Refugee Appeal No. 2410/95

REFUGEE APPEAL NO. 2410/95
AT AUCKLAND

Before:	C M Treadwell
	V J Shaw (Member)
	A Gupta (UNHCR Member)
:		Mr M Riley
:		No Appearance
Date of Hearing:		6 September 1995
:		27 June 1996

THE APPELLANT'S CASE

The appellant, aged 20, is the youngest of eight children. His parents reside in Peru. Two of his brothers have New Zealand residence but reside permanently in Australia. His remaining brother, R, is in New Zealand and has also applied for refugee status. One of the appellant's sisters, A, is a New Zealand citizen. His other three sisters reside in Peru.

The appellant's parents own a small stationery shop in one of the outer suburbs of Lima. The shop itself is on a corner and the family home, where the appellant grew up, is three doors away.

Prior to March 1991 the shop was managed by the appellant's brother R. The appellant and his parents would help out in the shop from time to time. In March 1991 R left for New Zealand. The appellant told the Authority that, at that time, he understood the purpose of R's trip was merely a holiday. The appellant presumed R would be returning to Peru after a short time.

R had sold half of the merchandise from the shop in order to fund his trip to New Zealand and, after his departure, the shop closed for approximately one month. The appellant acknowledged that, at the time, he had not queried these unusual events. To the Authority he explained that at the time of these events he was only 15 years old and, as the youngest child of the family, was not taken into his parents confidence.

According to the appellant his troubles began in January 1993. He had been out for lunch one day. On returning to the shop he found a grubby envelope had been pushed under the door. It was addressed simply to the shop. There was no reference to the sender. The appellant opened the envelope and found it contained a letter stating that "they" had not forgotten that "cupo" had to be paid and warning that if it was not, then a bomb would be placed in the shop.

The appellant told the Authority that he gave the letter to his mother but she evaded his questions about it, simply telling him not to worry about it. He could see however that she was herself very worried.

One month later, in February 1993, a man came into the shop enquiring for the appellant's brother R. He affected a friendship with R that, to the appellant, was quite clearly false. Naturally cautious, the appellant denied knowing R's whereabouts. The appellant explained to the Authority that he had in any event been warned by his parents not to tell anyone anything about R. His parents had refused to explain to him why this was necessary.

According to the appellant, the man who came into the shop asked him about his own position at the shop. When the appellant replied that he was now running it the man showed obvious signs of interest.

The appellant told the Authority that over the course of the next month he often saw the same man. It was the appellant's habit to walk to downtown Lima or to his studies. On these excursions he saw the man frequently and had the feeling that the man was following him.

Eventually, in March 1993, he challenged the man in the street. At the time, the man was standing with several others beside a car. The appellant went up to him and asked him why he was following him. Without replying, the man forced the appellant into his car and threatened him. He asked the appellant questions about his brother R. He said that R had "a date with them" and that they were looking for R to pay the money he owed. The appellant was very frightened.

According to the appellant, this incident occurred in the afternoon on a week day. He was returning from the house of his girlfriend in order to open the shop. When the Authority expressed surprise that the shop had not been open in the earlier part of the day the appellant explained that he had been too busy on that day. He conceded that his parents were not aware that he had not opened the shop early in the morning, as he was expected to do

The Evidence of the Appellant's Brother, R

The Authority had the opportunity to question the appellant's brother R.

Because all of the essential elements of the present appellant's case are claimed to have occurred after R had left Peru, R was, inevitably, unable to give the Authority direct confirmation of those events.

What R was able to do, however, was to explain his own background, much of which is, according to the appellant's own evidence, the underlying reason for his own difficulties.

Before setting out the details of R's evidence, however, it is appropriate to record that the giving of R's evidence did not constitute the hearing of his own appeal. It was simply given as evidence in support of the present appellant's appeal. The decision of the Authority in respect of the present appeal does not purport to make any findings in respect of the merits or otherwise of R's claim for refugee status.

According to R, he opened the stationery shop in Lima in February 1982, with some help from his parents. The business was successful.

In March 1990 four masked men burst into the shop one evening shortly before closing time. R was alone in the shop. The men began shouting. They said that they were members of Sendero Luminoso and they demanded that R pay a monthly "donation" of US$500 to their cause. R denied having any money and the men left, uttering threats that he should get the money together and that they would return at a later date.

R told the Authority that he did not tell his parents about this first incident. He says that he did not do so because he did not want to worry them.

According to R, two masked men then burst into the shop in July 1990. Two other men waited outside in a white car. The men who came into the shop demanded the money but R refused to give it to them. They then left the shop. Although R's statement records that one of the men pointed a pistol at his head, R's evidence to the Authority was that this in fact happened later, in an incident in December 1990.

According to R, he did not formally report the July 1990 incident to the police. He did, however, mention it to one of his friends who was a police officer. As a result of that discussion, R began passing to his friend in the police, information given to him by other business people in his area who had received extortion threats.

In December 1990 four masked men burst into the shop for the third time. They threatened R with pistols and demanded money. When he told them that he did not have any, one of them began to punch him in the face and stomach. They beat him for about five minutes and then left, taking the contents of the till and various items of merchandise. They told R that they would return again and if he did not co-operate they would kill him. They warned him not to report the matter to the police as they had informants in the police force.

R reported this incident to his friend in the police. From the friend he later learned that two of his attackers were caught by the police at the end of December 1990.

In February 1991, R's friend in the police told him that a hit list had been discovered during a raid on a Sendero house. R's name was on the list as a "traitor" who had collaborated with the police.

R immediately went into hiding at the house of some relatives and made arrangements to leave the country. He returned to the shop only to move the stock out of it so that he could close it and sell the stock. R arrived in New Zealand on 6 March 1991.

R confirmed that his parents returned to Peru without warning early in 1995 and that he had telephoned them as a result. According to R, they told him that people pretending to be friends continue to call at the shop, asking for R or the appellant.

The Evidence of the Appellant's Parents

Although the appellant's parents are now back in Peru, the appellant made available to the Authority the statement originally submitted by his parents in support of their application for refugee status in New Zealand.

The appellant's parents' statement refers only briefly to the difficulties faced by R and the appellant. It is concerned mainly with events subsequent to the appellant's departure for New Zealand.

The statement records that in mid July 1993 the appellant's father was working late at the shop. Two masked men with machine guns and pistols came into the shop. They were shouting Sendero slogans. They demanded to know the whereabouts of R and said that they wanted money. The appellant's mother, who was also present, collapsed in fright, which caused the men to run away.

At hospital the appellant's mother was diagnosed as having epilepsy and it was decided that she should travel to New Zealand to get away from the stress and the tension.

In March 1994 the appellant's father was confronted by Sendero members for a second time. As he was shutting the shop one evening, three armed men walked in. They enquired about R and the money that they were owed. The appellant's father was afraid and gave them US$250. The men left the shop, taking the money and a bag full of merchandise.

The appellant's mother returned to Peru in April 1994.

One evening in September 1994, the appellant's father, the appellant's sister V and her two young children were all working in the shop. At about 9.30 pm three masked men burst in. One of them stood by the door while the other two confronted the appellant's father. They wanted to know R's whereabouts and they demanded money. The appellant's father said that he did not know R's whereabouts and had no money. The men commenced to beat him. Again, as they left, they filled a bag with merchandise and again warned the appellant's father that they would return. The appellant's parents left Peru for New Zealand on 4 November 1994.

As already stated, the appellant's parents applied for refugee status in New Zealand. In January 1995, before their application was determined, they returned to Peru.

The appellant did not present to the Authority any evidence from his parents as to events in Peru subsequent to their return in January 1995. He told the Authority that he has not spoken to his parents since they left New Zealand.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and 1967 Protocol relating to the Status of Refugees relevantly provides that a refugee is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable to or, owing to such fear, is unwilling to return to it."

This being a case involving a non-state agent of persecution, the relevant issues are:-

1. Is there a genuine fear?

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

3. Is the harm feared related to any of the five grounds recognised in the Convention, or is related to other factors?

4. Is the fear well-founded at all?

If so:

(a)As to the whole of the country of origin?

(b)As to only part of the country of origin, in which case can the appellant genuinely access protection which is meaningful, and is it reasonable in all the circumstances, to expect the appellant to relocate elsewhere in the country of origin?

In our decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 re LAB (11 July 1991), this Authority held that in relation to issue (4) the proper test is whether there is a real chance of persecution. In relation to the issue of relocation, the relevant principles are explained and discussed in Refugee Appeal No. 11/91 re S (5 September 1991), Refugee Appeal No. 18/92 re JS (5 August 1992), Refugee Appeal No. 135/92 re RS (18 June 1993) and Refugee Appeal No. 523/92 re RS (17 March 1995).

ASSESSMENT OF THE APPELLANT'S CASE

1.Is the appellant genuinely in fear?

While we are willing to accept that the family business may have received demands for "cupo" from Sendero, (and, in particular, we have no reason to disbelieve R's account of the demands made from him), many elements of the appellant's account were clearly not plausible. In particular, we note:

(a)According to the appellant, his parents never kept him informed of anything. He told the Authority that his parents did not tell him of:

(i)R's problems with Sendero in 1990 and 1991.

(ii)That the real reason for R's departure for New Zealand was his fear of Sendero.

(iii)The significance of the extortion letter found by the appellant in the shop in January 1993.

(iv)Their plans in April 1993 for the appellant's own departure for New Zealand.

(v)The events that happened to themselves after he left Peru.

(vi)Their decision to return to Peru in January 1995.

The appellant's explanation for his parents failure to ever keep him informed of events of significance (even when his own physical safety was at stake) was, according to the appellant, either because they did not wish to worry him or because he was the baby of the family. We do not accept either explanation. In particular, it is not credible that, in the face of a threat of extreme violence from a terrorist organisation, the appellant's mother would have allowed her son to carry on working at the shop without at least warning him of the dangers implicit in the extortion letter from Sendero. R had been so harassed by Sendero that he had been threatened with a gun and had been beaten up so badly that he had been forced to flee overseas in fear for his life. It is simply fanciful to suggest that the appellant's parents would allow him to be exposed to the same situation, without either warning him or removing him from it. Nor is it credible that his parents would make travel plans for him without at least telling him what they were doing, if only to prevent the appellant making conflicting plans himself.

We have difficulty in believing that over two years passed without incident between R's last brush with Sendero in 1990 and the arrival of the letter at the shop in January 1993. Even making allowances for the sometimes illogical ways in which extremists such as Sendero can act, the claimed resumption of enquiries for R after a period of two years, without reason, is barely credible. According to R, he has been regarded by Sendero as a traitor since early 1991. It is difficult to believe that Sendero would take no steps to find him for two years and then suddenly re-emerge, enquiring as to his whereabouts.

The appellant's evidence to the effect that he was unaware until the discussion with his parents in early May 1993 that they had decided to send him to New Zealand is not credible. It is significant that the appellant initially told the Authority that the decision to send him to New Zealand was made during that discussion. It was only when it was pointed out to the appellant by the Authority that his sister A had signed a sponsorship form on 8 April 1993, nearly a month earlier, that he shifted his ground and said that his parents had been planning for some time to send him to New Zealand. We do not accept as truthful the appellant's evidence that he was unaware of their plans until May 1993.

The appellant claims to have been unaware of the problems faced by his brother R in 1990 and 1991. In particular, he claims not to have known of:

(i)Sendero's visit to the shop in March 1990 (including the attempted extortion of money).

(ii)Sendero's visit to the shop in July 1990 (including their further attempt at extortion).

(iii)Sendero's visit to the shop in December 1990 (including the beating received by R and the theft of money and goods).

(iv)The capture of two of the Sendero men in December 1990.

(v)The discovery of R's name on a Sendero death list in February 1991.

The appellant's evidence in this regard is simply not credible. He and his brother R lived with their parents in the family home adjacent to the shop. It defies belief that he could have remained unaware of such a chapter of dramatic events, unfolding over a one year period and culminating in his brother's flight from the country.

We are prepared to give the appellant the benefit of the doubt that Sendero did make a further demand for "cupo" in early 1993 and that this was the catalyst for the appellant's departure for New Zealand. For the purposes of this appeal we are also willing to give the appellant the benefit of the doubt and accept that Sendero may also have had a continuing interest in locating R, but it is clear from his own evidence that if Sendero had an interest in the appellant at all, it was only as a vehicle for getting to R.

Having given the appellant the benefit of the doubt that he did receive some threats from Sendero, whether for "cupo" or in connection with their enquiries into the whereabouts of his brother or both, it follows that we find him to be genuinely in fear.

2.Is the appellant's fear a fear of persecution?

The appellant fears serious physical injury and possibly death at the hands of Sendero. We find that such treatment would constitute a sufficiently sustained and serious violation of the appellant's basic human rights as to constitute persecution.

3.Is the persecution feared by the appellant persecution for a Convention reason?

There has been no suggestion by the appellant that Sendero's demands were for anything greater than money and the whereabouts of R. Their threat of persecution related to his failure to comply with these demands.

It has been held by the Authority on a number of occasions that the extortion of money, even by a political group, does not of itself come within any of the five Convention grounds. The Authority has had occasion to address this question before, with particular regard to demands for "cupo" by the terrorist organisations in Peru. In our earlier decision in Refugee Appeal No. 370/92 Re LMRH (19 August 1994) it was held that a fear of persecution as a consequence of that appellant's failure to pay "cupo" to the MRTA was neither for reasons of his political opinion nor because he belonged to a particular social group.

See also our decision in Refugee Appeal No 2507/95 Re JEAH (22 April 1995) at 14-15, where it was held:

"...the mere existence of a generalised "political" motive underlying the terrorists' forced extraction of money from businessmen is inadequate to establish the proposition that the appellant fears persecution on account of his actual or imputed political opinion. In this regard, see Immigration and Naturalisation Service v Elias-Zacarias 112S. Ct. 812, 816 (1992) and Bartesaghi-Lay 9 F 3d 819 (10th Cir. 1993)."

We accept that Sendero also enquired as to the whereabouts of the appellant's brother R. Even if their interest in R was on account of an imputed political opinion, however, it does not follow automatically that a failure by the appellant to reveal R's location will be taken as being on account of the appellant's actual or imputed political opinion. The evidence presented to us in the present case falls well short of establishing that the appellant's failure to produce R caused Sendero to impute to the appellant a contrary political opinion.

4.Is the appellant's fear well-founded with regard to his locality?

The appellant's fear is not well-founded with regard to his own locality in Peru.

It was clear from the appellant's evidence that Sendero's interest in him was limited to his knowledge of the whereabouts of his brother. Given that R has now been absent from Peru for almost five years and the appellant himself for nearly three, we are satisfied that there is only a remote chance that the appellant's return, even to Lima, would now result in his previous difficulties resurfacing.

Both the appellant and his counsel acknowledged that the threat from Sendero has lessened considerably in recent years. That accords with our own understanding. As noted in our decision in Refugee Appeal No 2507/95 Re JEAH (22 April 1995) at 9-14, the crackdown by the Peruvian authorities in the last three years has seen a substantial reduction in the strength and influence of Sendero, such that conditions in much of Peru can be said to have returned to a state of reasonable normality.

We are reinforced in our view by the fact that the appellant's parents have chosen to return to Peru and are now, according to the appellant's brother R, running the shop once again. The appellant did not provide any evidence to show that his parents have had any further threats or visits relating to him, by Sendero, in the period of nearly a year that has elapsed since their return to Peru. Indeed, R acknowledged that he has heard from his parents by telephone that "everything is quiet".

5.Is the appellant's fear well-founded with regard to the rest of Peru?

It follows from the preceding paragraph that we find that the appellant's fear is not well-founded with regard to the rest of Peru either. The passing interest shown in him by Sendero has simply been incidental to their interest in his brother and it is inconceivable that the appellant's highly localised and transitory contact with Sendero would result in him coming to the adverse attention of Sendero members anywhere else in Peru.

It follows that, even if the appellant's fear is well-founded with regard to his own locality in Lima, relocation elsewhere in Peru is available to the appellant.

We are also satisfied that relocation is a reasonable expectation. The appellant is young and fit and has had experience running a small business. He has family members, including two sisters and his parents, living in Peru to whom he could look for support.

Before leaving the question of the well-foundedness of the appellant's fear, it is necessary to give consideration to several previous decisions of the Authority, to which Mr Riley referred and which, he submitted, supported the appellant's case. Specifically, counsel drew the Authority's attention to its earlier decisions in Refugee Appeal No. 1947/93 re SYGL (14 October 1994), Refugee Appeal No. 1805/93 re AMAN (29 June 1995) and Refugee Appeal No. 703/92 re EEJA (28 July 1995).

It was submitted by counsel that, in these three decisions, the conclusion was reached by the Authority that Peru remains too unstable for potential victims of Sendero violence to be able to relocate.

Without detracting at all from the correctness of the three decisions in question, we do not agree that the country information taken into account in those decisions is authority for such a generalised proposition.

The situation of each of the appellants in the three decisions is clearly distinguished from that of the present appellant:

1)Refugee Appeal No. 1947/93 re SYGL (14 October 1994)

The appellant in this appeal was the wife of a lawyer who was the General Secretary of the Apra party. The appellant actively supported her husband's political career for many years. In 1985 he became the Prefect of an entire region of Peru. The Sendero leadership publicly announced that the appellant and her husband would be killed. The appellant received numerous death threats and assaults and was forced to live under tight police protection. Eventually, the Apra party fell from power. Her husband was detained by the authorities and her own police protection was withdrawn.

2)Refugee Appeal No. 703/92 re EETA (28 July 1995)

The appellant in this appeal was a construction supervisor, contracted to the Peruvian Army to rebuild a prison which had been badly damaged by Sendero. Sendero members attempted to force him to pull out of the contract. In spite of several physical attacks upon the appellant and his property, the appellant refused to obey them. Instead, he informed the army of their threats. As a direct result, Sendero tied up and assaulted the appellant and raped his wife.

3)Refugee Appeal No. 1805/93 re AMAN (29 June 1995)

The appellant in this appeal lived in a district of Lima at the centre of Sendero's terrorist activity. He was known to Sendero to be a supporter of President Fujimori. When Sendero's demand for "cupo" from his business became excessive, the appellant ambushed and beat up three Sendero members when they came to his shop. He went into hiding and Sendero began searching for the appellant, beating up members of his family on a number of occasions and vandalising the shop and family homes many times.

It can be seen that the level of interest shown by Sendero in each of these three appellants was such that there was a real chance they would be actively sought by Sendero if they were to return to Peru. The evidence does not show that this is the case with the present appellant.

CONCLUSION

In

1. The appellant is genuinely in fear.

2. The harm feared by the appellant is of sufficient gravity to amount to persecution.

3. The persecution feared by the appellant is for a Convention reason, namely imputed political opinion.

4. With regard to the appellant's locality, namely Lima, his fear is well-founded. With regard to the rest of Peru, however, his fear is not well-founded. Relocation is both available and a reasonable expectation.

For the foregoing reasons the appellant is not a refugee within the meaning of Article 1A(2) of the Convention. Refugee status is declined. The appeal is dismissed.

Chairperson