"SRIII" and Minister for Immigration and Multicultural Affairs
[2001] AATA 945
•16 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 945
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/722
GENERAL ADMINISTRATIVE DIVISION )
Re SRIII
Applicant
And Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date16 November 2001
PlaceSydney
Decision The Tribunal affirms the decision under review
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – protection visa – whether Applicant committed a "serious non-political crime outside Australia prior to admission" – whether Applicant thereby excluded from the protection afforded by the 1951 Convention relating to the Status of Refugees
JURISDICTION – whether Tribunal must first consider if Applicant is a "refugee" as defined in Article 1 of the Convention before considering whether Applicant is excluded from the protection afforded by Article 1F of the Convention
Convention relating to the Status of Refugees , 28 July 1951, Geneva: Articles 1A, 1F(b)
Customs Act 1901: ss 35, 235
Drug Misuse and Trafficking Act 1985 (NSW): s 25(2)
Migration Act 1958: ss 36(1), 36(2), 65, 500(1)(c)
Migration Regulations 1994: Schedule 2, clauses 785.111, 785.221
Dhayakpa v Minister for Immigration and Multicultural Affairs (1995) 62 FCR 556
Igor Ovcaharuk v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 289
R v Blanco Bello Ferrer-Esis (1991) 55 A Crim R 231
"WAR" and Minister for Immigration and Multicultural Affairs [2001] AATA 475
REASONS FOR DECISION
R P Handley
This is an application by SRIII ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 24 May 2001 to refuse SRIII's application for the grant of a Protection (Class XA) Visa.
At the hearing, the Applicant was represented by Alister Abadee, of Counsel, and the Respondent was represented by Paul Hardman, Solicitor, of Clayton Utz 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 documents tendered by the parties. Evidence was given by SRIII.
BackgroundSRIII was born in Teheran on 25 January 1964 and is aged 37. He undertook his High School and Junior College years in New York between 1976 and 1981 and, in 1981 and 1982, studied for a degree in marketing management in Germany. He undertook military service between 1983 and 1985, served in marketing positions between 1986 and 1992, when he commenced running a shop called "Modjdeh", in Teheran opposite Mellie University (the Teheran national university) selling books, computers, and parts and providing faxing and photocopying services etc. The bookshop's clientele was predominantly university students and academics from the university. During the years 1992 to 1994, he also completed a degree in marketing management and analysis management at Azad University in Teheran.
SRIII married Frida Shakoori Partovi from whom he was divorced in 1991. They have a daughter, Foujan who is about 9 years old and lives with her mother in Teheran.
During the time he ran the bookshop, SRIII was visited on a number of occasions by members of the local Basij, a core of volunteers who patrol Iran enforcing Iran's official version of Islamic morality. On one occasion, the bookshop was searched and a book found dealing with the fall of the Shah's regime. SRIII was then arrested by the Basij and detained for 3 days without being charged. In or about July 1993, the head magistrate of the Revolutionary Court, without finally determining the charges arising from the search of the bookshop and the seizure of the text about the Shah, sent SRIII to prison indefinitely. He was held in prison for approximately one month. Not long after he was released from prison, he was again visited by the local Basij who took his photocopier. Shortly thereafter, he decided to close his bookshop.
During the period 1994 to late 1995, SRIII worked as a purchaser for the Ghasemi Company, which involved extensive travelling. In or around August 1995, SRIII received a letter from the Revolutionary Court requiring him to appear before the Court on a specified date. He did not appear before the Court on that date and, on the following day, local police visited his home with a warrant for his arrest. He was not then home, nor on days in September and October 1995 when the police again visited his home with a warrant for his arrest. After the last visit to his home in October 1995, SRIII left Iran and travelled to Turkey, and from there he flew to Indonesia in about January 1996.
SRIII remained in Indonesia from January 1996 until arriving in Australia illegally on 17 December 2000. While SRIII was living in Indonesia and after he ran out of money, for a period of two months in early 1997, he acted as a go-between for a person bringing drugs into Indonesia from Thailand and was paid a small commission for each transaction. His job was to relay messages and did not involve actual handling of drugs. SRIII then tried to distance himself from these operations because, he said, he did not want to be involved in drugs. However, in late 1997 when he had again run out of money, he acted as a courier within Indonesia of three or four packages of what he later admitted to be quantities of heroin. The quantities involved were between 300 and 450 grams and, on the last occasion, approximately 500 grams. After about the third delivery, SRIII told the drug dealer, that he no longer wanted to be involved. As a result, he was beaten up on several occasions during the course of 1998.
At about this time, SRIII went to see a counsellor at the Iranian Embassy, who was able to give him some small jobs around the Embassy and help him financially. Then in 1999, he did some marketing work for a Korean company and, in early 2000, he opened a small restaurant. However, his Indonesian business partners reneged on the agreement and he was shut out of the business in which he had invested most of his savings. Thereafter, for about 4 months during 2000, SRIII stayed with friends, an Indonesian family. He planned to travel to Australia, but did not trust the people smugglers in Jakarta. In early October 2000, he went to the Australian Embassy in Jakarta and was interviewed by Ken McArthur (Supplementary T documents, p97).
On 17 December 2000, SRIII arrived at Boigu Island in the Torres Strait by speedboat from Indonesia. He was not assisted by a people smuggler. He was detained on Boigu Island on that day and, on 19 December 2000, he was interviewed by Departmental officers. He was interviewed again in Canberra on 4 January 2001. On 12 January 2001, SRIII applied for a protection visa (T7). At that time, he was being held in Villawood Detention Centre, where he is still being held. On 24 May 2001, SRIII's application for a protection visa was refused on the basis that he was excluded from refugee protection by Article 1F(b) of the UN Convention relating to the Status of Refugees of 28 July 1951. On 28 May 2001, SRIII lodged an application for a review of that decision by the Tribunal.
Applicable legislationSection 36(1) of the Migration Act 1958 ("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.
Section 65 requires the Minister to grant a visa where satisfied that there is a valid application which 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. SRIII applied for a Protection (Class XA) Visa. This class includes two sub-classes: sub-class 866 – Protection, and sub-class 785 – Temporary Protection. A sub-class 866 Protection Visa is a permanent visa. The requirements for the issue of such a visa include that, at the time of the person's last entry to Australia, the applicant was the holder of a visa. There is no dispute that because SRIII did not hold any valid travel documents on arrival in Australia, he is not eligible for a sub-class 866 Protection Visa. Thus, the only protection visa open to him is a sub-class 785 Temporary Protection Visa.
The Migration Regulations provide in Schedule 2, clause 785.22, that among the criteria to be satisfied at the time of the decision are:
785.221 The Minister is satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention
In 785.111, "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.
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;
However, Article 1 of the Convention also excludes certain persons from the protection obligations which state parties agreed to afford refugees. In particular, 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.
Of relevance in SRIII's case, is paragraph (b).
The jurisdiction of the Tribunal to review decisions under the Act is set out in s 500(1). This states, relevantly:
(1)Applications may be made to the Administrative Appeals Tribunal for review of:
(a) …
(b) …(c)A decision to refuse to grant a protection visa, or to cancel a protection visa relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 (2);
Issues
The decision under review is a decision of a delegate of the Respondent to refuse SRIII the grant of a Protection (Class XA) Visa on the ground that he was excluded from refugee protection by Article 1F(b) of the Convention. The delegate found that SRIII's involvement in negotiating illicit drug deals involving heroin in Indonesia, together with the transportation of heroin on three or four occasions, were serious non-political crimes committed outside Australia prior toSRIII's admission to Australia. He was thereby excluded from refugee protection by Article 1F(b) of the Convention.
The first issue for the Tribunal to consider is the extent of its jurisdiction in this matter. In particular, is it necessary for the Tribunal to consider whether SRIII is a "refugee" within the meaning of the definition of the term "refugee" in Article 1 of the Convention? The second issue for the Tribunal is whether SRIII is excluded from the protection afforded by the Convention by virtue of Article 1F.
The Tribunal's JurisdictionWith regard to the first issue, the Tribunal's jurisdiction, the Applicant submitted the Tribunal could not make a determination with respect to Article 1F without first making a determination as to whether the person is a refugee. Mr Abadee referred the Tribunal to the words of Article 1F(b) which refer to the person having "committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee" [emphasis added].
Mr Abadee contended that the Tribunal's jurisdiction in this matter also extended to a consideration of whether the Minister's discretion to grant a visa under s 501(1) should be exercised where the person does not satisfy the Minister that the person passes the "character test".
By contrast, the Respondent submitted that the Tribunal's jurisdiction as set out in s 500(1)(c) of the Act is limited to reviewing the delegate's decision based on the application of Article 1F of the Convention. Mr Hardman contended the Tribunal has no jurisdiction to make a decision about whether SRIII has a well-founded fear of persecution, so as to come within the meaning of "refugee" in Article 1A of the Convention. Mr Hardman said the proper forum for consideration of whether a person is a refugee is the Refugee Review Tribunal ("the RRT").
In support of his submission, Mr Abadee referred the Tribunal to the United Nations, High Commissioner for Refugees ("UNHCR"), Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1992 ed), which states at paragraph 141, in relation to exclusion clauses:
Normally it will be during the process of determining a person's refugee status that the facts leading to exclusion under these clauses will emerge.
Mr Abadee also referred the Tribunal to the decision of the Federal Court in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, where French J endorsed the approach adopted by the RRT of first of all determining whether the Applicant was a refugee and only then deciding whether the exclusion in Article 1F (b) applied.
The Tribunal determined that the application of the Article 1F(b) exclusion could be determined without reference to the question of whether the person is a "refugee". The Tribunal had regard to the scheme of Commonwealth Administrative Review, whereby decisions as to whether or not a person is a refugee are reviewed by the RRT, and to s 500(1)(c) of the Act which gives specific jurisdiction to the Tribunal only in relation to matters involving the refusal or cancellation of a protection visa relying on the application of particular articles of the Refugee's Convention including Article 1F. In the current matter, the Tribunal's jurisdiction is limited to a consideration of whether the exclusion in Article 1F should be applied without reference to the question of whether or not SRIII is a refugee. While the delegate may have referred in his/her decision to issues relevant to the exercise of the Minister's discretion under s 501(1), it is clear to the Tribunal that, in the present case, the delegate's decision was made solely on the application of Article 1F of the Convention. Thus, the Tribunal focussed on whether or not Article 1F applied in SRIII's case and did not consider whether or not SRIII was a refugee within the meaning of Article 1A of the Convention.
The Applicant's Submissions on the Application of Article 1FMr Abadee submitted that the question whether SRIII committed a serious non-political crime involves an evaluative judgment about the nature of the crime. He referred the Tribunal to French J's decision in Dhayakpa (supra) at 563, where he said:
The adjective "serious" in Article 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime.
This approach was followed by the Tribunal in "WAR" and Minister for Immigration and Multicultural Affairs [2001] AATA 475, where the Tribunal also recognised the need to have regard to any "mitigating factors".
The Tribunal was also referred to discussion of the concept of "serious crime" by Professor G S Goodwin–Gill in The Refugee in International Law (Oxford: Clarendon Press, 1996, 2nd edition) (A3). Professor Goodwin-Gill refers to a proposal made by the UNHCR in 1980 in relation to applications for asylum by Cubans arriving in the United States which suggests that a presumption of the seriousness of certain crimes, including drug trafficking, should be capable of rebuttal by evidence of mitigating factors. Such mitigating factors include the minority of the offender, the lapse of time since the conviction or completion of any imprisonment, whether the offender was merely an accomplice, and other circumstances surrounding the commission of the offence. Mr Abadee also referred the Tribunal to the UNHCR Handbook (supra) which states (at para 157):
In evaluating the nature of the crime presumed to have been committed, all the relevant factors – including any mitigating circumstances – must be taken into account
Mr Abadee contended that in applying the exclusion clause, it is necessary to strike a balance between the nature of the offence committed and the degree of persecution feared if the person were to be returned to their country. Paragraph 156 of the UNHCR Handbook states:
In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him.
Mr Abadee referred to "Note on the Exclusion Clauses" prepared by the Standing Committee of the Executive Committee of the High Commissioner's Program, dated 30 May 1997 (A2), which states in paragraph 18:
Even if the serious and non-political nature of a crime is established, a "balancing test" must be applied before this exclusion clause may be invoked. This test ensures that exclusion does not result in greater harm to the offender than is warranted by the alleged crime. Thus, its seriousness should be weighed against the level of persecution likely to be faced by the offender in the country of origin. If the persecution feared is so severe as to endanger the offender's life or liberty, then only an extremely grave offence will justify the application of this exclusion clause.
Moreover, Mr Abadee pointed to a discussion of Article 1F by Professor Goodwin-Gill (supra), at page 106–107 (A3), where he states:
In practice, the claim to be a refugee can rarely be ignored, for a balance must also be struck between the nature of the offence presumed to have been committed and the degree of persecution feared. A person with a well-founded fear of very severe persecution such as would endanger life or freedom, should only be excluded for the most serious reasons. If the persecution feared is less, then the nature of the crime or crimes in question must be assessed to see whether criminal character in fact outweighs the Applicant's character as a bona-fide refugee.
This statement is also supported by J C Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), where the author says at page 224 (A4):
Finally, and perhaps most important, the risks associated with exclusion from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment. Even though a claimant may be a serious criminal, it is possible that the heinous nature of the persecution anticipated in her state of origin counters the extradition-derived logic of her return.
Mr Abadee contended that French J's statement in Dhayakpa (supra), at page 563, concerning balancing was not correct. His Honour stated:
There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin.
Mr Abadee noted that this issue was not dealt with by the Full Federal Court in Igor Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 289. Mr Abadee concluded his comments on this issue in his written submission in the following terms:
28. The exclusion clause in Article 1F should be construed narrowly, so as not to undermine the integrity of international protection: EXCOM Standing Committee Note on Exclusion Clauses, supra, par 5. [A2]. The Applicant does not dispute that an important policy underlying the clause is to protect the order and security of the protective state, but by excluding any and all consideration of the likely harm to be suffered by the Applicant, and/or the mitigating circumstances surrounding the Applicant in criminal activity, it is submitted, with respect, that the proposition of law contended by French J construes the exclusion clause too broadly.
29. By applying the French J test, without recourse to considering other mitigating factors pertaining to the Applicant's circumstances, and/or the nature and risk of persecution should the Applicant return to Iran, the delegate could not reasonably find that there were serious reasons for considering that the Applicant committed a non-political crime.
Respondent's Submissions on the Application of Article 1F
Mr Hardman, for the Respondent, submitted that the test in relation to the factual matters required to be established under Article 1F is that there are serious reasons for considering that a person "has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". He referred to French J's judgment in Dhayakpa (supra), at 563, where he said:
The use of the words "serious reasons for considering that" suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts
Mr Hardman said notwithstanding that the provisions of the Convention are beneficial and are not to be given a narrow construction, the exemption in Article 1F (b) is protective of the order and safety of the receiving State: Dhayakpa (supra) at 565. Therefore, the question of whether there are serious reasons for considering that the person "has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee" may be answered by reference to notions of serious criminality accepted within the receiving State: Ovcharuk (supra), at 300.
Mr Hardman noted that in Dhayakpa (supra), at 563, French J, whilst acknowledging that the adjective "serious" in Article 1F(b) "involves an evaluative judgment about the nature of the allegedly disqualifying crime", nevertheless, noted that there is no obligation under the Convention "to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin".
Applicant's Submissions on the FactsMr Abadee said there were two aspects of SRIII's involvement in the drug trade while he was Indonesia: first, he acted as a "middle man" on approximately ten occasions over a three month period, and, second, he acted as a courier on three or four occasions. Mr Abadee contended that the Applicant's evidence suggests a range of mitigating factors that give context to his involvement as a "middle man". Those factors, which were not taken into account by the delegate, include:
(a) his inability to get a job in Indonesia, having lost his passport;(b)having no other means, at that time, to support himself or his brother who was then staying with him and, to provide support for his girlfriend when she was pregnant and after she had her child;
(c)his fear of being forced to return to Iran (following apprehension by the Indonesian authorities); and
(d)his role, at that stage, being that of a conduit of information.
Mr Abadee referred the Tribunal to the Applicant's statement dated 5 September 2001 giving an account of these matters (A1, paras 31, and 37-39).
Mr Abadee said the second aspect of SRIII's involvement in the drug trade was more serious. It occurred in late 1997/early 1998, after SRIII tried to distance himself from his previous connection with the drug trade. However, SRIII believed his contact: "Jimmy was quite big and powerful now, I felt intimidated and scared by him and felt I could not refuse" (A1, para 45). After acting as a courier for drugs on three occasions, SRIII told Jimmy that he no longer wanted to be involved. There followed two incidents when he was beaten up, which he believes were connected with his withdrawal from involvement in the drug trade.
Mr Abadee submitted that the nature of the harm likely to be suffered by SRIII should he be returned to Iran should also be considered in relation to the question whether the criminal conduct was sufficiently serious to attract the operation of the exclusion clause. If SRIII is returned to Iran:
(a)he is likely to be arrested, detained and imprisoned on account of the political opinions imputed to him by the authorities;
(b)if released, he is unlikely to be able to find sustainable employment or to sustain a business on account of the political opinions imputed to him;
(c)since SRIII's problems with the Iranian authorities commenced with his possession of a book by an American author on the downfall of the Shah, it is possible that as an Iranian perceived as an American sympathiser, he may experience greater persecution under revolutionary Islamic rule, including physical harm.
Moreover, Mr Abadee said SRIII's involvement in the Indonesian drug trade was precipitated by his desperate financial circumstances, and some of his involvement was as a result of duress.
Mr Abadee concluded that the delegate, by simply relying on the gravity of the offences and going straight to a consideration of the applicability of Article 1F(b), failed to take the above matters into account. In doing so, and by failing to apply the correct test, the delegate failed to make a proper decision on the evidence before him.
Respondent's Submissions on the Facts
Mr Hardman noted the admissions made by SRIII in relation to his involvement in the importation of narcotics from Thailand into Indonesia and trafficking in narcotics within Indonesia. Thus, Mr Hardman contended that there are serious reasons for considering that SRIII had committed serious non-political crimes in Indonesia prior to his admission to Australia. Mr Hardman referred to the record of interview between a departmental officer and SRIII on 15 February 2001 in which he made admissions about his involvement in the drug trade (Supplementary T documents, pp 108- 109). Mr Hardman said the crimes committed by SRIII had been accurately summarised by Mr Abadee in his submissions (see para 30 above).
With respect to SRIII's acting as a "middle man", Mr Hardman noted that it was SRIII who approached Jimmy, a Pakistani, and David, another Iranian, with a view to his being involved in drug-related activity (A1, para 38). Mr Hardman contended that SRIII had facilitated the importation of drugs from Thailand into Indonesia and not acted as a mere conduit of information as suggested. The essential character of drug supply involves people in such roles. With respect to his role as a courier, Mr Hardman said this was in many ways an escalation of the seriousness of the criminal conduct in which SRIII was involved. On at least one occasion, five hundred grams of a drug was involved. Mr Hardman said it was open to the Tribunal to infer that the drugs were, in fact, heroin, even if SRIII, in his statement, said that he only knew they were narcotics. Mr Hardman referred the Tribunal to the transcript of the departmental interview on 15 February 2001 (Supplementary T documents, S2 at pp 108-109) where SRIII admitted in relation both to his acting as a "middle man" and to his acting as a courier, that the substances involved were heroin.
Mr Hardman pointed out that under s 235 of the Customs Act 1901 (Cth)), the penalty for offences involving a trafficable quantity of narcotics (defined in the case of heroin as an amount of not less than 2 grams) is punishable by a maximum fine of $500,000 and/or a maximum term of imprisonment of 25 years. Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW, a person who supplies or knowingly takes part in the supply of an amount of a prohibited drug not less than the commercial quantity applicable to that drug is guilty of an offence punishable by a fine of $385,000 and/or 20 years imprisonment. A commercial quantity of heroin is defined as 250 grams.
In relation to any mitigation of the seriousness of the crimes committed, Mr Hardman referred the Tribunal to the decision of the New South Wales Court of Criminal Appeal in R v Blanco Bello Ferrer-Esis (1991) 55 A Crim R 231 where the Court, in a case involving the importation of a quantity of cocaine in excess of the trafficable quantity, commented, at 239, that "subjective features" referable to the defendant's background
can have little impact in the face of the need for the courts of this country to make it clear to others who are like minded that they will suffer severe punishment if they commit similar offences.
Mr Hardman referred to the factors put forward by the Applicant in mitigation. He said that a court in Australia would never entertain a person's inability to get a job as a serious mitigating factor in such an offence. He noted that SRIII's statement (A1) refers to the financial help he received from his parents (A1, para 41) and from his girlfriend (A1, para 42). SRIII also received financial assistance from a counsellor at the Iranian Embassy (A1, para 52). Mr Hardman noted it was ironic that SRIII should approach the Embassy for support when he was claiming persecution by Iranian authorities. All of this suggested that SRIII was able to call upon other means of support and he could have avoided involvement in the drug trade.
With regard to SRIII being intimidated or acting under duress in relation to his involvement with drugs, Mr Hardman noted that in the transcript of the departmental interview on 15 February 2001 (Supplementary T documents S2, p105), SRIII recounted his friendship with a police officer, Captain Suharto, whom SRIII alleged was also involved in the drug trade.
In conclusion, Mr Hardman submitted that SRIII committed a serious non-political crime: he had admitted doing so. That the crimes in question are serious is clear from an examination of Australian criminal law and from comments of the Australian judiciary. Mr Hardman rejected any notion of the need for a balancing exercise, a notion which was rejected by the Federal Court in Dhayakpa (supra), a decision which binds the Tribunal. Therefore, the Respondent contends that Article 1F (b) of the Convention applies to SRIII and the Tribunal should therefore affirm the delegate's decision.
The Tribunal's Application of the Law and FindingsAt the hearing, SRIII was called to give oral evidence, but apart from attesting to the truth of his statement (A1) and telling the Tribunal that he is currently detained in the Villawood Detention Centre, where he works in the kitchen and dining room, he gave no further evidence, and was not cross-examined. The Respondent seeks to rely on SRIII's admissions that he was involved in drug trafficking.
The question for the Tribunal is whether the non-political crimes involving drug trafficking that SRIII committed while in Indonesia are "serious". The Tribunal notes French J's explanation in Dhayakpa (supra) at 563, where he said:
The adjective "serious" in Article 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgment. But once the non-political crime committed outside the judgment of refuge is properly characterised as "serious" the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin.
The Tribunal notes that in the "WAR" case (supra), at paragraph 45, Deputy President Hotop understood making an evaluative judgment to include having regard to allegedly mitigating factors. However, in that case, he found the factors pleaded in mitigation did not significantly mitigate the seriousness of the Applicant's involvement in the crime of smuggling and distributing trafficable quantities of illicit drugs. He also discussed French J's statement in Dhayakpa, at 563, that "There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin". Deputy President Hotop considered those remarks apposite and said that the smuggling and distribution of illicit drugs (over the period 1992 to 1996) were so clearly to be regarded as a serious crime, "as to render inappropriate the kind of balancing exercise contended for" by the Applicant's counsel.
In the present case, the drug trafficking crimes to which SRIII has admitted while in Indonesia in the years 1997 to 1998, are regarded as serious non-political crimes in Australia. The quantities of drugs with which SRIII was involved, both as a "middle man" and as a "courier", would be regarded as trafficable quantities under s 235 of the Customs Act 1901 (Cth) and also probably commercial quantities under the Drug Misuse and Trafficking Act 1985 (NSW).
The Tribunal recognises the seriousness with which the Australian community regards crimes involving trafficking in drugs, particularly heroin. In making an "evaluative judgment", the Tribunal had regard to the mitigating factors identified by Mr Abadee on behalf of the Applicant. While the Tribunal accepts that because of his situation in Indonesia, SRIII found himself in financial difficulties and without valid documentation establishing his citizenship, nevertheless, SRIII was later able to find other avenues of financial support when he had stopped acting as a middle man and after his involvement as a drug courier. These included financial assistance from his parents and girlfriend, and from a counsellor at the Iranian Embassy in return for undertaking some work there. Moreover, the Tribunal does not regard his fear of being returned to Iran as a mitigating factor. In the Tribunal's view, taking the fear of being returned to Iran into account would have the same effect as entering into a balancing exercise of the kind that French J in Dhayakpa (supra) said the receiving State was under no obligation to conduct.
The Tribunal, therefore, concluded that SRIII did commit a serious non-political crime in Indonesia prior to his coming to Australia, thereby activating Article 1F (b), so that the provisions of the Refugee Convention do not apply in his case. Thus, the Tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 4 October 2001
Date of Decision 16 November 2001
Counsel for the Applicant Mr A Abedee
Solicitor for the Applicant Ms K Gibson, Allens Arthur Robinson
Solicitor for the Respondent Mr P Hardman, Clayton Utz
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