Refugee Status Appeals Authority  




Before:                             B O Nicholson (Chairperson)
                                       S Clapham (Member)
Counsel for Appellant:       Ms C Kiel

Representative for NZIS:    No appearance

Date of Hearing:                9 March 1995

Date of Decision:              23 November 1995



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

The appellant comes from Dhaka in Bangladesh, where his wife, his widowed mother, three brothers and seven sisters reside. The appellant is a 33 year-old man. He has one child of his marriage, who is living with the appellant’s wife.

The appellant, while still a student in 1975, became involved with the Student Front of the Awami League, a political party in Bangladesh. He played a minor role in the student organisation.

In 1982, after graduating from university, the appellant joined the Directorate General of Forces Intelligence (DGFI). The Directorate is a division of the Ministry of Defence. The appellant worked for the Directorate until June 1988, when he was dismissed under circumstances which we will later describe.

The appellant joined the Directorate shortly after General Ershad had successfully carried out a military coup in Bangladesh. The appellant said that at the time he joined the Directorate as a young man, he was not aware of exactly what work he would be called upon to do. The appellant said the Directorate had six divisions, being Counter- intelligence, the Intelligence Bureau, Forces Research Analysis, Surveillance, Defence Science, and Administration. The appellant said that in his time, he worked in the Counter-intelligence and Surveillance divisions only. He said that while his surveillance work did not involve him in interrogation activities, his counter-intelligence work did. Interrogation of individuals was carried out by the Joint Interrogation Centre (JIC). While the appellant did not work specifically in that Centre, he was called upon to work there from time to time and the appellant frankly acknowledged that he took part in inflicting physical and psychological torture on persons arrested by the Counter- intelligence Bureau.

The appellant said that he was called upon to do this work because his employers were aware of his past political experience with the Awami League and it was their intention to put that experience to use in interrogation. The appellant said that his work in interrogation related to student politics with which the appellant was familiar, and when students were especially active, he would be called in to the JIC two or three times per week for interrogation sessions.

He estimated that he was involved in forceful interrogation of hundreds of persons, during which torture was used. For example, on one occasion, some 3,000 to 3,500 students were arrested and the important ones were taken to the JIC and, on that night alone, the appellant had to question 30 students. The JIC sorted out roughly 100 students from those arrested, who were regarded as hard-core political activists, and these were interrogated further with torture. The appellant, along with others, was involved in torturing them.

The appellant said that during these interrogation sessions, he sometimes worked alone using torture, but on other occasions there would be several officers working together. The appellant was a middle-ranking officer, as a deputy assistant director. He described himself as being in the fifth rank from the chief of the Division, and there were four ranks below his. The torture methods used were both physical and psychological. Persons arrested were beaten with sticks; warm water was poured down their noses; they were deprived of food; they were blindfolded and had their arms and legs tied; they were subjected to high-pitched sounds for lengthy spells; electric shocks were applied to hands and legs; needles were inserted under the fingernails.

The appellant said that he always instructed others to administer the electric shocks and the needles as he did not like to do this work, but he did administer the other forms of ill- treatment and torture. He found all the work very unpleasant, but he did it because he felt he had no choice. He said a number of persons who worked with him, had disappeared; three colleagues in particular, who started work with him, and who developed conscientious objection to the work, simply disappeared. He “questioned himself” about the work, but feared he would be killed. He said that in this Directorate there was no such word as “No”.

In 1983, the appellant began supplying information to political figures in danger of arrest. He said that mostly he supplied information to friends in the Awami League, although sometimes he supplied it to other parties’ members as well. The information consisted of warning people in advance of an intention to arrest or kidnap them for interrogation purposes. He carried on doing this until 1986, when, he now realises, he had been found out by his superiors. He was initially moved to surveillance work for a year and then to office work for six months.

In April 1988, he was taken back to the JIC, where he was detained for 24 hours. He was questioned and threatened and kept without food and was then released. He said he made no admissions about his warnings to potential detainees. After some days he was suspended from his work. Following interviews with officials, he was dismissed from the service in June 1988.

The appellant decided to go into hiding for fear of the consequences of his actions, and he also obtained casual employment as a teacher in Dhaka.

However, because of his need to move about to avoid detection, he was unable to do the work on a regular basis. In March 1989, he found out that the authorities had been enquiring for him at his home. He was already in hiding because opposition to the government of President Ershad was increasing. His home village was near the border with India, and he made several visits to India to void the attention of the authorities. He said that he secretly carried on work with the Awami League, trying to recruit and motivate people whenever he had the opportunity. He also provided information about the methods of the DGFI. He estimated that he made five or six visits to India during this period, all by way of illegal entry at remote border points.

However, in October 1990, he was kidnapped by DGFI members and taken to the interrogation centre. He was tied up and informed that he was going to be killed because he had passed information. He was blindfolded, his arms and legs were tied and he was kept in the dark. Interrogation proceeded over a period of three or four days, accompanied by beatings and the administration of electric shocks. He was hit with a steel rod on one leg, causing a serious wound, which later had to be stitched. He was encouraged to confess to whom he had given information, and questioned about any relatives he might have among government or military high officials. He said he could make no admissions because he knew if he did so, he would be killed.

The interrogation lasted for five days, and he was released after a total of seven days, upon his signing a paper undertaking never to talk about the DGFI. He was then taken by car, blindfolded, and thrown out on a road. The appellant said that after that, he never stayed at home but kept moving about. He learned later that DGFI men came to his home and threatened his wife and his father.

In December 1990, President Ershad resigned and in February 1991, democratic elections were held, resulting in a victory for the Bangladesh National Party (BNP). President Ershad was placed under arrest and later imprisoned. In April 1991, 16 DGFI officers, who had been strong supporters of President Ershad, were arrested. The appellant says that he did not believe that the BNP government had the ability to do this on its own, and that the arrests were carried out by a pro-BNP faction within the DGFI.

The appellant said that he continued his activities with the Awami League, including giving information about the methods of the DGFI. After the change of government, he waited to see whether or not a democratic way of life would be introduced into Bangladesh, but he found that the authorities, even under the BNP government, began torturing the opposition people, using emergency legislation in force throughout the country to arrest people. When he realised that the dream of a democratic government had not occurred, he began to make arrangements to leave the country.

The appellant said that the chief of the DGFI had been arrested and had made full disclosures of the activities of the Directorate. At the same time, opposition parties were pressing the BNP to prosecute members of the Directorate. The appellant said he believes that the BNP government wants him as a witness, but the military faction in the country, at any cost, will try to prevent him giving evidence. He fears that that faction will catch him and kill him if he goes back to Bangladesh.

The appellant left the country after acquiring a passport in 1991 and arrived in New Zealand in March 1993. He explained that he had applied unsuccessfully for visas in a number of countries. He had obtained a visa for Indonesia, but decided that, because it was not a democratic government, he did not wish to live there.

The appellant said that his family joint income was sufficient to help him survive, that his wife had a good job and that the family as a whole were sufficiently solvent to support him throughout the period when he was avoiding the attention of the authorities.

The appellant said that he has reason to fear BNP government because he arrested and interrogated many BNP people during his time in the Directorate. He never gave BNP politicians warning directly that they were to be arrested. The appellant says that since leaving the country, his wife advised him on a number of occasions that the police have been to see her with a warrant for his arrest. He acknowledges that he has had no indication that the BNP want him to return simply to give evidence.

In summary, the appellant fears that he will be killed by his former colleagues in the Directorate if he returns to Bangladesh, because they fear that he will give information about them to the government and he fears the BNP government will imprison him because he has, in the past, interrogated BNP members.

The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocl 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, is unable or, owing to such fear, is unwilling to return to it."
The primary issue for the Authority is that of the appellant’s credibility.

While there were some discrepancies in the appellant’s various accounts given to the Refugee Status Section and to this Authority, in general, our conclusion was that the appellant should be given the benefit of the doubt on those points and we are prepared to accept that his account is a credible one.

In particular, the appellant failed to disclose to the Refugee Status Section at his interview that he had been involved in the torture of political detainees. At the interview he merely stated that he was involved in arresting and kidnapping political leaders, as well as surveillance duties. However, the nature of the disclosures he has now made are such that we proceed on the basis that he has been truthful.

The issues as we seen them in this case, are as follows:

1.    Does the appellant have a genuine fear?

2.    Is the harm that he fears of such a nature as to amount to persecution?

3.    Is the harm he fears related to a Convention reason?

4.    Is the fear of persecution well-founded?

5.    If the appellant meets the criteria for refugee status, should he be excluded from refugee status by operation of Article 1F of the Convention?

In our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) the Authority held that in relation to issue (4) the proper test is whether there is a real chance of persecution.

We find the appellant is genuinely in fear, and that the harm that he fears in the form of death at the hands of the DGFI is sufficiently grave to amount to persecution. Insofar as his fear of the BNP is concerned, we find that what he fears is a matter of prosecution rather than persecution, since his fear of the BNP is based upon the concern that he will be punished for his activities in interrogating and torturing BNP detainees. Accordingly, this would be a matter for the domestic criminal law of Bangladesh, and is not a matter which involves the Refugee Convention.

As to the third issue, we find that the appellant’s fear of the BNP government again is related to his activities in interrogating and torturing detainees who were sympathisers of that government. Although there is a political element to his fear, we are not satisfied that the actions he fears from the BNP relate to his political opinion or imputed political opinion, but rather to what are perceived as crimes by the BNP government. Accordingly, we are not satisfied that the appellant’s fear of persecution is by reason of his political opinion as he claims.

As for his fear of the DGFI, this is clearly based upon the concern of his former colleagues that he would give evidence about their activities within the Directorate. Again, this is not a question of his being persecuted by reason of his political opinion, but because he might be called upon as a witness against them. Accordingly, we are not satisfied that the harm he fears from either of these two sources is by reason of his political opinion or any other Convention ground.

As to whether his fear is well-founded, we accept that given his activity in the DGFI, there is a real chance that he would be pursued by the BNP government if he returned to Bangladesh. We further accept that there is a real chance he will be killed by the Directorate members, or at least suffer bodily harm at their hands.

Because of a lack of a Convention reason for the feared harm, our conclusion is that the appellant has not established a claim to refugee status.

If we are wrong in reaching this decision and if we were to assume that the appellant did meet the criteria of Article 1A(2) of the Refugee Convention, we would then have to consider whether he should be excluded from the operation of the Convention by virtue of Article 1F.

Article 1F provides:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
a)    he had committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
b)    he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
c)    he has been guilty of acts contrary to the purposes and principles of the United Nations.”
Counsel for the appellant referred the Authority to paragraph 149 of the UNHCR Handbook (1988) which concludes:-
“Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive.”
As to Article 1F(a), Professor Hathaway, in The Law of Refugee Status (1991) at page 216 writes:-
“As customarily interpreted, this exclusion clause therefore bars those who commit three distinct type of crime. First, a “crime against peace” comprises the planning of or participation in an unlawful war. Second, a “War crime” involves the violation of a law of war, including the mistreatment of civilians and prisoners of war, or the infliction of unjustified property damage during wartime. Third, a “crime against humanity” consists of fundamentally inhumane conduct, often grounded in political, racial, religious or other bias. Genocide, slavery, torture and apartheid are examples of crimes within this category.”
In Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 F.C. 433 (FC:CA) at page 443 Linden J.A., in considering the definition of “crimes against humanity” said:
“As one Canadian commentator, Joseph Rikhof, supra, at page 30 has noted:
“This requirement does not alone mean that a crime against humanity cannot be committed against one person, but in order to elevate a domestic crime such as murder or assault to the realm of international law an additional element will have to be found. This element is that the person who has been victimised is a member of a group which has been targeted systematically and in a widespread manner for one of the crimes mentioned ...
Another historic requirement of a crime against humanity has been that it be committed against a country’s own nationals. This is a feature that helped to distinguish a crime against humanity from a war crime in the past. (See the Flick Trial, supra, as well as the Justice Trial, supra). While I have some doubt about the continuing advisability of this requirement in the light of the changing conditions of international conflict, writers still voice the view that they “are still generally accepted as essential thresholds to consider a crime worthy of attention by international law” (Rikhof, supra, at page 31).”
The existence of the 1984 Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, to which New Zealand is a signatory, lends support to the view that torture falls within the purview of Article 1F(a) as a “crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes”.

We find that the appellant, as a member of a state agency, was involved personally in the systematic targeting of political opponents who were nationals of that state and that his acts of torture constituted crimes against humanity.

Counsel attempted to cast doubts on the appellant’s estimate that he had personally been involved in the torture of hundreds of victims. We could find no reason to doubt his own estimate, however.

Counsel also submitted that the evidence showed the appellant did not administer torture himself but instructed others to do so. Our notes of the evidence show this submission to be incorrect and that the appellant merely refrained from personally applying electric shocks and needles under fingernails. He did, however, personally use the other forms of torture described and did direct the use of the two most extreme forms by others. We see no justification for distinguishing between his personal use of torture and his direction to others to use torture, in any event.

Counsel also submitted that the evidence showed that at least one or two officers more senior to him were involved personally in these interrogations. Again the submission is not in accord with out notes which indicate that the appellant said, sometimes he worked alone, using torture, and on other occasions several officers would work together. We do accept however, that in carrying out his interrogations, the appellant was acting on the instructions of more senior officers who may or may not have been present at the interrogations.

Counsel submitted that the appellant acted under coercion, state of necessity or force majeure. Three colleagues who had objected to the methods used had “disappeared”. She referred to Hathaway at page 218 where he refers to the International Law Commission’s draft Code of Offences Against the Peace and Security of Mankind which suggests that three limited exceptions to the general principle of responsibility are available viz. defence of one’s state, coercion and error of law. The draft offers three essential conditions for a successful plea of coercion. These are:

(1)    that the individual is motivated to commit the act in question only in order to avoid grave and imminent peril;

(2)    that his predicament was not of his making or consistent with his will;

(3)    the harm he inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion.

Accordingly, counsel submitted, the appellant was deprived of the freedom to choose between right and wrong, his predicament was not of his making or consistent with his will and the harm he feared was death.

At page 220, Hathaway concluded his own view of the question in the following terms:

“In sum, a crime against peace and security is defined by its seriousness, whether based on the nature of the act itself, the extent of its effects, or the motive of the perpetrator. A person who commits such an act is culpable unless a strictly construed exception based on self-defence, coercion or error of law can be established. Moreover, all of the recognised exceptions to responsibility for crimes against peace and security are inoperative if the facts invoked constitute a breach of a peremptory norm of international law, originate in a fault of the perpetrator, or result in the sacrifice of a greater interest than that protected.
The last question to be addressed is the degree of involvement required to justify criminal liability. While mere presence at the scene of a crime may not be actionable, exclusion is warranted when the evidence establishes that the individual in question personally ordered, invited, assisted or otherwise participated in the persecution ...”
Since the publication of Professor Hathaway’s work, the Canadian Courts have considered the issue of coercion in relation to Article 1F(a).

In Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 F.C. 306 (F.C:C.A) the court considered the position of accomplices to war crimes. At page 31 MacGuigan J.A. said:

“In fact in my view there is no liability on those who watch unless they can themselves be said to be knowing participants.”
The court rejected an argument as to duress, and in doing so appeared to apply the exceptions envisaged by the International Law Commission in its draft Code.

In Sivakumar (supra), Article 1F(a) was applied to an asylum seeker who played an active role in the Liberation Tigers of Tamil Eelam (LTTE) against the Sri Lankan government and was regarded as an accomplice to principal actors in crimes against humanity. The court, after referring to MacGuigan J.A.’s dictum in Ramirez that “law does not function at the level of heroism”, said:

“Thus people cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organisation. But neither can they act as amoral robots.”
The appellant claimed that he performed the acts of torture against his will because had no other choice. To refuse was to put himself at risk of torture and death. Three of his colleagues who expressed conscientious objections had simply “disappeared”. He could offer no details about these disappearances. His position is to be distinguished from the Canadian cases in that he was clearly a principal perpetrator, and not a mere accomplice. He was not in a war situation nor was he part of a military organisation in the field under arms or in barracks, where discipline would be imposed upon him on a 24 hour per day basis. He was essentially in a civil service role within the Ministry of Defence.

With the Authority is prepared to accept as a useful guide the International Law Commission’s draft view of the requisite exemptions from exclusion because of coercion, we do not accept that the appellant meets the first of those conditions which would enable exemption to apply. We do not accept that he was in such “grave and imminent peril” that he was motivated to carry out these numerous acts of torture. He was clearly a principal perpetrator of the acts, although we accept that he was in the middle rank of the hierarchy of the Directorate and, as such, was subject to the direction of his superiors in carrying out his tasks. We also accept that when he first joined the Directorate, he was unaware that he would be called upon to do this type of work. Nevertheless, he admits that he continued in these tasks from 1982 to 1986 during which period he was personally involved in the torture of several hundreds of victims.

We do not believe that at some early stage in this period he could not have simply absented himself from work and escaped into hiding or gone abroad. His later exploits in avoiding capture for lengthy periods and his journeys into India show that there were such options available to him to extricate himself from his situation. The requirement to exercise such options would not mean the law was functioning at the level of heroism in his case.

We do not overlook his evidence that he worked secretly to assist his Awami League associates to avoid being arrested and tortured and that he sometimes extended this assistance to members of other political parties. Nor do we ignore his evidence that, after he was dismissed from the service, he worked to expose the machinations of the Directorate to the public. These factors do not alter the basic fact that, on his own admission, he committed crimes against humanity. He has thus more than met the criterion that this tribunal must have “serious reasons for considering” that he had committed a crime against humanity, as defined in an international instrument drawn up to make provision in respect of such crime.

Accordingly, Article 1F(a) operates to exclude the appellant from the provision of Article 1A(2) of the Refugee Convention. We are therefore not called upon to consider the effect of the remaining parts of Article 1F in respect of this appellant.

For the reasons given, this appeal is dismissed and refugee status is declined.

“B O Nicholson”