High Court Cases
High Court Auckland M109/97
27 August 1997; 27 August
1997
Morris J
Judicial review - Reasonableness - Specialist tribunal
Relocation - Internal flight alternative
In 1989 the plaintiff, a citizen of India, arrived in New Zealand and in 1990 applied for refugee status. In 1993 when his application was dismissed he appealed to the Refugee Status Appeals Authority (RSAA). In 1995 the appeal was dismissed, the RSAA holding that the appellant could relocate, as he could genuinely access meaningful state protection in India, and it was reasonable in all the circumstances to expect him to do so. The plaintiff sought judicial review of the decision of the RSAA.
Held: On the evidence, the RSAA could have come to no other conclusion than the one it reached. There was no evidence that the plaintiff would be of any interest to authorities outside his home area. The RSAA is a specialist tribunal and due regard must be had to its experience (see paras [3], [8] & [9]).
Application dismissed
Counsel
S D Patel for the
plaintiff
B H Dickey for the
defendants
MORRIS J [1] The plaintiff seeks a review of a decision of the Refugee Status Appeals Authority given on 7 December 1995 refusing him refugee status. In support of the application he has filed an affidavit and I have had put before me a transcript of the evidence and hearing before the Authority and a copy of its decision. I have also had the benefit of extensive submissions from Mr Patel and Mr Dickie.
[2] The statement of claim as filed raised three grounds on which I was asked to rule the decision wrong but two of these have been abandoned and the application has proceeded on the basis the decision of the Authority was unreasonable and was one which no reasonable tribunal could come to on the evidence before it. There is no challenge to the law as stated and applied by the tribunal in its decision and therefore it is necessary and has been necessary for me to consider the evidence placed before it as drawn to my attention by counsel and the findings of fact made by the tribunal in its judgment.
[3] I remind myself in considering the application this tribunal has, what can fairly be described as a specialist tribunal which no doubt has had considerable experience in the field in which it operates and I must therefore pay due regard to such experience in considering the submissions made before me.
Background
[4] I gather the plaintiff arrived in New Zealand on 2 August 1989 from India. He is an independent citizen who prior to his arrival in this country lived in the state of Punjab. He lived at his parent's home with his wife and three infant children. He is a Hindu by faith. Prior to his leaving India, he suffered persecution from the police because of his imputed political opinions. He was also threatened with execution by Sikh extremists who demanded food and shelter from him on at least one occasion. I gather from the document supplied by Mr Patel, on the day following his having to give food and shelter to these extremists he was forcibly taken into police custody and accused of sheltering and harbouring Sikh terrorists. He remained in police custody for two days during which time he was interrogated and tortured and was released only after, as I understand it, his father-in-law made payment - a euphemistic name for a bribe - to the police. His injuries suffered while in police custody required hospitalisation and subsequent to his release he hid for four months until arrangements were made for him to travel to New Zealand. I understand from Mr Patel during these four months the police on at least three, if not more, occasions made enquires as to his whereabouts but he was able to evade capture by moving about the area of his 'village staying with relatives and friends but not moving beyond a radius of 100 miles from his home village. The steps taken were such as to enable him to avoid detection. It is unclear whether this was because of the minimal interest by the police or his ability to hide successfully. It is probably a combination of both.
[5] Subsequent to his arrival in New Zealand, the plaintiff applied for refugee status on 17 October 1990. He was interviewed by a Refugee Status branch employee in July 1993 and on 10 August 1993 a decision was given declining his application. The appellant appealed to the Refugee Status Appeals Authority ("Appeals Authority") on 2 August 1993. The hearing of his application came before the Appeals Authority on 25 July 1995 and was, as I have said, refused on 7 December of that year.
[6] The Appeals Authority judgment expands over no less than 12 pages. It accepted the facts as I have outlined them and in particular the plaintiff's claims of police arrest and beatings. It accepted there was what one can term an informant in his home village who no doubt was the cause of the police being informed of his whereabouts and the bringing of the police to his home. The Appeals Authority accepted the plaintiff's fear was genuine. They were of sufficient gravity to constitute persecution and fell within the grounds recognised by the Convention on Refugees. This is not disputed by the respondents to this appeal. The sole issue is whether the Appeals Authority was justified in finding the plaintiff could genuinely access protection which was meaningful by relocating elsewhere in India and concluded in all the circumstances it was reasonable to expect him to do so. The Appeals Authority accepted if the plaintiff were to return to his home village, his return would be reported to the police by an informer and accordingly the police interest in him would be rekindled and could result in his apprehension, interrogation and further maltreatment. But it went on to say this:
2. We accept that the appellant has been subjected to severe and brutal treatment which resulted in serious internal injury and required surgery for the abscess which developed. Recovery and recuperation took two months. We have noted, however, that this episode was an isolated one which took place some six years ago. It is the only incident of police maltreatment which the appellant suffered at the hands of the authorities. There is no evidence before the Authority which would suggest that such an event has had a major psychological impact on the appellant, of a long-lasting nature, nor that there is any important degree of permanent disfigurement, pain, or disability which resulted.
3. The appellant is an educated man with a university degree. He speaks Hindi and English as well as Punjabi. He held substantial employment as a storekeeper in a leather factory. He would accordingly be better qualified and placed than many to re-establish himself in a new environment. In this regard, we note that the appellant has 10 members of his extended family who live in India. He also has a married sister. We therefore consider that the appellant would have available to him, at the very least from one of his family members, any support or assistance he may require to start a new life elsewhere in India.
After careful consideration of all of these factors and mindful of the presumption that a state will protect its nationals this Authority concludes that a case has not been established upon which we can find that this appellant could not access domestic protection which is meaningful by relocating elsewhere in India, or that it would be unreasonable to expect him to do so."
[9] In my view on
the evidence before it, the Appeals Authority could come to no other conclusion
but the one it reached. I would have come to the same conclusion.
The application is accordingly dismissed. In the circumstances I
make no order as to costs.
Solicitors for the plaintiff:
Sandringham Law Centre (Auckland)
Solicitors for the defendants:
Crown Solicitor (Auckland)