Papak and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 518
•4 June 2003
CATCHWORDS – IMMIGRATION –
Short Stay Visitor Visa – character test – past and present general conduct – whether the visa applicant passes the character test – whether the applicant carries the burden of proof – standard of proof - meaning of the term ‘satisfy’ as used in section 501(1) Migration Act 1958 - decision set aside.
Migration Act 1958 ss. 20, 31, 499 and 501
Migration Regulations 1994 Schedules 2 and 4
Administrative Appeals Tribunal Act 1975 ss. 37 and 43
Veterans’ Entitlements Act 1986 s. 120
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994)
Wasu Deo Naidu and Minister for Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
McDonald v Director-General of Social Security (1984) 6 ALD 6
Cullen v Corporate Affairs Commission (NSW) (1988) 7 ACLC 789
Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Repatriation Commission v Smith (1987) 74 ALR 537
W97/164 and Minister for Immigration and Multicultural Affairs (1998) 27 AAR 482
W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948
SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128
SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983
AXOIB and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 365
DECISION AND REASONS FOR DECISION [2003] AATA 518
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/1139
GENERAL ADMINISTRATIVE DIVISION )
Re PETER PAPAK
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 4 June, 2003
Place: Melbourne
Decision: The Tribunal:
1.sets aside the decision of a delegate of the Minister dated 20 September, 2002; and
2.substitute a decision that Mr Jozo Lijovic not be refused a Subclass 676 (Short Stay Visitor) visa pursuant to s. 501 of the Migration Act 1958.
(sgd S A Forgie)
S A FORGIE
Deputy President
REASONS FOR DECISION
On 23 October, 2002, the applicant, Mr Peter Papak, lodged an application for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”). That decision was dated 20 September, 2002 and notified to the visa applicant for a Subclass 676 (Short Stay Visitor) visa, Mr Jozo Lijovic, in a letter dated 23 September, 2002. It was a decision to refuse the visa on the basis that Mr Lijovic had failed to satisfy him that he had passed the character test under s. 501 of the Migration Act 1958 (“the Act”).
At the hearing, Mr Papak represented himself and the Minister was represented by his solicitor, Mr Wood. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (“T documents”). Three documents written either entirely or partly in the Croatian language were also considered during the hearing. Two of them were letters and they had been translated into the English language by Mr Papak. One was a letter signed by Dorde Kovacic, who wrote what purports to be a character reference, and the other a certificate purporting to have been issued by the Police Department in Livino. The third document is an identity care issued to Jozo Lijovic. Mr Lijovic gave oral evidence in support of Mr Papak’s case.
THE ISSUE
The issue in this case is whether Mr Lijovic passes the character test set out in s. 501(6) of the Act. In the context of this case, that requires a consideration of whether he is not of good character because of past and present general conduct. If he does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
The issues in this case centred on any of Mr Lijovic’s activities that may have related to the detention of certain Serbian civilians during the years 1992 and 1993. Certain other matters forming the background to the application and its consideration were not in dispute between the parties. In view of that and on the basis of the material, I have made the findings of fact set out in the following paragraphs.
Mr Lijovic was born in Livno in Bosnia Herzegovina on 12 May, 1964. He is married with two surviving children. Three brothers and a sister are permanent residents of Australia. Mr Lijovic lives with his wife and children in a village, Zirovici, in Bosnia Herzegovina. There are about 50 or so families who live in that village.
THE EVIDENCE
Mr Lijovic’s background, work and intentions on his visit to Australia
Mr Lijovic said that he joined the police force in Livino as a constable on 20 November, 1992. Six months later, he completed his probationary period. For four or five years, he carried out what he described as “regular police duties”.. Those duties required him to patrol areas on eight hour shifts to secure buildings and property, make people safe and traffic control. Sometimes he would arrest people in the course of his duties. He would arrest them for offences such as robbery or stealing. He worked on investigating war crimes. In 1997, he became the leader of a territorial section. His duties required him to arrive at work at, say, 6.00am when he would receive his orders from his superior officer. If there was anything out of the ordinary to do or the need to interview a person involved in a robbery, brawl or the like, he would do that and then go about his normal patrols.
Mr Lijovic said that the area in which he lived was about 30 to 40 kilometres from where the fighting was taking place during the war. The whole area belonged to the Livino municipality, which was in the Herzegovina area. Men from the Livino municipality went to fight in defence of their town, Mr Lijovic said. He explained that it was “not like fighting one side against the other. Rather, it was keeping position; keeping looking out so that if the other side wanted to take over our area. There was no direct fighting; no shooting”.. Mr Lijovic said that he did go to the front line but did not shoot. He would go for five or six days, have three days rest and then return to his police duties. This pattern continued on and off until the towns were liberated. He was on the front line about five times between 1993 and the cessation of the war in 1994 or 1995. The uniform that he wore at the front bore the word “police” and he carried short weapons only. There was some mortar fire and shelling at the front line and some men from the village were killed.
The back of Mr Lijovic’s police identity card states that:
“This card indicates that the bearer has passed the UNMIBH/IPTF review process and that he/she is certified by the UN IPTF Commissioner to exercise police powers in Bosnia and Herzegovina. The bearer may only perform police powers in accordance with the law.”
In a letter dated 8 October, 2002, a letter was written on letter head of the United Nations (United Nations Mission in Bosnia and Herzegovina) by Brian T. O’Loughlin. Mr O’Loughlin’s position was described as belonging to the Joint Task Force in Livno and he wrote:
“1. It has come to our attention that Jozo Lijovic DOB 12/5/1964, Police ID#14906 has requested a visa for entry to Australia. I have been assigned to the Livno areas since March 2001, and have been tasked with performing background investigations on all Local Police Officers. I have personally conducted the background check on Mr. Lijovic, and have found him to be a citizen in good standing. There is nothing in his background that would preclude him from being a Police Officer, or for applying for any other position within Bosnia & Herzegovina.
2. During the course of my tenure here within Canton 10, I’ve had the experience of working with Mr. Lijovic during an investigation concerning a wanted war criminal. His assistance and input were instrumental in the apprehension of this person. I personally found him to be a professional Police Officer whose ethics are beyond reproach.
3. If you have any questions concerning Mr. Lujovic, please feel free to contact me at …” (T documents, page 25)
Mr Papak said that he and his family in Australia had decided to bring Mr Lijovic to Australia for a three month holiday. They wanted him to have a holiday because he needed a break after the death of his son some eighteen months ago. His wife and his two daughters, one aged 13 years and one 4 years, would stay at home in Bosnia Herzegovina during his visit. It is too expensive for the whole family to come to Australia for a visit.
The events in the garage and at the school at Livno
In the decision record, the delegate stated that:
“The Department holds information that in 1992 and 1993 the garage of Livno Police Station was used to hold Serb civilians and the civilians were subjected to inhumane treatment. Another report alleges that at two sites in Livno a total of 79 Serbs were incarcerated and apparently subjected to beatings.
Given that you have stated that you were employed as a police officer and based at the Livno police station since 1992, it is felt that you may have had knowledge of or even participated in such activities.” (T documents, page 14)
When he was working on the front line, Mr Lijovic said that prisoners were never taken back to the Livino police station. He described the police station as having a ground floor and two other floors above. About 60 or 70 people work in the building today. There were two cells in 1992 and 1993 and there are still two cells. A long time ago, he has arrested people who have been put in those cells. He would have arrested them for an offence such as robbery. The garage at the back of the police station had three or four rooms. It was about 10 to 15 metres from the police station.
When it was put to Mr Lijovic that there was an allegation that Serbians were kept in the garage at the back of the police station in 1992/93, he said that “everyone knows about it; the whole town”. When asked why those Serbians were kept there, he replied that it was not his area of expertise and he did not know the reason. He agreed that they had been kept there because they had been captured during the war. Some special forces, who he thought were soldiers, controlled the Serbians while they were kept in the garage.
Mr Lijovic said that he did not go to the garage much. He went to help carry food if the person in charge could not carry it himself but could not remember how many times that he had gone. Apart from carrying food, there was no other reason for his going to the garage, Mr Lijovic said. He could not recall how many prisoners he saw in the garage as it was over ten years ago. For all that, he thought that it was not many but could not really recall. He thought that they were Serbians and Moslems but he had his police duties for which he was responsible and did not get involved. Mr Lijovic said that he never observed any injuries on the prisoners. He also said that he hardly talked with them.
In cross-examination, Mr Lijovic agreed that an officer of the Australian Embassy had telephoned him. The record of the conversation prepared by the officer on 21 February, 2003 states that the interview was carried out by telephone as Mr Lijovic was residing in Livno. The report read, in part:
‘According to the information already provided in the interview notes, Mr Lijovic was aware of prisoners being kept at Livno Police Station. He further advised that he did nothing to stop this from happening. He explained that he was an “ordinary” policeman at that time and that such occurrences were of a political nature. He claimed that the Military police were responsible for the detained persons (taking care of them and their security) and that he was not involved in the events that were happening. Mr Lijovic advised that the police station in Livno was only used to house/provide temporary accommodation while the prisoners were waiting to be either exchanged or released. He further advised that prisoners were being kept for up to 15-20 days and that the largest number of prisoners detained at the one time was 20 persons however, he is not certain that this information is correct.
I called the applicant on 21 February 2003 to confirm the above information. The applicant advised the following:
When he first joined the police force in 1992, he had heard from others (not necessarily police; people in the community) that persons were being detained but did not know who was detained etc. Again stressed that he was an “ordinary” policeman while this was occurring (patrol duties) and could not do anything because of the political atmosphere at that time. Claims he did his best to help whenever and wherever he could.
I asked him to explain how he helped. Mr Lijovic advised that he had friends who were of ethnic serb or muslim/bosniac origin. He found out via a friend that a school friend, Zoran (ethnic serb), had been detained and did his best to help him – made sure he had water, cigarettes. He heard that his friend was later released and moved to another part of Bosnia but doesn’t know where.
Mr Lijovic advises that he is not aware whether the detainees were being mistreated as entry to the garage was forbidden to all except the Military police. However, he did advise that detainees were given food daily. …” (T documents, pages 139-140)
Mr Wood suggested to Mr Lijovic that it was not correct to say that entry to the garage was denied to all but military police because he had entered it to deliver food. Mr Lijovic said that he could go in but that it was nothing to do with his work. His colleagues “may have” gone in to the garage. He did not stay in the garage very long as he had his regular police duties to attend to. He did not see prisoners taken in and out of the garage, he said, and he did not see them mistreated. Had he seen them mistreated, he would not have allowed that to happen in his presence. He hardly spoke to the soldiers who were looking after the prisoners.
Mr Lijovic said that he had learned from a colleague and good friend of his that another friend of his was being held in the garage. That other friend was a Serb. He gave him cigarettes because of “human reasons” but denied telling the Embassy officer that he had also given him water. There was a tap in the garage at which water was available and there was no reason to take him water, he
said. He went to see his friend to see how he was and if there were any problems.
When Mr Wood put to Mr Lijovic that he must have known that the prisoners were not being treated humanely, Mr Lijovic replied that he did not have any idea. It may have been the case but he had no idea about it. In the ten years he has been in the police force, he has never seen anything wrong. Had he done anything wrongly himself, he would not have been accredited when the International Community checked him on a couple of occasions. Every policeman was checked and, if had been involved in any such actions, he was dismissed straight away. Mr Lijovic said that he believes that he is an honest policeman doing his duty. There was no chance that a policeman would have survived in his position if there had been anything suspicious in his past.
Mr Wood put to Mr Lijovic that, if inhumane treatment of prisoners was systemic in the police force, army and government, that treatment would be covered up and not become known. Mr Lijovic replied that might have been the case but he had nothing to do with it. If people are prisoners, they should be treated humanely and human rights need to be obeyed. Mr Wood then asked him whether he was saying that he did know something about the prisoners and their treatment. Mr Lijovic answered that he had told him that he did not.
Mr Lijovic said that the name of the school was Ivan Goran Kovacic and it was located about three, four or five hundred metres from the police station. He said that everyone knew that the school was used to keep prisoners as well but did not know how many were kept there. Mr Lijovic said that he never went to the school when the prisoners were there. He did not know that some of the prisoners at the school were subjected to beatings. If things were happening to them, what could he do about them, he asked. Had he been in charge, he would have tried to do things but he had no access to them and nothing to do with it.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“the Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian people to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community.”
The Direction – good character
The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
Section 501(6)(c)(ii) is relevant in this case. In relation to that section, the Minister directed that:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
.engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
.continual evasion or non-payment of debt;
.continual disregard as to payments of family maintenance;
.involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
.involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b)resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
The authorities – good character
In this case, part of the focus is upon Mr Lijovic’s past and present general conduct as set out in s. 501(6)(c)(ii).. That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that :
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in ss. 20(1) to the giving of false information and concluded that:
“These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994) and Wasu Deo Naidu and Minister for Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996). In Naidu, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (paragraph 7)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which good character does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so (sic) it is unnecessary to pursue this question.” (paragraphs 8 and 24, pages 324 and 327)
Does Mr Papak carry a burden of proof and, if so, what is the standard of proof?
In the context of cases conducted in the courts, there are two burdens of proof: the legal burden and the evidentiary burden. The two have been considered in a number of cases in both the criminal and civil jurisdictions. If a party carries a legal burden, a court may be called upon by the other party to determine whether or not that burden has been discharged by persuading the court to the requisite standard of proof. If the burden has not been discharged, the court must determine the matter in favour of that other party (McDonald v Director-General of Social Security (1984) 6 ALD 6 (Woodward, Northrop and Jenkinson JJ) per Jenkinson J at 21 and Cullen v Corporate Affairs Commission (NSW) (1988) 7 ACLC 789 per Young J at 791-2). The evidentiary burden means the burden of producing evidence to put to the court for its consideration.
Generally, neither party carries either burden of proof when the Tribunal reviews an administrative decision and there is no presumption that the decision under review is correct. This follows from the general principles in s. 43 of the AAT Act that the Tribunal is to put itself in the same position as the person making the decision under review. The general principles were set out in McDonald v Director-General of Social Security:
“There is certainly no legal onus of proof arising from the fact that this is an ‘appeals’ tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with; Re Ladybird Children's Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator's decision is correct. This is clearly the right approach to the matter.” (page 10, per Woodward J)
Woodward J went on to recognise that the general position could be altered by Parliament:
“It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT.” (page 10)
This is a case of the sort imagined by his Honour. Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the “person does not satisfy the Minister” that he or she passes the character test. This is to be contrasted with a provision such as s. 501(2)(a), which provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. That provision is quite neutrally stated as to burden and none arises. Just as the Director-General of Social Services in McDonald v Director-General of Social Services had “… both a right and a duty to terminate that person’s pension …” if he formed the opinion that a person was not, or was no longer, incapacitated for work and “… in doing so he must act in good faith on the information available to him …” (per Woodward J, at 11), so too must the Minister cancel a visa if he reasonably suspects that the person is not of good character. The Director-General of Social Services, or his successor, the Secretary of the Department of Family and Community Services, must form their views of a person’s incapacity or otherwise and the Minister must form his view as to what he suspects on the material before him. That material may be put before him by the person seeking to gain or retain the pension or visa or it may be put before him as a result of his own enquiries. In stark contrast, the language of s. 501(1) places a burden upon a person who seeks a visa. If he or she does not satisfy the Minister, the Minister may refuse the visa if he chooses to do so.
The manner in which the character test is formulated in s. 501(6) means that the person is placed in the position of satisfying the Minister of negative propositions. For example, he or she must satisfy him that he or she does not have a substantial criminal record as defined in s. 501(7), will not engage in criminal conduct if permitted to remain in Australia or is not a person who is not of good character having regard to his or her past and present general or criminal conduct.
What does it mean to have to satisfy the Minister in the context of reviewing an administrative decision made under s. 501(1)? Just as he or she did when the Minister or his delegate was making the decision, he or she must satisfy the Tribunal that he or she passes the character test. To that extent, he or she carries a burden. The nature of that burden depends upon the meaning of the word “satisfy”. That word and related words and expressions such as “satisfaction” and “reasonably satisfied” have been considered in a number of cases. Briginshaw v Briginshaw and Another (1938) 60 CLR 336 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) is a much cited authority regarding the civil standard of proof. Dixon J said of that standard:
“… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” (page 362)
Beaumont J in Repatriation Commission v Smith (1987) 74 ALR 537, with whom Northrop and Spender JJ agreed, considered the meaning of the expression “reasonable satisfaction” adopted in s. 120(4) of the Veterans’ Entitlements Act 1986:
“… The tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit (Administrative Appeals Tribunal Act 1975 s 33(1)(c); McDonald v Director-General of Social Security (1984) 1 FCR 354). Yet, whilst the tribunal was not bound by the technical evidentiary rules, especially the exclusionary rules, natural justice may require that it act on material that is relevant and logically probative (see Mahon v Air New Zealand Ltd [1984] AC 808; Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; Enid Campbell: Well and Truly Tried (ed by Campbell and Waller) at 70–1 and 86; Cross, op cit, at 11–13 Aronson and Franklin: Review of Administrative Action (at 95 and 174).
Even if the tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. McDonald’s, case, supra, dealing with social security legislation is not authority to the contrary. Rather, it is a case of s 120(4) introducing the civil standard for our purposes see Minister for Health v Thomson (1985) 60 ALR 701 at 712 Campbell, op cit, at 53; see East v Repatriation Commission (1987) 74 ALR 518 per Jenkinson, Neaves and Wilcox JJ (at 535); cf under the English legislation, Miller v Minister of Pensions [1947] 2 All ER 372, per Denning J (at 374).” (at 546-547)
Although the word used in s. 501(1) is “satisfy” rather than the expression “reasonably satisfied”, there is no reason to think that Parliament intended that any standard other than the civil standard should apply. That is not to say that an applicant for a visa must produce to the Tribunal all of the evidentiary material on which it is to review the decision. The Tribunal continues to retain its essential characteristics as an inquisitorial tribunal not limited by the rules of evidence and able to inform itself as it sees fit. Its enquiries are limited only by its need to observe the rules of procedural fairness and to be guided by the principles in Briginshaw v Briginshaw as to how satisfaction is to be achieved:
“…But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …” (page 362)
Does Mr Lijovic satisfy the character test?
Mr Wood relied on the events in garage behind the police station at Livino. The material that has been lodged on behalf of the Minister in relation to the events falls into two groups. One group, appearing as one sentence in the delegate’s decision record, is a summary of an unidentified, unattributed and undated report to the effect that there is an allegation that a total of 79 Serbs were incarcerated and apparently subjected to beatings at two sites in Livno. When reference is made to the attachment to an earlier letter to Mr Lijovic from the Australian Embassy in Vienna dated 4 August, 2002, it appears from the summary of the contents of reports that the report must be the Thomson mission of the Conference on Security and Cooperation in Europe (“CSCE”).
The second group, also comprising one sentence in the delegate’s decision record, is a statement that the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) “…holds information that in 1992 and 1993 the garage of the Livino Police Station was used to hold Serb civilians and the civilians were subjected to inhumane treatment.” When regard is had to the attachment to the earlier letter to Mr Lijovic, it is likely that this information comes from the report described as the “OHR report” but there is no indication of how otherwise to identify it. The summary of the report mirrors those used in the decision record.
Despite my raising the inadequacy of the material, Mr Wood advised me that he was instructed to rely on this material alone. Clearly, the delegate considered that the reports and information were relevant to her decision for otherwise she would not have referred to them. It would seem to follow that they would equally be relevant to the review of the decision by the Tribunal and so should have been included in the T documents pursuant to the provisions of s. 37(1)(b) of the AAT Act.
The practical difficulty that I am left with is that I am left with no means of assessing whether the Department’s summary is accurate or whether there are other aspects mentioned in the reports that give a more comprehensive view of what occurred. I can, for example, make no assessment as to whether the description of the treatment as “inhumane” is a description adopted by the delegate of treatment detailed in the reports to which she has had access or whether it is a word used in the report without further details. The heading on the summary of the OHR report in the attachment reads: “Designation of Crime: Inhumane treatment of civilians”. Beatings are referred to but, as in the summary of the Thomson mission of the CSCE, the decision-maker refers only to the civilians “apparently” being subject to beatings. How “apparently” is not addressed. I am unable to ascertain whether the report recorded any allegations that had been passed on to the author of the report without any checking of their reliability or whether the author had undertaken some check of the reliability of his sources. Without the reports, I do not know. Some assessment of the treatment meted out to prisoners is necessary if I am trying to assess whether or not there has been a war crime or a crime against humanity or other conduct that may impugn the character of a person involved in it. In the absence of the primary source material and assuming that it is from sources of some standing as it would seem to be, I cannot assess their contents and the evidence of Mr Lijovic against each other in order to come to my conclusions of what happened in the garage.
The summary of the reports in the delegate’s written decision and the evidence of Mr Lijovic coincide in that both are to the effect that Serb prisoners were kept in the garage behind the police station at Livino and I so find. I also find that they were held at the Ivan Goran Kovacic primary school, which was located about three, four or five hundred metres from the police station.
As to whether the Serbian prisoners were subject to inhumane treatment is a more difficult question in the absence of the reports and information relied upon by the delegate. Mr Lijovic said that he did not see any injuries on the prisoners. That does not mean that injuries did not occur but, equally, on the other information that I have, I cannot be satisfied that they did occur. The CSCE report refers no more than to the Serbians “apparently” being beaten and the OHR report refers to inhumane treatment but it is not known whether the inhumane treatment is keeping the Serbs in the garage or goes beyond that. Nothing is said of the size of the garage. Mr Lijovic described the garage as having three or four rooms but there is no indication of the size of the building holding the Serbians prisoners. Nor is there any indication of how many were detained in the garage for the summaries suggest that 79 were held between the garage and the school.
The other material summarised in the attachment to the letter dated 9 August, 2002 does not assist me. One is a summary of a transcript of a press briefing held on 14 June, 1996 at Sarajevo Coalition Press Information Centre by Lt. Col. Max Marrider, UKA. It concerned four missing Serbians, whom he understood “… were held in a garage behind the Livno police station from the first of June to the eleventh of June, when they were moved to the Mostar Jail” (T documents, page 16). That does not suggest that they were treated inhumanely in the garage although it raises questions as to what happened at the Mostar Jail. The remaining material refers to brief summaries of the failure by “authorities of the Livno Canton” to follow any of the OHR and OSCE directions and to apply Federal laws and the Dayton Agreement provisions and to the location of 250 unauthorised weapons at the Livno police station in November, 2000 by United Nations police after similar weapons had been found there earlier in the year.
I have no doubt that terrible and unspeakable atrocities occurred in 1992 and 1993. The brief summaries raise questions but they do not provide any answers of sufficient specificity to outweigh Mr Lijovic’s evidence that he saw no injuries and no ill-treatment of prisoners in the garage. I am concerned with the specific situation in the garage at the time that Mr Lijovic was a policeman and not with more general concerns as to what happened at the time.
Even if the Serbians were kept in the garage without lawful authority at a time when Mr Lijovic was a policeman based at the police station, it does not follow that he is a person who is not of good character. The fact that he was a policeman charged with, as Mr Wood submitted, protecting the public does not lead to the conclusion that he participated in their detention or, if he did not, that he could be instrumental in their release. Even if the Serbian detainees were subject to treatment that amounted to a war crime or to a crime against humanity on the part of those detaining them, it does not follow that all who were present are responsible for that treatment. Although this is not a case in which the Minister goes so far as to suggest that a war crime or a crime against humanity was committed, it is useful to consider the situations in which a person is said to be responsible for the commission of such crimes.
Article 25 of the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and the Statute of the International Criminal Court 1998 (“the Rome Statute”) expands upon those who are responsible for the commission of a crime and liable for punishment:
“3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a)Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b)Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c)For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing for its commission;
(d)In any way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i)be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii)be made in the knowledge of the intention of the group to commit the crime.
(e)…
(f)…”
Article 28 of the Rome Statute refers to the responsibility of commanders and of other officials:
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a)A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i)That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii)That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b)With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i)The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii)The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii)The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Article 6 of the Charter of the International Military Tribunal (“Nuremberg Charter”) also deals with the liability of accessories and reads in part:
“Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
In W97/164& Minister for Immigration and Multicultural Affairs (1998) 27 AAR 482, Mathews J reviewed a number of authorities considering the liability of accessories:
“The applicant was clearly not a leader, organiser or instigator of the crimes committed at [deleted pursuant to s 35] base in 1988. The substantial question is whether he was an accomplice. In relation to this matter, it is not sufficient to look to the Australian law on accessorial liability. An international convention cannot be read in the light of one only of the world's legal systems (Ramirez at p 179).
There are, so far as I am aware, no Australian cases dealing with the question of accessorial liability under Article 1F. However the matter has been the subject of discussion in a number of Canadian cases. The first of these was Ramirez.. The court in that case made a number of general observations relating to accessorial liability under Article 1F. MacGuigan JA, delivering the judgment of the court, commented that the passage in Article 6, quoted above, is decisive of the inclusion of accomplices as well as active participants in crimes against humanity, but it leaves outstanding the very large question as to the extent of participation required for inclusion as an ‘accomplice’ (Ramirez at p 178).
MacGuigan JA adopted the proposition, which had been propounded in US deportation cases, that active personal involvement in persecutorial acts need to be established (at pp 178-179). Or, as MacGuigan JA put it, ‘some personal activity involving persecution’ (at pp 179-180) must be shown. He then proceeded, in the following terms, to address the question as to the degree of complicity which might be required in order to become an accomplice:
... A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. ...
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under s. 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere onlooking, such as occurs at public executions, where the on-lookers are simply bystanders with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g. s. 21(2) of the Criminal Code), and I believe is the best interpretation of international law. (at p 180)
Later, MacGuigan JA added the following cautionary note (at 182):
One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism. (at p 182)
The appellant in Ramirez had voluntarily enlisted in the Salvadorean Army. The court found that the torture and killing of captives had become part of the military life in El Salvador and that the appellant played an active role in the military forces which committed these atrocities. It went on to find that the appellant's involvement in the interrogation and torture of prisoners was such as to render him an active participant in crimes against humanity. As MacGuigan JA observed:
... He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a "cheering section". In other words, his presence at this number of incidents of persecution, coupled with his sharing in the common purpose of the military forces, clearly constitutes complicity. ... The appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity. (at pp 187-188)
In Moreno the appellant had been forcibly recruited into the Salvadorean Army at the age of 16. He was assigned to guard duty, during the course of which he witnessed, but did not participate in, the torture of a prisoner. Later he participated in five armed confrontations with guerilla groups, having previously pledged his willingness to kill guerillas and their supporters. A failure to give this pledge would have resulted in his death. Not long afterwards the appellant deserted the Army and fled El Salvador. He was then 17 years old. Robertson JA, delivering the judgment of the court, made the following observations:
It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in persecutorial acts must be established. In this regard the reasoning in Ramirez is both binding and compelling (at p. 180): ‘At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.’ At p. 182, MacGuigan J.A. concluded: ‘In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.’
Applying the above reasoning, we must determine whether the appellant's conduct satisfies the criterion of ‘personal and knowing participation in persecutorial acts’.. Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between ‘principal’ and ‘accomplice’.. In other words, mens rea remains an essential element of the crime. In my opinion, a person forcibly conscripted into the military, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be considered at law to have committed a crime against humanity.
On a superficial level, it could be maintained that the appellant knowingly assisted or otherwise participated in a persecutorial act. What is absent from that analysis is any evidence supporting the existence of a shared common purpose. However, the evidence does establish that the appellant disassociated himself from the actual perpetrators by deserting the army within a relatively short period after his forcible enlistment. In the circumstances, the appellant's presence at the scene of a crime is tantamount to an act of passive acquiescence. Accordingly, there is no legal basis on which to rest the application of the exclusion clause.
In reaching this conclusion, I am influenced by one commentator's view that the closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach: see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Dordrecht: Martinus Nijhoff Publishers, 1992), at p. 343. Of course, the further one is distanced from the decision-makers, assuming that one is not a ‘principal’, then it is less likely that the required degree of complicity necessary to attract criminal sanctions, or the application of the exclusion clause, will be met. I take it for granted that 16-year-old foot soldiers will not be accorded the same legal treatment as those who command the war. (at pp 442-443)
Finally, in Finta, the Canadian Supreme Court discussed the concept of crimes against humanity and war crimes. Cory J, with whose judgment the majority of the court concurred, observed that the context in which these offences are committed must be taken into account in assigning the appropriate mens rea or mental element to the offence. He proceeded:
The requisite mental element of a war crime or a crime against humanity should be based on a subjective test. I reach this conclusion for a number of reasons. First, the crime itself must be considered in context. Such crimes are usually committed during a time of war. Wars are concerned with death and destruction. Sweet reason is often among the first victims. ... (at p 596)
Returning to the present case, Mr Macliver for the respondent urges that the applicant was not an innocent by-stander. Within the terms of MacGuigan JA's judgement in Ramirez he suggests that he was ‘an integral, albeit reluctant, part of the Burmese naval enterprise’ which committed systematic murder at the [deleted pursuant to s 35] base in [deleted pursuant to s 35] 1988. Mr Lindsay, on the other hand, submits that no crime of any kind was committed by the applicant. Each of the seven servicemen was allotted an individual target. The applicant's targets escaped unscathed. He had no control over other members of the group. Accordingly, Mr Lindsay urges, there is no evidence pointing to the applicant as an accomplice to a killing by a fellow member of the firing squad and no question of complicity or common purpose.
It is likely that if these events had occurred in Australia, the applicant would have been legally liable for murder. His presence as an apparently active participant in the shooting of fleeing activists would probably be found to constitute sufficient encouragement to those who in fact shot their targets as to render him an accomplice in their acts of murder.
However as already observed, it is erroneous to determine liability under the Convention by reference to local municipal law.. Quite apart from the inappropriateness of imposing municipal law standards upon international law principles, it must be recognised that the circumstances in which the applicant found himself in Burma in [deleted pursuant to s 35] 1988 could never be replicated in Australia in the late 20th century - or so it is profoundly to be hoped.
It was suggested at the hearing that there are two ways of approaching the applicant's culpability in relation to these crimes. The first (that which was advocated by the respondent) is to regard each member of the seven person group as responsible for killings perpetrated by the others. The second (that which was advocated by the applicant) is to treat each of them as responsible only for killings personally perpetrated.. The first approach would be an exceedingly harsh one, given the circumstances in Burma in 1988. On the other hand, the second approach is excessively narrow. It would, for instance, exonerate participants who shared the common purpose of killing fleeing activists, but who failed, through poor marksmanship, to shoot their own targets.
The correct approach, in my view, must be an intermediate one, namely that participants in the shooting of fleeing students will be held responsible for killings committed by others if they shared the common objective that students be shot and killed. This is consistent with the approach adopted by the courts in Moreno and Finta, namely that complicity rests on the existence of a shared common purpose, which must be determined subjectively.” (at pp 497-500)
In the later case of W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948, Justice Mathews considered the case of a man whom she found to have been:
“… involved in a series of assassination operations. His role was to observe the target’s movements and report them back to the group. He was not involved in selecting the target, nor in the actual killing. But his role was nevertheless integral to the assassination operation.” (paragraph 45)
The group in which he had been involved was the Front Islamic de Salut (“FIS”) and the group had been engaged in the murder of police officers. Mathews J concluded:
“… the systematic killing of police officers by FIS constituted, in my view, crimes against humanity under Article 1F(a). It is thus not necessary to consider whether they also constituted serious non‑political crimes under Article 1(F)(b). As to the applicant’s involvement in these crimes, Article 6 of the Nuremberg Charter deals, in a general way, with accessorial liability. It provides as follows:
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
As MacGuigan JA commented in Ramirez, this passage is decisive of the inclusion of accomplices as well as active participants in crimes against humanity, but it leaves outstanding the very large question as to the extent of participation required for inclusion as an ‘accomplice’ (at p 178). However given my factual findings in this matter, there can be no doubt on this issue. As the Canadian cases, including Ramirez, all confirm, the primary requirement is that there be ‘personal and knowing participation’ in the criminal acts. The applicant was clearly well aware of the purpose for which he was carrying out his surveillance duties. He was thus a personal and knowing participant in acts of assassination which, on my finding, amounted to crimes against humanity.” (paragraphs 49-50)
The case of SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128 (Deputy President Chappell) and SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983 applied the principles set out by Mathews J. Finally, in AXOIB and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 365, Deputy President Wright found that, taking into account an applicant’s status and role in the United National Party (“UNP”) and the Village Protection Unit together with his awareness of the terror campaign being waged by both Government and anti-Government forces, he knew full well that terror and torture awaited those whom he reported. Deputy President Wright considered both Article 6 of the Refugees Convention and Article 25 of the Rome Statute and concluded that “… there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera [the Minister for Fisheries exercising considerable influence over the UNP] or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. …” (paragraph 33).
Returning to the case of Mr Lijovic, I am satisfied that until approximately the end of May, 1992, he was a probationary constable. He then became a constable responsible for patrol duties in the community. He took cigarettes to a friend who was detained in the garage and helped another officer to carry food to the detainees from time to time. This conduct does not involve him in their detention whether it is in the general sense referred to in paragraph 1.9(a) of the Direction or in the cases to which I have referred as to whether a person was complicit in war crimes or crimes against humanity. He was a junior officer, who had no position of authority within the ranks of the police force and who could be expected to do as he was told. There is no evidence to suggest that a person in such a position could be reasonably expected to have any influence on the detention of the Serbians.
Mr Lijovic’s evidence is that the Serbians were not detained by the police but by the Military Police. While he went to the front as part of his military service, that does not bring him into account as a Military Policeman. He says he did not play any part in the detention of the Serbians. The report of his interview in February, 2003 and his evidence at the Tribunal are consistent and I have no reason to doubt that he is telling the truth. There are, of course, variations between the two in that he did not mention his military service in that interview. I do not see that as a discrepancy, though, for there is nothing in the summary that indicates that he was asked a question about his military service or that he was asked a question to which a reference to his service could be expected in the reply. At the hearing, both sorts of questions were asked. Taking his evidence into account, I am satisfied that Mr Lijovic did not play a part in the detention of the Serbians. In the circumstances, carrying food to them or taking cigarettes to a single detainee does not put him in the position of having a shared common purpose with those detaining the Serbians. I am also satisfied that he was not in a position to have taken any positive step to secure their release.
With regard to Mr Lijovic’s conduct apart from the incidents in 1992 and 1993, I have only the evidence that he and Mr Papak have given. I have no reason to think that the documents that I have been given are anything other than genuine. On the basis of them, I am satisfied that Mr Lijovic has been reviewed by authorities of the United Nations and certified by them to exercise police powers. He is also regarded as a professional police officer whose ethics are beyond approach by an officer of the United Nations, Mr Brian O’Loughlin.
Taking all of these matters into account, I am satisfied that Mr Lijovic is not a person who is not of good character by reason of his past and present general conduct within the meaning of s. 501(6)(c)(ii) and that he is not a person who does not pass the character test set out in s. 501(6). Although the case was not argued on the basis of past and present criminal conduct as set out in s. 501(6)(c)(i), I would reach the same conclusion had it been argued. It follows that I am satisfied that he passes the good character test and the exercise of the discretion inherent in s. 501(1) does not arise for consideration.
For the reasons I have given, I:
1.set aside the decision of a delegate of the Minister dated 20 September, 2002; and
2.substitute a decision that Mr Jozo Lijovic not be refused a Subclass 676 (Short Stay Visitor) visa pursuant to s. 501 of the Migration Act 1958.
I certify that the sixty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: .. (sgd P. Paczkowski)………................
P. Paczkowski Associate
Date/s of Hearing 11 April, 2003
Date of Decision 4 June, 2003
For the Applicant self representedSolicitor for the Respondent Mr D. Wood,
Blake Dawson Waldron
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