NZLII

New Zealand Refugee Status Appeals Authority


Refugee Appeal No 70764 [1998]  NZRSAA 232 (30 July 1998)

Last Updated: 26 May 2014

REFUGEE STATUS APPEALS AUTHORITY NEW ZEALAND

REFUGEE APPEAL NO. 70764/98

AT AUCKLAND

Before: S Joe (Chairperson) C Parker (Member)

Counsel for Appellant: J McLennan

Date of Hearing: 15 June 1998

Date of Decision: 30 July 1998


DECISION

This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service (RSB) declining the grant of refugee status to the appellant, a national of Sri Lanka.

INTRODUCTION

The appellant arrived in New Zealand on 12 April 1997 as member of the Sri Lankan national karate team to participate in a karate tournament being held in Auckland. Subsequently he filed an application for refugee status with the RSB on 18 April 1997. On 22 September 1997 the appellant was interviewed by the RSB in respect of this application. In a decision delivered on 7 January 1998, the RSB declined the application. On 21 January 1998, Mr McLennan of Woodroffe & Keil filed on the appellant’s behalf a notice of appeal against this decision with the Authority.

By letter dated 27 January 1998 the Secretariat of the Authority notified counsel that the appeal was set down for 10am on Monday, 4 May 1998. A numbered copy of the appellant’s file held by the Authority was enclosed with this letter.

Both counsel and the appellant initially appeared before the Authority on 4 May

1998. Due to the non-appearance of the interpreter assigned, and the inability of the Secretariat to arrange for another interpreter to attend at the hearing scheduled, the Authority adjourned the appeal hearing and directed that a further date be set down. The Authority requested that counsel be prepared to file three days prior to the re-set date supplementary submissions, further to the memorandum already filed, on the issue of relocation.

The appeal hearing was subsequently heard on 15 May 1998 and 16 June 1998. It is relevant to record that following the morning adjournment on the first day of the appeal hearing, counsel noted for the Authority’s attention that the appellant appeared to be having difficulty understanding the interpreter. The Authority explored this matter directly with the appellant, who informed the Authority that he found it difficult whenever English words were mixed up with Sinhalese words in a translation. However, the appellant agreed to proceed with his evidence on the basis that the interpreter would refrain, as best he could, from using English words in his translations. The appellant was instructed to immediately inform the Authority should he encounter any further problems in understanding the interpreter. It is appropriate to record that having proceeded on this basis, no further problems were raised by the appellant for the remainder of the proceeding. However, as the Authority had yet to complete hearing the appellant’s evidence, at the end of the first day of hearing, the appeal was adjourned part-heard until 16

June 1998.

At the commencement of the second day of the appeal hearing, the Authority received from counsel further submissions and a certified translation of an extract of a complaint filed by the appellant’s aunt with the N police. All submissions and documents submitted in support of the appellant’s claim have been considered by the Authority in determining this appeal.

THE APPELLANT’S CASE

The appellant is a young Sinhalese man of the Buddhist faith in his early 20s from N, in Kurenegala District in central Sri Lanka. From the age of seven years, the appellant began to learn karate. When the appellant was 14 or 15 years of age, he became a member of the International Shodogan Karate team, which was the national karate team in Sri Lanka. Through participating in inter-club competitions,

fighting in organised karate events to determine gradings, and sitting the required examinations, the appellant’s proficiency gradually improved. He achieved steady promotions in his grade and by the time he left Sri Lanka, had obtained a black- belt in karate. The appellant left Sri Lanka as member of the national Sri Lanka team which travelled to New Zealand to compete in a karate tournament held in Auckland. After the tournament, the appellant filed an application for refugee status. The following represents the basis of his refugee appeal claim as told to the Authority:

The appellant’s parents, brother and sister remain living in Sri Lanka, although their present whereabouts are unknown. Both of the appellant’s parents earn their living by farming leased land. His siblings are students.

The appellant’s father is a member of the United National Party (UNP) and worked as co-ordinator for the local UNP branch in N. In N, the majority of the population were UNP supporters. He also worked with Mr W, a UNP member and MP for Kurenegala District. The appellant recalled that four of his uncles supported the People’s Liberation Front, or Janatha Vimukthi Peramuna (JVP), and one supported the Sri Lanka Freedom Party (SLFP). The appellant has a large extended family, and therefore could not recall the political affiliations of his other uncles, beyond what he stated above.

The appellant lived with and was raised by his maternal grandmother from the age of five years. There, the appellant lived with his three uncles, two aunts and grandmother. Her house was located some six kilometres away from the appellant’s parents’ home.

It was not until around 1988, when the appellant was 13 years old, that he learned that one of his uncles, MB, was a member of the banned political party, the JVP. The appellant slept in the same room as his uncle, and noticed one day that his uncle had JVP posters in his room, and that he often went out of the house at night through the bedroom window.

One evening, again in 1988, the appellant accompanied his uncle on an outing and was invited to join him at a meeting with other JVP members. The appellant discovered that his uncle MB was, in fact, leader of the JVP chapter in N. The appellant agreed, and later became involved in JVP activities, putting up JVP posters in the street or handing them to others in adjoining villages for distribution.

The appellant also attended JVP meetings and learned more about the JVP and its activities by attending ‘classes’ held in the evenings at the local school. These classes were held sometimes once a month, or two to three times a fortnight, depending on the quantity of JVP posters requiring distribution. From time to time the JVP also held karate lessons at the school, and it was through these classes that the appellant developed his interest in taking up the sport of karate. He often practised his karate at these sessions. It was the appellant’s evidence that the JVP organised karate lessons so that its members would learn how to escape from the police and avoid being apprehended.

The appellant’s activities with the JVP were never discovered by the Sri Lankan authorities. However, around May 1988, when the appellant and his uncle, MB, were at home, three plainclothes policemen came to the house to arrest MB and took him to Ko station. The appellant was assured by his uncle that he would return, before being taken away. Subsequently, later that the evening, MB returned home. The appellant was never told by his uncle what happened to him while in police detention.

Despite this, his uncle MB continued his JVP activities until July 1988, when he was arrested by the police for a second time. On this occasion, MB had gone out and was reading a newspaper in a shop, when he was arrested by the police. When he did not return home, the appellant’s grandmother made enquiries with the police, firstly in N, some three and a half miles away from the village, and later at Ko, about 20 to 24 miles away. The police at Ko told the appellant’s grandmother that they did not know anything about MB, but noted his profile as a member of the JVP. The appellant alleged that no action was taken by the police at Ko, recording the grandmother’s report of MB’s disappearance. Similar efforts to ascertain his whereabouts with the police in N, were also unsuccessful.

Following his arrest by the Ko police, and because the police had received a call to another village, B, MB was required to accompany the Ko police to that village. There, the police questioned him about his connection with the JVP, and whether or not he knew the JVP ‘set-up’. MB was assaulted by police in the course of his interrogation and hit with fencing timber. The uncle fainted, and when he regained consciousness found that he was being detained in B prison. While the uncle was in detention, other JVP members had got together and organised a break-in of the prison to help MB escape. Subsequently he escaped prison and made his way back to the appellant’s grandmother’s home. MB’s escape was subsequently

reported on the radio.

After police came to the appellant’s grandmother’s house to make enquiries as to MB’s whereabouts, the appellant’s parents took the appellant back home to live with them. Between one and three weeks after MB escaped from prison, (the appellant cannot remember which), the appellant’s father was arrested by the N police and taken to a military camp. He was taken to a dark room, where he was hung upside down and assaulted, and had pins inserted into his nails by drunken soldiers. He was confronted with a list of names of suspected JVP supporters or members and asked to identify anyone that he knew on the list. The appellant’s father acknowledged, without saying more, that three of those named in that list were his two brothers and also the appellant, and that both were from his village, as specified and that the appellant was only a school boy. He was released after some two weeks through the intervention of W, the MP and member of the UNP for whom the father worked. The father was released but told by the police to hand the appellant in and that if he did not, the appellant would be shot.

Approximately one week after his release, the appellant’s father arranged for the appellant to live with a friend at the local temple. The appellant remained living at the temple, receiving frequent visits from his mother, and occasionally his father. He continued his studies by attending the nearby school. A week after moving to the temple, the appellant’s father was visited by the police once again, enquiring about the appellant’s whereabouts and that of other relatives belonging to the JVP.

It was not until December 1988, some six months after his arrest, that MB returned to N, seeking shelter at the appellant’s parents’ home. In the two to three months that followed, MB stayed at their home for part of the time, and at other times hid in the nearby jungle, returning to the house only for meals.

It was also around this time that the message was put out by the authorities that members or people associated with the JVP should surrender to the army and police. It was the appellant’s evidence that his father had advised MB to turn himself in to the authorities, but he refused to do so. There were stories of youths being caught by the police and burnt on the roads. Therefore, none of MB’s other relatives surrendered him over to the police, fearing that if they did so, that he would be killed. Some of the appellant’s male relatives were detained and questioned by the police about MB and all, the appellant claimed, were maltreated. Between 1988 and mid 1989, one of the appellant’s paternal uncles received a

shot to his leg. The appellant’s maternal uncle, BMS, and paternal uncle, BMK, were both arrested on the same day and detained for some three to four weeks by the police. They were released only through the assistance of influential friends, who “knew the police well”. BMK became partially crippled as a result of the police maltreatment.

Although the appellant cannot remember the dates, he claimed that another two of his uncles went missing around 1989. One of his uncles was arrested by the police during a round-up of JVP members. K, who was in the business of cultivating chilli, had been arrested by an undercover policeman posing as a purchaser of chillies. His other uncle, CM, had gone out one day and never returned, and was presumed to have disappeared at the hands of the police.

Despite his being wanted by the police, MB continued his involvement with the JVP. The appellant similarly continued helping his uncle put up JVP posters for a month or so, believing that the JVP was “the truth” and helped rid the gap between the rich and poor.

At around 2pm on 20 August 1989, the police and military surrounded and torched eleven houses in the village, including that of the appellant’s parents and grandmother. The appellant’s parents subsequently sought shelter with friends and relatives in N, and also stayed temporarily at the priest’s lodgings at the temple. The appellant’s grandmother, who was home alone at the time, was not so fortunate. She was shot dead outside her home and her home was torched. The appellant, who was living at the temple at the time, stated that he learned what had happened from friends and children from his village who had witnessed these events.

The police subsequently refused to allow anyone to approach the house to remove his grandmother’s body for two days while they remained stationed outside her home. Reports from villagers reached the appellant to the effect that men, thought to be plain-clothes policemen, remained in hiding outside the grandmother’s house, in anticipation that MB would appear. The appellant claimed that his grandmother’s daughter, D, tried to retrieve his grandmother’s body, and attempted to approach the site, carrying her baby with her. D did so, expecting that by carrying her baby, the police would let her pass, but instead was forced to retreat after the police threatened to shoot her baby. After two days, the appellant’s grandmother’s body was removed by the authorities and taken to the

hospital. The appellant stated that his family were afraid to go to the hospital to claim his grandmother’s body for fear of being apprehended by the police. The appellant did not know whether his grandmother was subsequently buried or cremated by the Sri Lankan authorities. In support of his claim, the appellant submitted to the RSB a copy of his grandmother’s death certificate, which certifies that her death occurred on 19 September 1989 due to gun-shot injuries to her chest.

Around mid-1989, the appellant received news from another JVP member who had witnessed the incident, that his uncle MB had also been shot dead by the police, and his body was paraded in a police jeep driving through the streets leading to the temple in town. However, the appellant claimed that the exact circumstances of his being located by the police were not made known to him until

1990 or 1992. Only then was he able to piece together the various accounts from family members, neighbours and other on-lookers and know what had, in fact, occurred. From these accounts, the appellant learned that his uncle MB had been near a small tank or lake posing as a fisherman in the area, when someone had informed the police of his location. The police surrounded the area and shot MB.

It was the appellant’s evidence also that the police never formally notified the family of his uncle’s death, although the fact that the police had refrained from enquiring about his whereabouts after his death merely confirmed that he had been killed by them. His family members were not further troubled by the police following the uncle’s death.

According to the appellant, by the end of 1989, the success of the operations carried out by armed forces in the villages resulted in the disappearances of many youths and the military’s capture of the then JVP leader meant that less JVP political activities were carried out. By implication, therefore, the JVP encountered less ‘problems’ with the Sri Lankan authorities. The appellant claimed that he temporarily ceased any further political activity following his uncle’s (MB) death. However, the appellant claimed that “it was boiling in [my] mind to take revenge, but didn’t have the power to do anything”. The appellant continued with his studies and lived at the temple until December 1992, when he joined his parents living in temporary accommodation constructed using palm-leaves.

Following the assassination of President Premadasa on 1 May 1993, the situation became more tense, as JVP members were targeted once again by the police and military. Suspected JVP members were shot, killed or burned with tyres and their homes were torched. In 1994, although the JVP contested the Presidential elections the appellant did not have any involvement with the JVP either prior to or at these elections.

The appellant resumed his involvement with the JVP from the beginning of 1997 until general elections, which the JVP were contesting, were held on 21 March

1997. The appellant claimed that he worked day and night in the three months leading up to the elections. One of the JVP members, N, had been elected as the JVP candidate for the appellant’s local area. The appellant therefore became involved in promoting N’s candidacy by putting up posters, attending meetings and generally raising the profile of the JVP. When the appellant distributed JVP pamphlets on a door-to-door basis, he was often scolded by residents who opposed the JVP. At other times, he would be confronted by UNP members who sought to prevent him from approaching houses. One MP had publicly announced that the appellant and other youth supporters of the JVP should be stopped from carrying out such activities.

On the day of the election, the appellant represented the JVP and joined two other party representatives, one from the UNP and another from the SLFP, at the polling booth situated at the local school. They were charged with the task of monitoring the elections and identifying any irregularities in the voting at that polling station. Anyone suspected of casting their vote twice or otherwise suspected of foul play was to be handed to the two policemen who were stationed outside the school building. The appellant identified 12 such persons, all UNP supporters, who had cast votes in the names of people who had since left the country.

Around 3pm on election day, the appellant heard that a member of the United Sri Lanka Freedom Party, named K, had been shot dead outside the front gate of the school while canvassing for UNP votes.

K had been leader of the United Sri Lankan Freedom Party and the appellant had been involved in verbal confrontations with K during the election campaign, due to K’s supporters shouting slogans against both the government and the JVP.

The appellant, who was inside the building and a considerable distance away, had

not seen the shooting but was aware that the two policemen on patrol had called for more police assistance. After some 45 minutes, the appellant went outside to see what was happening and saw both UNP and JVP supporters gathered outside. The appellant remained and talked to the supporters outside, when further policemen arrived on the scene and he then heard gunfire. Subsequently police made enquiries of the people outside, questioning them (including the appellant) one by one. The appellant then continued to monitor the voting inside the school building until the polling was closed at 4pm, following which time he returned home.

At around 6pm, the appellant received a visit from the police who required him to accompany them to the station for enquiries. The appellant was refused bail and placed in remand and questioned by police about his knowledge of what had happened in relation to the shooting. The police alleged that the appellant had either used illegal firearms himself to kill K, or that he had given them to someone else to do so. The appellant claimed that some of the policemen at N, had previously been stationed at Ko, and therefore were aware that he and his uncle MB had previously been wanted for their involvement with the JVP.

The appellant denied having any connection with K’s death, and also denied possessing any arms. The appellant was made to sit on a chair with his hands tied behind his back with his head raised. He was held by the neck and interrogated as he was beaten with batons that were applied to his legs, hands and body. The appellant accused the police of trying to take revenge on him for his earlier JVP activities and told them that they no longer had the authority to commit the kinds of atrocities they had done in the past. The police responded by assaulting the appellant further, and swearing at him. The appellant was told that the government would not lie down to the opposition and that persons such as the appellant would be killed. The appellant was released at 6pm the following evening.

It was also the appellant’s evidence that two other JVP members were also arrested the day after the appellant’s arrest (and while the appellant was still held in custody). They were similarly questioned in relation to K’s death and released some two to three days later.

On 21 March 1997, the appellant responded to a knock on his door. The appellant had been expecting his friends and supporters to come to his home before leaving

together to hear the election results, but instead was confronted by five men, who pushed him back inside the house. The appellant did not recognise any of these men, as it was too dark. The appellant fell down and tried to fend off his attackers, sustaining an injury to his neck, before running outside.

The appellant fled to his friend’s house, approximately 12 miles away from his home. It was only later, when the appellant was in contact with his uncle, that he learned that in his absence his sister had been raped. His mother and younger brother were also assaulted but suffered no injuries, and the family home was burned down. Although this incident was reported by the appellant’s father to the police, no investigation was carried out. The family subsequently stayed with the appellant’s paternal grandfather. Other villagers who were supporters of the UNP and United Sri Lanka Freedom Party were attacked in a similar manner. Although the perpetrators behind these attacks were never discovered, the appellant believes that they were instigated by men belonging to a gang of Mr D, one of the MP’s belonging to the ruling party, the United Sri Lankan Freedom Party.

In view of what had happened, the appellant decided to avoid any further contact with his family and continued to live in hiding with his friend until 9 April 1997. The appellant decided to leave Sri Lanka, having realised that identity checks were frequently carried out, and he could be apprehended by the police. Coincidentally, the appellant was able to leave Sri Lanka for New Zealand as part of a Sri Lankan karate team, arriving in this country on 12 April 1997.

The appellant submitted two letters which he received from his father, dated 23

May 1997 and 10 August 1997 respectively. In his letter of 23 May 1997, the appellant’s father details that recently the police came looking for the appellant and did not believe he had left Sri Lanka. The police are said to have insisted that the appellant was responsible for the killing of K because he was not living in the village. The appellant’s father also expressed a fear of what “K’s cohorts” would do to the family. In his subsequent letter, dated 10 August 1997, the appellant’s father advised the appellant that his mother is having nightmares, and while the police had made no further visits, K’s cohorts were awaiting his return to the village. He also claimed that the government was now collecting data on JVP members’ families. Enclosed with this letter was a photograph of the appellant’s paternal uncle, DMH, also a member of the JVP, who was shot by the police in the leg in 1997 and before the appellant’s house was torched.

The appellant fears that if he returned to his home village in Sri Lanka, his “old connections” would be resurrected and he may again be accused by the police of being involved in K’s murder. The appellant similarly feared that he would be attacked by K’s relatives who may seek to take revenge against him for allegedly killing K. Finally, the appellant feared that he would be harmed by the gang of thugs of the MP, Mr D, whom he believed had been responsible for the attack made on his family’s home and rape of his sister. The appellant said that he wished to live with his relatives and friends in Sri Lanka peacefully without any problems, but in the circumstances, feared that he could not do so.

THE ISSUES

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 (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?

ASSESSMENT OF THE APPELLANT’S CASE

Before determining the issues as framed, we address first the issue of the appellant’s credibility. The Authority has carefully considered the appellant’s evidence and reached the conclusion that the appellant’s account is entirely lacking in credibility. Our reasons are as set out below:

1. The appellant’s knowledge of the JVP appeared limited, and was not consistent with that of a person who, it was alleged, had been involved in the JVP since he was 13 years of age, had attended JVP classes on a

regular basis and who had campaigned actively for the JVP in the 21 March

1997 elections. When asked what to explain the aims of the JVP, the appellant merely stated that the JVP were there to stand up for the poor, the lack of schooling for the poor and lack of road maintenance in “poor areas”. In re-examination by counsel, the appellant failed to provide any more knowledgeable account. When he was first asked by counsel to explain the policies and politics of the JVP, the appellant asked for the question to be repeated, paused for a lengthy period, then simply responded by saying that the aim of the JVP was to work for the people. When asked to expand on this answer, the appellant avoided answering the question, stating only that the JVP had contested elections when the UNP was in power, and that the JVP had disbanded and was banned. Counsel’s further attempt at eliciting a response by asking which JVP policies the appellant liked did not progress the matter much further. The appellant stated that when he first joined as a child he did not know much of the JVP activities, but by 1997, he supported the JVP because their policies were “good”. Only then did the appellant state that the JVP had a policy of promoting equality between the rich and the poor.

The appellant’s evidence on the simple matter of his JVP involvement following his uncle’s death was also evasive. The appellant stated that after MB’s death, while the JVP was not very active, he continued to carry out some activities, albeit secretly and unnoticed. When asked what kind of activities these were, the appellant denied having carried out any such activities, despite being reminded of his earlier evidence to the contrary. The appellant claimed that he had not done any JVP work, and that from the time he went to live in the temple, he had not had any connection with the JVP. The appellant then gave evidence that while the Party did contest the 1994 elections, “there wasn’t much done and [the appellant] did not do much. Only one meeting at town where the JVP organised and the supporters went and attended, and nothing much done at or before the election.” When asked what he did, in fact, do, the appellant avoided responding directly to the question and stated that while the JVP had had a meeting prior to the elections, he felt it was unsafe to attend. When asked once again whether he had had any involvement in the JVP from the time his uncle died until 1997, the appellant replied “Yes I had connections”. When asked what these “connections” were, the appellant was once again non-committal in his responses to the question at hand and when pressed

further, replied that he had not been involved in JVP activities during the period specified.

2. In support of his claim, the appellant submitted a copy of an extract of the complaint made by MB’s sister seeking compensation for her brother’s disappearance. The copy of this extract, dated 26 October 1996, was purportedly obtained from the complaints register held by the N police. The relevant portion of the complaint statement reads as follows (verbatim):

“[...] One day some unknown persons, saying they were from Ko Police, came and took my brother away ina jeep. After some time they brought him back home.

After the incident, my brother lived without problems for about 2 months. One evening in July 1988 (I cannot recall the exact date) he went to the Ke Bazaar to read the newspaper. My mother was waiting for him until late that night, but my brother did not come back from home. We have not heard from him from the day of his disappearance up to the present. We have not informed the Police about this until now. As he has not contacted us since the day of his disappearance, I believe that he is not alive. I therefore make this complaint in order to seek compensation for my brother on advice of N Regional Secretary. That is all I have to say.”

When put, it was acknowledged by the appellant that the statement made by MB’s sister contradicted the evidence he gave regarding his uncle’s problems, both in his written statement and that given before the Authority. This included the appellant’s evidence that at the material time MB’s sister’s claim for compensation had been lodged, his family would already have known that his uncle had been killed by the police. Therefore the issue was raised as to why a such a report be filed in respect of someone who was known to have already deceased. Further, the appellant had alleged that his uncle made contact with his family following his escape from prison, whereas MB’s sister states that they had not heard from MB since his disappearance (i.e. July 1988 arrest). Further, the appellant claimed his mother approached the police at both the Ko and N police stations in an effort to locate MB, whereas MB’s sister states that the police had not been informed of MB’s disappearance as at the date of the complaint statement, namely 26 October 1996. The appellant attempted to resolve all of these inconsistencies by claiming that MB’s sister’s statement was given purely with a view to secure some compensation for MB’s problems, and that had she told the police the truth, (namely that MB had made contact following his escape from prison and had subsequently been killed), she herself would have been accused by the police of being a party to his (MB’s)

escape. Yet the appellant could give no satisfactory explanation as to why the sister would file a complaint and seek compensation over this matter when, according to the appellant’s earlier evidence before the Authority, his uncle’s capture and subsequent death at the hands of the police was well known and that the police had themselves, in fact, paraded MB’s body in a jeep around town.

3. The appellant has also given contradictory evidence as to the circumstances of his grandmother’s death. Before the Authority, the appellant alleged that his grandmother was shot dead and that her house was torched by police and military personnel in August 1989. He proceeded to give a dramatic account of the police and military subsequently refusing to allow anyone access to his grandmother’s body for some two days, while they continued to “stake-out” the surrounding area in an effort to locate MB. Indeed, even the grandmother’s daughter, who was carrying her baby with her at the time, was prevented from approaching her mother’s (i.e. the appellant’s grandmother’s) corpse and was threatened by the police that if she continued further, that her child would be shot. The corpse was subsequently taken, (by whom the appellant did not know), to the hospital mortuary and buried in the family’s absence.

None of this evidence, however, featured in the appellant’s interview with the RSB or in his supporting written statement. Initially the appellant claimed that this was due to the fact that his statement was written “in brief” and that because he did not know English, wrote everything in Sinhalese in abbreviated form. He further claimed that had he known English, however, he would have given a more detailed account. As for the RSB interview, the appellant claimed that he was told only to provide brief answers and therefore did not give a detailed account. It was put to the appellant that Ms Keil, his representative, under cover of her letter of 6 October 1997, gave a lengthy response to the RSB clarifying aspects of the RSB interview record, yet nowhere in that response did his evidence, as told to the Authority, feature. The appellant could only respond by saying that he was happy with his appeal hearing and that he had answered the Authority’s questions to the best of his knowledge.

4. There were also marked discrepancies in the appellant’s account of the circumstances of his uncle’s (MB’s) death. It was the appellant’s initial

claim that his uncle had been posing as a fisherman when someone informed the police of his whereabouts and it was in these circumstances that he was located, surrounded and shot by the police. Yet in his written statement and RSB interview, the appellant states that his uncle MB was killed on his way to the appellant’s grandmother’s funeral. However, he told the Authority that his grandmother had no funeral. When asked to account for this discrepancy, the appellant became evasive and contradictory. When it was put to the appellant that he had said in his statement and in his RSB interview that his uncle was killed on the way to his grandmother’s funeral, the appellant said that when his uncle heard about his grandmother’s death he wanted to find out what was happening and it was then that he was shot. The appellant then claimed to get upset whenever he thought about this. The appellant claimed that there may have been a mistake in the translation of his statement. However this did not account for the same version being given to the RSB.

When reminded that his RSB interview record showed that he had similarly given the same contradictory evidence as that contained in his written statement, the appellant maintained that he was being truthful, that the RSB officer had told him to answer only by saying “yes” or “no”, and therefore “sometimes they (i.e. the RSB) may have asked me if my uncle was shot [in that manner] and I may have said yes”. Finally, when asked why he told the Authority that his uncle was shot while posing as a fisherman, the appellant revised his evidence still further. This time, the appellant claimed that while his uncle had posed as a fisherman, someone may have alerted the police to the fact he was going to the village to enquire about the grandmother’s death and that this resulted in his being located and shot.

The Authority further finds it implausible that the appellant should only ascertain in 1990 or 1992, the appellant could not remember which, the full details of the circumstances of his uncle’s (MB) death. It is implausible that it would have taken between some one to four years for the appellant to find out the circumstances of his uncle’s death. His suggestion that he did not know whether his relatives had learned of the circumstances of death at an earlier juncture was fanciful, as they would surely have communicated this information to the appellant had they known. Given our findings on the lack of credibility of the appellant’s uncle’s arrest, escape from custody and death at the hands of the police, the Authority does not accept either that

the appellant’s family members were also arrested by police in an effort to discover MB’s whereabouts.

5. Nor is the Authority willing to accept the appellant’s account of his being arrested and detained in March 1997 as a result of K’s shooting. The appellant frequently changed his evidence as to the motivations behind his being arrested, and whenever apparent inconsistencies in his evidence were identified by the Authority, he appeared to be making up his answers as he went along.

For example, it was the appellant’s evidence that the police had believed that he had either shot K himself or been involved in arranging that he be killed, and that this was evident from the line of questioning adopted by the police. It was put to the appellant that it was surprising that the appellant would be suspected of having shot K, particularly given his evidence that he was inside the polling station at the time the incident occurred, and that two policemen were stationed outside. The appellant stated that while the police may have known that he was inside the polling station, he was nevertheless accused of having killed K. It was at this time that the appellant introduced new evidence suggesting that he had been implicated in the shooting due to the work of D, (the UNP member and MP for that district) who, it was alleged, had wanted to get rid of him because of the support he had engendered for the JVP and due to his work against the UNP, having caught some of its supporters at the election in voting irregularities. The appellant then alleged that his friends and associates had heard UNP supporters talking about him in this way, and the fact that he had been refused bail served to reinforce his suspicions that D had wielded some influence in his case. He alleged that the police were trying to “trap” him with the murder and “with that idea they did not go in any other direction”.

It was put to the appellant that being detained for 24 hours to investigate such a serious offence as murder was not particularly excessive. The appellant then claimed, however, that he had been detained more than the

24 hours allowed, but could not explain to the Authority how this could have been so, given his evidence that he had been detained from 6pm to 6pm the following day. The appellant then remarkably claimed that he could not calculate whether this amounted to a 24-hour day.

It was further put to the appellant that he had earlier stated that two other JVP members had also been arrested and detained by the police in relation to the investigation of K’s shooting and therefore his allegation that the police looked no further than he, could not be correct. At this, the appellant sought to revise his evidence claiming that he had not known whether or not two JVP members were arrested in relation to this matter or not, as the police tried to involve JVP members in any murder investigations. When pressed further, the appellant claimed that while the police had detained the two other JVP members for questioning, he had not known whether or not they had been released as they had been detained in different rooms from him. This was at variance with the appellant’s earlier evidence that the two JVP members had been arrested a “day or two after” he had, and that they had been detained for two to three days before being released. It was, therefore, put to the appellant that his assertion that he could not know what had happened to the JVP members given that they had been detained in different rooms to him was redundant, as by this time he would already have been released.

The appellant denied his previous evidence as to the timing of the two other JVP members’ arrests, and alleged that he may have mistakenly told the Authority that they had been arrested two days after he, when he had meant to say that they were released after two days. He then claimed that they were arrested on the morning of the day after his arrest, although he did not know what time. When asked how he knew this had occurred in the “morning” of the following day, the appellant initially did not answer the question directly, instead giving a lengthy response on what happened to him after his house was attacked.

In summary, the appellant’s evidence was, at times, evasive and inconsistent and his demeanour as noted was poor. His evidence on material issues were characterised by numerous discrepancies, and when he attempted to provide the Authority with explanations, this frequently gave rise to still further inconsistencies in his evidence. For the reasons stated above, the Authority finds the appellant’s account to be entirely lacking in credibility, and can accordingly place no weight on the documents submitted in support of his claim.

CONCLUSION

For the reasons given, the Authority finds the appellant’s account to be entirely lacking in credibility. Accordingly, the Authority finds the appellant is not a refugee within the meaning of Article 1(A)2 of the Refugee Convention. Refugee status is declined. The appeal is dismissed.


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Chairperson