2 Agent of persecution
The position taken in New Zealand is that persecution demands neither state commission nor
complicity. Given that the absence of protection means that the state is failing to fulfil its duty to
defend the interests of its citizenry or protect citizens' basic needs, the involvement by state organs in
the projection or action of persecution is not a precondition to the recognition of persecution.
The Nagoya District Court in SMA v Minister of Justice took a different position:
… the plaintiff claims that his business did not go well because of his being an Ahmadi and that he was
required to vacate the store he rented [for the same reason]. However, providing the claims are true, both
are actions of customers or the landlord of the store. It is obvious that the government authorities are not
involved in the actions.
The decision implicitly suggested that an action committed by a state authority was a prerequisite
to the recognition of persecution.
Almost two and half years later, the same Court applied a slightly more liberal interpretation in
MAB v Minister of Justice:
… [To satisfy] the condition of 'wellfounded
fear of being persecuted' (of article 1 of the Convention),
actions taken by state authorities must be involved. If a fear of being attacked on account of religion by
individuals of one part of the people exists, it cannot be said immediately that the said condition exists.
Reasonably, there is room for explanation that the said condition may exist if the state authorities
condone attacks by individuals of one part of the people or refuse to provide victims with appropriate
protection. However, … [in the present case,] there is no precise evidence to the effect that the state
authorities condone [the claimed attacks] in general or refuse to provide the victims with appropriate
protection …
Yet, as the decision required applicants to provide proof of the ill intent of state authorities, it
effectively maintained the understanding that the inability of the state to provide protection is not
sufficient. The decision did not explain why this interpretation should be taken.