Refugee Appeal No. 17/92

REFUGEE APPEAL NO. 17/92
AT AUCKLAND

DECISION

This is an appeal against the decision of the Refugee Status Section 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.

THE APPELLANT'S CASE

The appellant is a thirty-year old married man with one child, a daughter, born in India subsequent to his arrival in New Zealand. The appellant is a farmer by occupation, having worked most of his life on the family farm situated in the H District of the Punjab. He is the youngest of three brothers. His eldest brother, M, is approximately thirty-five years of age. Were his second brother, S, still alive, he would presently be thirty-two years of age.

The appellant's application for refugee status has its origin in the pursuit of S by the police between the years 1984 and 1989, and latterly, in police interest in his brother M from approximately December 1991.

According to the appellant, his brother S, upon attending a technical institute, became a member of the All India Sikh Students Federation. The appellant was never told what his brother's role and activities in the Federation were. It was from this time that the family's difficulties began. The following are the main points.

1. In 1984 S and a friend called C were arrested at C's home and charged with unlawful possession of a rifle and with threatening people with it. The appellant believes that the circumstances were innocent in that C's father, a retired army officer, held a licence for the firearm and that neither S nor C had anything to do with it. Be that as it may, S was released on bail after two days imprisonment following representations from the village sarpanch.

2. On 13 November 1984 a large number of police officers arrived at the appellant's home in search of weapons and S. As S was not at home that day, the appellant and his brother M were taken to the police station and questioned, particularly about C and weapons. During the five days that the two brothers were held by the police they were tortured. Incidents related by the appellant included his being required to lie face down on the floor whereupon a wooden roller was placed over the back of his legs and his feet pushed upwards towards his back, causing intense pain. He was also suspended from the ceiling by a rope while his arms were tied together behind his back and at the same time slapped and punched. At other times he was beaten on the soles of his feet. On one occasion he related how his brother M was tortured in his presence.

The appellant and his brother M were released when the village panchayat arrived with S who was then handed into the custody of the police. S was charged with robbery and released a few days later on bail.

3. In April 1985 a robbery took place in a nearby town. The police suspected that S had been involved and came looking for him at the appellant's home. Not finding S, the police officers once more took the appellant to the police station and held him there for four days until once again, the village panchayat surrendered S to the police. S was charged with the robbery and released on bail. At some later time the charges were dismissed through lack of evidence, so the appellant believes. The period of the appellant's detention was four days. The appellant conceded that he was not mistreated during this period, though he was verbally abused and threatened with further torture.

4. In September 1986 a Sikh of Canadian nationality was murdered, apparently because he was a supporter of the Communist Party. Two days later the police called at the appellant's home once more searching for S. Finding that he was not at home, they arrested the appellant's father, saying that he would be released when S surrendered himself.

5. A few days later the police returned to the family home and on this occasion arrested the appellant. He too was taken to the police station and interrogated about the whereabouts of S. He learnt that the police believed that S was suspected of being the murderer of the Canadian citizen. The threats of torture were repeated though not carried out.

Both the appellant and his father were held by the police for one month in the hope that S would surrender himself. This did not happen and eventually, the panchayat from three villages secured the release of the two men.

6. Almost twelve months later, towards the end of 1987, S was eventually found by the police, arrested and charged with the murder of the Canadian. After being detained for twelve months S was released after his brother M arranged bail.

7. Some time later another murder occurred in the locality and the police came once more looking for S. It so happened that S had that day travelled to a nearby town for the hearing of one of his cases and upon learning that the police were looking for him went into hiding and never returned home.

The appellant related that the police thereafter visited the house frequently, once or twice a month looking for S but without success.

8. In the meantime, the appellant obtained a passport in July 1988 and having secured a New Zealand visa on 3 March 1989, arrived in New Zealand on 20 March 1989.

9. A short time later the appellant learnt that S had been killed by the police on 25 April 1989 in what was described as a false encounter.

However, newspaper articles tendered in evidence allege that S died when a police party raided a village in which terrorists were taking shelter. When the terrorists began shooting, the police returned their fire and in the result S was killed. The police recovered an AK-47 firearm, some cartridges and thirty-six hand grenades from the scene. According to the press reports, the terrorists involved were wanted in connection with acts of terrorism committed in the district of Hoshiarpur, and it is further reported that S was responsible for the murder of the Canadian citizen mentioned earlier.

10. The appellant's application for refugee status was submitted on 14 June 1990, some one and a half months after the death of his brother S. He was not interviewed by the Refugee Status Section of the New Zealand Immigration Service until 16 May 1991.

11. On 25 April 1991 a memorial service was held at the appellant's village in the Punjab in memory of S. Tendered in evidence was a two-hour video of the occasion, together with a précis thereof. It establishes that S was highly regarded in his district as a devout Sikh and as a martyr to the Khalistan cause. One of the persons who attended the meeting (and a personal friend of S) is a prominent member of the Bhindranwale Tiger Force, a terrorist organization. The video also shows that the appellant's brother M attended the memorial service and one picture shows him astride a tractor on the family farm.

12. In late 1991 the appellant learnt from his wife that since the death of S, his brother M had been visited at least twice by the police who were falsely accusing M of being in possession of arms.

13. On 31 May 1992 the appellant spoke to his father by telephone. The purpose of the telephone call was for the appellant to ascertain whether his father could gather as much evidence as possible to establish the death of S, and the circumstances of that death. The information was sought by the appellant to support his appeal to this Authority. The appellant's father, however, had distressing news. He told the appellant that M had been arrested several times in the recent past and as a result had gone into hiding for the past three to six months. The appellant's father was unable to say where M was presently living. M had previously secured his release from the police only after the intervention of the sarpanch and the village panchayat.

In addition to the video and newspaper clippings already referred to, the appellant submitted a letter from an advocate practising in the district of Hoshiarpur in which the appellant's account of police action against his brother S, his father and the appellant himself is corroborated to a considerable degree. He has also produced a letter from the sarpanch of his village in much the same terms.

In addition, there is a report from an Associate Professor of the University of Auckland School of Medicine in which the opinion is expressed that the appellant still carries signs of injuries and that those injuries are consistent with the treatment he received while in police custody.

THE ISSUES

In the context of this case the four principal issues are:

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?

The Authority finds that the appellant is a credible witness and his account of events is accepted. It is consistent with what is known of conditions in the Punjab, especially torture at the hands of the authorities. See, for example, India - Human Rights Violations in Punjab: Use and Abuse of the Law (May 1981) Amnesty International and Human Rights in India: Punjab in Crisis (1991) Asia Watch Report. The arbitrary detention and torture of family members in order to extract information about their relatives' whereabouts or activities is confirmed in the recent Amnesty International publication India: Torture, Rape & Deaths in Custody (1992) 7, 29. The Authority is therefore satisfied that an affirmative answer must be given in relation to issues (1) and (2).

In relation to issue (4), the appellant's case falls to be determined under the "particular social group" category. The primary reason for his detention and ill-treatment has been to extract information and to coerce his brother, S, to surrender himself into the custody of the police. Interpretation of the term "social group" has proved problematical and as observed by Goodwin-Gill in The Refugee in International Law (1983) at 30, a fully comprehensive definition is impracticable, if not impossible. It is a topic which we have briefly referred to in Refugee Appeal No. 11/91 Re S (5 September 1991) at 7 to 10. But notwithstanding the difficulties in interpretation, the general trend of authority is that the family may constitute a social group for the purposes of the Convention. See, for example, Hathaway, The Law of Refugee Status (1991) 164-167 which addresses the Canadian jurisprudence. Reference should also be made to the American decision of Sanchez-Trujillo v Immigration and Naturalization Service 801 F. 2d 1571, 1576 (9th Cir. 1986), in which the United States Court of Appeal described immediate family members as a "prototypical" example of a particular social group. Here, every male member of the appellant's household has been pursued, at one time or another, by the authorities and detained. Both the appellant and M have been tortured and in 1989 S was killed. On the facts of this particular case we accept that the persecution feared by the appellant is persecution for a Convention reason, namely membership of a particular social group.

We turn now to the remaining issue, namely whether that fear is well-founded. The view taken by the Refugee Status Section was that the death of S had removed the cause of the appellant's past suffering. According to the Refugee Status Section report (page 32 of the file) S died in "about 1987". Clearly this is a mistaken view of the facts as all of the evidence establishes the date of death as 25 April 1989. The Authority is of the view that the Refugee Status Section assessment of the facts is no longer valid given that in the past six months or so the police have now turned their attention to M. As a result of his several arrests he has gone into hiding. It is our assessment of the facts as now known that there is a real chance that upon the appellant returning to his home he will, as in the past in relation to S, be detained as a way of forcing M to surrender himself to the authorities. In the course of that detention there is every likelihood that the appellant will face ill-treatment, if not torture. The pattern of detention of family members as a way of securing the surrender of a wanted person has been too strongly established in the context of this appellant's family to be ignored or discounted.

We are further of the opinion that it matters not whether the authorities were justified in believing that S, and now M, are terrorists. Their possible involvement in subversion or other unlawful activities cannot justify the detention and torture of innocent family members. We stress that there is no suggestion whatsoever on the evidence before us that the appellant has been anything but an innocent victim of circumstances. If anything, and we intend no disrespect to him, he struck members of the Authority as being a person of limited intelligence and without guile. He can be accurately described as a simple man of the land. In the light of the evidence now presented to us we have no hesitation in finding that were the appellant to return to the Punjab there will be a real chance of persecution and it therefore follows that his fear is well-founded.

The remaining issue for consideration is that of relocation, an issue examined at some length in Refugee Appeal No. 11/91 Re S (5 September 1991). We do not intend repeating what is said there. The essential question is whether the appellant will be able to find protection in his country of origin. In this respect we are assisted by the following quote from Hathaway, The Law of Refugee Status (1991) 134:

"The logic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad. It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to met basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized."

[emphasis in text]

Further assistance is available from paragraph 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

"... a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."

The single determinative feature of the present case on which this issue turns is the fact that the appellant is a person who has been arrested and detained on no fewer than three occasions and on one of those occasions tortured. There are thus special considerations which come into play. These considerations we have discussed in Refugee Appeal No. 14/91 (5 September 1991) and Refugee Appeal No. 12/91 (5 November 1991). In both cases it was held that on the facts, detention and torture of those appellants by the authorities in the Punjab represented a failure by the Government of India to discharge its duty to protect those individuals from serious harm. It was not, in the circumstances of those cases, reasonable to expect the appellants to relocate in another part of India. Our finding in the present case is the same for the following reasons:

a)The appellant is a torture victim.

b)He was subsequently detained by the police on two further occasions and threatened with further torture. These threats caused the appellant considerable distress, and understandably so, given his psychological make-up, his past experience at the hands of the police and the context (the same police station in which he had previously been tortured) in which the threats of further torture were made.

c)The appellant's brother, M, was tortured in the appellant's presence.

d)We accept the appellant's statement that it was his opinion, upon visiting S while in custody, that S himself had been tortured. S did not make this claim to the appellant, but the appellant could see from the physical and mental demeanour of S that his brother was in great pain.

e)S was subsequently killed by the police.

f)M is now sought by the police and the appellant justifiably fears that this brother will either be subjected to further torture or will be killed.

g)Even the appellant's father has been detained by the police.

It is our conclusion that the cumulative effect of the foregoing is that it would be unreasonable to expect the appellant to avail himself of the protection of the Government of India. There has been a consistent pattern of failure by that government to afford effective protection. If anything, the pattern establishes a systematic abuse of the fundamental human rights of members of this family. Our conclusion would be no different were we to exclude for this purpose the factor of the brother S on the supposed basis that there may have been justification for his death at the hands of the police during the exchange of fire during the encounter on 25 April 1989.

CONCLUSION

Our conclusions are therefore as follows:

1. The appellant holds a bona fide subjective fear of returning to India.

2. The harm feared by him is of sufficient gravity to constitute persecution.

3. His fear is well-founded and there is a real chance that the harm feared will occur.

4. The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his membership of a particular social group.

5. The government of India has failed in its duty to protect the appellant from serious harm in the past and there is a real chance that this failure will continue in the future.

For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is allowed. Refugee status is granted.

(Chairman)