SRJJJ and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 264
•17 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 264
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/727
GENERAL ADMINISTRATIVE DIVISION )
Re SRJJJ
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr R P Handley
Date17 April 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant is not excluded from the provisions of the Convention Relating to the Status of Refugees of 1951 by reason of Article 1F of the Convention.
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – protection visa – Australia's obligations under the Convention Relating to the Status of Refugees Convention 1951 – meaning of refugee – Article 1F - whether applicant has committed crimes against humanity or serious non-political crimes – held that the need for 'serious reasons' to consider exclusion from protection is not satisfied.
Convention Relating to the Status of Refugees 1951 Article 1F
Migration Act 1958 ss 36(1) (2), 65, 91, 91(L), 500(1)(c)
Migration Regulations 1994
Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510
Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Polyukhovich v Commonwealth (1991) 172 CLR 501
SRIII and Minister for Immigration and Multicultural Affairs [2001] AATA 945
REASONS FOR DECISION
17 April 2002 Mr R P Handley
This is an application by SRJJJ ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 15 May 2001 to refuse the grant of a subclass 866 (protection) visa to the Applicant on the ground that he is not a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees of 1951 ("the Refugees Convention").
At the hearing, the Applicant was represented by Craig Colborne, of Counsel, and the Respondent was represented by Andras Markus, Solicitor, of the Australian Government Solicitor's Office. 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. Oral evidence was given in person by the Applicant, Zhelal Merovci and Bedri Venhari, and by telephone by Driton Beka.
BACKGROUNDThe Applicant was born in Kosovo on 20 October 1945 and is aged 56. He was married on 18 June 1972 and has five children, of whom the eldest is 27 and the youngest is 13. The Applicant claims to have worked as a police officer between 31 December 1972 and 23 March 1990. However, in some of the documentation his period of employment as a police officer is shown as ending in March 1999. The Applicant claims he was "thrown out of the police force" when the Serbian authorities took control on 23 March 1990. Thereafter, he ran a café until the town where he lived was occupied by the Serbian Army on 28 March 1999 when the Applicant and his family were forced to leave for Macedonia. In Macedonia, the Applicant and his family, comprising his wife and five children and two grandchildren, stayed in a refugee camp until being granted a subclass 448 temporary (safe haven) visa permitting them to travel to Australia.
The Applicant and his family arrived in Australia on 17 May 1999. Their initial visa, which was valid for 3 months, was subsequently extended on a number of occasions. By letter dated 14 November 1999 (T6), the Applicant requested that he and his family be permitted to remain in Australia until such time as it was safe for them to return to Kosovo. On 27 March 2000, a recommendation was made to the Minister (T7) that he exercise his power under s 91L of the Migration Act 1958 ("the Act") to permit the Applicant and his family to apply for a protection visa. On 30 March 2000, the Minister accepted this recommendation and exercised his power under s 91L in favour of the Applicant and his family members. The Applicant was advised of this decision by letter dated 3 April 2000 (T9).
On 11 April 2000, the Applicant and the eight other members of his family applied for protection visas (T11). Only the Applicant specifically claimed to be a "refugee". In the relevant part of the application, it is stated that the Applicant worked as a police officer from 1 December 1975 to March 1999. In answer to question 37 "what do you fear may happen to you if you go back to that country?", the Applicant stated he feared for his safety and that of his family from Albanian and Yugoslav citizens as a result of his working in the police force during which time he was "ordered to fulfil my duties which were: arresting, intimidating, imprisonment and sometimes I was forced to shoot". On 5 May 2000, the Applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the Department") at Parramatta. The transcript of that interview (S1) indicates that the Applicant may have worked as a police officer until 1999 and may have been involved in using force including beating suspects when making arrests.
On 15 May 2001, a delegate of the Respondent decided to refuse the Applicant's application for a protection visa on the ground that there were serious reasons to consider the Applicant had committed crimes against humanity or serious non-political crimes outside Australia prior to entry. Accordingly, the delegate found that the Applicant was excluded by Article 1F of the 1951 Refugees Convention from the protection afforded by that Convention. However, the other members of the Applicant's family have been accepted as persons to whom Australia owes protection obligations under the Refugees Convention (T20). On 31 May 2001, the Applicant lodged an application with the Tribunal for a review of the decision of 15 May 2001.
APPLICABLE LEGISLATIONSection 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.
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. The Applicant applied for a subclass 866 protection visa which is a permanent visa. 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 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".
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.
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 the Applicant the grant of a subclass 866 (protection) visa on the ground that he was excluded from refugee protection by Article 1F(a)(b) of the Refugees Convention. The Tribunal has previously determined in SRIII and Minister for Immigration and Multicultural Affairs [2001] AATA 945 at paragraph 21, that its jurisdiction to review decisions pursuant to s 500(1)(c) of the Act is limited to a consideration of whether the exclusion in Article 1F should be applied, without reference to the question of whether or not the Applicant is a refugee.
EVIDENCE
SRJJJ (the Applicant)
The Applicant confirmed that his statement dated 21 September 2001 (A1) is a true and correct statement. He said he is now working as a cleaner and living with his family in Merrylands. He arrived in Australia on 17 May 1999 on a temporary (safe haven visa) valid for 3 months. He acknowledged that the Minister had waived a condition of the visa that he could not apply for another visa while in Australia, on receipt of the Applicant's letter dated 14 November 1999 (T6). The Applicant said he was assisted in writing this letter by a friend, Mr Ujka, and his friend's wife/partner whose name is Jena. It was Jena who wrote the letter in English. Once again, in completing the application for a protection visa, the Applicant was assisted by his friend, Mr Ujka and his wife/partner, Jena. The Applicant said his friends translated the questions posed in the application form into Albanian for him and then Jena wrote his answers to the questions for him down in English.
The Applicant said he started work as a police officer on 31 December 1972. In the period before this, when the Applicant had worked in Rrieka in Croatia, the Applicant said he attended evening classes at school while working during the day. He returned to Kosovo to join the police force and initially attended a six month training course. Thereafter, he studied part-time at the Police Academy until about 1975 while also working.
The Applicant said he ceased being a police officer on 23 March 1990 when he was "thrown out of the police force" when the Serbian authorities excluded Albanians from such work. The Applicant said that he had told Mr Ujka that he ceased being a police officer on 23 March 1990 and had never told him that he had remained a police officer until March 1999. The Applicant said there must have been some sort of misunderstanding which was repeated during the course of the interview with a departmental officer on 5 May 2000 (S1). The Applicant was referred to the transcript of that interview where he was asked how long he had been a police officer. Initially, he answered from 1972 until 1990. However, after an apparent interruption by Mr Ujka, that date appears to have been changed to 1999.
The Applicant maintained that this was some sort of mistake or misunderstanding and that he had never stated that he had remained in the police force until 1999.
With regard to the duties which the Applicant undertook as a police officer, he said he was employed as a driver. His duties did not include arresting people and he was never involved in any intimidation, beating or the shooting of people. When the relevant section of his answer to question 37 in his protection visa application (T11) was translated for him, he said he was surprised and upset because he was not aware that his application had made such a statement. The Applicant said when completing the application form, he had told Mr Ujka that he had worked as a police officer and that it was unsafe for him to return to Kosovo.
In cross-examination, the Applicant was asked about his work as a police officer. He said his rank was "police first class" on joining and this was still his rank when he was thrown out of the police force in March 1990. The Applicant denied that he had ever told the departmental officer who interviewed him that he was a police inspector. He reiterated once again that the transcript of the interview (S1) contains many misunderstandings. He emphasised that his job was as a police driver, with responsibility for collecting and delivering people from and to the police station. The Applicant said while he was the main police driver, there were also four or five other drivers. He was also expected to look after the police vehicle.
The Applicant acknowledged that he did not arrest people suspected of committing crimes but denied saying that he had used force to "beat people up" in order to extract confessions and information. He denied ever having used force, or ever kicking or beating up people. The Applicant said he was not aware that other police used "torture techniques" although he did know that Serbian police had used such techniques. He denied saying that he sometimes had to shoot at people but agreed that he gave an example of shooting in order to scare a person. He denied saying that he sometimes had to beat up people in their own houses, but agreed that he had used a baton/stick in order to defend himself. He denied having beaten people who were attending political meetings.
The Applicant said that some of the incorrect statements contained in the transcript of the interview with the departmental officer (S1), are as a result of mistakes in the communication process between the interpreter and himself. He pointed out that the language the interpreter used was Albanian and that his own preference is for speaking in Croatian. The Applicant denied ever having deliberately made a false statement or exaggerating his claim. He further denied ever having claimed to have been employed as a police officer beyond March 1990.
Driton Beka
Mr Beka said he was a neighbour of the Applicant's in the town in Kosovo where they lived until 28 March 1999 when they were all forced to leave their homes by the Serbian police and paramilitary and flee to Macedonia. Mr Beka said he used to see the Applicant a couple of times a day in Kosovo, but, after fleeing their homes, did not see him again until they met in the East Hills Refugee Camp in Sydney. Since arriving in Sydney, Mr Beka has remained in regular contact with the Applicant and his family.
Mr Beka said he was aware of the Applicant being a police officer when he first knew him, but that he ceased to be a police officer in 1990 when the Serbians took over the running of governmental institutions. After that, Mr Beka was aware that the Applicant had gone to Switzerland for a year. When he came back, he opened a game shop for children in a part of his home and also drove a truck collecting wood from the forest and delivering this to customers. Mr Beka said he knows the Applicant is a hardworking, honest man who is friendly and helpful towards others in the community.
In cross-examination, Mr Beka recalled one incident when he had contact with the Applicant in his role as a police officer. Mr Beka had a problem with a group at a motel and called the police. When the police arrived, the Applicant was the driver of the police vehicle, although he also tried to calm the situation. When they all went to the police station, the Applicant tried to mediate between the groups present.
Zhelal Merovci
Mr Merovci said he is a pensioner living in Singleton. He was born and lived in the same town as the Applicant in Kosovo except for the last 12 months of his time in Kosovo, when he lived in Pristina. He came to Australia from Pristina. Mr Merovci said he was a professor of Albanian in Kosovo but for the last ten years worked as the Deputy Principal in a High School and for the last 12 months as a professor in a private American – Turkish college in Pristina. He said he has known the Applicant since 1985 and would generally see him in Kosovo two or three times a week, except when Mr Merovci was living in Pristina. He has maintained contact with him in Australia.
Mr Merovci said he was aware that the Applicant had been a police officer for some years before 1980. He did not know what duties he performed but often saw him driving a police car. He said he had never heard of the Applicant being involved in violence or brutality. The Applicant ceased working as a police officer in about 1990 when the Serbian authorities took over the police station in their town. After that, the Applicant opened a game shop in his house where he worked. Mr Merovci said the Applicant is a friendly, hardworking, honest and serious person who has always tried to help people.
Bedry Venhari
Mr Venhari was born and lived in the same town in Kosovo as the Applicant, a town with a population of approximately 36,000 including surrounding areas. He remained there until 12 February 2001 when he came to Australia. In Kosovo, Mr Venhari was employed as a storeman. He first met the Applicant in 1986 as a neighbour and saw him a couple of times on most days. They have remained in contact ever since.
Mr Venhari said he knew the Applicant was a police officer when he first met him. He saw the Applicant driving a police car but did not know what police duties he performed. However, he has never heard of the Applicant being involved in any kind of brutality or violence against others. Mr Venhari said the Applicant had stopped being a policeman in 1990 when the Serbian Government took over the Albanian Police. After this, the Applicant opened a game shop in his house and also worked with his truck delivering goods. Mr Venhari said the Applicant is a friendly, honest and good family man.
SUBMISSIONS
Mr Colborne, for the Applicant, referred the Tribunal to the Decision in Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889 where, at paragraph 54, Weinberg J stated:
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it can reasonably and properly be concluded that the Applicant has committed the crime alleged. To meet that requirement the evidence must be capable as 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.
Mr Colborne said if the letter to the Minister dated 14 November 1999 (T6) were true, the Applicant would not deny that there is strong evidence to bring the Applicant within the exclusions provided by Article 1F. However, the Applicant denies being involved in any such criminal acts and it is clear that the letter was written by the Applicant's friend and his friend's wife, since the Applicant was not literate in English.
With regard to the Applicant's interview with a departmental officer on 5 May 2000 (S1), the Applicant's same friend, Mr Ujka, accompanied him to the interview and gave answers at various stages. In particular, in answer to a question to the Applicant as to how long he had been a police officer, whereas the Applicant initially answered "from 1972 till 1990", when this was questioned by the departmental officer, Mr Ujka answered "1999". Mr Colborne referred the Tribunal to an answer given by the Applicant on p. 24 of the transcript where the Applicant indicates that he was not working as a police officer at the time the Serbian Army took over in 1999. Mr Colborne also referred the Tribunal to an answer from the Applicant at p.18 of the transcript where he is asked by the interviewer about whether anyone had ever ordered him to use illegal means to obtain a confession. The Applicant answered "No, but even if I had been told to do that, I would not do that because it is against the law and according to the law, I would be in jail". Moreover, Mr Colborne submitted that there was no evidence of any systematic violence by police in Kosovo until the Serbians took control in 1990.
Mr Colborne said the Applicant's evidence is that he was a designated police driver. It is quite credible that such a specific designation might have been made in a country where cars were, at the time, relatively scarce compared to developed countries. Mr Colborne noted that Mr Beka's evidence of the Applicant trying to calm down and mediate a dispute is not inconsistent with the sort of duties which might flow from being a driver.
Mr Colborne said in contrast to the Applicant's alleged involvement in police violence, is the strong evidence as to his character. For example, the letter dated 27 August 2001 from Professor Shefqet Popova of the local Mother Teresa Branch (A3) gives an account of the Applicant's charitable work over a period of ten years. The letter from the President of the District Court (A4) states there has been no accusation made against the Applicant. Moreover, the telephone evidence of Mr Beka as to the incident where the Applicant sought to mediate between the groups involved in an altercation, indicates that the Applicant's nature is not a violent one. He sought to calm the situation and mediate between the parties. None of the other character evidence suggests violence. The Applicant lived in a small town where, if he had been involved in any sort of violence, it is likely that people would have known of this. On the contrary, all the character evidence suggests that any criminal activity or violence would be completely out of character for the Applicant.
Mr Colborne also asked the Tribunal to bear in mind the remarks of Gummow and Hayne JJ in Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510, at 577:
Secondly, the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
Mr Colborne noted that at the time that the Applicant was interviewed by the departmental officer on 5 May 2000, he was not aware of the exclusions permitted by Article 1F. Mr Colborne submitted that, in any event, when one looks at the evidence in its totality, there is no strong evidence of the commission of a relevant crime on which to base the operation of Article 1F.
Respondent
Mr Markus for the Respondent, noted that the letter of 14 November 1999 addressed to the Minister (T6) was prepared with the assistance of the Applicant's friend, Mr Ujka and his partner. At the interview on 5 May 2000 (S1), the Applicant told the departmental officer that Mr Ujka and his partner also assisted the Applicant in completing the protection visa application: the Applicant wrote down the answers in Albanian which were translated by Mr Ujka's partner into English and inserted by her on the form. Mr Markus said the content of the Applicant's answer to Question 34 of the protection visa application, that the Applicant worked as a police officer until March 1999, is deliberately false because those Albanians who worked for the police after 1990 when the Serbian authorities took over policing functions, are perceived to be collaborators. Mr Markus referred the Tribunal to the advice from the UN High Commissioner for Refugees on this (S10). Mr Markus contended that it was clear from the transcript of the interview of 5 May 2000 (S1) that the Applicant had deliberately attempted to mislead the delegate, including giving a detailed explanation of how Albanians were able to go on working in the police force after the Serbian takeover in 1990. The provision of this information could not be explained away by problematic interpretation.
Mr Markus noted specific examples given by the Applicant of his police work at the interview. For example, the Applicant gave an example of a shooting incident at p.11 of the transcript and of the force used in arrest at pp. 13 and 19 of the transcript. The Applicant also gave evidence of beating up people to get them to confess, for example at pp. 14 and 16 and of the use of sticks and guns on p.17. On p.14, the Applicant indicated that this sometimes happened at people's houses and sometimes at the police station. While on p.16, the Applicant denied any involvement in torture, he did admit to using force. Mr Markus said the transcript of the interview suggests that the Applicant was involved in the regular infliction of physical violence, because this was expected of police officers in the performance of their duties. Mr Markus said the Applicant's evidence before the Tribunal was difficult to understand, in particular, his denial that he had ever been involved in doing any of these things as a police officer. His evidence was that he had only ever driven police vehicles. However, Mr Beka's evidence provides an example of his doing more than this and mediating in a dispute. In conclusion, Mr Markus submitted that the letter to the Minister dated 14 November 1999 (T6), the protection visa application (T11) and the transcript of the interview (S1) support a finding that there are serious reasons to believe the Applicant committed crimes against humanity or serious non-political crimes.
Mr Markus said that in view of the Applicant's most recent version of events, the Respondent accepts that the Applicant's employment as a police officer was terminated on or about 23 March 1990. However, the Respondent submits that this does not fundamentally affect the conclusions that the Tribunal ought to draw about the Applicant's activities during the 17 years of his employment as a police officer under the former Yugoslav regime. The Respondent contends that there are serious reasons for considering that in his employment as a policeman, the Applicant regularly engaged in cruel and brutal treatment of suspected criminals, that he routinely bashed and kicked suspected criminals in order to extract confessions from them, and that these actions are in breach of internationally accepted standards of justice and constitute a serious violation of people's human rights.
Mr Markus agreed that the statement by Weinberg J in Arquita (supra), provides appropriate guidance on what is meant by "serious reasons" when considering Article 1F. The Respondent submits that the fact that the Applicant now denies his former admissions as to having committed crimes against humanity does not detract from those former admissions. The Respondent submits that the exclusions provided by Article 1F (a) and (b) both apply. In respect of paragraph (b), the question is whether the conduct is a crime in Australia rather than a crime in Yugoslavia.
CONSIDERATION OF LAW AND FINDINGS
The issue for the Tribunal to decide is whether the Applicant is subject to the exclusionary provisions set out in Article 1F of the Refugees Convention. This requires that the Tribunal should be satisfied that "there are serious reasons for considering" that (a) the Applicant has committed a crime against peace, a war crime, or a crime against humanity, or (b) that he has committed a serious non-political crime prior to his entry into Australia. In Dhayakpa (supra) 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 a commission of one or other of the relevant crimes or acts…
In Arquita (supra), at 333, Weinberg J said, as cited above, 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. However, the evidence need not be of such weight as would be required to persuade the decision-maker on the balance of probabilities or beyond reasonable doubt.
Paragraph (a) of Article 1F, refers to the commission of a "crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes". One of the foundation definitions of "crimes against humanity" appears in the Charter of the International Military Tribunal (the "Nuremberg Charter"). Article 6(c) of the Charter relevantly states:
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.
In Polyukhovich v Commonwealth (1991) 172 CLR 501, at 596, Deane J said that the term "crimes against humanity" was:
"A convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connection with actual hostilities.
10.37.With regard to paragraph (b) of Article 1F, which refers to the commission of "serious non-political crime", French J said in Dhayakpa (supra), at 563:
the adjective "serious" in Art 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 country 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 issue for the Tribunal to determine is whether there is strong evidence to persuade the decision-maker that the Applicant has committed either (a) crimes against humanity, or (b) serious non-political crimes. The Tribunal will consider both (a) and (b) together since its findings of fact, below, relate to both. The Tribunal finds, on the basis of the Applicant's oral evidence which is supported by a letter from the United Nations Interim Administrative Mission in Kosovo dated 27 August 2001 (A2) and the oral evidence of Mr Venhari, Mr Beka and Mr Merovci, that the Applicant ceased working as a police officer on 23 March 1990 when the Serbian Authorities took over the running of governmental institutions in Kosovo, including the police force. The Respondent now also concedes, despite the Applicant's earlier statements to the contrary, that his employment with the police force was terminated on or about 23 March 1990.
The Tribunal accepts the Applicant's evidence that he commenced his employment as a police officer on 31 December 1972 as verified by the United Nations Interim Administrative Mission (A2). The Respondent having conceded that the Applicant's employment in the police force ceased in March 1990, the US Department of State Country Reports on Human Rights included in the Supplementary T Documents concerning Kosovo from 1993 onwards, the UN High Commissioner for Refugees' information on Ethnic Albanians in Kosovo, and the Department of Foreign Affairs and Trade information about Kosova Albanians are only of limited relevance, since the information provided relates largely to the period after 1990.
The Tribunal accepts the Applicant's evidence that his role in the police force was that of a driver. The verification provided by the UN Interim Administrative Mission (A2) states that he was employed as a "Police officer driver". This is also generally supported by the oral evidence of the other witnesses who refer to having seen the Applicant driving police cars. Inevitably, the Applicant would have performed other duties associated with or related to his work as a driver. Mr Beka's oral evidence of the Applicant's trying to mediate between antagonistic groups is not inconsistent with this.
As to the other claims purportedly made by the Applicant in the letter to the Minister dated 14 November 1999 (T6) and in his protection visa application (T11), the Tribunal notes that both these documents were completed with the assistance of the Applicant's friend, Mr Ujka and his partner. The letter and the protection visa application contain almost identical statements concerning the Applicant's work in the police force when he stated "So I was ordered to fulfil my duties which were: arresting, intimidating, imprisonment and sometimes forced to shoot". (T11). The Tribunal also notes that Mr Ujka was present during the course of the interview conducted by a departmental officer with the Applicant on 5 May 2000 (S1).
According to the transcript of this interview, the Applicant made various statements about his work as a police officer when he was involved in arresting people, beating, kicking and intimidating people, both in relation to their making a confession, whether at their homes or at the police station. When the Applicant was asked about these claims at the hearing, he denied that he had ever been involved in such conduct and, in relation to the interview, claimed that there must have been a problem in the translation of what was said. While the Tribunal considers that such extensive mistranslation is implausible, the Tribunal's assessment of the Applicant's character based on his evidence at the hearing, the oral evidence of the other witnesses and some of the other documentary evidence (for example the statement from the Mother Teresa Branch dated 27 August 2001 (A3) and the Certificate of the District Court (A4)) suggests that such conduct is out of character for the Applicant. In the Tribunal's view, the more likely explanation is that the claims made in the letter of 14 November 1999 (T6) and the protection visa application (T11) were exaggerated claims intended to advance the Applicant's visa applications. The Tribunal notes the comments made by Gummow and Hayne JJ in Abebe (supra), at 577:
The fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself
The evidence is that after the Applicant was thrown out of the police force in March 1990, he worked in Switzerland for about a year and then returned to his town in Kosovo where he opened a café and games shop and operated a truck collecting and delivering firewood. The evidence of the Applicant's character witnesses was that the Applicant is a friendly, honest and hardworking person who is considerate of others in the community. The letter from the local Mother Teresa Branch dated 27 August 2001 (A3), provided evidence that the Applicant had been a donor and volunteer for that organisation including using his own truck to deliver "food, clothing, and medicine, to the poor, ill and elderly people of Kosova for the last 10 years". None of this is consistent with a man who is alleged to have committed crimes against humanity or serious non-political crimes.
The Tribunal is not persuaded that there are "serious reasons for considering", in the sense of strong evidence, that the Applicant has committed crimes against humanity or serious non-political crimes in Kosovo prior to his fleeing Kosovo with his family and travelling to Australia. The Tribunal, therefore, sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant is not excluded from the provisions of the Refugees Convention by reason of Article 1F of the Convention.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 4 March 2002
Date of Decision 17 April 2002
Representative for the Applicant Mr C Colborne, Barrister
Representative for the Respondent Mr A Markus, Solicitor
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