Refugee Status Appeals Authority
REFUGEE APPEAL NO. 9/91
AT AUCKLANDBefore: Judge B.O. Nicholson (Chairperson)
R.P.G. Haines (Member)
G.W. Lombard (Member)
Counsel for the Appellant: Mr K.S. Miliszewski
Appearing for the NZIS: Mr B.T. Jenkins
Date of Hearing: 8 July 1991
Date of Decision: 27 August 1991
This is an appeal against the decision of the Refugee Status Section of the Immigration Service declining the grant of refugee status to the appellant, a Sri Lankan national of the Muslim faith.
The appellant’s application for refugee status is based on three principal grounds:
(a) Fear of persecution by reason of his race and religion.
(b) Fear of persecution based upon his father’s record in combatting terrorism while a member of the police force.
(c) Fear of persecution based upon his involvement in charitable work.
THE FACTSIn 1971 there was a major insurrection by members of the Marxist-Leninist Party, the Janatha Vimukthi Peramuna (JVP) (People’s Liberation Front). Some 14,000 young men and women were arrested and detained without trial under emergency laws: Senewiratne, Human Rights Violations in Sri Lanka (1986) 38. The insurrection induced the then President, Mrs Sirimavo Bandaranaike to govern under a state of emergency for nearly six years under emergency powers, holding some thousands in detention at a time: International Commission of Jurists, Sri Lanka: A Mounting Tragedy of Errors (1984) 6. At the general election in 1977 Mrs Bandaranaike’s Sri Lanka Freedom Party (SLFP) lost power, with Mr J.R. Jayewardene’s United National Party (UNP) being returned with an overwhelming majority: Sri Lanka: A Mounting Tragedy of Errors p.6.
These events left a deep scar on a number of persons and it is a matter of record that the JVP has at times since then posed a serious threat to the government of the day. In 1989 it nearly brought down the government by terrorist methods. A convenient summary is to be found in the State Department Country Reports on Human Rights Practices for 1989 at 1561:“In 1989 the JVP stepped up its campaign against the Government and population at large. Likened by some observers to Pol Pot’s Khmer Rouge and the Maoist Shining Path in Peru, the JVP sought to topple Sri Lanka’s elected Government through a campaign of murder, intimidation, and strikes designed to paralyse civil administration, cripple the economy, and disrupt society. It did so despite repeated efforts by the Sri Lankan Government to bring the JVP into the political mainstream. In 1988 the Government had legalized the JVP and invited it to participate in the elections. The JVP responded by killing voters and candidates in an attempt to disrupt elections held in late 1988 and early 1989. In January 1989, in an effort to open a dialog with the JVP, newly elected President Ranasinghe Premadasa released 1,800 JVP suspects and lifted the state of emergency. The JVP nonetheless continued its terror campaign of targeting hospitals, transportation, and other essential services, murdering union leaders who refused to participate in JVP-called strikes and killing the families of security force personnel. At mid-year, the Government began a massive crackdown on the JVP. It detained several thousand JVP suspects. By the end of the year, security forces had captured or killed much of the JVP’s top leadership.”At the time of the 1971 insurrection the appellant’s father was the officer in charge of the Police Station at X. X is on the outskirts of Colombo and on the appellant’s evidence, the JVP has had a particularly strong presence in the X area. During the insurrection the X Police Station was attacked and the appellant’s father played a leading role in the apprehension of a large number of JVP members, most of whom were subsequently sentenced to life imprisonment while a small number received the death sentence. The appellant’s father became well-known in the area for his actions. While some lauded his deeds, others took a different view and from 1971 onwards the appellant’s family was subjected to verbal and written threats from supporters and members of the JVP.
It is to be noted that the family continued to live in X and after retiring from the police force, the appellant’s father set up a private firm there which he ran from his home.
The appellant attended school in Colombo between 1971 and 1985. A certificate has been produced to the Authority recording that he left college in December 1985 having sat his GCE (Advance Level) Examination and states that he was a Senior Prefect of the College. The reference refers to his flair for organization and a marked ability to carry out responsible assignments of work to a successful conclusion.
This is in part a reference to the fact that from 1980 to 1988 the appellant was a participant in a social services club which undertook charitable work such as assisting patients at a local cancer hospital and visiting people in old age homes. The appellant said that from around 1983 many of their projects were sabotaged and the Committee members were threatened with death unless they ceased involvement with the Club. It was believed that the threats were from JVP members and sympathizers who considered the charitable work undertaken by the Club as amounting to support for the UNP Government.
After working in Colombo for a year, in March 1987 the appellant took up a two-year employment contract in the Maldive Islands. The nature of his employment was such that he was required to make three or four business trips back to Sri Lanka. He said that while living in the Maldive Islands men visited his home in X and told his father that the appellant was to keep away from social services club activities or else bad things would happen to the whole family.
In August 1987 the appellant returned to Sri Lanka on holiday. While there, on 24 August 1987, he travelled to Colombo in his father’s car to visit friends. On his return journey he was stopped by men wearing what appeared to be army uniforms. When he stopped the car he discovered they were members of the JVP. After inspecting the appellant’s identification card the men dragged him from the car and assaulted him. They referred to the fact that he was the son of a police officer known to them. They also remarked that he was the person in the social services club who had previously been warned to cease his activities. The appellant was extremely frightened and after pleading with the men was pushed back into his vehicle and told to drive off before he was killed. He was threatened not to report the incident to the police or he would be killed. As a result of this beating the appellant required three stitches for a skin wound on his hip.
At the urging of his parents the appellant cut short his vacation and he returned to the Maldives five days later on 29 August 1987. No complaint was lodged with the police. At the same time his parents decided to sell their property and move closer to Colombo but it proved impossible to find a buyer for the house.
In August 1988 the appellant returned once more to Sri Lanka on a business trip. At that time he met with his fellow committee members of the Club and the group decided to lodge a complaint with the police in relation to the continual threats and harassment received by members of the executive. On 26 August 1988 the appellant made a formal complaint to the police of the threats and intimidations received by persons he described as “insurgents”. He advised the police that he believed that his life was in danger, as were the lives of members of his family. The complaint refers specifically to the visits made to his parents’ home by the insurgents and the threats that had been conveyed to them. A copy of the complaint was produced by the appellant in his evidence. At this time the appellant decided to give up his social service work in the face of the constant threats and intimidation.
In March 1989, at the conclusion of his two-year contract, the appellant returned to Sri Lanka. He was there for 26 days only as he began to receive a number of telephone calls from anonymous persons enquiring where he had been hiding. During this period he also found a number of notices written in red markers pasted to the gate containing further threats. Some of the notices referred specifically to the appellant’s involvement in the social services club and to his father’s career as a policeman.
On the advice of his parents, who were concerned for his safety, the appellant left for New Zealand, arriving in this country in April 1989.
Since his arrival in New Zealand there have been further developments and the following chronology sets out the essential details.
December 1989 The family at X received a telephone call from a person claiming to be a friend of the appellant’s enquiring as to the appellant’s whereabouts. The caller was told by the appellant’s father that the appellant was in the Maldives. The caller replied that the father would be punished for his “atrocities” towards the insurgents in 1971. See the letter dated 2 January 1990 from the appellant’s father.
August 1989 The appellant’s father was forced to close his private business after the office was ransacked, purportedly by JVP members. As a result of this incident the appellant’s father felt it was no longer safe to continue operating the business.
5 January 1990 The appellant lodged an application for refugee status.
early March 1990 Two phone calls were received at the home in X. On both occasions by the telephone was answered by one of the appellant’s brothers. The caller, identifying himself by the name of “Y”, asked for the appellant by name. Asked for the purpose of the enquiry the caller would not respond and hung up. See the letter dated 4 March 1990 from the appellant’s brother.
20 March 1990 On this date there was delivered to the appellant’s home in X a letter from the JVP advising that the JVP had passed “the death penalty” on the appellant and that the sentence would be carried out by “our armed commanding unit”. The letter stated that the sentence had been passed on the appellant for acting against the interests of the JVP, failing to obey their orders, his involvement with “racist Muslim organizations” and the appellant’s father’s involvement in the “killing” of youths in 1971. A photocopy of the letter was produced in evidence at the hearing of the appeal.
21 February 1991 Three people appeared at the family home and asked to speak to the appellant. One of the appellant’s brothers told the callers that the appellant was in the Maldives. The visitor’s replied that “they had to settle some things” with the appellant and then left. A local shopkeeper subsequently informed the brother that people had been enquiring at the shop as to the whereabouts of the appellant. See the letter dated 23 February 1991 from the appellant’s brother.
April 1991 The brother further reported that there had been further telephone calls to the family home enquiring whether the appellant had returned to Sri Lanka. The callers would only identify themselves as "a friend". See further letter from the appellant's brother dated 6 April 1991.
April 1991 The appellant reported that at this time his cousin was taken into custody by the Special Task Force (STF) which is made up of police commandos. The cousin lived seven or eight kilometres from X. He has not been heard of since and it is believed that he has been killed.
June 1991 The appellant’s father reported that the STF had called at the home in X enquiring of the father as to the whereabouts of his children. They were told that all were presently overseas.
Having seen and heard the appellant the Authority accepts that he is a credible witness and that he is genuinely in fear. It is further accepted that in relation to the threats from the JVP, the appellant is in fear of persecution.
PERSECUTION BY STATE AGENTSThe Authority does not accept that the appellant has a well-founded fear of persecution from the State authorities. No connection between the disappearance of the cousin and the appellant has been established. It would be virtually impossible to establish such connection given that the appellant had been in New Zealand for some two years at the time of the cousin’s disappearance. It is also to be noted that the cousin lived seven to eight kilometres from the appellant’s home in X. The fact that the STF called at the appellant’s own home in June 1991 is also a fact which is of no assistance to the appellant. There is nothing to suggest that that visit was anything other than a routine sweep following the 21 June 1991 attack in Colombo on the Defence Ministry’s Forward Command Headquarters. In that attack a van loaded with explosives was driven into the Headquarters and exploded with a consequent loss of a great number of lives. The NZ Herald, Saturday, 22 June 1991 reported military sources as suspecting that the group responsible for the explosion was the Liberation Tigers of Tamil Eelam. This explosion followed soon after the assassination of the Deputy Minister of Defence, Mr Ranjan Wijeratne on 2 March 1991. The Tigers were also responsible for this attack.
The Authority therefore sees no basis on which it could be claimed that the appellant has a well-founded fear of persecution at the hand of State agents.
PERSECUTION ON ACCOUNT OF RACE AND RELIGIONIn relation to the claimed fear of persecution based on the appellant’s race and religion, the Authority notes that the evidence in support of this ground was weak and the appellant quite properly conceded at the hearing that he had received a good education. He further conceded that while he had encountered discrimination in the employment field, it was not of a very serious kind. In these circumstances the Authority finds that this ground of the appellant’s case cannot support a well-founded fear of persecution.
That leaves for consideration what is really the major ground for the refugee application, namely the death threats from the JVP.
PERSECUTION BY THE JVPAs mentioned earlier in this decision, the JVP went into steep decline at the end of 1989 and the beginning of 1990. However, the appellant has placed before the Authority credible evidence in support of his submission that the JVP has not been eliminated. All that has happened is that at the present time the security forces have gained the upper hand This is simply part of a well-established pattern in which the balance of power periodically shifts from the one to the other.
First, there is the evidence (which we have accepted) of a consistent pattern of threats to the appellant since his college days and continuing even down to the present time notwithstanding that he has not been in Sri Lanka now for some two years. These threats have been punctuated by the assault of 24 August 1987 and more recently by the receipt of the “death penalty” dated 20 March 1990 on JVP letterhead.
Secondly, recent press clippings from Sri Lanka record that JVP Cadres are regrouping to resume their campaign of intimidation:
(a) The Sunday Times, 5 August 1990. In this newspaper, published in Colombo, mention is made of the fact that there were now signs of an attempt by the JVP to regroup. Specific reference is made to an incident in Morawaka where 17 members of the vigilance committee were massacred. Furthermore, it is reported, in some areas in the South posters have surfaced to the effect that the JVP is not dead. The article noted that the Government was alive to the dangers of a resurgence of JVP activity while the security forces were occupied in the North and East. Significantly, the same article reports that President Premadasa himself during a tour of the Hambantona district, drew attention to this:“He told officials not to be so naive as to believe that the JVP threat was over for good. Terror could surface again with renewed vigour if its cause - social injustice persisted, the President said.”(b) The Daily Observer (Colombo) of 8 April 1991 refers to news that the JVP is trying to regroup and mobilize the underclass and the disillusioned youth. It stresses that this is a challenge that must be taken seriously by the Government and the nation as a whole.
(c) The Sunday Times (Colombo) of 2 June 1991 reports the escape of a prominent JVP leader from police custody and the belief of the police that this is a new opening for the group in its efforts to “raise its head again”. The paper reports that Defence sources spoke of “strong signs” of a revival of JVP activities. The police had been alerted to a re-emergence of the JVP and are reported to have arrested around 200 suspected JVP’ers in the past two months.
Against this background it can be seen that while the JVP is certainly not presently of the same strength as it was at the time the appellant left Sri Lanka for New Zealand, threats from the organization must be taken seriously.
As the agent of persecution is a non-state actor, it is necessary to consider the principle in paragraph 65 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which recognizes that where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.
The appellant’s claim is that the Sri Lanka authorities have either refused, or have proved unable, to offer effective protection.
The Authority has some difficulty with this proposition. First, as to the refusal of the authorities, it is to be remembered that the appellant’s father was himself a senior member of the police force. Further, the beating received by the appellant in August 1987 was not reported to the police, nor were the threats received by the appellant and other members of the social services club until 26 August 1988, very late in the piece. We therefore do not accept that on the evidence before us there has been a refusal by the authorities to offer effective protection.
Turning to the issue as to whether the authorities have proved unable to offer such protection, the cyclical nature of JVP insurgency has already been remarked upon. On one view, it could be said that the successful repression of the JVP in both 1971 and 1989 demonstrates that the government is able to gain the upper hand over the JVP. However, this overlooks the fact that such success as has been achieved has occurred only after lengthy periods during which the JVP has not only been out of control, but has gained the upper hand over the government of the day. It is also widely recognized that the JVP has only been overcome after brutal and massive crackdowns and the gross abuse of human rights by the security forces. A feature of these campaigns has been the extra-judicial killings of suspected JVP members by members of the security forces posing as members of anti-JVP vigilante groups. See Country Reports on Human Rights Practices for 1989 at 1561.
It is equally clear from the recent press clippings supplied by the appellant that the decline of the JVP in the latter part of 1989 did not signal its elimination or demise. The JVP remains an active and potent destabilizating factor in Sri Lanka.
This much having been recognized, however, the Authority has been troubled by a number of factors:
(a) The authorities clearly have the upper hand in the struggle with the JVP and there is a real doubt as to whether there is presently an inability on the part of the authorities to offer effective protection to the appellant.
(b) The appellant was last in Sri Lanka over two years ago and before that he spent the two preceding years in the Maldives with only infrequent trips during that time to his home. The Authority has difficulty in understanding why a much weakened JVP would continue in a “campaign” against the appellant. Nonetheless, it is to be recognized that issues such as this may not ultimately be capable of rational analysis in that the principal actor (the JVP) is a terrorist organization which does not act according to the rules of rational behaviour.
The Authority accepts that, in the words of the Handbook para 203, it is hardly possible for a refugee to “prove” every part of his case.
It is therefore appropriate at this stage to return to the four relevant issues, namely:
1. Is the appellant genuinely in fear?
2. If so, is it a fear of persecution?
3. If, so, is that fear well-founded?
4. If so, is the persecution he fears persecution for a Convention reason?
As to the first two issues, the Authority, as already indicated, accepts that the appellant is genuinely in fear and that that fear is of persecution (execution by the JVP). As to the fourth issue, it further accepts that such persecution at the hands of the JVP would be for a Convention reason in that that group has imputed to the appellant a political opinion, namely support of the government and opposition to the JVP. His actual opinion in these circumstances is irrelevant as the fear of persecution flows from his perceived opinion. Extending this principle, even neutrality constitutes a political opinion: Maldonado-Cruz v US Department of Immigration and Naturalization (1989) 883 F.2d 788 (9th Cir) also reported in (1990) 2 International Journal of Refugee Law 289-290. In this regard the Authority notes the fear expressed by the appellant that the recent visit by the authorities to his home is the possible result of false information supplied by the JVP (no doubt anonymously) to the security forces alleging that the appellant has been involved in anti- government activity either as a supporter of the JVP, or as a supporter of one of the Tamil liberation groups. The Authority has already indicated that there is in fact nothing to suggest that that visit was otherwise than part of a routine investigation. But were the appellant’s beliefs to be established as true, it is clear that the political opinion attributed to the particular guerilla group would thereby be also imputed by the security forces to the appellant, so that the appellant would thereby fear persecution for a Convention reason. See Blanco-Lopez v Immigration & Naturalization Service (1988) 858 F.2d 531 (9th Cir) also reported in (1990) 2 International Journal of Refugee Law 291.
This leaves for consideration the third issue, namely the well-foundedness of the appellant’s fear. If a positive answer is given to this question, the appellant would be entitled to a finding that he is a Convention refugee.
On this issue, the Authority finds itself in real doubt. While paragraph 203 of the Handbook recognizes that it is frequently necessary to give an applicant the benefit of the doubt, paragraph 204 qualifies this in the following terms:“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”The Authority having accepted the appellant’s general credibility further accepts that his statements are both coherent and plausible. Furthermore, for the reasons given his account does not run counter to generally known facts. Indeed, his account is entirely consistent with what is presently known of the conditions in Sri Lanka.
In these circumstances the benefit of the doubt must be given to the appellant with the result that he is entitled to a finding that he is a refugee.
For these reasons we find the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is allowed.
“R P G Haines”