REFUGEE APPEAL NO 2248/94

ZH (REF: 7 DECEMBER 1995, REFUGEE STATUS APPEALS AUTHORITY)

AT AUCKLAND
Before: S R Sage (Member)
  A Gupta (UNHCR) (Member)
Counsel for the appellant: C M Treadwell
Appearing for the NZIS: No appearance
Date of Hearing: 26 April 1995
Date of Decision: 7 December 1995
 

DECISION

This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of the People's Republic of Bangladesh.

INTRODUCTION

The appellant arrived in New Zealand on 26 June 1992. An application for refugee status was made on 27 January 1994. The appellant was interviewed by the Refugee Status Branch on 1 March 1994 and was notified by letter dated 20 July 1994 that his application for refugee status had been declined. By letter dated 21 July 1994, the appellant appealed against the decline of his application. The appeal was brought on at short notice. Counsel for the appellant submitted that the case turned on a narrow issue, namely the appellant's failure to complete military service. The factual background is concise and turns on one event only. This case, according to the appellant's counsel, is the first involving insurgency in the Chittagong Hill Tracts.

BACKGROUND

The appellant is a 24 year-old single man. His parents live in K, a city about 60 kilometres south of Dhaka. The appellant's father is an associate professor and his mother, a housewife. The appellant has two brothers and two sisters. The elder sister is a doctor who lives in Saudi Arabia with her husband. The older brother is a chartered accountant. The younger sister and younger brother are both university students. Apart from the sister in Saudi Arabia, the rest of the family lives in Bangladesh. The appellant is in regular correspondence with his family. The appellant's passport was issued on 11 October 1990 and was obtained at that time because the family intended to go to India on holiday.

THE APPELLANT'S CASE

The appellant was a member of the M Cadet College in Bangladesh from March 1983 until August 1989. He then went to the military academy in Chittagong for further training and remained there until August 1991. The appellant originally enjoyed being in the army and being at the academy. However he changed his view after he was sent to a camp in the Chittagong Hill Tracts at the end of July 1991. Prior to being sent to the camp, the group was told that they would be required to pursue a group called the Shanti Bahini. The Shanti Bahini (Peace Army) is the armed wing of the tribal political organisation of the Jana Sanghati Samiti (JSS, People's Solidarity Association), an insurgent group from the Chittagong Hill Tracts. Since the Republic of Bangladesh was founded, tribal populations have called not only for recognition of their rights, but also administrative and political autonomy. The tribes demanded an end to the influx of Bengali settlers in the Chittagong Hill Tracts and the return of property obtained illegally by settlers or the state. The Shanti Bahini claims to be the political and military organisation representing tribal interests. Although there are thirteen district tribal groups in the Hill Tracts, the Shanti Bahini is composed almost entirely of members of the largest district tribe, the Chakmas. The group does not enjoy the support of the entire tribal community, many of whom have responded to government initiatives to negotiate a peaceful solution to the Chittagong Hill Tracts conflicts. (See Country Profile Bangladesh (July 1994) Department of Foreign Affairs and Trade, Canberra, ACT). In the camp to which the appellant was sent, there were about 40 people. Each group of training cadets was sent out on operations with a lieutenant in charge. They took food, tents, ammunition and rifles. The appellant was in a group of 14. The purpose of the operation was ostensibly to pursue the Shanti Bahini guerrillas, but what happened each time was that the lieutenant ordered the group to make random attacks on tribal peoples. On the first operation the group saw some huts belonging to tribal peoples and the lieutenant said that that night the group would attack them. He directed which cadets would attack which huts. The appellant and two other cadets were about to attack one of the huts when the appellant noted that there was firewood stacked outside. There turned out to be no one in the hut the appellant and his colleagues were to attack but, in a second hut, there were three people. Shots were fired by the cadets attacking the second hut and the three people were killed. The appellant told the Authority that he felt bad because they were innocent people and gave no sign of wanting to fight. On the second operation the group found some more huts. They watched for activity but when there was none, they searched the huts and burned them down. The next day the appellant observed some tribal people cutting trees. When he pointed this out to the lieutenant, the latter told the cadets to attack them. Shots were fired by others but again the appellant could see that the people were just ordinary tribal people and were unarmed, so he just fired two or three shots into the ground. Nine people were killed in that incident. The appellant felt dreadful because he felt he was participating in a murder but was too afraid to say anything. On the third operation the appellant talked to some of his friends and found that two of them shared his views. However, they Were warned not to speak out or they would find themselves in serious trouble. Although the appellant's statement and the interview report refer to the group's not meeting anyone on that occasion, the appellant told the Authority that despite running out of food the lieutenant stayed there for four days until he found someone to kill. The lieutenant said it was good for the army to kill people. On the fourth operation, the lieutenant planned to attack a small village. To intimidate the Shanti Bahini, the group would deliberately shoot at the tribal people. The appellant argued with the lieutenant about the killing of innocent people and asked him to stop. The appellant and the other two in the group who agreed with his views about the killings said that they could not do it because it was inhuman. The lieutenant pointed his gun at the appellant and threatened to kill him for his treachery. The appellant's two friends pointed their guns at the lieutenant. The other 10 in the group directed their guns at the appellant and his friends. The effect of this, according to the appellant, was that there were three of them pointing their guns at the other 11 of the group. The appellant suggested that eight of the group of 11 put their guns down and they all back away slowly. The men backed off. Once there were bushes and trees between the two factions, the appellant and his friends turned, dropped their guns and ran. They ran all night and the following day and caught a bus to Chittagong city and then a train to Dhaka. The appellant went to his sister's place (his parents lived in M about 120 kilometres from Dhaka) to get some money and there learned that his mother had telephoned to say people from the Army Intelligence had been to his home looking for him. The appellant decided to leave Bangladesh. His sister helped him obtain his passport and money. The appellant stayed for four nights with a friend in a village on the outskirts of Dhaka. The appellant left Bangladesh on 22 September 1991 and went to South Korea. When asked why he had gone to South Korea, the appellant said he had gone to the embassy area in Bangladesh and just walked into the Korean embassy. He was given a three month visitor's permit which he renewed twice in South Korea. A month after he arrived there, the appellant applied to take a Korean language course and he spent some time travelling and looking for a job. He supported himself with money he had taken from Bangladesh. On the third occasion on which the appellant applied to extend his visa, someone advised him to go to New Zealand. The appellant paid $15,000 to a travel consultant for a student permit. The money was sent to the appellant by his brother-in-law in Saudi Arabia. The consultant informed the appellant that obtaining a student permit was the easiest way to stay in New Zealand permanently. Although in his first statement he said that he had decided to study "far away from his country-in New Zealand", the appellant told the Authority that it was really the consultant's decision. While in Korea, the appellant's sister informed him by letter that one of the friends with whom he had escaped from the camp, had been sentenced to 14 years' imprisonment for his part in the confrontation of the lieutenant and the escape. The appellant believes that if he were to return to Bangladesh he would receive an even more serious penalty because he was the one who tackled the lieutenant and because he had left Bangladesh. The appellant arrived in New Zealand in June 1992, intending to stay permanently. He learnt about applications for refugee status towards the end of 1993. He had a visa which permitted him to stay in New Zealand for 18 months, but went to Australia to see "what it was like to live there". He decided, however, that he would prefer to live in New Zealand. He obtained a Certificate of Business Studies and undertook the first semester of his diploma. Financial difficulties prevented him from completing, the course. The appellant believes that he has been charged with waging war against Bangladesh by helping the Shanti Bahini. He said that his father and brother had tried to find out about the charge but it was impossible to get information from the army. People from the army have apparently been to his parents' home, his sister's home and to a neighbour's place asking for the appellant, but there has been no written communication nor have any warrants been served on the appellant or his family. A letter dated 9 March 1995 from his mother states:

"Nobody was able to meet with your friend in gaol and no one knows which gaol he is in. Last month army people ask about you to our neighbour. They told them that they have not seen you any time. So, do not think about this too much. That is bad for your health. Try to explain everything to your lawyer about your situation".

There is also an undated letter from the appellant's brother which, while making, various comments about the family and his own marriage, contains a request that the appellant write to other members of the family at "S's address", but makes no mention of any interest being shown in the appellant by the authorities. In his submissions, counsel for the appellant submitted that one of the reasons why there was no formal documentation was that the military policy were a law unto themselves and that, in a sensitive case such as this, formal notice would not be given to parties. The appellant came from a wealthy family and was advancing up the academic ladder and, it was submitted, difficult to see why the appellant would have given all that up. As to the issue of avoidance of military service, it was submitted that if the tasks the appellant was refusing to carry out were unconscionable, then the punishment for such refusal would amount to persecution. The RSB had serious doubts about the credibility of the appellant first, in relation to how he left the army and secondly, his possession of a valid and legal passport, given that the military usually retain possession of passports of army personnel until military service has been completed. The fact that the appellant made no attempt to change the photograph, name or details in his passport suggested, according to the RSB, that the appellant did not anticipate any trouble when he departed. The other factor in the RSB decision referred to there being no evidence that a charge of conspiracy to wage war had been laid. Given the seriousness of the charge, it was considered unlikely that the appellant could leave Bangladesh in the face of a charge of terrorism. The RSB considered that every effort would have been made for the border controls to be alerted to the appellant, to the charge and of any impending departure. The fact that the appellant had no difficulty departing Bangladesh suggested to the RSB that the appellant was not considered a serious threat. This was borne out by the fact that the family had only been approached once by the military.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees 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 as a result of such events, is unable to or, owing to such fear, is unwilling to return to it."

In the context of this case, the four principal issues are:

1. Is the appellant genuinely in fear?

2. Is it a fear of persecution?

3. Is that fear well-founded?

4. Is the persecution feared persecution for a Convention reason?

In this regard the Authority refers to its decision in Refugee Appeal No 1/91 re TLY and Refugee Appeal No 2/91 re LAB (11 July 1991). In the same decision, the Authority held that in relation to issue 3, the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT'S CASE

The Authority accepts the credibility of the appellant. There is nothing in the version of events which the appellant has told the Authority which gives any concern about his veracity or any unlikelihood of the events which he has described taking place. The most unusual aspect of the case is his ability to leave Bangladesh in the face of such a serious charge, if in fact a charge has been laid, but there is no way that its existence can be disproved. One would have thought that the appellant would have made attempts to obtain copies of court or other documents as a means of substantiating his claim for refugee status. No attempt has been made to do so. The documents would be relatively easy to obtain by one of the family members, especially the appellant's father who has academic qualifications. As James Hathaway states in The Law of Refugee Status (Butterworths Canada 1991) at page 179:

"Persons who claim refugee status on the basis of a refusal to perform military service are neither refugees per se nor excluded from protection. In general terms:
A person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons within the meaning of the definition, to fear persecution.

In this sense, the determination of a refugee claim grounded in refusal to perform military service is comparable to the issue of criminality: the crucial question is whether the claimant can show that desertion or evasion is grounded in civil or political status, failing which the claim cannot succeed.

The insufficiency of a non-specific desire to escape a military service obligation is established by case law."

A desire to escape military service does not lead to a person's being held to be a refugee. The Convention does not contain any sections dealing with army deserters or conscientious objectors. There are, however, exceptions to this general rule. The first exception relates to cases where the conscription is conducted in a discriminatory manner or where punishment for evasion is biased in relation to one of the five Convention-based grounds. A second exception is where desertion or evasion reflects an implied political opinion as to the fundamental illegitimacy in international law of the form of Military service avoided. It is this exception which is relevant in this case. As Hathaway states at page 180:

"As in the case of an absolute political offence, there is a range of military activity which is simply never permissible, in that it violates basic international standards. This includes military action intended to violate basic human rights, ventures in breach of the Geneva Convention Standards for the conduct of war and non-defensive incursions into foreign territory. Where an individual refuses to perform military service which offends fundamental standards of this sort, "punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution".

And see also paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status. This approach has been used to deal with the status of persons refusing service in military or police forces used to enforce apartheid in South Africa and in the case of a Salvadoran who deserted the army because of its persecution of civilians. In Jorge Ardon Abarca (Immigration Appeal Board Decision V86-4030W, March 21 1986), the Board recognised the merit of avoiding behaviour in breach of the rules designed to protect civilian non-combatants:

"Mr Abarca does not blindly reject the thought of compulsory military service. In fact, he has shown a willingness to serve in the armed forces in his country. However, he is not willing to serve further if it means having to become part of a government force that is systematically killing innocent people just to instil fear and terror into the general public. He strongly objects to serving in his country's military force because he would probably be forced to participate in violent acts of persecution against non-combatant civilians, which is contrary to recognised basic international principles of human rights."

The same approach was applied in the decision of Zacarias Osorio Cruz, Immigration Appeal Board Decision M88-200 43K, C.L.I.C. March 25 1988 in which the Mexican claimant deserted his army unit because he did not wish to continue to be involved with the summary execution of political prisoners. This is the situation in the case before the Authority. The Authority believes that this appellant falls within the category of a conscientious objector. The Authority considered the applicability of Article 1F of the Convention because, on the face of it, it appeared as if the appellant had been at least a party to murder. However, the Authority accepts the appellant's evidence that the only shots he fired were into the ground and that, at the first available opportunity, he demonstrated his objection to the course proposed by the lieutenant by opposing the senior officer and refusing to obey orders. The appellant showed a progressive aversion to the random killing of innocent tribesmen. He did not kill anyone. He can be regarded as a conscientious objector. Having accepted the credibility of the appellant in relation to the story which he has told this Authority, there is also an acceptance that this appellant should be accorded refugee status. The appellant has shown that his desertion was grounded in a civil and/or political status and the Authority holds there is a Convention reason. The appellant has a genuine subjective fear of persecution. The harm he fears is that he will be punished severely in the form of torture or death because he refused to complete his military service and because he left the country, both on account of his condemnation of the practices of the army personnel in torturing and killing tribal villagers. That punishment amounts to persecution. The punishment for avoiding military service per se might not amount to persecution but in this case, where there is both the desertion and fleeing the country combined with the challenging of the army officer, there is no doubt in the Authority's view that the punishment this appellant would received on a return to Bangladesh would amount to persecution. That the fear is well-founded is evident from the authorities' and the government's continual denial of the fact of harsh practices and by their refusal to develop strategies and take action to protect the population. The appellant will be punished for his actions and there is no certainty that he would receive a fair trial. What is well-known about the country is the extremely poor treatment and torture of criminal suspects in police custody. People arrested for political reasons have reportedly been tortured by police personnel. The question of relocation does not arise. The Authority therefore finds that this appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. The appeal is allowed. Refugee status is granted. (Member)  
 
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