comparative study on refugy law

8/12/2019 COmparative Study on Refugy Law

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A comparative study on Refugee Law

Introduction:

One of the most difficult challenges confronting the world atthe close of the 20th century is the problem of refugees and

displaced persons. Greek writer Euripidesnearly 2500 years

ago coated that there is no grater sorrow on earth than the

loss of once native land Ever since mankind has existed there

have been refugees. But, the beginning of this century of the

homeless man, the number of refugees has arisen

significantly and an especially in its second half. It is the major

concern of human rights law.

The leaders of international community being of aware of this

problem took various attempts to combat this problem. The

1951 Convention relating to the Status of Refugees and its 1967

Protocol remains central to international protection of refugees

and may be supplemented by regional instruments that address

specificities of refugee situations in the regions concerned.

Bangladesh has been facing refugee problem from 1971, when

more or less 10 million people of Bangladesh took shelter as

refugees in India at the time of liberation war. The same thing

appeared after 1990s that huge number of Rohingyas came

from Burma (Myanmar) in Cox's Bazar of Bangladesh becauseof fear of life for religious and political causes that are under

the criteria of Refugee Convention of 1951. Bangladesh is a

developing country and facing numerous problems day by day.

Else that Bangladesh has many limitations to host huge people

as refugees that come from Myanmar or others.
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Though, Bangladesh does not ratify the 1951 Convention

Relating to the Status of Refugees and its Protocol of 1967, it

facilitates the refugees under the international human

rightsinstruments i.e. UDHR, ICCPR, ICESCR, CEDAW,

CAT etc. Notably, Bangladesh has no legislative framework to

protect or serve refugee or internally displaced person.

The object of this paper is to evaluate the role of Bangladesh as

a refugee hosting country that will include the refugees such as

Rohingyas, Biharies etc., measures already taken for the

protection of them and the necessity adopting legislativeframework in Bangladesh. Recommendations to UNHCR and

others will also be discussed. Finally, a conclusion will be

drawn overall the research paper.

1. Refugee: Who are they?

The refugee problem continues to challenge theinternational community. For this reason, at fist we have to

know when people considered as refugee. And who can be able

to treat as refugees and who can not be?

Within the meaning of the 1951 convention a person maybe

considered as a refugee as soon as he fulfills the criteria

contained in the definition. Determination of the refugee status

is a process which takes place in two stages.

Firstly, it is necessary to assertion the relevant facts of the

case.

Secondly, the definitions in the 1952 conventions and the

1967 protocol have to be applied to the facts thus ascertains.

The provisions of the 1951 convention defining who is a

refugee consist of three parts, which have been termed


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respectively inclusion, cessation and exclusion clauses.

The inclusion clauses define the criteria that a person must

satisfy in order to be a refugee. They form the positive basis

upon which the determination of refugee status is made. To be

a refugee, four basic conditions must be met. The applicant

must be

(a) outside his country of origin;

(b) have a well-founded fear of persecution;

(c) this fear must be based on one of five grounds, e.g.

race, religion, nationality, membership of a particular socialgroup, or political opinion,

(d) unable or unwilling to avail himself of the protection

of that country, or to return there, for reason of fear of

persecution.

The exclusion clauses stipulate that the convention shall not

apply to persons who meet the inclusion criteria, but who donot need or deserve protection. This would apply to a person

receiving protection or assistance from organs or agencies of

the United Nations other than UNHCR; or, a person who has

committed a crime against peace, a war crime or a crime against

humanity, a serious, common law crime prior to admission to

the country of asylum - or an act contrary to the purposes and

principles of the United Nations. The cessation clauses

stipulate that a person shall no longer be considered a refugee

if there has been a fundamental change of political

circumstances in the country of origin enabling him to take up

renewed residence there.

1.1 Refugees: Their Status


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The term 'refugee' generally means a person who is in

flight seeking escape conditions or personal circumstances

found to be unendurable and this flight may be to freedom and

safety or from oppression, threat to life or liberty or from

prosecution, deprivation, grinding poverty or from natural

disasters, earthquake, flood, drought or famine or from war or

civil strife.[1] The Refugee Convention[2] has accumulated

some definitions prevailing in different international

instruments from 1922 to 1946 and it tries to define a refugee

in Art. 1(A) as any person who, owing to well-founded fear ofbeing 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 suchevents, is unable or, owing to such fear, is unwilling to return

to it.[3]But this definition is not yet free from criticism as it

narrows down the ambit of the term, even though the definition

refugee has dominated the arena of refugee law for the last 30

years. Some commentators have save that it does not include

people as refugees who are internally displaced persons or who

are deported or expelled from their own countries and some of

home have been send to undertake forced labor or persons who

are unable or unwilling to avail themselves of the protections

of the government of their country of nationality or former

residence3. The Cartagena Declaration on Refugees" extends

the traditional refugee definition to include persons who have

fled their country because their lives, safety or freedom have
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been threatened by generalized violence, foreign aggression,

internal conflicts, massive violations of human rights or oilier

circumstances, which have seriously disturbed public order[4]

1.2 Refugee: Who is not

The following groups of people may not claim the refugee

status.

(a) Persons who have participated in war crimes and massive

violations of international humanitarian law. Even any person

against whom there are serious grounds of suspicions of thisnature will be excluded.

(b) A soldier cannot be considered a refugee if he/she continues

to pursue armed action against the country of origin from the

country of refuge. A refugee is a civilian.

(c) Persons who have been refused, under an equitable

procedure, refugee status.A migrant who leaves his/her country voluntarily to seek a

better life in another country is categorized as an economic

migrant and is not a refugee.

1.3 Essentials for being a Refugee:

There are four fundamental elements: (a) they are outside

the country of origin / nationality (b) they are unable or

unwilling to avail themselves of the protection of that country

or to return there (c) such inability or unwillingness is caused

by a well-founded fear of being persecuted and (d) the

persecution feared is based on race, religion, nationality,

membership of a particular social group or political opinion.
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With regard to race we must refer to the 1965 Convention

on the Elimination of All Forms of Discrimination[5] which

defines that practice to include distinctions based on 'race,

color, descent, or national or ethnic origin'. Persecution on

account of race has been the background of many refugee

movements in all parts of the world.

Religion has been one of the reasons for the movement of

persons from one country to the other. Most glaring example

was the persecution of Jews in Nazi Germany and only a small

number could flee to other countries in early 40s. Article 18 ofthe 1966 Covenant on Civil and Political Rights[6] provides

that "everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to

have or to adopt a religion or belief of his choice and freedom,

either individually or in community with others and in public

or private, to manifest his religion or belief in worship,observance, practice and teaching. Then comes the social group

which could be factor of persecution. Often the feudal lords

oppress the tenant-farmers. The intention is to protect a social

group facing persecution. It has been considered that there

could be three possible categories of social group a) by reason

of gender, women may be subject to violence without any

remedy in her country (b) human rights activists and (c) former

dictators or capitalists[7]

The last criterion of the Convention is fear of persecution

because of political opinion Often the state authorities

persecute a person for holding a political opinion unpalatable

to the authorities. Article 19 of the 1966 Covenant on Civil and

Political Rights states that "everyone shall have right to hold
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opinions without interference". However this right is qualified

by certain restrictions. In the definition of the refugee, the word

"unwilling" to return to the country of origin has been used.

Some writers11 hold the view that "inability" to return is of

objective character while "unwillingness" based on a well-

founded fear of persecution is a combination of both subjective

and objective factors. In both cases, if the refugees would be

able to return to the country of origin, they might not return due

to unwillingness because of subjective factors.

2. History:

The concept of refugee or asylum seeker was found in

Greece in the writings of Euripides and Sophocles during BC

period. During the early Christian period, Roman emperors

persecuted the Christians for their beliefs and many of the

Christians used to hide in the underground chambers(catacomb) which were later utilised for burial of the dead

Holy Prophet Muhammad (SM) had to leave Mecca for

Medina during July and August 622 together with about

seventy followers as his life was in danger. The refugees at the

early 20th century were described by ethnic categories:

Russian, Armenian, Assyrian, Assyro-Chaldean refugees from

Saar (now within Germany). All these groups became uprooted

and dispossessed by wars and social changes, massacres,

persecution and fear.

The first international arrangements that dealt with

refugees, during the time of the League of Nations, were

founded on the simple fact of their presence outside their


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country of origin, and the denial or lack of its protection in fact

or law. Although the numbers of refugees requiring assistance

and protection in those days was significant, as a result of the

aftermath of the First World War, the Russian Revolution and

the collapse of the Ottoman and Austro-Hungarian empires, the

majority were members of existing populations.

The World War II (1939-45) set in motion hundreds of

thousands of refugees. By 192 there were millions of homeless

and displaced people in Europe9[8]

After the Second World War, when a successor to theInternational Refugee Organization (IRO) was being discussed.

Several countries argued, as many do today, for "internal

refugees to be included within its mandate, seeing no

fundamental distinction between the needs of those who had

and those who had not crossed an international frontier. The

"compromise mandate of the UNHCR agreed in December1950 was not to go so far. States were only ready to recognize

a limited category of refugees, when they finalized the text of

the United Nation Refugee Convention in 1951.

The Indian sub-continent saw the forced mass movement

of people because of the changed political circumstances. In

1947 after the partition of British India, hundreds of thousands

of Hindus and Muslims left their homes either to settle in India

or Pakistan for fear of their lives because of communal

violence. Hindus went to India and Muslims came to Pakistan.

In 1948 when an Israel state was created out of the

Palestinian land by the Western powers, thousands of

Palestinian people had to leave their homes to other Middle

East countries
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Often it is found that the minority community has been

subjected to discrimination and mal-treatment by the

mainstream community. Because the minority community in

every country is vulnerable to the domination of the majority

community. The laws are not often strictly enforced by the

organs of the state and as a result the minority community may

fill insecure, even though the constitution and laws of the

country do not discriminate the minority community. When the

minority community fills insecure of their safety they leave the

country of their origin for another country. The insecurity oflife can also occur in the mainstream community if they do not

subscribe to the views of the authority.

3. Types of Refugee:

A convention refugee is a person recognised under the 1951

Convention Relating to the status of refugee and its 1967

Protocol. This person is recognised and protected by a state thatis party to the Convention.

When a person who meets the criteria of the UNHCR statute

qualifies for the protection of the United Nations provided by

the High commissioner, regardless of whether or not he is in a

country as a refugee under either of these instruments. Such

refugees, being within the High commissioners mandate, are

usually referred to as mandate refugee.

When asylum -seekers arrive rapidly in large numbersa

situation commonly referred to as a "mass influx"the

authorities of UNHCR, as appropriate, may decide to determine

eligibility for refugee status on a group basis. Such Convention

or mandate refugees are known as prima facie refugees.


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Sur Place Refugee is a person, who has left his country for

reasons such as education, medical treatment or tourism but

subsequently owing to well-founded fear of being persecuted,

refuses or becomes unable to return to the country of origin.

Stateless personsare those people who are not considered to

be nationals of any state under the operation of its law. A

stateless person does not need to show well-founded fear of

being persecuted in his country for refugee status.

4. The Situation of Refugees in Bangladesh

Since 1947, 30 to 40 million people have crossed bordersin the region in search of refuge and almost ever country

produced and/or received refugees.10

During the liberation war of 1971, one out of every seven

Bangladeshis sought refuge in India. 11Again, failure to arrive

at an 'acceptable solution' to the hill people's demand for a

'special status' for the Chittagong Hill Tracts (CHT) resulted inopting for a military solution. This conflict between the hill

people and the government of Bangladesh led to a series of

exodus of the hill people from Bangladesh to India. After

signing of an agreement between the government and

representatives of the political wing of the hill people, the

Shanti Bahini, about 60,000 refugees returned to their homes in

Bangladesh after 15 years in exile in India. Since independence,

Bangladesh has been hosting around a quarter million stateless

persons.12Most of these people had their origin in the Indian

State of Bihar and opted for the then Pakistan in 1947.

Accordingly, they settled in the region called East Pakistan,

which is now Bangladesh. Again, since independence in 1971,

the country had to host about 250.000 refugees from the
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Rakhaine State of Myanmar13 in 1978 and about a similar

number in 1991- 92.

The situation of refugees and/or stateless persons varies

from group to group and is dependent upon Bangladesh's

negotiations with the country or origin, or the country of which

the refugees and stateless persons seek citizenship.

4.1Rohingyas

Refugees from the Rakhaine province (in Arakan) of

Myanmar entered Cox's Bazar District in two major influxes,

in 1978 and again in 1992. According to UNHCR data, a totalof 22,133 refugees belonging to 3,781 families were kept in two

camps at Nayanpara and Kutapalong in Cox's Bazar. A small

increase of 673 persons in the refugee population was noted this

year, but this was a result of an excess of births over deaths.

4.2 Repatriation

UNHCR records show that repatriation of only 106persons took place in 1998. Earlier a total of 229,485 persons

belonging to 46,021 families had been repatriated between

1995-1997. From August 1997 to November 1998 repatriation

was held back on several counts such as:

Resistance of refugees in the refugee camps to forced

repatriation by government officials;

Clearance from Myanmar Government for family members

received in separate batches, splitting families, and refugees

being unwilling to leave without the rest of their family;

Refusal of the Government of Myanmar to extend the 15

August, 1997 deadline for their return;

Obstruction by militant refugees in the refugee camps to all

repatriation initiatives;


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Absence of a bilateral understanding between Myanmar and

Bangladesh regarding refugee repatriation.

UNHCR has insisted that repatriation should take place

voluntarily and that the returnees be made aware of their rights.

On the other hand delays have been created by the absence of

any agreement between the Governments of Bangladesh and

Myanmar. Even though refugee flows tended to aggravate local

unrest, the UNHCR was supposed to have requested the

Government to accept new refugees from Myanmar.14The conditions set by Myanmar have slowed down

repatriation. A spokesperson of the Ministry of Foreign

Affairs15reported, in June, that they had submitted a list of

7,000 Rohingyas certified by UNHCR as volunteer

returnees.16Their repatriation was expected to be completed

by February 1999. An agreement between the two governmentswas reached on 17 April, whereby refugees living in camps

were to be enlisted by UNHCR in the Voluntary Repatriation

Registration. Although the first list of refugees was submitted

to the Government of Myanmar for clearance in April,

permission to enter was only given on 25 November,17with

the proviso that only 50 persons could leave every week.18The

first batch of 46 persons was sent back on 26 November.19In

December 1998, only 11 families with 60 persons left in three

weekly movements.

To avoid being sent back, many refugees tried to leave the

camps and merge with the local population. Several cases were

reported of refugees fleeing from the camps and settling in

nearby locations. In February 1998, 250 Rohingya families
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traced in St Martins' Island were ousted from the island by the

coastal guard of Bangladesh. In September 1998, a group of

eighteen Rohingya women and children from Myanmar who

had been detained while visiting Dhaka and subsequently held

in "safe" custody in Dhaka Central Jail were admitted to

Kutupalong refugee camp by the government on humanitarian

grounds.

The government maintains two camps at Nayapara and

Kutapalong with UNHCR financial support. NGOs are

assisting with 30 schools in both camps where 2,488 Rohingyachildren were enrolled. Only 32% were girls. Basic utilities.

Basic utilities were also scarce with the user ratio for latrines at

1:22 in Kutapalong and 1:19 in Nayapara and for baths at 1:30

in Kutapalong and 1:37 in Nayanpara. Unhygienic conditions

often lead to conflict and violence amongst refugees. This is

likely to be aggravated if the UNHCR acts on its decision notgive further financial support this year. The government was

informed of this decision at a meeting reported on 2ndFebruary.

Several non-government agencies provided support in health

care, training for teachers and other facilities to the refugees. In

addition academic and professional organisations arranged

some training for management personnel and law enforcement

agencies.

5. Situation of Stateless Person Prevailing in Bangladesh:

An individual may be without a nationality knowingly or

unknowingly. Statelessness is a situation where an individual

cannot claim nationality of any State. The 1954 Convention

Relating to the Stateless Persons20describes in its Article 1


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that the term 'stateless person' means a person who is not

considered as a national of any State under the operation of law.

A Bangladesh national has the rights and obligations

under the Constitution and the laws of the country to receive

protection from the government of Bangladesh. Because the

nationality of an individual is a legal status by which the

individual enjoys the benefits and protection of the State of the

nationality. At any time if there is a breach of rights, a

Bangladeshi national can seek redress either from

administrative agency or judiciary while a foreigner cannotclaim such totality of rights in Bangladesh.

An individual without a nationality may be compared with

a vessel having no captain to guide it. It only floats on the sea.

Likewise an individual without nationality remains virtually

without any legal protection of any State. The nationality is

determined by the domestic law of the country. If an individualloses nationality he/she become Stateless.

The Convention on the Reduction of Statelessness in

196121 was designed to reduce the Statelessnes. Article 1 of

the Convention states that a State shall grant its nationality to a

person born in its territory who would otherwise be stateless.

It has been seen that when a State disappears, the refugee

problem arises because the former State could no more give

protection to the inhabitants of the State. A stateless person

does not need to show well-founded fear of being persecuted in

his/her country. In other words, different conditions apply for a

stateless person to qualify for refugee status.

After the emergence of Bangladesh in 1971, all persons

born or living in the former territory of East Pakistan became


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Bangladeshi nationals except the "Biharis" under the

Bangladesh Citizenship law. (President's Order No. 249 of

1972 of the Government of Bangladesh). Many "Biharis"

exercised their options to go back to Pakistan and, as such, they

lost their Bangladesh nationality.

"Stranded Pakistanis" refers to persons who opted for

Pakistan in 1972, after the conclusion of the war. They

remained in Bangladesh as stateless persons, because Pakistan

did not take them back. The Disaster Management and Relief

Ministry allocates about Taka 140 million for rations,electricity and drinking water for approximately 178,891

persons in thirteen camps, per year. Every three months the

Ministry allocates 987 metric ton ration for 1,5529 persons. The

issue of repatriation was raised in bilateral talks with the

Pakistani Prime Minister during a business summit held in

Dhaka on 15 January. In a subsequent meeting with theStranded Pakistanis' General Repatriation Committee

(SPGRC), the Pakistani Prime Minister promised to restart

repatriation as soon as possible. But it was reported that, over

the next three months, 932 families would be repatriated to

Pakistan.

The SPGRC appealed to the Government of Bangladesh

to grant citizenship to stateless persons. It is argued that in the

26 years that elapsed following the war, the new generation,

which has come of age want to remain in Bangladesh, they have

no affiliation with Pakistan and are ignorant of Urdu.

So, it could be argued that the "Biharis" in Bangladesh

which are considered as stateless person, such Biharis can be

considered as refugees because they identified themselves as


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"Pakistanis" by choice and it is alleged that many of them

collaborated with the Pakistani military regime. However, it is

believed that their status as refugees did not receive

confirmation by UNHCR because they did not come within the

purview of the 1951 Refugee Convention. One of the principal

criteria of a refugee is that he/she must cross the frontier of a

State to another. It is argued that the "Biharis" lived and

remained in the same territory before and after the

independence of Bangladesh.

Since Bangladesh has also been suffer the refugeeproblems so the question might be arise how are the refugees

protected in Bangladesh?

6. Refugee Protection :Bangladesh Situation

There is no consistent administrative framework

governing state practice in providing asylum and refugees.

Even Bangladesh is neither a signatory to any international orregional refugee instrument, nor has it enacted any legislation

dealing with refugees. But Bangladesh can protect Rohingya

(Refugees) under the principal of Non-refoulement.

The word 'non-refoulement' is derived from the French

word 'refouler' which means to drive back. In the context of

refugee situation, no refugee or asylum seeker should be sent

back to any country where that person is likely to be persecuted

or in danger of his/her life. Non-refoulement is to be

distinguished from expulsion or deportation where the person

is required to leave or forcibly removed.

The principle of non-refoulement has gained ground after

the First World War. The refugees from Nazi Germany in 1936-

38 activated the European countries to abide by this principle


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the 1936 Arrangement22 concerning the Status of Refugees

from Germany read: "refugees shall not be sent back across the

frontier of the Reich". The 1938 Convention concerning the

Status of Refugees fleeing from Germany' provided that States

parties undertake not to drive back the refugees to German

territory.

Not all of the important rights for refugees are mentioned

specifically in the International Bill of Human Rights. A central

element of international protection is (lie right not to be forcibly

returned or expelled to a situation which would threaten oneslife or freedom. This is the principle of non-refoulement which

is embodied in article 33 of the 1951 Convention. This Article

states that no contracting state shall expel or return (refouler)

a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on

account of his race, religion, nationality, membership of aparticular social group or political opinion."

Although Article 33. (1) Of the 1951 Convention provides

the principle of non-refoulement, sub-Article (2) states that this

right can be denied for reasons of danger to the security of the

State. Article 32 of the Convention states that the States can

expel a refugee lawfully on grounds of national security or

public order.

One recent example is the case of the Turkish Kurds leader

Abdullah Ocalan. Ocalan (aged 50) fled to Italy from Syria

under pressure of Turkey and could not find a place of refuge

in Europe.

The European countries refused him refuge on the grounds of

public order and security of the State.
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He finally had to gone to Nairobi (Kenya) with the

assistance of the Greek government. However, he was caught

in Nairobi in February 1998 by the Turkish undercover

commandos. Ocalan was tried and sentenced to death by the

Turkish Court. The Turkish government in January 2000

decided to put on hold the death sentence and allowed his

lawyer to prefer an appeal to the European Court of Human

Rights and the verdict is still awaited. Most observers believe

that the Court is unlikely to confirm the death sentence as

capital punishment has been abolished in Europe.It is not very clear as to what extent a person with a

criminal record would constitute a danger to the community of

a country where he/she seeks refuge the law is unclear and is

still developing by State-practice. However there appears to be

a consensus that the crime in question and the perceived danger

to the community must be extremely grave so as to deny theperson the refugee status while he/she is confronted with

danger to his/her life. Each State retains the choice of methods

of implementation of obligations under the 1951 Convention

on Refugees read with the principles and purposes of the UN

Charter.

The evidence relating to the meaning and scope of non-

refoulement in its conventional sense also amply supports the

conclusion that to-day this principle forms part of general

international law. There is substantial, if not conclusive,

authority to say that the principle is binding upon all states,

independently of specific assent. State practice before 1951 is,

at the least, equivocal as to whether, in that year, Article 33 of

the convention reflected or crystallised a rule of customary


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international law. State practice since then, however, is

persuasive evidence of the concretisation of a customary rule,

even in the absence of any formal judicial pronouncement. In

this context, special regard should also be paid to the practice

of international organisation such as the UN General Assembly

and the UNHCR.

Guy Goodwing-Gill likewise argues that the principle of

non-refoulement should be considered to shelter a far wider

range of persons in need than simply those who fit within the

traditional refugee definition in 1951 Convention.Non-refoulement is applicable as soon as certain objective

conditions occur. A state which returned foreign nationals to a

country known to produce refugees, or to have a consistently

poor human rights record, or to be in civil war or a situation of

disorder, must therefore justify its actions in the light of the

conditions prevailing in the country of origin. The veryexistence of a program of involuntary return should shift the

burden of proof to the returning state when the facts indicate

the possibility of some ham befalling those returned for any the

above reasons23

And it could be said that asylum seekers and refugees are

entitled to all the rights and fundamental freedoms that are

spelled out in international human rights instruments. The

protection of the refugee must therefore be seen in the broader

context of the protection of human rights. The creation by

States, in the aftermath of the Second World War, of two

separate organizations to deal with human rights and refugees

respectively, does not mean that these issues are not

interrelated.


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The work of the United Nations in the field of human

rights and that of the High Commissioner for Refugees is

inextricably linked in the sense that both entities share a

common purpose which is the safeguarding of human dignity.

The human rights program of the United

Nations deals with the rights of individuals in the territory of

States. The refugee organization was established in order to

restore minimum rights to persons after they leave their

countries of origin.

If we consider the international obligation of the countryin terms of human rights, especially those relevant to asylum

seekers or refugees. Bangladesh is a State Party to major

international human rights instruments Among them the

significant ones are the Universal Declaration of Human

Rights; International Convention on civil and political rights;

International covenant on Economic, Social and CulturalRights; Convention on the rights of the child; Convention on

the Elimination All Forms of Discrimination Against Women

(CEDAW); Convention Against Torture etc. Several

provisions of all these international instruments oblige a Stale

party to provide protection for asylum seekers and refugees.

The country is also committed to the principle of non-

refoulement being party to the above mentioned instruments.

The Declaration and Program of Action of the World

Conference on Human Rights also reaffirmed the right of every

person to seek and enjoy asylum.

Generally international human rights instruments impose

obligations on the state party to respect and to ensure all

individuals within its territory the rights recognized in a given


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instrument without distinction as to race, color, sex, language,

religion, political or other opinion, national or social origin,

property, birth or other status. Bangladesh is, therefore, duty

bound to respect and to ensure to refugees the human rights

recognized in the above documents and applicable for them

Apart from the refugee protection under the international

instruments the refugees are also protected under the law exist

in Bangladesh.

7. Law for the protection of refugees exist in Bangladesh

7.1 Constitutional Provisions and Practices:There is no a single provision in the Constitution of

Bangladesh which directly deals with refugee protection.

Despite this fact, the following provisions have direct and

indirect bearing on refugee protection.

Fundamental Rights:

The Constitution of Bangladesh has provided for two types offundamental rights. One

group of rights is granted only for citizens of Bangladesh

exclusively and other group of rights is applicable for both

citizens and non-citizens. Article 31 guarantees the right to

protection of law for citizens and non-citizens. It provides that

"To enjoy the protection of law. and to be treated in accordance

with law, and only in accordance with law, is the inalienable

right of every citizen, wherever he may be, and of every person

for the time being within Bangladesh, and in particular no

action detrimental to the life, liberty, body, reputation or

property of any person shall be taken except in accordance with

law.24
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Therefore, the Constitution under Article 31 has clearly

guaranteed the refugees right to

protection law by extending the scope of right to protection of

law to "every other person for the lime being within

Bangladesh". This provision has also restrained government's

unguarded power of expulsion of refugees by inserting that "no

action detrimental to the life, liberty, body... ....of any person

shall be taken except in accordance with law.

In a number of cases, the Supreme Court of Bangladesh

has interpreted the principles laid down in Article 31 of theConstitution. I would like to venture on a few cases in this

regard. In Abdul Latif Mirza vs. Bangladesh25 case the

Supreme Court of Bangladesh explained the scope of Article

31 in the following way:

"....no person shall be deprived of life or personal liberty

saves in accordance with law. The principle of natural justiceis inherent in every society aspiring for a civilized living and

according to the third paragraph of the Preamble of the

Constitution; the fundamental aim of the Slate is to "'ensure a

society in which the rule of law, the fundamental human rights

and freedom, equality and justice, political, economic and

social shall be secured." The decision of the apex court clearly

indicates that right to enjoy protection of law is a right

applicable for both citizens and non-citizens which certainly

include refugees. The Court states no person rather than no

citizen shall be deprived of protection of law. In a very recent

case (ETV Ltd. vs. Dr. Clwwdhury Mahmood Hasan) Supreme

Court explained Article 31 and observed: "....... every person is

subject to the ordinary law within the jurisdiction. Therefore,


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all persons within the jurisdiction of Bangladesh are within rule

of law."

In this case, the Supreme Court has declared that yet protection

of law is a fundamental rights of all persons be they are

citizens or non-citizens (refugees). The decision has also

reminded the obligations of citizens and refugees alike by

subjecting then to ordinary law of the state.

The constitution has guaranteed fundamental rights to life and

personal liberty of every

person whether she/he is a citizen or a foreigner who happensto be in the territory of Bangladesh the constitution enumerates

that "No person shall be deprived of life or personal liberty save

in accordance with law26 By incorporating the provision on

protection of life and liberty of every person, the constitution

has provided a basis for protection of refugees. It can be easily

presumed that the framers of' the Constitution never intendedto confine "life" within narrow meaning of right not be killed.

In Peerless General Finance and Investment Company Limited

v Reserve Bank of India27the Indian Code held that right to

life includes the right to live with basic human dignity with the

necessities of life such as nitration, clothing, food, shelter over

the head, facilities for cultural and socio-economic well being

of every individual.

Therefore. By granting the right to life of every person, the

constitution not only protects the refugees from arbitrary

killing, but it also extends to their dignity and bare necessities

of life.
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The Constitution clearly indicates in Article 32 that restriction

on personal liberty is permissible only on the ground of law. In

Anisual Islam Mahmood v Bangladesh28

The Supreme Court held "...To curtail fundamental rights

of personal liberty enshrined in the constitution, it is essential

that the detaining authority must have reports and materials,

that is jurisdictional facts for exercising power to detain the

detune under the Special powers Act.

The Constitutional scheme has provided for safeguards as

to arrest and detention of every person including refugees.Article 33 states that "No person who is arrested shall he

detained in custody without being informed, as soon as may be,

of the grounds for such arrest, nor shall he be denied the right

to consult and he defended by a legal practitioners of his

choice. 29The same article further requires the detaining

authority to produce the arrestee before the nearest magistratewithin twenty four hours of such arrest. Refugees have been

protected form exploitation resulting from forced Labour. All

forms of forced labour are prohibited by the Constitution. Any

act in contravention of this provision is punishable offence.30

Article-35 provides for certain rights in respect of trial and

punishment of refugees. These rights are protection against ex-

post facto laws, double jeopardy, torture or cruel, inhuman or

degrading punishment or treatment. The Constitution also

guarantees the right to, speedy; and public trial by an

independent and impartial court.

Enforcement of fundamental rights enshrined in the

Constitution is declared a fundamental right in itself.31

According to Article 102 of the Constitution.; any person
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aggrieved may file application before the High Court Division

for enforcement of fundamental rights enunciated in part III of

the Constitution. After the decision of Dr. Mohiuddin Farooque

v Bangladesh case, 32 the concept of aggrieved person has

widened to such an extent that any person now can file writ

petition before the High Court Division in the form of public

Interest Litigation (I'll.) for the cause of refugees. In this case

the Supreme Court held: "...... that the expression 'person

aggrieved' means not only any person who is personally

aggrieved but also one whose heart bleeds for his less fortunatefellow beings for a wrong done by the Government or a local

authority in not fulfilling its constitutional or statutory

obligations. It does not, however, extent to a person who is an

interloper and interferes with things which do not concern

him.

Part II of the Constitution of Bangladesh enumeratescertain Fundamental Principles of State policy (FPSP). These

principles have been declared as guiding star for overall

governance of Bangladesh. They shall be guide in law making,

in interpretation of the constitution and other laws and other

works of the states.

Article 11 has direct bearing on the protection of refugees.

it slates that "the Republic; shall be democracy in which

fundamental human rights and freedoms and. respect for the

dignity and worth of the human person shall be guaranteed."

Refugees by definition are the worst victims of despicable

forms of violation of human

rights or their rights are under severe threat of' violation. They

belong to the human


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species who are longing for the restoration of their dignity

Constitution imposes obligation on the government of

Bangladesh to provide free and compulsory education to

Bangladeshi children and to the refugee children. Article 17

provides for: The state shall adopted effected measures for the

purpose of-

(a) establishing a uniform, mass-oriented and universal

system of education and extending free and compulsory

education to all children to such stage as may be determined by

law,"Government of is duly bound to promote international

peace, security and solidarity through non-interference in the

international affairs, peaceful settlement of international

disputes and respect for international law and principles

enunciated in the United nations Charter.33UNHCR mandated

for refugee protection, has been created under the UN charter.International refugee law regime is a distinct branch of

international law. By undertaking constitutional obligation to

respect international law and principles enunciated in the UN

charter, Bangladesh has undertaken the responsibility to protect

refugees.

Besides the Constitutional protection of refugees, there are

other laws under which refugees are also be protected. Such

laws are as follows:

Penal Code:

According to section 2 of these codes, every person with

in the territory of Bangladesh is subject to the jurisdiction of

criminal course and tribunals Constituted for administering

criminal justice in Bangladesh. Therefore, refugees who are


27/62

victims of criminal offence are entitled to seek remedy before

appropriate criminal codes of tribunal.

The Code of Civil Procedure, 1908:

Section 83 of the code states that citizen of Bangladesh

and alien friends residing in Bangladesh can always file suits in

the civil courts for establishing their civil rights. And enemy

alien, however, can not file a suit without the permission of the

government. Unlike criminal case, a refugee can get remedy

from our civil courts for infringement of her/his civil right but

a refugee from and enemy state is required to have priorpermission for seeking redress

The Bangladesh Citizenship(Temporary Provisions) Rules,

1978:

These rules deal with granting of permanent residence and

citizenship to any person seeking right of permanent residence

in Bangladesh or citizenship of Bangladesh. Boat the applicantsseeking for citizenship of permanent residence have to fulfill a

number of conditions prescribed in sections 3 and 4 (B) of the

Rules

The Foreigners Act, 1946:

The purpose of this act is to regulate the entry of foreigners

into Bangladesh, their presence therein and their departure

there from. According to section 3 of this Act, the Government

may by order make provisions, either generally or with respect

to all foreigners or with respect to any particular foreigner or

any prescribe class or description of foreigner, for prohibiting,

Regulating or restricting the entry of foreigners into

Bangladesh or their departure there from on there presence or

continued presence.34


28/62

Although in Bangladesh there are some kinds of legal

framework for the protection of refugees, but Bangladesh is not

a party in any international instruments especially in1951

Convention and its protocol for the protection of the rights of

refugees. And Bangladesh Government attributes many

reasons for the non-excision of 1951 convention and 1967

protocol.

8. Reasons for Non-accession of 1951 Convention & 1967

Protocol:

According to an35author, the definition of refugee in the1951 Convention is regional rather than universal. There is a

view that the Convention is a product of the cold war and is

Eurocentric. The definition of a refugee is too restrictive in the

contemporary context and does not meet the today's needs. The

Convention had left out, among others; two important

elements-it is silent on voluntary repatriation of refugees anddoes not dwell on the responsibility of the State that causes the

flow of refugees.

Although the definition of the 1951 Convention was

modified by the 1967 protocol in favor of a broader scope,

many writers argue that the legal regime under the Convention

remains narrow partly because the expansion of the mandate of

UNHCR has no corresponding expansion of the obligation of

States under the 1951 Convention. This implies that while the

mandate of UNHCR has been amended, no amendment of the

Convention has taken place.

Furthermore, the 1951 Convention is based on the concept

of durable asylum or permanent re-settlement. It puts emphasis


29/62

on protection and resettlement of the refugees and does not

refer to their voluntary repatriation.

As earlier stated, the criteria used for the definition of a

refugee in the 1951 Convention are too restrictive. The

definition does not include situations, such as foreign

aggression, armed conflicts or civil wars, escape from extreme

poverty, mass uprooting of a population resulting from ruthless

government policies, wrongful prosecution of a person, a total

break-down in the state system, natural disasters including the

leaking of radiation from a nuclear plant, general violence inthe community and massive violation of human rights

Bangladesh is located in the South Asia Region. South

Asia hosts the forth largest concentration of refugees in the

world constituting roughly about 12% of the total refugee

population of the World. 36Refugees in South Asia are from

booth within and outside the Region. None of the South AsianCountries are party to the 1951 refugee convention, nor do they

have Regional Mechanism, nether a national law. Refugees are

treated on the basis of administrative convenience, political

experience and ad hock administrative rules.

Several reasons have been assigned against framing of a

national law on refugees. It has been argued that .the existence

of such a law may open the flood gates for refugees. There is

no empirical evidence to validate that a legal structure would

create condition for refugee flows. Past experience in the

region and beyond Inform, us that when conditions of flow of

refugees are created in the country of origin they would flee

anyway. Refugees do not wait to sec if structures and

incentives are in place when they flee for their lives and


30/62

liberty. After all, In 1971 In the wake of the Pakistani military

crackdown when millions of Bengalis crossed over to India,

no one among them checked to see if India had a refugee law.

In its opposition to framing national law some argue that

refugee law principles have been designed and Imposed by the

West and hence there is no reason why Bangladesh should

frame such a law. It is true that 1951 Convention was made for

refugee flows in Europe. Subsequently, the 1967 protocol

universalised its scope and 150-odd countries have alreadyratified the Convention. These include African, Latin American

and some Asian countries as well. This, therefore can no longer

be consideredasa western ploy. Legislators in Bangladesh, of

course, can always improve on the existing law, taking in view

the specificities of the country context, such as resources

available.Bangladesh Is party to other international conventions and

instruments such as CEDAW, CRC and .the Universal

Declaration of Human Rights. Those instruments bind

Bangladesh not to send people, including women and children,

back to the countries of the origin where their life and liberty

could be at stake.

The Eminent Persons Groups of South Asia at its meeting

held in 1997 in Dhaka agreed on a Model Law on Refugees.

The model law has expanded the scope of the definition of

refugees and addressed the issue of asylum, mass influx, and

voluntary repatriation. This law could be a basis for

consultation among legislators, experts and other stakeholders.

Following such a consultation process, the matter may be taken


31/62

up by the Parliamentary Committee on Home Affairs, Foreign

Affairs or Disaster Management.

The main arguments that the government of Bangladesh

have advanced from time to time to justify its position for non-

signing the convention or protocol are:

(a) No country within the Indian sub-continent became a party

to the Convention,

(b) Once Bangladesh is a party to the Convention, it will be

legally obliged to accept refugees from other countries and

(c) Bangladesh is not only an over populated country but alsois a poor country and to take such obligations under the

Convention could be difficult and onerous.

(d) The Convention is Euro-Centric in nature. More over, it

deals with political refugees and do not address many other

situation.

(e) The problems relating to refugees can be better dealt withthrough bilateral means.

(f) Accession to Convention and Protocol may invite undue

intervention by UN agencies.

(g) Accession may put strain on limited resources of the

country.

(h) Accession may create an opportunity for economic migrants

to abuse the system.

(i) It may encourage evasive tendency of the rich countries of

the North as to refugee situation in poor South.

(j) There is a claim of a hospitable history of refugee

Protection.

Although there are several reasons for non-excision of

1951 convention and 1967 protocol. But there is a need to


32/62

develop a legal regime for the protection of refugees in

Bangladesh.

9. What is UNHCR?

UNHCR is the Office of the United Nations High

Commissioner for Refugees. It was created by Resolution

428(V) of the General Assembly of the United Nations, and

began its operations on 1 January 1951. It is a humanitarian and

strictly non-political agency devoted to protecting and assisting

the world's refugees. In the words of the Statute of the Office,

UNHCR has two main functions: to provide "internationalprotection" to refugees and to seek "permanent solutions" for

the problems of refugees.

The mandate of the office of the UNHCR is to ensure that

governments to take all actions necessary to protect refugees,

asylum-seekers and other persons of concern who are on their

territory or who are seeking admission to their territory. It is thesole international organization that has been mandated by its

Statute and subsequent General Assembly and ECOSOC37

resolutions, to protect refugees globally, also to strive to secure

durable solutions for refugees so that they can resume their

normal life.

9.1 The role of the UNHCR in Bangladesh:

First, in 2006, the government agreed to allow UNHCR to

construct new shelters for refugees in both camps, recognizing

the abysmal conditions of the current structures which fall

below international standards. The maintenance of the shelters

built in 1992 had been restricted by the government to the bare

minimum for fear of promoting any form of permanent

presence of the refugees. Since that agreement was reached,


33/62

UNHCR has been successful in starting to raise funds and

construction in the two refugee camps has begun. It is hoped

that both camps will have new accommodation facilities by end

of 2009.

A second major recent achievement was that, for the first time

in the history of UNHCRs operation in Bangladesh,

resettlement to a third country was used to provide protection

and a durable solution for some. Twenty-three refugees were

resettled to Canada in 2006 and a further 79 in 2007. The

agreement to re-settle was piloted by UNHCR in part to lobbythe government to allow more skills training and enhanced

education facilities. As a consequence, the government in 2006

agreed to allow skills training and an increase in the number of

courses as well as the grades taught in schools. Although this

progress still does not reach the level of international standards,

it certainly points in the right direction. Since the firstsuccessful resettlement to Canada, resettlement for those

refugees in urgent need of protection has been negotiated with

other interested countries; both New Zealand and the UK have

confirmed an intake for 2008. A further development of great

significance has been agreement with the Government of

Bangladesh in 2006 to allow other UN agencies and NGOs to

work in the refugee camps, bringing expertise in the different

sectors.

UNHCR Bangladesh has made its position very clear that the

status quo is simply untenable. The provision of external

assistance for a period of 16 years without progress to, and

attainment of, self-reliance is contrary to the principles of


34/62

refugee protection, human rights and human dignity. The need

to engage in dialogue with the Government of Bangladesh and

other stakeholders to discuss durable solutions for the

Rohingyas continues. It is too early to predict the outcome of

discussions but what is extremely positive at this stage is that

both UNHCR and the government agree on the importance of

taking a more holistic longer-term perspective to resolving the

plight of the Rohingya refugees. Persons of concern of UNHCR

in Bangladesh: 38

Persons of concernTypes of

populati

on

Origin Total Of

whom

assiste

d by

UNHC

R

Percent fe

male

Perce

nt

under

18

Refugee Myanm

ar

28,60

0

28,300 52 59

Various 30 - 28 10

People

in a

refugee-like

situation

Myanm

ar

200,0

00 - - -

Total 228,6

30

28,300

10. Case Law Relating to Refugee:


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A Successful Case is made for Granting Refugee Status to a

Woman Fleeing Her Own Country to Protect her Daughter

from Female Genital Mutilation

Elizabeths Case:39

The case at issue involves Elizabeth Kuma, a national

of Ghana and member of the Ewe tribe, who along with her son

and [10]daughter, arrived in Hong Kong in 1996 and sought

temporary asylum there. The basis for her claim was thatElizabeth had a real fear that her daughter (age 3) would be

subjected to female genital mutilation in her own country at the

insistence of her husbands family.

Elizabeths husband, Stephen Boateng, was an Ashanti

Muslim, of the Wala tribe who had come from the State of Wa,

in northern Ghana. In February 1996 when Stephens motherwho had a great deal of influence in the family, told her son that

his daughter would be "circumcised".

Elizabeth had heard from other women in her

community about the harmful effects that FGM could have, and

had known another mother whose child had died during the

procedure. She told her husband that she was opposed to it, her

husband beat her. Because of a deep reluctance by the

authorities in Ghana to intervene in family matters, Elizabeth

never considered going to the police for protection.

Elizabeth, fearing for the safety of her daughter, went

to Cairo along with her daughter and her son (age 5). Her

husband followed her to Cairo and ordered Elizabeth to return

to Ghana. When she objected, he again beat her and threatened
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to kill her if she did not return to Ghana or hand the children

over to him. Then Elizabeth went to Canada via Hong Kong,

She arrived at Kai Tak Airport in Hong Kong on 25 May 1996

and was allowed to enter the territory. Four days later when at

the airport on their way to Canada, she and the children were

challenged over the passports. Elizabeth and the children were

arrested, detained in Hong Kong. Fortunately for Elizabeth and

her two children, she wasnt detained pending her removal

from Hong Kong. She was given conditional release and

allowed into the community. Then the Director of Immigrationissued a removal order.

She made a submission to the United Nations High

Commission for Refugees. In her submission, Elizabeth cited

the case of Khadra Hassan Farah. Elizabeth argued that FGM

has been accepted in the decided cases cited above as

persecution.The UNHCR concludes that, "a woman can be considered to be

a refugee if she or her daughters/dependants fear being

compelled to undergo FGM against their will; or if she fears

persecution for refusing to undergo or allow her daughters to

undergo the practice". Following the decision, the UNHCR

made a request to the Hong Kong Immigration Department that

she and her two children should be granted temporary asylum

in the territory.

Chan vs The Minister of Immigration: 1989: High Court

Facts of the case:

Chan Yee Kin is a citizen of China and was a member

of a faction of Red Guards which lost the struggle for control

of that organisation in his local area. He was questioned by


37/62

police and was detained for 2 weeks in 1968. He tried to escape

but was caught and received increasing periods of detention. In

1974 he escaped to Macau and stowed away on a ship to

Australia which he entered illegally in 1980.

He applied for refugee status on 29 November 1982.

He was refused the status of a 'refugee' within the meaning of

the 1951 Refugee Convention. He challenged the decision to

the single judge of the Federal Court. The Court set aside the

decision of the Immigration department and referred to the

Minister for reconsideration. The Minister appealed to the FullFederal Court against the decision. The Full Federal Court

upheld the appeal.

Mr Chan went to the High Court against the decision

of the Full Federal Court.

Decision: The court held that the definition of a 'refugee'

involved a mixed subjective and objective test. The questionwhether or not a person had the status of a 'refugee' within the

meaning of the 1951 Convention was one of determination

upon the facts as they existed when the person concerned

sought recognition as a 'refugee'.

The Court held the 'persecution' was not defined in the

Convention, although Articles 31 and 33 of the Convention

referred to those whose life or freedom might be threatened.

There was a general acceptance that a threat to life or freedom

amounted to persecution. Some would confine persecution to a

threat to life or freedom, whereas others would extend it to

other measures in disregard of human dignity.

Comment:This case is important as it dealt with the interpreta-

tion of the definition of a 'refugee' as stipulated in the 1951


38/62

Convention. The definition, according to the Court, needs both

subjective (mental) and objective (facts) test.

Turkish national vs Minister of Interior of Austria:

Administrative Court: 1980

Facts of the case:

A Turkish national applied for asylum in Austria under

its Asylum Act on the ground that he belonged to the Christian

minority and he and his family were being persecuted by the

Muslims in his country of origin. The application was refused.

He made an appeal to the Interior Ministry which turned hisappeal down. The ministry stated that criminal activities

against the applicant are not persecution and the applicant could

have found safety from such criminal activities in other parts of

Turkey. He lodged an appeal to the higher Administrative

Court against the decision.

Decision: The Court dismissed the appeal holding that theapplicant did not have a well-founded fear of persecution

within the meaning of 1951 Refugee Convention.

The Court held that a well-found fear of persecution

existed only when on an objective basis it would become clear

that the conditions concerning the grounds of persecution

mentioned in the Convention were such that a further stay of

the claimant in the country of origin had become unbearable.

Such would be the case when persecution was carried out by

the state on its entire territory or where persecution was carried

out by a part of the population but where the state was unable

or unwilling to protect the persecuted. The applicant had not

based his claim on such circumstances but only on persecution

suffered in his village of origin. It had not been established that


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the Turkish authorities were unable or unwilling to provide

protection.

Comment:It appears that the allegation of persecution is to be

substantiated by the states inability or unwillingness to provide

protection. Secondly, the allegation of persecution on account

of religion should not be confined to a particular area. It could

cover the entire country so that the applicant could not be safe

in the country of his nationality.

Romanian national vs Ministry of Interior: 1991Administrative Court

Facts of the case:

A Romanian national belonging to the Hungarian

minority asked for refugee status in Austria in January 1991.

He claimed that he had been maltreated by the police during a

demonstration in favour of education in his native Hungarianlanguage; he had in general suffered discrimination because of

his ethnicity and had lost his job to an ethnic Romanian. The

application was unsuccessful on the grounds that social and

economic rights such as the right to work were not a basis for

persecution within the scope of the 1951 Convention. He

lodged an appeal to die Federal Administrative Court.

Decision:The Court referred to Austrian legislation requiring

the authorities, when making decisions, to summarise all

factual findings which influenced the decision. The authorities

had not done so and for that the decision was flawed. In

particular, no mention had been made of the reasons for

refusing the claim based on maltreatment the applicant had

suffered from the police during the demonstration. In case the


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authorities had taken the maltreatment into consideration, their

decision might have been different.

The Court upheld the appeal and annulled the decision

refusing the claim of refugee.

Comment:This case was decided mainly on non-compliance

of procedures laid down by the law by die Ministry. It was a

breach of natural justice not to have followed strictly the

requirements of the law. Further, the case was not looked at by

the Ministry from all facts stated by the applicant.

Ghanaian national vs Interior Ministry: 1986: Civil Courtin Liege

Facts of the case:

A Ghanaian woman and her son arrived and applied for refugee

status in Belgium. She submitted photocopies of their birth

certificates but UNHCR found the copies inadequate and she

was served an expulsion order.She appealed to the Civil Court against the order of expulsion.

Decision: The Court held that the burden of proving one's

identity when applying for refugee status rested on the

applicant. In the present case the applicant was able to present

photocopies of their birth certificates and they were found to be

insufficient. The Court found that taking into particular

circumstances surrounding the applicant's claim for refugee

status, the photocopies and statements should satisfy the

requirements.

The Court suspended the expulsion order.

Comment:The case rested on the sufficiency of evidence of

the identity of the applicant. It appears that some flexibility


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must be shown to submit proof of identity of a person and

photocopies of the documents were held to be sufficient.

David Hellman vs. Immigration Review Tribunal: 2000

Federal Court

Facts of the case:

David Hellman is a 17-year-old American citizen. His parents

were divorced and his father migrated to Australia and became

an Australian citizen while his mother remained in the US.

David came to Australia because he wanted to escape from hismother who was described as an enthusiastic follower of

orthodox Jewish sect. He sought refugee status on the basis that

he feared assaults and abuse, being forced to become a priest,

and being taken to a foster home. He also alleged that he might

be harmed because of his knowledge of criminal conduct by

members of his mother's religious community.His application for refugee status was rejected by the

Immigration Department. He filed an appeal to the Immigration

Review Tribunal. The Tribunal found that David Hellman had

a well-founded fear of persecution but not that was because of

his membership of a particular social group. Persecution on

account of his particular social group would have satisfied one

of the criteria of the 1951 Refugee Convention.

The Tribunal further held that being a member of the Hellman

family and having beliefs different from those of his mother did

not amount to membership of a social group. Nor did the

Tribunal accept that US authorities had failed to protect him.

The Tribunal confirmed the decision of the Immigration


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Department. He there-after lodged an appeal to the Federal

Court.

Decision: The Court could not find any error in the Tribunal's

reasoning and conclusions and rejected the appeal of David

Hellman.

Comment:This case rested on the proof that David Hellman

was a member of a particular social group and on account of

that he had a well-founded fear of persecution. He could not

prove that he belonged to a particular social group. Further, he

was a US citizen and the US authorities would be able toprotect him from his mother. He had no case to stand on in the

facts presented to the Court.

Iranian national vs Secretary of State: 1994: Immigration

Appeal Tribunal

Facts of the case:

The applicant was a female 15 years old Iranian whenshe arrived in the United Kingdom and sought refugee status.

The basis of her refuge was the physical abuse by her father.

Having initially been refused refugee status, the Adjudicator

granted her status. The Secretary of State appealed the decision

to the Immigration Review Tribunal.

Decision: It was argued on behalf of the Secretary of State that

the applicant could have availed herself of the protection of

Iranian authorities. The Tribunal found that women could not

per se constitute a social group and she was not persecuted as a

member of a social group within the definition of a refugee

under the 1951 Convention.

The appeal was allowed and the applicant was disqualified

from refugee status.


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Comment:The applicant was refused refugee status because

the Iranian authorities could have given protection against

violence from her father as it was found that her father was an

alcoholic and the violence was alcohol-related.

Sri Lankan national vs Immigration and Naturalisation

Service: 1989: US District Court: District of Colorado

Facts of the case:

The applicant is a Sri Lankan female of Tamil origin.

She had not been politically active but occasionally supported

Tamil militants with food and money. After her home wasdestroyed in crossfire, she left Sri Lanka for India where she

remained 18 months. She sought refugee status in India and

failed to obtain it mainly because seven of her nine children

were residents in overseas, one of them was in Canada.

She obtained forged travel documents to travel to Canada to

live with her daughter. On her way to Canada, she stopped inthe United States, in November 1988. She applied for refugee

status and the US immigration and Naturalisation Service (INS)

refused. Thereafter her efforts with the Immigration Judge and

the Board of Immigration Appeals were unsuccessful.

She lodged a writ of habeas corpus with the District Court for

her refugee status.

Decision:It was contended that she did not obtain refugee

status in India and because of the ongoing conflict between the

Tamil and Sinhalese she feared persecution by the Sinhalese.

She relied on the objective and subject test of fear of

persecution.


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Moreover, there was no evidence whether forced

evacuation from her village had been applied to Tamils only

and it did thus not constitute past persecution.

The Court denied the petition and upheld the decision of Board

of Immigration Appeal's decision.

Comment:This case rested on facts. First her facts were weak

and second her children were not in the States. She could have

gone to Canada and sought refugee status.

Bahadori vs Immigration and Naturalisation Service :

1991 : US Court of Appeals, Ninth CircuitFacts of the case:

An Iranian national, Bahadori entered the US on a non-immi-

grant visa student visa in 1978 at the age of 15. His father was

Muslim but his mother was Catholic. He became a Christian in

the US. In 1936 he was convicted of possessing cocaine for sale

and sentenced to 3 years probation, three months in jail and afine of $150. In 1988 he was convicted again for stealing

$1,500 in money orders.

When he faced deportation he sought refugee status since his

act of conversion to Christianity would be considered as

apostasy in Iran and would be subject to persecution. He also

referred of persecution his family faced there. The immigration

Judge had reservations about the sincerity of his religious

persecution claim and his drug offences were serious in nature

and dismissed his claim.

Bahadori appealed to the Board of Immigration Appeals and

presented 200 pages of additional evidence to support his

claim. The Board dismissed his appeal. It held that the applicant

had not ever actually converted to Christianity and thus faced


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no threat of persecution. The Board also took account of his

convictions of crimes.

Bahadori lodged an appeal to the Ninth Circuit Court of

Appeals.

Decision:The Court found the evidence to have established

a clear probability of persecution since conversion to

Christianity was considered a heinous crime in Iran which

would entitle him to the suspension of deportation. The same

evidence demonstrated that a well- founded fear of persecution

existed making him eligible for refugee status.Burmese nationals vs the State Government of Manipur:

1990: The Gauhati High Court, Imphal Branch

Facts of case:

Eight Burmese (Myanmar) nationals, aged from 12 to 58

entered the state of Manipur in eastern India and they were

detained for their illegal entry in Manipur jail. They petitionedto the High Court for their release to enable them to seek the

assistance of UNHCR office in New Delhi for the status of

refugees.

Decision:The High Court held that the refugees had a right to

be protected against deportation under international law. The

Burmese had fundamental rights guaranteed under the

Constitution of India (Articles 10, 21 and 22)

The Court rejected the argument of the Manipur state

government that they were not in a position to take the Burmese

persons to UNHCR New Delhi office for the purpose of

obtaining refugee status. To enjoy the rights by the petitioners,

arrangements should be made for them to go to New Delhi and

a person should accompany them.


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The Court ordered the release of all the Burmese nationals to

enable them to go to New Delhi for status determination. The

Court further ordered that they should report to a named police

station upon arrival in New Delhi.

Comment:Refugee seekers who enter Indian illegally should

be permitted to approach the office of UNHCR in New Delhi

for status determination. They could riot be sent back (principle

of non refoulement incorporated in the 1951 Refugee

Convention) although India was not a party to the Refugee

Convention, the High Court held that deportation could not bedone under international law. It appears that the Court regarded

the principle of non-refoulement as part of the customary rule

of international law and, as such, it was binding on India.

This precedent is important as Bangladesh High Court Division

of the Supreme Court may be guided by the decision in a

refugee case.

11. Reasons Need for Developing a Legal Regime for the

Protection of Refugees in Bangladesh

There are several reasons why national law should be

framed. The first and foremost among them is that a distinction

must be made between people who cross borders for economic

opportunities and those who do so for fleeing persecution. In

order to make that distinction, necessary structures need to be

in place that can only be attained through national legislation.

In most cases, refugees are dealt with on an ad hoc basis.

The absence of law contributes to compounding of problems by

depending on this type of approach. There is a need for

appropriate legal and institutional structures so that refugees


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and asylumseekers can be dealt with In an organised manner.

Structures based on law would mean better management,

efficiency, transparency and accountability. A national law will

better equip the stale to face problems that it may have to face

from time to time.

Bangladesh Is constitutionally bound to frame such a law.

Articles 31, 32, 33, 34 and 44 of the Bangladesh Constitution

have given a large number of rights to non-citizens as well.

Article 31 states that apart from citizens every other person for

the time being within Bangladesh has "the right 10 enjoy theprotection of the law and to be treated in accordance with law

and only in accordance with law.., Despite such explicit

declaration Banglade

comparative study on refugy law

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