Refugee Status Appeals Authority
REFUGEE APPEAL NO. 19/91
RE SA
AT AUCKLAND
Before: R.P.G. Haines (Chairman)
J.M. Priestley (Member)
H.M. Domzalski (Member)Counsel for the Appellant: Mr R.P. Chambers
Appearing for the NZIS: Mr T.D. Mitai Ngatai
Date of Hearing: 7 August 1991
Date of Decision: 17 February 1992
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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 born in the Punjab. Although this case was heard on 7 August 1991, delivery of a decision has been delayed by virtue of the appellant’s request for time to obtain and submit further evidence in the form of a forensic medical examination. The medical report and some further evidence in the form of correspondence has now been received and the Authority can accordingly deliver a decision.
THE APPELLANT’S CASE
The appellant is a 27-year old married man with one son. According to the memorandum submitted by Mr Chambers, the appellant’s father, mother, one sister and one brother remain in their village in the Punjab. One sister lives in the United Kingdom. His wife and son also remain in India. The appellant’s educational achievements show that following his matriculation in March 1982 he completed a welding course in July 1983 and then successfully completed his training as a machinist in July 1986. He has produced a certificate showing that he has also undergone a course of training as a bar bender and steel fixer. In 1987 he completed a Diploma in Computer Software Sciences.Shortly stated, the appellant’s case is that while studying at college for his Diploma in Computer Software Sciences he joined the All India Sikh Students Federation in February 1987. His principal activity was collecting money from villagers on behalf of the Federation. However, having completed his course he married on 14 December 1987 and that event, coupled with his father’s disapproval of his involvement in Federation affairs led to the appellant wishing to sever his connection with the Federation. This proved to be more difficult than he anticipated. Some of the appellant’s personal friends (in evidence he named three particular individuals) were militant members of the Federation and were disapproving of his change of heart. They themselves were deeply committed to the Khalistan cause and not only carried arms, but were prepared to engage in combat with the security forces. Rewards of Rupees 50,000, Rupees 100,000, and Rupees 50,000 respectively were offered by the security forces in relation to these three persons.
In need of shelter from time to time, the three persons demanded that the appellant provide same. They ignored his requests not to visit the family home. He was able, however, to persuade them to leave their weapons outside in the fields before entering the house. There were apparently numerous occasions on which he asked them not to call at his home but to no avail.
The appellant produced in evidence a document dated 9 July 1989 purporting to be on the letterhead of the All India Sikh Students Federation. The significance of this date we shall return to later. The letter is addressed to the appellant by name. The English translation of the text of the letter is to the effect that the appellant is required to provide members of the Federation with food and shelter. Unless he complies he will be killed. The letter is signed “All India Sikh Students Federation”.
Thus, the appellant’s fear of death at the hands of Khalistani extremists is the first element of his case.
The second element is that the appellant fears persecution at the hands of the police in the Punjab. His case, in what we shall refer to as its final formulation, is that the appellant has on three separate occasions been arrested and tortured by the police. The last incident occurred only a few weeks before his departure from the Punjab for New Zealand.
In support of his fear of re-arrest upon return to the Punjab the appellant has produced a document purporting to be a Warrant of Arrest issued by a Magistrate in Jalandhar on 20 April 1991. He has now also produced the forensic medical report earlier referred to.
Subsequent to the appellant’s departure from the Punjab in August 1989 his three friends were killed by the police.
In short, the appellant’s case is that were he to return to the Punjab he faces a real risk of serious harm at the hands of either the Khalistani extremists or the Punjab police, or both.
An assessment of his case will therefore require an assessment of his credibility and the weight to be given to the documentary evidence submitted on his behalf, including the death threat letter from the All India Sikh Students Federation and the Warrant of Arrest.
ASSESSMENT OF THE APPELLANT’S CASE
The following chronology will assist an overview of the appellant’s case.28 October 1983 Appellant’s passport issued at Jalandhar.
July 1987 First arrest, detention and torture.
14 December 1987 Appellant married
mid-1988 Second arrest, detention and torture.
May/June 1989 Third arrest, detention and torture.
20 June 1989 New Zealand High Commission, New Delhi issued visitor visa.
15 August 1989 Appellant arrived in New Zealand
24 January 1991 Refugee application submitted
8 February 1991 Appellant’s counsel submits to the Refugee Status Section a copy of the death threat dated 9 July 1989 from the All India Sikh Students Federation.
15 May 1991 Hearing at first instance of the refugee application by the Refugee Status Section.
The copy of the Warrant of Arrest was produced at the concluding stage of the interview.
THREAT FROM THE ALL INDIA SIKH STUDENTS FEDERATION
As previously mentioned, the letter from the Federation is dated 9 July 1989. At the appeal hearing the appellant first asserted that he received the letter on that date.
The difficulty with that contention, however, is that the Federation letter post-dates the date on which the New Zealand High Commission issued the appellant’s visa, namely 20 June 1989. It would be impossible for the letter to have been a factor in the appellant’s decision to leave the Punjab as that decision would logically pre-date the application for the New Zealand visa. The appellant soon appreciated this fact and changed his evidence. His second position was to assert before the Authority that although the letter is dated 9 July 1989, he in fact received the document one month earlier. Regrettably, from the appellant’s point of view, even his second position is untenable. He said that two days after receipt of the letter he contacted a travel agent, i.e. approximately 11 June 1991, and asked to be sent overseas, anywhere overseas. He was told that it would cost Rupees 60,000. This is a substantial sum of money and the appellant had to telephone his father who was then in the United Kingdom. The instruction from the father was to obtain the money from the appellant’s mother. This apparently involved the sale of some jewellery. It took five days to raise the 60,000 Rupees (approximately 14 June 1991). After 20 days (presumably from receipt of the letter) the agent asked the appellant to sign various forms and the appellant duly complied with this request. The forms included the New Zealand visa application. In the event, the appellant said that it was one to one and a half months after he first saw the travel agent that the agent told him that a New Zealand visa had been obtained. Whichever time frame is applied, however, the fact of the matter is that the New Zealand visa was issued only 11 days after the alleged June date of receipt of the Federation letter, well before the appellant signed the forms tendered to him by the travel agent. It was only on that occasion that the appellant gave to the agent the necessary photographs of himself.
Pressed on this point the appellant asked of the Tribunal, rhetorically: “Why are you bothering me”. When it was put to him that the Federation letter was a false document the appellant made a denial. He also denied applying for the New Zealand visa before receiving the Federation letter. Asked how he explained the receipt of a New Zealand visa before he had even signed the visa application, the appellant said that he did not know when the travel agent obtained the visa.
Normally appeals before the Authority last half a day. However, in the appellant’s case the hearing occupied the entire day and the Authority had a valuable opportunity to make an assessment of the appellant’s credibility. Having made every allowance in favour of the appellant in regard to such matters as cultural differences and difficulties of interpreting, the Authority has come to the conclusion that the appellant’s assertion that the Federation letter was received a month earlier than the actual date of the letter is not truthful evidence. Nor does the Authority accept the letter as a genuine document. We take into account the lies which the appellant has told about it only after bearing in mind that people may have various motives for lying and that in criminal cases a lie does not necessarily mean guilt. See, for example, R v. Toia [1982] 1 NZLR 555, 559 (CA). We have also taken into account the fact that the appellant told us that when he arrived in New Zealand he brought with him no documentation. It was only in the middle of 1990 when he decided to apply for refugee status that he set about obtaining as many papers as possible. These included his educational and marriage particulars. In re-examination he told Mr Chambers that the Federation letter was received at the same time as the educational and marriage documents. Yet curiously, although those latter documents were submitted with the refugee application itself (see Mr Chambers’ letter dated 25 January 1991), the Federation letter was submitted under cover of a letter dated 8 February 1991 (received by the Refugee Status Section on 18 February 1991). The Authority has also taken into account the fact that at the Refugee Status Section interview on 15 May 1991 the appellant made no mention of the fact that the extremists had threatened to take his life and the Federation letter was not referred to until Mr Chambers himself mentioned it at the conclusion of the interview. See page 45A of the file. Furthermore, in re-examination Mr Chambers drew his client’s attention to the fact that he (Mr Chambers) has seen many Federation letters and they are always signed by someone. Here there is no signature. The appellant replied that if there was a signature, this would reveal who had sent the letter. The Authority found the reply unconvincing as it was clear that the letter had been sent by, or at the instigation of, the three friends of the appellant whose identities were known to the appellant.
As earlier mentioned, those three friends are now deceased. In all the circumstances, we conclude that the appellant is not at risk of serious harm at the hands of Sikh extremists.
We now turn to the appellant’s fear of persecution at the hands of the police.
THE ARRESTS AND INJURIES SUFFERED BY THE APPELLANT
Briefly, the occasions of the appellant’s arrests are as follows:
July 1987 The appellant was arrested when returning to his village from attending college. There was a robbery at a bank and he was suspected, he believes, because he is a Sikh.
mid-1988 While out shopping the appellant was arrested by the police on suspicion of stealing a motorbike or scooter which are apparently the means of transport favoured by terrorists. He was questioned whether he had seen a scooter and a particular man.
May/June 1989 The appellant was arrested at his home and then taken to the police station. He believes this event was caused by someone reporting to the police that he (the appellant) had been giving terrorists shelter at his home.
The account given by the appellant of events during these three detentions has been an evolving one.
Firstly, in the refugee application itself the appellant said:
“They gave me hard time at police station after police arrested me. Our village surpanch bailed me out.”In the associated “Interview Further to Statement” the following is recorded:“Did the police: beat or torture you?Yes.”No details were provided. There is here a suggestion that there was an arrest on one occasion only. There is no claim to having received specific injuries or broken limbs.Secondly, at the Refugee Status Section interview, the appellant enlarged upon his case as follows:
First arrest: Detention for two or three days. He was beaten. There is no mention of any injury.
Second arrest:Held for one day only. No mention of ill-treatment.
Third arrest: Held for a few hours only. During this period beaten, subjected to electric torture. Suffered a broken leg for which he was treated not at a hospital or surgery, but at home.
Thirdly, at the appeal hearing, the evidence, in summary, was as follows:
First arrest: Beaten, head forced under water, suspended from ceiling.
Second arrest:Same treatment as in first arrest.
Third arrest: Period of detention was now said to be three days. Beaten with rifle butts at home and at the police station, submerged under water. Injuries received included a fracture of the right thigh, both the left and right shoulders broken and pain in the thumbs as a result of suspension from the ceiling.
On each of these three occasions the appellant was taken to the police station at Nawanshahr.
As to the injuries received on the occasion of the third arrest, the appellant denied having been subjected to electric torture and further denied having told the Refugee Status Section interviewing officers that such torture had in fact been inflicted.
Given the catalogue of injuries described by the appellant at the appeal hearing the Authority enquired of Mr Chambers why a forensic medical examination had not been carried out so that the Authority was presented with an independent report to confirm the account. Mr Chambers replied that many of the matters now asserted by the appellant had not previously been mentioned by him to Mr Chambers even though he had been carefully briefed on the day prior to the appeal hearing. Mr Chambers accordingly successfully sought an adjournment of the hearing in order to obtain a medical report. The Authority was subsequently presented with a report dated 21 September 1991 from Dr W.L. Daniels. He has personally examined the appellant and various x-ray examinations were carried out at his request. Based upon his examination and the reports from the radiographers, Dr Daniels offers the following conclusions:
(a) There is a small deep puncture wound, now healed, just below the tip of the appellant’s right shoulder.
(b) X-ray examination shows that the appellant’s right shoulder was not broken. However, a fracture of the right humerus was found and the upper third of the appellant’s right upper arm is swollen. The fracture would have caused severe pain when the appellant used the right shoulder itself and the appellant may well have identified this as indicating an injury to the joint itself. Movement of the joint is still very restricted secondary to this injury.
(c) There is no mention in the report of there being any fracture to the left shoulder or arm.
(d) Physical examination of the appellant’s thumbs did not demonstrate any visible problem. Dr Daniels observed, however, that it is possible to sustain considerable joint and soft tissue injury to the thumbs, causing more or less permanent discomfort, without external visible evidence.
(e) No fracture of the right upper thigh was found.
The conclusion reached by Dr Daniels is that the wound on the right upper arm and the old now-healed fracture of the right arm are several years old and are consistent with the appellant’s account.
There is therefore confirmation of the appellant’s account in some, but not all, respects. It is remarkable, however, that no fracture of the right upper thigh was found. It was this fracture which the appellant repeatedly emphasized at the hearing claiming that a noticeable dent or hollow in the bone could be felt on external examination. He also claimed to have permanent damage to the right upper leg. The medical report states, however, that no bony abnormality was detected and the conclusion was that the right hip is normal.
A determination is therefore required as to the weight to be given to the medical report and more importantly, a determination as to the credibility of the appellant as to his account of the three periods of detention and torture.
The Authority has already drawn attention to the evolving nature of the appellant’s case and the significant changes he has made. For example, ill-treatment on the occasion of his second detention was not claimed until the appeal hearing was well-advanced. As to the third arrest, the period of detention changed significantly from a few hours to three days. Furthermore, he resiled from an earlier claim that on the occasion of this detention he was subjected to electric torture.
As part of his case the appellant produced a letter dated 26 July 1990 from an advocate practising in Nawanshahr. The appellant said that the advocate was the family lawyer yet the letter makes no reference at all to any of the three arrests nor of the injuries said to have been suffered by the appellant. The appellant also tendered a letter from his father dated 15 April 1991. There is no mention either in this letter of the arrest and torture of the appellant notwithstanding that one would expect these matters to have been at the forefront of the father’s mind when writing a letter asking that his son be allowed to stay in New Zealand. That is, if the arrests and torture actually occurred.
The Authority takes into account the fact that as late as the appellant’s re-examination on the afternoon of the appeal hearing the appellant had not given to his own counsel full particulars of the ill-treatment and injuries said to have been received. And whereas the appellant told the Authority that all three incidents occurred at the police station at Nawanshahr, the letter from the surpanch dated 21 August 1991 submitted with the medical report refers to the detentions occurring at variously the police station at Nawanshahr, the Sadar Police Station at Jalandhar and the police station at Phillaur. Neither Sadar nor Phillaur were referred to by the appellant at the appeal hearing. But the appellant did add a new assertion, namely that on each of the three occasions of his arrest and detention he was taken before a Court and released into the care of the surpanch. Each appearance was at the Court in Nawanshahr. There is no mention whatever of these matters in the letter from the surpanch himself.
After a careful assessment of the appellant’s evidence and demeanour the Authority concludes that he has not given a truthful account. We find that the appellant was not tortured even if the three arrests occurred. Nor do we accept that the arrests occurred as claimed. The medical report does not inhibit this finding. A medical practitioner cannot say more than that the injuries observed by him are consistent or inconsistent with the account given to him as to their cause or origin. The medical practitioner cannot say that the injuries were in fact suffered in precisely the way claimed, unless, of course, the practitioner witnessed the incident or incidents personally. This, however, does not mean to say that the opinion of a suitably qualified medical expert is not entitled to considerable respect and weight. In most cases, such opinion would provide important and perhaps determinative independent corroboration or confirmation of the applicant’s factual account, particularly where the account is prima facie credible. But where the account given by an applicant is not credible, the weight to be given to the medical opinion is limited. While each case must be determined upon its own facts, the opinion might in the particular circumstances add nothing to the case. On the facts of the present appeal, that is indeed the conclusion we have reached. In short, the injuries referred to in Dr Daniels’ report are not only consistent with the appellant’s account, they are also consistent with the injuries being sustained accidentally while at work or at play. The absence of any fracture to the right thigh, about which the appellant was adamant, is also significant.
In view of the finding we have made on the credibility issue we conclude that the medical report is in the circumstances of no assistance to the appellant and we attach no weight to it.
It is now necessary to consider the remaining element of his claim, namely the claim that there is a warrant of arrest.
THE WARRANT OF ARREST
The warrant which is found at page 32 of the file was issued by a Judicial Magistrate at Jalandhar on 20 April 1991. The warrant alleges that the appellant:“... stands charged with the offence of 212/216 IPC 3/4 TD Act.”The warrant requires the appellant to be arrested and produced before the Magistrate “on or before 12-6-91".The Authority has been provided with no information whatever as to the offences of which the appellant is charged. When this issue was raised at the appeal hearing, Mr Chambers advised that six weeks prior to the hearing he had written requesting details but without success. He added that copies of the Indian legislation were not available in Auckland. Taking advantage of the adjournment, Mr Chambers wrote to the advocate referred to earlier asking for assistance. Regrettably, the advocate has not replied to Mr Chambers’ letter.
The Authority notes that the warrant was issued some 20 months after the appellant’s departure for New Zealand and it is remarkable indeed that this should occur. It is further to be noted that the warrant was issued only five days after the father’s own letter which is dated 15 April 1991. The Authority is of the view that the almost simultaneous issue of the documents is not, in the circumstances of this case, a mere coincidence. The Authority draws the inference that in a possibly misguided effort to assist his son, the father has procured a document, purporting to be a warrant of arrest, but which is not in fact a genuine document. Nor is it a coincidence that the advocate’s letter of 26 July 1990, with remarkable prescience, predicted such action on the part of the authorities. His letter concluded:
“Your father also told me that the police have raided your house and there is every possibility of involving you in a some false case under the I.P.C. in case you come to India. As your family counsel I will advice [sic] you not to come to India in the near future otherwise there may be a danger to your life.”In this context the Authority takes into account the fact that the appellant told the Refugee Status Section interviewing officers on 15 May 1991 that since his arrival in New Zealand the police had never been to his home looking for him. This is to be contrasted with the claim by the advocate that he had been told by the appellant’s father that the police had raided the family home. Confronted with this discrepancy at the appeal hearing, the appellant claimed, not that he was mistaken in telling the interviewing officers that there had been no visits by the police, but rather that the interviewing officers were mistaken in recording him saying that there had been no visits. The Authority cannot and does not accept this claim and finds that the officers have correctly recorded what was told to them by the appellant on the occasion of the interview. The Authority further notes that at the Refugee Status Section interview the appellant made no mention whatever of the arrest warrant until the concluding stages of the interview when he was prompted during re- examination by his counsel.In addition to the remarkable fact that the warrant was not only issued 20 months after the appellant’s departure, but within five days of the father’s letter, the Authority observes that the warrant was issued on a Saturday and that only 25 days separate the date of issue of the warrant (20 April 1991) and the Refugee Status Section interview on Wednesday, 15 May 1991. This is barely a comfortable margin to allow for postal delivery from the Punjab to New Zealand assuming that the father knew that the warrant was in existence. As the issue of warrants of arrest are not published to the public at large, one is driven to wonder how it was that the father discovered the existence of the warrant with such alacrity and obtained a copy of it. The discovery must have taken place within days of the signing of the document. The Authority believes that it would be stretching the imagination for it to be contended that the father stumbled across the warrant when making enquiries at the Court virtually on the day of the document being signed by the Magistrate at Jalandhar.
The conclusion we have reached in the circumstances outlined is that the warrant is not a genuine document and that it was made for no other purpose but to support the appellant’s application for refugee status.
There is therefore no need for us to consider the issue of re-location.
CONCLUSION
In view of the findings made by the Authority we find that the appellant does not have a well-founded fear of persecution. We find that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is dismissed.“R P G Haines”
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[Chairman]