Refugee Appeal No. 70094/96

REFUGEE APPEAL NO. 70094/96
AT AUCKLAND

DECISION

This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service (RSB), declining the grant of refugee status to the appellant, a national of the Federal Republic of Germany.

INTRODUCTION

The appellant arrived in New Zealand on 2 July 1994 and was issued with a visitor's permit upon arrival.

The appellant's application for refugee status, made through immigration consultants, was received by the RSB on 3 April 1995. He was interviewed by the RSB on 2 April 1996. A report of that interview was sent to both the appellant and his immigration consultants on the same day with comments being invited within ten working days. On 18 April 1996 the appellant telephoned the RSB to seek an extension until 23 April 1996 to comment on the report which was granted. No comments were, however, received.

The appellant was informed of the decline of his application for refugee status by letter from the RSB to him dated 16 May 1996.

The appellant appealed to this Authority by letter dated 28 May 1996.

On 22 February 1997, the Registry of this Authority wrote to the appellant stating that since he had a valid German passport, prima facie his claim appeared to be manifestly unfounded and clearly abusive. The appellant was, therefore, requested to forward submissions by 10 March 1997 presenting clear and convincing confirmation of the inability of Germany to protect him from harm.

In reply, the appellant's solicitors sent a letter to the Authority, dated 2 April but faxed to the Authority on 9 April, stating that the appellant did not have any documentary evidence available to him confirming that Germany is unable to protect him from harm but that nonetheless he strongly maintained that this was the case relying on his previous experiences in Germany during 1984 and 1988 (as recorded in the Immigration Service's interview report) as evidence. That letter also repeated the essence of the appellant's case for granting him refugee status. In particular, reference was made to discrimination, amounting to persecution, and violence against foreigners and the appellant's claim that he would be treated as a foreigner because of his years spent abroad.

The appellant's solicitors offered no evidence (additional to the interview report referred to) to support these allegations and, significantly, proffer no clear and convincing confirmation of the inability of Germany to protect him, or persons such as him, from harm.

PRESUMPTION OF STATE PROTECTION

The underlying assumption of refugee law is that wherever available, state protection takes precedence over international protection. It has been described as surrogate or substitute protection, activated only upon failure of national protection; see Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (SC:Can).

Furthermore, nations are presumed capable of protecting their citizens and where a refugee claimant comes from an open democratic society with a developed legal system which makes serious efforts to protect its citizens from harm, the presumption of state protection has particular application. Unless the claimant is in possession of evidence establishing clear and convincing confirmation of such a state's inability to protect the claimant, the claim should fail. In the absence of such evidence, the claim can be said to be manifestly unfounded or clearly abusive. The Authority refers to its decisions in Refugee Appeal No. 523/92 Re RS (17 March 1995) and Refugee Appeal No. 70074/96 Re ELLM (17 September 1996).

Country information available to the Authority shows that while there is sporadic violence against foreigners and Jews, there is no evidence of any discrimination, let alone discrimination amounting to persecution, or violence against ethnic Germans such as the appellant. In particular, there is no evidence that ethnic Germans returning from lengthy periods abroad suffer any form of discrimination or harassment. Furthermore, it is clear to the Authority that Germany is an open democratic society with a developed legal system which makes serious efforts to protect its citizens from harm. Reference is made in this regard to the United States Department of State Country Report on Human Rights Practices for 1996 (February 1997), Human Rights Watch ‘World Report 1996' and Amnesty International Report 1995.

The Authority will accordingly presume, in the absence of contrary evidence from the appellant, that Germany does offer meaningful state protection to its citizens, including persons like the appellant. This is consistent with previous decisions of the Authority; see Refugee Appeal No. 70292/96 Re DH (7 February 1997)

For the reasons given later, the Authority rejects his claim that he would be treated as a foreigner in his own country but even if this was true, the presumption would still apply.

In the circumstances, the Authority considers this claim to refugee status to be prima facie manifestly unfounded and, in accordance with paragraph 8(3) of the Authority's Terms of Reference, the appellant will not be given an opportunity to attend an interview. The appeal will be assessed on its merits on the documents submitted by or on behalf of the appellant to the RSB or this Authority in connection with his refugee status application (including the interview with the RSB on 2 April 1996) or this appeal.

THE APPELLANT'S CASE

The appellant is a 48 year old divorced man from Germany. He has no children.

The appellant was born in Munich. After completing his primary and secondary schooling in Mannheim, he studied electronics for three years, receiving a certificate of proficiency in 1967. He worked in Frankfurt, Hamburg and Munich in electronics between 1967 and 1981.

The appellant left to work in the United Arab Emirates in 1981 because of his divorce. From 1981 to 1984, he worked there, returning to Frankfurt for approximately six months in 1984 before going to Saudi Arabia in the same year where he worked as an electronics engineer in various hospitals until June 1994 (apart from working for a short period in Egypt in 1986 or 1988 and returning to Frankfurt for three or four months in about 1988). During holiday periods he travelled extensively throughout Europe and Australia and previously came to New Zealand for a week a few years ago.

When the appellant returned to Frankfurt in 1984 he believes he was ostracised by the people in Germany and the authorities because they did not want German nationals who had worked overseas. He found he was unable to get the unemployment benefit (until he had been working in Germany for one year) or a job because of his overseas experience.

After six months the appellant left Germany to work in Saudi Arabia returning to Frankfurt in 1988 for three to four months. He was not able to get a flat and once again, could not get a job. He felt totally unwanted and stayed in a tent, which was a shelter for the homeless, but was mistreated by the other people there (they stole his possessions and once he was punched for saying "good morning" in English). Also, the police came around once and told the group they were useless and should get a job.

The appellant says in his statement dated 31 March 1995 filed in support of his refugee application that his life during these two visits home was "unbearable and I was surely being punished for having been in a foreign country".

If the appellant was to return to Germany he believes he would face the same problems, only worse. He would be unable to find a flat or a job. Moreover, since he was last there, there have been disturbances by right-wing groups who have burnt down the kinds of places (shelters) where he would have to stay.

In his statement dated 31 March 1995 submitted to the RSB, the appellant vividly described his plight:

"If I return to Germany - I will face continual persecution and will probably end up in the Gutter! There is not a possibility that the German Government will protect me or help me!"

The appellant has had no contact with his family in Germany for years and so does not know if his mother, father or brother are dead or alive.

THE 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?

ASSESSMENT OF THE APPELLANT'S CASE

The Authority has no reason to disbelieve the appellant's evidence that upon his return to Germany, twice, he was unable to find employment and on the second occasion was unable to find a flat and was reduced to staying in a shelter for the homeless.

The Authority observes, however, that many German nationals returning to Germany after prolonged periods abroad must face difficulty in employment and housing. Indeed, the appellant conceded at his interview with the RSB that these problems would be the same for all German nationals returning from overseas. Furthermore, such a phenomenon is hardly confined to Germans returning to Germany but must be a common difficulty for nationals of any country returning home after working overseas for a number of years.

The Authority notes also the appellant's two returns to his home country were only for short periods, being six months and three to four months respectively and his unhappy experiences were in only one city, Frankfurt. The appellant though had previously lived in Munich, Mannheim and Hamburg, apart from Frankfurt and it is surprising that he did not seek employment in other cities he was familiar with.

More importantly, the difficulties that the appellant faced in obtaining employment and accommodation do not amount to persecution, as that term is understood in refugee law.

Persecution is defined as:

"the sustained or systemic violation of basic human rights demonstrative of a failure to state protection"
or
"actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard."

(See Hathaway: The Law of Refugee Status (1991) at pages 104, 108, as quoted with approval in the decision of this Authority in Refugee Appeal No. 2039/93 Re MN (12 February 1996).)

While the systematic denial of the right to work or to proper accommodation by the state, or condoned by the state, could amount to persecution, the Authority does not accept that the appellant's inability to secure employment or proper accommodation on two visits lasting not more than six months on each occasion evidences any persecution of the appellant or persons like the appellant. There is simply no evidence of any failure of state protection in the way required by refugee law.

The Authority also notes that the appellant's last visit to Germany was in about 1988, some nine years ago. There is no evidence that he would face persecution if he returns to Germany now, though the Authority is prepared to assume that the same difficulties in obtaining employment and accommodation may well confront the appellant.

Furthermore, even if the appellant's difficulties amounted to persecution (which they do not), such persecution is not for one of the five Convention related reasons. In his interview with the RSB, the appellant, himself, struggled to identify a Convention reason for his claimed persecution. When asked which of the five Convention grounds best suited his case he said, so far as Germany was concerned, he found it very difficult to see this fitting under any of the Convention grounds and that he was persecuted because he had been out of the country. The appellant's candid admission is appropriate.

We do not accept that the appellant would be treated as a foreigner in his own country. There is no evidence that ethnic Germans who spend time abroad are so treated. The appellant does not offer any support for this contention beyond his bare assertion and his treatment on two relatively short visits. While the appellant may have felt ostracised on his two visits to Germany, that may have more to do with his lengthy absences from Germany and his apparent estrangement from his family, than with being regarded as a foreigner. Even if the appellant was regarded as a foreigner, which the Authority rejects, there is no evidence that the appellant would attract the sort of violence or discrimination that amounts to persecution.

The RSB in its assessment of the appellant's claim dated 2 May 1996, sent to the appellant on 16 May 1996, discusses whether the appellant could be considered a member of a particular social group, one of the five Convention reasons. The RSB concludes, correctly, that the appellant could not.

It is difficult to articulate the boundaries of any such group that could embrace the appellant. The definition would presumably be all single ethnic German nationals returning from overseas after lengthy periods abroad (the appellant said to the RSB that returning married people with families do not face such problems). Apart from the problem of defining what is considered "lengthy", there is simply no evidence before this Authority that German nationals returning from overseas are recognised as a group or have any distinct identity in Germany in the eyes of the community or the authorities. The claimed particular social group must be a cognisable or recognisable group within a society; see Refugee Appeal No. 1312/93 Re GJ (30 August 1993) at pages 28 and 30.

It is not easy to discern how the community at large would recognise the appellant as someone who had worked overseas for a long time, unless the appellant told them, or why the authorities would want to discriminate against such a person. According to the country information before the Authority, there is no evidence whatsoever that single German men returning from overseas face any discrimination, let alone persecution. The appellant, through his solicitor, has not submitted any such evidence, despite the written invitation to do so.

CONCLUSION

The Authority concludes that there is no real chance of the appellant being persecuted should he return to Germany. Indeed, the appellant's claim to refugee status can properly be categorised as thoroughly abusive and manifestly unfounded.

The Authority accordingly finds 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.

Member