JSDW and Minister for Immigration and Border Protection (Migration) - [2017] AATA 2420

JSDW and Minister for Immigration and Border Protection (Migration) [2017] AATA 2420 (1 November 2017)
Division:GENERAL DIVISION
File Number: 2016/4779
Re:JSDW
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Deputy President Stephen Boyle
Date:1 November 2017
Place:Perth

The decision under review is affirmed
............[sgd].........................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
IMMIGRATION – whether applicant is a person to whom Australia has protection obligations – applicant found guilty of people smuggling and sentenced to term of imprisonment in Australia – credibility finding -- serious reasons for considering applicant has committed a serious non-political crime -- decision under review affirmed
LEGISLATION
Anti-People Smuggling and Other Measures Act 2010 – s 8
Migration Act 1958 – ss 5(1), 5H(1)-(2), 29, 36(1A), 36(2), 36(2C), 46A(1), 91L, 189, 195A, 500(1)(c), 501K
Migration Regulations 1994 – Sch 2, subcl 785
CASES
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
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] HCA 26
Hapugoda v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Ramirez v Canada (Minister of Employment and Immigration) (1992) 2 FC 306
SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42
SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9
SZRMQ v Minister for Immigration and Border Protection (2013) 139 ALD 436
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245
YYMT and MQCR and Minister for Immigration and Citizenship [2010] AATA 447
SECONDARY MATERIALS
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Articles 1A, 1F
UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05, available at:
UNHCR Handbook and Guidelines on Procedures and Criteria For Determining Refugee Status, Reissued Geneva, December 2011
UNCHR Guidelines On International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees
Background Note on the Application of the Exclusion Clauses: Article: 1F of the 1951 Convention relating to the Status of Refugees,
Guy S, Goodwin‑Gill and Jane McAdams, The Refugee in International Law, Oxford University Press 3rd ed, 2007

REASONS FOR DECISION
Deputy President Dr Christopher Kendall
1 November 2017
INTRODUCTION

Section 501K of the Migration Act 1958 (Cth) (the “Migration Act”) provides that when a review by the Administrative Appeals Tribunal (the “Tribunal”) relates to a person who seeks or has a protection visa, the Tribunal will not publish any information that identifies that person or any relative or other dependants.
In order to comply with s 501K of the Migration Act, the applicant in these proceedings will be referred to by the pseudonym “JSDW”.
The Tribunal also orders that, due the nature of the material discussed below and the risk of harm to JSDW and others, the names of persons and places are also to be deleted or altered.
This is an application for the review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) under s 65 of the Migration Act to refuse to grant JSDW a visa. The visa sought by JSDW is a Temporary Protection (Class XD) Visa. The decision to refuse to grant the visa is a decision which can be reviewed by the Tribunal pursuant to s 500(1)(c) of the Migration Act.
The Tribunal is satisfied that the application was made within the time prescribed by and is otherwise in accordance with the requirements the Administrative Appeals Tribunal Act 1975 and the Migration Act.
THE EVIDENCE
This matter was heard in Perth on 3 October 2017. JSDW appeared in person and was represented by Mr Edwards of counsel as instructed by Cathal Smith Pty Ltd. The Minister was represented by Mr Macliver of counsel and Ms Ladhams as instructed by the Australian Government Solicitor. JSDW gave evidence and was cross-examined. No other witnesses were called.
The documents before the Tribunal consisted of:
(a)JSDW’s Statement of Facts Issues and Contentions received 24 February 2017 (A1);
(b)JSDW’s Amended Statement of Facts, Issues and Contentions received 10 July 2017 (“JSDW’s amended SoFIC”) (A2);
(c)a letter of support from Ms R dated 5 September 2017 (A3);
(d)a 403 page set of T-Documents dated 7 October 2016 (T1-T47) (R1);
(e)a set of supplementary T-Documents received 8 May 2017 (R2);
(f)the Minister’s Statement of Facts Issues and Contentions dated 31 March 2017 (R3); and
(g)the Minister’s Amended Statement of Facts Issues and Contentions dated 26 May 2017 (“Minister’s amended SoFIC”) (R4).
BACKGROUND
The facts, as set out in JSDW’s amended SoFIC (A2), are not materially disputed by the Minister. They are as follows:
1.The applicant, an ethnic Hazara and Shia Muslim, was born on 28 January 1982 in Sawsang Haider, Jaghouri, Ghazni Afghanistan (T7, 107).
2.In January 2008 the applicant fled Afghanistan to Quetta, Pakistan (T2, 14). The applicant resided in Quetta until April 2010 when he realised that the situation for Hazara Shias was deteriorating in Pakistan (T7, 128).
3.The applicant made arrangements with an agent in Quetta to leave for Australia. The agent told the applicant it would cost US $12,000 to get him to Australia. The applicant’s brother paid the agent and the applicant left for Indonesia in April 2010 (T2, 14; T29, 318).
4.The applicant remained in Indonesia from May 2010 to May 2012 in transit to Australia (T2, 14; T7, 128).
5.In May 2010 the applicant was detained by Indonesian authorities for illegally residing in Indonesia (T2, 14). The applicant had US $2,000 in cash which was confiscated by the police and not returned (T29, 315).
6.The applicant was released on 21 January 2011 after being recognised by the UNHCR as a refugee on 30 December 2010 (UNHCR Registration number 186-10C01702) (T2, 14). The applicant was then sent to an immigration camp in Medan for approximately 12 months before then moving to Jakarta, Bogor where he then planned to leave for Australia (T29, 315).
7.As the applicant had lost contact with his original people smuggler, he had to make further arrangements to travel on to Australia and pay a further sum of US $4,000. Given the applicant's financial circumstances he was only able to pay half of that sum and so he agreed to assist people smugglers in return for a promise that arrangements would be made for his own passage into Australia (T29, 315).
8.In May 2012 arrangements were made for the applicant to travel to Australia. On 7 May 2012 the applicant arrived on Christmas Island as an Illegal Maritime Arrival (“IMA”) on a boat codenamed “Ebor” (Boat ID: EB047) (T7, 107, 109).
9.The applicant was subsequently detained and placed in immigration detention. He has since been detained at various detention facilities and is currently detained at Villawood Immigration Detention Centre in Sydney, Australia.
10.On 19 February 2013 the applicant lodged an application for a Protection (Class XA) (Subclass 866) Visa (T7, 95-125).
11.In a statutory declaration attached to his application, the applicant made the following claims:
a)In 2005 he opened a book store in Afghanistan at the Sange Mashad Bazaar called “Tolou Kotob Faroshi” which sold books of various types. Those books were supplied by a Pashtun man named [Mr R] who was a distributor (T7, 126);
b)On or around 2007 he was sentenced to death by his local Jigra because he was accused of converting to, and encouraging, Christianity on the basis that he was selling Christian books in his book store (T7, 127; T25, 222);
c)His family was prevented from attending the Mosque and his sisters were not allowed to attend school. The Mullah and elders also arranged to kill [Mr R]. He heard that [Mr R] was killed in his village (T7, 127; T43, 379);
d)Fearing his safety, the applicant fled to Quetta, Pakistan in 2008 and then to Indonesia in 2010 (T7, 127-128);
e)If returned to Afghanistan, he fears that he will be seriously harmed or killed due to his conduct of selling Christian books (T7, 128).
12.On 29 July 2013 a delegate of the Department of Immigration and Border Protection (the “Department”) refused the applicant’s protection visa application because he was not satisfied the applicant was a person in respect of whom Australia owes protection obligations (T23, 187-210).
13.On 1 August 2013 the applicant sought review of the delegate’s decision (T2, 14).
14.On 18 October 2013 the Refugee Review Tribunal decided to remit the application under review to the Department on the basis that the applicant is a refugee for the purposes of the Migration Act 1958 (Cth) (“Act”) and a person in respect of whom Australia owes protection obligations (T25, 219-227).
15.On 5 February 2014 a delegate of the Department refused the applicant’s protection visa application a second time on the ground that he did not satisfy clause 866.222 of the Migration Regulations 1994 (Cth) (“Regulations”) (T26, 255, 266).
16.On 31 July 2014 the Refugee Review Tribunal remitted the application for reconsideration with the direction that the applicant satisfies clause 866.221(2) of the Regulations (T28, 273-276).
17.On 5 September 2014 the applicant was found guilty by jury of facilitating and bringing to Australia one unlawful non-citizen, … , contrary to s 233A of the Act.
18.The applicant arranged for Ms [A] to travel to Australia on the same boat as him (T2, 20-21).
19.      Those arrangements included:
a)A payment of US $16,000 from Ms [A]. That amount was paid to the applicant in Indonesia in two separate payments; one of $8,000 and another of $2,000 (T2, 20). The remaining $6,000 was agreed to be paid after Ms [A] had come to Australia, however that payment was never made to the applicant; and
b)Transport of Ms [A] and her children from her house in …. Indonesia, to the boat (T2, 24).
20.On 6 October 2014 the applicant was sentenced in the District Court of Western Australia to imprisonment for a term of 3 years and 6 months. The court ordered that the applicant be released after serving 2 years and 5 month of that sentence (T33, 337).
21.In recognition of the fact that the applicant had been detained since his arrival in Australia, the sentence was backdated and the applicant’s custodial term ended on the date of his sentencing: 6 October 2014 (T43, 380).
22.      In sentencing the applicant, the sentencing Judge accepted that:
a)        The applicant had no prior criminal record in Australia (T29, 320);
b)The applicant was a low-level participant in the facilitation of the illegal bringing to Australia of Ms [A] (T29, 314-315);
c)There was no evidence that the applicant retained the moneys received by Ms [A] (T29, 316); and
d)The applicant’s role in organising Ms [A]’s travel to Australia was not for commercial purposes, but was to assist himself to travel to Australia (T29, 316).
23.On 12 March 2014 the applicant was notified by the Department of a data breach that occurred in February 2014 which enabled temporary access to his personal details (T33, 339). In addition, further releases of the applicant’s details were discovered including:
a)A release of his personal information (his name and an inaccurate description of his involvement in people smuggling) on the ABC program Lateline on 29 August 2013 (T2, 48) (attachment“1”);
b)An unintentional release of his personal information on the Department’s website in September 2014. The information included his name and details regarding his conviction for people smuggling which were inaccurately described (T2, 47-48);
c)A media release from the Commonwealth Director of Public Prosecutions on 7 October 2014 which included the applicant’s name and details of his conviction (T2, 48) (attachment “2”); and
d)An inadvertent request that a check be conducted through the Identity Checking Unit, Ministry of Interior Afghanistan to verify the applicant’s identity and Driver’s Licence on 29 April 2016 (T2, 48).
24.On or around late 2014 the applicant made a complaint to the Australian Human Rights Commission (the “HRC”) against the Department alleging that continued detention following his sentence was a breach of human rights under the Australian Human Rights Commission Act 1986 (Cth). The HRC formed a Preliminary View upholding the complaint on 24 May 2016 and, after submissions from the Department and Minister, a Revised Preliminary View on 9 December 2016 (attachment “3”).
25.On 24 April 2015 the applicant was notified by the Department that his application for a Protection (Class XA) visa was now taken to be, and to always have been, a valid application for a Temporary Protection (Class XD) (Subclass 785) Visa. This change was due to legislative amendments inserted into section 45 AA of the Act and regulation 2.08F (T30, 325). The applicant was also notified that information regarding his conviction may lead his case to be excluded under Article IF of the Convention relating to the Status of Refugees (“Refugees Convention”) and/or Section 36(2C) of the Act (T30, 325-326).
26.A response to this notification letter was provided by the applicant’s representative on 30 April 2016 (T43, 376-383).
27.On 18 August 2016 a delegate of the Department refused the applicant’s protection visa application finding that he is not a person in respect of whom Australia has protection obligations because Article IF of the Refugees Convention and s 36(2C)(a) of the Act applies.
28.On 1 September 2016 the applicant applied to the Administrative Appeals Tribunal (“AAT”) for review of that delegate’s decision.
The Minister’ amended SoFIC (R4) asserted additional facts as follows:
Additional facts relating to the applicant’s commission of a further serious non-political crime - the aggravated offence of people smuggling pursuant to s 233C(1) of the Migration Act
9.In late December 2011 the applicant contacted [AR], the brother of Ms [A] and offered to organise for the family to travel to Australia by boat and that [AR] agreed to this. The applicant was then known as [M].
10.Ms [A]’s mother subsequently went to Jakarta and paid the applicant for her voyage to Christmas Island and for Ms [A]’s brother’s voyage and her brother’s wife’s voyage to Christmas Island.
11.The applicant came to Ms [A]’s home in February 2012 and advised her that he would charge her US$16.000 to arrange transport for her and her three children to travel to Christmas Island, that he would accept a payment of US$10.000 prior to the voyage, and that she could pay him the remaining US$6.000 after she had arrived in Australia and been released from detention. The US$10.000 was paid to the applicant by two payments of US$8,000 and US$2,000 sent by Ms [A]’s brother, [KH], in Malaysia.
12.On 3 May 2012 the applicant came to Ms [A]'s home and took her and her children in a taxi to Jakarta, where they boarded a bus which took them to the coast, and they boarded a boat for Australia which took them to Christmas Island. The applicant told Ms [A] not to tell the rest of her family because the boat would become overcrowded, but that they had arranged another boat and her family would be leaving in three days.
13.The taxi in which the applicant took Ms [A] and her three children to Jakarta had other people in it when Ms [A] and her children got into it whom she did not know, and they all got onto the bus after the taxi got to Jakarta.
14.In January and February 2012 Ms [U] travelled from Pakistan to Indonesia, and went to the home of Ms [A] as she had been instructed.
15.Ms [U] was introduced to the applicant who told her that he could organise the final part of her journey from Indonesia to Australia for US$6,000, and Ms [U] agreed to the price and paid the applicant US$3.000 in cash as a deposit.
16.Ms [U] experienced personal problems with the applicant and she was asked to leave Ms [A]’s house. Ms [U] was subsequently contacted by her former school principal, [NA]. who took her to the house of Mr [S].
17.Ms [U] had a meeting with Mr [S] during which he informed her that the applicant worked for him as a people smuggling agent, and that the applicant had told him that Ms [U] still owed them money as she had only paid US$1,500 and still owed them US$1,500 for her voyage to Australia. Ms [U] told Mr [S] that this was not true as she had paid US$3.000 to the applicant.
18.In early May 2012 Mr [S] contacted Ms [U] and instructed her to prepare to depart for Australia, and the following morning she was picked up in a 4 wheel drive vehicle and taken to another villa, and that another vehicle picked them up and took them to Jakarta where they boarded a bus. Also on the bus were the applicant, Ms [A] and Mr [N].
19.The bus took Ms [U] and its other occupants to the coast, where they were transported from a small boat to a larger one which took them to Christmas Island. The applicant and Ms [A] were also on board the boat.
20.The applicant was originally charged with an offence against s 233C of the Migration Act, as well as two charges under s 233A of the Migration Act in relation to Ms [A] and Ms [U].
21.At the commencement of the District Court trial in relation to the charges against the applicant and [other accused] the Commonwealth Director of Public Prosecutions sought to discontinue the charge against the applicant under s 233C of the Migration Act and the further charge in relation to s 233A in respect of Ms [U].
22.The Commonwealth Director of Public Prosecutions decided not to call Ms [U] as a witness because she had grave concerns for the safety of her relatives in Pakistan should she give evidence in the trial before the applicant, and sought a discharge of the witness summons issued to her.
23.The Court granted the Crown’s application to discontinue two of the charges against the applicant and to discharge Ms [U] from her witness summons, and declined the applicant’s application that Ms [U] to be made available for cross-examination.
JSDW’s amended SoFIC (A2) responded to those additional facts asserted by the Minister as follows:
On 16 May 2014, the applicant was charged with 3 offences under the Act. The first offence was under s 233C(1) and was regarding an allegation that the applicant facilitated the travel to Australia of 5 or more non-citizens who had no lawful right to come to Australia. The second offence was regarding the applicant facilitating [Ms A]’s travel to Australia, and the third offence was regarding an allegation that the applicant facilitated the travel of [Ms U] to Australia (ST3, 685).
(added between paragraphs 15 and 16 of the original Statement of Facts, Issues and Contentions as set out in paragraph 5 above).
…
On 21 August 2014, the Commonwealth Director of Public Prosecutions discontinued the charges against the applicant regarding his alleged offence under s 233C(1) of the Act and his alleged offence under s 233A(1) of the Act in relation to [Ms U] (ST3, 683).
(added between paragraphs 16 and 17 of the original Statement of Facts, Issues and Contentions as set out in paragraph 5 above).
…
The Tribunal ought not make the findings of fact contended for at [9]-[19] of the Respondent’s amended SFICs. These facts are set out under the heading “Additional facts relating to the applicant’s commission of a further serious non-political crime - the aggravated offence of people smuggling pursuant to s 233C(1) of the Migration Act”. In relation to the Respondent’s contention that there are serious reasons for considering that the applicant committed an offence under s 233C(1) of the Act, the first question the Tribunal has to ask itself is whether there are serious reasons for considering that the applicant committed such an offence. It is not required to ask itself whether it is satisfied that the facts said to constitute the offence exist: FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 per French CJ and Gageler J at [13]-[16]. per Hayne J at [32]-[36] and per Crennan and Bell JJ at [79]-[83].
(added after paragraph 28 in the original Statement of Facts, Issues and Contentions as set out in paragraph 5 above)

The additional facts asserted by the Minister’s amended SoFIC (R2) were the subject of amendments to the issues and contentions that each party put forward in their respective amended SoFICs. These additional facts are addressed in the issues contended by each party as set out below.
THE ISSUES
JSDW identifies the issues to be:
(a)whether, in the context of Article 1F(b) of the United Nations 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol (the “Refugees Convention”) and s 36(2C)(a) of the Migration Act, JSDW’s conviction for an offence under s 233A of the Migration Act amounts to commission of a serious non-political crime outside Australia; and
(b)whether, there are serious reasons for considering that the applicant committed an offence under s 233C(1) of the Migration Act; and, if so, whether this amounts to the commission of a serious non-political crime outside Australia.
The Minister identifies the issues as follows:
(a)The Minister agrees with JSDW that one of the issues for determination by the Tribunal is whether JSDW’s crime for which he was convicted under s 233A of the Migration Act constituted a serious non-political crime outside Australia.
(b)The issue of whether the crime for which JSDW was convicted under s 233A of the Migration Act was a serious non-political crime arises because:
(i)Under s 36(2)(a) of the Migration Act in the form in which it applies to JSDW, Australia does not have obligations to an applicant under the Refugees Convention if there are serious reasons for considering that he has committed a serious non-political crime prior to his admission to Australia, within the meaning of paragraph (b) of Article 1F of the Refugees Convention; and
(ii)Under s 36(2C)(a)(ii) of the Migration Act, JSDW is taken not to satisfy the criterion mentioned in s 36(2)(aa) (complementary protection) if the Minister has serious reasons for considering that JSDW committed a serious non-political crime before entering Australia.
(c)The second issue for determination by the Tribunal is whether there are serious reasons for considering that JSDW committed a serious non-political crime outside Australia under s 233C(1) of the Migration Act by facilitating the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons who are non-citizens who had no lawful right to come to Australia.
While the parties formulate the issues slightly differently, the core issues for the Tribunal to determine are whether the crime for which JSDW was convicted, namely commission of an offence under s 233A of the Migration Act, was a serious non-political crime and, as a secondary issue, whether there are serious reasons for considering that JSDW committed a serious, or a further serious, non-political crime -- in particular, an offence under s 233C(1) of the Migration Act.
LEGAL FRAMEWORK
Section 36 of the Migration Act deals with protection visas, which may be sought by persons who claim to be refugees. At the time of JSDW’s protection visa application ss 36(1) and (2) relevantly were as follows:
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
The criteria for the grant of a Subclass 785 Temporary Protection visa, set out in Schedule 2 to the Migration Regulations 1994 (Migration Regulations), reflect the requirements of s 36(2) of the Migration Act.
The convention referred to in s 36(2)(a) of the Migration Act is the Refugees Convention. Article 1A of the Refugees Convention defines the term refugee and specifies those to whom obligations are owed under the Refugees Convention.
Article 1A(2) of the Refugees Convention defines a refugee as someone who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
The Refugees Convention has a number of exclusion clauses, including, relevantly, Article 1F. Article 1F provides:
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.
[Emphasis added]
Similarly, not all persons who come within the description of persons in s 36(2)(aa) of the Migration Act are owed protection obligations. Pursuant to s 36(2C) of the Migration Act, a non-citizen is taken not to satisfy the criterion in s 36(2)(aa) if the circumstances set out in s 36(2C)(a) or s 36(2C)(b) apply to the non-citizen. Section 36(2C) provides:
(2C)A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(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; or
(b)       the Minister considers, on reasonable grounds, that:
(i)        the non-citizen is a danger to Australia’s security; or
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
At the time of JSDW’s protection visa application s 91T of the Migration Act provided:
91T Non-political crime
For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a non-political crime within the meaning of this Act.
The expression “non-political crime” is, and was at the time of JSDW making the application, defined in s 5(1) of the Migration Act as follows;
non-political crime:
subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and
includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
Section 233A of the Migration Act is and was at the material time as follows:
(1)       A person (the first person) commits an offence if:
(a)the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
(b)the second person is a non-citizen; and
(c)the second person had, or has, no lawful right to come to Australia.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2)       Absolute liability applies to paragraph (1)(b).
Note:   For absolute liability, see section 6.2 of the Criminal Code.
(3)For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.
Section 233C of the Migration Act is and was at the material time as follows:
Aggravated offence of people smuggling (at least 5 people)
(1)       A person (the first person) commits an offence if:
(a)the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
(b)at least 5 of the other persons are non-citizens; and
(c)the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.
Penalty:          Imprisonment for 20 years or 2,000 penalty units, or both.
Note:Sections 236A and 236B limit conviction and sentencing options for offences against this section.
(2)       Absolute liability applies to paragraph (1)(b).
Note:    For absolute liability, see section 6.2 of the Criminal Code.
(3)       If, on a trial for an offence against subsection (1), the trier of fact:
(a)       is not satisfied that the defendant is guilty of that offence; and
(b)is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;
the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Section 36(2)(a) and Article 1F and the grant of protection visas
The effect of the above provisions is that if an applicant for a protection visa is a person to whom Article 1F of the Refugees Convention applies, the provisions of the Refugees Convention do not apply to that person with the consequence that the applicant is not a person "in respect of whom...Australia has protection obligations under the Refugees Convention" within the meaning of s 36(2)(a) of the Migration Act. Such an applicant would also not satisfy the paragraph 36(2)(a) requirement in subclause 785.221(2) in Schedule 2 of the Migration Regulations.
Further, if Article 1F of the Refugees Convention applies in the present case because JSDW is found by this Tribunal to have committed a serious non-political crime outside Australia, JSDW is not a refugee within the terms of the Refugees Convention whether or not he has a well-founded fear of persecution in Afghanistan.
Section 36(2)(aa) and s 36(2C) and the grant of protection visas
If an applicant for a protection visa is a non-citizen in respect of whom s 36(2C)(a) or (b) applies, then the non-citizen is taken not to satisfy the criterion in s 36(2)(aa).
Accordingly, if the Tribunal finds that JSDW committed a serious non-political crime before entering Australia, he does not satisfy the criterion in s 36(2)(aa), and will not be a person in respect of whom Australia has protection obligations under that provision, even if there is a real risk he will suffer significant harm if he were to be removed to Afghanistan.
CONSIDERATION
Was the crime for which JSDW was convicted under s 233A of the Migration Act a serious non-political crime?
On 5 September 2014, JSDW was convicted of organising or facilitating the unlawful entry of a second person into Australia contrary to s 233A of the Migration Act (ST3 at 682). JSDW contends that, when considering the offence and all surrounding circumstances together, the crime for which he was convicted was not serious enough to warrant exclusion under Article 1F of the Refugees Convention or s 36(2C) of the Migration Act (paragraph 34 of JSDW’s amended SoFIC).
JSDW pleaded not guilty to the relevant charge. A hearing took place in the District Court of Western Australia before Herron DCJ between 25 August 2014 and 5 September 2014 (ST3 at 682). Another individual involved with the unlawful entry vessel on which JSDW arrived was tried at the same time as JSDW and the charges against both accused were heard together.
In sentencing JSDW, Judge Herron made the following comments. (Note that the Tribunal has changed reference in the transcript to JSDW’s name and the names of other individuals involved to protect their identity and has deleted the comments by His Honour relating only to the other accused person)(ST2 at 667-680):
[JSDW] and [other accused], you were both charged on indictment dated 21 August 2014.[JSDW], you were charged with one count, of between 1 January 2012 and 6 May 2012, in Indonesia and seas between Indonesia and Australia, you organised or facilitated the bringing or coming to Australia of a person who was a non-citizen, namely Ms [A], where it said that Ms [A] had no lawful right to come to Australia.
…
…you each pleaded not guilty to the charge on the indictment. Your trial commenced on 25 August 2014. On 5 September, the jury returned verdicts of guilty to the charge against each of you.
…In relation to the offence of which you have each been convicted and consistently with the verdict of the jury, I find the facts as follows, and [JSDW] I'll deal with you first.
While Ms [A] was staying in …. Indonesia with her three children, in about February 2012, she met you. You were also known as [M]. Initially, you spoke with Ms [A]’s brother as to whether she wanted to travel any further, and you were told she didn't. However, she later decided she did want to travel to Australia and she discussed with you travelling to Australia for her and her three children. You paid - you said you would - I'll start that again.
You said you would arrange their travel from Indonesia to Christmas Island if she paid you $16,000. Ms [A] told you she only had access to $10,000. You told her you would accept payment of $10,000 immediately and the remainder of $6,000 could be paid after she had come to Australia and been released from detention.
Ms [A] then arranged through her brother, who was living in Malaysia, for the $10,000 to be paid. There were two separate payments; one of $8,000 and one of $2,000. The $8,000 was sent by Ms [A]’s brother to her mother who was in Indonesia as well, and then given to you in the presence of Ms [A] at the house she was staying in, in Bogor. The second amount of $2,000 was transferred directly from Ms [A]'s brother in a different person's name.
You later confirmed with Ms [A] you had received the amount of $2,000 and told her they would be leaving soon to travel to Australia. That was in about May of 2012. You then came to Ms [A]'s house and told her to come with you, with her children, so that they could commence their travels. They went with you in a car to where you told them a boat would be leaving that night.
Ms [A] then got onto a boat which left Indonesia for Australia. You travelled on the same boat. That boat, SIEV 326, was later intercepted by the Australian Navy about 70 nautical miles north of Christmas Island after information was received the boat was in distress.
It was the Crown case you assisted Ms [A] to travel to Australia by (1) receiving money paid on her behalf and arranging for her to travel to Australia; (2) arranging and assisting with her transport from her house to get onto a boat to travel to Australia. I find you assisted Ms [A] and her children to travel to Australia as alleged by the Crown.
That is the same boat which was later given the label by the Australian Navy SIEV 326. I find you [other accused] assisted Mr [H] as alleged by the Crown. By assisting Ms [A] and Mr [H] to get onto the boat SIEV 326 which was later intercepted by the Australian Navy, you each intended that by that assistance Ms [A] and Mr [H] Ms [A] would be brought to Australia and you each organised or facilitated the bringing or coming of a person to Australia.
Can I come back to you, [JSDW]? [JSDW], when you collected Ms [A] and her children and told her they had to leave the house and they were leaving that night that while they were travelling in the taxi she asked what would happen to her other family members who were in Bogor. You told her there wasn't room on that boat and they would come on another boat a few days later.
Her family other than her children didn't in fact come on that boat as you told her. The payment of a deposit in Indonesia with a balance to be paid in Australia was consistent with the evidence of Federal Agent [C] as to his experience and how people smugglers operate. The amount Ms [A] paid to you was also consistent with the evidence of Federal Agent [C] as to the amounts charged by people smugglers.
In Indonesia when you took Ms [A] to your co-accused, [other accused]'s house, you said that you worked for [other accused]. In your record of interview you said you helped [other accused]. You said in your record of interview that your co-accused, [other accused], charged you $4,000 to arrange for you to come to Australia. You paid $2,000 and because you didn't have the extra $2,000 you agreed to work for [other accused].
…
You told Mr [H] that when the boat was ready someone else would come and pick him up and take him to the boat and that is in fact- what happened. As I've already explained, Mr [H] was first taken to a villa where he stayed overnight with others who were also intending to illegally travel to Australia.
From those circumstances I draw the inference that each of you knew or were aware of the purpose and destination of the voyage and facilitated the travelling of Ms [A] and Mr [H] intentionally. You each denied he organised or facilitated the coming or bringing to Australia of Ms [A] or Mr [H].
You both said that you were in the same position as each of them in that you yourselves had paid people smugglers to organise and facilitate your own entry to Australia on SIEV 326. In sentencing each of you for the offence that you have committed I am required to impose a sentence which is of a severity appropriate in all of the circumstances of the offence.
When sentencing you I must consider the following matters; the nature and circumstances of the offence, the degree to which you have cooperated with law enforcement agencies in the investigation of the offence, the need to ensure that you're adequately punished for the offence, personal deterrence, your character and background including any physical or mental condition, your prospects of rehabilitation and the effect on family or dependents.
I must also consider general deterrence. General deterrence is an important sentencing consideration in cases of this type. I must place weight on the need to impose a sentence that is capable of acting as a deterrent to others who might be tempted to engage in the type of conduct that you have engaged in. ...
A necessary consequence giving effect to the sentencing consideration of general deterrence is that less weight must be given to mitigating circumstances that are personal to you. That is not to say that - such mitigating circumstances are irrelevant. They are not, however, they assume less weight than might otherwise be the case.
I must only pass a sentence of imprisonment if after having considered all other available sentences I am satisfied that no other sentence is appropriate in the circumstances. The role of general deterrence in cases of this kind cannot be doubted.
People smuggling threatens the orderly administration of immigration laws, imposes a financial burden on the Australian public, necessitates the deployment of military, customs and other governmental resources, encourages official corruption in other nations and exploits and imperils the health and lives of those carried or attempted to be carried into Australia. The statutory maximum penalty for people smuggling is 10 years' imprisonment or a fine of $110,000 or both.
In assessing the seriousness of your offending, I take into account the following matters in sentencing you.
[JSDW], again, I'll deal with you first.
You played a central role in the arrival of Ms [A] who was an unlawful non-citizen of Australia, to Australia, but I accept you were a low-level participant in the facilitation of the illegal bringing or coming to Australia of Ms [A].
When you initially spoke with Ms [A]'s brother in Indonesia, whether they wanted to travel further, they said they didn't, but she later told you she did want to come to Australia. Had you not initially approached her, she would probably not have later contacted you about coming to Australia.
Initially, when she spoke to you, she said she didn't have enough money. You then negotiated payment of a significant amount of US$16,000 for Ms [A] and her three children. In due course, a payment of US$10,000 was made to you, and an agreement was reached that the remaining amount of US$6,000 would be paid to you after arrival in Australia. You directly arranged for the transfer of Ms [A] and her children from the home they were living in, in Indonesia, to the boat which ultimately travelled to Australia. You travelled on the same boat.
Although the boat was able to travel to near Christmas Island, it was overcrowded and barely in a seaworthy condition. The vessel was intercepted by the Australian Navy after a distress signal from the vessel sent by Ms [A] was given because of difficulties being' experienced on the boat. The health and life of Ms [A] and her children was placed at risk by travelling aboard the boat.
While at the detention centre on Christmas Island, you told Ms [A] not to give your name to the immigration authorities. Your involvement directly led to the successful entry into Australia of Ms [A]. I also take into account the following matters: prior to coming to Australia, you paid $10,000 to travel from Pakistan to Indonesia in the expectation, for that sum, you would continue on to Australia.
However, you were arrested by Indonesian police as an unlawful entrant and spent six months and 20 days in an immigration detention facility in Indonesia. You had US$2,000 in cash with you which was confiscated by police and not returned. You were registered with the UNHCR in Indonesia and accepted as a refugee on 30 December 2010.You were released from immigration detention on 21 January 2011 and then sent to an immigration camp in Medan, where you spent approximately 12 months before then moving to Bogor where you tried to organise your own travel to Australia.
Because you lost contact with your original people smuggler, you had to make further arrangements to travel onto Australia and pay a further sum of $4,000. Because you weren't able to afford the full sum, you agreed to assist people smugglers in return for being promised that arrangements would be made for you to be taken to Australia. I'm satisfied your role was a low-level assistant for other agents higher up in the people smuggling network.
I accept the submission of your counsel that your role was like a scout or an agent to contact passengers and collect money. Your involvement in people smuggling was necessitated by your own circumstances, by being in Indonesia without the required moneys to arrange to be transferred to Australia.
I accept there is no evidence that you retained the moneys received by Ms [A], and it is likely you passed the moneys on to other people. Your role in organising Ms [A]'s travel to Australia was not for commercial purposes, but was to assist you in also being able to travel to Australia. You were in a similar position to Ms [A] and travelled on the same boat.
…
I now turn to deal with each of your personal circumstances and background, and again, [JSDW] I'll come to you first.
You were aged 32 years. You are from the Hazara ethnic group. Your first language is Hazaragi, but you also speak Urdu, which is the language in which you spoke with the interpreter when you gave evidence at the trial.
You were born in Afghanistan. You left Afghanistan in 2008, and then lived in Quetta, in Pakistan until you left for Indonesia in 2010. Because of threats to Hazara people in Pakistan, you decided to travel to Australia.
You spoke to an agent in Quetta who told you it would cost $12,000 US to get you to Australia. You travelled from Quetta to Karachi, then to Thailand, then Malaysia, and then to Indonesia. You were in Indonesia for about two years.
As I've already outlined, you were arrested in Indonesia and handed over to immigration authorities and spent the next six months and 20 days in a detention centre in Indonesia. You were then accepted as a refugee and sent to a camp in Maydan. You then lived in Jakarta and in Bogor for about four months before you took the boat to Christmas Island, which was intercepted by the Australian Navy.
The fact that you were in Bogor for four months I have taken into account in assessing the extent to which you were involved in a people smuggling network. I accept the submission of your counsel that because of the short time you were in Bogor, you could not have had sufficient time to get significantly involved in people smuggling activities.
I have also taken into account that your own financial circumstances were poor, and that while in Bogor you were baking and selling bread to support yourself. The payment for you to travel to Indonesia and payment of the $12,000 was made by your brother with a people smuggling representative in Pakistan. Your brother paid $10,000 US and a further $2,000 was paid to cover any extra expenses, which would be reimbursed if there was a difference.
You travelled from Karachi with three friends. A Visa and passport was arranged for you by an agent, and then taken off you when you got to Bangkok. You were arrested in Indonesia on 9 June 2010 because you didn't have a passport or Visa or any travel documents. You didn't have a Visa to come to Australia.
You were later advised by the UNHCR that it would take another two years to be processed as a refugee. You became frustrated at the time involved and then travelled to Jakarta without telling anyone, when you then renewed your refugee card.
You then travelled to Bogor, where there were many other Hazara people, all of whom had the sole objective to get to Australia. Everyone was asking for the names of agents who could help them get to Australia.
…
Neither of you have a prior record in Australia. You have each been detained in an immigration detention centre since your arrival on Christmas Island on 6 May 2012.
You each pleaded not guilty to the offence of which you have been convicted, as was your right. The fact that you pleaded not guilty does not aggravate the seriousness of your offence. However, it does mean that you do not attract the significant mitigatory benefit and associated reduction in sentence which comes with a guilty plea.
The prosecution does not contend that either of you are at high risk of re-offending, or that there is an increased need for personal deterrence.
[JSDW], I have been provided with a reference by [Ms R], dated 24 September 2014. She says she has known you for over two years and met you through her work as a volunteer with the Coalition for Asylum Seekers, Refugees and Detainees, visiting refugees and asylum seekers at the Yongah Hill Immigration Detention Centre in Northam in 2012.
[Ms R] first met you in August 2012, and you were one of a number of mainly Hazara men she met with on a regular basis. She said that because of your English language skills you were always looking out for other detainees, particularly older men without good English language skills, to ensure that any issues confronting them were discussed and raised.
After she stopped visiting Yongah Hill she continued to regularly communicate with you by email. You often raised issues about some of the other detainees, providing them with advocacy, relationship and support advice.
After you were transferred to the Perth Immigration Detention Centre for a period of weeks, [Ms R] regularly visited you and discussed your situation. She describes you as a person of great personal inner strength who cares for those around you. You have a positive attitude to life despite the extreme hardship you have experienced. You have good written and spoken English language skills. You are polite and well-spoken.
Each of you are in good physical and mental health. The object of the Migration Act is to regulate in the national interest the coming into and the presence in Australia of non-citizens.
The unlawful entry of non-citizens into Australia is a serious violation of this country's sovereignty and national security. Australia is particularly at risk from such offences due to its large coastline. Illegal immigration poses significant health and quarantine risks, and presents obvious social problems to the fabric of Australian society.
In addition to the significant impact of such offences on the Australian public, people smuggling also threatens the orderly administration of Australia's immigration laws. Many other deserving people who might otherwise have secured lawful entry into Australia are the indirect victims of illegal people smuggling.
The passengers who are brought to Australia in illegal people smuggling operations are also exploited, paying large sums of money and often risking safety and health in un-seaworthy vessels in the promise of a better life in Australia.
Generally, a conviction for people smuggling only justifies a sentence of immediate imprisonment. In determining the length of the non-parole period, or the period before release, pursuant to a Reconnaissance Release Order, a court is required to fix a term that justice requires the offender to serve, having regard to all of the circumstances of the offending.
In my view, in the case of each of you, only a term of imprisonment can, in all of the circumstances, be justified.
[JSDW], I will deal with you first.
I sentence you to three years and six months' imprisonment.
And I order that you are to be released after serving two years, five months' imprisonment, upon you giving security by reconnaissance in the sum of $2,000 to be of good behaviour for a period of 12 months.
…
The purpose of this order is intended to reflect the serious nature of the offence and hopefully its effect will reinforce the deterrent effect of the sentence.
If you agree to be bound by the order you will be released from custody having already served two years and five months in detention and provided that you are of good behaviour for the balance of the term, you will not be subject to any further penalty in respect of the offence of which you have each been convicted.
But if you fail without reasonable cause to comply with the conditions of the order, you may be brought back before the court and the court may then revoke the order, order that you forfeit the amount of the security, that is, the sum of $2,000…

It is common ground that the offence of people smuggling is a non-political crime for the purposes of s 5(1) of the Migration Act (definition of non-political crime) and Article 1F(b) of the Refugees Convention. It is also common ground that the crime here was committed outside Australia and before JSDW entered Australia. The Tribunal finds that the offence in question is a non-political crime, that it was committed outside Australia and that it was committed before JSDW entered Australia.
That leaves the issue of whether the crime for which JSDW was convicted was a serious crime as that term is used in the Refugees Convention and the Migration Act.
There is no definition of serious crime in the Refugees Convention. Both parties cited various provisions in the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status as giving guidance as to how the term serious crime in the Refugees Convention is to be read. Both cited paragraph 155 which is in the following terms:
In the present context, however, a “serious” crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b) even if technically referred to as "crimes” in the penal law of the country concerned.
JSDW’s amended SoFIC (A2) referred to paragraph 40 of the Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (the “Background Note”) which relevantly states:
Examples of “serious” crimes include murder, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct or other similar factors. On the other hand, crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the seriousness threshold of Article 1F(b).
JSDW also cites leading academic Professor Goodwin-Gill who writes:
With a view to promoting consistent decisions, the UNHCR proposed that, in the absence of any political factors, a presumption of a serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic and armed robbery.[1]
[1] Guy S, Goodwin‑Gill and Jane McAdams. The Refugee in International Law, Oxford University Press 3rd ed, 2007, 179
At paragraph 44 of his amended SoFIC, JSDW asserts that the elements of offences identified by Professor Goodwin-Gill and the Background Note coincide with the definitions of “serious Australian offence” and “serious foreign offence” in s 5 the Migration Act which are as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence ) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
JSDW concedes that the definitions of “serious Australian offence” and “serious foreign offence” are not exhaustive, but submits that they should “serve as a benchmark for indicating what sort of offences may be considered serious enough to warrant exclusion under Article 1F(b) and s 36(2C)”: see paragraph 45 of JSDW’s amended SoFIC. The Tribunal does not disagree with this proposition.
JSDW contends, at paragraph 47 of his amended SoFIC, that his crime cannot be classified as a “capital crime or a very grave punishable act” … “Nor could it be considered ‘serious’ in the same way as offences such as homicide, rape, child molesting, wounding, arson, drug trafficking and armed robbery”.
The Minister contends that the crime for which JSDW was convicted is a serious crime and points to the fact that the section in question was inserted by s 8 of the Anti-People Smuggling and Other Measures Act 2010 and that it imposes a “lengthy” maximum penalty of imprisonment for 10 years or 1,000 penalty points, or both.
Using JSDW’s “benchmark” of the criteria for a “serious Australian offence” and a “serious foreign offence”, as those terms are defined for determining what is a “serious crime” for the purposes of Article 1F(b) and s 36(2C), the same elements set out in subsections (b) of each of those definitions, namely the maximum term of imprisonment, are present in the offence for which JSDW was convicted. The maximum imprisonment terms for an offence to be considered a “serious Australian offence” or a “serious foreign offence” are imprisonment for a maximum term of not less than 3 years. The maximum term of imprisonment under s 233A of the Migration Act is 10 years.
Further, although the crime for which JSDW was convicted did not, as things turned out, involve violence against a person, as Herron DCJ noted in his sentencing comments;
Although the boat was able to travel to near Christmas Island, it was overcrowded and barely in a seaworthy condition ….The health and life of Ms [A] and her children were placed at risk by travelling aboard the boat
Exposing Ms [A] and her three children to the obvious and serious risk of death or injury by facilitating their illegal transportation on an overcrowded and barely seaworthy boat is, in the Tribunal’s view, at least at the same level of seriousness as engaging in actual violence against a person.
Further, using the “benchmark” of the elements of the definition of a “serious Australian offence” to determine whether the offence committed by JSDW is a serious crime, subsection (a)(iv) of the definition makes an offence against s 197A or s 197B of the Migration Act a “serious Australian offence”. Section 197A makes it an offence for a person in immigration detention to escape, punishable by 5 years imprisonment, and s 197B makes it on offence for a person in immigration detention to manufacture, possess or distribute a weapon, punishable by 5 years imprisonment. On the hierarchy of offences under the MigrationAct, even simply looking at the respective penalties of 5 years compared to 10 years for an offence under s 233A of the Migration Act, an offence under s 233A should, in the Tribunal’s view, be considered to be at least on par with if not a more serious offence than those identified in subsection (b)(iv) of the definition of “serious Australian offence”.
In the Tribunal’s view an offence which attracts a maximum penalty of 10 years or 1,000 penalty units, or both, which is equal to or higher in the hierarchy of offences under the Migration Act than offences considered to be serious Australian offences by the definition of that term in the Migration Act and one that exposes people to serious physical risk or death, must, on any objective and reasonable assessment, be considered to be a serious crime.
Further, the inherent nature of people smuggling which involves considerable risk to the life and safety of those smuggled, as well as the violation of Australia’s security and sovereignty, is such that it should properly be considered to be a serious crime. As Herron DCJ highlights in his sentencing remarks (T29 at 314):
People smuggling threatens the orderly administration of immigration laws, imposes a financial burden on the Australian public, necessitates the deployment of military, customs and other governmental resources, encourages official corruption in other nations and exploits and imperils the health and lives of those carried or attempted to be carried into Australia.
The Tribunal finds that an offence under s 233A is, prima facie, a serious crime for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C) of the Migration Act.
That, however, is not the end of the enquiry. The parties agree, and the Tribunal accepts, that in determining whether the crime in question was a serious crime, the particular circumstances of the commission of the crime need to be taken into account. In his amended SoFIC (A2 at paragraph 53), JSDW cited Ovcharuk v Minister for Immigration and Multicultural Affairs, (1998) 88 FCR 173 (Ovcharuk) in which Sackville J stated at [25]:
The question of the seriousness of the criminal conduct outside the receiving country is a matter to be determined by the receiving country, having regard to the circumstances of the particular case. Those circumstances include the expected and actual consequences of the criminal conduct
JSDW also cited (A2 at paragraph 54) SRCCCC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 315 in which (at [38]) the Tribunal referred to the UNHCR Handbook, which explains at paragraph 157 that:
In evaluating the nature of the crime presumed to have been committed, all the relevant factors — including any mitigating circumstances — must be taken into account.
A useful review of relevant Australian case law considering the factors to be taken into account in determining whether a particular crime is a “serious crime” for the purposes of the Migration Act is set out in the often referenced decision of Deputy President Forgie in YYMT and MQCR and the Minister for Immigration and Citizenship [2010] AATA 447 at paragraphs [162] to [171] (YYMT and MQCR)
At paragraph [164] the Deputy President, in noting the approach taken by Deputy President Forrest in Hapugoda v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659 (Hapugoda) said:
His approach is consistent to some extent with that suggested by GS Goodwin-Gill in The Refugee in International Law.[236] The author writes of the arrival of 125,000 Cuban asylum seekers in the United States of America in 1980. As a result, the United Nations High Commissioner for Refugees (UNHCR) was asked to advise on asylum applications likely to be refused on account of the asylum seekers’ criminal background. The UNHCR proposed:
“...that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery ... However, that presumption should be capable of rebuttal by evidence of mitigating factors, some of which are set out below. The following offences might also be considered to constitute serious crimes , provided other factors were present: breaking and entering (burglary); stealing (theft and simple robbery); receiving stolen property; embezzlement; possession of drugs in quantities exceeding that required for personal use; and assault. Factors to support a finding of seriousness included: use of weapons, injury to persons; value of property involved; type of drugs involved; ... evidence of habitual criminal conduct. With respect to all cases, the following elements were suggested as tending to rebut a presumption or finding of serious crime : minority of the offender; parole; elapse of five years since conviction or completion of sentence; general good character (for example, one offence only); offender was merely accomplice; other circumstances surrounding commission of the offence (for example, provocation and self-defence)....”
As JSDW points out in the his amended SoFIC (A2), the Tribunal in the Hapugoda case also noted that:
Elements suggested as tending to rebut a presumption of serious crime include the age of the offender, parole, lapse of five years since conviction or completion of sentence, general good character, offender being merely an accomplice and other circumstances.
At paragraph [165] of the decision in YYMT and MQCR, Deputy President Forgie points out that Australian authority, by which the Tribunal is bound, does not allow the fact of the offender having served his or her sentence or the elapse of time since the sentence was served being taken into account. The other factors, however, are factors that should be taken into account when assessing whether a crime is a serious crime for the purposes of Article 1F(b). The Tribunal does not understand the Minister to contend otherwise.
JSDW points to the case of SRBBBB and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1066 (SRBBBB) as an example of where the particular circumstances of the commission of the offence were taken into account in determining whether the offence was a serious crime. JSDW refers to the fact that in SRBBBB the applicant’s role in the people smuggling operation for which he had been convicted under s 232A (now s 223C) of the Migration Act was such that, although the offence under the Migration Act was a serious one, his role was so minor that it should not be treated as a serious crime for the purposes of Article 1F(b) of the Refugees Convention. The circumstances of the commission of the crime in that case and the consideration given by the Tribunal to those circumstances are set out in the decision of Deputy President Handley in the following paragraphs:
56.Turning then to whether, in the Tribunal's judgement, the Applicant's crime was "serious", it is clear that the maximum penalty for the offence of which the Applicant was convicted under s 232A is a heavy one. Undoubtedly, this reflects the seriousness of the offence of "people smuggling" in the eyes of the Government and the Parliament. However, in the Tribunal's view, a distinction should be drawn between the offence in law and the particular criminal conduct of the Applicant that led to his conviction for that offence: it is the latter that is the focus of the Tribunal's evaluative judgement (NADB (supra) paragraph 39).
57. It is clear from Judge Wisbey's sentencing remarks that the Applicant's criminal conduct was his contribution to facilitating the voyage by exercising his mechanical skills in keeping the motor operating. In determining the appropriate sentence for the Applicant, the Judge took into account that the Applicant "embarked upon the journey not for selfish financial reward but in order to establish a better life" in Australia. The Judge determined that the appropriate sentence was of three and a half years imprisonment with a non-parole period of 14 months, towards the lower end of the spectrum for this offence.
58. Whilst acknowledging the seriousness with which the Government views the offence of people smuggling, the Tribunal must also consider, as Merkel J recognised in NADB (supra) at paragraph 41, whether the Applicant's particular criminal conduct is "of such a nature as to result in Australia not having protection obligations" to the Applicant. Mr Murphy referred the Tribunal to the Guidelines on the application of exclusion clauses published by the UNHCR, quoted above. These suggest that the application of the Article 1F(b) exclusion clause clearly contemplates that certain crimes - the examples given are petty theft and the possession and use of soft drugs - do not reach a sufficiently high threshold to be regarded as "serious".
59. As stated above, a distinction must be drawn between the offence in law, which is of a serious character, and the Applicant's conduct which, in the Tribunal's view, is not so serious. His criminal conduct comprised, on a number of occasions, his repairing an engine on the boat. He did not so do for profit but merely to facilitate the boat continuing on its voyage and reaching its destination. In the Tribunal's view, this is not the sort of "serious non-political crime" which should give rise to Australia's protection obligations under the Refugees Convention not applying.
The second passage from Applicant NADB of 2001 v Minister for Immigration and MulticulturalAffairs [2002] FCAFC 326 to which Deputy President Handley is referring appears in paragraph [41] of that decision and is as follows:
In determining whether the disqualifying crime is “serious” it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, there is no textual or contextual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention.
The concluding part of the above passage deals with the balancing of assessing the seriousness of the crime and the exclusion of protection obligations against the risk of persecution that the person is likely to suffer if he or she is refouled to the country of his or her nationality. JSDW concedes, and the Tribunal agrees, that there is no balancing test to be applied in Australia (paragraphs 48 to 50 of the applicant’s amended SFIC).
The Minister says that the circumstances surrounding the offence in the SRBBBB case are distinguishable from the present case for the following reasons:
55.Re "SRBBBB” is clearly distinguishable on its facts, as the applicant there had no involvement in organising the bringing into Australia of any of the other persons on the boat, and only facilitated the persons on the boat coming to Australia in a very minor way by using his skills as a mechanic to fix one of the boat’s engines well after the voyage had commenced. Those facts may be contrasted with facts here, in particular the applicant’s involvement in organising for Ms [A] and her three children to travel to Australia prior to the boat on which they travelled leaving Indonesia, as set out at paragraph 35 above.
56.It is also to be inferred that the applicant knew or was aware of the purpose and destination of the voyage and facilitated the travel of Ms [A] intentionally, an inference drawn by the trial judge.
57.The applicant was also aware of the capacity of the boat, as he told Ms [A] that there wasn’t room on the boat for her other family members and they would come on another boat a few days later. The applicant also arranged for a taxi to take Ms [A] and her three children to the boat.
58.The applicant’s role was accepted by the trial judge as like a scout or an agent to contact passengers and collect money. Accordingly, the applicant was a person within the people smuggling network actively seeking out passengers, as opposed to a mere passenger who was asked to assist after the voyage had begun, like the applicant in Re “SRBBBB”.
59.Further, while the trial judge stated that the applicant’s involvement in people smuggling was necessitated by his circumstances of being in Indonesia without the required moneys to arrange to be transferred to Australia, the applicant had been recognised by the UNHCR as a refugee. He was therefore not in a situation where he faced a choice of returning to Afghanistan or assisting people smugglers to enable him to seek refugee status. As he had been recognised as a refugee by the UNHCR he had the choice to wait to be resettled by the UNHCR.
60.The applicant’s position was therefore very different from the applicant in Re “SRBBBB", as he was not in a life-threatening situation which caused him to provide assistance to the people smugglers. Rather, although he had been recognised by the UNHCR as a refugee, the applicant agreed to take part in a people smuggling operation, and took active steps to encourage other passengers to participate.

The Tribunal agrees with the Minister’s submission. The circumstances of the commission of the offence in SRBBBB are clearly distinguishable from those in the present case. JSDW was actively involved in the people smuggling operation long before the boat departed Indonesia.
In sentencing JSDW, Herron DCJ made the following findings in relation to JSDW’s role (T29 at 314-315):
…I accept you were low-level participant in the facilitation of the illegal bringing or coming to Australia of Ms [A] …
…
I’m satisfied that your role was a low-level assistant for other agents higher up in the people smuggling network…;and
….
I accept the submission of your counsel that your role was like a scout or agent to contact passengers and collect money.
However, Herron DCJ also found that (T29 at 314 -315):
[JSDW] played a central role in the arrival of Ms [A] who was an unlawful –citizen, to Australia;
…
Had [JSDW] not approached Ms [A], she would probably not have later contacted him about coming to Australia…
…
[JSDW] negotiated payment of the significant amount of US$16,000 for Ms [A] and her 3 children to travel to Australia…
…
Although the boat was able to travel to near Christmas Island, it was overcrowded and barely in a seaworthy condition ….The health and life of Ms [A] and her children were placed at risk by travelling aboard the boat
Unlike the applicant in SRBBBB, JSDW was an active participant in the steps leading up to the boat departing Indonesia and in the procurement of passengers and the arranging of payment by a passenger. His role and involvement in the commission of the crime was fundamentally different to that of the applicant in SRBBBB.
JSDW also submitted that he, in effect, had no choice but to become involved in the people smuggling operation because of his financial circumstances -- in particular, finding himself in Indonesia having lost contact with the original people smugglers to whom he had paid $12,000 for his illegal passage to Australia and not having sufficient funds to pay other people smugglers. Paragraph 67 of the JSDW’s amended SoFIC (A2) relevantly quotes Judge Herron’s sentencing remark that (T29, 315):
[JSDW]’s involvement in people smuggling was necessitated by [his] own circumstances, by being in Indonesia without the required moneys to arrange to be transferred to Australia
With respect, the Tribunal does not agree with that characterization of JSDW’s actions. While the circumstances in which JSDW found himself in Indonesia were undoubtedly dire, it was, in the end, his choice to become involved in people smuggling. While his choice to do so might be understandable, it was nonetheless a choice. JSDW had been granted refugee status by the UNHCR and he could have, like many thousands of others in the same situation, stayed in Indonesia and gone through the legal processes for resettlement of refugees. He chose not to. Instead, he chose the illegal route of people smuggling which, as Judge Herron also notes, “threatens the orderly administration of immigration laws, imposes a financial burden on the Australian public, necessitates the deployment of military, customs and other governmental resources, encourages official corruption …and exploits and imperils the health and lives of those carried…”(T29 at 314).
The Tribunal has reviewed all of the circumstances surrounding JSDW’s commission of the offence of which he was found guilty and is satisfied that those circumstances do not mitigate the commission of the offence to the extent that it could be considered not to be a serious crime. While the Tribunal notes Judge Herron’s characterization of JSDW’s involvement as being “low-level”, the seriousness of the crime of people smuggling and JSDW’s “central role” (again, Judge Herron’s words) in the arrival of Ms [A] and her 3 children and the three and a half year sentence imposed by Judge Herron, cause the Tribunal to find that the offence committed by JSDW was a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C) of the Migration Act.
Are there serious reasons for considering that JSDW committed a serious non-political crime under s 233C(1) of the Migration Act?
Having determined that JSDW committed a serious non-political crime outside Australia and before entering Australia by committing the offence under s 233A of the Migration Act, thereby triggering the operation of Article 1F(b) of the Refugees Convention and s 36(2C) of the Migration Act, it becomes unnecessary for the Tribunal to determine whether there are serious reasons for considering that JSDW also committed a serious non-political crime under s 233C(1) of the Migration Act. However, if the Tribunal is wrong in finding that the offence committed by JSDW under s 233A was a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C) of the Migration Act, the Tribunal needs to consider whether there are serious reasons for considering that JSDW committed an offence under s 233C(1) of the Migration Act and whether that would be a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C) of the Migration Act.
Dealing firstly with whether an offence under s 233C would, prima facie, be a serious non-political crime, the same process of analysis of that issue which the Tribunal undertook to determine that an offence under s 233A of the Migration Act would apply. All of the characteristics of an offence under s 233A which caused the Tribunal to find that an offence under that section was a serious non-political crime apply to s 233C(1). The obvious difference between the two sections is that the maximum penalty under s 233C (20 years imprisonment or 2,000 penalty units or both) is twice that under s 233A (10 years imprisonment and 1,000 penalty units or both). Further, and self-evidently, the offence of facilitating the bringing into Australia of 5 or more persons is a more serious offence than facilitating the brining in of one other person.
Accordingly, the Tribunal finds that an offence against s 233C(1) of the Migration Act is prima facie a serious non-political crime.
JSDW was charged with three offences (see ST3 at 685). One was that, contrary to s 233A of the MigrationAct, he facilitated the bringing to Australia of Ms [A]. He was convicted of that offence. The second charge was that, contrary to s 233A of the Migration Act, he facilitated the bringing to Australia of Ms [U]. The third charge was that, contrary to s 233C of the Migration Act, he facilitated the bringing to Australia of a group of 5 or more non-citizens who had no lawful right to come to Australia. The 5 persons the subject of the charge under s 233C were Ms [A] and her 3 children and Ms [U].
At the commencement of the trial in the District Court, the Director of Public Prosecutions sought to discontinue the charges relating to facilitating the bringing to Australia of Ms [U] and the facilitating of the bringing to Australia of 5 or more non-citizens who had no lawful right to come to Australia.
The reason given by the counsel for the Commonwealth for the discontinuance of those charges was that the Commonwealth’s case in respect of those charges was dependent on the evidence of Ms [U] (ST2 at 45-49). Ms [U] had given a witness statement and had been issued with a witness summons. Apparently Ms [U] had, shortly before the commencement of the trial, advised that she would refuse to give evidence. Mr Ritter, appearing for the Commonwealth, explained to the Court her reasons for refusing to give evidence as follows (ST2 at 47 and 48):
Ritter, Mr: And I won’t be calling her, for reasons that she has grave concerns for the safety of her relatives in Pakistan should she give evidence in the trial before [JSDW]. And they are concerns that she has expressed over some time, crystallised last week and there seems to be no arrangement that can be made with her that would satisfy her concerns. So for those reasons the Crown does not intend to call her.
JSDW sought an order from the Court that Ms [U] be made available for cross-examination. That application was refused.
JSDW was not convicted of the second offence under s 233A of the Migration Act relating to Ms U or of the more serious offence under s 233C(1) relating to the facilitation of the bringing to Australia of 5 or more people. The question is whether, nothwithstanding that those charges did not proceed, there are serious reasons for considering that those offences occurred, in particular the more serious offence under s 233C of the Migration Act.
The Tribunal does not need to make a determination that JSDW actually committed the second offence under s 233A or the offence under s 233C. Rather, the Tribunal must decide whether the evidence before it meets a threshold which gives rise to “serious reasons for considering” that JSDW committed the alleged offence.
What has been determined jurisprudentially about “serious reasons for considering” in relation to Article 1F of the Refugees Convention is equally applicable to the same expression in s 5H(2)(b) and s 36(2C)(2)(a) of the Migration Act.
Paragraph 35 of the UNCHR Guidelines On International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (the “UNCHR Guidelines”) states:
In order to satisfy the standard of proof under Article 1F, clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example, may suffice if they are reliable [original emphasis]
The Australian cases reflect the international law position.
Deputy President Forgie in YYMT and MQCR, at paragraphs [136]-[142], provided a detailed and most useful overview of the relevant Australian cases. This Tribunal accepts that summary and highlights the relevant Australian case law as follows.
In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 (Dhayakpa), French J (as he then was) explained (at [23]):
Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words “serious reasons for considering that” suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. [emphasis added].
In Ovcharuk, Branson J explained that:
Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.
In the following year, the meaning of the expression “serious reasons for considering” was also considered by Mathews J as President of the Tribunal in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150. Her Honour referred first to the Canadian case of Ramirez v Canada (Minister of Employment and Immigration) (1992) 2 FC 306, in which the Canadian Federal Court of Appeal held that the words “serious reasons for considering” establish a lower standard of proof than the balance of probabilities. Her Honour continued:
82.In any event, I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be ‘serious reasons for considering’ a matter raises similar issues to the test of ‘reasonable grounds to believe’. The requirement of seriousness goes well beyond that of reasonableness in my view. Nor do I agree that the ‘serious reasons for considering’ test should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be ‘serious reasons for considering’ (emphasis added) that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v Briginshaw (1938) 60 CLR 336, Helton v Allen (1938-1939) 63 CLR 691).
In Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 (Arquita), Weinberg J considered the authorities referred to above. His Honour concluded:
54It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.
…
56The expression ‘serious reasons for considering’ means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be “serious”.
…
58In determining the meaning to be ascribed to the word “serious” in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word ‘serious’ in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a ‘prima facie’ case, the test formerly favoured for the grant of an interlocutory injunction.
59Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the states and territories of Australia.
60It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least ‘serious reasons for considering’ that he had committed the offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. …
…
64“Suspicion”, as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948; ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’ The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115‑116; 93 ALR 483 at 490-1.
In SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9, Wilcox J set out four propositions which were not in dispute between the parties. The majority did not set them out but neither did they question the validity of those propositions in their judgments. Consequently, although Wilcox J was in the minority, the Tribunal can assume that His Honour’s recitation reflected the view of the Court. Relevantly, in relation to the first proposition, his Honour said at [22]:
The adopted standard, ‘serious reasons for considering’, does not require proof, even on a balance of probabilities. It is sufficient if there is ‘strong evidence of the commission of one or another of the relevant crimes or acts’: see Dhayakapa v Minister for Immigration and Ethnic Affairs (1995) 62 FCA 556 at 563 (French J). See also Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179 and Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465 at 476 [emphasis added].
In the earlier case of WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245, French J (as he then was) gave more expansive guidance to the steps to be taken in deciding whether there are serious reasons for considering that a person has committed an offence or crime alleged to have been committed:
[51]The Australian jurisprudence presently supports the proposition that the use of the words ‘serious reasons for considering that …’ does not mandate a positive finding by the receiving state that the applicant for protection has engaged in conduct of the kind contemplated in Art 1F. No question of proof on the civil or criminal standard arises in that context: Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 per French J; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 at 388 per Marshall J and on appeal Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 at 179; 158 ALR 289 at 294–5; 51 ALD 549 at 554 per Whitlam J. See also Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476; 63 ALD 321 at 331–2 where Weinberg J reviewed the authorities. A contrary view in relation to standard of proof was expressed by Mathews J sitting as president of the tribunal in Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 at 441; 27 AAR 482 at 491. In Canada the Federal Court of Appeals has held that the words require something less than proof on the balance of probabilities: Ramirez v Canada (1992) 89 DLR (4th) 173. But see also Cardenas v Canada (1994) 23 Imm LR (2d) 244 where a requirement for ‘clear and convincing evidence’ was posited by Jerome ACJ (at 252)
[52]It should be emphasised however that the absence of a requirement for a positive finding of the commission of conduct of the kind contemplated by Art 1F is not inconsistent with the need for ‘meticulous investigation and solid grounds’ in order to meet the standard of ‘serious reasons for considering that’ the conduct has been engaged in. It would be a matter for concern if the tribunal … merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity: SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229; BC200301114 at [17] per Selway J. See also the helpful discussion of this question in M Zagor, ‘Persecutor or Persecuted: Exclusion under Art 1F(A) and (B) of the Refugees Convention’ (2000) 23 University of New South Wales Law Journal 164 at 168–70. The observation of Jerome ACJ in Cardenas is apposite (at 252):
‘the Board must be extremely cautious in its application of the exclusion clause particularly in situations … where it has concluded that the claimant has a well founded fear of persecution in his country of origin. In light of the potential danger faced by such a claimant, the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.’
[Emphasis added]

Hence, the Tribunal must be satisfied that there are “serious reasons for considering” that JSDW committed the crime in question, namely an offence under s 233C of the Migration Act of organising or facilitating the bringing or coming to Australia of 5 people. In this case that means being satisfied that there are “serious reasons for considering” that JSDW facilitated or organised the bringing to Australia of Ms [U], which would also be a second offence under s 233A of the Migration Act. In that regard, JSDW has been found guilty of organising or facilitating the coming to Australia of Ms [A] and it is not disputed that she brought three children with her making a total of four. Ms [U] would make five, the required number for an offence under s 233C(1) of the Migration Act. The Tribunal requires strong evidence that such a crime has been committed. Any other standard, particularly given the serious consequences for an applicant in situations such as this, would be entirely inconsistent with basic principles of fairness.
What evidence does the Tribunal have before it that would give rise to serious reasons for considering that JSDW facilitated or organised the bringing of Ms [U] to Australia?
There are a number of documents included in the T documents and the supplementary T documents which are relevant to this question. In some cases these were documents produced under summons by the Australian Federal Police and the Commonwealth Director of Public Prosecutions. They are:
(a)Statement of Ms [U] dated 19 August 2013 (ST3 at 759-779) in which she identifies JSDW as the person to whom she paid US$3,000 in Bogor, a suburb of Jakarta, for the passage on the boat to Australia. She also states that JSDW, as well as Ms [A], was on the bus that transported her to the coast where those individuals and others were transported in a small boat to the boat on which they arrived near Christmas Island. The statement was signed and made and declared under the Oaths Act.
(b)Statement of Mr [C], Australian Federal Police officer, dated 25 February 2014 (ST3 at 78) in which Mr [C] speaks of his interview with, amongst others, Ms [U] at the Yongah Hill Immigration Detention Centre on 23 December 2012 in which Ms [U] identified JSDW as “the person who assisted her on her travel”. Mr [C] also refers in his statement to a further interview that he conducted with Ms [U] at the Yongah Hill Immigration Detention Centre on 19 August 2013 at which time Ms [U] signed her witness statement.
(c)Recording of the interview of Ms [U] conducted by Mr C on 27 February 2013. The Tribunal has not viewed the recording of that interview but has read a transcript of the interview. In that interview Ms [U], in response to the question:
Did [S] organise your trip from Indonesia to Australia?
she answered:
[M] (the name by which JSDW was known in Indonesia) organised it. Just be aware that [JSDW] works for [W], okay?
The following exchanges also took place in that interview:
Q17.      So did [JSDW], at any stage, did you give [JSDW] money?
A.Yes
Q18.      Okay. And how much money did you give him?
A.I gave him um, in Indonesia, three thousand in cash and he told me that the other money your mother have to give in Pakistan.
There is further references by Ms [U] in this interview to JSDW, however, they are not directly relevant to the issue of an offence under s 233C(1) of the Migration Act.
(d)Statement of Ms [A] dated 16 may 2014 in which she states:
5.While I was staying on Bogor, Indonesia, Ms [U] came to my house and said that [JSDW] had called her and told her to come to my house and give me US$500 and I should then give the money to him.
6.            I called [JSDW] and had a conversation to the effect of:
I said:“Ms [U] is here to give me $500 which she says you asked her to give to me”
[JSDW] said: “Yes take it, I am in Jakarta, I will get it from you when I return.”
7.           I believe that this was part payment for a trip to Australia.
8.Later I decided I did not want to give the money to [JSDW]. [JSDW] came to my house whilst Ms [U] was already there. I handed the money back to Ms [U] to give to [JSDW].
9.           I then gave Ms [U] back the full amount.
This statement was signed and made and declared under the Oaths Act.
As noted above, Ms [U] was not called to give evidence so her statement was not subject to testing through cross-examination. Ms [A] gave evidence, however, that evidence only briefly touched on the allegation of JSDW’s involvement in the bringing of Ms [U] to Australia. This is not surprising given that the charges against JSDW involving Ms [U] coming to Australia had been discontinued prior to the commencement of the trial.
As one might expect, JSDW points out that Ms [U] did not give evidence and her statement was not subject to testing through cross-examination. The Tribunal has no reason to question the veracity of the reason for Ms [U] not giving evidence; however, whatever the reason, it is the case that Ms [U]’s statement did not go into evidence and was not subject to testing through cross-examination. JSDW also points out that there are inconsistencies between the stories of Ms [A] and Ms [U] concerning the payment claimed to have been made by Ms [U] to JSDW for her transport to Australia. In her statement dated 19 August 2013 Ms [U] describes the circumstances of her paying JSDW as follows:
13.In early February 2012, I was transported to an airport where I caught a flight to Jakarta, Indonesia. Once I left the airport I travelled to a suburb called Bogor in Jakarta where I attended the home of a person called Ms [A]. I had been instructed to attend that residential address by Mr [AS] in Malaysia.
14.When I arrived at the house I was introduced to a person called [JSDW]. During that meeting, [JSDW] sat about one metre away from me, the room were (sic) well lit and I had an unobstructed view of [JSDW]’s face and entire body. The meeting lasted for approximately 30 to 45 minutes.
15.I do not remember the exact conversation word for word, but I do remember that [JSDW] told me that he could organise the final part of my journey from Indonesia to Australia for US$6000. I was not sure what to do and I felt pressured by Ms [A] and [JSDW] to hand over half of the money immediately, so I agreed to the price and paid [JSDW] US$3000 in cash as a deposit.
16.I counted out the US$3000, which was in denominations of US$100 notes and then handed that money to Ms [A]. Ms [A] counted the money and then I saw her hand the money over to [JSDW]. I then saw [JSDW] count the money. [JSDW] then told me that I would be departing Indonesia for Australia on a boat in the next week.
17.I do not recall the exact conversation but [JSDW] told me I was very lucky to be leaving so soon. [JSDW] then instructed me to contact my mother in order to arrange for the remaining US$3000 to be paid in Pakistan.
JSDW’s amended SoFIC (paragraph 114) also points to an inconsistency between the Ms [A]’s statement and her evidence given at the trial. The claim is made that Ms [A]’s evidence at the trial was that “Ms [U] found her house in Bogor by accident”. The transcript of Ms [A]’s evidence in this regard is, however, far from clear. The transcript (ST2 at 244, page 249 of the transcript) is as follows:
[another name by which Ms [U] was known in Indonesia]?- - - she find by accidentally in my house, I told before - - -
The Tribunal assumes that the reference by Ms [A] to “I told before” is a reference to her earlier evidence (ST2, 239, page 244 of the transcript) wherein she appears to be talking about Ms [U] coming to Ms [A]’s house in Bogor. Again, however, that evidence is far from clear. The transcript of that part of Ms [A]’s evidence is as follows:
Okay. Did [other name by which Ms [U] was known in Indonesia] come to your house or your family’s house in Bogor?- - - - Yes, he came with one man and I see them and I said “He” – she says, “I want to live with you, I am alone like this, like this”. And I said, “No, I don’t to. It’s my privacy. It’s my own house and my children. I don’t want to stay you in my house.”
Ms [A]’s evidence goes on to talk about “her”, presumably Ms [U], going to stay with Ms [A]’s mother.
It is hard to conclude from the transcript that Ms [A]’s evidence at the hearing was that Ms [U] “found her house in Bogor by accident”. It is clear from the transcript that there were considerable difficulties in the translation and with witnesses understanding the questions. To draw the conclusion sought by JSDW from the transcript is, in the Tribunal’s view, placing too much weight on a literal interpretation of a statement which, by itself, does not actually make sense (“she find by accidentally in my house”) and which in the context of the balance of the evidence given by Ms [A] could have any number of meanings, or, in fact, no meaning at all.
On the issue of inconsistencies between statements in considering whether there are “serious reasons for considering” that a person has committed a serious offence, JSDW (paragraph 115 of the applicant’s amended SFIC) refers to the case of FTZK v Minister for Immigration and Border Protection [2014] HCA 26 (FTZK) as follows:
115.In FTZK v Minister for Immigration and Border Protection the High Court issued a writ of mandamus requiring the Tribunal to review the decision to refuse to grant the applicant in that case a protection visa. The decision and reasons of the second review are set out at FTZK v Minister for Immigration and Border Protection T20151 AATA 155. The issue for the Tribunal was whether there were serious reasons for considering that the applicant in that case had committed a murder in China with two other persons. The only relevant material before the Tribunal was the written statements of the two other persons, who were convicted of the murder. The statements contained inconsistencies. The Tribunal decided that there were not serious reasons for considering that the applicant in that case committed murder. The Tribunal said at [125]
In summary, having regard to all of the material that I have, the only material that provides a connection between FTZK and the kidnapping and murder of V committed on 20 December 1996 in PRC is to be found in the confessions of ZHONG Weidong and WU Zhijun. I have already given my reasons for approaching the confessions of alleged accomplices who seek to implicate another. I have referred to the inconsistencies between them that cause me concern and to the lack of any evidence of a forensic nature linking him to the crimes. There are no witness statements of anybody who saw the Toyota HIACE at the scene of the kidnapping or of the person or persons who saw a white vehicle at the pond in the early hours of the morning. The two confessions do not give a consistent account of how or why FTZK came to be involved in the plan to kidnap and murder V.
The facts in FTZK are, in the Tribunal’s view distinguishable from the present case. As the Tribunal noted in the above quoted passage, that case involved inconsistencies between the evidence of two accomplices who were, as the Tribunal put it “seek(ing) to implicate another”. Also, as appears from the above extract of the decision, there were no direct witnesses to the kidnapping, or even the person’s vehicle at the scene and no forensic evidence. The present case, in the Tribunal’s view is different. While the details of the payment of money by Ms [U] to JSDW given by Ms [A] and Ms [U] contain inconsistencies, there is no apparent reason why either Ms [A] or Ms [U] would make up the story of Ms [U] paying money to JSDW for Ms [U]’s coming to Australia. They were not accomplices and had no vested interest in making up a story to implicate JSDW.
At the hearing of this matter JSDW denied any involvement in arranging Ms [U]’s passage to Australia or receiving any payment from her. The Tribunal found JSDW to be a less than convincing witness. He had an obvious incentive to deny any involvement in Ms [U]’s coming to Australia. On the other hand, neither Ms [U] nor Mrs [A] had any incentive to lie about JSDW’s involvement in Ms [U] coming to Australia.
The Tribunal also notes that in the District Court JSDW denied any involvement in bringing Ms [A] to Australia or receiving any payment from her. The jury obviously did not accept JSDW’s evidence. JSDW has, in the Tribunal’s view, demonstrated himself to be someone who is prepared to fabricate and/or mislead to achieve a desired outcome. This goes directly to his credibility and the weight, if any, that can be attached to his evidence.
The question for the Tribunal is whether, notwithstanding JSDW’s denial, it can be satisfied that there are strong reasons for believing that JSDW was involved in the bringing or coming to Australia of Ms [U] for the purposes of ss 233A and 233C of the Migration Act.
JSDW submits, at paragraph 116 of his amended SoFIC, that:
Taken together, the fact that Ms [U] has not been cross-examined and that inconsistencies identified above mean that her written statement, without more cannot amount to serious reasons
If the Tribunal had to find beyond reasonable doubt, or even find on a balance of probabilities, that JSDW had committed an offence under 233C(1), the evidence before the Tribunal would not be sufficient. However, that is not the relevant legal standard. The relevant test is laid out by Weinberg J in Arquita in the passage cited above as being:
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.
In the present case, given that JSDW has already been convicted under s 223A of organising or facilitating the bringing or coming to Australia of Ms [A] and her three children, the offence under s 233C(1) (facilitating or organising the coming or bringing to Australia of 5 of more people) would be committed if Ms [U] had paid money to JSDW to facilitate her travel to Australia making her the fifth such person. Even taking into account the inconsistencies in the detail of the circumstances of the payment made in Bogor, Indonesia, by Ms [U] to JSDW, there is, in the Tribunal’s view, “material before the (Tribunal that) demonstrates that there is evidence available upon which it could reasonably and properly be concluded that” Ms [U] made the payment to JSDW and that that payment was to facilitate her coming to Australia illegally.
The Tribunal is therefore satisfied that there are serious reasons for considering that JSDW committed an offence under s 233C(1) of the Migration Act.
As noted above, the Tribunal finds that an offence under s 233C(1) is, prima facie, a serious crime. In fact, and some might think somewhat self-evidently, an offence under s 233C(1) is a more serious crime than an offence under s 233A. Clearly, being involved in the smuggling of five or more people into Australia is a far more serious crime than smuggling less than five. The Commonwealth parliament certainly thought that an offence under s 233C(1) was far more serious than an offence under s 233A(1) given that the penalty for the former is twice that for the latter.
Considering the circumstances of the present case, the Tribunal finds that the offence for which there are reasons for considering that JSDW committed, namely the offence under s 233C(1) of the Migration Act, is, taking into account the circumstances of the commission of the offence, a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention and s 26 (2C) of the Migration Act.
CONCLUSION
The Tribunal concludes that:
(a)the crime for which JSDW was convicted under s 233A of the Migration Act was a serious non-political crime committed outside Australia and before JSDW entered Australia for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C)(a) of the Migration Act; and
(b)there are serious reasons for considering that JSDW committed an offence under s 233C(1) of the Migration Act and that that offence was a serious non-political crime committed outside Australia and before JSDW entered Australia for the purposes of Article 1F(b) of the Refugees Convention and s 36(2C)(a) of the Migration Act. Australia.
The Tribunal therefore finds that:
(a)under s 36(2)(a) of the Migration Act in the form in which it applies to JSDW, Australia does not have obligations to JSDW under the Refugees Convention; and
(b)under s 36(2C)(a)(ii) of the Migration Act, JSDW is taken not to satisfy the criterion mentioned in s 36(2)(aa) (complementary protection)
DECISION
For the above reasons, the decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall

......[sgd]...........................................................
Administrative Assistant - Legal
Dated: 1 November 2017

Date(s) of hearing: 3 October 2017

Counsel for the Applicant: Mr J Edwards

Advocate for the Applicant: Mr H Glenister

Solicitors for the Applicant: Cathal Smith Legal Pty Ltd

Counsel for the Respondent: Mr P Macliver

Advocate for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitors

Date(s) of hearing:	3 October 2017
Counsel for the Applicant:	Mr J Edwards
Advocate for the Applicant:	Mr H Glenister
Solicitors for the Applicant:	Cathal Smith Legal Pty Ltd
Counsel for the Respondent:	Mr P Macliver
Advocate for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitors