SRL and Minister for Immigration and Multicultural Affairs - [2000] AATA 128

DECISION AND REASONS FOR DECISION [2000] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1996/690

GENERAL ADMINISTRATIVE DIVISION )

Re SRL
Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President Dr D Chappell

Date22 February 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

(sgd) Duncan Chappell
  ..............................................
  Dr D Chappell
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 866 refugee visa – refusal to issue – citizen of Sri Lanka – exclusion from protection by Article 1F(a) and (b) Refugee Convention by reason of serious reasons for considering that applicant had been engaged in activities which constitute crimes against the peace, crimes against humanity and serious non-political crimes – member of Janatha Vimukthi Peramuna (JVP) Party – father active member of JVP – inculcated with JVP's philosophies and principles from childhood – joined JVP to avenge father's murder by government forces – leadership responsibilities within JVP involving command of others – collecting and passing on information used by JVP in campaign of terrorism and assassination of political opponents – active and knowing participant – accessorial liability for crimes against the peace and humanity – gathering of information from banks for extortion of funds to support JVP's activities involving threats and extreme violence – accessorial complicity in offences of extortion constituting serious non-political crimes – Article 1F(a) and (b) applicable to exclude from protection by Convention.

Migration Act 1958 ss29, 31, 65(1), 500(1)(c)
Migration Regulations 1994 cls.866.111, 866.221
Refugees Convention Article 1F(a) and (b)
Charter of the International Military Tribunal at Nuremburg (the Nuremburg Charter)
SRL and Minister for Immigration and Multicultural Affairs (AAT 13312, 25 September 1998)
Todea v Minister of Immigration and Ethnic Affairs (1994) 35 ALD 735
X v Borsody (1997) 47 ALD 211
N96/1441 and Minister for Immigration and Multicultural Affairs (AAT 12977, 11 June 1998)
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Attef Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 15
Polyukhovich v The Commonwealth (1991) 172 CLR 501
Ramirez v Canada (1992) 89 DLR 4th 173
W97/164 and Minister for Immigration and Multicultural Affairs (AAT 12974, 10 June 1998)
Moreno v Canada (Minister for Employment and Immigration) (1993) 107 DLR (4th) 424
R v Finta (1994) 112 DLR (4th) 513
W98/45 v Minister for Immigration and Multicultural Affairs (aat 13450, 17 August 1998)
T v Secretary of State for the Home Department [1996] AC 742
Prevato v Metropolitan Remand Centre (1986) 8 FCR 338
Dhayakapa v Minister for Immigration and Multicultural Affairs (1995) 62 FCR 556
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 549
Cardenas v Minister for Employment and Immigration (1993) 23 Imm LR 244
Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463

Weisman, "Article 1F(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law" (1996) 8 International Journal of Refugee Law 111

REASONS FOR DECISION

22 February 2000 Deputy President Dr D Chappell

BACKGROUND
Application for Protection Visa

Mr SRL, a citizen of Sri Lanka, seeks review by the Tribunal of a decision, made by a delegate of the respondent on 17 November 1995, denying him a protection (residence) visa (sub class 866) under the provisions of the Migration Act 1958 (the Act). In refusing Mr SRL's application the delegate found that he had failed to satisfy him that he was a person to whom Australia had protection obligations under the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees (collectively referred to as 'the Convention'). This decision was made pursuant to s 65(1)(b) of the Act, and on the basis that Mr SRL did not meet the criteria prescribed by regulation 866.221(3) of the Migration Regulations 1989 (the Regulations).
Legislative Framework
The general granting of a visa is authorised by s 29 of the Act which provides, in part:

Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
travel to and enter Australia;
remain in Australia.

The Act makes provision for prescribed classes of visa (s 31(1)), while the Regulations may prescribe criteria for visas of specified classes (s 31(3)). Section 36 of the Act specifies a class of visas to be known as "protection visas". The criterion for a protection visa is that an applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention.
The Regulations, as authorised under the Act, may provide that a visa or visas of specified classes may only be granted in specified circumstances. Regulation 2.0.4 of the Regulations provides that for the purposes of s 40 of the Act, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2, are circumstances set out in that Part. Schedule 2 sets out various sub classes of visa. Sub class 866 is the protection (residence) visa. Clause 866.221 of sub class 866 requires that at the time of application for such a visa:
the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
makes specific claims under the Refugees Convention …

There is also a requirement that at the time of the decision the Minister must be satisfied that the applicant for a protection (residence) visa is a person to whom Australia has protection obligations under the Convention (clause 866.221(3)).
Article 1(a) of the Convention defines a refugee as a person who fulfils the following conditions:
… 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 of 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.
(See T5)

The application of this definition is qualified by Article 1F of the Convention which states:
the provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
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;
he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
he has been guilty of acts contrary to the purposes and principles of the United Nations.
(T5)

Application to Refugee Review Tribunal (RRT)

In reaching his decision to refuse Mr SRL's application for a protection (residence) visa, the Minister's delegate stated that:
Having considered all the claims, submissions, evidence and information relating to Mr SRL's 1992 and 1994 applications for refugee status, I am satisfied that he does not deserve protection under the Convention as he has committed crimes against peace. His case therefore falls within the parameters of Article 1F(a) of the Convention exclusion clauses.
(T1:23)

In notifying Mr SRL of its reasons for refusal of his protection visa the respondent indicated, incorrectly, that he could exercise a right of appeal to the RRT in regard to the decision. An appeal to the RRT was lodged on behalf of the applicant on 24 November 1995. Subsequently, it was realised that the right of appeal lay, under section 500 of the Act, to the Administrative Appeals Tribunal rather than the RRT. On 31 May 1996 Mr SRL then lodged his present application with the Tribunal, seeking review of the delegate's decision (T1: 2-3). On 18 June 1996 the Tribunal made an order pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, granting an extension of time for lodging of this review application. The Tribunal's jurisdiction to conduct such a review is to be found in s 500(1) of the Act which provides, in part:
Applications may be made to the Administrative Appeals Tribunal for review of …
(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);
(other than decisions to which a certificate under section 502 applies)

Hearing, Section 35(2) Order and Summonsed Evidence

This matter first came before the Tribunal for hearing on 17 March 1997. At the hearing Mr SRL was represented by Ms Elizabeth Wilkins, of counsel, instructed by Mr Leonard Karp. Mr SRL also appeared in person. The Tribunal was grateful for the assistance of Mr Edilberra Naveenan Rajadural, a Sinhalese interpreter, who was present to facilitate the giving of this testimony and the general presentation of Mr SRL's case.
The respondent was represented, initially, by Mr Neil Williams of counsel, instructed by Mr Paul Hardman. At a later stage in the proceedings the respondent was represented by Mr Richard Lancaster of counsel, instructed by Mr Gregory Peek.
The Tribunal had before it documents and supplementary documents filed for the purposes of section 37 of the Administrative Appeals Tribunal Act 1975 (T and S documents). The following exhibits were also received into evidence on behalf of the applicant and respondent:
Exhibit No.   Description Date
A1      Photocopy of front and back of applicant's Sri Lankan identification card with Sri Lankan translation of applicant's name underlined on back      29/7/86
A2      Photocopy of page from applicant's passport issued at Colombo      7/9/90
R1      Two tapes – interview with applicant      6/4/95
R2      Transcript of interview with applicant (partial version)   19/9/92
R3      Transcript of interview with applicant      6/4/95
R4      One tape – interview with applicant (partial version)     29/9/92
R5      Two tapes – interview with applicant (produced on summons 25/7/97) (full version)           29/9/92
R6      Transcript of interview with applicant (full version)       29/9/92
R7      Proof of evidence for Ms Kate Watson    16/4/97
R8      Statement by Mr Rajlachumanan Thevar (with agreed deletions)     29/4/97

At the outset of the hearing, because of the nature of the activities in which Mr SRL was said to have been involved in Sri Lanka, it was agreed that his real name would be suppressed and that the proceedings would take place in private. These restrictions were formalised by the Tribunal through the issue of an order made under s 35(2) of the Administrative Appeals Tribunal Act 1975.
The hearing of this matter continued on 12, 13 and 28 May 1997 when Mr SRL gave personal testimony to the Tribunal. The matter was then adjourned and a summons issued on behalf of the respondent seeking the production by the applicant of certain audiotapes made of an interview with the applicant on 29 September 1992. At a summons return hearing before the Tribunal on 6 August 1997 Mr Karp, the solicitor for the applicant, objected to the production of the tapes referred to in the summons. Further oral and written submissions were then made to the Tribunal on behalf of both parties regarding the validity of the summons and related issues. On 25 September 1998 the Tribunal determined that the summons was validly issued, was not inherently unfair or oppressive, and was not concerned with the production of materials that were protected by any privilege against self-incrimination. Accordingly, the Tribunal ordered the production of the tapes to the respondent (SRL and Minister for Immigration and Multicultural Affairs (AAT 13312, 25 September 1998). Following this ruling the matter came on for further hearing before the Tribunal on 3 and 4 December 1998. At the conclusion of the hearing, both parties indicated that they wished to make oral and written submissions to the Tribunal in relation to all of the evidence which had been presented, and the legal issues involved. For a number of reasons beyond the control of the Tribunal, including the indisposition of counsel, these submissions were not completed until 19 December 1999.
EVIDENCE
Context
Before turning to a detailed review of the extensive oral and documentary evidence before the Tribunal in this case it is helpful to describe the chronology of events that led to the present and protracted proceedings. This is in fact the second occasion upon which Mr SRL has sought the status of a refugee in Australia. His first application for refugee status was lodged with the respondent in May 1992 (T12:105). Mr SRL was subsequently interviewed by an official of the Department of Immigration and Multicultural Affairs (DIMA), Ms Kate Watson, in regard to this application. Also present at this interview, which was conducted on 29 September 1992, was another DIMA official, Mr Rajiachumanan Thevar. The interview, conducted without the aid of an interpreter, was tape-recorded. In addition, Ms Watson also made extensive notes of this interview (see in general T14-T20).
On 5 January 1993 Mr SRL left this country to return to Sri Lanka for reasons which will be described in more detail below. As a result of his departure the respondent, on 3 February 1993, advised Mr SRL that his application for refugee status had been refused because he had left Australia (T30:271).
On 8 July 1994 Mr SRL returned to Australia from Sri Lanka (S1:15). On 6 December 1994 he lodged a second application for refugee status (S1:2). This application was accompanied by a statutory declaration made by Mr SRL which was dated 18 November 1994 (S1:30-39). On 6 April 1995 Mr SRL and his solicitor attended an interview with a DIMA official, Mr Gerry Heyen, in regard to this second application for refugee status (S8: 57-64). This interview was tape-recorded and an interpreter was also present. A transcript of this interview was in evidence before the Tribunal (R3).
Following this interview the applicant's solicitors provided additional information to the respondent in support of Mr SRL's claims (S11). On 20 April 1995 the respondent gave the applicant written notice that it was considering whether he should be excluded from protection by virtue of Article 1F of the Convention (S12). This notice referred principally to information which had been provided to the respondent by Mr SRL during the course of the interview conducted with him in September 1992.
Following receipt of this notice the applicant's solicitor sought particulars from the respondent concerning the alleged crimes committed by the applicant which were said to give rise to exclusion under Article 1F (S15). The applicant's solicitor also wrote to the respondent answering in part certain of the factual allegations which had been contained in the written notice of 28 April 1995 (S16).
On 13 June 1995 the respondent provided further written advice to the applicant's solicitor regarding the legal issues to be considered in relation to the application of Article 1F of the Convention to Mr SRL's case (S20). The applicant's solicitor then made a lengthy written submission to the respondent in regard to both the law and the facts concerning the applicability of the exclusion clause to Mr SRL (S22). The submission was made on 29 July 1995. As stated earlier, Mr SRL's application for refugee status was ultimately rejected by the respondent on 17 November 1995.
Within this contextual framework it is proposed to examine the factual background and evidence in this case under four headings. First, information about Mr SRL's family and related association with Sri Lanka is examined, including links to the Janatha Vimukthi Peramuna (JVP) Party. Second, consideration is given to the first refugee application made by Mr SRL in May 1992, and the related interview conducted in September 1992 with Mr SRL by Ms Kate Watson. Third, the information supplied by Mr SRL in support of his second application for refugee status, and a related interview conducted in April 1995, is reviewed. Fourth, Mr SRL's personal testimony before the Tribunal is reviewed including his evidence with respect to the interview of 29 September 1992.
Sri Lankan Connections and the JVP
Mr SRL was born on 17 November 1969 in Kohuwala, a town located about 15 kilometres from the city of Colombo in Sri Lanka (S1:28-30). His father, a tea planter, grew up on an estate owned by Mr SRL's grandfather who was a medical practitioner. Despite enjoying what was described as a privileged upbringing, Mr SRL's father had left wing sympathies and joined the Sinhalese Maoist movement, the JVP, shortly after its foundation in 1967 by a group led by Rohana Wijeweere. In national elections held in 1970 the JVP supported the United Front Coalition which formed government. However, in March 1971 Wijeweere and over 4,000 of the JVP's members were arrested by the United Front government. As a result of this action the JVP launched a revolt in April which was quickly crushed and a state of emergency imposed. The JVP was then banned and its leader Rohana Wijeweere was eventually sentenced to life imprisonment in 1974. After the 1971 JVP insurrection Mr SRL's father left Sri Lanka and did not return to that country until 1978. His return followed the lifting of the ban on the JVP in 1977 and the release from prison of Rohana Wijeweere (S37:259; S1:30-31).
During the period of these political upheavals in Sri Lanka, Mr SRL was undergoing his formal education at various private schools. He completed his secondary schooling in 1986 and passed his examinations for the equivalent of the Australian Higher School Certificate. Mr SRL said that he was very close to his father and that he had the opportunity to read JVP publications at home and to also ask his father about his politics. However, Mr SRL also said that:
My father steered my brother and I away from politics. I believe that he wished to protect us from the extreme left influence which cost so many of the youth of the country their lives in 1971. In this way, I grew up with the JVP, but was always outside it.
(S1:31)
Mr SRL said that his father knew the leader of the JVP, Rohana Wijeweere, and other members of the JVP hierarchy very well. After the party had been legalised it renounced the use of violent methods and in 1983 Rohana Wijeweere participated in the presidential elections and took third place in the balloting. However, the JVP was again banned after communal riots took place in that same year (S37:259).
Throughout the 1980's Mr SRL's father remained an unofficial coordinator for the JVP in the Kalutara District where he resided. Mr SRL said that the family home became a kind of unofficial meeting place for members of the JVP hierarchy. This was not a problem while the JVP remained a legal organisation, but after its renewed proscription in 1983 Mr SRL's father received warnings about possible reprisals from pro-government groups who were aware of his support of the JVP. The JVP itself was involved in anti-government activities:
… JVP supporters were amongst 3,000 Sinhalese detained in early February 1987 in order to prevent reprisals against Tamils following the recent killings of 43 Sinhalese villagers by the Liberation Tigers of Tamil Eelam (LTTE – see separate entry). On April 15 a JVP unit raided an army camp near Kandy, seizing a number of automatic weapons. Late in May police arrested some 140 JVP members; at the same time six of the country's universities situated in predominantly Sinhalese areas were closed following allegations that student leaders were forming links with the JVP; and 18 trade unions with alleged JVP affiliations were proscribed. The government claimed that JVP guerrillas had, on June 7, launched simultaneous raids on military targets.
The JVP's avowed aim was "to protect the nation against an impending Indian invasion".
The JVP gained considerably in strength in the months following the July 1987 Indo-Sri Lankan Agreement, which it claimed conceded too much power to the Tamil minority. In the second half of 1987 the JVP was blamed for numerous political assassinations generally of officials and MPs of the ruling UNP. Secret negotiations with the government led to the lifting of the ban on the JVP on May 19, 1988, which had been in force since the outbreak of the Sinhalese-Tamil rioting in July 1983. In return, the JVP agreed to end political violence and surrender its weapons to Buddhist monks by May 29. However, it continued its assassination campaign in the run-up to the June provincial elections and supported along with the SLFP a general strike at the end of July in the southern provinces to mark the first anniversary of the Indo-Sri Lankan Agreement.
(S37:259)

During the evening of 17 October 1988 Mr SRL was at home with members of his family, including his mother and father. Between the hours of midnight and 1 am there was the sound of loud knocking at the door of the family home and a call of "police". When Mr SRL's father went outside he discovered that the house was surrounded by men who wore civilian clothes but were armed with military style weapons. The leader of this group indicated that they were taking Mr SRL's father into custody for interrogation and would be bringing him back to his home. In fact Mr SRL's father was neither seen nor heard from again and his family, including Mr SRL, concluded that he had been killed by government supporters. Mr SRL said that:
… it was at this stage that there welled in me a deep hatred of the UNP and their creatures and also a will to find the identities of my father's murderers.
To this end I approached the leaders of the JVP in Kalutara District and asked to join the party. I offered them the cover of my job and said that I could not promise to attend all classes and meetings, and that my motive in joining was to be able to identify my father's killers and take revenge.
From then on I involved myself in JVP activities …
(S1:32-33)
The nature of the JVP activities in which Mr SRL claimed to have been involved will be described shortly. However, the general nature of these activities between August 1989 and February 1990 has been summarised in the following way:
In August 1989 the JVP began to target the families of Sri Lankan armed forces members for attack, a move which aroused violent retaliation from pro-government vigilante groups. The death in police custody of Wijedasa Liyanarachchi, a lawyer and defender of JVP activists, prompted a JVP-led strike on Sept. 12, which effectively paralysed Colombo and many provincial towns. In late 1989 the JVP stepped up its violent campaign and throughout November mounted a series of disruptive strikes enforced by death threats against both workers and employers. However, in a ferocious counter-offensive the government effectively destroyed the JVP. Rohana Wijeweere, the JVP leader since its formation in 1967, and his deputy, Upatissa Gamanayake, were shot dead on Nov. 13 while in the custody of security forces and their bodies were cremated by the Army within hours, making a post mortem impossible. President Premadasa ordered an immediate enquiry into the circumstances of Wijeweere's death. JVP sources quoted in The Guardian of Nov. 15 claimed that Wijeweere had been interrogated then executed, and alleged that the Army was wary of delivering captured JVP members to the government in case they were given amnesties, as had happened in the past with large numbers of insurgents. Colombo radio reported on Nov. 25 that the entire JVP politburo and 25 district and area leaders of the organization's military wing had been apprehended by the security forces during the previous two weeks. It was estimated that in the month up to Nov. 15 there were 429 deaths. On Dec. 13 the JVP freed 220 prisoners, including many JVP detainees, after an attack on a prison in Colombo. In February 1990 the government stated that 6,700 suspected JVP members were being detained in prisons and security-force camps.
(S37:259-260)
Despite the scope of the government operations against the JVP, Mr SRL said that he was not detained until 7 April 1991. On that date Mr SRL was residing with his wife and child at Kalutara when, during the middle of the night, armed men in civilian clothes entered the house and stated that they had information that Mr SRL worked for the JVP and that they wished to interrogate him. Mr SRL was then taken to a police station where he was subjected to various forms of torture and doused in petrol. He was eventually released and after discussions with the JVP leadership it was decided that he should resign from the party and leave the country. He subsequently obtained a visa to Australia as a student, arriving here on 8 June 1991 (T11:102).
First Refugee Application and Interview: Surrounding Circumstances
Mention has already been made of the interview that was conducted with Mr SRL by Ms Watson on 29 September 1992 in connection with the application that had been lodged by Mr SRL for refugee status on 15 May 1992. It was the statements made during the course of this interview by Mr SRL that triggered the initial questions regarding his possible exclusion from protection as a refugee because the activities he claimed to have undertaken while associated with the JVP fell within the terms of Article 1F of the Convention.
In presenting the applicant's case, and in the written submissions made on his behalf, Ms Wilkins made it clear that it was the essence of the applicant's case that this interview was conducted in circumstances which placed him at a serious disadvantage. First, Mr SRL's ability to speak and understand English was inadequate at the time of this interview, particularly taking into account the serious nature of the matters raised in that interview. Second, there were aspects of the interview techniques used, such as the changing of topics without warning to the applicant, which disadvantaged him further. Third, he was not warned at the commencement of the interview that what he said would be kept confidential. Because the Tribunal had the advantage of hearing the applicant giving his evidence in person with the aid of an interpreter, it was submitted that his evidence before the Tribunal was to be preferred to the information contained in the 1992 interview wherever there was an apparent contradiction between the two accounts (applicant's submissions: paragraph 12).
Given these contentions advanced on behalf of the applicant, as well as the importance attached by the respondent to the information contained in this interview, the Tribunal proposes to examine in some detail the evidence surrounding the circumstances under which the interview was conducted, as well as what was said at this meeting. It should be noted that at the time of the initial hearing of this matter it was believed that the original tape recordings of the interview which had been made by the respondent were lost and that reliance therefore had to be placed upon a partial transcript of the interview in tandem with the notes taken at the time by the interviewing officer, Ms Watson. However, as a result of the issue of the summons referred to earlier, and the ruling made by the Tribunal, a complete transcript of the interview as well as a copy of the missing tapes was ultimately received into evidence by the Tribunal (see Exhibits R5 and R6).
Following the lodgement of his application for refugee status Mr SRL was advised by Ms Watson, in a letter dated 15 July 1992, that in order to investigate his claims it was necessary for him to be interviewed (T14). The letter explained the purpose of the interview and also indicated that when confirming his interview appointment Mr SRL should also advise whether or not he required the services of an interpreter and which language and/or dialect he would prefer that interpreter to speak. If required, an interpreter for the interview would be arranged by the respondent at no cost to the applicant (T14:151).
In a handwritten file note dated 14 September 1992 Ms Watson recorded the lack of availability of a Sinhalese interpreter for the date that had been set for Mr SRL's interview. The record also noted that as Mr SRL had stated in his refugee application that he did not need the services of an interpreter she (Ms Watson) would check with him whether the interview could proceed without one (T16). On the same date Ms Watson wrote to Mr SRL in the following terms:
Difficulties are [sic] arisen in arranging an interpreter for a day on which I can interview you. In your application you have indicated that you do not need an interpreter. Our policy is that we generally prefer to have an interpreter in attendance to assist when necessary, however, in this case, if you are confident of your ability to communicate and understand English, we can proceed without one.
If you would prefer to have an interpreter, I can give your case to another officer who works on a day that a Sinhalese interpreter is available. Please advise me of your preference by 23rd September so that your case can proceed.
(T17:158)
On 21 September 1992 Ms Watson again wrote to Mr SRL confirming the agreement reached in a telephone conversation on that date about the arrangements for the interview which was to take place on 29 September and that "as arranged with you, an interpreter will not be in attendance". The letter also contained an attachment, titled "Important Information About Your Interview", which it was suggested Mr SRL should read carefully before coming to the interview. This attachment included the following:
1.Confidentiality of Information

The information you provide in your interview is needed by the Department of Immigration, Local Government and Ethnic Affairs in order to determine whether you can be granted refugee status. The information you provide will be held in confidence and will not under any circumstances be passed to the authorities in your country of origin or their representatives in Australia or any other country.
The Department may pass on in confidence some or all of this information to Australian Government agencies which deal with you and your family on education, health, community services, social welfare, employment and labour, intelligence, law enforcement, taxation and statistics.
(T18:161)

As arranged, the interview with Mr SRL did proceed on 29 September 1992. As already noted (see paragraph 15 above) the principal interviewing officer was Ms Watson and another DIMA official, Mr Thevar, was also present as an observer. Both Ms Watson and Mr Thevar gave personal testimony to the Tribunal about what had occurred at this meeting with Mr SRL. (See in general, transcript 3 December 1998: 2-65; transcript 4 December 1998: 2-46). Ms Watson, a trained lawyer, indicated that she had experience interviewing refugees over a period of about two years prior to her questioning of Mr SRL. During that time she had conducted approximately 50 to 60 interviews but in only one prior case had the issue of the possible application of the exclusion clause in the Convention been raised.
During her examination in chief by Mr Lancaster, Ms Watson said that she had observed a range of English skills among the applicants that she had interviewed and that she assessed Mr SRL's capabilities to be "very fluent in English" (transcript 3 December 1998: 4). Ms Watson said that she had never been in any doubt that Mr SRL understood the gist of the questions she had asked and that if she had any doubts about his comprehension she would have called the interview off and arranged for an interpreter to be present. Ms Watson also said that during the course of her interview with Mr SRL it had been necessary to repeat or clarify certain questions but that in her experience this was not abnormal even with someone who was fluent in English.
Ms Watson was also asked about a file note that she had made on 4 January 1993 regarding a telephone conversation that she had had with Mr SRL (T3:28). That file note read:
Mr SRL rang – said that he is leaving tomorrow – that he has to go back to look after his wife (in Sri Lanka).
He said that he will write letter from Sri Lanka.
He said "if something happens to you I'll be very sorry".
When I asked why something would happen to me, he said because he has told me about everything.
He thanked me for everything I had done for him.
(T28:269)

Ms Watson said that she understood from the phrase "if something happens to you I'll be very sorry" that Mr SRL was threatening her. She said that as a result of this conversation and the interview she had with Mr SRL she was concerned about her personal safety (transcript 3 December 1998:7).

Ms Watson was cross-examined at some length by Ms Wilkins about her interview with Mr SRL. She said that she had not anticipated at the time of the interview that he might be a person who could become liable under the exclusion clause and that she had been quite surprised by the information that did come out during the interview (transcript 3 December 1998:10). Ms Wilkins put the following specific question to Ms Watson about the absence of an interpreter at the interview:
Would you agree with me that the lack of an interpreter in a situation such as this can put a person or does put a person like the applicant at a disadvantage, whether it be major or minor, but certainly at a disadvantage because it is not his native tongue that he is being interviewed in?---Well I think that he was here as a student. He had been here for some time in Australia at that time. He was familiar to hearing English and he had indicated that he could speak, read and write in English. He would have undergone some sort of English testing before he was given a student visa in Sri Lanka. I think that he was - you know, if we had had an interpreter there, it's quite likely that the whole interview would have been conducted in English anyway.
Well I am asking you, obviously the point of arranging an interpreter is so that people will not be at a disadvantage?---It's to help them to explain difficult concepts. Many people don't actually arrange an interpreter if they have a fluent English client but I do just in case somebody has a difficult concept that they want to try to get across.
But would you not agree with me that someone whose native language is English would be better able to tell their story than someone who only has English as a second language and is not accustomed to communicating in English?---Well if someone is fluent in English, they're able to express what they want to say.
By fluent, do you mean that they sound as though they can give a sentence without hesitation, is that what you mean by fluent?---No I mean that they are able to understand questions that are given to them and they are able to respond, demonstrating that understanding.
Yes. But you see, whether or not they understand is not really something that you would be able to pronounce upon is it? I mean people can think that they are understanding something and answer, yes and it can turn out that they have completely misunderstood the question. That is a problem is it not?---Well I think in the course of an interview you are able to assess whether somebody is actually answering the question that you have asked or whether they are answering something completely different. Particularly when the questioning is sequential.
(Transcript 3 December 1998:13)
Following this exchange Ms Wilkins put a series of questions to Ms Watson about her understanding, from the interview record and tape, of Mr SRL's level of comprehension of the issues raised during the course of the interview on 29 September 1992. Ms Watson continued to maintain that she believed that Mr SRL was sufficiently fluent in English for the interview to proceed and that she would have stopped the interview if she had believed otherwise and arranged for another case officer to conduct an interview with an interpreter when one was available (transcript 3 December 1998:19).
Ms Wilkins also cross-examined Ms Watson about the threat she perceived had been made against her by Mr SRL (see in particular transcript 3 December 1998:48-59). Ms Watson continued to maintain that she understood what was said by Mr SRL to be a threat and that this was linked to the fact that he had told her a lot about the JVP. She also indicated that as soon as she had received the phone call she not only made a note of it but also brought it to the attention of her supervisor. When she subsequently became aware that Mr SRL had returned to Australia in 1994 and that he was applying for a second time for refugee status she was told by her supervisor she was not to handle the case (transcript 3 December 1998: 64-65).
Mr Thevar, the observer at the interview with Mr SRL on 29 September 1992, did not participate directly in the proceedings. He indicated that he had been asked by Ms Watson to sit in at the interview because of his expert knowledge of Sri Lanka and his involvement with a number of refugee cases that had emerged from that country. In a written statement (R8) in evidence before the Tribunal Mr Thevar indicated that he was married to a Sri Lankan of Sinhalese background and had visited Sri Lanka on about five occasions beginning in 1984 and ending in September 1996. At the time of the interview with Mr SRL he had been an officer with DIMA for a period of about two years and was a member of the Country Information Committee for Sri Lanka and India. He had assisted other case officers on Sri Lankan, Indian, Malaysian and Singaporean cases and was often involved in examining the claims and assisting with background information and suggesting questions to clarify claims. He had also been involved in training new case officers in interview techniques and research and had acted as supervisor of case officers on a number of occasions. However, in regard to this particular interview with Mr SRL both he and Ms Watson were officers of equal seniority and he was not her direct supervisor. Mr Thevar also indicated that while he did not remember the specific details of the interview, that if there had been anything asked of Mr SRL that it was considered he was unable to understand, the interview would have been terminated (transcript 4 December 1998:7).
Under cross-examination by Ms Wilkins, Mr Thevar was asked about his recollection of an omission made by Ms Watson at the commencement of her interview with Mr SRL in not informing him, as was required in the interview pro forma prescribed by the respondent, that any information given during the interview would be treated confidentially and would not be passed to the authorities in the client's country of origin. Mr Thevar agreed that this was a most important procedural requirement but that he could not recall Ms Watson omitting the confidentiality statement at the outset of her interview with Mr SRL. Nonetheless, Mr Thevar did agree, as the following exchange with Ms Wilkins illustrates, that there were factors surrounding the interview that placed Mr SRL at a disadvantage:
So most people are trying to tell the department the whole story during the interview?---That's true, yes.
That requires concentration because some people's stories are very long, are they not?---That's true, yes.
Yes. On top of that, if a person's English is not their first language and they speak some simple English, they also have to concentrate very hard to understand what they are being asked and then to find the English words to answer it the best way they can?---It requires concentration.
Yes, more so than a person whose native tongue is English and does not even have to go through that process?---There is a difference, yes.
Yes, there is a difference, and added to that that in this particular situation the applicant said when he was given the warning about confidentiality, that it had been preying on his mind that he had not said everything because he was concerned about his home country. That is an added factor to be taken into account, is it not, when you are assessing his interview?---He has to give the evidence - - -
Well, I just read you the questions and answers again. Just down the bottom of question 558:
Have you put forward all your claims for refugee status?---Before I didn't put all the things because I don't know if you have told the Sri Lankan Government what was happening to me.
Now, I am just suggesting to you that even assuming that the person may have actually said everything they wanted to say, they still would be worried, would they not, during the interview about what might be going to happen to this information and that is an added pressure on them is it not?---That's a question, that's true, yes
Now, given all of those factors would you agree with me that a person in that situation is at a disadvantage during the interview because of those circumstances?---Yes.
Would you also agree with me that with the best will in the world, with all the good intentions, it is possible for departmental officers to just make an incorrect assessment of a person's ability to be understanding the questions that are put and the answers that are given?---It is possible.
The department is not infallible in that regard, is it?---Yes, I would agree, yes.
I mean, you are not expected in the course of your duties to be expert in teaching English as a foreign language, are you?---No, you are not.
No. In fact, to try and guard against putting you in that kind of position, it is the practice, is it not, whether or not the person wants an interpreter, to get them one if you can?---As much as possible, that is true, yes.
(Transcript 4 December 1998: 26-27)

First Refugee Application and Interview: What Was Said

Mr SRL's first application for refugee status was lodged on his behalf with the respondent by a firm of migration agents, Hardy's, on 20 May 1992 (T12). Mr SRL's application contained a number of attachments comprising principally copies of newspaper articles and photographs relating to the political situation in Sri Lanka, including information about the JVP. In this formal application Mr SRL listed his religion as that of a Roman Catholic (T12:114). He indicated that as a result of his membership of a political party, the JVP, he and his family had suffered police harassment during the period from late 1989 to 1991. Membership of the JVP was said to have commenced in 1987 (T12:115).
In response to a question about whether the security forces of the applicant's country had ever come to his home or place of work, Mr SRL's application contained an affirmative answer and a statement that the police had come to his home because "they got information that I was a very active member of JVP and they thought I was involved with some incidents". It was also stated that after questioning and interrogation by the police, and a denial of involvement by the applicant, nothing was found out about his alleged role with the JVP (T12:116).
The agreed transcript of the interview between Mr SRL and Ms Watson on 29 September 1992 contained responses to almost 600 questions which were put to Mr SRL. Many of the questions asked of Mr SRL related to his personal family circumstances and background and to other issues which are not of direct relevance to the present proceedings. The principal matters which are relevant concern his role in the JVP which he stated he joined on 1 May 1989 following the death of his father in October 1988 (R6: Q85-86). When asked about the activities in which he had participated with the JVP, Mr SRL said he did not kill anyone but gave orders to people who were under his supervision about the putting up of posters. He would also give orders about taking details of police and army personnel who were working with the government. These details were given to his superiors in the JVP in the Kalutara area and Colombo areas and they would then be taken to the President of the JVP, Mr Rohana Wijeweere.
Mr SRL was then asked why Mr Wijeweere needed this information and the following exchange then took place between him and Ms Watson:
Q145And for what purpose did he need the information that was being collected?
ASo after that that they will know the persons if they - who are the persons who are killing the people, the government and the government people who worked to the MPs and ministers and the - these people in the government.
Q146And why were you not involved in the killing?
ANo, I don't, I am Buddhist person and my wife was Christian, my mother was Christian.
Q147And what was the religion of the people who were doing the killing?
AThey don't have a religion.
Q148How did you come to be in a more senior position than the people that you were giving orders to?
ABecause they know about my father, was a big - Mr Wijeweera, Rohamawijeweera, he know regarding my father very well and they know about what my … the government have done to my father.
(R6:Q145-148)
Ms Watson questioned Mr SRL further about why he said he could not kill anyone:
Q153You say that you couldn't kill a person because you're a Buddhist.
AYeah, Buddhist and I'm believing Christian, my wife was Christian.
Q154But why did you not give orders to kill?
ANo I never because if I killed a person or not - if I give a order or not, I have killed that person already.
Q155What did you perceive to be the difference between gathering the information to make people targets and actually giving the orders to kill them?
ABecause I give a order to kill that person, I - if I kill the person, same thing happen to that person.
Q156But you were facilitating the - did you see that you - did you consider that you were facilitating that these people would be killed?
AYeah.
Q157And that was acceptable - - -
AYeah.
Q158- - - despite being a Buddhist?
A Yeah.
(R6:Q153-158)
Mr SRL was questioned further about how he would have responded to an order to kill someone:
Q193So what would you have done if Mr Wijeweera had ordered you to kill someone or ordered you to order your party to kill someone?
ABefore I - before - I before I came to - joined to that party I agree with them I don't kill a person. I explained him what reason I joined to that party, regarding my father.
Q194And yet he put you in charge of 100 to 300 people? How many people were under you?
AMaybe 300.
Q195So 300 people - - -
A300 - - -
Q196- - - that you were giving orders to?
ANo, it may be sometimes I had to handle 2000 also, because I'm one of the leader for the whole Kalutara area.
Q197He was the - Wijeweera was the - - -
ANo, no, myself. I have to look after all the details because I am not killed a person, so I have to give all the details for them. All the leaders - big boss was myself, I have look after all the 2000 or 3000 people.
(R6: Q193-197)
Mr SRL said that most people in the JVP had weapons but that he did not carry either a gun or a knife. Mr SRL also said that the principal targets of the JVP were the President of Sri Lanka and the National Security Minister. He referred to the placing of a bomb in the Sri Lankan Parliament which had occurred prior to his joining the JVP and also to other killings which pre-dated his membership of the JVP. Mr SRL also agreed that names of people that he had mentioned as targets were people whose names were commonly in the newspapers as public officials.
Mr SRL also told Ms Watson that he was involved in obtaining information from hotels in the Kalutara area about prominent people who were coming to stay. The following exchange then took place:
Q321What sort of information would you get from, say, the hotel?
AFrom the hotel manager, which room he's staying at and how many guards were with him at that - at that time. So with that guards, our people can fight with them or can do anything with them, so normally we are look - before they come, before 1 month or 2 months' time, before they come to Kalutara or at hotel, we have to try to get a person to get that hotel as cleaner or room attendant, like that, because normally you see (?) we can put it, a bomb, in that room. On that, regarding that matter, we are look - we are take details for that hotel from Colombo or which date he is coming to Kalutara, to my area.
Q322And the hotel manager would give you all this information?
AYeah, regarding JVP (indistinct)
Q323The what?
AWe have to tell him we are from JVP, otherwise, we have to get - they normally give the details regarding this president of Sri Lanka.
Q324I'm sorry?
ARegarding this president - every people, they don't like the president of Sri Lanka, so if you told that hotel manager or any person then they give the details for - - -
Q325And they knew for what purpose?
AYeah.
Q326So you didn't have to frighten the manager - - -
ANo, no, no, no.
Q327- - - to get him to give details?
ANo.
Q328Was this any particular hotel or was this all hotels in the area that would - that had managers who would give you information?
AAny Sri Lanka, any hotel, any post office, any bank - - -
Q329Would give you the information?
AYeah.
Q330If you just said that you were JVP?
AJVP.
Q331And there were no tactics used to force them to give that information?
ANo, no, no. If - if I want to close all the shops and everything for 1 day or 2 days, just if I - if I go to the shop and go to the one of the shops it closed 2 or 3 days, normally.
Q332Do you think that they would close it because they were in fear of the JVP?
AHowever they like or not, I don't know, they have to carry out our orders.
Q333What would happen if people didn't do what you asked them to do?
ASo after that the minister will take a decision of what - what - what happened for them, they will killed or not.
Q334People who didn't comply?
AYeah.
Q335And the minister would take that decision?
A Yeah.
(R6:Q321-335)
Mr SRL told Ms Watson that his activities had been confined to the Kalutara and Colombo areas. Ms Watson then asked him what would happen if someone would not comply with an order given to them. The following exchange then took place:
Q344Yes.
ANormally we have to kill them.
Q345Right, okay, and so what would you, personally, do, what, in that circumstance?
ASo we are giving three warnings for them. After that we are thinking they are belonging to the government people, they are in the government party, so - like that, before I told you what - like the postmasters and the bank managers, we are carry out the orders from our president Wijeweera like normal, private shop owners, like that, and our minister will look after them.
Q346Okay. So the minister would look after them. So what was your involvement in that? Would you report to the minister or what did you do? When you discovered that a shop owner, say a shop owner, refused to close his shop for two days.
AYeah, if the minister - I can't find out that there was - every time you can't find out the minister and you can't give the details because when I was working in Colombo - so they are normally give the details for secretaries or one of the assistant ministers.
Q347Okay, so - - -
ASecretaries or assistant ministers.
Q348And what would happen then?
ASo after that minister will take a decision about what to do.
Q349And who would he say that to?
AThey will tell to the (indistinct) secretary - secretaries.
Q350To all the secretaries or - - -
ANo, one secretary person.
Q351One secretary person. And then (indistinct)
AAnd they - that secretary will tell to that - one of the leader, one - one leader to kill that person, send a person to kill that bank manager or some (indistinct) person.
(R6:Q344-351)
Ms Watson asked Mr SRL whether he could give the names of any of the shopkeepers or bank managers or postmasters who had been killed by his group when he was working with them. Mr SRL said he could not remember these names but that between 500 to 2000 people had been killed during the time that he was with the JVP for not complying with their orders. A list of the people killed was kept by the senior members of the JVP but he had not seen the list himself. He would know the next day from the newspapers that someone had been killed by the JVP. It was possible to distinguish killings by the police from those of the JVP by the methods used. The police would burn their victims while the JVP would shoot them and place a board around their necks giving the reason for their slaying. Queried for more details about these methods used by the JVP to kill people Mr SRL, provided the following details:
Q371- - - how would they be killed?
AThey will shoot it 1 second. Before we killed – shooted - them we are giving three warnings.
Q372Over what period of time would the warnings be given?
AWithin 3 days.
Q373Okay. And so would the people only be shot or would they be - - -
ANo, we are normally shoot them and put a board for the neck with reason we killed him.
Q374What was the board made of?
ANormally paper or cardboard.
Q375And would that board be prepared before the person was shot?
ANo, no.
Q376So when would the writing be put onto that board?
AIf you take paper or gristleboard or cardboard normally they are writing with reason we killed him and we are giving three warnings for him and he is the one of the person who was with the government party.
(R6:Q371-376)
Ms Watson asked Mr SRL whether he had taken part in any violence. Mr SRL responded by asking "what is it?" (R6: Q421). The following exchange then took place between Ms Watson and Mr SRL:
Q422Violence, not so much killing but assaults on people.
ANo. Only I will take the orders, before I told you, like what kind of job he is doing, like a bank manager, what details he's doing and what - what - regarding banks, post office, big shops, station - like stations. If you want to put some posters to the public area, like normally once I am carrying out - I told to Mr Wijeweera also before - before I - before I joined to that party, I can't kill a person or carry out a order like that, because I am (indistinct) my wife of Christian, I am - I am Buddhist, I am believing both of the religions.
Q423So were you involved in any terrorist acts, terrorising people?
A No. Only I have to do the paperworks only.
(R6:Q422-423)
Mr SRL went on in the course of the interview to describe in more detail the type of "paperwork" that he conducted with the JVP in relation to banks:
Q442(indistinct) did you have?
A(indistinct) I told Mr Wijeweera also before I am - I have to - am not killing persons, I - I'll do the, like, paperwork, I will take the details from the banks. So now I'm sending people to take the details, so before I over there and told to bank manager, somebody to take the details, like a member.
Q443And how many of you would have taken those sort of activities, going and collecting the information?
AMaybe 2000, two, three thousand, people.
Q444Okay. So say you were gong to a bank to find out information, how many people would go on that day to find that information?
ASo if we are thinking it's hard to go there, we will send one person or two persons.
Q445And how long would it take to gather the information that you would need?
ASometimes taking 1 day, sometimes 2 or 3 days.
Q446And so you would - I get the impression that your function was to set up the scene - - -
AYeah.
Q447- - - to set up the killing - - -
AYeah.
Q448- - - to decide - to say what is the best time - - -
AYeah.
Q449- - - who would be there, when, where. So you would actually set it up - - -
AYeah.
Q450- - - but not actually give the order for the killing?
ANo, no, no. Only I have to take the details - if you are working for the bank, if you are working in the bank, so you are working to the government, so I - I - I have to check from the bank how - how much money you have in the bank, so we are asking, "You have to give one lakh dollars or rupees to the JVP party? So if you don't give it within 3 days we'll take a decision what to do for you".
Q451I see. So the bank would tell you how much everyone had (indistinct)
AHad in the bank. The - normally clerks and accountants, they will tell to us how much you got in the bank. So regarding - that type of things I have to carry out.
Q452So would you actually give the warnings?
ANo, no. I have tell to the - one of the secretary or one of the assistant minister, they will give a warning. Only I have to take the details for the banks, shops and the post office. Regarding - normally I am doing from the banks - if they give the name for me I have to take the leaders from the - how much in the accounts, like that. I will take the leaders from the bank - most of the important thing, we need some money for the - take the reference. (?)
Q453I'm sorry?
AWe are normally looking for the money to the - to take some weapons to our party and - - -
Q454Would you actually purchase the weapons when you - - -
ANo (indistinct)
Q455- - - received the money?
ANo, no, no. They are giving for - money for the - they are keeping somewhere - they are - we are telling them, "We are keeping this money at this time, front of your door, somewhere, so - - -"
Q456Would you go collect the money?
ANo, no. One of the members, they will go, took the money and to keep it.
Q457But you never went to collect money?
A No, no, no.
(R6: Q442-457)

Second Refugee Application and Interview

Mr SRL's second application for refugee status, accompanied by a detailed statutory declaration concerning the circumstances surrounding his claims and the reasons for his return to Sri Lanka and the situation that faced him there, was lodged with the respondent on 16 December 1994 (S1). The letter accompanying his application, signed by his solicitor Mr Karp, referred to the earlier application made for refugee status by Mr SRL. It was stated that Mr SRL was unsure of the result of his previous application. However, as noted earlier, Ms Watson had already written to Mr SRL notifying him that as a a result of his departure from Australia this earlier application had been rejected.
Reference has already been made to various sections of the statutory declaration made by Mr SRL, dated 18 November 1994 (S1:30-39). These references included the statement made by Mr SRL that he had joined the JVP in order to "be able to identify my father's killers and take revenge" (S1:33).
Mr SRL's statutory declaration contained some more details about the specific activities in which he had been engaged with the JVP. This included the observation of bank tellers from certain banks to find out where they lived:
… I was also instructed to observe bank tellers from certain banks and find out where they lived. Those higher up in the JVP organisation would then visit these people and prevail upon them, through veiled threats, to make enquiries as to the bank balances of certain people in the area. Money was then demanded from people with large bank balances and this money was used for JVP activities. As time went by I personally was instructed to approach bank tellers with a couple of others and persuade them to co-operate. After the first 6 months I stopped doing this kind of work and involved myself in the propaganda side of the party's activities.
(S1:33)
Mr SRL said that he rose quickly through the ranks of the JVP because of his family background, level of education, and the fact that he worked for a British company that was thought by the government to be beyond reproach. As part of his JVP work Mr SRL said that he transported and distributed various political propaganda throughout the district, including putting JVP posters on the walls of police stations.
On 6 April 1995 Mr SRL was interviewed by Mr Gerry Heyen, a DIMA official, in the company of a Sinhalese interpreter and Mr SRL's solicitor, Mr Karp. At this interview Mr Heyen asked Mr SRL about the previous application that he had made for refugee status. Mr SRL said that the application had been prepared over a period of about one and a half hours by Mr Hardy, a migration agent. Mr SRL said that he had only just come to Australia and his proficiency in English was not as good as it was today. Further, at the previous interview with DIMA officials he had no legal representative, nor an interpreter. At that first interview he had also "not disclosed a number of things at that first interview because I was distrustful of everyone that was around me and, as such, there were people whom I could have named, I did not name, and certain things that I sort of hid and did not disclose" (R3:7).
Mr SRL reaffirmed that he had joined the JVP because his father had been killed. He said that he had been very close to his father who was an active member of the JVP and that he had been brought up in a JVP environment which provided him with a broad and general knowledge of what the party stood for. Mr Heyen then asked Mr SRL about his knowledge of the activities of the JVP once he became a member which prompted the following exchange:
MR HEYEN:   So, you can tell me if your membership throughout 1990, even after the police started searching for you, by now, I would assume being a district leader in the Kalutara district, you would be aware of the rather terroristic and murderous approach to politics that the JVP took up. Did this not sway your opinion of your membership with the organisation?
THE INTERPRETER:   Yes, actually, I became aware of these things and I became rather disenchanted, but whenever I used to think of what happened to my father, and about the circumstances regarding his death, I felt there was no other way I could react against the government.
MR HEYEN:   Now, by this time, the JVP - as most of the independent observations of the JVP in Sri Lanka will indicate to you – they were murdering innocent family members of the judiciary, the security forces in Sri Lanka and pretty much anyone who they considered to be a political enemy whether or not they were just innocent victims, or involved in the political process. Were you aware of these goings on?
THE INTERPRETER:   I cannot tell you for certain whether these murders were committed by the JVP, or by the government that was in power at the time. I concentrated on the job I was given to do, and I was not concerned about trying to find out about these activities.
MR HEYEN:   The thrust of my question is that you remained a member - an active member - and by the look of your rise through the ranks, an important member of an organisation which has been described as very close to that of the Khmer Rouge, other murderous organisations. You might have heard of the Shining Path. These are organisations that do not really care to enter the political mainstream. They just want to gain power through terrorism and you remained a part of it?
THE INTERPRETER:   I was engaged to work in the propaganda and poster section and I had nothing to do with any of these so-called murders, or anything like that.
MR HEYEN:   So, as a leader in the propaganda and poster section, you were spreading through documentation and literature, the benefits and merits of the JVP which throughout Sri Lanka, or especially the southern part of Sri Lanka, was widely considered to be a terrorist organisation which killed thousands of innocent people and who nobody wanted to see come into power, except for JVP members?
THE INTERPRETER:   I cannot tell you because, as I said before, that it was certain who were responsible for these murders that were laid at the door of the JVP. I found no other means of finding out what, actually, happened to my father other than through joining the JVP. This is all that I have to say to you about it.
MR HEYEN:   It is not good enough, [Mr SRL]. I find it would be pretty much impossible for me to believe that you would be a section leader of the propaganda section of the JVP and made statements in your last application that you were involved in the identifying and the peripheral planning of murder of victims that the JVP wanted to eliminate. And you are sitting here now and telling me that you played no part in this, but you were, in fact, a section leader of the JVP propaganda department?
THE INTERPRETER: When I received instructions from above to get details of a particular person, I carried out those instructions and transmitted it to the person who gave me the instructions. Further to that, I was not informed for what purpose this was, and what this was for, and what happened after it. I was just asked to give this information, and I collected the information, that's all.
MR HEYEN:   So, your claim now is that you were not aware that any of the people, about whom you collected information, were either killed or threatened by the JVP?
THE INTERPRETER:   I tell you, I was not aware of these murders that were committed. I was not aware who were instrumental in them.
MR HEYEN:   I am sorry, what was the last part?
THE INTERPRETER: Who were instrumental to the murders that were taking place at the time.
MR HEYEN:   Did you never question why you were getting information about these people?
THE INTERPRETER:   If I were to question as to the why and the wherefore, I had to do this, I would have first been sidelined and I would have been cornered. If I continued pressing them with questions, they may have even killed me.
(transcript 24 March 1997:11-13)

Following this interview a number of exchanges took place between Mr SRL's solicitor and the respondent regarding the application of the exclusion provisions of the Convention and the legal issues involved (see paragraphs 18-20 above). These exchanges concluded with a decision on the part of the delegate of the Minister, Mr Heyen, on 17 November 1995 to deny Mr SRL a protection visa because his case fell within the parameters of Article 1F(a) of the Convention Exclusion Clauses. The reasons for this decision are summarised in the following extract from the delegate's decision of that date:
13.[Mr SRL's] submission of 29 July 1995 makes out the case that he did not have the intention to commit a crime and did not commit a crime according to the various international instruments which define crimes relevant to Article 1 F (a) and (c), namely crimes against peace and crimes against humanity. [Mr SRL] claims he did not kill and did not know that the information on JVP targets he collected was used for killing. Thus the Department only has a suspicion that he committed crimes.
14.[Mr SRL's] claims as listed above from 1.1 through 1.8 demonstrate clearly that he did in fact undertake the activities that fall within the parameters of consideration under the exclusion clauses contained in Article 1F. [Mr SRL's] post-interview submissions declare that these activities do not constitute a crime. However he admitted during his September 1992 interview that those activities were undertaken as part of his participation at a leadership level with the JVP over a period approximating three years. His participation with the JVP therefore amounts to that of a leader, as well as an organiser, instigator or accomplice. In such a role he claims to have committed the acts listed in sections 1.1 through 1.8 above. They amount to threats, extortion, planning the planting of bombs for the purpose of assassination, planning of assassinations, and functioning as a senior leader of the JVP propaganda section.
15.Among his 1995 submissions, [Mr SRL] has also claimed that before he joined the JVP, he had grown up in a JVP environment, and knew all the responsibilities and rules of JVP membership. This early association with the JVP was the result of his father's senior membership within it, and the consequent JVP meetings held at the [SRL] home. He was thereby immersed in a JVP political and ideological environment for a significant duration of his youth and teen years. Additionally, while he worked within the JVP he came to learn it had committed over 2,000 murders. These claims and clarifications reveal that he was therefore never a mere bystander, but at least a significant figure in both JVP military and propaganda operations.
16.In light of the information given by [Mr SRL] at his September 1992 interview, his claims submitted during 1995, that he knew nothing of the fate of JVP victims or whether they were JVP victims, can be assessed as self-serving. His level of participation within the JVP is what is required by the Charter, the UNHCR, and the Department's Refugee Law section to demonstrate that there is criminal liability on [Mr SRL's] part. Nowhere in the information available to me on the exclusion clauses is there an indication that murder or killing has to be committed by an applicant for refugee status to have their case assessed against Article 1 F(a). In [Mr SRL's] case the criminality of his acts lies with his participation as a leader in the JVP, an organisation which pursued a terrorist and criminal agenda in Sri Lanka in order to establish itself as a political force.
(T1:22-23)

Applicant's Testimony at Hearing

Mr SRL gave personal testimony to the Tribunal on 12 and 13 May 1997. This testimony was provided using the services of a Sinhalese interpreter. Mr SRL said that his motive for joining the JVP on 1 May 1989 was to find out how his father had been killed. When cross-examined about this matter he explained further that when he had stated in his statutory declaration that his motive in joining the JVP was to identify his father's killers and take revenge he had meant no more than that he had wanted to bring "the killers to justice" (transcript 13 May 1997:80).
Mr SRL said that for the first six months that he was with the JVP he was receiving training and not able to make any decisions of his own (transcript 13 May 1997:111). He had told a deputy minister and the minister of the JVP upon joining "that I was never prepared to be involved in any activities to harm people" (transcript 13 May 1997:32). For the first three months of this membership he was listed as a normal member and thereafter became a group leader (transcript 12 May 1997:34). Mr SRL described the JVP hierarchy as consisting, in descending order of importance, of a leader (Rohana Wijeweera), a chief organiser, a minister, the minister's personal secretary who exercised the powers of the minister when he was absent, a speaker responsible for organising matters such as party meetings, a deputy minister, the senior party leader who was a person with ten years service in the JVP, a first party leader and party leader (transcript 13 May 1997:162-164). Mr SRL said that his appointment as a party leader after three months in the JVP was made because of his education and because his father was known to the JVP leadership (transcript 12 May 1997:35). Mr SRL said he had never had any weapons training or carried any weapons while he was with the party (transcript 12 May 1997:35-36).
In relation to his activities within the party, Mr SRL said that on three or four occasions during the first six months with the JVP he had been ordered to observe police or army officers and in particular to provide information as to whether or not these people he was observing were members of any army group called the "Black Cats". This group were notorious for killing opponents of the regime (transcript 12 May 1997: 36-37). Mr SRL stated that he had been unable to establish whether any of the people he observed were involved in the activities of the Black Cats. He also said that nothing harmful had happened to any of the persons about whom he had passed on information to the JVP since he had not revealed any negative information about those persons (transcript 12 May 1997:37).
During cross-examination Mr SRL was asked about statements he had made in his 1992 interview regarding the orders given to shopkeepers to close their shops whenever a JVP curfew was in place. Mr Hardman asked Mr SRL about his response during the 1992 interview as to what would happen if people did not comply with the orders to shut their shops. He had answered on that occasion that "after that the minister would take the decision of what happened before they were killed or not". Mr SRL stressed that whenever he did something like this nothing of the sort happened but on other occasions it was for the minister to decide about the punishment that should be imposed. He said that so far as the shops were concerned the most severe punishment was to keep a particular shop closed or to order a particular shop to be closed for one week "but for those who were against the JVP there were more severe punishments" (transcript 13 May 1997:100). When asked to explain what those punishments were Mr SRL said he did not know the details and that it was up to the leaders of the JVP to decide.
Mr SRL said that he had never made any death threats himself. People were warned three times verbally and it was only then that he was obliged after the third warning to report the matter to the minister. Only after that would the minister give an order to close a particular shop for one week and even if the shop owner did not listen to that order then it was up to the minister to decide what to do.
Mr SRL also gave an account of his activities of going to banks to find out account balances of certain affluent people whose names had been given to him in sealed envelopes. Mr SRL said that he had never been placed in a position where he had been required to warn anyone that they might be in danger for not cooperating with the JVP by providing this information (transcript 12 May 1997:38). Mr SRL said that he had on four or five occasions gone to the homes of bank employees to obtain information which had been sought at the banks. On these occasions neither he nor anyone in his presence threatened these employees. He had on some occasions reported to his superiors that certain bank employees had said that they were unable to obtain the information that they were seeking. He said that he had asked not to be sent back to see those bank employees again and that to his knowledge nobody was harmed as a result of his report of their failure to cooperate (transcript 12 May 1997:47-50).
Mr SRL was cross-examined about this particular type of activity. He said that they had always talked in a friendly manner to these employees. Mr SRL was then asked what he meant when he had said in his statutory declaration that they would prevail upon them "through veiled threats". Mr SRL said that threats were veiled in the sense that there were reports in the media about the JVP approaching bank employees to get vital information. He had no personal knowledge about this other than what he had read in the newspapers.
Mr SRL also said that if they went to the home of a bank employee to ask questions, 10 or 15 people would be involved. If he could not obtain the information required after one or two attempts Mr SRL said that he would then go back to his leader and tell him that the task was beyond his capabilities. Mr Hardman, in his cross-examination, then asked Mr SRL what he thought might happen next and the following exchange took place:
"MR HARDMAN: I will ask the question again. The question was what did you think that the people did who went after you to speak to these bank employees after you told your superior that the task was beyond your capabilities?
THE INTERPRETER: Well I would expect the other person would go and speak to the concerned bank employee the way that I did and if the bank employee didn't oblige then I would expect that he would report the matter to the leader and I don't know what would happen thereafter.
MR HARDMAN: If you saw yourself as only being capable of going along and speaking gently with these bank employees why did you need to take 10 to 15 people?
THE INTERPRETER: In any way the JVP wouldn't allow someone to go alone and JVP also understood its role to safeguard everyone who was in the JVP.
MR HARDMAN: You were a group leader during this time were you not?
THE INTERPRETER: Yes.
MR HARDMAN: So on these little excursions to visit bank employees you would have been in charge of the group?
THE INTERPRETER: When I was doing all these things I was in the training period. I couldn't make any decisions on my own.
MR HARDMAN: You were a group leader after having been with the JVP for three months, is that right?
THE INTERPRETER: Yes that is true but for six months I was under training.
MR HARDMAN: You have not mentioned in your statutory declaration at all, have you, that for the six months you were in training?
THE INTERPRETER: Well I joined the JVP and they gave me training. After three months time I got some sort of level in the leadership but my training continued up to six months after which time I got different responsibilities.
MR HARDMAN: On your evidence you got increased responsibilities?
THE INTERPRETER: Well I came out of this section and I got into a sensitive area involving the posters.
(transcript 13 May 1997:111)
Mr Hardman asked Mr SRL what sort of information the posters he was asked to distribute contained. Mr SRL said that the contents changed on a weekly or monthly basis but the main theme that ran through all of them was to highlight the atrocities committed by the government and to emphasise that everyone in the country had equal rights. The posters did not contain any threats (transcript 13 May 1997:112).
Mr SRL also described the activity he had engaged in on two or three occasions when he was asked to obtain information from staff of the Tangarine Beach Hotel in Kalutara about proposed visits by members of the government (transcript 12 May 1997: 40, 42-46). Mr SRL stated that nobody was hurt or threatened as a result of his visits to the hotel and that he had never either directly or indirectly ordered anyone to place a bomb in a hotel room.
Cross-examined about this matter by Mr Hardman, Mr SRL was asked to explain what he had meant at the 1992 interview when he spoke about checking on the number of guards that were present at the hotel. Mr SRL responded in the following way:
"THE INTERPRETER: As to the guards, it was for our personal security that we were interested in finding out as to how many guards were there – well the rest I was asked to get information about were duties that were entrusted to me and I at that time assumed they were planning to put a bomb because if one is to consider political situation in the country at that time.
MR HARDMAN: So when you got those details you assumed that the leaders were going to place a bomb in the relative rooms?
THE INTERPRETER: I assumed it that way and after going to the hotel I told the leaders that I was scared to do things like this and I was even going to get out of the JVP.
MR HARDMAN: But you told the leaders the information you got from the hotel?
THE INTERPRETER: Yes, I informed the leaders about the matters they sent me to find information about. In fact they were informed about certain things but they were unaware of some other things like the time they were planning to come. Well I told about that to the leaders."
(transcript 13 May 1997: 124)
Mr SRL said that although he had passed information of this type to his leaders he remained unaware of what they had intended to do with the information. He did not try to question them about this because it happened at a time when he was trying to leave the JVP and he was fearful that they might take revenge on his family. Nonetheless, he agreed that his assumption had been that they were planning to plant a bomb in the hotel room but actually no bomb had exploded there (transcript 13 May 1997:129).
Mr SRL stated specifically in his testimony to the Tribunal that "I never killed anyone nor did I help anyone kill someone" (transcript 12 May 1997:61). Under cross-examination he did confirm that he had seen a list of names of 2000 people who had been killed by the JVP as mentioned in his interview with Ms Watson in September 1992. He had been shown the list by his immediate superior but he remained uncertain even now whether the JVP had actually performed those killings or whether they had shown him the list in order to intimidate him. He was not sure what the JVP would have done to him if he had failed to carry out orders (transcript 13 May 1997:117).
Mr SRL told the Tribunal, in cross-examination by Mr Hardman, that he had also given a description to Ms Watson of the way in which the JVP gave three warnings to people and then they would kill them and place a sign around their neck. He said that he had seen corpses with such signs. However, he was unaware as to who had committed the killings or who was behind them.
Mr SRL also confirmed that he had been in the political or intelligence section of the JVP and not in the military wing. He said that he had only really confirmed that the JVP even had a military wing when he returned to Sri Lanka in 1993. He had suspicions that such a wing was affiliated to the party but was unsure whether it belonged to the JVP or to the government.
CONSIDERATION
The issue which must be resolved by the Tribunal in the present case is whether, on the basis of the evidence before it, Mr SRL is excluded from the protection afforded by the Convention by reason of the operation of Article 1F(a) and/or (b). In considering this issue attention will first be given to the evidence which has been summarised in some detail above and then, based on the view taken of this evidence, the law applicable to the operation of Article 1F will be examined.
Evidence and Submissions: The Tribunal's Views
As is frequently the situation in cases of this type, the principal evidence about the activities of the applicant which are said to justify the operation of the exclusionary provisions of the Convention have been provided by the applicant himself. Thus the Tribunal is obliged to give significant attention to the credibility which it attaches to this evidence, and in particular, to the initial interview with the respondent's officials in September 1992 at the time of the first application made for refugee status.
Reference has already been made to the contention advanced on behalf of the applicant concerning the disadvantageous situation in which he was placed at the time of this initial interview. Ms Wilkins also contended in her written submissions that the Tribunal should view Mr SRL as a credible witness who at the time of his interview with Ms Watson did not understand English properly, as was evident from the stilted nature of his replies to the questions that he had been asked. The Tribunal should also find that Mr SRL had no motivation to threaten Ms Watson in any way. He had denied making any threat and had stated that at the time he had only been trying to thank Ms Watson as a person who had assisted him. The applicant's evidence had also been consistent with the objective material regarding the circumstances which had existed in Sri Lanka at the relevant time. He was living in a country where law and order had completely broken down and in which a citizen could not obtain the protection of the State. The State was one of the main instigators of terrorism and violence.
In the written submissions made on behalf of the respondent, it was contended that the Tribunal should give credence to the 1992 interview even though it may have contained occasional ambiguities in both interview questions and responses. Such ambiguities were a normal part of the interviewing process and the decision made by Mr SRL to participate in the interview without an interpreter was made of his own volition and upon the basis that his English language skills were sufficient to cope with the inquiry. The respondent's officials, Ms Watson and Mr Thevar, who had been present at the interview had both indicated in their personal testimony that there was nothing in the answers or demeanour of Mr SRL which suggested to them that it was inappropriate to continue the interview in English. To the extent that Mr SRL had denied in a later interview, and in his testimony before the Tribunal, his personal and knowing involvement in JVP activities, that evidence should not be accepted. The evidence that had been provided by the applicant was generally to the effect that he did not make the operative decisions about violence, rather than denying involvement in a process he knew could end in violence or murder. The documentary information before the Tribunal showed that the status of the JVP in the late 1980s was that of a political organisation that employed systematic radical and violent means to achieve its political goals, including assault and murder of its opponents. The participation of Mr SRL in these activities made him an accomplice to crimes against humanity and excluded him from the protection of the Convention.
Having regard to these submissions, and to all the evidence presented on behalf of both parties, the Tribunal reaches the following conclusions about Mr SRL's credibility as a witness and also about the nature of the activities he engaged in with the JVP while residing in Sri Lanka during the late 1980s and early 1990s. The Tribunal found Mr SRL to be a confident and self-assured witness when presenting his personal testimony in May 1997. That same self-confidence and assurance was also evident in the detailed account that he provided of his family background and the circumstances which led him to join the JVP set out in a statutory declaration in November 1994. The statement made mention of the quite privileged circumstances in which Mr SRL had been raised by his family and the private schooling he had received. The benefits of that private education, and the intellectual environment which appears to have been encouraged by his father in the family home, seem to have made a significant impression upon him and continued to be evident in the way in which he approached the task of seeking to justify to DIMA officials, and to the Tribunal, his membership and role with the JVP.

In their written submissions each party agreed that this interpretation should be given to the term "serious reasons for considering" contained in Article 1F. However, the parties were in complete disagreement concerning the application of this test to the evidence presented in the case and, in particular, whether that evidence showed that there were "serious reasons for considering" that Mr SRL had committed as a matter of fact and law a "crime against peace", "crime against humanity", or a "serious non political crime". It should be noted that it was not contended by the respondent that Mr SRL's actions amounted to a "war crime", or an act "contrary to the purpose and principles of the United Nations". Thus, in the following examination of the legal principles applying to this case no reference is made to these latter types of crime proscribed by Article 1F although they were referred to in the written submissions made on behalf of the applicant.
Article 1F(a): crimes against peace and crimes against humanity

Both crimes against peace and crimes against humanity referred to in Article 1F(a) are said to be those which are "defined in the international instruments drawn up to make to make provision in respect of such crimes." The international instruments which do make provision for such crimes were discussed in some detail by the former President of this Tribunal, Mathews J, in N96/1441 and Minister for Immigration and Multicultural Affairs (AAT 12977, 11 June 1998), at 49-65. In that decision Mathews J noted that the "foundation definition of crimes against humanity" appeared in Article 6C of the Charter of the International Military Tribunal at Nuremberg (T7: 63), while in relation to the meaning of "crime against peace", Article 6A of that Charter provided further content to the phrase.
Article 6 of the Charter states the following in regard to crimes against peace and crimes against humanity:
"(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;
…
(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.'" (T7:63)

In N96/1441 and Minister for Immigration and Multicultural Affairs Mathews J held that:
"… the requirement that crimes against humanity be perpetrated against a civilian population means that isolated or random acts against individuals will not be sufficient. There must be a systematic pattern of persecution aimed at members of an identifiable race or group within the civilian population." (at 65)

This view expressed by Mathews J is in accord with the obiter statements of two Justices of the High Court in Polyukhovich v The Commonwealth (1991) 172 CLR 501. In that case 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 connexion with actual hostilities." (at 596)

In the same case Toohey J said, after considering Article 6C of the Charter,:
"… a crime against humanity must comprise conduct directed at a civilian population. Isolated acts against individuals, unconnected with a larger design to persecute or exterminate a population, are not within the definition of a crime, whether committed by an individual or by a state authority." (at 669)

In the submissions made on behalf of the respondent, Mr Lancaster noted that in the Canadian case of Ramirez v Canada (1992) 89 DLR 4th 173 it was accepted that the appellant, who had knowingly participated in a military force, one of whose common objectives was the torture of prisoners to extract information, had committed a crime against humanity. Mr Lancaster said that the comments made by the Canadian Federal Court of Appeal in that case in relation to the applicable standard of proof had not been adopted in the Tribunal: see W97/164 and Minister for Immigration and Multicultural Affairs (AAT 12974, 10 June 1998).

Within the context of these legal principles, Ms Wilkins submitted that Mr SRL had not committed any act of a heinous nature against the civilian population which was capable of being considered as a "crime against humanity". Ms Wilkins also contended that there was no evidence that Mr SRL had committed a "crime against peace" as defined in Article 6A of the Charter. The applicant had neither planned or engaged in an unlawful war. Rather, he was caught up in a revolutionary political party in which he had little decision-making power of his own and was engaged in activities far removed from planning or waging war. Further, because of his poor command of English at the time of his interview with Ms Watson in September 1992, Mr SRL had failed to distinguish between his personal activities with the JVP and the activities of others within that organisation.
In the submissions made on behalf of the respondent it was contended that Mr SRL, on his own evidence, had at least been a knowing participant in activities that amounted to crimes against peace or crimes against humanity. His interview with Ms Watson (R6) showed that he had been actively involved with the JVP from 1989 until his exit in 1991. He had reached a rank or status in the party that put him in command of others in the organisation. While he had denied giving orders that people be killed, he had gathered details regarding government officials which had been passed on to high echelons within the JVP. The effects of this evidence was that Mr SRL admitted to passing on information which was used by the JVP, of which he was a member, to target and assassinate people to whom the JVP were opposed. Mr SRL also knew, throughout his membership of the JVP and in particular, during the time that he admitted collecting information about persons and passing that information on to superior officers, that one possible outcome could be that the persons about whom he had supplied this information would be killed. Mr SRL had presented a detailed knowledge of the JVP procedures in place in the lead up to, during, and after an assassination, and his evidence placed him clearly in the role of an active and knowing participant in that process. While on his own evidence Mr SRL was not an assassin, he was a member with leadership responsibilities of an organisation that employed terrorism and assassination as a means of achieving its goals.
The respondent's submissions also acknowledged that the case before the Tribunal raised an important issue concerning the scope of accessorial liability under Article 1F. The decision of Mathews J in W97/164 and Minister for Immigration and Multicultural Affairs (AAT 12974, 10 June 1998) appeared to be the first Australian authority to deal with accessorial liability under Article 1F (at 68). In that case the applicant was a citizen of Myanmar and a member of the Myanmar Navy. The applicant was aware of, and present at, occasions when activists and students were being systematically murdered by other members of the Myanmar Navy. Justice Mathews applied a test derived from relevant Canadian authorities that:
"… participants in the shooting of fleeing students will be held responsible for killings committed by others if they shared the common objective that students be shot and killed. This is consistent with the approach adopted by the courts in Moreno and Finta, namely that complicity rests on the existence of a shared common purpose, which must be determined subjectively." (at 78)

On the facts before her in W97/164, Mathews J found that the applicant should not be regarded as an accomplice to international offences and thereby excluded from protection of the Convention since he was "a very minor player in the events"; he "himself shot no one", nor did he "share the common purpose that fleeing activists should be shot"; and he "did everything that was realistically within his power to avert harm to his intended victims" – he therefore "lacked the requisite mental element for accessorial liability" (at 83).
In a later decision of Mathews J in W98/45 v Minister for Immigration and Multicultural Affairs (aat 13450, 17 August 1998), the Tribunal considered the provisions of Article 1F and accessorial liability in the context of an Algerian applicant who Mathews J found:
"…was involved in a series of assassination operations. His role was to observe the target's movements and report them back to the group. He was not involved in selecting the target, nor in the actual killing. But his role was nevertheless integral to the assassination operation." (at 45)

On those findings, Mathews J concluded that the applicant was:
"…clearly well aware of the purpose for which he was carrying out his surveillance duties. He was thus a personal and knowing participant in acts of assassination which, on my finding, amounted to crimes against humanity." (at 50)

Having referred to these recent decisions of the former President of the Tribunal, Mr Lancaster also referred to Canadian authorities that suggested that "personal and knowing participation" in persecutorial acts was required to activate the exclusion clause in the Convention; see Ramirez v Canada (1992) 89 DLR 4th 173; Weisman, "Article 1F(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law" (1996) 8 International Journal of Refugee Law 111 at 135. These authorities suggested that the mere membership of an organisation that commits international offences might or might not exclude an applicant from refugee status – the circumstances of the particular case governed that conclusion. It might be, for example, that the structure and operation of a particular organisation was such that a member by necessity had "personal and knowing participation" in the offences: see Weisman at 134-141.
Having regard to these submissions, and to the associated legal principles, as well as to the findings made earlier about the nature of Mr SRL's activities and involvement with the JVP, the Tribunal is satisfied that there are serious reasons for considering that he committed crimes against peace or crimes against humanity which bring him within the exclusionary provisions of Article 1F. Despite his later denials, Mr SRL in his 1992 interview admitted a personal and knowing involvement in JVP activities. The evidence is clear that while Mr SRL may not have been directly involved in killing anyone, he was involved as an accessary in a process that he knew could end in violence or murder. The evidence also shows that the JVP was, throughout the time the Mr SRL was a member, a political organisation that employed systematic radical and violent means to achieve its political goals including widespread assault and murder of its opponents. The hierarchical nature of the JVP's structure and leadership, including its division into military and political wings, ensured that individual members of the party knew only as much as was required about specific terrorist operations in order to fulfil their particular functions. This organisation and structure was designed not only to ensure the operation of an effective system of command and control, but also to protect the party against possible compromise through the capture or elimination of members. The fact that this organisation and structure may have to a degree obfuscated the way in which the activities of a party leader like Mr SRL may have been translated into specific acts of violence and killing does not, in the Tribunal's view, diminish his accessorial liability for such crimes against humanity. He was also a willing and active participant in a revolutionary movement waging a campaign of terror designed to overthrow the elected government of Sri Lanka. These were actions which amounted to a crime against peace.
Having reached this conclusion, it is not essential to consider whether or not the evidence also reveals that there are serious grounds for considering that Mr SRL committed a "serious non-political crime", or crimes, within the terms of Article 1F(b). However, as both parties did make submissions about this issue attention is now turned to those contentions, and also to the Tribunal's views about the relevant evidence on this point.
Article 1F(b): serious non-political crime
Ms Wilkins contended on behalf of the applicant that on any of the factual findings open to the Tribunal, Mr SRL's conduct did not as a matter of law constitute a serious non-political crime (or crimes) so as to attract the operation of Article 1F. She noted that the intention of Article 1F(b) was to ensure that it did not provide a vehicle by which persons who were liable to sanctions in another state for having committed a genuine serious crime could then escape legitimate criminal liability by claiming refugee status.
Both the applicant and the respondent agreed in their respective submissions that there was no precise definition as to what constituted a political crime for the purposes of Article 1F(b). Both parties also referred to the views expressed by the House of Lords in the case of T v Secretary of State for the Home Department [1996] AC 742 where Lord Lloyd of Derwick defined a political crime in the following terms:
"A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of that public." (at 787-788)

(See also Prevato v Metropolitan Remand Centre (1986) 8 FCR 338 at 382 and 384; Dhayakapav Minister for Immigration and Multicultural Affairs (1995) 62 FCR 556 at 564).

It is apparent from the authorities that courts and tribunals have refused consistently to place a gloss on the words of Article 1F(b), instead requiring the article to be construed according to the ordinary meaning of the words used: see for instance Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 549 at 554 (Whitlam J), 560 (Branson J), 564-566 (Sackville J).
In her submissions Ms Wilkins referred the Tribunal to the decision in Cardenas v Minister for Employment and Immigration (1993) 23 Imm LR 244 where it was held that as a general rule, mere membership of an organisation involved in international offences is insufficient to satisfy the mens rea requirement of the exclusion clause of the Convention: see also Moreno v Minister of Employment and Immigration (1993) 107 DLR (4th) 424 at 440-441. Ms Wilkins contended that Mr SRL's evidence had been consistently that on joining the JVP he had made it clear that he would not be a party directly or indirectly to violence or threats of violence and his evidence also was that he engaged in no such conduct. If Mr SRL did commit any crime, it was of a political nature as he was engaged in activities designed to further the JVP's fund raising to destabilise the government. To the extent that he may have been an accessory to any offence by asking bank officers to divulge confidential information, Ms Wilkins submitted that this was not of itself a serious offence unless accompanied by violence or threats of violence.
Ms Wilkins also drew the attention of the Tribunal to the decision in Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 where Finkelstein J considered the meaning of the term "particularly serious crime" in Article 33(2) of the Convention. Justice Finkelstein held that it was not sufficient to characterise a crime as being "particularly serious" merely by reference to the nature of the offence. Rather, it was necessary to consider the facts and circumstances surrounding the alleged commission of any offence, including mitigating factors, and the nature of the role played by the person whose conduct was under question. In the present matter, although Mr SRL had risen fairly quickly to a secondary leadership role with the JVP, he shared no common purpose or intent to commit violence or threaten violence and did not do so. His activities were peripheral and did not cause any harm to the persons he had approached, apart from economic losses which may have been caused by the closure of businesses. His conduct could not be thus be described as "serious" in the sense required by Article 1F(b).
Having regard to these submissions, as well as to the legal principles which have been outlined, and to the earlier findings concerning the activities engaged in by Mr SRL, the Tribunal is satisfied that there are serious reasons for considering that he was a knowing participant in activities that amounted to serious non-political crimes. These crimes consisted of being involved in the extortion of funds from wealthy persons in order to buy weapons and to further the campaign of violence and murder engaged in by the party of which he was a member. The nature of Mr SRL's involvement has already been set out (see paragraphs 67-69 above) and included the gathering of information from various banks and their employees about the accounts of potential extortion targets. Those who failed to comply with either the requests for information, or the ultimate provision of funds, faced the possibility of death at the hands of the JVP. The Tribunal did not believe Mr SRL's denials of making any threats, nor his stated lack of knowledge of any harm occurring to anyone who had refused to comply with any of his requests made on behalf of the JVP. Mr SRL's accessorial complicity in these offences of extortion may have been political, in the sense that they were intended to raise money to support the political aims and objectives of the JVP, but these aims and objectives involved the use of extreme violence against those who opposed their activities, including civilians caught up in the conflict simply because they happened to work in a bank or other business from which funds were being extorted. As such, these actions could not be said to fall within the characterisation of a political crime as the term was described in T v Secretary of State for the Home Department [1996] AC 742 at 786-787.
CONCLUSION
For the reasons which have been set out above, the Tribunal concludes that Mr SRL has failed to satisfy it that he is a person to whom Australia has protection obligations under the Convention because there are serious reasons for considering that he has been engaged in activities that infringe Article 1F(a) and 1F(b) of that Convention. Thus the decision under review is affirmed.

I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Chappell

Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 March 1997, 12,13 & 28 May 1997, 6 August 1997, 1 October 1997, 22 & 24 September 1998, 3 & 4 December 1998, 28 June 1999, 6 August 1999.

Date of last submission                 19 December 1999
Date of Decision  22 February 2000
Solicitor for Applicant  Mr Leonard Karp
Barrister for Applicant  Ms Elizabeth Wilkins
Solicitor/s for Respondent             Mr Paul Hardman, Mr Gregory Peek
Barrister/s for Respondent            Mr Neil Williams, Mr Richard Lancaster