SRDDDD and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 150
•13 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1340
GENERAL ADMINISTRATIVE DIVISION ) Re SRDDDD Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date13 February 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – protection visa – war crimes – crimes against humanity – whether applicant is a person to whom Australia has protection obligations under refugee conventions – whether serious reasons to believe applicant has committed war crimes or crimes against humanity – decision affirmed
W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948
SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432
SRYYY and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 927
SRNN and Department of Immigration and Multicultural Affairs [2000] AATA 983
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
Migration Act (1958) s 91T
1951 Convention relating to the Status of Refugees
Rome Statute of the International Criminal Court (Rome, 17 July 1998)
REASONS FOR DECISION
13 February 2004 The Hon R N J Purvis Q.C., Deputy President the application
1. This is an application seeking to set aside the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) of 29 July 2003 refusing to grant to the Applicant a Protection (class XA) Visa. The refusal was based upon findings by the delegate that the Applicant:
(a) is excluded from protection under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, (“the Refugees’ Convention”), there being strong reasons to consider that he has been complicit in and has committed war crimes and crimes against humanity within the meaning of article (1) F of the Refugees’ Convention whilst an active member of the Nepalese Maoists,
and that he
(b) is not a person to whom Australia has protection obligations under the Refugees’ Convention and does not meet the prescribed criterion in subclause 866.221 for the grant of a subclass 866 (Protection) Visa.
2. The decision of 29 July 2003 was consequent upon a decision by the Respondent of 15 March 2000 refusing to grant a Protection Visa (class XA) and an appeal from the later decision of the Refugee Review Tribunal. The Refugee Review Tribunal decided that the Applicant satisfied Article 1A (2) of the Refugees’ Convention but remitted the matter to the Respondent for reconsideration as to whether the Applicant was excluded from protection by Article 1F of the Convention.
3. The Applicant says that his activities with the Maoists Party in Nepal were political in character and purpose and were intended to overthrow the Government of Nepal. The activities, it is maintained, are to be characterised as political crimes within the meaning of Article 1F of the Refugees’ Convention and hence the protection provisions of the Convention apply to him.
the hearing
4. At the hearing of this application the Applicant was represented by Mr David Burwood of Counsel, the Respondent by Ms Rhonda Henderson also of Counsel.
5. The documents lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T14. Written material tendered by the parties was also received in evidence and marked accordingly, namely:
Exhibit No
Description
A
Copy of article of an Interview with Comrade Prachanda titled “Red Flag Flying on the Roof of the World”, RW online published 20 February 2000
1
Respondent’s letter with copies of U.S. Department of State, Bureau of Democracy, Human Rights, and Labor report on Nepal (31/3/2003), article “The Age” News Paper (8 November 2003) and ICRC Annual Report 2002 on Nepal
6. No oral evidence was called. The matter proceeded on the basis of the above mentioned written material and the submissions of Counsel.
THE REFUGEES’ CONVENTION, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT AND THE MIGRATION ACT 1958
7. So far as they are relevant to these reasons and the decision, the provisions of the Refugees’ Convention are:
“Article 1F
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.
8. The Rome Statute of the International Criminal Court 1998 (“the Rome Statute”) is the relevant international instrument making provision in respect of war crimes and crimes against humanity and its provisions are pertinent to the present decision. The provisions of the Rome Statute here relevant are as follows:
“Article 7 - Crimes against Humanity
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;
…
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
…
(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 recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
…
(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 the 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;
…
(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
…
Article 8
War Crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose 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) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
…
(d) Paragraph (2)(c) applies to 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) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities;
…
(v) Pillaging a town or place, even when taken by assault;
…
(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
…
(f) Paragraph 2(e) applies to 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. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups.
…
Article 25
Individual Criminal Responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in the commission or its attempted commission, including providing the means for its commission;
(d) In any other 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.
…
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
9. The Migration Act 1958 as amended relevantly provides:
“Section 91T
Non-political crime
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a crime where the person's motives for committing the crime were wholly or mainly non-political in nature.
…”
“non-political crimes, war crimes and crimes against humanity”
10. In its reasons for decision in determining the refugee status of the Applicant, the Refugee Review Tribunal said (T8, p166/167):
“According to his evidence which the Tribunal accepts, the applicant has been politically active for a long time, is committed to and outspoken regarding his beliefs and has participated in violent political acts against the Nepalese authorities. Given the current political climate and the Nepalese government’s determination to dominate and destroy any support for the Maoists, the banned Nepal Communist Party and the Maoists themselves, the Tribunal cannot be satisfied that the applicant is not already known to have participated in such attacks and that he would not come to the adverse attention of the authorities upon his return to Nepal and therefore, would not be targeted for reasons of his political opinion.
The Tribunal finds therefore that there is a real chance that the applicant would be seriously harmed for reasons of his political opinion and that it is not a far-fetched possibility. The Tribunal finds therefore that the applicant has a well-founded fear of being persecuted for reason of his political opinion should he return to Nepal now or in the reasonably foreseeable future.
…
The Tribunal is satisfied that the applicant satisfies Article 1A (2) of the Refugees Convention as amended by the Refugees Protocol.”
11. However, Article 1F of the Refugees’ Convention as amended by the Refugees’ Protocol would exclude the Applicant from protection if there were serious reasons for considering that he has relevantly committed a war crime or crime against humanity or he has committed a serious non-political crime in Nepal. The exclusion requires a decision maker to have serious reasons for considering a person to have committed only one of these crimes. The sub-paragraphs of Article 1F have separate and independent existence (see W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948). Whilst it was submitted on behalf of the Applicant that the sub-paragraphs of Article 1F are to be taken other than as independent the one from the other and that the political flavour in Article 1F(b) was relevant to a construction of Article 1F(a) and inferentially Article 1F(c), I do not see this as being so. Each sub-article is in my opinion intended to embrace a distinct factual situation. The “serious non-political crime” in (b) is a different offence comprised of a different factual situation to the “crime against peace”, the “war crime” or the “crime against humanity” in (a). That is, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a “crime against peace”, a “war crime” or a “crime against humanity” has been committed, it is of no avail for the person to argue that such crime was committed under the relevant degree of political motivation. Likewise it is of no avail for the person to argue, that acts contrary to the purposes and principles of the United Nations were committed under the relevant degree of political motivation. As it was said in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179: “That is why para (b) deals with topics that are very different from paragraphs (a) and (c) in Article 1F”.
factual background - generally
12. The Applicant is a Nepalese citizen having been born in that country. His family were members of what is described as “the privileged class” enabling the Applicant to attend University were he graduated with a degree in commerce. Whilst an undergraduate student he joined the Maoist group. Following his graduation in 1998 he became more active in the Maoist movement and by 1999 began to move around with them from district to district becoming intimately involved in their insurgency activities. He was, he said, a part “of the second line of defence”.
13. It was as a consequence of the Applicant being in fear of arrest (a warrant had been issued against him for terrorist activities), that following the Maoist attack on the village Mahaghat he left Nepal in 1999, escaped into India and entered Australia in October of that year on a false passport.
14. The general factual background in this application is not in dispute. The Applicant was not called to give evidence or to be cross-examined. The Respondent accepted all of his claims, finding him “open and truthful and his claims plausible”. “His account of the Maoist Party, his actions and the general situation in Nepal accords with all of the information that I have read…” (T2 p11).
15. The background as outlined in the delegate’s decision is as follows (T2 pp8-11):
“Relevant claims
6 Nepal is a nascent democracy, having been ruled as a kingdom until about 1992. The country then became a democracy. The applicant belongs to the privileged, educated class, but at university he was exposed to the Maoist ideas. He became concerned by the corruption and exploitation of the poor, especially by wealthy rural landowners.
7 When the applicant joined the Maoist group he was an undergraduate university student. At that time the Maoists group was a single group espousing general Maoist communist philosophy. The applicant participated in distributing information and attended talks and meetings. After a couple of years the group split into two factions. One faction supported change through the ballot box, and the other felt that the corruption in the country was such that no election could be fair and open, and this faction supported a change of government by force.
8 Initially the applicant believed that change through the voting system was possible, however, he became disillusioned by the corruption and following an election in 1995 he then sided with the “hardline” group which advocated change using force and the bullet.
9 The Maoist who supported change through elections achieved electoral success in various areas. In the areas where there was overwhelming support for the Maoists, the government bureaucracy chose to live outside the area. The government maintained a presence in these Maoist areas in the form of police stations.
10 Upon completing university the applicant went “underground” to serve the group. His main activities involved talking to people to try to convince them of the ideology of the group.
11 The applicant stated at interview that the landowners were often dishonest. In a kind of mortgage system, landowners and wealthy people would lend money to the poor in exchange for their land held as security. The poor were illiterate, and these contractual relationships were frequently misrepresented in the deeds. Commonly this was done by misrepresenting amounts owed to the lender by adding zeros to the amounts owed when documents were being signed. (The signatures consisted of a thumbprint due to the illiteracy of the poor.) Due to their illiteracy the borrowers did not know that the documents that they signed misrepresented the actual debts, and would often later find that a small debt was actually recorded as a massive debt that they could not possibly repay in their whole lifetime…making them slaves to the wealthy for their entire lives.
12 The applicant was involved in various activities, including two projects in which landowners were asked to meet with the Maoists to present all of their debt documents. The landowners involved complied with the request. The applicant believes they knew that they would be forced by the Maoists to comply if they refused, however no threats were made during the incidents in which he was involved. The Maoists publicly burned all of the debt documents, thereby releasing the poor from the onerous debts.
13 Often the Maoists would force a landowner who held unused land to allow the poor to work the land and to take a share of the produce in order to survive (proportional to the number of hours that they worked the land). The landowner would maintain the ownership of the land and would be given the balance of the income from this unused land.
14 In other circumstances the Maoists would educate the poor about their rights then place them on unused land, and armed with knowledge of their rights, the poor would then stand up to the landowners by themselves.
15 The applicant claims that he was involved in a fight with a landlord, and used his knife against someone who ran away.
16 He was also involved in an incident that involved violence in a village in Rukum district before fled Nepal. This incident occurred in September 1999. The applicant claims that it was a battle that lasted for about three hours from 9 pm.
17 This incident was arranged by the central command. One way in which the Maoists worked was to have members collect information about particular districts. Such information involved an assessment of the local support for the Maoists, the nature and size of the government presence in the district, the security situation and other information that may be useful for trying to take control of a region. For instance, if there were 5 policemen with five rifles and five bullets each, an assessment would be made that more than 25 Maoists would be needed to be successful in a campaign against them. Thus 25 Maoists killed would use all of the bullets and there would still be Maoists advancing. This information would be sent to central command which would relay orders about the timing and type of attacks.
18 The applicant was involved in this information gathering strategy for the group. He entered the village and moved around the village representing himself as a local. It was a village of about 30,000 people, so it was possible for the applicant to pretend to be a local. He assessed the level of support for the Maoists…and as it was an area in which 75% of the population had voted for a parliamentary Maoist representative, the support was high. No bureaucrats lived within the village, and he found that only a police station represented the government.
19 The applicant therefore gathered information about the police station and the local area, and in the evenings went to the Maoist camps that had been set up in the surrounding jungle. For about five days the Maoists observed the area from the camps and used the applicant’s information to decide what action to take.
20 The applicant understood that his information would be used to launch an attack operation to make the police and government officials flee the area, so that the Maoists could take control. A warning was sent by mail telling the government people and police to leave the area, but the police stayed.
21 About three hundred Maoists were involved in the operation on the police station during the evening of 22nd September 1999. During the attack the applicant stayed in the camp in the jungle to provide defence against any attacks by government forces from outside the village, and to provide reinforcements if needed for those fighters going ahead. The fighters approached the police station with loudspeakers in an attempt to make the police give themselves up. The applicant believes that had the police given themselves up the Maoists would have captured them and would then have used these captives to negotiate with the government to release the Maoists who were in prison.
22 However the police did not surrender, and the police started the shooting. The fighting continued for three hours from about 9 o’clock at night. The Central District Officer …surrendered. The applicant understands that after being kept captive for a month and a half the [Central District Officer] was released after negotiations with the government.
23 After three hours of fighting the Maoists received news that a large contingent of government soldiers was on its way to the area, and the Maoists were not in a situation to defend themselves against such a large group. So they fled. The applicant fled to India because he believed his identity would be known to all of the villagers with whom he had spoken while gathering information. Many Maoists had been killed in this battle.”
16. The following observations were also made by the delegate (T2/11-12):
“29 The applicant joined the Maoists before they engaged in violence and before they advocated violence. However he later followed the faction that advocated violence as a method to achieve the goals of the group (when he felt that the election system could not work due to entrenched corruption).
30 The applicant had been involved in some violence, however he has never killed a person that he knows of. The applicant was not involved directly in the fighting during the attack on the police station. He stayed in reserve in case he was needed to fight in the village and to provide rear defence.
31 The applicant gathered information which enabled the attack on the police station in the village in which a number of police and Maoists were killed.
32 The applicant knew that after a warning to leave the area, followed by an opportunity to surrender peacefully, violence against the police was likely, and that his information would be used to design the strategy.
…
34 The applicant supported the use of violent means to overthrow the government and to install a Maoist government. He was aware of the killing of civilian landowners, wealthy people and politicians by the Maoist group and supported such activities when necessary as a means of forcing change.”
17. From my reading of the material tendered in evidence at the hearing of this application the factual background as outlined in the delegate’s decision accords with such material. The observations made by the delegate are also supported by the evidentiary material.
18. However, in order to reach an appropriate decision in this application it is necessary for me to examine in greater detail the nature of the Maoist activities and of the Applicant’s involvement in them.
the nature of the maoist activities
19. Objective evidence as to the nature of the activities engaged in by the Maoists was available to the Tribunal by way of material contained in the T-documents (see T2, T7, T8, T12), Exhibit A and Exhibit 1. In Jane’s Intelligence Review December 2002 (T12/192) it is stated:
“Controlling structures
The insurgents’ military arm grew rapidly from a small nucleus in the Tamang communities around Harbung in West Nepal in the early 1990s. In its expanded form, the military wing is now organised into five elements that control their overseas linkages, the Kathmandu valley cadres and the three military regions - central, east and west that comprise the remainder of the Nepalese countryside and the regional centres. Each military region is further subdivided into three sub-regions and then again into three districts. The 30 or so military districts that result from this subdivision do not correspond to the official jillas or administrative districts of Nepal.
The strengths, energy, limitations and ruthlessness of the movement are manifest at the operational level of the military wing. In concept the smallest brick in the field organisation on which the Maoist structure rests is the local guerilla group. This is tactically reinforced from the district or region level for a specific action.
…
At a local level Maoist social regulations ban gambling, alcohol, corruption, ostentatious religious ceremonies and caste and gender discrimination. The local Maoists act in place of the government, monitoring and controlling movement through their area, commandeering privately owned weapons and keeping accurate records of individual wealth and surplus food. Because most of Nepal’s rural areas are occupied by such groups, the Maoists collectively exercise an overwhelming resistance to the Nepalese government’s efforts to re-assert itself over its territory in the form of elections, development infrastructure and the party political efforts to educate and mobilise a more informed electorate.
Military tactics
When the Maoists attack a military target their local organisation is significantly enlarged by the arrival of a uniformed battalion group. Whereas the resident guerillas are primarily an instrument of control, the uniformed battalion group is an attack force. Its permanent cadre is subdivided into four functional groups: uniformed fighters; logistics porters; the intelligence group, and commissars. The regular battalion is augmented by a locally conscripted element known as the ‘martyrs’.
The uniformed fighters are a full-time military force with an established vertical control structure and badges of rank. Individual fighters are variously armed with captured arms and seem to adapt themselves to new weapons with great versatility.
…
A Maoist operation against a company position is usually executed with precision and determination. The target will be carefully selected for its value and vulnerability. Its security will be penetrated by the intelligence group that has shown itself capable of making shrewd assessments concerning the laxity of a garrison and the weakness of its defensive positions. The most successful Maoist operations have managed to overcome the defensive perimeter using surprise but where this has failed waves of martyrs will assault the position until the defending fire is exhausted.
The final thrust is made by the uniformed fighters, who enter and clear the installation, rounding up prisoners, gathering weapons and looting useful articles. Meanwhile the commissars sift through records and papers, identifying the prisoners and deciding who will be executed and how. In some cases executions are carried out visibly and brutally to send a signal to corrupt government officials and police officers in other areas.
…”
20. The article “Red Flag flying on the Roof of the World” (Exhibit A) being an interview with the General Secretary of the Communist Party of Nepal records the Secretary as saying:
“We had mentioned in our initiation document that initiating the People’s War means not only crushing the enemy - it is also to change ourselves, to change the masses. The great Karl Marx stated that the working class would have to go through 15, 20, 50 years of civil war, not only to crush the enemy but also to transform itself, to make itself fit to exercise new power. We quoted this, and we quoted Lenin about how the process of civil war will come with an extremely complex situation. And by facing this situation, the party will be able to exercise power. We also quoted comrade Mao about how the process of People’s War is not only to crush the enemy, but also to clean our own dirtiness and all our bad habits - bad things we have had for a long time. To clean all these things, that is also the aim of the People’s War. Right from the beginning, we tried to give the masses this message, and we tried to train the whole party in this direction.”
21. An article published in the Age Newspaper in November 2003 (Exhibit 1) under the heading “1100 killed as civil war flares” uses phrases such as “Maoist rebels”, “the surging violence, which has included several Maoist attacks”, “a seven-year civil war”, and makes mention of “assassinations of members of rival political parties”, “the destruction of village infrastructure”, “since the truce ended on August 27 [2003], the Maoists have killed more than 330 people including security personnel, political party workers, civil servants and suspected informants” and ”the Maoists…have stepped up bank robberies as well as extortion of government workers, foreign tourists, shopkeepers and even industrialists…”.
22. Under the heading “Asia and the Pacific Nepal” in the ICRC (Red Cross) Annual Report 2002 (Exhibit 1) mention is made of “the conflict between the government and the Communist Party of Nepal - Maoist…attacks continued on police stations, government buildings and communication and transportation facilities…”.
23. A record of questions put to and answers given by the Applicant during the course of an interview with the Respondent on 18 January 2000 shows (T2 pp12-16, 37):
“Case Officer: What are the policies of the party you were a member of?
Interpreter: The belief of the party is to have a government where there is no democracy.
…
Case Officer: Is there anything else you can tell me about their policies?
Interpreter: And redistribution of wealth between those that have and those that do not have, reduce the poverty. And to eradicate corruption and then to eliminate those that have. Eliminate the wealthy ones.
Case Officer: How would you eliminate them?
Interpreter: Kill them.
…
Case Officer: OK I’ll ask you the question in another way. What is the role of the CPN Maoist?
Interpreter: The role of CPN is to eliminate the wealthy ones, similar to what he was saying before.
Case Officer: Before you said “eradicate those that have”. What do you mean? Who are those that have?
Interpreter: He said that if they can’t be eliminated through the ballot, by the voting system, they’ll be eliminated through bullet.
…
Case Officer: Now for the 7 and 8 months that you had left university, what sort of activity did you do?
Interpreter: Go to the meetings, and then organise rallies and find the wealthy people then they warn them or capture them.
Case Officer: What did you do after you captured them?
Interpreter: They used to threaten them and try to get them to agree with their ideas, and if they didn’t then they would kill them.
Case Officer: Have you ever killed anyone?
Interpreter: He hasn’t killed anybody directly.
…
Interpreter: Business people who may have robbed poor people of their wealth, by drafting of false papers or whatever, they would go and get the business people to return the confiscated property back to the people.
…
Case Officer: And what would happen then?
Interpreter: If they didn’t return it they would do it forcefully.
Case Officer: How would you do it forcefully?
Interpreter: He said they would go and surround the house. First they went in and took the key from the businessman, and gain admission.
…
Interpreter: Remember that he said that they would confiscate the stolen property of the landlords? They would go to the landlords and they would try to come to some sort of agreement. If no agreement exist then they would have a clash with the landlord. They might beat the landlord break his property and so on.
And the politicians, in order to protect the landlord, would send the police. That’s how the clashes would start.
Case Officer: And what would happen at these clashes?
Interpreter: Sometimes (indistinct) clashes fighting with stones with the police, sometimes even firing guns (indistinct).
…
Interpreter: When they used to travel at night they used to carry weapons.
Case Officer: What sort of weapons were they?
Interpreter: Things like khukura knives.
Case Officer: Any other weapons?
Interpreter: And muskets.
…
Case Officer: Well people have been killed. I consider that violent.
Interpreter: He says no one who is innocent has been killed.
Case Officer: So what people have been killed?
Interpreter: People that have been killed are landlords, government, police and those in the government itself.
Case Officer: And what’s your view on that?
Interpreter: He said that for the landlord to die out is OK.
…
Case officer: Is there anything else you can tell me about their policies?
Interpreter: And redistribution of wealth between those that have and those that do not have, reduce the poverty. And to eradicate corruption and then to eliminate those that have. Eliminate the wealthy ones.
Case Officer: How would you eliminate them?
Interpreter: Kill them
…
Case Officer: I understand that, but what you said before, the interpretation was “eradicate those that have”. Who are the people that have? Can you describe those people?
Interpreter: He says his definition of “people who have” are first of all the politicians, secondly the business people and the king.
…
Case Officer: What did you do after you captured them?
Interpreter: They used to threaten them and try to get them to agree with their ideas, and if they didn’t then they would kill them.
…”
24. Jane’s Intelligence Review of February 2001 records (T2/64);
“This situation is confirmed by Professor Kapil Shresta, a member of the government-appointed National Human Rights Commission. “In the Maoist-affected areas, human rights abuses are committed on a horrendous scale.” The commission says that 10,000 families have been displaced by Maoist activities, with 1,011 people killed, of whom 487 were killed by Maoists. The state stands accused of the disappearance of around 100 persons; the Maoists of 70.”
25. In the October 2001 review it is stated (T12/207):
“The revolutionary international movement (RIM), an international communist umbrella organisation, has supported the Maoist cause and is thought to have provided training, weapons and money…
Aims and Strategy
The stated aim of the Maoists is to bring about an agricultural revolution, attain power and declare Nepal a communist state. To capture power, the primary aim of the Maoists is to widen class conflict. By launching guerilla activities in their strongholds in remote districts, the Maoists hope to create terror and insecurity and expand their power base. This will be accomplished through increasing the strength of its ‘Red Army Troops’.
To enhance its military power, Maoist plans call for the capture of weapons from police units and local people, and the collection of funds to equip armed units. This is combined with a political strategy that includes identifying and looting rich people and burning their legal documents, and building sympathy among the rural population by assisting them in their households.
…
Targets and tactics
Specific Maoist targets include ‘the rich’, which as a class is identified as the enemy and has been singled out for maiming or killing. They also seek to disrupt legitimate government administration by attacking public targets, such as police stations, local government offices and banks. The staff and property of non-governmental organisations (NGOs) and foreign-funded development projects have also been designated a legitimate targets, as have tourist facilities - all part of a plan to discredit and destabilise the present Nepalese state.
In spite of their stated aim of attacking the bourgeoisie and the aristocracy, the Maoists have also targeted the poor, including labourers, farmers and school teachers. Several school teachers have been murdered, probably for expressing opposition to the Maoist campaign.
Up until 2 March 1999, a total of 1,440 incidents have been reported to the police including 367 cases of looting, 184 physical assaults, 143 explosions, 80 arson attacks, 63 attacks on police units and 563 police encounters. In this period, Maoists killed 38 police personnel and 121 civilians (mostly members of other political parties), and maimed or seriously wounded 242 police personnel and 297 civilians. Of 63 government and NGO properties attacked, 14 were telecommunications repeater stations.
…
The campaign
The first stage of the Maoist campaign was directed at gaining political control of villages. Maoists targeted unarmed civilians, most members of other political parties, and looted their property, especially food (mostly grain) and hunting weapons. They also raided government stores and stole explosives intended for use in road construction and development projects.
During the phase, the Maoists gained notoriety for placing bombs in public places which killed a number of children. …
In the latest stage of the campaign, the Maoists have targeted foreign-funded project offices, international NGOs and tourist resorts as well as government officials and offices engaged in the developmental work, such as road construction, irrigation, drinking water, health and education projects. Up to 2 March 1999, Maoists have attacked and burnt 13 foreign-aided project offices.
…”
26. In September 1999 Maoist insurgents attacked Mahaghat village. A Nepal news correspondent reported (T2/72):
“Kathmandu, September 24: Seven policeman including a sub-inspector of police were killed in a pitched battle with Maoist guerillas in Mahatgaun of Rukum district and Jagadipur of Jajarlot district, about 450 kilometer west of Kathmandu, Thursday.
Police said one deputy superintendent of police Thule Rai has also been missing. However, he is also feared killed by communist guerillas.
…
Police said, a fierce battle between the police and guerillas took place when a group of about 300-armed insurgents surrounded the police post in Mahaghat and indiscriminately fired and hurled petrol bomb at the police post from all sides. The battle lasted for about three hours.
Seventeen other policemen were also injured in the battle. The injured have been taken to Nepalgunj Hospital for treatment. The guerillas totally destroyed the police post and took away some arms and ammunition, according to police.
…
Similarly, the communist guerillas also killed chairman of Mahatgaun VDC…”
27. It was the national police force that until recent times was responsible for maintaining internal security, assisted as necessary by the Royal Nepalese Army. As was stated in the United States State Department Country Reports on human rights practices in 1997 (T7, 147):
“The National Police Force maintains internal security, assisted as necessary by the Royal Nepalese Army (RNA). Police reaction to the “People’s War” insurgency led to incidents of unwarranted force against prisoners and noncombatants. The army is traditionally loyal to the King and has avoided involvement in domestic politics. However, with the continued threat from the Maoist insurgents, the RNA may take on a more active security role. The police are subject to civilian control, but local officials have wide discretion in maintaining law and order. The police committed human rights abuses. The Maoist insurgents continued to commit numerous abuses, including killings and bombings. They also forced the postponement of local elections in several mid-western districts.”
the nature of the Applicant’s involvement in the maoist activities
28. Consistent with my acceptance of the definitions of “war crime” and “crimes against humanity” as set forth in the Rome Statute as being those appropriate for consideration in the present application, so also is the test of criminal responsibility of a member of an organisation as set forth in article 25 of the Rome Statute. As was stated in SHCB v MIMIA [2003] FCA 229 at para 10 :
“Of course, mere membership of…is not sufficient to ascribe the applicant with these crimes. The Tribunal acknowledged this:
“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”.
Both parties before me accepted this as a correct statement of the test for the “complicity” of a member of an organisation involved in systematic crimes. It is consistent with the detailed reasoning and analysis of Matthews J in W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948 and W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618.”
29. In determining whether the Applicant was relevantly complicit in the acts of the Maoists it is necessary to look to the available evidence but not necessarily to identify a specific or particular war crime or crime against humanity in which the Applicant was complicit, although this may be so. The task is also to ascertain the extent to which the Applicant participated in the common purpose of the Maoists.
30. A general appreciation of the extent of the Applicant’s participation in the activities of the Maoists has been quoted from the decision of the delegate set forth above. More particularly it appears in the records of interviews had with the Applicant and an officer of the Respondent in January 2000, October and November 2002 and the Refugee Review Tribunal in May 2002.
31. In the January 2000 interview the following questions and answers were asked and given (T2 pp76-78):
“Case Officer: Now you said on 8 to 10 times you were involved with group fighting. What do you mean by that?
Interpreter: By fighting he meant…(indistinct)… small scale in the villages we may have to fight with a landlord and things like that...
Case Officer: How many times have you clashed with police?
Interpreter: For himself he was involved about 6 times.
…
Case Officer: Have you ever used a weapon in any of these fightings?
Interpreter: Yes he’s fired a rifle in the air and he ha[s] also used the khukura knives and things like that.
Case Officer: Have you ever struck anyone with a khukura knife?
Interpreter: Yes
Case Officer: How many times have you done that?
Interpreter: About once or twice.
…
Case Officer: What do you think of this sort of violence?
Interpreter: He says that (indistinct.) he does not condone violence.
Case Officer: Why did you get involved in these activities?
Interpreter: He said his main purpose in entering into these activities is to eradicate the gap in the distribution of wealth.
Case Officer: Yes but you told me you don’t condone violence but you’re gong [sic] around in groups where violence is occurring. Can you explain how that comes about?
Interpreter: He says it is depends on the places…some places are tolerant…depends on the place of the country…if the country is in a situation like that then what they are doing is right.
…
Case Officer: Now you said you don’t condone violence, but the group that you’re a member of, the UPF, is notoriously violent.
Interpreter: He doesn’t consider them to be extremely violent.”
32. In the record of questions asked by the Refugee Review Tribunal and answers given by the Applicant in May 2002 there appears the following (T2 pp79-82):
“Interpreter: In 1995 it divided…then it became hardliner and softliner. Because of all the corruption and things that were going on I supported the hardliners.
RRT member: What was the difference between the hardline and softline?
…
Interpreter: The softliner believed that they had to take power after the elections, through the elections. And the hardliners believed that it’s not by ballot, by voting, but by bullets, that was their belief. And I supported them underground, I gave them my underground support…
RRT member: What do you mean when you say you became very active. What did you do?
Interpreter: He said I left my family, my house, everything and went underground and got involved with all activities. Though I don’t think I can tell you all the details of what we did.
RRT member: Well I need to know what you did.
Interpreter: Like some things I can tell you but not all the things.
RRT member: Why not?
Interpreter: Like betraying the party, …(indistinct)…the party’s authority. I was an active member of the party (indistinct).
RRT member: Well were you a part of the armed insurgency?
Interpreter: Went to the villages and all later and we took active part but actually I wasn’t involved in any of the killings of the people.
RRT member: Were you armed at any point, sorry, were you armed at any point between May ’98 and September ’99?
Interpreter: Carried it but didn’t actually kill anybody.
RRT member: What kind of weapon did you carry?
Interpreter: For my own safety Khukuri, that is a Nepalese dagger. And to make a sort of handgun sort of thing with a cycle device.
RRT member: Sorry, a handgun with a what?
Interpreter: Made out of the pump, a rod of the cycle, pump of the cycle.
RRT member: Were you wearing a uniform?
Interpreter: That time no.
RRT member: When, were you uniformed at any time?
Interpreter: No just for fighting. I was never at the front…
RRT member: …can you just tell me, what were you doing in those districts? What were you doing? Your daily, your daily work, what were you doing? You’d get up in the morning and what would you do?
Interpreter: We’d sometimes go the jungle and spend the night there, sometimes in the villages and there was a big police station there, from government police. And until we had removed all the government officers from there, all the police force from there, it was useless to declare (indistinct) kingdom.
RRT time:So your intention was to remove the presence of the government and the authorities from these areas. Is that right? That’s what you were there for?
Applicant:Yes
RRT member: And how did you do that?
Interpreter: We had to remove all the force of the government.
RRT member: So you had to get rid of the police and the armed forces or whoever is there. How did you do that?
Interpreter: By capturing them.
RRT member: Were you involved in capturing these people?
Interpreter: Yes I have to say yes.
RRT member: Alright, and what did you do with them when you captured them?
Interpreter: I didn’t actually capture them but because I was there with them I suppose I have to say yes I captured them.
RRT member: And then what did you do with them once they were captured?
Interpreter: Well I didn’t capture them but after my colleagues captured them they put them in a safe place.
RRT member: What do you mean by that?
Interpreter: They put them in a place and then they put their demands forward to the government.
RRT member: You mean they kidnapped them and then held them ransom?
Interpreter: Yes sort of you can call that.
RRT member: And were any of these people killed by your colleagues, by yourself?
Interpreter: Not me but by some people in the front.
RRT member: Who were the people in the front? What’s the difference between you and the people in the front?
Interpreter: Front people were the fighters group.
…
RRT member: So you’re fighting?
Applicant:Yes
RRT member: But you’re the second line?
Applicant:Yes
RRT member: And in fighting you must have been engaged in killing people. Is that right or not? I mean isn’t that the intention of fighting?
Applicant:Yes that’s the intention of fighting.
RRT member: Do you know whether anyone was killed through your fighting?
Interpreter: No I never know.”
33. In the October 2002 interview with an officer of the Respondent the following appears (T2/82):
“Case officer: So how, what was proposed when you said “eliminate the wealthy people. How did you propose to eliminate the wealthy people?
Interpreter: As much as possible by talking, negotiating talk and then - not to charge to much excessive interest and to give the money back to them and when they wouldn’t listen at all then we threaten them.
Case officer: And if they resisted handing over the papers what would happen?
Interpreter: Forcefully we would take it off them.
Case officer: What sort of force would you use?
Interpreter: Like going in the houses, raiding and getting those papers.
Case officer: Had you gone on any raids at all before you left Nepal?
Interpreter: Yes in one or two small incidents I was involved.
…
Interpreter: We asked them and when we asked them for the papers they gave us the papers. When they gave it we called all the people, called the villagers, gave it the villagers and so in front of them we just burned down all those papers.
Case officer: OK so they willingly gave you the papers?
Interpreter: Can’t say willingly or happily but I suppose they must have got scared and they gave us.
Case officer: Why would they have been scared?
Interpreter: Because other serious incidents were taking place too, like some places when people wouldn’t give people would go and forcibly take it off them. Maybe some lives were lost too.
…
Applicant:Lots of people support the hardliner. It is not possible to change the Constitution, change the system by ballot. So lots of people believe in the bullet - so I believe on them too.
…
Case officer: So what methods were they proposing using?
Interpreter: Topple down the kingdom, the king and the powers, the rights that were just held by the people in high positions. Should be everybody. Everybody should have those rights. And the big companies and foreign should be given to Nepalese. And the natural resources should not be sold to the foreigners and they should be used and utilised within the country like (indistinct). And the education system should be directed from there within the country - not imported education system.
Case officer: And what methods were they going to use to achieve that if they weren’t going to use the ballot and the parliamentary system?
Interpreter: Change the whole Constitution to make a new Constitution - make a new system level Communist ideology. And wealth should be distributed to all people equally. Things like that. Not haves and have nots. Class system shouldn’t be there.
Case officer: That’s their goal - where they want to get to. How were they going to achieve that if they didn’t want to participate in the parliamentary system?
Interpreter: Through bullet.
Applicant:Through the bullet.”
34. In the November 2002 interview with an officer of the Respondent the following appears (T2, pp84-93):
“Case officer: Can you tell me the type of activities you were involved in[?]
Interpreter: Once we had to go underground, that time was underground speeches and all, to get the instructions from the leaders and pass that instruction to the workers. And go to the areas where they were influenced by us…
Case officer: What sort of instructions from leaders would you pass to the workers?
Interpreter: About the weakness of the government, about the corruption of the government.
…
Case officer: And so who would decide which landowners or wealthy people had to be asked to cooperate?
Interpreter: When the party workers actually estimate, they are the ones who go and first estimate who has been suppressing people and how much land has been taken forcibly by some of the poor people they estimated… After this estimation and calculations then from the district and central levels we receive to the district level and then we get the instructions.
Case officer: How detailed are the instructions?
Interpreter: I think on the main from the central level…They said, from the reports are made sometimes from the lower levels also but people they sent the workers, officers from the central level and the higher levels to estimate do the calculations who has got how much land and what they are doing, how they have obtained that land things like that then see how many poor people have been suffering how many of their lands have been taken and debt to them because they count it off and all them they seize their land from those landowners that they think they should be seizing from, and that will after the seizing of the land then it will be proportionately divided into those poor people who think their land has been taken…
…
Interpreter: …some people have no land…so at least of the poor people get that land they will make do produce and cultivate that land and have enough to eat at least…
Interpreter: The main force there was the police station, that was the government’s main force in Rukum. Plus we get the instructions, give them instructions…if the police leave from there then our commandos will take their place. And then we can run our administration totally in that area… and in present…
…
Case officer: OK so you were working in Mahaghat village when you were staying there?
Interpreter: Yes party work.
Case officer: What sort of party work was it then?
Interpreter: To observe how strong are the forces there. Keep something if need be from which are the places from where you could attack or from the places you can run out of lets for escaping. And how much people that you feel are independent thinking people, how much of that can you obtain the support from, things like that to study, observe and get information.
Case officer: OK so you were discovering information. Did you do a lot of gathering of sort of strategic information like that?
Interpreter: I was there in that village I was openly moving around because I could mix around with the general public easily with them. Because people there will help you and support you for that…because later on they might face problems from the authorities from the police so how the process goes on is the people from that area who are helping us will send information to the high command and from assessing all that and observing and studying all that information sent by those levels, we are given instructions to do things accordingly and how many of us are needed and then we are sent there and to assess other people who have different opinions sort of things and to see how much support we can gain from them.
…
Case officer: And so, for how long were you observing the Mahaghat village?
Interpreter: I have reached there maybe four or five days I think about five days before that incident…
The day that we had to attack that place, many of the supporters from the houses, from the houses in the village evacuated the place and went to the bushes and jungles and then these people went to attack.
Of course there were warnings and all the biggest force comes later there are warnings, we gave them warnings.
…
Case officer: Was this to everyone who lived there?
Interpreter: People belonging to the government…bureaucrats of that place. Some of them the bureaucrats they don’t live there in the village, they live in Nepalgange, another place. The police force which is the main force of the government for protection and that force is always in the village and most necessary was to topple that force.
…
Case Officer: So when you were assessing the situation you were mostly assessing…
Interpreter: Mainly the main force there, the government force.
Case officer: Which is the police. So what sort of observation did you make of the police?
Interpreter: Like inside the police camp, about the weapons and all. We just have approximation, an estimate that they are this strong, they are this much strength, and this is how the attack should be done then. Just to see the circumstances there, and see how much possibility we have then that’s all nothing much.
…
Case officer: So what was your assessment of Mahaghat to the people who were surrounding the village?
Interpreter: It’s like we can’t actually say it’s this much because we don’t have the modern arms and ammunitions like the police force has with them. We don’t have all that. Our weapons are most of the time like stones, bricks, sticks and things like that, like domestic weapons knives and things, sugar cane knives, things like that we have, so we have to fight with that and estimate like that, and estimate the soldiers…
…so we have to say five policemen have five rifles and each one will have five bullets so that means 25 bullets, and for that 25 bullets we will have to fight those 25 bullets we will estimate that we will need at least 40 of our people because they don’t have those types of guns and bullets and all. So at least 25 die and 15 will survive.
…
Case officer: And so can you tell me what happened then after you gave your warning?
Interpreter: That time we had the instructions that on the 22nd, not just in Rukum that the instructions from the high command, but also in Saliayand district, because those are the areas influenced by us mostly, that is why big incidents took place in those. But in the other places in Nepal also, small minor incidences did take place but mainly in those two places because they were influenced mostly by us.
Like when the attack was to be on the 20th the operation was to take place on the 22nd so 21st we all (indistinct) we went to those other people in the jungle. We left the village and the commandos were already there, and we go behind the commandos as defence force. It was about 9 o’clock at night we started the attack. Police fired and all and there were friends also threw stones and other things their own domestic weapons. And that’s the main force of the police there, of the government, the main force is only that particular one because to get other forces it takes time it’s a very remote area. The war lasted about 3 hours between the police and my people, it was about 12 o’clock then.
And then we got information that there was a possibility for the government sending a really big force there. And it was already 3 hours and in that 3 hours time was enough for them to send a new force through helicopters. And many friends were injured, some died. So we estimated the time that maybe the force would arrive, we just escaped from there ran away from there…
Case officer: You’ve been involved in other operations haven’t you, in Nepal?
Interpreter: Not like this, only to convince people, make speeches and all. Just estimate the forces and inspire the people, just make them conscious of their rights…
Case officer: When you were gathering information within Mahaghat, what did you think the commandos were going to do with that information?
Interpreter: We thought that if we, I thought that if we capture that if we get there that the police will run away from there and we will capture that place and that means that we are taking all the bureaucrats there if we take over that particular police post there…
Case officer: When you approached with your microphones, what would have happened if the police had just come out of the police station?
Interpreter: We would capture them and put forward our demands.
Case officer: And what would those demands have been?
Interpreter: Like many of our workers are in the police stations to release them. Do such things to force the government, to force the government just to make the government feel weak.
…
Case officer: What weapons did you have with you?
Interpreter: Like musket, sort of home made gun then the Nepalese cookery dagger that in any case culturally men put for our protection and we usually carry that with us as we go.
Case officer: And did you use those?
Interpreter: No in Mahaghat I didn’t get the opportunity to use them.
Case officer: Why not?
Interpreter: I wasn’t in the fighting, I was in the back force.
Case officer: Where were you?
Interpreter: In the second force, that is the defence force.
Case officer: So where was the second force located?
Interpreter: The second force went through the jungle to the village. Behind the fighter force the defence force remains in the jungle. When the fighter force is sent as I said it was estimated we estimated then sent them like so many of them will attack, so many will be needed so many, so many of them. After those estimations they go so they attack accordingly, and in case they the need help and they need support then we go and attack.
…
Case officer: Were any civilians killed during the attack on Mahaghat?
Interpreter: Well, if you say that all our friends were civilians. The revolution has to be brought forward by bloodshed.”
“serious reasons for considering”
35. The degree of persuasion needed to satisfy this prerequisite has been considered by the Federal Court and the Administrative Appeals Tribunal in a number of decisions. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 it was said:
“The use of the words “serious reasons for considering that” suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts.”
As noted in Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476, the above mentioned dictum was accepted as correctly stating the relevant legal principles in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385, where at 388 it was said:
“Notwithstanding that French J’s views about the words “serious reasons for considering” were not central to his reasons for judgment and not withstanding that Mr Dhayakpa had been found guilty of conspiracy, whereas Mr Ovcharuk has not, I consider his honours approach to the meaning of those words to be highly persuasive.”
36. On appeal from the first instance judge in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 it was said at 179:
“What is most striking to me about Article 1F is the plain, matter-of-fact requirement that there should be “serious reasons for considering that” a person “has committed” a specified type of crime (paras (a) and (b)), or “has been guilty” of the proscribed acts (para (c)). Charges or convictions are not required. Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case.”
37. In the Administrative Appeals Tribunal decision in Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 the then President of the Tribunal said:
“…I do not agree with the standard which was set in Ramirez [Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173]. I find it difficult to accept that the requirement that there be “serious reasons for considering” that a crime against humanity has been committed 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.”
38. However, in Arquita [supra] at page 478 Weinberg J in the Federal Court decision said:
“I regard the observations of French J in Dhayakpa as being particularly helpful in elucidating the meaning of the expression “serious reasons for considering”. It was unnecessary, in accordance with those observations, for the AAT to “make a positive or concluded finding about the commission of a crime”. It was sufficient that there was “strong evidence of the commission of” the crime specified.
…
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.
…
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”.”
39. I am with respect of like mind to French J. The words are to be given their natural meaning. “Serious” means serious. “The Article provides a direction to decision-makers in words that are clear of meaning and relatively easy of application“ (W98/45 v MIMIA [supra] at para 33). But as French J put it there must be “strong evidence” of the commission of the relevant crime. In my opinion this is a threshold test not an onus of proof test.
“crime against humanity”
40. The meaning to be ascribed to the event a “crime against humanity” is given in the Rome Statute. Such meaning will be applied to the circumstances as they exist in this application. It is necessary to consider whether there is evidence of a “widespread and systematic attack directed against any civilian population” and the Applicant bearing “individual criminal responsibility” within the meaning of the Rome Statute for the commission of the crime or crimes.
41. It was submitted on behalf of the Applicant that the police in Nepal cannot be considered as part of the civilian population by reason of the role the force was playing in maintaining order in face of the Maoist disturbance. I do not agree with this submission when consideration is given to the context in which the words “civilian population” appear in the Rome Statute. The evidence tendered in this application clearly indicates that the role of the police was to maintain civil order and not engage in counter attacks upon the Maoist forces. This is borne out in that following the attack on the Mahaghat village it was the impending presence of the army, not the police, that caused the Maoists to withdraw. Their attack had been on the civilian police station. I agree with the observations made by the Tribunal in W98/45 v Minister for Immigration and Multicultural Affairs [supra] where at paragraph 48 it was said:
“As to the requirement that a crime against humanity be perpetrated against a civilian population, it might perhaps be argued that police officers or government figures are not members of a “civilian” population. However the preferred view is that “civilian” means non-military, and thus includes police officers. In any event, this requirement is more designed to exclude isolated or random acts against individuals, than it is to limit the class of people who are subjected to persecution. It means that there must be a systematic pattern of persecution aimed at members of an identifiable race or group (Polyukhuvich v Commonwealth (1991) 172 CLR 501 at 669)...
49. Accordingly the systematic killing of police officers …constituted, in my view, crimes against humanity under Article 1F (a).
…”
42. The Applicant was involved in a series of acts designed to undermine the Nepalese government by the use of force and intimidation involving widespread and systematic violence and attacks against landowners, bureaucrats and police. There was murder and severe deprivation of liberty and there was conduct involving the multiple commission of these acts against the civilian population in furtherance of the Maoist policy to commit such attacks.
43. Apart from the Applicant’s knowledge, awareness and preparedness to participate in the overall conduct of the Maoists, this by reason of his membership and devotion to its objectives, the Applicant engaged in the specific acts earlier detailed with reference to his involvement. As was submitted on behalf of the Respondent they included:
· fighting against police during the course of which police were killed and capturing police and holding them to negotiate satisfaction of the Maoist demands of the government;
· fighting against landlords and other civilian non-combatants during which the Applicant used his khukura knife and guns and during which civil non-combatants were killed;
· capturing wealthy people and landowners who were civilian non-combatants and holding them for ransom as a consequence of which some of these people were killed, but not directly by the Applicant; and
· gathering information to facilitate the attack on Mahaghat village, an attack on civilians.
“war crimes”
44. The meaning to be ascribed to “war crimes” is also given in the Rome Statute, the most recent international instrument defining this phrase. In my view, consistent with the approach adopted by the Tribunal in SRYYY v MIMIA (2003) AATA 927 at para 50 and SRNN v DIMA (2000) AATA 983 at paras 60 and 61, the appropriate course for the Tribunal is to apply the definition in the Rome Statute to the circumstances of the present application.
45. There was and is clearly a protracted armed conflict in Nepal between the Maoists, the King and his government authorities during which relevant acts were and are committed against persons taking no active part in the hostilities, viz landowners, bureaucrats and civilian police. The acts so committed included violence to life and person, murder, cruel treatment and the taking of hostages. There were intentional attacks against the civilian population and against individual citizens not participating in the hostilities. Detainees were held consequent upon the insurgency and civilians were affected by the fighting.
46. As with the “crimes against humanity” so with the “war crimes”, the Applicant engaged in the acts earlier detailed with reference to his involvement. These included conduct the like of that referred to under the above heading “crimes against humanity” but falling within the definition contained in the Rome Statute.
“serious non political crime”
47. The revised explanatory memorandum referable to the Migration Legislation Amendment Bill (No 6) 2001, by which section 91T is referable to non-political crimes, became a part of the Migration Act 1958. It states as here relevant:
“Section 91T Non-political crime
32. This item inserts new section 91T into the Act which clarifies what constitutes a “non-political crime” under Article 1F of the Refugees Convention.
33. Article 1F of the Refugees Convention, among other things, excludes from being a refugee a person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee. Court judgements [Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533] had set too low a threshold when determining the degree of political motivation needed in order for a criminal act to fall outside the Article 1F exclusion clause.
34. New subsection 91T (1) provides that a reference to a “non-political crime” in that Article has effect as if it were a reference to a crime where the persons motives for committing the crime were wholly or mainly non-political in nature. It is insufficient to avoid exclusion from protection under Article 1F, to establish that there is some minority motivation, which is political.
…”
48. The Applicant contends that the evidence supports the following findings:
“(a) the conflict in Nepal at the time of the applicant’s involvement was a politically motivated war with the purpose of changing the government of Nepal in favour of a Maoist style government;
(b) the Maoists were an organised political movement which had as one of its objectives the redistribution of wealth and assistance to the rural poor;
(c) any offences found to be committed by the applicant towards the civilian population were offences motivated by the political objectives of the Maoist party including the Maoist policy of redistribution of wealth and land;
(d) those offences found to be committed against non civilians were political offences in pursuit of the political objectives of the Nepalese Maoist party;
(e) there is a direct causal link between those offences committed by the applicant and the political purpose and objects of the Nepalese Maoist party;
(f) the political nature of the applicant’s offences outweighs their common law character;
(g) there is no evidence that the applicant has himself engaged in crime grossly out of proportion to the political objective behind the offences nor that he has engaged in offences that can be described as having an atrocious nature…
(h) there is no evidence that the applicant has been involved in indiscriminate killing or that he has been directly been involved in injuring members of the civilian population.”
49. The evidence does not support a number of these propositions. It is true that the conflict in Nepal was politically motivated in that the Maoists had as a prime object of their movement a change of government. It is also true that the Maoists were an organised political movement having as one of its objectives the redistribution of wealth and assistance to the poor. However, the acts committed by the Applicant and the acts that he aided and abetted were not directed against the King or the Government but against the landowners, bureaucrats and the police. It may have been thought that by attacking these segments of the civilian population support for the Government would be lessened but as I see it this is to no avail in the context of the matters warranting consideration under the Rome Statute. The fact is that the offences were committed against the individuals earlier identified. In the context of the decisions earlier discussed and more particularly Minister for Immigration and Multicultural Affairs v Singh [supra], as Kirby J propounded at para 141 (4) (d):
“To be “political” it must in some appropriately close way, be linked with the purpose of changing the political environment, commonly the government, via the commission of the crime.”
Can it be said in the present instance that the crimes were committed “in some appropriately close way” so as to be linked with the purpose of the Maoists? Again, the link between the offences and the political purpose and objects of the Maoist Party were not always direct, but on the other hand as was said in Singh [supra] at para 47:
“The issue is whether the actions in question were undertaken for a political purpose, in that that purpose was a significant purpose.”
More particularly, and consistent with the Explanatory Memorandum, was it only a “minority motivation which is political” or “were the person’s [the Applicant’s] motives for committing the crime …wholly or mainly non-political in nature”? The submission made on behalf of the Applicant that the “political nature of the Applicant’s offences outweighs their common law character” is sought to attract this reference. Again the contention that there is no evidence as to the Applicant engaging in crime “grossly out of proportion to the political objective behind the offences” will depend upon the relevant nexus.
50. It is necessary then to consider whether the Applicant’s motives in committing the crimes in which he was involved were wholly or mainly non-political. Or the reverse. But initially it is necessary to identify the elements required to constitute a crime that is political or non-political. That is, what is a political crime? In MIMA v Singh [supra] at para 106 Kirby J says:
“106. The proper approach: The Convention, including Art 1F (b), should not be read with an eye focused solely on the experience of the political processes of Australia or like countries. The Convention was intended to operate in a wider world. It was adopted to address the realities of "political crimes" in societies quite different from our own. What is a "political crime" must be judged, not in the context of the institutions of the typical "country of refuge" but, on the contrary, in the circumstances of the typical country from which applicants for refugee status derive.
107. This reminder also emphasises the care that must be applied by municipal judges in construing the phrase "serious non-political crime" solely by reference to their own experience. As Lord Mustill pointed out, in most developed countries (including, one might say, Australia), the assassination of political leaders, police officers and other public officials is regarded as an anathema. However … it is too late, and would be mistaken, to place outside the definition of "political crimes", the murder of such personnel in societies having a different history, constitutional organisation, political arrangements and internal tensions.
108. That such conduct may fall within the description of an "offence of a political character" for extradition purposes was made plain long ago … It would reverse more than a century of law to say that a person in respect of whom there are serious reasons for considering that he or she has committed murder is always, or almost always, shown to have committed a "serious non-political crime".
…
121. ... A person who is otherwise entitled to protection as a "refugee" has, on the face of things, a high claim to that status. It is one written in Australia's own law. It also reflects obligations of international law, which Australia has accepted and by which it is bound. Even the existence of serious grounds for believing that he or she has committed a "serious" crime will not disqualify a person from protection, if a proper view of the crime in question, looked at as a whole, is that it is "political" rather than "non-political" in character.”
51. In his reasons for judgement in Singh Gleeson C J said at para 21:
“…There is no bright line between crimes that are political and those that are non-political. But…there must a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act. And the achievement of that objective must be the substantial purpose of the act. The UNHCR Handbook states:
“There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.”
52. Gaudron J in her reasons for judgement said:
“43. In R v Governor of Pentonville Prison; Ex parte Cheng, an extradition case, Lord Diplock said that an offence was not political:
... unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there.”
44. This statement correctly identifies, in my view, political purpose as the defining feature of a political crime. However, there are two aspects of that statement that require consideration. The first is the requirement that political purpose be the only purpose of the crime in question. In the absence of anything in the text of the Convention to suggest otherwise, there is no reason why the political purpose should be the sole or, even, the dominant purpose of the crime, so long as it is a significant purpose…
46. Once it is accepted, as in my view it must be, that political purpose is the defining feature of a political crime, references to "proportionality", "nexus" or "causal link", as made by the tribunal, assume legal significance. A crime is unlikely to have a political purpose if it has no relevant connection with the political aims of those involved in its commission. So, too, as has been explained in other legal contexts, "proportionality" is a useful indicator of purpose. The true purpose of actions which are unnecessary or disproportionate to the end which is said to justify those actions is unlikely to be the achieving of that end but is likely to be the satisfaction of some other and different purpose.
47. Actions which are either unnecessary or disproportionate to the political objectives which are said to justify them are, perhaps, usefully described as "terrorist" activities. But for the purposes of Art 1F (b), that description is not, of itself, determinative. The issue is whether the actions in question were undertaken for a political purpose, in the sense that that purpose was a significant purpose.”
53. Of assistance to the Tribunal in reaching a determination in the present application is the guidance given by Kirby J in his reasons for judgement at para 141, where he says:
“…
(4) The precise meaning of serious “non-political” crimes in Art 1F (b) of the Convention is not conclusively elaborated, for all possible cases, by the Convention itself, municipal law or judicial authority. However, some guidance can be offered:
(a) to characterise the crime as "political" or "non-political", it is necessary to consider all of the facts of the case in the context, and for the purposes, of the Convention. There is no bright line for distinguishing "non-political" from "political" crimes;
(b) "political" crimes are not confined to crimes that fall within the purely political offences such as treason, sedition and the like. "Non-political crimes" take their meaning accordingly;
(c) depending on the circumstances, murder may be a "political crime" if it is otherwise so characterised;
(d) the ascertainment of the object or purpose of the crime is relevant to deciding whether it is "political" or "non-political" in character. To be "political" it must, in some appropriately close way, be linked with the purpose of changing the political environment, commonly the government, by the commission of the crime;
…
(f) in deciding whether a crime is "political" or "non-political" it will sometimes be relevant to consider the weapons and means used; whether the "target" of the crime is a public official or a government agent as distinct from unarmed civilians chosen indiscriminately; and whether the crime is proportionate to the political end propounded. If it is excessive and disproportionate, it will be easier to infer that its true character is "non-political", that is, done for the satisfaction of some other and different, possibly entirely personal ("non-political") purpose. It will usually be necessary to examine the alleged objectives of any organisation involved and the applicant's connection, if any, with that organisation; and
(g) it will also be appropriate to read the exception for "serious non-political crimes" in the context of the burden that is placed by the Convention upon countries of refuge and the exceptions that are provided in the specified cases, including by Art 1F, where, in the particular case, that burden would be intolerable. The serious crimes mentioned in the exclusions in Art 1F are such that their extreme character is accepted as exempting the country of refuge from the protection obligations stated in the Convention, however much otherwise the applicant qualifies for recognition as a "refugee".”
54. On behalf of the Respondent it is submitted that in committing the crimes the conduct of the Applicant was sufficiently disproportionate to any political aim that those crimes are to be properly viewed as serious non-political crimes. The offences identified are “capturing wealthy people and landowners that were civilian non-combatants and holding them for ransom”. Some of those people were killed although not directly by the Applicant; and “fighting against landlords and other civilian non-combatants during which he used his khukura knife and guns and during which civil non-combatants were killed”.
55. I am satisfied that within the meaning of the Statements of Principle enunciated in Singh [supra] there has been demonstrated a close connection between the criminal acts committed by the Applicant and/or criminal acts aided and abetted by him and the political objectives of the Maoists as to warrant characterisation of such acts as political acts. It is, as was emphasised in Singh [supra] sometimes difficult for a domestic decision-maker to ascribe to activities of an Applicant a political nature when the same may not be so regarded in the receiving country. What actions are necessary or proportionate to political objectives is not always easy to ascertain. However in the present instance the acts of the Applicant were committed by him in aid of what he considered to be, that is they were motivated by, political objectives. That is, as Gaudron J in Singh [supra] put it at para 47, “the actions in question were undertaken for a political purpose in a sense that that purpose was a significant purpose”. And as Kirby J put it at para 141 that political purpose in the present application was “in some appropriately close way be linked with the purpose of changing the political environment, commonly the government by the commission of the crime”.
56. Thus it is open to the Tribunal to conclude that the Applicant’s criminal conduct was wholly or mainly political in nature.
Conclusion and decision
57. The criminal conduct in which the Applicant was engaged, whether perpetrated directly by himself or in connection with which he was aider and/or abettor, entailed the murder of members of the police and other members of the civilian population and the multiple commission of acts against a civilian population pursuant to an organisational policy to commit such attacks. The attack at Mahaghat was systematic. The treatment afforded to landlords, when they did not comply with Maoist demands, constitutes a crime against humanity. It was organised and it was systematic. The role of the police was to maintain civil order and ensure the compliance of citizens of Nepal with the law as it then was. It was not the police who could change the law. That was the task of government. It was with the government with whom the Maoists were engaged in hostilities, not the civilian population. The Maoists were seeking to take the law into their own hands and inflict violence to life and person. They were intentionally directing attacks against the civilian population as such and against individual citizens who were not taking a direct part in the hostilities between the Maoists and the government of Nepal.
58. The Tribunal is satisfied that there are serious reasons for considering that the Applicant did commit, and was within the meaning of the Rome Statute criminally responsible for, committing crimes against humanity and war crimes. The evidence against the Applicant in this regard is strong. However, the Tribunal is also satisfied that there are serious reasons for considering that the Applicant committed the relevant crimes as a consequence of his political motivation. That is, the Applicant's motives for committing the crimes were significantly political in nature. It is not a minority motivation that was political. The conduct engaged in by the Applicant would not have been committed in the absence of political motivation.
59. However, as earlier indicated in these reasons, Article 1F requires only one of the enumerated subparagraphs to be considered. The paragraphs are to be taken as independent the one from the other, the political flavour of Article 1F(b) not being relevant to a construction of Article 1F (a) or 1F (c). As earlier found in these reasons, each sub-article is intended to embrace a distinct factual situation; the “serious non-political crime” in (b) being a different offence comprised of a different factual situation to the crime against peace, “the war crime” or “crime against humanity” in (a). Thus consistent with this construction of the Article, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a war crime or a crime against humanity has been committed by an Applicant, it is of no defence to that Applicant for the Tribunal of fact to also be satisfied that there are serious reasons for considering that he has committed a serious non-political crime, and thereby that the crimes committed by him were politically motivated.
60. The Tribunal being satisfied that there are serious reasons for considering that the Applicant has committed war crimes and crimes against humanity Article 1F applies so as to preclude the Applicant from protection under the Refugees Convention.
61. For the reasons herein before set forth the decision under review is affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: Guy Moloney
AssociateDate/s of Hearing 9 December 2003
Date of Decision 13 February 2004
Counsel for the Applicant Mr D Burwood
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Ms S Hanstein
0
8
0