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Tag: PoliticalOpinion

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Refugee Appeal No. 76374

Date: 28 October 2009

Court: New Zealand Refugee Status Appeals Authority

Citation: Refugee Appeal No. 76374

Short summary  

A refugee applicant from Burma claimed to have a well-founded fear of persecution by her home government because of her involvement with groups adverse to the government’s interests and aiding cyclone victims. She was granted asylum in part due to her disaster relief assistance activity. 

Summary by: Lucas Robinson

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision holds moderate weight in New Zealand with respect to cases in which an individual is persecuted for their political opinion as expressed via assistance following a climate disaster.  

Key facts 

The applicant was a woman from Rangoon/Yangon, Burma/Myanmar with children. She was a self-employed businesswoman until she went to New Zealand. While in her home country, the applicant became part of the pro-democracy movement. She helped Buddhist monks communicate about the situation in Burma during the late 90s into the 2000s. She would arrange the meetings and help the monks get to the location of the meetings. The applicant was also tasked with exchanging money on the black market multiple times.  

When Burma was hit by Tropical Cyclone Nargis in 2008, the applicant had to get more money from the black market to buy food rations and other disaster relief materials. The applicant assisted in distributing the disaster relief materials. 

The applicant moved to New Zealand in late 2008 and began speaking with family through videochat. While in New Zealand, associates of the applicant were arrested and given harsh sentences for their political activities. Also, while taking to her sister on video-chat, the applicant learned the government was arresting people who helped with disaster relief and that the government was inquiring about her.  

Previous instances

 The applicant was denied refugee status at her initial hearing because of a lack of well-founded fear of persecution. 

Summary of holding

The main issues presented were: Does the appellant-applicant have a well-founded fear of being persecuted? And, if so, is that fear recognized under the Refugee Convention?  

The appeals court found that the applicant had a well-founded fear of persecution because of the documented unjust punishments of other members of groups she belonged to. In particular, the government’s demonstrated interest in the applicant, and the likelihood she would suffer an unjust arrest and punishment if returned home, constituted this well-founded fear. Further, the court found that the applicant’s political opinion – one ground for relief under the Convention – encompassed her actions in aiding disaster relief efforts. As such, the applicant was granted refugee status.

By failing to take all these factors into consideration, the Prefect disregarded Provision 11 in its decision to deport Mr. Sheel.  

Potential takeaways for future climate migration litigation 

  • This case involves an individual who feared return to her home because of state persecution of individuals who assisted in disaster relief. It therefore shows how a government’s response, or lack thereof, to a natural disaster can indirectly trigger a ground for refugee protection. 
  • The Burmese government actively rejected support from outside entities for disaster relief after the cyclone. The government then began to punish those who tried to provide disaster assistance themselves, opening the door for claims of political opinion persecution in the context of climate disasters.  
  • The appeals court did not address whether suffering from the cyclone itself, and the government’s lack of adequate response, might constitute persecution, but, as in other cases in the region, the answer likely would have been no under the Refugee Convention.  
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Ontunez Tursios v. Ashcroft

Date: 13 August 2002

Court: United States Court of Appeals, Fifth Circuit

Citation: 303 F.3d 341 (5th Cir. 2002)

Short summary 

A Honduran man, fleeing targeted violence stemming from a land dispute and exacerbated by hurricane damage, was denied refugee status in the United States for failing to establish a nexus between his persecution and the grounds for asylum.

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision is a binding part of the asylum case law developed in the Fifth Circuit (Louisiana, Mississippi, and Texas) and may be persuasive in other jurisdictions in the United States. 

Key facts

The applicant for asylum, Mr. Ontunez-Tursios, moved to the town of La Ceiba in 1994 and joined other campesinos in cultivating a piece of coastal land known as Las Delicias. In 1996, a group of businessmen, wishing to sell Las Delicias to Korean investors, challenged the campesinos possession of the land, unleashing a campaign of violence and intimidation against them, during which at least two campesinos were assassinated. Mr. Ontunez-Tursios found out he was on a hit list and, after being directly threatened several times, fled to the United States, where he applied for asylum in October 1999.

During this violent dispute over land possession, in October 1998 Hurricane Mitch devastated Honduras, including Las Delicias. The storm ruined Mr. Ontunez-Tursios’ land as well as key documentary evidence against the businessmen pursuing him and the other campesinos.

Previous instances

The immigration judge who first heard Mr. Ontunez-Tursios’ case denied him refugee status because his claim did not arise on account of the enumerated grounds for persecution. The Board of Immigration Appeals (BIA) agreed that he failed to show a nexus between his persecution and either his race, religion, nationality, membership in a particular social group, or political opinion, leading to this appeal before the Fifth Circuit.

Summary of holding

In a 2-1 panel decision, the Fifth Circuit affirmed the rulings below, finding that the BIA correctly dismissed Mr. Ontunez-Tursios’ contention that his leadership in the land conflict did not constitute a political opinion or membership in the particular social group of “land rights leaders”. Stripping away the context of land struggle and the impacts of Hurricane Mitch, the court held that his “evidence showed no motive of the persecutors other than a private, economic one.” The court further found that Mr. Ontunez-Tursios did not qualify for withholding of removal because he was at no risk of torture in his home country, and that the Honduran government had not implicitly or explicitly acquiesced to his persecution or torture.

Potential takeaways for future climate migration litigation

  • Increasingly, claims for asylum and other humanitarian protections will have to be considered in the context of climate change. The devastation wrought by Hurricane Mitch in Honduras provides an early example of how an already difficult situation – a violent battle over valuable land between the upper and lower classes in a society – is made worse following disasters. Advocates for climate migrants should note how fights over land and other forms of social violence intermix with a changing climate, including through slow-onset shifts in conditions.
  • As in other cases in jurisdictions around the world, the harm from the climate disaster itself – destruction of land and evidentiary documents – had no bearing on Mr. Ontunez-Tursios’ unsuccessful claim for asylum, even as it exacerbated his vulnerability in his home country.
  • Under United States law, the nexus prong – that persecution must be “on account of” one of the five grounds first laid out in the 1951 Refugee Convention – is often narrowly construed, such that even clear instances of persecutory violence, whether or not connected to climate change, do not qualify even sympathetic applicants such as Mr. Ontunez-Tursios for refugee status.
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