Refugee Status Appeals Authority  

REFUGEE APPEAL NO. 55/91

RE RS

AT AUCKLAND

Before:                               R.P.G. Haines (Chairman)
                                         G.W. Lombard (Member)
                                         J.M. Priestley (Member)

Counsel for the Appellant:    Mr R.P. Chambers

Appearing for the NZIS:        Mr B.T. Jenkins

Date of Hearing:                  21 October 1991

Date of Decision:                10 August 1992

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DECISION
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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.

INTRODUCTION

The appellant's application for refugee status is based upon his experiences at the hands of the police in the Punjab. He claims to be a victim of torture. He also says that both his father and one of his brothers have been detained by the police and ill-treated. His fear is that were he to return to India his experiences at the hands of the police will be repeated and that he will be killed.

It emerged at the hearing of this appeal that the appellant suffers from a long-standing mental illness which he described as a state of "mental upsetness", or at least, that is the literal English translation of what he said. At the time we were unable to ascertain the precise nature of this condition. However, it seemed that it was a form of depression for which he had been prescribed tranquillizers (or sleeping pills or anti-depressants) both here and in India. He told us that in 1982, when he was fifteen years of age, he "got sick" and was forced to discontinue his school studies. This was the first time that his mental condition manifested itself. He said that his mother had suffered the same affliction in the 1970s. In 1983 he was hospitalized for two months and was treated mainly with sleeping pills.

The appellant told us that because of brutality he was later subjected to by police in the Punjab (which we will detail shortly) his illness had deteriorated.

We noted that throughout the hearing the appellant's demeanour changed little. Most of the time he wore a slight smile. This was remarkable given his detailed oral evidence of his sufferings at the hands of the police.

Further questioning revealed that since his arrival in New Zealand the appellant has consulted doctors in both Napier and Auckland. He has been prescribed tranquillizers and sleeping tablets.

Surprisingly, none of this information had previously emerged, notwithstanding the several briefings with counsel which would have preceded the lodging of the refugee application and also the interview by the Refugee Status Section on 27 June 1991. Nor had it emerged during preparation of the case for the appeal hearing.

In the circumstances the Authority believed that it was appropriate to draw counsel's attention to the special considerations which apply to mentally disturbed or ill persons who apply for refugee status. Those considerations are usefully summarized in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragraphs 206 to 212 inclusive. They provide:

"206. It has been seen that in determining refugee status the subjective element of fear and the objective element of its well-foundedness need to be established.
207. It frequently happens that an examiner is confronted with an applicant having mental or emotional disturbances that impede a normal examination of his case. A mentally disturbed person may, however, be a refugee, and while his claim cannot therefore be disregarded, it will call for different techniques of examination.
208. The examiner should, in such cases, whenever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case (see paragraph 205(a) above). The conclusions of the medical report will determine the examiner's further approach.
209. This approach has to vary according to the degree of the applicant's affliction and no rigid rules can be laid down. The nature and degree of the applicant's 'fear' must also be taken into consideration, since some degree of mental disturbance is frequently found in persons who have been exposed to severe persecution. Where there are indications that the fear expressed by the applicant may not be based on actual experience or may be an exaggerated fear, it may be necessary, in arriving at a decision, to lay greater emphasis on the objective circumstances, rather than on the statements made by the applicant.
210. It will, in any event, be necessary to lighten the burden of proof normally incumbent upon the applicant, and information that cannot easily be obtained from the applicant may have to be sought elsewhere, e.g. from friends, relatives and other persons closely acquainted with the applicant, or from his guardian, if one has been appointed. It may also be necessary to draw certain conclusions from the surrounding circumstances. If, for instance, the applicant belongs to and is in the company of a group of refugees, there is a presumption that he shares their fate and qualifies in the same manner as they do.
211. In examining his application, therefore, it may not be possible to attach the same importance as is normally attached to the subjective element of 'fear', which may be less reliable, and it may be necessary to place greater emphasis on the objective situation.
212. In view of the above considerations, investigation into the refugee status of a mentally disturbed person will, as a rule, have to be more searching than in a 'normal' case and will call for a close examination of the applicant's past history and background, using whatever outside sources of information may be available."
Attention having been drawn to the foregoing, counsel for the appellant at the conclusion of the hearing sought and obtained leave to file medical reports in terms of paragraph 208 above.

We were subsequently provided with a brief letter from the appellant's doctor in Napier. In his opinion the appellant has probably been a manic depressive since his school days. However, given the doctor's lack of expertise in this area, the appellant had been referred to a psychiatrist.

Attached to the doctor's letter were a number of brief reports from a psychiatrist employed in the psychiatric unit of Hastings Hospital recording the results of a number of home visits spanning the period November 1990 to November 1991. Regrettably, they are inconclusive as no formal diagnosis was made because of the language difficulty. The following quote is taken from the psychiatrist's letter of 11 November 1991:

"However, I would not like to give any kind of formal psychiatric report on [R] towards his application for permanent residency; his command of English is so poor - or at least it was so poor when I last tried to interview him - that I don't feel I ever made a truly adequate assessment on which to base a diagnosis. If a formal psychiatric report is needed then I trust it is possible to contact a psychiatrist somewhere in the country who can converse with [R] in his native language."
In his various interim reports to us, counsel referred to difficulties in obtaining a comprehensive psychiatric report, difficulties which were compounded by the fact that for some period the appellant could not be contacted due to his failure to notify a change in address. We have now, however, been provided with a report dated 8 July 1992 from Dr G.J. Ogg of Bexley Clinic. His opinion is that:
"... having regard to the background history of experiences and current symptoms, that [the appellant] is suffering from post-traumatic stress disorder of considerable degree.
This condition certainly has a basis in some very traumatic experiences and the present symptom pattern is typical of the condition.
It is very unlikely to abate in any degree spontaneously, and may in fact require long-term psychotherapy and medication.
...
I have no reason to believe that his story is other than genuine, and I truly believe that he could not possibly have fabricated the clinical picture which I have formulated."
Dr Ogg's report does not specifically address the interplay between the appellant's traumatic experiences and his earlier mental condition.

In view of the nature of Dr Ogg's report, we have kept very much in mind the factors enumerated in the passages from the Handbook already cited as well as the very helpful discussion of mental health issues collected by the League of Red Cross and Red Crescent Societies in their publication Refugees - The Trauma of Exile (1988) which should be regarded as required reading for any person involved with asylum seekers, and in particular those who have been the victims of violence or ill-treatment. We have also been assisted by the handbook published by the Committee for Health Rights in Central America, Political Asylum - A Handbook for Legal and Mental Health Workers (1987).

We turn now to the facts of the appellant's case.

THE APPELLANT'S CASE

As mentioned, the appellant was born in the Punjab and is presently twenty-five years of age. He is a single man, the youngest of three brothers. He has no sisters. Since leaving school the appellant has worked on the family farm of six acres situated two or three kilometres from the village of G. The appellant's father works as a vaccinator for the local health authority and has maintained his biology courses, apparently in the hope of becoming a doctor. His principal source of income is from his official position, drawing approximately Rupees 30,000 per annum. However, the farm can produce an income of Rupees 50,000 per annum. The crops grown include wheat, corn and potatoes.

The appellant has two brothers, A and M, both of whom are employed in different capacities with the Indian Airforce. They are stationed at different bases in India.

As the appellant put it in his initial application for refugee status:

"We lived very happily. Suddenly in December 1988 our happy life changed in terrible days."
One day in December 1988 the police arrived at the family home and questioned the appellant about his association with a group of friends whom the police suspected were terrorists. The appellant told us that he had known these friends for a large number of years and that they frequently visited him at his home both during the day and on occasion in the evenings and that he had no knowledge whatsoever that they were engaged in terrorist activities. Be that as it may, the police took the appellant to the police station at G and questioned him there about visits by his friends and his association in particular with two of their number, namely J and S.

While under interrogation the appellant was beaten with sticks, hung upside down by his ankles, punched and kicked both in the back and in the face and a log of wood was rolled over his legs. In addition his legs were pulled apart and the hair on his head was pulled. The appellant was released four to five days later after his father paid a bribe of Rupees 30,000 for his release. The appellant was in a lot of pain and needed assistance to walk. His father, having some medical training, administered treatment. The appellant has no permanent marks on his body as a result of his treatment.

A month later, in January 1989, the police again arrived at the family home looking for the appellant. He was out at the time. The police therefore arrested the appellant's father and took him to the police station at G. The following day when the police returned to his home, the appellant was also arrested and taken to the police station. There he was once again questioned about his friends J and S and tortured in the same way as he had been in the previous month. His father was also beaten. After approximately four days both men were released after the family paid a further bribe of Rupees 50,000 to the police.

When the police next called in April 1989, the appellant and his brother A, who was then on leave, were staying with their grandparents in the town of M which is situated approximately sixty kilometres from the appellant's home. Unable to find the appellant the police arrested his father and took him once more to the police station at G. He was held for some two or three days in order to obtain details of the appellant's whereabouts. In this, it appears, they were ultimately successful by the application of torture. On 25 May 1989, acting pursuant to an arrest warrant, the police at M arrested the appellant and his brother A. They were put in the back of a police van, with other detainees, and taken to the police station at G.

Both men were tortured. This time the torture continued for fifteen days until the two brothers were released on the intercession of a local member of parliament. The forms of torture reported by the appellant are as follows:

Once again the appellant was questioned by the police about the whereabouts of his friends, and in particular S. They also accused the appellant of being a terrorist and having killed someone.

Once more, after returning home, the appellant was treated by his father with ointments. His body bears no permanent physical marks. We were told that after some of the beatings to the head the appellant fell unconscious. And as mentioned, the appellant's mental health, and in particular his depression, unsurprisingly deteriorated substantially as a result of his experiences.

After the appellant was released, his friend J was killed in an encounter with the police. His friend S disappeared.

Less than two months after he was released from custody, the appellant arrived in New Zealand on 1 August 1989. He had previously applied for a passport in October or November 1987 and had received one in May 1988. In reaction to mounting violence in the Punjab, and in particular the injustices of the police, he had already decided to leave at that stage. The police brutality to which he was subjected from December 1988 to May 1989 clearly added urgency to the need to flee.

The appellant has produced in evidence a letter from the Chairman of the Municipal Committee of G confirming that the appellant has been tortured by the police and that the police have demanded money from the appellant's family in order to secure his release from custody.

ASSESSMENT OF THE APPELLANT'S CREDIBILITY

For the reasons mentioned in the Introduction, the appellant was interviewed with particular care and although his demeanour was not entirely appropriate to the occasion, he appeared to be under no disability with respect to giving evidence. We did not consider that his depression caused him to exaggerate or alter the facts, and we accept that his perception of those facts is accurate.

In this regard we note that the appellant's credibility was accepted without hesitation by the very experienced interviewing officer at the Refugee Status Section interview.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who has a:
"... 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 ...."
In the context of this case the four principal issues are:

1.    Is the appellant genuinely fear?

2.    If so, is it a fear of persecution?

3.    If so, is that fear well-founded?

4.    If so, is the persecution he fears persecution for a Convention reason?

As mentioned, the Authority finds that the appellant is a credible witness and his account of events is accepted. It is consistent with what is known of conditions in the Punjab, especially torture at the hands of the authorities. See, for example, India - Human Rights Violations in Punjab: Use and Abuse of the Law (May 1981) Amnesty International and Human Rights in India: Punjab in Crisis (1991) Asia Watch Report. The arbitrary detention and torture of family members in order to extract information about the whereabouts or activities of relatives or friends is confirmed in the recent Amnesty International publication India: Torture, Rape & Deaths in Custody (1992) 7, 29.

The Authority is therefore satisfied that an affirmative answer must be given in relation to issues (1) and (2).

In relation to issue (4), the appellant's case falls to be determined under the "political opinion" category. It is clear from his evidence that he is suspected by the police of being a supporter of terrorists, if not a terrorist himself.

We turn now to the remaining issue, namely whether that fear is well-founded.

The view taken by the Refugee Status Section was that the death of S had removed one of the principal causes of the various arrests and detentions. This factor, coupled with the effluxion of time since his last arrest by the police, led to the view that:

"... there is a reasonable chance that he would suffer no further harassment if he returned home."
This is, of course, a material misdirection. It implicitly accepts that there is a reasonable chance of persecution occurring in the future yet denies refugee status.

The refugee definition requires the focus to be on the prospect of persecution occurring, not upon the prospect of persecution not occurring. The correct test, as stated in our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) is whether there is a real chance of persecution occurring in the future.

And while past persecution is not a requisite of the Convention definition, where such persecution has occurred, it is nevertheless a very material factor that must be taken into account. The principle is correctly formulated in Hathaway, The Law of Refugee Status (1991) 88:

"It is thus unnecessary to establish past persecution in order to succeed on a claim to refugee status. Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk.”
Here the appellant points to a repeated pattern of detention which demonstrates that the interest of the police is not of a passing nature. On two occasions his father was arrested in order to get access to the appellant. On the second occasion of the father's detention, acting on information provided by him under duress, the police went to some lengths to secure the arrest of the appellant who by that stage had endeavoured to relocate himself some sixty kilometres away at the town of M.

The appellant also told us that since his departure from India the police have continued to question his parents as to his whereabouts. Furthermore, his brother A has stopped visiting home while on leave. This information has been conveyed to the appellant by letter as he corresponds with his parents on a monthly basis. Having accepted the appellant's credibility, it follows that the continuing police interest in the appellant establishes that there is a real chance of the appellant being detained and tortured once more were he to return to the Punjab. It follows that his fear of persecution is well-founded.

We turn finally to the issue of relocation.

RELOCATION

Where an individual has suffered torture at the hands of a state agent of persecution, special considerations come into play when considering the issue of relocation. These considerations we have discussed in Refugee Appeal No. 14/91 Re JS (5 September 1991), Refugee Appeal No. 12/91 Re SJ (5 November 1991) and Refugee Appeal No. 17/92 Re SSS (9 July 1992). In all cases it was held that on the facts, detention and torture of those appellants by the authorities in the Punjab had been established and that on the facts, their treatment represented a failure by the Government of India to discharge its duty to protect those individuals from serious harm. We held that it was not, in the circumstances of those cases, reasonable to expect the appellants to relocate in another part of India. The following quote is taken from Refugee Appeal No. 14/91 Re JS (5 September 1991) at 9:
"This calculated assault on the appellant's human dignity represents a significant interruption to the relationship of trust that ought to exist between the citizen and the state and is a factor of some importance when assessing the unwillingness of the appellant to avail himself of the protection of his country of origin."
The next quote is taken from Refugee Appeal No. 12/91 Re SJ (5 November 1991) at 5:
"Torture on this scale can properly be said to sever the relationship between the State and the citizen, or at least it is a very severe interruption of that relationship. It would be neither practicable nor reasonable to expect the appellant to seek out the protection of the very government responsible for the infliction of such harm upon him."
To the foregoing we add one further observation. Where a person has experienced torture, particularly on more than one occasion, one should be reluctant to rule out the possibility of future torture or persecution, so long as the same conditions or regime prevails in the person's country of origin. We believe that this is not an unreasonable application or extension of the principles discussed by Grahl-Madsen in The Status of Refugees in International Law Vol. 1 (1966) 176-177 particularly given that the standard of caution was adopted by the High Court of Australia in Chan v Minister of Immigration and Ethnic Affairs (1989) 160 CLR 379 when examining the relevance of past persecution in the context of changed circumstances in the country of origin. See particularly the judgment of Mason CJ at 391 and Gaudron J. at 414-415. The following quote is from Gaudron J. at 415:
"The definition of 'refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression 'once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be 'well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution ...." [emphasis added]

Our findings in the present case are:

(a) The appellant has been a victim of torture on no fewer than three separate occasions.

(b) On two occasions his father suffered the same fate when he was taken as a means of locating the appellant.

(c) The appellant's brother A was tortured concurrently with the appellant on the occasion of the latter's third incarceration.

(d) Prior to December 1988 the appellant suffered from clinical depression and his experiences at the hands of the police have, to say the least, aggravated that condition. This may go a long way in explaining the appellant's apparent feeling of detachment and emotional numbness manifested at the appeal hearing. As a person suffering from a mental affliction the appellant deserves special consideration:

"However perverse the actions of individual torturers, torture itself has a rationale: isolation, humiliation, psychological pressure, and physical pain are means to obtain information, to break down the prisoner, and to intimidate those close to him or her."

Bamber, Movschenson & Horvath-Lindberg, "Torture and the Infliction of Other Forms of Organized Violence" in Refugees, The Trauma of Exile (1988) 45, 47.

In his somewhat fragile mental state, the appellant has few resources with which to survive his experiences or to undertake the arduous task of resettling elsewhere in India. In these circumstances a very conservative approach must be adopted in relation to the relocation issue, particularly as we have found positively that the appellant is a person who has a well-founded fear of persecution for a Convention reason.

(e) The appellant has already endeavoured to relocate himself within the Punjab but without success.

(f) According to reports from the appellant's family the police still have an interest in the appellant and have made enquiries as to his whereabouts.

We therefore conclude that the cumulative effect of the foregoing is that it would be unreasonable to expect the appellant to avail himself of the protection of the Government of India. As we remarked in the not dissimilar case of Refugee Appeal No. 17/92 Re SSS (9 July 1992) there has been a consistent pattern of failure by the Government of India to afford effective protection to the appellant. If anything, the pattern establishes a systematic abuse of the fundamental human rights of members of this family.

CONCLUSION

Our conclusions are therefore as follows:

1.    The appellant holds a bona fide subjective fear of returning to India.

2.    The harm feared by him is of sufficient gravity to constitute persecution.

3.    His fear is well-founded and there is a real chance that the harm feared will occur.

4.    The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his (imputed) political opinion.

5.    The government of India has failed in its duty to protect the appellant from serious harm in the past and there is a real chance that this failure will continue in the future.

For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is allowed. Refugee status is granted.

“R P G Haines”

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[Chairman]