Refugee Appeal No. 70670/97

REFUGEE APPEAL NO. 70670/97
AT AUCKLAND

Before: R P G Haines (Chairman)

H ten Feld (Member, UNHCR)

Counsel for the Appellant: B E McAnulty

Appearing for the NZIS: No appearance

Date of Hearing: 22 October 1997

Date of Decision: 19 December 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 citizen of the Republic of Fiji.

THE APPELLANT'S CASE

The appellant is a 30 year old married man of the Indian race who has lived all of his life in Fiji, principally in the town of Ba situated on the western side of Viti Levu. His wife and only child, who are also Fiji citizens, are presently in New Zealand with the appellant.

By occupation the appellant is a supervisor/administrator (accounts) and for the period August 1988 to April 1996 he worked for X company in Ba.

The appellant and his family arrived in New Zealand on 7 April 1996 on visitor visas. The refugee application was not lodged until 20 December 1996.

It is to be recalled by way of background that the first coup took place on 14 May 1987, and the second coup on 27 September 1987. Since then, as the appellant concedes, the situation concerning Indians in Fiji has improved and on 3 July 1997 the Fiji House of Representatives passed the 1997 Constitution Amendment Bill which will replace the controversial 1990 Constitution by largely doing away with provisions which had hitherto ensured that political power remained exclusively in the hands of Fijians. Notwithstanding this concession, it was submitted on the appellant's behalf that he personally was still at risk were he to return to Fiji. This was because the consequences of events with which he was involved in 1987 continue down to the present time. Thus, while the determination of refugee status primarily involves an assessment of prospective risk (as to which see Refugee Appeal No. 70366/96 Re C (22 September 1997) 23-39), the initial focus of the appellant's case is on events which occurred more than 10 years ago.

For the purpose of summarizing the appellant's case, we will concentrate primarily on the evidence given at the appeal hearing.

For some 40 years the appellant's family has farmed approximately seven acres of land near the town of Ba, the land being held under a lease from the native landholders. The farm is presently worked by the appellant's father with the assistance of two labourers who help out in the planting and cutting seasons. The appellant has four sisters. Two work in garment factories located in Lautoka and Nadi respectively. The other two are housewives who are living in Labasa and Suva respectively. There are two brothers, being the appellant and the youngest sibling who is a qualified plumber working in Nadi. The appellant himself is the fifth child.

Although a Sunni Muslim, the appellant's initial schooling was at a Methodist mission school in Ba, a school attended by other children from the mainly Indian area in which the family farm is situated. Thereafter the appellant attended the Ba Muslim College where he obtained his New Zealand School Certificate. After completing secondary school, he attended the Fiji Institute of Technology where in March 1987 he gained a certificate in commercial studies. The appellant's studies were part-time as in the period 1984 to September 1986 he was working for a firm in Ba as an accounts clerk.

On weekends and during holidays the appellant helped out on his father's farm.

In 1986 he became an ordinary member of the National Federation Party which primarily represents the interests of Fiji Indians. His father was a member of the party and he followed in his footsteps. In the lead-up to the 1987 elections the appellant was actively involved in canvassing, distributing pamphlets and attending meetings. On election day he assisted with the transportation of voters to the polling stations. He accepts that there were a large number of other persons in Ba engaged in exactly the same activities for the National Federation Party.

On a date the appellant cannot now recall, but which was in August 1987, ie, subsequent to the first coup, he was working on his father's farm harvesting cane. At that time a fire spread from the farm onto an adjoining pine-tree plantation. Approximately 20 to 30 acres of the plantation were badly damaged by the fire. The appellant and other members of the cane-cutting gang assisted in the fire fighting. The appellant recalls that the fire was extinguished by late evening.

At approximately 8.00am the following morning the appellant and the gang (numbering some 19 or 20 persons) were working in the fields. At this time 10 to 12 soldiers arrived and demanded to know who had started the fire the previous day. The appellant said that the interrogation was accompanied by ill-treatment and beatings. In particular, the appellant and members of the cane-cutting gang were forced to run four kilometres down a track and back again and were also assaulted over a period of some two to three hours. They were punched, kicked and struck with rifle butts. The appellant estimates that he was hit some seven to eight times in this manner, receiving cuts to his forehead and bruising to his back.

Four individuals, including the appellant, were then taken by the soldiers to their camp which had been set up at the Ba town hall and on the adjoining soccer fields. The appellant was held in the town hall for two days from approximately 12.00 noon on the Thursday until approximately 3.00pm on the Saturday. The appellant and his three companions were detained in separate rooms.

On his first arrival at the town hall on the Thursday, the appellant was subjected to an interrogation during the course of which he was punched in the stomach and cigarette butts were extinguished on his body. This initial assault went on for approximately one hour. The appellant does not know how many times he was punched but recalls being burnt by cigarettes five to six times on both his arms and on his back. Three officers were involved in the assaults.

At approximately 6.00pm that evening he was suspended by his feet from a rafter and assaulted with a stick, the three officers taking turns to strike him on his back. This went on for about half an hour. Thereafter he was untied but one of the officers kicked him in the stomach four to five times, whereupon the appellant lost consciousness.

At 6.00am the following morning the appellant was given a small amount of water. Two to three hours later he was questioned again by an officer who demanded to know who had started the fire. At approximately 10.00am the appellant was tied to a flat sheet of corrugated iron and taken out to one of the soccer fields where he was left for three hours. The appellant described the day as hot and sunny and estimated that the temperature would have been about 40o C. He believes that the sheet of iron heated up to about 80o C. When officers passed him by, he would be kicked. It is claimed by the appellant that his three companions and many others were similarly strapped to sheets of iron on the soccer field. He estimates that there were some 20 Indians being tortured in this way at the same time. He described to the Authority how the field was bordered on one side by the Fiji Sugar Corporation mill and on another side by a road. People passing on the road some 80 to 100 metres from where the appellant was lying would have had a clear view of what was happening.

After his ordeal in the sun the appellant was given a small pancake before being taken for further interrogation. Two officers set about punching the appellant and after 45 minutes of this treatment he lost consciousness. What he does recall is that at one point he was kicked severely in the groin, with the result that one of his testicles was forced back into his body and remains there to this day. The appellant was taken back to his room and did not regain consciousness until after dark.

On the Saturday the appellant was questioned once again and although there was much swearing by the interrogating officers, the appellant was not assaulted. After a senior officer had been consulted the appellant was released. However, as he was then unable to walk, he was placed in a van and eventually dropped off at his home at approximately 2.00pm or 3.00pm.

He said that his injuries at that time comprised burn marks from the cigarettes, bruising all over his body, several cuts on his back, burns on his shin, a cut on his forehead, cuts to his feet and a displaced testicle. However, the appellant did not consult a doctor. In fact he did not see a doctor until approximately 12 months later following concern relating to his displaced testicle. The appellant told the Authority that he still has marks on his body comprising a cut to his forehead, some marks on his back, a scar on his left shin and on the inside of his left knee, similar scars on his right knee and a burn mark in the space between the middle and third finger of his left hand.

After being confined to bed for approximately a week, the appellant slowly resumed work on the farm.

On 19 August 1988 the appellant found employment as a clerk at X company in Ba. In 1989 he was appointed to the position of assistant because, he claims, no-one else wanted the position.

On 20 January 1990 the appellant married his present wife and as a result, applied for day work as he found shift work inconvenient. As a result, the appellant was appointed head clerk and with it came the responsibility to keep a set of accounts. His fortnightly take home pay was FJD$280, which he described as a good wage.

In 1989, soon after joining X company, the appellant became a trade union member, eventually rising to the position of union representative.

The appellant remained working for X company until his departure for New Zealand on 7 April 1996 and until early 1995, lived in Ba with his wife. However, at the beginning of 1995 the appellant and his family moved to the nearby town of Lautoka because their home in Ba had been burgled. The items taken included a stereo, a video and jewellery. Although a complaint was made to the police and their statements taken, the police gave no appearance of investigating the matter. The appellant also mentioned that up until November or December 1989, whenever there were pine fires in the Ba area, he would be visited at his home and questioned concerning his knowledge of the matters. The last visit was, however, in November/December 1989. The appellant also mentioned that following their discharge from the army, local Fijians would steal fruit and vegetables from his father's farm, the thefts occurring approximately once every two weeks. Similar thefts occurred from the farms of neighbouring Indian farmers. The appellant's father spoke to the local village chief but to no avail and the appellant recalls that on at least one occasion he became involved in a fight with the suspected thieves over the issue.

Following the appellant's move to Lautoka his home there was burgled on two occasions. He believes that the persons involved were again individuals from the Fijian village near his father's farm who were jealous of his progress at X company. At one point an allegation was even made by them that he misused company vehicles. The allegation failed, however, largely because the appellant was a union representative and therefore in a position of power. The appellant also mentioned an incident in 1995 when two people from the village near his father's farm asked the appellant for a lift to Ba. On reaching Ba, they demanded to be taken to another destination. When the appellant asked them to pay for the petrol, they threatened to assault him.

The appellant believes that the local villagers who were once soldiers and involved in his detention and the assaults at Ba in 1987 are the same people who continue to thieve from the family farm. He fears that they will continue to make life difficult for him and that they might even kill him, as they have threatened to do on occasion. He claims that they are still following him and that he can expect no assistance from the police for they have told him that until a death has occurred, they will not be able to take any action.

ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention 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 or, owing to such fear, is unwilling to return to it."

In terms of Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) the principal issues are:

1. Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

2. If the answer is Yes, is there a Convention reason for that persecution?

Because the issue of relocation arises in this case, the decision of this Authority in Refugee Appeal No. 523/92 Re RS (17 March 1995) requires two additional issues to be addressed:

(a)Can the appellant genuinely access domestic protection which is meaningful?

(b)Is it reasonable, in all the circumstances, to expect the appellant to relocate elsewhere in the country of nationality?

ASSESSMENT OF THE APPELLANT'S CASE

Before the identified issues can be addressed, an assessment must be made of the appellant's credibility.

The hearing of this appeal commenced at 10.00am and concluded at 4.00pm. The appellant was the only witness. The Authority paid close attention to the appellant's demeanour. The conclusion the Authority has come to is that the appellant has not given truthful evidence on central issues. He is also prone to embellish and exaggerate. In making these findings, the Authority has taken into account the following:

1. The appellant's account of his detention and ill treatment in August 1987 has been an evolving one. In his refugee application dated 10 December 1996 he claimed to have been tortured but the only detail given related to the use of cigarette butts, being beaten by boots and being punched in the stomach. See his responses to questions 59, 61 and 66. This was the account given at the Refugee Status Branch interview on 4 June 1997, the interview notes recording the use of the cigarette butts and kicks to the stomach.

However, as is apparent from the narrative of the appellant's evidence given at the appeal hearing, the appellant has subsequently enlarged his account to include a claim that on the Thursday morning he and the other workers were forced at gun point to run some distance, were assaulted in the cane field over a period of two to three hours and later, following his arrival at the Ba town hall, he was suspended upside down and beaten by three officers with a stick. Even more dramatically, the appellant claims that on the second day of his detention he and some 20 other persons were tied to sheets of iron and left in the blazing hot sun for some three hours in full view of a public road.

The additions to the appellant's account are, without exception, of a dramatic kind. If there was any truth to the claims, it is surprising, to say the least, that no mention was made of them until the appeal hearing.

Asked why there was no mention in his original application or at the Refugee Status Branch interview of the suspension and being placed in the sun while tied to a sheet of iron, the appellant initially said that the refugee application form did not contain enough space for these details. The Authority pointed out that there was ample space. In some instances the appellant had even left two and a half lines blank in circumstances in which it could have been expected that these memorable events would have been mentioned. The appellant then offered the explanation that the lawyer he had consulted at that time had advised him to be as brief as possible as the details could be volunteered at the subsequent interview. As to this, the Authority asked the appellant why he had made no mention of the new detail at the Refugee Status Branch interview. To this he replied that the interview had not been of any length, nor had he been asked to recall detail. The Authority does not accept these claims, but in any event, the appellant was asked why he had made no effort to volunteer these important details in a letter he subsequently wrote to the Refugee Status Branch on 14 June 1997, setting out his comments on the interview report provided by the Refugee Status Branch. To this he replied that he did not think that the interviewing officer wanted detail concerning the torture. We do not accept the appellant's explanations which we find to be artificial and contrived.

2. The appellant's evidence was also characterized by long pauses followed by evidence which lacked spontaneity and conviction. We mention by way of example the issue of the number of persons taken to the Ba town hall. The Authority was told by the appellant that four people (one of whom was the appellant) had been taken from the fields to the town hall. The appellant was asked the names of the persons and their current whereabouts. This information was given in some detail. The appellant was then confronted with the fact that at the Refugee Status Branch interview he had said that between six and seven persons had been taken to the town hall. In response he said that he was not sure how many had been taken. He then added that he thought that the army went back to the farm later in the day and brought back others for questioning. This he strengthened to a statement that he was in fact sure that the army had returned for more persons. Asked for their names there were long pauses and the evidence given lacked spontaneity.

3. The air of unreality to the appellant's account is increased by the following factors:

(a)There is apparently no record of the incident in which 20 people were strapped to sheets of iron and left in the blazing sun in full view of a public road. Ba is a Muslim centre and the large number of people going to and from the mosques for Friday prayers would surely have noticed the incident;

(b)In spite of the nature and extent of the injuries allegedly suffered by the appellant during his ordeal, he did not seek medical treatment;

(c)The appellant made no complaint to his party of the treatment he received. The then leader of the National Federation Party, Mr Jai Ram Reddy was at that time a practising lawyer in Lautoka. In addition there are a number of law firms in both Ba and Lautoka. Most are staffed by Indian lawyers. Yet at no time did the appellant seek redress through them.

4. In his refugee application the appellant stated that should he return to Fiji he would be beaten and harassed by the army and police and further, false charges would be laid against him for arson relating to the pine-forest fires. The Authority enquired of the appellant whether he still claimed that he was at risk of facing false charges. He replied in the affirmative. When the Authority pointed out that for more than eight years following the fire which spread from his father's farm the appellant had never been charged, the appellant responded that the authorities and the former military men who lived in the village near the farm would take whatever illegal steps they could against him. We are of the view that the claim is wholly unreal and the appellant's persistence in claiming that false charges will be laid against him illustrates a wilful shutting of the eyes to uncontroverted facts and a desire to advance a refugee claim irrespective of the true facts.

5. Following on from the last point, it is also necessary to take into account the explanation given by the appellant for coming to New Zealand. He told the Authority that he first thought of leaving Fiji in 1994, at which time he had become "fed up" with the Fijians from the local village but at that time he did not have sufficient funds to leave Fiji. Asked when he first thought of coming to New Zealand, he said that this occurred in 1996. He explained that he and his family had two choices. They could either go to Australia or to New Zealand. They went to an agent or consultant for advice and were told that it would be easier to get a visa for New Zealand, and that is why New Zealand was chosen. The appellant also accepted that a further reason influencing their choice to come to New Zealand was a belief that there would be an amnesty in this country for illegal immigrants.

Our finding is that the true reason for the arrival of the appellant and his family in New Zealand in April 1996 was that they desire to better their economic prospects and increase their quality of life. New Zealand was chosen because it was easier to enter and it was additionally hoped that as a result of the amnesty, they would be permitted to stay on a permanent basis.

For the reasons given, we do not accept the appellant as a credible witness.

Against this background a determination is required as to the weight to be given to the scars visible on the appellant's body and in particular, the claim that the scars are attributable to the ill treatment he received at the hands of the authorities in Fiji. Our assessment must be made in the context that no medical report has been produced by the appellant in relation to these scars and injuries. Our finding is that because we do not accept the appellant as a credible witness and because we do not accept that he was arrested, detained and tortured at the Ba town hall, the scars and marks on his body are due to other causes. It is not the Authority's responsibility to identify what those other causes are. We note, however, that the appellant has worked on a farm at different periods of his life and it would therefore not be unexpected that he does carry scars at the present time.

Because of the embellishment and exaggeration which characterized the appellant's evidence, we also reject his claim that since 1987 he has faced a conspiracy of sorts by army personnel (or former personnel). His experience of being burgled once in Ba and twice in Lautoka is unfortunately a common experience not only for persons living in these towns, but also for persons who live in most centres in New Zealand. It is a fact of life in a large number of countries that burglaries and theft are incidents of modern existence. There is nothing significant to the incident in which the appellant was unsuccessful in extracting petrol money from individuals to whom he had given a ride and there is definitely nothing significant to the allegation that he had misused his employer's motor vehicles. Even the appellant accepts that the allegation was easily rebuffed because of the status he held.

Because we have rejected the appellant's account of events in August 1987 and the basis of the "conspiracy" which arose out of those events, we must answer the first and second issues in the negative. In the result, the issue of relocation does not arise.

As this case must fail on credibility grounds, little more need be said concerning the recent constitutional advances in Fiji. They are, however, of the greatest significance. See generally Tamarisi Digitaki, "Taking the Giant Step" The Review July 1997 12-16 and Tamarisi Digitaki, "Ushering in a New Era" The Review August 1997 10-12 and Richard Naidu "Recipe for Accountability" The Review August 1997 22-24. These articles set out the background to the 1997 Constitution Amendment Bill passed unanimously by the Lower and Upper Houses of Fiji's Parliament in July 1997 and summarize the principle changes introduced by the Bill and which will come into effect on 27 July 1998. Of significance to the appellant's case, the National Federation Party has played a key role in the unfolding events and its current leader, Mr Jai Ram Reddy on 6 June 1997 became the first Indian to address the Great Council of Chiefs: Stan Ritoba, "Chiefs Back Multiracial Fiji" NZ Herald Saturday, June 7, 1997. There is every indication that the National Federation Party and the Soqosoqo ni Vakavulewa ni Taukei (the party currently in power) are gearing up to form a coalition after the February 1999 elections in which the two parties will go to the people as a coalition on a common platform and manifesto. Given that the NFP and SVT are the two biggest political parties, the prospect of there being a multi-party, multi-ethnic cabinet after February 1999 is high indeed. The very prospect of these future events demonstrates how far the circle has turned since the first and second coups of 1987.

As this Authority has reiterated on several occasions, the presumption of state protection undoubtedly applies in the case of Fiji and the onus is on a refugee claimant to provide clear and convincing confirmation of the inability of Fiji to provide protection before a claim to refugee status can succeed: Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) 8. No such evidence has been provided by the appellant in the present case.

There remains one final aspect of the case to be addressed. In his refugee application, the appellant stated that his wife and son were included in the application. But neither the wife nor the child have advanced an independent claim to refugee status, ie, independent of the appellant's claim. Indeed, there has been no suggestion that either of them even have a claim to refugee status. Specifically, the appellant's wife was not called to give evidence at the Refugee Status Branch interview nor at the appeal. No evidence whatsoever has been produced to suggest that the wife and child could be at risk of persecution. Be that as it may, we have carefully reviewed the facts and conclude that in view of our findings in relation to the appellant's credibility, there is absolutely no chance whatever of either the appellant's wife or of the appellant's son being at risk of harm were they to return to Fiji. They do not have a well-founded fear of persecution for a Convention reason.

CONCLUSION

For the reasons given, the Authority finds that the appellant, his wife and son are not refugees within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

Chairman