REFUGEE APPEAL NO. 70405/97
AT AUCKLAND

Before: R.P.G. Haines (Chairman)
  S Joe (Member)
Appearing for the Appellant: No appearance
Appearing for the NZIS: No appearance
Date of Hearing: 8 May 1997
Date of Decision: 29 May 1997

DECISION

This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a national of Peru.

INTRODUCTION

The appellant is a 21-year-old single man who arrived in New Zealand on 15 October 1995. He claims to be a student by occupation.

On 8 November 1995 he filed an application for refugee status. His case was that in May 1992 in Lima he joined the Partido Comunista del Peru "Sendero Luminoso" (Communist Party of Peru "Shining Path"). He acknowledged that the party was illegal and that it used violence to achieve its aim of becoming the government and creating a communist society. He said that he himself had taken part in armed attacks on trucks carrying food. The food was later distributed to people in the slums surrounding Lima. In February 1995 he decided to leave the Sendero Luminoso but was afraid that his former colleagues would kill him as the party did not permit anyone to leave.

The Refugee Status Branch interview took place on 11 November 1996. At this interview the appellant confirmed the essential aspects of his claim but the officer found him evasive and on a number of occasions he (the appellant) refused to answer questions. Briefly, the appellant said that he joined the Sendero Luminoso in 1992 after he left secondary school because he was attracted by the party's political ideas. He and five other members of his group would hijack trucks carrying food and insist that the drivers take them to the shanty towns for the food to be distributed. He said that he had taken part in these attacks "many times" and that he and his colleagues were armed with loaded pistols which he described as Smith & Wessons. He accepted that had it been necessary to do so, he would have fired his gun in self-defence. He said that after leaving the Sendero Luminoso he had repented and wished to remain in New Zealand to continue his studies.

In a decision dated 21 January 1997 the Refugee Status Branch declined the refugee application on the basis that the appellant was not a credible witness.

Having represented himself at the Refugee Status Branch interview, the appellant instructed a firm of solicitors who lodged an appeal within the prescribed period.

By letter dated 5 February 1997 the appellant's solicitors were advised that the appeal would be heard at 10.00am on 8 May 1997. A copy of the file held by the Authority was sent to the solicitors by letter dated 20 February 1997.

On 7 May 1997 the Authority received from the appellant's solicitors a letter dated 6 May 1997 advising that they were withdrawing. Their letter was in the following terms:

At the appeal hearing on 8 May 1997 the appellant did not appear.

EXCLUSION FROM THE REFUGEE CONVENTION

Persons not regarded as deserving the benefits of refugee status are excluded from the Refugee Convention by Article 1F. Such persons are described in the following terms:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."

It is Article 1F(a) which is relevant to the present appeal. A detailed discussion of this provision is to be found in Refugee Appeal No. 1248/93 Re TP (31 July 1995) at 24-35.

Because the appellant has freely admitted to active involvement in the Sendero Luminoso from May 1992 to February 1995 and to having taken part in armed attacks against innocent civilians, the Authority is duty-bound to consider whether Article 1F(a) operates to exclude the appellant from the Refugee Convention. A brief description of the Sendero Luminoso is required.

Sendero Luminoso

On 17 May 1980 the Sendero Luminoso announced the beginning of the "People's War" which continues down to the present time. In this war the Sendero Luminoso have systematically committed atrocities.

The violations by Sendero Luminoso of Common Article 3 of the four Geneva Conventions of 1949 have been extensively documented over recent years. We refer by way of example to the various Human Rights Watch reports including Into the Quagmire: Human Rights and US Policy in Peru (September 1991) 25-29; Untold Terror: Violence Against Women in Peru's Armed Conflict (1992) 44-45; Peru Under Fire: Human Rights Since the Return to Democracy (1992) 57-71; Peru: Civil Society and Democracy Under Fire (August 1992) 25-31; Human Rights in Peru: One Year After Fujimori's Coup (April 1993) 15-17; Peru: The Two Faces of Justice (July 1995) 46-50 and Peru: Presumption of Guilt (August 1996) 30-33. In this last report the following paragraph appears at 30:

In 1992, the year in which the appellant joined the Sendero Luminoso, the Peruvian human rights organization Coordinadora Nacional de Derechos Humanos held the Shining Path responsible for 946 political assassinations, compared with 842 in 1991. Among the victims of Shining Path assassinations in 1992 were 29 neighbourhood leaders, 28 peasant activists, 10 political leaders and eight trade union organizers: Human Rights Watch, Human Rights in Peru: One Year After Fujimori's Coup (April 1993) 15. At 16 it is noted that the Sendero Luminoso in 1992 also engaged in a widening campaign of car bombs after the coup, used in cars and trucks packed with up to 600 kilograms of dynamite mixed with ammonium nitrate, or anfo. In April and May 1992, these detonations were for the most part targeted at police precincts, although many civilians were also injured or killed. However, in June and July they began to be directed against purely civilian targets, with a clear terroristic intent. In one incident in Lima, at least 18 civilians were killed and hundreds seriously wounded. According to the Coordinadora, Sendero Luminoso explosives killed more than 60 civilians during the car bomb campaign between May and July 1992.

The significance of this information is that when the appellant joined the Sendero Luminoso in May 1992 he could have been in no doubt whatsoever of its then 12-year history of violence, terror, human rights abuses and glorification of violence. Thereafter, the appellant's willing, active and armed involvement in the intimidation of civilians and theft of property is the clearest evidence of his knowledge of and deep complicity in the activities of the Sendero Luminoso. In short, there was personal and knowing participation in an organization principally directed to a limited, brutal purpose and the wholesale breach of Common Article 3 of the four Geneva Conventions of 1949. We are satisfied on the facts therefore that there are serious reasons for considering that the appellant has committed crimes against humanity, as defined in the International Instruments drawn up to make provision in respect of such crimes and as interpreted and applied by the principal decisions of the Canadian Federal Court of Appeal, namely Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306 (FC:CA); Moreno v Canada (Minister of Employment and Immigration) [1994] 1 FC 298 (FC:CA) and Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 FC 433 (FC:CA).

We note that our conclusion accords with Canadian jurisprudence. See in particular Diaz v Canada (Minister of Citizenship & Immigration) (1995) 94 FTR 237 (FC:TD) discussed by Joseph Rikhof in "Exclusion Clauses: The First Hundred Cases in the Federal Court" (1996) 34 Imm LR (2d) 137, 142-143.

CONCLUSION

It being abundantly clear on the facts that the appellant falls within the exclusion provisions of Article 1F(a), no point would be served by investigating whether the appellant meets the terms of the Inclusion Clause, namely Article 1A(2).

It is accordingly the finding of the Authority that the appellant is excluded from the Refugee Convention by virtue of Article 1F(a). The appeal is dismissed.

Chairman

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