HVKV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 1971
•29 June 2023
HVKV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1971 (29 June 2023)
Division:GENERAL DIVISION
File Number: 2016/7068
Re:HVKV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member S Burford
Date:29 June 2023
Place:Perth
The decision of the delegate of the Respondent to refuse the Applicant the grant of a Protection (Class XA) (Subclass 866) visa under s 36(2) of the Migration Act 1958 (Cth) is set aside and remitted for reconsideration with a direction that sections 5H(2) and 36(2C)(a) of the Migration Act do not apply to the Applicant.
............[Sgd]............................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – s 36(2) – non-citizen in Australia in respect of whom Australia has protection obligations – real risk that the Applicant will suffer significant harm – feared persecution on account of political opinion – perpetration of serious non-political crimes before entering Australia – crimes against humanity – Tribunal not satisfied there are “serious reasons” for considering that the Applicant committed crimes against humanity or serious non-political crimes before entering Australia – decision set aside and remitted with a direction that sections 5H(2) and 36(2C)(a) of the Act do not apply to the Applicant
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 17B, 19A(1), 25(4A), 43(1), 43(1)(c)(ii)
Migration Act 1958 (Cth) ss 5H, 5H(1), 5H(2), 5H(2)(a), 5H(2)(b), 5H(2)(c), 5J, 36(1C), 36(2), 36(2)(a), 36(2)(aa), 36(2C), 36(2C)(a), 36(2C)(a)(i), 36(2C)(a)(ii), 36(2C)(a)(iii), 65, 338, 411(1)(c)(iii), 500(1)(c)(ii)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth) – Reg 2.03B
CASES
Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624
Al Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2013] 1 AC 745
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
GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602
GZCK v Minister for Home Affairs [2021] FCA 1618
MICMSMA v CPJ16 [2019] FCA 2033
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
N96/1441 and Minister for Immigration and Multicultural Affairs [1998] AATA 619
Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10, 16 December 2011
Prosecutor v Jean-Pierre Bemba Gombo et al, Appeals against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute”, ICC-01/05-01/13, 8 March 2018
Prosecutor v Jean-Pierre Bemba Gombo et al, Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/13, 19 October 2016
R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184
SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561
SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1
SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9
The Prosecutor v Germain Katanga, ICC-01/04-01/07, 7 March 2014
WBR and Minister for Immigration and Multicultural Affairs [2006] AATA 754
W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618
W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948
ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28
SECONDARY MATERIALS
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Articles 1F, 1F(a), 1F(b), 1F(c)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
International Criminal Court, Elements of Crimes (2013) Articles 7(1)(a), 7(1)(f)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Articles 7, 7(1)(a), 7(1)(e), 7(1)(f), 9, 22, 25, 25(3), 25(3)(a), 25(3)(c), 25(3)(d), 25(3)(d)(i), 30, 31
REASONS FOR DECISION
Senior Member S Burford
29 June 2023
The APPLICATION
On 15 March 2016, a delegate of the Respondent exercising power under section 65 of the Migration Act1958 (Cth) (the Migration Act) found serious reasons for considering that the Applicant, who is a citizen of Libya, had committed serious non-political crimes before entering Australia and that he had committed crimes against humanity, engaging ss 5H(2)(a) and (b) and 36(2C)(a)(i) and (ii) of the Migration Act. On the basis of those findings, the Applicant’s application for a Protection (Class XA) (Subclass 866) visa (the Visa) was refused.[1]
[1] R2, T2, pages 9-30.
The Applicant seeks a review of the decision to refuse the visa. This is the Reviewable Decision.
Due to the nature of the relevant visa in this matter and by reason of section 501K of the Migration Act, the Applicant is not identified in this decision and various aspects of these reasons have been edited accordingly.
BACKGROUND
The Applicant is a 43-year-old citizen of Libya. He was born in Mezda in the Tobqua District of Libya in 1979.[2] He is ethnically Arab and a Sunni Muslim.[3]
[2] R2, T3, page 116.
[3] R2, T3, page 48.
He is married to Ms A and arrived in Australia as a dependant on his wife’s Student (Temporary) (Class TU) visa in August 2010.[4] His wife was the holder of a scholarship issued by the former Libyan Government, headed by Colonel Muammar al-Gaddafi (Gaddafi). The Applicant and his wife have three children, a son and two daughters, who were born in Australia in 2011, 2013 and 2015.[5] His father is deceased. His mother and all but one of his nine siblings remain living in Libya. His eldest brother lives in Tunisia.[6]
[4] Delegate’s decision, R2, T2, page 9; R2, T2, pages 127, 129 and R2, T9, page 248.
[5] R2, T3, pages 114-115 and 248.
[6] A1; R2, T3, pages 40, 51 and 85.
On 29 December 2011, the Applicant, his wife, and their son returned to Libya.[7] The Applicant returned to Australia on 16 January 2012.[8] His wife returned on 13 February 2012.[9] Their son was left in Libya in the care of relatives. The Applicant’s wife made another return trip to Libya from 20 May 2013 to 15 July 2013 with her then infant daughter. Again, their son remained in Libya in the care of relatives when they returned to Australia.
[7] Delegate’s decision, R2, T2, page 9.
[8] Delegate’s decision, R2, T2, page 9.
[9] Delegate’s decision, R2, T2, page 9; R1, T4, page 142.
The Applicant was granted a study visa in his own right on 31 August 2012[10] and a further Student (Class TU) visa as a dependant of his wife on 11 June 2014. That visa was due to expire on 15 March 2015.[11]
[10] R9, page 18.
[11] Delegate’s decision, R2, T2, page 9.
The Applicant lodged the protection visa application on 13 January 2015.[12] The Applicant’s wife and oldest daughter were also applicants for the visa but did not raise their own claims for protection. The Applicant’s youngest child was born after the application was made. She was added to the application on 2 December 2015.[13] The Applicant’s son remained in Libya and was not included in the application for the visa.
[12] R2, T3, page 35.
[13] R2, T9, pages 239-247.
In his statement which accompanied his application, the Applicant claimed to fear harm in Libya based on his support for “Brother Gaddafi” and his work as a volunteer of the Gaddafi regime’s “Revolutionary Committees” in which he, among other things, wrote reports on activities and persons who might pose a threat to the government. The Applicant continued this work even while in Australia. After the fall of Gaddafi, the Applicant’s role as an informer became known and he fears harm from the militias now operating in Libya.[14]
[14] R2, T3, pages 32-33.
In a letter dated 18 November 2015, the Applicant was invited to attend an interview “to discuss your visa application and your claims that you are a person in respect of whom Australia has protection obligations”.[15] The Applicant was interviewed by the Department of Immigration and Border Protection, now subsumed into the Department of Home Affairs (the Department) about his protection visa application on 16 December 2015. According to the delegate’s decision an opportunity was provided for the Applicant to make post-interview submissions, however no further submissions were received.
[15] R2, T7, pages 224-232.
The visa application was refused on 15 March 2016.[16] As a result of statements made at that interview, the delegate found that the Applicant had a well-founded fear of persecution as defined under s 5J of the Migration Act, but that he did not satisfy the definition of refugee in s 5H of the Migration Act due to the operation of s 5H(2)(a) and (b). The delegate also found that the Applicant faced a real risk of significant harm if he were involuntarily returned to Libya, but that he did not satisfy the criterion in s 36(2)(aa) of the Migration Act because of the operation of s 36(2C)(a)(i) and (ii). The other members of the Applicant’s family who were applicants for the visa were also refused as members of the same family unit. The Applicant’s claims and the delegate’s decision are considered further below.
[16] R2, T2, pages 4-30.
On 31 March 2016, the Applicant lodged an application with the Tribunal seeking review of the Reviewable Decision.[17] The application for review was made to the Migration and Refugee Division (MRD) of the Tribunal. The application included the other applicants for the protection visa, the Applicant’s wife, and daughters.
[17] R2, T1, pages 1-3.
It appears that it took some time for the Tribunal Registry to identify that the application with respect to the Applicant as the person refused a visa because of the operation of ss 5H(2)(a) and (b) and ss 36(2C)(a)(i) and (ii) and therefore, should be in the General Division (GD) of the Tribunal with respect to the Applicant, given that the Registry wrote to the Respondent on 2 April 2020 notifying the Respondent of the application for review. The application for review with respect to the other applicants (the Applicant’s wife and daughters) was assigned to the MRD as a protection visa refusal.
According to Tribunal records, on 15 June 2020, the Respondent requested that the President of the Tribunal make a direction pursuant to subsection 19A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that the Tribunal be constituted by a Member assigned to both the MRD and the GD for the purposes of the proceedings. The Respondent also requested that the proceeding in the application before the GD be heard together with the proceeding in the MRD of the members of the family unit who were applicants for protection visas. The Respondent also sought orders that evidence in one application be evidence in the other application.
The Deputy President delegated to manage constitution of cases in the Western Australian Registry considered that application or that request, but determined that the matters should be heard separately. This was communicated to the parties at a directions hearing on 12 August 2020.
ISSUE
A person may be eligible for a protection visa, where the person is a non-citizen in respect of whom the Minister is satisfied that Australia has protection obligations, by virtue of their status as a refugee (ss 5H(1) and 36(2)(a) of the Migration Act) or because they are owed complementary protection (s 36(2)(aa) of the Migration Act).
However, if the Minister is satisfied that there are serious reasons for considering that the person committed a crime against humanity or a serious non-political crime before they entered Australia, the person does not satisfy the definition of a “refugee” in s 5H(1) of the Migration Act by operation of s 5H(2)(a) of the Migration Act. Similarly, s 36(2C)(a) of the Migration Act provides that the criteria for complementary protection are not satisfied if the Minister has serious reasons for considering that an applicant has committed a crime against humanity or a serious non-political crime before they entered Australia.
Before the Tribunal, the Respondent submitted that it no longer contended that the Applicant had committed serious non-political crimes before entering Australia. These submissions are considered further below.
The issue for determination in this application is whether the Tribunal is satisfied that there are “serious reasons” for considering that the Applicant committed crimes against humanity or serious non-political crimes before entering Australia.
For the reasons detailed below, the Tribunal is not satisfied there are “serious reasons” for considering that the Applicant committed crimes against humanity or serious non-political crimes before entering Australia.
THE HEARING
The application was heard by the Tribunal on Monday 7 December 2020 (Day One), Tuesday 8 December 2020 (Day Two), Tuesday 22 December 2020 (Day Three) and Wednesday 10 February 2021. Written submissions followed the hearing.
Ms Claire Faulkner appeared on behalf of the Applicant. Ms Rachel Francois of counsel appeared on behalf of the Respondent, instructed by Ms Jennifer Strugnell of Minter Ellison.
The Applicant and Ms Faulkner appeared in person for the first three days of the hearing, and by videoconference on the fourth day of the hearing, due to COVID-19 restrictions in place at that time. Ms Francois and Ms Strugnell appeared via videoconference from Sydney for each day of the hearing.
The hearings were conducted with the assistance of experienced interpreters in the English and Arabic languages. Several hearings were required due partly to issues which arose with interpreting services.
On the first day of hearing there were issues raised with respect to the interpreter. The Tribunal notes that at the commencement of the first day of the hearing the Applicant indicated that he wanted everything interpreted during the proceedings as it would give him an opportunity to express himself in his language and think in his language. He indicated that he did not need opening statements translated by the interpreter. The Tribunal notes that occasionally the Applicant responded spontaneously to questions in English.
During the Applicant’s evidence in chief, the Respondent raised an issue about the clarity of the evidence through the interpreter and the interpreter’s capacity to deal with the complexity of the evidence and a disparity in the level of sophistication of the written as opposed to oral evidence. As a result of the raising of this concern, the Tribunal adjourned the proceedings and arranged a Level three NAATI interpreter to be engaged. That interpreter was only available by telephone and the parties raised no objection to using a phone interpreter. The hearing proceeded with an alternative interpreter by telephone.
Cross-examination of the Applicant did not get completed that day and the proceedings were adjourned to the next day. The NAATI three interpreter from Day One was not available on Day Two and an alternate NAATI three interpreter was engaged by phone for Day Two. At the commencement of that day the Applicant indicated that he was able to understand the interpreter. However, during the continuation of his cross-examination he raised a concern that he was not being interpreted accurately.[18] However, the interpreter indicated she may have misheard a word and the evidence continued, however the issue arose again, and the interpreter indicated that she may not be hearing clearly through the phone. The Tribunal adjourned briefly. On resumption, the Tribunal indicated the proceedings could either proceed with the Applicant raising an issue if he was concerned he was not being accurately interpreted (as he had demonstrated he had the capacity to do so) or the proceedings could be adjourned to another day when alternate interpreting arrangements could be made. The Applicant indicated a desire to continue. The hearing was adjourned for the Applicant to confer with his representative and on return the Applicant indicated he wished to adjourn to another day and proceed with the interpreter from the first day if possible. The hearing was adjourned.
[18] Transcript, 8/12/20, pages 72-73.
The hearing proceeded on Day Three with the original NAATI three interpreter by telephone. No issues arose during that hearing. The Applicant’s wife commenced evidence on that day. She also used the services of the interpreter though she also responded spontaneously in English to some questions. Cross-examination of that witness was not able to be completed on that day and the intervention of the Christmas period meant the hearing was adjourned until the new year.
On the afternoon prior to the fourth day of the hearing, the Tribunal was informed the interpreter used in the previous hearings was not available for medical reasons and that the interpreter would not be available again for a month. Following consultation with the parties, the hearing proceeded with an alternate interpreter. Again, the Applicant’s wife responded in a combination of English and Arabic. While this required some of her responses to be repeated, no issue were raised with interpreting services on the final day of the hearing.
The following documents were admitted into evidence (on Day One and Day Three of hearing):
·Applicant's Statement of Facts, Issues and Contentions, dated 9 October 2020 (Exhibit A1);
·Applicant's submissions in reply, dated 30 November 2020 (Exhibit A2);
·BBC news story, ‘Libyan diplomat Omar Brebesh dies "under torture"’, story dated 3 February 2012, submitted in the Applicant's Bundle on 30 November 2020, on pages 26-28 (Exhibit A3);
·Draft witness statement of the Applicant, dated 28 November 2020, submitted in the Applicant's Bundle on 30 November 2020 on pages 1-15 (Exhibit A4);
·Draft witness statement of the Applicant’s wife, Ms A, dated 28 November 2020, submitted in the Applicant's Bundle on 30 November 2020 on pages 16-24 (Exhibit A5);
·Respondent's Statement of Facts, Issues and Contentions, dated 13 November 2020 (Exhibit R1);
·Respondent's T-Documents, dated 30 April 2020 (Exhibit R2);
·Respondent's Supplementary T-Documents, dated 13 November 2020 (Exhibit R3);
·Affidavit of Emily Kate Hill, affirmed on 11 November 2020, including transcript and audio file, dated 4 December 2020 (Exhibit R4);
·Ministers Bundle, dated 13 November 2020 (Exhibit R5);
·Bundle of International Instruments, dated 13 November 2020 (Exhibit R6);
·Green Book by Muammar al-Gaddafi (Exhibit R7);
·Screenshot of the Applicant's LinkedIn profile (Exhibit R8);
·Copy of application for Ms A’s student visa, consisting of pages 1-31 (Exhibit R9); and
·Libya 2019 International Religious Freedom Report from the Office of International Religious Freedom, United States Department of State (Exhibit R10).
Following the hearings, closing submissions were made in writing. With the agreement of the parties, the Respondent filed closing submissions first on 1 April 2021. The Applicant filed closing submissions on 24 April 2021. The Respondent filed closing submissions in reply on 19 May 2021.
The Respondent volunteered to file their closing submissions first to clarify the findings sought by the Respondent, including with respect to whether the Tribunal should find that the Applicant did not meet the refugee criterion under s 5H or the complementary protection criteria in s 36(2)(aa), hence the exclusion provisions did not arise. This issue is addressed further below.
On 27 June 2022 the Respondent emailed the Tribunal to draw the Tribunal’s attention to the decision of GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602 (GWRV). The Tribunal invited the Respondent to make written submissions with respect to the impact of this decision on the Tribunal’s consideration of the application. Those submissions were made on 10 July 2022. The Applicant was provided with an opportunity to make submissions in reply, however the Applicant indicated on 4 July 2022 they had no further submissions to make.
RELEVANT LAW
As noted above, a person may be eligible for a protection visa, where the person is a non-citizen in respect of whom the Minister is satisfied that Australia has protection obligations, by virtue of their status as a refugee (ss 5H(1) and 36(2)(a) of the Migration Act). However, if the Minister is satisfied that there are serious reasons for considering that the person committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime before they entered Australia, the person does not satisfy the definition of a ‘refugee’ in s 5H(1) of the Migration Act by operation of s 5H(2)(a) of the Migration Act.
Section 5H of the Migration Act provides:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non‑political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
(Original emphasis.)
Section 5H(2) was enacted to codify Articles 1F(a), 1F(b) and 1F(c) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together referred to as the Refugees Convention).[19]
[19] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), at [1173] (Explanatory Memorandum); R6.
Article 1F of the Refugees Convention states that:
F.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.
Section 36(2)(aa) sets out the ‘complementary protection’ criterion for a protection visa. Section 36(2C)(a)(i)-(iii) provide that the criterion for complementary protection are not satisfied if the Minister has serious reasons for considering that any one of three circumstances exists which are identical to those set out in s 5H(2)(a)-(c), being:
(a)the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; …
The result of the operation of the provisions of the Migration Act with respect to s 5H(2)(a)-(c) and 36(2C)(a)(i)-(iii) is that the Applicant’s ineligibility for a protection visa both on refugee and complementary protection grounds turns on the same question of whether there are serious reasons for considering that one or more of the prescribed circumstances in ss 5H(2)(a) and 36(2C)(a)(i) exist.
In the Applicant’s case, the delegate found that he had committed crimes against humanity and serious non-political crimes before entering Australia through acting as an informant for the Gaddafi regime.
Regulation 2.03B of the Migration Regulations 1994 (Cth) provides that:
For paragraph 5H(2)(a) and subparagraph 36(2C)(a)(i) of the Act, each international instrument that defines a crime against peace, a war crime or a crime against humanity is prescribed.
The Regulation goes on to set out ‘examples’ of international instruments that may define crimes against peace, war crimes or crimes against humanity as referred to in s 5H(2)(a) and 36(2C)(a)(i). Those instruments relevantly include the Rome Statute of the International Criminal Court (ICC).[20]
[20] Done at Rome on 17 July 1998; R6.
The Articles of the Rome Statute relevantly provide:[21]
[21] R6.
Article 7
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
…
(e) Imprisonment;
…
(f) Torture;
…
2. For the purpose of paragraph 1:
(a)“Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
…
(e)“Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
The Elements of Crimes published by the ICC in 2013 pursuant to Article 9 of the Rome Statute (the Elements of Crimes) provides further detail for the elements of each of these crimes, including with respect to murder and torture as follows:
Article 7(1)(a)
Crime against humanity of murder
Elements
1. The perpetrator killed one or more persons.
2.The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3.The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.
...
Article 7(1)(f)
Crime against humanity of torture
Elements
1.The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2.Such person or persons were in the custody or under the control of the perpetrator.
3.Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.
4.The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5.The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
…
(Footnotes omitted.)
Article 22 of the Rome Statute provides that the definition of a crime shall be strictly construed and shall not be extended by analogy.
The Rome Statute also has Articles relevant to accessorial criminal responsibility and the requisite mental element. Article 25 provides with respect to individual criminal responsibility:
3.In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a)Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b)Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c)For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d)In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i)Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime; …
Article 30 provides with respect to the mental element:
1.Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b)In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3.For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.
Articles 25(3)(c) and (d) are forms of accessorial liability on the basis that the accused ‘aids, abets or otherwise assists’ in the commission of the crime or the accused ‘in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose’ respectively.[22]
[22] See discussion GWRV.
The Rome Statute has Articles dealing with defences to the crimes set out above (see Article 31 under ‘Grounds for excluding criminal responsibility’).
Prior to the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amendment Act), the Migration 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 encompassed Article 1F of the Refugees Convention.
The High Court considered what was meant by ‘serious reasons for considering’ in FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 (FTZK) where 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.
Their Honours cited with approval the 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.
In addition to citing these remarks, Crennan and Bell JJ,[23] also referred at [72] to the observation of French J 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.[24]
[23] At [80].
[24] Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, 563 (Dhayakpa).
The Migration Act as amended adopts the language of Article 1F of the Refugee Convention referring to ‘serious reasons for considering’. And the Federal Court in ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28, confirmed that the phrase in s 36(2C) of the Migration Act as amended should be interpreted in the manner described by the High Court in FTZK at [15]–[26].
According to the authorities, “serious reasons for considering” does not require evidence of a formal charge or conviction,[25] or a positive or concluded finding about the commission of the crime or act; rather, it is sufficient that there be strong evidence of its commission.[26] There is no requirement that there be jurisdiction to actually try the person under the international instrument that defines the crime in question and the circumstances required to establish individual criminal responsibility.[27]
[25] Ovcharuk v MIMA (1998) 88 FCR 173 at 179; SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1 at [79] (SRYYY).
[26] Dhayakpa v MIEA (1995) 62 FCR 556 at 563, Ovcharuk v MIMA (1998) 88 FCR 173, Arquita v MIMA (2000) 106 FCR 465, WAKN v MIMIA (2004) 138 FCR 579; see also SRYYY at [79].
[27] SRYYY.
There are various international instruments to which the Tribunal might have regard,[28] however the delegate’s decision and submissions before the Tribunal focussed upon the Rome Statute[29] and in particular the provisions relating to crimes against humanity.
[28] See Migration Regulations 1994, reg 2.03B; Also SRYYY at [72]-[73].
[29] Adopted on 17 July 1998 and entered into force on 1 July 2002.
THE DELEGATE’s DECISION
As noted above, on 15 March 2016 a delegate of the Respondent decided to refuse the visa.[30]
[30] R2, T2, pages 4-30.
According to the decision record, the delegate found the Applicant had a well-founded fear of persecution as defined under s 5J of the Migration Act, but that he did not satisfy the definition of refugee in s 5H due to the operation of s 5H(2)(a) and (b). The delegate also found that the Applicant faced a real risk of significant harm if he were involuntarily returned to Libya, but that he did not satisfy the criterion in s 36(2)(aa) of the Migration Act because of the operation of s 36(2C)(a)(i) and (ii).
The delegate summarised the Applicant’s claims for protection as detailed in his application and supporting statement as follows:
·He is a member of the Al-Zintan tribe.
·At the beginning of 2004, he volunteered to work with the Revolutionary Committees (RCs) after completing a training course in relation to Colonel Gaddafi’s Green Book.
·He attended the office of the RCs in Tripoli on a monthly basis to report to his superior.
·He volunteered to work with the RCs to gain some benefits and privileges that are available to members of the committees.
·He was promoted to be an officer of Security and Safety in one of the oil and gas companies that he was working for.
·He was required to report to Colonel Mustafa Kamel who worked in the Ministry of the Interior and has since fled Libya.
·His role was to write periodical reports about the security situation in the company in addition to observing any suspected activities which might pose a threat to the government. All of the reports bear his full name, occupation, and employment number.
·A few months after his arrival in Australia in 2010, the disturbances started in Libya and he did what he could to support the regime.
·Militias burned his family home after looting its contents.
·The rebels took control of the RCs bureaus and seized piles of documents and reports written by him.
·Rebels reached his house, located on the road to Tripoli Airport and questioned his family about him. They were told he was abroad and they raided his house many times and threatened to arrest his siblings if he did not show up. The militias then attacked, looted the house and then burnt it.
·His brother was a Colonel in the Libyan army and was kidnapped several times. He was released in a prisoner exchange and now lives in Tunisia.
·He travelled to Libya in 2011 in exceptional circumstances.
·He cannot rely on state protection and he cannot return to Libya as he is wanted for being loyal to the previous regime and his political activities as a supporter of Gaddafi and his secular ideology.
As noted above, the Applicant was interviewed by the Department in relation to this application on 16 December 2015. His then representative attended the interview by telephone.[31] The delegate summarised the statements made by the Applicant at his interview with the Department as follows:
[31] Exhibit R4, EKH-2.
·His home in Tripoli was destroyed when the airport was attacked in July 2014.
·His mother and two sisters had been living at the house in Tripoli on and off, but because of the burglaries and break-ins which occurred after the fall of Gaddafi regime they went to live with an uncle in Al-Zintan.
·He has one or two bothers in Tunisia and his other brothers are living in various locations in Libya, including in Al-Zintan.
·His wife obtained her scholarship due to her academic results and through Colonel Kamel who is a relative of his wife and knew people in the regime. His wife’s family live in Janzour in Tripoli.
·One of his wife’s brothers was killed by an armed group which was the reason they returned to Libya in December 2011. Her brother had been participating a fight at a checkpoint with pro-Gaddafi rebels and was killed by an anti-aircraft gun.
·He joined the RCs to obtain privileges and advantages and to build a better future for himself and cited the need to have connections to get a job. He went and spoke to Colonel Kamel who promised him a job working for them as a result of their relationship.
·He continued his involvement with the RCs until he left Libya in 2010 and continued to follow up events there because he believed the Gaddafi regime was much better than any other system in Libya.
·During his training course he undertook in 2004, he had to learn how to investigate and identify individual’s ideologies, for example, whether they were religious.
·He was appointed to work for the RCs upon completion of the training. He was told by the RCs that since he was working with the gas companies, he could communicate with them.
·He did not consider his work a ‘spying’, but more working towards protecting the country’s assets.
·He cited the Libyan Fighters Group, established by Sami Asad bil Haj and Khaled Al Sharif as presently being in control of parts of Libya. Their aim has been to capture the oil fields and oust the Gaddafi regime.
·His security reports were comprised of a description of the person in question, their address, their ideology and thoughts, their social activities, movements, and interactions. As the end of the report, he included his details so that his superiors could identify how many reports he had provided. He would penetrate the depth of their families.
·The reports were given to Colonel Kamel who in turn reported to internal security where personnel would review the reports.
·He emphasised he was a very small employee that he was right at the bottom and ‘very far’ from Gaddafi whom he never met. He did not know who was above Colonel Kamel and did not know the people closest to Gaddafi. Those people were always rotated.
·As to the fate of the people that he reported, people were being taken, imprisoned, interrogated and killed. Regarding killing, the regime did not ‘spread the news’. However, he knew that people he reported would have been tortured and/or killed. Sometimes, when he reported to the bureau, he could hear people being tortured. There was a prison adjacent to the bureau (they were in the same complex).
·When he visited Libya and held discussions with his family, they discussed the very real chance (90%) that the rebels would obtain reports he had written and realise that he was working for the Gaddafi regime.
·He had wanted to stay longer, but due to the pressure of these fears he cut his trip short.
·His brothers have been able to remain in Libya because they have a different experience to him and are not pro-Gaddafi.
·The three reasons for returning to Libya in December 2011 were:
oHe wanted to discuss with the family “issues regarding himself”. He had information that the security system and border system was down so anybody could enter the country without anyone knowing;
oHe was under pressure from his wife to go back because her brother had been killed; and
oThey were suffering financial hardship in Australia, and they wanted to leave their son in Libya due to the cost of childcare in Australia impacting their capacity to work and study. The family pressured him to keep him there. They agreed that when the situation improved someone would bring him to Dubai or Egypt.
·He sent his wife to collect their son because her name is unknown and because “Arabic integrity” would prevent people from harming her as a lady.
·Their son was not brough back to Australia because his visa had expired and they could not renew his visa while he was offshore.
·Following the February 2011 uprising, the applicant infiltrated the Libyan Society of Western Australia and collected information about Libyan students or residents in Perth (including those on Gaddafi government scholarships) who were expressing anti Gaddafi views. He also used to go to Friday prayers where he would meet various people. He would organise social gatherings and invite members of the community. He reported names back to Colonel Kamel. He knew that if any of the people returned to Libya they would be harmed, including facing 20 years imprisonment.
The delegate’s decision notes that it was put to the Applicant that he had voluntarily returned to Libya merely two months following the fall of the Gaddafi regime despite fearing persecution on account of being a Gaddafi loyalist and he restated his reasons for travelling to Libya. It was also put to the Applicant that he had delayed seeking protection for three years. He explained that they were not thinking about staying in Australia and his wife was against staying. He said that she said his application for protection would be rejected because of his past work and that he was worried the Australian authorities might be after him.
The decision record indicates that it was put to the Applicant that he had claimed in his protection application that his house had been raided, looted, and destroyed by rebels, but in his financial assistance application to the Department in November 2015, he had stated that it was destroyed collaterally during the civil war. The Applicant responded that when he said the house was destroyed by militias, he was referring to the “granny flat” annex to another house belonging to his family. He was provided with a further opportunity to respond to this information in post hearing submissions but none were received.
The delegate considered the Applicant’s claims were largely consistent with independent country information regarding the “multilayered, pervasive surveillance system that monitored and controlled the activities and everyday lives of individuals” in Libya during the four decades of the Gaddafi regime.[32]
[32] R2, T2, page 16.
Having regard to the material the delegate found as follows:[33]
I accept that the applicant was an informer and contributed to the former regime’s surveillance system through his work in the oil and gas sector, and that he was involved with the Revolutionary Committees. I accept that he wrote surveillance reports which included his name, but that he was a low-level associate of the regime. He continued to make his contribution even after arriving in Australia by reporting names rebel sympathisers. I also find that through his efforts, both in Libya and in Australia, he knew that he was contributing to the ability of the former regime to quell opposition and dissent through repression and human rights violations.
However, I do not accept that his house was targeted and destroyed by rebel militias, as this is contradicted by statements that he made to the Department to obtain financial assistance. In that application, he said that his house was destroyed in July 2014 as part of the attack on the airport, which was close to his house. I find that the applicant fabricated this aspect of his claims in an effort to strengthen his claim to be targeted on account of being a Gaddafi loyalist.
In the absence of indications to the contrary I have given the applicant the benefit of the doubt in accepting that one of the applicant’s brothers was part of the Libyan Army and fled to Tunisia after surviving a number of kidnappings.
Having regard to the totality of the material for me, I find that the applicant would have a low profile as a Gaddafi loyalist.
[33] R2, T2, pages 17-18.
On the basis of these findings, the delegate found there was a real chance of persecution for reasons of the Applicant’s political opinion.
The delegate also found that there were “serious reasons for considering that the Applicant perpetrated serious non-political crimes before entering Australia, namely, being an accessory to murder and being an accessory to torture”, noting those crimes were punishable under Australian law at the time of commission.[34] In doing so the delegate gave weight to the Applicant’s “confession” during the interview that he knew there was a high likelihood that the people he was reporting on would be killed or tortured. The delegate also placed weight on the fact that the Applicant’s “entire claim for protection is based on his informing or reporting activities with a view to removing or mitigating threats to the Qadhafi regime”.
[34] R2, T2, page 24.
The delegate also found that the Applicant’s conduct fell within Article 7 (Crimes Against Humanity) of the Rome Statute of the International Criminal Court and Article 25 (Individual Criminal Responsibility) on the basis that the Applicant admitted he knew what would happen to those he informed on.[35]
SUBMISSIONS
[35] R2, T2, page 26.
Applicant’s submissions
Before the Tribunal, the Applicant submitted that the exclusion clauses in ss 5H(2)(b) and 36(2C)(a)(ii), and ss 5H(2)(a) and 36(2C)(a)(i) of the Migration Act, did not apply to the Applicant, and he therefore satisfies the requirements of s 36(2)(a) and 36(2)(aa) of the Migration Act.[36]
[36] A1, page 8.
The Applicant contended that the evidence before the delegate was not capable of supporting “serious reasons for considering” that the Applicant has committed a serious non-political crime or a crime against humanity. The Applicant contended that the delegate misrepresented the Applicant’s evidence at interview, contending that the relevant section of the interview recording made it clear that the Applicant made no assessment of the likelihood that individuals he reported could be killed or tortured – he was asked only whether he was aware that there was “a possibility” that those he reported “could” be killed or tortured, and he answered with only one word (“yes”). The Applicant contended that an awareness that something could happen is quite different to knowledge that something is “highly likely” to happen.
The Applicant contended that at interview, he specifically stated that he would only know if someone whose words or actions he reported was subsequently investigated, interrogated, or imprisoned, but nothing “beyond that”. The Applicant submitted that there were no serious reasons for considering that the Applicant had knowledge that reporting someone’s suspicious words or conduct to the Libyan authorities was “likely” let alone “highly likely” to result in torture or murder of that person. The Applicant contended that his reports were not even likely to result in further investigation of the reported individual, unless there was some corroboration from other sources to ground a suspicion that that individual was engaged in proscribed armed groups threatening to attack the government or other civilians.
The Applicant contended that the delegate had not shown any basis for a finding that there are “serious reasons for considering” that the Applicant’s conduct amounted to a serious non-political crime or a crime against humanity.
With respect to whether there were serious reasons for finding the Applicant had committed a serious non-political crime before entering Australia, the Applicant submitted that:[37]
·The delegate did not identify either a law of Libya or an Australian law having extraterritorial application which could have had the effect of making the Applicant’s conduct an offence prior to entering Australia;
·Since the delegate did not identify such an offence, the Respondent has not particularised the elements of that offence or engaged in any meaningful analysis of whether the Applicant’s conduct could constitute such an offence, and therefore could not have “serious reasons for considering” that the Applicant has committed any offence; and
·The Tribunal therefore cannot find that there are serious reasons for considering that the Applicant is excluded from protection on the basis of ss 5H(2)(b) or 36(2C)(a)(ii) of the Migration Act.
[37] A1, page 11.
With respect to whether there were serious reasons for considering that the Applicant has committed a crime against humanity, the Applicant submitted that the delegate failed to conduct the required analysis of the elements of the offences cited in the decision or drawing links between the elements of the alleged offences and the Applicant’s conduct. The Applicant contended that while he had acknowledged the possibility of reported people being tortured or killed by the Gaddafi regime, he did not know that such an outcome “would” happen.[38]
[38] A1, page 12, citing the Refugee Law Guidelines at R2, page 317.
Flowing from this, the Applicant contended that ss 5H(2)(a) and 36(2C)(a)(i) of the Migration Act do not provide for exclusion from protection on the basis of being found to have individual criminal responsibility for a crime covered by the Rome Statute pursuant to Article 25(3)(c) or (d) of the Rome Statute. The Applicant submitted on their express terms, that the provisions of ss 5H(2)(a) and 36(2C)(a)(i) are only engaged where the individual “has committed… a crime against humanity, as defined by international instruments prescribed by the regulations”. It was contended that Article 25(3) of the Rome Statute distinguishes between a person who incurs individual criminal responsibility because s/he “commits” an offence within the International Criminal Court’s jurisdiction – covered by Article 25(3)(a) of the Rome Statute – and other means by which a person might incur individual criminal responsibility, including the means provided for in Article 25(3)(c) and (d) of the Rome Statute. The use of the term “commits” in Article 25(3)(a) of the Rome Statute demonstrates that “committing” an offence and having individual criminal responsibility for an offence are not coterminous under the Rome Statute. The Applicant contended that even if his conduct were found to incur individual criminal responsibility pursuant to Article 25(3)(c) and (d) of the Rome Statute, this does not bring that conduct within the purview of ss 5H(2)(a) or 36(2C)(a)(i) of the Migration Act.
The Applicant further contended that no crime against humanity committed by the RCs had been identified. Citing the elements of the offences under the Rome Statute, the Applicant contended that:
·The Applicant had no knowledge of any killing of civilians capable of being construed as “a widespread or systematic attack against a civilian population”. The Applicant in his interview noted that he was aware that an individual whose words or conduct he reported as suspicious could be killed by the Gaddafi authorities, but he was referring to executions carried out after the due process of law. He contended that such execution of individuals involved in terrorist activities and other armed insurrections did not fall within the elements of the crime against humanity of “murder”.
·The use of force by RC interrogators does not satisfy the definition of the crime against humanity of torture. Further, it was contended that if the RC investigators had a common purpose of committing acts which amount to a crime against humanity against the civilian population of Libya in the period from 2005 to 2011, the Applicant had no knowledge of such an intention. The Applicant heard sounds which lead him to believe violence was being used against detainees when he was at the offices of the Mirzan RC, but he had no way of knowing what motivated that use of violence, as he was not able to see what was transpiring. The Applicant had no knowledge of any widespread or systematic attack against the civilian population of Libya carried out by the RCs or the Gaddafi regime more generally.
·Since the individuals whose suspicious words or conduct he was reporting to the RCs were suspected of involvement with or harbouring sympathies toward the Libyan Islamic Fighting Group, Da’esh and groups engaged in terrorist activities, the response of the investigators who received the information he reported to the Mirzan RC could not be characterised as actions directed at “civilians”. The Libyan Islamic Fighting Group he mentioned at interview as an example of a “threat to the Gaddafi regime” is a proscribed terrorist group linked to Da’esh and Al-Qaeda, and membership of the group is sufficient for an individual to be subject to personal sanctions on the United Nations Security Council ISIL (Da’esh) and Al-Qaida Sanctions List. The Applicant contends that whilst the use of force against members of these groups is unlawful and he does not condone it, these individuals are not civilians and such acts are therefore not capable of amounting to “a widespread or systematic attack on a civilian population”, and are therefore not crimes against humanity.
·The Applicant’s actions in reporting suspicions to authorities must be considered in its context. The Applicant had no alternative means of reporting individuals he considered to be a threat. The Applicant contended that “the scale of the atrocities which have been committed in Libya since the fall of the Gaddafi regime demonstrates the very real risk which the armed groups whose activities he was reporting on (and their successors) posed to the safety of the civilian population of Libya”’[39]
[39] A1, page 15.
It was further contended that even if the Tribunal takes the view that acts invoking individual criminal responsibility under Article 25 of the Rome Statute amount to “committing” a crime against humanity, the Applicant’s conduct did not fall within the scope of Article 25.
The Applicant contends that his conduct could not be found to fall within the attribution of individual criminal responsibility provided for by Article 25(3)(c) of the Rome Statute, since:[40]
·The Applicant’s actions did not in fact contribute the commission of a crime against humanity;
·The Applicant’s actions cannot be characterised as aiding, abetting or otherwise assisting with the commission of a crime against humanity. The Applicant never witnessed any crimes of interacted with persons who carried out crimes against detainees and did not materially aid in the commission of such crimes; and
·The Applicant’s actions were not carried out “for the purpose of facilitating the commission” of a crime against humanity (or any crime).
[40] A1, page 16.
Further, it was contended that the Applicant did not provide reporting for the purpose of facilitating the commission of a crime against humanity, but because he believed the persons reported on to be involved in jihadist groups and a risk to Libya.
Further, the Applicant contended that he does not satisfy the elements of criminal responsibility pursuant to Article 25(3)(d) of the Rome Statute because:[41]
·There is no evidence that the individuals responsible for carrying out the violence against detainees which the Applicant heard at the RC offices had a common purpose of carrying out crimes against humanity;
·The Applicant’s actions did not in fact contribute to the commission of a crime against humanity;
·The Applicant did not intend to contribute to any crime against humanity committed by the Gaddafi regime; and
·The Applicant did not report his suspicions about anyone to the Gaddafi authorities with the knowledge that the Gaddafi regime intended to commit a crime against humanity.
[41] A1, page 17.
The Applicant citied the decision of the International Criminal Court in The Prosecutor v Germain Katanga: “[f]or a person to be found criminally responsible for a crime within the jurisdiction of the Court on the basis of Article 25(3)(d)(ii) of the Statute, these five constituent elements must… in the Chamber’s view, be established beyond reasonable doubt”. The five elements are:[42]
- a crime within the jurisdiction of the court was committed;
- the persons who committed the crime belonged to a group acting with a common purpose;
- the accused made a significant contribution to the commission of the crime;
- the contribution was intentional; and
- the accused’s contribution was made with the knowledge of the intention of the group to commit the crime.
[42] A1, page 17 citing The Prosecutor v Germain Katanga, ICC-01/04-01/07, 7 March 2014 at [1620].
The Applicant contended the Applicant’s actions cannot be characterised as ‘a significant contribution’ to the commission of any crime which could be capable of amounting to a crime against humanity noting that the delegate accepted that the Applicant was ‘a low-level associate of the regime’. The Applicant contended that:
Even if any of his reports did throw suspicion on an individual or individuals who it later transpired were genuine civilians (as they did not in fact have any involvement with the armed groups their words or actions caused the Applicant to suspect them of being involved with), this initial suspicion was very far removed from the launch of an actual investigation, the interrogation, arrest, detention, and any mistreatment during detention which could potentially have occurred.
The Applicant contended that whilst he did share a common purpose with the Gaddafi regime in relation to its social programs and maintaining the separation of state and religious institutions, he had no common purpose with that regime in committing crimes against the safety and security of anyone. The Tribunal should distinguish between sharing the “broad common purpose” of a group which has committed breaches of international law when pursuing that purpose and sharing the purpose of the group to commit the offences.[43]
[43] Citing WBR and Minister for Immigration and Multicultural Affairs [2006] AATA 754 (5 September 2006) and W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618 (10 June 1998).
It was submitted that the Tribunal should further find that the Applicant’s conduct from 2005 until the fall of the Gaddafi regime in 2011 in reporting the suspected jihadist sympathies of other Libyans to the Libyan authorities, was motivated by a desire to protect Libyan civilians from the threat posed by terrorist groups operating in Libya, and that whilst he did recognise that if the Libyan authorities chose to investigate these individuals there was a possibility those authorities could subject the individuals being interrogated to excessive force, he did not share in any common purpose with the perpetrators of unlawful force that any force be used against detainees.[44]
[44] A1, page 20.
Respondent’s submissions
In written submissions prior to the hearing, the Respondent accepted that “the evidence is capable of supporting a finding that the Applicant will face a real risk of serious or significant harm in Libya resulting from his activities on behalf of the Gaddafi regime”. However, the Respondent contended that risk was “inextricably linked” to evidence demonstrating serious grounds for considering that the Applicant committed crimes against humanity.[45]
[45] R1, page 2.
As noted above, before the Tribunal the Respondent did not contend that there were serious grounds for considering that the Applicant had committed a serious non-political crime before entering Australia. That is, the Respondent did not contend that the exclusion provisions in 5H(2)(b) and 36(2C)(a)(ii) applied to the Applicant.
The Respondent submitted that it was uncontentious that:[46]
·Whether there are “serious reasons for considering” that the Applicant has committed a crime against humanity requires strong evidence, but it is not to be equated with the civil or criminal standards of proof;[47]
·It is not necessary in order for a finding to be made that the Applicant committed a crime against humanity that there be a finding with respect to a specific incident;[48]
·The Tribunal must consider each element of the crime against humanity, including any relevant defences;[49] and
·“Civilians” means persons who are not military personnel.[50]
[46] R1, page 7.
[47] FTZK, cited above at [50].
[48] SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561; [2003] FCAFC 308 (SHCB).
[49] SRYYY, cited above at fn 25.
[50] N96/1441 and Minister for Immigration and Multicultural Affairs [1998] AATA 619 at [69]; W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948 at [48].
The Tribunal notes that in reply submissions the Applicant challenged these contentions. With respect to the contention that it was not necessary to make a finding with a specific incident amounting to a crime against humanity, the Applicant contended that the cited authority (SHCB) could be distinguished on the basis that a finding that there were “many such incidents” committed by the agency in which the applicant in that matter had been a high-ranking officer. The Applicant contends there is no such evidence in this case.[51]
[51] A2, pages 3-4.
In pre-hearing submissions, the Respondent contended that the following matters were not in issue:[52]
·The Gaddafi regime committed crimes against humanity in relation to its treatment of its political opponents and dissidents including imprisonment, torture and murder; and
·The Applicant volunteered to become part of the “information network” in Libya comprising the RCs which enabled the identification of Gaddafi’s potential political opponents and dissidents to be identified.
The points in issue were:[53]
·Whether the Applicant’s work as an informer on an RC can be related to any specific incident of harm which the Respondent submitted was not required to establish serious reasons; and
·Whether the Applicant had any relevant knowledge of the Gaddafi regime’s activities in suppressing its political opponents and dissidents at the time he was informing on his fellow citizens.
[52] R1, page 8
[53] R1, page 8.
These submissions are considered further below.
The issue of the Applicant’s claims and the Tribunal’s jurisdiction under s 36(2) of the Migration Act.
During the hearing, the Applicant’s evidence raised an issue of whether his claims to have worked for the RCs in the manner claimed were credible. Further, the Applicant arguably sought to raise new claims for protection before the Tribunal which it did not appear had been raised before the delegate. Credibility concerns regarding the Applicant’s evidence are considered further below.
The issues with the presentation of the Applicant’s claims and his account of his involvement in the RCs are addressed further below. However, one issue which arose in the context of the hearing which the Tribunal sought submissions from the parties was the limits on the Tribunal’s jurisdiction, if any, in the event it was not satisfied as to any of the criteria in s 36(2) being met, including s.36(2)(a) and 36(2)(aa) or to determine any new claims made by the Applicant.
Section 17B of the AAT Act sets out that the Tribunal’s powers in relation to a proceeding before the Tribunal are to be exercised in the Division prescribed. As the delegate’s decision to refuse the protection visa application was made relying on s 36(2C)(a) it does not meet the definition of a Part 7-reviewable decision under s 411(1)(c)(iii) of the Migration Act. As it is also not a Part 5-reviewable decision under s 338 of the Migration Act, it cannot be reviewed by the MRD of the Tribunal. Rather, the decision is reviewable in the GD of the Tribunal under s 500(1)(c)(ii) of the Migration Act.
Section 43(1) of the AAT Act permits the Tribunal (in the GD) to exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. As the decision by the delegate was a decision to refuse a visa under s 65, the Tribunal would be able to exercise the same powers to consider whether to refuse the grant of the visa on any criterion. Section 25(4A) of the AAT Act allows the Tribunal to determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. However, caselaw with respect to other sections of the Act where reviews are conducted in the GD, indicates that where there are no relevant new facts emerging on review, the AAT cannot expand the review to consider aspects of the character test that were not the basis for the delegate’s decision.[54]
[54] MICMSMA v CPJ16 [2019] FCA 2033 at [68] and [70]–[71].
The question which arose specifically was whether the Tribunal in conducting a review in the GD was limited to considering only s 36(2C)(a) of the Migration Act. It was this issue which gave rise to the Respondent volunteering to provide its written closing submissions to the Tribunal in advance of the Applicant. The Respondent undertook to do so as the position taken by the Respondent with respect to the correct and preferrable decision by the Tribunal to some extent determined the manner in which the Applicant would frame their closing submissions.
In closing submissions, the Respondent contended that the Tribunal should affirm the delegate’s decision based on admissions made by the Applicant to the delegate and on country information.[55]
[55] Respondent’s closing submissions, 1 April 2021, page 2.
In the alternative, the Respondent submitted that:[56]
·The Tribunal has jurisdiction to review the Applicant’s claims as made to the delegate and, if not satisfied that the Applicant would face any persecution for the reasons found by the delegate, the Tribunal can set aside the decision and make a direction under section 43(1)(c)(ii) of the AAT Act that section 36(2C) of the Migration Act does not apply because the Applicant was not a low level supporter of Gaddafi and therefore he did not aid or abet any crimes against humanity or commit any other crimes in that alleged role; and
·The Tribunal does not have jurisdiction to affirm the delegate’s decision based on any non-satisfaction of section 36(2) of the Migration Act or to determine any new claims made by the Applicant under section 36(2) of the Migration Act.
[56] Respondent’s closing submissions, 1 April 2021, page 2.
In response to the Respondent’s closing submission on jurisdiction, the Applicant contended that the Tribunal should find that there are not serious reasons for considering that the Applicant committed a crime against humanity and that the Tribunal should remit this matter with a direction that ss 5H(2) and 36(2C)(a) of the Migration Act do not prevent the Applicant from satisfying ss 36(2)(a) and 36(2)(aa) of the Migration Act.
The Applicant accepted the Respondent’s statement of the law regarding the jurisdiction of the Tribunal and agreed that the Tribunal does not have the jurisdiction to affirm the decision of the delegate on a basis that the Applicant does not satisfy ss 36(2)(a) and 36(2)(aa) of the Act for reasons other than the operation of ss 36(2C) and 5H(2) of the Migration Act. The Applicant submitted that if the Tribunal was not satisfied that ss 36(2)(a) and 36(2)(aa) were met based on the findings made by the delegate, given the lapse of time since the delegate’s decision and the changing nature of the country situation in Libya, the matter should be remitted for reconsideration if the Tribunal does not accept that the Applicant has a well-founded fear of persecution or faces a real risk of significant harm on the basis of the Applicant’s claims presented to the Department.[57]
[57] Applicant’s closing submissions dated 9 October 2020 and received on 24 April 2021.
The Applicant contended that the Tribunal has the jurisdiction pursuant to s 43(1)(c)(ii) of the AAT Act to set aside the delegate’s decision with such direction as it sees fit and that any such direction must refer to both ss 36(2C) and 5H(2) of the Migration Act.
The Respondent’s further closing submissions (Respondent’s submissions on GWRV) drew the Tribunal’s attention to the decision of the Federal Court in GWRV in support of their earlier submissions regarding the Tribunal’s jurisdiction. [58]
[58] Respondent’s submissions on GWRV, 8 July 2022.
In GWRV, Colvin J held that the Tribunal’s GD is limited to only reviewing the delegate’s findings made in reliance on an exclusion provision of the Migration Act. His Honour stated that (at [24]):
…the jurisdiction of the General Division is confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision maker upon [section ss 5H(2), 36(1C), 36(2C)]. The procedures of the General Division (as modified by s 500 of the Migration Act) apply to the exercise of the jurisdiction. Otherwise, the structure by which members of the Tribunal are appointed to the Migration and Refugee Division and the different statutory regime to deal with other aspects of applications to review protection visa applications would be compromised.
The Respondent submitted that the decision in GWRV confirms that if the Tribunal found that section 36(2C) did not apply because it did not accept that the Applicant was a “low level supporter of Gaddafi”, then the Tribunal could not affirm the delegate’s decision effectively based upon a finding under 36(2) of the Migration Act (i.e., no real chance of persecution) because that would be a qualitatively different decision to the one made by the delegate. Rather, under section 43(1)(c)(ii) of the AAT Act, the Tribunal should set aside the delegate’s decision with a direction that section 36(2C) of the Act does not apply because the Applicant was a low-level supporter of Gaddafi and therefore he did not aid or abet any crimes against humanity or commit any other crimes in that role. The Tribunal has no jurisdiction to determine any other claims made by the Applicant for the protection visa.
The Applicant had no further submissions to make with respect to the decision in GWRV.
The Tribunal accepts following the Court’s consideration in GWRV that the Tribunal should confine its review to those matters arising under the sections on which the delegate relied in refusing the visa under s 65. In this instance, that was the exclusion provisions in s 36(2C) of the Migration Act.
The Tribunal notes that if it is found that the Applicant was not affected by ss 5H(2) or 36(2C)(a) of the Migration Act, the Tribunal could set aside the decision under review and remit the matter to the Minister under s 43(1)(c)(ii) of the AAT Act to determine whether the Applicant meets the other criteria for a protection visa. This would include determining if the Applicant meets s 36(2)(a) or (aa) of the Migration Act which are time of decision criteria for the visa application. If the application were remitted with direction, the Minister would not be bound by any earlier assessment relating to s 36(2)(a) or (aa) of the Migration Act.
EVIDENCE BEFORE THE TRIBUNAL
Background and events in Libya and Australia
The Applicant and his wife gave evidence at the hearing and were cross-examined.
The evidence centred on their experiences in Libya, connections with the Gaddafi government both before leaving Libya and after arriving in Australia and the risks to themselves and their family from Libyan militia as a result of the Applicant’s activities providing information to the Gaddafi regime in Libya and from Australia.
The Applicant was born in Libya in 1979 and is a member of the Al-Zintan tribe. The Applicant is ethnically Arab and he is a Sunni Muslim. His father is deceased and his mother and eight of his siblings remain living in Libya. One additional sibling lives in Tunisia;
In 2001, the Applicant completed university education and enrolled in compulsory military service undertaking a year of service in late 2002. In 2004, the Applicant began a full-time course of training on the subject of Colonel Muammar Mohammed Abu Minyar al-Gaddafi’s ‘Green Book’ and relevant commentaries. He passed the requisite examinations, and sometime in or around September 2005, he graduated from this course.[59]
[59] R2, T2, page 10; ASFIC.
After graduation, he began volunteering with his local RC branch, which was located on Mirzan Street in Tripoli. The Applicant was assisted in becoming involved with the Mirzan branch of the RC (Mirzan RC) by a relative of his wife’s, Colonel Mustafa Kamel (also known as Mustafa Al-Kamel) (Colonel Kamel).
In his application for the protection visa filed on 14 January 2015, the Applicant claimed to fear harm in Libya based on his support for Gaddafi and his work as a volunteer of the Gaddafi regime’s RCs for whom he wrote reports on activities and persons who might pose a threat to the government. The Applicant claimed he continued this work even while in Australia. After the fall of Gaddafi, the Applicant claimed that his role as an informer became known and he fears harm from the militias now operating in Libya.
As the interview with the delegate in December 2015 the Applicant provided further information about his claimed work informing for the Gaddafi regime and his knowledge of the harm the people he reported on faced as a result of his conduct.[60] During the hearing the Respondent relied on the following, in particular, as demonstrating the Applicant’s understanding of the consequences which may have followed from informing on people to the RCs:[61]
[60] R2, T2, pages 11–13; R4.
[61] R4 at [743]–[767].
Interviewer: So were you aware that some of the people that you reported up, okay, as being threats to the regime, did they, did you know that these sorts of people were being tortured and killed?
Applicant: When it comes you know to killing the regime normally they kept these news to themselves. They don’t spread them. But to my knowledge I knew that people they had been taken, they had been imprisoned, they been lots of investigated or interrogated etc but that’s as far as what I knew but it’s you know goes beyond that I wouldn’t know anything about that because the regime kept it for themselves.
Interviewer: Yeah I understand and I guess what I’m saying is did you, were you aware that when you submitted you know a report and it had someone’s name okay, that most likely this person was going to be harmed in some way?
Applicant: Yes.
Interviewer: And you were aware that it was a possibility that they could be killed?
Applicant: Yes.
Interviewer: Tortured?
Applicant: Yes.
Interviewer: Did you witness any violence like this or were you at a distance from it?
Applicant: We used to hear the torture if you’d like, you know when you go to submit you know a report you hear in the prison that the torture is being taken place however I have never been face to face.
Interviewer: So you went to the detention centres or prisons?
Applicant: Yes.
Interviewer: So is that, does that mean that the office, when you went to the office to do your reports, was that in the same place where there was a prison as well?
Applicant: Normally, he had his offices, it is within the complex, it’s the side, you know, the, it is the interior security and you will hear because normally when they invite someone for investigation, a person you know, accompany him, you know, to the other place and they use all sort of measure to get the information from him or her.
The Applicant claimed that he supported Gaddafi’s secular ideology. He also supported Gaddafi’s policies of using the revenues generated by oil extraction to provide health care, education and public services for the people of Libya. He further recognised that showing his support for the authorities was beneficial for his career in Libya at the time.
Sometime in or around November 2005, the Applicant commenced employment at Petroleum Geo-Services Exploration (PGS). This was his first position in the oil industry. PGS provided him with training in occupational health and safety and he worked in a junior administrative role in that capacity.[62]
[62] R2, T2, page 10.
The Applicant's role was to ‘write periodical reports about the security situation in the company in addition to observing any suspected activities which might pose a threat to the government. All of the reports bear his full name, occupation and employment number.’[63]
[63] R2, T2, page 10.
During the time he was working at PGS, the Applicant attended the office of the Mirzan RC on a monthly basis to present a report and to sign to indicate his attendance.[64]
[64] R2, T2, page 10.
Sometime in or around October 2006, Colonel Kamel arranged for the Applicant to take up employment at a Polish oil company, Ogec Jaslo. The Applicant continued to be employed in the occupational health and safety field, but at a more senior level. The Gaddafi authorities were particularly concerned about the security of the oil fields, as they relied on oil revenues in order to fund their social programs and they knew that attempting to seize control of the oil fields and the revenue they represented was a core objective of armed dissident groups.
Sometime in or around May 2007, the Applicant ceased working for the Ogec Jaslo and began working for an American company, Nabors Drilling International. This change of role was based on the advancement of his career to a more senior role in the occupational health and safety field rather than the instructions of the RC. The Applicant continued to ‘write periodical reports about the security situation in the company’ where he was employed at the time, reporting on any suspicious activities that might indicate a threat to the government’s control of the oil fields, including religious fanatics who he feared may be planning terrorist attacks on civilians.[65]
[65] R2, T2, page 10.
Sometime in or around March 2009, the Applicant ceased working for the Nabors Drilling International and commenced employment with Schlumberger in a senior occupational health and safety role. The Applicant took this role as it progressed his career to a more senior position, without the intervention or instruction of the RC.
On 28 October 2009, the Applicant married Ms A and in 2010 they travelled to Australia on Ms A’s Student (Class TU) visa following Ms A being awarded a scholarship issued by the Gaddafi government.
Armed resistance to Gaddafi’s regime broke out in Libya in 2011. The Applicant claimed that he continued to support Gaddafi, fearing that the rebels were ‘aiming at establishing a religious state’. The Applicant claimed that in 2011 his family home in Mizda was attacked by rebel militias who looted the house, shot at the walls and set fire to items inside the house. The Applicant’s family fled the house and began moving between different cities in Libya, and sometimes crossing into Tunisia. In September 2011, the Applicant’s brother-in-law was shot when militia attacked a checkpoint which he was manning for the Gaddafi regime.[66]
[66] A4, Applicant’s bundle page 12.
The Applicant claimed before the delegate that following the Arab Spring, he had reported to Colonel Kamel on the activities of Libyans in Australia who were providing support to rebel forces in Libya. He claimed that he became involved in the ‘organisation of Libyans in Perth’ and reported by telephone to Colonel Kamel on Libyans in Australia who were supporting armed groups fighting against the regime. This involved people collecting money at the mosques around Perth to support civilians involved in the conflict but having become close to the people in this group, he knew that was not where the money was going. He said they were providing funds for purchasing weapons from Turkey to send to Libyan armed groups, such as the Libyan Islamic Fighting Group.[67]
[67] A4, Applicant’s bundle page 12.
On 29 December 2011, the Applicant, Ms A and their son departed Australia and travelled to Libya. The Tribunal notes this was after the fall of the Gaddafi regime in October 2011.[68] The Applicant claimed that the borders of Libya were not tightly controlled at that time and he was able to enter the country without coming to the attention of the militias controlling Tripoli. However, the Applicant soon realised he was unsafe in Libya and returned to Australia 16 January 2012.[69] Ms A and their son remained in Libya.
[68] R5. M26, page 311.
[69] A1 at [22]
Ms A told the Tribunal they returned to Libya because she was unable to care for their son and manage study without family support.[70] She returned to Australia in February 2012, leaving their son in Libya in the care of family. He has remained there since that time.
[70] A5, Applicant’s bundle, page 20.
Further, in the Tribunal’s view, the Applicant’s conduct in Australia contributes to doubts regarding his credibility and claims for protection and thus for his claimed involvement with the Mirzan RC (as the basis for those claims). This includes the delay in seeking protection until four years after his arrival in Australia and three years after the fall of Gaddafi and return visits to Libya after the Gaddafi regime was ousted in October 2011 and the fact the family made return visits after the fall of the regime. This included leaving his eldest child in the care of relatives in Libya after the coup. The Tribunal did not consider those actions to be consistent with the Applicant’s claimed risk profile.
After consideration of all the material before it (including the Applicant’s oral evidence), the Tribunal finds that the Applicant is not a generally credible witness. Considering his evidence as a whole, the Applicant provided inconsistent and implausible evidence and attempted to avoid answering questions when pressed on these. Further, he repeatedly attempted to explain prior evidence by reference to issues with interpretation or language skills which was not credible or reliable when looking at his personal history, education and demonstrated language proficiency. These concerns called into serious doubt his account of the history of his engagement with the Mirzan RC or his fears on return to Libya. Further reasons for these findings are detailed below.
The Tribunal formed the view that the Applicant and Mrs A tailored their evidence to enhance their prospects of meeting the criteria for the protection visa, both before the delegate and before the Tribunal. In particular, the Tribunal formed the view that the Applicant’s claimed level of involvement with the RCs was overstated in a bid to bolster his claims for protection. The difficulty this presents for the Tribunal is assessing the Applicant’s conduct and circumstances in light of the evidence over time to determine whether there are ‘serious reasons for considering’ that the Applicant ‘has committed … crimes against humanity.’
The Tribunal must determine what the Applicant did for the Mirzan RC and what the Applicant knew about the Gaddafi regime and its security organisations.
The Respondent submitted that the following elements must be established to make out Article 7(1)(a), (e) and (f) (taking into account also Article 7(2)(a)):[126]
·There was murder, imprisonment or other severe deprivation of physical liberty and/or torture;
·That murder, imprisonment or deprivation, or torture was done in violation of fundamental rules of international law;
·That conduct occurred as part of a widespread or systematic attack directed against a civilian population, which required the ‘multiple commission of attacks against the civilian population’, as ‘part of a state or organisational policy to commit such attack’; and
·The perpetrator knew that the conduct was part of a widespread or systematic attack directed against any civilian population.
[126] Respondent’s closing submissions in reply at [9].
The Respondent submits that the Tribunal should be satisfied these elements are met having regard to the following:
·The contemporaneous country information indicating that the security and intelligence services of the Gaddafi regime conducted widespread human rights abuses, including ongoing instances of routine torture, ‘disappearances’, arbitrary detentions and deaths in custody;[127]
·The combination of arbitrary arrest and detention, mostly without charges, for prolonged periods, falls within the meaning of being ‘severely deprived’ of liberty under Article 7(1)(e) of the Rome Statute. Moreover, the use of torture self-evidently falls under Article 7(1)(f) of the Rome Statute;
·Based on the country information the extent and severity of the conduct that occurred to those detained (most without warrant and many without charge or access to legal representation) constituted a violation of international laws. There is also clear evidence that the RC was aware of the gravity of the conduct, as indicated by the documented history of those abuses and the contemporaneous attempts by NGOs and governments to intercede;[128]
·Country information details that detention and torture were directed at the civilian population who opposed Gaddafi. The conduct was widespread and systematic, as documented especially in the reports referred to in country information.[129] That conduct occurred with considerable frequency. Gaddafi was the leader throughout the relevant time and it has been said that some of the ill treatment of detainees reflected government policy; [130]
·The Tribunal can therefore be satisfied that the conduct meets the criteria set out in Article 7(1)(e) and (f);
·The correct test is widespread or systemic, not widespread and systemic.[131] This is relevant because it embraces a wider range of attacks on civilian populations than if both adjectives had to apply;
·The requirement that there be knowledge that the conduct was part of a widespread or systematic attack directed against any civilian population concerns the perpetrator of the conduct. It was not in dispute that the Applicant himself was not the perpetrator of the conduct. The perpetrator(s) were the security and intelligence forces, who plainly knew that the conduct was part of a widespread or systemic attack;
·The Applicant’s role, and, in particular, his intention or knowledge, must be considered by reference to Article 25 and Article 30 of the Rome Statute, and in the framework of the Australian case law on ‘serious reasons for considering’. FTZK provides that to ‘describe ‘serious reasons for considering’ as providing a ‘standard of proof’ is apt to mislead’ at [33], and elaborated on why that was the case, particularly in the context of administrative decision making, at [34]–[36];
·The role and purpose of Article 1F recognised ‘a state’s interest in declining to receive and shelter those who have demonstrated a propensity to commit serious crime’;[132] and
·Article IF (that case concerned Art 1F(c)) should be ‘interpreted restrictively and applied with caution’ because of the serious consequences of excluding a person who has a well-founded fear of persecution from the protection provided by the Refugees Convention.[133]
[127] Citing R5, pages 36-39, 50–51, 58–59, 65, 155–156, 207, 232, 268, 285, 291, 298 and 302.
[128] Citing R5, page 51 as an example.
[129] Respondent’s closing submissions in reply at [10]; Delegate’s decision, page 8.
[130] See for example R5, M10, page 36.
[131] SZCWP v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FCAFC 9 at [9] per Wilcox J.
[132] Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; [2002] HCA 7 (Singh) at [15] per Gleeson CJ. Singh also concerned Article 1F(b) (serious non-political crimes).
[133] FTZK at [74] citing UK Supreme Court (UKSC) in Al Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2013] 1 AC 745 (Al-Sirri),
With respect to serious reasons for considering the Tribunal accepts that this does not impose a specific burden of proof. However as noted by the Court in GZCK v Minister for Home Affairs [2021] FCA 1618 (GZCK) at [149]:
the requirement of “serious reasons for considering” requires that there is a rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision-maker is required.
The Gaddafi regime
With respect to the parties’ submissions and having regard to the evidence and credible country information, the Tribunal accepts that:
·There was murder, imprisonment or other severe deprivation of physical liberty and/or torture by members of the Gaddafi government and security organisations during the period of regime rule from 1969 to 2011 and during the conflict leading to the fall of the regime in 2011;
·That murder, imprisonment or deprivation, or torture were done in violation of fundamental rules of international law; and
·That for the purposes of this decision there are serious reasons for considering, based on credible country information, that such conduct by the Gaddafi regime occurred as part of a ‘widespread or systematic attack’ directed against elements of the civilian population, which required the ‘multiple commission of attacks against the civilian population’, as ‘part of a state or organisational policy to commit such attack’.
However, for the reasons the Tribunal considers these findings are not sufficient to establish serious reasons for considering that the Applicant engaged in crimes against humanity.
The Applicant’s profile and activities in support of the Gaddafi regime
The Tribunal accepts the following with respect to the Applicant’s background and profile:
·The Applicant was born in Libya in 1979 and is a member of the Al-Zintan tribe. The Applicant is ethnically Arab and he is a Sunni Muslim. His father is deceased and his mother and eight of his siblings remain living in Libya. One additional sibling lives in Tunisia.
·The Applicant and his wife were supporters of the political ideology of the Gaddafi regime.
·In 2001, the Applicant completed university education and enrolled in compulsory military service undertaking military training and a year of service in late 2002. In 2004, the Applicant began a course of training three days a week, training with the RCs and studying the Green Book and relevant commentaries, graduating from this course in 2005.[134]
·The Applicant undertook basic training with the RCs in order to obtain advantages in employment.
·After graduation, he began volunteering with his local RC branch, the Mirzan RC by a relative of his wife’s, Colonel Kamel/Mustafa. This included providing information to the RCs on activities of oil companies he was working for.
·From around November 2005, the Applicant commenced work as a safety officer in the petroleum sector working for a number of foreign companies prior to leaving Libya in 2010 when his wife was awarded a scholarship to study in Australia.
·The Applicant returned to Libya in December 2011 with his wife and young son. His son was left with family in Libya and remains there. His wife and eldest daughter made a return trip to Libya in 2013. They have not returned since that date.
[134] R2, T2, page 10; ASFIC.
However, for the reasons outlined in this decision and detailed further below, the Tribunal does not accept that:
·The Applicant had any formal security, intelligence or reporting role with respect to individuals suspected of harbouring anti-government or Jihadist sentiments, including the lodging of written reports with the Mirzan RC; or that
·The Applicant had any role as an informant reporting on anti-Gaddafi activists in Australia.
The Respondent submitted that country information, combined with the Applicant’s own admissions at the interview with the delegate were sufficient to establishing the Applicant was aware that his reporting activities for the Mirzan RC would lead to mistreatment by security forces of the individuals he named in his reports.
However, there Applicant’s ‘admissions’ shifted over time and his account of his involvement was significantly qualified in evidence before the Tribunal.
As noted above, the Applicant denied admitting to having knowledge of people being tortured in the building which housed the Mirzan RC. He stated he had heard noises which could have been people arguing or being interrogated but he did not have any awareness that torture might have been used by the RC or other security agencies and it would not have shocked him to consider that this was what he had overheard.
Further, while the Applicant had claimed initially that he reported monthly to the RC, before the Tribunal he claimed only to have reported on two suspected Jihadists working in the oil company. When challenged about how he would have been at risk of harm on return to Libya on that basis, he replied that he couldn’t rule out that extremists had the details from those reports and that they were vengeful.
The Respondent contended that the Applicant’s initial admissions were significant in establishing ‘serious reasons for considering’ and that he had deliberately downplayed his knowledge of English and made tactical use of interpreters to attempt to present his evidence in a more positive light, first at the Departmental stage and then before the Tribunal.
The Tribunal accepts these submissions in part. The Tribunal formed the view that the Applicant and Ms A were well-educated, intelligent and had a good command of English. This was not only evident from their responses to questions at the hearings, and in particularly the Applicant’s corrections to the translations provided by several of the interpreters during the hearing, but by the evidence offered with respect to the training and education he had undertaken in English language studies in Libya and professional courses taught in English in Australia.[135] Similarly, Ms A completed a Masters at an Australian university conducted in English suggesting a relatively high level of English proficiency in an academic context. In light of this evidence and the Tribunal’s observance of the Applicant and Ms A during oral evidence, the Tribunal accepted the Applicant is now attempting to use a lack of familiarity with the English language to dial-back what have been cast as admissions as to his level of knowledge of the use of torture in RC interrogation.
[135] Transcript, 22/12/20, pages 91-93; 135-136.
As noted above, the Tribunal formed the view that the Applicant’s claimed level of involvement with the RCs was overstated in a bid to bolster his claims for protection. Evidence of his profile and past activities were offered when the application was made and in evidence before the delegate at interview to support his claims that he was wanted by extremists and rebel militias, that his assets had been targeted by them in his absence and that he would be targeted for harm on return to Libya due to the seizing of reports he had prepared for the RCs. The Tribunal doubts the Applicant appreciated the risk his claimed involvement with the RCs would present in terms of the exclusion clauses at the time the claims were made.
In part, the Tribunal doubts the Applicant appreciated the manner in which his claims would be construed because he was a genuine supporter of the regime and believed it was a positive force in Libya, particularly in contrast to the post-Gaddafi militias. Further, the Tribunal does not consider there are serious grounds to consider that he was aware of any “widespread or systematic attacks” by Gaddafi authorities on the civilian population in Libya. Having considered the Applicant and Mrs A’s evidence and the country information carefully, the Tribunal also accepted that the Applicant was not aware of the extent of human rights abuses under the Gaddafi regime.
The Tribunal’s assessment of the Applicant’s later evidence in this regard takes into account broader concerns with respect to the Applicant’s claims to be at risk on return to Libya. If the Applicant was a member of the Mirzan RC who reported regularly to the RC, was aware of their alleged interrogation methods and was liable to be identified as such on return to Libya, the country information suggests he and his family would have been at risk of harm from rebel militia following the fall of Gaddafi.
However, in the Tribunal’s view, the evidence of the Applicant’s circumstances do not suggest the Applicant was at such risk.
As noted above, the Applicant’s evidence with respect to the targeting by rebel militias in Libya varied over the course of proceedings with the Applicant initially claiming his property had been targeted and burned by extremists and later claiming his property had been raided and a separate building destroyed, but claiming that the property was destroyed in an attack on the nearby Tripoli Airport. As noted in the delegate’s decision this was also contradicted by statements that he made to the Department to obtain financial assistance.[136] Having regard to these inconsistencies, the Tribunal does not accept that his house was targeted and destroyed by rebel militias.
[136] R2, T2, page 17.
In addition, evidence regarding ongoing support provided by the Libyan Embassy in Australia for the Applicant and Ms A to study or continue to study in Australia. The Tribunal did not consider the Applicant and Ms A’s evidence or explanations on this to be plausible or credible. Even if the Tribunal accepts the Libyan Embassy would provide false assurances to the Department of Immigration the Tribunal considers they would not do so for anyone who was an identified as a pro-Gaddafi loyalist. The Tribunal considered ongoing support by official Libyan Government representatives in this manner was inconsistent with the claimed profile the Applicant says puts him at risk of serious or significant harm on return to Libya and suggests that he is not of adverse interest to the new Libyan regime.
Further, the claim that the Applicant was targeted for harm in Libya is not consistent with the ongoing safe residence of his family members, including his son, in Tripoli and his family’s return visits there. Were the Applicant’s profile as claimed, the Tribunal considers it reasonable to conclude he would not risk the safety of his young family returning on two occasions to Libya and arranging his oldest child’s residence there. Difficulties with childcare arrangements in Australia do not, in the Tribunal’s view, provide a satisfactory explanation for these arrangements if the Applicant’s claims are to be accepted.
The claim that the Applicant was targeted for harm in Libya is not consistent with the ongoing safe residence of his family members, including his son, in Tripoli and his family’s return visits there. Were the Applicant’s profile as claimed, the Tribunal considers it reasonable to conclude he would not risk the safety of his young family returning on two occasions to Libya and arranging his oldest child’s residence there. Difficulties with childcare arrangements in Australia do not, in the Tribunal’s view, provide a satisfactory explanation for these arrangements if the Applicant’s claims are to be accepted.
The delegate found that the Applicant was a ‘a low-level associate of the regime’ and that he would have ‘a low profile as a Qadhafi loyalist’.[137] The delegate found that the claim that the Applicant’s home was targeted was fabricated to bolster his claims for protection. In the Tribunal’s view those findings were sound. However, the Tribunal did not accept that the Applicant had the level of institutional involvement which was claimed in his evidence before the delegate.
[137] R2, T2, pages 17-18.
The Tribunal does accept on the basis it is reasonable that the Applicant and Ms A were supporters of the regime. They benefitted from their support for the regime in the form of education opportunities and employment. This is consistent with country information regarding the regime’s operation. However, the Tribunal does not accept the Applicant had any official role with the RCs nor that he reported in an official manner as claimed. Further, the Tribunal does not consider, based on country information, that support for the regime even as a volunteer for the RCs is sufficient to establish the requisite degree of intentional action and knowledge which is required to establish ‘serious reasons for considering’ the Applicant engaged in crimes against humanity by reporting suspected ‘Jihadists’ or anyone else to the Mirzan RC in the manner claimed.
In the Tribunal’s view, the Applicant’s evidence and that of Ms A, demonstrated a belief that the Gaddafi regime was a positive force in Libya. However, their evidence was consistent with respect to their lack of knowledge of, or involvement with, mistreatment by suspected anti-government activists or other political opponents by the regime. Ms A noted that when they were living in Libya ‘life was good’.[138] She provided evidence that they were unaware of abuses by the Gaddafi regime:[139]
We did not know of anyone of being killed or tortured by the Gaddafi regime. We never heard about this sort of thing happening. I never searched for information about Libya on the internet, I never heard about what people say about Gaddafi’s regime from outside Libya, and within Libya we would not hear about this sort of thing happening if it did happen. I have heard some of the criticisms people make of Gaddafi now I am outside Libya, but it does not sound like they are talking about the same Libya that I lived in.
[138] A5, Applicant’s bundle, page 17.
[139] A5, Applicant’s bundle, page 17.
Their evidence was also consistent with the Applicant’s claim to have supported or joined the Mirzan RC to secure employment following university and to further his career. The Applicant trained with the RCs following compulsory military training and obtained employment shortly after that. This is consistent with his claimed reasons for training with the RCs. The claimed pattern of employment is consistent with the Applicant working as a low-level informant early in his post university career in order to secure advancement until he was able to advance his career on his own employment merits, as he claims to have done by the time of his last appointment in Libya. It is also consistent with him being a low-level supporter of the regime rather than an operative of the Mirzan RC.
On the basis of this evidence the Tribunal finds that:
·In order to gain employment, the Applicant volunteered with the Mirzan RC and provided ad hoc reports on activities at the oil companies for whom he worked during the first few years of his employment.
·He was aware persons suspected of being Jihadists may be questioned by authorities, tried and imprisoned.
·He was not aware of any person mentioned in his reports to the Mirzan RC being interviewed, interrogated or charged.
·He was not aware of any interrogations undertaken by the Mirzan RC which may have constituted torture, imprisonment or murder.
·He undertook weapons training in the military and the RCs but was not an armed member of the RC, or a formal member of the RCs in any sense.
The Tribunal does not accept he made formal written reports as claimed or that he reported on individuals in Australia and considers these claims were manufactured to support his claims to be at risk and to explain the late lodgement of the application for protection.
While the Tribunal accepts that the evidence established there are serious reasons for considering elements of the Gaddafi security apparatus engaged in crimes against humanity, there is no evidence that the Mirzan RC was engaged in torture, murder or imprisonment. While country information refers generically to RCs as part of the security infrastructure under Gaddafi and cites examples of abuses by RCs the evidence does not establish what role, if any, the Mirzan RC played in that process.
Even if the Tribunal accepts there are serious grounds for considering the Mirzan RC engaged in crimes against humanity, there is no suggestion that the Applicant carried out any of the acts alleged by the Respondent to constitute such crimes himself or that he had direct knowledge of such crimes being carried out by the RC. Rather it is suggested that he understood the consequence of his actions would be the carrying out of those offences against persons named or identified in his reports.
Article 25 of the Rome Statute provides for the circumstances in which a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC. Article 25(3)(a) and (b) apply where the person is a principle actor in the commission of the crime.
As noted earlier, Article 25(3) goes on to provide two bases for criminal liability of a non-principal actor for a crime, ‘accessorial criminal responsibility’:
·Paragraph (c) which provides that a person is criminally responsible if, for the purpose of facilitating the commission of the crime, they aid, abet or otherwise assist in the commission or its attempted commission, including by providing the means for its commission, i.e., ‘aiding or abetting’.
·Paragraph (d) which provides that a person is criminally responsible if they in any way contribute to the commission or attempted commission of the crime by a group of persons acting with a common purpose. As the Court noted in GZCK, with respect to this basis for individual criminal responsibility, ‘the contribution must be intentional and must either (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, or (ii) be in the knowledge of the intention of the group to commit the crime.’[140]
[140] GZCK at [156].
The Applicant submitted that ss 5H(2) and 36(2C)(a)(i) only applied to crimes meeting the test in Article 25(3)(a), that is where the person commits the crime. This submission relied on the reference in those sections to the commission of the crime. However, the submission runs contrary to the treatment of the provisions in the authorities. For example, the Court in GZCK explicitly considered Article 25(3)(c) and (d) in the application of the exclusion clauses under the Migration Act and found no error in applying those articles to the applicant’s conduct in assessing whether the exclusion provisions applied.[141] The Tribunal did not accept the Applicant’s submission in this regard.
[141] GZCK at [155] – [188].
With respect to these provisions on accessorial criminal liability, the Court in GZCK provided that:
·With respect to Article 25(3)(c):[142]
[142] GZCK at [173].
(1) It is not necessary that there be a finding with respect to a specific incident (SHCB at [23]) or perpetrator (Gombo AC at [1329]).
(2) The accessory must have lent their assistance with the aim of facilitating the offence. It is not sufficient that the accessory merely knows that their conduct will assist the principal perpetrator in the commission of the offence (Gombo TC at [97]).
(3) The aider or abettor must at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events, although it is not necessary to know the precise offence, only the essential elements (Gombo TC at [98]).
(4) The accessory must facilitate or further the commission of the crime (Gombo AC at [1327]).
·With respect to Article 25(3)(d):[143]
(1) The accessory must have voluntarily contributed in a significant or substantial way to the organisation’s ability to pursue its purpose of committing war crimes, aware that their assistance would in fact further that purpose (R (on the application of JS) at [38] and [49]).
(2) A significant contribution is a contribution that may influence the commission of the crime, or have a bearing on the occurrence of the crime and/or the manner of its commission (Katanga at [1632]-[1633]) and a number of different factors may be relevant to that assessment (Mbarushimana at [284]).
(3) It is the effect of the conduct on the realisation of the crime which counts (Katanga at [1635]).
(4) Knowledge of the group’s criminal intentions is sufficient (for the mental element) to incur liability for contributing to a group of persons acting with a common purpose; intent to commit any specific crime is not required (Mbarushimana at [289]).
[143] GZCK at [187].
There is no evidence of any instance in which the Applicant was involved with any crimes committed by the Gaddafi regime. Applying the caselaw, it is not sufficient to establish that a government, regime or organisation to which the Applicant supported at a low level has committed crimes in order to establish that the Applicant has committed a crime. Something more is required. There must be a connection between what the Applicant did, and the crimes identified. While the Respondent submitted that it was sufficient that the perpetrator knew that the crime was part of a widespread and systematic attack, in the Tribunal’s view Article 25 requires a level of knowledge on the part of the Applicant himself which is not sufficiently established on the evidence before the Tribunal.
In the Tribunal’s view taking the Applicant’s claims at their highest, the Applicant heard sounds he considered could be people being tortured within the building housing the Mirzan RC headquarters. It has not been established that any persons were so tortured in that building by the Mirzan RC, but even accepting they were the Tribunal does not consider the Applicant’s level of knowledge would be sufficient to meet the requirements of Articles 25(3)(c) or (d). Applying those provisions, the Applicant he would have had to have ‘lent their assistance with the aim of facilitating the offence’ and ‘at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events’ (Article 25(3)(c)) or had ‘voluntarily contributed in a significant or substantial way to the organisation’s ability to pursue its purpose’ and had ‘knowledge of the group’s criminal intentions‘ (Article 25(3)(d)). The Tribunal does not consider the evidence was sufficient to establish either requirement was met in the Applicant’s circumstances.
The Tribunal finds that the Applicant was a low-level supporter of the Gaddafi regime. ‘Low level’ in the sense he did not fill a formal role in the regime or the RCs but voluntarily provided information to the RC in order to advance his career and support the continued governance of the regime which he believed was a positive force in Libya., The evidence falls short of the requite thresholds for establishing serious reasons for considering he engaged in crimes against humanity.
Conclusion
Sections 5H(2)(b) and s 36(2C)(a)(ii)
As noted above, at the hearing the Minister did not contend that s 5H(2)(b) or s 36(2C)(a)(ii) applied to the Applicant. That is, the Minister did not contend that there were serious grounds for considering that the Applicant has committed a serious non-political crime before entering Australia.
For the avoidance of doubt, the Tribunal finds that there was no information before it to satisfy the Tribunal that the Applicant had committed a serious non-political crime before entering Australia. Based on the evidence before it the Tribunal is not satisfied that there are serious reasons for considering that the Applicant engaged in activities which constitutes a serious non-political crime prior to entering Australia. The Tribunal considers that s 5H(2)(b) and s 36(2C)(a)(ii) are not engaged in the Applicant’s circumstances.
Sections 5H(2)(a) and s 36(2C)(a)(i)
The Respondent submitted that the Tribunal should be satisfied that the evidence of the Applicant’s admissions regarding his knowledge that reports to the RC could lead to the killing, torture and imprisonment of those he reported on and country information regarding human rights abuses by the Gaddafi regime were sufficient to give rise to serious reasons for considering that the Applicant had committed a crime against humanity. The Respondent submitted that the Applicant’s actions aided and abetted the imprisonment, torture and killing of those opposed to the Regime.[144]
[144] Citing Articles 7(1)(a), 7(1)(e), 7(1)(f), 25(3)(c) and 30 of the Rome Statute.
The Tribunal accepts ‘serious reasons for considering’ does not impose some separate standard of proof. However, the Tribunal also does not accept that the evidence before it amounts to serious reasons for considering that the Applicant committed crimes against humanity as a low-level supporter of the Gaddafi regime.
The veracity of the Applicant’s claims are in doubt and he has resiled from his earlier claims which were made in circumstances where his objective was to persuade the delegate he faced a risk of harm on return to Libya. There are also serious doubts over the genuineness of those claims to fear harm having regard to the Applicant’s past actions in the immigration context, including his late application for protection and return family visits to Libya, and his family circumstances in Libya.
Outside the Applicant’s own prior admissions, there was no other evidence before the Tribunal which could suggest that there were reasons, let alone serious reasons, for considering that the Applicant had committed any act that would constitute a crime against humanity for the purposes of ss 5H(2)(a) or 36(2C)(a)(i). In such circumstances, the Tribunal considers that establishing serious grounds for considering requires evidence of an extrinsic and objective nature to establish the Applicant has engaged in acts which offend ss 5H(2)(a) or 36(2C)(a)(i).[145] While an Applicant’s confessions or admissions may go to establishing such facts, such confessions must be considered to be reliable. In the Applicant’s case and for the reasons outlined above, the Tribunal is not satisfied that they were.
[145] Shokar and MIMA [1998] AATA 144.
Having regard to all the information before it the Tribunal is not satisfied that 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 by the international instruments prescribed by the regulations.
Accordingly, the Tribunal finds that ss 5H(2)(a) and 36(2C)(a) do not apply to the Applicant.
Decision
The decision of the delegate of the Respondent to refuse the Applicant the grant of a Protection (Class XA) (Subclass 866) visa under s 36(2) of the Migration Act 1958 (Cth) is set aside and remitted for reconsideration with a direction that sections 5H(2) and 36(2C)(a) of the Migration Act do not apply to the Applicant.
I certify that the preceding 226 (two hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford
............[Sgd]........................................................
Associate
Dated: 29 June 2023
Dates of hearing: 7 December 2020, 8 December 2020, 22 December 2020 and 10 February 2021 Date final submissions received:
10 July 2022
Solicitors for the Applicant:
Ms C Faulkner, Estrin Saul Lawyers
Counsel for the Respondent:
Ms R Francois
Solicitors for the Respondent:
Ms J Strugnell, Minter Ellison
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