Persecution: The Core Basis for Seeking Refugee Status

- Arif Ahmed

Refugees-running-away

Published On - July 5, 2014 [Vol. 1, Jul - Dec, 2014]

Though there is no universally accepted definition of persecution and various attempts to formulate such a definition have met with little success, from a general point of view, persecution indicates such a repulsive behavioral attitude towards a person that undermines his or her physical or psychological quietude and even may sometimes cause to death of that person. Persecution refers to a systematic as well as chronic maltreatment to the mind or body of an individual or group of individuals by another individual or group. In the context of refugee law and from the view point of the provision of Article 33 of the 1951 Convention Relating to the Status of Refugees, persecution refers to infliction or threat to infliction of psychological or physical harm or harassment, fear or pain, isolation or imprisonment by which the fundamental human right of a person is severely infringed to subjugate or eliminate him or her for reasons of race, cast, religion, nationality and political opinion, place of birth or membership of a particular social group. Though there are naturally some overlaps among them, the instances of most common forms of persecution are political, religious and ethnic persecution. Even it is pertinent to mention here that all threat or infliction of suffering will not necessarily constitute persecution. In order to constitute a persecution or well-founded fear of persecution, the suffering or pain inflicted or experienced by the victim must be sufficiently severe in nature and must cause a significant harm to his body, mind, reputation or property.

From the definition of refugee provided by the 1951 Convention it is clear that, mere persecution per se is not enough to constitute the claim to seek the refugee status; rather a well-founded fear of persecution or infliction of harm is indispensible, as the term ‘fear’ has been qualified by the term ‘well-founded’.

Again it was argued by the Court in the case of Canada (Attorney General) v. Ward, 1993 that the test as to whether a state is unable to protect a national is bipartite: (1) The claimant must subjectively fear persecution; and (2) This fear must be well-founded in an objective sense. The applicant does not need to literally approach the state if it is reasonable for him or her not to have sought the protection of the home authorities. “In the context of an allegation of persecution by non-state agents, the word ‘persecution’ implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute.”There are several cases in this regard where the concept of persecution was properly clarified by the Courts. In the caseAl-Ghorbani v. Holder, 2009 persecution is defined as “the infliction of harm or suffering by the government or persons. The government is unwilling or unable to control or overcome a characteristic of the victim, because a critical element of persecution is motive and a petitioner “must provide some evidence of it, direct or circumstantial.”  In another caseKorablina v. Immigration and Naturalization Service, 1998 it was argued that persecution may be found by cumulative, specific instances of violence and harassment toward an individual and his or her family members. Again, it was held in the case of R v. Secretary of State for the Home Department, Ex parte Adan, Ex parte Aitseguer, 2001 that for the purposes of the 1951 Convention, persecution may be by bodies other than the state. Persecution is not limited to cases where a state carried out or tolerated the persecution; rather it encompasses instances where a state is unable to afford the necessary protection to its citizens.   In the case of Minister for Immigration and Multicultural Affairs v. Khawar, 2002 it was argued that, “where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.” In the case of Horvath v. Secretary of State for the Home Department, 2000 the following observation was made by the Court-

However, as per Article 1 A (2) of the 1951 Convention Relating to the Status of Refugees, persecution is the most important ground of becoming the refugee by a person which rightly observes that a person is a refugee who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country. From the definition of refugee provided by this Convention it is clear that, mere persecution per se is not enough to constitute the claim to be a refugee or to seek the refugee status. Rather a well-founded fear or apprehension of persecution or infliction of harm is indispensible in order to be a refugee, as the term ‘fear’ has been qualified by the term ‘well-founded’. This implies that there must be adequate facts on the ground to justify the notion of fear and the fear must be reasonable, exact and imminent, which might produce from a variety of circumstances.

People around the world have been persecuted as long as history and people in every corner of the world have been forced to flee the countries of their birth in search of safety from persecution, political violence and or armed conflict. From the time immemorial people have moved from their country of origin to another country for variety of reasons. Sometimes it is voluntary and sometimes it is not. During the liberation war 1971 the persecuted people of Bangladesh have sought refuge and taken shelter in India as there was a well-founded fear of being persecuted and killed by the military of Pakistan. The Muslim minorities of Myanmar have also been persecuted in Myanmar for many days and finding no way they have taken the shelter in Bangladesh. Moreover, the people of Iraq and Afghanistan have also become the victim of persecution by the US soldiers, leaved their country of origin and become the major part of refugees in the world. Thus the people all over the world are moving from their home country and taking shelter of another country for the fear of persecution.

There are also a number of cases in this regard decided by different Courts. In the case of R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined Appeals (UN High Commissioner for Refugees Intervening, 1988it was argued that, the requirement that an applicant for refugee status had to have a “well-founded” fear of persecution. In another case Immigration and Naturalization Service v. Cardoza-Fonseca , 1987 it was argued that, to show a “well-founded fear of persecution”, an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. Again, in the case Danian v. Secretary of State for the Home Department, 2000 it was argued that, an applicant who could establish that he had a well-founded fear of persecution on Convention grounds should fall under the scope of the inclusion clauses, irrespective of whether the actions giving rise to such a fear had been carried out in good or bad faith.

Membership of a particular social group or any political party may sometimes be a valid ground for seeking the status of refugee as has been mentioned in the definition of refugee under the 1951 Refugee Convention. In the case of Matter of Acosta, 1985 US Board of Immigration Appeals held that  persecution on account of ‘membership in a particular social group’ refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.In the famous case of David Hellman vs. Immigration Review Tribunal, 2000 David Hellman was a 17-year old US citizen whose parents were divorced and father migrated to Australia and became an Australian citizen while his mother remained in the USA. David came to Australia because he wanted to escape from his mother who was described as an enthusiastic follower of orthodox Jewish sect. He sought refugee status on the basis that he feared assaults and abuse, being forced to become a priest and being taken to a foster home. He also alleged that he might be harmed because of his knowledge of criminal conduct by member of his mother’s religious community. His application for refugee status was rejected by the Immigration Department. He filed an appeal to the Immigration Review Tribunal. The Tribunal found that David Hellman had a well-founded fear of persecution but not that was because of his membership of a particular social group. Persecution on account of a particular social group would have satisfied one of the criteria of the 1951 Refugee Convention. The Tribunal further held that being a member of the Hellman family and having beliefs different from those of his mother did not amount to the membership of a particular social group. Nor did the Tribunal accept that US authorities had failed to protect him. The Tribunal confirmed the decision of the Immigration Department. He thereafter lodged an appeal to the Federal Court. The Court could not find any error in the Tribunal’s reasoning and conclusions and rejected the appeal of David Hellman. In another reputed case Chan vs. the Minister of Immigration, 1989 Mr. Chan Yee Kin was a citizen of China and was a member of a faction of Red Guards which lost the struggle for control of that organization in his local area, who was questioned by police and was detained for two weeks in 1968. He tried to escape but was caught and received increasing period of detention. In 1974 he escaped to Macau and stowed away on a ship to Australia which he entered illegally in 1980. He applied for refugee status on 29th November 1982. He was refused the status of a refugee within the meaning of the 1951 Refugee Convention. He challenged the decision to the single judge of the Federal Court. The Court set aside the decision of the Immigration Department and referred to the Minister for consideration. The Minister appealed to the Full Federal Court against the decision. The Full Federal Court upheld the appeal. Mr. Chan went to the High Court against the decision of the Full Federal Court. The Court held that the definition of a refugee involved a mixed subjective and objective test. The Court inter alia held that the phrase “well-founded fear” of being persecuted had occasioned some difference of opinion in the interpretation of the definition of a refugee. There must be a state of fear of being persecuted and a basis “well-founded” for that fear. While there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.

In the case Turkish national vs. Minister of Interior of Austria, 1980 a Turkish national applied for asylum in Austria under its Asylum Act on the ground that he belonged to the Christian minority and he and his family were being persecuted by the Muslims in his country of origin. The application was refused. He made an appeal to the interior ministry which turned his appeal down. The ministry states that criminal activities against the applicant are not persecution and the applicant could have found safety from such criminal activities in other parts of Turkey. He lodged an appeal to the Higher Administrative Court against the decision. The Court dismissed the appeal holding that the applicant did not have well-founded fear of persecution within the meaning of 1951 Refugee Convention. The Court held that the well-founded fear of persecution existed only when on an objective basis it would become clear that the conditions concerning the grounds of persecution mentioned in the convention are such that a further stay of the claimant in the country of origin had been unbearable.

In the case Sri Lankan National vs. Immigration Appeal Board, 1984 a Sri Lankan Muslim Tamil alleged persecution at the hands of Sinhalese Buddhist ‘thugs’ who were members of the ethnic and religious majority in the area. During the period at issue, there were numerous ethnic clashes such as the riots in August 1977 when the Tamils of the area had to seek refuge in a mosque while their homes were looted and burned. The police allowed the rummage only becoming involved after the riot ran its course. The applicant believed that the police of Sinhalese origin aggravated the situation by being indifferent. Thereafter the applicant was threatened on a numerous occasions by a group of Sinhalese. He became a merchant seaman and spent two years in sea. Upon return the same group told him that they would kill him because he was indoctrinating the Tamils. He bribed his way to join another ship in Japan and he arrived in Vancouver (Canada) abroad a Greek ship from Russia, after which the crew would be returned to their countries of origin. He left the ship and applied for refugee status. The Immigration Appeal Board rejected his claim on the basis that civil war did not constitute persecution within the meaning of 1951 Convention. The applicant appealed to the federal Court of Appeal in Vancouver. The Court found that the applicant was able to establish his well-founded fear of persecution within the meaning of the definition of the Convention. The police did not offer any protection for his safety. While the police did not prosecute him their tacit approval of the violence against him supported his unwillingness to avail himself of police’s protection. The Court held that the applicant had met both the objective and subjective tests. The Court allowed the application, set aside the decision of the Immigration Board and referred the matter back to the Board to be dealt with in a manner not inconsistent with these reasons. From this case it can be inferred that persecution or fear of persecution on the basis of one ground race, religion, nationality, political opinion or membership of a particular social group is adequate to claim the status of a refugee. The applicant was not only persecuted because of his race but also because of his religion.

In the case of Somali National vs. the Commission for the Recognition of the Refugee Status, 1993 Mr. Hassan, a Somali national, travelled to Italy in October, 1991 to take military courses. In December of that year, upon learning of the rebellion taking place in his country against the govt., he applied for refugee status. Hassan claimed that he had a well-founded fear of persecution, as a military officer under the govt. armed forces. The Commission rejected Hassan’s application because he failed to state facts which would constitute a well-founded fear of persecution required under the 1951 Convention. Hassan appealed to the Regional Administrative Court. The Court held that the fear of possible persecution against a deserter, coupled with a desire for better living standards in Italy, did not established his claim as a refugee. The evidence showing necessary cause for establishing refugee status must be accurate and true and in the instant case the court did not find the facts convincing to reverse the earlier decision. The court rejected the appeal.

In the case Iraqi National vs. the Commissioner for the Recognition of the Refugee Status, 1993 the applicant Mr. Azmi is an Iraqi citizen of Kurdish origin. In 1983 he arrived in Italy intending to study in architecture in the University of Palermo. From the onset of the Gulf war on 15 January, 1991 he was unable to obtain financial assistance from her parents. His two brothers were being persecuted after their return to Iraq from abroad. Because of these events he applied for refugee status to the Commission which denied to him. He appealed to the Regional Administrative Court against the decision. It was argued that a reasonable reading of the evidence would demonstrate that his claim for refugee status was based on fear of persecution. The Court held that since the applicant never participated in any anti-govt. activity and lived peacefully in Italy, he would not likely to be persecuted. The Court upheld the Commission’s decision and rejected the appeal.

In the case Somali National vs. the Secretary of State, 1991 a Somali national belonging to Issaq clan enlisted in the army in 1981 in his country, deserted, and then fled to Libya through Djibouti. He remained at his father’s home in Libya and his passport was renewed both in Djibouti and in Libya. He fled to the Netherlands and requested refugee status in 1987 on the ground that he faced persecution in Somalia after 1988 because he belonged to Issaq clam. His request was rejected by the Secretary of State. He lodged an appeal to the Council of State. The Council upheld the decision of the Secretary of State on the ground that the applicant was not a political activist and it was unlikely that the govt. of Somalia considered him a political opponent simply because he deserted from the army. His passport was renewed without any incident by his govt. and his family suffered no persecution.

From the above discussion and case study it may rightly be observed that in order to seek the asylum or refugee status and eventually to be a refugee the claimant must have a well-founded fear or apprehension of persecution. If this definitional condition of seeking refugee status is not fulfilled by the applicant there is a probability of rejection of the application by the refuge state. Proof of sufficient fear is a must for granting the application by the host state.

About The Writer

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Arif Ahmed

Lecturer, Dept. of Law & Justice, Southeast University

lawarif73@yahoo.com

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