REFUGEE APPEAL NO. 70475/97
AT AUCKLAND

Before: C Parker
  J M Priestley QC (Member)
Counsel for Appellant: M Robins
: No Appearance
Date of Hearing: 7 July & 9 September 1997
: 17 October 1997

INTRODUCTION

The appellant arrived in New Zealand on 16 September 1989 and applied for refugee status to the Interdepartmental Committee on Refugees (ICOR) on 28 September 1989. The appellant's application was declined on the 22 May 1992 and by letter, dated 26 June 1992, his solicitors applied for this decision to be reconsidered, in accordance with the procedures then in place for the determination of refugee applications, by the Refugee Status Section (RSS) - now the Refugee Status Branch (RSB) - of the New Zealand Immigration Service. The grounds upon which the appellant sought reconsideration were that he had not been given the opportunity to comment upon ICOR's belief that the political and human rights situation in Bangladesh had improved considerably since 1990 and following the elections in 1991, these matters having been material in ICOR's decision to decline the application.

By letter dated 16 February 1994, the appellant's solicitors sought to place further humanitarian issues before the RSS for consideration, including the recent floods in Bangladesh and that the appellant had been in New Zealand for four and a half years.

By letter dated 5 July 1994, the appellant's solicitors submitted to the RSS a further statement on behalf of the appellant and documents from Bangladesh which indicated that he had been tried in absentia, convicted and sentenced to a term of 14 years imprisonment.

The appellant was interviewed by the RSS on 22 August 1994 and, following a period of some 14 months, during which time attempts were made by both the RSS and the appellant's solicitors to obtain some proof as to the authenticity of the documents submitted in respect of the appellant's conviction in absentia, the RSS completed their reconsideration of the appellant's claim. The RSS's reconsideration of the appellant's claim, which was submitted to the Minister, indicated that, whilst they had reservations about the genuineness of the appellant's documents, the appellant should be given the benefit of the doubt and refugee status be granted.

By letter dated 8 November 1995 from the RSS, the appellant was advised that the RSS's recommendation had been accepted by the Minister of Immigration and he had been granted refugee status.

However, the matter did not end there, for on 1 December 1995 a letter was received by the RSS from the British High Commission in Dhaka concerning enquiries they had made in Bangladesh, as a result of which they had reached the conclusion that the documents provided by the appellant were forgeries. The warrant of commitment submitted by the appellant had been signed by one Judge SEU who had sat in court on 7 June 1990 and presided over the appellant's case. The officials from the British High Commission visited Judge SEU, who examined the documents in question and confirmed that he had not been sitting in the court from which these documents appeared to have emanated on 7 June 1990 and confirmed that the signature on the warrant of commitment was not his. The British High Commission officials were told by the Judge that he always signed his name in Bengali script and, whilst in the Judge's chambers, had the opportunity to peruse documents which bore his signature and confirmed this to be the case. Of course, the document produced by the appellant, which bore what purported to be the Judge's signature in English script, was quite different. After allowing the appellant an opportunity to comment on this new evidence, and considering letters from the appellant's solicitor dated 19 January 1996 and 16 May 1996, the Minister decided, on 18 June 1996, to cancel his earlier grant of refugee status to the appellant, on the grounds that it had been obtained by forgery, false or misleading representation.

On 25 June 1996, the appellant submitted a second application for refugee status which, according to the covering letter from his solicitors dated 28 June 1996, was based on two grounds:

1. Court documents which show that he has been sentenced to 14 years rigorous imprisonment for his previous activities; (‘the first ground') and

2. that the appellant has been identified to the Bangladeshi authorities as a person who has claimed refugee status in New Zealand. (‘the second ground')

The appellant was interviewed by the RSB on 19 February 1997 and his application declined on 26 March 1997. It is from this decision that the appellant now appeals.

Prior to the first day of hearing, counsel for the appellant submitted a lengthy memorandum which identified legal issues for the Authority to consider:-

"1.2There are three broad issues in this case which, logically, fall to be decided in the following order:-

(a)Whether the Authority has jurisdiction to consider this appeal given that the appellant has had a previous claim heard by the interdepartmental committee on refugees (ICOR).

(b)Whether, since the original determination, circumstances in the appellant's home country have changed to such an extent that the second claim is based on significantly different grounds to the original claim.

(c)Whether, the appellant has a well founded fear or persecution."

The Authority has considered counsel's submissions in respect of issues (a) and (b) as these go to the Authority's jurisdiction to entertain this second appeal.

(a)Previous claim heard by ICOR

The Authority concludes that it has jurisdiction to consider the appellant's second claim. Paragraph 7(1)(b) of the Authority's Terms of Reference (TR) precludes the Authority from considering appeals under paragraph 5(1)(a) (the general empowering provision pursuant to which the Authority may hear appeals from RSB) when the appellant has, at any stage, had an application for refugee status considered by ICOR.

However, counsel submitted, and we accept, that this is not an appeal under paragraph 5(1)(a) but an appeal under paragraph 5(1)(f).

The Authority has further considered the possibility that we might be prevented from hearing this appellant's second appeal by TR Paragraph 7(2). However, the Authority has consistently found jurisdiction to consider appeals from an RSB decision to decline a second application in respect of an applicant who had previously had an application determined by ICOR (see An Application for leave to appeal by BA (8 December 1994) and Refugee Appeal No. 70001/96 Re RSDS (30 April 1997). This Authority will follow the established interpretation of our TR and hear this appellant's second appeal.

(b)Has there been a change of circumstances since the original determination so that the second claim is based on significantly different grounds to the original claim?

Counsel for the appellant argued that the "original determination" as far as this appellant is concerned is the ICOR decision of 6 May 1992. Accordingly, counsel submitted that the Authority may consider the appellant's claim to have been sentenced to 14 years imprisonment (the first ground of his second claim) as this matter had not been placed before ICOR prior to their determination on 6 May 1992 and, therefore, amounted to a change of circumstances since the original determination.

In support of this submission, counsel argued that the appellant had been denied the opportunity of a "two-tier" consideration of the first ground of his second claim as it had only been considered by the RSS in the course of their reconsideration of the appellant's case and had not formed part of his original claim before ICOR.

The (then) new TR governing refugee status determination which had been approved by Cabinet on 30 August 1993, provided the appellant with the opportunity of making a fresh, second claim for refugee status to the RSS based on the new evidence he had obtained from Bangladesh concerning his trial and conviction in absentia. This would have provided the appellant with the ‘two tier' consideration of his claim to which counsel believed he was entitled. However, counsel had advised the appellant not to pursue this option and to instead request the RSS to reconsider his claim to ICOR, for the following reasons:-

1. She believed that the appellant might obtain residence on some other ground.

2. The appellant would be deprived of the opportunity of having the RSS reconsider his claim under the ICOR procedure, if a second claim were made.

3. The Terms of Reference were new and she was unsure what approach the RSB and the Authority would take to the restrictions contained in TR paragraph 7 to further applications by appellants who had already made claims to ICOR.

4. She believed that there was a danger of the appellant's permit expiring, if a second application were made.

Counsel submitted that, in retrospect, the appellant might have achieved a better result had he made a second claim to the RSB with the possibility of a further appeal to this Authority, rather than pursuing the reconsideration option under the old ICOR procedures. However, if this Authority were minded to adopt counsel's interpretation of "original determination" then the appellant would be afforded the opportunity of presenting the first ground of his second appeal to the Authority and thus be afforded the ‘second tier' of consideration which he had, so far, been denied.

In the light of all these matters and having regard to the humanitarian nature of the Authority's jurisdiction, counsel submitted that the Authority should deem the original determination to be that of ICOR so that we could fully consider the first ground of the appellant's second claim.

The Authority has carefully considered these submissions but finds that the original determination for the purposes of this appeal is that of the Minister of Immigration, dated 3 November 1995, to grant the appellant refugee status.

Had the appellant simply accepted ICOR's decision of 6 May 1992 and returned to Bangladesh without engaging in further litigation then, of course, that decision would have been the ‘original determination'. However, the appellant did not return to Bangladesh and instead requested reconsideration of that decision. Whilst the appellant's claim evolved throughout the reconsideration process, the Minister's decision of 3 November 1995 was the determination of the appellant's original claim. Certainly, had the appellant been asked in November 1995 how his refugee claim to ICOR had been determined, he would have said that it had been successful and that he had been granted refugee status. We cannot look back, in 1997 and attempt to resurrect a 1992 ICOR decision, which was successfully "appealed" (by way of reconsideration) in 1995.

The Authority has considered counsel's arguments but can see no reason to depart from the clear meaning of the words of paragraph 5(1)(f). We see no merit in counsel's submission that the appellant may have fared better had he made a second application in 1994, rather than request reconsideration by the RSS, given that he was granted refugee status by the Minister in November 1995. We further note that, had the appellant lodged a fresh second refugee application, instead of pursuing his option of reconsideration of ICOR's decision by RSS, there would still have been a possibility that that any grant (whether by the RSB or RSAA) could subsequently have been cancelled following receipt of information indicating that the documentation, upon which the grant of refugee status relied, was forged.

The Authority therefore rejects counsel's submissions and finds that the date of the original determination for the purposes of our assessment of a change of circumstances, pursuant to paragraph 5(1)(f) is the date upon which the appellant's first claim was finally determined, namely 3 November 1995.

The Authority communicated its view concerning the above jurisdictional matters to counsel during the first day of hearing and further provided her with a copy of Refugee Appeal No. 70387/97 Re MSI (14 May 1997) and indicated that it would only be able to consider matters raised by the appellant in the second ground of his second appeal. The matters raised in the first ground had been fully canvassed before the RSS and the Minister in the context of his first application, which had been considered under the former ICOR procedures. A repetition of facts upon which the appellant's first application was based, in the guise of a second application, obviously cannot amount to a change of circumstances and therefore, cannot cross the Authority's jurisdictional threshold for second appeals. The Authority is further precluded from reconsidering the appellant's claim to have been convicted in absentia and sentenced to a term of imprisonment by TR paragraph 7(2), these matters having been raised in the appellant's earlier claim under the ICOR procedures.

Counsel then requested an adjournment to obtain further evidence to support the second ground of appeal and the Authority granted an adjournment for evidence to be obtained on the following matters:-

1. that Judge SEU who was visited by British High Commission officers in connection with the RSS's attempts to verify the appellant's court documents, has said or is likely to have said, to those in authority in Bangladesh, something about the appellant's claim for refugee status in New Zealand; and

2. that this will have sufficiently serious effects upon the appellant to provide him with significantly different grounds to support a second appeal.

In particular, the Authority indicated that evidence and/or submissions would need to address the effect that this would have upon the appellant, given that the AL is now in government.

The Authority's hearing reconvened on the 9 September 1997 and counsel for the appellant filed a further memorandum raising a new legal issue going to the Authority's jurisdiction to hear the first ground of the appellant's second appeal and also appending evidence which had been obtained from Bangladesh since the first day of hearing.

Counsel for the appellant referred the Authority to TR, Part II, paragraph 5(1)(d) which enables the Authority:

"To determine, on application by the refugee status section or on appeal from a decision of the RSS, in any case where refugee status may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, whether that grant of refugee status is properly made. The Authority may cancel the grant of refugee status in such a case if appropriate".

Counsel argued that this paragraph conferred jurisdiction upon the Authority to effectively rehear the entirety of the appellant's first claim to refugee status and consider all evidence which had been gathered in support of that claim to date. In a nutshell, counsel argued that because the Authority was faced with an appeal from a decision of the RSS (now RSB) and because the appellant's refugee status had earlier been cancelled on the grounds of fraud or forgery, it was open to the Authority to enquire whether the original grant of refugee status (by the Minister) was properly made, and should stand. In support of this construction, counsel submitted that the TR clearly envisaged a "two-tier" process, but because the appellant's refugee status had been cancelled by the Minister, he had been denied the opportunity of an appeal against this cancellation. Counsel further argued that given the humanitarian nature of the Authority's jurisdiction, paragraph 5(1)(d) should be interpreted in this manner. Counsel conceded that the appellant could, of course, have applied for judicial review of the Minister's decision to cancel refugee status, but explained that this was an expensive process.

The Authority does not accept that TR paragraph 5(1)(d) confers upon it the jurisdictional powers which counsel contends. In our view, this paragraph clearly confers upon the Authority, jurisdiction to do two things. First, it confers upon us jurisdiction to hear an application from the RSB in which it is alleged that refugee status has been obtained by fraud, to determine whether this is the case and if so, to cancel the grant of refugee status, if appropriate. The RSB, in turn, are permitted by paragraph 2(7) of their TR to make such an application to the Authority, where the Authority originally granted refugee status. Secondly, TR paragraph 5(1)(d) permits us to hear an appeal from an asylum seeker against a decision of the RSB, pursuant to paragraph 2(6) of their TR, to cancel refugee status on the grounds that it was procured by fraud, forgery etc. In our view TR 5(1)(d) confers upon the Authority jurisdiction to do no more than this.

The Authority further observes that if counsel's construction were accepted, then any person whose grant of refugee status has been cancelled on the grounds of fraud, whether cancelled by the RSB, the Authority or the Minister, would be able to make any number of (possibly spurious) further applications to the RSB and upon appeal to the Authority have endless opportunities to review the earlier decision to cancel refugee status. Clearly, this cannot be what was intended. The words "on appeal from a decision of the RSS" must refer to an appeal from the decision of the (now) RSB under paragraph 2(6) to cancel refugee status and the appellant must be entitled to only one such appeal.

In the instant case, the appellant's refugee status was cancelled by the Minister and counsel has argued that, if the Authority did not accept her construction of paragraph 5(1)(d), the appellant would be denied the opportunity to appeal that decision.

The Authority has reviewed its TR and those of the RSB, and does not accept counsel's contention that the TR envisage a "two-tier" system with a right of appeal against a decision to cancel refugee status. The cancellation of refugee status on the grounds of "fraud, forgery, false or misleading representation or concealment of relevant information" is governed by TR paragraphs 2(6), 2(7), 2(8) and 2(14)(b). Broadly speaking, the scheme for cancelling refugee status on these grounds is that whoever granted refugee status may subsequently cancel it. Where refugee status was granted by the Minister he or she may cancel following an application being made by the RSB under paragraph 2(14)(b). The Minister also has the power to cancel where refugee status was granted by ICOR following a recommendation under paragraph 2(8) by the RSB. Where refugee status has been granted by this Authority we may, upon receipt of an application by the RSB under paragraph 2(7), consider whether our grant of refugee status should stand. Finally, where refugee status was granted by the RSB they may cancel pursuant to paragraph 2(6) but any decision made by the RSB to cancel may be the subject of an appeal to the Authority under paragraph 5(1)(d) of the Authority's TR.

Thus, the only circumstance in which an appellant has a right of appeal against a decision to cancel refugee status, is where it has been cancelled by the RSB and the appellant has a right of appeal to this Authority under TR paragraph 5(1)(d). Accordingly, the Authority sees no merit in counsel's argument that the appellant has been deprived of a generally available right to have a decision to cancel refugee status reconsidered.

Counsel made further submissions upon whether the Authority's jurisdiction might be ousted by TR Part II, paragraph 7(1)(b) or 7(2). However, given our view upon the construction of TR paragraph 5(1)(d) and conclusion that it does not confer jurisdiction to hear this appeal, there is no need for us to consider counsel's further submissions.

Following the Authority's preliminary ruling on this further jurisdictional issue, counsel made a further application for an adjournment as she had been unable to obtain documentary evidence from the Bar Association of Bangladesh. Her letter to the Association had been returned undelivered but she hoped to receive a reply from them via a contact she had established by E Mail in Bangladesh. Whilst the Authority had some sympathy for counsel's difficulties in obtaining information from Bangladesh, we also had regard to the protracted nature of the appellant's various claims and the not inconsiderable stress which was being placed upon him by the need to attend at further adjourned hearings of the Authority. There was no indication as to when (or indeed whether) a response from the Bar Association of Bangladesh might be forthcoming and the Authority further notes that the appellant's second claim was filed over a year ago. Accordingly, the Authority declined counsel's application and proceeded to hear the appellant's evidence but allowed 21 days for further evidence and submissions.

On 8 October 1997 a facsimile was received by counsel enclosing an E mail, dated 25 September 1997, from one SM, a Bangladeshi barrister, to whom counsel's enquiry of the Bangladesh Bar Council had been referred. The E mail failed to address the issue of whether the appellant would encounter difficulties as a result of his status as an asylum seeker being made known to the Bangladeshi authorities. However, SM suggested that if the appellant had made false representations about having been convicted of a criminal offence, this would constitute an offence under the Bangladeshi penal code, with which the appellant could be charged, regardless of his political allegiance. Counsel conceded, in her covering letter, dated 7 October 1997, that this further information did not advance the appellant's appeal.

THE FACTUAL BASIS OF THE APPELLANT'S FIRST REFUGEE APPLICATION

The appellant was born in 1968 in Chittagong and became a member of the Chattra League, (CL) the student wing of the Awami League (AL), whilst at college. The appellant attended demonstrations, meetings and put up posters and then, in about 1984, became secretary of the CL's governing committee. Although the appellant's father was opposed to his involvement in political activities, the appellant continued supporting the AL.

The appellant was arrested for the first time in about December 1984 when he took part in a demonstration organised by the AL. He was injured during the demonstration having been attacked by members of the Jatiya party (JP) but was released after several days. In March 1985, the appellant was attacked by JP workers after returning from a demonstration. He was then arrested by the police and detained for two days during which time he was beaten. In about May 1985, the appellant was in an open vehicle, speaking from a microphone in support of the AL, when the taxi was set on fire by opposing political activists. The appellant leapt from the flames and had the good fortune not to be injured, but was immediately arrested by two soldiers and taken to army barracks where he was beaten badly and detained for nine days.

In September 1985, the appellant transferred to a new college in the hope that he would avoid the attention of the government's political workers. However, he soon found himself embroiled again in political activities and, following the AL's announcement that they would participate in the parliamentary elections held on 7 May 1986, the appellant was involved in canvassing and campaigning for the party. He was appointed as an observer at a local polling centre. At about mid morning, whilst voting was in progress, the centre was attacked by about 19 armed JP supporters who attacked the appellant and other officials. During the fracas the appellant's heel was injured by a knife which was thrown at him. The police and army observers did not intervene at the time but, on the following day, issued a warrant in respect of the appellant whereupon he left home and went to stay with friends.

In July 1987, the appellant was beaten by JP supporters whilst on his way to college. He was beaten and warned that if he did not leave the AL his life would be at risk. Later that month the appellant participated in a demonstration during a 54 hour strike. The demonstration became violent and the appellant fought with JP supporters. The appellant threw a stone and this hit the forehead of a JP leader which began bleeding and enraged his supporters, one of whom attempted to shoot the appellant with a pistol. The appellant managed to escape but later learned that a warrant had been issued for his arrest and, accordingly, went into hiding and decided to leave Bangladesh.

The appellant obtained his passport, after paying a bribe and left Bangladesh on 25 September 1987 for Japan. He remained there until July 1989 when he returned to his home in Bangladesh, having learned that his mother was seriously ill with cholera. After a few days his mother recovered from her illness his father insisted that the appellant leave the family home. Shortly thereafter the police raided the house looking for the appellant. After just 12 days in Bangladesh, the appellant returned to Japan and then travelled on to New Zealand via Switzerland, arriving here on 16 September 1989.

By mid-1994, the appellant had learned that he had been tried and convicted in absentia upon charges relating to the demonstration in which he had participated in July 1987. He had been sentenced to 14 years' imprisonment.

JURISDICTION OF THE AUTHORITY TO HEAR THE APPEAL

The jurisdictional issues raised by second time appeals are fully canvassed in Refugee Appeal No 2245/94 Re SS (28 October 1994) and no purpose would be served by repeating what is said there. The essential issue to be addressed is whether, since the original determination, i.e. the first appeal

1. circumstances in the appellant's home country have changed

2. to such an extent that the further claim is based on significantly different grounds to the original claim.

To determine this issue, it is necessary to examine the factual basis of both the first and second refugee applications submitted by the appellant.

THE FACTUAL BASIS OF THE APPELLANT'S SECOND REFUGEE APPLICATION

The appellant's second appeal was based on two grounds. Firstly, that the court documents which showed that the appellant had been sentenced to 14 years imprisonment were genuine. The second ground was that he had been identified to the Bangladeshi authorities as a person who had claimed refugee status in New Zealand.

The appellant produced the following documentary evidence, which had been obtained by his brother in Bangladesh, in support of his second appeal:

(a)letter from AKA, Bangladeshi advocate and president of the Chittagong Bar Association dated August 20th 1997;

(b)letter from SUA, former president of the Chittagong District Bar Association dated 10 August 1997;

(c)letter from BUA, advocate and former representative of the appellant dated 21 August 1997;

(d)AM, advocate (and former representative of the appellant) dated 20 August 1997;

(e)letter from the appellant's father dated 5 August 1997;

(f)letter from the assistant chairman of the Bangladesh Chattra League dated 18 August 1997;

(g)letter from SHKM, president of the Bangladesh society for the enforcement of human rights, dated 5 August 1997;

(h)letter from SWA, Awami League member of parliament, dated 9 August 1997.

Counsel for the appellant also supplied the Authority with a letter which had been written to the Bar Association of Bangladesh, which had been returned undelivered, and a copy e-mail, dated 25 September 1997, from SM, a Bangladeshi barrister.

The appellant's brother had been told by the secretary of Judge SEU that two people from the British High Commission, accompanied by an interpreter, had been to the Judge's chamber making enquiries about the appellant and had mentioned that the appellant had applied for refugee status. The appellant further stated that his family members all knew that he had applied for refugee status. He acknowledged that the eight letters which his brother had obtained in support of his second appeal, all made reference to his refugee application and accordingly, their authors, including SWA, who was an AL member of parliament, were all aware that the appellant had claimed refugee status.

The Authority asked the appellant why he believed that his application for refugee status would cause him difficulties if he were to return to Bangladesh now, given that the AL had been in power since July 1996. The appellant stated that this would create difficulties for him because he had been sentenced to 14 years imprisonment and since many political prisoners remained in jail notwithstanding the change of government he could expect no assistance from his party. When questioned further on this matter, the appellant stated that he may have brought his country's name into disrepute by making a refugee application.

ASSESSMENT OF THE CHANGE OF CIRCUMSTANCE

The Authority notes that most of the documentation submitted in support of this appeal relates to the first, and not the second, ground of appeal. Documents A, B and E express the writers' general view that the appellant should not return to Bangladesh and documents C, D and F state that the appellant should not return because he has been sentenced to imprisonment by Judge SEU. The appellant's conviction in absentia and sentence were raised in connection with the appellant's first application for refugee status under the previous "ICOR" procedure and, for the reasons already given, the Authority cannot consider the first ground of this appeal.

Before determining whether there has been a change of circumstance in this case, the Authority must first assess the credibility of the appellant's claim. In doing so, the Authority finds that we cannot accept the appellant's evidence as credible for the following reasons:-

1. The Authority does not accept that the officers of the British High Commission told the judge that the appellant had applied for refugee status.

According to counsel, the suggestion that the officials of the British High Commission had communicated this information to Judge SEU came from the appellant's brother who had visited the courthouse and spoken to the secretary of Judge SEU. He was unable to speak to the Judge himself but was told by the secretary that two foreigners had visited the judge in relation to the appellant and that he had refused to see them. The foreigners returned the following day and, reluctantly the Judge gave them an appointment. The secretary was aware that the appellant had applied for refugee status and that he had been sentenced in absentia to a long term of imprisonment on a political charge.

The appellant's attention was drawn to the letter from the British High Commission, dated 8 February 1996, which states:

"1.We visited the Court on one day (date provided) only

2.We were never turned away from the court or made to leave. We were fortunate to find the Judge in his chambers and he was perfectly content to assist us in our inquiries.

3.The Judge was never suspicious or reluctant to speak to us. He was open and co-operative.

4.....

5.To check the documents formally through the government here would have been impossible so to gain his confidence and co-operation we needed to tell him that we were making inquiries on behalf of yourselves. Although we never specifically told him that the applicant had applied for refugee status (which we never do) or that he had claimed to have been sentenced in absentia, it would have been fairly clear to the judge that the inquiry was prompted by something along those lines. We were clearly not at the court House in Chittagong to check out arrest warrants etc for a student visa application! "

The appellant was unable to explain why his brother's account of the visit of the British High Commission official's visit differed from the account of the officials themselves. The Authority finds it hard to believe that the appellant's brother spoke to the Judge's secretary as claimed, given that his version of events differed so markedly from that of the British High Commission officials. However, even if the appellant's brother had spoken to the Judge's secretary, the Authority must prefer the evidence of the British High Commission officials to that of the appellant's brother who never spoke to the judge himself but merely to his secretary and furthermore, is a partial witness.

2. The Authority was somewhat puzzled by references in a number of the letters submitted in support of the appellant's second claim, namely those numbered E, G and H to the appellant being somewhat at odds with the AL government. For example, the appellant's father states, in his letter of 5 August 1997:

"I'm sorry to say that my son, SMIU, possess a different views against this government. So the present Govt. is about to arrest him and put in detention." (sic)

SWA, Awami League Member of Parliament similarly states, in his letter of 9 August 1997, that the appellant

" … very often differs which some of the policies of the present Govt. as a Conscious citizens." (sic)

SHKM, President of the Bangladesh Society for the Enforcement of Human Rights, stated in his letter of 5 August 1997:

"He [the appellant] has often expressed opinions against the activities of the present Government of Awami League in Bangladesh. There is every possibilities that the Govt. will take action against him. He may also be implicated in false criminal cases and be arrested."

When questioned about this the appellant confirmed that he had not discussed his views with anyone in Bangladesh apart from his brother to whom he had spoken on the telephone. The appellant suggested that perhaps his brother had mentioned these conversations to the authors of these various letters.

When asked to explain precisely what differences he had with the AL government, the appellant indicated that he was not happy with the way Sheikh Hassina was running the party. He also mentioned that a number of AL members had been expelled from the party and he did not agree with this.

The Authority finds that these are rather vague criticisms of the party which were not advanced at the hearing with any great degree of commitment or enthusiasm by the appellant. The Authority does not believe that there has been any serious rift between the appellant and the AL during his absence. The Authority believes that these references to the appellant's differences with the AL are not genuine and have been included in an attempt to provide the appellant with some basis for a continuing fear of return to Bangladesh, given that the AL, of which the appellant is a life-long supporter, is now in power.

Accordingly, we have rejected the appellant's claim that the British High Commission representatives communicated to the Judge that the appellant has applied for refugee status. The Authority has considered the view expressed in the British High Commission's letter dated 8 February 1996, that the Judge may have guessed that they were making enquiries about a refugee applicant. The Authority finds that this is pure speculation and do not accept that the Judge would have leapt to this conclusion as a result of their visit. Applicants for permanent residence are required to produce evidence of good character and the British High Commission officials could equally have been engaged in enquiries of this nature.

In any event, there is no evidence whatsoever that the judge, even if he had guessed that the appellant had applied for refugee status, has communicated this to anyone "in authority" in Bangladesh.

In conclusion the Authority does not accept that there is any evidence that the appellant's status as an applicant for refugee status has been communicated to Judge SEA who has, in turn communicated this to those in authority in Bangladesh. There is no change of circumstances in the appellant's home country and his claim is not therefore based on significantly different grounds.

Finally, the Authority notes that the party to which the appellant has a long standing allegiance, namely the AL, has been in government since July 1996. Even if we had found that the appellant was known to be have sought asylum, this would not cause the slightest difficulty for him if he were to return now. The appellant escaped Bangladesh because, as an AL activist, he was being harassed by JP government supporters. There is no reason why an AL government would wish to cause difficulties for the appellant for having claimed asylum in such circumstances - quite the contrary. The Authority further notes that the appellant's brother appears to have informed a number of people, including an AL Member of Parliament, that the appellant has applied for refugee status. We find this to be inconsistent with the appellant's claim that the AL authorities would cause difficulties for him and further confirmation, if any were needed, that there is no danger for him in Bangladesh for this reason.

CONCLUSION

For these reasons, the Authority finds that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

Member

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