Refugee Status Appeals
Authority
REFUGEE APPEAL NO.
71462/99
AT AUCKLAND
Before:
R P G Haines QC (Chairperson)
P Millar (Member)
Counsel for the
Appellant:
Margaret Robins
Appearing for the
NZIS:
Neville Menezes
Date of
Hearing:
10 & 11 June 1999
Date of
Decision:
27 September 1999
DECISION
CONTENTS
INTRODUCTION
THE
APPELLANT'S CASE
THE
DECISION TO DECLINE AT FIRST INSTANCE
SIGNIFICANCE
OF FIRST INSTANCE DECISION
CIVIL
WAR
The
State Complicity Issue
Establishing
the Nexus in a Civil War Situation
The
Decision in Adan
The
Decision in Adan Assessed
Civil
War - Conclusions
PERSECUTION
DOES NOT REQUIRE 'SYSTEMATIC CONDUCT'
THE
ISSUES
ASSESSMENT
OF THE APPELLANT'S CASE
Credibility
Whether
a Real Chance of Persecution
Convention
Reason
Internal
Protection Alternative
CONCLUSION
INTRODUCTION
[1] 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, a Tamil
and a citizen of the Democratic Socialist Republic of Sri Lanka.
[2] He arrived in
New Zealand on 28 March 1998 and sought refugee status at the airport.
The Refugee Status Branch interview was on 5 November 1998 but the
decline
decision was not issued until 23 April 1999.
THE
APPELLANT'S CASE
[3] Both the
appellant's
mother and father are deceased. They are survived by four sons and one
daughter. The eldest son has lived in Germany since 1986 where he
apparently
has refugee status. The second and third eldest sons have not been
heard
of since they last left Sri Lanka in October 1996 for India. The fourth
eldest child is the appellant who is currently 23 years of age and
single.
The youngest sibling is the appellant's sister. She is currently in the
Czech Republic where she has sought refugee status. Although born in
Vavuniya,
the appellant has lived most of his life in Jaffna or in its
surrounding
districts.
[4] Due to their
Tamil ethnicity, various members of the appellant's family have
suffered
over the years. His grandfather lost property during the 1956
anti-Tamil
riots and, along with one of the appellant's uncles, was killed during
the 1983 anti-Tamil riots. In 1984, following an attack by the
Liberation
Tigers of Tamil Eelam (LTTE) on Sri Lankan Army forces, the appellant's
eldest brother was arrested by the army and jailed for two years. Upon
his release he went to Germany where, as mentioned, he now lives.
[5] Over the next
10 years, as the civil war in the north and east of Sri Lanka ebbed and
flowed, the family moved at least seven times to escape the fighting,
which
included the bombing and shelling by the Sri Lankan army and navy of
Tamil
civilian areas. In July 1987 the second and third eldest brothers were
arrested by the army and detained for two months. During this period
they
were tortured. At about this time the Indian Peace Keeping Force (IPKF)
became responsible for security in the north and east under the terms
of
the Indo-Sri Lanka accord. The IPKF too suspected young Tamil males of
being members of the LTTE with the result that the two brothers were
frequently
detained and questioned. The second eldest brother was eventually sent
by the appellant's father to Colombo for safety but three days after
his
arrival in Colombo was denounced as an LTTE supporter by a
pro-Government
Tamil group, PLOTE. After travelling to Colombo the appellant's father
was able to secure the release of the son who was sent to India in
December
1988 for safety. However, while the father was in Colombo, the third
eldest
son was arrested and detained by the IPKF. Upon the father's return to
the north, he and the appellant went to the IPKF army camp to secure
the
release of the third son. At the camp both the appellant and his father
were beaten up by another pro-Government Tamil group, the ENDLF. The
third
eldest son was not released until January 1989. On his release, he too
was sent to India for his safety.
[6] In November
1989
the appellant's mother died from a heart attack. Early medical
assistance
could not be accessed due to an IPKF-imposed curfew.
[7] By late 1991
the
appellant and his family were living at the appellant's maternal
grandmother's
house in Point Pedro. The two brothers who had been sent to India
returned
in May 1994. As the family were living in an LTTE controlled area, the
appellant and his brothers came under increasing pressure from the LTTE
to join them and from time to time the brothers would be taken by the
LTTE
to do work for them.
[8] In May 1995
the
appellant's father died from jaundice. Due to the years of protracted
fighting,
he was unable to access medicines or medical facilities and the LTTE
refused
to issue passes to allow the second and third eldest sons to escort
their
father south to obtain medical help.
[9] After the death
of his father, the appellant went into business with a cousin brother
who
had found a way of smuggling food and grocery items into
LTTE-controlled
areas from government-controlled Vavuniya. The appellant, in turn, sold
these items on a commission basis. It was a profitable venture carrying
with it the advantage that the appellant was largely left alone by the
LTTE, provided he paid taxes to them. His brothers were not, however,
that
fortunate. In September 1996 they were taken by the LTTE to dig
bunkers.
After one of the brothers was injured by shrapnel during shelling by
the
Sri Lankan army, both brothers fled to India by boat. Since that time
neither
the appellant nor any other member of the family has heard from them.
[10] On 5 September
1997 the appellant's cousin brother was arrested by the LTTE on
suspicion
that he was acting as an informant for the Sri Lankan army. The
reasoning
was that the cousin would only be able to bring in goods from the army
controlled area if he was an informant. Five days later the appellant
himself
was arrested by the LTTE. For the first 10 days he was tortured by
being
beaten for extended periods. The LTTE wanted information about his
cousin.
After the first 10 days the appellant was taken to a LTTE camp where he
was detained for the next five months. There he was forced to work for
the LTTE washing clothes, cleaning quarters, cooking food and digging
bunkers.
During this period the appellant came under fire from the Sri Lankan
army
and persons working with him were killed. Due to the poor conditions,
the
appellant contracted dengue fever and became so weak that he was
eventually
released by the LTTE in early February 1998. He was told, however, not
to go anywhere. With the assistance of his sister he was able to obtain
medicine from the Red Cross and ultimately recovered.
[11] Fearing
further
arrest by the LTTE, the appellant decided to go to Colombo to live with
an uncle. He did not, however, have any identity papers due to the
dislocation
of the administration in the north caused by the civil war. When the
appellant
reached Vavuniya he was detained by the security forces. For the first
two days he was questioned about his identity and the purpose of his
journey.
While being questioned he was beaten on his hands and legs with a stick
or baton. Later he was taken to a nearby transit camp and instructed to
report to the Vavuniya police station twice a day. While in the transit
camp he, along with three or four other young male Tamils, was taken to
a PLOTE camp for several hours where, once again, he was questioned and
beaten for some 10 to 15 minutes. Thereafter he was returned to the
transit
camp but two of the other Tamil males were not. Eventually, by paying
money
to PLOTE he was able to obtain a pass allowing him to travel south to
Colombo.
After seven days at Vavuniya, the appellant left for Colombo on 15
March
1998.
[12] Upon the
appellant's
arrival in Colombo by train he was arrested at the station by police
after
failing to produce an identity card during a routine check. The
arresting
officers told him that as he had no identity papers, they suspected
that
he was a member of the LTTE.
[13] The appellant
was held at the Pettah police station for three days. On the first day
he was questioned about his identity, how he had obtained a pass to
travel
to Colombo and the purpose of his trip to Colombo. The police made it
clear
that they suspected him of being a member of the LTTE and beat him on
each
of the two to three times that they questioned him that day. They also
burnt him with cigarettes and a cigarette lighter. In this regard the
medical
evidence tendered at the appeal hearing establishes that the appellant
has an elliptical scar on the left forearm and several small scars over
the chest and abdomen which, in the opinion of the medical
practitioner,
could have been caused by burns inflicted by cigarettes and a cigarette
lighter. The appellant says that the police officers also crushed his
toes
by stamping on them while he was barefoot.
[14] On the second
day of detention the appellant's uncle came to the police station to
secure
his (the appellant's) release but in this he was unsuccessful. That day
the appellant was questioned some four or five times and on each
occasion
subjected to painful beatings. On the third day the uncle returned,
bringing
his employer. After paying a substantial bribe, they secured the
appellant's
release that day, 18 March 1998, but not before he had been beaten that
day one more time.
[15] The appellant
was advised by his uncle and his uncle's employer (also a Tamil) that
he
(the appellant) would have to leave Sri Lanka as it was not possible
for
him to live in Colombo with any safety. All the young Tamil men the
employer
had taken on at his business had been arrested. The uncle spoke to an
agent
who was able to arrange a passport for the appellant and his passage to
New Zealand. On 23 March 1998 the appellant left Colombo for Singapore.
He did not have any difficulty leaving Colombo as he was escorted
through
the airport procedures by the agent. On the instructions of the agent,
the passport was destroyed by the appellant on the flight to New
Zealand.
[16] Shortly before
the appeal hearing the appellant established telephone contact with his
sister in the Czech Republic. From her he has learnt that following his
(the appellant's) departure for Colombo, his sister was questioned by
the
LTTE who wanted to know the appellant's whereabouts and why he had left
the north without their permission. She was held for two months, beaten
and made to cook for the LTTE. Following her release she had left Sri
Lanka.
THE
DECISION TO DECLINE AT FIRST INSTANCE
[17] The refugee
status
officer who interviewed the appellant found him to be a credible
witness
and his account was accepted in its entirety. The decision then
addressed
separately his fear of persecution at the hands of the LTTE and at the
hands of the security forces.
[18] As to the
LTTE,
the officer concluded that there was nothing to suggest that the LTTE
viewed
the appellant with suspicion on account of his cousin brother, that
there
was less than a real chance that the LTTE was aware that he had left
their
area without their approval and therefore there was less than a real
chance
that they would kill him. It should be observed that if the appellant's
evidence concerning what he has now been told by his sister is true,
these
findings can no longer be supported.
[19] As to the
security
forces, the officer took the view that the only ground upon which they
might take an interest in the appellant was if they discovered that he
had worked, albeit unwillingly, for the LTTE. As there was less than a
real chance that they would discover this information, there was no
real
chance that the appellant would be seen either as an LTTE terrorist or
collaborator.
[20] As to the
general
human rights abuses committed by the security forces, the officer took
the view that the appellant could avoid such abuses by staying away
from
the army's forward defence line. The officer did not, however, address
the risk faced by the appellant behind army lines, and in particular
the
risk he faced in Colombo. Given that the officer had accepted that the
appellant had been arrested and tortured in Colombo, the omission is a
serious one.
[21] While the
officer
accepted that the security forces did commit human rights abuses, he
interpreted
the country information as showing that the abuses did not constitute
persecution
because such violence was sporadic and unplanned. The officer relied on
the unreported decision of a single Judge of the Federal Court of
Australia
in Periannan Murugasu v Minister for Immigration and Ethnic Affairs
(28 July 1987, Wilcox J) in which the following statement appears:
"The word 'persecuted'
suggests
a course of systematic conduct aimed at an individual or at a group of
people. It is not enough that there be fear of being involved in
incidental
violence as a result of civil or communal disturbances".
[22] The officer
then
referred to Adan v Secretary of State for the Home Department
[1999]
1 AC 293, 311A; [1998] 2 WLR 702, 713B; [1998] 2 All ER 453, 463e (HL)
where Lord Lloyd (with whom Lord Goff, Lord Nolan and Lord Hope agreed)
stated:
"... where a state of
civil
war exists, it is not enough for an asylum-seeker to show that he would
be at risk if he were returned to his country. He must be able to show
that Mr Pannick calls a differential impact. In other words, he must be
able to show fear of persecution for Convention reasons over and above
the ordinary risks of clan warfare."
[23] Relying on
these
authorities the refugee status officer concluded that the appellant had
not shown a fear of persecution for a Convention reason over and above
the ordinary risks of civil war. The conclusion was that the
appellant's
fear was of civil war, not of persecution.
[24] The officer's
decision goes on to record that as in his opinion there was no real
chance
that the appellant would be persecuted upon return to Sri Lanka, the
fear
of persecution was not well-founded. The last sentence of this
paragraph
records, somewhat strangely, that it was therefore unnecessary to
examine
whether the fear of persecution was for a Convention reason.
[25] We say
"strangely"
because it is necessarily implicit in the officer's earlier finding
that
he had found that the risks faced by the appellant were not at all for
reason of being a Tamil.
SIGNIFICANCE
OF FIRST INSTANCE DECISION
[26] The
Authority
was told by Ms Robins, who is not without experience in this area, that
since at least late 1996, virtually all young Tamil males from Sri
Lanka
have been granted refugee status at first instance. In April 1999 that
pattern was reversed. In a number of decisions issued at the end of
that
month, virtually all applications were declined, essentially for the
reason
that the applicants had a fear of civil war, not of persecution.
Produced
to the Authority were two further examples of such decisions. Mr
Menezes
did not dispute the account given by Ms Robins. He advised the
Authority
that the Refugee Status Branch does indeed apply the unreported
decision
of Wilcox J in Periannan Murugasu (1987) as well as a decision
of
the Australian Refugee Review Tribunal, namely N 97/16416 (12
August
1998) which cites not only Periannan Murugasu but also the
decision
of Hill J in Mohamed v Minister of Immigration and Multicultural
Affairs
(1998) 51 ALD 666. The Refugee Status Branch also relies on the
decision
of the House of Lords in Adan. Mr Menezes said that the Refugee
Status Branch sought the guidance of the Authority on cases arising
from
civil war and civil war-like situations.
[27] The Authority
is now called upon to decide whether the decisions relied on by the
Refugee
Status Branch were correctly decided and should be followed and applied
in New Zealand. In this regard, it is not without significance that the
Full Court of the Federal Court of Australia in Minister for
Immigration
and Multicultural Affairs v Abdi (1999) 162 ALR 105 (O'Connor,
Tamberlin
and Mansfield JJ) expressly declined to follow Adan on the
civil
war point and the decisions of Wilcox J and Hill J must now be
considered
to have been overruled unless, of course, the issue comes before the
High
Court of Australia and a different view of the law is taken there. The
issue was expressly left open by Hayne J sitting as a single Judge of
the
High Court in Re Minister for Immigration and Multicultural
Affairs;
Ex parte SE (1998) 158 ALR 735, 742.
[28] All of the
case
law and related legal material cited in this decision has been
disclosed
both to the appellant and to the Refugee Status Branch and an
opportunity
has been afforded to them to make submissions.
CIVIL
WAR
[29] In view of
the
approach taken by the Refugee Status Branch not only to this case but
also
to the others drawn to our attention, and in view of the request for
guidance,
the Authority must now determine, for the purpose of New Zealand
domestic
law, the legal principles to be applied to refugee claims arising from
civil war situations. If the discussion which follows travels beyond
the
specific confines of the present case, the explanation lies in the need
to provide a hopefully coherent exposition of the basic principles.
[30] It is common
to find that in civil wars and other situations of generalized violence
that human rights abuses are committed not only by the combatants on
the
different sides (the state and the opposing group(s)), but also by
other
groups and individuals who may have no connection with either the state
or any of the warring factions. Very often the reasons for the
commission
of the human rights abuses will be mixed. As far as the victims, or
potential
victims of the abuses are concerned, the identity of the agent of
persecution
and the reasons for the persecution matter little.
[31] The response
of the international community to the plight of such persons has not,
however,
been a uniform one. The Organization of African Unity Refugee
Convention,
otherwise known as the Convention Governing the Specific Aspects of
Refugee Problems in Africa, 1969 (1)
specifically includes within its Article 1 definition of the term
"refugee"
not only persons who have a well-founded fear of persecution for
reasons
of race, religion, nationality, membership of a particular social group
or political opinion, but also persons who are compelled to leave their
place of habitual residence in order to seek refuge:
"owing to external
aggression,
occupation, foreign domination or events seriously disturbing public
order
in either part or the while of his country of origin or nationality...."
[32] The later Cartagena
Declaration on Refugees, 1984 adopted by Central America, Mexico
and
Panama built on the OAU Convention. Conclusion 3 includes among
refugees
person who:
"have fled their country
because their lives, safety or freedom have been threatened by
generalized
violence, foreign aggression, internal conflicts, massive violation of
human rights or other circumstances which have seriously disturbed
public
order." (2)
As noted by Professor
James
C Hathaway in The Law of Refugee Status (Butterworths, 1991) at
20, this definition was approved by the 1985 General Assembly of the
Organization
of American States, which resolved "to urge Member States to extend
support
and, insofar as possible, to implement the conclusions and
recommendations
of the Cartagena Declaration on Refugees".
[33] The
similarities
between these two expanded definitions are discussed by Eduardo
Arboleda
in "The Cartagena Declaration of 1984 and its Similarities to the 1969
OAU Convention - A Comparative Perspective" (1995) IJRL Special
Issue
87.
[34] But the 1951
Refugee Convention and the 1967 Protocol remain the principal
international
instruments benefiting refugees in Europe, Canada, the United States of
America, Australia and New Zealand. The Convention is more narrow in
its
application, applying only to 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 ..."
[35] In the result,
while
civil wars and situations of generalized violence are expressly
included
in the OAU Convention and in the Cartagena Declaration, their inclusion
in the 1951 Convention rests on the interpretation of the language of
the
Convention as informed by the Vienna Convention on the Law of Treaties,
1969.
The
State Complicity Issue
[36] In some
European
countries, notably Germany and France, a narrow interpretation has
found
favour. In relation to the state complicity issue, both countries
subscribe
to what has been called the "accountability" theory in contrast to the
"protection" theory adopted by the majority of the other state parties
to the Convention, including many of the European countries, together
with
the United States, Canada, Australia and New Zealand. The
"accountability"
theory has very recently been described by Laws LJ delivering the
decision
of the English Court of Appeal in R v Secretary of State for the
Home
Department; Ex parte Adan (unreported, 23 July 1999) at para 43 as
follows:
"Put shortly, the
"accountability"
theory limits the classes of case in which a claimant might obtain
refugee
status under the Geneva Convention to situations where the persecution
alleged can be attributed to the State. German law requires an
asylum-seeker
to show that he fears persecution (on a Convention ground) by the
State,
or by a quasi-State authority. If he relies on persecution by non-State
agents, it must be shown to be tolerated or encouraged by the State, or
at least that the State is unwilling to offer protection against it.
The
German courts hold that the Convention has no application in cases
where
there is no effective State authority, as in a situation of civil war."
[37] Laws LJ goes
on
to observe at para 45 that the distinct approach in France is to deny
refugee
status where there is a functioning state authority in the country of
feared
persecution, but it is unwilling (cf unable) to afford protection.
[38] The
accountability
theory has not escaped criticism. Indeed in the judgment of the English
Court of Appeal delivered by Laws LJ in R v Secretary of State for
the
Home Department; Ex parte Adan (unreported, 23 July 1999), the
"accountability"
theory is wrong in law. See paras 71 and 72:
"[71] From all
these
considerations it follows that the issue we must decide is whether or
not,
as a matter of law, the scope of Art. 1A(2) extends to persons who fear
persecution by non-State agents in circumstances where the State is not
complicit in the persecution, whether because it is unwilling or unable
(including instances where no effective State authority exists) to
afford
protection. We entertain no doubt but that such persons, whose case is
established on the facts, are entitled to the Convention's protection.
This seems to us to follow naturally from the words of Art. 1A(2): '...
is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country'; and this involves no technical or
over-legalistic
reading of the provision. This interpretation is supported by the
approach
taken in paragraph 65 of the UNHCR Handbook. We have described the
Handbook's
genesis, to which we attach some importance. While the Handbook is not
by any means itself a source of law, many signatory States have
accepted
the guidance which on their behalf the UNHCR was asked to provide, and
in those circumstances it constitutes, in our judgment, good evidence
of
what has come to be international practice within Art. 31(3)(b) of the
Vienna Convention.
[72] This view of
Art. 1A(2) is sought to be contradicted by the proposition that the
historical
matrix of the Geneva Convention shows that the evil it was
designed
to confront was that of persecution by the State. Certainly it is plain
that in the years immediately following the Second World War - the
Convention
was made in 1951 - State persecution was perceived as a terrible vice
which
fell to be countered by the civilized international community: witness
not only the Geneva Convention, but also the European Convention on
Human
Rights and Fundamental Freedoms, the Universal Declaration of Human
Rights,
and the very institution of the United Nations. But this argument as to
the scope of Art. 1A(2) is in our judgment deprived of all its force by
the 1967 Protocol to the Convention, whose preambles we have set out.
It
is clear that the signatory States intended that the Convention should
afford continuing protection for refugees in the changing circumstances
of the present and future world. In our view the Convention has to be
regarded
as a living instrument: just as, by the Strasbourg jurisprudence, the
European
Convention on Human Rights is so regarded. Looked at in this light, the
Geneva Convention is apt unequivocally to offer protect (sic) against
non-State
agent persecution, where for whatever cause the State is unwilling or
unable
to offer protection itself."
[39] We mention
only
a handful of other challenges to the accountability approach. First
there
is the UNHCR critique in An Overview of Protection Issues in
Western
Europe: Legislative Trends and Positions Taken by UNHCR (1995)
27-30.
Second, Dr Joachim Henkel, a Judge at the German Federal Administrative
Court, Berlin, has challenged the accountability theory from, as it
were,
within. See his paper delivered at the First International Judicial
Conference
on Asylum Law held at the Inner Temple, London in December 1995
entitled
"Who is a Refugee: Refugees from Civil War and Other International
Armed
Conflicts" reproduced in Asylum Law (1995) at 17. At the second
conference of the International Association of Refugee Law Judges held
at Nijmegen in January 1997, an equally direct challenge was made by
Frédéric
Tiberghien, Maître des requetes, Conseil d'Etat, Paris, France in
his paper "Persecution by Non Public Agents" which is reproduced in Refugee
and Asylum Law: Assessing the Scope for Judicial Protection
(Nederlands
Centrum Buitenlanders, 1997) 105. Useful reference might also be made
to
Walter Kälin, "Refugees and Civil Wars: Only a Matter Of
Interpretation?
(1991) 3 IJRL 435 and theELENA Research Paper on Non-State Agents
Persecution
(London, November 1998) which is reproduced on the UNHCR CD-Rom Refworld
7th ed (January 1999).
[40] In terms of
Commonwealth jurisprudence, the English courts accept that included in
the refugee definition are not only those subject to state persecution,
but also those who are subject to persecution by factions within the
state.
If, for whatever reason, the state in question is unable to afford
protection
against factions within the state, then the qualifications for refugee
status are complete: Adan v Secretary of State for the Home
Department
[1999] 1 AC 293, 305H; [1998] 2 WLR 702, 708D; [1998] 2 All ER 453,
458j
(HL) (per Lord Lloyd of Berwick).
[41] The law in
Australia
is the same. See Chan v Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379, 430 (HCA) per McHugh J and more recently Applicant
A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
(HCA) where Brennan CJ at 233 said the definition spoke of "a fear of
persecution
that is official, or officially tolerated or uncontrollable
by the authorities of the country of the refugee's nationality"
(emphasis
added). In the same case McHugh J at 258 said:
"Persecution by private
individuals or groups does not by itself fall within the definition of
refugee unless the State either encourages or is or appears to
be
powerless to prevent that private persecution". [emphasis added]
[42] For a recent
application
of these principles in the context of Tamil refugee claimants, see Paramananthan
v Minister for Immigration and Multicultural Affairs (1998) 160 ALR
24, 33 per Wilcox J (FC:FC) (Wilcox, Lindgren and Merkel JJ). This
decision
was followed and applied in Nagaratnam v Minister for Immigration
and
Multicultural Affairs (1999) 164 ALR 119 (FC:FC) (Lee, Moore and
Katz
JJ). It should be observed that in the former case the Refugee Review
Tribunal
had declined refugee status for reasons very similar to those offered
by
the refugee status officer in the present case. The country information
referred to by all three Judges convincingly challenges the notion that
young displaced Tamil males who had previously resided in the Jaffna
peninsular
can presently relocate in Colombo. Yet this decision was not referred
to
in the refugee status officer's decline decision in the present case.
[43] In the United
States of American, asylum law explicitly recognizes that a state is
obligated
to take reasonable measures to ensure the enjoyment and protection of
fundamental
rights, including, under certain circumstances, protection against
their
violation by non-state or "private" actors. It is well established,
therefore,
that in addition to governmental agents, persecutors may include
non-state
entities or persons that the government is unable or unwilling to
control.
See the analysis by Deborah E Anker in Law of Asylum in the United
States
3rd ed (Refugee Law Centre, 1999) at 184-199. Reference can
also be made to Mark R von Sternberg, "The Plight of the Non-Combatant
in Civil War and the New Criteria for Refugee Status" (1997) 9 IJRL 169.
[44] The point
which
was emphatically made in Canada (Attorney General) v Ward
[1993]
2 SCR 689, 709 (SC:Can) is that under the Refugee Convention there is
no
requirement that persecution emanate from the state and it does not
matter
whether a claim to refugee status is based on the "unable" or
"unwilling"
branch of the definition. While finding little in the travaux
préparatoires
of assistance, La Forest J, delivering the decision of the Supreme
Court
of Canada, found support in the UNHCR Handbook on Procedures and
Criteria
for Determining Refugee Status, para 65, academic writing,
decisions
of the Federal Court of Canada and jurisprudence from the United States
of America, and in particular, McMullen v Immigration and
Naturalization
Service 658 F. 2d 1312 (1981). As to the state complicity issue,
the
Supreme Court of Canada concluded at 716-717 that:
"The international
community
was meant to be a forum of second resort for the persecuted, a
'surrogate',
approachable upon failure of local protection. The rationale upon which
international refugee law rests is not simply the need to give shelter
to those persecuted by the state, but, more widely, to provide refuge
to
those whose home state cannot or does not afford them protection from
persecution.
The former is, of course, comprised in the latter, but the drafters of
the Convention had the latter, wider purpose in mind. The state's
inability
to protect the individual from persecution founded on one of the
enumerated
grounds constitutes failure of local protection.
I, therefore, conclude
that
persecution under the Convention includes situations where the state is
not in strictness an accomplice to the persecution, but it is simply
unable
to protect its citizens."
[45] As to the
unable
and unwilling issue, the Supreme Court at 719 rejected the suggestion
that
"unable" requires no state complicity, but that "unwilling" does. The
Court
found that the dichotomy is not supported by the text of the Convention
or by the relevant authorities. The conclusion of the Court at 719 was
that ineffective state protection is encompassed within the concept of
"unable" and "unwilling" and at 720 that:
"Whether the claimant is
'unwilling' or 'unable' to avail him-or-herself of the protection of a
country of nationality, state complicity in the persecution is
irrelevant.
The distinction between these two branches of the 'Convention refugee'
definition resides in the party's precluding resort to state
protection:
in the case of 'inability', protection is denied to the claimant,
whereas
when the claimant is 'unwilling', he or she opts not to approach the
state
by reason of his or her fear on an enumerated basis. In either case,
the
state's involvement in the persecution is not a necessary
consideration.
This factor is relevant, rather, in the determination of whether a fear
of persecution exists."
[46] The holding in
Ward
that state complicity in persecution is not a pre-requisite to a valid
refugee claim has been expressly adopted and applied by this Authority
in Refugee Appeal No. 2039/93 Re MN (12 February 1996) at
17-18.
As that decision records, this Authority has from its first hearings in
June 1991 (see Refugee Appeal No. 11/91 Re S (5 September
1991))
accepted that there are four situations in which it can be said that
there
is a failure of state protection:
(a) Persecution committed
by the state concerned.
(b) Persecution
condoned
by the state concerned.
(c) Persecution
tolerated
by the state concerned.
(d) 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.
[47] The principle
that state complicity in persecution is not a pre-requisite to a valid
refugee claim flows from the language of Article 1A(2) itself and has
been
confirmed by the overwhelming trend of international case law. With the
principal exceptions of France, Germany, Austria and Switzerland, it
can
be said that the international consensus is that the Refugee Convention
applies where the state is unable to protect its inhabitants from
persecution
at the hands of an agent of persecution, be it a state agent or a
non-state
agent. Thus, at a distance of eight years, the Authority confirms its
unbroken
line of authority since Refugee Appeal No. 11/91 Re S (5
September
1991).
[48] It follows
that
the fact that the appellant's case is based (in part) on fear of
persecution
at the hands of non-state agents does not affect the basic inquiry
mandated
by the Refugee Convention. In both state and non-state agent cases the
inquiry is the same, that is, does the claimant have a well-founded
fear
of persecution for a Convention reason and is he or she unable, or
owing
to such fear, unwilling to avail him or herself of the protection of
the
country of his or her nationality.
Establishing
the Nexus in a Civil War Situation
[49] The Refugee
Convention requires that the fear of persecution be for reason of
one of the five permitted Convention grounds. That is, there must be a
link or nexus between the anticipated harm and the claimant's race,
religion,
nationality, membership of a particular social group or political
opinion.
Unless this link can be established, the claim to refugee status must
fail.
See generally Professor James C Hathaway, The Law of Refugee Status
(Butterworths, 1991) 135-141.
[50] Addressing the
nexus issue in the specific context of civil war and conflict,
Professor
Hathaway at op cit 185 sees two points emerging from the
drafting
history of the Refugee Convention:
"First, victims of war
and
conflict are not refugees unless they are subject to
differential
victimization based on civil or political status. Second, it follows
that
it is incumbent on decision-makers to examine the claims of persons in
flight from violence in order to ascertain whether their particular
circumstances
disclose any evidence of a link between the harm feared and their civil
or political status." [emphasis in original]
[51] It follows,
says
Professor Hathaway at op cit 187 that the mere fact that the
conflict
escaped is based on religion or politics is not relevant unless persons
of a particular religion or political perspective are differentially at
risk. Two specific situations of differential risk are then referred to
by Professor Hathaway in this passage. First, where the civil war or
violence
is directed at a particular social subgroup or second, where there
exists
a risk of serious harm specific to persons defined by a particular form
of civil war political status. With this analysis we agree. The
practical
difficulty, however, is that the very nature of civil war situations
will
often preclude access to the facts required for judgments of this kind
to be made. More often the decision-maker will, of necessity, be forced
to make a broad and general assessment. In this process there is a
danger
of too readily arriving at a pronouncement that no-one is
"differentially
at risk."
[52] This brings
us to the question of what is meant by "differentially at risk" and how
one determines whether a specific refugee claimant is at differential
risk
for a Convention reason. Suppose that a civil war is between two
opposed
religions, with every citizen of the state at real risk of persecution
because he or she belongs to one religion or the other. On one view, as
every citizen faces exactly the same risk of persecution, there is no
"differential"
risk. But if one were to ask why any specific refugee claimant from
that
country was at risk of persecution, the answer would have to be that it
was "for reason of" his or her religion. We believe that this answer
would
satisfy this element of the Convention definition. One must not confuse
equality of risk of harm with the equality of reason
for that harm. The well-foundedness element (ie, the risk issue) is a
separate
inquiry to that of the "for reason of" element (ie, the nexus issue).
So
while it is convenient to speak in the short-hand of a differential
risk
in order to emphasize the specific focus of the "for reason of"
element,
the very phrasing of the short-hand expression can, unfortunately, lead
to a conflation of the risk element with the "for reason of" or nexus
requirement.
If this happens, a person at real risk of serious harm for reason of
his
or her religion will be required to establish that he or she is more
at risk of serious harm for reason of his or her religion than others
who
are equally at real risk of serious harm for reason of their religion.
This is a requirement to establish a double-differential risk. Such
approach,
we believe, amounts to a misdirection in law.
[53] The
difficulties
inherent in both the fact finding exercise and in determining the "for
reason of" element are possibly illustrated by the very recent Adan
case.
The
Decision in Adan
[54] In Adan v
Secretary of State for the Home Department [1997] 1 WLR 1107;
[1997]
2 All ER 723 (CA) the English Court of Appeal determined two issues:
-
A present fear of
persecution
is not required by the refugee definition. A fear of persecution when
the
claimant leaves his or her country of origin (historic fear) is enough;
- A state of civil
war, whose
incidents are widespread clan and sub-clan based killing and torture
can
give rise to a well-founded fear of persecution, notwithstanding that
the
individual claimant is at no greater risk of adverse treatment than
others
who are at risk in the civil war for reasons of their clan and sub-clan
membership.
[55] In Refugee
Appeal
No. 70366/96 Re C (22 September 1997); [1997] 4 HKC 236 this
Authority
held in relation to (a) that the English Court of Appeal was wrong in
law
and should not be followed in New Zealand on this point. The Authority
was not, on the facts of the appeal, called on to determine the
correctness
of the holding in (b).
[56] Subsequent to
the delivery of the Authority's decision, the House of Lords heard the
appeal in Adan in January 1998. In a judgment delivered on 2
April
1998, the House of Lords in Adan v Secretary of State for the Home
Department
[1999] 1 AC 293; [1998] 2 WLR 702; [1998] 2 All ER 453 (HL) held, in
relation
to (a) that the Court of Appeal decision was indeed wrong and that the
Convention requires a current well-founded fear of persecution. A
historic
fear was not sufficient. The Authority's decision in Refugee Appeal
No. 70366/96 Re C was cited with apparent approval. As to (b), the
House of Lords held that killing and torture incidental to a clan and
sub-clan
based civil war did not give rise to a well-founded fear of being
persecuted
within the meaning of the Refugee Convention where the asylum-seeker
was
at no greater risk of such ill-treatment by reason of his clan or
sub-clan
membership than others at risk in the war.
[57] The Authority
must now determine whether the House of Lords ruling in relation to (b)
should be followed and applied in New Zealand.
[58] Lord Slynn of
Hadley at 302C; 704H; 455f accepted, both on the authorities and on
principle,
that there can be persecution of a group and that the individual in the
group does not have to show that he has a fear of persecution distinct
from, or over and above, that of his group. He went on to explain:
"Thus if in a state two
groups exist, A and B, and members of group A threaten to or do
persecute
members of group B the latter should, other necessary matters being
established,
be able to claim refugee status. If at the same time members of group B
are persecuting or threatening to persecute members of group A the
claim
should be the same. The position is even stronger if the persecution is
not exactly simultaneous but those in power change from time to time so
that the persecutors become the persecuted."
[59] Lord Lloyd of
Berwick,
with whom Lord Goff, Lord Nolan and Lord Hope agreed, equally accepted
these principles and at 310B; 712B; 462e said:
"It is now accepted that
generalised oppression may indeed give rise to refugee status, as
Professor
Hathaway makes clear. It is not necessary for a claimant to show that
he
is more at risk than anyone else in his group, if the group as a whole
is subject to oppression. This is clearly right. But it does not touch
on the more difficult questions which arise when a country is in a
state
of civil war."
[60] As can be seen
from
the last sentence of this passage, their Lordships did not accept that
these principles applied in a civil war situation.
[61] Lord Slynn
based
his conclusion on "the language of the Convention and its object and
purpose",
though he offered no analysis of the language, object or purpose. He
simply
stated that the Convention did not apply to those caught up in a civil
war when law and order have broken down and where every group seems to
be fighting some other group or groups in an endeavour to gain power.
He
stated at 302E; 705C; 455j:
"In such a situation
what
the members of each group may have is a well-founded fear not so much
of
persecution by other groups as of death or injury or loss of freedom
due
to the fighting between the groups."
[62] His holding
was
that in such a situation the individual or group has to show a
well-founded
fear of persecution over and above the risk to life and
liberty
inherent in civil war.
[63] The approach
taken by Lord Lloyd at 311B; 713B; 463e was very much the same:
"I conclude from these
authorities,
and from my understanding of what the framers of the Convention had in
mind, that where a state of civil war exists, it is not enough for an
asylum-seeker
to show that he would be at risk if he were returned to his country. He
must be able to show what Mr Pannick calls a differential impact. In
other
words he must be able to show fear of persecution for Convention
reasons
over and above the ordinary risks of clan warfare."
The
Decision in Adan Assessed
[64] If their
Lordships'
ruling is that unless a refugee claimant can demonstrate a real risk of
persecution for a Convention reason the grant of refugee status cannot
be justified, we would respectfully agree.
[65] The
difficulty,
however, arises in the application of the principle to the facts. At
one
end of the spectrum one could suppose a civil war which, while based on
religion or politics, results in the persecution of civilians
irrespective
of their religion or politics; the persecution is indiscriminate and
not
affected by the religion or politics of the individual victim. In such
a situation, a refugee claimant would not satisfy the "for reason of"
requirement
by showing, without more, that he or she came from a situation of civil
war. Refugee status would only be appropriate if it could be
established
that he or she came within one or other of the two exceptions
identified
by Professor Hathaway, namely that there was in the claimant's case a
differential
risk based on civil or political status, or a risk of serious harm
specific
to persons (including the claimant) defined by a particular form of
civil
or political status. At the other end of the spectrum, however, is the
situation postulated in para 52 above in which a civil war based on
religion
results in every citizen being at real risk of persecution for reason
of
his or her religious beliefs with the result that there is no
"differential"
risk as such. A refugee claimant from such situation would not, in our
view, be required to establish a differential risk as the "for reason
of"
element is already satisfied on the facts.
[66] In our
opinion,
the civil war in Somalia falls towards the latter end of the spectrum.
That is, with the greatest of respect to the view taken in the United
Kingdom,
it is one which is pre-eminently based on race, as understood in the
broad
and non-technical sense explained in King-Ansell v Police
[1979]
2 NZLR 531, 533 line 50 per Richmond P; 536 line 30 per Woodhouse J and
542 line 40 per Richardson J (CA); Mandla v Dowell Lee [1983] 2
AC 548, 563-564 (HL) and Refugee Appeal No. 1222/93 Re KN (5
August
1994) 23. This does not mean that all Somalis are refugees. But the
context
of the conflict might go some considerable distance towards explaining
why, in any particular case, the refugee claimant is at risk of
persecution
for a Convention reason.
[67] If a refugee
claimant from such a civil war is at risk of persecution because of his
or her race, it is not possible to ignore that fact simply because it
is
a civil war situation and to require the individual to show a
super-added
risk, that is, in the words of Lord Lloyd, to show a fear of
persecution
for Convention reasons over and above (emphasis added)
the
"ordinary risks of clan warfare". Yet on our interpretation, this is
precisely
what the decision in Adan requires, a fact underlined by the
explicit
recognition in the passage taken from the judgment given by Lord Lloyd
that the civil war in Somalia is "clan warfare". The implicit holding
is
that to be at risk of serious harm in a civil war because of one's race
is not enough to meet the Convention definition.
[68] If the Adan
decision is to be so understood, the Authority declines to follow it.
For
the reasons given earlier, the risk of persecution and the reasons for
that persecution are separate elements. And as to the latter, there can
be no requirement that a person who, along with others, is at risk of
persecution
for a Convention reason must also show that he or she is more
at risk for that Convention reason than those others. The essential
point
is that once a refugee claimant shows that he or she faces a real risk
of persecution "for reason of" one of the five Convention reasons,
nothing
more can be required.
[69] The danger
inherent
in any other approach is that it will have the effect of re-introducing
the notion, at least in civil war situations, that a refugee claimant
at
risk for one of the five Convention reasons must also establish that he
or she will be singled out. This is an old heresy, but an apparently
enduring
one: James Crawford & Patricia Hyndman, "Three Heresies in the
Application
of the Refugee Convention" (1989) 1 IJRL 155, 159-167; Professor James
C Hathaway, The Law of Refugee Status (Butterworths, 1991)
90-97
and 185-188; Professor Guy S Goodwin-Gill, The Refugee in
International
Law (2nd ed, Oxford, 1996) 76-77; Deborah E Anker, Law
of Asylum in United States 3rd ed (Refugee Law Centre,
1999)
67-74. This Authority has long identified the "singled out" requirement
as a misdirection in law. See Refugee Appeal No. 4/91 Re SDJ
(11
July 1991).
[70] Lying behind
the majority decision delivered by Lord Lloyd was the overt concern
(308E;
710H-711A; 461d) that otherwise, participants on both sides of the
civil
war would be entitled to protection under the Convention, but not those
"lucklessly endangered on the sidelines". In our view the intended
effect
of the Refugee Convention was to exclude from protection both those
among
the participants and those among the lucklessly endangered who cannot
show
a well-founded fear of persecution for a Convention reason. Put another
way, it would be quite insufficient for a participant to assert,
without
more, that because he or she comes from one or other of the sides to
the
conflict that therefore he or she is a Convention refugee. Much more
must
be shown and the factual context will be all important, as illustrated
by the example given at paragraph 52 above where on the extreme facts
given
in the hypothetical, because every citizen is in danger
of
persecution for a Convention reason, refugee status would be
appropriate.
[71] In the result,
while the Authority accepts the principle that those at risk of serious
harm in a civil war are not by reason of that fact alone entitled to
the
protection of the Convention, where individuals are at risk of serious
harm because of their civil or political status, recognition of refugee
status is appropriate. The decision in each case will turn on the
evidence
as to whether there is a Convention reason for the anticipated harm.
See
Refugee Appeal No. 2/92 Re NS (23 July 1992) 6-7 and Professor
James
C Hathaway, The Law of Refugee Status (Butterworths, 1991) at
185-188.
Once the evidence establishes the required nexus, refugee status cannot
be denied simply because of the civil war context and it is not
necessary
that the Convention ground should be the sole reason for
the fear. See Jahazi v Minister for Immigration and Ethnic Affairs
(1995) 133 ALR 437, 443 (French J) approved in Minister for
Immigration
and Multicultural Affairs v Abdi (1999) 162 ALR 105, 112 (FC:FC)
(O'Connor,
Tamberlin and Mansfield JJ).
[72] In Adan,
the House of Lords upheld the decision of the Immigration Appeal
Tribunal
to decline refugee status on the following facts found by the Tribunal
(311H; 713H; 464c):
"Likewise, we find that
there is no evidence that [Mr Adan] would suffer persecution on account
of his membership of the Habrawal sub-clan of the Isaaq clan, from
members
of the armed groups of other clans or sub-clans, and we find that,
while
we accept that inter-clan fighting continues, that fighting and the
disturbances
are indiscriminate and that individuals from all sections of society
are
at risk of being caught up therein, and that the situation is no worse
for members of the Isaaq clan and the Habrawal sub-clan than for the
general
population and the members of any other clan or sub-clan."
[73] This
Authority's
assessment of the human rights situation in Somalia is very different,
as can be seen from the recent decision of the Authority in Refugee
Appeal No. 71314/99 (10 June 1999). The Authority's perception of
the
present country conditions accords more with the findings made by the
Committee
Against Torture in Elmi v Australia (Communication No.
120/1998,
14 May 1999) and with the reports of the independent expert on the
situation
of human rights in Somalia, appointed by the Commission on Human
Rights,
the most recent of which is Situation of Human Rights in Somalia:
Report
of the Special Rapporteur, Ms Mona Rishmawi, Submitted in Accordance
with
the Commission on Human Rights Resolution 1998/59 E/CN.4/1999/103
(18
February 1999). It may be that the explanation for such differences as
there are between the New Zealand and the United Kingdom approaches is
to be found in this divergent assessment of the facts.
[74] It is of
relevance
that Adan has not been followed by the Full Court of the
Federal
Court of Australia in Minister for Immigration and Multicultural
Affairs
v Abdi (1999) 162 ALR 105 (FC:FC) (O'Connor, Tamberlin and
Mansfield
JJ), though for differently expressed reasons. In that case the refugee
claimant was also a national of Somalia. Addressing the nexus issue in
a civil war context, the Full Court stressed at para 21 that the
inquiry
is a broad and purposive one:
"In order to appreciate
what is covered by such civil or clan warfare, it is essential for a
decision-maker
to look beyond the existence of a state of war and to determine whether
the war is directed to objectives such as securing power, property and
access to resources, or whether in reality it is directed against
persons
or groups because of race, religion or group membership. Unless
attention
is focused on the reasons for the war, it is difficult, if not
impossible,
to determine whether the antagonism is based on Convention grounds. It
is not enough to dismiss an application simply on the basis that there
is a war without looking at the motivations or purposes involved. Civil
wars vary greatly in character and objectives. Of course, it is not
necessary
that the Convention ground should be the sole reason for
the fear: see Jahazi v Minister for Immigration and Ethnic Affairs
(1995) 61 FCR 293 at 299; 133 ALR 437 at 443. This is because the
adoption
of a sole purpose test would render the Convention protection largely
ineffectual."
[75] After
analysing
the speeches given by Lord Slynn and Lord Lloyd in Adan, the
Court
held at paras 37, 38, 39, 40 and 42:
"[37] In
approaching
the question of persecution in the context of a civil war, it is
important
to keep firmly in mind the wording of the Convention definition. The
definition
makes no reference to any different approach being adopted where the
persecution
exists in the context of civil war. There is no exclusion. The relevant
question raised by the language of the definition requires a
determination,
on the evidence, of whether the harm or detriment is for a Convention
reason.
In the present case there appears to be a risk of serious harm in
Somalia
even to bystanders and those on the sidelines who are incidentally
caught
up in what might be called the 'cross-fire'. This, however, is not
sufficient.
The evidence must go further and disclose a Convention connection
between
the persecution of the applicant or the clan to which he belongs and
the
risk of harm. This in turn calls for a consideration, so far as can be
determined on the evidence, as to the purpose and nature of the war,
the
way it is conducted, and the objectives sought to be achieved by the
war.
[38] In relation
to Adan, we do not accept that a clan or race-based war cannot,
without some further and differential degree of risk, amount to
persecution
in the sense that an individual is selected out for persecution
treatment
because he is a member of a particular clan. If evidence establishes,
for
example, that the objective of a war is to harm the opposing party for
one or more Convention reasons, then "persecution" will be made out. It
is somewhat odd to suggest that claimants are precluded from refugee
status
solely on the ground, for example, that a conflict based on race or
religion
which gives rise to the fear can be described as a "war". The task of
the
decision-maker in these circumstances must be to investigate the
reasons
underlying the war and the way it is conducted in order to ascertain
whether
it is based on a Convention ground or has an objective which is covered
by the Convention, namely, race, religion or other stated reasons. This
responsibility cannot be curtailed by a conclusion that there is a
state
of war.
[39] It is
difficult,
with respect, to see the basis on which a super-added requirement of
'greater
risk', 'differential risk' or 'risk over and above that arising from
clan
warfare' can be derived as a criterion for application of the
Convention
definition where the war is based on race or religion rather than, for
example, a quest for property, power or resources. For example, once it
is established that a person is at risk of being killed or tortured in
a war by reason of clan membership, in circumstances where that is one
of the objectives of the war, one might properly ask what further
degree
of danger or exposure needs to be established before the required nexus
with a Convention reason is made out? Given the purpose of the
Convention
and the well-settled principle that a broad, liberal and purpose of
interpretation
must be given to the language, it is difficult to see the reason why a
'second tier' of 'differential' or super-added persecution should be
imposed
on an applicant for refugee status.
[40] If their
Lordships
in Adan intended that the reference to clan warfare meant
warfare
engaged in between clans or sub-clans for reasons such as the
acquisition
of dominance or power, the control of territory, or to obtain access to
resources, then the broader statements of their Lordships would, in our
view, be in accordance with accepted principles. Indeed, Lord Slynn (at
705) speaks of a type of civil war which is a struggle to gain power.
He
does not refer to a civil war which is necessarily concerned with
racial
or religious considerations. However, in contrast to the approach of
Lord
Slynn it is evident that Lord Lloyd, and the other three members of the
House who concurred in his judgment, intended to impose the additional
and undefined requirement of some form of fear of harm 'over and above'
that 'ordinarily incidental' to a civil war, even where the civil war
is
fought on racial or religious grounds. In our view, there is no basis
for
the imposition of this additional requirement of differential treatment
either in the language or objectives of the Convention.
[41] ...
[42] In our view
the statements made in Adan travel beyond the requirements of
the
Convention by imposing additional or differential requirements where
the
civil war in question is based on racial or clan grounds and not
grounds
such as a struggle for power or dominance, the acquisition of
territory,
the appropriation of property or the acquisition of access to strategic
resources or facilities. In the latter examples, examples where the
civil
war is not directed to racial persecution, it is necessary of course,
to
establish the existence of selective harassment on a Convention ground,
whereas in the former example such a ground is already present because
the civil war is properly characterized as race based."
[76] With these
statements
we respectfully agree.
Civil
War - Conclusions
[77] The inquiry
mandated by Article 1A(2) of the Refugee Convention in civil war
situations
is no different from that required in other situations. What must be
borne
in mind, however, is that the factual inquiry may be more complex and
there
is a need to ensure that what the refugee claimant faces is not
generalized
violence, but a specific risk of harm "for reason of" one of the
Convention
reasons. These two points are made by Professor Hathaway in The Law
of Refugee Status (1991) at 188:
"This decision
underscores
the critical importance of inquiring into all of the circumstances of a
claimant coming from an area which suffers from generalized violence in
order to discern whether or not the risk faced by a particular
individual
or group is in fact rooted in civil or political status, in which case
refugee status may follow.
Thus, while the general
proposition is that the victims of war and violence are not by virtue
of
that fact alone refugees, it is nonetheless possible for persons coming
from a strife-torn state to establish a claim to refugee status. This
is
so where the violence is not simply generalized, but is rather directed
toward a group defined by civil or political status; or, if the war or
conflict is non-specific in impact, where the claimant's fear can be
traced
to specific forms of disfranchisement within the society of origin."
PERSECUTION
DOES NOT REQUIRE 'SYSTEMATIC CONDUCT'
[78] It is a
misdirection
to require, (as the refugee status officer did in the present case),
that
an applicant for refugee status demonstrate "systematic conduct" aimed
at the refugee claimant. As pointed out by McHugh J in Chan v
Minister
for Immigration and Ethnic Affairs (1989) 169 CLR 379, 430 (HCA),
it
is not a necessary element of "persecution" that the individual should
be the victim of a series of acts. A single act of oppression may
suffice.
However, as a matter of evidence, systematic conduct, if present, will
go towards showing the fear to be well-founded. But there is no
requirement
in law that, for an application for refugee status to succeed, the
claimant
must show a series of co-ordinated acts directed at him or her which
can
be said to be not isolated but systematic. See Abdalla v Minister
for
Immigration and Multicultural Affairs (1998) 51 ALD 11, 19-20
(FC:FC)
(Burchett, Tamberlin and Emmett JJ); Mohamed v Minister of
Immigration
and Multicultural Affairs (1998) 51 ALD 666, 671-673 (Hill J) and Anjum
v Minister for Immigration and Ethnic Affairs (1998) 52 ALD 225,
230-232
(Sackville J).
THE
ISSUES
[79] The
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?
ASSESSMENT
OF THE APPELLANT'S CASE
Credibility
[80] The Authority
accepts, without reservation, the account given by the appellant and it
follows that his case falls to be determined on the facts previously
set
out under the heading "The Appellant's Case".
Whether
a Real Chance of Persecution
[81] We turn to the
first issue, namely whether on the facts as found, there is a real
chance
of the appellant being persecuted if returned to Sri Lanka.
[82] As to the
LTTE,
he was detained by them in the period September 1997 to February 1998.
During this time he was tortured, put to work (sometimes while under
fire)
and subjected to harsh living conditions. Past persecution alone,
however,
is not enough to satisfy the forward-looking assessment mandated by the
Refugee Convention: Refugee Appeal No. 70366/96 Re C (22
September
1997); [1997] 4 HKC 236. As to whether there is a real chance of the
appellant
facing persecution in the future, it must be remembered that the
appellant
was only released by the LTTE when he became too ill to work. On his
release
he was warned not to go anywhere. Following his escape from the north
his
sister was questioned by the LTTE who wanted to know his whereabouts
and
why he had left the north without their permission. The sister, in
turn,
was held for two months, beaten and made to cook for the LTTE. On these
facts the only rational conclusion is that should the appellant return
to the north, there is a real chance that he will suffer serious harm
at
the hands of the LTTE. His fear of persecution at their hands is
accordingly
well-founded.
[83] We turn now
to the appellant's fear of persecution at the hands of the Sri Lankan
security
forces. It is significant that as soon as the appellant entered the
Government
controlled area at Vavuniya he was detained and questioned. While he
was
able to bribe his way out of this difficulty, he was arrested
immediately
upon his arrival in Colombo. His arrest was due to the fact that he is
male, a Tamil, from the north and without identity papers. He was
detained
at a Colombo police station for three days and tortured there for
reason
only of the fact that the characteristics we have just listed identify
him as someone who, in the eyes of the authorities, is a member of the
LTTE. Again, while past persecution is not required of a refugee
claimant,
where evidence of past persecution exists, it is unquestionably an
excellent
indication of the fate that may await the individual upon return to the
country of origin: Refugee Appeal No. 70366/96 Re C (22
September
1997) 32. The risk of harm must be assessed against the known
conditions
in the country of origin.
[84] The country
information to which we have been referred establishes that the Sri
Lankan
security forces carry out mass arrests of Tamils, particularly in
Colombo.
The main targets of these mass arrests are young Tamil men and women.
The
numbers involved in these Colombo arrests are considerable. For
example,
in late March and early April 1998 1,500 Tamils from around Kotahena
and
300 from Welawatte and Bambalapitiya were taken in for questioning. It
is estimated that 5,000 Tamils were arrested in early April from
residential
areas, hotels and lodges. Other sources estimate that the total for
March
and early April was 10,000 Tamils questioned from the Colombo suburbs
of
Maradana, Kotahena, Pettah, Modera, Fort, Welawatte, as well as Mount
Lavinia
and Dehiwela. Most were released in 72 hours, but an unknown number
were
detained further: Research Directorate, Immigration and Refugee Board,
Ottawa, Canada, Sri Lanka: Internal Flight Alternatives: An Update
(October 1998). As of April 1998, according to the Attorney General,
there
were 1,000 cases pending before the Colombo courts, "almost all against
Tamils" under the Emergency Regulations and Prevention of Terrorism Act
and over 600 detainees in Colombo and Kalutara prisons. It is not clear
how long these detainees had been held: Sri Lanka: Internal Flight
Alternatives:
An Update (October 1998). The Department of State, Country
Reports
on Human Rights Practices for 1998: Sri Lanka Vol II (April 1999)
1963,
1970 reports that security forces continue to conduct mass detentions
and
arrests of young Tamils, both male and female and major sweeps and
arrests
occur in Colombo. Further reference can be made to the UNHCR Background
Paper on Sri Lanka for the European Union High Level Working Group on
Asylum
and Migration (18 March 1999).
[85] We are
satisfied
on the voluminous information we have sighted (not all of which we have
cited), that should the appellant return to Colombo, or indeed to any
other
part of Sri Lanka, he will remain at real risk of further detention and
torture by reason of the same factors we have mentioned, namely he is
male,
a Tamil, from the north and without identity papers. His fear of
persecution
at the hands of the state authorities is well-founded. It follows that
the first issue must be answered in the affirmative.
Convention
Reason
[86] The civil war
and related violence in Sri Lanka is undoubtedly based on issues of
both
race and politics. Because the evidence is one way, we do not intend to
rehearse it. It is sufficient to note that we have found the following
sources of the greatest assistance: Professor Virginia A Leary, Ethnic
Conflict and Violence in Sri Lanka (Report of a Mission to Sri
Lanka
in July-August 1981 on behalf of the International Commission of
Jurists,
August 1983); Paul Sieghart, Sri Lanka: A Mounting Tragedy of Errors
(Report of a Mission to Sri Lanka in January 1984 on behalf of the
International
Commission of Jurists, March 1984); Patricia Hyndman, Democracy in
Peril
- Sri Lanka: A Country in Crisis (LawAsia, June 1985); Walter
Schwarz,
The Tamils of Sri Lanka (Minority Rights Group Report No 25,
1988).
[87] Turning to the
second issue against this background, there can be no doubt, on the
facts
we have found, that there are at least two Convention reasons for the
anticipated
persecution of the appellant at the hands of the authorities, namely
his
Tamil race and his (imputed) political opinion, being his perceived
support
of or allegiance to the LTTE. The Convention reason in relation to the
persecution feared at the hands of the LTTE is an (imputed) political
opinion
of supporting the government. The second issue must accordingly be
answered
in the affirmative.
Internal
Protection Alternative
[88] No extended
discussion is required of the issue whether the appellant can genuinely
access domestic protection which is meaningful. The country information
to which we have referred quite clearly establishes that a person of
his
profile (male, of the Tamil race, from the north and without identity
papers)
will be at risk of serious harm at the hands of the security forces
wherever
he might go in Sri Lanka. There is no site of internal protection where
he will not face a risk of persecution at their hands for a Convention
reason. Our finding is consistent with the country information
discussed
in greater detail in Paramananthan v Minister for Immigration and
Multicultural
Affairs (1998) 160 ALR 24 (FC:FC) (Wilcox, Lindgren and Merkel JJ).
CONCLUSION
[89] Applying the
law to the facts as found, the appellant is a person who holds a
well-founded
fear of persecution for a Convention reason. Refugee status is granted.
The appeal is allowed.
..........................................
[Chairperson]
FOOTNOTES
1.
The
text of the Convention Governing the Specific Aspects of Refugee
Problems
in Africa, 1969 is conveniently reproduced in the UNHCR, Collection
of International Instruments and Other Legal Texts Concerning Refugees
and Displaced Persons Vol II (Geneva, 1995) p 3 and in Plender
(ed),
Basic Documents on International Migration Law 2nd
rev
ed, (The Hague, Martinus Nijhoff, 1997) p 187.
2.
The
text of the Cartagena Declaration on Refugees, 1984 is
conveniently
reproduced in the UNHCR, Collection of International Instruments
and
Other Legal Texts Concerning Refugees and Displaced Persons Vol II
(Geneva, 1995) p 206 and in Plender (ed), Basic Documents on
International
Migration Law 2nd rev ed, (The Hague, Martinus Nijhoff,
1997) p 192.