Refugee Status Appeals Authority
REFUGEE APPEAL NO. 71729/99
AT AUCKLAND
Before: R P G Haines QC (Chairperson)
V J Shaw (Member)Counsel for the Applicant: G M Monk
Appearing for the NZIS: No appearance
Date of Hearing: 19 & 21 January 2000
Date of Decision: 22 June 2000
DECISION OF THE AUTHORITY DELIVERED BY RPG HAINES QC
INDEX INTRODUCTION § 1
THE APPELLANT’S CASE § 14
THE ISSUES § 25
ASSESSMENT OF THE APPELLANT’S CASE § 26
First Reason § 28
Second Reason § 29
Third Reason § 30
Fourth Reason § 35
Fifth Reason § 38
Sixth Reason § 41
Seventh Reason § 44
Eighth Reason § 45
The medical evidence § 46
Conclusions on credibility § 55
Remaining Issues § 56THE QUESTION OF THE IDENTITY CHECK § 57
INTERNAL PROTECTION ALTERNATIVE § 67
THE BURDEN OF PROOF AND THE IPA § 80
RSAA Jurisprudence § 80
Court of Appeal Jurisprudence § 85
The Legislation § 87CONCLUSION § 93
INTRODUCTION [1] This is an appeal against the decision of a refugee status officer to decline the grant of refugee status to the appellant, an Indian national of the Sikh faith born in the Punjab. [2] The appellant is a 28 year old single man who arrived in New Zealand at Auckland International Airport on 8 October 1999. At the airport he applied for refugee status but was taken into custody under s 128 of the Immigration Act 1987 (as amended by the Immigration Amendment Act 1999, s 37).
[3] The appellant was initially represented by Keil & Associates, Solicitors but he subsequently instructed Mr Roger Chambers, Barrister of Auckland. Subsequent to the lodging of this appeal, he has been represented by his current solicitors.
[4] The appellant’s interview by a refugee status officer was first scheduled for Friday, 22 October 1999. That interview did not proceed as the appellant claimed to be unwell. A further interview was scheduled for Wednesday, 27 October 1999. In anticipation of that interview, Mr Chambers, by fax dated 26 October 1999, submitted a three page typewritten statement (unsigned) by the appellant and at the same time noted his own unavailability for the interview. As a result, the interview date was changed to 30 October 1999.
[5] On 28 October 1999 the appellant and approximately 16 other refugee claimants then detained in Mt Eden prison commenced a hunger strike with the result that the scheduled interview did not proceed, nor did any of the interviews scheduled thereafter. By letter dated 2 November 1999 a refugee status officer advised the appellant that the application for refugee status had been declined on the grounds that as the appellant had declined to be interviewed, it could not be determined that he was a refugee within the meaning of Article 1A(2) of the Refugee Convention. From that decision the appellant appealed to this Authority.
[6]The appeal was first set down for hearing on 25 November 1999. At that hearing the appellant attended with Mr Monk and sought an adjournment on the grounds that his participation in the hunger strike had rendered him medically unfit to give evidence. For the reasons set out in the Authority’s Minute dated 26 November 1999 the adjournment application was granted and the appeal adjourned to 1 December 1999.
[7] On 1 December 1999 the hunger strikers (including the appellant) were released on bail by the Otahuhu District Court following the delivery of the judgment of Fisher J in E v Attorney General (High Court, Auckland, M 1884-SW/99, 29 November 1999).
[8] At a scheduling hearing on 2 December 1999 the appellant’s appeal was set down for hearing on 19 January 2000.
[9] On the afternoon prior to the hearing the solicitors for the appellant filed a four page typewritten statement dated 18 January 2000 signed by the appellant. Also filed were two medical certificates, extracts from an affidavit sworn in the E proceedings by Mr A D Lockhart, Manager of the Border and Investigations Section of the New Zealand Immigration Service and a letter dated 9 September 1999 from the High Commission of India, Wellington addressed to a Mr H S Golian of Auckland. Also tendered to the Authority were written submissions and country information.
[10] At the commencement of the hearing on 19 January 2000 the Authority was advised that it was intended to submit in support of the appeal a psychiatric report from a Dr Logie who had interviewed the appellant for the first time the previous week. The report was not expected to be available for another two weeks and the Authority was asked to defer a decision on the appeal until this evidence had been received and considered.
[11] At the conclusion of the second day of the hearing counsel made application for leave to file closing submissions in writing. Three weeks were requested. Leave was granted for both the psychiatric report and for the closing submissions to be filed by 11 February 2000. Leave was reserved for application to be made for a further week if this was found to be necessary.
[12] By letter dated 11 February 2000 (received by the Authority on 15 February 2000) the solicitors for the appellant sought an extension of time. That application was granted by Minuted dated 21 February 2000, the Authority directing that all further evidence and submissions to be filed no later than 5.00 pm on 29 February 2000. The terms of the Minute are relevant:
This appeal was heard on 19 and 21 January 2000.[13] On 29 February 2000 the Authority received a psychiatric report dated 2 February 2000 and closing submissions. That report and the closing submissions have been read and taken into account in the preparation of this decision.At the commencement of the hearing on 19 January 2000 the Authority was advised that it was intended to tender in support of this appeal a psychiatric report from a Dr Logie who had interviewed the appellant for the first time the previous week. The report was not expected to be available for another two weeks and the Authority was asked to defer a decision until this evidence had been received and considered.
Also in his opening submissions on 19 January 2000 counsel advised that the appellant intended challenging the Authority’s jurisprudence on the internal protection alternative as recently formulated in Refugee Appeal No. 71684/99 (29 October 1999). It was said that submissions challenging this jurisprudence were to be filed in another appeal on or before 27 January 2000 and leave was sought to make submissions in the present appeal at a later date. On the second day of the hearing, the Authority discussed with counsel at some length the intended challenge to Refugee Appeal No. 71684/99. Counsel was unable to articulate at that time the grounds of the challenge beyond the simple submission that the Authority had erred in abandoning what had hitherto been known as the “reasonableness” limb of the test.
The hearing concluded with the Authority granting leave to the appellant to file by 11 February 2000 both the psychiatric report and the closing submissions. Leave was reserved for application to be made for a further week if this was found to be necessary.
By letter dated 11 February 2000 (received by the Authority on 15 February 2000) the solicitors for the appellant sought an extension of time. The grounds stated were:
“1. The Authority in another case Refugee Appeal No. 71577/99 in which the jurisprudential development in October 1999 (regarding the IPA) have permitted an extension to the end of February to file submissions. That case is being used as the vehicle to challenge the jurisprudential development of the relocation principles.The statement in the first paragraph that Appeal 71577/99 “is being used as the vehicle to challenge the jurisprudential development of the relocation principles” is not a description or phrase which the Authority has used. It is counsel’s expression.2. It would seem unnecessarily repetitive to file submissions in the current case until such time as the [submissions] are filed in Refugee Appeal No. 71577/99. Counsel is therefore seeking an extension to the end of February in concert with the earlier appeal.”
As to the first ground of the application, the Authority will not defer consideration of cases pending the decision in Appeal 71577/99. There are a number of reasons for this. The appellant in Appeal 71577/99 may be granted refugee status on grounds unrelated to the internal protection alternative issue. Or the appellant might fail on grounds unrelated to the internal protection alternative. Experience shows that “test cases” do not always turn out to be such. See in this regard Refugee Appeal No. 702/92 Re GS (5 August 1994).
This panel of the Authority is not prepared to defer or postpone consideration of the present case pending the outcome of some other appeal which may, or may not, have relevance to the internal protection issue.
Counsel having indicated that his submissions in Appeal 71577/99 on the internal protection alternative are to be filed by the end of February 2000, there is no reason at all why those submissions should not also be filed in this appeal, suitably adapted to take into account the facts of this particular appellant. As to the second ground of the application, we do not see this requirement as imposing on the appellant’s solicitors any inconvenience at all.
In the circumstances, the Authority directs that all further evidence and submissions which the appellant wishes the Authority to consider are to be filed no later than 5.00pm on Tuesday, 29 February 2000.
THE APPELLANT’S CASE [14] The account which follows has been taken from the appellant’s signed statement dated 18 January 2000. The earlier (unsigned) statement filed with the Refugee Status Branch on 26 October 1999 is not in all respects the same, nor is the evidence given by the appellant orally at the appeal hearing which took place on 19 and 21 January 2000. We do not intend to repeat the 18 January 2000 statement verbatim. It is sufficient to note only its salient points. Where necessary, reference is made to evidence given by the appellant at the appeal hearing. Our assessment of the appellant’s claims follows in a later section of this decision.
[15] The appellant’s father is a comfortably well-off farmer. He and his wife have three children. The appellant is the eldest. The other two children are daughters aged 16 and 10 years respectively. The family lives in the Jalandhar District of the Punjab, the family home being situated some 15 minutes walking distance from the 25 acre farm.
[16] After matriculating from high school in 1988, the appellant attended Khalsa College for two years. He has never been in paid employment, claiming to have worked virtually full-time for the All India Sikh Student Federation (AISSF) since completing his schooling, and (since 1996) for the Punjab Human Rights Organisation (PHRO). From time to time he would, however, perform chores at home and on the farm but his father primarily employed labourers.
[17] In his statement of 18 January 2000 the appellant stated that while at high school he became interested in the AISSF and attended meetings of its Jalandhar branch, distributed its literature, collected donations and attended protest marches. In addition, he gathered information on families who had lost relatives at the hands of the police. He did not, however, have any major problems with the police while a member of the AISSF.
[18] He says that in 1996 he joined the PHRO which, while based in Amritsar, had an office in Jalandhar. As a member of the PHRO he assisted in collating reports of police abuses and would travel from village to village collecting such information. He did this by meeting family members of people who had disappeared or who had been killed by the police and by talking to witnesses. He would record the names of the police officers, the police stations concerned and the allegations made against them by the families. He would also tell villagers of their rights. The information he collected would be taken to the PHRO office in Jalandhar. Approximately five or six people worked in the office, including two lawyers, [NKS] and [BS]. The information gathered by the appellant would be given to [BS]. The appellant did not know what happened to the information thereafter or the use to which it was put.
[19] In November 1998 the appellant was arrested at home by the police, taken to the Nakodar police station and detained for five days. Under interrogation, he was told that the police were aware that he was collecting information about police abuses and were aware that he was working for the PHRO. They wanted to know why he was collecting such information and he was told to stop working for the PHRO. After this interrogation the appellant was beaten with straps, rifle butts and canes. In addition, he was suspended from the ceiling and had a roller applied to his legs. The police kept threatening to kill him if he did not stop working for the PHRO. During the five days of detention he was beaten on four separate occasions in similar manner. He was eventually released when his father and members of the village panchayat went to the police station and paid a substantial bribe of Rs50,000. After his release he was treated at a clinic for two weeks.
[20] After recuperating for about one month the appellant returned to work for the PHRO and continued to collect information on police abuses.
[21] On 10 March 1999 the appellant was again arrested at home and taken to the Nakodar police station where he was detained for four days. He was asked why he had not stopped working for the PHRO and was again beaten with straps, sticks and rifle butts. His legs were subjected to the roller treatment and wrenched apart. In addition to being suspended from the ceiling, he was subjected to electrical shocks by having an electrical device applied to his testicles. The appellant believes that electric shocks were administered to him on at least two occasions and that he was beaten on three of the four days in question. His release was secured by the payment by his father of a bribe, this time the amount being 1 lakh (Rs100,000). Again the appellant was treated at a clinic for two weeks before returning home.
[22] Some two to three weeks after his return home, the police called a third time in search of him but he was not in at that time. After this he decided to leave the Punjab and went to stay with an uncle in Rajasthan. However, some two and a half months later, in July 1999, the Punjab police visited the uncle’s home in search of the appellant. He was not in at the time. After learning what had happened he discussed matters with his father and uncle and it was decided that he should leave India immediately. His father made contact with an agent who was paid a large sum of money to make all the necessary arrangements, including the obtaining of the appropriate documentation. Thereafter the appellant left India via New Delhi Airport on 12 September 1999. After transiting through Japan he stayed in Fiji for 23 days before arriving in New Zealand.
[23] The appellant believes that his two periods in custody, the third visit to the family home in the Punjab and the later visit to the uncle’s home in Rajasthan demonstrates that he has a well-founded fear of persecution in the Punjab for reason of his involvement in the PHRO. He is fearful that if he is returned to India he will be arrested at the airport and persecuted further for reason of his political beliefs.
[24] The further submission made by the appellant is that he does not believe that he can live in any other state in India, given that the police in the Punjab have made strenuous efforts to locate him by searching him out in Rajasthan. The submission is that no internal protection alternative is available.
THE ISSUES [25] 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 internal protection arises in this case, the decision of this Authority in Refugee Appeal No. 71684/99 (29 October 1999) requires a third and final issue to be addressed:
3. Can the appellant genuinely access domestic protection which is meaningful? In particular:
(a) In the proposed site of internal protection, is the real chance of persecution for a Convention reason eliminated?(b) Is the proposed site of internal protection one in which there is no real chance of persecution, or of other particularly serious harms of the kind that might give rise to the risk of return to the place of origin? (c) Do local conditions in the proposed site of internal protection meet the standard of protection prescribed by the Refugee Convention?
ASSESSMENT OF THE APPELLANT’S CASE [26] Before a determination of the identified issues can be made, a finding as to the credibility of the claims made by the appellant is necessary. In arriving at this finding the Authority has taken into account the fact that the appellant has received medication for his claimed inability to sleep, anxiety and impaired concentration. It has also taken into account the assessment of Dr Logie dated 2 February 2000.
[27] The decision of the Authority is that the appellant is not a credible witness. Our reasons for this finding follow.
[28] Central to this case is the claim by the appellant that from 1989 until his departure from the Punjab in 1999 he was a dedicated and experienced human rights worker who worked full time in that capacity for first the AISSF and (from 1996) the PHRO. The period in question is some ten years. In that period he claims to have given advice on human rights and investigated and documented police abuses. In the circumstances, one might have expected the appellant to have spoken in some depth, freely and with some conviction about the ideals and beliefs which led him to become a human rights worker, about the organisations for which he worked and about his activities in the Punjab. Instead, the appellant impressed as an evasive and insincere witness who was quite lost when explaining not only his beliefs and convictions but also the aims and objects of the organisations he claims to have worked for. The only time he spoke with any degree of fluency (i.e. beyond giving monosyllabic or one sentence replies to questions which he invariably asked to be repeated) was when the opportunity arose for him to restate in his evidence passages from his signed statement. The clear impression given was of a witness who had set out to remember a made-up story which he could barely understand and hardly remember. He has no grasp or understanding of what a human rights organisation is. Our assessment of the appellant is that he is not a witness of the truth and that no part of his evidence can be relied upon.
[29] In making this assessment we have taken into account the fact that the appellant gave his evidence through an interpreter. However, it was a noticeable feature of his evidence that he again and again asked the interpreter to repeat the questions put by the Authority, even the most simple of questions. Asked by the Authority whether he had difficulty understanding the interpreter, he replied that he did not have any such difficulty. He explained that he was asking that the questions be repeated as he was upset. There was no sincerity to this claim and it was obvious to the Authority that the appellant’s request for the questions to be repeated was simply a means of gaining time to work out an answer.
[30] Mention has been made of the appellant’s inability to talk, with any degree of conviction or detail, about the aims and objects of the organisations he worked for or about his beliefs and convictions.
[31] Asked why he wanted to work for the AISSF, he said that it had made quite an impact on his mind and he just wanted to do it. Asked whether anything specific had happened for this impact to have happened, the appellant asked for the question to be repeated. After the question was put again he answered that there had been no specific incident or reason, he had just wanted to join the Federation. Asked why he had wanted to join the Federation he said that he could not understand the question. When the question was repeated, he said that he wanted to join because the government was not being fair to the Sikh race. Asked what were the aims and objects of the Federation, he asked “How?”. Asked what programme the Federation had to help the Sikh people, he said that the Federation wanted to have a Sikh state. These responses to simple and direct questions rather betrayed the appellant’s claim to have been educated to college level and to have then spent some ten years as a human rights activist in the Jalandhar District of the Punjab. The appellant was equally vague when asked what took place at the meetings he attended at the AISSF office.
[32] When asked what activities he had outside of the AISSF, the appellant said that he worked for “Human Rights Organisation” (HRO). His use of a generic term instead of the full title “Punjab Human Rights Organisation” was typical of the vagueness of his responses on this topic. When asked to describe the aims and objects of the HRO, the appellant stated that they were to make the common man aware of all the human rights. If someone was not treated right, he could go to the HRO. Asked what the HRO could do for this person, the appellant said that he did not understand the question. After the question was repeated, he replied that the HRO could help the man. Asked how he could be helped, he said that the HRO would listen to his problems and thereby help him. They would get him whatever was his right to get. Asked how the HRO would do this, the appellant repeated his earlier answer, namely that whatever was the person’s rights, the HRO could get it for him. Asked how this was done, he said:
“They listen to the problem with great patience, love and affection and then whatever is due as his human rights, they get for him.”[33] The Authority, having seen and heard the evidence of the appellant as it unfolded, is of the firm view that the appellant knew that it was important to his refugee claim that he assert that he was a member of the HRO, but because his claims are not true, he was entirely lost when asked about topics on which he had not been schooled.[34] The appellant’s answers to questions about his role in the PHRO clearly pointed to the fact that he had not been involved in that organisation as a human rights worker. By way of illustration, when asked about his role, he said that it was to visit homes and villages to make people aware of their human rights and if he found that there were any problems, he got the people together and helped them to sort them out. An example given by him was that if anyone had had a fight in the village, he would suggest that the problems be sorted out with the help of the panchayat. It was telling that the example he volunteered was not one related to documenting police abuses. One might have expected that a human rights worker of ten years experience who had spent many hours documenting police abuses would have mentioned his role as investigator and recorder of police human rights abuses. The fact that he did not do so rather demonstrates that he has adopted a story of being a human rights worker. This impression of his evidence was reinforced by his answer to a question which asked him to describe what he had told the villagers were their human rights. His hesitant response was to say that he told them that they were independent persons. After more thought he added that he told them that they had the right to vote and after even more thought said that he made them aware of all of their rights. He was then asked what rights he had made the villagers aware of. He replied that it was the right to vote and he also told them that they were independent and that they could go wherever they wanted. In fairness it should be mentioned that in re-examination he added to this list the right to free speech. But the addition was far from spontaneous and overtly contrived. Our view is that had the appellant in truth been a human rights worker as claimed, he would not have given the vague, stilted and at times inappropriate responses to questions directed to simple and straightforward topics such as the aims and objects of the organisations he worked for and his own activities within them.
[35] The appellant’s case has also, to a degree, been an evolving one. In both the unsigned statement of October 1999 and the signed statement of 18 January 2000 his activity in the AISSF is said to have begun in his high school years and continued thereafter. However, according to both statements, these activities had not lead to “any major problems” with the Punjab police even though one aspect of his work in the AISSF had been to gather information on families who had lost members at the hands of the police. Both statements then focus on his activities from 1996 when the appellant allegedly joined the PHRO until his flight from India in September 1999. The statements are explicit in asserting that it was his activities in the PHRO which had lead to the two arrests, detentions and torture.
[36] The account given at the appeal hearing introduced a new element. In particular, the first arrest of November 1998 was for the first time attributed by the appellant to his activities in the AISSF, not the PHRO. The appellant said that prior to joining the PHRO in 1996, he attended AISSF meetings three to four times a week. His duties in the AISSF were to distribute literature, collect funds and attend rallies. From about 1991 he attended such rallies on an almost weekly basis. The rallies were addressed by the leader of the Jalandhar branch of the Federation, a man called [SS]. The police did not, however, approve of these rallies and would arrest the appellant and other members of the Federation just as they tried to get their rallies underway. They would be held for several hours and then released. Thus in the period 1991 to 1998 the appellant was arrested and detained by the police on a weekly basis. He said that on none of these occasions was he ill treated. The reason why things changed in November 1998 was that at a rally attended by the appellant on the previous day, [SS] had for the first time criticized the police for killing two young men from neighbouring villages in a false encounter. Such killings had not previously been the subject of criticism at AISSF rallies attended by the appellant. He said that although it was known that such killings occurred elsewhere in the Punjab, they had not occurred in the Jalandhar district. The day after the rally the appellant had been arrested at home and taken to the Nakodar police station. The police had also arrested [SS].
[37] The first arrest is accordingly clearly linked to the appellant’s attendance at an AISSF rally addressed by [SS]. His written statement, however, unambiguously links his arrest to his activities in the PHRO and there is no mention of [SS] or of his arrest.
[38] The appellant’s propensity to invent evidence is seen in his claim that two men sharing the name [BS] worked with the appellant, the one in the AISSF and the other in the PHRO.
[39] The appellant’s signed statement of 18 January 2000 records that the information he gathered on behalf of the PHRO was given to two lawyers who worked in the PHRO office in Jalandhar, namely, [NKS] and [BS]. A remarkable feature of his oral evidence, however, was the claim that the information he gathered in his investigations as a member of the AISSF was given to a man in the AISSF Jalandhar office called [BS] who was the person responsible for keeping the records in the Jalandhar office. He explained that [B] as a member of the AISSF and after the arrest of [S], became the person in charge. The appellant claimed that there were in fact two [BSs], the [BS] of the AISSF and the PHRO [BS] who had the last name of [C]. He said that it was simply a coincidence that each organization employed in their separate Jalandhar offices a [BS] performing identical tasks, namely recording the human rights abuses documented (inter alia) by the appellant. In re-examination he ventured the opinion that [B] was a common name in the Punjab, but conceded that he knew no other [BS] in the AISSF.
[40] The Authority does not believe the appellant. As the hearing progressed and the appellant’s evidence unfolded, the clear impression gained was that because the appellant was not drawing on his own life experiences when giving his account and because he could not remember too well his statement, he elevated his AISSF activities to an importance they had not previously had, and more significantly, claimed that those activities had continued past 1996 and indeed precipitated the arrest of 1998. The account thus presented is quite different to that found in the two earlier statements. The clear impression given was that the appellant had difficulty remembering his script and when tested added extraneous elements which did not sit comfortably with the main story. His attempt to reconcile the two accounts led to the striking “coincidence” of two [BSs].
[41] It is now necessary to turn to the topic of the alleged disappearance of [SS]. His disappearance is not mentioned in either of the written statements and was first mentioned in the oral evidence. The appellant told the Authority that his leader in the AISSF, [SS], was arrested in November 1998 at the same time as the appellant. The appellant said that [S] was not heard from again. He had been “disappeared” by the Punjab police. The Authority asked the appellant whether, following the appellant’s release from his first period of detention, he had asked the PHRO to find out what had happened to [S]. He replied that he had not. It was put to the appellant that if the PHRO was collecting information on individuals who had been disappeared by the police, it seemed odd that the appellant had not himself reported the disappearance of his own leader in the AISSF. His reply was:
“No-one asked me.”[42] The Authority did not regard this as the response of a person who actually performed the role of a human rights worker, or of a person who understood what reporting police abuses actually means. It accordingly asked the appellant why he, as a person claiming to be a human rights activist in the PHRO, and as a person actively involved in recording cases of people who had been disappeared by the police, had failed to report [SS’s] case to the PHRO. The appellant by this point sensed that his earlier answer had somehow not gone down well. There was a long pause before he replied that he had noted the disappearance in his diary but it (the diary) had not reached the PHRO. The Authority asked the appellant why he had not personally gone to the PHRO after his release and there reported the disappearance, diary or not. The appellant’s reply was a lame statement that:
“Maybe I told them, I don’t remember.”[43] The obvious rejoinder to this answer is that the appellant would be expected to remember the disappearance of his leader in the AISSF and also whether he had reported this man’s disappearance to the PHRO. The Authority is in no doubt whatsoever that the appellant’s entire claim is a false one.[44] Equally incongruous is the fact that while the appellant says that he reported his first arrest and torture to the PHRO, they did nothing about it. It was the same in relation to his second arrest in March 1999. He said that all the PHRO did on that occasion was to go to the police station to inquire about him, but it was his father who had secured his release. After this the PHRO had done nothing to help him. If the appellant’s evidence is true, the inactivity by the PHRO in the face of the repeated arrest and torture of one of its workers, is remarkable indeed. The conclusion we have come to is that the incongruity between the aims and objects of the PHRO and its alleged reaction to the two arrests and torture of one of its field workers is to be explained by the fact that the appellant’s story is an invented one. In this context it should be mentioned also that the appellant said that although he worked for the PHRO for two years, at no time was he ever told what use the information he gathered was put to.
[45] It is also a remarkable fact that in the two year period the appellant worked for the PHRO, he was the only worker in the Jalandhar office to be arrested. Neither the lawyer [NKS] nor [BSC] were arrested during this period. Nor were any of the other field workers. This is significant given that the appellant’s signed statement and his evidence in re-examination emphasised that on both occasions he was arrested, the police made a point of threatening him with dire consequences unless he stopped working for the PHRO. No explanation was offered as to why the police should within a short space of time have arrested and tortured the appellant on two occasions, but paid no interest in other workers in the same organisation. The Authority can see no such explanation on the facts. In the overall context of the case, this aspect of the appellant’s case is further evidence that his entire account is false.
[46] At the very end of his re-examination, the appellant stated that he had difficulties remembering events, particularly when questioned repeatedly. On such occasions he forgot a lot. As with many of his other responses, this evidence was characterised by a lack of conviction and sincerity. We have nevertheless in making our credibility assessment taken into account this claim by the appellant, and the fact that according to the medical certificate from Dr Santokh Singh dated 18 January 2000, the appellant has complained to him (the doctor) of an inability to sleep, anxiety and difficulty in concentration. An anti-depressant has been prescribed. Such claims are easy to make and it is no doubt a simple procedure to prescribe anti-depressants. We find nothing in Dr Santokh Singh’s notably brief certificate to cause us to change the very clear impression we formed upon seeing and hearing the appellant.
[47] There is also a certificate from Dr Peter Morton dated 17 January 2000 which records that upon examining the appellant he found multiple scars, suggestive of healed traumatic lacerations. The doctor concluded that “the findings of the examination are consistent with injuries resulting from the alleged assaults”[emphasis added]. The assaults referred to are those suffered in the November 1998 and March 1999 arrests.
[48] There is then the report of Dr Logie dated 2 February 2000. The Authority was told by Mr Monk on 19 January 2000 that the appellant had seen Dr Logie the preceding week, which would have been the week commencing Monday, 10 January 2000. By way of contrast, Dr Logie’s report refers to Mr Monk contacting him on 21 January 2000, which the Authority notes, was the second day of the appeal hearing. It is also to be observed that the report addresses the humanitarian criteria of Government residence policy (see the NZIS Operational Manual, Residence, Chapter 60), the apparent explanation being that (according to the report) Dr Logie was told by Mr Monk that the appellant was applying for a residence permit under the humanitarian policy. Be that as it may, Dr Logie’s conclusion is that the appellant suffers from chronic post-traumatic stress disorder.
[49] We are not prepared to attach any weight to the medical evidence.
[50] First, all three medical practitioners have, of necessity, taken the appellant’s claims at face value. They have not had access to the information and evidence before the Authority, nor have they had the opportunity which the Authority has had of testing the appellant’s claims and of closely questioning him on credibility-related issues. In fairness, Dr Logie specifically records that the information contained in his report “relies solely on data supplied by the client”.
[51] Second, the Authority is mindful of the fact that the High Court has recently drawn attention to the danger of uncritical acceptance of experts’ reports: Butler v Removal Review Authority [1998] NZAR 409, 424-425 (Giles J) and Naidu v Minister of Immigration (High Court, Auckland, M 1661-SW 99, 23 March 2000, Rodney Hansen J) at para 82. As Giles J observed in the former case, expert reports vary as to quality and integrity. The Authority is not obliged to accept the report of a qualified expert without more. It is fully entitled to evaluate and assess the evidence, to consider it in the context of the totality of the evidence, and to reach it’s own objective and reasoned assessment of it.
[52] Finally, as this Authority has commented on many previous occasions, little or no weight can be given to a medical opinion where the appellant is not a credible witness. See, for example, Refugee Appeal No. 19/91 Re SA (12 February 1992) 12, 13:
“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.”
[53] To similar effect see R v Secretary of State for the Home Department; Ex parte Thirugnanasampanther [1995] Imm AR 425, 427 (QBD) (Sedley J).
[54] In conclusion, as we do not find the appellant in this particular case to be a credible witness, we do not attach any weight to the three medical reports. The symptoms and injuries exhibited by the appellant are consistent with causes other than those claimed by him. Symptoms of trauma can be feigned.
[55] For the reasons given, the Authority does not accept the appellant’s evidence in any respect. Specifically we find that he does not have a well-founded fear of persecution for a Convention reason.
[56] There are three further matters which need to be addressed:(a) The submission that the appellant will be at risk of arrest at the airport upon his arrival in India;(b) The question of internal protection; and (c) The burden of proof and the internal protection alternative.
THE QUESTION OF THE IDENTITY CHECK [57] In support of his claim to hold a well-founded fear of persecution, the appellant relies on the affidavit of Mr A D Lockhart, Manager of the Border and Investigations Section of the New Zealand Immigration Service sworn on 18 November 1999 and filed in the E proceedings. Of the 18 pages of the affidavit, the Authority has been provided only with pages 3, 12 and 18. Counsel relies on paragraph 38 which is in the following terms:
“As recently as Thursday, 11 November 1999, I met with Pradeep Singh who holds the position of counsellor in the Indian High Commission in Wellington. He advised me that with recent changes in their own legislation, his discretion to issue travel documents has been curtailed. While he is able to issue a passport or other travel document to an Indian national who presents an expired passport or a photocopy of a lost passport, other applications for travel documents where the identity of the applicant cannot be confirmed have to be referred to New Delhi for inquiries to be undertaken to confirm the applicant’s identity. He indicated that this process could take a considerable time but in a number of cases it might not be possible to issue a travel document at all.”[58] The appellant says that this paragraph is of particular significance to his case as he arrived in New Zealand without a travel document or other form of identification. If sought to be returned to India the inquiries spoken of by the counsellor will increase substantially the risk of the appellant being identified as someone of interest to the police in the Punjab. It would therefore not be possible for him to re-enter India undetected.[59] Counsel has not made any attempt to obtain a copy of the legislation in question and relies entirely on the paragraph set out earlier.
[60] The Authority’s reading of the paragraph in question is that the authorities in India operate under legislation which requires applicants for travel documents issued by the Republic of India to be first identified as nationals of the Republic. If this cannot be done by the presentation of an expired passport or a photocopy of a lost passport, inquiries are made in India to confirm the applicant’s identity as an Indian national. As such the legislation is entirely unexceptional. Indeed, it is precisely what one would expect to find. Under international law, where expulsion occurs, the receiving State is only obliged to admit its own nationals: Richard Plender, International Migration Law Rev 2nd ed (Dordrecht, Martinus Nijhoff, 1988) p 133 and see also Paul Weis, Nationality and Statelessness in International Law Rev 2nd ed (The Netherlands, Shijthoff & Noordhoff, 1979) p 45-53. There are no grounds to suggest that the legislation spoken of by the counsellor has a sinister purpose.
[61] However, an inquiry into identity does carry the risk that it may, depending on the circumstances, lead to discovery of the fact that a particular individual is of interest to the Indian authorities. This in turn may, or may not, make well-founded a fear of persecution or alternatively, reinforce the well-foundedness of that fear. Detention at the airport on arrival or at some later stage could be a potential risk. Everything will depend on the facts of the particular case. In this regard, it must be remembered that a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. Conjecture or surmise has no part to play in determining whether a fear is well-founded. See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 572 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ):
“In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in it’s primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well founded. A fear is “well-founded” when there is a real substantial base for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”[62] It must be emphasised that where (as here) an individual has been found not to have a well-founded fear of persecution in India, the identity check referred to by the counsellor in the Indian High Commission cannot give rise to a well-founded fear of persecution for a Convention reason.[63] Also relied on by the appellant is the text of a letter from the Attaché (Cons & Comm), High Commission of India, to a Mr Golian (said by Mr Monk to be a consultant) dated 9 September 1999. On the copy of the document provided to the Authority the identity of the particular individual has been removed. The text reads: “The matter is under reference to Passport Office, Jalandhar for verification of Indian nationality and passport particulars of Mr [name deleted] Singh. As and when we hear from the Indian authorities, we shall revert to you. In the meantime, please have the enclosed Personal Particulars Form filed by Mr [name deleted] and have it sent to us. Also, kindly ascertain the following from Mr [name deleted] Singh: (a) Has he applied for refugee status to the New Zealand authorities? If so, the outcome of the case (a copy may be sent to us); (b) If his passport No. [number deleted] was presented this High Commission for any service, such as, renewal after expiry of five years, issue of Birth Certificate/PCC earlier? (c) If he entered New Zealand on passport no [number deleted] with a valid visa, why was he issued a Work Permit by the New Zealand Immigration showing a different Passport Number? Thanking you.”
[64] At the hearing the Authority was not entirely clear what relevance this letter had to the present appeal. In answer to questions from the Authority Mr Monk said that he had made no enquiry of Mr Golian as to the terms of his (Mr Golian’s) reply to the letter. Nor could Mr Monk offer any reason why the enquiry in para (a) should not be simply ignored or simply denied. As to the enquiries in paras (b) and (c), there is nothing here to which exception can be taken. Indeed, as to (c), the High Commission has a legitimate interest in ascertaining why the particular individual appears to have been in possession of two different Indian passports.
[65] While the enquiry as to whether an individual has applied for refugee status in New Zealand may, on one view, appear inappropriate, there is not a scintilla of evidence to suggest that the authorities in India either prosecute or worse, persecute, those of its nationals who return to that country after having been refused refugee status abroad, or, after having been granted such status. If there were such prosecutions or persecutions, the very considerable Sikh expatriate communities in the United Kingdom, Canada, United States, Australia and New Zealand would certainly come to know of it within a very short time, as would human rights organisations such Amnesty International and Human Rights Watch which have followed events in the Punjab closely. Communications between the Punjab and the outside world are excellent, facilitated not only by the inflow and outflow of people, but also by telephone, fax and the like. Given the large number of Sikhs who over the past decade or so have sought refugee status in the United Kingdom, Europe, Canada, United States, Australia and New Zealand, any risk of return to India by unsuccessful refugee claimants would soon receive publicity. Mr Monk, on being confronted with these points observed that the High Commission letter is dated 9 September 1999 and the conversation between Mr Lockhart and the counsellor took place in November 1999. He suggested that it may be too soon to know whether these “new” developments signalled anything sinister for refugee claimants. As against this Mr Monk was quite unable to say when the legislative changes occurred, he having made no inquiry in that regard. Nor had inquiry been made of Mr Golian as to the terms of his reply to the High Commission of India letter dated 9 September 1999 and in particular, the reaction of the Attaché to being told that it is not appropriate for him to make inquiry as to whether an individual has applied for refugee status. In these circumstances, the submission is an artificial one, based on information which is either cited out of context, or which is incomplete. The Authority finds in this evidence no grounds on which to draw the inference contended for by the appellant, namely that a person who is without Indian identity documents and who has also failed to be recognised as a refugee, is at risk of persecution per se. As the High Court of Australia observed in Guo at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded.
[66] Given our finding that the appellant is not a person who has a well-founded fear of persecution for a Convention reason, there are no grounds whatsoever for finding anything in these documents of assistance to his claim to refugee status.
INTERNAL PROTECTION ALTERNATIVE [67] In view of these findings it is strictly speaking unnecessary for the internal protection alternative to be addressed. However, in a number of cases Mr Monk has argued (in identical terms) that Refugee Appeal No. 71684/99 (29 October 1999) was wrongly decided. It is therefore best that the Authority indicate it’s views on the submissions.
[68] To introduce the topic we refer to the article by Professor James C Hathaway, “International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative” (1999) 21 Michigan Journal of International Law 131:
“International refugee law is designed only to provide a back-up source of protection to seriously at-risk persons. Its purpose is not to displace the primary rule that individuals should look to their state of nationality for protection, but simply to provide a safety net in the event a state fails to meet its basic protective responsibilities. As observed by the Supreme Court of Canada, “[t]he international community was meant to be a forum of second resort for the persecuted, a ‘surrogate’, approachable upon the failure of local protection. The rationale upon which international refugee law rests is not simply the need to give shelter to those persecuted by the state, but ... to provide refuge to those whose home state cannot or does not afford them protection from persecution.”[69] It is to be recalled that prior to Butler v Attorney-General [1999] NZAR 205 (CA) the Authority had held that the internal protection alternative (or relocation issue, as it was then known) turned on two issues:It follows logically that persons who face even egregious risks, but who can secure meaningful protection from their own government, are not eligible for Convention refugee status. Thus, courts in most countries have sensibly required asylum seekers to exhaust reasonable domestic protection possibilities before asserting their entitlement to refugee status. Where, for example, the risk of persecution stems from actions of a local authority or non-state entity (such as a paramilitary group, or vigilante gang) that can and will be effectively suppressed by the national government, there is no genuine risk of persecution, and hence no need for surrogate international protection.”
(a) Can the individual genuinely access domestic protection which is meaningful?
(b) Is it reasonable, in all the circumstances, to expect the individual to relocate?
[70] Paragraph (a) was approved in Butler at 216-218. As to (b), the Court of Appeal at 217 stated that reasonableness was not a stand alone test, authorising an unconfined inquiry into all the social, economic and political circumstances of the application:
“The various references to and tests for “reasonableness” or “undue harshness” (a test stated by Linden JA in Thirunavukkarasu v Minister of Employment and Immigration) must be seen in the context or, to borrow Brooke LJ’s metaphor, “against the backcloth that the issue is whether the claimant is entitled to the status of refugee”, R v Secretary of State for the Home Department, ex parte Robinson p 435. It is not a stand alone test, authorising an unconfined inquiry into all the social, economic and political circumstances of the application including the circumstances of members of the family. The test is for instance sharply different from the humanitarian tests provided for in the Immigration Act 1987, ss 63B and 105. It does not in particular range widely over the rights and interests in respect of the family. The refugee inquiry is narrowly focussed on the persecution and protection of the particular claimant. In no case to which we were referred were international obligations in respect of the family seen as being linked to the definition of refugee. While family circumstances might be relevant to the reasonableness element, there is no basis for such a link on the facts of the present case. We note as well that New Zealand had not become bound by the Convention of the Rights of the Child at the time of the decision of the Authority.”[71] The Court went on to hold at 218 that rather than being seen as free standing, the reasonableness test must be related to the primary obligation of the country of nationality to protect the claimant:“Rather than being seen as free standing (as more recent decisions of the Authority appear to suggest), the reasonableness test must be related to the primary obligation of the country of nationality to protect the claimant. To repeat what Professor Hathaway said in the passage relating to relocation quoted earlier, meaningful national state protection which can be genuinely accessed requires provision of basic norms of civil, political and socio-economic rights. To the same effect Linden JA in the Canadian case cited above, (1993) 109 DLR (4th) 682, 688, stresses that it is not a matter of a claimant’s convenience or of the attractiveness of the place of relocation. More must be shown. The reasonableness element must be tied back to the definition of “refugee” set out in the Convention and to the Convention’s purposes of original protection or surrogate protection for the avoidance of persecution. The relocation element is inherent in the definition; it is not distinct. The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality.”[72] The submission made by Mr Monk is that while the Butler decision states that the reasonableness element must be tied back to the definition of “refugee”, it does not dispense with it entirely. Yet this, it is submitted, is the result of Refugee Appeal No. 71684/99 (29 October 1999). The submission, however, depends on a superficial reading of both Butler and Refugee Appeal No 71684/99.[73] First, the submission fails to take into account the fact that both in Butler and Refugee Appeal No. 71684/99 it is recognised that the central issue in the internal protection context is the question of state protection. That is why the test, both pre- and post-Butler is whether the refugee claimant can genuinely access domestic protection that is meaningful. All that has happened post-Butler is that the Authority has quantified “meaningful state protection” by identifying three pre-conditions which must exist before a finding can be made that an internal protection alternative is available:
Can the refugee claimant genuinely access domestic protection which is meaningful? In particular:[74] In quantifying the nature and intensity of the inquiry into state protection, the internal protection alternative test as formulated in Refugee Appeal No. 71684/99 also addresses the reasonableness issue understood in the Butler sense. If meaningful state protection as identified in Refugee Appeal No. 71684/99 can be genuinely accessed by the refugee claimant, it would be reasonable to expect the claimant to avail him or herself of that protection.(a) In the proposed site of internal protection, is the real chance of persecution for a Convention reason eliminated?
(b) Is the proposed site of internal protection one in which there is no real chance of persecution, or of other particularly serious harms of the kind that might give rise to the risk of return to the place of origin?
(c) Do local conditions in the proposed site of internal protection meet the standard of protection prescribed by the Refugee Convention? As each of these three requirements is cumulative, an internal protection alternative will only exist if the answer to each question is Yes.
[75] The basic problem with the appellant’s submission is that while it embraces the more particularised internal protection alternative test formulated in Refugee Appeal No. 71684/99, it seeks to add a super-added assessment of reasonableness without appreciating that the reasonableness element is necessarily addressed in the new formulation. If accepted, the appellant’s submission would have the effect of negating the central holding in Butler that there is no free standing reasonableness test. Reasonableness “must be related to the primary obligation of the country of nationality to protect the claimant”. This is precisely what Refugee Appeal No. 71684/99 and the Michigan Guidelines do.
[76] The appellant’s submissions singularly and significantly fail to explain what role a “reasonableness” inquiry would or could play in the internal protection analysis as understood in Butler and Refugee Appeal No. 71684/99. This is the point made in Refugee Appeal No. 71684/99 at paras 54, 61, 64 and 68. The short point is that if, applying the test formulated in Refugee Appeal No. 71684/99, meaningful state protection can be genuinely accessed, there is no protection purpose for the claimed “reasonableness” inquiry. It therefore has no place in the determination of the internal protection alternative. The point stressed in Butler is that the narrowly focussed refugee inquiry cannot be turned into a generalised examination of what might be called the “humanitarian” circumstances of a case.
[77] The appellant’s submissions drew heavily on the Authority’s own pre-Butler decisions, particularly Refugee Appeal No. 135/92 re RS (18 June 1993) but without appreciating that the reasoning process in that case can no longer stand in the light of Butler and in particular, the implicit disapproval of Refugee Appeal No. 135/92 in the passage earlier cited from Butler at 218. See further Refugee Appeal No. 71684/99 at para 47(c). The essential point is that the test as formulated in Refugee Appeal No 135/92 ruled out (erroneously) an internal protection alternative not by reference to an absence of meaningful state protection in the proposed site of internal protection, but by reason only of the past persecution experienced by the claimant in one part only of the country of origin. For the reasons given in Butler, this approach was mistaken and the conclusion of the Court of Appeal is reinforced by the fact that past persecution alone cannot lead to a grant of refugee status: Refugee Appeal No. 70366/96 Re C (22 September 1997).
[78] To the extent that the appellant’s submissions rest on the cessation provisions of Article 1C, they are similarly misguided. The Authority’s attempted reliance on those provisions in Refugee Appeal No. 135/92 failed for the reasons given in Butler. Quite apart from the need not to confuse inclusion issues with cessation issues, there is also the point that the Convention itself in Article 1C(5) confines the “compelling reasons” exception to a specific class of persons, namely statutory refugees under Article 1A(1). The Convention thereby excludes from this exception modern day refugees who must meet the definition set out in Article 1A(2).
[79] Finally, the appellant’s submissions on the burden of proof must be addressed.
THE BURDEN OF PROOF AND THE IPA [80] The Authority has long been of the view that the burden of proof lies on the refugee claimant. See Refugee Appeal No. 523/92 Re RS (17 March 1995) at p 17:
“A person who claims the right to be recognized as a refugee under the Refugee Convention must necessarily be aware of the circumstances which justify the assertion that he or she holds a well-founded fear of persecution for one of the five Convention reasons. By making a claim to refugee status, that person must shoulder the obligation of establishing the claim as the facts on which it is based lie peculiarly within the knowledge of the claimant.[81] In the same decision, the Authority went on to explain at 19-21 why resting the burden of proof on a claimant does not impose an unreasonable responsibility and is mitigated by other factors which the Authority then discusses. The passage is too long to permit citation in full.“This is a basic proposition which would ordinarily require no articulation given that a person in fear of persecution would be expected to make every effort to establish his or her claim.
“It is also inherent in a claim on New Zealand's international obligations under the Refugee Convention that claimants must act in good faith. The requirement that they prove their claim to the surrogate protection afforded by the Refugee Convention is not, therefore, to place on them an unreasonable obligation. Otherwise the door will be opened to abuse, with claimants doing no more than lodging an application for refugee status unsupported by any account of the facts, and expecting the decision-maker to carry out an investigation without the claimant's assistance. It is only a small step from there to say that refugee status is established if the decision-maker is unable to prove that the claimant is not a refugee. This would be an absurd state of affairs. In fairness to the appellant, it must be said that no such claim on his behalf was advanced. However, the submission that a non-party to the appeal (the NZIS) carried a burden of proof in the relocation context cannot be separated from the general issue of the burden of proof in refugee applications. A submission that a claimant does not carry the burden of proof as to relocation is not very different from a submission that the claimant carries no burden at all to establish the refugee claim.”
[82] Later in Refugee Appeal No. 523/92 Re RS at 37 the Authority discussed Canada (Attorney General) v Ward [1993] 2 SCR 689 (SC:Can) and in particular the discussion in that decision at 709 of the protection principle. The Authority noted the passage at 724-725 in which the Supreme Court of Canada placed on the refugee claimant the onus of providing clear and convincing confirmation of a state’s inability to protect:
“Addressing the issue how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals, as well as the issue of the reasonable nature of the claimant's refusal to actively seek out this protection, the Court placed an onus on the claimant to provide clear and convincing confirmation of a state's inability to protect. If this cannot be done, the claim should fail: 724-725:[83] Also noted in Refugee Appeal No. 523/92 Re RS at 40 was the holding of the Canadian Federal Court of Appeal in Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589 (FC: CA) that a refugee claimant must demonstrate on the balance of probabilities that there is a serious possibility of persecution in the area alleged to constitute an internal protection alternative. This is a heavier obligation than that imposed on claimants in New Zealand.“... clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant."We see no reason why this statement of principle should not also apply in the New Zealand context.And at 726, La Forest J concluded:
"Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play when no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already."As the onus of establishing the state's inability to protect was placed by the Supreme Court on the claimant, Canadian decisions on relocation which predate Ward must be read with considerable caution.”[84] Finally, in Refugee Appeal No. 523/92 Re RS at 40-41, the Authority accepted that a refugee claimant was entitled to notice that the internal protection alternative issue was to be raised. It cautioned, however, that that obligation must be tempered with common sense:
“However, the obligation must be tempered with common sense. There are certain categories of cases where it is self-evident that relocation is an issue either because of the nature of the case (particularly if it involves a non-state agent of persecution) or because of the country of origin (in India's case, claimants from the Punjab) or both. Thus, over the past three and a half years the Authority has heard approximately 400 cases involving claimants from the Punjab which also involved a non-state agent of persecution. Our jurisprudence in this area is both detailed and extensive and the three leading cases have already been cited. The position has been reached where it can be said that it is inevitable that a non-state agent case from the Punjab will raise the relocation issue. This is recognized in the way the vast majority of cases are presented and relocation is addressed as part of the appellant's case. To suggest that in Punjab cases a claimant is entitled to sit back until the Authority raises the issue would be to reduce the rules of fairness to little more than a game in which technocratic justice is pursued for ulterior motives. We would expect that in the vast majority of cases, as happens now, that the relocation issue will be addressed without the Authority having to take the initiative to raise it. If in a particular case an appellant is genuinely caught by surprise, the Authority will look sympathetically at an application for further time to present evidence and submissions directed to the issue. “We also emphasize that simply because the rules of fairness require notice to be given that the relocation issue is to be considered does not cast on the Authority anything in the nature of an evidentiary or legal onus of proof as far as the relocation issue is concerned. The legal onus to establish the claim to refugee status rests, as always, on the claimant. The enquiry remains, however, a shared one and if there is a real, as opposed to a fanciful doubt on either of the two limbs of the New Zealand relocation test, the appellant must receive the benefit of that doubt ....”Court of Appeal Jurisprudence[85] In Butler v Attorney-General [1999] NZAR 205, 213 (CA) it was held that in New Zealand country a person claiming refugee status has the burden of establishing the elements of the claim:
“A person claiming refugee status has the burden of establishing the elements of the claim. That rule should however not be applied mechanically. Those making a decision which may put an individual’s right to life at risk and Courts reviewing any such decision, have a special responsibility to see that the law is complied with, for example Bugdacay v Secretary of State for the Home Department [1987] AC 514, 531, 537.”[86] The Court of Appeal also held at 218 that the relocation element (internal protection alternative) is inherent in the definition; it is not distinct. In the Authority’s view, it follows that the burden of proof on the claimant extends also to the internal protection alternative issue and that the Authority’s approach to the burden of proof as outlined in Refugee Appeal No. 523/92 Re RS is entirely in accord with Butler. The law in the United Kingdom is to the same effect: R v Secretary of State for the Home Department; Ex parte Salim [2000] Imm AR 6, 7-8 (QBD) (Latham J).[87] It was against this background that Part VIA of the Immigration Act 1987 was enacted by the Immigration Amendment Act 1999, s 40. The long title of that Act relevantly declared that it was an Act to:
“Create a statutory framework for determining refugee status under the Refugee Convention”[88] The new provisions, particularly ss 129G(5) and 129P(1) expressly cast on the claimant the responsibility of establishing the claim:s129G(5) It is the responsibility of the claimant to establish the claim, and the claimant must ensure that all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided to the refugee status officer before the officer makes a determination on the claim.[89] The word “claim” is defined in s 128B(1) as meaning:s129P(1) It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.
“Claim” means a claim in New Zealand to be recognised in New Zealand as a refugee in New Zealand.[90] The Authority is of the view that by making it the responsibility of the refugee claimant to establish the claim, the 1999 provisions expressly cast on the claimant the onus of proof, thereby continuing under the statutory regime the position which had prevailed under the earlier non-statutory system. This interpretation led the Authority to hold in Refugee Appeal No. 71684/99 at para 66 that to the extent that the Michigan Guidelines on the Internal Protection Alternative suggest that the burden of proof on the issue of internal protection is otherwise, it has no application in the New Zealand context:“While it is probably unnecessary to say so, the Michigan Guidelines must be read subject to the specific statutory provisions governing the determination of refugee status in New Zealand now found in Part VIA of the Immigration Act 1987. In particular, given that ss 129G(5) and 129P(1) cast on the refugee claimant the responsibility of establishing the claim, the recommendation as to the burden of proof made by para 14 of the Michigan Guidelines has no application in the New Zealand context. That having been said, however, we have recognized in the past, and do so again now that:[91] For the appellant it was submitted that the word “establish” should not be equated with “prove the case”. No reason was given for departing from the ordinary meaning of the word, nor did the submissions address Butler, Ward or Refugee Appeal No. 523/92 Re RS. More specifically, in submitting that a claim is established when a well-founded fear of persecution is established, counsel failed to recognise that the internal protection alternative is inherent in the definition; it is not distinct: Butler 218. A claim to refugee status is not established unless and until the question of the internal protection alternative is resolved in the claimant’s favour.(a) A high degree of caution must be exercised when determining whether an individual can genuinely access meaningful domestic protection, especially when the agent of persecution is the state; and
(b) If there is doubt, the claimant must receive the benefit of the doubt.”
[92] Finally, it was submitted that refugee claimants should not carry the onus of proof because in most cases they will “not possess or be able to have access to information regarding the question of whether an IPA would be sufficiently protective or suitable”. This submission entirely overlooks the fact that the decision-maker has a legal obligation to disclose to the claimant any evidence relating to the internal protection alternative which the decision-maker intends to rely upon: Santokh Singh v Refugee Status Appeals Authority (High Court, Auckland, M 1224/93, 9 February 1994, Smellie J); Kahlon v Attorney-General [1996] 1 NZLR 458 (Fisher J). The appellant’s submissions on the burden of proof issue are entirely without merit.
CONCLUSION [93] 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.
.....................................[Rodger Haines QC]Chairperson