Refugee Status Appeals Authority
REFUGEE APPEAL NO. 73889/02
AT AUCKLAND
Before: D J Plunkett (Chairperson)
J Baddeley (Member)Representing the Appellant: Rachel Smyth
Date of Hearing: 29 and 30 October 2002
Date of Decision: 19 December 2002
DECISION DELIVERED BY J BADDELEY
[1] This is an appeal against a decision of a refugee status officer of the Refugee Status Branch (RSB) of the New Zealand Immigration Service (NZIS) declining the grant of refugee status to the appellant, a citizen of Pakistan.
THE INTERPRETATION ISSUE
- (a) He gave the example of himself having used an English word: "agitation" which the interpreter had also used.
- (b) The appellant was also concerned that the interpreter had used the word "country" rather than countryside although in the context it was clear that the interpreter was referring to a rural area as opposed to an urban area.
- (c) The appellant then raised the fact that the interpreter had used the words "black turban" to describe a particular gang. The interpreter confirmed that the appellant had actually used the Pushtu words for black turban and the exact translation had been given.
The Provision of an Interpreter
"20: Provisions of Independent Interpreters at Interviews -
1. It is the responsibility of the relevant refugee status officer or the Authority, as the case may require, to arrange the attendance of an independent interpreter at an interview where the first language of the claimant or appellant or person whose refugee status is in question is not English. It is it should be noted that this provision is framed in terms of a statutory duty to provide an independent interpreter, rather than the "right" of the appellant to have an interpreter of his or her choice.
"In the determination of any criminal charge against him, everyone should be entitled to the following minimum guarantees, in full equality:
…
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in Court."
"The duty under Regulation 20 of Immigration Refugee Processing Regulations 1999 to arrange for the attendance of an independent interpreter as an interview where the first language of the claimant is not English is not an unrestricted one. Nor under International Human Rights instruments is the right to an interpreter an unrestricted one … Although not necessary for the purposes of this decision we are also of the view that a claimant cannot refuse to proceed with an interview in a language in which the claimant is sufficiently proficient even though the language is not of the claimant’s choice nor in a language in which the appellant normally expresses him or herself."
[18] From the aforementioned authorities and statutory provisions, it is clear that an appellant does not have the "right" to an interpreter of his or her choice. His right is to an interview in a language in which he is sufficiently proficient. He has no right to another interpreter because he feels uncomfortable with the one provided on political grounds. It must be remembered that in Auckland, and more so in other centres in New Zealand, there is only a limited pool of competent, experienced interpreters.
THE APPELLANT’S CASE
- (a) Fear of militant Shia in particular one group the TJP.
- (b) Fear of the Pakistani police.
THE ISSUES
"... 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
(a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?
(b) If the answer is yes, is there a Convention reason for that persecution?
ASSESSMENT OF THE APPELLANT’S CASE
- (a) Fear of Shia
The appellant’s claimed fear of Shia terrorists was presented to the RSB on the following terms:
- (i) He began to fear Shia terrorists after the assassination of his leader on 22 February 1990. Many Sunni leaders had been killed by Shia.
- (ii) In 1991 he was run down by a car driven by members of the TJP and suffered head injuries. At about the same time he was attacked twice by Shia while travelling on the bus - his clothes were torn and he was punched.
- (iii) In his absence overseas, his family’s home was raided by Shia eight or nine times since November 1996. The family did not report these raids to the police.
At the hearing before the Authority the appellant was surprisingly unforthcoming given the detailed account he had given to the RSB of harassment and victimisation by Shia. He was asked three times whether he had ever been attacked by Shia. He replied he was away overseas. After the third such enquiry, it was put to him that he had told the RSB that he had been run down by Shia. This prompted his memory of the incident but he denied actually knowing whether those responsible were Shias. He then said he suspected they may have been Shia because at the time his group had taken a case against Shia. He was then asked if there were any other occasions of assaults by Shia, but he replied that there were not. When reminded of the two personal assaults on the bus he had described to the refugee status officer he replied that he could not recall these.
The Authority asked the appellant whether he or his family had experienced any attacks or assaults from the Shia since 1991. He replied that his family had no problems - "only the leader suffers". He had previously given evidence that he had not personally been harmed in any way by Shia since 1991, the Authority asked whether his family had been attacked, harassed or experienced any problems from Shia. He replied that they were afraid to leave their village to attend school in the city because of the presence of Shia. He was referred to the account given to the RSB of eight or nine raids on his home by Shia in or about 1996. This account was contained in a letter written by his lawyer as a reply to the RSB interview report. To the Authority he denied any knowledge of these raids.
The appellant’s account of Shia hostility has reduced from Shia raiding his home and assaults on him personally [as told to the RSB] to one occasion when he was knocked off his bicycle by unknown people [his evidence to the Authority]. The version presented to the Authority is not evidence of past persecution and provides no basis for the existence of a prospective harm from Shia on return. Furthermore the variability and unreliability of his evidence over time causes the Authority to conclude that he does not have even a genuine, subjective fear of Shia.
- (b) Fear of Police
The appellant’s evidence at the RSB was that the police continue to pursue him because of his previous position as secretary of the SSP and their continued interest in him has resulted in harassment of his family.
His evidence in a letter from his lawyer (dated 29 February 2002) replying to the RSB interview report was that his brother had been arrested and questioned every year in the month of Muharram since the appellant’s departure from Pakistan. He was taken in 2002 and this happened frequently. He was warned by the police not to give any public speeches. Whenever there were incidents of sectarian violence, his brother was arrested and questioned because the police suspected him of belonging to one of the groups involved.
To the Authority, the appellant stated that his brother had been arrested only once, taken to court and sentenced but the reason for this arrest was unknown to the appellant. In addition he conceded that his brother’s situation had no relevance to his own. Faced with the evidence earlier provided in his lawyer’s letter, the appellant replied that he did not think he had said that, but perhaps he had been referring to his oldest son rather than his brother. This unlikely explanation was rendered even more problematic given his own subsequent admission that his son had not in fact been arrested each Muharram but only twice at demonstrations.
The appellant emphasised the arrests of his son at the appeal hearing. He had not mentioned this at all prior to or during the RSB interview (indeed, he had said that no one in his family had been arrest (apart from his brother)). It was first revealed in the previously mentioned lawyer’s letter of 29 April 2002. When asked why he had not told the refugee status officer earlier of his son’s arrest, he replied that he answered all questions which were asked. This is an entirely unsatisfactorily reply assuming as it does some unwarranted prescience on the part of the refugee status officer regarding details of the appellant’s son’s experiences.
Furthermore he told the Authority that his son was arrested solely on account of the appellant, not because of his son’s suspected involvement in any group. However he had earlier told the RSB (in a letter from his counsel dated 29 April 2002) that the police suspected his son of involvement in "one of the groups". The explanation he proffered for this discrepancy was that he did not know of his son’s affiliation to any group - an explanation which does not address this contradiction in his evidence.
The appellant also described how the police came to his home and took his photograph and a record of the address. When asked why they needed a record of the very address they were raiding, his reply was, "It is a good question; I had moved in lots of places". A reply which fails entirely to address the issue of the improbability of the police taking a record of an address which they already had.
The Authority sought an explanation from the appellant as to why the police would be interested in him as a former SSP secretary some 12 years after leaving that position and renouncing all SSP activities at any level. His reply was that the police were relying on their "old records" of the SSP. The Authority does not accept that the police are interested in the appellant because of his innocuous activities as an SSP member some 12 years ago before that party began to use violence to promote their cause. He did not continue to support them while overseas and has stated that he will not join them again while they pursue policies which are unacceptable to him. There is absolutely no reason why the police would have any current interest in a minor political figure whose association with the SSP is historic.
This lack of interest is clearly apparent in the appellant’s ability to move back to his home village and cross the country’s borders frequently without hindrance. The appellant returned to Pakistan in 1992, 1993, 1994 and 1995 without hindrance. He was regular in his habits returning to Pakistan towards the end of each year and leaving in the early months of the following year. It would have been a simple matter for any official of minimal competence to monitor his movements let alone a national police force. His explanation for the ease of which he frequently crossed the border was that the Pakistan police lacked computers.
However not only did he encounter no problems with the officials at the borders but he also remained immune from interference in the intimacy of his village to which he returned and where he remained every year. The police knew he lived there having visited the family home to make enquiries when there was sectarian disturbances. Interestingly he described his annual sojourn in his home village as "safe", a description which attests to the lack of adverse interest in him from either the police or the TJP.
- (c) Well Foundedness
The appellant told the Authority that his fear of persecution derives from the fact that colleagues have been killed. Country information was provided which reported on the endemic sectarian violence in Pakistan and the particular volatility of Muharram, the month of particular religious significance for Shias (Guardian Unlimited, Religious Violence Plagues Pakistan, 14/2/2002; BBC Home Page World Service, Pakistan Steps up Security, 13 April 2000; Pakistan’s Shia Sunni Divide, BBC News, 19 March 2002; BBC News 12 March 2002, Violence at Shia Funeral in Pakistan; CBS, 4 April 2002, Pakistan Arrests Al Qaeda Suspects).
One report shows that the SSP have been banned by the government because of its links with radical Islamic groups supportive of the Taleban. These and other articles provided to the RSB and to the Authority at the appeal hearing have all been considered in this decision. Letters from the appellant’s family and the provincial secretary of the SSP report that Shia have murdered respected scholars and SSP leaders. The appellant has no such profile. He is not an SSP leader. He has had no association with the SSP for the last 12 years. Hence his ability to return annually for a safe holiday with his family from 1992 to 1995.
The appellant had told the RSB and confirmed to the Authority that he had been considering applying for refugee status since 1991 after the SSP leader had been assassinated and he himself was overseas. This was the time when he had most recently been a member of the SSP and therefore was arguably at most risk from Shia and police. However he did not apply for refugee status in Australia in 1992 because he was on a contract with the Muslim Federation in Australia and did not "want to make a fuss" as they were responsible for him. When asked why he had returned each year to Pakistan at a time when he felt he was in danger, he replied that this was in accordance with the terms of his contract and the return air ticket had already been paid for by his employers. He was asked also why he had not told them that he could not return to Pakistan because his life was in danger. To this he replied with a non sequitur.
When it was then suggested that his conduct in returning to Pakistan each year was not consistent with fearing death in Pakistan, he replied "you might think that way, but I have seen the death of colleagues I changed my residence here and there". This is no answer to the alacrity with which he returned to Pakistan each year from 1992 to 1995 and failed to apply for refugee status until 1996 despite having considered this since 1991.
Summary
[41] The appellant is a Sunni Muslim cleric in a country where Sunni Muslims are the predominant religious group. 12 years ago he belonged to a recently banned Sunni group which he left as soon as it became involved in violence. He has lived for several months in his home village to which he returned at the same time every year for four years and crossed the Pakistan border on numerous occasions without hindrance. The appellant has never been personally harassed and has never been harmed by the police and is unsure whether it was Shia who instigated the only harm he has suffered in 1991. He has suffered no serious harm in the past and there is no reason to suggest that he will be harmed on his return to his home village where he says he was "safe".
[42] Since 1996 his family have continued to live there unharmed. With the passing of the years he has distanced himself from the SSP and the chance of being associated with them by either the TJP or the authorities has diminished accordingly.
CONCLUSION
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J Baddeley
Member