BYJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

BYJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3315 (17 September 2021)
Division:GENERAL DIVISION
File Number(s): 2018/3626
Re:BYJB
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:17 September 2021
Place:Sydney

The reviewable decision, being the decision made by a delegate of the Minister of Home Affairs on 21 June 2018 to refuse to grant the Applicant a Protection visa, is affirmed.
...............................[SGD]...................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – protection visa – refugee – where applicant was a member of the LTTE – whether the applicant committed war crimes – Rome Statute – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 500(1)
Migration Act 1958 (Cth) s 5H
CASES
Dhayakpa v The Minister for Immigration and Ethnic Affairs [1995] FCA 1653
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245
SECONDARY MATERIALS
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1F
Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1), part II.B
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) arts 8(2), 25, 30, 33
REASONS FOR DECISION
Deputy President J W Constance
A. INTRODUCTION

The Applicant was 19 years old when he joined the Liberation Tigers of the Tamil Eelam (LTTE) in Sri Lanka in 1986. He received military training the following year. By 2006 he held the rank of Lieutenant Colonel.
The Applicant took on various roles in the LTTE until he left the organisation in 2009. He was in command of a supply camp in Ampara Province for some years and assisted in the training of troops which attacked Sri Lankan Army forces occupying Elephant Pass in 1997. He also filled several administrative positions.
In December 2006 the Applicant left Sri Lanka by air. He travelled to Singapore and then to Malaysia where he remained until 2009. In August 2009 the Applicant left Malaysia, for Australia, by boat. Three weeks later he was detained as an unauthorised maritime arrival on Christmas Island. He was assessed to be a refugee by a Refugee Status Assessment Officer on 11 November 2009.[1]
[1] Exhibit R1 at 73.
In September 2015 the Applicant applied for a Temporary Protection visa. On 21 June 2018,[2] a delegate of the Minister decided that:
……….. as I consider there are serious reasons for considering that the applicant has committed a war crime, as defined by international instruments prescribed by the regulations, I find that the applicant is ineligible for the grant of a Protection visa on complementary protection grounds under s36(2C) of [the Migration Act 1958].[3]
[2] Exhibit R1 at 3.
[3] Exhibit R1 at 36.
I shall refer to this decision as the reviewable decision.
The Applicant has applied to the Tribunal to review the reviewable decision.
For the reasons which follow the reviewable decision will be affirmed.
B. LEGISLATIVE FRAMEWORK
The Migration Act 1958 (Cth)
Section 5H of the Migration Act 1958 (Cth) (the Act) provides, in part:
Meaning of refugee
1For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugeeif the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
Note: For the meaning of well-founded fear of persecution , see section 5J.
2Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
…
Rome Statute of the International Criminal Court
The parties agree, and I am satisfied, that the Rome Statute of the International Criminal Court (the Statute) is the appropriate international instrument to determine the definition of a war crime as it is used in section 5H.
Article 8(2) (War crimes) of the Statute provides, in part:
2 For the purpose of this Statute, "war crimes" means:
……….
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
……
(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
……….
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
…
(vii) conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities ……….
Article 25 (Individual criminal responsibility) provides, in part:
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
…
4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.
Article 30 (Mental element) provides:
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
Article 33 (Superior orders and prescription of law) provides:
1The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a)The person was under a legal obligation to obey orders of the Government or the superior in question;
(b)The person did not know that the order was unlawful; and
(c)The order was not manifestly unlawful.
2For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
“Elements of Crimes” document[4]
[4] Exhibit R1 at ST2.
Article 9 of the Statute provides for the creation of the Elements of Crimes document to assist in the interpretation of relevant provisions of the Statute, relevantly Article 8 in this case. The Elements of Crimes document is reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002.
The document provides, in part:
War crime of using, conscripting and enlisting children
Elements
1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.
2. Such person or persons were under the age of 15 years.
3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
War crime of sentencing or execution without due process
Elements
1. The perpetrator passed sentence or executed one or more persons.
2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. There was no previous judgement pronounced by a court, or the court that rendered judgement was not “regularly constituted”, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law.
5. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial.
6. The conduct took place in the context of and was associated with an armed conflict not of an international character.
7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
C. THE ISSUE
The Tribunal is given jurisdiction to review the reviewable decision by subsection 500(1) of the Act which provides, in part:
1Applications may be made to the Administrative Appeals Tribunal for review of:
…
(c)a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
This means that the Tribunal is confined to considering the issue of whether the Applicant is excluded from the definition of refugee because there are serious reasons for considering that he has committed a war crime.
The meaning of “serious reasons for considering”
In Dhayakpa v The Minister for Immigration and Ethnic Affairs,[5] French J considered the provisions of Article 1F of the Convention Relating to the Status of Refugees 1954 which, for the purposes of this application, is in the same terms as subsection 5H(2) of the Act. The section was enacted to meet Australia’s obligations under the Convention.
[5] [1995] FCA 1653.
His Honour said, in part:
Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words "serious reasons 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.[6]
[6] Ibid, at [23].
French J considered the issue further in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs:[7]
The Australian jurisprudence presently supports the proposition that the use of the words ‘serious reasons for considering that …’ does not mandate a positive finding by the receiving state that the applicant for protection has engaged in conduct of the kind contemplated in Art 1F. No question of proof on the civil or criminal standard arises in that context: Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 per French J; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 at 388 per Marshall J and on appeal Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 at 179; 158 ALR 289 at 294–5; 51 ALD 549 at 554 per Whitlam J. See also Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476; 63 ALD 321 at 331–2 where Weinberg J reviewed the authorities. A contrary view in relation to standard of proof was expressed by Mathews J sitting as president of the tribunal in Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 at 441; 27 AAR 482 at 491. In Canada the Federal Court of Appeals has held that the words require something less than proof on the balance of probabilities: Ramirez v Canada (1992) 89 DLR (4th) 173. But see also Cardenas v Canada (1994) 23 Imm LR (2d) 244 where a requirement for ‘clear and convincing evidence’ was posited by Jerome ACJ (at 252)
It should be emphasised however that the absence of a requirement for a positive finding of the commission of conduct of the kind contemplated by Art 1F is not inconsistent with the need for ‘meticulous investigation and solid grounds’ in order to meet the standard of ‘serious reasons for considering that’ the conduct has been engaged in. It would be a matter for concern if the tribunal … merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity: SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229; BC200301114 at [17] per Selway J. See also the helpful discussion of this question in M Zagor, ‘Persecutor or Persecuted: Exclusion under Art 1F(A) and (B) of the Refugees Convention’ (2000) 23 University of New South Wales Law Journal 164 at 168–70. The observation of Jerome ACJ in Cardenas is apposite (at 252):
‘the Board must be extremely cautious in its application of the exclusion clause particularly in situations … where it has concluded that the claimant has a well founded fear of persecution in his country of origin. In light of the potential danger faced by such a claimant, the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.’
[Emphasis added]
[7] [2004] FCA 1245 at [51]-[52].
There have been numerous discussions of the meaning of the words “serious reasons for considering”. In applying section 5H of the Act it is important to bear in mind that each of the words is in common use and should be given its ordinary meaning. The words used by Parliament should not be replaced by other words in an attempt to define the former. However, the passages to which I have referred above assist by confirming that consideration does not require the proof of facts but does require a very careful assessment of the evidence before the Tribunal.
D. APPLICANT’S EVIDENCE CONCERNING CHILD SOLDIERS
Interview of the Applicant conducted 14 May 2018
This interview was conducted for the purposes of the Applicant’s application for a protection visa.
The following is an extract from that interview:
INTERPRETER: Yeah, the thing is that…honestly, I am telling you …at that time, we were not forcibly taken anyone. The child may be came and joined with us willingly. The mother came and find out…we… her… they learn the child was joined, so they asked to find the information about their child, where is he now and kind of things. So, I am passing that information to the other people to find their son…where he is and the location everything.
INTERVIEWER: Okay, what about when you were in the LTTE as a commander, did you have child soldiers working for you?
INTERPRETER: When you were working as a commander in the LTTE, were there child soldiers working under you?
BYJB: Yes, there were…but I inquired those boys secretly, “why did you come?” …as they might accidentally tell the others.
INTERPRETER: Yeah, the thing is actually, when I was there, yes, there were child soldiers. Personally, I went and asked them “why did you come and join here?” but the bad thing was happened, they went and informed to my supervisor I am asking…questioning them like this.
BYJB: There were many LTTE members who were sent home like this.[8]
Statutory Declaration made 23 May 2018[9]
[8] Exhibit R5.
[9] Exhibit R1 at 292.
In a statutory declaration submitted to the Department, the Applicant stated, in part:
To the best of my knowledge, the LTTE only began forcible recruitment or conscription around 2000 and 2001. In my role in the political section from 2001, I assisted the resolution of queries and complaints from the public. One of the main complaints was from mothers reporting the disappearance of children, mainly their sons. I became aware of the forcible recruitment of children and attempted to the best of my ability to locate the children.
Evidence before the Tribunal on 29 April 2019
At the hearing the following exchange took place between the Applicant and Counsel for the Minister:
COUNSEL FOR THE MINISTER: But, you’ve just given evidence that there were fighters in your camp.
INTERPRETER: You have just said that there were soldiers, who went for battle, in your camp.
BYJB: There would be soldiers, who go to battle. There would be soldiers, who got injured in there. All of them were included…there would be medical soldiers.
INTERPRETER: Yeah, as I said there are different units from medical unit and the fighters there…
COUNSEL FOR THE MINISTER: So, there is no reason why children could not have been in the fighting unit.
INTERPRETER: Why couldn’t have children been in the fighting unit?
BYJB: There weren’t any in the fighting unit.
INTERPRETER: Fighting…?
BYJB: There weren’t any in the Fighting Unit.
INTERPRETER: No, they were not in the fighting Unit even.
COUNSEL FOR THE MINISTER: You gave us your reason as to why there were no children in the camp, that they would not be able to physically lift 20 kilos of food.
INTERPRETER: You said that there were no children in your…because they could not carry things and that’s why children were not in your section, you said…there were no children in the camp because they could not have been able to lift food…around 20 kilos.
BYJB: Yes.
INTERPRETER: Yes, that’s true.
COUNSEL FOR THE MINISTER: But, there were people in the camp, who were doing things other than lifting heavy bags of food, weren’t they?
INTERPRETER: Apart from those who carried food items…carried 20 kilos of things…There were soldiers to do other work in the camp.
BYJB: There were.
INTERPRETER: Yes.[10]
[10] Exhibit R6.

The Applicant understood a child to be a person up to about 14 or 15 years old and that a person had to be about 18 years old to be a soldier.
Statement made 27 February 2020[11]
[11] Exhibit A1.
In a statement made for the purposes of these proceedings, the Applicant said that there were no children in the camp in Ampara “as the collection of food on foot while carrying weapons from villages sometimes many kilometres away from the camp and cleaning and storing weapons, required a lot of heavy lifting and maturity. During this time Commander Karuna of the Eastern Province personally controlled and organised child recruitment, training and placement of children into specialised child brigades.”
In relation to his presence in the vicinity of Elephant Pass, the Applicant said:
In September 1996 to 1997 I left Ampara and went to Mullaitivu in the Vanni. My purpose was to meet the Supreme Leader. I stayed with Commander Ramesh who was an LTTE Commander from Batticaloa in the Eastern Province. During this time I assisted by making appointments/meetings for him and running his errands.
The camp was training in preparation for an attack on SLA positions in Elephant Pass in December 1996. Lieutenant Colonel Stanley was in charge of the Eastern Province cadres. During the battle I remained with Lieutenant Colonel Stanley observing the battle.
In 1997 I returned to Lieutenant Colonel Stanley’s camp in Kanjikudicharu in Ampara in the Eastern Province and acted as a guide around Ampara and Batticaloa districts for cadres who came from other districts who were involved in LTTE operations. I would take them the safest route through the jungle. We would hide during the day and walk at night. Sometimes it took 3 days. I was also in charge of the storage area to ensure sufficient food available. Also checked sentry points to ensure that everyone was at this post.
On 1 February 1998 the LTTE launched an offensive against the SLA positions in Killinochi and Elephant Pass in the Norther Province. I was not in the area as I had already returned to Ampara in the Eastern Province where I remained for 3 years until about 2000.[12]
[12] Exhibit A1.
Evidence before the Tribunal on 28 October 2020
At the hearing before me the following exchange took place between the Applicant and Counsel for the Minister:
COUNSEL FOR THE MINISTER: Are you aware that during the 1990s the LTTE was regularly using persons under 18 as soldiers?
BYJB: I’ve only heard about those people who voluntarily joined, but I did not see those people.
COUNSEL FOR THE MINISTER: All right, so is this right, that while you were the commander of the camp between 1990 and 1996, you were aware that the LTTE did have voluntary soldiers who were under 18? Is that right?
BYJB: (Indistinct) I have heard about that, but I don’t know about the age. (Indistinct). The person who was in charge was Karuna. And I’ve heard that there were some who were this Karuna.
COUNSEL FOR THE MINISTER: Well is it the case that you were aware that there was soldiers under the age of 15 at camps near you camp, in Batticaloa and Ampara?
BYJB: I’ve heard. But I do not know to give you - I do not know how to tell this. I am unable to give you any further explanation about this.
COUNSEL FOR THE MINISTER: Well, do you accept that there were children under the age of 15 at camps near yours in Batticaloa and Ampara?
BYJB:I do not know how to say this. I do not know how to confirm this and say this. And I do not remember what I have said in the past.
COUNSEL FOR THE MINISTER: Well, I’ll just refresh your memory. Deputy President, this is by reference to the day 2 transcript, page 157 and 158. And Mr Applicant, you were asked - according to the transcript - you were asked a question:
In your camp and the people you were fighting with, were there any people under the age of 15 years old, or 15 and under?
And, if you want to get that down, I’ll then tell you the next part of the - and then on the next page of the transcript you are recorded as giving an answer:
In Batticaloa and Ampara, in both places they were there.
And then you say:
No, not in my camp, in other camps.
So, is that evidence correct?
BYJB: Correct.
COUNSEL FOR THE MINISTER: That is correct? Thank you. And in the time you were at this camp - so, between 1990 and 1995 - did you see any LTTE soldiers who were under 15?
BYJB: I don’t remember, but I have (indistinct).
COUNSEL FOR THE MINISTER: Okay, well are you able to remember now whether you did see children under 15 as LTTE soldiers in that time?
BYJB: What I have heard is for Batticaloa and Ampara, the person who was in charge for us was Karuna. And I’ve heard that he had, however, I didn’t have the opportunity to find out or ask about their ages. And I wasn’t able to.[13]
[13] Transcript, 28 October 2020 at 45-47.
…
COUNSEL FOR THE MINISTER: So, you just said that you understood that soldiers had to be 18 years or older, but I’d suggest to you that there is a substantial amount of country information before the tribunal that says that the LTTE regularly used children as young as nine as soldiers. What do you say about that?
APPLICANT: Well I haven’t seen a nine year old, but I do not want to argue about it. I can argue about it, but I do not want to do that. That is because the war has come to an end. Everybody knows who started the war and those people who know who came up with these laws, why the war was started.
COUNSEL FOR THE MINISTER: I put it to you that the LTTE was regularly using people under the age of 18 as soldiers. Do you accept that, or not?
APPLICANT: Yes, that’s what I am saying.
COUNSEL FOR THE MINISTER: Okay so when you said that you gave evidence that you understood a soldier to be 18 or older, in fact do you accept that there were many soldiers who were younger than that (indistinct)?
APPLICANT: Yes, sir, I do agree that there were, but I cannot say what age they were.
COUNSEL FOR THE MINISTER: Okay, well in relation to your camp that you were in charge of between 1990 and 1996, were there any children under your command who were under the age of 15 years?
APPLICANT: No one was there under my - when I was the in charge person.
COUNSEL FOR THE MINISTER: And how did you know the ages of the soldiers under your command?
APPLICANT: There was a head office, and also apart from that we were separately located, but there would be someone who does the clerical work, (indistinct) a clerk, who would have the height and the age and other details.[14]
[14] Transcript, 28 October 2020 at 52-53.
The Applicant described the camp at Ampara as a ‘supply camp” for the LTTE.[15]
[15] Transcript, 28 October 2020 at 13.
The Applicant said that he went to Elephant Pass in 1996, being the only time he did so between 1990 and 1999. When he was at Elephant Pass, the Applicant lived in a camp near the Pass for about a year until September 1997. A Lieutenant Colonel was in charge of the camp. Approximately 2,000 soldiers were in the camp, in training for the attack on Elephant Pass.
There was an attack on Elephant Pass by LTTE under the leadership of Balraj which took place in 1997. The Applicant was present during the attack.[16]
[16] Transcript, 28 October 2020 at 21-22.
When he was at the camp at Elephant Pass the Applicant held the rank of Major. His role was to observe and advise in relation to the training of soldiers. The Applicant said that there were no child soldiers in the camp, and he did not see anyone under the age of 15 involved in the battle. Eventually the Pass was captured by the LTTE, sometime after the battle in which he was involved. He denied any involvement in the final battle when the Pass was captured.[17]
E. APPLICANT’S EVIDENCE AS TO THE TREATMENT OF DESERTERS
[17] Transcript, 28 October 2020 at 59-62.
Interview of the Applicant conducted 14 May 2018
The Applicant gave the following responses concerning the treatment of deserters from the camp at Ampara between 1990 and 1996:
INTERPRETER: What my [the Interviewer’s] question is how many times would you have given punishment like this to someone?
BYJB: According to me, around 3 individuals were punished.
INTERPRETER: So, in my time, there were 3 people that I give the punishment to those…
DELEGATE: Ok. So, would…did you order the punishment, or did you carry out the punishment yourself?
INTERPRETER: Did you order the punishment or, did you carry out the punishment that was ordered by the one, who was senior to you?
BYJB: No, the senior would tell me. When it comes to hitting, I can’t hit. If he ran away and surrendered at a camp, he would think that he will have a good life; but, after that, we would be anticipating when he would come out of the camp. We would send out someone to wait for him
INTERPRETER: The thing is just…I’ll just say this…The thing is like uh… only the uh… instruction coming from my supervisor uh… so, if they escape from there, we can’t carry out any punishments immediately because sometimes they go and surrender to the army in their camp; so, we send our other cadres to follow them and uh… when they get a chance to give the punishment.
DELEGATE: OK. So, if somebody’s escaped, what was the punishment?
INTERPRETER: If someone escaped, what punishment did you give him?
BYJB: If he gets caught, he is given punishment. If he is not caught and is in a camp, he is shot.
INTERPRETER: The thing is just… if he can caught… uh… catch him, then we will give our punishment. If we can’t
catch him, we will just shoot and kill him.
DELEGATE: So, did you order anybody to be shot and killed?
INTERPRETER: Have you ordered anybody to shoot and kill?
BYJB: Uh… nineteen… in 93, four individuals ran away, and it was a very difficult period…
INTERPRETER: 93? In 93, there were four people escaped uh… from my area. That was during very crucial time. Tell.
BYJB: During that period, they left the camps and started circulating among the general public. The officer in charge of us had ordered us to shoot them as soon as we see them.
INTERPRETER: The thing is just… uh… when they went and uh… with the uh… they were live with the village people, my supervisor giving the command to the other cadres, when they see those four people to shoot and kill them.
DELEGATE: Ok, but did you give that order?
INTERPRETER: Were you the one who ordered?
BYJB: The order wouldn’t just come to me. When we discuss about the incident and what to do to that person, the person above me would give me that information.
INTERPRETER: No, actually just uh… the decision was taken by my supervisor and he give me that instruction. I pass it to the other people.
DELEGATE: OK, so… so, you instructed other people to shoot and kill deserters, is that correct?
INTERPRETER: So, you tell others “the senior has told to shoot so, you go and shoot”… [interrupted by the Delegate]
DELEGATE: This... this is a very simple question. Did you do that? Yes or no?
INTERPRETER: Did you do that? Yes or no?
BYJB: If we were given the order, we would tell them that they can shoot as we have received the order.
INTERPRETER: Yes, because that I have to carry out whatever the instruction given to me. I just pass the information to the other people. The supervisor ask me uh… to kill the… just do that.[18]
Statutory Declaration made 23 May 2018[19]
[18] Exhibit R8 at 84-87.
[19] Exhibit R1 at 292.
The Applicant declared, in part:
There were deserters while I was second in charge of a camp. I reported desertion to the Intelligence Section as it was that section's responsibility to investigate desertion and locate the deserters. The Intelligence Section would carry out the punishment. I witnessed deserters being returned to the camp and being administered the punishment by beating.
Statement made 27 February 2020[20]
[20] Exhibit A1 at [10].
The Applicant said, in part:
In 1993 Lieutenant Colonel Prabha gave orders to shoot to kill 4 deserters who had escaped from the area at a crucial time. I reported the 4 deserters to the Intelligence Section of the LTTE as it was that section’s responsibility to investigate desertion and to locate the deserters. That section also carried out the punishment. I witnessed the beating of deserters by members of the Intelligence Unit once they were returned to the camp but did not order any beatings.
Evidence before the Tribunal on 28 October 2020
At the hearing before me, the Applicant gave the following evidence:
COUNSEL FOR THE MINISTER: Right. So is this correct that Prava was senior to you and he would give you guidance on how to run the camp, is that correct?
BYJB: Yes.
COUNSEL FOR THE MINISTER: Okay. All right, on a day to day basis, were you the senior person dealing with all the soldiers in the camp?
BYJB: Yes.
COUNSEL FOR THE MINISTER: And – so if Prava had given you some guidance, or an order, to do something, were you the person that went and told the 150 soldiers what to do?
BYJB: Yes.
COUNSEL FOR THE MINISTER: So it’s true, is it, that while you were in command of the camp, a number of people deserted from it?
APPLICANT: What do you mean by deserting?
COUNSEL FOR THE MINISTER: Well soldiers from the camp who ran away and wouldn’t come back.
APPLICANT: That happened.
COUNSEL FOR THE MINISTER: And it’s correct, isn’t it, that the LTTE used to impose quite significant punishments on people who ran away, is that correct?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: And was that because the LTTE was feared for that the people who ran away, you might pass information on to the army?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: When you were in charge of the camp, were you worried that somebody might run away and tell things to the army?
APPLICANT: Can you please repeat that, I do not understand.
COUNSEL FOR THE MINISTER: When you were in command of the camp, were you, yourself, worried that somebody might run away and tell the army secrets about the LTTE?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: And to your knowledge, was Lieutenant Colonel Prava also worried about people running away and telling things to the army?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: And one of the punishments that was often given to deserters was a beating, is that correct?
APPLICANT: Yes, that punishment is there.[21]
[21] Transcript, 28 October 2020 at 38-39.
At the hearing, the Applicant also gave the following evidence:
COUNSEL FOR THE MINISTER: Okay. Now, it’s the case isn’t it that Lieutenant Colonel Prava gave the order to shoot the four deserters? Is that right?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER:    And Lieutenant Colonel Prava, he gave that order to you and told you to pass that order on to the camp, didn’t he?
APPLICANT:   Yes, yes.
COUNSEL FOR THE MINISTER: And you in fact did pass that order on to your camp, didn’t you?
APPLICANT:   Yes.
COUNSEL FOR THE MINISTER: So is this right - you said to the people at your camp that Lieutenant Colonel Prava had ordered that so and so be shot and that if they see this person they should shoot him? Is that correct?
APPLICANT: Yes, to those who work outside, as a person who is in charge of that particular camp, they would have gatherings. In that gathering I have told everyone.
COUNSEL FOR THE MINISTER: Right. So is this correct - that because you were in charge of the camp there was a gathering of people that you were addressing, is that right?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: Okay. And what you said to the people at this gathering was that Lieutenant Colonel Prava has ordered that so and so be shot because he has deserted and if you see this person, you should shoot him.
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: And how many people were at this meeting?
APPLICANT: I think there would have been about 140. That is what I think. At the moment I am unable to tell you accurately.
COUNSEL FOR THE MINISTER: Okay, but if you were to estimate you’d say around 140?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: At how many of these meetings did you pass on Lieutenant Colonel Prava’s order?
APPLICANT: I don’t remember. I don’t know.
COUNSEL FOR THE MINISTER: Now, in the previous hearing before the tribunal the tribunal member heard - the Deputy President who was presiding - asked you a question about how many meetings there were or how many times you passed on this message. And I’m going to ask you a question about what was said then. And, Deputy President, this is by reference to page 289 of the double transcript of the first day of the hearing. Sorry, and also page 288. And on those pages the transcript reflects that you said you passed it on at a meeting 15 to 20 times. Do you think that’s correct?
APPLICANT: (Indistinct), in that case it’s correct, but I do not remember at the moment.
COUNSEL FOR THE MINISTER: Okay. Now, when you passed this - when you were at the meeting and you told the group of Lieutenant Colonel Prava’s order, did you expect that order would be followed?
APPLICANT:   Expect (indistinct).
COUNSEL FOR THE MINISTER: You did expect that they would follow the order?
APPLICANT: Yes.
COUNSEL FOR THE MINISTER: So you expected that if your soldiers - if the soldiers at that meeting - went out of the camp and they found these people, you expected the soldier would shoot the deserter?
APPLICANT:   Well in this kind of meeting we would share this information to make sure that the other members couldn’t make the same mistake those deserters had. But we would not be sharing their name details with them. But there would be intelligence (indistinct) members who would have those details and that it will be helpful for them to accomplish what is needed to be accomplished.
COUNSEL FOR THE MINISTER: All right, but it is the case that if your - you expected that if one of your soldiers did find one of these deserters, your soldiers would shoot that person?
APPLICANT: Yes.[22]
[22] Transcript, 28 October 2020 at 43-45.
F. REASONING
F.1 Are there serious reasons for considering that the Applicant has committed a war crime or war crimes by reason of his actions in relation to children under the age of 15 years?
The Minister placed considerable reliance upon the various articles, reports and other country information indicating that it was common practice for the LTTE to enlist and use children under 15 years of age to participate actively in hostile activities. The documents in evidence include:
·LTTE Child Combatants by Rohan Gunaratna, 1 July 1998 (sourced from Janes Intelligence Review July 1998);[23]
·Sri Lanka – Country Reports on Human Rights Practices, March 1995 (US Department of State);[24]
·Extracts from the Report of the OHCHR Investigation on Sri Lanka, 16 September 2015;[25]
·Extracts from An Institutional History of the LTTE Centre (Centre of Conflict Development and Peacebuilding);[26]
·Living in Fear – Child Soldiers and the Tamil Tigers in Sri Lanka, November 2004 (Human Rights Watch).[27]
[23] Exhibit R1 at 120.
[24] Exhibit R1 at ST4.
[25] Exhibit R1 at ST5.
[26] Exhibit R1 at ST8.
[27] Exhibit R1 at ST10.
Bearing in mind the warning given by French J against extrapolating from the criminality of an organisation to that of an individual, it is necessary to consider the evidence of the actions of the Applicant himself.
Counsel for the Minister referred to the several occasions on which the Applicant knowingly provided false information to various authorities regarding his role in the LTTE. I am satisfied that on more than one occasion the Applicant was not honest in giving information. He accepted that this was the case in his oral evidence. I agree with the Minister that I should consider his evidence “with some circumspection and caution.”[28]
[28] Transcript, 29 October 2020 at 99.
The Applicant gave evidence that cadres in the camp at Ampara collected food from villages and stored and cleaned weapons for use by the LTTE. On the basis of this evidence I am satisfied that there are serious reasons for considering that, as the person responsible for the day-to-day operation of the camp, the Applicant was using persons in the camp to participate in hostilities.

When he was interviewed on 14 May 2018 the Applicant said that during the 1990’s no-one was taken forcibly by the LTTE. However, he stated that children may have “joined with us willingly” and that when their mothers made enquiries, he passed on information to assist them in locating the children. When asked if he had child soldiers working for him as a commander in the LTTE, the Applicant replied:
Yes, there were … but I inquired those boys secretly, “why did you come?” … as they might accidentally tell others.[29]
[29] Exhibit R5.
Although the Applicant has denied that there were children under 15 years in the Ampara camp when he was in charge between 1990 and 1996, his responses to the delegate during the interview on 14 May 2018 provide serious reasons for considering that the Applicant used children under 15 years to assist in the operations of the camp and therefore that he used them in the hostilities in which the LTTE was engaged at the time. Article 8(2) of the Rome Statute does not require that the children be proved to have borne arms for a crime to have been committed.
On the basis of the Applicant’s responses in the interview of 14 May 2018, I am satisfied that there are serious reasons for considering that:
·children engaged in the camp under the Applicant’s control were under the age of 15 years;
·the Applicant knew, or should have known, that the children concerned were under the age of 15 years;
·persons engaged in the camp provided assistance to the LTTE by supplying food and cleaning and storing weapons;
·the conduct took place in the context of, and was associated with, an armed conflict between the LTTE and the Sri Lankan Army which was not of an international character;
·the Applicant was aware of the factual circumstances that established the existence of an armed conflict.
I am satisfied that there are serious reasons for considering that the Applicant has committed a war crime as defined in Article 8(2)(e)(vii).
I have considered the evidence of the use of child soldiers in the hostilities at Elephant Pass. Although there is evidence that children were used in those hostilities, the hostilities took place over a considerable period of time and there is no evidence that the Applicant was involved in this during the time he was present in that area. I am not satisfied that there are serious reasons for considering that the Applicant committed a war crime at that time.
F.2 Are there serious reasons for considering that the Applicant has committed a war crime or war crimes by reason of his actions in relation to deserters from the LTTE?
The Minister argues that the relevant provision of the Rome Statute is Article 8(2)(c)(iv) referred to in paragraph 10 of these reasons. It is argued on behalf of the Applicant that his conveying orders to shoot deserters from his own forces given to him by his superior, was not a war crime as such action is not covered by the Geneva Conventions or by the Rome Statute.[30] I do not accept the Applicant’s argument in this respect.
[30] Transcript, 29 October 2020 at 85-86 and 94.
Article 8(2) refers to “serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949”.
In Prosecutor v. Bosco Ntaganda,[31] the Appeals Chamber of the International Criminal Court said:
In the view of the Appeals Chamber, Mr Ntaganda’s argument that the “established framework of international law” introduces Status Requirements could only succeed if it were established that either international humanitarian law generally limits protection to persons protected under the Geneva Conventions or ‘persons not taking active part in hostilities’ under Common Article 3 to the exclusion of members of armed forces or groups against whom crimes are committed by members of the same armed force or group, or that such exclusion exists at least as far as the crimes of rape and sexual slavery are concerned.
As to the first issue, the Appeals Chamber considers that international humanitarian law not only governs actions of parties to the conflict in relation to each other but also concerns itself with protecting vulnerable persons during armed conflict and assuring fundamental guarantees to persons not taking active part in the hostilities.
…
In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances [...] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.
…
Upon closer examination of the principles and the cases, the Appeals Chamber is persuaded that international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group.[32]
Although the Chamber was concerned with war crimes of rape and sexual slavery, the principles are equally applicable in this matter.
[31] The Appeals Chamber, International Criminal Court No. ICC-01/04-02/06 OA5, 15 June 2017.
[32] At paras 56, 57, 59 and 63.
In relation to deserters from the Ampara camp during the period he was in charge, the Applicant gave evidence that:
·some deserters surrendered to the Sri Lankan Army in Army camps (interview 14 May 2018);
·if a deserter was caught he was punished; if he was not caught and was in an Army camp, he was shot and killed (interview 14 May 2018);
·the command to shoot and kill deserters was given by the Applicant’s supervisor to the Applicant (interview 14 May 2018);
·the Applicant passed on the order to others in the Ampara camp (interview 14 May 2018 and at hearing on 29 October 2020);
·the Applicant expected that the orders he gave would be followed (hearing on 20 October 2020).
On the basis of the Applicant’s evidence I am satisfied that there are serious reasons for considering that:
·the Applicant ordered the killing of those deserters from the Ampara camp who were found in camps controlled by the Sri Lankan Army;
·the orders were given on more than one occasion while the Applicant was in charge of the Ampara camp between 1993 and 1996;
·the Applicant gave the orders as a result of orders being given to him by his superior;
·the giving of the orders amounted to the passing of sentences on the deserters;
·there had not been previous judgements passed by a court or courts relating to the deserters.
In reaching this conclusion I have considered the provisions of Articles 25, 30 and 33 of the Statute.
I am not satisfied that there are serious reasons for considering that all the elements of the crime relied upon by the Minister have been committed by the Applicant.
On the available evidence, I am not satisfied that there are serious reasons for considering that a person killed under orders given by the Applicant was a person who had laid down his arms and was taking no part in the active hostilities. The evidence of killing relates only to those persons who were found in camps controlled by the Sri Lankan Army. It may be that deserters in those camps were continuing to take an active part in the hostilities. The Applicant gave evidence that he and his superior were concerned that deserters were passing on information to the opposing forces.
In reaching this conclusion I have been conscious of the warning by French J concerning the application of the exclusion in cases where an applicant has a well-founded fear of persecution in their country of origin.[33]
[33] WAKN v Minister for Immigration and Multicultural Affairs at paragraph 20 above.
F. CONCLUSION
The reviewable decision, being the decision made by a delegate of the Minister of Home Affairs on 21 June 2018 to refuse to grant the Applicant a Protection visa, will be affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...............................[SGD]..................................
Associate
Dated: 17 September 2021

Date(s) of hearing: 28 & 29 October 2020

Counsel for the Applicant: E Grotte

Solicitors for the Applicant: M Byers, Michaela Byers Solicitor

Counsel for the Respondent: N Swan

Solicitors for the Respondent: C Hillary, Australian Government Solicitor

[2021] AATA 3315

17 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	28 & 29 October 2020
Counsel for the Applicant:	E Grotte
Solicitors for the Applicant:	M Byers, Michaela Byers Solicitor
Counsel for the Respondent:	N Swan
Solicitors for the Respondent:	C Hillary, Australian Government Solicitor