REFUGEE APPEAL NO. 2/92 AT AUCKLAND

Before: B O Nicholson (Chairman)
  R P G Haines (Member)
  Y Sato (UNHCR)
Counsel for the Appellant: Mr K S Miliszewski
Representative of NZIS: Mr P Poching
Date of Hearing: 9 April 1992
Date of Decision: 23 July 1992

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, who is a national of Sri Lanka, of Tamil origin.

The appellant is a single man aged 24 who, although Tamil by race, was educated largely at Sinhalese schools and then at a international school in Colombo. He has provided an account of consistent harassment as a Tamil family by Sinhalese which started in 1977 with a gang attack by Sinhalese upon his father's farm and house in the Karea. The house was destroyed in this attack. In 1983 he and his family were living at the home of relatives in C when communal riots occurred there, resulting in the home in which they were living being destroyed. According to his account the lives of the appellant and his family were in considerable 2 danger on this occasion.

As a result of racial tensions in Sri Lanka at this time, the appellant suffered assaults and discrimination at the hands of both fellow students and staff in his schooling. Once he moved to the international school he did not suffer the same problems. He recited one incident in 1984 when, on walking home from a sporting occasion, he was picked up by soldiers in uniform and bundled into an army jeep with some six or seven other Tamil youths, some of whom complained that they had already been beaten. However, the officer in charge of this group released the appellant when he spoke to him in Sinhalese, on the grounds that he resembled the officer's own son.

In 1986 he was arrested by the Special Task Force (S.T.F.), which is a police commando organisation, which, according to the appellant has a bad reputation for violence. The arrest was because he did not have an appropriate identification card in his possession. He spent a night in custody in company with a large number of other Tamils confined in a small cell. In the course of that detention he and his companions were forced to witness some of their number being brutally beaten by members of the S.T.F. They were left in overnight custody of the ordinary police force however, and again the appellant, through his ability in Sinhalese, was able to persuade the police to release him on bail. He elected, with the advice of his family, not to answer that bail.

On the 25th of August 1987 a bus in which he was travelling was stopped by an army patrol. An elderly Tamil lady was being harassed because she did not have the appropriate identification card in her possession. The appellant and one other person intervened on her behalf to prevent her being harassed. As a result the appellant was removed from the bus by the army patrol and placed in a police bus where he was abused, robbed of some R350 and forced to kneel before the police and to confess that his own genuine pass was a false one. He was then released.

In December of 1988 he was stopped by members of the S.T.F. who questioned him on his way to school. He was carrying with him study material relating to Marxist theory and because of this he was accused of being a Tamil activist. He was able to persuade the commandos that he was a genuine student at that time. But he found out later that the S.T.F. had been making enquiries about him at the school and in February 1989 his flat was raided by S.T.F. members in his absence. His landlady was told that the S.T.F. had evidence that the appellant was a Tamil activist. As a result he went into hiding in different places. He says that there were raids carried out on his relative's house and the house of a friend which he believed related to the S.T.F.'s suspicions about him.

In September 1989 he was in a car stopped by army soldiers when he was with two friends. One of these friends was beaten up, again because he did not have an identity card. The appellant attempted to intervene to assist his friend and as a result he suffered injuries to his hands when he grabbed the door of the car and one of the soldiers smashed the car window with a rifle butt. On that journey in fact, they were stopped twice but on the first occasion the soldiers had been drunk and had allowed them to carry on.

The appellant had applied for a passport in 1986 but he had difficulties as a Tamil in obtaining its issue. Finally a passport was issued to him in September 1989 after he enlisted the aid of a travel agent to whom he paid a large sum of money. He said he deliberately disposed of his old passport after arriving in New Zealand instead of applying for its renewal because it showed his old address and he feared that there might be repercussions for his family if he sought its renewal.

He said he did experience some difficulties with an immigration official at the time he was leaving the airport in Colombo, but he was eventually allowed to proceed. On the 24th of January 1990 he arrived in New Zealand. On the 9th of February 1990 he applied for refugee status in New Zealand. He was interviewed by the Refugee 4

Status Section on the 15th of April 1991 and as a result of that interview his application for refugee status was declined by letter dated 14 November 1991.

The appellant says that in November of 1991 he received advice from his mother that a fellow student of the appellant had reported through his brother that S.T.F. members were still making enquiries about him at the school.

The appellant's fear is of detention, violence and even death at the hands of the S.T.F. or police authorities. The appellant says that his understanding is that the S.T.F. now comprises many thousands of men and he quoted a figure of "40,000", but did not appear to have any definite source for that information. He regarded the February 1992 report of the United States Department of State Reports, in reference to the S.T.F. as comprising some 2000 police comandos, as ridiculous. The appellant made it clear that from the time his flat was raided he moved about at regular intervals to avoid being detained by the S.T.F.

The Refugee Status Section declined the appellant's application on the grounds that his fear of persecution was not well-founded, stating that it appeared that the appellant had been subjected to routine surveillance by the S.T.F, a common occurrence for young Tamil males during the 1980's. In its decision the Refugee Status Section pointed out that the appellant had never been associated with any political organisations or militant groups and no incident had occurred which would cause the army, police force or S.T.F. to suspect that the appellant had an association with such groups. It went on to reason that if, having searched the appellants flat, the S.T.F. did suspect the appellant of militant activity it was felt that he would have been subsequently arrested or detained and questioned during the considerable period that elapsed between the searching of his flat and his departure from Sri Lanka.

In terms of Article 1A(2) of the 1951 Convention and the 1967 5

Protocol relating to the Status of Refugees it must be shown that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, the appellant 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.

On the issue of the appellant's credibility we found him to be a truthful, careful witness. His account given to us and to the NZIS has been consistent, with one or two minor exceptions. We are satisfied that his account of events is truthful. We are satisfied further that his experiences, commencing with his childhood, have instilled in him a genuine fear. We find that the harm that he fears is of sufficient gravity to constitute persecution in that he fears detention, torture and possible death at the hands of the S.T.F. or the police.

As to the issue of well-foundedness, we are satisfied that there is a real chance that the appellant will suffer persecution if he returns to Sri Lanka. We do not agree with the reasoning of the Refugee Status Section that it was likely that the appellant would have been arrested or detained during the considerable period that elapsed between the searching of his flat and his departure from Sri Lanka. This finding appears to overlook the point that the appellant made considerable efforts to keep moving about to avoid being detained. Again we cannot accept the statement that no incident has occurred which would cause the S.T.F. to suspect that the appellant had an association with activist groups, in view of his experience of being detained on his way to school, as a suspected Tamil activist, having his flat raided and his friend's and relative's houses searched. We consider that these events go well beyond routine surveillance of Tamil youths by the S.T.F. in the south of Sri Lanka.

Moreover, from two of the incidents that the appellant has described we find that through his own bitter experiences he had reached a 6 stage where he was prepared to uphold the rights of others. The incident on the bus indicated that he was prepared to stand up to the authorities to protect an elderly woman. The incident when he was stopped in his car with two friends and he intervened in an attempt to prevent one of his friends being beaten up, reveals a similar characteristic of preparedness to confront the authorities to protect the rights of others. This man, therefore, appears to us to have the type of personality which would be likely to attract the attention of the authorities again were he confronted with similar breaches of human rights visited upon others in his presence.

In this respect, we refer to paragraph 40 of the Handbook on Procedures published by the Office of the United Nations High Commissioner for Refugees which states:

"An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions."

In a discussion paper, "Civil War Refugees and the Issue of Singling Out in a State of Civil Unrest", published in 1991 by the Osgoode Hall Law School, York University, Toronto the author, Suzanne J. Egan, reviewed a number of American and Canadian decisions which had condemmed the approach to the standard of proof of refugee status which required that the appellant had been "singled out" for persecution in his country of origin. This approach was found to be in conflict with the "reasonable chance" or "possibility of persecution" standards approved in the courts of those countries.

The paper went on to discuss the application of that principle in the civil war situation which is akin to the present conflict 7

between Tamil activists and the Sri Lankan authorities. The author found an essential premise was that not all persons fleeing from the circumstances of civil war are refugees within the terms of the Convention. The difficulty arose in determining whether such persons were under threat by virtue of their civil or political status i.e. for a Convention reason. This process was described as a demonstration of "differential risk based on civil or political status". The recommended approach for decision-makers in considering this limb of the Convention definition in the author's view was as follows:

"Is the harm feared connected with the claimant's civil or political status or is it simply non-discriminatory?

a)Is the civil war in the claimant's country of origin directed at a group defined by race, religion, nationality or political opinion?

b)Is the claimant a member of a group which is differentially at risk within the civil war.

c)Is the claimant an individual who is differentially at risk due to a characteristic or belief system particular to herself or imputed to her by the agents of persecution in the civil war?"

With respect, we accept that this is a correct approach and we adopt it. In this appellant's case we answer question (c) in the affirmative. The appellant's characteristics as we have found them to be together with the political beliefs apparently imputed to him by the S.T.F. place him differentially at risk of persecution. We find the appellants fear is well-founded and that the persecution he 8 fears is for a Convention reason, i.e. his imputed political beliefs. We are satisfied that the persecution which he fears is at the hands of a State Authority and that the State has failed, and is likely to fail, in its duty to protect him from persecution.

This appeal is allowed. Refugee status is granted.

(Chairman)

   
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