"SRNN" and Department of Immigration and Multicultural Affairs - [2000] AATA 983

DECISION AND REASONS FOR DECISION [2000] AATA 983

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/497

GENERAL ADMINISTRATIVE DIVISION       )
           Re      "SRNN"
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date10 November 2000
PlaceSydney

Decision   The decision under review is affirmed.
  (Sgd 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) of the Refugee Convention – allegation of war crimes – crimes against humanity – serious non-political crimes – second lieutenant Sri Lankan armed forces – reservation agent Air Lanka – Captain Sri Lankan army – interpreter – interrogated members of Liberation Tigers of Tamil Eelam – consideration of whether a war crime has been committed – witness to torture – aware of purpose of torture – prepared to refer for more severe torture – involved in torture – war crimes committed – consideration of commission of crimes against humanity – involved in torture – accessory to torture – lacked credibility – involved in cruel treatment of civilians during course of military service – crimes part of a widespread and systemmatic process perpetrated by government security forces – consideration of commission of non-political crimes outside the country of refuge – evidence supports this contention – decision under review is affirmed
Migration Act 1958
The 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees
N1996/1441 v Minister for Immigration and Multicultural Affairs [1999] 51 ALD 459
N1998/532 v Minister for Immigration and Multicultural Affairs [1999] AATA 116
SRL v Minister for Immigration and Multicultural Affairs [2000] AATA 128
Charter of the International Military Tribunal
Geneva Conventions of 1949
Additional Protocols to the Geneva Conventions of 1977.

REASONS FOR DECISION

10 November 2000 Dr D. Chappell, Deputy President

BACKGROUND
Application for Protection Visa

Mr SRNN, a citizen of Sri Lanka, seeks review by the Tribunal of a decision, made by a delegate of the respondent on 9 March 1999, denying him a protection (residence) visa (sub class 866) under the provisions of the Migration Act 1958 (the Act). In refusing Mr SRNN's application the delegate found that he had failed to satisfy her 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 s65(1)(b) of the Act, and on the basis that Mr SRNN did not meet the criteria prescribed by regulation 866.221(3) of the Migration Regulations 1989 (the Regulations). Section 500(1)(c) of the Act confers jurisdiction on the Tribunal to review this decision.
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.
(T: 7)
In reaching her decision to refuse Mr SRNN's application for a protection (residence) visa, the Minister's delegate indicated that she was satisfied that Mr SRNN had committed war crimes, crimes against humanity, and also serious non-political crimes and his case therefore fell within the parameters of Article 1F(a) and (b) of the Convention's exclusion clauses (see in general T11). Following this refusal, Mr SRNN applied on 6 April 1999 for a review of this decision by the Tribunal (T1).
Hearing and Section 35(2) Order
This matter first came before the Tribunal for hearing on 3 February 2000. At the hearing Mr SRNN appeared in person and also provided personal testimony to the Tribunal. The Tribunal was grateful for the assistance of Mr Cuda Bibile, a Sinhalese interpreter who was present to facilitate the giving of his testimony and the general presentation of Mr SRNN's case.
The respondent was represented by Mr Richard Lancaster, of counsel, instructed by Mr J. Ambikapathy, a departmental advocate. No witnesses were called to testify on behalf of the respondent.
The Tribunal had before it documents, supplementary documents and further supplementary documents filed for the purposes of s37 of the Administrative Appeals Tribunals Act 1975 (T, S and FS documents). The following exhibits were also received into evidence on behalf of the applicant and respondent.
Exhibit No.     Description    Date
A1      Letter from Mr SRNN to Administrative Appeals Tribunal       9/11/1999
A2      Death Certificate of Wimal Ponnamperuma

At the outset of the hearing, because of the nature of the activities in which Mr SRNN 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 s35(2) of the Administrative Appeals Tribunal Act 1975 at the hearing on 3 February 2000.
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 proceedings. Mr SRNN first arrived in this country on 18 August 1998 on a sub class 676 visitor's visa valid for a period of three months. Mr SRNN was travelling on a Sri Lankan passport (see T5).
On 1 October 1998 Mr SRNN lodged an application for a protection visa (T6). In this application he stated that he had been born in Colombo on 10 November 1960 and that he belonged to the Sri Lankan (Muslim) Malay ethnic group and his religion was that of (Malay) Muslim. He also indicated that he spoke, read and wrote Sinhalese and English as well as speaking Tamil (T6: 21-22).
The application also detailed his educational and employment background. Mr SRNN stated that he had received his primary and secondary schooling between 1965 and 1978 in Colombo. He then served as a second lieutenant in the Sri Lankan armed forces from 1978 to 1983. Between 1984 and 1986 he was a reservation agent with the Sri Lankan airline, Air Lanka. From 1986 to 1989 he was a student and unemployed. Then between 1989 and 1993 he again joined the Sri Lankan army with the rank of Captain. From 1993 until 1998 he indicated that he was self-employed as a graphic screen printer (T: 25).
In support of his claim for refugee status Mr SRNN submitted an extensive signed statement, dated 1 October 1998, detailing among other things his activities as a military officer during two terms of duty with the Sri Lankan armed forces (T: 29-39). The descriptions given of these activities will be referred to in some depth later in this decision but they included admissions that while performing the duties of a translator at the time of the interrogation of persons suspected of being members of Liberation Tigers of Tamil Eelam (LTTE) he had witnessed various acts of torture. He also indicated that he had witnessed youths suspected of having LTTE affiliations being shot at random and arrested suspects being murdered. He indicated that because of the things that he had witnessed during the time of his service in the army, and also because of assistance he had provided to LTTE suspects, he decided to flee Sri Lanka and come to Australia.
Following receipt of Mr SRNN's protection visa application he was interviewed by Ms Kate Watson, a case officer with the respondent's on-shore refugee operations branch (T8). This interview took place on 10 and 23 December 1998. The interview was tape recorded and the services of both a Sinhalese and a Tamil interpreter were utilised. A transcript was made subsequently of extensive portions of this interview (see T8: 60-79; T9: 80-98).
At the conclusion of the interview Ms Watson indicated that she then informed Mr SRNN of the exclusion clauses contained in the Convention (T: 111). Following this advice Mr SRNN then made a further written submission to Ms Watson denying his involvement in any activities which would bring him within these exclusionary provisions of the Convention. These submissions stated, in part, that:
The Applicant wish [sic] to state that he had never involved in any inhuman activities against his conscience or involved in torture, harassment or murder of innocent civilians or victims of crime. He was solely performing his duties under the orders of the superiors and stayed as a by-stander having no powers to intervene, during barbarous and inhuman treatment perpetrated against the innocent Tamil civilians. The Applicant states that he had not inflicted any pain or suffering physically or mentally to any citizen of Sri Lanka or to any human being and had not committed any crimes against humanity or war crimes or serious non political crimes to be excluded from being granted the Protection of Australia under the United Nations Protocol. The Applicant pleads with the Case Officer to consider the above facts in deciding the application to grant the Protection of this country and plead that if there is any doubt as to the facts of this case, the benefit of the doubt should be given in favour of the Applicant.
(T: 101(a))
After receiving this submission, and giving consideration to the interview that she had conducted with Mr SRNN as well as a wide range of other documentary and related evidence, Ms Watson concluded that Mr SRNN was excluded from protection as a refugee (T11). In a most comprehensive and thorough analysis of this evidence Ms Watson, as the Minister's delegate, found that in the circumstances of Mr SRNN's case there were:
…strong reasons for considering that the applicant has committed war crimes, or crimes against humanity, or that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
(T:111)
As part of her decision record Ms Watson also provided the following detailed summary of her analysis of the various claims made by Mr SRNN during the course of her interview with him, as well as in his original written statement and later written submission:
Claims at interview:
…
2)The applicant joined the Sri Lankan army in 1979 and served until the end of his contract at the end of 1983. He held the ranks of second lieutenant and lieutenant. He served most of this term at army camps in areas in the north and north east of Sri Lanka, which are predominantly Tamil areas. These included Batticoloa, Mannar, Trincommolee and Palay.
3)The applicant claimed in his written application that Tamil was his mother tongue. At the second interview he said that his parents and family spoke Singhalese and Tamil was not spoken in his home as they did not want the neighbours to hear it. He learnt colloquial Tamil. The applicant claimed in his written application that although he was used to interpret during interrogations of LTTE suspects, he was never involved in torture, and kept himself at a distance whenever there was torture or murder. When large numbers of youths were detained and brought to the army camp, and were then murdered, the applicant witnessed youths being shot at random.
4)However, during two interviews with the case officer, the applicant said that he interrogated Tamil detainees at Palaly army camp and inflicted "low level" torture on LTTE suspects. He said that he started interrogating with torture after an incident in 1983 during which a number of soldiers were killed by LTTE in the Jaffna area. He later said that he started interrogations with torture after he and three army colleagues were captured by the LTTE, and he was released while his colleagues were held captive for a longer period. He said that he did this because he was under suspicion by the army hierarchy as having LTTE connections, and so they were watching him with suspicion so he followed orders. The applicant also said that he interrogated with torture because he had made an agreement with the LTTE that the LTTE would release his army colleagues if he arranged for the release of LTTE detainees at the camp. He said that his colleagues were later released by the LTTE.
5)At other times during the interviews the applicant said that he interrogated with torture because had he resigned instead of torturing he would have had to pay a fine for terminating his employment contract early. He said at another time that he wanted to torture to safeguard his job.
6)He gave extensive detail about his methods of torture and the process of referring non compliant detainees to another officer for "high level" torture which sometimes resulted in the death of the detainee. He said that torture was commonly used in the army, and politicians put pressure on the hierarchy of the army to use all methods including torture, and that pressure was experienced in all ranks.
7)The applicant explained the procedure thus:
8)A person would be brought in for questioning. This may be the result of information received, or it may because [sic] the person had passed the camp a number of times, or was in a gathering of people, or was in some other way acting suspiciously. The applicant would start off with the "normal procedure"2. The applicant would be seated at one side of a table with the interrogator at the other side. The suspect would be asked his personal details, and asked other information about his intentions. He would be treated nicely at first, given a cup of tea, a cigarette, "and establish an aura, an atmosphere of good will". They would use various stratagems, such as talking to them nicely, and telling them that if they don't tell the truth they will have to continue to be interrogated, but if they said what they knew they would be released. The suspect would be given three chances to tell what they knew before being subjected to torture. If a suspicion arose that they could not get "good core information" then that person would be subjected to torture.
9)The torture that the applicant inflicted was described in detail and diagrams3 were drawn by the applicant during the interviews. In summary:
10)The victims of the torture by the applicant had a thick chain tied to their wrists to hold their wrists together, and another thin chain holding their ankles together. These people were then hung by the chains over an iron rod which was suspended between two tables. Beneath them were burning coals of coconut [sic] shells, over which they were hung or swung. The applicant claims that he made it more humane by slightly bending the rod in the middle so that they hung at a sharper angle, and he then placed the coals at either end of the victim instead of directly underneath, so that the victim's extremities would be more effected [sic] than their backs. (This would appear to be because their wrists and ankles would keep sliding down the slope of the bent rod unless they managed to hold them apart). At the end of the session, the victim would be made to sign a statement saying that they had not suffered any injuries while interrogated by the applicant4. This statement was in Singhalese, a language unknown to the victims. The applicant said that innocent people who would talk sooner may only be hung for one hour, but more serious suspects may be hung for three hours5. During the torture the victims would be told that if they did not give the required information, another officer would torture them more severely6.
11)If the detainee still did not comply, the applicant would refer the detainee to another officer who would inflict severe torture, sometimes resulting in death. The applicant sometimes acted as an interpreter during these high level torture sessions, and was injured on one occasion when a detainee struggled and a hot iron rod was pushed onto the applicant's arm.
12)The applicant finished his five year term of army service in 1983 and went to work for Air Lanka as a reservations clerk. In 1986 he came under suspicion by CID of assisting LTTE suspects to leave Sri Lanka. His friends in the army recommended that he rejoin the army so that the CID officers would leave him alone.
13)In 1989 the applicant rejoined the army and served mostly in the southern provinces assisting in the prisons and army camps. He named Boosa army camp, Welikada prison in Colombo, Bogamba prison in Kandy and Kutukurunea as some of the places in which he worked during this second term. He said at interview that he did not torture during interrogations that he conducted during this second term in the army as there were special teams to do this. The teams who tortured at this time were often composed of non army thugs who were recruited for that purpose around Colombo7. He did, however, assist by interpreting between Tamil and Singhalese during interrogations with torture of LTTE suspects in his second term.
14)During the applicant's second term of service with the army, the army committed atrocities against Singhalese youth who were suspected of being members of the JVP terrorist group, (as well as continuing the severe human rights abuses against Tamil LTTE suspects). Indeed, the applicant reported that he witnessed severe torture and death of a Singhalese JVP suspect during this second term, in a large grain silo which was being used as an interrogation centre8.
15)The applicant also described how some detainees would be put onto an old tyre and burnt to death by army officers, (which was a form of killing often documented in articles as having been perpetrated upon JVP members).
16)However, there is no evidence that the applicant was involved in torturing JVP suspects, and at the two interviews the applicant only mentioned that he tortured LTTE (Tamil) suspects and assisted in Tamil interrogations.
17)The applicant claimed that he assisted innocent Tamil youths to be released by becoming a go between in bribing police and army officials.
18)The applicant's written statement with his application claims that when the applicant left the army after a second term, he was again under surveillance by the CID. In 1996 and 1997 the CID started to harass him. His father and friends advised him to leave Sri Lanka as he had witnessed many atrocities by the security forces and feared that as a Tamil speaking Moslem he would eventually be taken to prison and murdered.
Post interviews submission:
1)The applicant submitted that he spent most of his time at Palaly camp interrogating suspects. He acted mostly as a translator. Due to an increase in LTTE atrocities he was "forced to deal with suspects to get information using his own method. (f.61). He did not engage in torture. When a Tamil girl was being raped by four officers the applicant moved out of the area in order to avoid witnessing the act.
2)The applicant was ordered by security officers to ask for bribes.
3)He was solely performing his duties under orders of the superiors, and had no power to intervene during barbarous treatment of innocent Tamils [sic] civilians.
(T: 108-111)

Within this broad contextual framework it is intended to examine the evidence in this case under four headings. First, information about Mr SRNN's family background and his decision to join the Sri Lankan armed forces is reviewed. Second, consideration is given to his activities as a military officer during his first tour of duty with the armed forces from 1978 until 1983. Third, a review is made of his second tour of duty with the army between 1989 and 1993. Fourth, Mr SRNN's activities are examined in the post-army period from 1993 until his departure for Australian in 1998.
Family Background and Decision to Join Army
Mention has already been made of Mr SRNN's date and place of birth. In his written statement submitted with his protection visa application Mr SRNN had the following to say about his family background and the decision to join the military upon the completion of his secondary education:
I am a Sri Lankan Malay Muslim and I fall under the category of a refugee defined by the 1951 United Nations Convention relating to the status of refugees as amended by the 1967 Protocol. The following facts stated herein would explain in detail the reasons why I fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. As I am presently outside Sri Lanka, I am unwilling to avail myself of the protection of that country owing to the above well-founded fear. I wish to emphasise that as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned, I submit that for the most part they are indistinguishable from each other.
I was born in Colombo and lived with my parents at 22/5A Edmonton Road, Kirillappana. Though my mother language is Tamil my parents urged me to join the Sinhalese school to study in Sinhalese medium for a bright future in Colombo. I am an old student of Isipathana Maha Vidyalaya in Colombo 5. My father is a retired Superintendent of Police and was involved personally in helping a lot of innocent people whether they were Tamils, Muslims or Sinhalese to save them from being harassed by the Sinhalese security officers. My father always encouraged me to join the forces during my school days and after I completed the O.L examination I joined the Sri Lankan Armed Forces in 1978 as a 2nd Lieutenant.
(T: 32-33)
In the course of his personal testimony to the Tribunal Mr SRNN said that he had been raised as a Muslim. His father, who had spent about 35 years in the police force was retired on a pension in about 1990 or 1991. His decision to join the armed forces was a voluntary one and he had not been conscripted in any way. His father had no objection to him joining the army but his mother was opposed. However, she was subsequently persuaded to allow him to follow this career because she had a relative, a Brigadier, who was in the army (see transcript 11 May 2000: 2-5).
When he did join the army Mr SRNN said that it was not because he wished to kill people or to commit any crime. Rather he was attracted to the armed forces by the uniform and other things which surrounded military service. At the time that he had joined, the army was not involved in fighting and no future war role was envisaged for it (see transcript 3 February 2000: 27-28).
First Tour of Duty: 1978 - 1983
While Mr SRNN claimed that at the time of his joining the Sri Lankan army it was not involved in any form of "frontline" hostilities the political and related situation in Sri Lanka was far from tranquil. Since gaining its independence from Britain in 1948 Sri Lanka has experienced significant periods of violence and civil unrest, especially between the Sinhalese majority of the population and the Tamil minority. As a United Nations report on human rights abuses in Sri Lanka reported in 1992:
8.Currently, Sri Lanka is estimated as having over 16 million inhabitants, of which the Sinhalese comprise 74 per cent and the Tamils 18 per cent. The Moors form a minority with seven per cent. The Tamil population itself is made up of "Ceylon" or "Jaffna" Tamils (69 per cent), with a long history on the islands and the "Indian" or "Estate Tamils" (21 per cent), descendants of labourers brought from southern India under British rule to work on coffee, tea and rubber plantations. In regard to language: Tamils speak Tamil, Sinhalese speak Sinhala and Moors mostly speak Tamil, as the majority of them originally came from the neighbouring Indian State of Tamil Nadu. In terms of religious affiliation, approximately 70 per cent of the population are Buddhist, 15 per cent Hindu, eight per cent Muslim and seven per cent Christian (mostly Roman Catholic). Almost all Sinhalese are Buddhist and almost all Tamils are Hindus; the Moors are Muslim. Buddhism is the religion specifically favoured by the Sri Lankan Constitution.
9.The Sinhalese form the majority except in the former Northern province and the districts of Batticaloa and Kegalle, where the population is predominantly Tamil and in the former Eastern province as a whole, which has almost equal numbers of Tamils, Sinhalese and Muslims. There are Tamil and Muslim communities in all other parts of the country, but they are in the minority there.
10.In 1948, upon independence, those Indian Tamils who did not opt for Sri Lankan citizenship were disenfranchized. Later, in 1964, an agreement was reached whereby India committed itself to take back 575,000 of the Indian Tamils and Sri Lanka to grant citizenship to about 300,000 of them. The agreement was only partially carried out. Demands by Tamil politicians during the last years of British rule for a system of government which would grant greater autonomy to minority areas were rejected.
(S27: 404-405)

The United Nations report went on to note that violence in Sir Lanka had been of three types – communal or ethnic violence; political violence, including terrorism; and violence by security forces. The first significant outbreaks of communal violence between the Sinhalese and Tamils had occurred in 1958 when hundreds of people were killed and then with similar and increasingly serious clashes which took place in 1977, 1981 and especially in 1983 (S27: 405).

In 1976, 20 years after Sinhala had been declared the only official language of Sri Lanka, replacing English, the first national gathering of the Tamil Liberation Front (TULF) called for the establishment of a separate Tamil State of Eelam. Although initially the TULF set out to achieve its objectives through peaceful democratic means, in 1978 political and terrorist violence erupted through the establishment of the LTTE. The report went on to state that:
17. … Armed opposition to the Government was subsequently taken up by other Tamil separatist groups formed in the north of Sri Lanka in the following years. Initially, action was targeted against police in Jaffna, but soon began to take on wider dimensions. Opposition grew, despite attempts on the part of the Government to suppress the armed separatists. In 1978, the Constitution proscribed any form of advocacy of a separate State. After the communal clashes in 1983, an amendment to the Constitution banned any political party advocating secession, a move directed at TULF.
18.By 1983, the armed campaign for an independent Tamil State (to be comprised of the north and north-east of Sri Lanka) had become persistent. In July of that year, Tamil militants escalated their armed fight for independence, killing 13 soldiers in Jaffna district in July. Widespread internecine strife between Sinhalese and Tamils living in southern areas followed. Extremist elements among Sinhalese nationalists in urban areas began to attack the Tamil population in an effort to drive them away, by means of violence, from the south. The Government at the time allegedly did not appear to take effective measures to protect the Tamil civilians and their property nor to prevent repetition of anti-minority violence. Displaced Tamils in the south were sent to the north, increasing pressure on resources in that area, including land, water, food and employment opportunities, and reinforcing separatist sentiments. Many concerned individuals and organizations began to realize the danger of ethnic riots turning into events of more threatening magnitude and intensity.
19.In 1983, the first few cases of disappearance began to be reported. In the years that followed, Tamil separatist violence claimed numerous victims, both among the civilian populations and the security forces, and began to break down the regional infrastructure.
(S27: 406)
It was against this troubled background that Mr SRNN served his first tour of duty with the Sri Lankan army. In his written statement he indicated that he was transferred initially to Jaffna, Trincomolee and Batticoloa in Northern Sri Lanka where he was involved in the administration and maintenance of armed vehicles. During this time he said that he witnessed "unfair harassment, torture and murder of LTTE suspects and innocent civilians for racial reasons" (T: 33). Mr SRNN said that he was then transferred to Jaffna Palaly army camp where he spent most of his time involved in the interrogation of LTTE suspects:
As I could speak Tamil fluently the Sinhalese officers used me as an interpreter during the interrogation. I was always staying as a by-stander and never involved myself in the torture perpetrated against the innocent Tamil civilians. As I have relatives in Mannar, Trincomalee and Batticaloa who are married to Tamils and as a Tamil speaking person, I kept myself at a distance whenever interrogation lead to torture and murder. As I could speak Sinhalese language fluently as well I had many army officers who were very close to me as friends. (Most of them are now promoted to the position of "Major"). As time passed the combat between the army officers and the LTTE started to aggravate. Some of my friends in the armed forces were murdered by the LTTE militants and the end result was the murder of innocent Tamil youths who were suspected of involvement. I was summoned by the senior Major Generals to assist them during interrogation and I was forced to deal with the suspects to get information using my own method. I always refrained from torturing the suspects but used by influence to release the innocent youths without being subjected to further torture. Because I am a Malay Muslim, the Sinhalese army officers never suspected that I would act against the torture and murder of innocent youths who had been influenced by the LTTE.
After the murder of the 13 soldiers in Thirunelvely, Jaffna in 1983, the army officers went on a rampage to destroy the surrounding areas in suspicion of LTTE infiltration and killed innocent Tamils and brought back to the camp large number of youths who were eventually murdered. As I was always on the run I witnessed youths being shot at random and the arrested suspects being murdered mercilessly.
(T: 33)
In September 1983 Mr SRNN said that while travelling with a number of army colleagues he was ambushed by the LTTE and take captive. Because he spoke Tamil he was taken away from his colleagues and threatened with death if he did not cooperate in providing information about various military matters. He agreed to cooperate with them in order to try and save his colleagues in exchange for the release of certain LTTE youths held in captivity at the Palaly detention camp. He was then released by the LTTE but was regarded with suspicion by his superiors who suspected him of becoming a LTTE collaborator. His colleagues were eventually also released by the LTTE as a result, Mr SRNN claimed, of his own efforts. He was then advised to resign from the army because of the suspicions held about him by senior officers. He stated that:
I immediately left the job with my father's and my friends' advice and joined the Air Lanka as a reservation agent.
(T: 35)
In the course of his interviews with Ms Watson in December 1998 Mr SRNN provided a far more detailed account of his interrogation activities during this period of duty with the army. He told Ms Watson that the tour of duty was for a contractual period of five years that concluded towards the end of 1983. A significant financial penalty was provided in the event of anyone who resigned prior to the completion of their contractual term (see T: 61-62). Mr SRNN said that it was this financial penalty which deterred him from resigning even though he witnessed persons being tortured and also participated in the interrogation of various people.
According to Mr SRNN his interrogation of captives took place mainly in 1983 and after the incident when he had been captured by the LTTE. As already noted in the passage cited from Ms Watson's extensive summary of her interview with Mr SRNN, he provided her with both a detailed description and diagrams of the methods he used when interrogating suspects. This diagram and description appears at T: 65-67. Mr SRNN was then asked by Ms Watson what would happen if a person did not speak after being subjected to this form of torture. Mr SRNN said that if this situation arose he would hand the person over to another "torturing officer". The following exchange then took place between Ms Watson and Mr SRNN:
CASE OFFICER:
OK. As you were the interpreter, you would have been needed to be present during the torturing as well. Wouldn't that be right?
INTERPRETER:
That was during my eight hour working period. In case that torturing was done during outside my eight hour time there would be another person called to do that thing. In that point they also tried to cross examine [sic] the person who is being tortured and they also when they retorture [sic] with another person they judge the answers, they compare the answers that were given during my period and the other person's period.
CASE OFFICER:
So they'd torture the person again to make sure that the answers were the same with a different interpreter. Is that right?
INTERPRETER:
Yes.
CASE OFFICER:
So were you ever interrogating on your own when you had someone hanging on the bar?
INTERPRETER:
I didn't do much torture because I was unable to get away from my orders or my job. When they were hung on that iron bar, under that there was a plate or something similar to that where the burning flame was coming out. It was a boiling flame without (indistinct) a gas sort of a thing was coming from that And [sic] when that was heated we pushed the person by the legs towards there. We keep on pushing. We start swing or push the person
CASE OFFICER:
Over the flame
INTERPRETER:
On the iron bar. On the iron bar. He wants to show you. (applicant drawing another diagram (2)) [sic] in red pen)
This is going to be the down one.. it's going to be the pit coals or something, with the burning sensation. And the man is hanging now like this. And when this gets heated the (indistinct) comes to here. The plate where the coal or something is there feeling the burning sensation is done, if the bar swings this way then he swings this way.
CASE OFFICER:
Ok, so the applicant is showing between the table and chair just demonstrating, the person would be lying between the bar with his hands
INTERPRETER:
with his hands, and on the other side the legs are hung, on that iron bar, and that plate where the coals are giving a burning sensation is down.
CASE OFFICER:
Yes, right.
INTERPRETER:
If I swing him that way from there he'll be swinging like this.
CASE OFFICER:
Over the flame. So the fame [sic] would be directly underneath him? Right OK, the applicant is indicating the middle of his back. OK. Thankyou [sic].
So when you were interrogating on your own did you swing people over a flame?
INTERPRETER:
I was forced to do it because my high authorities were watching me so I had to do it. That was the highest type of torture I give. I didn't have a mind to do further. Because my high authorities were watching closely what type of torture I was giving.
(T: 67-68)
Mr SRNN said that he had never been asked to do more extensive torture himself. He also said that:
…if the suspect is to be higher suspected person of LTTE or so, he will be handed to other person who is torturing them in the maximum. And I have seen people killed or die due to heavy tortures by other officers.
(T: 69)
Mr SRNN also said that:
There was a vast difference between the torture done by others by hitting, bending, cutting and other things and the type of torture that I did. Somepeople [sic] when they torture they take heated iron bars and burn, and all these marks will indicate what type of torture and the difference between the torture that I did and they did.
In the type of torture that I did they also ask that between the plate or the place the burning sensation was coming and the man was hanging, so it will not hurt the person much like taking an iron bar and hitting. I have seen the form of torturing where they have heated the iron bar and taken it and having (indistinct) or placing it on the body of the innocent people.
CASE OFFICER:
So when you were doing the interrogations with the people hanging between the bars, with the heat underneath them. For how long would you interrogate them in those circumstances?
INTERPRETER:
Sometimes it goes on for three hours. And in case we have an innocent person to be tortured that would be only one hour. And the man if he is innocent he tries to tell the truth as soon as possible and he is released. Main reason for torture was to find out where these camps and ambushing camps are located and to find such information, in order to get such information.
(T: 69-70)
Mr SRNN then went on to say that he did not think he had tortured "more than five people". He also said that the reason why he had done the torturing "was to safeguard my job until I left the job for good" (T: 70). Ms Watson then asked him what was the most serious torture that he had witnessed during the time that he was also translating. Mr SRNN then queried "shall I try to show it to you or draw and show it to you?". Ms Watson said that he could use whatever method he preferred. Mr SRNN then went on to describe how the person had had his hands and legs stretched out diagonally against a wall and then heated iron pliers had been used to pull the person's sexual organs. He went on to say:
while that was being done, another person takes a chain and he beats up with the chain. And there are some other iron, small small iron flask they keep the, warm the iron bars under the eyes, this place. All at the same time.
(T: 71)

Mr SRNN said that he was translating on one occasion for a person who was undergoing this form of torture:

… And in [sic] one occasion when that person was troubling with that iron bar, that came and effected [sic] my hand too. That burn me. The way the man struggled, that came and hit me and that burned my … [elbow].
(T: 72)

Mr SRNN said that he had to stand very close to the person being tortured because he was not able to talk "very highly", "that was the bodily highest torture which I witnessed. And I didn't want to witness or see such a torture." (T: 73).

In the course of his personal testimony to the Tribunal Mr SRNN denied having witnessed people being killed or dying due to heavy tortures by other officers (see in general transcript 10 May 2000: 10-17). In the course of an extensive cross-examination by Mr Lancaster, Mr SRNN said that he had left the army around 14 August 1983 and he had only become aware of deaths of suspects under interrogation after that date as a result of him playing rugby matches in company with former military colleagues. He also said that he heard of certain instances of fatalities occurring during heavy torture:
Because in the evenings, maybe at the officers' mess, some officers after they have had little liquor their tongues would start wagging and they would come out with what they did.
(transcript 10 May 2000: 10)

Mr Lancaster put directly to Mr SRNN why, if this was now his evidence, he had told Ms Watson in his interview that he had seen people killed or die due to heavy torture. Mr SRNN then responded by saying that the interpreter who had been used at the interview had not interpreted what he had said accurately and correctly and this was the reason why he was now appealing against the decision to refuse him a protection visa. What he had really said at the interview was that he had heard about people being killed (transcript 10 May 2000: 11-12).
Second Tour of Duty: 1989 - 1993
Following his resignation from the army at the completion of his five year contractual term Mr SRNN confirmed, during the course of his personal testimony, that he had been employed for a period of about three years (1984 – 1986) as a reservation agent for Air Lanka. In the course of this work he had used English in his normal day to day dealings. He then spent a period as a student between 1986 and early 1989 when he decided to rejoin the army. He said that this decision to resume a military position was the result of some family pressure, particularly from his mother and her relatives. He had entered into another five year contract but this was a conditional enlistment and one of these conditions was that he should not be transferred to the north of the country where there was still fighting going on. The second condition was that he should not be involved in any way in this ethnic conflict that was going on, even as an interpreter (see transcript 10 May 2000: 21-22).
Mr SRNN said that these conditions were purely oral and not written in any contract. These had been agreed between him and the recruiting officer who was a brigadier and a relative. Mr SRNN said that on the second tour of duty he had been initially placed in the accounts branch as a computer operator but then with the changing political conditions he was again deployed to work as an interpreter (see transcript 10 May 2000: 22-23).
Mr SRNN told the Tribunal that he believed his second period of service with the army commenced in about February or March 1989 (see transcript 11 May 2000: 4-5). At this time Sri Lanka again entered a period of extreme political instability and violence as the following extracts from a United Nations report indicate:
27.      In mid-1988, the Government launched a strong counter-offensive by arresting and killing JVP rebels. Both sides adopted a tactic of "exemplary killing" as a means of instilling terror in the civilian population. Mutilated bodies placed at roadsides or in market places were a regular sight in many parts of the south in the years 1988 and 1989. Hundreds of bodies were seen burning on tyres or washed up on the shore.
28.      The conflict in the south took a particularly violent turn after July 1989 when JVP appeared to make a final thrust towards capturing State power. Its tactics included enforced work stoppages, intimidation and assassination. In addition, for the first time ever, to the consternation of the police and the army, JVP started attacking and killing their families, … living locally or hundreds of kilometres away. To thwart the JVP military offensive, the State launched a generalized counter-insurgency campaign. The armed forces and the police appear to have been given a wide latitude of action to eliminate the rebel movement and restore law and order in any way they saw fit. Security forces were ordered to shoot curfew violators and demonstrators on sight. Some alleged that anyone suspected of being a subversive was often arrested and shot summarily. Emergency regulations allowed for the disposal of bodies without the post-mortem inquest or confirmation of identity required in ordinary circumstances.
29.      Reports indicate that in the autumn of 1988 the security forces used their new powers liberally as political violence intensified during the presidential election campaign. JVP had boycotted the elections. As people went to the polls amid widespread JVP intimidation, security forces were reportedly ordered to use maximum force to ensure unhindered access to polling stations.
30.      By the end of November 1989, the armed forces put down the revolt when they succeeded in capturing and executing the nucleus of the JVP leadership, after the killing of hundreds of members of the political opposition had been attributed to it. Conservative estimates put the number of deaths during this period of violence at over 40,000. For the same period, the Working Group has to date recorded over 2,700 cases of disappearance.
31.      An important new feature in combating the JVP uprising was the proliferation of death squads whose main task was to kill suspected rebels and sympathizers. After resumption of the fighting in the north, similar paramilitary and vigilante units would become operational there (the "Black Cobra" being especially notorious), engaging in fearsome forms of exemplary killing. As in the south, they would operate in plain clothes and move about freely in unmarked vehicles, passing roadblocks unhindered. Such groups are widely believed to consist of members of the security forces, but this is denied by the Government.
32.      As the south was being pacified, hostilities in the north resumed. Even as IPKF withdrew, heavy fighting was reported between LTTE and the Tamil National Army (TNA) a combat unit forcibly recruited by Tamil factions with the help of the Indian forces. Hundreds of persons were reported killed and thousands of Tamils fled to India and other countries. LTTE took effective control in the north-east after the retreat of the Indian army.
33.      In September 1990, an all-party conference was convened on the issue of devolution of power in the north-east with the intention of resolving the ethnic conflict. Initially, a total of 18 political parties took part, but some shortly withdrew. Charges were made that since the main opposition parties were not participating, the conference could not be effective. LTTE ultimately attended as an observer; JVP refused to take part. After much negotiation, the conference failed to reach agreement between the Tamil and Muslim groups regarding equal status and power as well as the merging of the north and east (although the north and east were merged into one province). Throughout his term of office, President Premadasa has advocated the solution of the ethnic conflict through consultation, consensus and compromise. At present overtures are being made to bring the parties concerned to the negotiating table.
34.      On 10 June 1990, LTTE, breaking a 14-month cease-fire, occupied Batticaloa police station. The next day, the Tigers ordered police officers in the east to vacate all police stations. A government attempt to negotiate a last-minute cease-fire failed. Attacks on police stations and army camps throughout the north-east continued. The Government responded by redeploying troops from the south to the North-eastern province. In August 1991, the army carried out Operation Balavegaya, with the entry of troops into the besieged Elephant Pass army camp. Official sources reported 162 servicemen killed in the attack, while over 2,000 LTTE casualties were recorded. The battle for the north continues to this day.
35.      The Muslim communities in the North-eastern province are severely affected. The Working Group visited one Muslim community which is constantly being besieged by LTTE. Unable to till their lands and surrounded by army outposts for their protection, the inhabitants of the town of Valtruniya are entirely dependent on food transports. Muslim Home Guards act as a civil defence unit; they are armed and trained by the Sri Lankan army and often act jointly with them against LTTE cadres, a form of cooperation which has provoked retaliatory action by the Tamil insurgents. Many Muslims have fallen victim to surprise attacks. Over 300 members of the community have been abducted to date. Two particularly horrifying events took place in 1990 when LTTE, in separate incidents, indiscriminately fired upon and killed approximately 100 Muslims in two mosques, while the victims were at prayer.
36.      LTTE has also consistently carried out arbitrary execution-style killings of hundreds of civilians, including large numbers of Sinhalese and "dissident" Tamils. The insurgents are also responsible for many cases of abduction and torture of prisoners, including policemen and other government officials. Since June 1990, over 700 policemen have been killed in Batticaloa district alone. The overall number of troops killed since June 1990 stands at over 1,400, with over 600 still reported missing.
37.      In June 1990, after the departure of the Indian troops, the Sri Lanka army came back to the north, publicly vowing that the same strategy was going to be applied against LTTE as had been used to put an end to JVP terror in the south. Even though the Government repeatedly stated that the military action was intended to destroy LTTE alone and was not directed against the Tamil population of the north-east as a whole, the then Minister of State for Defence (since assassinated) announced an all-out war. A fierce counter-insurgency campaign ensued, reported to have led to mass killings and arrests, large-scale round-ups of non-combatant civilians and an almost total breakdown of civil administration. It is estimated that between June and September 1990, more than one million people were displaced by the fighting in the north-east. As of January 1991, over 210,000 had fled to southern India, and more than 5,400 had been killed. Since the resumption of hostilities in June 1990, the Working Group has recorded over 2,000 cases of disappearance (see chapter III) from that area.
(S: 408-410)
In his personal testimony to the Tribunal Mr SRNN said that during his second tour of duty with the army he had performed certain duties which included participating as a translator at interrogations of suspects. These interrogations involved more violent procedures. The then President of Sri Lanka, Mr Prema Dasa, encouraged the army to take a harder line with suspects. He also established centres for torturing people and formed his own death squads. Both LTTE and JVP suspects were brought in to be interrogated. The number of army camps multiplied as did the detention centres for these suspects (see transcript 10 May 2000: 24).
Mr SRNN agreed under cross-examination that he had witnessed beatings in the course of interrogations. He also said that he had to obey orders and had translated during the course of severe beatings and torture. He denied that in the earlier interview with Ms Watson he had said that he had applied physical violence himself to some people that he was questioning. He said that this was an error made by the interpreter and he was only giving examples rather than indicating a direct involvement on his part (see transcript 10 May 200: 26-28).
Mr SRNN was asked to give further examples of severe tortures that he had witnessed. He responded by describing how chilli powder had been sprinkled on lit charcoal in an open pot and the person subject to interrogation would inhale this which would affect his entire body, particularly the lungs and abdominal area. There was also another method which was to suspend a person by his hands which were tied with chains and then suspended and then continually beating that person. He had also witnessed the beating of a person with a red hot iron (see transcript 10 May 2000: 28-29).
Mr SRNN was also questioned by Mr Lancaster about an incident of rape that he had witnessed. The first mention by Mr SRNN of this rape occurred in the written statement that was provided at the time of his original application for a protection visa (see T: 36-37). In that statement he had referred in general to the work that he had performed as an interrogator during the course of his second tour of duty. His statement read, in part, as follows:
After the Peace Talk collapsed in the earlier part of 1990, the Sri Lankan armed forces and the LTTE once again started to wage war and it turned out to be dangerous for any one [sic] to escape CID investigation in Colombo. As I was in the army I managed to keep away from direct contacts with the prisoners. My friends were sent to Jaffna once again and I was asked to work in different army camps such as Panagoda, Maharagama and Boosa army camp etc. I was once again brought back to act as a translator. The army officers couldn't trust anyone else out side [sic] the forces due to LTTE influence among the different nationalities in Sri Lanka. As a Tamil speaking officer I was called frequently in midst of the interrogation. In the capacity of an Army Captain I couldn't refuse to act as ordered. I refrained from being involved in administering torture in order to get the suspects to speak the truth. The method of torture turned out to be so barbarous that I couldn't put up with it. It turned out to be that if I left the forces I would be branded as LTTE sympathiser by the CID officers. I would be able to explain in detail the different method of torture that I saw with my own eyes. I was shocked to see the cruel method of torture on the innocent youths and I started once again to help the innocent youths to get released using my influence among the forces.
I advised the suspects to bribe the police and the army officers to get out of the prison. The security officers on the other hand used me to get the innocent people to bribe them for the release of their beloved ones. I found it unreasonable and unfair to obtain bribe from poor people. The officers warned all the relatives to send the suspects out of the country once they were released so that they could avoid prosecution. I was fearing every minute that I would be found as an accessory for obtaining bribe from the citizens. Unfortunately the political situation was such that those who informed the senior officers about the bribe were harassed and assaulted to a very bad extent by the security officers that they left the country for good or kept their mouth shut. As an officer I was forced by the senior officers to obtain bribe from the Tamils mostly for the release of the detainees. Most of the Tamils from Colombo came to know me and they approached me to bribe the police, CID and the army officers to get their beloved ones to be released. In 1993 I was asked to report at the army camp for an interrogation of a Tamil girl and because of her refusal to pay the bribe she was repeatedly raped by the four officers till she bled. Before it came to the notice of the other senior officers the officers got the women sent out of the country. The army officers wanted me to get back to Palaly camp with them in Jaffna to get me out of Colombo. I promised not to leak any message with regard to the above incident. They threatened to kill me if the matter was brought to public.
After witnessing the above incident I resigned from the post and started to do my own printing business with the help of my father.
(T: 36-37)
In the course of his cross-examination by Mr Lancaster Mr SRNN said that he had not witnessed the actual rape because the officers who were involved in it asked him to leave the room and when they were outside they heard the cries of the girl. Following this admission the Tribunal also asked Mr SRNN a number of questions regarding this particular incident (see transcript 11 May 2000: 21-22). Mr SRNN said that the incident had occurred at a camp called Babuniya and that he had been asked to drive to that camp with a superior officer. He had not acted as an interpreter on this occasion. He had been ordered to leave the room and he did leave the room while the girl was being interrogated.
Following this series of questions by the Tribunal, Mr Lancaster asked further questions about the rape. During the course of this further questioning the following exchange took place between Mr Lancaster and Mr SRNN:
MR LANCASTER: You were in the room while she was being questioned weren't you?
THE INTERPRETER: I remained in that room for about five or 10 minutes. I may have heard three questions being asked, that's about all.
MR LANCASTER: And you are well are aware that – do you know what happened to that Tamil girl?
THE INTERPRETER: Well, as this girl was – had been raped later on I got to know that most probably after the incident they would have killed her. You see, after the time that I disclosed that incident here at this Tribunal it had been kept a secret in Sri Lanka purely because if they – they did not kill that girl, as I got to know later on, she may have been able to contacts – give the information out and that would have affected – or that could have been something that would have affected the officers who were involved in that camp.
There was also this fear that she could have, through various means, contacted the media and described this incident and that would have been – would have adversely affected these officers. I saw the girl and I – she was very attractive, very attractive, a nice person. She struck she was a very nice person and the first thought that came to my mind was, why had a girl who was as attractive as she was, joined the LTTE where else she could have forget all that and lead a nice peaceful life. Even she had such a pleasing attractive personality, I could say that, during my service in Jaffna this had been only the third or the fourth girl I had seen who had that attractive and pleasing personality.
MR LANCASTER: SRNN, I suggest to you that that answer demonstrate an extraordinary lack of compassion on your part about the fate of a suspect held by the Sri Lankan Army.
THE INTERPRETER: Even if I showed compassion to that girl it was practically impossible for me to see that she was not subjected to the three. What authority did I have to go and order an officer, senior to me, to stop treating that girl in that fashion. I was powerless. However, I could not – I'm sorry, I could not – I mean, could you ever expect me to abduct that girl from that place where she was being questioned by senior officers?
MR LANCASTER: This young woman was raped and probably killed by the organisation of which you are a part and all you can do now is to ask why she ever joined the LTTE in the first place; that's the position, isn't it?
THE INTERPRETER: Please understand that they were carrying on what – those senior officers were carrying on what they thought were their duty – duties in interrogating. What power had I to say that: look at this girl, she's an attractive girl, I cannot understand why she joined the LTTE. I could – I had no place there to express either those views or even sustain any other way. You see, if I had – was foolish enough to make a statement showing my compassion for that girl they would – they would make sarcastic remarks stating: now do you want to marry this girl? Do you want to take this girl as your mistress and live in Colombo with her? Now, these were officers, these senior officers were those who through their political clout had gained these positions.
(transcript 11 May 2000: 30-31)
In addition to his detailed questioning about the rape incident Mr SRNN was also asked a series of questions about his service in a camp at Palaly. Mr SRNN said that he was deployed to Palaly on 11 September 1991. This camp was on the Jaffna Peninsular where the conflict with the LTTE was being conducted. There was a detention centre at this particular place where between 20 to 30 suspects were kept who had been captured in fighting or brought in because of suspicions about their membership of the LTTE. Mr SRNN's major duty at this centre was to undertake preliminary interrogation to elicit basic facts from suspects (see transcript 11 May 2000: 16-20). If suspects failed to cooperate they would be taken to another place where they would be subject to other methods of interrogation. Mr SRNN described these various activities in the following way:
THE INTERPRETER: What would have happened normally would have been that he would have been – his hands and legs would have been tied, a pole inserted under his – as I described earlier, under his knees, suspended from a desk or whatever it is and questioned in that fashion. There were no amenities there to say, hang people with chains and punch them and do all that other thing and some sustain that kind of torture at Palaly Camp - … for high level torture or that type of thing, these people would be sent to Colombo because there was special torture chambers built for that particular purpose in Colombo at the time and they would be sent and then they'd be taken to those places for interrogation and torture.
(transcript 11 May 2000: 19)

Mr SRNN said that everyone was well aware of the fact that people were being sent to Colombo. He had not seen the torture chambers and their location was kept secret. However:
When such a person was sent to Colombo and we felt that they would be interrogated at one of the torture chambers, my belief was that that person wouldn't have no future at all since, that his life would be ended there. As a matter of fact, we had a jocular saying that once a person was sent to such a torture chamber, we would say 'I'm sure we wouldn't be able to find his postal address'.
(transcript 11 May 2000: 20)
Mr SRNN said that of the 20 or so suspects who were usually held at any one time at the Palaly camp about four or five of them would be sent subsequently to Colombo.
Post-Army Period: 1993 – 1998
Mr SRNN's second tour of duty with the army ended in 1993. According to his written statement, following his termination of military responsibilities he went into a private business as the managing director of a graphic screen printing company. He also became involved in a number of other activities:
Due to my help in the community I had enough friends who could assist me in development of the business. Unfortunately the CID officers were in constant watch over me. My wife started to work in the travel trade and I introduced a lot of clients to the travel agents where my wife worked. In the beginning as a Sinhalese women [sic] the CID police officers never suspected her of LTTE involvement. But as time passed the Tamils who were arrested by the CID officers passed information with regard to my wife's help in obtaining passports and tickets for their travel. On the other hand the police and the army officers contacted me to get the people to pay the bribe for the release of newly arrived Tamil youths who were detained. To run my business smoothly I had to satisfy them so I passed the messages that were given to me by the above officers to the respective parties to pay the bribe directly to them. The travel agents and the Tamils whose relatives were taken to custody approached me to get the officers bribed for their release of their beloved. As I had contacts with my friends I could easily help both the security officers and the people concerned.
(T: 37)
Mr SRNN also claimed that in 1996 and 1997 he began to be harassed by the CID. He was assaulted by the police and subjected to other forms of harassment. Eventually he decided to leave the country because he feared for his own safety.
CONSIDERATION
Contentions
The issue which must be resolved by the Tribunal in the present case is whether, on the basis of the evidence before it, Mr SRNN is excluded from the protection afforded by the Convention by reason of the operation of Articles 1F(a) and (b) of that international instrument.
In its extensive Statement of Facts and Contentions, as well as in additional written submissions made at the conclusion of the hearing, the respondent contended that Mr SRNN should be excluded from such protection because the evidence showed that there were "serious reasons for considering" that as a matter of fact and law Mr SRNN had committed war crimes, crimes against humanity, and/or serious non-political crimes outside the country of refuge.
As noted earlier, Mr SRNN was not represented by a lawyer at the hearing. He did not lodge a Statement of Facts and Contentions with the Tribunal, nor make written submissions at the completion of the hearing about the legal principles involved in his case. However, at the time of seeking review of his case by the Tribunal Mr SRNN did lodge a letter, addressed to the Tribunal (A1), in which he offered a number of explanations of his conduct and denied that he had committed any form of crime which brought him within the exclusionary provisions of the Convention. In his later written submissions Mr SRNN continued to maintain this position and to deny that he had:
… knowingly participated in activities that amounted to war crimes, crimes against peace, crimes against humanity and/or serious non-political crimes. I am not liable either directly or as an accessory to those crimes and thus should not be excluded from the protection of the refugee convention.
(Applicant's written submissions dated 29 May 2000: 1)
Further reference will be made below to the contentions made on behalf of both of the parties concerning specific matters in dispute between them. In considering the main issue which has been identified as requiring resolution by the Tribunal it is proposed to examine both the relevant legal principles and evidence under three headings:

Article 1F(a): war crimes
Article 1F(a): crimes against humanity
Article 1F(b): serious non-political crimes

However, before conducting this review some broader statements are required about the general legal principles said to be applicable to the operation of Article 1F of the Convention. Reference has already been made to the legislative framework surrounding the present matter, and also to the definition of a refugee contained in Article 1(a) of the Convention (see paragraphs 2-8 above). In its written submissions the respondent also referred to the Tribunal's decision in SRL v Minister for Immigration and Multicultural Affairs [2000] AATA 128 at paragraphs 94-95, for a summary of the other general legal principles involved. In that decision the Tribunal stated, in part, the following:
While the Convention does not form part of Australian domestic law, it is nonetheless well accepted that the Tribunal should have due regard to its terms: Todea v Minister of Immigration and Ethnic Affairs (1994) 35 ALD 735 at 738 (Sackville J). Further, if any of the circumstances contemplated by Article 1F are established in the present matter it is also clear that Mr SRL is not a refugee within the terms of the Convention: X v Borsody (1997) 47 ALD 211 at 216 (Goldberg J). The article does not require satisfaction that Mr SRL has committed a crime against humanity, a war crime or one of the other forms of crime referred to in Article 1F(a), (b) or (c). Rather, there must be "serious reasons for considering" that one or other of Article 1F(a), (b) or (c) applies to Mr SRL's case (Borsody at 215-216).
The words "serious reasons for considering" should be construed according to their natural and ordinary meaning: N96/1441 and Minister for Immigration and Multicultural Affairs (AAT 12977, 11 June 1998) at 44 (Mathews J); Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 (French J); Attef Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150 at 76 (Mathews J). In Dhayakpa French J commented that:
"The use of the words 'serious reasons for considering that' suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts." (at 563)
With these general legal principles in mind the Tribunal now turns its attention to the review of the specific legal principles and evidence relating to the three headings which have been identified.
Article 1F(a): War Crimes
Defining War Crimes
A useful and general description of the violations which amount to war crimes, crimes against humanity, and also crimes against peace is contained in the United Nations High Commissioner for Refugees' (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1992) (the Handbook). In that document it is noted in regard to Article 1F that:
147. The pre-war international instruments that defined various categories of refugees contained no provisions for the exclusion of criminals. It was immediately after the Second World War that for the first time special provisions were drawn up to exclude from the large group of then assisted refugees certain persons who were deemed unworthy of international protection.
148. At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of States that war criminals should not be protected. There was also a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.
…
150. In mentioning crimes against peace, war crimes or crimes against humanity, the Convention refers generally to "international instruments drawn up to make provision in respect of such crimes". There are a considerable number of such instruments dating from the end of the Second World War up to the present time. All of them contain definitions of what constitute "crimes against peace, war crimes and crimes against humanity". The most comprehensive definition will be found in the 1945 London Agreement and Charter of the International Military Tribunal. The definitions contained in the above-mentioned London Agreement and a list of other pertinent instruments are given in Annexes V and VI.
(UNHCR Handbook: paragraphs 147-150)

Annex V to the Handbook provides an extract from the Charter of the International Military Tribunal, Article 6, which states:

"…The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during 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 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".

In Annex VI of the Handbook the main international instruments which relate to Article1F(a), including the Geneva Conventions of 1949, and the Additional Protocols to the Geneva Conventions of 1977, are listed. Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, which is also common to all four Geneva Conventions of 1949, states that:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment…
[emphasis added]
On the basis of these international instruments and authorities it was contended by the respondent that the evidence presented to the Tribunal provided serious reasons for considering that Mr SRNN had committed acts which amounted to war crimes in the case of armed conflict, not of an international character, contrary to Article 3 of the Geneva Conventions of 1949. It was submitted that the torture of civilians, as had been described by Mr SRNN, amounted to "violence to life and person, … mutilation and cruel treatment" of "persons taking no active part in the hostilities", and was a prohibited act under the terms of this Article.
In advancing this contention that Mr SRNN had committed war crimes the respondent acknowledged it also raised a question whether such crimes could, in international law, be committed in the context of a conflict internal to one nation. The respondent submitted that the Tribunal should adopt a broad view of the definition of a war crime in the light of recent developments in treaty and customary international law. Since the question appears to be one which has not been addressed before in any related Australian jurisprudence the nature of the respondent's submission about this issue requires more detailed analysis.
In essence, it was the submission of the respondent that the original concept of a war crime which was established at the conclusion of the Second World War has now been expanded to incorporate the deliberate torture and cruel treatment of civilians in circumstances like those involving Mr SRNN in the Sri Lankan army, and that such acts amounted to violations of the laws and customs of war in either international or internal armed conflict. As Professor Goodwin-Gill has stated in his authoritative text, The Refugee in International Law 2nd Edition(1996):
Just as the international military tribunal succeeded to an existing body of law, so Article 1F(a) today must be interpreted in the light of more recent developments and the relevant international instruments referred to have been strengthened by the 1949 Geneva Conventions and the 1977 additional protocols. War crimes are thus considered to include grave breaches of the Geneva Conventions, summarised in the 1993 Statute of the International Tribunal on Yugoslavia.
(at 98)
Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (Statute of the International Tribunal for Yugoslavia) refers to crimes:
… committed in armed conflict, whether international or internal in character, and directed against the civilian population.

Further, the most recent and authoritative international law definition of war crimes, and of crimes against humanity, is now contained in the Rome Statute of the International Criminal Court adopted in Rome in July 1998 (hereafter the Statute of Rome) which refers to these crimes in the following terms:

Article 5:
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a)       The crime of genocide;
(b)       Crimes against humanity;
(c)       War crimes;
(d)       The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
…
Article 7
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attach:
(a)       Murder;
(b)       Extermination;
(c)       Enslavement;
(d)       Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity;
(h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2.For the purpose of paragraph 1:
(a)"Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
…
Article 8War crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
2.For the purpose of this Statute, "war crimes" means:
(a)Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii)Torture or inhuman treatment, including biological experiments;
(iii)Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v)   Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi)   Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b)Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii)     Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and sounded are collected, provided they are not military objectives;
(x)    Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii)   Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
(xx)   Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123.
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i)       Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii)       Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii)      Taking hostages;
(iv)      The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
(i)        Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii)       Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(iii)      Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict;
(iv)      Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(v)      Pillaging a town or place, even when taken by assault;
(vi)      Committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
(vii)     Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
(viii)     Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
(ix)      Killing or wounding treacherously a combatant adversary;
(x)      Declaring that no quarter will be given;
(xi)     Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xii)     Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
3. Nothing in paragraphs 2(c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
[emphasis added]

It was acknowledged by the respondent that the 1998 Statute of Rome, which has been adopted by 115 states, post-dates the acts committed by Mr SRNN and that the criminal prosecution provisions of the Statute only apply to acts committed after it comes into force. However, it was also submitted that the assessment of the applicant's conduct against Article 1F(a) of the Convention was an administrative law process that was not in any way concerned with the prosecution of the acts. Thus in the process of interpreting what acts could be considered to constitute war crimes under Article 1F(a) the Tribunal should adopt the approach articulated in Professor Goodwin-Gill's analysis that:
Article 1F(a) today must be interpreted in the light of more recent developments.

The Statute of Rome was such a development, representing the most comprehensive definition of war crimes yet attempted in international law, and one which had the support of the vast majority of the member states of the United Nations.

There is a body of opinion that war crimes are only committed in the context of an international armed conflict and that a breach of Article 3 common to the Geneva Conventions of 1949 does not constitute a war crime as traditionally understood in international law: see, for example, Ross Anderson, "War Crimes and Australia" (1996) 7 Public Law Review 138. This view has been challenged by other commentators. For instance, in a most helpful and comprehensive analysis made of the utilisation of Article 1F(a) of the Convention in Canadian law, Nancy Weisman states:
The Geneva Conventions regulate the conduct of war in all armed conflicts between two or more States, namely international armed conflicts. These rules are designed to protect certain categories of 'protected persons', particularly prisoners of war and civilians. Each Convention possesses an article which lists the most serious violations that maybe committed against a protected person. These violations are called 'grave breaches'. Similarly, Protocol I provides for the protection of victims of international armed conflicts. Protocol I identifies serious violations as grave breaches and provides that only violations of a grave breach, both in the Geneva Conventions and the Protocol, are to be regarded as war crimes. While all four Conventions contain a common provision which prohibits certain acts committed with respect to 'persons taking no active part in the hostilities' during an 'armed conflict not of an international character', these prohibited acts are not grave breaches and therefore technically are not recognized as war crimes. Similarly, the Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) applies to the protection of victims of internal armed conflicts, or civil wars, but contains no provision identifying certain prohibited acts as grave breaches or war crimes. Thus, a strict reading of conventional international humanitarian law reveals that 'war crimes' can be committed only in the context of an international armed conflict.
For the purposes of the exclusion clauses in the 1951 Refugee Convention, however, such a narrow approach to the context in which a war crime can be committed seems unduly restrictive. The Federal Court of Appeal in the decision of Ramirez considered crimes committed during the civil war in El Salvador, and noted that the crimes in question were either war crimes or crimes against humanity. The Court held that since 'nothings hangs on whether one category or the other is more relevant … [it chose] … to employ the term international crimes to refer indifferently to both classes of crimes'. Since the Court in Ramirez did not rule out the possibility that a war crime can be committed during a civil war, it may be argued that violations of the grave breaches provisions in the Geneva Conventions and Protocol I, committed in the context of an internal armed conflict, or civil war, are war crimes. Support for this proposition can be found in the most recent international instrument drawn up in respect of war crimes and crimes against humanity, namely, the Statute of the International Tribunal.
(S22: 253)
The Tribunal finds the Wiseman contentions, as well as those of the respondent that have already been detailed, to be highly persuasive. There would seem to be no reason why grave breaches of the Geneva Conventions of 1949 should amount to war crimes only within the confines of international conflicts. The clear implication of the recent developments that have occurred with the establishment of both the specialist tribunals for dealing with war-related atrocities in the former Yugoslavia and in Rwanda, as well as the more recent Statute of Rome, all point to a broader definition of such crimes.
It is also quite apparent from the evidence before the Tribunal that the nature of the conflict between the army and the LTTE in Sri Lanka supports a conclusion that it has long amounted to a state of war. For example, a US State Department report describing the situation in 1993 refers to the "violent ethnic conflict waged for over 10 years" between the government and the LTTE, and defines that conflict as a "war" (S3: 60-74). In addition, the extensive United Nations' report on human rights abuses in Sri Lanka cited earlier in this decision refers to the conflict in that country as a war, and also points to the existence of war zones (see S27).
Applicant's Conduct
In both his written statement to the Tribunal (A1) and in his written submissions Mr SRNN denied that he had been involved in any torture, harassment or killing of innocent civilians or victims of crime. In regard to his interview with Ms Watson he had the following to say:
When I mentioned that I stayed as a by-stander, I meant that I had been working in the department and was silent as to the inhuam [sic] activities perpetrated against the innocent civilians. I completely kept myself in the distance whenever the torture took place. As a security officer I had heard direct discussions that were taking place between the officers with regard to the method of torture given and had witnessed the place of torture after the victims were removed. As an officer I was asked to interrogate suspects in Tamil language. I had never used any force or method of torture on the suspects. I had been assisting the vistims [sic] to evade arrest and to escape from torture by the security officers.
During the interview the delegate continued to ask me as to the method of torture and the description of the place where the torture was taking place.
As a third person I had been explaining to the delegate the way and the manner in which the suspects were tortured. During the interview, I was speaking and demonstrating to the delegate explaining how the torture normally takes place as if I were the officer,who is involved in the torture. I strongly feels [sic] that the interpreter and translator who was responding to the delegate's questions had been giving the answers as if I had been personally involved in the torturous acts. I was only demonstrating and explaining to the delegate what sort of and how the torturous acts were performed from the discussions that I heard from the security officers who were personally involved. My explanations to the delegate had been interpreted to mean that I was personally involved in torturous acts and not to mean that I as an actor demonstrating to the delegate how the officers were torturing the innocent and the victims.
I had been trying to contact a Translator to transcribe the tape in Sinhalese Language so that I would be able to convince the Administrative Appeals Tribunal as to the above discrepencies [sic]. As I could not find anyone to help me to transcribe the tape in Sinhalaese [sic] language, I was unable to convince the Barristers as to my genuine claims. Once the tapes are transcribed, I would be able to explain in detail where and how my claims that were verbally made at the hearing had been misinterpreted by the Translator.
(A1: 1—2)
In his personal testimony to the Tribunal, and in his subsequent written submissions, Mr SRNN continued to maintain that his account of his actions provided in the interview with Ms Watson had been translated inaccurately. However, through his personal testimony Mr SRNN also had every opportunity to explain what he said was a correct version of events surrounding his activities in the Sri Lankan army, and to clear up any ambiguities that might have arisen through possible misinterpretation and translation of his earlier statements to Ms Watson.
The Tribunal has given close attention to these statements, and also to the personal testimony that was provided by Mr SRNN during the course of the hearing. On the basis of this evidence the Tribunal is quite satisfied that no misinterpretation or mistranslation occurred of this interview and that it represents a more accurate and reliable account of relevant events than that provided in person to the Tribunal by Mr SRNN. Mr SRNN is clearly a well educated and intelligent man with acknowledged language skills which resulted in him being utilised as an interpreter by the Sri Lankan army. His skills in both the Tamil and Sinhalese language were tested directly at the time of his interview with Ms Watson (T9: 80). He also claimed to speak and write English in his original application for a protection visa and, as was apparent from his personal correction of the translation of his own statements from Sinhalese to English during the course of the hearing, his English language capabilities are quite acute. While those capabilities may not have been as finely attuned when he first arrived in this country there is no indication in the transcript of his interview with Ms Watson of any misunderstanding or lack of comprehension of the questions being put to him, nor of queries being made by him at the time of the interview about the accuracy of the interpreting that was being provided. In general the Tribunal did not find Mr SRNN to be a credible witness. During his personal testimony he appeared to try and depreciate the nature of his involvement in the interrogation of detained persons, and also gave inconsistent accounts of events surrounding certain incidents.
Turning to the evidence, which has already been reviewed in substantial detail, the Tribunal is more than satisfied that there are serious reasons for considering that Mr SRNN was, either directly or as an accessory, involved in the following acts while serving as an officer in the Sri Lankan army during two tours of duty between 1978 – 1983 and 1989 – 1993:

On his own admission, during 1983, while interrogating Tamil detainees at the Palaly Army Camp inflicted what he described as "low level" torture on LTTE suspects. The nature of this torture was explained in substantial detail (see paragraph 19 above) including the drawing of diagrams. Those suspects who did not provide satisfactory responses to his interrogation were referred to other officers for "high level" torture which on occasion resulted in the death of the detainee.
On his own admission, during his first tour of duty, and most probably in the period following an incident in 1983 in which a number of soldiers were killed by the LTTE in the Jaffna area, acted as an interpreter during "high level" torture sessions and was injured on one occasion when a detainee struggled and a hot iron rod being used burnt Mr SRNN as well.
On his own admission, threatened persons that he was interrogating that if they did not cooperate they would face more severe torture.
On his own admission, during his second tour of duty with the army witnessed the severe torture and death of a Sinhalese JVP suspect in a large grain silo being used as an interrogation centre (see paragraph 19 above) as well as witnessing other forms of severe torture (see paragraph 39 above).
On his own admission, and during his second tour of army service, was present during the course of part of an interrogation of a female LTTE suspect who was then raped by her interrogators and probably killed (see paragraphs 41-43above).

On his own admission, and while deployed at Palaly camp during the course of his second tour of duty, conducted preliminary interrogations of suspects, numbers of whom were then to his own knowledge sent on to be tortured and probably killed at facilities in Colombo (see paragraphs 44-46 above).

As noted earlier Mr SRNN held officer rank throughout his army service – as a lieutenant during his first tour of duty and as a captain during the second. In both cases he volunteered for army service and at no stage during either tour of duty did he seek to question the legality of the orders he said that he was carrying out, nor resign from the military. In his interviews with Ms Watson, Mr SRNN gave a number of explanations why he had interrogated with torture, including the assertion that if he had resigned prior to the completion of his contract with the army he would have suffered financially. He also indicated that torture was commonly used in the army, and that political pressure was placed on the hierarchy of the army to engage in such actions.
There is no indication from the evidence that at any time Mr SRNN feared for his own life if he failed to carry out a direct or indirect order to use torture in the course of an interrogation. Nor is there any evidence that at any stage he sought to intervene to prevent such torture. Perhaps nowhere was that lack of intervention more apparent than in the personal description that Mr SRNN gave of the rape of the LTTE suspect by a number of fellow army officers. It would appear that Mr SRNN was more fearful of suffering derision at the hands of these officers if he had protested than he was about seeking to protect a defenceless detainee from a gross violation of her human rights.
The actions committed by Mr SRNN amount, in the Tribunal's view, to war crimes within the terms of Article 3 of the Geneva Conventions of 1949 as contended by the respondent. Mr SRNN was well aware of the purpose of the torture that he inflicted during his various interrogations, and he shared that purpose and was prepared to refer persons for more severe torture if they failed to provide satisfactory responses to his own form of questioning. Mr SRNN was also well aware of the nature of the Sri Lankan Army's methods of handling LTTE and other suspects including, during his second tour of duty, knowledge of the existence of special torture chambers in Colombo where persons were routinely killed. In the circumstances there are no reasons why he should not be found to be fully responsible for his actions, even though he was part of a military and political regime that encouraged and supported the war crimes that he committed.
Article 1F(a): Crimes Against Humanity
Having reached the conclusion that the actions of the applicant, even though committed during the course of an internal conflict in Sri Lanka, do amount to war crimes, it is not strictly necessary for the Tribunal also to proceed to examine whether or not there are also serious reasons for considering that these actions amount to crimes against humanity for the purposes of Article 1F(a). However, it may be that the view taken by the Tribunal of the concept of a war crime is not supportable and accordingly it is desirable to indicate the views of the Tribunal regarding the contention raised by the respondent in regard to this alternative aspect of the case.
Reference has already been made to the definitions provided of crimes against humanity in both the Statute of the International Tribunal for the former Yugoslavia, and the more recent Statute of Rome. Quite apart from these more recent developments in the recognition and description of this type of crime it has been stated in a number of recent decisions of the Tribunal that crimes against humanity and crimes against peace referred to in Article 1F(a) of the Convention are those which are "defined in the international instruments drawn up 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, Matthews J, in N1996/1441 v Minister for Immigration and Multicultural Affairs [1999] 51 ALD 459, paras 49-65. Referring to that decision, and to other relevant Australian decisions on this issue in the case of SRL the Tribunal said the following about the definition of crimes against humanity:
… [M]athews 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)
(para 96-100)
It is to be noted that in the authorities which have been referred to above no mention was made of the most recent definition and development of the concept of war crimes and crimes against humanity contained in the Statute of Rome. In the present matter it was contended by the respondent, in accord with the earlier submissions made in relation to the definition of a war crime, that the Tribunal should now have regard to these more recent developments. The Tribunal has already indicated that it sees merit in such an approach and that it would seem to be one which is favoured by a number of the authoritative legal writers in this field, as well as reflecting the general consensus of at least 115 nations who were prepared to sign the Statute of Rome in 1998.
The Tribunal notes that in the case of the Statute of the International Tribunal for the former Yugoslavia it is required that crimes against humanity be committed as part of a "widespread and systematic" course of conduct while the subsequent definition of crimes against humanity contained in the Statute of Rome requires that such crimes be part of a "widespread or systematic" attack directed against a civilian population. In the submissions made on behalf of the respondent in the present case it was contended that the evidence before the Tribunal would satisfy either of these definitions. Reference was also made to the decision of Purvis D.P. in the matter of N1998/532 v Minister for Immigration and Multicultural Affairs [1999] AATA 116 where the following was said in regard to the definition of crimes against humanity:
The criminal acts committed by the applicant were against civilians, that is, those not participating in the confrontation between the government forces and the RUF. The acts were directed at the civilian population and were not isolated or random. The acts committed by the applicant were part of a systematic pattern of persecution aimed at members of particular villages and a town. The criminal acts were part of a systematic course of terrorising civilians with the purpose of convincing them, out of fear, not to side with the government but the rebel forces.
(at paragraph 95)
Having due regard to all of the evidence presented in this matter, the Tribunal is more than satisfied that it provides serious reasons for considering that Mr SRNN participated either directly or as an accessory in crimes against humanity during the course of his tours of duty with the army in Sri Lanka. In his interviews with Ms Watson, and in his personal testimony to the Tribunal, Mr SRNN admitted that the purpose of the torture of suspects was to obtain information about LTTE activities, and to determine whether the Tamil victims were affiliated with the LTTE. Mr SRNN also claimed that he was trusted by the Tamil community, as he spoke Tamil and had relatives who were married to Tamils. Further, he said that he was known by the Tamil community to be able to facilitate the release of Tamil detainees through the payment of bribes to members of the armed forces and police.
In both his original statement made to the Tribunal (A1), and in the written submissions made at the completion of the case, Mr SRNN contended that as he had relatives who were married to Tamils, and as a Tamil speaking person he had kept himself at "a distance whenever interrogation lead [sic] to torture". In his written submissions he elaborated upon this issue and also claimed, for the first time, that he was a Tamil as well as a Malay Muslim:
3.As a subordinate in the armed forces I had been acting in different capacities other than being an officer directly involved in torture. As I am a Tamil and a Malay Muslim I had never inflicted harm on any other Tamil or any Tamil detainees except to act as an interpreter during the interrogation. I wish to reiterate that I was not interrogating any detainees while they were tortured. I was involved in interrogation before and after torture but was not involved directly or indirectly in administering torture to the victims. I have explained in detail in the statement of claim the circumstances under which I fled the country. The admission with regard to the torture that I gave in detail during the interview with the delegate were of a general nature and not in any way connected to my behaviour, attitude or my acts towards the detainees. The details were given as a guide to the delegate to understand the seriousness of the torture perpetrated towards the detainees. I never thought that these [sic] evidence with regard to the torture that I explained to the delegate in the 1st Person "I" would be used as evidence against me.
(submission: 29 May 2000: paragraph 3)
The Tribunal has already expressed its views about Mr SRNN's general credibility, and in particular its finding that on his own admission he was involved in the torture either directly or as an accessory of LTTE suspects during both periods of his service with the Sri Lankan army. The Tribunal also observes that until the provision of this written submission Mr SRNN had never suggested that he was a Tamil. In his application for a protection visa, as stated earlier, he said that he was "Sri Lankan (Muslim) Malay" (T6: 22; paragraph 13 above). In the written statement accompanying his application he said that he was a "Sri Lankan Malay Muslim" (T6: 32) while his birth certificate indicated that his father was a "Sri Lankan Moor" and his mother a Sri Lankan Malay (T7: 56). His own certificate of marriage described him as a "Sri Lankan Moor" (T7: 58).
It is quite apparent that the claim now made by Mr SRNN to be of Tamil ethnicity is in direct contradiction with this earlier evidence. It is also surprising, at the very least, that if he were making claim to be a Tamil he did not raise this claim directly during the course of his personal testimony before the Tribunal. In the circumstances the Tribunal believes that the claim is a further indication of the lack of credibility which can be attached to the evidence provided by Mr SRNN, and may well reflect an attempt by him at a late stage in the proceedings to distance himself from the allegations that he knowingly participated in the systematic torture of Tamil suspects. However, it should be also stated that because of the way in which this claim of Tamil ethnicity arose it was not possible for either the respondent or the Tribunal to put this particular contention to Mr SRNN during the course of the hearing.
There is no doubt that the torture and other well documented mistreatment of the Tamil population amounted to both widespread and systematic attacks against this minority group within the Sri Lankan community. The evidence before the Tribunal demonstrates that through discriminatory legislation; the attitudes of the security forces; the processes of gradually increasing levels of persecution during interrogation; the dedication of particular officers to particular levels of torture; the admissibility of confessions extracted under torture; the inaction of the Sri Lankan government in the face of worldwide criticism; the duration of decades of continuing widespread torture by the security forces; and the impunity of the security forces personnel involved in such abuse, there was in place a widespread and systematic official policy permitting grave breaches to occur of the human rights of Tamil civilians in Sri Lanka. Mr SRNN was involved in this torture and cruel treatment of civilians during the course of his military service at a range of camps in Jaffna, Trincomalee, Palaly, Panagoda, Mauragama, and Boosa. In such circumstances, and within the context of the ongoing civil war in Sri Lanka, Mr SRNN's admitted actions in torturing suspects can be characterised as crimes against humanity since they were part of a widespread and systematic process perpetrated by the government security forces of that country upon Tamil civilians due to their imputed support of the LTTE.
Article 1F(b): Serious Non-Political Crimes Outside the Country of Refuge
Having reached the conclusion that Mr SRNN has been involved in both war crimes and crimes against humanity, for the reasons which have been outlined, the Tribunal does not believe that it is necessary to consider in any detail the further contention made on behalf of the respondent that he was also involved in the commission of serious non-political crimes outside the country of refuge which would bring him within the exclusionary provisions of Article 1F(b) of the Convention. The general purpose of this exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. To fall within this article of the Convention the crime must still be justiciable in the country in which it was committed, and it must also be a serious offence. Murder, rape and armed robbery are offences which raise a presumption of serious crime.
In determining whether an offence is "non-political" or, on the contrary, is a "political" crime the UNHCR has stated the following:
[R]egard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.
(UNHCR Handbook: paragraph 152)
It was contended by the respondent that both the torture perpetrated by Mr SRNN, and also his participation in the solicitation of bribes from families of Tamil detainees to purchase the release of detainees, amounted to serious non-political crimes. The Tribunal has no doubt that the evidence that has been reviewed supports such contentions and that there are serious reasons for considering that Mr SRNN was either directly or as an accessory involved in both torture and extortion.
CONCLUSION
For the reasons which have been set out above, the Tribunal concludes that Mr SRNN 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 Articles 1F(a) and 1F(b) of that Convention. The decision under review is affirmed.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3, 4 February 2000, 10, 11 May 2000
Date of last submissions               23 June 2000
Date of Decision  10 November 2000
Solicitor for the Applicant           Unrepresented
Counsel for the Respondent        Mr Richard Lancaster
Advocate for the Respondent      Mr J. Ambikapathy/