport or with the visa application presented to the New Zealand High Commission in New Delhi. When these matters were raised with Mr Henshaw he invited the Authority to deal with the case notwithstanding, as the New Zealand Immigration Service was not seeking an adjournment to obtain the documents.
The Authority accepts the general account of events as given by the appellant, but it does not follow that the appellant’s credibility on the issue of fear is accepted.

It is to be noted that on the occasion of their first visit to the appellant’s home, the five men gave no cause for alarm and accepted without complaint the appellant’s refusal to provide them with accommodation. It was only on their second visit that the demand for money was made. On the appellant’s account the threat to kill was graphically reinforced by the pushing of a barrel of a gun into his throat and by the several punches to his face. In his written statement the appellant also said that he thought he was going to be killed. He knew that he could not meet the demand for money as the amount was well out of his reach.

In these circumstances, it was clear that in the event of the men returning as promised, the appellant, on his own account, should have expected almost certain death. In these circumstances his immediate departure from the farm would have been expected. However, the appellant elected to remain. He only left after the third visit when the further threats were addressed through his wife.

We find his election to remain on the farm after the second visit a significant fact as his lack of action belies his claimed fear for his life and also goes directly to the well- foundedness of his fear.

We also find significant the fact that although the appellant told us that his father owned the farm and that the father had more money than he, the so-called extremists have at no time made any demands of the father for money, nor have they at any time threatened him either in relation to money matters, or in relation to the apparent disappearance of the appellant. We pressed the appellant on a number of occasions to explain why he thought the demand for money would have been addressed to him rather than his father as owner of the farm and the person in control of the family finances. The appellant could offer no explanation other than to say that the extremists were looking for young people and could not ask his father for the money as the father would then have to sell the farm.

We found this explanation entirely unconvincing.

In this context the significance of continued visits to the farm by the men since the appellant’s departure is to be balanced against the complete absence of demands and threats addressed to the father. We further note that there has been no assertion that threats have been addressed to the appellant’s wife and daughter. In these circumstances little weight can be placed upon the fact that they recently went to live with the appellant’s parents-in-law.

The conclusions we have reached on the evidence therefore are that the appellant’s account of events, while containing exaggerations, is nonetheless a generally credible one. We do not accept, however, that his fear of death at the hands of the extremists was other than a short lived one. Nor do we accept that had such fear been held it would have been a well-founded fear, particularly when assessed as at July 1991, some 20 months after the relevant events.

That the time of assessment must be the date of hearing of the appeal is clearly established by Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (High Court of Australia). On these findings the appellant clearly falls outside of the terms of the refugee definition.

However, in case we are wrong in our conclusions it is necessary to consider several further issues raised by the appeal.

MEMBERSHIP OF A PARTICULAR SOCIAL GROUP
As mentioned, the appellant’s case on appeal was presented on the basis that the “particular social group” to which he belonged was his family, in particular a family of land-owners who were relatively affluent.
While the family may be a particular social group in certain contexts, there is by no means unanimity as to whether wealth alone will be sufficient to allow a family to be described as “a particular social group” for the purposes of the Refugee Convention. Grahl-Madsen in The Status of Refugees in International Law Vol 1 (1966) at 219 expressed the opinion that:

“Nobility, capitalists, landowners, civil servants, businessmen, professional people, farmers, workers, members of a linguistic or other minority, even members of certain associations, clubs, or societies, all constitute social groups of various kinds.
... it seems appropriate to give the phrase [membership of a particular social group] a liberal interpretation. Whenever a person is likely to suffer persecution merely because of his background, he should get the benefit of the present provision.”

This is an interpretation apparently endorsed in some Canadian case law: Professor Hathaway, The Law of Refugee Status (1991) 159.
The United States Board of Immigration Appeals in its decision in Matter of Acosta (Interim Decision 2986, 1 March 1985) reported in Hathaway, The Law of Refugee Status at 160 reached a possibly different conclusion:

“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 group membership become something comparable to the other four grounds of persecution ...”
Professor Hathaway observes (at 161) that 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.
This interpretation is consistent with the opinion expressed by Goodwin-Gill in The Refugee in International Law (1983) at 30 that 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 the context of class or wealth, Professor Hathaway at 166 argues that the definition posited in Matter of Acosta excludes a social class defined by a changeable characteristic of a non-essential nature:

“For example, the members of a privileged social class who resist renunciation of economic privilege are not protected, since it is within their ability voluntarily to renounce their property, an interest which is not protected under core human rights norms.”
He accepted, however, that the exclusion would not apply if the members of the privileged class were forever stigmatized for their origins even after renouncing their property, since past status is an immutable characteristic. He further accepted that an economic class will come within the scope of a particular social group where membership, though nominally voluntary, is the only means of ensuring basic subsistence, an interest which is protected under core norms of human rights law:
“In the case of Joseph Alexis Manasse the Immigration Appeal Board correctly held membership of the Haitian peasant land-owning class to be a form of particular social group, since in the context of a poor, agrarian society, membership in the class represents a means of access to basic needs. The central question, therefore, in examining wealth-based categories or classes is whether the group’s defining characteristic is either innate or unchangeable, or if subject to voluntary alienation, whether it is premised on the realization of basic human rights. In all other cases, it would be reasonable to expect an applicant to accommodate herself to less- privileged circumstances as an alternative to the invocation of international protection.” p.167
For the purpose of deciding the present case it is not necessary for us to reach a final determination as to what in the New Zealand context is to be accepted as a particular social group. We have decided to leave this question open, particularly given that little argument was addressed to us on the point.
We turn now to the principal legal issue raised by this case, namely the question of protection. The issue arises in a particularly acute form given that the alleged agent of persecution is not an instrument of the Indian Government, but rather, a non-state agent in the form of an extremist group waging a campaign of terror against the government and the forces of law and order. This requires an examination of a central but often overlooked aspect of the Convention.

STATE PROTECTION
As is well known, Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:
“... owing to a 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.” [emphasis added]
By way of a footnote it is to be observed that Article 1A(2) addresses three situations: (1) nationals; (2) stateless persons; and (3) persons with more than one nationality. For the sake of simplicity we will address the first situation only, that is, where the applicant is fleeing the country of his nationality.
The refugee definition makes it clear that the lack of protection by the government of the country of origin is an essential element of the refugee definition. It is as much an issue to be established as, for example, the genuineness of the subjective fear.

Goodwin-Gill in The Refugee in International Law (1983) at 10 suggests that “protection” implies (inter alia) “internal protection”, in the sense of effective guarantees in matters such as life, liberty, and security of the person. At p.38 he points out that fear of persecution and lack of protection are inter-related elements.

The concept has been more clearly expressed by Professor Hathaway in The Law of Refugee Status at 103 and 124, namely, that the intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population:

“As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.” (p.104)
That is, refugee law is designed to interpose the protection of the international community only in situations where there is no reasonable expectation that adequate national protection of core human rights will be forthcoming. Refugee law is therefore “substitute protection” in the sense that it is a response to disfranchisement from the usual benefits of nationality (p.124):
“This means that in addition to identifying the human rights potentially at risk in the country of origin, a decision on whether or not an individual faces a risk of “persecution” must also comprehend scrutiny of the state’s ability and willingness effectively to respond to that risk. Insofar as it is established that meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist. This rule derives from the primary status accorded to the municipal relationship between an individual and her state, and the principal that international human rights law is appropriately invoked only when a state will not or cannot comply with its classical duty to defend the interests of its citizenry. Andrew Shacknove has helpfully phrased this principle in terms of a breakdown of the protection to be expected of the minimally legitimate state:
'Persecution is but one manifestation of the broader phenomenon: the absence of state protection of the citizen’s basic needs. It is this absence of state protection which constitutes the full and complete negation of society and the basis of refugeehood.’”

For the purpose of this discussion we accept that the threat made to kill the appellant, if carried out, would be an infringement of a core human right. See Article 3 of the 1948 Universal Declaration of Human Rights as well as Article 6 of the 1966 International Covenant on Civil and Political Rights, both of which Articles affirm that every human being has the inherent right to life.
Before leaving the general topic of protection, it is to be noted that the refugee definition requires the issue of protection to be considered in the context of the particular case of the applicant for refugee status:

“... is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” [emphasis added]
In this context we have found the following analysis by Grahl-Madsen in The Status of Refugees in International Law (1966) Vol 1 p.254 helpful: the refugee definition will be satisfied in any of the following three cases.
(1) A person is unable and unwilling to avail himself of the protection of the country of his nationality;

(2) A person is unable, but not unwilling to avail himself of such protection;

(3) A person is unwilling, but not unable to avail himself of such protection, provided that his unwillingness is owing to well-founded fear of being persecuted for some relevant reason. [emphasis added]

It follows that the following do not qualify:

(4) A person who is able and willing (that is, neither unable nor unwilling) to avail himself of such protection;

(5) A person is able, but unwilling to avail himself of such protection, his unwillingness being motivated by some other reason than the ground mentioned under (3), e.g. personal convenience, business considerations, or the like.

Inability, in Grahl-Madsen’s opinion (p.255) would encompass a person who has lost his nationality in connection with becoming a refugee and is therefore utterly unable to avail himself of the protection of the country of his nationality. Moreover, a person must be considered unable to avail himself of protection if his application for a passport is refused. Furthermore, if there are no diplomatic or consular relations between the country of origin and the country of refuge, a person will, as a rule, be unable to avail himself of the protection of the former country. It is to be noted that the “inability” addressed by Grahl-Madsen in this context is the “inability” of the individual to seek protection which, of course, is separate from the issue of an alleged inability of the particular country of origin to provide effective protection.

As to unwillingness, it is to be noted that it is a requirement of the Convention that the person must be unwilling to avail himself of protection “owing to” fear of being persecuted. [This is apparently not a qualification applicable to the “is unable” limb.] The meaning of the phrase can only be that in order to be considered a refugee, a person must be unwilling to avail himself of the protection of the state of which he is a national, and this unwillingness must be based on well-founded fear of being persecuted upon his eventual return to the territory of that state, not on reasons of personal convenience, business considerations or the like.

It is now necessary to turn to the issue of agents of persecution and examine within that context the claimed inability of India to provide effective protection of the appellant’s basic human rights.

STATE PROTECTION AND NON-STATE AGENTS OF PERSECUTION

The most obvious form of persecution is the abuse of human rights by organs of the state, such as the police or military, but persecution may also consist of either the failure or inability of the government effectively to protect the basic human rights of its populace: Hathaway, The Law of Refugee Status 125, 127.

In Evans, Agents of Persecution: A Question of Protection (1991) (Discussion Paper No. 3 published by the Refugee Law Research Unit, Osgoode Hall Law School, York University, Canada) two observations are made in relation to liability for the acts of non- state agents of persecution:

(a) “The principle that a state is responsible to protect its citizens from human rights abuses perpetrated by non-state actors has been recognized in a number of major decisions of international and regional human rights authorities. Examples given are Rubio v Colombia where the United Nations Human Rights Committee ruled that the right to life was denied because of a state’s failure to protect; Platform “Artze Fur Das Leben” v Austria, where the European Court on Human Rights ruled that there is a duty on a state to provide protection for lawful demonstrations; and Velasquez Rodriquez v Honduras where the Inter-American Court of Human Rights ruled that the state is complicit with human rights violation if it has failed to provide adequate preventative or punitive measures against non-state human rights abusers.” (p.3)
(b) “Although some academics do not recognize that persons fleeing from persecution by non-state agents in circumstances where the state cannot provide protection are refugees, most international scholarship on the subject of agents of persecution concurs with” the opinion expressed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at para 65:

“Persecution is normally related to actions by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection.” (p.4)

According to Evans at 4 the pivotal Canadian case concerning refugee claimants who fear persecution in the context of state incapacity to protect is Zahirdeen Rajudeen v. Minister of Employment and Immigration (1985) 55 NR 129 (FCA). After establishing that the agents of persecution were non-state actors and that the official protection agency of the state, the police, did not provide effective protection, Stone J. posited the necessary relationship between the state and non-state agent of persecution in order for a claimant to be considered a Convention refugee:
“... [A]n individual cannot be considered a 'Convention refugee’ only because he has suffered in his homeland from the outrageous behaviour of his fellow citizens. To my mind, in order to satisfy the definition the persecution complained of must have been committed or been condoned by the state itself and consist either of conduct directed by the state toward the individual or in it knowingly tolerating the behaviour of private citizens or refusing or being unable to protect the individual from such behaviour.” [emphasis added]
Stone J ruled that since the police were unable or unwilling to provide protection to Rajudeen from non-state agents of persecution who were pursuing him because of his race and religion, it was reasonable that the applicant was unwilling to seek the protection of his state. In applying the Rajudeen principle, the Immigration Appeal Board of Canada in Tezcan Ozdemir (Immigration Appeal Board Decision M83-1304, 18 December 1984) the Immigration Appeal Board has defined four situations in which there can be said to be a failure of state protection:
(1) Persecution committed by the state concerned;

(2) Persecution condoned by the state concerned;

(3) Persecution tolerated by the state concerned;

(4) Persecution not condoned or not tolerated by the state concerned but nevertheless present because the state either refuses or is unable to offer adequate protection.

See Evans at pp 4, 14 and Hathaway at p 129.

This much having been said, we believe that there is a great deal of force in Professor Hathaway’s observation (at 130) that there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming. Professor Hathaway takes the following quotation from Jose Maria de Silva Moreira (Immigration Appeal Board Decision T86-10370, 8 April 1987):

“A refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors ... however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities - when accessible - had no involvement - direct or indirect, official or unofficial - in the persecution against him.”
That is not to say, however, that a failure to seek out the protection of the official authorities will automatically result in an application for refugee status being declined. Prima facie, evidence of state unwillingness or incapacity to protect must be scrutinized in the light of the reasonable efforts made by the claimant to seek out the protection of the state. For fear of persecution from a non-state actor will not lead to a finding of refugee status where it is possible for the claimant to receive adequate and meaningful protection from his state. If recourse to protection from non-state agents of persecution exists within the country of origin, the claimant has no need for protection abroad.
Where there has been a failure to seek out state protection, it is important to explore the reasons why the claimant was unwilling to seek the protection of his state.

Here, the appellant advanced his reasons as follows:

(a) He was fearful that the entire family would be killed if he went to the authorities.

(b) The authorities would be of little help as they themselves are sometimes fearful of extremists and are also sometimes bribed.

(c) If he needed the police in an emergency they would not come promptly, and even if they were able to come promptly there was no telephone at home in order to contact them in an emergency.

As will be noted later in this decision, the weight to be given to such factors will vary from case to case and may need to be balanced against other factors.

What then is the test of the State’s ability to provide protection from agents of persecution?

The response given by Evans in the discussion paper referred to (at 7) is that the answer will depend upon a myriad of factors including the state of origin’s record on ensuring the fundamental human rights of its citizens, the gravity of the persecution feared, the experience of similarly situated persons, and (in the context of the discussion paper) a comparative analysis of Canada’s ability to provide adequate and meaningful protection to the refugee claimant. Evans draws attention to the fact that Grahl-Madsen suggests that in determining refugee claims based on a non-state agent of persecution, it is important to evaluate the efforts of the state of origin in providing protection: Grahl- Madsen, The Status of Refugees in International Law (1966) Vol 1 at 192:

“If the atrocities which caused persons to flee are of relatively short duration only, for example just an episode, and they are effectively put to an end by the government, there may hardly be any reason for considering the persons concerned political refugees. In fact, they may be considered adequately protected by the government of their home country.
If, on the other hand, the disturbances continue over a protracted period, without the government being able to check them effectively, this may be considered such a 'flaw’ in the organization of the State that it may justify distrust in the government, the latter conceived not as a small group of men in exalted positions, but as the machinery which should secure tranquillity and order in the territory of the State. In such a case recognition of refugee status appear to be in place.”

Evans (at p 7) further observes that another important question to be answered concerning a state’s inability to protect its citizens from non-state agents of persecution is whether the refugee can receive meaningful protection by moving to another part of the country. This is the issue which will now be addressed separately.
STATE PROTECTION AND A REGIONALIZED FAILURE TO PROTECT

This issue is sometimes inappropriately referred to as the so-called “internal flight alternative”. We say “so-called” because to pose any question postulated on an “internal flight alternative” is to ask the wrong question. Rather, the question is one of protection and is to be approached fairly and squarely in terms of the refugee definition, namely whether the applicant:

“... is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
In other words, the proper questions to address are the questions of protection, inability, unwillingness and the presence of a well-founded fear for one of the recognized Convention reasons.
It will not always be possible to separate the issues of lack of protection and fear of persecution because the issues are themselves inter-related elements: Goodwin-Gill, The Refugee in International Law (1983) 38.

Against this background it is now possible to address the question which Professor Hathaway refers to as “regionalized failure to protect”. It would be difficult to improve upon the following extract taken from The Law of Refugee Status at 133:

“A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be to one’s own state.

The surrogate nature of international protection is clear from the text of the Convention definition itself, which limits refugee status to a person who can demonstrate inability or legitimate unwillingness 'to avail himself of the protection of [the home] state’. That is, the focus of analysis is the relationship between the claimant and her national government. Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of an errant regional government or forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state’s duty is met and refugee status is not warranted.”
In his discussion paper, Evans at 7 expresses the opinion that Canadian case law has established the principle that if a refugee can receive meaningful protection in another part of the country, then the claimant should seek out this protection before making a claim to refugee status in another state, assuming this is both a legal and practical possibility. In Minister of Employment and Immigration v. Satiacum Federal Court of Appeal Decision A-554-87, 16 June 1989 per MacGuigan J. the Canadian Federal Court of Appeal had to consider the issue of localized persecution within a Federal State. It ruled that persecution “cannot be said to exist where the absence of protection is remedial through federal control over local inaction or the intervention of a fair and independent judicial process”. Clearly, all of the circumstances prevailing in the state of origin must be taken into account. The UNHCR Handbook at para 91 reminds us that it is not always reasonable to expect refugee claimants to seek out internal protection.
The law in the United Kingdom is very similar. In R v. Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm AR 7 (QBD) Nolan J. reversed the determination of an adjudicator who had accepted that if Jonah, on his return to Ghana, sought to involve himself once again in union affairs he would be in jeopardy of persecution, but nevertheless rejected the asylum application on the basis that Jonah would not be at material risk if he was to resume residence in his remote family village where he spent a year and a half immediately prior to coming to the UK. If he was to live in the village he would be separated from his wife and unable to pursue the employment as a trade union official which he had carried out for 30 years. The decision was reversed on the basis that on the finding made by the adjudicator as to the likely consequence of the applicant’s return to Ghana, it followed as a matter of law that there was a well-founded fear of Jonah being persecuted by reason of his political opinion and membership of a social group opposed to the government. It is an implicit finding of the judgment that to have required Jonah to live in a remote village away from his wife and to abandon his employment as a trade union official was unreasonable.

More recently in R v Secretary of State for the Home Department, Ex parte Yurekli [1990] Imm AR 334 (QBD) Otton J. had to consider the case of a Kurd in respect of whom the Secretary of State accepted there had been persecution in his home village. However, he had moved to Istanbul, leaving his wife and children in the village. In Istanbul he had not been persecuted, although he had been unable to secure permanent employment, being it was said dismissed whenever his origins were discovered. The Secretary of State concluded that the harassment to which the applicant had been subjected in Istanbul did not amount to persecution. In the Queen’s Bench Division it was argued, relying on Jonah that the Secretary of State had taken too narrow a view and in particular it was not necessary for a person to show that he would be or had been persecuted in all parts of his native country to qualify as a refugee.

Otton J applied the classic administrative law test as to whether it could be said that the Secretary of State’s decision was unreasonable in the sense that no Secretary of State properly directed as to the facts could have rejected the asylum application. The Judge also gave recognition to the principle that it is not a question whether a Judge on review reaches a different decision on the facts but whether the decision made by the Secretary of State was one which he could properly reach on the evidence.

Applying this test it was held that the Secretary of State could properly base his decision on the fact that Yurekli was able and had been shown to be able to live in his country for a period of two years, a substantial period of time, in a part where he was not persecuted in the way that he was when he was living at home. It is true that this meant that he lived away from the family and that he was unable to obtain regular employment when he was discovered to be a Kurd but these were all matters which the Secretary of State was entitled to take into account.

In short, the case is authority for the proposition that if it is possible for an applicant for refugee status to live in another part of his country without persecution, that is a factor the Secretary of State is entitled to take into account in deciding whether to recognize the person as a refugee.

Returning to the Canadian case law, the following summary is given by Professor Hathaway in The Law of Refugee Status at 134:

“The primacy of domestic protection has been recognized in Canadian jurisprudence as well. In Karnail Singh [14 November 1983] the claim of a Sikh from the Punjab region of India was denied because of his admission that he could avoid police harassment by moving to a different region of the country. The Immigration Appeal Board enunciated the principle that '[i]f the applicant is able to live in security in some other area of his country, he is not a refugee from that country’. In both Jainarine Jerome Ramkissoon [21 June 1984] and Bento Rodrigues de Silva [10 December 1986] the Board applied the internal protection principle to situations where uncontrollable private violence was limited in scope to certain regions of the state of origin, with safety available elsewhere in the country.”
Having previously quoted Professor Hathaway in the introductory paragraphs of this part of the decision, it is appropriate that we conclude with a further quote from his work at p 134 which we believe contains a fair summary of the internal protection principle:
“The logic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad. It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.”
FINDINGS ON FEAR OF PERSECUTION AND LACK OF PROTECTION
It is now appropriate that we return to the inter-related elements of fear of persecution and lack of protection.

In this context we formulate the issues before us 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 recognized in the Convention, or is it related to other factors?

This is a slightly different formulation of the issues to that found in Refugee Appeal Nos 1/91 and 2/91 Re TLY and LAB but only by way of emphasis and because the issues raised by the present appeal are substantially different.

As to the first issue, we have earlier held that while we accept the account of the events in the Punjab as given by the appellant, we do not accept that he is now genuinely in fear.

As to the second issue, we have accepted that the harm originally feared (loss of life) is of sufficient gravity to constitute persecution.

Addressing the third issue of well-foundedness, we have found against the appellant and have concluded that there is not present here a real chance that persecution will occur, applying the test in the High Court of Australia decision in Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

We now turn to the fourth issue, namely whether the state will fail in its duty to protect the appellant from serious harm.

As this is a case involving alleged persecution by a non-state agent it is necessary to bear in mind that no country guarantees to its citizens absolute protection against lawless elements of the population. Few countries do not experience an ever-increasing rate of violent crime and murder. We emphasize that the Convention does not protect persons against any and all forms of even serious harm. In the result, persons affected by civil war or by generalized violence in their country of origin are not refugees within the meaning of the Convention unless and until it can be shown that they are more at risk due to their race, religion, nationality, membership of a social group or political opinion.

Where the harm feared is strictly private in nature, and the government in the country of origin is both willing and able to afford protection, a requisite degree of state involvement or inability to protect is not established. So in Daniel Cripaul (Immigration Appeal Board Decision M81-1106 4 June 1981) the Immigration Appeal Board of Canada denied the claim of a Guyanan Christian who parents had been the targets of rocks and bottles thrown by other East Indians who objected to their religion. Because there was no evidence of state awareness of the incident, much less complicity or inability to act, the claim of fear of persecution was not made out: Hathaway, The Law of Refugee Status p 127 fn 217.

In reaching a decision on the fourth issue we must also weigh the three reasons given by the appellant for failing to seek the protection of the authorities. We find the following factors to be of significance:

(a) The appellant did not seek the protection of the state authorities, nor did he approach the Sarpanch of his village. It is more difficult to assert a failure of state protection where the government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.

(b) On the evidence placed before us we do not accept that it can be so readily assumed by the appellant that the authorities were unwilling or unable to provide protection. The Amnesty International report of May 1991 if anything, demonstrates that policemen and members of the security forces step well outside legitimate bounds in pursuing extremists.

(c) Upon leaving his own village and moving to the home of his mother’s relatives, the appellant was able to escape detection and further threats. This is a factor very much indicating the ability of the individual to find protection within the State. The claimed visit of possible extremists to his new location did not result in any untoward event. We note that even at this late stage the protection of the authorities was not sought out.

(d) He had the further option of relocating elsewhere in the Punjab. We note that he advanced no grounds for not staying with his wife’s family notwithstanding that his wife has now gone to stay with them.

These options of internal re-location within the Punjab would not be unreasonable given that the alleged agent of persecution is not the government, but a non-state agent actively pursued by the authorities and lacking in the resources required to track individuals through a large and populous area such as the Punjab.

(e) We are further of the view that it would not be unreasonable for the appellant to move out of the Punjab. In this regard we note that according to the Amnesty Report referred to, Sikhs in the Punjab form a majority of only 60% (approximately) of the population. The material supplied to us by Mr Chambers contains the following statement (at p.39):

“Punjab is the only Indian state with a majority of Sikhs - 60 per cent - and Punjabi is the mother tongue of about two-thirds of the people. The remainder speak Hindi. Hindus make up more than one-third of the population, and there are smaller minorities of Christians, Jainas, and Buddhists.”
Clearly, there can be no objection per se to Sikhs and non-Sikhs living and working alongside each other. Furthermore, there are significant Sikh populations in the neighbouring states. On the figures provided by the Immigration Service, in the Chandigarh area they comprise 21% of the population. In Delhi they comprise 6.3% of the population and in Haryana the percentage is 6.2%. In Rajasthan the percentage is 1.4% and in Uttar Pradesh it is 0.4%. The quality of protection offered in those states against non-state agent persecutors in the form of Sikh extremists would be neither illusory nor unpredictable. It may well be that the appellant will face language and employment difficulties but he faces these in New Zealand as well. But more importantly, difficulties of this kind are not the subject of protection offered by the Convention. Nor does the Convention offer protection against discrimination and harassment by hostile members of the population.
As recognized in para 54 of the Handbook, differences in the treatment of various groups do exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities. We have received no evidence from the appellant to establish that the discrimination he might possibly suffer by relocating within the Punjab or elsewhere within India will amount to persecution for a Convention reason.

In the light of these factors we find that India will not fail in its duty to protect the appellant’s core human rights.

There is no need for us to address the fifth issue in any detail. We have left open the question whether the appellant is a member of a particular social group, namely persons apparently in possession of money. This question must await determination in another case after we have had the benefit of full argument.

CONCLUSION
By way of summary our conclusions are as follows:
1.    The appellant does not now (i.e. presently) have a bona fide subjective fear of returning to India.

2.    The harm originally feared by him is of sufficient gravity to constitute persecution.

3.    However, his fear is not well-founded and there is no real chance that the harm feared will occur.

4.    We leave open the question whether the harm feared by the appellant is harm connected with or related to one of the five Convention reasons.

5.    It cannot be assumed that the authorities in India will fail in their duty to protect the appellant from the harm feared.

6.    As the appellant can access effective protection in some part of his country of origin, and as it would not be unreasonable to expect him so to do, he cannot be said to be at risk of persecution.

For these reasons we find that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is dismissed.

“R P G Haines”

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[Chairperson]