GZCK and Minister for Home Affairs (Migration)
[2019] AATA 656
•5 April 2019
GZCK and Minister for Home Affairs (Migration) [2019] AATA 656 (5 April 2019)
Division:GENERAL DIVISION
File Number: 2017/5003
Re:GZCK
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Mr A Maryniak QC, Member
Date:5 April 2019
Date final submissions received: 14 September 2018
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr A Maryniak QC, Member
Catchwords – migration – protection visa – refugee – whether the Applicant committed war crimes – whether the Applicant was a member of the LTTE – whether witness is credible – whether witness is reliable - misleading government officials – international law - Sri Lanka – Refugee Convention – Rome Statute – decision affirmed
Legislation
Migration Act 1958
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)Migration Regulations 1994
Cases
Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1
Gurung (Exclusion - risk - Maoist) Nepal UKIAT [2002] UKAIT 4870
KK (Article 1F(c)) Turkey [2004] UKIAT 00101
MZYVM v Minister for Immigration and Citizenship (2013) 139 ALD 497
R v Secretary of State for the Home Department, Ex parte Adan [2001] 2 AC 477
R (on the application of JS) (Sri Lanka) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC15
SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1
Secondary Materials
Elements of Crimes
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Human Rights Council, “Report of the OHCHR Investigations on Sri Lanka” (A/HRC/30/CRP.2), 16 September 2015 [223]-[224]
R Ramasubramanian, ‘Suicide Terrorism in Sri Lanka’ (2004) 1(5) IPCS Research Papers 1, 9, 21
Rome Statute of the International Criminal Court
UNHCR Background Note on the Application of the Exclusions Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka 21 December 2012
UNHCR’s Handbook on Procedures and criteria for determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992
UNHCR Lisbon Expert Roundtable, Global Consultations on International Protection held on 3-4 May 2001, Summary Conclusions – Exclusion from Refugee Status, EC/GC/01/2Track/1, 30 May 2001
UNHCR Statement on Article 1F of the 1951 Convention, Issued in the context of the preliminary ruling references to the Court of Justice of the European Communities from the German Federal Administrative Court regarding the interpretation of Articles 12(2)(b) and (c) of the Qualification Directive
United Nations Convention Relating to the Status of RefugeesVienna Convention on the Law of Treaties
REASONS FOR DECISION
Mr A Maryniak QC, Member
5 April 2019
On 24 July 2017, a delegate of the Respondent exercising power under section 65 of the Migration Act1958 (Cth) (the Act) found serious reasons for considering that the Applicant had committed a war crime, engaging sections 5H(2)(a) and 36(2C) of the Act. Therefore, the Applicant’s application for a XD-785 Temporary Protection Visa was refused by the delegate.
The question before the Tribunal is whether sections 5H(2) and 36(2C) of the Act are engaged. If so, the Applicant does not satisfy the criteria for a Temporary Protection Visa and the delegate’s decision will be affirmed. The Tribunal must decide whether there are serious reasons for considering that the Applicant ‘has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments prescribed by the regulations’.
Due to the nature of the relevant visa in this matter and by reason of section 501K of the Act, the Applicant is not identified in this Decision and various aspects of these reasons have been edited accordingly. Further, identifying information in Annexure A has been redacted to comply with section 501K of the Act.
THE APPLICANT’S BACKGROUND
A summary of the Applicant’s background, as provided in his Closing Submissions, is set out in paragraphs 5 to 18 below. Such background facts were essentially not challenged by the Respondent.
The Applicant was born in Sri Lanka in 1973.
He identifies as Hindu and of Tamil ethnicity.
In the late 1980s when the Applicant was around 15 or 16 years old, he would assist a relative in their shop, which included selling items to the Liberation Tigers of Tamil Eelam (LTTE). At this time a man named “Ramanan” was in charge of the LTTE. The Applicant knew of Ramanan from personal experience.[1]
[1] Statement of GZCK dated 29 April 2015, paragraph 8.
Around 1989 the Applicant was forcibly recruited into the LTTE. This was initiated by Ramanan who tricked the Applicant into believing he was delivering items to the LTTE but he was in fact left in an LTTE camp and forced to join the organisation.[2]
[2] Ibid, paragraphs 16 to 25.
The Applicant was unable to carry through on his orders to kill in battle and around 1992 he was punished by the LTTE by being placed in the kitchen and ordered to cook for the LTTE soldiers. He then negotiated his return to his village where he was tasked with selling goods to the LTTE under the control of Ramanan.[3]
[3] Ibid, paragraphs 33 to 40.
The Applicant then worked under his relative to avoid going into battle. However, around 1993 he was moved to another village and it was around this time he was sent for training in Intelligence work. After his training he attended interviews conducted by the LTTE and operated the recording equipment and labelled cassettes. He would listen to the recordings and write down the story of the person being interviewed and write a report.[4]
[4] Ibid, paragraphs 48 to 67.
Around 1996 he negotiated his return to the area he grew up in. His tasks included selling goods and some Intelligence work for his superior at the time.[5]
[5] Ibid, paragraphs 68 to 73.
The Applicant continued doing Intelligence work from 1997 to 2001; and it was in this period that the Applicant was tasked with making arrangements for boys to travel to Colombo.[6]
[6] Ibid, paragraphs 74 to 87.
He then returned to the area where he grew up, where he was tasked with gathering information about other political parties such as the Eelan People’s Democratic Party and the People’s Organisation of Tamil Eelam. He also continued to help with the arrangements for the boys travelling to Colombo.[7]
[7] Ibid, paragraphs 88 to 96.
In 2003 the Applicant had a motorcycle accident and injured his leg.[8]
[8] Ibid, paragraph 97.
Around 2003 or 2004 there was a split in the LTTE and the Karuna Group was formed. The Applicant escaped from a camp and was instructed by his supervisor to go to the area the Applicant grew up in. It was around this time that the Applicant made another attempt to leave the LTTE. He went into hiding from July to December 2004. Prior to this, he spent a few months in jail having been caught by the police. Again he was attempting to make plans to leave the LTTE and go overseas.[9]
[9] Ibid, paragraphs 130 to 151.
The Applicant went overseas from around 2004 to 2005 for about six months. Still under the threat and control of the LTTE, he returned to Sri Lanka and continued working for the LTTE.[10]
[10] Ibid, paragraphs 152 to 184.
From 2005 to 2007 he worked repairing “field bikes” for the regiment and buying goods.[11]
[11] Ibid, paragraphs 190 to 192.
When the Applicant was 33, the Sri Lankan Army (SLA) had a strong foothold in the area the Applicant grew up in and the Applicant went and hid in the jungle. The area was occupied by the SLA. He remained in hiding until late 2008. The Applicant’s father was assaulted during this time by the LTTE who wanted the Applicant to surrender. The Applicant fearing for his life at this stage planned his escape from Sri Lanka.[12]
[12] Ibid, paragraphs 197 to 206.
APPLICANT’S VIEW OF THE LAW
The Applicant submitted the following was the applicable approach to the law.
The provisions of the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) and section 5H(2)(a) of the Act must be interpreted in accordance with the principles set out in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.[13] This means that section 5H(2)(a) of the Act must be interpreted in good faith, in accordance with its ordinary meaning and context, and in light of the Refugee Convention’s object and purpose.[14] The context for the purposes of section 5H(2)(a) of the Act includes the entire text of and preamble to the Refugee Convention.[15] Together with this context, there should be taken into account any relevant and applicable rules of international law.[16]
[13] R v Secretary of State for the Home Department, Ex parte Adan [2001] 2 AC 477 at p. 509F-G (per Lord Slynn), p. 516C-H (per Lord Steyn).
[14] Article 31(1) Vienna Convention on the Law of Treaties.
[15] Ibid.
[16] Ibid.
The Applicant submitted that before turning to the ordinary meaning of “serious reasons for considering”, something must be said about the ordinary meaning of section 5H(2)(a) of the Act, which specifically provides that a war crime or a crime against humanity is “…defined in the international instruments drawn up to make provision in respect of such crimes”. The ordinary meaning therefore makes it clear that the specified crimes have an autonomous meaning by reference to international, rather than domestic law[17]; as was observed in KK (Article 1F(c)) Turkey [2004] UKIAT 00101 at [60]:
“We are searching for the international autonomous meaning of the relevant provisions of the Refugee Convention. It is not open to us to provide a purely national or local interpretation. For this reason, English statutes relating to the definition of terrorism, treatment of terrorists, or even to the interpretation of the Refugee Convention are of very limited assistance.”
The context to Article 1F(a) of the Refugee Convention and s 5H(2)(a) of the Act including the object and purpose of the Refugee Convention – a restrictive interpretation is required
[17] See Gurung (Exclusion - risk - Maoist) Nepal UKAIT [2002] UKAIT 04870 at 932.
The context to Article 1F(a) and section 5H(2)(a) of the Act, is clearly a desire on the part of the drafters to ensure the widest possible protection for refugees throughout the world. This objective is highlighted by considering the preamble to the Refugee Convention which provides:
“… considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments by means of a new agreement ...”
Further, the Introductory Note of the Convention provides that:
“The Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement…The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognises that the seeking of asylum can require refugees to breach immigration rules…the principle of non- refoulement is so fundamental that no reservations or derogations may be made to it. It provides that no-one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears treats to life or freedom”.
The effect of the provisions of section 5H(2)(a) of the Act and Article 1F of the Refugee Convention is to exclude those from protection who otherwise satisfy the definition of a refugee. The United Nations High Commissioner for Refugees (“UNHCR”), which is the body charged with the task of supervising international conventions providing for the protection of refugees, has stated that these provisions must be interpreted restrictively.
The Applicant submitted that as section 5H2(a) of the Act is codified, the preamble and object of the Refugee Convention has direct effect in Australia’s domestic law.
Interpreting of Article 1F and section 5H2(a) of the Act
In the UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (the Background Note) the UNHCR has observed at paragraph three that:
“The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. While these underlying purposes must be borne in mind in interpreting the exclusion clauses, they must be viewed in the context of the overriding humanitarian objective of the 1951 Convention.”
In this same interpretative note at paragraph four, the UNHCR has clarified that:
“... the exclusion clauses must always be interpreted restrictively and should be used with great caution. As paragraph 149 of the Handbook [Handbook on Guidelines on Procedures and Criteria for Determining Refugee Status] emphasises, such an approach is particularly warranted in view of the serious possible consequences of exclusion for the individual. Moreover, the growth in universal jurisdiction and the introduction of international criminal tribunals reduces the role of exclusion as a means of ensuring fugitives face justice, thus reinforcing the arguments for a restrictive approach.”
Finally, this restrictive application of Article 1F of the Refugee Convention was confirmed by the Lisbon Expert Roundtable, held as part of the 2001 UNHCR Global Consultations on International Protection,[18] which concluded that:
“Exclusion clauses are of an exceptional nature and should be applied scrupulously and restrictively because of the potentially serious consequences of exclusion from refugee status for the individual concerned.”
[18] UNHCR Lisbon Expert Roundtable, Global Consultations on International Protection held on 3-4 May 2001, Summary Conclusions – Exclusion from Refugee Status, EC/GC/01/2Track/1, 30 May 2001, at page 1.
The approach to Article 1F was put by Lord Brown in R (on the application of JS) (Sri Lanka) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 15 at [2] and [3]:
“It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article’s disqualifying provisions. The question is, I repeat, what more?
As need hardly be stated, only if the decision-maker in respect of a particular application for asylum correctly identifies and answers this question will he be in a position to decide, in all but the clearest cases, whether “there are serious reasons for considering” the asylum-seeker to be disqualified as a war criminal under article 1F(a).”
It was further submitted by the Applicant that this Tribunal is tasked with the same question, “what more?”. What more than mere membership of the LTTE will bring the Applicant within the disqualifying provision of section 5H(2)(a) of the Act?
The Applicant submitted the following regarding the facts in the JS case. JS is a 28 year old Sri Lankan Tamil. In 1992, at the age of 10, he became a member of the LTTE, the following year joining the LTTE’s Intelligence Division. At 16 he became team leader of a nine-man combat unit, at 17 the leader of a 45-man platoon, on each occasion engaging in military operations against the SLA, and on each being wounded. At 18 he was appointed to lead a mobile unit responsible for transporting military equipment and other members of the Intelligence Division through jungles to a point where armed members of the Division could be sent in plain clothes to Colombo. He continued to do this for some three years from September 2000 until early 2004 except for some two and a half months (from late April to early July 2002) when he was appointed one of the chief security guards to Pottu Amman, the Intelligence Division’s leader, whom he accompanied as a trusted aide on visits to the LTTE District Leader, Colonel Karuna, and other prominent LTTE members. From early 2004 to September 2006 he served as second in command of the combat unit of the Intelligence Division. In October 2006 he was sent incognito (in plain clothes and under an assumed name) to Colombo to await further instructions. In December 2006 he learned that his presence in Colombo had been discovered and arrangements were made for him to leave the country. On 7 February 2007 he arrived in the UK and two days later applied for asylum. His application for asylum was refused on 14 September 2007 solely by reference to Article 1F of the Refugee Convention.
It was submitted by the Applicant that JS is an important case for the matter before the Tribunal as it deals with the issue of criminal responsibility with reference to international law, which was submitted by the Applicant to be the correct approach when applying section 5H(2)(a) of the Act.
It was further submitted that reliance on the “membership of a criminal organisation” as a valid mode of liability by which a person can be said, in contemporary international law, to commit war crimes and/or crimes against humanity for the purposes of the matter before the Tribunal is misconceived. The Applicant’s membership of the LTTE between around 1989 to 2008 is not itself a reason for suspecting him of being guilty of international crimes.
RESPONDENT’S ALTERNATE VIEW
In contrast, the Respondent submitted the following approach was correct in interpreting the relevant law in Australia.
“Serious reasons for considering …”
Prior to the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amendment Act), the Act required the Minister to consider whether an applicant was “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 Protocols”. This broad reference to the Refugees Convention encompassed article 1F, which 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;
In that context, Australian courts had occasion to consider what is meant by “serious reasons for considering”. Most recently, the High Court considered this in FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 (“FTZK”).
French CJ and Gageler J said, at [13]-[14]:
“The requirement that there be “reasons for considering” 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 qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference.”
Regarding this threshold, their Honours cited with approval the carefully considered remarks of Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465, at [54]:
“It is sufficient … 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.”
Crennan and Bell JJ in FTZK, in addition to citing these remarks,[19] also referred at [72] to the observation of French J (as his Honour then was) in Dhayakpa, that it was not necessary, in order to make a finding of ‘serious reasons’, to make any positive or conclusive finding about whether a crime had in fact been committed.[20]
[19] At [80].
[20] Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, 563.
Hayne J warned against departing from the wording of Article 1F of the Refugee Convention, citing, at [36], Sedley LJ’s remark in Al-Sirri that it:[21]
“…sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”
[21] Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624 at [33], cited with approval by Lord Brown of Eaton-under-Heywood JSC in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184, [39].
The Act as amended retains the language of Article 1F of the Refugee Convention in referring to “serious reasons for considering”. Section 5H(2)(a) of the Act should be interpreted accordingly:
“…that [the Applicant] has committed … a war crime … as defined in the international instruments prescribed by the regulations”
GENERAL APPROACH
Just as Australian courts have had occasion, in the context of Article 1F of the Refugee Convention, to consider what is meant by “serious reasons for considering”, they have also had occasion to consider how that standard is to be applied to the possibility that a person “has committed … a war crime … as defined in the international instruments drawn up to make provision in respect of such crimes”.[22] In general terms, this involves:
(a)identifying a war crime by a relevant international instrument;
(b)identifying the elements of that war crime;
(c)identifying when an individual is criminally responsible for that war crime;
(d)identifying potentially applicable defences; and
(e)deciding, on the material, whether there are ‘serious reasons for considering’.
[22] See e.g. SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1, at [28], especially at [50]-[51], [106] and [118]-[131].
Australian courts have not interpreted Article 1F of the Refugee Convention as requiring that there be jurisdiction to actually try the person under the international instrument that defines the war crime in question and the circumstances required to establish individual criminal responsibility. To the contrary, in the context of the Rome Statute of the International Criminal Court (Rome Statute), the Full Court of the Federal Court of Australia (Full Federal Court) in SRYYY held that there was no such requirement.[23]
[23] SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1, [67].
With the entry into force of the Amendment Act, the reference in Article 1F of the Refugee Convention to “the international instruments drawn up to make provision in respect of such crimes” has been replaced by a reference in the Act to “the international instruments prescribed by the regulations”. Otherwise, the wording of Article 1F of the Refugee Convention has been retained. The approach described above therefore remains applicable, save that the Tribunal should confine itself to prescribed international instruments.
Whilst there are various international instruments to which the Tribunal might have regard,[24] the submissions of the Respondent focussed upon the Rome Statute.
[24] See Migration Regulations 1994, reg 2.03B; also SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1, [72]-[73].
Relevance of Rome Statute
The Rome Statute was adopted on 17 July 1998 and entered into force on 1 July 2002. This gave rise to a preliminary question as to whether it is appropriate for the Tribunal to proceed by reference to the Rome Statute in relation to earlier matters. The parties agreed, in an exchange of written submissions, that this was appropriate.[25] Subsequently, counsel for the Applicant raised with Tribunal Article 24(1) of the Rome Statute, which limits criminal responsibility under that Statute to conduct occurring after it entered into force. This, however, is a matter of which the Full Federal Court was cognisant when it held, in SRYYY, that it was appropriate to proceed by reference to the Rome Statute.[26]
[25] See: Respondent’s further written submissions dated 26 April 2018; Applicant’s response thereto dated 23 May 2018.
[26] SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1, [43], [67].
Particular war crimes under the Rome Statute
The Rome Statute sets out, in Article 8, the war crimes to which it applies. It then provides, in Article 9, for Member States to agree upon the elements of those war crimes. This has led to the adoption by Member States of an Elements of Crimes document.
Article 8(2) of the Rome Statute defines the war crimes that apply in different circumstances. Of present relevance are paragraphs (c) and (e), both of which define various war crimes by reference to conduct that “took place in the context of and was associated with an armed conflict not of an international character”. This is elaborated in paragraphs (d) and (f) respectively. Paragraph (f), which explains paragraph (e), is particularly apposite. It refers to “armed conflicts that take place in the territory of a State where there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”.
The Respondent’s Statement of Contentions dated 25 January 2018 focused on Article 8.2(c)(i), which defines war crimes as “[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”[27] In addition, the Tribunal can also consider paragraph (e)(i), which defines a war crime as:
“Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”
[27] See at [15]-[19].
The elements of this war crime as defined by the Elements of Crimes document are:
(a) The perpetrator directed an attack.
(b) The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.
(c) The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.
(d) The conduct took place in the context of and was associated with an armed conflict not of an international character.
(e) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
As regards the fourth and fifth of these elements, the Elements of Crimes document provides general guidance in its “Introduction” to Article 8 (see at p. 13 of the Elements of Crimes document).
Individual criminal responsibility under the Rome Statute
The Rome Statute does not limit liability to those who actually carry out war crimes. Instead, by Article 25(3)(d), it extends liability to persons who, amongst other things, in any way contribute to the commission of the crime by a group of persons acting with a common purpose, provided that:
“…Such contribution shall be intentional and shall either:
(i)Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii)Be made in the knowledge of the intention of the group to commit the crime.”
(emphasis added)
Furthermore, as the Full Federal Court observed in SHCB (a case in which the decision-maker had proceeded by reference to the Rome Statute):[28]
“It is not necessary, for a finding that the appellant committed a war crime or a crime against humanity, that there be a finding with respect to a specific incident, if there are findings of many such incidents and a finding that the appellant took steps as an officer of KHAD knowing that such acts would be the consequence of his steps. It was open to the AAT, on the material before it, to conclude that the appellant aided, abetted or otherwise assisted the commission or attempted commission of such acts. The AAT made findings that KHAD was involved in crimes against humanity and war crimes at a time when the appellant, in the course of his duties as a reasonably high ranking officer, passed on information that was likely to lead to the commission of such acts.”
[28] SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561, [23].
These remarks were recently cited by Dodds-Streeton J in discussing Article 1F of the Refugee Convention in a case with factual similarities to the present case, albeit in relation to murder as a crime against humanity rather than a war crime.[29] They are particularly relevant in the matter before the Tribunal because they confirm that there is no need to link the Applicant’s contributions to particular outcomes. Nor is there any need to show that such contributions would necessarily, in each case, have led to a war crime. The Tribunal needs to be mindful of this in considering whether there are serious reasons for considering that the Applicant has committed war crimes by:
“23.1 contributing to Black Tiger missions in the knowledge that the LTTE intended to conduct Black Tiger missions against civilian targets; and
23.2 reporting on possible spies, in the knowledge that the LTTE was involved in the torture and extrajudicial killing of suspected spies.”[30]
[29] See MZYVM v Minister for Immigration and Citizenship (2013) 139 ALD 497, [66]-[73].
[30] Respondent’s closing submissions.
APPLICANT’S RESPONSE TO RESPONDENT’S APPROACH
In response, the Applicant took issue with the Respondent’s proposed approach, and makes the following submissions.
The Applicant noted that the Respondent makes no reference to international jurisprudence or to the following documents when construing “serious reasons for considering” or section 5H(2)(a) of the Act:
(a)UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka 21 December 2012;
(b)UNHCR’s Handbook on Procedures and criteria for determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992;
(c)UNHCR’s Guidelines on International protection No.5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05;
(d)UNHCR Background Note on the Application of the Exclusions Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003; and
(e)UNHCR Statement on Article 1F of the 1951 Convention, Issued in the context of the preliminary ruling references to the Court of Justice of the European Communities from the German Federal Administrative Court regarding the interpretation of Articles 12(2)(b) and (c) of the Qualification Directive.
(UNHCR documents)
The Applicant submitted that since Article 1F of the Refugee Convention was codified by virtue of section 5H(2) of the Act, greater weight must be given to international jurisprudence and to the UNHCR documents above to the statutory approach to section 5H(2)(a) of the Act generally, and more specifically when construing “serious reasons for considering”.
The Applicant submitted that the language of Article 1F of the Refugee Convention should be interpreted by adopting the approach of the UNHCR, as provided for in the UNHCR documents and international jurisprudence developments, as follows.
The Background Note states that:
In reaching a decision on exclusion, it is therefore necessary to weigh up the gravity of the offence for which the individual appears to be responsible against the possible consequences of the person being excluded, including notably the degree of persecution feared. If the applicant is likely to face severe persecution, the crime in question must be very serious in order to exclude the applicant.[31]
[31] UNHCR Background Note on the Application of the Exclusions Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, p29
Further, in the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook) it states that:
Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive. (emphasis added)[32]
[32] UNHCR’s Handbook on Procedures and criteria for determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992, paragraph 149
The restrictive interpretation of the exclusion clauses is reinforced in the UNHCR Statement on Article 1F of the 1951 Convention, Issued in the context of the preliminary ruling references to the Court of Justice of the European Communities from the German Federal Administrative Court regarding the interpretation of Articles 12(2)(b) and (c) of the Qualification Directive (UN Statement) as follows:
As with any exception to human rights guarantees, and given the possible serious consequences for the individual, the exclusion clauses enumerated in Article 1F should always be interpreted in a restrictive manner and applied with utmost caution, and in light of the overriding humanitarian character of the 1951 Convention.[33]
[33] UNHCR Statement on Article 1F of the 1951 Convention, Issued in the context of the preliminary ruling references to the Court of Justice of the European Communities from the German Federal Administrative Court regarding the interpretation of Articles 12(2)(b) and (c) of the Qualification Directive, p7
The UN Statement makes it abundantly clear that:
…the acts in question be assessed against the exclusion grounds, taking into account the nature of the acts, as well as the context and all individual circumstances in which they occurred…it must be established, in each case, that the individual concerned committed a crime which is covered by one the sub-clauses of Article 1F, or participated in the commission of such a crime in a manner which gives rise to criminal liability in accordance with internationally applicable standards.[34]
[34] Ibid.
Section 2.2 of the UN Statement provides further guidance on the restrictive nature of the interpretation of section 5H(2)(a) of the Act and the legal test of “serious reasons for considering”. The criminal act leading to the exclusion under section 5H(2)(a) of the Act involves a “high degree of seriousness” and individual responsibility for the criminal acts “arises where the individual committed or made a substantial contribution to the act in question, in the knowledge that his or her act or omission would facilitate criminal conduct”.[35]
[35] Ibid, p9.
The Applicant relies on the UN Statement as a document which provides a basis for the statutory interpretation of section 5H(2)(a) of the Act. In particular, sections 2.2.2 and 4 of the UN Statement provides for the requirements of individual responsibility when applying the test “serious reasons for considering”. Importantly, the UN Statement asserts that:
A high standard of proof applies to the establishment of individual responsibility, requiring “serious reasons for considering” that the person concerned “has committed or “has been guilty” of the relevant excludable acts…[36]
[36] Ibid, p 25.
The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers states that:
For exclusion to be justified, individual responsibility must be established in relation to a crime within the scope of Article 1F…It is necessary to consider whether the individual concerned was personally involved in acts of violence or other excludable acts, or knowingly contributed in a substantial manner to such acts.[37]
[37] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka 21 December 2012, pp40-41
In R (on the application of JS) (Sri Lanka) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 15, the court referred to Mr Roland Schilling, the UNHCR Representative, where he states:
…in cases involving persons suspected of being members of, associated with, or supporting an organisation or group involved in crimes that may fall under article 1F(a), where presumption of individual responsibility for excludable acts may arise, a thorough and individualised assessment must be undertaken in each case. Due regard needs to be given to the nature of the acts allegedly committed, the personal responsibility and involvement of the applicant with regard to those acts, and the proportionality of return against the seriousness of the act.
The cases which the Respondent relies upon in Part Two of his submissions are cases which were heard and decided before the Act codified Article 1F of the Refugee Convention. The Applicant submits that it would be wrong in law to construe “serious reasons for considering” without giving due weight to the UNHCR documents and international jurisprudence, as they provide clear guidance on interpreting the exclusion clauses such as section 5H(2)(a) of the Act.
THE LAW
The Applicant submits that the statutory approach to s 5H(2)(a) of the Act is therefore restrictive, and as such the Applicant, on balance, has not met the threshold for “serious reasons for considering” for the reasons stated in the Applicant’s Closing Submissions.
The difficulty with the Applicant’s proposed approach is that it attempts to sideline the abovementioned relevant authorities of Australian courts as identified by the Respondent.
By way of background, in the Explanatory Memorandum relating to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, the Amendment Act sought to change Australia’s approach to managing asylum seekers by, among other things codifying in the Act Australia’s interpretation of its protection obligations under the Refugee Convention.
The Explanatory Memorandum at page 10, noted that the Amendment Act:
“…removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention. It is not the intention of the Government to resile from Australia's protection obligations under the Refugees Convention but rather to codify Australia's interpretation of these obligations with certain sections of the Migration Act...”
This intention was expressed also by The Honourable Scott Morrison, then Minister for Immigration and Border Protection, in the second reading speech on 25 September 2014:
“Schedule 5 of the bill [i.e., of the Amendment Act] will also create a new, independent and self-contained statutory refugee framework which articulates Australia's interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek, to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions - not those who seek to direct us otherwise from places outside this country ...”
Although direct references to the Refugee Convention have been removed from the Act, the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 states at [1167] that section 5H(1) “is intended to codify Article 1A(2) of the Refugees Convention, as interpreted in Australian case law”.
On balance, after consideration of the competing submissions, the Tribunal finds that the Respondent’s approach to the interpretation of the law and its reliance upon the authorities above, is the correct and applicable approach the Tribunal should take.
THE APPLICANT’S VERSIONS OF THE FACTS AND HIS CREDIBILITY
Over the years the Applicant has had at least six opportunities to tell his story. Unfortunately, these opportunities have resulted in a variety of versions of ‘the facts’ as given by the Applicant.
Extensive inconsistencies and discrepancies occur throughout the various ‘attempts’ the Applicant has made to tell the truth to Australian authorities and to this Tribunal. They are of such a scale that the only efficient way to deal with them is through a table, as helpfully produced by the Respondent, and attached as Annexure A.
The Respondent has identified and summarised the Applicant’s various competing versions of events in its Closing Submissions. This summary is set out in paragraphs 78 to 82 below.
The Applicant has given the following accounts in respect of critical facts:
(a)In his Initial Entry Interview, the Applicant fabricated a detailed story that incorporated elements of the truth.[38] He claimed to have sold items to the LTTE and to have been arrested by the local police for this. He was jailed for three and a half months but during this time “[t]here were no problems, they didn’t hit me…”. He went [overseas]. His village was overrun by the military. He was told to go to a camp but was too scared. He fled to stay at his partner’s house. People told him that the Karuna group (TMVP) was looking for him. A leader from the camp, was looking for him. He also went to stay at his uncle’s house in 2008. There, he worked for a political party, the UMP. The rival TMVP came to know this and started to cause him trouble for him and his family, who encouraged him to leave the country.
[38] Tribunal documents, 64, 77-78. The Applicant’s account begins at page 11 and then continues at pages 22-28. Page 21 appears to be missing.
(b)The applicant then applied for Refugee Status Assessment.
(i)In his Statutory Declaration of 28 January 2010 in support of this application,[39] the Applicant claimed that he had a business buying and selling goods and that the LTTE forced him to supply to them. He was caught by the police, interrogated and beaten up. He fled overseas but returned after being informed that his mother had suffered a stroke. He went to his partner’s place for nine months, then to his uncle’s place until he left Sri Lanka again.
[39] Tribunal documents, 110-12.
(ii)At interview,[40] the Applicant appears to have added his claim to have canvassed for a political party. This caused the losing candidate to become angry. The candidate has been looking for him.
[40] Tribunal documents, 160.
(c)The Applicant applied for review by an Independent Merits Reviewer (IMR).
(i)In a letter to the IMR dated 5 May 2010,[41] the Applicant claimed for the first time to have been a member of the LTTE. He was posted to a supply unit, was arrested and detained by the police. During this time he “suffered serious mistreatment amounting to abuse of his human rights and persecution”. He went overseas, but returned after receiving a fax telling him his mother had suffered a stroke. Upon returning home, he learned that his mother had not suffered a stroke; he had been tricked by the LTTE. He went back to the LTTE and continued to work as a purchasing officer.
[41] Tribunal documents, 169-70.
(ii)The Applicant was interviewed by the IMR on 9 May 2010.[42] He gave yet another version of events regarding his stay overseas, saying that he returned to Sri Lanka because he knew that the LTTE wanted him to. The fax about his mother suffering a stroke was merely a device to allow him to be released from his contract of employment.[43]
[42] Tribunal documents, 198-202.
[43] Tribunal documents, 209 [81].
(d)The Applicant was interviewed by the Australian Security Intelligence Organisation (ASIO) on 1-2 September 2010.[44] The report of the first Independent Reviewer of Adverse Security Assessments (IRASA) contains a detailed summary of what the Applicant said. This is the earliest record, in the Tribunal documents, of the Applicant admitting that he trained and worked as an LTTE intelligence officer.
(e)The report of the first IRASA also refers to two subsequent versions of events.
(i)In a statutory declaration dated 29 May 2013, prepared in support of the Applicant’s application to the IRASA, the Applicant admitted to being an intelligence officer, but in various respects downplayed his role and made statements inconsistent with his ASIO interview.[45] He did not admit his role facilitating Black Tiger operations.
(ii)In his oral submissions to the IRASA on 19 May 2014, the Applicant was asked about the Black Tigers. He claimed only to have heard of them and denied having ever recruited people to take part in suicide missions.[46]
(iii)In his Statutory Declaration of 21 April 2015,[47] prepared in support of his application to the second IRASA, the Applicant claimed to have lied to ASIO about his activities overseas after having fled Sri Lanka, but otherwise to have told the truth to ASIO. However, various aspects of the Statutory Declaration are inconsistent with the report of what he told ASIO.
(f)The Applicant was interviewed by a delegate on 31 January 2017.[48] During this interview, he made various statements that downplay what he told ASIO. Whenever statements that he made to ASIO were specifically put to him, the Applicant either agreed or said he could not remember. At one stage, in a discussion about whether he had forgotten something or was being deliberately misleading, the Applicant relied on the fact that he had “told everything to the ASIO officers”.[49]
(g)The Applicant gave the Tribunal a witness statement on 6 December 2017.
(h)The Applicant gave oral evidence to the Tribunal on 2 and 6 July 2018. Although at one stage suggesting that he may have misled ASIO in other ways that he can no longer recall, the Applicant twice reaffirmed that he had told the truth to ASIO. He agreed with various passages of the first IRASA’s summary of what he had told ASIO, but disagreed that he had attended an interrogation another LTTE operative’s invitation.
[44] Tribunal documents, 230-36.
[45] Tribunal documents, 238.
[46] Tribunal documents, 239.
[47] Joint bundle, tab 8.
[48] Supplementary Tribunal documents.
[49] Supplementary Tribunal documents, 115-16.
It is apparent from Annexure A and the evidence before the Tribunal generally that the Applicant has variously resiled from, downplayed, or claimed that he cannot recall, statements that he made to ASIO.[50]
[50] Annexure A is identical to the aide-memoire tendered at final hearing, save for the addition of a column in relation to the Applicant’s oral evidence, and associated formatting changes.
Oral Evidence
In relation to the IMR process:
(a)When asked about why he decided to tell the IMR about his LTTE membership, the Applicant said: “I realised I have to tell the truth that I was in the movement”.[51] However, when the details were put to him, he conceded that he had not told the truth in relation to his period in detention or his intelligence role. The Applicant said that he feared that he would be detained for longer if he told the whole truth; also, that ASIO had told him that he did not have to tell the whole truth.[52] He said that he was scared that if he admitted to being an intelligence officer, “they may assume that I am an important person and detain me”.[53] When asked whether this was because of the sorts of things that happened in the intelligence wing of the LTTE, he initially claimed: “I do not know about attacking the normal civilians and the movement never told to target civilians”.[54] When asked about the LTTE bombings of the Colombo Central Bank (1996), the Dehiwala train (1996), the World Trade Centre Building in Colombo (1997), the Temple of the Tooth Relic in Kandy (1998) and the Colombo International Airport (2001), the Applicant admitted to knowing of these events but said that he did not know whether the targets were “civilian”.[55] He did, however, admit that another LTTE operative was organising these sorts of attacks.[56] Eventually, he admitted that it was to avoid being associated with this sort of thing that he had concealed his intelligence role from the IMR, adding that he was scared because it was “a big thing” to be in the intelligence wing.[57]
(b)The Applicant later denied that he had misled the IMR by not admitting his intelligence role. When it was put to him again that this was misleading, he said that others had done the same.[58]
[51] Transcript, p 28.
[52] Transcript, p 39.
[53] Transcript, p 40.
[54] Transcript, p 41.
[55] Transcript, p 41-42.
[56] Transcript, p 42.
[57] Transcript, p 42.
[58] Transcript, p 47.
In relation to ASIO:
(a)The Applicant claimed to have told ASIO the whole truth.[59]
(b)Later, the Applicant confirmed this.[60] When asked why he had told the truth to ASIO, he said first that it was because he knew that ASIO was an intelligence organisation and if he lied, they might wonder what else he was hiding. When pressed to explain this, the Applicant claimed that he was motivated by his conscience.[61] When asked why his conscience did not motivate him to tell the truth to the IMR, he claimed that ASIO had told him that he only had to tell the truth to them.[62]
(c)The Applicant was taken to that part of his April 2015 statutory declaration in which he claimed to have misled ASIO in relation to one matter, but to otherwise have told the truth. When asked again whether there were other instances where he had not told the truth to ASIO, the Applicant said that he could no longer recall.[63]
(d)The Applicant was taken to many parts of the summary of what he told ASIO. He generally agreed that it was accurate and that it sounded like information that he had provided to ASIO. The only significant points of disagreement related to the Applicant having attended interrogations during his intelligence training and his later incarceration at a jail base, including his having attended the interrogation of a formerly high ranking LTTE member at an LTTE operative’s request, and then producing the interrogation report. Otherwise, the Applicant agreed with what was put to him save where he said that he could not remember. He said that he could not recall being given an additional role reporting suspected spies upon returning from overseas (a matter which is referred to in his witness statement, at [47.f]).
(e)Towards the end of his evidence, when he was taken to inconsistencies in his statements regarding being overseas, the Applicant, as he had done at his delegate interview, again relied on the fact that he had told the truth to ASIO.[64]
[59] Transcript, p 39.
[60] Transcript, p 48.
[61] Transcript, p 48.
[62] Transcript, p 51.
[63] Transcript, p 51.
[64] Transcript, p 96.
In relation to subsequent statements, it was put to the Applicant that his statutory declaration provided to the first IMR downplayed his Colombo role by saying that it was to try to contact business people who might give support to the LTTE. The Applicant said he could not remember.[65]
[65] Transcript, 81.
Other Evidence
Regarding being overseas, the Applicant admitted that he was recalled for refusing an order to assassinate a high value target and report to an LTTE operative upon his return (see Annexure A, rows 88-89). Regarding these matters, the Tribunal also notes the document at Tab 4 of the joint bundle. This appears to be a re-post of a contemporaneous online article published by the Asian Tribune. It describes how an LTTE operative dispatched an intelligence squad overseas to attempt to win back former LTTE members who had defected to the Karuna Group and were now overseas. The squad was headed by the Applicant. The mission was unsuccessful; whereupon an LTTE operative returned and another LTTE intelligence officer carried out a campaign against a high value target, who was attacked and injured.
THE RESPONDENT’S SUBMISSIONS REGARDING THE APPLICANT’S CREDIBILITY
Consistent with this factual analysis the Respondent submitted that the Applicant is not a credible or reliable witness. The Respondent submitted the following.
The Respondent submitted that the Applicant is not a credible witness. He has repeatedly lied to and misled Australian authorities in order to obtain a favourable outcome. He was rewarded with a favourable outcome when the IMR found that he met the definition of a refugee. This included a finding that Article 1F of the Refugee Convention was not engaged. This finding was based upon the Applicant having been a supply officer in the LTTE.
The Respondent was particularly concerned that the Applicant has continued to mislead Australian authorities since his ASIO interview in September 2010. The extent of this can be gleaned from Annexure A. See, especially:
(a)the Applicant’s apparent attempt to downplay his activities on the frontline before being selected for intelligence training by claiming never to have fired his weapon in the first battle and to have had no real role in subsequent battles (see generally rows 5-27; especially row 11; also compare rows 13 and 26);
(b)the Applicant’s apparent attempt to downplay his exposure to or involvement in interrogation and torture as part of his intelligence training (see rows 38-39);
(c)the different evidence given by the Applicant at different times regarding his intelligence work (row 46) and what he was tasked to do when the village fell (row 47);
(d)the Applicant’s apparent attempt to downplay his role arranging travel in support of intelligence Black Tiger operations (see rows 51, 54 and 56);
(e)the Applicant’s apparent attempt to downplay his presence at an LTTE operative’s base to celebrate the successful Black Tiger attack on Colombo International Airport (see row 59);
(f)the Applicant’s apparent attempt to downplay his later exposure to or involvement in interrogation and torture at a jail base (see rows 72-74);
(g)the Applicant’s inconsistent accounts of why he went overseas and who knew about this (see rows 82-84); and
(h)the Applicant’s apparent attempt to downplay his activities when he was overseas (see rows 85-87).
The Respondent submitted that the Applicant is also not a reliable witness. He has freely admitted that he cannot remember some things or get them in the correct sequence. See, in particular: the Applicant’s statutory declaration of 21 April 2015 at [3],[66] the delegate interview at page 89 and 115,[67] the Applicant’s witness statement at [70],[68] the transcript of evidence at page 81 and the medical schedules tendered by the Applicant at final hearing, which suggest that the Applicant has reported that his memory has been grossly affected.[69]
[66] Joint Bundle, tab 8.
[67] Supplementary Tribunal documents.
[68] Joint Bundle, tab 9.
[69] Exhibit A4.
Dealing with the conflicting evidence
Whilst it seems unlikely that any of the Applicant’s various accounts are entirely accurate, the Respondent submitted that his account to ASIO is the most credible and reliable.
Regarding credibility:
(a)The Applicant has admitted that, until his ASIO interview, he deliberately misled Australian authorities in order to obtain favourable outcomes.
(b)By contrast, the Applicant has given evidence that he felt compelled to tell the truth to ASIO. He has also repeatedly said that he in fact told the truth to ASIO.
(c)This may be contrasted to the Applicant’s subsequent accounts in which aspects of his ASIO account are omitted or apparently downplayed. These subsequent accounts were all given in circumstances where the Applicant must have realised that his intelligence role could cause him to remain subject to an adverse security assessment or be refused refugee status.
As regards reliability:
(a)The Applicant’s ASIO interview occurred in September 2010, less than a year after his arrival in Australia. It is inherently less likely to have been affected by memory issues than any of his subsequent statements. This accords with the first IRASA’s observation that the Applicant answered questions “calmly and without hesitation”, with “minimal probing” by the interviewers.
(b)Whilst it has been suggested by counsel for the Applicant that the report of the first IRASA is hearsay that cannot be tested,[70] this does not give rise to any real reliability concerns.
(i)The first IRASA had access to the audio recordings of the ASIO interview, and listened to these.[71]
(ii)The summary prepared by the first IRASA is detailed. When lengthy extracts were put to the Applicant, he agreed with them. Only rarely did he deny that the IRASA’s summary was accurate.
(iii)The accuracy of the first IRASA’s summary was also confirmed by the second IRASA.[72]
[70] Transcript, 60.
[71] Tribunal documents, 228, 230.
[72] Tribunal documents, 337.
THE APPLICANT’S RESPONSE
In answer to the extensive and substantive attack upon the Applicanat’s credibility and reliability as a witness, the Applicant submitted the following in his Closing Submissions.
The reasons given by the Applicant as to why he has not been truthful about his role in the LTTE accords with the principles of the UNHCR as to why people seeking asylum are not forthcoming with authorities. The UNHCR Handbook states that:
“A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case...Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.”[73]
[73] UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992, paragraphs 198-199.
Further, knowing that a specific LTTE operative was organising attacks falls short of the mens rea and individual criminal responsibility requirements pursuant to articles 25 and 30 of the Rome Statute.
The Applicant submitted that due weight and consideration should be given to a number of factors when deciding on the Applicant’s credibility, including, but not limited to, the following:
(a)the Applicant was under investigation by two Australian authorities, the Minister for Immigration and Border Protection and ASIO. It is submitted that this needs to be considered in light of the number of interviews the Applicant has had during his nine-year detention in Australia, the potential confusion having two authorities question him about his time with the LTTE, and having to tell his story numerous times over a long period of detention;
(b)the Applicant was in effect “between a rock and a hard place”, being told by one authority that he need not tell the other authority everything. This has the potential to cause the Applicant confusion, uncertainty, and being repeatedly interviewed his evidence either becomes watered down, inconsistent, or facts become difficult to remember. This needs to be considered in light of his evidence before the Tribunal;
(c)Further, the fact that the Applicant has incurred a serious mental illness during his detention needs to be considered as a reasonable explanation as to why the Applicant has been unable to recall all events as they took place initially. His mental health should be given due weight in assessing his credibility.
Counsel submitted that the Applicant has not lied to or misled Australian authorities to obtain a favourable outcome. The Applicant is a man seeking asylum, having fled internal armed conflict, and his fear of the Australian authorities is real and explains why he has not been forthcoming with information. The question of the Applicant’s credibility must be viewed within the context of him seeking asylum and his fear of returning to Sri Lanka, where he may be seriously harmed for his ties with the LTTE during the civil war (see paragraph 34 of the Report of the Office of the United Nations High Commissioner for Human Rights Investigation on Sri Lanka dated 16 September 2015).
Even if the Applicant’s evidence is not accepted by the Tribunal, Counsel submitted that on the facts before the Tribunal, on balance, it cannot be said that there are “serious reasons for considering” the Applicant committed war crimes.
The Applicant has been truthful about the reasons why he has not been forthcoming whenever asked about not being forthcoming. His reasons accord with him being a person seeking asylum and fearful of being returned to a place which may cause him harm.
CONCLUSIONS
After consideration of all the material before it (including the Applicant’s oral evidence), the Tribunal finds, on balance, by reason of the scale of the discrepancies and variations in the various versions of ‘the truth’ the Applicant has given over the years (even taking into account the matters raised by the Applicant in addressing such versions) that the Applicant is not a credible or reliable witness. The body of evidence from the Applicant incorporating all the inconsistencies, when analysed, is not credible or reliable. The Tribunal finds that the purported explanations for the inconsistencies and discrepancies are not convincing.
The role of the Tribunal is not to unravel the various versions and make positive findings of fact. The Tribunal is to consider, in light of all the material before it, whether they are ‘serious reasons for considering’ that the Applicant “has committed … a war crime.”
The Tribunal is to investigate what the Applicant knew about the LTTE and its intelligence wing, and what the Applicant did as an intelligence officer.
Travel Arrangements
On the evidence as discussed above, the Applicant has had a role in making travel arrangements to assist covert Black Tiger operations behind enemy lines. The relevant various versions of the Applicant pertaining to travel arrangements are at rows 51, 54, 56 and 90 of Annexure A.
The Respondent submitted that these versions from the Applicant are foundations for the following:
(a)It was well known that an LTTE operative was in charge of intelligence/Black Tiger operations that included bombings behind enemy lines, of what were obviously civilian targets.[74] The Applicant himself knew this. His claim not to know whether certain targets were “civilian” is implausible.[75]
(b)When an LTTE operative was posted to the area where the Applicant grew up as an intelligence leader, the Applicant travelled with him as his assistant. His tasks included helping LTTE operatives by facilitating the travel into enemy controlled areas, such as Colombo. He did this from 1996-1998 and again, upon an LTTE operative’s return to the area the Applicant grew up in 1998, from then until after the ceasefire in February 2002.
(c)The Applicant’s claim that he was not told specific details of particular Black Tiger operations is plausible, given the obvious need for operational security. His claim that such operations were not discussed even after the fact is less plausible and inconsistent with his evidence that his section had received a request to send boys to Colombo for the airport attack, as well as his evidence that he later travelled to join other members of the intelligence wing in celebrating that attack (which was ultimately carried out by Black Tigers from another section).[76]
(d)In any event, given what he knew of a specific LTTE operative’s role, it must have been obvious to the Applicant from the very beginning that the Black Tiger operations were likely to include attacks upon civilian targets.[77]
(e)Furthermore, the Applicant himself told ASIO that he was responsible for sending one of the boys who died in the bombing of the Temple of the Tooth in Kandy. Thereafter, he must have realised that such attacks were a possible consequence of his actions. This is so whether the Applicant was told of the boy’s role, or whether, as he has subsequently claimed, he surmised it from the timing of the bombing in relation to the travel and the fact that he never saw that boy again. The attack in Kandy occurred in 1998. The Applicant told ASIO that he sent nine or ten boys to Colombo between 1998 and 2001.
[74] Human Rights Council, “Report of the OHCHR Investigations on Sri Lanka” (A/HRC/30/CRP.2), 16 September 2015 [223]-[224], Attachment B to the Minister’s Statement of Facts and Contentions and R Ramasubramanian, ‘Suicide Terrorism in Sri Lanka’ (2004) 1(5) IPCS Research Papers 1, 9, 21, Attachment C to the Minister’s Statement of Facts and Contentions.
[75] See 103(a) above.
[76] See Appendix A, row 59. One of the Black Tigers who carried out the attack was Muthappa, whom the Applicant had earlier sent to Colombo.
[77] See [45.1] above
Consistent with the Respondent’s interpretation of the law, which has been accepted by the Tribunal, the Respondent submitted that these matters give rise to “serious reasons for considering” that the applicant “has committed … a war crime” ie “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” per Article 8.2(e)(i) of the Rome Statute.
The Tribunal agrees that the evidence before the Tribunal, as discussed above, supports the stated submissions of the Respondent. The Tribunal accordingly finds there are ‘serious reasons for considering’ that the Applicant “has committed … a war crime”(e)(i) of the Rome Statute as follows:
(a)The elements of this war crime are set out above. They include that ‘[t]he perpetrator directed an attack’; that ‘[t]he object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities’; that the perpetrator intended this; and that the perpetrator was aware of the factual circumstances that established the existence of an armed conflict.
(b)As the Applicant did not himself carry out any such attacks, but rather facilitated the travel of the Black Tigers who did, his criminal responsibility falls to be assessed by reference to Article 25.3 of the Rome Statute, which is set out above. It is sufficient that the Applicant intended to do what he did and that he did so “in the knowledge of the intention of the [LTTE] to commit the crime”. Furthermore, as the Full Federal Court explained in SHCB, there is no need to link the particular contributions of the Applicant to particular attacks upon civilian targets. It suffices that such crimes occurred based on such contributions and that the Applicant knew this when he made his contributions.
Reporting suspected spies
The Applicant’s various statements regarding reporting suspected spies after returning from overseas are summarised in Annexure A at row 90. The Applicant had told ASIO that he reported SLA spies to an LTTE operative (whom he worked under within the intelligence wing). That LTTE operative would then investigate and the suspects would be interrogated at a base in the jungle. This role is confirmed by the Applicant in his witness statement, at [4.7f].
As submitted by the Respondent, the Applicant told ASIO that “based on his reporting … four or five suspected spies were caught and interrogated”.[78] Whilst there is no evidence of what happened to these particular suspected spies during or following their interrogations, the Tribunal should have regard to the following matters:
(a)The Applicant trained at an LTTE jail base where suspects were tortured as part of their interrogation. He witnessed this torture.[79] These suspects include villagers suspected of involvement with the SLA.[80] As part of his training, the Applicant read through completed reports to learn how the SLA used civilians to gather intelligence.[81]
(b)The LTTE’s propensity for extrajudicial killing of suspected traitors and spies was also well known to the Applicant. When asked about the period between 1996-2004, the Applicant described to the delegate how interrogations would be followed by the suspected collaborator being publicly shamed and then shot.[82] The public shaming involved taking the suspected collaborator into the village and announcing particulars of the alleged collaboration, for example identifying members of the LTTE to the SLA.
(c)Accordingly, when he began reporting suspected spies in 2006, the Applicant must have been well aware that this was the first step in a process that would likely result in those persons being interrogated, shamed and executed.
[78] Tribunal documents, 235
[79] See Annexure A, row 39
[80] Statutory declaration, [63].
[81] See Annexure A, row 40
[82] See Annexure A, row 52
The Tribunal accepts the Respondent’s submissions and finds on the evidence that these matters give rise to “serious reasons for considering” that the Applicant “has committed … a war crime”, viz: “murder” and “torture” per Article 8.2(c)(i) of the Rome Statute. The elements of this war crime include that the victim or victims were ‘either hors de combat, or were civilians’ etc; and that the perpetrator was aware of the factual circumstances that established this status. A civilian who provides information to the enemy does not thereby cease to be a civilian and is in any event ‘hors de combat’ once they have been caught. Otherwise, the elements lend themselves to a similar analysis to that undertaken above. It is sufficient that the LTTE treated suspected collaborators in a particular way and that the Applicant knowingly contributed to this by identifying suspected collaborators. It matters not that the Applicant did not himself torture or murder anyone. Nor does it matter that it is not known for a fact that any of the four or five individuals in question were tortured or murdered.
By reason of the findings and analysis above, the Tribunal finds there are serious reasons for considering that the Applicant has committed war crimes as per Articles 8.2(c)(i) and (e)(i) of the Rome Statute – murder, torture and attacking civilians.
By reason of the foregoing, the Applicant does not satisfy either of the criteria for a Temporary Protection Visa as sections 5H(2)(a) and 36(2C) of the Act are engaged.
Further, by reason of the Tribunal’s findings, there is no requirement for this Tribunal to proceed further to decide whether or not the Tribunal can properly examine and make findings in respect of the Applicant and alleged ‘crimes against humanity’.
The Tribunal affirms the decision under review.
I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Mr A Maryniak QC, Member
[sgd]........................................................................
Associate
Dated: 5 April 2019
Date(s) of hearing: 2 and 6 July 2018 Date final submissions received: 14 September 2018 Counsel for the Applicant: Madeleine Bridgett Solicitors for the Applicant: Rasan T. Selliah & Associates Counsel for the Respondent: James Forsaith Solicitors for the Respondent: Australian Government Solicitor Annexure A
Total: 12 pages
(Pages 41 to 52)
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