Home | Databases | WorldLII | Search | Feedback New Zealand Immigration and Protection Tribunal

CV (India) [2017] NZIPT 801058 (16 January 2017)

Last Updated: 5 August 2017

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2017] NZIPT 801058–59

AT CHRISTCHURCH

Appellants: CV (India)

Before: B L Burson (Member)

Counsel for the Appellants: A James Counsel for the Respondent: No Appearance Date of Hearing: 15 December 2016

_{Date of Decision: 16 January 2017}

_DECISION

[1] These are appeals against the decisions of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellants, citizens of India.

INTRODUCTION

[2] The appellants are husband and wife respectively and will be referred to as such for the purposes of the decision. The couple have a daughter, born in October 2016. She is not included in the appeal.

[3] The appellants claim to have a well-founded fear of being persecuted or otherwise being subjected to qualifying harm on account of their marriage, which was undertaken against the wishes of the wife’s family. The principal issue for determination by the Tribunal is whether the appellants can avoid harm at the hands of the wife’s family by living elsewhere in India.

[4] Given that the same claim is relied upon in respect of all limbs of the appeal, it is appropriate to record it first.

THE APPELLANTS’ CASE

[5] The account which follows is a summary of the evidence given by the appellants at the appeal hearing.

Evidence of the Wife

[6] The wife was born into a wealthy merchant family in a city in the Punjab province and is the eldest of three siblings. Prior to her marriage to the husband in

2014, the wife lived at the large family home along with her parents, siblings, her biological paternal grandparents and with the man – also regarded as a grandfather – who had adopted her father when he was young.

[7] The wife’s family are well-established as merchants of some status in their city. Her father ran one of two family businesses specialising in the same type of commerce, and employed between 10 and 50 people depending on the season. Her father was also a land speculator and involved in the local merchants’ association.

[8] The wife’s father was the youngest of four siblings. His eldest brother, AA ran the other of the two family businesses and was heavily involved in politics in the city. In particular, he was the campaign organiser for BB, who was involved in state-level politics as a member of the state Legislative Assembly, and CC a member of the local municipal council.

[9] The wife met the husband at school. At the time the wife was aged about

12 and the husband aged about 16. When he left school, the husband gave her a mobile telephone so they could remain in contact. While initially just friends, over the course of the next few years the relationship developed into something more as it became clear that they both had feelings of affection for each other. They kept in regular text and telephone contact and, from time-to-time, the husband would attend functions organised by the local school at which former pupils were invited.

[10] When the wife was aged about 15 or 16 years, her mother discovered the mobile telephone with a large number of texts. Questioned about this, the wife told her parents that the texts were to and from the husband with whom she was in love. Her parents opposed the relationship continuing. They told her that he was not a suitable match and that they would take it upon themselves to find her a better husband. As far as her parents were concerned, the husband’s family, who

worked making and selling clothes, did not have a sufficiently high financial or social status.

[11] Then began a game of cat-and-mouse between the husband, wife and the wife’s parents. The husband arranged for the wife to be given another mobile telephone via a friend and the couple remained in secret contact. Over the next four years or so the wife’s parents discovered this continued contact and confiscated her telephone. Undeterred each time this occurred, the husband left a replacement in a pre-designated spot for the wife to discover.

[12] In an effort to get the wife to abandon contact with the husband, the punishment she received from her parents for defying them became ever more severe. Initially, she was locked in her room for a period of a few days and kept out of school but, as she persisted, she was locked in her room for ever longer periods of time. This punishment culminated in a period when she was locked in her room for approximately 20 days, during the first two or three days of which she was not even allowed out of the room to go to the bathroom. She had to have all her meals inside the room. On this occasion she was even chained by her feet and neck to a wardrobe for some time.

[13] Other punishments also became harsher. While she was often slapped by her parents and uncle for being in contact with the husband, she recalls occasions when she had hot chilli powder thrown into her eyes by her father and, at least two or three times, her father threatened to set her alight for dishonouring the family. The wife vividly recalls her father having some diesel fluid in his hand with a match. She was only spared from being burnt because her grandfather intervened, berating her father with the fact that, should he harm the wife in this way, this would reflect badly on the family and affect the family’s chances of finding a suitable husband for her younger sister.

[14] The wife’s father also ensured that she was taken to and from school so that she did not have any opportunity to be in contact with the husband. When the wife completed her secondary schooling in 2013, her paternal aunt devised a plan that the wife would attend university in a city near to where the aunt lived. The plan was that the aunt, who was wealthy and did not need to work, would take the wife to and from university each day. This was discussed with the wife’s mother who agreed. The wife applied for and gained entrance to the university. Her father became aware of the plan when a letter inviting the wife to an enrolment interview arrived at the family house. He did not agree to this and instead

demanded that she be enrolled in a local college so as to minimise her opportunity to meet with the husband. The wife enrolled in a course there but, soon afterwards, her father forced her to discontinue her studies when he learned that the wife still remained in contact with the husband.

[15] The wife was then forced to stay at home. She was not allowed to go out. Kept imprisoned in her own home for well over a year, the wife became increasingly depressed and was prescribed medication for her depression.

[16] The husband continued to facilitate communication by leaving mobile telephones at the designated hiding place. In late 2014, the wife became aware that her parents were planning to marry her to a son from a wealthy New Delhi family. She contacted the husband and arrangements were made for her to escape. They arranged for him to pick up a bag of her clothing from a pre- arranged location. Two days later, while her family were entertaining her aunt and uncle, the wife took the opportunity to escape. She called the husband who came and collected her at 11.30pm. They travelled by motorbike to Chandigarh, the state capital, to go to the High Court. The husband had been talking to a lawyer who told him that their best hope was to seek protection from the Court. They waited some hours for the High Court to open and then called the lawyer. The lawyer told them they needed to get married at a temple and then take the documents to the High Court and seek an order for protection.

[17] The husband and wife followed his advice and were married at a temple. They then telephoned their respective families to tell them that they were married. While the husband’s family were accepting, the wife’s family were extremely angry. Her father threatened that he would find and kill them. The wife hung up the telephone and the couple went to the High Court accompanied by a representative from the lawyer’s office, who filed an application for protection on their behalf.

[18] However, they were told that, as this was a Friday, it would not be possible to obtain an order until the following Monday. The couple now returned to the husband’s parents’ home. That evening, members of the wife’s family including her parents, grandparents and uncle all came to the husband’s family home in two separate cars. Her uncle AA and father entered the husband’s family home and an angry confrontation ensued. AA attempted to hit her but the husband stepped in between and was slapped instead.

[19] For their safety it was decided that the couple should travel to another city far away where they would wait until Sunday afternoon. The plan was to return to Chandigarh the following day – the Monday – and obtain the court order. However, on the train journey home on the Sunday they were unknowingly recognised by a relative. As they got off the train at the last station, they were unexpectedly confronted by a large number of the wife’s family. Threats to kill them were made. The husband was assaulted by one of the wife’s uncles; the assault only stopped when the wife threatened to throw herself under the train. The husband and wife were taken to a wedding venue owned by one of her uncles. They telephoned the husband’s parents and let them know what had happened.

[20] At the wedding venue they were taken into separate rooms and pressured to stop their relationship. At first, the wife’s family did not believe that they were married but the husband produced the marriage certificate. The family were also told that they had applied for a court order directing that the police protect them. The wife’s parents now changed tack and said that they would organise the wedding which was hastily arranged at the wedding venue notwithstanding that it was late in the Sunday evening. The husband’s family turned up and a wedding ceremony was completed with the usual rituals. While the wife’s parents were there, they refused to take part in any wedding rituals which were instead performed by her aunt and uncle. Following the ceremony, the couple returned to the wife’s family home as was customary. The wife’s parents were not there. Her father would not allow the usual rituals to be performed which would have required her family to accompany them to the husband’s house.

[21] The wife believes that her family only consented to the marriage ceremony taking place to save face. It would have been shameful for them to be seen to have a daughter who married without their consent. She believes that their agreement to the wedding was purely to show to the outside world that they were in control of the situation and nothing more. As soon as the wedding was over, the husband and wife thought they would be killed. She believes this because, in the early hours of the Monday morning, her parents showed up at the husband’s family home and attempted to drag her away. When the husband intervened he was assaulted. Threats were again made that they would be killed.

[22] That afternoon the husband and wife attended the High Court and obtained a court order directing that the police grant them protection from her family.

[23] Thereafter, the husband and wife lived with his family while they made plans to leave India. The wife stayed at home and the couple only occasionally went out to public places. The husband’s own business was run from the front of his family home and he did not need to travel outside there to go to work. Nevertheless, on two occasions the wife’s family contacted her making it clear that they were aware that she was making plans to leave the country. On each of these occasions, she was threatened.

[24] The couple do not feel that they would be safe staying in India. Her uncle AA has political connections and could find them no matter where they were. There were steps being taken in India to require a particular type of identity card to access essential services. India is very corrupt and they could be tracked down. Furthermore, irrespective of the court order, her family could bribe the police to ensure that the couple are not given any protection.

Evidence of the Husband

[25] The husband is one of two sons from a family working in the garment trade. His father worked selling clothes in a shop until his retirement approximately three or four years ago. His mother has worked as a seamstress for nearly 30 years. The husband explained that from an early age he became attracted to clothes- making and left school in his 10th year to begin working as a tailor alongside his mother. Approximately two or three years ago, they made substantial renovations to the family home, constructing a workshop/retail space at the bottom of the two floors of the building from which he and his mother ran the business.

[26] The husband confirmed that he met the wife while they were still at school and that, as he was a number of years older than her when he left school, he gifted her the first of what would become many mobile telephones to enable them to remain in contact. Her family were not happy with their relationship because they did not think his family was wealthy enough for their daughter. Her family were very rich and influential in their city and one of her uncles had strong political connections. Nevertheless, the couple continued their relationship in secret.

[27] The husband explained that they had a secret place where he would leave mobile telephones. If he did not hear from her for a number of days, he would assume the telephone had been confiscated and immediately replace it with a new telephone. From time-to-time he would be made aware by the wife in telephone calls that she was being locked inside her room and harshly treated by her family

for continuing to communicate with him. She was not allowed to go out of the house or even to study for a long period. After some years of this treatment, his wife became depressed but she did not at that time share with him the full extent to which she had been mistreated by her parents for defying them.

[28] In late 2014, the husband was advised by the wife that her parents were arranging for her to marry “a rich boy” from New Delhi. Therefore, he and the wife arranged for her to run away. He had been discussing his situation with some friends who gave him the name of a lawyer, whom he had already contacted for advice. The lawyer had told him that in these circumstances he and the wife could apply to the High Court for a protection order against the family. On the night of the wife’s escape from the family home, they travelled on his motorbike to Chandigarh where the High Court was situated. They left late at night and they arrived in Chandigarh early the following morning. They went and saw the lawyer who told them that they would first need to be married. He arranged for them to be taken to a temple where they had a formal temple marriage. After being issued with the relevant paper work, they returned, with the lawyer, to the High Court. One of his associates filed the proceedings in the High Court. This was a Friday and he told them that they would not be able to get the order issued until the following Monday.

[29] They now telephoned their parents to tell them that they were married. While his family was upset that he married in this fashion, they were supportive. They indicated that they would have arranged the wedding for him but did not object to his marriage to the wife. It was a different story with her family who were very abusive and angry. Her father threatened to kill them. The wife now returned with him to his parents’ house. That evening, her father and uncle AA came to the house and there was an angry confrontation during which he was slapped by her uncle.

[30] The husband and the wife decided for their own safety to go to a town situated some distance away to avoid her family until they obtained the protection order. They remained there until late afternoon on the Sunday. However, as they disembarked from the train at the last stop on the way home, they were confronted by a number of her relatives. Unknown to them, one of his wife’s cousins had recognised them on the train and informed her family. Her family began to assault him and only stopped when his wife threatened to throw herself under the train.

[31] They were then taken to a wedding venue owned by one of her uncles situated nearby. There, they were put in separate rooms and placed under great pressure to cease their relationship. Once it became clear that they had no intention of doing so, her family said that they would put on a ceremony for them. Her family did not consent to the wedding but rather did this to save their reputation. Although her mother and father were there, they refused to take part in the ceremony. After the usual ceremony and celebrations, they visited both sets of parents’ home, as was traditional. The wife’s parents were not at home when they arrived there. They then went to his family home. By this time it was the early hours of Monday morning. Suddenly, her father arrived at the family home and again was making threats to kill them. He tried to drag the wife away with him but the husband intervened. Again, he was assaulted. That afternoon, they returned to the High Court and obtained the protection order.

[32] Thereafter, they remained living with the husband’s family. They now began making plans to flee India. His wife had been prevented by her father from taking further education because he did not want her to have the opportunity to see the husband. Now she wished to further her education and she obtained a student visa. They remained in India for a number of months. During this time they had no problems with her family, although they did restrict their movements. They avoided going out in public. On one occasion, he was told by a friend who had overheard the wife’s father making threats to kill the husband to some friends with whom he was talking in a shop.

[33] The husband also believes that they would be killed if the couple were to return to their home city. He does not believe anywhere in India would be safe for them. He is in regular contact with his own parents, who know what they are doing and their whereabouts. He is close to his family and would remain in contact with them no matter where they were in India. The wife’s uncle, AA, and other relatives live in the same location as his mother. Given they live in the same neighbourhood, it is only a matter of time before information of their whereabouts became known to the wife’s family, no matter how careful his mother may be in not divulging information.

Material and Submissions Received

[34] On 9 December 2016, the Tribunal received a bundle of country information from counsel. Written submissions in support of the appeal were received on

12 December 2016. During the hearing, the Tribunal served on the appellants a

copy of a protection order issued by the Chandigarh High Court (23 December

2014) in the name of the appellants and also a copy of the list of members of the Legislative Assembly for their home state in respect of the 2012 MLA election; see Punjab Assembly Election Results 2012 Elections.in (14 April 2014) at http://www.elections.in/punjab/assembly-constituencies/2012-election-results.html.

[35] Counsel made opening and closing submissions.

ASSESSMENT

[36] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellants as:

(a) refugees under the 1951 Convention Relating to the Status of

Refugees (“the Refugee Convention”) (section 129); and

(b) protected persons under the 1984 Convention Against Torture

(section 130); and

(c) protected persons under the 1966 International Covenant on Civil

and Political Rights (“the ICCPR”) (section 131).

[37] In determining whether the appellants are refugees or protected persons, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellants’ account.

Credibility

[38] Although there was some variation in the wife’s evidence, in particular, as regards the extent to which she had been mistreated by her family for engaging in a ‘forbidden’ relationship with the husband, the Tribunal accepts that the core of the appellants’ account is true. The core of the claim is supported by credible documentary evidence in the form of the application to the High Court and order for protection issued by the High Court in respect of the application.

[39] Significantly, in the statement made in support of her application for a student visa, the wife and husband disclosed at the outset to Immigration New Zealand the background to their relationship. They stated that her parents were opposed to their relationship “because of the mismatch of financial status”. In this

statement the wife states “my father locked me in a room and one day he tried to burn me”. Although, since having lodged the refugee status application, the wife has given further details about the level of abuse and its frequency, the Tribunal is satisfied that this reflects simply that she was only intending to give an overview of her situation to Immigration New Zealand.

[40] As to the abuse the wife suffered at the hands of her family, although the wife could not recall with precision when these incidents occurred, she was, on the whole, consistent as to the nature of the abuse she suffered at the hands of her family in the years leading up to their marriage. Although it cannot be certain as to the frequency of abuse she suffered at the hands of her family, the Tribunal is satisfied that she was subjected to various forms of physical and mental abuse by her father as punishment for continuing to have a relationship with the husband against her family’s wishes.

[41] However, there was a discrepancy in the wife’s evidence as to whether she was threatened at all following the marriage ceremony in December 2014. When questioned by the Refugee Status Branch (RSB) on this issue, the wife initially stated that her parents sometimes came to the in-laws’ home and threatened them: once, approximately in February 2015, when they came to know she had applied for a passport and on a further occasion in July or August 2015 when they learned that she had sat her English language test. She then stated, however, that they did not threaten her on these occasions. When asked by the RSB why she did not mention these incidents earlier, her reply was that she did not think there was any need to tell about these incidents because “they did not threaten us”. She told the RSB that the last time such threats arose was the morning of the wedding ceremony when the family said they would definitely kill both of them. The husband indicated, however, that he thought that threats were made on these occasions.

[42] In the statements the appellants’ filed in support of the appeal, the wife also mentions these post-marriage visits but, again, makes no specific mention of threats, stating only that “no serious harm” befell them in 2015. Nevertheless, she remained fearful of her family. In contrast, the wife told the Tribunal during the hearing that on these occasions her family did threaten to kill her. Asked to explain this variation in the evidence, the wife was adamant she had in fact stated this to the RSB, and confirmed that the threats did take place.

[43] Having regard to the appellants’ otherwise general credibility, the Tribunal is left in doubt on this matter. That threatening remarks may have been uttered on these occasions in 2015 is entirely plausible given the context. In the circumstances, the Tribunal extends to the appellants the benefit of the doubt as is required in this jurisdiction. It accepts that on these occasions the family made threats that they would kill both her and the husband.

Findings of fact

[44] The Tribunal finds that the husband and wife married in secret and against the wishes of the wife’s family who opposed the relationship because of the financial situation of the husband’s family. The wife’s family are a wealthy and politically connected merchant family whereas the husband’s father and mother worked as a salesperson and seamstress respectively. The wife’s uncle, AA was a campaign organiser for a state and a municipal politician.

[45] By the time the couple were married, they had been in a relationship for a number of years. The wife’s family subjected her to various forms of abuse, over a period of years, in an attempt to persuade her to stop seeing the husband. From time-to-time they would discover her in possession of a mobile telephone gifted to her by the husband. In an effort to dissuade her from contacting the husband, the wife was variously locked in her room for periods of between two and 20 days and on one occasion was chained to a wardrobe by her neck and feet. On at least one occasion her father attempted to set her alight but was dissuaded from doing so by the grandfather on the basis that this would harm the reputation of the family and hinder their chances in marrying the wife’s younger sister. On other occasions, the wife had chilli powder thrown into her eyes. She was also subjected to numerous minor assaults, particularly by her uncle AA and father.

[46] Upon discovering the husband and wife had married, the wife’s family hastily arranged for a wedding ceremony. Despite doing this, they made it clear that they did not accept the marriage and have attempted to take the wife away. On occasions thereafter her family made threats that they would kill the husband and wife for marrying against their wishes.

[47] The appellants’ claims will be assessed against this background.

The Refugee Convention

[48] Section 129(1) of the Act provides that:

“A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.”

[49] Article 1A(2) of the Refugee Convention 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

[50] In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are:

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

(b) If the answer is yes, is there a Convention reason for that persecution?

Assessment of the Claim to Refugee Status

[51] For the purposes of refugee determination, “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection – see DS (Iran) [2016] NZIPT 800788 at [114]- [130] and [177]-[183].

[52] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA), where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008), at [57].

Objectively, on the facts as found, is there a real chance of the appellants being persecuted if returned to India?

[53] Mr James submits that this case is a classic case of ‘honour killing’; the wife’s family feel that their honour has been jeopardised by the actions of the wife in running away from the family home and marrying the husband, not only against their wishes, but at the very time when they were making active arrangements via her paternal aunt to marry the wife to the son with a wealthy New Delhi family. The Tribunal accepts this submission.

[54] Mr James refers to the Tribunal’s decision in AV (India) [2014] 800498 in which the Tribunal, at [55], accepted that “honour killing remains a problem in India, particularly in the northern states including the state where the appellant lived, and where his wife’s extended family continue to live”. In that decision, much of the country information relied on by Mr James is summarised, including the report by the Immigration and Refugee Board of Canada India: Honour Crimes, Including their Prevalence in Both Rural and Urban Areas; Government Protection and Services Offered to Victims of Honour Crimes (2009–April 2013) IND104370.E (9 May 2013) (“the CIRB report”).

[55] The CIRB report notes that the Law Commission of India has defined honour crimes in the Indian context as violence motivated by the “belief that the victim has brought dishonour upon the family or the community”. The Law Commission explained that “honour crimes” occurred within the context of cultural and economic changes for women when the woman acted against the male- dominated culture. According to the CIRB report, the victim can be targeted for going against social traditions or caste traditions. Honour crimes often resulted from “a clash between conservative traditions and cosmopolitanism – between

‘old’ and ‘new’ India”.

[56] As for prevalence, the CIRB report states:

Sources indicate that honour crimes in India are "prevalent" (AHRC 19 Apr. 2013) and "widespread" (IB Times 16 Jan. 2013). There are no official statistics available on honour killings (BBC 16 June 2010; Human Rights Watch 18 July 2010; Professor 9 Apr. 2013). In a telephone interview with the Research Directorate, a Professor of History at the University of Toronto, who is a specialist in India, explained that statistics for honour crimes are difficult to track because there is no specific definition of honour crimes, and the statistics are kept according to the type of crime (murder, rape, etc.) as opposed to the motive for the crime (Professor

9 Apr. 2013). However, some sources, quoting unnamed studies, indicate that each year there are approximately 900 honour killings (Human Rights Watch 18

July 2010; India Aug. 2012, 5; AP 15 May 2011) or 1,000 honour killings (The

Guardian 25 June 2010). According to Human Rights Watch, there are no

estimates available on other types of honour crimes, such as physical assaults, forced marriage, or unlawful confinement (18 July 2010).

Sources indicate that many honour crimes are unreported (BBC 16 June 2010; India Aug. 2012, 5; Human Rights Watch 18 July 2010). Sometimes honour killings are reportedly disguised as suicides (ibid.; VFF 12 Apr. 2013; IB Times 16

Jan. 2013), accidents (ibid.), or natural deaths (Human Rights Watch 18 July 2010; VFF 12 Apr. 2013; US 19 Apr. 2013). According to the Law Commission, some honour crimes are not reported due to fear of reprisals (India Aug. 2012, 5).

[57] On the issue of state protection, a professor cited in the CIRB report noted that there is no legislative provision specific to the issue of honour crimes and that they are addressed, if at all, through other legislation such as the Criminal Code, the Domestic Violence Act, the Caste Atrocities Act or the recently passed Rape Act. There had been some debate about passing legislation to specifically address honour crimes and outlaw caste panchayats (unelected caste councils with much authority at the local level), but nothing had been passed.

[58] As for the police response to honour crimes, the CIRB report states, at paragraph 3.2:

Several sources describe the police as ineffective in protecting people who fear becoming victims of honour crimes (AHRC 19 Apr. 2013; Professor 9 Apr. 2013; VFF 12 Apr. 2013). Sources indicate that the police are reluctant to register the complaints (AHRC 19 Apr. 2013; VFF 12 Apr. 2013) or carry out investigations (Human Rights Watch 18 July 2010). According to Shakti Vahini, the police do not enforce the laws and Supreme Court guidelines to protect runaway couples (n.d., Sec. 5), and “remain a mute witness to the crimes and seldom act against the offender” (Shakti Vahini 2013, 9). Describing the police in India as "riddled with corruption and nepotism," the interim executive director of the AHRC explained that the complaint will only be registered if the complainant is influential or has money (19 Apr. 2013). The Professor similarly stated that the police are influenced by money and power, and are “recalcitrant to take action against powerful families” (9 Apr. 2013). She noted that powerful families who are perpetrators of honour crimes are often released a couple of days after being arrested (Professor 9 Apr.

2013). This information could not be corroborated among the sources consulted by the Research Directorate.

...

According to Shakti Vahini and Human Rights Watch, family members of a runaway couple sometimes file false charges of kidnapping against the groom, and the police play a role in tracking down the couple (Shakti Vahini n.d., Sec. 5; Human Rights Watch 18 July 2010).

[59] Other country information provided by counsel supports this. For example,

Satnam Singh Deol “Honour killings in India: A study of the Punjab state” (2014)

3(6) International Research Journal of Social Sciences 7 at p10 observes that “Punjab is one of the states where there is very frequent occurrence of honour killings” and its prevalence is derived from the semi–tribal and patriarchal patterns of Punjabi society. Singh Deol goes on to note that, “traditionally, zarr (wealth),

zoroo (women) and zameen (land) are considered as three integral constituents of

honour in this region”. Most relevantly for present purposes, Singh Deol notes:

“Another form of honour-related violence, also resulting into honour killings, is the girl establishing romantic or sexual relationship with any boy and/or willing to marry with the boy of her own choice. The romantic or sexual relationship of the girl is also considered as an infringement of honour by the male family members of the girl and will not be tolerated.”

Application to the facts

[60] The Tribunal is satisfied that, were the husband and wife to return to their home city there is a real chance that the wife’s family will make good on their threat to kill them. The family has been willing to subject the wife to a range of conduct which clearly constitutes cruel, inhuman or degrading treatment for the purposes of Article 7 of the ICCPR. On at least one occasion, the wife’s father took active steps to burn her alive. This degree of abuse is indicative of the level of animosity her family showed towards the wife and, by extension, the husband for bringing, in their eyes, shame and dishonour on the family.

[61] The Tribunal notes that the 2012 Legislative Assembly list does not record that BB is currently a member of the Punjab Legislative Assembly in any relevant constituency. This was accepted by the appellants who agreed that at the time they left India, BB had been mired in a corruption scandal. However, CC was still active at a municipal level. Nevertheless, the Tribunal accepts the submission by counsel that, whether or not these people are politically active, this does not alter the fact that the family is politically connected to the ruling Bharatiya Janata Party (BJP Party) and, by this means, may be able to influence the local police to take no action against them or otherwise render null the effect of the protection order the appellants have obtained. Such a proposition cannot be dismissed as implausible having regard to the country information before the Tribunal.

[62] While noting that the wife’s family do not appear in the months preceding their departure from India to have taken any steps to make good their threats to harm them in the knowledge that their political connections would shield them from prosecution and punishment, the risk that they would seek to do so should the appellants return to their home city rises to the real chance level. The Tribunal therefore finds that the appellants do have a well-founded fear of being persecuted in the form of being arbitrarily deprived of their lives in breach of their rights under Article 6 of the ICCPR.

Is there a Convention reason for the persecution?

[63] In order to be recognised as a refugee, a claimant must establish not only a well-founded fear of being persecuted, but also that this predicament is linked to one of the five Convention grounds. As to the relevant standard, in Refugee Appeal No 72635 (6 September 2002) it was held at [173]:

“...it is sufficient for the refugee claimant to establish that the Convention ground is a contributing cause to the risk of “being persecuted”. It is not necessary for that cause to be the sole cause, main cause, direct cause, indirect cause or “but for” cause. It is enough that a Convention ground can be identified as being relevant to the cause of the risk of being persecuted. However, if the Convention ground is remote to the point of irrelevance, causation has not been established.”

[64] In this case, there wife’s predicament is being contributed to by her gender as a woman, which plainly constitutes a particular social group.

[65] Further, having married and embarked on a life of their own, the husband and wife can be regarded as a family, a fact underlined by the recent birth of their child. In Refugee Appeal No 76485 (19 June 2010) [80]-[83], the Refugee Status Appeals Authority adopted the House of Lords position in K v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, where Lord Hope at [45] stated:

“It is universally accepted that the family is a socially cognisable group in society... The ties that bind members of a family together, whether by blood or marriage, define the group. It is those ties that set it apart from the rest of society. Persecution of a person simply because he is a member of the same family as someone else is as arbitrary and capricious, and just as pernicious as persecution for reasons of race or religion. As a social group the family falls naturally into the category of cases to which the Refugee Convention extends its protection.”

[66] It seems to the Tribunal that the husband and wife are at risk precisely because they have together formed a family unit by marriage against the wishes of her family. It is the act of creation of this new family unit, outside of the bounds deemed acceptable by her family, which gives rise to the risk. For this reason, both the husband’s and wife’s predicaments are being contributed to by their membership of a family unit, itself a particular social group.

Internal Protection Alternative

[67] The ‘internal protection alternative’, known more usually by its acronym

‘IPA’, derives from the ‘surrogate’ nature of protection granted under the Refugee Convention, by which international protection is extended only where the claimant’s home state is unwilling or unable to protect him or her from anticipated persecution. The contemporary New Zealand approach to the IPA was fully

articulated in Refugee Appeal No 76044 (11 September 2008). As to the contours of what constitutes ‘meaningful’ domestic protection under an IPA analysis, the Authority stated at [178] :

“...the Authority affirms the “Hathaway/New Zealand rule”, namely that once a refugee claimant has established a well-founded fear of being persecuted for a Convention reason, recognition of that person as a Convention refugee can only be withheld if that person can genuinely access in his or her home country domestic protection which is meaningful. Such protection is to be understood as requiring:

(a) That the proposed internal protection alternative is accessible to the individual. This requires that the access be practical, safe and legal.

(b) That in the proposed site of internal protection there is no risk of being persecuted for a Convention reason.

(c) That in the proposed site of internal protection there are no new risks of being persecuted or of being exposed to other forms of serious harm or of refoulement.

(d) That in the proposed site of internal protection basic norms of civil, political and socio-economic rights will be provided by the State. In this inquiry reference is to be made to the human rights standards suggested by the Refugee Convention itself.”

Application to the facts

[68] In this case the appellants’ problems have been localised to their home city. There is no impediment to them relocating to a large metropolitan area such as Mumbai in terms of its safety, practicality and legality. Indeed, the husband’s occupation as a tailor would mean that he will be able to secure employment across India generally.

[69] As for the risk of being persecuted in the proposed IPA site, counsel submits that, while the political reach of the wife’s family was perhaps more limited than that in AV (India), nevertheless, her family remains politically connected to the ruling BJP party. Moreover, the risk to the appellants is of a more prosaic nature, namely, that it is inevitable that the husband’s mother would mention their whereabouts to friends of hers. No matter how discreet she intended to be, it was human nature to talk and that this would inevitably in the fullness of time find its way back to the wife’s relatives who lived in the neighbourhood. The appellants themselves stressed in their evidence that, because India is corrupt, it would be easy for her family to ascertain their whereabouts as a particular identity card is needed to access services and therefore her family will be able to readily access information as to their whereabouts.

[70] In the Tribunal’s view the risk to them in any IPA site is highly speculative. Clearly, the husband’s mother knows of the degree of animosity with which the wife’s family are approaching her own son and now her daughter-in-law. They will no doubt maintain a high level of discretion as to the information they impart.

[71] As for the leverage the wife’s family could bring to bear on third parties to ascertain the couple’s whereabouts, even accepting that her uncle is linked of the ruling BJP party in their home city, it appears limited. One of the people AA has acted for has been mired in a corruption scandal and has not been part of the Legislative Assembly for at least four years; the other is a municipal councillor. While the wife’s family’s status in the city means they may be able to influence the local police to turn a blind eye to the appellant’s predicament, there is nothing to establish that her family are of sufficient status so as to be able to influence the police at the national level. Further, in the Tribunal’s view, it is speculative that their influence is such that they would be able to track the appellants down using the police, identity cards or other administrative process no matter where they are living in India.

[72] Moreover, there is no indication that the wife’s family have sought to leverage their political connections in the dispute to date to try and prevent the marriage or to prevent her from leaving the country, even though they were aware of her plans to do so.

[73] For these reasons the Tribunal finds that it has not been established that the appellants would be at risk of being persecuted in a proposed site of internal protection alternative such as Mumbai or any other significant urban centre outside the Punjab state.

[74] Nor are there any new risks of being subjected to serious harm arising for either of the appellant’s in the proposed sites of internal protection. Furthermore, they will each be able to enjoy basic civil, political and socioeconomic rights.

[75] For these reasons the Tribunal finds that these appellants do have a viable internal protection alternative available to them.

Conclusion on Claim to Refugee Status

[76] For the above reasons, the appellants are not entitled to be recognised as refugees under section 129 of the Act

The Convention Against Torture

[77] Section 130(1) of the Act provides that:

“A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

[78] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is:

“... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[79] The appellants have provided no evidence to establish that they are at risk of being subjected to any act which would bring them into the scope of this definition or torture. Accordingly, based on the findings made in relation to the appellants’ refugee appeals, there are no substantial grounds for believing that either of the appellants are in danger of being subjected to torture in India such a to warrant the granting of protected person status under section 130 of the Act.

The ICCPR

[80] Section 131 of the Act provides that:

“(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

...

(6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.”

Assessment of the Claim under the ICCPR

[81] By virtue of section 131(5):

“(a) treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards:

(b) the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.”

[82] For the reasons set out above at [60]-[62], the Tribunal finds that, should the appellants be returned to their home city, there is a risk that they would be arbitrarily deprived of their life by the wife’s family in breach of their rights under Article 6 of the ICCPR. For the reasons given above, there is a risk that the political connections of her family have will be leveraged so as to reduce the effectiveness of the protection order they obtained from the High Court. Against this background, the Tribunal cannot be satisfied that the level of state protection available to them in their home city would be such as to reduce the risk of them being arbitrarily deprived of their life to below the ‘in danger of’ standard.

[83] This, however, is not the end of the inquiry The Immigration Act 2009 requires the Tribunal to consider whether or not the appellants are able to access meaningful protection in their country of nationality: see section 131(2). The application of this requirement was considered in detail in AC (Russia) [2012] NZIPT 800151. After considering the matter the Tribunal concluded:

[110] In order for the statutory test under section 131(2) to be satisfied it must be established that:

(a) The proposed site of internal protection is accessible to the individual. This requires that the access be practical, safe and legal;

(b) In the proposed site of internal protection there are no substantial grounds for believing that the appellant be will arbitrarily deprived of life or suffer cruel, inhuman or degrading treatment or punishment;

(c) In the proposed site of internal protection there are no new risks of being exposed to other forms of serious harm or of refoulement; and

(d) In the proposed site of internal protection basic civil, political and socio-economic rights will be provided by the State.

[84] This question of the appellants having access to meaningful domestic protection has been substantially addressed in relation to their claims for refugee status. For the reasons given there, the Tribunal is satisfied that the appellants can access meaningful domestic protection for the purposes of section 131(2). Neither of the appellants is therefore entitled to be recognised as protected persons under section 131 of the Act.

CONCLUSION

[85] For the foregoing reasons, the Tribunal finds that the appellants:

(a) are not refugees within the meaning of the Refugee Convention;

(b) are not protected persons within the meaning of the Convention

Against Torture;

(c) are not protected persons within the meaning of the Covenant on

Civil and Political Rights. [86] The appeals are dismissed.

Order as to Depersonalised Research Copy

[87] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellants’ names and any particulars likely to lead to the identification of the appellants.

“B L Burson”

B L Burson

_Member

Certified to be the Research

Copy released for publication.

B L Burson

Member