Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1020
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/386
GENERAL ADMINISTRATIVE DIVISION ) Re "SRHHH" Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date14 October 2005
PlaceSydney
Decision The tribunal finds that there are not serious reasons for considering that the applicant has engaged in disentitling conduct within Article 1F and remits the matter to the respondent for reconsideration on that basis.
..............................................
Professor GD Walker
Deputy President
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/386GENERAL ADMINISTRATIVE DIVISION )
Re“SRHHH”
Applicant
AndMinister for Immigration and Multicultural and Indigenous Affairs
Respondent
DIRECTION TO AMEND WRITTEN DECISION [2005] AATA 1020
TribunalProfessor GD Walker, Deputy President
Date20 March 2006
PlaceSydney
WHEREAS:
1.Professor GD Walker released a written decision in this matter, which was dated 14 October 2005;
2.It has come to the Tribunal’s attention that there is an error in the decision in so far as it incorrectly stated the Christian name (Pierre) and occupation (journalist) of a person referred to in paragraph 180 of the decision;
3.The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies section 43AA of the Administrative Appeals Tribunal Act 1975;
NOW THE TRIBUNAL THEREFORE DIRECTS:
That the decision of the Tribunal as recorded at paragraph 180 should read as follows:
180. Nor is it disputed that the applicant was a member of KhAD from 1987 (not 1986 as alleged) and 1989. The evidence does not, however, establish that he was anything other than a conscripted soldier in a security battalion. Because of his educational and party background he was appointed to a propagandist role at battalion headquarters and remained in that position for the whole of his military service. That does not constitute disentitling conduct within Article 1F. Serving an occupying power in a propaganda role has I think on occasion been treated as a war crime, as in the case of Robert Brasillach, who worked as a newspaper editor in German-occupied France, but no such allegation was made against this applicant and in any case his role was much less prominent than Brasillach’s.
…………..………[sgd] GD Walker………………..
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – remittal from the Federal Court of Australia Full Court – refusal of protection visa application on the grounds that the Convention Relating to the Status of Refugees does not apply to the applicant because of war crimes and crimes against humanity alleged against the applicant (Article 1F of the Convention) – character test – whether the applicant is a person to whom Australia owes protection obligations – standard of proof – background to the Soviet invasion and occupation of Afghanistan – activities of the secret police, KhAD – whether the applicant was a member of KhAD and involved in the torture of Afghan citizens during and after the Soviet occupation of Afghanistan – examination of the allegations made against the applicant – examination of the applicant’s military service – examination of the evidence as to identity of the applicant – whether there are “serious reasons for considering” that the applicant may have committed such crimes – detention of applicant – held there are not serious reasons for considering that the applicant has engaged in the conduct as alleged – matter is remitted to the respondent for reconsideration.
Administrative Appeals Tribunal Act 1975 ss 35, 39(1)
Migration Act 1958 ss 29, 36(1)(2), 65
Office of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, re-edited, Geneva, January 1992, UNHCR 1979
1951 Convention relating to the Status of Refugees
1967 Protocol relating to the Status of Refugees
Applicant S214 of 2002 v Minister for Immigration & Multicultural & IndigenousAffairs [2003] FCA 1039
Applicant S214 of 2002 v Minister for Immigration & Multicultural & IndigenousAffairs [2003] FCAFC 66
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 609
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
ReMinister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Teoh v Minister for State for Immigration and Ethnic Affairs (1995) 183 CLR 273
REASONS FOR DECISION
14 October 2005 Professor GD Walker, Deputy President Summary
1. This matter was remitted to the tribunal by the Federal Court of Australia Full Court to be dealt with in accordance with law. The tribunal as reconstituted was also to determine whether any orders under s 35 of the Administrative Appeals Tribunal Act 1975 should be made in relation to the hearing and, if so, their form and content.
2. The applicant, SRHHH, who is aged 46, is a citizen of Afghanistan of Tajik ethnicity and is a Sunni Moslem. He arrived in Australia on 30 September 1999 and on 6 October 1999, lodged an application for a protection visa.
3. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that the applicant was a member of the KhAD, an organisation involved in the torture, murder and imprisonment of Afghan citizens suspected of being in opposition to the Karmal-Najibullah regime. The respondent therefore refused SRHHH’s protection visa on the basis that as he had committed war crimes and crimes against humanity, he was not a person to whom Australia owed protection obligations under Article 1F of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
The applicant and the original review
4. The applicant was born in Kunduz, Afghanistan, in 1958 and is aged 46. He is married and has three children.
5. Between 1965 and 1977, the applicant attended high school in Kunduz. In 1979, he studied philosophy and social science at the University of Kabul, and then between 1980 and 1986, continued his studies at Patrice Lumumba University in Moscow, where he was awarded the degree of Master of International Law (T p107). While a student at the University of Kabul, he became the secretary of the Philosophy Faculty Branch of the communist Peoples’ Democratic Party of Afghanistan (“the PDPA”).
6. The applicant continued to be an active member of the PDPA when he moved to Moscow to study, first as the secretary of the Afghan Students’ Branch of the PDPA and then as president of the Federation of Afghan Students in Moscow (T p140). His main activity, in the role of president, was to monitor all Afghan students and their behaviour while in Moscow and to ensure that they kept to the conditions of their scholarship.
7. In 1986, the applicant returned to Afghanistan. He states that upon his return he commenced working for the PDPA, first for four or five months as an educator with the central committee of the PDPA in Kabul (T p107) and then for the local provincial party committee in Kunduz where he was in charge of propaganda and circulation (T p107). In 1987, the applicant commenced his military service, completing it in early to mid-1989, when he returned to Kabul. In 1989, he was appointed to the Ministry of Foreign Affairs, “in charge [of the] political desk 3rd political department” (T p107).
8. In 1996, shortly after the Taliban took over Kabul, the applicant’s home was partly destroyed by shellfire and his wife was beaten by members of the Taliban who had gone to her place of employment looking for the applicant (T p143). The applicant and his family fled the next day to Pakistan and then to Tehran. Upon speaking with President Rabbani on his arrival in Tehran, the applicant was given a post in the Afghanistan Embassy in Iran. In 1997, the applicant was appointed second secretary at the Afghanistan embassy in Syria (T p145). In September 1999, the applicant’s appointment at the embassy was terminated.
9. On 28 September 1999, the applicant and his family left Damascus, arriving in Australia on 30 September 1999 on visitor visas. Upon arriving at Sydney International Airport, the applicant told immigration officials that he wished to seek political asylum (T pp64-67). The applicant and his family were subsequently detained in the Villawood Detention Centre, New South Wales.
10. On 15 October 1999, the applicant lodged an application for a protection visa, including his wife, son and two daughters in the application (T p92). In a letter from his then solicitor, Pip Martin of the Legal Aid Commission of New South Wales, which accompanied the applications, Ms Martin said the applicant “fears he will be killed if he returns to Afghanistan. He will be killed as he was a former senior official of the previous government and has actively opposed the Taleban [sic]. He will be killed for his political opinion” (T p91). On 21 October 1999, the applicant’s then solicitor Ms Martin lodged a statutory declaration by the applicant which stated inter alia “I fear returning to Afghanistan as I fear that I will be killed or otherwise mistreated by the Taliban. I have political, ideological and ethnic differences with the Taliban. … As well as my political background the fact that I am Tajik is something which puts me in danger. … Under the Taliban the Tajik and other minority ethnic groups are mistreated and killed” (T p146).
11. On 19 October 1999, a representation was made to the then Minister for Immigration and Multicultural Affairs (“DIMA”) concerning the activities of the applicant while he was a member of the Afghan communist secret police, known as KhAD (T pp135-137). On 28 October 1999, the applicant was interviewed by officials of DIMA at the Villawood Detention Centre (T16). Between October 1999 and February 2000, further allegations were made to DIMA that the applicant had been involved in crimes against humanity and war crimes in Afghanistan (T pp207-220). On 25 February 2000, the applicant was interviewed for a second time by officials from DIMA (T27). At that interview, the applicant said that he was “just an ordinary soldier” and “just an ordinary employee” of the ministry of foreign affairs (T p232) and that he had never done anything wrong to the people of Afghanistan and was very upset by the allegations made against him (T pp222-237). On 31 March 2000, the applicant’s then solicitor lodged a statutory declaration made by the applicant on 30 March 2000 in response to questions put to him by DIMA (T29).
12. On 10 August 2000, protection visas were granted to the applicant’s wife and children (T38 p274) and they were subsequently released from detention (T p268).
13. On 9 August 2000, a delegate of the then Minister for Immigration and Multicultural Affairs decided to refuse the grant of a protection visa to the applicant on the ground that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention, being excluded under Article 1F(a) of the Convention as there were serious reasons for considering that the applicant had committed a war crime or crimes against humanity (T pp6-29).
14. On 9 August 2000, the applicant lodged an application for a review of this decision by the tribunal (T p3). The matter was heard before the Hon CR Wright QC, Deputy President, on 23, 24, 25, 26 July and 16 and 17 August 2001. In the course of the proceedings, the tribunal made confidentiality orders pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 restricting publication and disclosure of certain evidence submitted by the respondent. On 12 October 2001, the decision of the respondent was affirmed by the tribunal (in a confidential decision), on the basis that the tribunal was satisfied on the whole that the applicant was directly involved in crimes against humanity.
The Federal Court and High Court appeals
15. On 16 June 2003, having been granted leave to file his application, the applicant lodged an appeal with the Federal Court on the basis that there had been a denial of procedural fairness on four grounds, constituting jurisdictional error on the part of the Administrative Appeals Tribunal such that the decision was not a decision under the Migration Act and accordingly was not a privative clause decision:
(a)the applicant was denied the opportunity properly to know and understand the case against him and to meet that case because of the failure of the Minister to provide any particulars of the facts said to constitute conduct under Article 1F of the Refugees Convention;
(b)the Administrative Appeals Tribunal conducted a hearing on 16 August 2001 for approximately 25 minutes in the absence of the applicant and his representative and in the absence of any knowledge of what transpired, the applicant was deprived of the opportunity of making submissions in response as to why further particulars should have been provided or of responding to any matter that was adverse or prejudicial to his case;
(c)the Administrative Appeals Tribunal failed prior to the making of its decision to provide the applicant with notice of the material in paragraphs 60 to 62, 64 and 65 of its reasons (as to identification evidence); and
(d)the applicant was not informed, prior to the making of the decision, that the evidence of witnesses A and/or B was to the effect that he had carried out interrogation procedures at Sedarat in Kabul involving ill treatment and torture.
16. On 30 September 2004, Emmett J of the Federal Court ordered that the appeal be dismissed (Applicant S214 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1039). This decision was appealed to the High Court of Australia, which remitted the matter to the Federal Court of Australia Full Court. On 10 February 2004, the appeal was heard by the Full Federal Court: Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66. On 26 March 2004, Wilcox, Moore and Marshall JJ held that the orders of Emmett J should be set aside and the matter remitted to the tribunal for determination, according to law, on the question of whether the applicant is a person to whom Article 1F of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees. The Full Federal Court also directed (at paragraph 159) that it “will be up to the appointed member or members to determine whether any s 35 order should be made in relation to the new hearing and, if so, their form and content”.
Historical background: Afghanistan 1978 – 1992
17. Although no-one today disputes that the PDPA régime perpetrated virtually every form of human rights violation, there has never been a judicial inquiry into its activities comparable with the Nuremberg or Tokyo war crimes trials or the special tribunals established in relation to Rwanda and the former Yugoslavia. The history of the communist period is, however, explored in a number of United Nations and Amnesty International reports and in scholarly works that draw on a wide variety of contemporary and later sources. They include Exhibits R5 (Professor William Maley) and R6 (John Barron) (being exhibits tendered at the original hearing) and a book authored by the applicant’s expert witness, Dr Antonio Giustozzi, War, Politics and Society in Afghanistan 1978 – 1992, Hurst and Co; London, 2000; Fazel Haq Saikal, William Maley, Afghanistan: Socialism in One Graveyard, UNSW - ADFA, Canberra 1989.
18. Other sources include Barnett Rubin, The Fragmentation of Afghanistan, Yale University Press, New Haven, 1995; Jeri Laber, Barnett Rubin, “A Nation is Dying”: Afghanistan under the Soviets 1979-87, Northwestern University Press, Evanston, Ill., 1988; both of which were referred to by Dr Giustozzi; also Stéphane Courtois et al., The Black Book of Communism, Harvard University Press, London 1997, ch 27; M Sliwinski, “Afghanistan: The Decimation of a People”, 33 Orbis, Winter 1989, 39; Milton Bearden, “Afghanistan, Graveyard of Empires” (2001) 80 Foreign Affairs 17. Particular aspects of the period are discussed in Christopher Andrew, Oleg Gordievsky, KGB: The Inside Story, Harper Collins, New York 1990; John Barron, KGB Today: The Hidden Hand, Berkeley, New York 1987; Christopher Andrew, Vasili Mitrokhin, The Sword and the Shield: The Mitrokhin Archive and the Secret History of the KGB, Basic Books, New York 1999, 11-12, 389-391.
19. Writing in 1988, Laber and Rubin noted that the confrontation between the people of Afghanistan and one of the world’s great superpowers did not appear to have captured the world’s imagination. There were many reasons for this, they said:
The Afghan government officially closed its doors to most of the major world media and to international humanitarian organizations, and the information it has released has been dictated by the needs of official propaganda. The few outsiders who have been allowed to visit the capital of Kabul are shown only what the government wants them to see, and their movements are carefully watched (p xi). Fazel Haq Saikal, William Maley, Afghanistan: Socialism in One Graveyard, UNSW-ADFA, Canberra 1989.
The work by Courtois also describes the ways in which information was strictly controlled throughout the communist era. It was also notable that some sectors of the western media were more attracted by the pseudo-scientific aura of Marxist-Leninist power than by a popular resistance movement resting strongly on Islamic religious commitment. For that reason they tended to play down the régime’s human rights abuses.
20. To help place the evidence before the tribunal in perspective, it is useful to note some salient features of the history of the PDPA period and some of the events and circumstances that prepared the ground for it. The following background sketch is compiled from the sources mentioned above.
21. Afghanistan is a mountainous country of about 650,000 square kilometres, or somewhat smaller than New South Wales (797,000 square kilometres). It sits at the crossroads of the great civilisations and historical empires of the middle east, central Asia and the Indian subcontinent. Before the coup of April 1978, called by the communists the “Saur (or Sawr) Revolution”, it had a population of 15.5 million (as compared with 6.6 million in New South Wales), of varied ethnic backgrounds. The largest group are the “Pashtuns” or “Afghans” who made up roughly half, or slightly less, of the pre-Saur population. They speak a language called Pashto, related to Persian but quite distinct. They predominate in eastern and southern Afghanistan and have normally been the politically dominant ethnic group in the country. The second-largest linguistic group is the Persian speakers. Those native to the valleys and mountains north and north-east of Kabul are known as Tajiks, ethnically akin to the Tadzhiks of Tadzhikistan. The remote highlands of central Afghanistan are home to the Hazaras, an ethnic group with Mongol features. As Afghanistan’s only predominantly Shia group, they have traditionally held the lowest status in the country. Over 99 per cent of the people of Afghanistan are Moslems, about 85 per cent being Sunnis.
22. Between 1933 and 1973, Afghanistan was ruled by King Zahir Shah, whose cousin Daoud Khan, prime minister from 1953 to 1963, engineered a policy of cooperation with the Soviet Union. From 1963 to 1973, King Zahir Shah instituted a parliamentary system known as the New Democracy. Although that system provided for increased public discussion and debate, it never developed into true representative government, as the king refused to relinquish his powers. Nevertheless, the increased freedom of expression permitted the organisation of various political groups.
23. The first group to organise formally, in 1965, was the People’s Democratic Party of Afghanistan (“PDPA”), which united a small group of pro-Soviet Afghan communists. The two most important party leaders were Nur Mohammad Taraki and Babrak Karmal, and the party was strongest among students and recent graduates in Kabul. In 1967 Karmal and Taraki became the leaders of the two factions that split the PDPA and represented the two main social groups within it. Taraki, together with Hafizullah Amin, led the Khalq (“masses”) group. Karmal formed the Parcham (“banner”) group. Each called itself the PDPA and accused the other of splitting the organisation.
24. The nationalists were probably the largest and least organised of the intelligentsia political groups to emerge under King Zahir Shah. They favoured continuation of the monarchy’s gradual reforms and dominated most of the cabinets under the New Democracy.
25. The last political group to organise was the Islamists, who regarded the Afghan state as corrupt, based on the un-Islamic principle of tribalism and penetrated by anti-Islamic foreign powers, especially the USSR. They organised at Kabul University and had Pashtun and Tajik wings.
26. In 1973 Daoud Khan, who had resigned in 1963 as prime minister, saw the opportunity of a return to power and with the aid of some Parcham senior officers in the armed forces staged a bloodless coup against his cousin, abolished the monarchy and proclaimed himself president of the Republic of Afghanistan. He removed the Parchami from his government and, encouraged by the Shah of Iran, began to distance himself from the Soviet Union. In 1976 the Soviet Union started pressuring Khalq and Parcham to reunite, which they did in 1977. In April 1978, a communist coup overthrew the Daoud republican régime, Daoud and his entire family being killed in the process. Power was taken by the Revolutionary Council of the PDPA, which proclaimed the Democratic Republic of Afghanistan (DRA) and declared the PDPA to be the only political party. The PDPA called this coup the “Saur Revolution” after the Persian zodiacal month (Saur, or Taurus) in which it occurred. “In the 1960’s”, Courtois notes, “the country was on the road to prosperity, modernization, and democracy” (p725). The coup ended that progress and PDPA rule left the economy in ruins. The coup also brought to an end a fifty year period of relative stability that was the outcome of an unwritten compromise based on governmental caution on the one hand, and a pluralistic culture of independence on the other.
27. The choice for Daoud’s successor lay between Karmal, who headed the Parcham faction, and Taraki, the leader of the rival Khalq faction. In Moscow the KGB backed Karmal, who had been a KGB agent for many years. But Taraki had the upper hand and the support of USSR general-secretary Leonid Brezhnev. He became prime minister, Karmal and Hafizullah Amin being appointed deputy prime ministers. Prominent political leaders of the New Democracy period were immediately arrested and executed. Large numbers of Soviet advisers arrived and moved into government offices and educational institutions. Some Soviet troops also came at that time, leading some observers to date the Soviet occupation from then, rather than from the time of the mass invasion in December 1979. The Khalq group expelled the Parchami administration and proceeded with a program of radical social change and mass repression. Over the next 18 months, an estimated 100,000 people lost their lives, many in large-scale massacres through drownings in the Oxus River, burning with petrol, live burial and herding into ravines.
28. Revolt erupted in July 1978 and a large-scale army rebellion broke out in March 1979 in Herat. With the Afghan army losing control over the spreading insurgency, the Soviets plotted with Taraki to remove Amin, the regime’s strongman, in September 1979, but the plot failed and instead Amin assassinated Taraki. Moscow nevertheless congratulated Amin on his “election” and expressed “the conviction that in the future too the fraternal relations between the Soviet Union and revolutionary Afghanistan will continue to develop on the basis of [their] treaty of friendship, good-neighbourliness and cooperation”.
29. Under Amin the military and economic situation deteriorated still further. Reports to KGB Moscow Centre from its Kabul residency, which had a network of well-placed agents in the Afghan official establishment, forecast that unless Amin were removed, the communist regime would be replaced by an anti-Soviet Islamic republic. Thereupon Moscow decided to intervene militarily in Afghanistan, and the invasion began on 24 December 1979. The spearhead of the Soviet 40th Army’s land assault was a group of KGB commandos under one Colonel Boyarinov, whose task was to conduct a “false flag” attack on the presidential palace, with troops wearing Afghan army uniforms and travelling in trucks with Afghan army markings. After forcing their way into the palace, they killed almost everybody in it, including the president and his female companion, who were found in a bar on the top floor. At the end of the operation Colonel Boyarinov, still in Afghan uniform, was mistaken for a member of the palace guard and shot by his own troops.
30. The more pro-Soviet Babrak Karmal, who had been chosen by Moscow to succeed Amin, broadcast a statement claiming that he had taken over the government and appealed for Soviet military assistance. In Moscow, Amin was posthumously denounced as an American agent who had allegedly been recruited by the CIA while a student at Columbia University (a theory with which Kim Philby reportedly agreed). This episode marked the beginning of almost 10 years of large-scale Soviet occupation of Afghanistan, a period marked by continuing guerrilla warfare, mainly through the activities of the anti-Soviet resistance forces, the Mujahedin.
31. One of the Soviets’ first steps was to reorganise the secret police, placing it under a new organisation known as KhAD (Khademat-e-Ittela’at Dowlat, or state information services). Dr Najibullah, a young Parchami former student leader, who was later to replace Karmal as president, was installed as head of KhAD (Dr Najibullah, embarrassed by the reference to Allah in his surname, preferred to be known as Comrade Najib, but later donned his full name again during his “reconciliation” program). KhAD had a larger budget than even the military and was reported to be directly financed by the USSR. Organised under the guidance of 1500 KGB advisers, it remained under close Soviet supervision throughout the occupation. KhAD informers sat in almost every office and in every classroom in Kabul. A former high official of KhAD told the researchers Jeri Laber and Barnett Rubin that KhAD aimed to have a “spy in every family”.
32. In 1986, when it became apparent to Moscow that the Soviet-Afghan military program was failing to defeat the Resistance, responsibility for the occupation was transferred from the army to the KGB, which was charged with making a final effort to save the PDPA regime. The KGB upgraded KhAD to full ministry status, under the name Ministry of State Security, or “WAD”, and Dr Najib was promoted to secretary-general of the PDPA, replacing Karmal in May 1986. Thus, by the time of the applicant’s alleged involvement with KhAD, it was officially known as WAD, but it was and is generally referred to by its earlier name. Under either name it was the core of the Afghan communist regime and its most successful institution (Laber and Rubin, supra, p8; Rubin, supra, p133).
33. Under communist rule an estimated one to two million Afghans, 90 per cent of them civilians, lost their lives through a variety of government-inflicted causes. That represented approximately nine per cent of the population, a figure that ranks among the highest war death tolls in recent history, surpassing the 8.6 per cent death rate suffered by the USSR in World War II (Sliwinski, supra, p309). The toll would have been higher but for a massive population exodus that led to Afghanistan having the world’s largest refugee population. By the mid 1980s, according to UNICEF estimates, the country’s population had fallen by half; Afghans accounted for one-quarter of the world’s refugees (Andrew and Gordievsky, supra, p576).
34. Having seized power, the PDPA and its Soviet allies strove to maintain and enforce control through the fear of a terrorised population aware of the ever-present possibility of arbitrary arrest, torture, imprisonment and execution. In central Kabul, most arrests of political suspects were made by KhAD agents in plain clothes, sometimes assisted by militia or Afghan soldiers. Students were called away from libraries or classrooms only to find themselves in a jeep on the way to a torture centre. Entire families of 11 members or more might be arrested at one time. In the streets there were systematic searches every five or 10 minutes, as citizens were stopped by officials demanding to see their papers. The main KhAD interrogation centre was housed in the Sedarat (prime ministry palace) in Kabul. Each regional centre, including Kunduz (where the applicant was based from 1987 to 1989) had its own interrogation centre, to which arrested persons were brought for preliminary interrogation. The more important prisoners were then transferred to Kabul for intensive interrogation. Most of those were delivered to Sedarat, but some went to one of a number of other centres in the city, including the special section of Pol-e-Charkhi prison.
35. All political suspects were subjected to lengthy interrogation by KhAD and their KGB advisers. Interrogation procedures invariably involved torture through methods ranging from sleep deprivation to prolonged beatings (often rendering the suspect unrecognisable), electric shocks administered by a variety of devices and the tearing out of fingernails. Interrogation was followed by execution or by imprisonment in jails devoid of sanitation and infested with vermin.
36. On occasion KhAD used women interrogators to deal with women suspects. Women were subjected to tortures similar to those administered to the men, including beatings and electric shocks, or making them stand barefoot in the snow. Special measures for women included pulling out their hair, or forcing them to stand in cold water to which a chemical had been added that would cause the skin to come off their feet. Mrs Fahima Nasery, a mathematics teacher at a Kabul high school, described how, following her arrest, she was taken to a room “where I witnessed the most horrible sight of my detention. Cut fingers, noses, ears, legs, hands, breasts and hair of women were piled there. In one corner a decayed corpse was lying. The smell of blood and the decayed corpse were intolerable. I remained in that chamber of horrors till the following morning” (Exhibit R5 p124). Pregnant women were singled out for particular brutality during massacres. Survivors of the December 1984-January 1985 massacre in Kunduz told Dr Juliette Fournot of Médecins Sans Frontières of troops eviscerating pregnant women with bayonets. In other reports, mothers were forced to watch while their children were tortured with electric shocks, or were shot or had their throats cut.
37. No accurate records of the number of executions carried out by KhAD survive, but it appears that the number of victims increased dramatically after September 1984. In Pol-e-Charkhi alone, people were executed sometimes every day, sometimes every other day, sometimes every third day, 30 or 40 people at a time. Doctors first removed the prisoners’ blood, of which the military hospital had a great need, and then the prisoners were shot. In May 1992 a mass grave was discovered near the prison, containing the remains of 12,000 people.
38. Most observers agreed that many KhAD agents learned their skills during three to six month training courses in the Soviet Union. The Soviets also established a school near Kabul to teach interrogation techniques.
39. In rural areas there developed a sustained pattern of atrocities by ground forces and through air attacks. These atrocities took many forms, including countless massacres of individuals or groups ranging from a few civilians to thousands at a time. Soldiers attacking villages were told to kill every living thing, whether adults, children or animals. Civilians were burned alive with petrol, or buried alive, air strikes levelled towns and villages and burned crops and orchards. The destruction of the agricultural infrastructure of irrigation channels, wells, dams and terraces, parts of which were many centuries old, was not mere “collateral damage”. As Saikal and Maley pointed out, it was an integral part of a strategy for denying the Resistance access to the food resources on which the continuation of their struggle depended.
40. Refugee columns were bombed and strafed and the Afghan air force conducted strikes on refugee camps in Pakistan. KhAD also created fake Mujahedin units to commit atrocities in order to alienate civilians from the Resistance forces.
41. The most vulnerable often suffered the most:
Children are among the most victimized in the Afghan struggle. They are bombed in their schools and during religious instruction in the mosques. Children have been shot while fleeing to caves in the mountains or en route to refuge in Pakistan or Iran. There are reports of children burned alive in locked rooms, their charred bodies unrecognizable by their parents. Unborn children have been bayoneted to death in their mothers’ wombs. (Laber and Rubin, supra, p 55).
42. On the other hand the PDPA also trained children as spies and assassins. There was a Soviet-Afghan program for boys aged 10 to 14 who were recruited through the Pioneers, the mass organization for primary school children. They were sent to the USSR and trained in weaponry and espionage, then sent into Resistance-held areas with various missions, such as collecting information or assassinating commanders.
43. One aspect of the PDPA terror campaign that did receive media coverage in the West was the extensive use of anti-personnel landmines of a quantity and variety never previously seen. Often they were used against the civilian population. Some of the mines were powerful enough to kill, while others had charges that only maimed, because the authorities well knew that in that type of war, an injured person is much more trouble than a dead person. During sweeps through villages, troops would leave anti-personnel mines in flour storage bins, in mosques, in booby-trapped bodies that exploded when relatives attempted to move them, and in fruit trees. Helicopters dropped camouflaged “butterfly” mines around populated areas on roads, in grazing areas, and on refugee escape routes. This new device had two plastic wings enabling it to flutter to the ground when dropped from the air. One of the wings contained a detonator. It apparently came in two camouflage colours, green for grazing areas and sand for roads and mountain paths.
44. Other mines were disguised as pens, watches, chewing gum, laundry soap, combs, banknotes, tape recorders, cameras, hockey balls, and a type of bird that children liked to keep.
45. One innovation that appears to have been entirely without precedent was the spreading of mines disguised as toys, dolls, little cars or red trucks. Many people in the West refused to believe reports that toys were being used specifically to kill and maim children, but the Afghan government itself provided physical evidence of the toy weapons: “At a press conference in Kabul, reported in the Soviet newspaper Krasnaya Zvezda on 12 June 1985, the Afghan government’s official press agency BAKHTAR described the toy mines as ‘terror methods’ used by ‘imperialism’ against Afghanistan. Although victims of the toy mines have never been able to produce samples because the ‘evidence’ self-destructs, the Afghan news agency was apparently able to mount a sizable display of lethal pens, dolls, cigarette lighters, and watches. It also exhibited miniature explosives that could be used to booby-trap keyholes and a tiny explosive that looked like an ordinary pebble” (Laber and Rubin, supra, pp44-45).
46. The mass killings in their various forms may have had a long-term objective beyond crushing opposition to communist rule. There is evidence to suggest that, like the Red Khmer régime in Cambodia, the PDPA intended to bring about a drastic reduction in the nation’s population in any event. Dr Abdullah Osman, formerly professor of psychiatry at Kabul University, heard the governor of Pol-e-Charkhi, Sayid Abdullah, say “A million Afghans only must remain alive; we need only a million Khalquis; the others, we don’t need; we will eliminate them” (Maley, Exhibit R5, p119). Many others heard him say on other occasions: “We’ll leave only 1 million Afghans alive – that’s all we need to build socialism” (Courtois, supra, p713). Other PDPA officials in Kabul were quoted as saying, in effect, “if only 1 million people were left in the country, they would be more than enough to start a new society” (Sliwinski, supra, p51).
47. In 1989, the Soviet forces withdrew from Afghanistan, but the USSR, continued to support the PDPA government materially and financially. On 16 April 1992, President Najibullah was overthrown. He was succeeded by President Majaddedi and then Professor Rabbani, who remained in office until the Taliban took over Afghanistan in 1996. The PDPA dissolved shortly after this (T pp173-177).
48. Many of the atrocities described above were not directly perpetrated by KhAD or by the government militias that it controlled, but by the Afghan or Soviet air forces, Soviet ground troops, and the Sarandoy (gendarmerie). But they are part of an overall picture of Afghanistan’s period of communist rule that provides a context in which the other evidence in the case should be interpreted. None of it proves that the applicant was a senior member of KhAD or is guilty of the other charges levelled against him, but it does provide a background that assists in the interpretation of his evidence and that of the other witnesses. For example, given that he came from Kunduz and says that he was stationed there between 1987 and 1989, it almost inevitably follows that he must have known about the notorious Kunduz massacre of December 1984 and January 1985. Even if he were, as he says, a private soldier in a KhAD battalion, he must have known, or heard reports, about other similar incidents. That alone raises some questions about his evidence, which makes no reference at all to such matters. He must have understood what kind of regime he was serving, whatever the capacity in which he served it.
The second hearing
49. At the hearing of this matter on remittal, the applicant was represented by Jonathon Hyde, counsel, instructed by Mark Vincent, of Griffins IT & IP Lawyers, (on the last day of the hearing, Mr Vincent, still acting for the applicant, informed the tribunal that the applicant was now represented by Truman Hoyle Lawyers, a firm of which he had become a partner) and the respondent was represented by Justin Smith, of counsel, instructed by Rohan White, of Sparke Helmore, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the parties at the hearing, including (pursuant to an order under s 33) affidavits and a transcript of the evidence of the witnesses on behalf of the respondent given at the hearing before Deputy President Wright in July 2001. The applicant gave oral evidence in person. Existing confidentiality orders under s 35 were continued and some additional orders made.
Applicable Legislation
50. Section 29 of the Migration Act provides, inter alia, for the general granting of visa to a non-citizen to permit to do either or both of the following:
(a) travel to and enter Australia; or
(b) remain in Australia.
51. Section 36(1) of the Act provides for a class of visas to be known as “protection visas”. Section 36(2) states:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
52. Section 65 requires the Minister to grant a visa where he or she is satisfied that there is a valid application that meets all statutory requirements and regulatory criteria. Schedule 2 of the Migration Regulations 1994 specifies the criteria which are to be satisfied before visas of various classes will be granted. The applicant applied for a protection (class XA) visa.
53. The Migration Regulations provide in Schedule 2, clause 866.221, that among the criteria to be satisfied at the time of the decision are:
866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
In clause 866.111, “Refugees Convention” is stated to mean “the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees”.
54. Article 1A(2) of the Refugees Convention defines a “refugee” as a person who:
Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Australia owes protection obligations to such a person: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 609, 616.
55. However, Article 1 of the Convention also excludes certain persons from the protection obligations that State Parties agree to afford refugees. Article 1F states:
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.
Issue
56. The issue for the tribunal to determine is whether the applicant is subject to the exclusionary provisions set out in Article 1F of the Refugees Convention. Relevantly, this requires the tribunal to determine whether it should be satisfied that “there are serious reasons for considering” that the applicant has committed a war crime or a crime against humanity.
Evidence for the respondent
57. The evidence adduced in this case relates to five main counts of disentitling conduct alleged against the applicant. They are:
· that he was a member of KhAD from 1986 to 1989.
· that he was in charge in KhAD in Kunduz for a period of 18 months from sometime in 1986 onwards.
· that for a four month period from late 1986 to early 1987 in Kunduz he was regularly engaged in the torture and ill treatment of prisoners.
· that some time after 1986, at a village south of Kabul, he arrested and tortured certain persons, and
· that in Kabul in the winter of 1989 he arrested and tortured certain persons.
58. The first three allegations are closely related, as they all depend on the applicant’s having been a member of KhAD based in Kunduz in 1986, 1987 and possibly early 1988. The other two concern conduct in or near Kabul, some time between 1987 and the winter of 1989. It is convenient to consider the evidence for the two groups of allegations separately.
Alleged activities with KhAD in Kunduz
59. The evidence concerning Kunduz consisted of a confidential affidavit given by an Afghan witness, referred to as “CD1”, whose evidence was granted confidentiality. In the original hearing before Wright DP, he was referred to as witness “A”. CD1 stated that in late 1986 he met the applicant, to whom he referred to as Mr “Na*** N****”, not “N**** A**** N****”, in the letter was “the person in charge of political issues”. Mr No***” (as SRHHH was referred to in the earlier proceedings) had no army ranking but he was the one in charge of all army personnel and he was in charge of the army base … His authority arose out of his political status”. CD1 said that from late 1986 for a period of several months, he personally witnessed the applicant carrying out numerous investigations during the night. When the suspect interrogated was considered important, CD1 says that his saw the applicant personally perform violent physical abuse against them. When the suspect was less important, the applicant would delegate that task to his subordinates. On one occasion, CD1 deposed that he witnessed the applicant striking an important local person with a cable attached to a wooden handle. The implement consisted of a handle about 40 centimetres long, and attached to bare wire, the overall length being approximately one metre. On one occasion a subordinate went to strike a well-known religious figure in the mouth with a butt of a gun. CD1 refused to do so, whereupon the applicant turned upon the subordinate and repeatedly struck him with the weapon in the way in which CD1 had been told to treat the prisoner.
60. As an eye-witness, CD1’s evidence is obviously of considerable importance. As his observation of the person he knew as Na*** No*** extended over several months, the likelihood of incorrect identification should be considerably reduced.
61. The witness was questioned at the earlier hearing by Deputy President Wright (as that part of the hearing was private, the Deputy President had undertaken, at the request of the applicant’s representative, to test the witness’s evidence himself), but the witness out of fear for his safety declined to give evidence at the hearing following the remittal. The tribunal therefore only had his affidavit and the confidential transcript of the questions put by the Deputy President at the hearing in July 2001.
62. The oral part of witness CD1’s evidence was given by telephone. At the original hearing, Deputy President Wright had this to say about his evidence: “I had no opportunity to observe the demeanour of this witness, but he answered questions readily without apparent dissimulation or circumlocution. His evidence is of particular importance as he claimed to have had a substantial association with the applicant and to have observed first hand many acts of torture and violence perpetrated by the applicant. For these reasons it is particularly regrettable that this witness could not attend the hearing in person, or be present at some form of identification parade” (paragraph 64).
63. CD1’s evidence, important though it is, is not without some difficulties. The witness nowhere actually says that the applicant was a member of KhAD. Though he does indicate that the No*** he observed held a position of authority because of his political status, as was noted above, he nowhere referred to the person he saw by the full name Na*** Ah*** No***. Other evidence indicated that Afghan men who have a similar name are normally referred to by the three names, the given name, the patronymic, and the surname, though in more informal situations only the given name will be used.
64. The witness was shown some enlargements of a photograph of Mr No*** attached to his army discharge card (Exhibit A5). When asked by the Deputy President if he recognised the photographs, his reply, as relayed through the interpreter, was this (Exhibit R23 p9):
It is a ….. sample I have this, I have seen these photos and I’m 80 per cent sure that it Mr No*** but when I saw Mr No*** he was slim, medium height. He had small eyes and the colour of his hair was rather light. Your Honour, the witness said it was yellowish sort of light and the word he used was yellowish but he wasn’t sure if he used the same word, and he used the word ‘bur’….. is light brown so I said do you mean like the colour of date food and he says yes.
65. I think it is generally known that the dried dates one buys at the supermarket are dark brown in colour. The online Encyclopaedia Britannica, however, has a photograph of dates ripening on the tree that are yellow. It seems that some dates are harvested at that stage of the ripening process, known as “khalal”, when the fruit is indeed yellow. During the following four weeks the fruit turns light brown. That is the “rutab” phase, during which most soft and semi-soft dates are harvested. In the subsequent two weeks, the “tamar” phase, the dates darken in colour. Dry varieties of dates are picked during that phase.
66. Mr No***’s army discharge card states his hair colour as “black”. His hair at present is greying, but the underlying colour seems to be the dark brown or black commonly seen in persons of south Asian origin. He could not be described as having “small eyes”. Under questioning by the Deputy President (Exhibit R23), witness CD1 said that the No*** he saw was always dressed in uniform, never in civilian clothes. His uniform was that of an army officer, apparently not that of a KhAD officer, and his insignia were those of a “toran”, an army captain. In his affidavit, however, CD1 said that “Mr No*** had no army ranking ….. his authority arose out of his political status”. Later, CD1 said that all the interrogations he witnessed were carried out in Kunduz prison, where there was a section for political prisoners. He was unable to say, however, whether that location was in the north, south, east or west part of Kunduz, answering that “It’s been a long time”. In light of CD1’s other (confidential) evidence, that seemed a rather odd lapse.
67. The other piece of evidence for the respondent with a bearing on the Kunduz allegations is the summary of a meeting held by two officers of the department with members of the Afghan community at Parramatta, New South Wales, on 11 February 2000 (Exhibit R27). Neither CD1 nor CD2 was present at that meeting and the statements made are all hearsay or double hearsay. It may be worth noting, however, as Wright DP did, that the interrogator at the Kunduz detention centre ran by KhAD was described by one of the participants as “look[ing] like a Russian”. That phrase was not elaborated. No doubt the Russian people display a wide range of facial characteristics. One could reasonably take the phrase to mean, however, that the person in question did not have the dark brown or black hair and noticeably darker complexion usually found amongst south Asians, but was of a somewhat lighter colouring, with someone like President Putin being an example of a person being at the fairer end of the spectrum of Russian physiognomy. That would be consistent with the references to yellowish hair of a “light brown” or “light date” colour mentioned above. But the applicant has the same darkish colouring as most of the other Afghan witnesses in the case, and indeed is darker than Dr Dardmal and Mrs SRHHH. He does not, as I have said, have light coloured hair.
68. There was another participant in the meeting who had seen a KhAD officer named No*** who was head of KhAD in Kunduz for about 18 months. That participant described him as of “about medium height with a big head, and green-blue eyes”. It is conceded that the applicant has green-blue eyes, but I do not think one could describe him as having a big head.
Evidence relating to events at Kabul
69. One of the participants in the meeting of 11 February 2000 described an episode that had taken place in a village (which I will refer to as “WX”) south of Kabul some time after 1986. The speaker related how he saw the man he knew as SRHHH, together with his confederates, beating a man with a pick before taking him away. He visited the man in prison and was there told about torture sustained at the hands of the man known as SRHHH at the Sedarat interrogation centre in Kabul. As that evidence is double, and in some cases triple, hearsay, Wright DP did not rely on it for making his findings except to the extent mentioned above, in relation to descriptions of the KhAD officer that are consistent with the evidence of CD1 and CD2. I propose to take the same course.
70. The other evidence relating to events at or near Kabul was that of witness CD2, also referred to as “witness B”. He stated in his affidavit (Exhibit X1) that he first encountered the man named “SRHHH” in Kabul in the winter of 1989. It was early in the winter because “it was not yet snowing in Kabul”. He was one of a group of four people, only one of whom CD2 had ever seen before, and who were dressed in civilian clothes. The person CD2 knew introduced one of the other three as being from KhAD. Before that person spoke, CD2, thought he was not Afghan because of his facial features, but once he spoke CD2 realised that he was in fact Afghan. He had greenish blue eyes, fair hair and fair skin and spoke very calmly with a smile. His skin was fair in comparison with that of an Afghan person and had a reddish hue. His appearance was comparable to the Tajik people and he spoke in Persian but with a Tajik accent. He appeared to be 27 or 28 years old, was of medium build and an estimated 173 cm tall. The KhAD officer had a list of names bearing certain marks in red pen and demanded that six people in the group in whose company CD2 then was, should accompany him for interrogation.
71. A few weeks later CD2 saw one of the students (“AK”), then arranged to meet him secretly in order to find out what had happened. AK said that the group was treated quite well until they were put into a car (from the description it sounded more like a van), but then they were taken to the Sedarat, where they were first met by a man with blue eyes. AK asked a soldier who escorted AK to another room who the man was, and the soldier replied that he was a very high official and a very educated man who had “a professor’s degree in Marxism/Leninism, in the philosophy of Marxism/Leninism”. AK said the soldier told him that the person’s name was “Na*** Ah*** No***“. AK related the treatment to which he was subjected, including sleep deprivation, beatings and electrical shock torture.
72. Witness CD2 said that the man’s hair was light brown, “a light date colour” and he was clean shaven. The witness stressed that he had seen the man for only four or five minutes several years previously and that he was not sure that he would be able to recognise the man again today because he (the witness) was mentally not very well. “I have gone through these wars and it was eleven years ago. I might recognise him. Lack of concentration ……”. He was unable to recognise the man when shown the photograph exhibit A12, pointing out that it was difficult for him because he did not know the man previously. He had not been asked to attend a line-up to test his ability to recognise the man. He said that he remembered the name Na*** Ah*** No*** that the former prisoner AK had told him, because it had a similarity to the name of another man he knew quite well.
73. In relation to the weight of witness CD2’s evidence, it should be noted that he was in the presence of the person he came to believe was the applicant for a total of four minutes, had never seen him before and has never seen him since. CD2 describes the man in a way that does not match the applicant, except for the greenish-blue eyes, as he had fair hair and skin that was fair in comparison with an Afghan and had a reddish touch to it. Until he spoke CD2 thought he was not an Afghan at all. The name he was later given by the man was double hearsay and he remembered it only because of its similarity to that of the KhAD victim he knew. The name was not actually closely similar, but was more in the nature of being analogous in light of Afghan naming customs. He agreed that the name “SRHHH” is not uncommon in Afghanistan and that the name Ah*** is quite common in that country. His evidence about the crimes of the man he said was “SRHHH” was likewise hearsay. CD2 was unable to recognise the applicant from the photograph exhibit A12 and said that his memory and concentration had suffered because of his experiences during the war and the lapse of time.
74. While the respondent adduced the expert evidence which will be referred to separately below, it deals largely with matters of background that cast light on the probability that the applicant’s story is true, rather than providing information about particular episodes in which the applicant is alleged to have been involved.
The applicant’s evidence
75. SRHHH gave evidence by statutory declaration and written statement (Exhibit A36) as well as oral evidence. The following is his account of the relevant parts of his life and career.
76. He was born in 1958 in Kunduz town, is a Tajik and a Sunni Moslem. He joined the PDPA while still at high school and then, on commencing his studies at Kabul university, became the secretary of the philosophy’s faculties PDPA branch. He wanted to study law and had held a long-term ambition to work in the foreign affairs ministry. His grades were insufficient to qualify him for admission to the law faculty initially, however, so he began his studies in philosophy and social science, hoping to earn grades that would enable to transfer to the law faculty in his second year.
77. As an active member of the PDPA, he was nominated by the party committee for a scholarship to study in the USSR at Patrice Lumumba University (since renamed Friendship between Peoples University) in Moscow, commencing in about August or September 1980. There he studied a range of legal and political subjects for a six-year program and was awarded the degree of master of international law.
78. While at Patrice Lumumba University he continued to be a member of the PDPA, holding various positions including secretary of the Afghan Students branch, member of the Moscow City PDPA and president of the Federation of Afghan Students in Moscow. His main role in that office was to monitor all Afghan student activities to ensure that students complied with their scholarship conditions. In some circumstances his committee could decide to terminate a student’s scholarship.
79. In addition to his main course at Lumumba he attended evening classes in agricultural economics at the Marxism-Leninism Institute, being awarded after two years a diploma of agricultural economics. He denies having any contact with the KGB in Russia or receiving any KGB training. His only ambition, he said, was to become a professional public servant in the foreign ministry. “I wanted to be able to work for any future government of Afghanistan and I wanted to be seen as ‘clean’” (Exhibit A36, Annexure B).
80. When he returned from the USSR in 1986, he approached the foreign affairs ministry to seek employment. There he was told that he would need to work for the party for a short time, complete his military service and then pass a test. He obtained a position as an “educator” in the organisational section of the central committee of the Communist Party in about 1986, and worked there for approximately five months. He then reported for his military service at the recruitment office in Kunduz in late 1986 or early 1987. The provincial party committee informed him, however, that he should work with them for a few months before commencing military duty as they had a shortage of educated people working for them. He was therefore placed in the propagation and circulation section of the provincial committee, the role of which was to spread information about the Najibullah government’s “reconciliation” process. That entailed among other things communicating with the suburban committees about the process, travelling to government controlled villages outside Kunduz to explain the government platform to the local committees and sometimes giving talks after prayers at mosques.
81. On completing his posting at the propagation and circulation section, he returned to the recruitment office to report for military duty. There were three arms in which conscripts could serve, the military, the gendarmerie (Sarandoy) and KhAD. He was sent to the KhAD post as there were vacancies there at the time. He commenced his service in July 1987 and completed it in July 1989. For the whole time he was a private soldier stationed with Battalion 840 at a post in Kunduz city, near the village of Baghi Meri, on the Khanabad road. He lived in the barracks at the KhAD post, spending part of his time on guard duty. Although Kunduz city was attacked three times during the war, he said that there were no attacks during the time he was there doing his military service. That was incorrect, as Kunduz was temporarily captured by the Mujahadeen in 1988, but the applicant explained that by saying that the Resistance forces did not reach the post where he was stationed, which was some distance out of town.
82. As he was an educated man and a party member, the commanding officer asked him to assist him with the battalion’s party activities. The applicant said that if he had refused, there was a risk that he would have been sent to the frontline. He therefore undertook PDPA work, including organising meetings and party events at the post, holding discussions with the troops about government policy, and listening to the radio news in order to report it to the other soldiers, most of whom were illiterate.
83. Having completed his military service he returned to Kabul, completed the formal requirements for admission to the foreign service and was duly appointed, commencing his duties in the archives section and then moving to the political desk of the third political department, based in Kabul. The Najibullah government was still in power. After it fell in 1992, over 100 ministry staff fled, resigned, were arrested or dismissed. Some were required for questioning about their activities under the PDPA regime and some of those were allowed to continue working. The applicant said there was no issue in his past which caused the new government any concern and he was not interviewed. He said he had nothing to fear about any events in his past and did not even consider leaving Afghanistan. He denies all the respondent’s allegations of human rights violations against him, saying that there was no prison or interrogation centre at the KhAD post where he was stationed and that he does not even know whether there was a prison or interrogation centre at the Kunduz KhAD headquarters. The only prison he knew about was the criminal prison managed by the Kunduz city administration. He denies ever going to the village of WX, adding that he is not aware that such a village even exists, and likewise denies ever entering the Sedarat or the KhAD central office. He even denies any knowledge of arrests or torture while Najibullah was in power:
There were rumours of such things happening at the time I was in Afghanistan and I understand that there have been reports of such things happening when Najibullah was President. However I do not have any direct knowledge of such human rights abuses taking place at the time, nor was I involved in any way in those abuses (Exhibit A36, Annexure B).
84. After the Taliban came to power, the applicant concluded that it was unsafe for him to remain in Afghanistan. Taliban representatives came looking for him at this house, saying he was a communist that had worked in foreign affairs under the Najibullah and Rabbani governments, and told his father-in-law that until he was found neither he nor the applicant’s wife were allowed to leave the house. Shortly afterwards, his wife was brought home from work unconscious, having been violently beaten by the Taliban at her workplace. The family fled by a circuitous route to Iran, where the applicant received an appointment from the Rabbani government in the political desk at the Afghan embassy in Iran. They remained there for 10 months, following which the applicant was appointed second secretary in the Afghan embassy in Syria. At all times he represented the Rabbani administration. He states that while he was working at the embassy he “started planning a holiday in Australia” and applied for a tourist visa in June or July 1999. On 10 September 1999 he was told that his appointment at the embassy was terminated and, believing it unsafe to return to Afghanistan where the Taliban would see him as a political opponent, the family decided to travel to Australia and seek asylum. They left Damascus on 20 September and arrived on 30 September 1999.
85. Besides categorically denying the alleged human rights abuses, the applicant challenges the respondent’s identification evidence. He states that blue-green eyes are not rare in Afghanistan but are quite common, particularly in some of the northern areas such as the Panshir valley, Farkhar district, and Badakhshan province. His hair could never be described as “yellowish” and varies in colour from dark brown to darker brown. He points out that his army discharge card states his hair colour as “black”. He stresses that he was never known by the name of SRHHH in Afghanistan, and did not adopt it as a surname at all until he was appointed second secretary at the Afghan embassy in Damascus. He adopted that name, which was based on his father’s name, because it was thought more appropriate for a diplomat to have a surname. In support of that claim he tendered a number of official documents, including his army discharge card, and several passports to show that he had not been known by any surname at all until 1996.
Weight of the applicant’s own evidence
86. Several points should be made at this stage about the applicant’s own evidence. In its favour is the fact that it is detailed, reasonably consistent and devoid of significant gaps. As the respondent points out, that is unsurprising, as this was the second time he had presented his case, as well as having given evidence in the Federal Court, and he has over the past five years prepared several affidavits and statutory declarations.
87. Parts of his evidence are corroborated by official documents such as the discharge card and passports, the genuineness of which has not been challenged. A fax from the Afghan embassy dated 2 December 2003 and an undated message from the Afghan foreign affairs ministry (Exhibit A36 Annexure M), confirm that Na*** Ah*** (no surname given) did serve merely as an ordinary conscripted soldier in 840 Battalion in Kunduz from 1987 to 1989, that he was never known by the surname SRHHH in Kunduz province, that he is of good character with no criminal record and at no time worked as the head of KhAD in Kunduz. The undated message confirms that he commenced work at the foreign ministry on approximately 13 September 1989 in the archives section, was transferred to the third political division and later to the accounts directorate. He was dismissed from the ministry on approximately 29 May 1997 “due to his prolonged absence from duty”.
88. Such inconsistencies as there are in the applicant’s evidence, such as in relation to the 1988 battle of Kunduz, have been explained in a manner that is reasonably credible, especially bearing in mind the errors that can occur in translation.
89. Dr Sarah Mares in her psychiatric report (Exhibit A53) expressed the view that the applicant’s prolonged detention had led to mental illness and probably structural changes to the brain that were likely to impair his ability to recall and verbalize his past experience, and to limit his ability to provide a coherent account of events before the tribunal. “It is also likely”, she continued, “that Mr [SRHHH] suffers problems with attention shifting and concentration which influence his ability to organize his thoughts and memories in response to questions about past events”. She had not, however, observed the applicant giving evidence. The tribunal rarely sees a represented applicant in a visa case who is not, in the opinion of a psychiatrist or clinical psychologist, suffering from a mental illness that would be alleviated by the grant of a visa. Such evidence must receive its due weight.
90. If the applicant is in fact labouring under the disabilities diagnosed by Dr Mares, however, he certainly kept them under masterly control at the hearing. At all times he appeared focussed, calm and alert. He gave his evidence coherently, logically and forcefully. At no time did he say he could no longer recall facts of which he had formerly been aware. He did claim that he had never possessed any information about facts of which one would have expected him to be aware, but that is a different phenomenon.
91. On balance, however, the applicant’s evidence was unimpressive. He repeatedly answered questions with questions and gave long, discursive and unresponsive replies to straightforward questions. He consistently diminished his own role in the party and the PDPA government, repeatedly emphasising that he was a lowly conscripted soldier who knew nothing of any communist repression or atrocities, not even those committed in his own home town, where he was stationed. Yet on his own evidence he was a rising member of the party nomenklatura trained and accommodated for six years in Moscow at the Marxism-Leninism Institute and Patrice Lumumba University where he was selected for a number of prominent roles. When the Soviet government wished to educate a foreigner for work, the student would not attend Lumumba but would go to a normal Soviet university or technical college. Lumumba University was established by Nikita Krushchev to train “intelligentsia cadres” from the third world. Within Russia, the authorities stated that the university’s mission was: “to educate students from under-developed countries so they can return to their homelands to become the nucleus for pro-Soviet activities” (Barron, p323). The first vice-rector (vice-chancellor) of Patrice Lumumba University was Pavel Erzin, a KGB major-general. Other KGB officers and agents served on the faculty, which was required to obey the dictates of the KGB. Students were selected primarily on the basis of their potential usefulness to the KGB.
92. The applicant remained a loyal party supporter throughout all the bloodshed perpetrated by the Khalq and Parcham factions of the PDPA. He collaborated with the Soviet authorities at Patrice Lumumba University despite the fact that almost a year before he began his studies in Moscow in September 1980, the Soviet Union had invaded his own country and had begun devastating thousands of towns and villages and organising the notorious depredations of the KGB-controlled KhAD. When he applied to the foreign ministry on his return from the Soviet Union in 1986, he was told that because he was a party cadre, the party needed him and he should spend some time undertaking PDPA work before commencing his period of military conscription.
93. He worked for the party central committee in Kabul as an “educator” and while serving in a KhAD security unit he was the battalion party secretary and propaganda officer. He took his orders directly from the battalion commander or his second in command, both of whom were KhAD officers. While he may have held the lowest army rank, he was no ordinary solder. His education, party training and party experience put him in a much better position than most people to know what was happening in Afghanistan.
94. He aspired to a career in the PDPA government, for which he is an apologist even today, describing it at the hearing as open-minded, humanitarian and democratic. He attributes the allegations made against him in the Afghan community to personal spite, political bickering, ethnic or linguistic divisions, romantic imaginings or personal complexes. He displayed no awareness about how a prominent, trained communist party apparatchik and Soviet collaborator might be viewed by Afghans who had lost numerous family members and suffered what his own witness Dr Lefraie called “enormous unspeakable crimes” at the PDPA government’s hands. Nor did he offer any explanation why such intense political, ethnic or linguistic animosities should be directed at him personally.
95. A salient feature of the applicant’s oral evidence was his persistent practice of seeking to avoid answering questions by pleading ignorance, or a lack of direct knowledge, or a lack of expertise. Thus he pleaded a lack of direct knowledge on the extent of KGB control of the PDPA government and whether the Najibullah administration continued to receive Soviet support after the troop withdrawals, even though he himself held a middle-ranking position in that administration, conceding only that there was “a long history of good relations with the USSR”. Though he served in the PDPA’s propaganda service, he disclaimed any direct knowledge of whether any section of the population disagreed with the Najibullah government’s policies, admitting only that he had heard “rumours” to the effect. He claimed that he could say little about the prevalence or otherwise of surnames among the Afghan people, as he was “not an expert” on the subject and could not give expert evidence about it.
96. In particular, he professed a monumental ignorance about the role and activities of KhAD. He had “no particulars” concerning KhAD’s human rights abuses, though he was aware of “rumours” and international media reports to that effect. Having described the PDPA government as “open-minded”, he was asked whether KhAD was also open-minded, and replied simply that he had no direct knowledge on the subject. When asked if KhAD’s role was to crush the opposition, he denied any knowledge on that subject too, but then conceded that reports on the BBC, the Voice of America and in the conservative news weekly Der Spiegel, as well as some domestic rumours, had it that KhAD was an “intelligence organisation”. After further questioning he admitted that such was KhAD’s role, as he himself had said in an earlier statement that it was KhAD’s function to crush the opposition.
97. Even when he was working in the PDPA foreign ministry in Kabul in 1990, he said he was unaware what organisation (whether KhAD or other) would undertake the arrest of political suspects, claiming that he was not an expert on Afghan affairs, only on foreign affairs. He had no information on whether human rights abuses occurred at Pol-e-Charkhi, though he admitted to hearing “rumours” about them, and said he had no information on whether there was a KhAD interrogation centre in Kunduz city, although he was based in Kunduz and taking orders from KhAD officers for nearly two years.
98. Some reports describe how KhAD began destroying its records even before the Soviet troops were withdrawn; the applicant again said that he had no direct knowledge of any records destruction program. Yet when asked if he had attempted to obtain copies of KhAD records in order to show that he had not been in charge of KhAD in Kunduz as alleged, he replied that “It was not for me to do so”. Given his repeated and apparently successful efforts to obtain Afghan government documents through the embassy, that is an implausible explanation. It is more probable that he made no attempt to obtain KhAD records because he knew they had been destroyed.
99. He argued that he was just an ordinary soldier and that no ordinary soldier would have been exposed to information about KhAD. That is an implausible proposition. As Professor Maley pointed out in his expert evidence (outlined below), agencies such as KhAD typically desire that the mass of the population know about the atrocities they commit in order to create a climate of fear that will deter the rise of organised opposition. Further, despite SRHHH’s low military rank, he was a valued and rising party cadre and was likely to have been exposed to additional information about KhAD, both from his party activities and from his propaganda work under the KhAD commanding officer and 2iC of 840 Battalion. He said that the only information he received about human rights abuses consisted of rumours or reports from the BBC, the Voice of America or Der Spiegel, and that he passed on those reports to the troops in his regular information sessions with them.
100. The applicant is nothing if not a survivor, and I take leave to doubt whether he would have thought it in his interests as a propaganda worker to relay to the troops western reports of PDPA atrocities in Afghanistan. Barnett, Rubin, Courtois and others have stressed that information was strictly controlled in communist Afghanistan. During the Soviet era, BBC and Voice of America broadcasts were routinely jammed in central and eastern Europe, and it seems unlikely that they would have been viewed with favour by the PDPA or KhAD. It also seems improbable that Der Spiegel was freely available under the PDPA regime, or that the applicant read it regularly, given his own evidence that he cannot read German.
101. While, therefore, the applicant’s account of the events has been largely consistent from the outset as well as being comprehensive and free from gaps, his evasiveness and his at times absurd professions of ignorance make his evidence as a whole unconvincing.
102. That raises the question of what conclusion is to be drawn from this pattern of prevarication by the witness. As Gibbs J pointed out in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694, the fact that a witness is disbelieved does not prove the opposite of what he asserted. Sometimes one can infer from it that the witness thought the truth would be harmful to him; and sometimes it can amount to an admission of conduct (Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 564 per Gibbs and Mason JJ).
103. In this case it is conceivable that the witness thought that if he admitted knowing anything about KhAD’s activities, it might be inferred that he was a party to them or in some other way implicated. In part also I think his attitude was the result of acquiring rhetorical bad habits through his training for the party nomenklatura in Moscow. A notorious feature of Soviet disinformation techniques in those days was the practice of denying everything, regardless of whether it was provable or common knowledge or not. Further, individual Soviet officials when asked, for example, about the 1953 East Berlin uprising, would reply that they had no expertise in military affairs or no direct knowledge of East German politics. Of course, the Soviets had no monopoly of those techniques, but they used them more consistently than most other governments, and also with more success, given the difficulty of obtaining reliable information about conditions within the Soviet bloc. But the applicant sought to employ Soviet-era disinformation gambits in a context in which they could no longer work. I therefore view his evasive and unconvincing responses as a clumsy attempt to distance himself completely from KhAD and its crimes, but not as showing that he was himself involved in any of them.
Evidence of the applicant’s wife, sister, a student acquaintance and a former comrade
104. The first witness to give evidence in support of the applicant was Rouhullah Dafay, who currently works as a carpenter in Germany, having gained citizenship there through his German wife. Like the applicant, he comes from Kunduz and their families knew each other. He joined the PDPA at the age of 16 and when he commenced his military service in 1986 he asked to be posted to 840 Battalion because its commanding officer, Lt-Col Enayatollah, was a friend of his brother’s. The colonel was a permanent KhAD officer and as such wore the walnut coloured officer’s uniform and KhAD insignia, unlike the green uniform of the ordinary soldiers.
162. In any event, it is not necessary to go searching for religious, ethnic or political bigotry as an explanation for the allegations in the present case. One need not be a member of a particular Afghan ethnic group or political alignment, or to be an Afghan at all, to wish to see the perpetrators of KhAD or PDPA crimes called to account. Indeed, the influx of PDPA war criminals, including KhAD personnel, has been the subject of wider debate in Australia, not only in human rights circles but also in the media and in federal parliament. In June 1994 the then government responded to community and parliamentary pressure by ordering an intelligence investigation into the admission of Afghan war criminals into Australia (see generally Mark Aarons, War Criminals Welcome: Australia, A Sanctuary For Fugitive War Criminals Since 1945, Melbourne 2001, pp40-46). In my view, the theory that the present case results from intra-community bickering trivialises both the unimaginable suffering of Afghan people under Soviet-PDPA rule and the desperate heroism of their struggle against it.
Application of the Law and Findings of Fact
163. As stated above, the issue for the tribunal is to determine whether there are serious reasons for considering that the applicant is excluded from the granting of a protection visa by Article 1F of the Refugee Convention. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, French J said:
…“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.
164. It is not enough that an applicant for refugee status has been a willing collaborator with a régime that has committed war crimes or crimes against humanity. The present position contrasts with that which prevailed in the years following World War II, when a wide range of activities in support of the Third Reich sufficed to exclude a person who wished to migrate to Australia. The list covered anyone who had served with the enemy combatant forces, collaborators, quislings, traitors, informers, accessories or anyone who voluntarily assisted the enemy forces. Until about 1955, membership of the National Socialist (Nazi) Party was in itself sufficient ground for rejection, even in the absence of evidence of any other activity. The rejection rate of Australian selection officers was thought to be higher than that of selection teams from other resettling countries, and Australians had the reputation of being “tough” (Andrew Menzies, Review of Material Relating to the Entry of Suspected War Criminals into Australia, Canberra, 28 November 1986, pp 34-86 (“the “Menzies Report”)).
165. The Report of the Royal Commission on Australia’s Security and Intelligence Agencies recommended the introduction of legislation incorporating a more general statement of the kind of people whom it is desired to keep out of Australia. The Menzies Report in 1986 made a similar recommendation (id., pp 59-60, 62). Those recommendations do not appear to have resulted in the adoption of any general criteria for excluding persons actively and willingly associated with criminal régimes. Provisions of that nature might be desirable, but they do not at present exist. It is therefore necessary for the tribunal to be satisfied that there is sufficient evidence of the applicant’s personal involvement in specific instances of disentitling conduct.
166. The tribunal need not find that the applicant has committed one of the crimes referred to in Article 1F(a), (b) or (c) before Article 1F will operate. The text of Article 1F makes it clear that the article applies if there are “serious reasons for considering that” one or more of the three paragraphs applies to the applicant’s case: Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179.
167. The United Nations High Commission on Refugees (UNHCR) has published a document titled “The Exclusion Clauses: Guidelines on their application”. It points out:
In order to satisfy the standard of proof under Article 1F, clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example may suffice if they are reliable [paragraph 35].
Professor Guy Goodwin-Gill in “The Refugee in International Law’”, states at page 97:
Excluded are those ‘with respect to whom there are serious reasons for considering’ that they have committed a crime against peace, a war crime, or a crime against humanity, which has been interpreted to require a lower standard of proof on matters of fact than the balance of probabilities.
The Australian case law adopts those propositions. For example, in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, French J said:
Article 1F excludes from the application or Convention persons with respect to whom there are serious reasons for considering that they have committed a class of crime or been guilty of the classes of act there specified. 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 either the relevant crimes or acts.
In Ovcharuk v Minister for Immigration and Multicultural Affairs Branson J said at [186]:
Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision maker.
168. In Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 478, Weinberg J said that there must be strong evidence before the decision-maker upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. The evidence need not, however, be of such weight as would be required to persuade the decision-maker on the balance of probabilities or beyond reasonable doubt. At 478, Weinberg J said:
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.
Further, the fact that the respondent’s evidence at this (second) hearing, was not given orally and could not be tested by cross-examination does not mean that it “cannot give rise to serious reasons for considering that the applicant had committed a crime of the type specified” (at p480). The fact that the evidence cannot directly be tested does not mean that the case is built on mere suspicion.
169. In his submissions in reply, the applicant contended that the standard of proof laid down in the Federal Court cases was too low. A higher standard, he said, had now been prescribed by the UNHCR in its Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, Geneva 2003. That standard now superseded the one applied in those cases.
170. The Background Note states that although exclusion does not require a determination of guilt in the criminal justice sense,
Nevertheless, in order to ensure that Article 1F is applied in a manner consistent with the overall humanitarian objective of the 1951 Convention, the standard of proof should be high enough to ensure that bona fide refugees are not excluded erroneously. Hence, the “balance of probabilities” is too low a threshold. [emphasis added] (paragraph 107, page 38‑39).
As to the comments made by Professor Guy Goodwin‑Gill, the applicant said it should be kept in mind that Professor Goodwin-Gill’s book was published in 1996, some eight years before the Background Note, and therefore does not necessarily present the current position of international law on this point.
171. The European Council of Refugees and Exiles (“ECRE”) document titled “Position on Exclusion from Refugee Status” dated March 2004 accords with the UNHCR Background Note in that it provides:
Clearly though, because of the severe consequences of a decision to exclude, the exceptional nature of exclusion and the general protection purpose of the 1951 Convention, the threshold of proof applied should be high. [emphasis added] (paragraph 33 p17); and
Since the exclusion clauses deal with the commission of crimes, it seems reasonable to search for existing standards of proof in the area of criminal law, ideally international criminal law In this respect, reference can be made to the standard of proof required for criminal indictment. (paragraph 34 p17).
172. A prominent academic commentator in the area, professor of law at the University of Essex, Geoffrey Gilbert, in “Current Issues in the Application of the Exclusion Clauses” (2001), commissioned by the UNHCR as a background paper for an expert roundtable discussion on exclusion, argues that:
Article 1F as a whole demands individual determination on a case by case basis … By analogy with Article 33.2 which merely requires reasonable grounds for regarding the refugee as a danger to the security of the country of refuge, where that is based on a particularly serious crime having been committed by the refugee in that country, there must be a conviction by a final judgment, that is the refugee must have been found guilty in a criminal trial – ‘serious reasons for considering’ that the applicant has committed a crime or is guilty of an act within Article 1F must therefore at least approach the level of proof necessary for a criminal conviction of the individual. [emphasis added] (p32)
While materials such as the Background Note may be considered by a court or tribunal interpreting an international treaty, they can have no binding force in domestic law (Teoh v Minister for State for Immigration and Ethnic Affairs (1995) 183 CLR 273; ReMinister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1).
173. The High Court has not found similar UNHCR publications especially useful (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392, 405). When there is clear Federal Court authority on a point, I do not think it appropriate or prudent for me to decide that it has been superseded unless that conclusion is obvious and inescapable, which in this case, for the reasons given, it is not. The present standard should be applied until the courts adopt a different one.
174. Further, to decide otherwise would give insufficient weight to the need to interpret the exclusion clauses in such a way as not to make Australia a sanctuary for war criminals or those who commit crimes against humanity, which would damage Australia’s reputation abroad and foster bitterness and discord at home. That is a consideration that the Background Note itself recognises:
The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. (paragraph 3)
175. Cases of this type often concern events that took place in distant countries years, or even decades, earlier. Witnesses may be scattered, mentally infirm or deceased, perhaps murdered by the impugned régime itself. In such circumstances the respondent cannot be held to the methods, standards or burdens of proof required for indictment or conviction in domestic criminal proceedings. The Rome Statute (treaty) establishing the International Criminal Court implicitly takes the position that ending the “culture of impunity” that has often shielded persons suspected of crimes against humanity, war crimes and similar offences may mean restricting the procedural safeguards available to accused persons. The International Criminal Court Act 2002 (Cth) and the International Criminal (Consequential Amendments) Court Act 2002 (Cth) adopt the Rome Statute of the International Criminal Court 1998. Both Acts were passed by federal parliament without opposition in either chamber, if I remember correctly. Justice Kirby of the High Court is a supporter of the ICC: Kirby, “Australian Honours Two Champions of the Downtrodden”, Monash University, 31 October 2000; Kirby, “Criminal Law - The Global Dimension”, International Society for Reporting of the Criminal Law, Conference, Canberra 27 August 2001.
176. The Rome Statute permits the court to take “certain measures to protect the safety, physical and psychological wellbeing, dignity and privacy of victims and witnesses,” as well as measures insisted on by states in connection with the disclosure of information relevant to national security. Those measures include the withholding of evidence from an accused person and the supply of a summary, the use of written transcripts, documents and recorded testimony of witnesses, reliance on summaries or redactions, limitations on disclosure and the use of in-camera or ex parte proceedings (Articles 67, 68, 69 and 71). The offences are to be proved beyond a reasonable doubt, but there is no jury and the verdict requires only a majority of the three judges hearing the case (Articles 64, 74).
177. Concerns that such restrictions could jeopardise the right of an accused person to a fair trial were considered in a comprehensive parliamentary report: Joint Standing Committee on Treaties, Report 45: The Statute of the International Criminal Court, Canberra, May 2002 (in the interests of full disclosure I should mention that I was one of those who voiced those and similar concerns: paragraphs 2.31, 2.41, 2.45, 2.47‑48, 2.83, 2.139). The Attorney-General of the day considered that those concerns lacked substance: “The ICC won’t operate in exactly the same way as an Australian Court, but … it will operate in a completely fair and just way” (paragraph 2.103). The committee essentially accepted that view and so, apparently, did the legislature. That the Commonwealth parliament accepted and acted on those views in relation to the possible trial of Australian citizens by an overseas criminal court is at least not inconsistent with the use of the current standard of proof in the determination of eligibility for refugee status in the difficult conditions attending assessment of claims in a different country long after the event.
178. In the applicant’s case, the exclusionary provision relied on by the respondent is Article 1F(a), that there are strong reasons for considering that the applicant has committed a war crime, or a crime against humanity, or been guilty of acts contrary to the purposes and principles of the United Nations. I note that the United Nations Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1988) states:
148. At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of the States that war criminals should not be protected. There was also a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.
149. The competence to decide whether any of these exclusion clauses are applicable is incumbent upon the Contracting State in whose territory the applicant seeks recognition of his refugee status. For these clauses to apply, it is sufficient to establish that there are “serious reasons for considering” that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive.
179. The Handbook provides, at paragraph 150, that the definition of “crimes against peace, war crimes and crimes against humanity” comes from international instruments, the most comprehensive being found in the 1945 London Agreement and Charter of the International Military Tribunal. That definition, as contained in Annex V of the Handbook provides:
Annex V
EXCERPT FROM THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 31
Article 6
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian populations of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
The definition of war crimes and crimes against humanity has been broadened somewhat by the Rome Statute of 1998. Article 7 of the statute relevantly provides as follows:
Article 7
Crimes against Humanity1. For the purposes of this Statute, crimes 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:
…
(f)Torture;
…
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2.…
(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;”
Article 8 of the Rome Statute relevantly defines war crimes as follows:
2.For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i)Wilful killing;
(ii)Torture or inhuman treatment, including biological experiments;
(iii)Wilfully causing great suffering, or serious injury to body or health; …
The applicant does not concede that Afghanistan was under Soviet control after the bulk of the Soviet forces departed in 1988. Presumably that would bear on the question of whether any acts committed by him after 1988 could constitute war crimes. Under the Rome Statute, however, the Afghan conflict after the Soviet retreat could constitute “an armed conflict not of an international character” during which war crimes could be taken to have been committed:
Article 8
War Crimes2 …
(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; …”
The applicant did not dispute that the acts particularised against him would, if proven to the required standard, constitute crimes against humanity.
180. Nor is it disputed that the applicant was a member of KhAD from 1987 (not 1986 as alleged) and 1989. The evidence does not, however, establish that he was anything other than a conscripted soldier in a security battalion. Because of his educational and party background he was appointed to a propagandist role at battalion headquarters and remained in that position for the whole of his military service. That does not constitute disentitling conduct within Article 1F. Serving an occupying power in a propaganda role has I think on occasion been treated as a war crime, as in the case of Pierre Brasillach, who worked as a journalist in German-occupied France, but no such allegation was made against this applicant and in any case his role was much less prominent than Brasillach’s.
181. I find that the evidence does not establish to the required standard the other alleged acts of disentitling conduct, despite the inadequacies in the applicant’s own evidence. If witnesses CD1 and CD2 had been able to give a convincing description of the applicant and had confidently identified his photograph I might have reached a different conclusion, despite the shortcomings of the photograph identification procedures used and the applicant’s inability to cross-examine the two witnesses. But I could not escape the impression that CD1 and CD2 were describing someone other than the applicant. That is especially so as there appears to have been a KhAD officer named SRHHH, but not the applicant, torturing and murdering suspects in the Kunduz area, and possibly the Kabul area, at the relevant time. Besides, there is strong evidence to show that the applicant did not start to use the surname SRHHH at all until he was serving as a diplomat in 1996.
182. In reaching these conclusions I have given great weight to the circumstantial but crucial evidence of Dr Lafraie, Dr Dardmal and Ambassador Panjshiri who, as supporters of the Afghan Resistance, could not be suspected of partiality towards the applicant.
The applicant’s detention
183. At various times in the proceedings, the applicant’s counsel emphasised what he submitted was the injustice of the applicant’s having been detained for almost six years as a result of accusations instigated by certain Afghan refugees. In view of the conclusion I have reached on this application, it is indeed most unfortunate that the applicant had to spend such a long period in Villawood pending the resolution of these proceedings. Yet something more needs to be said about that aspect of the case.
184. First, if all the evidence that the applicant was able to adduce in these proceedings had been available at the time of the original hearing, his detention might have ended in 2001. I do not suggest anyone is to blame for that, but it is the fact. Secondly, it must be pointed out that the applicant was to some extent the author of his own misfortune. He came to Australia with his family in September 1999 on visitor visas when it is obvious that he had no intention of leaving Australia when those visas expired. Even when in detention he could have made a monitored departure whenever he wished. His assertion that while second secretary at the Afghan embassy in Damascus he developed a sudden desire to take his entire family on a costly tourist excursion to the other side of the world is simply not credible. To that extent he presumably obtained his visitor visas through false representations concerning his intentions. If he had applied for a protection visa while still in Damascus, he might well have been successful, as his application would probably not have attracted the attention of the Australian Afghan community.
185. Further, his own evidence about the nature of his association with KhAD and his activities between 1986 and 1989 generally, and notably his tactics of continually pleading an implausible ignorance and of denying the undeniable, could only reinforce suspicions that the allegations against him were true. Finally, and most importantly, he had voluntarily and actively collaborated with a régime which he well knew had committed, and was committing, atrocities of genocidal proportions against his own people. He aspired to a career with that régime and was prepared for it through six years of training in Moscow. On his return to Afghanistan he was a valued party cadre who worked as a propagandist both in civilian life and during his conscripted service with KhAD. He has never repudiated his association with the PDPA and remains an apologist for it to this day. It was hardly surprising that such a person would be suspected of crimes such as those alleged, especially as the evidence makes it probable that a KhAD officer named SRHHH was in fact committing such acts in Kunduz and Kabul at the relevant time.
Conclusion
186. I therefore conclude that there are not serious reasons for considering that the applicant has engaged in disentitling conduct within Article 1F and the matter is remitted to the respondent for reconsideration on that basis.
I certify that the 186 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 28 February 2005, 1 March 2005, 8 March 2005, 23, 24, 25, 26, 27, 30 and 31 May 2005, 2, 3 and 7 June 2005, 5 July 2005, and 25 and 26 August 2005
Date of Decision 14 October 2005
Counsel for the Applicant Mr J HydeSolicitor for the Applicant Mr M Vincent, Truman Hoyle Lawyers (formerly of Griffin Vincent IT & IP Lawyers)
Counsel for the Respondent Mr J Smith
Solicitor for the Respondent Mr R White, Sparke Helmore
- AGLC
- "SRHHH" and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020
- Case
- [2005] AATA 1020
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant was a person to whom Australia owed protection obligations and if there were serious reasons for considering that the applicant had engaged in conduct that would exclude them from refugee status under Article 1F. The court examined the applicant's involvement in the secret police, KhAD, during the Soviet occupation of Afghanistan, and whether they were involved in the torture of Afghan citizens. Additionally, the court had to determine the standard of proof required for such allegations and assess the evidence provided by the applicant.
The court found that there were not serious reasons for considering that the applicant had engaged in the conduct alleged against them. The evidence presented did not sufficiently establish the applicant's membership in KhAD or their involvement in torture. The court emphasised that the standard of proof must be met beyond a reasonable doubt, and in this case, it was not satisfied. The court also considered the background of the Soviet invasion and occupation of Afghanistan, the activities of KhAD, and the applicant's military service. Ultimately, the matter was remitted to the respondent for reconsideration, as the tribunal found that there were not serious reasons for considering that the applicant had engaged in disentitling conduct within Article 1F.
The court's decision led to the remittal of the case to the Minister for Immigration and Multicultural and Indigenous Affairs for reconsideration in light of the tribunal's findings. The court did not impose specific orders beyond this remittal, leaving it to the Minister to review the application afresh, taking into account the tribunal's determination that there were not serious reasons for considering the applicant had engaged in conduct that would exclude them from refugee status.
Orders
Orders of the court
The tribunal finds that there are not serious reasons for considering that the applicant has engaged in disentitling conduct within Article 1F and remits the matter to the respondent for reconsideration on that basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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