Refugee Appeal No. 70146/96 Re JS

AT AUCKLAND

Before: R P G Haines (Member)

Counsel for the Appellant: Mr A K Sharma

Appearing for the NZIS: No appearance

Date of Hearing: 26 August 1996

Date of Decision: 30 August 1996

DECISION

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, an Indian national of the Sikh faith born in the Punjab.

INTRODUCTION

This is the second time that the appellant has appealed to this Authority.

The appellant arrived in New Zealand on 10 October 1989. On 7 May 1991, he filed his first application for refugee status. He was interviewed by the Refugee Status Section of the New Zealand Immigration Service on 8 April 1992. By letter dated 25 June 1992, he was advised that his application had been declined. From that decision the appellant appealed.

The first appeal to this Authority was heard on 20 August 1993. Following inexplicable delay, the appeal was dismissed in a decision delivered on 4 April 1996 (Refugee Appeal No. 379/92). The ground of the decision was that the appellant's fear of persecution was not well-founded. In arriving at this conclusion the Authority made a finding that correspondence tendered by the appellant had been fabricated for the purposes of furthering the application for refugee status.

Less than a month later, on 30 April 1996, the appellant lodged a second refugee application. That application was declined by the Refugee Status Branch of the New Zealand Immigration Service in a letter dated 26 June 1996 on the grounds that the appellant's new claims were not credible.

From the Refugee Status Branch decision dated 26 June 1996, the appellant has appealed. It will be referred to as his second appeal.

At the conclusion of the hearing on 26 August 1996, counsel sought and obtained leave to file written submissions by 29 August 1996. Those submissions have now been received and have been taken into account in the preparation of this decision.

The jurisdictional issues raised by second appeals are fully canvassed in Refugee Appeal No. 2245/94 Re SS (28 October 1994) and no purpose would be served by repeating what is said there. The essential issue to be addressed is whether, since the original determination, ie, the first appeal:

1.   Circumstances in the appellant's home country have changed.

2.   To such an extent that it can be said that the further claim is based on significantly different grounds to the original claim.

To determine this issue, it is necessary to examine the factual basis of both the first and second refugee applications submitted by the appellant.

THE FACTUAL BASIS OF THE APPELLANT'S FIRST REFUGEE APPLICATION

In brief, the appellant is a 44 year old married man who comes from the village of Khanaura situated in the Hoshiarpur District of the Punjab. He has one son and two daughters. The son is presently 21 years of age and operates the family farm comprising some 20 acres. The next eldest child is a daughter aged 18 years. Following an arranged marriage, she left India three weeks ago for the United Kingdom. The youngest daughter is aged 16 years. The appellant's mother, wife, son and youngest daughter continue to live in the family home in Khanaura. The appellant's father died in approximately 1978.

The gist of the appellant's case, as set out in his original statement dated 30 September 1990, is that on the night of 16 June 1989 at about midnight the family was woken by four armed Sikh extremists who demanded food and shelter. After the demands were complied with, the group asked the appellant to join them in their fight against the government. Fearing the consequences of a refusal, the appellant agreed. The men then left, saying that they would send a messenger in a few days to see the appellant. The next morning the appellant consulted the Sarpanch who was unable to assist. A few days later, while the appellant was absent from home, the group returned and spoke to the appellant's mother who was the only person in at the time. They told her that they would be returning soon and warned that if the appellant did not become involved with them, the whole family would suffer. The morning following this second visit the appellant went to a police post at a nearby village called Metiana which is situated approximately two kilometres away from the appellant's home. He related to the police what had happened and was surprised when they took him into a room and began interrogating him about the four men. The appellant was slapped in the face approximately six times. He was also struck with a baton twice. After four hours the village Sarpanch and other respected members of the appellant's village arrived and secured the appellant's release.

After this incident the appellant together with his wife, children and mother went to stay with the appellant's sister, JK who was then living in the town of Phagwara situated approximately 12 kilometres away from the family village. The appellant arranged for the lease of the farm and, having paid Rs 60,000 to a travel agent, travelled to New Zealand, arriving in this country on 10 October 1989.

At the Refugee Status Section interview held on 8 April 1992 (and at which the appellant was represented by Mr Sharma), the appellant made it clear that his fear of persecution related only to the terrorists. He made no claim to having had difficulties with the police apart from the unsympathetic reception he had received from them when lodging a complaint about the visits by the terrorists. At the hearing of the appellant's first appeal on 20 August 1993 the appellant repeated the core of his story but, so the Authority found, he also embellished his account and certain discrepancies in his evidence were noted. These factors are commented upon at pages 4 and 7 of the Authority's first decision. These difficulties aside, however, it is abundantly clear from the terms of the first decision that the appellant's case on appeal was that he was in fear of persecution at the hands of terrorists, not the police. In support of his fears he even tendered a letter from his family claiming that the terrorists had "come many times two or three times they were asking about you". See page 5 of the decision. At the first appeal hearing the appellant was once again represented by Mr Sharma.

With regard to the incident which occurred when the appellant went to lodge a complaint with the police, the Authority concluded at page 9 of the decision that the incident was a random one and at page 10 noted that this incident apart, the police had shown no interest in the appellant. The appellant could not, in the circumstances, claim a well- founded fear of persecution at the hands of the police. With regard to his fear of persecution at the hands of the terrorists, the Authority concluded that there was no real chance of persecution and that in any event, the appellant could relocate elsewhere and thereby access effective protection within India itself.

RECENT DEVELOPMENTS: THE FACTUAL BASIS OF THE APPELLANT'S SECOND REFUGEE APPLICATION

In support of the second refugee application the appellant has produced four relevant documents. Three of the documents are undated but the Authority is told by Mr Sharma that they all arrived in New Zealand after the Authority's first decision and just before the second refugee application was filed. That is, the letters arrived in New Zealand in the last week of April 1996. A brief description of the letters follows:

1.   There is an undated letter from the appellant's mother reporting (according to the English translation provided by the appellant) that the police had made the lives of the family "very miserable" since the appellant's departure. It asserts that the police had visited "frequently" and that they had assaulted both the appellant's mother and the appellant's wife and had demanded to know the whereabouts of the appellant. The mother also claims that the sister with whom the appellant and his family had stayed in Phagwara had also suffered at the hands of the police. In particular her husband had been taken into custody at least twice and apparently subjected to physical ill-treatment. It is said by the mother that the police action was motivated by their desire to locate the appellant. In the result the appellant's sister and her husband had gone to Canada. The mother also reports that the police had "broke and squandered all [the family's] belongings". She warns the appellant not to return otherwise he will meet a fate similar to that of the brother- in-law and might even be killed.

2.   There is then an undated letter from the appellant's wife in which she states (according to the translation) that the "police is harassing us too much, swears at us and give us hiding". The wife goes on to say that on two or three occasions the police had also taken away the farm animals and had also taken away the family. They had been released by the Sarpanch. The letter also mentions that the police had "harassed" the sister living in Phagwara. The appellant is advised not to return to India. The letter is extremely brief and contains virtually no meaningful detail.

3.   There is then an even more brief letter from the Sarpanch, the translation of which is in the following terms:

"I ... certify that police is still badly searching [the appellant]. Police is also harassing [his] family. I has [sic] released too times his family from police. So for him is better to stay in New Zealand because here he has fear of his life and he can become the victim of police."

4.   Finally, there is a letter from the appellant's sister dated 30 April 1996 and showing an address in Scarborough, Ontario, Canada. In its relevant part this document, which occupies less than half a page, states:

"After came you down to New Zealand police harass us too much and police also harass [sic] your family too much. Dear brother we got sick of police so we left India and came back of Canada. Don't you ever think to go back to India. Brother if you go back to India police will kill you. There the situation is not very good for you, so please stay where you are."

Taken at face value, this documentation evidences a level of intense police interest in the appellant and records repeated assaults by the police on the appellant's mother, wife and brother-in-law, the wanton destruction of the family's property and the brazen theft of livestock.

The appellant in his evidence at the second appeal hearing added yet a further dimension to his claim to be in fear of serious harm at the hands of the police in the Punjab. The new dimension is that whereas his earlier account had ended with his move to Phagwara followed by his departure for New Zealand, the appellant now claims that two months after his arrival in Phagwara he was located there by police from Metiana, arrested and taken back to the police post at Metiana. The distance between Phagwara and the police post is approximately 12 kilometres. The appellant was held at the police post for 12 to 13 hours where he was questioned about alleged association with terrorists, threatened, abused and beaten up. Asked how he had been beaten, the appellant said that he had been slapped in the face three to four times in one episode. That was all. His wife had then brought the village Sarpanch and some 25 to 30 notables from the village. The police had demanded money for the appellant's release. The delegation from the village refused to pay and the appellant was accordingly released. He was not asked to attend court. Upon release the appellant and his family returned to the family home in Khanaura. Ten days later, at a time when the appellant was in Hoshiarpur purchasing groceries, the police returned in search of the appellant. Only his mother was at home. She was abused by the police who left when they found that the appellant was not at home. They returned, however, five days later at which time the appellant was at home. They told the appellant that an incident had occurred nearby involving terrorists and that they suspected that the appellant was involved. He denied the allegations. At this stage the Sarpanch was called and the police left. Following this incident the appellant decided to leave India and for the first time thought of coming to New Zealand.

Until he gave his evidence at the second appeal hearing on 26 August 1996, the appellant had never previously mentioned being arrested at Phagwara, the detention of 12 to 13 hours and the two subsequent visits by the police to his home.

For the appellant, it was submitted that in the light of the foregoing he was now at risk of persecution at the hands of the police and this constituted a change of circumstances of the kind required by the Authority's Terms of Reference.

Whether there has been a change of circumstances of the kind required by the Terms of Reference turns essentially on a credibility determination of the appellant's new evidence and of the documentation now tendered by him.

CONCLUSIONS ON THE CHANGED CIRCUMSTANCES ISSUE

The appellant was the only witness called at the hearing. The Authority paid close attention to the appellant's demeanour and has made allowance for the fact that he gave his evidence through an interpreter. The conclusion the Authority has come to is that he is not a credible witness and that he has not told the truth at any stage of his second refugee application. In arriving at this finding, the Authority has taken into account the following:

1.   The appellant's new claims have been of an evolving nature. While the appellant, in his first refugee application, did make reference to the four hour period of questioning by the police prior to his moving to Phagwara, he made no claim to on-going police interest post-June 1989. As this Authority found in its first decision at page 9, the incident at the police station was a random one. Significantly, the Authority's first decision at page 4 specifically records that the appellant's evidence at that hearing was that the police had not accused him of being a terrorist. Rather, he said, the police had accused him of lying when he claimed that the terrorists had been to his home.

The transformation of the appellant's case from one of fear of terrorists to one of fear of the police is a dramatic one, particularly bearing in mind that the appellant has been absent from the Punjab since October 1989. The allegation of intense police interest comes at a distance of six and a half years from that date. This effluxion of time alone renders the appellant's account inherently improbable.

Acceptance of the appellant's claims is made even more difficult by the fact that at the hearing of the second appeal, he claimed three further incidents with the police, incidents which he had not previously mentioned. They are his arrest in Phagwara and detention for 12 to 13 hours, the subsequent visit by the police to the family home when the appellant was out and a further visit by the police when he was interrogated about a terrorist incident in which it was alleged he had had some involvement.

All of these factors combine to lead, almost inescapably, to the conclusion that the appellant's new claims have been invented in order to lend spurious credibility to a false claim to refugee status.

2.   These difficulties are compounded by other aspects of the appellant's evidence. He was confronted by the Authority at the second appeal hearing with the fact that the first refugee application contained within it no claim of continuing police interest post-June 1989. To this the appellant claimed that in the first year after his arrival in New Zealand (ie sometime in the period between October 1989 and October 1990) he received a letter from his family advising him that the police were looking for him. This claim did not assist the appellant's credibility. First, his refugee application was not lodged until 7 May 1991, at which time the receipt of this letter would have been fresher in mind than in 1996. Yet his signed statement dated 30 September 1990 makes no mention at all of this letter. Furthermore, at the Refugee Status Section interview held on 8 April 1992 the appellant made no mention of the letter or of the claimed police interest. On the contrary, the appellant referred at the interview to a letter from his wife dated 20 December 1989 which he actually took to the interview. The contents of this letter are recorded in the interview report at page 55 of the file. In this letter his wife warns him of continuing visits of the terrorists. It makes no mention of police interest. The relevant passage from the interview report is in the following terms:

"[The appellant] was asked if he had received any mail from his wife. He said that he had one dated the 20 December 1989. He no longer had the envelope as he had thrown it away. [The appellant] read out the letter and it read as follows: "Since you have gone terrorists have come to the house. They have been asking where you have gone. We told [the appellant] has gone overseas. They said they will not leave [the appellant] alone because he did not become a member of our group. You should not return. You will be killed. I pray to God that you should be healthy and well."

If, as now claimed, the appellant had also received a letter from his wife reporting police interest, the appellant would no doubt have drawn this to the attention of the interviewing officer on 8 April 1992. The fact that he did not take this step points very much to the conclusion that no such letter was received. The Authority finds that no such letter was in fact received by the appellant. This finding is reinforced by the fact that the appellant did take the trouble to bring to the interview a letter from his wife received by him in the first 12 months of his stay in New Zealand, but which referred to terrorist interest only.

3.   When the appellant was tackled on his failure to mention in his first refugee application the arrest in Phagwara and the further two visits by the police, he insisted that he was telling the truth. He was therefore asked for an explanation as to why this information had not been included in his first statement when the events were presumably fresh in his mind. His answer was that at that time he had too much to think about, he was frightened and did not remember the incidents. He was therefore asked why no mention of these three incidents was made at the Refugee Status Section interview on 8 April 1992. He replied that he was upset, he forgot, he made a mistake. Asked why no mention of the incidents had been made at the first appeal hearing on 20 August 1993 he said that at that time he was upset and was thinking about other things.

The Authority found the appellant's responses devoid of sincerity and conviction.

4.   Given the nature of the delay on the appellant's behalf in advancing his claim to be wanted by the police, the appellant was asked when he first found out that his mother and wife had been assaulted by police inquiring as to his whereabouts. The appellant initially said, prior to the morning adjournment, that he first received this information six months ago. However, following the morning adjournment when this subject was returned to, the appellant changed his evidence. He claimed that he first found out one to one and a half years ago. Challenged on the substantial difference between his two answers, the appellant said that he meant that he only knew "a little bit" one to one and a half years ago and had torn up all the letters referring to the assaults. He did this so that the letters would not fall into the wrong hands, meaning his flatmates. The Authority found the appellant's explanation for his grossly inconsistent responses to be disingenuous.

5.   The appellant was also driven to deny evidence he gave at the first appeal hearing. As mentioned, the first decision records at page 4 that the appellant told the Authority in August 1993 that the police had not accused him of being a terrorist. Given the appellant's new claims, he was confronted at the second appeal hearing with this admission. The appellant denied that he had given such evidence at the first appeal hearing. The appellant was then asked why, at that first appeal hearing, he had not made mention of the reports received from his family that there were continuing inquiries by the police as to his whereabouts. The appellant denied such failure and claimed that he had in fact told the Authority at that hearing that his family had reported that the police were causing them problems on his account. This is entirely at variance with the recorded terms of the Authority's first decision and sits uneasily with his concession that he made no mention at that hearing of his arrest in Phagwara or of the two further visits by the police to the family home. The Authority does not believe the appellant.

6.   A significant aspect of the appellant's evidence at the second appeal hearing was that it was only after his arrest in Phagwara, his detention for 12 to 13 hours and the subsequent two police visits to his home, that the appellant decided to come to New Zealand. This claim is at odds with the facts. The appellant was issued with a passport on 15 September 1980 and he used it to make a trip to Dubai.

Then, in March or April 1989 the appellant wrote to a friend of his, K Singh, who comes from the same village but who was then in New Zealand. The letter was written to find out what New Zealand was like. After receiving a reply he made arrangements to come to this country. See page 5 of the Authority's first decision. Then on 11 April 1989, the appellant's passport was extended to 14 September 1990. All of these steps were taken two months prior to the first visit by the terrorists on 16 June 1989.

On one interpretation of the facts, the appellant had set in train steps to come to New Zealand well before any cause had arisen for him to flee the country. He renewed his passport at the very time he was engaged in correspondence with an acquaintance concerning a possible visit to New Zealand. His claim that he did not think of coming to New Zealand until the last of the police visits following his arrest in Phagwara is at odds with the rest of the evidence. When this was put to the appellant he claimed that it was a coincidence that his passport was extended when it was, and it was also a coincidence that the first visit by the terrorists occurred shortly after he had armed himself with a current, valid passport. The Authority, however, finds the coincidences too striking to be put down to the hand of fate. The facts establish that the appellant was well advanced in his plan to come to New Zealand by the time of the first alleged visit by the terrorists and the evidence he has invented for the purpose of pursuing this second refugee application does not in any way reflect the truth. Rather it is an indication of his determination to stay in this country come what may.

7.   Finally, the Authority notes that it found the appellant's demeanour wholly unimpressive. In particular he was evasive when asked questions exploring vulnerable areas of his case. His answers on those occasions did not grapple with the question. Instead they addressed topics in relation to which no question had been asked. Frequently questions had to be repeated three times.

CONCLUSION ON CREDIBILITY

This second refugee application has been based on false evidence. Each and every of the appellant's claims advanced in support of the second refugee application is rejected. There is no merit whatever in this second appeal. In particular it cannot be said that since the original determination, circumstances in the appellant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim. On the findings made by the Authority on the credibility issue, this case is manifestly unfounded or clearly abusive.

OBSERVATIONS ON THE SOCIAL GROUP CLAIM

There is probably no need, in the circumstances, to say anything about that part of the appellant's submission which asserted that he is a member of a particular social group said to comprise:

"... the Sikh group who have rejected their homeland and have lived in another country, applied for refugee status, failed in their attempt to secure that status and are now being deported or removed to India."

For this issue would only fall for determination if the appellant were an otherwise credible witness who satisfied the jurisdictional requirements as to changed circumstances. However, as Counsel for the appellant has pressed his argument, several salient points need to be made as to why the submission is untenable:

1.   First, both logic and sense would dictate that Counsel should advance on behalf of a client the most appropriate Convention ground justified by the facts of the case. In the Punjab context the Authority has, over the past five years, frequently accepted that police suspicion that an individual has been involved in Sikh militant (terrorist) activity very often carries with it an imputed political opinion. Counsel will be aware of the decisions referred to. In the present case, were the appellant's claims credible, the political opinion ground would be more relevant than any of the other Convention grounds.

2.   If a claim is to be made that a refugee claimant is a member of a particular social group, there must be sufficient evidence to justify the claim. The requirements for such a claim are fully set out in Refugee Appeal No. 1312/93 Re GJ (30 August 1995) at 23 - 41 and 56 - 57.

3.   As to the social grou propounded by the appellant:

(a) While this group may be a statistical group comprising individuals who have acted in a similar way, it is certainly not a social group as defined in the various cases discussed in Refugee Appeal No.1312/93 Re GJ (30 August 1995) and in particular Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417, 421 - 422 (FC:FC). In the latter case it was emphasised that an act or acts done cannot alone define a group:

"To say that all such people are members of a particular social group would be to make the definition of a refugee so wide in this respect as to be almost meaningless and as to have no necessary connection with the humanitarian objectives that select a particular category of persons, refugees, as deserving of special consideration by the international community. For if the approach suggested by the appellant is correct, any person who feared persecution in his or her country of nationality, for reason of an act done that would attract persecution in that country, could validly claim to be a refugee by doing no more than pointing to the existence of other persons who had done the same thing, whatever that thing was. This is because the approach for which the appellant contends relies solely on an act or acts done as defining the asserted social group.

It may be doubted whether such an aggregation of persons could be called 'a group' within the usual meaning of that word as applied to people ... "

(b) It cannot be said that the group is a social group. See Kashayev v Minister for Immigration and Ethnic Affairs (1994) 122 ALR 503, 508 (FC:Northrop J).

(c)  Furthermore, it cannot be said on the evidence that the postulated group is a cognisable group in society. See Refugee Appeal No. 1312/93 Re GJ (30 August 1995) at 32:

"There is a considerable measure of agreement that a particular social group connotes a cognisable group in a society, and cognisable to the extent that there may be a well-founded fear of persecution by reason of membership of such group. In this context, the emphasis is on what a person is, i.e. a member of a social group, not on what the person has done i.e. the acts or omissions of that person. See, for example, Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417, 422 per Black CJ (French J agreeing). In Canada (Attorney General) v Ward (1993) 2 SCR 689, 738, 745 (Can:SC) a distinction was specifically drawn between what one is against what one does at a particular time. Thus, Ward felt threatened because of what he did as an individual (betrayal of the group to which he belonged), and not specifically because of his association. That is, his fear was based on his action, not on his affiliation."

(d) Importantly, the group as defined does not take its identity from a shared, internally defining characteristic. See Refugee Appeal No. 1312/93 Re GJ (30 August 1995) at 56 - 57:

"The mere fact that a person fears persecution by reason of a characteristic that he or she has in common with another person who also fears persecution, does not establish that the two are members of a particular social group for the purpose of the Convention.

Herein lies the significance of the interpretative approach to the Refugee Convention discussed at length earlier in this decision and which recognises that the grounds of race, religion, nationality and political opinion focus on the claimant's civil and political rights. The Acosta ejusdem generis interpretation of "particular social group" firmly weds the social group category to the principle of the avoidance of civil and political discrimination. In this way, the potential breadth of the social group category is purposefully restricted to claimants who can establish a nexus between who they are or what they believe and the risk of serious harm: Ward 738-739; Hathaway, The Law of Refugee Status (1989) 137. For the nexus criterion to be satisfied, there must be an internal defining characteristic shared by members of the particular social group. In the Acosta formulation, this occurs when the members of the group share a characteristic that is beyond their power to change, or when the shared characteristic is so fundamental to their identity or conscience that it ought not be required to be changed. In the very similar Ward formulation, the nexus criterion is satisfied where there is a shared defining characteristic that is either innate or unchangeable, or if voluntary association is involved, where that association is for reasons so fundamental to the human dignity of members of the group that they should not be forced to foresake the association.

In this way, recognition is given to the principle that refugee law ought to concern itself with actions which deny human dignity in any key way: Hathaway op cit 108 approved in Ward at 733."

4.   Finally, the Convention requires not only that the refugee claimant be a member of a particular social group, but also that the fear of persecution be for reason of such membership. In other words a nexus must be established between the membership of the particular social group and the anticipated persecution. In the present case there is not a shred of evidence to suggest that were the appellant to be deported to India, the persecution feared by him will be for reason of his membership of the claimed social group.

In the result, the submissions for the appellant have an air of unreality to them in that they attach significance not to the meaning or substance of the words "for reason of membership of a particular social group", but to their form. As the submissions are entirely unsupported by evidence the claimed social group is nothing more than an artificial construct.

OVERALL CONCLUSION

For the reasons given this appeal must be dismissed.

The Authority confirms that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

"R P G Haines" [Member]