REFUGEE APPEAL NO. 18/92
RE JS
AT AUCKLAND

Before: R.P.G. Haines (Chairman)
  J.M. Priestley (Member)
  A.M. Rozdilsky (Member)
Counsel for the Appellant: Mr A.S. Singh
Appearing for the NZIS: Mr G. O'Neill
Date of Hearing: 16 June 1992
Date of Decision: 5 August 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, an Indian national of the Sikh faith.

THE APPELLANT'S CASE

The appellant is a twenty-three year old single man who has lived all his life in a village called RK which is situated in the Jalandhar District of the Punjab. The appellant's family have for generations been farmers and they live in a house situated on their farm of some six acres. At the relevant time the appellant lived there with his father, mother, two brothers, a grandmother, an uncle called RS and the uncle's wife.

The appellant attended school for eight years and then went to work at an electrical repair shop in RK. In the course of his employment there over a period of five years he acquired skills in the repair of agricultural motor pumps as well as the wiring of houses for electricity. At different times of the year, dictated by farming patterns, the appellant's employer was particularly busy and it was not uncommon for the appellant to have his meals and to sleep overnight at the shop after working late.

The appellant told us that his father and uncle were active members of the Communist Party (Marxist) and although the appellant himself was not actively involved in politics or a member of this party, his whole family was known in the village to be members or supporters of the Communist Party (Marxist). Indeed, the appellant's village appeared to be something of a stronghold for this party as apparently more than half of the villagers belonged to it.

On the evidence, we accept the Communist Party (Marxist) does not support the violent extremist campaign for an independent Khalistan and believes that differences between the central government and the Khalistanis should be resolved by negotiation. Members of the Communist Party have been attacked by terrorists for adopting this stand. See Refugee Appeal No. 63/91 Re RL (13 April 1992) and Refugee Appeal No. 32/92 Re DP (12 May 1992) as well as the Asia Watch Report, Human Rights in India: Punjab in Crisis (1991) 177.

On 30 November 1987 the appellant was issued with a passport but had no occasion to use it for travel. He said that the sole purpose in obtaining the passport was for identification purposes and in particular, to open a bank account. We doubt that this was truly the purpose for which a passport was obtained, but, in the event, nothing turns on this question.

According to the appellant's written brief of evidence, the family first encountered difficulties in March 1988. One night members of the Khalistan Commando Force visited the family home, asking that all male members of the family join and support the Khalistan Commando Force in its struggle for an independent Khalistan. The brief states that between March 1988 and 22 July 1988 there were some five or seven visits. On each occasion the terrorists stated that death would follow if the men of the family failed to obey their instruction. However, in his oral evidence the appellant referred to three visits only, the first being in June 1988, the second two weeks later and the third on 22 July 1988. However, nothing turns on this issue. It is sufficient to note that on none of the occasions on which the terrorists visited the family home was the appellant present. On each occasion the appellant was at his place of employment working late.

On the night of 22 July 1988 or in the early hours of 23 July 1988 three armed terrorists arrived at the appellant's home. As on the previous occasions, the appellant was staying overnight at his place of employment.

The terrorists shot and killed both the appellant's father and the appellant's uncle. The terrorists said nothing to their victims or to the surviving members of the family. The appellant learnt of the killings the following morning.

There is no doubt as to the circumstances of the death of the two men as we have received a post-mortem report, death certificates, a copy of a statement made by the appellant's brother K as well as a certificate from the village sarpanch.

For the next ten days the family home was placed under police guard. During this time there were no further visits by the terrorists but ten days after the police guard was lifted, members of the Khalistan Commando Force returned, threatening to finish off the family. The appellant says that he and his elder brother were able to escape the terrorists by going into hiding in the surrounding farmland or by staying with nearby relatives and friends. The terrorists apparently delivered threats to the appellant's mother for passing on to the appellant and his elder brother.

However, the appellant's difficulties were confined to night hours only as this was when the terrorists were able to operate. During the day he continued to work for the same employer and did so for approximately six months following his father's death. He said that he then terminated his employment because he had received threatening letters and thereafter did private work from the family home on the farm repairing motors and wiring houses. He said that his business was both busy and profitable. He continued in this work until his departure for New Zealand in late August 1989, just over twelve months after the killing of his father and uncle.

The appellant stressed that he was only at the family home during the day. At night he stayed elsewhere such as the village of his father's grandparents (six kilometres from RK), the village of his father's sister (four kilometres away), the village of his mother's sister (twenty-two kilometres away) or with various friends.

He said that members of the Khalistan Commando Force knew that he worked at the electrical repair shop in RK but they never approached or threatened him there. However, they did not know that for some six months he was working from his home.

The appellant said that some nine or ten months after his father's death he decided to leave India and went to see a travel agent who made all the arrangements.

He said that he did not consider relocating elsewhere in the Punjab or, for that matter, elsewhere in India because he believed that the Khalistan Commando Force would be able to find him anywhere in India through their network of informers. We note that at the Refugee Status Section interview on 10 July 1991 the appellant added that a further reason for not considering relocation elsewhere in India was that the appellant felt that Sikhs were disliked in other states for their separatist politics.

The appellant's visa was issued by the New Zealand High Commission, New Delhi on 13 July 1989 and the appellant eventually arrived in this country on 29 August 1989. There was some considerable delay before his refugee application was lodged on 26 July 1990.

The appellant said that his elder brother K fled to Canada in approximately November or December 1990 and more recently his younger brother has also left India. His present whereabouts are unknown to the appellant.

In support of his case the appellant has produced two letters, each dated within a week of the other.

First in time is a letter from the appellant's mother dated 20 May 1992. She states that one evening, "a few days ago", terrorists had called at the family home enquiring about the whereabouts of the appellant and his elder brother K. They were told that he had gone to Canada. The men had then threatened the family's farmhand who was told to stop working for the family. The farmhand had subsequently fled. The appellant's mother reports "Many unidentified gunmen keep coming to our house. I am very frightened. You are not to try to return."

The second letter is from the sarpanch and is dated 26 May 1992. It confirms that the appellant's mother has reported to the village panchayat the visits made to her home by the terrorists. The sarpanch further reports that the situation is bad and deteriorating progressively. He cites by way of example the death of the village elder who was killed in a fire fight. In the same incident one of the members of the panchayat had been seriously injured. The appellant is advised not to return home.

Finally, the appellant called as a witness a distant relative, a New Zealand citizen, who visited the Punjab in January 1990, at which time he visited the appellant's mother. He confirmed that the appellant's mother has expressed fears for the appellant's life were he to return to India.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who has a:

"... 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 ...."

We rely on the formulation of the relevant issues arrived at in this Authority's decision in Refugee Appeal No. 11/91 Re S (5 September 1991) and in particular the five issues itemised on page 24 of that decision:

1. Is there a genuine fear?

2. Is the harm feared of sufficient gravity to constitute persecution?

3. Is there a real chance that persecution will occur?

4. Will the State fail in its duty to protect the appellant from serious harm?

5. Is the harm feared related to any one of the five grounds recognized in the Refugee Convention, or is it related to other factors?

ASSESSMENT OF THE APPELLANT'S CASE

The appellant is accepted as a credible witness and we therefore find that he has a genuine fear, and that that fear (of death at the hands of terrorists) constitutes persecution for a Convention-related reason, namely the appellant's imputed political opinion (supporter of the Communist Party (Marxist)).

The principal issue is whether the appellant's fear is well-founded. The Authority finds that the fear is not well-founded for the following reasons:

a)Following the death of his father and uncle the appellant continued to work in the same village and its surrounds for the following twelve months. For at least six months of that time he based his business in the very home in which his relatives had been killed. At no time during the day was he ever approached by or threatened by terrorists. At night he avoided the terrorists by sleeping at other places within a short radius of his home village.

b)During this twelve month period he never sought the protection of the police once the police guard had been removed. The subsequent nocturnal visits by the terrorists were never reported to the police.

c)The letter from the appellant's mother dated 20 May 1992 is relied upon by the appellant as establishing that as recently as May of this year terrorists had called at the family home looking for him. However, in the light of the factors that we have mentioned, we find it inherently improbable that four years after the death of the appellant's father and uncle, terrorists should continue to call looking for the appellant, bearing in mind that they had never previously seen the appellant or spoken to him.

d)As to the flight of the appellant's two brothers, the appellant has no information about their whereabouts (except that the eldest brother is "in Canada") or more importantly, the circumstances leading to their departure from India. It is remarkable that they have not tried to make contact with each other. In these circumstances their departure from India is of very limited relevance.

e)There is no evidence showing that other members of the Communist Party from this village have been attacked or killed by the terrorists. The death of the elder and wounding of the second person, being the incidents referred to in the letter from the sarpanch, are not attributed to any cause. There has been no claim that they were members of the Communist Party.

RELOCATION

Even if we are wrong in concluding that the appellant's fear of persecution is not well-founded, the result of this appeal would be no different as on the question of failure of state protection, we find against the appellant. His activities in the twelve months following the death of his relatives demonstrate that he is able to work and live in the Punjab without detection by the terrorists. His success in operating a busy and profitable business from the very home in which the killings took place is clear proof of this fact. We have no doubt of the appellant's ability successfully to establish himself elsewhere in the Punjab, particularly bearing in mind that he has acquired valuable skills which are in high demand in an agrarian economy. His difficulties are entirely localized. With his skills and ability there are many solutions available to him elsewhere in the Punjab and, for that matter, in the rest of India. As he therefore has the opportunity to find effective protection within the country of his nationality, New Zealand's obligations under the 1951 Convention on Refugees and the 1967 Protocol are not invoked. Similar conclusions were reached in both Refugee Appeal No. 63/91 Re RL (13 April 1992) and Refugee Appeal No. 32/92 Re DP (12 May 1992), both of which involved members of the Communist Party who claimed fear of persecution at the hands of Sikh extremists.

CONCLUSION

In summary our conclusions are 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. However, his fear is not well-founded and there is no real chance that the harm feared will occur.

4. The harm feared by the appellant is harm connected with or related to one of the five Convention reasons, namely an imputed political opinion.

5. It cannot be assumed that the authorities in India will fail in their duty to protect the appellant from the harm feared.

6. As the appellant can access effective protection in some part of his country of origin, and as it would not be unreasonable to expect him so to do, he cannot be said to be at risk of persecution.

For these reasons we find 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.

THE QUESTION OF STATE PROTECTION

As this has been a further case in which the issue of relocation has arisen, those who represent refugee applicants may find it useful were we to summarize the jurisprudence we have developed in this area.

This Authority first sat on 10 June 1991. Almost immediately we were called upon to consider an appeal by a family from the Punjab who claimed not fear of persecution by the State through the agency of the police or security forces, but rather a fear of persecution at the hands of terrorists which the State was unable to control. See Refugee Appeal No. 6/91 Re SSS (11 July 1991). We rejected the claim that terrorists would be able to trace the family to other parts of India. We also rejected a claim that it was unreasonable for Sikhs to be expected to live outside of the Punjab in other parts of the Republic of India. We referred to the 1981 census that showed that 2.9 million Sikhs were living in India outside the Punjab. We found that the appellants' unwillingness to avail themselves of the protection of the Government of India was not motivated by any Convention reason but by considerations of maintenance of their quality of life and avoidance of the inconvenience and even hardship in settling down in another part of India. We referred also to paragraph 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and held that it would not be unreasonable to expect those appellants to seek protection in another part of India, particularly when their good education and linguistic abilities would stand them in good stead.

However, as a large number of cases coming before us continued to be based on a fear of persecution at the hands of terrorists, the legal and factual issues were examined at length in what is now our principal decision in this area, namely Refugee Appeal No. 11/91 Re S (5 September 1991) in particular at pages 14 to 28. Confined as it is to fear of persecution by non-state agents (e.g. terrorists, extremists and the like), the decision has, of course, no application to cases where the agent of persecution is the State. Extreme examples of this latter category of case are to be found in Refugee Appeal No. 14/91 Re JS (5 September 1991), Refugee Appeal No. 12/91 Re SJ (5 November 1991) and Refugee Appeal No. 17/92 Re SSS (9 July 1992), all of which involved torture and other forms of persecution at the hands of the police. Each of the appellants (all from the Punjab) were successful and refugee status was granted.

However, the category of case with which we are here concerned is one involving non-state agents of persecution, i.e. the situation where the persecution feared is neither condoned nor tolerated by the State, but nevertheless present because the State is unable to offer protection. Where the failure of protection is regionalised, and effective protection is available elsewhere in the State, refugee status is seldom warranted. In Refugee Appeal No. 11/91 Re S we adopted the following statement of principle in Hathaway, The Law of Refugee Status (1991) 133:

"A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be to one's own state.

The surrogate nature of international protection is clear from the text of the Convention definition itself, which limits refugee status to a person who can demonstrate inability or legitimate unwillingness 'to avail himself of the protection of [the home] state'. That is, the focus of analysis is the relationship between the claimant and her national government. Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of an errant regional government or forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state's duty is met and refugee status is not warranted."

We drew attention to the fact that not only is this principle firmly founded in Canadian jurisprudence, it is also to be found in that of the United Kingdom. We cited R v Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm AR 7 (QBD) and R v Secretary of State for the Home Department, Ex parte Yurekli [1990] Imm AR 334 (QBD). To these authorities there should now be added the decision of the Court of Appeal in the latter case in Yurekli v Secretary of State for the Home Department [1991] Imm AR 153 (CA) in which the decision of the Divisional Court was upheld and also R v Secretary of State for the Home Department, Ex parte Gunes [1991] Imm AR 278 (QBD).

In examining the question of protection we have most often encountered two arguments:

1. That Sikh terrorists have the resources to locate individuals wherever they might go, whether it be in the Punjab or elsewhere in India.

On the facts of the cases we have heard so far, we have found this contention to be unproven. The evidence we have accepted shows that Punjabi terrorists are "completely unorganized" and "have no worthwhile communication network or even inter-militant co-ordination". The militant movement is completely fragmented: Refugee Appeal No. 28/91 Re SM (5 November 1991) at 6; Refugee Appeal No. 52/91 Re SJ (5 November 1991) at 8 (only a few Sikh separatist groups "have the organizational structure of guerilla organizations") and Refugee Appeal No. 54/91 Re ST (5 November 1991) at 5. To similar effect see Refugee Appeal No. 69/91 Re JS (17 December 1991) at 5-6; Refugee Appeal No. 74/91 Re HS (13 April 1992) at 7; Refugee Appeal No. 83/91 Re SP (13 April 1992) at 8.

2. That it is not possible for Sikhs to settle outside of the Punjab.

This argument the Authority has rejected. In Refugee Appeal No. 11/91 Re S we stated:

"We are further of the view that it would not be unreasonable for the appellant to move out of the Punjab. In this regard we note that according to the Amnesty Report referred to, Sikhs in the Punjab form a majority of only 60% (approximately) of the population. The material supplied to us by Mr Chambers contains the following statement (at p.39):

"Punjab is the only Indian state with a majority of Sikhs - 60 per cent - and Punjabi is the mother tongue of about two-thirds of the people. The remainder speak Hindi. Hindus make up more than one-third of the population, and there are smaller minorities of Christians, Jainas, and Buddhists."

Clearly, there can be no objection per se to Sikhs and non-Sikhs living and working alongside each other. Furthermore, there are significant Sikh populations in the neighbouring states. On the figures provided by the Immigration Service, in the Chandigarh area they comprise 21% of the population. In Delhi they comprise 6.3% of the population and in Haryana the percentage is 6.2%. In Rajasthan the percentage is 1.4% and in Uttar Pradesh it is 0.4%. The quality of protection offered in those states against non-state agent persecutors in the form of Sikh extremists would be neither illusory nor unpredictable. It may well be that the appellant will face language and employment difficulties but he faces these in New Zealand as well. But more importantly, difficulties of this kind are not the subject of protection offered by the Convention. Nor does the Convention offer protection against discrimination and harassment by hostile members of the population."

To similar effect see Appeal No. 63/91 Re RL (13 April 1992) at 5; Refugee Appeal No. 83/91 Re SP (13 April 1992) at 8.

For further statistics reference can be made to the Minority Rights Group report The Sikhs (1986) Report No. 65 at 4 and 9.

We turn now to some of the other factors we have taken into account in assessing the relocation issue in the context of non-state agents of persecution. What follows is by way of a general summary only.

1. No country guarantees to its citizens absolute protection against lawless elements of the population. Few countries do not experience an ever-increasing rate of violent crime and murder. The Convention does not protect persons against any and all forms of even serious harm. In the result, persons affected by civil war or by generalized violence in their country of origin are not refugees within the meaning of the Convention unless and until it can be shown that they are differentially at risk due to their race, religion, nationality, membership of a particular social group or political opinion: Refugee Appeal No. 11/91 Re S (5 September 1991) at 25; Hathaway, The Law of Refugee Status (1991) 93; Egan, Civil War Refugees and the Issue of "Singling Out" in a State of Civil Unrest Discussion Paper No. 4, Refugee Law Research Unit, Osgoode Hall Law School, York University (1991) 8.

2. Where the harm feared is strictly private in nature, and the government in the country of origin is both willing and able to afford protection, a requisite degree of state involvement or inability to protect is not established: Refugee Appeal No. 11/91 Re S (5 September 1991) at 25.

3. Where an individual does not seek the protection of the state authorities, it is sometimes more difficult to assert a failure of state protection as the government has not been given an opportunity to respond: Refugee Appeal No. 11/91 Re S (5 September 1991) at 17 and 26; applied in Refugee Appeal No. 25/91 Re RD and Re KJ (15 November 1991) at 9-10; Refugee Appeal No. 28/91 Re SM (5 November 1991) at 7 and Refugee Appeal No. 54/91 Re ST (5 November 1991) at 6. But we stress that this is not an inflexible rule and that consideration of the issue must take into account the principle contained in paragraph 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, 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 so to do." [emphasis in text.]

4. In the context of the Punjab it cannot be necessarily assumed that the authorities are unwilling or unable to provide protection from extremists. The Amnesty International Report of May 1991, if anything, demonstrates that policemen and members of the security forces step well outside legitimate bounds in pursuing extremists: Refugee Appeal No. 11/91 Re S (5 September 1991) at 26.

5. By relocating elsewhere in the Punjab or India, an individual may be able to avoid detection by the terrorists, or may at least reduce the chance of detection to less than "a real chance". In a large number of cases we have held that such would be the result of relocation: Refugee Appeal No. 11/91 Re S (5 September 1991) at 25; Refugee Appeal No. 15/91 Re PS (15 November 1991); Refugee Appeal No. 17/91 Re KV (15 November 1991); Refugee Appeal No. 18/91 Re SA (15 November 1991); Refugee Appeal No. 21/91 Re AS (August 1991); Refugee Appeal No. 23/91 Re PC (October 1991); Refugee Appeal No. 33/91 Re TS (December 1991); Refugee Appeal No. 34/91 Re GS (9 June 1992); Refugee Appeal No. 46/91 Re SM (19 August 1991); Refugee Appeal No. 50/91 Re MS (December 1991); Refugee Appeal No. 52/91 Re SJ (5 November 1991); Refugee Appeal No. 54/91 Re ST (5 November 1991); Refugee Appeal No. 62/91 Re BS (December 1991); Refugee Appeal No. 74/91 Re HS (13 April 1991); Refugee Appeal No. 75/91 Re GL (1 May 1992); Refugee Appeal No. 76/91 Re SS (1 May 1992); Refugee Appeal No. 84/91 Re KS (1 May 1992); Refugee Appeal No. 26/92 Re SS (12 June 1992); Refugee Appeal No. 31/92 Re SS (12 May 1992); Refugee Appeal No. 32/92 Re DP (12 May 1992); Refugee Appeal No. 33/92 Re HD (12 June 1992).

6. Frequently the long effluxion of time from the date of departure from the Punjab to the date of hearing of the appeal will not only make it difficult to establish that an individual's fear is well-founded, but will also reinforce the conclusion that relocation is, in all the circumstances, reasonable as the degree of risk, if any, will as a result of such relocation be reduced well below the "real chance" threshhold: Refugee Appeal No. 6/91 Re SSS (11 July 1991); Refugee Appeal No. 17/91 Re KV (15 November 1991); Refugee Appeal No. 25/91 Re RD and Re KJ (15 November 1991) and Refugee Appeal No. 62/91 Re BS (December 1991).

7. Language and employment factors are relevant. The mere fact that the individual will encounter difficulties in these respects when relocating is not enough: Refugee Appeal No. 11/91 Re S (5 September 1991); Refugee Appeal No. 6/91 Re SSS (11 July 1991); Refugee Appeal No. 17/91 Re KV (15 November 1991); Refugee Appeal No. 18/91 Re SA (15 November 1991); Refugee Appeal No. 28/91 Re SM (5 November 1991); Refugee Appeal No. 49/91 Re SJ (10 April 1992); Refugee Appeal No. 56/91 Re SJ (12 May 1992); Refugee Appeal No. 59/91 Re RP (December 1991); Appeal No. 63/91 Re RL (13 April 1992); Refugee Appeal No. 69/91 Re JS (17 December 1991); Refugee Appeal No. 73/91 Re GC (December 1991); Refugee Appeal No. 3/92, 4/92 and 5/92 Re PKS, RKS and MKS (26 March 1992); Refugee Appeal No. 24/91 Re HS (9 June 1992); Refugee Appeal No. 87/91 Re USP (9 June 1992); Refugee Appeal No. 29/92 Re SS (26 June 1992).

8. In order to underline the importance of the relocation factor in the context of a regionalised failure of state protection, attention is drawn to the fact that in exceptional cases we have held that even where the police are the feared agent of persecution, on some facts, relocation by the individual within the Punjab or India has been held to be reasonable: Refugee Appeals No. 57/91 Re AJS (December 1991) and Refugee Appeal No. 33/92 Re HD (12 June 1992). However, we have also accepted that relocation is not necessarily a solution where a warrant of arrest has been issued: Refugee Appeal No. 70/91 Re PS (16 December 1991). And as we have previously mentioned, we have found in a number of cases where individuals have suffered torture at the hands of the police that relocation within India is not reasonable.

From this brief review of approximately twelve months jurisprudence concerning fears of persecution from terrorist or militant groups in the Punjab, it can be seen that the Authority's decisions conform very much to the principles enunciated in Refugee Appeal No. 11/91 Re S (5 September 1991). Excluding exceptional cases, it should now be possible for an intending appellant to make a realistic assessment of the likely outcome of an appeal. It is to be hoped that after the first instance hearing by the Refugee Status Section asylum seekers will not persist with an appeal that has no realistic prospect of success.

To our knowledge, no appeal based on fear of persecution by terrorists operating in the Punjab or the neighbouring states has been successful on the facts we have heard so far. This is because we have found that in a large and populous country such as India, both Sikhs and Hindus are able to access effective protection either in different parts of the Punjab or in different parts of India.

As at 30 June 1992, of all cases heard by the Authority involving appellants from India, the only successful cases (11.32%) have been those involving state agents of persecution. Those cases involving non-state agents of persecution (66%) have had a success rate to date of zero per cent.

We emphasize that the foregoing represents a general summary only of the jurisprudence to date. If conditions in India or the Punjab change, or new evidence bearing on the issues comes to hand, we will, of course, always be prepared to re-evaluate the situation. Furthermore, no case is ever identical on its facts. We recognize that as conditions in a country of origin change, so too must the assessment of the particular case on appeal. We recently considered this very issue in Refugee Appeal No. 90/92 Re RRF (11 June 1992) 7-9, a case involving a Sri Lankan national of the Tamil race who feared persecution at the hands of the JVP (a non-state agent of persecution). In dismissing that appeal we referred to new evidence concerning the strength of the JVP. That evidence established that the JVP had become far weaker than when we allowed an appeal ten months earlier in Refugee Appeal No. 9/91 Re AMR (27 August 1991).

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