SAL and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS – IMMIGRATION – protection visa – war crimes - crimes against humanity – whether Australia has an obligation under international refugee conventions to protect the applicant – whether serious reasons to believe applicant has committed war crimes or crimes against humanity – whether applicant directly or indirectly involved in the commission or attempted commission of such crimes - whether applicant had a common purpose with a group who have committed such crimes – decision affirmed.

Migration Act 1958 ss. 31, 36, 65 and 501K
Migration Regulations 1994 cl. 785.221 and 866.21
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
W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948
SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128
AXOIB and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 365

DECISION AND REASONS FOR DECISION [2002] AATA 1164

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/149
GENERAL ADMINISTRATIVE DIVISION     )

ReSAL
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  12 November, 2002
Place:  Adelaide

Decision:The Tribunal affirms the decision of a delegate of the respondent dated 7 May, 2002.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 10 May, 2002, the applicant, to whom I will refer as "SAL" because of the provisions of s. 501K of the Migration Act 1958 ("Migration Act"), applied for review of a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs. That decision was dated 7 May, 2002 and notified to SAL on 7 May, 2002. 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 Regulations1994 ("Regulations").

At the hearing, the applicant was represented by Mr Hanna and the Minister by his solicitor, Mr Leerdam. Four sets of documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents", "1st ST documents", "2nd ST documents" and "3rd ST documents") were admitted in evidence. Witness statements by SAL and Mr Sabir Ashar Khan were admitted in evidence on behalf of SAL together with a map of a region in Afghanistan and a tape of an interview between an unnamed person who describes him or her self as "delegate position number 592 of the Immigration Department" and SAL. A statement by Dr William Maley was admitted in evidence on behalf of the Minister. SAL and Mr Sabir Ashar Khan gave oral evidence in support of the applicant's case. Dr Maley, who is Associate Professor of Politics at University College, University of New South Wales, Australian Defence Academy and Research Associate at the Centre for Arab and Islamic Studies at the Australian National University, 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 that I have set out in the following paragraphs.

I find that SAL, who is an Uzbek and a Muslim Suni, was born in Afghanistan in 1967. He is married with six children and arrived in Australia in August, 2001. When interviewed in Australia on 31 August, 2001, SAL indicated that he had left Afghanistan because his life was in danger from the Taliban which had then taken control of Samangan. SAL claimed that the Hazeras and Uzbeks were being treated cruelly by the Taliban. When the Uzbek Militia tried to recruit Uzbeks to fight against the Taliban, SAL decided to leave Afghanistan.

SAL lodged an application for a Protection Visa in September, 2001. His statement made on 19 September, 2001 in support of his application and his interview on 25 September, 2001 referred to events occurring during and after 1998 (T documents, pages 51-52). On 30 January, 2002, SAL made a statement about his employment with what he described as the Ministry of Government Security between 1984 and 1992. That Ministry needs to be seen in its context in the history of Afghanistan.

The regime put in place following the Soviet invasion of Afghanistan in December, 1979 was a dependent regime. Agencies under the regime were established along the lines of the Soviet party-state model. That was done for three purposes: to ensure the loyalty of those who were recruited; to ensure that the regime was able to use coercion to extract mass compliance; and to obtain information about dissidents or opponents in the Afghan resistance. Afghanistan was also dependent in that it depended upon materiel supplied by Russia and continued to do so even after the Soviet withdrawal in February, 1989.

KHAD was established in January, 1980 as part of the Ministry of the Interior. It was then known as the State Information Agency or Khedamati Atela' at-i Dawlati ("KHAD"). Very shortly after its establishment, it was detached and transformed into an almost completely independent directorate-general within the President's Bureau. This meant that it was responsible only to the President and, through him, directly to the Revolutionary Council. As a consequence, the KHAD had a very broad scope within which it could act. In addition to KHAD, there was a military intelligence service known as KHAD-e Nezami or military KHAD. It was part of the Ministry of Defence.

Until 1985, KHAD was headed by Dr Najibullah. He then became Party Secretary before replacing Babrak Karmal as leader of the People's Democratic Party of Afghanistan ("PDPA") in 1986. His position as head of KHAD was taken by General Yaqubi in 1985. In January, 1986, it was re-named the Ministry of State Security or Wazirat-i Amaniat-i Dawlati ("WAD") and is thought to have incorporated both KHAD and the military KHAD. In general language, it continued to be known as KHAD. WAD consisted of three Directorates-General. One was the Directorate-General for Security responsible for security within WAD itself. Another was the Directorate-General for Military Security and that was the continuation of KHAD-e Nezami or military KHAD. It was responsible for security within the Afghan armed forces and monitored the loyalty of those forces, countered the Mujaheddin's infiltration attempts and tried to discourage desertion. The third was the Directorate-General for the Interior and it was a continuation of KHAD. Its task was to ensure the continued existence of the Communist regime by charting and countering anti-government activities in Afghanistan and neighbouring countries including Pakistan. That Directorate-General was responsible for spreading propaganda and for economic control and espionage. It was divided into seven Directorates called Riasats. Based on the evidence of SAL, I find that, at the time he was a member of KHAD, the responsibilities of those Riasats were broadly as follows: 1st Riasat (dealing with matters in Kabul); 2nd Riasat (dealing with foreigners); 3rd Riasat (dealing with government employees); 4th Riasat (dealing with economic organisation and transport); 5th Riasat (dealing with the dissembling of bandits); 6th Riasat (dealing with special prosecution); and 7th Riasat (dealing with educational institutions). SAL was a member of the 7th Riasat.

KHAD and WAD maintained good relations with the general intelligence service (the KGB) and the military intelligence service (GRU) of the Soviet Union. Indeed, the KGB had such a strong influence on KHAD that KHAD was seen as an extension of the KGB and the Soviet Union continued to supply it with financial assistance and materiel after the Soviet withdrawal from Afghanistan in February, 1989. Dr Najibullah, whose position as leader was weakened by the opposition of supporters of Babrak Karmal, became even weaker after the withdrawal of the Soviet Union from Afghanistan. He drew on his previous position as head of KHAD in order to protect his leadership position. Based on the evidence of Dr Maley, I find that he adopted language that spoke of "national reconciliation" but in fact required recognition of the leading role of the PDPA. KHAD had extensive powers to identify and locate enemies of the Communist regime and to silence protest. Its powers included arrest, interrogation and imprisonment. It was much feared by the Afghan population.

SAL joined KHAD after being recommended to that organisation by the Secretary of a youth group, Committee Walaytee, which he had first joined in 1981 at the age of 14 years. He joined it for, if he had not, he would have been required to join the Army and he did not consider that to be an attractive option. On the basis of SAL's evidence, I find that Committee Walaytee was affiliated with PDPA.

On joining KHAD, SAL was given six months' training at a school near Chilsitoon in Kabul Province between July or August, 1984 (22nd Sonboleh 1363) and concluded in January or February, 1985. Most of the instructors at the school were Russian. At the conclusion of his training, he was appointed to the rank of Dreyem Bridman, which is equivalent to a 3rd Lieutenant. He was posted to Samangan and returned only once to Kabul in an official capacity. That was as a guard to the Communist Premier of Samangan when he visited the Prime Minister, Khaleq Jar, who was based in Kabul. SAL did visit Kabul every second year or so but only as a tourist and without his family.

During his career, SAL was promoted on several occasions. The first, to Doham Bridman (or 2nd Lieutenant) occurred on 22 Sonboleh 1364 (August, 1995). Some ten months later, he was promoted to Lomrai Bridman (Lieutenant). His third promotion occurred in 1367 (1998) when he was promoted to Turan (Captain) and his fourth in 1370 (1991) when he was promoted to Jag Turan (Senior Captain). His final promotion occurred on 22 Jaddy 1370 (approximately January, 1992) when he became a Jagran (Major).

For the last four years, he was based at the main security compound for Aybak, which is the principal city in Samangan. The compound was located on the main road between Kabul to the south east and Mazar-e-Sharif to the north west. The distance between Aybak and Mazar-e-Sharif is approximately 110 kilometres by road and takes about two hours to drive. On the basis of Dr Maley's evidence, I find that Aybak is a town of moderate size with a well-developed urban structure.

On the basis of SAL's evidence, I find that KHAD's compound at Aybak houses over one hundred people. Most of them live as well as work at the compound. SAL and his wife, whom he met in 1369 (1990) when he was based in Aybak, and children did not live in the compound but did live in Aybak. There were three officers with the rank of General working at the compound (Golam Dastegir, who was the Commander in Chief, Sarwa, who was second in command of the post and Khalegh from the Department of Military Affairs). Over twenty officers held the rank of Colonel, over fifty that of Lieutenant-Colonel and over fifty the rank of Major. There were also a few officers with the rank of Captain or Lieutenant. The remainder of the men in the compound were guards. All of the Riasats were represented at the compound other than the 1st and 6th. The compound does not have a prison or detention facilities but there is prison in Aybak.

SAL worked in an office in the compound and shared that office with three other officers. They were Lieutenant Colonel Zelmi, who was in charge of the section, Major Hamid Allah and Haji Mohammad. Haji Mohammad was deputy to Lieutenant Colonel Zelmi.

On the basis of his evidence, I find that SAL visited Mazar-e-Sharif several times when he was on holidays. His last visit occurred in 1991. He did not take his family with him. The last time he visited Mazar-e-Sharif while he was still with KHAD took place in 1370 (1991). As an officer in KHAD, he was given tickets for his holiday and given an itinerary. If he chose not to go, he was paid for the time in lieu of holidays.

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 in Schedule 2 of the Regulations.

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 part 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, s. 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 purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a)Murder;
(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.

…
(e)'Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

…
(i)'Enforced disappearance of person' means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
3.…"

War crimes are the subject of Article 8 of the Rome Statute. In so far as that Article applies to this case, it provides that the International Criminal Court:

"… shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
2.For the purposes of this Statute, 'war crimes' means:
…
(c)In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against 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:
(i)Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii)...
(iii)Taking of hostages;
(iv)…"

(d)Paragraph 2(c) applies to the armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e)…
(f)…"

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."

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)

Mr Leerdam referred also to the case of SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128 (Deputy President Chappell) and SRNN and Minister of Immigration and Multicultural Affairs in which the principles set out by Mathews J were applied. 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).

THE EVIDENCE

Expert evidence regarding operation of KHAD

Dr Maley said in his statement that "Torture was a standard technique in the repertoire of KhAD agents" (Exhibit 5, paragraph b). He attached to his statement a paper entitled "Security Services in Communist Afghanistan" prepared by the Netherlands Ministry of Foreign Affairs Asylum and Migration Division on 26 April, 2001. It stated that persons arrested by KHAD or WAD were first taken to interrogation centres operated by one or the other. Detainees were questioned and, if thought to be withholding information, were threatened with force. If the person was still thought to be withholding information, torture was used. This process took place both in Kabul and in detention centres located elsewhere in Afghanistan. Examples of the forms of torture adopted were detailed in the paper (Exhibit 5, section 2.6).

In his oral evidence, Dr Maley said that, as time went by, Dr Najibullah's regime concentrated its forces in Kabul. The people of Kabul came to learn what KHAD was capable of doing. As a result, KHAD did not have to actually do anything for it was able to achieve its objects by relying on the people's tailoring their activities to accommodate their fear of what KHAD was capable of doing. Outside Kabul, it was a different matter and some of KHAD's worst atrocities occurred outside Kabul.

Aybak was not considered to be a remote outpost as it was located on an important route. One of the ways in which KHAD maintained the effectiveness of its people was to put in place procedures that they were supposed to follow. At the same time, there was an expectation that those people would get the job done. This meant that people at the middle level could easily be removed if need be for one of two reasons could be adopted: either they followed the rules excessively closely or they did not get the job done. While there were rules, therefore, the need to get the job done could lead people to break those rules and that need probably arose more in outlying areas than in Kabul. In cross-examination, Dr Maley did not claim that KHAD operated in precisely the same manner in Kabul as in the outlying regions but he did say in cross-examination that it was, at its core, fundamentally a coercive body even if there were variations in its manner of operation. He rejected any notion that KHAD could have co-operated with the local elite at the local or regional level. It did not operate in that manner at all.

The paper, "Security Services in Communist Afghanistan" discussed KHAD's personnel. It speaks of the selection procedures used to ensure loyalty to PDPA. Only people who had been found to be very loyal and people from pro-government families were selected. As to the training they received, the paper continued:

"New KhAD and WAD officer recruits received very intensive training, the so-called Parawachi. A successful Parawachi would be followed by a trial period called Azmajchi. During the Azmajachi the future officer's loyalty and fighting spirit were severely put to the test. Thus, for instance, they were required to spy on members of their family, arrest and torture friends and acquaintances, eliminate real or alleged enemies of the Communist regime or infiltrate Mujahedin ranks. Recruits who had already belonged to the PDPA at the beginning of their training were admitted to the select ranks of the KhAD and the WAD upon completing their trial period. Those who had not belonged to the PDPA first had to obtain membership, but this was no problem in view of their background.
The Parawachi and the Azmajchi formed part of the KhAD/WAD officer training. Such training was, therefore, not available to ordinary informants. Persons considered particularly loyal by the KhAD and the WAD could apply for a shorter training. Anyone already active within the Communist party prior to the great Saur Revolution as well as members of a select group of pro-Government families qualified for this shorter training.
The rank of officer with the KhAD or the WAD provided considerable material benefits. Thus, an oficer's (sic) salary was almost ten times as high as that of an ordinary official. In addition, this salary could, with impunity, be supplemented with money obtained through blackmail and bribery. Officers of the KhAD or the WAD were also exempted from serving in the Afghan government army and had free access, if they so wished, to alcohol and prostitutes. The KhAD and the WAD also employed women – including as NCOs and officers. However, women were underrepresented in the senior officer ranks." (Exhibit 5, paragraph 2.4)

Later, the paper reads:

"As already stated in section 2.4 agents could not be promoted to officer within the KhAD or the WAD unless they had proved their unconditional loyalty to the Communist regime. This also applied to promotions available to KhAD and WAD officers after completing their training. Any officer promoted during this period of service was, therefore, involved in arrests, interrogations, torture and even executions.
Broadly speaking KhAD and WAD NCOs carried out the same activities as officers. Like the officers, NCOs were actively involved in the torture of prisoners for the purpose of information-gathering, played an active role in threatening and intimidating citizens and were also deployed to arrest real and alleged opponents of the Communist regime or place them in custody. However, as a rule, KhAD and WAD NCOs had less independent investigative tasks than officers and mostly no commandment powers. In practice, NCOs themselves could nevertheless decide to arrest or even execute a person if they saw fit to do so. Like officers, NCOs could not function within the KhAD or the WAD if they were unwilling to take part in the systematic human rights violations by these organisations.
KhAD and WAD NCOs and officers could not resign without running the risk of being branded disloyal. They could, however, be transferred to another public service.
The above suggests that all NCOs and officers were active in the macabre sections of the KhAD and WAD and were personally involved in the arrest, interrogation, torture and even execution of suspects." (Exhibit 5, section 2.7)

The people's perception of KHAD

SAL said that the people in Afghanistan did not like KHAD as they thought that KHAD was a communist body and that those working within it were working with atheists. They also thought that KHAD had brought the Soviet troops to Afghanistan and did not like them for that reason.

SAL's role in KHAD

SAL set out details of his role in KHAD in the following passage from his statement:

"My job was essentially to interview mullahs throughout the province and report back to my superiors. There were 332 mosques in Samangan, containing 580 imams/religious workers. Others from area had left for Iran.
We were there to counter Islam propaganda (fearing that they might win over the people and make it a terrorist base). Already those from other countries (Arabs & Iraqis) came to mullahs and conspired with them. They encouraged jihad. They wanted to destroy the regime and export Islam to the world.
My job was therefore part of the fight against terrorism. I did this by talking to mullahs to make it clear to them why they should not co-operate with Wahabi (Taliban) or foreigners. The September 11 attacks would not have happened if the Najibullah regime had continued.
The Wahabis are a hardline religious group which came out of Saudi Arabia. They worked with the Mujaheddin fundamentalists. The Wahabi were the same people as the Taliban. Their leader was Mullah Omar.
On another level, there were officers from the Islamic Affairs Department of Government and the Ulama Councils who also encouraged mullahs in the right direction." (Exhibit A, pages 2-3)

Again in his statement, SAL described his duties while working for KHAD:

"My typical working day began at 8am when I could check the booklet and think about what needed to be done. This booklet was like a diary that each of us kept. It was regularly handed up to superiors for checking.
My desk had drawers and shelves for papers, files and stationery. A dossier was maintained for each mosque. Each job was documented, report by report, and would be handed up. A report of the days work would also be submitted, as well as a whole dossier if requested. Reports would be returned promptly for filing.
With the others in the section I would meet with Afzal for half an hour soon after 8 am, before heading out on the road until 12 noon. At 12 o'clock I would head back to the compound for lunch. After lunch, I would head back out if more investigations were necessary, or I would simply write my reports in the office.
When going out to interview people or investigate matters, I would wear plain clothes. Generally I only wore a uniform when meeting with senior Government officials. My uniform as a major had scissors & star on the epaulette. I would also wear a uniform between 8am and 12 noon Wednesdays for military lessons in the compound.
I did not carry a weapon – there was no need to with the people I had to interview.
I went out to my duties in a car. We went in pairs to begin with, but split to cover the tasks (interviews). I was normally by myself. We would make prior arrangements to pick each other up, or I would call up on an old-style telephone." (Exhibit A, page 3)

In cross-examination, SAL said that his work was mainly with administrators, mullahs and legislators. As his work took him to the areas under the control of the government, he had to study those areas that remained under its control and those that did not. Security forces were based in those areas and they replaced the Soviet forces as they withdrew. Their locations were noted on reports in the office in Aybak and they would change from time to time.

In his statement, SAL expanded on the work that he did with the mullahs:

"When the Case Officer asked me if I ever arrested anyone, I understood it to mean 'did you people (that is, your organisation) ever detain anyone.' So I said yes, although I personally didn't. It was not my job to arrest people. It was not even part of my job to give orders to arrest people. In any case, it would not have been good for us to treat the mullahs too badly because the people would not have liked it.
I believe a colleague, Zelmi, had detained mullahs, but for only two or three hours. For example, He was very hardline and had organised terrorist activity such as bombs and there was audiotape evidence of this.
But really it was for other units to go around arresting people, 5th Riasat 'Office No. 5' for example. This was the unit which also interrogated any captured Mujahaddin soldiers. If interrogation occurred, it was done by others and I had no right to the information.
Another relevant organisation was Sarunan Ehtasasy (Special Judicial Branch) which detained and interrogated people. Army Intelligence was a part of this organisation. They concentrated on the Mujahaddin. The leader of Sarunan Ehtasasy was the first person to be killed when Mujaheddin took over.
Neither did I personally did not go about taking photographs of mullahs next to statues of Lenin (with the intention of embarrassing the mullah). However, I did threaten to take such a photograph of one mullah who was being difficult.
From time to time, we used to try and win over the mullahs with gifts of money. They were not really bribes. It helped to 'stabilise the situation.'
If mullahs were unco-operative, I would simply stop the interview. Back at the compound, we would report accordingly. Sometimes my boss would talk to him and if that didn't work, Zelmi or Afzal would ask other mullahs to speak to the difficult one to see if they could get co-operation from him. Or they would even ask the Premier, Samat Puya, to talk to a difficult mullah." (Exhibit A, pages 3-4)

SAL said that he did not have any rooms to which he took mullahs for interrogation. Haji Mohammad had such a room. He was a member of the group in which SAL worked but the members of the group did not work together. SAL said that he did not know what happened in the rooms. The documents prepared by Haji Mohammad had the words "seriously secret" written across the top and no-one was allowed to see their contents. SAL knew about his taking people to the room because sometimes Haji Mohammad would accidentally reveal something when he was talking. Haji Mohammad had said that the system was more advanced now and that it would deter more people from being against the government. Those who interrogated people belonged to the Ministry of Justice. In addition, there was a Special Revolutionary Tribunal and it did not belong to the Ministry of Justice.

Dr Maley said that the Special Revolutionary Tribunal was routinely involved in interrogation itself. The paper entitled "Security Services in Communist Afghanistan" states that it and the Revolutionary Public Prosecutor were controlled by KHAD and WAD and that many were sentenced to imprisonment or death on the basis of information obtained under torture (Exhibit 5, page 26).

Dr Maley also said that he did not find it plausible that SAL would not necessarily know what his colleagues were doing. The activities of KHAD were known in Afghanistan for a secret police force cannot operate entirely in secret. It made it known that life would be extremely unpleasant for those whose behaviour was not regarded as appropriate by the regime.

SAL said that he would stop an interview with a mullah if he did not know the Islamic law and regulations sufficiently. Mullahs who were engaged in activities against the government would employ Islamic law and regulations. Those mullahs were engaging in terrorist and explosive activities whereas the government was trying to bring peace. SAL would report that back at the compound at Aybak and an enquiry would be made as to the level of knowledge held by the mullah. That level would determine the level of person sent to talk to him. At times, the governor himself would go to speak with a mullah who was not co-operating. The matter might also be referred to an organisation known as Religious Affairs. It had a greater knowledge than the mullahs and the mullahs' activities could be prevented by using their level of knowledge. If a mullah who was speaking against the government was not persuaded, Religious Affairs would go to the mosque and prove to the people that the mullah was not correct according to Islam.

Mullahs were not detained and tortured, SAL said. That would not happen in Afghanistan, which is a Muslim country, because the people would think that KHAD comprised infidels if it were to punish the country's religious leaders.

When interviewing mullahs, SAL said, he would keep notes if they were necessary. If he detected a threat to security, SAL would report that threat to Lieutenant-Colonel Zelmi. An example of such a threat occurred at a village where one of his colleagues had been killed. After a few weeks of working in that village, SAL said, he did not feel secure and reported to Lieutenant-Colonel Zelmi that there was no security in the area. He did not feel secure because of a threat from the Mujaheddin, who were fighting against the government. SAL said that he did not report where the threat was because he did not know. He reported only in general terms that there was no security in the area and he requested that the area be checked out by the combined forces.

The combined forces comprised members of KHAD and the police. Military forces were not used and there were no military forces based in the area. The members of KHAD who were used did not belong to any of the Riasats. SAL said that the forces securing the area did not take people but sent the people to a military tribunal. There was no such tribunal in Samangan and they were sent to Mazar-e-Sharif where they were charged, for the most part, with crimes against the revolution, destructive activities and terrorist activities.

SAL's attention was drawn to the following passage from a report prepared by Amnesty International in March, 1991 entitled "Afghanistan: Reports of torture and long-term detention without trial":

"Riasat-e-Haft, Directorate No 7, located in the Shashdarak area north of Kabul, carries out responsibilities similar to that of Riasat-e-Panj." (T documents, T18, page 4)

The passage regarding the Riasat-e-Panj reads:

"Riasat-e-Panj is reported to have been particularly involved in the arrest and torture of people suspected of involvement in coup attempts. The personnel of Riasat-e-Panj is reportedly responsible for dozens of extrajudicial executions following the coup attempt on 6 March 1990. Among those executed were four generals – Asif Shour, Kabir Kawyani, Japar Sar Tir and Mohammad Pirooz – who were reportedly arrested on the day of the coup at the Rishkhor army base in Kabul, allegedly on the direct order of the head of Riasat-e-Panj. Witnesses report that the four generals were dragged to a room by the personnel of Riasat-e-Panj. 'Shots were fired and the generals were killed in that room.'" (T documents, T 18, page 4)

SAL said that the passage described the position "in general" but emphasised that the organisation was very secretive. A person in the organisation did not know the work of his colleagues, SAL said. He did know that the 5th Riasat had "the job of dismantling the bandits". He did not know whether it was active outside Afghanistan.

In the Statement of Agreed Facts, the following passage appears:

"1.10 The Applicant was questioned further about KHAD arresting people, he said that his section did not usually arrest people but the 5th Riasat did that. There were many detention centres but he claimed that people were held for only 20 days and were then taken to prison if an order was so given. He claimed to have visited a detention centre once, when his brother was held for 11 days, in order to secure his release. He claims that his brother was not mistreated, and that people were generally not mistreated by KHAD. When confronted in his interview on 6 February 2002 with abundant reports that the KHAD committed torture as part of their interrogation process, he claimed that when Najibullah became president, interrogation became more humane." (Exhibit 6)

In giving his evidence, SAL said that, according to Afghanistan's constitutional law, if a person commits a crime against society such as a killing or a crime against the government, he or she is supposed to be detained for 20 days. Within that time, a prosecution is supposed to have been completed. If accused of a crime, he or she is sent to a gaol and not to a detention centre. A person was initially taken before a Judge if he or she had been detained for three days and could be detained for a further 20 days. If the prosecution was not then completed, he or she was to be released.

SAL agreed with Mr Leerdam that the 5th Rasiat was engaged in arresting people. With regard to the coup attempts mentioned in the passage, SAL said that the leadership of the government was split into three groups. Those groups were "catching each other in the name of military coups". Officers in his position, SAL continued, were thinking about how to survive; about how not to be killed and to live a few more days. The state of affairs was bad as at 6 March, 1990 but worsened after that time when fighting broke out among the ethnic groups.

In his statement, SAL said:

"The 5th Riosat were the worst offenders in terms of treatment of prisoners. However, even they "softened" their methods after the initial period in which they consolidated their control. The workings of the 5th Riosat were kept secret and men like me with relatively routine jobs were generally not in contact with them.
I occasionally met 5th Riosat officers at party meetings or military courses. I didn't talk to them about what they did. I recall some of them being in plain clothes at all times. I really was not aware of tortures going on. The communication infrastructure was extremely poor around the country, and that sort of information was not something readily made known.
I read newspapers, however these never mentioned mistreatment of prisoners. Newspapers were government controlled, as were virtually all communications. A new newspaper weekly came out six months after the fall of Najibullah, which had a slight degree of independence, but even this never contained any information about treatment of prisoners.
I once sought to leave the job due to the feelings of uneducated people against the security forces, possibly because of bad things being done by the 5th Riosat and others. I offered to resign, and my resignation was refused. But if I had just refused to turn up to work one day, I would have been arrested. This happened to people I knew." (Exhibit A, page 6)

In a record of interview dated 6 February, 2002, SAL is recorded as saying that "When we arrest them probably we would keep them for about an hour or two" and that they were arrested for preaching "… against our organisation" (Exhibit 4, page 44). That was in response to the question "Did you ever arrest anyone?" and "What would you arrest them for then?" (T documents, page 44). In giving his evidence, SAL said that he was referring not to himself but to the group. After hearing the tape of the interview, the interpreter at the hearing stated that the question had been asked in the plural form when interpreted from the English to SAL's language i.e. the Dari word for "you" in the plural form was used.

He maintained that position in cross-examination. The 7th Riasat, he said, was not involved in arresting and detaining people in Aybak. It was never involved in torture. Aybak was not Kabul but he could neither verify nor reject suggestions that it had occurred in Kabul. He questioned whether such torture had occurred for those telling Amnesty International of such things might have said those things in order to gain refugee status in other countries. He also questioned whether it had occurred in Kabul where people were generally better educated. When a person is better educated, he said, a person knows himself better and he would not think that such a person would torture or harm another person.

SAL was asked to comment on the following passage from the statement of Dr Maley:

"d. Under the influence of the new Gorbachev regime Najibullah adopted a vocabulary of 'national reconciliation' (natsional'noe primirenie in Russian), which reflected the desire of the Soviet leadership to 'indigenise' so-called 'regional conflicts' (notably Afghanistan and Cambodia) by drawing uncommitted forces to support Marxist-Leninist regimes. However, the strategy was no one of accommodation with regime opponents, since recognition of the leading role of the People's Democratic Party (known from 1990 as the Hezb-e Watan, or 'Homeland Party') was a requirement for engagement in the process. As time passed, the concentration of the regime's forces in Kabul allowed it to rely less on direct coercion in the capital, and more on the internalised fear of what KhAD was capable of doing. This was much less the case in outlying areas. As I have written in The Afghanistan Wars at p.98, 'All major towns under regime control had their own KhAD offices, and it was in these outposts that some of KhAD's worst atrocities were committed.'" (Exhibit 5)

SAL said that the regime did not have the facilities to be organised over such a vast area of Afghanistan. It had only 100,000 men or 200,000 people in all the government's organisation. It was not possible for it to have a presence in every single village or district. Taking Samangan Province as an example, it has 16 or 17 districts. Only the capital city of the province, Aybak, was under the control of the government and the remainder under the control of the Mujaheddin. Even in the case of Aybak, its suburbs were not under the control of the government but of the Mujaheddin. Those villages that were under the control of the government were very few.

SAL said that he was aware that people were taken to the prison in Aybak. He had never been there himself but he knew about the prison. It was used by both KHAD and the police but was controlled by the police and not by KHAD. The people who were taken there by KHAD would have been involved in destructive activities such as placing an explosive in a building. He did not know that people suspected of being involved in the Mujaheddin were taken there. He said in his statement that he had never heard of torture or beatings in the prison.

SAL said that his brother had been taken to the Aybak prison after four young people had taken guns from a city arsenal and he had not done anything about it. His brother was involved in the revolutionary youth organisation whose members were taught to watch over the local area. He and four others had been on duty in the arsenal and had not prevented the removal of the guns. The other four left but his brother, who stayed, was arrested. SAL said that his brother should have stopped the removal and justified his arrest on that basis.

SAL dealt with the events following his brother's arrest in his statement:

"I went to the officer of the Minister for Defence/Interior in Aybak. I talked to the people in the office and they told me that an investigation was underway. I was told the matter was up to "Government Security." The next day I went to their office, and spoke to the chief (who I knew). I asked for the release of my brother. I was told to write a letter, which I did. The security chief then wrote a letter to the Revolutionary Court and I was told to wait.
After eleven days, my brother was released.
I visited my brother in prison while he was detained, as did my mother and father. My brother told me that his only complaint was about the interrogations, which took place between 1am and dawn. There were no beatings." (Exhibit A, pages 4-5)

SAL's promotion to the rank of Major

SAL said that he was promoted to the rank of Major just prior to the collapse of Dr Najibullah's regime. In the Statement of Agreed Facts, it was said that SAL understood that his promotion had occurred at an earlier time than he could otherwise have expected "… because of intelligence work he had done in reporting Azad Beg" (Exhibit 6, paragraph 1.7). In his statement, SAL said of the large numbers of high ranking officers at the compound:

"There were two reasons for there being so many high-ranking officers. Many men were promoted to boost morale and foster loyalty, especially towards the end (in the years leading up to 1992) when the regime was not going so well.
During the Najibullah era, in particular, the dominant Southern "factions" (for example, Pashtun) prevailed over Northerners. This led to much job dissatisfaction among those working for the regime in the North, so there was greater need to placate them. This was another reason for so many being given high ranks." (Exhibit A, page 2)

Of Azad Beg, SAL said that he was an "agitator" or an "opposition campaigner" linked to the Pakistani Army who was causing unrest in the area (Exhibit 6, paragraph 1.7). In cross-examination, SAL said that Azad Beg was a military officer in Pakistan connected with the intelligence services and a close relative of the Minister of Defence of Pakistan. He was an ethnic Uzbek from Bokhara in Uzbekistan and had migrated with other ethnic Uzbeks to Pakistan when Bokhara was attacked by ex soviet forces. Azad Beg was involved in a political party called the Islamic Council of the Northern Provinces of Afghanistan.

Azad Beg, SAL said in cross-examination, was obtaining supplies from Pakistan and obtaining intelligence to favour the Mujaheddin. SAL said that he first started working on matters relating to Azad Beg when he received a report of his destructive actions intended to keep the forces in the north of Afghanistan busy. Azad Beg had operations in other areas but he also had operations in the area to the north of Samangan towards Mazar-e Sharif just before the mountain range. It is known as Kholin. SAL said that, in 1370 or 1371 (1991 or 1992) and a few months before the collapse of Dr Najibullah's regime, he received information from one of his friends, who was sympathetic to the communist regime, that Azad Beg was undertaking activities in this area. He reported what he was told to his head of section. Further investigations were carried out by his head of section or head of department, Lieutenant-Colonel Zelmi, SAL said. SAL said that he was promoted to Major even though he did nothing else in relation to Azad Beg because it was a time when some differences appeared in Dr Najibullah's group. Some members of his group, particularly the Uzbeks, were not happy with Dr Najibullah and early promotions were given to Uzbeks in KHAD in an effort to keep them happy.

In cross-examination, SAL said that the government sent security forces to the area where Azad Beg was operating in order to prevent his destructive activities.

Dr Maley said that sending in the security forces would mean that anyone who might have been an opponent of the regime would be arrested and exposed to interrogation, intimidation and threat by KHAD. An officer of KHAD who could only provide general evidence and not direct evidence would have come under suspicion.

Holidays in Mazar-e-Sharif

When asked why he had not attempted to escape when he last visited Mazar-e-Sharif in 1991, SAL asked rhetorically how could he. He would be killed by KHAD. Apart from that, he did not have a passport or visa. There was an exchange of criminal prisoners between Afghanistan and Uzbekistan. If Afghanistan chose to pinpoint him as a criminal, he would have been sent back to Afghanistan.

The evidence of Sabir Ashar Khan

Mr Ashar Khan made a statement:

"… I am from Afghanistan, of Uzbek heritage. I lived in the city of Aybak, in Samangan province. I lived there when Najibullah was in power and then when the Mujaheddin were. I left when the Taliban came.
I knew … since we were children. We were acquaintances. He also lived just near Aybak, in Samangan. … was a good man, no-one complained against him. I saw him often in the 1980's. I saw him in the mosque and on the street. He wasn't wearing an official uniform. We always said hello but did not know each other well socially. He was from a good family. He had a brother, Kayam, killed by the Taliban.
I knew … was an officer in the security forces in the 1980's, but I did not know his rank or his duties. I think his job was to protect the city from criminals and enemy people. At that time men were either known as 'for the government' or 'against the government'. I myself did not have a job at the time." (Exhibit B)

In oral evidence, Mr Ashar Khan said that SAL is a noble man from a very good family. He wishes that SAL could stay in Australia because if he is to be sent back to Afghanistan, his life will be in danger. When he telephoned the Darah-Sof region in Samangan Province the previous day, there had been fighting in the streets.

In cross-examination, Mr Ashar Khan said that he had left Afghanistan in 2000 and had last seen SAL in Afghanistan in 1371 (1992). He knew SAL before SAL joined the security forces because their houses were very close. SAL is much older than he is. Mr Ashar Khan said that he was born in 1979 and so was three or four years of age when SAL joined the security forces.

CONSIDERATION

SAL questioned whether KHAD had been involved in any acts of atrocity in Afghanistan. If it had, a distinction was sought to be drawn between the activities of KHAD in Kabul and in regions of Afghanistan outside Kabul. A further distinction was then sought to be drawn between any activities undertaken by SAL for KHAD and any acts of atrocities committed by KHAD. The focus of this case, then, is upon whether SAL had any part to play whether directly or indirectly in acts of atrocity and, if so, whether his part leads to the conclusion that he had committed a war crime or a crime against humanity.

SAL did not concede that KHAD had been involved in any acts of atrocity or torture in Afghanistan but he did agree that the 5th Riasat had been involved in arrests. In addition, he acknowledged that members of KHAD had been involved in securing an area when Azad Beg was identified as operating that area and also in checking another area where SAL had reported feeling a lack of security. Beyond that, SAL did not make any concessions or acknowledgments and stated the requirements of Afghanistan's constitutional law in relation to those who were detained by KHAD.

SAL's evidence is not consistent with the evidence of Dr Maley or with the material in the paper prepared by the Netherlands Ministry of Foreign Affairs Asylum and Migration Division or with the various articles included in the T documents. That material points to KHAD's being involved in acts of torture and attacks against the civilian population or individual civilians who were not taking a direct part in hostilities. It also points to KHAD's having been engaged in violence to life and person including cruel treatment and murder where it was involved in armed conflict within Afghanistan and not of an international nature. I am satisfied that it provides strong evidence that KHAD committed crimes against humanity or war crimes or both within the meaning of an international convention such as the Nuremberg Charter.

There is no question that SAL was an officer of KHAD at the time such war crimes and crimes against humanity were committed. He denies that he knew about atrocities, torture and interrogation carried out by KHAD such as those to which I have referred in the course of these reasons. He denies that he played any part in them and the effect of his evidence is that he was engaged in encouraging the mullahs not to oppose the government. In relation to Azad Beg, all that he did was to pass on the information to his superior and he did the same in relation to the village where he felt lack of security. He took no part in subsequent events, he said.

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.

SAL was a member of, and indeed an officer of, KHAD at all relevant times. He had undergone six months of training when he first joined it. His evidence did not expand upon the nature of that training but there is evidence in the article by the Netherlands Ministry of Foreign Affairs Asylum and Migration Division that officers of KHAD received quite extensive training. He spoke of the holidays that were paid for by KHAD and in that regard his evidence is consistent with, although not identical with the material in the paper by the Netherlands Ministry of Foreign Affairs Asylum and Migration Division regarding the additional benefits paid to officers of KHAD. So too is his evidence regarding the consequences of his attempting to leave KHAD. The paper states that KHAD officers and non-commissioned officers could not leave without being branded disloyal. SAL stated that he would be killed if he attempted to leave. Having regard to all of this evidence, I am satisfied that there is strong evidence that he was not playing a peripheral or menial role in KHAD. He was an officer who was entitled to benefits and whose departure would not only be noted but would be visited with dire consequences.

The essence of SAL's evidence is that KHAD did not engage in atrocities of any sort be they torture, violence to person or cruel treatment or arrest or detention of persons in circumstances in which they are removed from the protection of the law for a prolonged period of time. He referred to the requirements of the Afghanistan Constitution and did not give any acknowledgment that those requirements might not have been observed by KHAD. He distanced himself from any association with the arrests of persons by attributing responsibility for them to the 5th Riasat and drawing a sharp distinction between the work of the 5th and 7th Riasats. At the same time, he acknowledged that Haji Mohammad, who worked in the same group as he, carried out activities in a room to which SAL was not privy and that he spoke of a system that would deter more people from being against the government.

Apart from SAL's evidence, there is strong evidence that acts of atrocity, torture, cruelty and violence to the person as well as arrest and detention for indefinite periods were perpetrated by KHAD not only in Kabul but in other areas of Afghanistan. This is found in the evidence of Dr Maley and in the paper by the Netherlands Ministry of Foreign Affairs Asylum and Migration Division to which I have referred and also in the reports and papers prepared by Amnesty International and included in the T documents.

The same material is strong evidence of the fear that KHAD engendered among the community by its very presence. That fear was based on the community's knowledge of its past acts and knowledge that it could do the same in the future. The material does not suggest that KHAD's activities were confined to Kabul and, indeed, Dr Maley gave evidence that the atrocities it committed were worse in the regions than in Kabul. The paper prepared by Amnesty International and entitled "Afghanistan Torture of Political Prisoners" was prepared on 11 April, 1986 and referred to numerous cases of torture. Many of those cases related to the period when SAL was an officer in KHAD and were drawn not just from Kabul but from places such as Kandahar, Jalalabad and Pagman.

Given the spread of KHAD activities and the knowledge of KHAD's activities in the community as well as SAL's position in KHAD as a middle level officer, I am satisfied that there is strong evidence that SAL would have been well aware of the activities in which KHAD engaged even if he were not himself engaged in acts of torture, violence and detention of the sort to which I have referred. I am further satisfied that there is strong evidence that he would have been well aware that his reporting information to his superiors would be likely to lead to such acts being perpetrated against those about whom he reported. On his own evidence, SAL asked for an area to be checked out by the combined forces when he detected a lack of security in an area. His evidence was that the forces securing the area did not take people but sent the people to a military tribunal where they were charged, for the most part, with crimes against the revolution, destructive activities and terrorist activities. In relation to Azad Beg, SAL said that, after he had reported his information to his superiors on Azad Beg's whereabouts, the government sent security forces to the area where Azad Beg was operating in order to prevent his destructive activities. Both of these incidents lead me to conclude that SAL was aware that his merely reporting information had consequences for those whom he reported and that those consequences were directed to ending the activities of those whom he reported.

SAL distanced himself from those consequences. They were carried out by others and the interrogations were carried out not by KHAD but by the Ministry of Justice or by the Special Revolutionary Tribunal. The evidence of Dr Maley is that the Special Revolutionary Tribunal was under the control of KHAD. Given his position in KHAD, the knowledge of KHAD's activities in the community, his knowledge of the action that KHAD would take when he reported his information, I am satisfied that there is strong evidence that SAL reported that information with the knowledge that KHAD would take action to end the security threat in one area or the destructive activities alleged to have been undertaken by Azad Beg in another. He would have done so in the knowledge that KHAD was likely to engage in activities that amounted to war crimes or crimes against humanity in the sense I have described above. Mr Ashar Khan's evidence does not reduce the strength of the evidence. He was approximately 13 years of age when he last saw SAL in Afghanistan. He knew SAL's family and saw SAL in the neighbourhood. He knew SAL as being from a good family but was not in a position to comment on SAL's work other than in the most general terms.

It follows that I am satisfied that there is strong evidence that SAL has committed either war crimes or crimes against humanity within the meaning of an international convention. Having found that, I find that he comes within Article 1F(a) of the Convention. That conclusion leaves me with no discretion to take into account other factors such as the persecution he may suffer if returned to Afghanistan, any fear for his own safety that might have motivated his actions or the hardships facing his wife and children if returned to Afghanistan for, once a person comes within Article 1F(a), the provisions of the Convention do not apply (Dhayakpa, French J at 563 in relation to Article 1F(b)).

For the reasons I have given, I affirm the decision of a delegate of the respondent dated 7 May, 2002.

I certify that the ninety-three 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  8 and 10 October, 2002
Date of Decision  12 November, 2002
Counsel for the Applicant            Mr K. Hanna
Counsel for the Respondent        Mr L. Leerdam
Solicitor for the Respondent        Sparke Helmore

[2002] AATA 1164

12 November 2002