DHKW and Minister for Home Affairs (Migration) - [2019] AATA 4393

DHKW and Minister for Home Affairs (Migration) [2019] AATA 4393 (25 October 2019)

Division: GENERAL DIVISION

File Number: 2016/5441
Re:DHKW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

File Number: 2016/5442
Re:KYBL
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:25 October 2019
Place:Melbourne

The Tribunal decides:

1. in relation to DHKW:
(1)to affirm the decision of the respondent dated 18 August 2016 in so far as it refuses DHKW a protection visa on the basis that Art 1F(b) excludes the application of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 i.e. there are serious reasons for considering that he committed a serious non-political crime outside the country of refuge (Australia) prior to his admission to that country as a refugee; and

2. in relation to KYBL:
(a)to set aside the decision of the respondent dated 18 August 2016 in so far as it refuses KYBL a protection visa on the basis that Art 1F(b) excludes the application of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967; and
(b)to remit the decision to the respondent with a direction that Art 1F(b) of the Refugees Convention does not exclude the application of the provisions of that Convention to her i.e. there are no serious reasons for considering that she committed a serious non-political crime outside the country of refuge (Australia) prior to her admission to that country as a refugee.

[sgd]....................................................................

Deputy President S A Forgie

Catchwords

MIGRATION – application for review of a decision refusing protection visa – whether Refugees Convention applies to applicants – whether Article 1F applies – where serious reasons for considering applicants committed serious non-political crime – decision affirmed

MIGRATION – application for review of a decision refusing protection visa – whether Refugees Convention applies to applicants – whether Article 1F applies – whether serious reasons for considering applicants committed serious non-political crime – whether applicant aided or abetted commission of an offence – decision set aside and remitted

Legislation

Acts Interpretation Act 1901; s 34AB(1)(c)

Anti-People Smuggling and Other Measures Act 2010; ss 2, 3, Schedule 1 Item 8

Border Protection (Validation and Enforcement Powers) Act 2001; s 3, Schedule 2 Item 5

Criminal Code Act 1995, ss 11.2, 400.9(1A)

Extradition Act 1988, s 5

Migration Act 1958; ss 5, 5AA, 12, 13, 14, 16, 36(2) and (2B), 55, 65, 86, 91T, 201, 233, 233A

Migration Legislation Amendment Act 1989

Migration Legislation Amendment Act (No 1) 1999; ss 2, 3; Schedule 1 Item 7

Migration Legislation Amendment Act (No 6) 2001; s 3, Schedule 1 Item 5

Migration Legislation Amendment Act (No. 1) 2008; ss 2 Item 4, 3, Schedule 3, Part 2, Item 13

Migration Legislation Amendment (Application of Criminal Code) Act 2001;

Migration Amendment (Complementary Protection) Act 2011; s 2, Items 2 and 3, 3, Schedule 1 Items 4 and 18-20

Migration Regulations 1994

Convention relating to the Status of Refugees done at Geneva on 28 July 1951; Arts 1, 1A(2), 1D, 1E, 1F, 33(2)

Protocol relating to the Status of Refugees done at New York on 31 January 1967

Vienna Convention on the Law of Treaties; Arts 31, 32

Cases

Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465; 63 ALD 321; 32 AAR 2

CRI026 v The Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216

Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556

FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15

Gurung and the Secretary of State for the Home Department [2002] UKAIT 04870

Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209; 4 ALD 575

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673; 62 ALD 673; 33 AAR 1

Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 81 ALJR 304; 92 ALD 513

Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 394

NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; 126 FCR 453; 36 AAR 206; 71 ALD 41

Ovcharuk v Minister for Immigration and Multicultural Affairs [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289

Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501; 101 ALR 545

R v Secretary of State for the Home Department; Ex parte Adan (R v Secretary of State for the Home Department; Ex parte Aitseguer) [2001] AC 477; [2001] 2 WLR 143; [2001] 1 All ER 593

Re FTZK and Minister for Immigration and Border Protection [2015] AATA 155; (2015) 65 AAR 467

Re YYMT and MQR and FRFJ [2010] AATA 447; (2010) 115 ALD 590; 53 AAR 287

Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276; 113 ALR 655; 29 ALD 726; 17 AAR 329

Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19; 22 ATR 307

Sayeed Abbas Azad, Judgment No. 01/Pid.C/Ekst/2013/PN.Jkt.Sel

SRBBBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1066

WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398; 40 AAR 223

X&Y v Refugee Status Appeals Authority [2007] NZHC 2113; CIV-2006-404-4213

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

Secondary Materials

Trials of People Smugglers in Indonesia 2007-2012

REASONS FOR DECISION

Deputy President S A Forgie

DHKW and KYBL applied for review of a decision made on 18 August 2016 by a delegate of the then Minister for Immigration and Border Protection (Minister) refusing each of them a protection visa. The Minister[1] found that Australia does not have protection obligations to DHKW and KYBL because Art 1F of the Refugees Convention provides that its provisions do not apply to any person with respect to whom there are serious reasons for considering has committed a serious non-political crime before entering Australia. The serious non-political crime was identified as people smuggling. I have decided to affirm the decision dated 18 August 2016 in so far as it refuses DHKW a protection visa but have set aside it aside in so far as it refuses KYBL a protection visa and have remitted that part of the decision to the Minister to consider her application on the basis that Art 1F(b) of the Refugees Convention does not exclude the application of the provisions of that Convention to her. In other words, there are no serious reasons for considering that she committed a serious non-political crime outside the country of refuge (Australia) prior to her admission to that country as a refugee.
[1] The decision of the delegate is deemed to be that of the Minister: Acts Interpretation Act 1901; s 34AB(1)(c)

BACKGROUND

The facts I have set out in this section of my reasons are largely those as presented by DHKW and KYBL but I have noted the qualifications expressed by Mr Tran on behalf of the Minister and also reservations that are apparent from the evidentiary material.

DHKW and KYBL are a married couple, who are also citizens of Pakistan and Hazara Shi’a Muslims. DHKW first left Pakistan in 1997 as the holder of a Pakistani passport when he travelled to Kuwait to work. He remained there until 1999. He and KYBL married in 1999 in Quetta where their first child was born.

In 2000, DHKW purchased a fake Afghan passport so that he could travel to Dubai, Kuwait and Saudi Arabia. In 2001, he used that passport to obtain a visa enabling him to work in Kuwait. Had he not obtained that false passport, DHKW said in an interview with a Departmental officer, he would not have been permitted to re-enter Kuwait on his Pakistani passport as he had left that country for a period greater than six months.[2] On returning, he worked in Kuwait until 2002 before returning to Pakistan. Once in Pakistan, he applied for, and obtained, a legitimate Pakistani passport and returned to Kuwait with KYBL. Their second and third children were born in Kuwait. While there, they worked in a restaurant and then, in 2007/2008, became part owners of that restaurant. They decided to return to Quetta at the beginning of 2011.

[2] Exhibit 6 at 38-42

The periods during which DHKW and KYBL were in Kuwait, Pakistan and Indonesia is a matter of disagreement between the parties. I will come back to that but note for the moment only those matters that are not in dispute. In or about 2008, DHKW applied for visitor visas to enable him, KYBL and their two children to come to Australia for three months. His application was ultimately refused on the basis that the delegate was not satisfied that DHKW and KYBL had any incentive to return at the expiration of any visa that was granted.[3] I note that the case note was written in 2008 and records that DHKW had been the manager of a restaurant in Kuwait for seven years and had both “reasonable” income and savings. The sentencing remarks of Herron DCJ in the District Court of Western Australia (District Court) also record that DHKW co-owned and worked in a restaurant from about 2001. Neither Herron DCJ nor the case note addresses the periods between 2001 and 2008 or any period after 2008.

[3] Exhibit 1; T documents at 247

DHKW and KYBL returned to Pakistan where he operated a business dealing in motor vehicles. Together with their three children, DHKW and KYBKL left Pakistan in October 2011, for reasons to which I will return, and travelled to Indonesia. They paid a total of $24,000 to a man, whom I will call “AB”, for them to travel illegally from Quetta in Pakistan to Bogor in Indonesia by way of Karachi, Dubai and Kuala Lumpur. DHKW paid AB by selling some gold that he had and his two cars. DHKW then went about finding another person who was a “better smuggler” than AB.[4] Travelling with them was a man whom I will call “BIL”. He had been DHKW’s brother-in-law as his ex-wife and DHKW’s wife, KYBL, are sisters.
[4] Exhibit 3 at 83 and see also Exhibit 1 at 207

They were all present in Indonesia when plans were made for them, BIL and CAC to come to Australia. In May 2012, they left Indonesia by boat. After its occupants had sent a distress signal the boat was intercepted by the Australian Navy near Christmas Island. It was found to be overcrowded, as it was carrying 144 people, and barely seaworthy.

The group arrived on Christmas Island on 7 May 2012 as “unauthorised maritime arrivals” within the meaning of s 5AA of the Migration Act 1958 (Migration Act). Also on board the boat was BIL. Another person on the boat was a person whom I will call “CAC” and who, together with DHKW, was charged with an offence under s 233A of the Migration Act.

On arrival and together with their children, DHKW and KYBL applied for protection visas. They did so on 5 February 2013. They based their claim on fear of harm from groups such as Lashkar-e Jangawi because of matters such as their religion and ethnicity. As part of their claim, DHKW and KYBL asserted that they did not have any right to enter and remain in Kuwait, Malaysia or Indonesia. They also asserted that they had contacted with the Office of the United Nations High Commissioner for Refugees (UNHCR). DHKW and KYBL’s fourth child was born in Australia in 2013 after they had lodged their applications for protection visas. As the applications had not been decided at that stage, their fourth child is taken to have applied for a protection visa on the date of his birth.[5]
[5] Migration Regulations 1994; r 2.08

Beginning on 19 February 2013, DHWL and KYBL were interviewed on several occasions. Officers of the Minister’s Department requested information and comments and DHKW and KYBL responded to them. DHKW was then charged:
“… that between 1 January 2012 and 6 May 2012 at Indonesia and the seas between Indonesia and the Territory of Christmas Island, Australia … [he] organised or facilitated the bringing or coming to Australia of a person who is a non-citizen, namely … [BIL], where the said … [BIL] had no lawful right to come to Australia, contrary to section 233A of the Migration Act 1958 (Commonwealth). …”[6]
[6] Exhibit 10 at 89. DHKW was also charged with dealing with money reasonably suspected of being the proceeds of crime contrary to s 400.9(1A) of the Criminal Code Act 1995 (Commonwealth) but was acquitted of that charge.

CAC was also charged with the same offence in so far as it related to a woman, whom I have called “SILW”. Following a trial in the District Court of Western Australia, the jury returned verdicts of guilty against both DHKW and CAC of the charges. Herron DCJ sentenced each of them to three years and six months’ imprisonment but to be released after serving a period of two years and five months provided they entered into a recognizance to be of good behaviour for a period of 12 months. The period of that sentence coincided with the day he was taken into immigration detention and the date of the sentencing.

LEGISLATIVE BACKGROUND: Article 1F

Sections 36, 65 and 86 of the Migration Act are relevant in determining whether a person is entitled to a protection visa. In this case, only the criterion specified in s 36(2)(a) is relevant and then only at the date on which DHKW and KYBL and their children applied for protection visas. At that time, s 36(2)(a) provided:
“A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …”

The reference to the “Refugees Convention” means “… the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and the “Refugees Protocol” means “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”.[7] Those persons who are regarded as “refugees” under the Refugees Convention are set out in Art 1. Only Art 1A(2) is relevant in this case and it provides:
“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:
(1)…
(2)… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that county; …”
[7] Migration Act; s 5(1)

Articles 1D, 1E and 1F exclude certain persons from those who would otherwise come within the scope of Art 1A. I am concerned only with the exclusion prescribed by Art 1F and it provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”

THE SUBMISSIONS

The Minister contends that there are serious reasons for contending that DHKW and KYBL have committed the crime of people smuggling between 2001 and 2012. Accordingly, the Minister submits, there are serious reasons for considering that they have committed a serious non-political crime outside of Australia. Therefore, Art 1F(b) applies and Australia does not owe them protection obligations under the Refugees Convention. He relies on the DHKW’s conviction in the District Court and the facts found by Herron DCJ and that it is not open to the Tribunal to impugn the conviction at least in so far as the essential facts found by the sentencing judge and on which the sentence is based are concerned.[8] On the other hand, it is open to the Tribunal to make its own assessment of the entirety of the conduct leading to the conviction and the significance of that conduct in so far as the risk of recidivism is concerned.[9] The evidence before the District Court, interviews conducted by officers of the Minister’s Department and other material should readily satisfy the Tribunal that there are serious reasons to consider that DHKW has committed an offence of people smuggling. There is no basis to conclude that the offending was either political or something other than serious.
[8] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [25] and [40]; 240 and 244; 349-350 and 358; Branson, Lindgren and Emmett JJ
[9] SRBBBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1066 at [38]-[39] and [56]; Deputy President Handley

The applicant contends that, in 2001, there was no crime of people smuggling in which DHKW and KYBL could be engaged. The crime of which DHKW was convicted with regard to BIL was only introduced in 2010 when s 233A was repealed and substituted by the Anti-People Smuggling and Other Measures Act 2010 (APSOM Act) with effect from 1 June 2010.[10] Its predecessor, which was introduced by the Migration Legislation Amendment Act (No 1) 1999 (MLA Act) with effect from 16 July 1999, was solely concerned with the presentation of forged, false or misleading information.[11] Whether under Australian or international law, criminal laws are not given retrospective effect unless their intention to do so is unambiguous.[12] That is not the case in relation to s 233A in either form. It was, therefore, legally impossible for either DHKW or KYBL to commit the crime of people smuggling in 2001 or up until 2010 because that crime did not exist at that time. Consequently, Art 1F(b) cannot be engaged. Furthermore, it cannot be engaged when nothing is put forward by the Minister as to when and how the offences were committed.

[10] APSOM Act: s 3; Schedule 1; Item 8 and see also s 2 as to the date of effect.

[11] MLA Act; s 3; Schedule 1; Item 7 and see also s 2 as to the date of effect.

[12] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501; 101 ALR 545; at [101]-[109]; 686-689; per Toohey J

Putting aside the legal argument, Mr Albert of counsel submitted on behalf of DHKW and KYBL that the evidence does not support a finding that KYBL has committed any crime. She has never been charged. All that she has done is to defend her husband verbally. The evidence places DHKW in Kuwait in 2001. The fact that the United Nations allowed DHKW to register as a refugee in 2011 following an interview with him also strongly supports the proposition that he did not engage in conduct coming within the scope of Art 1F(b) by reason of his conduct up to that time.

As for DHKW’s conviction, Mr Albert submitted that the crime of people smuggling under s 233A is not inherently serious. If a mother, who is outside Australia and not entitled to live in Australia, were to receive money from her child’s father, who is in Australia, to pay for the child to fly from the mother’s home to visit the father in Australia before the child has a visa to enter and remain in Australia, the mother would commit the offence established by s 233A. That would be a victimless act and one which must be committed frequently even though normally unwittingly. Such a crime cannot be regarded as serious.

It was also submitted by Mr Albert on behalf of DHKW and KYBL that I must determine whether people smuggling is a serious crime internationally. That determination must be made in a context that gives meaning and content to the terms of international law in a way that is universally applicable and not coloured by domestic political or legal peculiarities. Among others, Mr Albert referred to a passage from the speech of Lord Steyn in R v Secretary of State for the Home Department; Ex parte Adan (R v Secretary of State for the Home Department; Ex parte Aitseguer)[13] (Adan):
“… It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in arts 31 and 32 and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: art 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court of Justice is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.”[14]
[13] [2001] AC 477; [2001] 2 WLR 143; [2001] 1 All ER 593; Lord Slynn of Hadley, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote
[14] [2001] AC 477; [2001] 2 WLR 143; [2001] 1 All ER 593 at 516-517; 154; 605

What constitutes a “serious crime” for the purposes of Art 1F(b) is determined by first asking whether the act was a serious, common crime in the place it was committed. Whether the act was also a crime of that sort in the State assessing the person’s refugee status is the next question to answer. The third question to resolve is whether the crime in question is an extraditable crime as defined by reference to international minimum standards. Only if all three questions are answered in the affirmative is the crime a serious crime for the purposes of Art 1F(b).[15] On the evidence, it was submitted, each of the questions must be answered in the negative except for the second. The third must be answered in the negative as an offence under s 233A is not included in the list of offences recognised by Australia and Indonesia as extraditable offences.[16]
[15] DHKW and KYBL rely on The Law of Refugee Status; James Hathaway and Michelle Foster; Cambridge University Press, 2^nd ed, 2014 at 553-550
[16] Judgment of Chief Judge Pranoto and Member Judges Yuningtyas Upiek and Syaifoni in Determination No. 01/Pid.C/Ekst/2013/PNJkt.Sel in the District Court of South Jakarta

If DHKW’s conduct in 2012 were a serious crime within the meaning of Art 1F(b), it is a political crime. The act of facilitating a person or people to leave a country which does not provide them with protection is a political act in the same way that flight from a country is a political act in and of itself. This is supported by reference to ss 5 and 91T of the Migration Act as it was then drafted and s 5 of the Extradition Act 1988 (Extradition Act), DHKW and KYBL submitted. Reference was made to various authorities, to which I will return.

ANALYSIS OF ARTICLE 1F OF THE REFUGEES CONVENTION

Both Mr Albert and Mr Tran referred to the following passage from the judgment of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru[17] (CRI026):
“ The content of a treaty obligation depends upon the construction which the international community would attribute to the treaty and on the operation which the international community would accord to it in particular circumstances …. The interpretative principles to be applied include the rules of customary international law codified in Arts 31 and 32 of the Vienna Convention on the Law of Treaties (1969). Considerable weight should be given to the interpretations adopted by an independent body established to supervise the application of the treaty …. Taken as a whole, international law and practice leave no doubt that, unless the feared persecution emanates from or is condoned or tolerated by state actors (which is not an issue in this case) …, an applicant's ability reasonably to relocate within a receiving country, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection.”[18]
[17] [2018] HCA 19; (2018) 355 ALR 216; Kiefel CJ, Gageler and Nettle JJ
[18] [2018] HCA 19; (2018) 355 ALR 216 at [22]; 222 (citations omitted)

This is consistent with the passage quoted above from the speech of Lord Steyn in Adan. Both were given with reference to Arts 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (Vienna Convention). Those articles set out a general rule of interpretation in Art 31 followed by supplementary means of interpretation in Art 32. Art 31(1) gives the flavour of the rules:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Both the case of Adan decided by the House of Lords and CRI026 decided by the High Court were concerned with the relevant provisions of the Refugee Convention and whether the individual concerned was a refugee. In the case of Art 1A[19] of the Refugee Convention, the House of Lords decided that it had to be interpreted as an international instrument reached by agreement of contracting states as opposed to regulatory regimes established by national institutions. It was, therefore, necessary to determine the one true autonomous and international meaning of Art 1A. The situation was no different in CRI026 in that the Refugees Convention Act 2012 (Nr) defined a “refugee” in terms of Art 1A. Therefore, regard had to be had to the rules relating to the interpretation of conventions. The High Court drew a distinction between the task of a court interpreting ss 36(2)(aa) and (2B) of the Migration Act and complementary protection obligations arising under treaties. The implications of international treaties did not have to be considered in undertaking the task of interpreting provisions of the Migration Act.
[19] The operative part of Art 1A for the purposes of the cases stated: “[O]wing 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.”

It can be seen from the analysis that follows that these principles are no less relevant when interpreting Art 1F. The words of Art 1F(b), however, are cast in a way that has led the courts to interpreting them in a way that allows for regard to be had to the law of the country in which a person seeks refuge in so far as Art 1F(b) is concerned. That does not mean that those words have anything less than one true autonomous and international meaning; simply a meaning that must be determined against a background of the criminal law in each contracting state.

Does an applicant or the Minister carry a burden of proof?

DHKW and KYBL submitted that they do not have a burden of proof to prove that the exclusion in Art 1F does not apply to them. Instead, it is the Minister who must provide the Tribunal with a basis to be satisfied that each element of Art 1F is engaged in respect of either or both DHKW and KYBL. They relied on [105] of the “Background Note on Exclusion Clauses” dated 4 September 2003 (Background Note) and prepared by the UN Refugee Agency (UNHCR), X&Y v Refugee Status Appeals Authority[20] (X&Y) and Gurung and the Secretary of State for the Home Department[21] (Gurung). The applicant’s submission is rejected by the Minister as inapt in the present context on the basis that it is based on an adversarial process where issue is joined between the parties and not in a merits review process where issue is not joined. He relied on FTZK v Minister for Immigration and Border Protection[22] and my reasons for decision in Re FTZK and Minister for Immigration and Border Protection.[23]
[20] [2007] NZHC 2113; CIV-2006-404-4213; Courtney J at [21]
[21] [2002] UKAIT 04870; Collins J, Dr Storey and Mr Mackey
[22] [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15; French CJ, Hayne, Crennan, Bell and Gageler JJ at [15]; 8; 23 per French CJ and Gageler J and [34]-[36]; 11-12; 26-27 per Hayne J
[23] [2015] AATA 155; (2015) 65 AAR 467 at [39]-[48]; 482-486

Omitting footnotes, [105] of the UNHCR’s Background Note states:
“ In asylum procedures generally, the burden of proof is shared between the applicant and the State (reflecting the vulnerability of the individual in this context). … As several jurisdictions have explicitly recognised, however, the burden shifts to the State to justify the exclusion under Article 1F. This is consistent with the exceptional nature of the exclusion clauses and the general legal principle that the person wishing to establish an issue should bear the burden of proof. Moreover, the factors that justify the individual being given the benefit of the doubt in refugee status determination proceedings generally apply equally when exclusion is being considered.”

On its face, the language of this note is not supported by the language of Art 1F. That article is not expressed in terms of an onus or a burden of proof on any person. It is expressed in absolute terms that the Refugees Convention shall not apply to a person “with respect to whom there are serious reasons for considering …” that he “has committed” the crimes described or “has been guilty of” the acts described. The rationale of the exclusion provisions in Art 1F was explained by Immigration Appeal Tribunal of the United Kingdom (UKIAT) in Gurung:
“The provisions of Art 1F being exclusionary, it will almost always be appropriate to apply them restrictively. That is the position stated at paragraph 149 of the 1979 Handbook. The basis for it is twofold: firstly that the Refugee Convention is quintessentially an instrument designed to protect those in need of asylum; and secondly that the consequences of exclusion may be very serious. In all past cases the Tribunal has consistently adopted the same approach. We see no reason to depart from it, save to note that we doubt this principle is entirely unqualified. In the Canadian Supreme Court case, Pushpanathan v MCI [1998] 1 SCR 982, [1999] INLR 36, Bastarache, J said this:
"What is crucial, in my opinion, is the manner in which the logic of the exclusion in Art 1F generally, and Art 1F (c) in particular, is related to the purpose of the Convention as a whole. The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J observes in Ward, above at 66E, `actions which deny human rights in any key way` and `the sustained or systemic denial of core human rights… se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’. This purpose has been explicitly recognised by the Federal Court of Appeal in the context of the grounds specifically enumerated in Art 1F(a) in Sivakumar v Canada (MEI) [1994] 1 FC 433, where Linden JA stated (at 445):
“When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status”’.
If the underlying purpose of the Refugee Convention is protection of human rights, then it is surely relevant, when applying the Exclusion Clauses, to take account of the extent to which those guilty of Art 1F crimes have violated the human rights of others. As set out in the Preamble, the objects of the Refugee Convention are not confined to protection of the rights of refugees; they begin by referring to the principle that ‘human beings shall enjoy fundamental rights and freedoms without discrimination’. In our view, the greater the scale of the violation of the human rights of others by those who perpetrate acts or crimes proscribed by Art 1F, the less rationale there is for a restrictive approach. To take the example of an individual terrorist who exploded a nuclear device in a large city, in such a case we doubt that a restrictive approach should have any place at all.”[24]
[24] [2002] UKAIT 04870 at [36]-[37]. The Preamble to the Refugees Convention begins with a statement that, considering, expressing and noting certain matters, the Contracting Parties (which included Australia) have agreed to the Articles that follow in the Refugees Convention. The first two clauses of the Preamble are:

As to any burden of proof is concerned, the UKIAT said:
“An adjudicator should also make clear that when the issue is exclusion the evidential burden of proving that an appellant comes within one or more of the Exclusion Clauses rests on the Secretary of State. We adopt in this regard what was said by the Tribunal in Thayabaran [IAT Appeal No 18737 9 October 1999] (12250):
‘It appears to us that the use of the phrase "there are serious reasons for considering that" in Art 1F relates to the state of the evidence on the issue in question. The phraseology makes it difficult to speak of a burden of proof. Clearly, however, the exclusion clause cannot be brought into play unless there is some evidence of the alleged crime and of K`s nature. If there is not such evidence, it must follow the claimant is not excluded by Art 1F, and the result would be that in an appeal contested on this point, the claimant would win and the Secretary of State would lose. We have tentatively reached the conclusion that it follows that the Secretary of State bears at least an evidential burden on this issue’.
We did consider whether there was also a legal burden of proof on the Secretary of State. Given that in an examination under the Exclusion Clauses there is much that is akin to a criminal examination, such an approach could be said, by analogy, to ensure that there is a presumption of innocence. But by the same token an examination under the Refugee Convention is not a criminal examination and its purpose is not as such to establish an appellant’s guilt or innocence, although assessment must be made of whether acts or crimes have been committed. It would be obvious to any subsequent prosecution process that was brought against the appellant (whether in the country of origin, the country of asylum or before an international court) that what an adjudicator had found within the context of a refugee determination was neither binding nor necessarily conclusive of whether the appellant had committed an offence for their purposes. We consider, therefore, that the decision of the Tribunal in the case of Thayabaran remains good law.”[25]
[25] [2002] UKAIT 04870 at [93]-[94]
The same issue arose in X&Y, which was decided by Courtney J in the High Court of New Zealand. After noting that the usual practice in the United Kingdom is that the Minister is represented at a hearing of a refugee claim but that is not the case in New Zealand, her Honour said:
“ In New Zealand s 129P(I) Immigration Act 1987 imposes on a person seeking refugee status the burden of ensuring that all information and evidence that he or she wishes to have considered are provided to the Authority. In comparison, there is no such burden imposed on the Minister of Immigration in relation to the exclusion clauses under Article IF. Given that, I consider that the correct approach in New Zealand must be that expressed in Gurung i.e. that there is no burden on an asylum seeker to prove that Article IF does not apply but that there must be some evidence on which a determination is made and it is for the Executive to point to such evidence. In the absence of such evidence there will not be ‘serious reasons for considering’ that the appellant has committed one of the unspecified acts but this does not equate to imposing a legal burden of proof on the Executive.
One can expect the application of Article IF to be determined in part on the evidence adduced by the claimant in support of his or her claim under Article 2. However, the Authority is entitled (as it did in this case) to obtain and rely on its own country information as well. …”[26]
[26] [2007] NZHC 2113; CIV-2006-404-4213 at [21]-[22]

X&Y had applied for judicial review of the decision made by New Zealand’s Refugee Status Appeals Authority. Courtney J underlined her view that there is no legal burden of proof arising under Art 1F when she observed:
“…Where there is evidence, the issue in a judicial review application can only be whether an Authority conducting itself properly could reasonably have reached the conclusions it did on the evidence before it. It would, however, be wrong to view this as being determined by reference to a burden of proof.”[27]
[27] [2007] NZHC 2113; CIV-2006-404-4213 at [22]

The judgments of the High Court in FTZK v Minister for Immigration and Border Protection do not take the matter of burden or onus of proof any further for they are focused on the standard, and not the burden, of proof. The only mention is made in the judgment of Hayne J when he notes:
“… For a common lawyer, the notion of ‘standard of proof’ marches hand in hand with onus of proof. Neither notion finds ready accommodation in administrative decision-making, where no issue is joined between the parties.”[28]
[28] [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15 at [34]; 11; 26

I respectfully suggest that his Honour’s comment must be read strictly in its context and not more broadly. That context was a consideration of whether it is appropriate to describe “serious reasons for considering” as providing a standard of proof. I will return to that. In the context of burden of proof, I would agree with Hayne J that no issue is joined between the parties in administrative decision-making but respectfully suggest that this does not play any part in determining whether or not there is a burden of proof on an applicant or a decision-maker. What does determine that issue are the words of the legislation under which the decision has been made and is being reviewed.

In the case of Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[29] (QAAH of 2004), the majority said:
““ This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial ..., and that there is an onus upon neither an applicant nor the Minister .... It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is better informed, that applicant is not to be so burdened. That is so, even though, pursuant to s 91V of the Act, the Minister may require an applicant to make or verify a statement on oath or affirmation, and may draw an adverse inference against an applicant if the Minister has reason to believe that ‘the applicant is not sincere’ in complying with the request.”[30]

They made this statement in the context of the exclusionary provisions of Art 1C of the Refugees Convention. It sets out six circumstances in which the convention “… shall cease to apply to any person falling under the terms of section A …”. Art 1F sets out a different set of circumstances and excludes any application of the convention to a person at all. Despite those differences, the principles enunciated by the majority in QAAH of 2004 are equally applicable.

[29] [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 81 ALJR 304; 92 ALD 513; Gummow ACJ, Callinan, Heydon and Crennan JJ; Kirby J dissenting

[30] [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 81 ALJR 304; 92 ALD 513 at [40]; 17; 351; 315; 525

“Serious reasons for considering”

In considering Art 1F(b) in Dhayakpa v Minister for Immigration and Ethnic Affairs[31] (Dhayakpa), French J said:
“… 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 …”[32]
[31] [1995] FCA 1653; (1995) 62 FCR 556
[32] [1995] FCA 1653; (1995) 62 FCR 556 at [23]; 563

As Branson J observed in Ovcharuk v Minister for Immigration and Multicultural Affairs[33] (Ovcharuk), “Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.”[34] In Arquita v Minister for Immigration and Multicultural Affairs[35] (Arquita), Weinberg J considered the authorities to which I have referred. He concluded:
[33] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289; Whitlam, Branson and Sackville JJ
[34] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 186; 561; 301
[35] [2000] FCA 1889; (2000) 106 FCR 465; 63 ALD 321; 32 AAR 2
“ It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.
…
The expression ‘serious reasons for considering’ means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be ‘serious’.
…
In determining the meaning to be ascribed to the word ‘serious’ in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word ‘serious’ in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a ‘prima facie’ case, the test formerly favoured for the grant of an interlocutory injunction: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407; [1975] 1 All ER 504 at 510; [1975] 2 WLR 316 at 323.
Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the states and territories of Australia. In Thorp v Abbotto (1992) 34 FCR 366, Lockhart J observed (at 372):
‘... a magistrate conducting a committal, having heard the evidence for the prosecution and for the defence, and having formed the opinion that there are two hypotheses open on the material before him, one consistent with guilt and the other with innocence, is not necessarily bound to discharge the defendant.
The task of a committing magistrate is essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could. It is not the task of a magistrate conducting a committal proceeding to assume the role of the jury at a criminal trial. At the conclusion of the evidence adduced on a criminal trial for both the prosecution and the defence a number of inferences may be open to the jury consistent with guilt or innocence. Some may be stronger than others; each is essentially a matter for the jury to consider in the course of its deliberations when assessing whether the defendant is guilty or not guilty of the offence with which he has been charged. If a magistrate was obliged to discharge a defendant whenever a hypothesis was reasonably open on the evidence consistent with his innocence, albeit that another hypothesis was consistent with his guilt, it is difficult to image a case where there ever would be a committal for trial of a defendant as there are very few sets of facts or circumstances which cannot admit at least in theory of a possible explanation consistent with innocence. An inference from the facts consistent with guilt may be strong or weak in the eyes of the magistrate and so may an inference consistent with innocence. The conclusion by the magistrate that there are two competing inferences open, one consistent with guilt and the other with innocence, cannot necessarily require that the accused be discharged.’
It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least ‘serious reasons for considering’ that he had committed the offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. …
It seems clear that the material before the AAT in the present cases does not exclude all hypotheses consistent with innocence. That simply means that if that material were to stand, in its present form, it would not, in this country, establish the guilt of the applicant beyond reasonable doubt. That is hardly surprising. The witnesses whose statements were before the AAT were not heard to give their evidence directly, and were not subjected to cross-examination. It does not follow that this material did not give rise to ‘serious reasons for considering’ that the applicant had committed a crime of the type specified.
If there is no evidence capable of supporting a conclusion that the applicant has committed an offence of the type specified, Art 1F(b) will not be applicable.
If there is some evidence capable of supporting such a conclusion, but that evidence is so tenuous or inherently weak or vague that no trier of fact, acting properly, could be satisfied beyond reasonable doubt of the guilt of the applicant, then again Art 1F(b) will not be applicable: Doney v The Queen (1990) 171 CLR 207 at 212-214. A case which is built around nothing but suspicion will not be sufficient to meet the requirements of that Article.
‘Suspicion’, as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948; ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’ The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115 116; 93 ALR 483 at 490-1.”[36]
[36] [2000] FCA 1889; (2000) 106 FCR 465; 63 ALD 321; 32 AAR 252 at [54]-[64]; 478-480; 333-335; 265-267

In 2004, French J reviewed Dhayakpa, Ovcharuk and Arquita together with Canadian authority and concluded:
“ 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 …
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, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual without undertaking any clear analysis of purpose or complicity … The observation of Jerome ACJ in Cardenas [Cardenas v Canada (1994) 23 Imm LR (2d) 244] is apposite (at 252):
‘the Board must be extremely cautious in its application of the exclusion clause particularly in situations … where it is 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.’”[37]
[37] WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398; 40 AAR 223 at [51]-[52]; 592-593; 410; 236

In a joint judgment with Gageler J in FTZK v Minister for Immigration and Ethnic Affairs,[38] French CJ developed the view he had expressed in Dhayakpa saying that the construction of Art 1F(b) begins with the ordinary meaning to be given to its terms:
“… That ordinary meaning does not require a finding that the applicant for refuge has committed a serious non-political crime. The requirement that there be ‘reasons for considering’ that the applicant that an applicant for refuge has committed such a crime indicates that there must be material before the receiving State which provides a rational foundation for that inference. The question for the decision-maker, and in this case the AAT, was whether the material before it met that requirement. To answer that question in the affirmative the AAT had to demonstrate a logical pathway from the material to the requisite inference.
…
Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.”[39]

I have omitted from this passage their Honours’ quotation, with approval, of part of [54] from the judgment of Weinberg J in Arquita, which I have set out in the previous paragraph.

[38] [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15; French CJ, Hayne, Crennan, Bell and Gageler JJ

[39] [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15 at [13]-[14]; 7-8; 22-23

Their Honours noted that the criterion for exclusion from the application of the Refugees Convention is not to be equated with a standard of proof. Standards of proof applied in judicial proceedings for the purpose of making findings of fact, which attract legal consequences, are not, they said, substitutes for the application of the ordinary words of Art 1F(b). They continued:
“… The risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the Article and may result in the bar being placed too high or too low, according to the circumstances.
It should be said, however, that the absence of a requirement under Art 1F(b) for a positive finding that the applicant has committed a serious non-political crime does not mean that the criterion requires anything less than ‘meticulous investigation and solid grounds’. … In particular, … the decision-maker must pay close attention to the probative relevance of the material said to engage the application Art 1F(b) in order to answer the question which the Article poses.”[40]
[40] [2014] HCA 26; (2014) 310 ALR 1; 64 AAR 15 at [15]-[16]; 8; 23

“has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”
A. “has committed”

Article 1F(b) provides that the Refugees Convention shall not apply to any person with respect to whom there are serious reasons for considering that “he has committed” a serious non-political crime. This was considered by Whitlam J in Ovcharuk:
“… Charges or convictions are not required. 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. …”[41]
[41] [1998] FCA 1314; (1998) 88 FCR 173; 158 ALR 289; 51 ALD 549 at 179; 294; 554

In his judgment in Ovcharuk, Sackville J distinguished between two situations. The first arises where the conduct takes place outside the country of refuge but does not constitute a crime against the law of the receiving country. The second arises where conduct outside the country of refuge does constitute a crime against the law of the receiving country. With regard to the former conduct, his Honour said:
“… I do not think that Art 1F(b) is satisfied unless there are serious grounds for considering that the relevant person’s conduct was criminal under the laws of the country where the conduct took place. (I leave to one side conduct taking place in two or more countries or outside the territorial limits of any one country.) In other words, it is not enough that the conduct would have been criminal had it taken place within the country of refuge.”[42]
[42] [1998] FCA 1314; (1998) 88 FCR 173; 158 ALR 289; 51 ALD 549 at 190; 564-565; 305

As to the latter conduct, Sackville J said that the proper approach was the following:
“ Where the conduct outside the country of refuge constitutes a crime against the law of the receiving country, the position is different. In these circumstances, Art 1F(b) can apply even without a finding that there are serious reasons for considering that the person’s conduct was criminal under the law of the country where it occurred. Article 1F(b) does not evince a preference for the application of the law of that country, as distinct from the law of the receiving country. In my opinion, there is no good reason why the word ‘crime’ should be construed as excluding extra-territorial conduct rendered criminal by the receiving country, even if the conduct was not criminal under the law of the country where it occurred. If the law of the receiving country renders criminal conduct which takes place outside its borders, that is sufficient to constitute the conduct a ‘crime’ for the purposes of Art 1F(b).”

In the view of Branson J in Ovcharuk:
“… The expression in the context in which it is found, does not, in my opinion, require the identification of a crime committed outside of Australia which is justiciable according to the law of the foreign jurisdiction in which it was committed. There is nothing in the language of Art 1F(b) which suggests that a person with respect to whom there are reasons for concluding that he or she has committed, outside Australia, a crime justiciable under Australian law which is of a serious non-political character, does not fall within its terms. It is not necessary in this proceeding to seek to determine exhaustively the categories of conduct capable of amounting to a ‘crime’ within the meaning of art 1F(b).
In my opinion, the terms of Art 1F suggest against a requirement that every element of an identified offence must be able to be identified and particularised before the article may be relied upon. What is required is that ‘there are serious reasons for considering’ that the person seeking refuge ‘has committed a serious non-political crime outside the country of refuge prior to his admission to that country’. …”[43]
[43] [1998] FCA 1314; (1998) 88 FCR 173; 158 ALR 289; 51 ALD 549 at 186; 301; 561

Both Sackville and Whitlam JJ touched on Art 33(2) of the Refugee Convention. Counsel for Mr Ovcharuk had submitted that Art 1F(b) is not concerned with conduct which merely constitutes a breach of the law of the country of refuge. Rather, the Minister must establish that the conduct is, or is also, a crime against the law of another country. If it were not so, the protections of Art 33(2) would become illusory. Furthermore, Art 1F(b) is generally meant to prevent ordinary criminals, who are extraditable by treaty, from seeking refugee status. Article 33(2) states:
“1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.
2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

Whitlam J rejected these submissions, saying in part:
“… Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 contains a variety of observations upon the interpretation of treaties. McHugh J discussed (at 251-256) the interpretative principles. His Honour considered an ‘ordered yet holistic approach’ to be correct. He concluded that Art 31 of the so-called Vienna Convention required Australian courts, when faced with a question of treaty interpretation, to examine both the ‘ordinary meaning’ and the ‘context . . . object and purpose’ of a treaty.
In my opinion, the ordinary meaning of the words used in Art 1F(b) does not suggest the qualification contended for by the appellant's counsel. What is most striking to me about Art 1F is the plain, matter-of-fact requirement that there should be ‘serious reasons for considering that’ a person ‘has committed’ a specified type of crime - pars (a) and (b), or ‘has been guilty’ of the proscribed acts - par (c). Charges or convictions are not required. 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. But there is no obvious reason to confine the plain meaning of the words to that category of persons or to those in respect of whom an extradition request may be made to the country of refuge.
It must be accepted that a country of refuge, such as Australia, may proscribe as criminal conduct that takes place abroad: R v Fan (1991) 24 NSWLR 60. Why should it be supposed that a country of refuge would then deny itself the benefit of Art 1F(b) in discharging its obligations under the Refugees Convention? No good reason has been suggested. On the contrary, the obviously humanitarian object and purpose of the Refugees Convention do not require that a country of refuge should accord refugee status to a person where it has serious reasons for considering that person has committed outside that country a serious crime against one of its own laws. Article 33 only applies once a person has been granted refugee status. The benefit of its prohibition of expulsion or return is removed in strictly limited circumstances. A country of refuge surely cannot be required at the stage where it first considers a person's claims to be a refugee to ignore serious reasons of the type to which par (b) of Art 1F is directed. A contrary construction would not be reasonable and the context certainly does not suggest it.
…
The appellant cannot wish away the fact that a nation's laws may have extraterritorial effect. The Refugees Convention must be construed against a dynamic system of law. In Pushpanathan [v Canada (Minister for Citizenship and Immigration unreported, Supreme Court, Can, 4 June 1998] Bastarache J acknowledged (para 70) that the future adoption of an international treaty might bring drug trafficking within the scope of Art 1F(c) as involving a serious violation of human rights.”

In this passage, Whitlam J has expressly dismissed any proposition that the plain meaning of the words of Art 1F(b) are limited to crimes that are extraditable. If the contrary were true, the offences which DHKW and KYBL are said to have committed would not come within the scope of Art 1F(b). They would not do so for they were not recognised at the relevant time as offences in Indonesia. I accept that is so for the purposes of this case on the basis of the judgment in the matter of Sayeed Abbas Azad[44] and a Policy Paper prepared by the Centre for Indonesian Law, Islam and Society entitled “Trials of People Smugglers in Indonesia 2007-2012”.

[44] Judgment No. 01/Pid.C/Ekst/2013/PN.Jkt.Sel.

Putting aside authority such as Ovcharuk, it is plain from a reading of Art 1F and of s 91T of the Migration Act and s 5 of the Extradition Act, on which Mr Albert relied, that the two provisions cannot be relied upon in the context of interpreting and applying Art 1F(b). Section 91T was added from 2001.[45] It defined a “non-political crime”:
“(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non‑political in nature.
(2)Subsection (1) has effect subject to subsection (3).
(3)For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.”
[45] Section 91T was added by the Migration Legislation Amendment Act (No 6) 2001; s 3; Schedule 1, Item 5

With effect from 24 March 2012,[46] s 91T had been amended and provided:
“For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime were a reference to a non-political within the meaning of this Act.”

A “non-political crime” was defined in s 5(1) in the following terms:
“(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b) includes an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.”

[46] Migration Amendment (Complementary Protection) Act 2011; s 3 and Schedule 1; Items 4 and 18-20 and see also s 2; Items 2 and 3

Section 5 of the Extradition Act defined a “political offence” from 2002 until the relevant time in 2012 as:
“political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a) an offence that is constituted by conduct of a kind referred to in:
(i) Article 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft, being the convention a copy of the English text of which is set out in Schedule 1 to the Crimes (Aviation) Act 1991; or
(ii) Article 1 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, being the convention a copy of the English text of which is set out in Schedule 2 to the Crimes (Aviation) Act 1991; or
(iia) Article 2 of the International Convention for the Suppression of the Financing of Terrorism, done at New York on 9 December 1999; or
(iii) paragraph 1 of Article 2 of the Convention on the Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, being the convention a copy of the English text of which is set out in the Schedule to the Crimes (Internationally Protected Persons) Act 1976; or
(iv) Article III of the Convention on the Prevention and Punishment of the Crime of Genocide, being the convention a copy of the English text of which is set out in the Genocide Convention Act 1949; or
(v) Article 1 of the International Convention against the Taking of Hostages, being the convention of that title that was adopted by the General Assembly of the United Nations on 17 December 1979; or
(vi) Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, being the convention of that title that was adopted by the General Assembly of the United Nations on 10 December 1984; or
(vii) Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, a copy of the English text of which is set out in Schedule 1 to the Crimes (Ships and Fixed Platforms) Act 1992; or
(viii) Article 2 of the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, a copy of the English text of which is set out in Schedule 2 to the Crimes (Ships and Fixed Platforms) Act 1992; or
(ix) Article 2 of the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997;
(b) an offence constituted by conduct that, by an extradition treaty (not being a bilateral treaty) in relation to the country or any country, is required to be treated as an offence for which a person is permitted to be surrendered or tried, being an offence declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries;
(c) an offence constituted by:
(i) the murder, kidnapping or other attack on the person or liberty; or
(ii) a threat or attempt to commit, or participation as an accomplice in, a murder, kidnapping or other attack on the person or liberty;
of the head of state or head of government of the country or a member of the family of either such person, being an offence declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country; or
(d) an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence:
(i) committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons; and
(ii) declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country.”

It is apparent from the face of these two provisions that they would support an argument that certain offences previously found to come within Art 1F(b) as political crimes would be regarded as non-political crimes. I refer, for example, to the offences of murder or an attack on the person, which have been found to be political crimes when committed for a political purpose.[47] Quite apart from that conflict between the terms of s 91T of the Migration Act and s 5 of the Extradition Act, taking a position that they could be used to interpret and apply Art 1F would be contrary to the principle stated in CRI026. The principle is that a statutory regime, found in that case in the Migration Act, and an international convention (the Refugees Convention) each called for a different technique in interpretation. One could not be used in the other and it is no different in the case of the statutory regime relating to extradition and Art 1F.
[47] See, for example, the reference in the passage from the judgment of Gleeson CJ in Singh at [54] below

In Re YYMT and MQR and FRFJ[48] (YYMT and MQCR) Senior Member Fice and I considered whether regard should be had to a person’s criminal responsibility and so to any defences that might be available to him or her. We said:
“… Given the international environment in which Art 1F was drafted after World War II as explained by the Full Court of the Federal Court in SRYYY, it seems to us that the concept of individual criminal responsibility was firmly in mind at the time. It was intended that protection should not be given to those who were undeserving of protection by reason of past criminal misconduct and who would escape prosecution for that conduct if given protection. The focus upon prosecution assumes that regard would be paid to any defence that the person might have before any prosecution were instituted. That is so because a prosecution would not be in contemplation if it were known that the person had a defence to the charge. This conclusion is consistent with Australian domestic or municipal criminal law where the criminal conduct of an act is determined by whether the act is prohibited and whether penal consequences follow its commission. Both must be present and, if a person has a defence that is recognised as removing criminal responsibility, no penal consequences follow and so the conduct cannot be regarded as criminal. No crime has been committed.”[49]
[48] [2010] AATA 447; (2010) 115 ALD 590; 53 AAR 287
[49] [2010] AATA 447; (2010) 115 ALD 590; 53 AAR 287 at [124]; 636-637; 340

B. “non-political crime”

To come within the terms of Art 1F(b), the crime must be a “non-political crime”. In Minister for Immigration and Multicultural Affairs v Singh[50] (Singh), Gleeson CJ referred to treason, sedition and espionage as political crimes but said that:
“… Once it was accepted that the concept of a political crime was not limited to offences such as treason, sedition, and espionage, and could extend to what would otherwise be ‘common’ crimes, including unlawful homicide, then it became necessary to find means of avoiding the consequence that any crime could be political if one of the motives for which it was committed was directly or indirectly political. There is no bright line between crimes that are political and those that are non-political. But, as the Tribunal rightly recognised in part of the reasoning quoted above, there must be a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act. And the achievement of that objective must be the substantial purpose of the act. The UNHCR Handbook … states:
‘There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.’”[51]
[50] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257; Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ
[51] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257 at [21]; 545; 400; 264

This question arose in Singh in the context of s 36 of the Migration Act and, in particular, whether he was a non-citizen to whom Australia owed protection obligations. Mr Singh had been a member of a political organisation involved in the killing of a police officer in India. Although he had not directly participated in the killing, Mr Singh had supplied information and intelligence about the officer’s movements and that information had facilitated his killing. A differently constituted Tribunal had decided that the crime was non-political because it had been committed as an act of retribution for the officer’s having tortured a member of the political organisation. The Full Court of the Federal Court found that the Tribunal had been in error in characterising the crime as non-political. An appeal to the High Court was dismissed.

In his judgment, Gleeson CJ recognised that homicide is foreign to the Australian experience of political action:
“… Even so, when courts have endeavoured to state the principles according to which a decision is to be made as to whether a crime which, by hypothesis, has been committed in another country, in circumstances utterly different from those that prevail in the country of refuge, is political, they have taken pains to confine the concept so as to avoid the consequence that all offences committed with a political motivation fall within it. An example is to be found in the definition proposed by Lord Lloyd of Berwick, and agreed in by Lord Keith of Kinkel and Lord Browne-Wilkinson, in T v Home Secretary [[1996] AC 742 at 786-787]:
‘A crime is a political crime for the purposes of article 1F(b) of the Geneva Convention [Refugees Convention] if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or government target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.’
Terrorist activities are not political crimes, for the reason given in that passage. …
While the authorities accept the possibility that murder might, in some circumstances, be a political crime, they recognise one further qualification of direct relevance to the Tribunal’s reasoning. Even if a killing occurs in the course of a political struggle, it will not be regarded as an incident of the struggle if the sole or dominant motive is the satisfaction of a personal grudge against the victim .... But it is only necessary to state the qualification in order to see the danger of over-simplification. People engaged in any kind of prolonged conflict, including military battle, and ordinary democratic politics, will have scores to settle with their adversaries. It is difficult to imagine serious conflict of any kind without the possibility that parties to the conflict will seek retribution for past wrongs, real or imagined. Revenge is not the antithesis of political struggle; it is one of its most common features.”[52]
[52] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257 at [16]-[18]; 543-544; 389-390; 262-263 (citation omitted)

Gaudron J expressed her understanding in Singh:
“... [I]t is possible to define ‘a political crime’ only by reference to its object or purpose. A political crime is simply a crime which has a political object or purpose.
In R v Governor of Pentonville Prison; Ex parte Cheng … [[1973] AC 931 at 945], an extradition case, Lord Diplock said that an offence was not political:
‘…unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there.
This statement correctly identifies, in my view, political purpose as the defining feature of a political crime. However, there are two aspects of that statement that require consideration. The first is the requirement that political purpose be the only purpose of the crime in question. In the absence of anything in the text of the Convention to suggest otherwise, there is no reason why the political purpose should be the sole or, even, the dominant purpose of the crime, so long as it is a significant purpose. Further, and as Lord Slynn of Hadley pointed out in T v Home Secretary,[[1996] UKHL 8; [1996] AC 742 at 775] it is not at all clear that ‘in order to be a political offence the act has to be directed against the government of the day’ ...
In some, perhaps many countries, power and political influence are exercised by bodies and organisations that are not organs of government. They may exercise power and influence with the tacit consent of the government concerned. On the other hand, they may do so because the government is unable to assert its own authority. And with increasing globalisation, the organisations or bodies in question are not necessarily confined to those that operate solely within national boundaries. Accordingly, I would consider a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed.
Once it is accepted, as in my view it must be, that political purpose is the defining feature of a political crime, references to ‘proportionality’, ‘nexus’ or ‘causal link’, as made by the Tribunal, assume legal significance ... A crime is unlikely to have a political purpose if it has no relevant connection with the political aims of those involved in its commission. So, too, as has been explained in other legal contexts, ‘proportionality’ is a useful indicator of purpose ... The true purpose of actions which are unnecessary or disproportionate to the end which is said to justify those actions is unlikely to be the achieving of that end but is likely to be the satisfaction of some other and different purpose.
Actions which are either unnecessary or disproportionate to the political objectives which are said to justify them are, perhaps, usefully described as ‘terrorist’ activities. But for the purposes of Art 1F(b), that description is not, of itself, determinative. The issue is whether the actions in question were undertaken for a political purpose, in the sense that that purpose was a significant purpose.”[53]
[53] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257 at [42]-[47]; 551-552; 404-406; 268-270
Kirby J considered a number of factors to which a decision-maker might have regard in distinguishing between political and non-political crimes. Motives for the crime are relevant but not conclusive and nor are the consequences of the crime, however terrible they might be. The target of the crime may also be relevant in that a target who is an armed adversary or an armed agent of the State may lead to a greater likelihood of the crime’s being political than if there is no particular target.[54] Kirby J emphasised:
“The Convention, including Art 1F(b), should not be read with an eye focussed solely on the experience of the political processes of Australia or like countries. The Convention was intended to operate in a wider world. It was adopted to address the realities of ‘political crimes’ in societies quite different from our own. What is a ‘political crime’ must be judged, not in the context of the institutions of the typical ‘country of refuge’ but, on the contrary, in the circumstances of the typical country from which applicants for refugee status derive.
This reminder also emphasises the care that must be applied by municipal judges in construing the phrase ‘serious non-political crime’ solely by reference to their own experience. …”[55]
[54] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257 at [121]-[129]; 575-577; 422-424; 286-288
[55] [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393; 67 ALD 257 at [106]-[107]; 568; 418-419; 282-283 (citations omitted)

C. A “serious” non-political crime

I will begin with DHKW and with events in 2012 that culminated in his travelling by boat from Indonesia to Christmas Island with others when they were non-citizens of Australia. That led to his being charged under s 233A of the Migration Act in the form in which it was enacted and continues in force. On the material, I have serious reasons for considering that each of the persons whose travel DHKW is said to have facilitated was a non-citizen of Australia. The basis of my reasons is that none of those interviewed or who made statements included in the material asserted that he or she was a citizen of Australia. Therefore, by virtue of the definition of “non-citizen” in s 5 of the Migration Act, s 233A(1)(b) is satisfied.

As for s 233A(1)(c), there may be an argument that a person has a lawful right to travel to another country to claim refuge under the Refugees Convention. That argument was not put at the hearing and it seems to me that an alternative argument, which focuses on a “lawful right” (emphasis added), and not simply a “right” may be made. It is one that must have found favour with the District Court as s 233A(1)(c) is an essential element of the offence. That second argument is made against a background of the general framework of the Migration Act, the definitions of “lawful non-citizen” and “unlawful non-citizen” in ss 13 and 14 of the Migration Act and the requirement in s 233A(1)(b) that the second person is a non-citizen and that in s 233A(1)(c) that the person had no lawful right to come to Australia.

The definitions of the expressions “lawful non-citizen” and “unlawful non-citizen” lead to the conclusion that, unless a person holds a visa or is an allowed inhabitant of the Protected Zone, he or she has no lawful right to come to the migration zone as defined in s 5. A “lawful non-citizen” is a person who is not an Australian citizen but who holds a visa that is in effect or who is an allowed inhabitant of the Protected Zone who was in that area in connection with the performance of traditional activities.[100] An unlawful non-citizen is anybody else. It seems to me that the requirement in s 233A(1)(c) that the person whose bringing to Australia is facilitated focuses on a “lawful right” (emphasis added), it is focusing on the lawfulness of his or her being in the migration zone according to the Migration Act. That is to say, by qualifying the word “right” with the adjective “lawful”, s 233A(1)(c) leaves no room for a person to have a “right” that arises under, for example, an international convention such as the Refugee Convention. Under Australian domestic law, the Refugee Convention does not confer a right under the Migration Act to come to Australia. Apart from a citizen of Papua New Guinea in a protected area in connection with the performance of traditional activity,[101] only a person who is an Australia citizen or who holds a visa has a lawful right to come to Australia or, more accurately, to the migration zone as defined in s 5. As none of the persons who have given statements or who have been interviewed has asserted that he or she had a visa to come to Australia, I have concluded that there are serious reasons for considering that none of them did. Therefore, they had no lawful right to come to Australia.
[100] Migration Act; ss 5, 13 and 14. An “inhabitant of the Protected Zone” means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant: Migration Act; s 5.
[101] The Minister may declare under s 16 that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.

That brings me to s 233A(1)(a) and the final element of the offence under s 233A. I must be satisfied that there are serious reasons for considering that it has been satisfied for it is an essential element of the offence. The issue centres on whether DHKW organised or facilitated the bringing or coming to Australia of another person. The charge of which he was convicted, concerned only his organising or facilitating the bringing to Australia of BIL. The events occurred in the main in Indonesia and on the voyage between Indonesia and Australian waters but the offence created by s 233A is clearly intended to have extra-territorial effect.

I acknowledge at the outset that DHKW has denied helping anybody to come to Australia in any way. His denial is inconsistent with the statements made by others:
(1)BIL: He first approached DHKW in Bogor in Indonesia. DHKW told him that it would cost him $4,000 to be taken to Australia. He did not say that he, DHKW, would take BIL but he did advise him to whom his father would have to pay that sum in Pakistan. DHKW’s conviction relates to the arrangements made for BIL.
(2)SILW said in her statement that she made arrangements for her passage and that of her children through CAC and not through DHKW. Herron DCJ’s findings on sentencing DHKW began with earlier discussions between DHKW and SILW’s brother. He found that DHKW had set the price she had to pay and made arrangements for part of the money to be paid on her arrival in Australia.
When she enquired about the travel of the rest of her family, who had been left behind in Bogor, she did not contact CAC but DHKW even though both were on the same boat at the same time. According to SILW, DHKW told her that the remainder of her family would be travelling in the next few days and that the money had been paid. When it became apparent that her family had not arrived on Christmas Island, SILW said that DHKW told her that there had been problems and that he would return the money to her.
(3)CD said that she had been told that DHKW was the real smuggling boss and that CAC worked for him. DHKW also told her that CAC worked for him as his agent and that he had suspected that CAC had been taking money from passengers without telling him. He, and not CAC, told her to get ready for the trip and told her that he had personally chosen her to take the trip.

The evidence of BIL, SILW and CD is all to the same end i.e. that DHKW organised or facilitated their obtaining passage on the boat. In the case of BIL, the arrangements were made directly with DHKW and, although she initially dealt with CAC, CD dealt directly with DHKW in making her arrangements. He made it clear to her that he was responsible for her getting a place on the boat. SILW did not deal with DHKW initially but she did not turn to CAC to enquire about the arrangements for the remainder of her family even though he was also on the boat and presumably accessible. She turned to DHKW, and not to CAC, for that information when, for example, she was at the detention centre and DHKW made the arrangements for the refund of the money.

The evidence that I have summarised gives me serious reasons for considering that DHKW organised or facilitated their travel from Indonesia to Christmas Island. It is consistent with the evidence of others, two of whom travelled with the group and one of whom did not. Although aided by other persons, PSN and PSNAG, in his travel, UW formed the view that four people, of whom DHKW was one, had each arranged for separate groups of people to travel on the boat. Some 45 members of those separate groups had come together in a villa before they set out for the boat. UMA also identified DHKW as the “main guy” to all of the passengers. Whether his travel was arranged by DHKW or another is not clear. DGUMA did not travel to Australia on the boat but she had discussions with DHKW regarding travelling to Christmas Island. The statements of these three people is consistent with the activities of DHKW as a person organising or facilitating the travel of others by the boat that eventually arrived at Christmas Island.

It follows that I have come to the view that I have serious reasons for considering that DHKW has committed an offence or offences under s 233A of the Migration Act. There is the crime of which he was convicted and there is also that involving SILW. Is it a serious offence or are they serious offences? The person in relation to whom DHKW was convicted of people smuggling was his brother in law, BIL. If I had come to the view that his activities were limited to assisting his brother in law and, of course, his wife and children, I might feel persuaded that the crime was not serious. That is not the view that I have come to, for DHKW’s organisation extended to people far beyond his family members. That is one aspect of its seriousness but another is the context in which the travel took place. That is the context of an ocean voyage in an overcrowded and unseaworthy boat. I have serious reasons for concluding that the crime DHKW committed was serious.

Is it a political crime? DHKW has been granted refugee status by the UNHCR but whether the persons he has assisted have been granted that status I do not know. Even if I did, I do not have any evidentiary material that would support the submission to the effect that the offence was a political offence because he was facilitating their leaving a country that did not provide them with protection. Indonesia is a country that does not grant refuge or asylum but the act of leaving that country does not of itself give any sense that it is political. The authorities, to which I have referred above, require me to look for that political purpose or the link between the action and a political purpose. A political purpose is more akin to a purpose directed to “… overthrowing or subverting or changing the government of a state or inducing it to change its policy …”. Fleeing a country that does not provide refuge or asylum is not directed to any of those purposes.

I would reach the same conclusion even if I had evidentiary material that gave me reason to think that any of those whom DHKW assisted was fleeing his or her country of nationality for reasons that would bring them within Art 1A. That is not a political act in the sense in which it is understood in the authorities. Even if it were, of those whom DHKW helped, only BIL stated why he or she was fleeing the country of their nationality. BIL said that he was fleeing because he had received death threats on his mobile telephone but receiving death threats does not bring a person within the scope of Art 1A of the Refugee Convention. In summary, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political group or political opinion, must be the reason a person is outside the country of his or her nationality. Death threats may be made for reasons other than those set out in Art 1A. Whether they are, or are not, fleeing them in the circumstances in which BIL found himself was not undertaken for a political reason. Assisting him in any form was not done as a political act.

It follows that I have serious reasons for concluding that the crime was a serious non-political crime. By reason of Art 1F(b), therefore, the Refugee Convention does not apply to DHKW. In view of my decision, I have no need to consider events between 2001 and 2012 but I will address them briefly. I have set out the relevant legislative provisions applying in those years at [74]-[76] above. In so far as s 233A applied between 2001 and 30 May 2010,[102] I do not have serious reasons for considering that DHKW committed an offence under that section. The offence required as an essential element that DHKW presented, made or delivered, or caused to be presented, made or delivered, to an officer or person performing functions under the Migration Act certain documents or statements as specified in ss 233A(1)(c), (d) and (e). I do not have evidentiary material that points me to DHKW’s having done that. The reports that a man by his name was arrested in Indonesia for people smuggling do not support a conclusion that he has done so. They do not support a conclusion that KYBL has done so in the period between 2001 and 30 May 2010 when s 233A applied in its earlier form. I find that there is nothing else that points to either DHKW’s or KYBL’s having committed a crime under s 233A in the period between 2001 and 30 May 2010.
[102] The day before s 233A was amended.

In that same period, the offence provided for in s 233 did not require the same elements to be established as s 233A(1)(c), (d) and (e). For the purposes of this case, the offence established by s 233(1)(a) is the most relevant for it was an offence to take part in the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably be inferred that the non-citizen intended to enter Australia in contravention of the Migration Act. If I put aside the DHKW’s denials that the newspaper report related to him, that report does not take me beyond a view that he was involved in Indonesia in what would, in Australia, be called people smuggling. Since the passage of Law 6/2011 in Indonesia, an offence of people smuggling has been introduced in that country. Before that time, the activities associated with people smuggling were offences by different names under Indonesian Law 9/1992 e.g. assisting an illegal foreigner. That DHKW might have committed those offences does not take me towards a conclusion that I have reasons for considering he committed an offence under s 233(1)(a) of the Migration Act in the period between 2001 and 30 May 2010. Statements that DHKW has been involved in long term people smuggling do not alter the view that I take. Section 233(1)(a) requires consideration of the circumstances in which a non-citizen is brought to Australia as they must be examined to decide if it might reasonably be inferred that the non-citizen intended to enter Australia in contravention of the Migration Act. On the material that I have, I do not have serious reasons for considering that DHKW committed an offence under s 233 in the period between 2001 and 30 May 2010. The same reasoning leads me to the same conclusion in relation to KYBL.

As presently drafted, each of the elements of the offence established by s 233A(1) is centred upon a particular person. That person must be the person whose bringing or coming to Australia an accused is said to have organised or facilitated. That person must be a non-citizen and have no lawful right to come to Australia. The material that I have up until the events in 2012 is broad and generalised to the effect that DHKW was a people smuggler. It is not directed to the smuggling of particular people and so is not directed to the elements of the offence under s 233A(1). I have concluded, therefore, that I do not have serious reasons for considering that DHKW committed an offence under s 233A(1) in the period from 31 May 2010 to the time immediately before the 2012 offence of which DHKW was convicted. For the same reasons, I reach the same conclusion in relation to KYBL.

Going back to the material relating to earlier times, both DHKW and KYBL deny that they could have been the two people depicted in the Indonesian News published in Jakarta, as those arrested in October 2001.[103] KYBL says that she could not have been there for she was in Kuwait in 2001 but then changed that to 2002 after her son was born in December 2001 in Quetta in Pakistan. Her statement of her son’s birthdate is supported by a copy of his Birth Certificate. That is consistent with KYBL’s not being pictured in Indonesia in October 2001 but, equally, travel during pregnancy is not uncommon. A medical certificate dated almost 12 years later by the delivering medical practitioner states that DHKW was at the hospital premises during the birth although not permitted to be present in the delivery room. When taken with the fact that the Indonesian authorities seized a passport bearing DHKW’s photograph and father’s name, the medical certificate carries little weight.
[103] Exhibit 3 at 7-8 and see also 89 and 161-162

The financial information that he produced in relation to the restaurant in Kuwait also carries little weight. A Migration Agent forwarded 17 pages of financial and medical records that he had sent to the Department in PDF format. Pages 1 to 7 and 14 to 17 were copies of accounts giving details of income, expenses, drawings made by each partner and their share of the profits for the 2009 and 2010 years. DHKW also included details of his bank account in Kuwait and of his wife’s two bank accounts in Pakistan.[104] Although DHKW’s position is that he worked in Kuwait from 2001, the financial material relates only to those later years after they became joint owners with a third party in 2007/2008. It says nothing of their activities before then and, in particular, in relation to October 2001 when the report of their arrest was made. I also note that DHKW purchased a fake Afghan passport in 2000 so that he could travel to Dubai, Kuwait and Saudi Arabia. In 2001, he used that passport to obtain a visa enabling him to work in Kuwait. He saw that as a legitimate reason for taking that course but it also left open the possibility of his moving between countries in a name other than his own.
[104] Exhibit 1 at 311-313

In view of these matters, I have decided that there here are serious reasons for considering that DHKW was committing a crime against Indonesian law involving the assistance of an illegal foreigner or foreigners in or about 2001. I have not reached the same decision in relation to KYBL and have decided that there are not serious reasons for considering that she has committed a crime against Indonesian law. Although there may be some suspicion that she is depicted in the photograph, I must also have regard to her denial that she is. There is the evidence that she gave birth in Pakistan some two months or so after she is said to be in the photograph even though it is not impossible for her to have been in both places on dates some two months apart. More telling is the fact that her passport is not among the material. That said to be taken from her husband does appear. The fact that her passport does not weighs against her being the person depicted in the photograph. I have decided that the material does not give me serious reasons for considering that KYBL committed a crime against Indonesian law.

That brings me to KYBL in relation to the events in 2012 that led to her husband’s being convicted of people smuggling. In Indonesia, she lived with her husband and was not only present when SILW went to the house but one of the reasons SILW did so i.e. to thread her eyebrows. KYBL was present during a conversation between SILW and DHKW in the detention centre regarding the travel of the remainder of her family. When she, DHKW and KYBL were on Christmas Island, SILW asked KYBL about her family. KYBL went away and came back with information. Earlier, on the boat, SILW had passed her telephone to KYBL, who passed it to DHKW, when her brother had telephoned her to find out about the arrangements made for the rest of the family. A short time later, KYBL passed the telephone back to her saying that her family would be travelling in the next few days and that the money had been paid.

These actions could be seen as those of a dutiful wife raising with her husband questions asked of her but they are actions that are relevant in considering whether there are serious reasons for considering that KYBL has aided or abetted DHKW in the commission of an offence under s 233A. The offences of aiding or abetting are relevant in considering complicity and common purpose. They are the subject of s 11.2 of the Criminal Code Act 1995 (Criminal Code), which provides:
“(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punished accordingly.
(2)For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
(3)For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)Subsection (3) has effect subject to subsection (6).
(4)A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a)terminated his or her involvement; and
(b)took all reasonable steps to prevent the commission of the offence.
(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6)Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7)If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a)is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b)is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.”

I do not consider that the material supports my concluding that there are serious reasons for considering that KYBL has committed a crime of counselling or procuring DHKW to commit a crime under s 233A of the Migration Act in relation to events in 2012. The offence of counselling requires that there be “deliberate encouragement or active inducement of the commission of the criminal offence”. It also requires that the person has “an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling”.[105] The material does not give reason to think that KYBL was deliberately encouraging or inducing her husband to commit the offence specified in s 233A. Without that, there is no reason to consider any mental element that she might have had.
[105] R v Hamilton 2005 SCC 47; [2005] 2 SCR 432; 255 DLR (4^th) 283; 198 CCC(3d) 1(SCC) at [29]; 444; 292-293; 11; per McLachlin C.J., Bastarache, Binnie, LeBel, Deschamps and Fish JJ (judgment delivered by Fish J); Major, Abella and Charron JJ dissenting

Aiding or abetting the commission of an offence are separate bases on which an offence may be committed under s 11.2 of the Criminal Code. Mere presence of one person at the scene of a crime being committed by another is insufficient to render an individual guilty of aiding and abetting. Nor is it enough to have a high level of interest in the actions that constitute a crime being committed by another or even to strongly approve of those actions.[106] Viewed from another vantage point, this means that:
“It is not enough, then, that the presence of the accused person has, in fact, given encouragement. It must be proved that the accused intended to give encouragement: that he wilfully encouraged.”[107]
[106] R v Lam [2008] VSCA 109; (2008) 185 A Crim R 453 at [92]; 478; Buchanan, Vincent and Kellam JJA
[107] R v Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344; (1971) 55 Cr App R 445 at 1406; 347; 450 per Megaw LJ giving the judgment of the court comprising himself and Geoffrey Lane and Kilner Brown JJ

In Australia, a similar approach has been taken in Roughley v R[108] where Cox J said:
“ The relevant legal principles have been stated in a number of cases (R v Coney and Ors (1882) 8 QBD 534; R v Allen and Ors (1963) 47 Cr App R 243; R v Clarkson and Ors (1971) 55 Cr App R 445; R v Jones and Mirrless (1977) 65 Cr App R 250; R v Smith CCA 2/1979; Hutt v R CCA (21/1989). In addition to establishing on evidence admissible against the accused charged as an abettor that the crime charged or its alternative was committed by the principal offender and that the conduct of the accessory in fact encouraged the commission of that crime, the Crown must prove that the accomplice intended that crime to be committed by the principal offender and furthermore must prove wilful encouragement or, in other words, must prove that the accomplice intended his conduct to have the effect of encouraging the principal offender. Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance if required, is not sufficient: R v Jones and Mirrless (supra) at 252.”[109]
[108] [1995] TASSC 14; (1995) 5 Tas R 8; 78 A Crim R 160; Cox, Underwood and Zeeman JJ
[109] [1995] TASSC 14; (1995) 5 Tas R 8; 78 A Crim R 160 at [3]; 12; 162

The essential elements of the offence of aid and abet were summarised by Holmes JA, as she then was, in R v Johnson; Ex parte Attorney-General (Qld):[110]
“… (1) that proof of mere presence at the scene of the offence will not suffice; (2) that the prosecution must establish that the intention behind the presence is to encourage; and (3) that the prosecution must establish that the effect of the presence is to encourage. …”[111]
[110] [2007] QCA 76; de Jersey; Holmes JA and Mullins J
[111] [2007] QCA 76 at [48]

In this case, there is no question that KYBL was present with her husband during discussions he had regarding the travel of the remainder of SILW’s family to Australia. Those discussions took place at various times but, on each occasion, the role played by KYBL was limited to passing on information to or from her husband. On the material that I have, I have concluded that she was acting as a dutiful wife. I have considered whether she was acting beyond that role but I have concluded that the material that I have does not give me serious reasons for considering that KYBL intended to encourage her husband to commit the crimes in which he was engaged or that the effect of her presence was to encourage him to do so. Therefore, I have concluded that I do not have serious reasons for considering that KYBL aided or abetted DHKW in the commission of an offence or that her conduct is such that she has committed an offence under s 11.2 of the Criminal Code.

For the reasons I have given, I have decided to affirm the decision dated 18 August 2016 in so far as it refuses DHKW a protection visa but have set aside it aside in so far as it refuses KYBL a protection visa and have remitted that part of the decision to the Minister to consider her application on the basis that Art 1F(b) of the Refugees Convention does not exclude the application of the provisions of that Convention to her. In other words, there are no serious reasons for considering that she committed a serious non-political crime outside the country of refuge (Australia) prior to her admission to that country as a refugee.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

[sgd].......................................................................
Associate
Dated: 25 October 2019

Heard:	30 and 31 August 2018
Counsel for the Applicant:	Matthew Albert
Solicitor for the Applicant:	Sanmati Verma Clothier Anderson Immigration Lawyers
Counsel for the Respondent:	Christopher Tran
Solicitor for the Respondent:	Ashlee Briffa Australian Government Solicitor

“… the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,
… the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of those fundamental rights and freedoms,
…”