Refugee Appeal No. 49 & 50/92 Re Y.V.P. & Y.I.P.
| Publisher | New Zealand: Refugee Status Appeals Authority |
| Publication Date | 12 March 1993 |
| Citation / Document Symbol | REFUGEE APPEALS NOS 49 &; 50/92 |
| Cite as | Refugee Appeal No. 49 & 50/92 Re Y.V.P. & Y.I.P., REFUGEE APPEALS NOS 49 &; 50/92, New Zealand: Refugee Status Appeals Authority, 12 March 1993, available at: https://www.refworld.org/cases,NZL_RSAA,3ae6b6594.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
REFUGEE APPEALS NOS 49 & 50/92
Y. V. P. & Y. I. P. (REF: 12 MARCH 1993, REFUGEE STATUS APPEALS AUTHORITY)
DECISION
These are two appeals against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellants, a married couple who arrived in New Zealand as citizens of the former Union of Soviet Socialist Republics. The husband is aged 27 and the wife 29. They have no children. They arrived in New Zealand aboard a Russian merchant ship the home port of which is Vladivostock in the Russian Federation. The husband was a radio operator on the ship and his wife was permitted to join him on the same ship for the voyage which, for them, ended in their deserting the ship at Port Chalmers on the 3rd of April 1991. On the following day they attended the New Zealand Immigration Service office in Dunedin and claimed refugee status. The husband was born in what is now the Russian Federation but from the age of six he and his family lived in what is now Kazakhstan in the former USSR. The wife was born and brought up in the Ukraine. The pair met and were married in the Vladivostock area of the now Russian Federation, where both were employed on foreign-going ships. Because the two appellants' grounds for claiming refugee status are identical it was agreed with counsel that the appeals be heard together and that the evidence of the one appellant be treated as supporting the evidence of the other. Both appellants claim a fear that they may be persecuted because of their antipathy to what was the Communist regime in the USSR at the time they left it. They said that all of their lives they had had to conform to Communist rule and they had had no freedom of speech or thought. Both of them were baptised as babies by their respective families in the Christian religion. Both of them profess the Russian Orthodox Religion. Both complain of religious persecution as well. They state that all of their lives they have had to practise their religion in secrecy, since the practice of religion was banned in the USSR. They also complained of restrictions in employment, in opportunities for promotion and in education since they and their families were not members of the Communist Party. Finally, they fear that their illegal departure from their ship will result in their being severely punished upon their return to any part of the former USSR. They claim that desertion from a ship would be regarded as treason and that they fear, as a minimum punishment, a lengthy term of incarceration in a labour camp and at worst imprisonment or death. They claim that on their ship's return visit to New Zealand they attempted to go aboard but were advised by their fellow crew members that their captain had warned the crew that they were regarded as traitors to the ship, to the shipping company and to Russia. They also stated that, in spite of major political changes in the situation in their country of origin, their families have advised them that the situation for ordinary people has not changed, that the Communists are still in control and that political and religious repression still exists. The husband said that he last heard from his family about seven months prior to the hearing. The appellants have not produced any correspondence from their families. A number of sources of information about the former USSR were referred to in the course of the hearing, some presented by the appellants and some by the Authority itself. Counsel for the appellant acknowledged that the appellants were unclear as to where their rights of citizenship lay having regard to the dissolution of the USSR into a number of independent states. we deemed it prudent, therefore, to examine the position, both on the basis that they are entitled to permanent residence in the Russian Federation, as their place of employment was at Vladivostock, and to the place of their families' residence, that being Kazakhstan in the case of the husband and the Ukraine in the case of the wife. Article IA(2) of the 1951 Convention and the 1967 Protocol defines a refugee as any 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. The Article further provides:"In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
We frame the issues in this case in terms of our decisions in Refugee Appeal No's 1 & 2/91 re TLY and LAB (11 July 1991) but allowing for the fact that there may be more than one country of origin applicable to both of these appellants.1)Do the appellants have a genuine fear?
2)Is the harm they fear of sufficient gravity to amount to persecution?
3)Is there a real chance that they will suffer persecution if they return to the Russian Federation, the Ukraine or Kazakhstan?
4)Is the persecution they fear for a Convention reason?
5)Will those three countries or any of them fail in their duty to protect the appellants?
As to the credibility of the two appellants, the Authority found no reason to doubt the truthfulness of their evidence and expressed beliefs, even allowing for the absence of corroborative correspondence from their families. But the absence of such documentation makes it difficult for the Authority to assess how much weight can be attached to the appellant's statements that their families' letters lead them to believe that no changes have occurred in the fields of religion and freedom of speech. In general, however, we accept their accounts of past problems and discrimination. On the first issue we find that subjectively the appellants have a genuine fear. On the second issue we find that the harm which they fear in the form of continued discrimination and detention or death in labour camps or prisons is of sufficient gravity to amount to persecution. The third issue we examine in three parts according to the perceived countries of origin.The Russian Federation
This Authority has had occasion to examine the situation regarding religious discrimination, political persecution and punishment for illegal departure in respect of the Russian Federation in Refugee Appeal No. 58/92 re S. A. P (12 August 1992). In that case we examined a considerable amount of information on the present situation in the Russian Federation and we reached the conclusion that a claim of persecution by an adherent to the Christian religion in the Russian Federation was not well-founded in view of the progress that had been made in reforms in the USSR and in the independent states following the dissolution of the USSR, insofar as religious freedom is concerned. we do not think it necessary to repeat the evidence we accepted in that case. Suffice to say that there has been no further evidence presented to us by the appellants in that regard which leads us to any different conclusion in this case. For the reasons which are stated in that appeal we conclude that there is no real chance that religious persecution will occur if the appellants return to the Russian Federation. In respect of their claim of fear of political persecution there are two aspects. First, they fear that they will not be able to publicly voice their political opinions. Secondly, they express a fear that they will continue to be discriminated against in fields of employment and education because they are not members of the Communist Party. The U.S. State Department Country Reports on Human Rights Practices for 1991 (February 1992) at p.1267 paints a picture of encouraging political reform throughout the former USSR. Although some limitations were imposed upon the news media in what is now the Russian Federation during 1991, in general freedom of the press is a reality according to the reports. Similarly, the right of assembly and public demonstrations in the Federation appears to have been clearly established. A new law permitting a multi-party political system came into effect on 1 January 1991 and it is common knowledge that free and democratic elections have been held in the Federation of a parliament and a new president, Boris Yeltsin. The Communist Party has been banned according to the report. In the light of this information, we are unable to accept the contentions of the two appellants that they will not be able to exercise any right of freedom of speech or that they will be discriminated against because they are not Communist Party members. As to their final ground of fear of persecution because of their illegal departure from their ship, we refer again to our decision in re SAP (supra) where we considered the information available in relation to freedom of movement in and out of the Russian Federation. At page 7 of that decision we reviewed that information and at page 8 we had the following comment to make:"As for the second ground of fear of retribution because of his illegal departure from his ship, we note that under the Russian Criminal Code, the illegal departure and refusal to return to the country comes within the definition of treason which is punishable by 10 to 15 years imprisonment.
The appellant claims that the existence of such a provision means that there is a real chance that he will have a very severe term of imprisonment imposed upon him because of his action in leaving his ship.
It appears that the penal provisions have been in the Criminal Code for some years under the old communist regime. According to the submissions made by the New Zealand Immigration Service, there has been a significant decrease in the numbers of persons prosecuted under this law since 1987 at which time immigration restrictions became more relaxed. The New Zealand Immigration Service, in its submissions quotes Amnesty International figures showing that 35 people were prosecuted for immigration offences in 1985. In 1988 three people were prosecuted. In 1991 only one such case was reported. No further cases have been reported so far in 1992."
"The information from the New Zealand Immigration Service indicated that the punishments stipulated for the commission of the offence of fleeing across the border and/or refusing to return to the USSR was not only the term of imprisonment already mentioned, but included confiscation of property and internal exile from two to five years or execution with confiscation of property. The penalties were fixed in the RSFSR in 1962 and by a decree of the RSFSR Supreme Soviet in January of 1984.
In the submission of the New Zealand Immigration Service, the collapse of the communist system appears to have marked the end of such penalties. The Service points out that the break-up of the former Soviet Union and the setting up of new states has meant that new legislation has yet to be drawn up to cover many aspects of life in the Russian Federation. There is no new constitution yet. Among the information supplied by the Service, is a confirmed statement that on the 22 November 1991, the Parliament of the former RSFSR adopted a Declaration of Human and Civic Rights and Liberties. Article 12 of that declaration dealt with the right to freedom of movement and Paragraph 2 of that Article provides that an RSFSR citizen has the right to freely leave its borders and return without hindrance. It is noteworthy that Article 14 guarantees freedom of conscience and religion and religious or atheistic activity.
Similarly, the Department of State Reports for 1991, Pages 1268, 1281 and 1281 make reference to the freedom to travel.
We accept that there may be some other technical offence with which the appellant could be charged as a ship deserter, but we have no information as to whether such an offence exists or any likely penalties arising from it."
"We conclude that there is no real chance that the appellant will suffer a disproportionately severe penalty for his illegal departure from his ship in view of the changed political climate of the RSFSR. As we have indicated, we do not necessarily believe that he will go completely unpunished if he returns to Russia, but it does appear that his ship desertion is most unlikely to be treated as treason in terms of the Russian Criminal Code. We note that when the fact of the appellant's desertion from his ship was conveyed to the then U.S.S.R. Embassy in Wellington the incident was dismissed as insignificant by the Embassy.
We find that the appellant's fear of retribution of such gravity as to amount to persecution is not well-founded."
The position is the same in the instant case since the appellants have not provided any information on this issue beyond that which we received in re SAP (supra). For the reasons which we outlined in that decision we find that there is no satisfactory evidence upon which we can conclude that there is a real chance of retribution of such gravity as to amount to persecution. We are unable to find, for the reasons given, that the appellants' claim of persecution, insofar as the Russian Federation is concerned, is well-founded.The Ukraine
Much of what has been reported about religious and political reform in the Russian Federation applies to most of the new states created upon the dissolution of the USSR. The US State Department Reports make particular reference to the Ukraine in respect of religious reform. They refers to a process of: registration of long-banned church groups such as the Ukrainian Catholic Church and the Ukrainian Autocephalous Orthodox Church and the establishment of new churches in major cities. Exiled religious leaders were allowed to return in 1991 and Jewish synagogues were restored to their communities in two major cities. In the field of freedom of expression the Ukraine was one of several republics which imposed restrictions on the media which supported the Communist Party or Russian nationalist points of view in the aftermath of the attempted coup in 1991. On the other hand the Ukraine was listed as one of several republics in which popular political fronts had not only been established but had become powerful political forces. On 1 November 1991 the Ukrainian Parliament passed a Declaration on the Rights of Nationalities in Ukraine which guaranteed the political, social, economic and cultural rights of the more than 100 nationalities in the republic. A report from the Economic and Social Council of the United Nations dated 10 December 1991 expressed the view that people who left the country illegally under the former regime would not be likely to experience great difficulties on their return to the Ukraine, certainly nothing like under the former Union. A further report from the same source in March 1992 expressed the view that the chances of human rights violations leading to persecution were very slight. The Economist Intelligence Unit Country Report No. 1 1992 refers to the existence of some 15 political parties in the Ukraine but comments on the fact that many of the old style bureaucrats are members of the new parliament. In the light of these reports we conclude that there is no real chance of the appellants suffering persecution on religious grounds nor for the voicing of political views in the Ukraine. Similarly although the former USSR legislation in relation to illegal departure is still in existence, we find there is no evidence to support the conclusion that. that legislation will be enforced in the Ukraine or that there is any real chance that the appellants' illegal departure will be treated by the Ukrainian authorities as treason with its accompanying severe penalties. we find the appellants' fear of persecution in the Ukraine is not well-founded.Kazakhstan
Again the tenor of the reports regarding political and religious reform in the former USSR appear to apply to Kazakhstan. Amnesty International in a report A. 1. Concerns in Europe (June 1992) reported the entry into force of a new law on freedom of faith and religious association in January of 1992. Amnesty International expressed concern at certain laws restricting criticisim of the President of the Republic or a people's deputy as being in contravention of the right of free speech. The US State Department Reports referred to earlier at p.1278 reported that the multi-party political system was formally introduced in much of Central Asia but was only in the early stages of development. The report stated""In Kazakhstan the Communist Party disbanded and reformulated itself as Socialist. President Nursultan Nazarbazev refused to join. Instead he addressed the founding session of the People's Congress of Kazakhstan, a party uniting opposition forces, on October 6."
Thus it appears that a measure of political reform is in progress and that a somewhat limited right of free speech on political issues has emerged. On the issue of illegal departure we refer again to the report of the Economic and Social Council of the United Nations on the Ukraine where it states:"3.It can be said that none of the independent republics are keen to enforce the former laws and regulations which were in effect under the Union. In the case of persons who left the country illegally under the former regime, although no specific information is available at present, it is not anticipated that they would have great difficulties upon their return, certainly nothing like under the Union."
This statement appears to have general application throughout the former USSR. Our conclusion is that there is no real chance that the appellants would suffer persecution for religious reasons in Kazakhstan nor would they suffer discrimination because they are not Communist Party members. We accept that they may face some limitations in voicing their political opinions but the existence of opposition parties in the political arena does suggest that a degree of freedom of speech is available. Again we find there is no real chance that they would suffer punishment amounting to persecution because of their illegal departure from the former USSR. We conclude on the third issue that the appellants' fear of persecution is not well-founded. We do not find it necessary to reach findings on the remaining issues. The appeals are dismissed and refugee status is declined. (Chairman)