SAH and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 263
•18 April 2002
CATCHWORDS - IMMIGRATION - whether applicant is a person to whom Australia does not have protection obligations under Refugees Convention - whether there are serious reasons for considering that the applicant committed a war crime or a crime against humanity - decision set aside.
Migration Act 1958 ss. 31 and 36,
Migration Regulations Clause 785.221
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173
Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321
SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983
Polyukhovich v The Commonwealth (1991) 172 CLR 501
W97/164 [1998] AATA 618
DECISION AND REASONS FOR DECISION [2002] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/346
GENERAL ADMINISTRATIVE DIVISION )
ReSAH
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 18 April, 2002
Place: Adelaide
Decision:The Tribunal
1.sets aside the decision of the respondent dated 11 September, 2001; and
2.substitutes a decision that the applicant not be refused a protection visa on the basis of Article 1F of the Refugees Convention.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 14 September, 2001, the applicant applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("MIMA") dated 11 September, 2001. The decision was to refuse to grant the applicant a Protection Visa as the delegate was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July, 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January, 1967 ("Refugees Convention") and so does not meet the prescribed criterion under cl. 785.221 of the Migration Regulations ("Regulations").
At the hearing, the applicant was represented by Dr Al Jabiri and the Minister by his solicitor, Mr Leerdam. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Witness statements by Mr Eyad Salman Al Hafi and Mr Hisham Al Mansouri and a bundle of documents were admitted on behalf of the applicant. A map and pages 233-279 from History of Iraq by Charles Tripp as well as a statement by Mr Charles Keith Howard Tripp were admitted on behalf of the respondent. The applicant, one of his two wives and two witnesses gave oral evidence in support of the applicant's case and Mr Tripp gave oral evidence in support of the Minister's case.
THE ISSUE
The issue in this case is whether there are serious reasons for considering that the applicant has committed a war crime or a crime against humanity within the meaning of Article 1F(a) of the Refugees Convention and so does not come within the protection of that Convention.
BACKGROUND
Based on the evidence in the written and oral evidence, I have made a number of findings of fact on a number of matters which were not in dispute between the parties. I will set them out in the following paragraphs.
The applicant and his family
The applicant arrived by boat in Australia on 31 December, 2000 and, since then, has been detained at the Woomera Immigration Reception and Processing Centre in South Australia ("Woomera"). He was accompanied by his second wife and children. Another child was born soon after the family arrived at Woomera. On 12 February, 2001, the applicant lodged an application for a Protection (Class XA) Visa ("protection visa") for himself and his family.
The applicant is a Shi'a Moslem who was born in Iraq. His first wife lives in Iraq with their children. After graduating from University, the applicant was conscripted into the Iraqi Army. That occurred on 1 September, 1985. He undertook infantry training and was selected for training with the Special Forces. As a conscript he was required to serve one year and nine months but he was not discharged at the expiration of that period. Instead, he served over four years in the Army before being discharged at the end of the Anfal Campaign against the Kurds. That campaign commenced immediately after the conclusion of the Iran/Iraq war. The applicant's discharge occurred on 1 July, 1990 when he became a member of the Reserves. On the basis of Mr Tripp's evidence, I find that many members of the Army were demobilised at about this time as Iraq had a huge national debt and some one million men under arms.
After four or five months on 1 December, 1990, the applicant was recalled to the Army as the war against Kuwait had commenced. At that time, he held the rank of Captain. He was sent to a military unit in Al Nassaryah and the unit was then deployed to Kuwait. He was promoted to the rank of Major. When the unit received its orders to mobilise, the applicant deserted the Army and returned to his family.
Iraq and the structure of its government
Ethnically and linguistically, the Iraqi population includes Arabs, Kurds, Turkomen, Assyrians, Yazidis and Armenians. Several religious groups are also represented in Iraq: Shi'a and Sunni Muslims (both Arab and Kurdish), Christians (including Chaldeans and Assyrians) and some Jews, although many have emigrated. Shi'a and Sunni Muslims represent approximately 95% of the population. Shi'a Muslims represent approximately 60%. They are mostly farmers and few have achieved prominence in national life. Sunni Muslims have a higher literacy rate than Shi'a Muslims and dominate both the government and bureaucracy.
In more recent years, the government has attempted to raise the standard of living of Shi'a Muslims and to promote them into more prominent positions. At the same time, it has maintained a watch upon attempts to exploit dissatisfaction among Iraqi Shi'a as the Iraqi Shi'a and the majority of Iranians share the same branch of Islam. The government has also stressed differences between Iraqi and Iranian identities in order to distinguish Iraqi from Iranian Shi'a Moslems. In stressing the differences, it has separated and expelled those Shi'a Moslems whom it has described as "Persian" because of their family origins.
The provisional constitution of Iraq (1968) stipulates that the Ba'ath Socialist Party ("ABSP") governs Iraq through the Revolutionary Command Council ("RCC"). The RCC exercises both executive and legislative authority. Saddam Hussein is the President of the Republic, the Chairman of the RCC and the Secretary General of the ABSP and usually holds the position of prime minister and defence minister as well. The judiciary also comes under the President's authority.
The ABSP holds the source of power in both the government and in the Army. It is an alliance formed between officers of the Army and civilians based on ties of blood or locality. It is also based on ties of religion and those ties are exclusively Sunni Moslem. Opposition groups are not tolerated by the ABSP.
The Army
The Army is one of the two sources of support for the Iraqi government. The other is the BASP. In addition to its other roles, the Army is the instrument with which the government suppresses any attempted revolts against itself. The BASP constitutes the ideological framework in or through which the executive members of the government and officers of the Army are taught to be loyal to the government and its leader. Membership of the BASP is not compulsory but successful people in Iraq are linked to the party. Membership is only granted after strict investigation but, once granted, is a key to a person's receiving privileges. In the Army, a person cannot be promoted to a high rank without membership of the BSAP.
The Iraqi Army comprises 4 Corps HQ, 6 armoured divisions, 5 mechanised infantry divisions, 5 infantry divisions, 4 mountain divisions, 1 presidential guard division, 2 special forces division, 9 reserve brigades and 15 People's Army infantry brigades.
On the basis of the evidence of Mr Tripp, I find that, by the time that the applicant was conscripted, it was not unusual for a Shi'a Moslem to be in the Army. That was so for, by that time, the government had become quite anxious about manpower. The government was putting aside its old rules regarding the selection of recruits. Those old rules had included only appointing trusted persons to the Special Forces. Usually, people who became officers were members of BSAP. Assignment to the Special Forces was not based on a person's volunteering. Instead, people were assigned to it. Mr Tripp could not comment upon the types of duties to which a person might be assigned.
Iraqi/Iranian war
In 1980, Iraq launched an invasion of Iran and the conflict continued for the next eight years with some one million casualties on either side. A cease fire was agreed in 1988 and permanent peace established in 1991. Jordan, Kuwait and Egypt were Iraq's chief suppliers and allies in the war but the United States of America and the USSR also contributed either funds for construction of pipelines, as in the case of the USA, or military aid as in the case of the USSR. Kurdish forces cooperated with Iran during the war.
The Anfal Campaign
At one stage, Kurdish forces claimed to control a liberated area of 10,000 square miles but government forces crushed those forces in 1988. Until 1987, responsibility for fighting the Kurdish forces had rested with First and Fifth Corps of the Iraqi Army. From 1988, policy responsibility was given directly to the BSAP and to Ali Hassan al-Majid, who was closely connected with the President of Iraq, although the First and Fifth Corps remained directly involved. The Anfal Campaign comprised eight military offensives conducted in six geographical areas between late February and early September in 1988. Poison gas attacks had first been made against the Kurds in April, 1987 and, up to August, 1988, there were 40 such attacks against the Kurds. Non combatants were often the victims of the attacks. The Middle East Watch report titled "Genocide in Iraq – The Anfal Campaign Against the Kurds" reads in part:
"By our estimate, in Anfal at least 50,000 and possibly as many as 100,000 persons, many of them women and children, were killed out of hand between February and September 1988. Their deaths did not come in the heat of battle – 'collateral damage' in the military euphemism. Nor were they acts of aberration by individual commanders whose excesses passed unnoticed, or unpunished, by their superiors. Rather, these Kurds were systematically put to death in large numbers on the orders of the central government in Bagdad – days, sometimes weeks, after being rounded-up in villages marked for destruction or else while fleeing from army assaults in 'prohibited areas'.
While a minority had been combatants, or else served as 'backing force' for the rebel parties, the vast majority of the dead were non-combatants whose death resulted from the fact that they inhabited districts declared off-limits by the Iraqi government …" (T documents, page 21)
As a result of the Anfal Campaign, nearly 100,000 of the Kurdish forces fled to Iran and Turkey. Many Kurdish families were returning to their villages by June, 1991.
Iraq's invasion of Kuwait
In 1990, Iraq invaded Kuwait in response to factors that are not relevant to explore in these reasons. On 8 August, 1990, Iraq declared Kuwait to be its 19th province and large portions of its army were stationed there. After diplomatic efforts had failed and the United Nations Security Council had authorised the use of force to evict Iraqi forces from Kuwait, a group of allies launched an air war against Iraq and occupied Kuwait. The attack began on 16-17 January, 1991. A ground offensive by the allies followed between 24 and 28 February, 1991. That led to the Iraqi troops' retreating from Kuwait. The allies pursued the Iraqi troops deep into Iraq and destroyed several divisions of the Republican Guard who were elite units in the Iraqi Army. On 6 April, 1991, Iraq accepted formal United Nations' peace terms.
The actions of the Iraqi Army personnel was reported in Human Rights Watch, World Report ("Human Rights Developments in Iraqi-Occupied Kuwait") as:
"Gross human rights abuses against Kuwaiti citizens and other residents of Kuwait commenced in the immediate aftermath of the August 2 invasion. Hundreds were killed or wounded, and thousands detained, in the takeover. Hundreds of thousands of others were forced to flee the country.
Iraqi soldiers and militia committed countless acts of theft, rape and assault on civilians. Others participated in criminal activity as law and order broke down.
Scores of people were summarily executed in September and October, including physicians, hospital volunteers and food-distribution personnel, some of them in front of their families. Scores more were killed in confrontations with Iraqi forces, or in detention.
The Iraqi invasion turned some 400,000 Kuwaiti citizens into refugees, and displaced hundreds of thousands of foreigners who had made Kuwait their home.
Collective punishment was meted out in response to individual acts of resistance. Houses were methodically burned, or deliberately destroyed by tank fire or explosives. Relatives of suspects and wanted public figures were detained and tortured to extract information on their relatives whereabouts.
All of Kuwait's public hospitals, which constitute the overwhelming majority of health care facilities, and some of its private clinics were taken over by the Iraqi military, making access difficult for Kuwaitis, and next to impossible for victims of official abuse. A number of physicians, a hospital administrator and several medical volunteers were executed on suspicion of helping the resistance. Medical equipment and drugs were seized and shipped to Iraq, resulting in severe shortages of vital drugs. The deterioration of health care, which was further aggravated by the flight of most medical personnel, contributed to the departure of many Kuwaitis to neighboring countries, and to the death of patients for whom the health care system could no longer provide adequate help, including newly born infants. …" (T documents, pages 23-24)
On the basis of Mr Tripp's evidence and that of the applicant, I find that many members of the Iraqi Army had deserted by the end of the Kuwaiti war. The feeling among the Army was that they had been abandoned by the government.
The uprisings by the Kurds and Shi'a Moslems
Uprisings by the Kurds and Shi'a Moslems began within days of the allied victory. The Shi'a Moslems initially had the advantage in Basra, Najaf and Karbala but government forces crushed them by mid March, 1991. These events are described more fully by Mr Tripp:
"… These were largely spontaneous revolts against a hated regime when it seemed that the power of that regime was broken. In each town local leaderships emerged, some, but by no means all, associated with underground Islamic organisations, such as al-Da´wa. Baqir al Hakim, head of SCIRI in exile in Iran, sent a few thousand of his organisation's Badr Brigade across the border to help the rebels, whose numbers were swollen by army deserters fleeing the military disaster in the south. In the towns seized by the rebels, a terrible revenge was wrought on those whom they regarded as agents of or collaborators with the regime. However, despite the fact that the rebels succeeded in persuading the senior mujtahid, Ayatollah Abu al-Qasim al-Kho'i, to give his public approval of the formation of a committee to preserve order and security in Iraq, it was clear that there was no overall leadership or direction of the rebellion. Furthermore, it also became clear that support for the rebellion was largely confined to the cities and towns of the south. In many rural districts, the inhabitants bided their time, waiting to see the outcome. In some areas prominent shaikhs of major tribes even helped government forces to reassert control.
Faced with this situation, the rebel forces proved to be no match for those now deployed by the regime. Within a couple of weeks the Republican Guard divisions, kept in reserve for just such a purpose, had recaptured all the towns held by the rebels, inflicting massive loss of life and destruction in the Shi´i cities of the south. On 21 March the authorities forced Ayatollah al-Kho´i to declare his support for Saddam Husain and to call for an end to the rebellion. More than 50,000 refugees poured over the border into Saudi Arabia and thousands of others sought sanctuary in Iran, whilst many fled to the marshes of the south in an attempt to escape the vengeful pursuit of the Iraqi armed forces. These exacted a terrible price on those whom they suspected of having joined the rebellion, leaving tens of thousands dead in their wake and seizing thousands more, many of whom were to perish in Iraqi prisons during the coming years.
Having dealt a death blow to the Shi´i rebellion in the south, Saddam Husain now turned his forces on the rebellions that had broken out simultaneously among the Kurds of the north. Encouraged by the defeat of the Iraqi armed forces in Kuwait and by news of the southern rebellions, Kurds had also risen in revolt. Again, as in the south, the initial revolt was spontaneous emerging from countless local grievances against a regime that had shown such brutality in its rule of Kurdistan. The main parties of the Kurdistan Front, the KDP and the PUK, soon seized the opportunity to reassert their leadership, but it was noticeable that in this rebellion many of the local chieftains of the jash, hitherto the paid clients of the central government, also rose in revolt. The strength of the rebels and the weakness and distraction of the government troops led to a string of successes as one town after another fell to the Kurdish forces, culminating in the capture of Kirkuk itself on 19 March. However, this was the high point of the rebellion. Within ten days, Iraqi government forces, led by the units of the Republican Guard, hit back, recapturing Kirkuk, driving into the rebel-held areas and inflicting heavy casualties on the Kurds. Memories of al-Anfal and its chemical attacks, as well as rumours of the killings of civilians, led to the mass exodus of hundreds of thousands of Kurds, fleeing for the relative safety of the borders of Iran and Turkey. Nearly two million people were on the move within the space of a few days, leading to the disintegration of the rebel forces." (Exhibit 3, pages 255-257)
Kurdish forces claimed that they controlled three-quarters of Kurdistan in March, 1991 and that they had 90,000 soldiers. Government forces overwhelmed the Kurds by early April, 1991 and hundreds of thousands of Kurds fled to Iran and Turkey.
Thousands of Army deserters and displaced civilians fled to the marsh regions of southern Iraq. Those marsh regions, which consisted of a winding network of waterways bounded by high reeds, have traditionally been inhabited by the Marsh Arabs (or Madan). The Marsh Arabs are an ancient people of the Shi'a faith. In trying to flush out the insurgents, the Iraqi government drained large portions of the area in order to facilitate its control over the region and to permit the easier movement of troops in the area. The area drained has variously been estimated to be 6,000 square mile and either 70% or 90% of the total area of the marshes. In 1995 and 1996, it has been reported that efforts to expel the inhabitants from the area have also been stepped up.
The Supreme Council of the Islamic Revolution in Iraq
Through being suppressed in Iraq, many Shi'a Moslems fled to Iran where, under the auspices of the Iranian government, they formed the Supreme Council of the Islamic Revolution in Iraq ("SCIRI"). That occurred in 1982. Sponsorship by the Iranian government permitted SCIRI to create a small military force known as the Badr Brigade. It was recruited in part from Iraqi prisoners of war and played a limited role in a few engagements. Most notably, its activities were in Kurdistan.
THE EVIDENCE
Throughout his statements to the Department and his oral evidence, the applicant was adamant that he had only been an administrative officer throughout his period in the Iraqi Army. He has never been involved in battle. This is despite his military training, his being a member of the Special Forces and his having tertiary qualifications which Mr Leerdam suggested to him could have some relevance in a certain type of warfare. He rejected a suggestion that he had been a member of the ABSP and gave as his reason for that the differences between the Shi'a Moslems and the adherents of the President of Iraq.
When asked by Mr Leerdam why he returned to the Army when Iraq invaded Kuwait, the applicant said that he was told that he had to return. He was scared that he would be executed and his family would suffer consequences if he did not. When he deserted from the Army in 1991, it was a different situation as a lot of people were deserting. He waited for an opportunity to run away and it came. That opportunity did not come until he had been in Kuwait for December, 1990 and January, 1991. During that time, he had held an administrative position. He was not involved in any actions against the Kuwaitis, he said. He had many family members who live in Kuwait. Kuwait had been occupied in the eighth month, he said, and he did not go there until the twelfth month. He did not know what had happened before he arrived and, once he was there, he was just an administrative officer in the rear.
As an administrative officer, the applicant said, he was involved in the distribution of food and clothes. There was another higher ranked officer who controlled the distribution to him but he supplied the regiment. He did that by recording the shoes, clothes and food that was taken and stationery. In addition, he was responsible for paying salaries. Weapons and ammunition were not items he supplied. He was a Shi'a Moslem, he said, and not trusted to handle the stores of weapons and ammunition. That was the responsibility of a high ranking officer, he said. The applicant said that he had a weapon but had to account for it and the ammunition. There is discrimination against the Shi'a Moslems. The applicant agreed that supplying food was important but did not accept that it could be tampered with. Had he been sent to the front, the fear would have been that he would stir up problems. In supplying the goods, the applicant said that he worked with two or three other supply officers who shared the responsibilities.
The applicant denied that there was any relation between his agricultural studies and the draining of the marshes. He agreed with Mr Leerdam that he had learned how to draw water from a river during his studies but had never applied his learning. He had not learned how to build a dam. Such knowledge takes six years to acquire and involves a knowledge of building technology.
The applicant said that he remained in hiding at home until the uprising in March, 1991. During the uprising, he distributed food to the people and encouraged others to join the uprising. He did not participate in any violence against the people. At that time, the applicant said that he did not know anyone from the SCIRI although he came to know them after that time. During the uprising, he stayed in his home district. It was dangerous to leave it at the time. During the uprising, he did not see anyone whom he did not know. Some people were sympathetic to the government but they fled from the area and were not present during the uprising, he said. When asked what he had done when he suspected that someone was a sympathiser of the government, he replied that he did not shoot anybody but took whatever was required to needy people. He does not like to kill anybody. If he kills anyone, someone from his tribe will take revenge upon him. He would tell the proper authorities, he said, that someone were pro Hussein. The mullahs, merchants and heads of tribes were the proper authorities. His religion prevented him from accusing people who did not do bad things. In response to a specific question on the issue, the applicant said that he did not tell anyone if he suspected someone of being a sympathiser. Some sympathisers changed their ideas and those who did not were punished by being executed. The applicant said that he did not see anyone getting killed. He was not going to persecute anyone; he is an Arab and he will not persecute his own people. When the order to crush the uprising came, everyone was running.
As he had been identified by officers in the Army as a participant in that uprising, the applicant said, he hid in the marshes when the uprising was quelled. He chose then to go to Iran rather than to a country such as Saudi Arabia, France or Denmark, as he thought it better for the Iraqi people if he went to Iran and joined the Badr Brigade. The Badr Brigade, the applicant said, comprises people from all walks of life and not just Shi'a Moslems. Of the 3,000 people who used to live in his village in Iraq, some half of them now live in Iran. If he were a war criminal, he would have been known to be one and he would have been killed or executed.
The applicant's evidence was supported by the oral evidence of two witnesses who knew him in Iraq before he joined the Army. Both spoke of the applicant's being taken forcibly to join the Army. One witness stated that he knew the applicant and spent a lot of time with him in Iran. That witness's brother had been a student with the applicant. This witness ("the first witness"), added that all graduates that year had been taken to the Army. He confirmed that the applicant had been transferred to the Special Forces and said that it was well known that Shi'a Moslems were recruited more than other groups in the community. The Special Forces were "doomed and more dangerous" than other forces (Exhibit A). The first witness said that all Iraqis become soldiers or officers and that no one could choose the military unit he prefers.
The first witness stated that the applicant remained with the Special Forces for a time and was then transferred to another division in the city where he was appointed as an administrative officer. At the time of the Iraqi invasion of Kuwait, the applicant joined the reserve units. He escaped from Kuwait and remained in the area until the popular uprising in March, 1991. The first witness stated that the applicant played "the major role" in the uprising (Exhibit A). He had been told by the mayor of the area that a death sentence had been passed against the applicant in absentia. The first witness said that the death sentence had been passed because the applicant had escaped from Kuwait and because of the part he played in the uprising. The other witness ("the second witness") agreed that a death sentence had been passed and attributed it to the applicant's having deserted from the Army. He did not attribute it to the applicant's role in the uprising but did confirm, however, that the applicant had played a part in that uprising.
The first witness, who was a member of the Badr Brigade, stated that it is not an easy matter to join that force. It is not a "people's mobilisation process", he said (Exhibit A). It is essential that a person be religious and that he is descended from an established religious family with a record of political struggle. No one is permitted to join the Badr Brigade without first undergoing close scrutiny.
The first witness said that the applicant had left Iran for two reasons. The first was to alleviate the government's security measures against his wife (i.e. his first wife) and children. His wife had undergone arrest and torture on several occasions. The second was to assist his family financially. His family had been deprived of their share of subsidised rations. His first wife confirmed that she had not had the money to buy the basic necessities for herself and her children since the applicant disappeared in 1991.
Mr Tripp said that the actions taken during the rebellion in 1991 against collaborators with the regime, officials of the ABSP and the government security forces cannot necessarily be attributed to the members of the Badr brigade. Rather, those actions arose from circumstances of the general uprising in the towns of the south and most of the rebels were civilians or deserters from the Iraqi Army. Mr Tripp understood that large numbers of deserters from the Iraqi Army joined the Badr Brigade after the suppression of the rebellion by the Iraqi government rather than before.
LEGISLATIVE FRAMEWORK
Migration Act and Regulations
Under the Migration 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 Migration Act 1958 ("Act") itself and some are prescribed in the Regulations (s. 31(2) and (3)). Section 36 of the Act provides that there is a class of visas to be known as protection visas. Within the class of protection visas are two sub-classes: Protection Visa (Subclass 866) and Temporary Protection Visa (Subclass 785). The Regulations may prescribe criteria for a visa or for a visa of a specified class including Protection Visas (s. 31(3)). The Minister must grant a protection visa if he is satisfied that the criteria prescribed by the Act and the Migration Regulations have been fulfilled but must refuse it if he is not so satisfied (s. 65).
Section 36(2)(a) provides that the Minister must be satisfied that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention. Alternatively, the person must be the spouse or a dependant of such a person and that the person holds a protection visa (s. 36(2)(b)). This provision mirrors the primary criteria set out in Items 785.211 and 866.21 in relation to a Temporary Protection Visa or a Protection Visa.
The time at which the applicant must meet these criteria is the time at which the determination of his status is made Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302 per Mason J, Deane and Dawson JJ applied in Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 387 per Mason CJ, at 399 per Dawson J and at 405 per Toohey J. As the Administrative Appeals Tribunal Act 1975 (as modified by Division 9 of the Act) applies to the decision, it follows that the time at which the applicant must meet the criteria is the time at which I make my decision.
The Convention
The Refugees Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a "refugee" is defined in Article 1A(2) of Chapter I as a person 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."
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. Article 1F is relevant in the circumstances of this case and provides:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(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."
General principles regarding the interpretation of Article 1F(a)
As French J said in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 in the context of Art 1F(b), the "… provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State." (page 565) His Honour's observations are equally applicable to Article 1F(a) which is in issue in this case.
Charges or convictions outside the receiving State are not required in order to find that a person has committed a serious non-political crime for the Article 1F(b) refers to the person's having "committed" and not to his or her having been "convicted". There is a distinction between having committed an offence and having been convicted of an offence and that distinction is drawn in the Convention itself. It appears from a comparison of the provisions of Article 1F(b) with those of Article 33(2) where a person who has "been convicted by a final judgment of a particularly serious crime" may, in certain circumstances, be returned to the State from which he or she seeks refuge.
What is meant by the expression "serious reasons for considering" has been considered in a number of cases. In Dhayakpa case, French J said that:
"The use of the words 'serious reason 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. The precise construction of that phrase does not fall for consideration in the present case …" (page 563)
Branson J observed in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 (Whitlam, Branson and Sackville JJ) that "Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker." (page 186)
The matter was considered also 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) 89 DLR (4th) 173 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. She 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)."
Finally, I will refer to the judgement of Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321 in which he considered the authorities to which I have referred. He concluded:
"54 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.
55 To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree.
56 The 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'.
57…
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: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407; [1975] 1 All ER 504 at 510; [1975] 2 WLR 316 at 323.
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. …
61…
62…
63…
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." (pages 333-335)
Identification of the international instruments defining relevant crimes
Consideration also needs to be given to what is "a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes" in the context of Article 1F(a). At the time the Refugee Convention was promulgated in Geneva in 1951, the most comprehensive definitions of such crimes were found in the 1945 London Agreement and in the Charter of the International Military Tribunal ("Nuremberg Charter"). These, together with the main instruments in force at the time, were listed in Annexes V and VI of the UNHCR Handbook ("the Handbook"). Article 1F(a) is not, however, limited in its terms to those international instruments promulgated either in 1951 or in 1967 when the Protocol was agreed upon. Since then, instruments such as 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") have come into existence. In his textbook, The Refugee in International Law (2nd edition, 1996), Professor Goodwin-Gill stated:
"Just as the International Military Tribunal succeeded to an existing body of law, so Article 1F(a) today must be interpreted in the light of more recent developments and the relevant international instruments referred to have been considerably supplemented since 1951. The principles of the IMT Charter have been strengthened by the 1949 Geneva Conventions and the 1977 Additional Protocols. 'War crimes' are thus considered to include the grave breaches' of the Geneva Conventions, summarised in the 1993 Statute of the International Tribunal on Yugoslavia…" (page 98)
The crimes
In SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983, Deputy President Chappell comprehensively surveyed international instruments coming within the purview of Article 1F. The following summary of relevant international conventions relies in large upon his survey.
Article 6 of the Nuremberg Charter states:
"The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a)Crimes against peace: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b)War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
'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.' " (paragraph 55)
Article 6(c) was considered by Toohey J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ):
"The paragraph contains two important limitations. First, a crime against humanity must comprise conduct directed at a civilian population. Isolated acts against individuals, unconnected with a larger design to persecute or exterminate a population, are not within the definition of the crime, whether committed by an individual or by a state authority: see, for instance, In re Altstötter (1947) 14 Annual Digest, at p. 284. The second limitation is that crimes against humanity must have been committed 'in execution of or in connexion with any crime within the jurisdiction of the Tribunal', that is, war crimes (Art. 6(b)) or crimes against peace or waging aggressive war: Art. 6(a). The second limitation applies both to acts of persecution and to acts of extermination." (page 669)
In his judgement, Deane J attributed a broader meaning to the phrase "crime against humanity" as it is commonly used. He described it as a "… convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connexion with actual hostilities." (page 596) His Honour implicitly drew a distinction between the general usage of the phrase and the question whether a person had committed a crime against humanity under international law. The War Crimes Act 1945, with which he was concerned, was not concerned with offences against international law and he did not explore further what was encompassed in a crime against humanity under international law.
At the relevant time, section 7(3.71) of the Canadian Criminal Code was expressed in terms similar to those used in Article 6(c). In considering s. 7(3.71) and in particular its reference to crimes against humanity or war crimes being committed against any civilian population or any identifiable group of persons, the Supreme Court of Canada noted:
"… What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race. (R v Finta (1994) 112 DLR (4th) 513 at 595, per Cory J)
Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War states that:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1)Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment."
Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the Statute of the International Criminal Tribunal for the Former Yugoslavia) refers to crimes that have been:
"committed in armed conflict, whether international or internal in character, and directed against the civilian population."
Most recently, the Rome Convention set out the crimes within the jurisdiction of the International Criminal Court. They include crimes of genocide, crimes against humanity, war crimes and the crime of aggression (Article 5). In so far as crimes against humanity are concerned, Article 7 provides, in part, that:
"1. For the purposes of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a)Murder;
(b)Extermination;
(c)Enslavement;
(d)Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity;
(h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2.For the purpose of paragraph 1:
(a)'Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such attack."
Those responsible for crimes
Article 25 of 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)…
(b)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;
(c)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."
Article 6 of the 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 [1998] AATA 618, Mathews J reviewed a number of authorities considering the liability of accessories:
"67. 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).
68. 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' (Ibid at p 178).
69. 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)70. Later, MacGuigan JA added the following cautionary note:
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)
71. 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)
72. 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)73. 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)
74. 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.
75. 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.
76. 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.
77. 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.
78. 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."
CONSIDERATION
There is no question that acts of atrocity have been committed by the Iraqi Army in its engagements in Kuwait and internally in Iran in actions against the Kurds during the Anfal Campaign, in oppressing the uprising by the Shi'a Moslems and Kursds and in draining the marshes and driving out the Marsh Arabs. They include atrocities that amount to war crimes and crimes against humanity within the meaning of an international convention such as the Nuremberg Charter. In relation to the actions against the Marsh Arabs, for example, the Iraqi Army was engaged in the drainage of the marshes and, in doing so, forced the inhabitants of the marshes to lose their homeland and to flee. In relation to the oppression of the uprising by the Shi'a Moslems and the Kurds, military actions were directed at the civilian population and there was wanton murder and forcible transfer of the population. Such actions also amount to crimes against humanity under Article 7 of the Rome Convention.
There is no question that the applicant was a member of the Iraqi Army at the time such war crimes and crimes against humanity were committed. He admits that he knew about atrocities and events such as those to which I have referred in the course of these reasons. He denies, however, that he played any part in them and that, at all times, he was an administrative officer engaged solely in the distribution of supplies such as food, clothing and shoes and in the payment of salaries. He also consistently denies that he played any role in denouncing government sympathisers to the tribal chiefs or other authorities during the uprising of the Shi'a Moslems.
In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. Apart from being a member of, and indeed an officer of, the Iraqi Army at all relevant times, there is no evidence pointing to the applicant's having played such a role. He has admitted to being an administrative officer who was always in a non-combatant role. His agricultural qualifications remain undefined but do not suggest on their face that he had any training that would qualify him for dam building. That activity may be connected with agricultural activities but, on its face, is more likely to require engineering, rather than agricultural, qualifications. The applicant has admitted knowledge of the activities of the Iraqi Army but knowledge of itself does not mean that he was a part of the common purpose or aided or abetted those activities. There is no evidence that he acquired knowledge of the activities before they were carried out and so became part of their planning or a key element in their being carried out or whether he acquired knowledge at some later stage. There is no evidence that he acquired his knowledge while he played some role in carrying them out. Indeed, there is no evidence that he played any role at all. Merely supplying clothes and food and paying salaries as an administrative officer to Army personnel without any evidence of any closer involvement in the activities amounting to war crimes and crimes against humanity does not make him part of any common purpose in carrying out those activities. That is so even though he may, as part of his service activities, have supplied clothes and food to, and paid the salaries of, those soldiers engaged in the activities.
As evidence of involvement in crimes against humanity during the Shi'a Moslem uprising, Mr Leerdam pointed to what he said was the applicant's reaction to his asking him what had happened to those suspected collaborators who did not recant. The applicant, Mr Leerdam said, gave a wry smile and made a statement in the past tense as to what had happened and indicated that he had emotional contact with the operation. The applicant had not displayed any other emotion, Mr Leerdam said, during the course of his evidence. While I did not see the "wry smile", I do not question what Mr Leerdam saw. I do not accept, however, that the applicant's evidence at this point, when read in context, leads me to form the view that there is strong evidence that he committed any crime against humanity. He was adamant that he had not.
Mr Leerdam also pointed to the applicant's being frustrated in achieving his ambitions in the Army because he was a Shi'a Moslem. He pointed also to the applicant's statements about other Army officers who had gone on to have high profiles in other countries. The applicant had responded to the call to return to the Army in December, 1990 within 24 hours. He had many opportunities to desert during the bombing in Kuwait but chose not to.
While the applicant did make reference to his religion and to the achievements of others, Mr Leerdam's submission omits to place the applicant's statements in their context. That is to some extent understandable as there were, despite the best endeavours of the interpreter and as he himself acknowledged, difficulties with the interpretation in this case. Having regard to the whole of the evidence, it seems to me that it was not given in the context of frustrated ambitions but in explanation of other issues. His evidence regarding the achievements of others, for example, was given as part of his explanation that he could have chosen to go to any country in Europe but he chose to go to Iran where he could join the Badr Brigade and fight the Iraqi regime. Had he gone to those other countries he thought, he would have achieved what they have in those countries. As for his joining the Iraqi Army within 24 hours, there is his evidence that he would have been executed had he not responded quickly. The same can be said for his not deserting the Iraqi Army at an earlier time. There was the fear of execution. Certainly that fear remained at the time that he did desert but, by that time, the evidence is that the Army personnel were deserting in large numbers. That must place his fears in a different context.
Mr Leerdam points also to the applicant's having been a member of the Special Forces and being an officer. In considering this evidence, regard must be had to Mr Tripp's evidence that manpower became a problem for the Iraqi government and it could no longer be as selective in those it chose for its armed forces. This led it to recruiting more Shi'a Moslems than it had done in the past. Although no evidence was led on the point, the rank of a Major achieved by the applicant would seem, on Australian standards, to be a middle ranking officer. It is consistent with Australian experience that an officer of that rank would be responsible for supplies and that he would not necessarily be involved in active service. It follows that his having been an officer in the Special Forces does not by itself amount to strong evidence that he was engaged in activities of the Special Forces other than those relating to administration. That the applicant was not engaged in wider activities is supported by his having been accepted by the Badr Brigade. The evidence points to the Badr Brigade's having accepted that he was not a person who had been involved in atrocities for the evidence is that it checked the credentials of those applying to join it.
Having regard to all of the evidence, I am not satisfied that there is strong evidence that the applicant has committed either war crimes or crimes against humanity within the meaning of an international convention. Therefore, for the reasons I have given I:
1.set aside the decision of the respondent dated 11 September, 2001; and
2.substitute a decision that the applicant not be refused a protection visa on the basis of Article 1F of the Refugees Convention.
I certify that the sixty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 27 and 28 February, 2002
Date of Decision 18 April, 2002
Counsel for the Applicant Dr Al Jabiri
Solicitor for the Applicant Al Jabiri & Associates
Counsel for the Respondent Mr Leerdam
Solicitor for the Respondent Sparke Helmore
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