Refugee Status Appeals Authority
REFUGEE APPEAL NO. 1496/93
RE LDD
AT AUCKLAND
Before: B.O. Nicholson (Chairman)
R.P.G. Haines (Member)
A.M. Rozdilsky (Member, UNHCR)Appearing for the Appellant: P. Wilson
Appearing for the NZIS: No appearance
Date of Hearing: 21 October 1993
Date of Decision: 10 February 1995
DECISION OF THE AUTHORITY IN RESPECT OF PRC NATIONAL PRIMA FACIE ELIGIBLE FOR PERMANENT RESIDENCE
UNDER THE “SPECIAL APPROVAL SCHEME” DECISION OF THE AUTHORITY DELIVERED BY R.P.G. HAINES
This was an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service which declined the grant of refugee status to the appellant, a citizen of the People’s Republic of China.
The Authority was in the process of preparation of its decision when the Cabinet and Minister of Immigration announced on 23 June 1994, that nationals of the People’s Republic of China, currently in New Zealand, and who had arrived in New Zealand on or before 31 March 1992, were to be eligible to be granted residence in New Zealand subject only to them complying with certain medical and character requirements set out in the terms of the special approval.
This appellant who arrived in New Zealand on 22 March 1991 prima facie falls within the terms of the special approval and it is therefore considered superfluous to complete a full decision of this Authority.
The Authority, however, considers that for the purpose of clarification and possible assistance to the appellant that the brief findings of the Authority should be recorded.
In this case the Authority found the appellant to be a credible witness who has a well-founded fear of persecution based upon his religious or imputed political beliefs. The Authority’s decision, therefore, is that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.
Before departing from the case we wish, however, to make some observations concerning the Refugee Status Section interview which began on 19 October 1992 and continued on 23 March 1993. We also wish to comment upon the terms of the Refugee Status Section letter dated 30 April 1993 in which the refugee application was declined.
THE REFUGEE STATUS SECTION INTERVIEW
The appellant’s case in its simplicity is that in early 1989 he became a Christian after becoming involved with evangelical missionaries from the United States of America who were then in China engaged in proselytizing activities. The group he joined came to the notice of the Public Security Bureau and several members were arrested and severely punished. The appellant was able to escape after a friend with connections obtained a passport for him.In advance of the Refugee Status Section interview, the interviewing officer prepared a seven-page typewritten list of questions concentrating almost exclusively on the appellant’s claim to have converted to Christianity. In places the questions are followed by the officer’s own answers which presumably were the “right” answers sought by him. We provide by way of example only the following:
“How did you reach the rational, psychological, emotional state which triggered your conversion?Why do you think that you are a true Christian?
(personal relationship with God or Christ, taken Christ as Lord, etc)Why do you think your Christian faith is genuine?What does life after death or the hereafter represent in the Christian faith?What is the Trinity?
(father, son and holy spirit, three gods in one) (sic)The bible [sic] talks about knowing people by the fruits. What fruits are there in your life that show you are a Christian?
(fruits of holy spirit, love, joy, peace, patience, goodness, etc)What do you think will happen to you when you die?
(go to heaven)Why do you think that you will go to Heaven?
(not by works but because Jesus died for sins)Can you quote me the Lord’s prayer?
(Our father who art in heaven, hallowed be thy name, thy kingdom come, thine will be done ....) (sic)What is the first book of the Bible?
(Genesis)What is the last book of the New Testament?
(Revelation)How many Gospels are there?
(Four)Can you give me their names in the correct order?
(Matthew, Mark, Luke and John)Do you know the Bible verse which says “For God so loved the world that he gave his only begotten son ....”Can you complete the next section of this verse?
(“that whosoever believes in him should not perish but have everlasting life”)Can you give me the bible (sic) reference for this passage?Then, almost in anticipation of the appellant faltering in the face of this barrage came the question:
(John 3:16).”“Why are you unable to give satisfactory answers to questions relating to Christianity.”Having studied the list of questions the Authority is of the view that they could be answered only with extreme difficulty even by English-speaking persons versed in theology. A memory that permitted the parrot recitation of randomly chosen excerpts from either the Bible or the Psalms would assist. Bearing in mind the considerable translation difficulties raised by the officer's questions and the "trial by ambush" element, it is little wonder that the appellant failed to impress the officer.Our conclusion after taking into account both the list of questions and the officer's subsequent interview report is that the interview was conducted with an almost missionary zeal to "demonstrate" that the appellant was an untruthful individual who had invented the facts of his case in order to unjustifiably claim refugee status. The manner in which the interview was conducted revealed a mindset on the part of the officer. He sought only information which suited the conclusion he had reached before interviewing the appellant. In the result, the appellant was subjected to gross unfairness and the officer, in turn, entirely misdirected himself both as to the facts and as to the law. This can be seen from the terms of the decline letter.
THE REFUGEE STATUS SECTION DECISION
The decline letter of 30 April 1993 is five pages in length and little purpose would be served by setting it out in full. The following paragraphs, however, show the distorted and misconceived views of the officer as to what is relevant in the context of determining refugee status:
"[The appellant] was questioned in some detail on the manner of his religious beliefs. The limited foundation for his purported beliefs is reflected in his superficial knowledge of the Bible. From his limited knowledge of the basis of Christianity it is difficult to believe that [the appellant] could have sufficient knowledge and foundation on which to reach a rational, psychological and emotional belief in Christianity.[The appellant's] responses relating to religion are indicative of a religious belief that haslittle rational basis. While he may have been baptized in China the rationale on which he was baptized would seem to have been only fundamental at best. If there was any foundation for his beliefs and baptism at that time then it is not reflected in his presentknowledge of scripture. His lack of knowledge is indicative that whatever concept hemay have had of Christianity before coming to New Zealand and after his baptism it does not support the presumption that he necessarily has any genuine belief in Christianity. Unless a reasonable knowledge of scripture exists it is not unreasonable to conclude that the person does not have sufficient foundation on which to reach rationally, psychologically and emotionally a belief in Christianity.The fact that [the appellant] may have been baptized in China is not considered to be sufficient in itself to warrant refugee status. In view of his superficial knowledge of the Bible and Christianity it is not unreasonable to conclude that the baptism ceremony was conducted by foreign proselytes without necessarily having any concern as to the actual beliefs of those they have converted. [The appellant] appears to be an example of this phenomenon. It is concluded that any Christian beliefs he may have professed at that time would not necessarily have particular significance in his life. Even if it were to be accepted that his even less than perfunctory knowledge of scripture nevertheless was the basis of a strong belief, country information indicates that he would be able to practise his religious beliefs in an unimpaired and personal manner if he were to return to China.The arrogant assertion that the appellant had not reached a "rational, psychological and emotional stage at which he could reach an informed decision about a belief in Christianity" is astonishing in the refugee context. The officer constructed a frame of reference so distorted that few, if any, could satisfy its terms of reference. In the result, the officer failed to enquire whether the appellant's religious beliefs (inadequate though they may have appeared in the officer's eyes) were nevertheless sincerely held.This Service remains unconvinced that [the appellant] has reached the rational, psychological and emotional stage at which he could reach an informed decision about a belief in Christianity."
The officer also committed an even more fundamental error. The issue is not whether the appellant's new faith is held or practised with sincerity or conviction, but rather, whether his conversion and professed adherence to his new faith create a real chance of persecution by the authorities in China. In the refugee context the views of the agent of persecution are determinative and in that sense the genuineness of the appellant's conversion is beside the point. See further the following passage from Refugee Appeal No. 300/92 Re MSM (1 March 1994) 9-10:
"Finally, we turn to the statement that the Refugee Status Section was not satisfied that the appellant practised his beliefs with any conviction. This is a misdirection. The issue is not whether the appellant's new faith is practised with conviction, but rather, whether his conversion and professed adherence to his new faith could jeopardize his safety in Iran.This principle is illustrated by Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (1992) (7th Cir. December, 7, 1992). Mr Bastanipour, an Iranian national of the Moslem faith, claimed to have converted to Christianity while serving a sentence of imprisonment in the United States for a drug trafficking offence. He applied for refugee status on the grounds (inter alia) that if deported to Iran he could be summarily executed for having converted from Islam to Christianity, a capital offence under Islamic religious law. His application was initially unsuccessful, the Board of Immigration Appeals doubting that Bastanipour's conversion was a genuine one, and that though a capital offence under Moslem religious law, apostasy was not the subject of a specific prohibition in the Iranian penal code. The United States Court of Appeals, Seventh Circuit, reversed the decision of the Board of Immigration Appeals on the grounds (inter alia) that it had asked the wrong question. It was held that it is not a matter whether Mr Bastanipour's conversion was sincere or genuine, rather it was a question of how the purported conversion would be viewed by the authorities in Iran:The issue which should have been addressed by the officer was whether, in the circumstances of the particular case, the appellant faced a real chance of persecution at the hands of the authorities in China because of his religious beliefs."The opinion [of the Board] does not consider what would count as conversion in the eyes of an Iranian religious judge, which is the only thing that would count so far as the danger to Bastanipour is concerned. The offense in Moslem religious law is apostasy - abandoning Islam for another religion. Thomas Patrick Hughes, "Apostasy from Islam" in Hughes, A Dictionary of Islam 16 (1895). That is what Bastanipour did. He renounced Islam for Christianity. He has not been baptized or joined a church but he has made clear, to the satisfaction of witnesses whom the Board did not deem discredited, that he believes in Christianity rather than in Islam - and that is the apostasy, not compliance with formalities of affiliation. Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as hinted but not found by the Board, is acting opportunistically (though at great risk to himself) in the hope of staving off deportation would not, we imagine, matter to an Iranian religious judge." p.1132In the Authority's view these statements of principle are unquestionably correct."After taking into account the appellant's organizational role in his group and also the punishment that has been inflicted on other members who have a similar profile to him, we have concluded that there is a real chance of his persecution if he returns to China. It is abundantly clear that the officials in that country engage in persecutorial conduct whether or not the individual's belief in Christianity has been an informed one after reaching the appropriate "rational, psychological and emotional stage". Nor is the severity of punishment measured by the individual's knowledge of scripture.
"R P G Haines"
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(Member)