Ballibay and Minister for Immigration and Multicultural Affairs
[2000] AATA 1147
•21 December 2000
CATCHWORDS – IMMIGRATION – whether applicant is a person to whom Australia does not have protection obligations under Refugees Convention – whether there are serious reasons for considering that the applicant committed a serious non-political crime – Turkish applicant killed his alleged mother's lover when he was fifteen – decision affirmed.
Convention relating to the Status of Refugees – Article 1A, 1C, 1D, 1E, 1F
Criminal Code (WA) – s 23
Migration Act 1958 – ss 36, 65
Migration Regulations
Protocol relating to the Status of Refugees
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
Arquita v Minister for Immigration and Multicultural Affairs [1999] AATA 410 (Deputy President Forrest)
Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379
Dhayakpa v Minister for Immigration and Multicultural Affairs (1995) 62 FCR 556
Jiminez v The Queen (1992) 173 CLR 572; (1992) 106 ALR 162; (1992) 66 ALJR 292; (1992) 59 AcrimR 308; (1992) 17 CrimLJ 61
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; (1985) 61 ALR 609; (1985) 59 ALJR 824
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
R v Derrington [1980] VR 353
R v Tait [1973] VR 151
Kroon v R (1990) 52 ACrimR 15; (1990) 55 SASR 476; (1990) 12 MVR 483
Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173
The Queen v Brown and Morley [1968] SASR 467
The Queen v Falconer (1990) 171 CLR 30; (1990) 96 ALR 545; (1990) 65 ALJR 20; (1990) 50 ACrimR 244
DECISION AND REASONS FOR DECISION [2000] AATA 1147
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2000/824
GENERAL ADMINISTRATIVE DIVISION )
Re: VAKKAS BALLIBAY
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 21 December, 2000
Place: Melbourne
Decision:The Tribunal affirms the decision of a delegate of the respondent dated 3 July, 2000.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 6 July, 2000, the applicant, Mr Vakkas Ballibay, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") dated 3 July, 2000. That decision was that Mr Ballibay is a person to whom Australia does not have protection obligations under the Convention relating to the Status of Refugees ("Convention") and, consequently, that Minister was not required to assess his claim for refugee status under that Convention.
At the hearing, Mr Ballibay was represented by Mr Gibson and the Minister by Ms Kennedy. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with two maps of the area in which Mr Ballibay lived, his statutory declaration dated 12 September, 2000 and a transcript of an interview between him and Mr Colin Drysdale on 8 June, 2000. Mr Ballibay gave evidence in support of his case.
THE ISSUE
The issue in this case is whether there are serious reasons for considering that Mr Ballibay has committed a serious non-political crime before his arrival in Australia.
BACKGROUND
There was no dispute, and I find, that Mr Ballibay was born on 1 July, 1979 in Gaziantep, which is located in Iran but near the Syrian border. He is of Kurdish ethnicity and speaks both Turkish and Kurdish. He has two sisters and a brother, all of whom are younger than he.
Mr Ballibay attended primary school from 1986 until 1992. He did not attend middle school although he sat the Middle School Diploma in 1997. Although he attended high school between 1997 and 2000, Mr Ballibay did not complete it. He has never worked although, before he was gaoled, he had helped his father with farming work.
In 1995, Mr Ballibay was gaoled for five years for killing a man whom he was told had an affair with his mother. His mother had earlier been killed in 1994 by one of his maternal uncles on the basis that she had been unfaithful to her husband. The uncle was sentenced to 40 months' imprisonment. At the time of her death, Mr Ballibay was 14 years of age and he was 20 when he was released from gaol on 12 February, 2000.
LEGISLATIVE FRAMEWORK
Migration Act and Regulations
Mr Ballibay has applied for a Subclass 866 (Protection) visa and the delegate of the Minister considered whether he was entitled to a Subclass 785 (Temporary Protection) visa. The delegate did so as Mr Ballibay did not satisfy Item 866.212. At the time of the decision, that item required that he be immigration cleared whereas Item 785.212 required that he not be so cleared. It has since been repealed with effect from 1 November, 2000. Both a Temporary Protection visa and a Protection visa are classes of visa for which provision is made in the Migration Act 1958 ("Act"). In making provision for them, s. 36 provides that:
"A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." (s. 36(2))
The "Refugees Convention" is defined in s. 5 of the Act to mean the Convention relating to the Status of Refugees adopted at Geneva on 28 July, 1951 and the "Refugees Protocol" to mean the Protocol relating to the Status of Refugees adopted at New York on 31 January, 1967. I will refer to both as the "Convention".
The Minister must grant a protection visa if he is satisfied that the criteria prescribed by the Act and the Migration Regulations "("Regulations") have been fulfilled but must refuse it if he is not so satisfied (s. 65). Among the criteria prescribed by the Regulations in relation to a Temporary Protection visa is that:
"the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." (Regulations, Item 785.221 of Schedule 2).
Item 785.221 is mirrored by Item 866.221 in relation to a Protection visa.
The time at which Mr Ballibay must meet these criteria is the time at which the determination of his status is made (Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302 per Mason J, Deane and Dawson JJ applied in Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 387 per Mason CJ, at 399 per Dawson J and at 405 per Toohey J. As the Administrative Appeals Tribunal Act 1975 (as modified by Division 9 the Act) applies to the decision, it follows that the time at which Mr Ballibay must meet the criteria is the time at which I make my decision.
The Convention
Outline
The Refugee Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a "refugee" is defined in Article 1A(2) of Chapter I as a person who:
"… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. Article 1F(b) is relevant in the circumstances of this case and provides:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)…
(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)…"
THE EVIDENCE
The events preceding the man's death
Mr Ballibay said that his mother was shot in front of him. At an interview on 3 May, 2000 between Mr Ballibay and Ms Karen Dundas, an officer of the Department of Immigration and Multicultural Affairs ("Department"), Mr Ballibay said that, at the time of the killing, he had not known why his maternal uncle killed his mother. His uncle also wounded a man whom he was later told had been involved in a relationship with his mother. After his father and maternal uncles found the man in Osmaniye, they told Mr Ballibay:
"… you are under age you need to shoot this man. If you underage you get concessions for the crime, if you are under 15 there are more concessions. I was 15 and a few months at the time. I did it." (T documents, page 29)
During the course of an interview on 8 June, 2000 between Mr Colin Drysdale, an officer of the Department, and Mr Ballibay ("the June interview"), Mr Ballibay spoke through an interpreter and said:
"THE INTERPRETER: It was nine or 10 months later and my father and the other four uncles, said to me that you've got to kill this man.
Mr DRYSDALE: Yes. What was his name?
THE INTERPRETER: Ishait Duston. …
Mr DRYSDALE: Yes, okay. What happened then?
THE INTERPRETER: I didn't want to kill at first, because I didn't want to go to gaol but they convinced me that I will be gaoled only one to four months, because I am child." (Exhibit 2, page 10)
Later, Mr Ballibay said that if he had not killed the man, he would have been thrown out of home. (Exhibit 2, page 15)
In his statement made on 12 September, 2000 ("September statement"), Mr Ballibay said that he was devastated by his mother's death. His devastation was even greater because his mother's own brother had killed her. In giving oral evidence, Mr Ballibay said that his mother had been killed in front of him. In his September statement, Mr Ballibay set out the events that followed his mother's death:
"4. Soon after my mother's death, instead of supporting me and helping me to deal with the fact that my mother had just been killed by her own family, my father and my uncles started putting pressure on me by telling me that I should save our family's honour by killing the man with whom my mother had been unfaithful. I was very saddened and distressed by my mother's death and in a way in my mind this man was somewhat responsible for my mother being dead. However, I could not hurt a fly let alone kill a man.
5.I refused to kill the man, which made my father and my uncles very angry. They would come to see me and at first talk nicely to me trying to convince me to do it. They would tell me that nothing would happen to me and that all I would be sentenced to would be 3 or 4 months in a children's prison as I was only a child. Despite this I refused, and when I did so they beat me and made threats against me. They would tell me that I was bringing shame on the family and that they would throw me out on the streets where I would die as no one would feed or care about a Kurdish child on the streets. I was terrified.
6.After about ten months of such treatment I became so scared that I felt that I had no choice, and if I wanted to live I would have to do what they wanted me to do. In my child's mind I did not realise what was really going on. All I knew is that I was still grieving for my mother and I was terrified that I would also die if my family threw me on the street as they had threatened to do. They killed my mother, so I was afraid that they would do the same to me.
…
11.I would never have done this if it were not for the threats from my family. I thought that it was a choice of either shooting this man or dying myself. I was forced into killing the man; I felt I had no choice."
(Exhibit B)
In his oral evidence, Mr Ballibay said that he had not known that his mother was having a relationship until after she was killed. His father and uncles told him that was what had happened. Approximately a week after his mother was killed they then started to tell him that he had to kill the man. He went to Osmaniye to carry out the act 10 months later but had refused them until they found the man. When asked whether he had any fears other than that of being thrown out of the family home, Mr Ballibay said that his mother's brother had killed his mother. His father knew that. He did not think that a man who kills his own family and a man who causes his wife's death, would have any pity on a child. Such people could do anything. When asked whether his mother deserved to die for allegedly having had an affair, Mr Ballibay said that no-one deserves to be killed.
Despite the threats, Mr Ballibay said that he felt that he had no option but to live at home. He was only 14 years of age at the time and had nowhere else to go. Mr Ballibay said that he and his family were Alevi Moslems while the other families in Gaziantep were Suni Moslems Those families were good to his, though, because they were all Kurds.
In cross-examination, Mr Ballibay confirmed that his father and uncles also told him that he would be imprisoned for only 3 to 4 months. They were always telling him that, he said. When it was suggested to him that this was a very important reason for his killing the man, he replied that he was against killing a person. His father and uncles were only saying that to deceive him to kill the man. He said that he believed them and continued to believe them until the day of the court hearing. When asked whether part of his reason for killing the man was his belief, he said that it was not his prime reason. His prime reason was the fact that his father and uncles would throw him out if he resisted their request. In cross-examination, Mr Ballibay said that, apart from the fear of being thrown out of home, he feared they would do the same thing to him as they had to his mother. He thought that if he were thrown out of home, he would be killed as the other Kurds in the village would not assist him.
The events at the time of the man's death
In a statement made on 1 June, 2000 ("June statement"), Mr Ballibay said that his father and uncles provided him with a gun and found the man for him. He went to the man and shot him. When he shot him, he said, he believed that he would only be in gaol for 3 to 4 months but that was because his father and uncles had lied to him. (T documents, page 57).
In the June interview, Mr Ballibay told Mr Drysdale that his father and his "other four uncles" took him to where Ishait Duston lived. His father put a pistol in his hands and showed him how to use it. The following exchange took place between Mr Ballibay and Mr Drysdale:
"MR DRYSDALE: So did you enter his house to kill him or did you kill him in the street?
THE INTERPRETER: In the street.
MR DRYSDALE: In the street. Tell me how you did it?
THE INTERPRETER: My father and my uncle, I followed my uncles with me, was with me all the time and that man was walking in the street. They showed me the man was walking in the street, and they pushed me towards him, 'Go there behind him. He is old man, just kill him'. I followed him behind, I shoot him behind, in the street.
MR DRYSDALE: Sorry, whereabouts on the body?
THE INTERPRETER: I got my shot in lower back but from inside gone through the heart.
MR DRYSDALE: How many shots?
THE INTERPRETER: Two times. One of them was the heart.
MR DRYSDALE: So what happened after you shot him?
THE INTERPRETER: I was there, still there, and the policemen came and the policemen asked me 'Who shot him?' and I said 'I did', because I am little, under age, and they took me to the court.
MR DRYSDALE: Where was your father and uncles at this time?
THE INTERPRETER: They escaped from there. They ran away. When they heard the noise of the pistol, they disappeared, they run away.
MR DRYSDALE: Why didn't you run away?
THE INTERPRETER: I didn't want to escape. And I thought I was going to be gaoled two three months and then I get out.
MR DRYSDALE: All right. So the policemen came and – they arrested you and took you where?
THE INTERPRETER: They took me to the station first and they took me to the court. It was court decision they made to gaol." (Exhibit 2, pages 10-11)
In his September statement, Mr Ballibay said:
"7. I can hardly remember anything about the day I shot the man with whom my mother had had an affair. All I can remember is that I was terrified that day. Everything was in a daze and I was like a robot. My father and my uncles took me to the place where the man was, in Osmaniye. I was so terrified that I could barely walk. They were guiding me. When we got to the place where the man was they put a gun in my hand and told me to squeeze the trigger. The man was right in front of me. I don't remember squeezing the trigger, but when I saw blood coming out of the person I wet myself. Everything was still in a daze. I froze – I was in shock. My father and uncles ran away and by the time the police came they had gone. I could not deal with what was happening. It was like my soul had left my body; I was looking at all this like an outsider. The police arrested me at the scene. Unfortunately they could not do anything to save the man." (Exhibit B)
In his oral evidence, Mr Ballibay said that a psychologist had asked him about his feeling at the time he killed the man but that he had not previously been asked about them. He said that he could not recall where the bullets hit his victim. He was "all upset in …[him]self". His uncle saw him when he was in gaol in Elazig and told him that he had hit him in the back and a bullet had gone through his heart.
During cross-examination, the first two paragraphs of Mr Ballibay's June statement were read to him. When asked whether he agreed that he had not included anything in the statement to suggest that he was in physical danger, Mr Ballibay said that no such questions were put to him during the previous interview. He did not recall whether he was asked about his state of mind when his June statement was prepared.
Mr Ballibay said in cross-examination that he could recall travelling by bus to Osmaniye. His father and uncles travelled with him. They showed him where to go. He did not walk about the town as he did not know the streets. They had the weapon but gave it to him about 10 minutes before the shooting. Mr Ballibay said that he held the weapon close to the man and recalled shooting him from behind. He said that he could only remember the first shot as he lost himself as soon as he saw blood. He then said that he remembered shooting twice and then he was taken to the police station. Mr Ballibay said that he could not recall where he hit the man.
Mr Ballibay said that he recalled the police asking him for his name but not whether he had shot the man. He conceded that they could have done so and he could have replied that he had. He agreed that he had told Mr Drysdale that he had done so.
The trial and subsequent appeals
In the earlier June interview, Mr Ballibay said that he shot Ishait Duston on 9 February, 1994. He was interviewed by the police for one to two hours and they took him to the scene of the crime to re-enact it. He was taken to a doctor to check that he had not been tortured. On the following day, he was in the court and gaoled. It was four months before the court hearing took place and he was first sentenced. That sentence was reviewed and that took a further 15 months to complete. He was in gaol in Osmaniye the whole of that time. That gaol was an adult prison but children were kept separate from the adults.
Mr Ballibay said that he was not represented by a lawyer but defended himself by answering the questions from the judge. The judge understood exactly what had happened and he was very kind to him, he said.
Mr Ballibay said that his father and uncles did not attend the court hearings although they sent him some money and clothes while he was in gaol. The following exchange in the June interview dealt with Mr Ballibay's feelings for his father and uncles:
"MR DRYSDALE: So how did you get along with your father and your uncles because of you going to gaol for so long?
THE INTERPRETER: They were very upset. They said three months to me and I am gaoled for five years and I was in crisis, nervous crisis, he says.
MR DRYSDALE: So, how do you feel about your father and your uncles because of that?
THE INTERPRETER: I have no love for them. I hate them.
MR DRYSDALE: How do they feel about you?
THE INTERPRETER: I didn't want to face them. I didn't ask them anything, I didn't face to each other with me, I didn't face with them. I didn't want to see them.
MR DRYSDALE: Were they still trying to be friendly to you?
THE INTERPRETER: Yes, they were friendly but I didn't see them as a friend. …" (Exhibit 2, page 14)
In his September statement, Mr Ballibay said:
"8. I was then taken to trial. I did not have a lawyer, as I could not afford one. I could not contact my father and my family and they never came to see me whilst I was on trial. They only came to see me after some time in prison. The court initially sentenced me to 14 years and six months. It was subsequently reduced to 12 years 6 months.
9.I remember that I was taken then before another judge. This time also I did not have a lawyer. This judge was nicer to me and he reduced my sentence to 5 years, in view of the fact that I was still considered to be a child." (Exhibit B)
In cross-examination, Mr Ballibay said that the judge and prosecuting officer were both present in court when his case was heard.
Serving the sentence
In his September statement, Mr Ballibay said:
"10. I subsequently was taken to prison. I served 20 months in Osmaniye and 40 months in Elazig. During this time, I was tortured really badly because I am Kurdish and was accused of being a PKK member and spreading propaganda. I still have cuts on my body from the torture that I received in the prison, which are evident from the photographs previously filed in my application." (Exhibit B)
Osmaniye is located approximately to the west of Gaziantep and Elazig to the north east of Gaziantep.
CONSIDERATION
As French J said in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, the "… provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State." (page 565) As it is protective in that way, the question of whether there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee may be answered by reference to notions of serious criminality within the receiving State.
Charges or convictions outside the receiving State are not required in order to find that a person has committed a serious non-political crime for the Article 1F(b) refers to the person's having "committed" and not to his or her having been "convicted". There is a distinction between having committed an offence and having been convicted of an offence and that distinction is drawn in the Convention itself. It appears from a comparison of the provisions of Article 1F(b) with those of Article 33(2) where a person who has "been convicted by a final judgment of a particularly serious crime" may, in certain circumstances, be returned to the State from which he or she seeks refuge.
A consequence of the distinction is that there may be a conviction for a crime in the State from which refuge is sought but the receiving State may not find that a crime has been committed. As Whitlam J said in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 (Whitlam, Branson and Sackville JJ):
"Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case. Certainly the language may also apply to fugitives from prosecution or, for that matter, punishment." (page 179)
Branson J, also in Ovcharuk's case took the same view:
"Certainly it cannot be seen to be within the object and purpose of the Refugees Convention that the question of whether conduct undertaken in a country from which refuge is sought amounts to 'a serious non-political crime' should be answered solely by reference to the notions of serious criminality accepted within that country. So to construe the Refugees Convention would remove from its protection many persons with legitimate claims to be accepted as refugees and who would not be likely to pose any threat to the order and safety of a receiving State. One needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the 'immodest' dress of women is regarded as seriously criminal." (pages 185-186)
Applying these principles to Mr Ballibay's case, the fact that he has been convicted of murder in Iran is not determinative of whether or not there are serious reasons for considering that he has committed a serious non-political crime in Iran. It follows that the procedures that were followed in Iran in obtaining that conviction are equally irrelevant. Mr Gibson submitted that he has not committed a serious non-political crime on two bases. The first is that he did not commit the offences because his act was not a voluntary act either because he was acting in a state of automatism or because he was acting under duress or coercion. The second is that Mr Ballibay's trial was unsatisfactory and he would have been unlikely to have been found to have committed it had he been tried in Australia for such an offence.
Mr Gibson did not seek to dispute that, if Mr Ballibay committed murder, then murder is a serious non-political crime. In view of that and in view of the clear evidence of Mr Ballibay that Ishait Dustan was killed because of his alleged affair with Mr Ballibay's mother, I find that it cannot be a political crime. It had no attribute of a political act or crime but was, at its highest, a matter of family honour. I am also satisfied that, if committed, it was a serious non-political crime. On any view, murder must be considered to be serious. This is reflected in such cases as Arquita v Minister for Immigration and Multicultural Affairs [1999] AATA 410 at paragraph 21 (Deputy President Forrest). Furthermore, it was a case of an individual (whether at the behest of others or not and whether under duress or not), effectively taking on the role of executioner after others had taken upon themselves, and without recourse to the appropriate authorities in Iran, the roles of complainant, investigator and judge and jury. When such disregard for the proper and lawful processes in a country leads to murder as it did in this case, the crime must be considered to be serious.
In the context of this case, I am not required to consider whether Mr Ballibay would have been convicted in Australia but whether there are serious reasons for considering that he has committed murder. In the Dhayakpa case, French J said that:
"The use of the words 'serious reason for considering that' suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. The precise construction of that phrase does not fall for consideration in the present case …" (page 563)
The matter was considered also by Mathews J as President of the Tribunal in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150. Her Honour referred first to the Canadian case of Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173 in which the Canadian Federal Court of Appeal held that the words "serious reasons for considering" establish a lower standard of proof than the balance of probabilities. She continued:
"82. In any event, I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be 'serious reasons for considering' a matter raises similar issues to the test of 'reasonable grounds to believe'. The requirement of seriousness goes well beyond that of reasonableness in my view. Nor do I agree that the 'serious reasons for considering' test should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be 'serious reasons for considering' (emphasis added) that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v. Briginshaw (1938) 60 CLR 336, Helton v. Allen (1938-1939) 63 CLR 691)."
Branson J in Ovcharuk said only that "Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker." (page 186)
However the expression is to be interpreted, I can only have serious reasons for considering that Mr Ballibay has committed the crime of murder if every element of that crime can be identified and particularised (Ovcharuk, per Branson J at 186). I note that Mr Ballibay was 15 years of age at the time Ishait Duston was killed and so was above the age of criminal responsibility. The first element of murder is that there be a killing of a human being. That is what has happened in this case. In the circumstances of this case, the second is that Mr Ballibay caused the death of that human being. Of that I do have serious reason to consider that he did so and that is found in his own admission that he pulled the trigger of the gun that fired the shot that killed Ishait Duston. The third element is that the killing must be unlawful. A killing may be lawful, for example, where, in certain circumstances, it occurred accidentally or in self-defence. There is no material giving any reason to consider that the killing occurred in circumstances where it was lawful. The evidence of Mr Ballibay is that it was a planned killing (if only by his father and his uncles) and there is no suggestion of accident or self-defence.
I will state the fourth and fifth elements of murder together. The fourth is that Mr Ballibay killed Ishait Duston by a conscious voluntary act. If so, the fifth is that Mr Ballibay had the necessary mental element or that the killing occurred in circumstances not requiring a mental element. Where a mental element is required, he must have had the intention to kill Ishait Duston or at least to cause him grievous bodily harm or he must have been reckless as to the causing of his death or of causing him grievous bodily harm. In certain circumstances, he would not be required to have a mental element where the killing occurred while he was engaged in another activity such as a felony or in resisting lawful arrest. In this case, the mental element is required for there is no suggestion at all that the killing occurred during the course of his committing a felony or in the course of his resisting arrest.
In R v Tait [1973] VR 151, to which Mr Gibson referred, the Full Court of the Supreme Court of Victoria said "… that it must be proved that the act which causes the death is the product of the exercise of the will to act of the accused. We refer to Ryan v R (1967), 121 CLR 205, per Barwick, CJ, at p. 216; [1967 ALR 577." (page 154) After considering various authorities, Barwick CJ in Ryan's case concluded:
"In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. An occasion such as the fourth view of the evidence in the instant case (ante) would, in my opinion, be an instance of a deed not the result of a culpable exercise of the will to act. But such an occasion is in sharp contrast to the third view of those facts from which it needs carefully to be distinguished. If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. …" (pages 216-217)
The accused had entered a service station, pointed a sawn-off loaded and cocked rifle without applying its safety catch and demanded money from the attendant. Barwick put four views of what happened when the gun discharged killing the attendant. At the time, the accused had been pointing the rifle at the attendant with one hand and attempting to tie him up with the other. The first view of the facts was that the accused discharged the gun intentionally and that his evidence that it was an accident was to be disbelieved. The second was that he fired the gun voluntarily although not intending to harm the attendant but merely to frighten him as a means of self-defence. The third view to which his Honour referred was that the accused "… being startled, he voluntarily but in a panic, pressed the trigger but with no specific intent either to do the deceased any harm or to frighten him." (page 209). The fourth was that "… being startled so as to move slightly off his balance, the trigger was pressed in a reflex or convulsive, unwilled movement of his hand or of its muscles." (page 209)
The High Court again considered the issue of automatism and voluntariness in The Queen v Falconer (1990) 171 CLR 30 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). It did so in the context of s. 23 the Criminal Code (WA) which provides that "… a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident." Psychiatric evidence supported a thesis that, at the time Mrs Falconer discharged the shotgun that killed her husband, she was in a dissociative state. The thrust of that evidence was that such a state might be experienced by normal persons but only in situations involving intense psychological crisis or conflict.
Although members of the High Court reached their conclusions by different routes, all agreed that a person is entitled to an unqualified acquittal on a charge of murder if his or her act or omission occurred independently of his or her involuntary conduct not arising from a disease of the mind or a natural mental infirmity. The evidence raised a question whether Mrs Falconer's act of discharging the shotgun was done independently of her own will. It was a matter that should have been put to the jury and the jury directed to consider whether the prosecution had proved beyond reasonable doubt that her will had accompanied the act.
In the case of Mr Ballibay, there is material in his own evidence supporting a conclusion that he was under great pressure from his father and his maternal uncles to kill Ishait Duston. It was not his idea to do so and it was not his wish that he do so. I accept that he does not believe that choosing to kill a person is the right thing to do in any circumstances. His father and his uncles located Ishait Duston and took Mr Ballibay to the place where he could be found. They chose the means of killing Ishait Duston and placed that means (in the form of a gun) in Mr Ballibay's hands. Mr Ballibay was scared because he thought that if he did not kill Ishait Duston he would either be turned out of his home, and so have no shelter at all, or be hurt in some way by his father and his uncles. He also believed them that he would only be gaoled for 3 or 4 months if he did what they wanted.
Mr Ballibay said in the September interview that he could hardly remember anything about the day he shot the man with whom his mother had had an affair. All he could remember was that he was terrified that day. Everything was in a daze and he said that he was like a robot. On one view, this account could be regarded as a little inconsistent with what he said in the June interview in that he seemed to say in that interview that he recalled the shooting. This apparent inconsistency could be explained, however, by reference to his statement in his oral evidence that his uncle told him where he had shot Ishait Duston.
There is no supporting psychiatric evidence but, assuming that Mr Ballibay did not know what he was doing at the time of the shooting, there are serious grounds for considering that he would not be able to mount a defence on the basis that the shooting was not voluntary. He had, for reasons which perhaps amounted to duress and because he believed that his sentence would be light, put himself in the position where he intended to do what was expected of him. On his own evidence, it is clear that he travelled on the bus to Osmaniye in order to carry out the wishes of his father and of his uncles. Even though he might have been acting under duress, his actions leading up to the shooting and putting him in the position where he fired the gun were voluntary. His mind, although acting upon a false promise of a light sentence and affected by fear of possible repercussions from his family if he did not act as he was told, was directing his actions. His actions were directed to taking him to the place where he could shoot Ishait Duston. Even if he cannot remember the actual shooting and even if it could be said that his final act of pulling the trigger to shoot Ishait Duston was involuntary, there are serious reasons for considering that he would be found to have committed a voluntary act and to have committed murder. On his own evidence, his voluntary (albeit under duress) actions prior to his shooting placed him in the situation in which he intended to kill and in which, whether ultimately as a result of a voluntarily or involuntary act, he did so.
A comparison can be made with a person who falls asleep while driving a motor vehicle. To constitute culpable driving, the relevant driving must have been voluntary (Jiminez v The Queen (1992) 173 CLR 572 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) The driver of a motor vehicle fell asleep while driving, awoke, attempted to regain control, was unable to do so and ultimately collided with three trees. His actions when asleep were not voluntary but that is not the period to which regard must be had. As their Honours said:
"… where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s. 52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep … And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving." (pages 578-9)
The issue was explained by King CJ in a passage in Kroonv Reg (1990) 52 A Crim R 15 approved by their Honours in Jiminez:
"Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury (McBride (1966) 115 CLR at p 51, per Barwick CJ) to be regarded as the cause of the death or bodily injury.
… The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep." (page 18)
It follows that I consider that there are serious reasons for considering that Mr Ballibay's actions would not be considered to be involuntary, whether committed in a state of automatism or otherwise.
That brings me to the issue of duress or compulsion. There are serious reasons, found in Mr Ballibay's own evidence, that he acted under duress or compulsion exerted by his father and his uncles. Neither, however, is a defence to a charge of murder in Australia where the defendant is the person who actually killed another. This is clear from the excerpt from the text book handed up by Mr Gibson (O'Connor and Fairall, Criminal Defences, paragraph 8.11) and from authorities such as The Queen v Brown and Morley [1968] SASR 467 at 479-490 per Bright and Mitchell JJ, Bray CJ dissenting at 496-497 and R v Darrington [1980] VR 353 per Anderson J at 358, Young CJ and Jenkinson J deciding on other grounds).
Having considered all of the issues, I am satisfied that there are serious reasons not only for considering that Mr Ballibay has killed another but that, in doing so, he has committed a serious non-political crime before his arrival in Australia. Having found that, I find that he comes within Article 1F(b) of the Convention. That conclusion leaves me with no discretion to take into account other factors such as the persecution he may suffer if returned to Iran for, once a person comes within Article 1F(b), the provisions of the Convention do not apply (Dhayakpa, French J at 563).
For the reasons I have given, I affirm the decision of a delegate of the respondent dated 3 July, 2000.
I certify that the fifty two preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President).Signed: ......................................……………
D De Andrade Personal AssistantDates of Hearing 27, 28 November, 2000
Date of Decision 21 December, 2000
Counsel for the Applicant Mr J Gibson
Solicitor for the Applicant Macpherson & Kelly
Counsel for the Respondent Ms M Kennedy
Solicitor for the Respondent Blake Dawson Waldron
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