Refugee Status Appeals Authority
REFUGEE APPEAL NO. 11/92
A.A.
AT AUCKLAND
Before: B O Nicholson (Chairman)
J M Priestley (Member)
A Rozdilsky (Non-voting member)Counsel for the Appellant: Mrs C Shaw
Representative of NZIS: Mrs L Baird
Date of Hearing: 14 February 1992
Date of Decision: 22 December 1992
______________________________________________________________________
DECISION OF THE AUTHORITY DELIVERED BY J M PRIESTLEY ______________________________________________________________________INTRODUCTION
The hearing of this case occupied a whole day on 14 February 1992. It is regrettable that the decision has taken nine months to deliver and we apologise to the appellant for the inevitable anxiety which this delay will have caused. In a large measure this delay has been attributable to the Authority’s desire to check certain aspects of the case with UNHCR in Canberra. Other commitments of Mr Rozdilsky, the UNHCR member who sat at the hearing, have delayed the exchange of drafts of this decision. Some aspects of the decision have required careful consideration in the light of this Authority’s current case load of refugee claimants from Bangladesh.BACKGROUND
This is an appeal against the decision of the New Zealand Immigration Service, dated 8 October 1991, declining the grant of refugee status to the appellant.The appellant is 42 years of age. He is a national of Bangladesh. He arrived in New Zealand in January 1990 travelling on a Bangladeshi passport and with a visitor’s permit which had been issued by the New Zealand Embassy in Saudi Arabia. The passport in question is correct in all material particulars but contains no mention of the appellant’s first name. The passport was irregularly issued because at the time of its issue in 1985 the appellant’s then passport was being held by the Bangladesh Police.
The appellant has a wife and three children of whose whereabouts he is currently uncertain. They are probably living in Bangladesh possibly with the wife’s father in Chittagong. The appellant’s father is still alive and lives in Dhaka. He has two brothers who have for many years resided in the United Kingdom.
The appellant is a highly educated man with a good comprehension of English. Having filled various administrative jobs during the 1970s he has in the past decade been employed as an accountant.
THE APPELLANT’S CASE
The appellant’s case can only be understood against his family and political background which it is necessary to set out in some detail. His claim is founded on two bases:(a) Fear of persecution on account of his political beliefs at the hands of the Bangladesh Police and;
(b) Persecution on the grounds of an imputed political belief at the hands of his former party, the Awami League.
A detailed narrative statement was produced at the hearing by the appellant. The recital which follows is, of necessity, a somewhat truncated version of that narrative, but in reaching our decision we have considered the narrative and the appellant’s answers to our questions in their entirety. The salient features of the appellant’s case are as follows:
(1) The appellant is a member of a prominent and wealthy Bengali family. His grandfather was a Maharajah during the time of British rule. The appellant’s father worked in the Colonial government and after independence continued to hold a government post in what was then East Pakistan.
(2) The appellant’s father was one of the founding members of the Awami League (which came into being in 1952, shortly after independence). The appellant’s father was a relative and close associate of Sheikh Mujibur Rahman, a former President of Bangladesh and a founder of the Awami League.
(3) The appellant himself joined the Awami League in about 1964 and was an active member of the League during his college days. The Awami League was probably the principal political body agitating for East Pakistan’s separation from Pakistan.
(4) The appellant was a freedom fighter in the Dhaka area and was effectively on military operations in 1971 for some weeks during which Bangladeshi insurgents, supported by the Indian army, succeeded in ousting the Pakistani army and setting up the independent State of Bangladesh.
(5) In the early 1970s the appellant continued his involvement in the Awami League and became a local chairman or leader of the Awami League in his neighbourhood which was a wealthy and privileged suburb of Dhaka.
(6) In July 1972 the appellant married. His wife was also a graduate. She was also an active member of the Awami League. The appellant and his wife were highly regarded and prominent members of the Awami League (probably influential in the Dhaka area). During various disturbances in 1975 a police guard was deployed to protect the appellant’s house.
(7) Sheikh Mujibur Rahman was assassinated in August 1975 and replaced by a dictator which resulted in the Awami League being banned. The appellant’s account of this phase of his life is somewhat vague. The picture painted is that he went in and out of hiding (including trips across the border to India for short periods) but was still a prominent and active Awami League member relying in part on the intelligence system of that party to avoid detection. From time to time his house in Dhaka was searched. The appellant however avoided any difficulties with the Police until 1981 when his nephew, who was a major in the Bangladesh Military Police was assassinated at Chittagong. The nephew’s military colleagues apparently arranged to have the appellant taken by plane to Chittagong to view his nephew’s body. He was detained and interrogated for three days but was subsequently released. The colleagues of the deceased nephew took the view that the assassination was in some way connected with the active Awami League involvement of the appellant and his wife.
(8) During this same period the appellant apparently worked as an administration officer for approximately six years with the information agency of a foreign but friendly power in Dhaka. When his employer discovered his political involvement he was given the choice of either resigning from politics or resigning from his job. He decided to resign from both. In early 1982 he made one of his many forays across the border into India. The central committee of the Awami League, however, requested that he come back and involve himself as before in political activities.
(9) In early 1982, in his own words, “because of the strain of the whole situation I decided to leave for Saudi Arabia. I was very tired of the whole political business and I wanted to get away. I left immediately for Saudi Arabia without even telling my family which remained in Dhaka. I did not contact them until I had been in Saudi Arabia for some time because I did not want anybody to know where I was.”
(10) The appellant worked in Saudi Arabia as an accountant for three years until he returned in March 1985, his Saudi Arabian visa having expired.
(11) There then occurred the only act of persecution to the appellant. On arrival back in Dhaka he stayed with a relative for approximately three weeks. One day the police came and took him to the police station for questioning. He was not formally charged but was kept in custody. He was detained for 15 days and interrogated. Maltreatment included being hit on his elbow, knuckles and knees with a rod and being hung by his legs for half an hour. The purpose of the interrogation was to obtain the names and whereabouts of Awami League members and leaders. He was then released (someone having given an undertaking on the appellant’s behalf). The police told the appellant not to move from his area and to report to the police station monthly. His passport was kept. To put this period in a political context, it is relevant to note that in 1984 the Bangladesh presidency had been assumed by President Ershad to whose Jatiyo Party Awami League was opposed.
(12) On release the appellant went into hiding. He obtained, by irregular means, the passport on which he entered New Zealand and returned to Saudi Arabia where he worked again as an accountant for the next four years.
(13) Approximately three months after his return to Saudi Arabia a warrant was issued (in September 1985) for the appellant’s arrest. This warrant alleges various non- specific offences under both the Bangladesh Penal Code and the Special Powers Act.
(14) Despite the existence of this warrant the appellant returned to Bangladesh (the last time he has been in his native country) for a holiday for approximately a month in October 1988. His wife was able to arrange for his safe passage through Dhaka airport. Exactly how the wife achieved this (and indeed why it was necessary to make special arrangements) is unclear. It is possible that bribery was involved.
(15) During 1985/1989 the appellant’s wife and children (so far as the appellant knows) travelled repeatedly across the Indian/Bangladesh border. From time to time the appellant’s wife was threatened by the Awami League who wanted the appellant to return to the organisation. The wife was also visited by the Police because the appellant had not kept the terms of his “bail”.
(16) As the appellant’s time in Saudi Arabia drew to a close he made various efforts to try to travel to another country. He was not, because of his fear, prepared to return to Bangladesh. He tried unsuccessfully to obtain a United States visa from the US Embassy in Saudi Arabia. He obtained a Japanese visitors permit. He also obtained a New Zealand visitor’s visa.
(17) Within a few days of his arrival in Auckland in January 1990 the appellant attempted to obtain a visa from the United States Consul in Auckland. He was then advised by various friends of the possibility of obtaining refugee status for which he applied in February 1990.
(18) The reasons for the appellant’s fear of persecution are stated thus:
“There is no way that I will return to Bangladesh. I do not believe that the recent change of government will assist my situation at all. It is Bangladesh National Party which is now in power. They are still opposed to the Awami League and will be looking for people associated with the Awami League. In addition I still have old enemies from the Awami League whom I am sure will inform on me if I was to return. If I return to Bangladesh I know I will be arrested and jailed for an indefinite period or even fear of death. This is because I escaped the last time the police released me. I was released on bail and I was supposed to report and live where I was told. In spite of this I left the country and I know the police will be waiting for me to return so that they can arrest me again. The only reason that I have left Bangladesh both to go to Saudi Arabia and to come to New Zealand was for fear for my life.”(19) For the sake of completeness, we note the appellant seems to have lost touch for the time being with his family. He received a letter from his wife from Calcutta advising that she was about to return to Chittagong to stay with her father. He also received a letter from his son but without an address on it. The appellant claims that he does not know the address of his father-in-law who is also prominent in Chittagong.OTHER RELEVANT MATTERS
Since the appellant’s arrival in New Zealand there have been significant political changes in Bangladesh. President Ershad, faced with mounting opposition and disorder, resigned in November 1990 and was subsequently arrested.There followed, in early 1991, a general election in Bangladesh with approximately sixty parties standing for the 298 parliamentary seats. An alliance known as the Bangladesh National Party won 138 seats which, although short of an absolute majority, enabled that party to form a government. The Awami League is the official opposition with 87 seats. The Jatiya party won 31 seats. One confidential report (received through diplomatic channels but unsourced) submitted to the Authority by the NZIS states:
“Bangladesh does not have a strong democratic tradition and the political situation remains extremely volatile as the parties adjust (or fail to adjust) to existence of a free parliament. A major debate continues over basic constitutional issues such as whether Bangladesh should retain a strong presidential system or opt for more dominant roll of Parliament.”In a later portion of the same document:“Since Ershad’s downfall the human rights situation appears to have improved somewhat. [In January 1991] the interim government announced the phased release of 13,000 prisoners convicted by the military force during Ershad’s rule ... there is no evidence that the Government will take vindictive action against rank and file members of the Awami League or other parties despite the deep antipathy that exists among them.”It is also clear from other materials submitted to us by the appellant’s counsel that the human rights record of Bangladesh is poor. The Amnesty International report makes it clear that hundreds of anti-government protestors were arrested and detained without charge or trial. There were numerous incidents of torture during the time of President Ershad. Since Ershad’s deposal the Special Powers Act has been used to arrest government opponents although the Jatiya Party seems to have been the main target. There is also the notorious case of an unsuccessful refugee being returned to Bangladesh from Sweden who was arrested at the airport and severely tortured by the Bangladesh authorities in 1991.We have also seen newspaper articles (and it is a matter of common knowledge) suggesting that violence in Bangladesh is endemic and that violent demonstrations and clashes between rival political groups are effectively a way of life.
APPELLANT’S SUBMISSIONS
We are indebted to the appellant’s counsel for the lucid forthright way in which she presented submissions on her client’s behalf. Counsel’s argument in support of the appellant being granted refugee status are as follows:The appellant is genuinely fearful, particularly having regard to his long association with the Awami League because of:
(a) His interrogation in 1981;
(b) His detention and torture in 1985;
(c) The September 1985 warrant;
(d) His demonstrable refusal to return to the country which he left in 1982.
It is further submitted that the appellant is fearful of persecution and that the past treatment he has received (specifically his detention in 1985) is an indicator of what would await him if he were to return home.
Counsel’s submissions on whether the appellant’s fear of persecution is well-founded correctly states the Chan v Minister of Immigration test that there must be a real chance that the refugee will be persecuted if he returns to his country of nationality. Reference is made to Hathaway, The Law of Refugee Status p 80 which suggests:
“Because the insufficiency of State protection is a sine qua non for recognition as a refugee, persons who flee countries who are known to commit or acquiesce in persecutory behaviour should benefit from a rebuttable prsumption that they have a genuine need for protection.”In her argument counsel placed heavy emphasis on this suggestion of a rebuttable presumption.Counsel then submitted that, when addressing the issue of well-foundedness of the appellant’s fear, the Authority should use as a test the jurisprudence for which has arisen out of one of the cessation clauses of the Convention, Article 1C(5). Hathaway op cit p. 200 is cited:
“Is the change of substantial political significance in the sense that the power structure under which persecution is deemed a real possibility no longer exists?”Hathaway postulates that it would be premature to consider cessation simply because relative calm has been restored in a country still governed by an oppressive power structure.In referring to the materials submitted to us which include the account summarised above of civil unrest in Bangladesh; a long history of disregard of human rights; and friction between the new government and the Awami League, counsel submits that:
“... it cannot be said with any degree of certainty that the persecutory regime has collapsed; there is evidence of police attacks on an Awami League demonstration; there is evidence of serious clashes between the Awami League and the BNP Youth Wing; the allegations by [the Leader of the Opposition] of undemocratic processes and the return of terrorism all point, at the very least to political instability and uncertainty with a real doubt as to the durability of democratic reforms in Bangladesh.”Counsel concludes that there is no evidence or sufficient evidence to rebut the presumption that the appellant has a genuine need for protection. To his fears of the police are to be added his fears from the Awami League itself which may wish to reinvolve him in its activities or alternatively inform on him to the police.Counsel’s concluding submissions are:
(a) When an asylum-seeker has a well-founded fear of persecution at the time of flight and arrival in this country there is a prima facie presumption that it subsists at the time of hearing.
(b) That presumption is a rebuttable by clear evidence of fundamental and lasting change in circumstances in the country of origin so that on an objective assessment there is no real chance of persecution despite any subjectively held fears of the appellant.
(c) The changes in Bangladesh have not withstood sufficient passage of time and do not demonstrate sufficient entrenchment to justify a conclusion that there is no real chance of persecution if the appellant returns.
DECISION
We do not dispute the accuracy of counsel’s submissions to us. We consider, however, that those portions of counsel’s submissions which refer to “rebuttable presumptions” and the cessation clause of the Convention involve perhaps elements of artificiality and run the risk of an incorrect focus on the facts of this particular case. Article 1C of the Convention does not, of course, assist in the primary determination of whether a person qualifies for refugee status. The cessation clauses apply to a person who has already received recognition as a refugee and who is covered by the terms of section 1A of the Convention.Nor, with respect, are we keen to introduce into this area a system of presumptions, rebuttable or otherwise. The inquiry under Article 1A is to determine whether there is a real chance that a person being fearful of persecution in his country of nationality will in fact suffer persecution for a Convention reason. Each case must be assessed on its individual facts. The fact that an application is received from a national from a country which in Hathaway’s words is “... known to acquiesce in persecutory behaviour” does not in itself qualify that person for refugee status. A well-founded fear of persecution must attach to a specific claimant. A generalised or random risk would not in itself suffice.
In the hypothetical situation of the applicant coming to New Zealand in 1985 and applying for refugee status the result would be a forgone conclusion. He would clearly at that point have qualified. He would recently have been detained and tortured by the police (clear persecution) solely because of this membership of the Awami League. With the existence of the warrant and as a prominent member of a party opposed to the Ershad regime it would have been idle to have expected him to avail himself of the protection of Bangladesh. However, this is not a late 1985 refugee application but an early 1992 application. Time has moved on for both the appellant and for his country.
We are satisfied that the appellant has given us a truthful account of his past political involvement and his family situation. We accept that his family were prominent and probably influential members of the Awami League. We accept the truth of the incidents of his interrogation and detention in 1981 and 1985. The appellant’s past political involvement has become something of a nasty hook. His decision to stand aside from political involvement was of no avail when he was detained because of his Awami League connections in 1985. Nor, so it would seem, have his former political associates accepted his decision to stand down.
We are satisfied that the appellant is genuinely fearful. We do not accept that he had a fear of persecution when he left Bangladesh for Saudi Arabia in 1982. That departure, we believe, was an attempt to distance himself from political events in Bangladesh. However, his sudden flight in mid-1985, following his detention and maltreatment, on an irregularly obtained passport; his brief and clandestine return in 1985; his attempts to obtain visas to elsewhere in 1989, are all indicative of a genuine fear of a return to Bangladesh.
An unusual feature of this case is the appellant’s decision, after he fled from Bangladesh in 1985, to return to that country in October 1988 for one month. On his evidence he entered the country clandestinely and remained in hiding during that time. He returned largely for the purpose of seeing his wife and children. Returning to a country from which he has fled inevitably confronts a refugee applicant with the possibility that he may voluntarily have re-availed himself of the protection of that country (Article 1(C)1), or alternatively may have re-established himself in that country (Article 1(C)4). We are satisfied on the evidence that the October 1988 visit was a brief one for personal reasons and that the manner in which the appellant re-entered Bangladesh and concealed himself there are all indicators that his fear was still present. Given that the Ershad regime was still in power we believe his fear would have been well-founded. Such a visit does not amount to re-availing himself of the protection of Bangladesh or re-establishing himself there in the circumstances of this particular case. Hathaway, op cit, 198 correctly deals with this situation:
“Re-establishment requires more than mere physical presence, and a greater commitment to the country of origin than is evinced, for example, by temporary return to visit an ailing parent or to bring out relatives, friends or property. Careful scrutiny of more prolonged and frequent visits for such purposes as holidays or business is warranted, however, since at some point the degree of attachment may qualify as re-establishment. While an occasional visit of up to a few weeks is too transitory to sustain the cessation of status, a regular presence in the state of origin for a significant part of the year is prima facie inconsistent with a continued need for protection.”In this case we consider that the circumstances of the appellant’s October 1988 visit were too transitory to amount to a cessation.We are also satisfied that the appellant’s fear is one of persecution for a Convention reason. Central to his case is his detention and maltreatment by the police in 1985. The sole reason for that detention was the appellant’s political belief which found expression in his longstanding membership and commitment to the Awami League. It is solely because of his identity with the Awami League that the appellant is fearful to return to Bangladesh.
We believe that his sudden return to Bangladesh today, after an absence of a decade, would be seen by both the Awami League and its political opponents as a significant act. Few in Bangladesh he stated to us, would believe that he was returning to lead an apolitical life. The opponents of the Awami League would be jealous of his former profile and ability. Current Awami League members would expect someone of his prior commitment and family background to take up the political cudgels.
There remains the issue of whether the appellant’s fear of persecution on political grounds is well-founded. Against such a fear of being well-founded are the following factors:
(a) The fact that since his departure for Saudi Arabia in 1982 the appellant has played no role in the Awami League whatsoever.
(b) That 7 years have passed since he was detained and tortured by the police.
(c) That the warrant for his arrest is over 7 years old, and although he has lived clandestinely in Bangladesh, when he returned for a short period in 1988, three years after its issue, that warrant did not prevent the appellant from entering and leaving Bangladesh.
(d) The Jatiya Party and President Ershad are no longer in power.
(e) Undoubtedly the warrant was issued in respect of trumped-up charges motivated by the fact that the appellant was a prominent member of a political party opposed to the then regime.
Do these factors drive us to a conclusion that the appellant’s fear of persecution on political grounds, if he were to return to Bangladesh, is not well-founded? Certainly the political reasons which motivated the detention of the appellant in 1985 and the issue of the warrant have disappeared. The appellant’s fear is, however, that the new government, the Bangladesh National Party, and its supporters, should they hear of his return, will immediately conclude the appellant will be resuming his membership and activities with the Awami League which is now the official opposition of the BNP government.
Because the warrant is still outstanding, the appellant believes that either BNP members or possibly Awami League members who are disaffected with him will inform the police who will then re-arrest him in respect of the 1985 charges and for breaching the conditions of his release from detention. We are satisfied that a warrant was issued in this particular case, the appellant having effectively absconded on bail. In general, however, this Authority is inclined to give little weight to warrants purportedly issued South-Asian countries, and in particular in Bangladesh, it being apparent that such documents are easily falsified and readily obtainable in those countries. The general inefficiency and corruption which pervades the lower levels of Bangladesh’s system of justice is such that the existence or otherwise of a warrant has little probative value.
Is there a real chance that this will occur? Regrettably, we do not have sufficient information about post Ershad Bangladesh to answer that question in an informed way. That civil unrest and political hooliganism accompanied by a high degree of violence still persist in Bangladesh is clear. Information about the standard of conduct of the Bangladesh police; the judiciary; and the status of outstanding political charges made during the Ershad era is totally lacking. Without such information we cannot be certain.
The appellant’s evidence has a certain logical consistency about it. It is, of course, peculiar to his family history and his personal history of lengthy political involvement. Our decision in this case is limited to its facts and should not in any way be taken as a precedent for other Bangladeshi applicants alleging persecution on political grounds. Of particular and peculiar relevance to this case is the high political profile of the appellant’s family and its association with the Awami League for three generations. Of relevance too is the appellant’s leadership position inside the Awami League in an influential suburb of Dhaka. Similar considerations quite simply would not apply to student Awami activists whose political involvement was limited to demonstrations in campus activities during the 1980's , for instance. In such “run-of-the-mill” Bangladeshi cases the doubts which we have entertained in this particular case, and of which the appellant has had the benefit, are unlikely to occur. Each refugee claim must be determined on its own individual facts and it is improbable that subsequent Bangladeshi claimants will receive much assistance from this particular decision by way of a precedent.
The consistent conclusion of the appellant and his counsel was that, despite the lapse of time since 1985, there remained in 1992 Bangladesh a real chance that the appellant, if he were to return, would be re-arrested, detained and possibly maltreated. He maintained further that there was a real chance that because of his Awami League involvement and because the Awami League was the opposition to the current government and because further of his illegal departure from the country in 1985 the Bangladesh police could not be relied upon to protect him from the persecution he feared.
Because, on central issue, we are left with a doubt, the appellant’s claim must succeed. As stated in paragraphs 203 and 204 of the UNHCR Handbook:
“After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements ... it is therefore frequently necessary to give the appellant the benefit of the doubt. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.”These statements, in our view, are apt to the appellant’s case. We are satisfied as to his credibility. We cannot, on the evidence available to us find that his fears as to what might happen to him on his return to Bangladesh are fanciful or fabricated.For these reasons therefore, we are satisfied that the appellant fulfills the criteria of Article 1A(2) of the Convention and is a refugee.
Refugee status is allowed.
“J M Priestley”
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[Member]