"AXOIB" and Minister for Immigration and Multicultural Affairs - [2002] AATA 365

DECISION AND REASONS FOR DECISION [2002] AATA 365

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/225

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AXOIB
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date17 May 2002
PlaceCanberra

Decision      The decision under review is affirmed.
   [Sgd Hon C R Wright QC.,]
  Deputy President
CATCHWORDS
Immigration – Refugees – protection visa – applicant alleged to have committed, war crimes, crimes against humanity – whether there was "serious reasons for considering" that he had committed such acts.

Migration Act 1958 – s29
Refugees Convention 1951
Re Shokar and Minister for Immigration and Multicultural Affairs AATA 144 (6 March 1998)
Re Al-Habr and Minister for Immigration and Multicultural Affairs AATA 150 (12 March 1999)
Read v the Queen, Judgment No A15/1994 (CCA Tas)
Re W97/164 and Minister for Immigration and Multicultural Affairs AATA 618 (10 June 1998)
Re SRNN and Department of Immigration and Multicultural Affairs AATA 983 (10 November 2000)
Arquita v Minister for Immigration and Multicultural Affairs FCA 1989 (22 December 2000)

REASONS FOR DECISION

Introduction
17 May 2002 The Hon C R Wright QC., (Deputy President)

On 8 May 2001, the Minister's delegate refused the applicant's application for a Protection Visa (Class XA) on the grounds that, pursuant to Article IF(a) of the Refugees Convention (as amended), the Convention did not apply to him. The application for a Protection Visa was lodged on 14 April 2000.
The delegate took the view that there were serious grounds for considering that the applicant has committed war crimes and crimes against humanity in Sri Lanka, his country of origin. On 31 May 2001 the applicant applied to the Administrative Appeals Tribunal to review the delegate's decision.
Legislative Framework
The general provisions relating to the granting of visas are to be found in s.29 of Migration Act 1958. Section 29 provides inter alia that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
"(a) travel to and enter Australia; or
(b) remain in Australia."
The Act also makes provision for prescribed classes of visa (s.31(1)), and the Regulations may prescribe criteria for visas of specified classes (s.31(3)).
Section 36 of the Act makes provision for a class of visas to be known as "protection visas". The criterion for the grant of such a visa is that the applicant be a non-citizen of Australia, to whom Australia has protection obligations under the Refugees' Convention (the 1951 United Nations Convention and the 1967 Protocol Relating to the Status of Refugees).
Article 1(a) of the Convention defines a refugee as a person who fulfils the following conditions:
"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of 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 of the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it".
The application of this condition is qualified by Article 1F of the Convention, which states:
"The provisions of this convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has 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."

Applicant's Background

The applicant was born on 19 September 1960 in Sri Lanka. His family had strong political affiliations with the United National Party (UNP)) which had governmental control of Sri Lanka for 17 years until 1994. During the late 1980's and early 1990's there were many, probably thousands, of arbitrary arrests many extra judicial murders and widespread use of torture by government forces as they attempted to contain terrorist activities by various political opponents of the UNP, including the LTTE (also known as Tamil Tigers), the JVP and the SLFP.
In information disclosed in the applicant's application for protection, during the course of his interview with the Minister's delegate in August 2001, and in evidence given by him during the Tribunal hearing in April 2002, the following history of his activities emerged. He was a member of the UNP for 14 years from 1982. During that time he had a close association with Festus Perera, a Cabinet Minister in the UNP Government throughout the whole of its 17 year term in office. The applicant had no employment other than the various roles he filled in the UNP organisation. He was one of four Assistant General Secretaries employed by the UNP, and belonged to the Dankowtuwa Branch in the Wennapuwa electorate. As assistant secretary he was responsible for 129 individual branches of the party.
In his original protection application he claimed that in 1988 he assisted in writing a report for UNP which exposed and named certain anti government subversive elements who were caught and punished by the Sri Lankan Security Forces. This claim was repudiated by him when giving sworn evidence before the Tribunal.
Festus Perera was Minister for Fisheries and exercised considerable influence in the UNP. The applicant reported directly to Perera who ordered him to obtain information about terrorist activities and to uncover their methods of operation so that they could be dealt with by law enforcement authorities. The applicant gave sworn evidence that he gave such information to Perera on one occasion only and that at that time he gave the names of only 5 or 6 individuals. This differed markedly from what he had said on an earlier occasion when he clearly indicated to the delegate that his role in identifying subversives had extended over many months and had resulted in the detention of 10 or 12 individuals.
He also gave evidence that he insisted to Perera that these individuals were not to be harmed and that, in fact, they were all released after a short period of detention without having been subjected to any torture or ill treatment at all. I should record at this point that I regard the applicant as a patently unreliable witness who, during the Tribunal hearing, was at pains to water down his involvement with the unlawful activities of the UNP. After receipt of the delegate's letter to him dated 28 March 2001 (T80), he obviously realised that the information which he had proffered with his original protection visa application to establish his fear of persecution if returned to Sri Lanka, also tended to implicate him in unlawful human rights abuses perpetrated by the UNP while he held positions of influence in the party. His contradictions of earlier statements and his obvious evasions were unconvincing and exposed him as a deliberate liar in my opinion. I am left in little doubt that the applicant was well aware that if and when he reported people for terrorist or anti UNP activities, they would be tortured or killed by the Army or security forces. I am satisfied that the applicant reported not less than 10 or 12 such individuals but I suspect that he probably reported a great many more.
The applicant held the position of volunteer leader of a Village Protection Unit for about 6 years from 1988 to 1994. In this capacity he led a group of up to 30 people who carried out group patrols in the local villages seeking out information to suppress anti government violence and terrorism. I have no doubt he sincerely believed, and still believes, that his activities were for the good of the country and the maintenance of UNP control, but such beliefs obviously do not provide justification for acting with violent cruelty during vigilante action or seizing and delivering up suspects to the armed forces for torture or execution. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (February 1985) provides (inter alia):
"No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be involved as a justification of torture."
I am satisfied that some, if not all, of those he reported to Festus Perera were arrested and tortured or killed by the armed forces. The applicant attempted to portray the Village Protection Unit as akin to Neighbourhood Watch. He admitted that their approach caused villagers to flee and hide in panic, but he said his group was merely a passive collection of peaceful observers who took no direct action against suspects. This claim was simply ludicrous in my opinion.
Country information evidence suggested that Village Protection Units were synonymous with Home Guards units. Home Guards perpetrated widespread crimes against humanity and functioned in collaboration with and under the direction of the Police Department and Ministry of Defence as paramilitary groups providing protection against Tamil Tiger and JVP terror attacks by means of robust and brutal suppression. The applicant said he had never heard of the Home Guards. Again I disbelieve him. The same country information sources suggest that Perera headed a group of thugs who engaged in similar activities which led to murder, illegal detention and disappearances. I am convinced the applicant was aware of these activities by Perera, although he denied such knowledge.
It should be acknowledged that the only direct evidence of the applicant's involvement in unlawful activities of the kind mentioned in Article IF(a) of the Refugees Convention comes from his own statements. His counsel submitted that in consequence, as his client had repudiated much of the earlier admissional material during the course of his evidence to the Tribunal, there were no grounds for rejecting his sworn testimony and acting on the basis of his original statements. I understood him to be submitting that even if it were to be found that nothing the applicant said could be relied upon, this would lead to the conclusion that no foundation existed for considering that there was serious reason for considering that he had committed crimes of the proscribed kind. Mr Dickerson suggested that I should adapt an approach similar to that adopted by Deputy President Burns in Shokar and Minister for Immigration and Multicultural Affairs AAT No. 12685, AATA 144 (6 March 1998).
He also referred to Al-Habr and Minister for Immigration and Multicultural Affairs AATA 150 (12 March 1999). In my opinion neither of these cases assists the applicant. He made a number of statements both in his application and the subsequent investigation which clearly established a long term and high ranking role in the UNP. These statements I accept. In relation to the application or otherwise of Article IF(a) these statements are obviously admissional in character. The weight of an admissional statement cannot be swept away by a mere subsequent denial once the potential damage caused by such admission has been recognised. Furthermore, the transparent untruths and evasions of the applicant in his evidence as he tried to repair the perceived damaged caused by what he had said on earlier occasions, in themselves, provide some reinforcement for belief in the truth of those earlier utterances.
The real question as I see it is whether the applicant's direct or implied admissions provide a sufficient basis for drawing the inference that he committed war crimes and/or crimes against humanity either as an accomplice or a principal. I have no hesitation in saying that, unlike the Minister's delegate, I find the evidence insufficient to enable me to infer either that he actually committed such crimes as a principal offender, or that there are serious reasons for considering that he did so. I made my attitude on this issue clear at the hearing and I have not been persuaded to a contrary view since. Indeed counsel for the respondent does not now press this argument.
Article IF of the Refugee Convention and Accessorial Liability
There is a most helpful discussion of the principles involved in a determination of alleged accessorial liability in W97/164 and Minister for Immigration and Multicultural Affairs AATA 618 (10 June 1998) (supra) where Mathews J said this:
"IS THE APPLICANT LIABLE FOR KILLINGS COMMITTED BY OTHERS?
65. The real issue in this case is whether, given that the applicant personally neither injured nor killed anyone, he should be treated as an accomplice of those who did, and thus be taken to have committed a crime or crimes against humanity.
66. Article 6 of the Nuremberg Charter deals, in a general way, with accessorial liability. The relevant portion of the Article bears repetition here:
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
67. The applicant was clearly not a leader, organiser or instigator of the crimes committed at [deleted pursuant to s 35] base in 1988. The substantial question is whether he was an accomplice. In relation to this matter, it is not sufficient to look to the Australian law on accessorial liability. An international convention cannot be read in the light of one only of the world's legal systems (Ramirez at p 179).
68. There are, so far as I am aware, no Australian cases dealing with the question of accessorial liability under Article 1F. However the matter has been the subject of discussion in a number of Canadian cases. The first of these was Ramirez. The court in that case made a number of general observations relating to accessorial liability under Article 1F. MacGuigan JA, delivering the judgment of the court, commented that the passage in Article 6, quoted above, is decisive of the inclusion of accomplices as well as active participants in crimes against humanity, but it leaves outstanding the very large question as to the extent of participation required for inclusion as an "accomplice" (Ibid at p 178).
69. MacGuigan JA adopted the proposition, which had been propounded in US deportation cases, that active personal involvement in persecutorial acts need to be established (at pp 178-179). Or, as MacGuigan JA put it, "some personal activity involving persecution" (at pp 179-180) must be shown. He then proceeded, in the following terms, to address the question as to the degree of complicity which might be required in order to become an accomplice:
... A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. ...
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under s. 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere onlooking, such as occurs at public executions, where the on-lookers are simply bystanders with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g. s. 21(2) of the Criminal Code), and I believe is the best interpretation of international law. (at p 180)"
During the hearing, the unusual course was taken of calling evidence from the Minister's delegate who made the adverse determination against the applicant. The primary purpose in calling her was to establish exactly what the applicant had said to her during a lengthy interrogation in August 2001. The interview was recorded and copies of the resultant tape recordings were made available to the applicant. A considerable proportion of the recording was faulty, however, and the respondent's copy could not be fully transcribed by Auscript. This was highly regrettable because one of the most damaging admissions attributed by the delegate to the applicant occurred during the untranscribed part of the interview. The delegate claimed to have a personal note of this admission and also of other statements by the applicant which were not recorded. Several typed and handwritten versions of the interview found their way into evidence. I do not propose to analyse them individually. The delegate was criticised by counsel for the applicant as to the accuracy of her note taking, and it was pointed out that the version of the applicant's damaging admission which she attributed to him in her written reasons for decision did not strictly accord with the note which she made soon after the interview. This was a significant point and I have considered it carefully. If it were the only admissional material of substance it may cause me to entertain some doubt as to its sufficiency to establish the proposition that the applicant knew that his reporting of alleged subversives would lead to their arrest, detention, torture and murder. As it is however, there is other cogent material leading to this conclusion. On page 277 of the T documents in answer to a question in the protection application:
"38. Who do you think may harm/mistreat you if you go back?"

the applicant replied (inter alia):

"The armed SLFP vigilantes who roam Sri Lanka so freely will also kill me. During the time of UNP Government I had tipped off a number of SLFP members as subversive elements to the then law enforcement officials, some of whom were tortured by the security forces. Thus those people are waiting to take revenge on me …".

On page 278 of the T documents in answer to question 39:
"Why to you think they will harm/mistreat you if you go back?

The applicant's written reply is as follows:

"During my time in Sri Lanka as a high profile member of the United National Party, I was involved in the elimination of all forms of terrorism and violence. This involved giving tips to the armed forces to arrest members of the suspected terrorist groups, LTTE and JVP, and also information against SLFP vigilantes who organised anti-UNP activities. Some of these arrested members were tortured and killed by the security forces (a number of extra-judicial killings). I did not take part in those killings.
Thus the members of those terrorist groups, who are extremely active in Sri Lanka are extremely angry with me as they know that I was the live force behind those arrests. They also blame me for those extra-judicial killings although I never had such violent intentions when I gave tip offs about the terrorists to the security forces."

An attempt was made to suggest that the answers to those questions were not accurate and had been provided by the applicant's solicitor who had misunderstood the applicant and consequently provided incorrect information in the application. The applicant's solicitor at the time was a long term Australian resident of Sri Lankan ethnicity. He was not called to support the applicant's assertions as to error and I have no reason to suppose that the recorded answers ostensibly provided by the applicant were wrong in any way. In fact they bear the hallmarks of careful and intelligent preparation. I am fully satisfied that the answers recorded were those provided by the applicant to his solicitor who recorded accurately what his client had told him.
The following excerpts from the Auscript transcription of the applicant's interview are also relevant to the present issue (The Minister's delegate is referred to as "The Presiding Member").
"THE PRESIDING MEMBER: So, when you got information about the operations of these groups of parties, who did you give the information to?
THE INTERPRETER:   My head office was in Wennappua I give to the head office.
THE PRESIDING MEMBER:   Okay. Did you name people as threats when you – did you name particular individuals as threats?
THE INTERPRETER:   I was compelled to inform the office names of persons indicating threats could originate from those persons.
THE PRESIDING MEMBER:   I see.   And how many people did you name as threats during that period?
THE INTERPRETER:   To whom?
THE PRESIDING MEMBER:   To your head office.
THE INTERPRETER:   Yes, I have given.
THE PRESIDING MEMBER: But, how many people did you name?
THE INTERPRETER:   I would have given names of 10, 12.   On some occasions when we found out they were planning to hold meetings we have informed this.   Sometimes it was impossible to find or catch ---
THE PRESIDING MEMBER:   So, right. But the question got that, you know, over that period, how many different people would you have named to your head office?
THE INTERPRETER:   That number is - I cannot exactly ---
THE PRESIDING MEMBER:   No, I'm asking for a rough number, not, you know, whether it's in the hundreds or dozens or?
THE INTERPRETER:   Well, 10, 12 taken then - I would have given about 10, 12 names.
THE PRESIDING MEMBER: Right, okay.   Now, did you give any other information about the operations of these people to your head office?
THE INTERPRETER:   Could you please explain what you are exactly referring to?
THE PRESIDING MEMBER:   What did you - did you also tell your head office what these people were doing or what you suspected they were doing?
THE INTERPRETER:   Yes, I have mentioned.
THE PRESIDING MEMBER:   Right.   What happened to the information once you gave it to your head office?
THE INTERPRETER:   They went and arrested those persons and they gave this information to police, they gave this information to Army and got those persons arrested.
THE PRESIDING MEMBER:   When you gave the names of these people, did you know what was going to happen?
THE INTERPRETER:   What happened was those who (were) harassing the ruling party got arrested, but ---
THE PRESIDING MEMBER:   Right.   And did they get arrested for long periods of time?
THE INTERPRETER:   Did they get detained?
THE PRESIDING MEMBER:   For a long period of time?
THE INTERPRETER: Some who got arrested were later not found out.   Some got freed.
THE PRESIDING MEMBER: Right, I see.   Now, just referring to the 10 or 12 people that you named?
THE INTERPRETER:   Yes?
THE PRESIDING MEMBER:   How many of those were released afterwards?
THE INTERPRETER:   From this about 7 persons got freed when they were freed.
THE PRESIDING MEMBER:    And what happened to them when they were in detention?
THE INTERPRETER:   Well, to my knowledge, if a person is arrested by Army they are beaten up and questioned and tortured.
THE PRESIDING MEMBER: Did you know what was going to happen when you gave these names to your office?
THE INTERPRETER:   No.
THE PRESIDING MEMBER:   Why were they released?
THE INTERPRETER:   The way we learned it they got released to pay a bribe by paying money.
THE PRESIDING MEMBER: Right. When you reported these names, were you sure that these people who were engaged in subversive activities?
THE INTERPRETER: We knew.
THE PRESIDING MEMBER:   Right.   Were the village protection officers named?
THE INTERPRETER:   No, but the arms were not provided.
THE PRESIDING MEMBER:   These seven people that you named who were released afterwards, can you tell me what groups they were from?
THE INTERPRETER:   They were off LTTE, off JVP.
MR GAMINI: JVP and ---
THE INTERPRETER:   And two from the ruling party.   What is the name of the party?   The Government which is now there ---
THE PRESIDING MEMBER: PA?
THE INTERPRETER: PA, SLFP.
THE PRESIDING MEMBER:    SLFP?
THE INTERPRETER:   Sri Lanka Freedom Party.
THE PRESIDING MEMBER:   Okay.   So, if you named these people you must know the names of these people who were released?
THE INTERPRETER:   I do not exactly know who.
THE PRESIDING MEMBER:   But if you were the one who named them to your office and then they were released, you must know what the names of the people that you named to your office?
THE INTERPRETER:   I have given a number of names after I gave to the office, after I gave to the office what they did was, they supplied this to Army and police.   And they got arrested through them.
THE PRESIDING MEMBER:   Right.   Okay.   But, no, I'm not sure what you're telling me.
THE INTERPRETER: After I supplied the information that information goes out from that office to Army and police, they then go and arrest – make the arrests then they are the ones who question.   We can't get involved.
THE PRESIDING MEMBER:   Sure, but were all the people that you named arrested by Army or the police?
THE INTERPRETER:   They were.
THE PRESIDING MEMBER:   They were, okay.   Did you find out what happened to the people, did you make it your business to find out what happened to the people that you reported to the Army - to your office?
THE INTERPRETER:   I didn't have an opportunity to find about them later.
THE PRESIDING MEMBER:   You see, what I'm – are you saying that the threat they give here on return to Sri Lanka is from some of these people who were named by you as threats?
THE INTERPRETER:   Only those who got freed.   Those who didn't get freed, they are also waiting to take revenge from me.   Not that they will kill us, they will torture first and then kill.
THE PRESIDING MEMBER:   So, some of these people are still in detention?   Is that correct?
THE INTERPRETER:   After I came, I do not know, I do not know what to say about this.
THE PRESIDING MEMBER:   Right, okay.   How would these people know that you were the one who reported about them?
THE INTERPRETER:   Because I took over the leadership of this team and filled that position. Then they are well aware that I was the one who did this.   And to cite an example in this regard, my uncle was also killed in this regard and brother, sorry.   My conscience - in my conscience I am pretty sure that that is the fate I will have to face because my mother wanted to see me alive.
THE PRESIDING MEMBER:   Were your brother and uncle also involved in reporting subversive elements?
THE INTERPRETER:   A lot, they were working very close with me.
THE PRESIDING MEMBER:   Right.   Did you ever witness any killings or torture sessions of the Army or Sri Lankan forces?
THE INTERPRETER:   I have seen corpses, corpses that were burnt and corpses that were half burnt.   And the heads were cut off and the heads were placed on posts and hands and - hands were tied behind and the legs were tied too and they were killed by gunshot to head.    I can even still visualise.
THE PRESIDING MEMBER: How many of these people that you saw were like that?
THE INTERPRETER: Generally, those who were against the ruling party.
THE PRESIDING MEMBER:   Right.   Were any of the people that you reported on later seen, did you see any of them later in that state?
THE INTERPRETER:   I haven't witnessed with my eyes.   I just described about the corpses, state of corpses.
THE PRESIDING MEMBER:   Why were they put on posts?   Was that to scare people?
THE INTERPRETER: To scare people."
In her decision the Minister's delegate said "The applicant said at interview that he knew that the people whose names he reported might be tortured or killed extra judicially." However the closest he came to actually saying this was during the interview (the untranscribed part) as to which the delegate noted that she asked the question "Were you aware that people that you reported were killed or tortured?" She has noted the applicant's response as follows "Everybody know [sic] that the army and police torture people". On its face this is not necessarily an admission that the applicant knew that torture or death awaited those against whom he informed before he did so. Nonetheless, I am quite satisfied having regard to the applicant's status and role in the UNP, and the Village Protection unit ,and his clear awareness of the terror campaign being waged by both the Government and anti- Government forces that he knew full well that torture and possibly murder awaited those he reported. He admitted in evidence he knew that they would be assaulted by the security forces, but he said this was only a mild slapping about. I reject this explanation. It is plainly absurd. I also reject the applicant's claim that he was misinterpreted during the interview. His Sinhalese speaking solicitor was present during the interview. As already noted he was not called to give evidence.
Counsel for the applicant conceded, during the hearing, that "if the applicant knew that subversives he reported would suffer violence to life and person and cruel treatment and torture" [he] "he would be guilty as an accomplice of war crimes". I consider this concession to have been properly made, but I believe it is necessary to briefly discuss the concept of "crimes against humanity" as well as "war crimes" and the strength of any case which will be required to support a conclusion that there is "serious reason for considering" that an applicant has committed such crimes.
A useful starting point is the judgment of Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs FCA 1989 (22 December 2000) where he said:
"51. It was for the AAT to determine, upon all the evidence, whether Art IF operated so as to preclude the applicant from being considered for the grant of a protection visa.   As Branson J said in Ovcharuk at 301:
'Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.'
52. I regard the observations of French J in Chayakpa as being particularly helpful in elucidating the meaning of the expression 'serious reasons for considering'.   It was unnecessary, in accordance with those observations, for the AAT to 'make a positive or concluded finding about the commission of a crime'.   It was sufficient if there was 'strong evidence of the commission of' the crime specified.
53.   In my view the applicant's contention that Art IF(b) requires the relevant decision-maker to be satisfied beyond reasonable doubt that the applicant has committed a serious non-political crime cannot be sustained.   Nor can his alternative contention that Art IF(b) requires proof on the balance of probabilities.   There is nothing in the language of Art IF(b) that suggests it should be read as imposing upon a decision-maker an obligation to apply either of these curial standards of proof.
54.It is sufficient, in my view, if the material before the decision demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged.   To meet that requirement the evidence must be capable of being regarded as "strong".   It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant.   Nor need it be of such weight as to do so on the balance of probabilities.   Evidence may properly be characterised as "strong" without meeting either of these requirements."
Violations of the laws or customs of war may amount to "war crimes". Such violations may include murder, ill treatment or deportation to slave labour or for any other purpose of members of the civilian population of or in an occupied territory, murder or ill treatment of prisoners-of-war, or persons on the seas.
"Crimes against humanity" may be committed by an offender committing murder, extermination, enslavement, deportation and other inhumane acts against any civilian population by persecutions on political, racial or religious grounds, and execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where the offences were perpetrated.
If there is serious reason for considering the applicant has committed war crimes or crimes against humanity he is not a refugee within the meaning of the Convention (X v Borsody (1977) 47 ALD 211 @ 216 Goldberg J).
The systematic torture or killing of members of an identifiable group within a civilian population constitutes a crime against humanity. (SRNN and Department of Immigration and Multicultural Affairs (2000) AATA 983, para.76)
"Isolated acts against individuals, unconnected with a larger design to persecute or exterminate a population are not within the definition of the crime". (Crimes against Humanity) Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501 per Toohey J @ 669.
I accept the respondent's submission that Article 7 of the Rome Statute (1998) defining "crimes against humanity" to include torture and acts of a similar character intended to cause great suffering or serious injury to the body, is applicable here.
I also accept the correctness of the view of Deputy President Chappell in SRNN v DIMA (supra) where he observed that there is no reason "why grave breaches of the Geneva Convention of 1949 should amount to war only within the confines of international conflict".
Article 6 of the Convention provides that "leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan". Article 25 of the Rome Statute provides an even broader definition of criminal complicity. By any standard of criminal complicity or accessorial liability applicable in this country, the applicant would be beyond the protection of the Convention if there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. In the circumstances his intent to achieve such outcome could and should be inferred in my opinion.
There is no basis for concluding that any such conduct by the applicant resulted from duress or coercion. Indeed no such excuse or explanation was claimed or suggested by the applicant.
In my opinion there is serious reason for considering that the applicant was an accomplice to the commission of both war crimes and crimes against humanity.
Accordingly, the decision under review should be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President)
Signed: K L Miller (Personal Assistant)
Date/s of Hearing   13, February, 16 & 17 April 2002
Date of Decision   17 May 2002
Counsel for the Applicant         P Dickerson
Solicitor for the Applicant          City First Solicitors
Counsel for the Respondent    J Neely
Solicitor for the Respondent    Australian Government Solicitor