Lunja and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 563

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 563

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/1385

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HANKIJA LUNJA

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date28 May 2004

PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

[Sgd S P Estcourt QC]

Deputy President  

CATCHWORDS

Immigration – subclass 679 sponsored family visitor visa – whether of good character – association with persons involved in criminal conduct – crimes against humanity – decision set aside.

Migration Act 1958 (Cth) s501

REASONS FOR DECISION

28 May 2004 Mr S P Estcourt QC., (Deputy President)

1.      In this case the visa applicant has applied for a subclass 679 Sponsored Family Visitor (Short Stay) visa to allow him to come to Australia from Bosnia Herzegovina for up to three months to visit his sister and her husband and their children.

2. The visa application has been refused by the respondent on the ground that the visa applicant is not of good character within the meaning of s501 of the Migration Act 1958 (“the Act”).

3. Specifically the visa has been refused on the basis that the visa applicant does not pass the “character test” posed by s501 of the Act because he “has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been involved with criminal conduct” (s501(6)(b)).

4.      Between 1992 and 1995 the visa applicant was a member of the First Corps of the Army of Bosnia – Herzegovina.  His unit was attached to the 2^nd Motorised Brigade 2^nd Battalion and he was assigned to logistics.  At the close of hostilities his rank was that of Lieutenant.

5.      Two of the commanders of the visa applicant’s Brigade were Brigadier General Nedzad Ajnadzic and Brigadier General Vahid Karavelic  who are alleged to have committed crimes against humanity.

6.      Both these commanders are named in report 02 No. 21/96 of the Committee for the Collection of Data on Crimes Committed against Humanity and International Law dated 11 November 1996.   This report concerns the Camp in the Silo at Tarcin.

7.      Nedzad  Ajnadzic is reported by the Committee as one of the “organisers” of the “Silo” camp.    His entry in the report reads as follows:

“”Nedzad Ajnadzic, now the Commander of the lst Sarajevo Corps, brigadier general of the B&H Army.   He visited the “Silo” camp on January 25, 1994 and specially visited cell No. 6.   Later on visited the whole camp again on March 13, 1994 and was informed of what was happening in the camp.”

8.      Ajnadzic is also suspected of visiting the camp again on 24 March 1994 and blackmailing prisoners to write to their relatives to obtain information on some Muslims, threatening that if they did not comply they would be killed themselves in retaliation.

9.      Vahid Karavelic is reported by the Committee as one of the “perpetrators”.  His entry in the report reads as follows:

“Vahid Karavelic, brigadier general, earlier commander of the 1^st  Sarajevo Corps of the Army of B&H. Now in the General Staff of the Army of B&H.   He forced the captured Serbs to build the heliport and the building belonging to the 14^th Division.”

10.     For the purposes of this decision it may be accepted that the Minister has reasonable grounds for suspecting that Nedzad Ajnadzic and Vahid Karavelic have been involved in criminal conduct, namely crimes against humanity.

11.     The issue before the Tribunal is therefore, whether the visa applicant fails the “character test” because he “has had an association” with these men.   I say “with these men” because there is no suggestion on the evidence that the visa applicant’s unit of 60 soldiers or his brigade of 5,000 soldiers or the whole of the 1^st Corps of some 50,000 soldiers, were “groups or organisations”, within the meaning of s501(6)(b), that are reasonably suspected of criminal conduct. It is the two commanders who are alleged to have committed war crimes. No doubt other unidentified soldiers were involved, particularly in relation to the forced labour for which Karavelic is said to have been responsible, but neither the visa applicant’s unit, nor his brigade nor the corps, as “groups or organisations” are the subject of the relevant allegations.

12.     The respondent relies for the meaning of the word “association” in s501(6)(b) upon paragraph 1.5 of Part 1 of the Ministerial Direction No. 21 which provides:

“1.5 The meaning of “association” for the purposes of the Character Test encompasses a very wide range of relationships including having an “alliance” or a “link” or “connection” with a person, a group or an organised body that is involved in criminal actions”.

13.     The respondent also submits that Article 25 of the Rome Statute of the International Criminal Court, which relates to accessorial liability for those involved in the commission of crimes against humanity may also be of assistance.  It provides:

“(3)     In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person . . .

(c)for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission . . .”.

14. The respondent submits that in the context of the alleged crimes of the commanders, Article 25 provides some guidance in determining the association between the visa applicant and the commanders for the purpose of s501(6)(b) of the Act and that the activities of the visa applicant in providing logistical support to his brigade “falls within the concept of  “otherwise assists” as set out in the Rome Statute and “association with” as set out in s501(6)(b) of the Act.”

15.     The question in the Tribunal’s view must be one of fact and degree in each case.  Not each and every soldier in an army will necessarily be “associated” with crimes committed by high ranking officers or by others under their direct supervision or control.

16.     In this case the unchallenged and uncontradicted evidence of the visa applicant is that his primary responsibility was supervising the supply and provision of hot meals and their distribution from 5 kilometres beyond the front lines to the units on the front.  He had not heard of the “Silo” at Tarcin until he saw news of it on television after the war and during the war he had never visited Tarcin which was by indirect route 100 kilometres away.  He was, towards the end of 1993 and in early 1994 rotated twice a year on a monthly basis from Sarajevo to the Igman – Bjelasnica – Treskavica lines, but he was not involved in combat.  He had no contact with Serb civilians and was not involved in their mistreatment.  He was aware that Ajnadzic and Karavlic were commanders of the 1^st Corps but he never met them.

17.     Additionally, the evidence is that the camp itself was under the direct command of the 109^th Mountain Brigade of the Bosnia Herzegovina Army led by Nezir Kazic until 1995 and thereafter under the command of the XIVth  Division of the Army led by Zaim Imamovic.   The helipad and the building belonging to the XIVth Division referred to were in the headquarters compound of the Division located in the immediate vicinity of the camp.

18.     In the particular circumstances of this case the Tribunal does not accept the submission that in providing logistical support to his brigade the visa applicant was “otherwise assisting” or had a relevant “alliance” or “link” or “connection” with his commanders.  Moreover, there is no evidence that the visa applicant’s unit or brigade were “groups” or “organisations” involved with the criminal conduct attributed to these two men.   It is possible to imagine circumstances where a lieutenant in charge of army catering could, if not assisting in the commission of war crimes, then at least be providing the means for its commission within the meaning of the Rome Statute but there is no evidence in this case pointing to a connection between the visa applicant and the activities at a camp and in its immediate vicinity, many kilometres distant from his post.

19.     It follows that the decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P  Estcourt QC.,

(Deputy President)
Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  26 May 2004
Date of Decision  28 May 2004
Counsel for the Applicant         Mr S Lunja (husband of applicant)
Solicitor for the Applicant           
Counsel for the Respondent     Mr Steven Small
Solicitor for the Respondent     Australian Government Solicitor