SROOOO and Minister for Immigration and Multicultural and Indigenous Affairs

No judgment structure available for this case.

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 91
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/110

GENERAL ADMINISTRATIVE DIVISION )

Re SR0000

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon RNJ Purvis AM QC, Deputy President
Date3 February 2006
PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Respondent for further reconsideration.

[Sgd] The Hon RNJ Purvis AM QC
Deputy President

CATCHWORDS
IMMIGRATION – protection visa – refugee status – Australia’s protection obligations – whether Australia’s protection obligations apply to the Applicant – whether serious reasons for considering that the Applicant has committed a war crime, crime against peace or a crime against humanity – Applicant was a member of KHAD organisation in Afghanistan – KHAD carried out torture and systematic murder of civilian populations – Applicant was not involved in this activity and was not aware of nefarious activity – no evidence that the Applicant was complicit in crimes – decision set aside
Migration Act 1958; ss 29, 36
Convention relating to the Status of Refugees
Rome Statute of the International Criminal Court
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991
Geneva Convention Relative to the Protection of Civilians in Time of War
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432
SRDDDD and Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA 150
SRAC and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AARA 1318
W98/45 and Minister for Immigration and Multicultural Affairs (1998) AATA 948
SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229
SAL and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1164
VAB and Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 990
REASONS FOR DECISION

The Hon RNJ Purvis AM QC
Deputy President

the application
1. The Applicant (identified at his request only as SR0000) has made application to the Tribunal seeking to have a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) of 24 December 2004, set aside. By the decision, the Respondent refused to grant the Applicant a protection visa. The Respondent in the refusal decision stated inter alia:
“… I find that the applicant’s level of involvement in party activities and policy making, the information about the test of loyalty of officers of KHAD, his favoured position as the recipient of a scholarship to Russia, his family connections with the governing administration and agents of the government (especially his brother’s position as Special prosecutor), lead to a conclusion that he had knowledge of the nature and goals of the KHAD operations and shared the purpose and knowingly and voluntarily participated in the chain of these activities.
His knowing participation in the ultimate harm suffered by the victims of KHAD conduct – leads to a conclusion that he was complicit in the crimes against humanity.
I find the circumstances of this case therefore constitutes serious reasons for considering that the applicant was an accomplice to the commission of war crimes and crimes against humanity in Afghanistan committed until the fall of the Najibullah regime.”

2. The Respondent contends that Australia does not have protection obligations in relation to the Applicant under the Convention relating to the Status of Refugees because, pursuant to Article 1F of the Convention, 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. More particularly, the Respondent contends that there are serious reasons for considering that as a result of his work for, his association with and his rank in KHAD:
·the Applicant’s conduct should be characterised as war crimes within the meaning of Article 8 of the Rome Statute of the International Criminal Court adopted in Rome in July 1998 (“the Rome Statute”) as he has been involved in the commission of violence to life and person and in particular, murder and cruel treatment and torture against persons taking no active part in hostilities;
·the Applicant has breached Article 6(b) of the Nuremburg Charter and committed a war crime by being involved in the murder and ill-treatment of civilians;
·the Applicant’s conduct can be characterised as constituting crimes against humanity within the meaning of Article 7 of the Rome Statute as he has been involved in a widespread attack directed against a civilian population which has resulted in murder, torture and other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health;
·the Applicant has breached Article 6(c) of the Nuremburg Charter and committed crimes against humanity by being involved in murder and other inhumane acts committed against a civilian population;
·the Applicant’s conduct can be characterised as constituting crimes against humanity within the meaning of Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991 (“Statute of the International Tribunal”) as he has been involved in the murder and torture of members of the civilian population;
·the Applicant has breached Article 3 of the ‘Geneva Convention Relative to the Protection of Civilians in Time of War’ (“the Geneva Convention”) as he has been involved in violence to life and person, in particular murder of all kinds, cruel treatment and torture, outrages upon personal dignity and humiliating and degrading treatment against persons taking no active part in the hostilities.

3.      The Applicant on the other hand whilst admitting his employment in the coding section of KHAD from 1984 to 1992, says that during this time he was not aware of any specific human rights abuses perpetrated by KHAD; was not aware of any information transferred through the coding sections that indicated KHAD was committing serious human rights abuses nor was he aware that KHAD during this period of time, was widely feared in the Afghan community. The Applicant contends that even be it his brother held a senior position in the then administration, he did not provide the Applicant with access to any information about abuses by KHAD. The Applicant said, further, that he was not involved “at any level” in any human rights abuses committed by KHAD or by KHAD officers; that to the best of his knowledge and belief the activities of the coding sections did not result in human rights abuses against civilians by KHAD; that the Applicant’s recruitment and training procedures in KHAD did not in any way involve the interrogation and torture of real or alleged opponents of the then communist regime in Afghanistan and that he did not take part in any interrogations or torture in that country. He was never involved in military policy development or government machinery and did not have any “real connections” with “high level Najibullah personnel apart from his brother” during the period he was so employed.
4.      It is thus contended, on behalf of the Applicant, that he was not complicit in crimes against humanity, was not an accomplice to serious human rights abuses by KHAD and/or the Najibullah government and was not an accomplice to the commission of war crimes and crimes against humanity.
the hearing
5.      At the hearing of the application, the Applicant was represented by Mr Chris Hanna of counsel and the Respondent by Mr Robert Beech-Jones of counsel.
6. The documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T36. Other written material tendered on behalf of the parties was received and marked as exhibits, namely:

Number

Document

Exhibit A

Statement of Applicant dated 22 June 2005

Exhibit B

Statement of Asadullah Schirbaz dated 2 August 2005

Exhibit C

Statement of Najibullah Rasouli dated 2 August 2005

Exhibit D

Statement of Kawa Moballigh dated 27 September 2005

Exhibit E

Statement of Mohammad Hashim Sahow dated 5 September 2005

Exhibit 1

Council of the European Union from the Netherlands delegation re Afghanistan Security Services in Communist Afghanistan (1978 – 1992) dated 26 April 2001

Exhibit 2

The Afghanistan Justice Project; “Casting Shadows: War Crimes & Crimes Against Humanity: 1978 – 2001”

Exhibit 3

Record of interview dated 5 March 2000

Exhibit 4

Record of interview dated 28 June 2004

Exhibit 5

Afghanistan: Amnesty International Report on Afghanistan

Exhibit 6

1990 Amnesty International Report on Afghanistan

7. Oral evidence was given by the Applicant and Messrs Najibullah Risouli, Kawa Moballigh, Mohammad Hashim Sakow and Asadullah Schirbaz upon which they were each cross-examined.
relevant legislation and conventions
8. Pursuant to s 29 of the Migration Act 1958 (“the Act”), the Minister may grant non - citizens visas to enter and remain in Australia; a particular class of which is a protection visa. Pursuant to s 36 of the Act, a protection visa may be granted if Australia owes the Applicant protection obligations under the Refugees Convention as amended by the Refugee Protocol. As earlier mentioned in these reasons, the Refugees Convention by Article 1F provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime or a crime against humanity as defined in the International Instruments drawn up to make provision in respect of such crime;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.”

9. The handbook on procedures and criteria for determining refugee status, issued by the United Nations High Commissioner for Refugees states inter alia that:
“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 constitutes 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 Nuremburg Charter).”

10.     The Tribunal is, however, to have regard to the relevant international instruments in considering the meaning and scope of “war crimes” and “crimes against humanity”.
11.     The most recent and authoritative international law definition of war crimes and of crimes against humanity, is contained in the Rome Statute. As noted in SRNN and Department of Immigration and Multicultural Affairs (2000) AATA 983, the Tribunal should look to the Rome Statute in the process of interpreting what acts could be considered to constitute war crimes and crimes against humanity under Article 1F(a); Article 7 (crimes against humanity), Article 8 (war crimes), Article 25 (individual criminal responsibility) and Article 28 (responsibility of commanders and other superiors) of the Rome Statute are relevant to the present proceedings.
12.     Article 6 of the Nuremburg Charter as it relates to crimes against peace, war crimes and crimes against humanity is also relevant to this decision as are Articles 5 and 7 of the Statute of the International Tribunal as these provisions relate more particularly to crimes against humanity and consider individual criminal responsibility. The Geneva Convention also bears upon the matters to be considered in these proceedings.
13.     The relevant Articles of the Statutes, Charter and Convention form Annexure A to these reasons for decision.
serious reasons for considering – degree of proof
14.     The degree of persuasion needed to satisfy the prerequisite “serious reasons for considering” has been considered by the Federal Court and this Tribunal in a number of decisions. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, it was said:
“The use of the words “serious reasons for considering that” suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts.”

15. In Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476 and in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173, the abovementioned dicta was accepted as correctly stating the relevant legal principles.
16. In Ovcharuk (supra) at 179 it was said:
“What is most striking to me about Article 1F is the plain matter of fact requirement that there should be “serious reasons for considering that” a person “has committed” a specified type of crime (para – (a) and (b)) or “has been guilty” of the proscribed acts: para (c). Charges or convictions are not required. Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case.”

17. In Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432, the Tribunal said:
“… I find it difficult to accept that the requirement that there be “serious reasons for considering” that a crime against humanity has been committed should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be ”serious reasons for considering” [emphasis added] that such a crime has been committed.”

18. However, in Arquita (supra) at page 478 it was said:
“I regard the observations … in Dhayakpa as being particularly helpful in elucidating the meaning of the expression “serious reasons for considering”. It was unnecessary in accordance with those observations for the AAT to “make a positive or concluded finding about the commission of a crime”. It was sufficient if there was “strong evidence of the commission of” the crime specified.
…
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as “strong”. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
…
The expression “serious reasons for considering” means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be “serious””.

19. As was stated in SRDDDD and Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA 150 and in SRAC and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 1318 I am of like mind. The words are to be given their natural meaning. “Serious” means serious. “The Article provides a direction to decision-makers in words that are clear of meaning and relatively easily of application” (W98/45 and Minister for Immigration and Multicultural Affairs (1998) AATA 948 at para 42). There must be strong evidence of the commission of the relevant crime. This is a threshold test, not an onus of proof test.
20. On behalf of the Applicant it was said that “mere membership of KHAD is not sufficient to ascribe the Applicant of war crimes or crimes against humanity”. This is true. As was stated in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 229 at para 10:
“In order to bear criminal responsibility for an act under the Rome Statute a person need not have directly committed that act him or herself. He or she must however have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”

country information
21. The Respondent contends that the Tribunal should have regard to and relies upon country information in relation to the activities of KHAD during the relevant period. More particularly, it relies upon a report from the Netherlands delegation to the Council of the European Union on the subject of “Afghanistan – security services in communist Afghanistan (1978–1992) AGSA, KAM, KHAD and WAD” (“the Report”).
22. The report was published on 26 April 2001. As relevant to the present reasons for decision, it states:
“The secret service became notorious and feared under its acronym KhAD [page 9].
…
Persons branded enemies of the PDPA [Peoples Democratic Party of Afghanistan] could be eliminated in many ways. Thus, KhAD leaders could instruct their subordinates to carry out arrest, detention, judicial sentencing, exile, torture, attempted murder and extrajudicial execution of real or alleged opponents of the communist regime. If required, KhAD and WAD agents also attempted to murder persons outside Afghanistan, especially in Pakistan [page 13].
…
The KhAD and the WAD maintained very good relations with both the general intelligence service (KGB) and the military intelligence service (GRU) of the Soviet Union …
…
Only PDPA members who had been found to be very loyal and persons from pro-Government families qualified for admission as officer to the KhAD or the WAD. Before the KhAD or the WAD approached anyone to see if they were willing to join them as an officer, extensive security screening had already taken place. Such screening involved a probe not only into the antecedents of the prospective recruit but also into those of his entire family [page 17] …
…
Hew KhAD and WAD officer recruits received very intensive training, the so called Parawachi. A successful Parawachi would be followed by a trial period called Azmajchi. During the azmajchi the future officer’s loyalty and fighting spirit were severely put to the test. Thus, for instance, they were required to spy on members of their family, arrest and torture friends and acquaintances, eliminate real or alleged enemies of the Communist regime or infiltrate Mujahedin ranks …

…
The rank of officer with the KhAD or the WAD provided considerable material benefits. Thus, an officer’s salary was almost ten times as high as that of an ordinary official … [page 18]
…
As a rule, persons arrested by the KhAD or the WAD were first taken to one of the interrogation centres of the KhAD or the WAD. Detainees were questioned during their stay in one of these interrogation centres. Where a detainee was thought to withhold information during questioning, the KhAD or WAD agents would threaten him (or her) with the use of force. If that threat did not produce the desired effect, detainees were tortured in order to obtain the desired information. Torture therefore formed an integral part of the interrogation methods available to the KhAD and the WAD. They made systematic use of the possibility to extract confessions from detainees through torture [page 19] …
…
The KhAD headquarters in Kabul was known as the Shashdarak centre. Those arrested in Kabul were often first taken to Shashdarak for initial questioning. However, initial questioning could also take place in one of the local KhAD offices elsewhere in town. Following initial questioning, detainees were usually taken to Sedarat the KHAD’s central interrogation centre in Kabul. Detainees would sometimes be kept in Sedarat for months for interrogation purposes. During this stage they would be incarcerated in particularly unhygienic cells. During both the initial interrogation and the interrogation in Sedarat, detainees were systematically tortured. Elsewhere in Afghanistan too there were also KhAD interrogation and detention centres where prisoners were tortured [pages 20-21].
…
Many detainees did not survive the interrogation process in the interrogation centres. The others were taken to KhAD and WAD detention centres [page 22].
…
Thousands of suspects were tortured to death by KhAD and WAD agents. If the KhAD or WAD thought that a suspect was guilty they would kill him or her without further investigation or judicial intervention. The agents concerned did not have to account for their actions in any way; the KhAD and the WAD were above the law. The Special Revolutionary Court and the Revolutionary Public Prosector were controlled by the KhAD and the WAD. Many suspects were sentenced to imprisonment or the death penalty on the basis of information obtained under torture. Suspects were not entitled to a lawyer, nor could they appeal against the judge’s decision [page 26].
…
As already stated … agents could not be promoted to officer within the KhAD or the WAD unless they had proved their unconditional loyalties to the communist regime. This also applied to promotions available to KhAD and WAD officers after completing their training. Any officer promoted during his period of service was, therefore, involved in arrests, interrogations, torture and even executions …
…
Like officers, NCOs could not function within the KhAD or the WAD if they were unwilling to take part in the systematic human rights violations by these organisations
…
The above suggests that all NCOs and officers were active in the macabre sections of the KhAD and WAD and were personally involved in the arrest, interrogation, torture and even execution of suspects [page 29].
…
During the Communist regime the Afghan security services were notorious for their brutal methods. It is therefore inconceivable that anyone working for these services regardless of the level at which he or she was working, was unaware of the serious human rights violations that were taking place; this was well-known both within Afghanistan and outside it. Many KhAD and WAD members took part in these human rights violations. Indeed anyone from the rank of NCO upwards took an active part in such violations [page 31].
…
As already mentioned, all KhAD and WAD NCOs and officers were guilty of human rights violations. However, NCOs and officers could not operate within the KhAD and the WAD unless they had given proof of their unconditional loyalty to the Communist regime. During their trial period Azmajchi officers had to pass a very severe loyalty test. As a first assignment, NCOs and officers were transferred to KhAD and WAD sections actively engaged in tracking down “subversive elements”. A rota system ensured that agents often switched sections. Only those who had proved their worth during an initial assignment or assignments qualified for promotion or a transfer to a section or directorate with more administrative or technical activities. In practice, this meant that all KhAD and WAD NCOs and officers took part in interrogation and torture of real and alleged opponents of the Communist regime [page 33].”

23. In a report of Amnesty International “Afghanistan: Amnesty International report 1986 (Exhibit 5), it is stated:
“… Systematic torture and ill-treatment of people suspected of supporting armed opposition groups by the [KHAD] State Information Service continued to be reported. …
During 1985 Amnesty International interviewed over 90 people who had been released from prison in recent years including several women. All reported – having been tortured during interrogation. Torture was said to have taken place principally at KhAD interrogation centres, but also in … prison and in military detention; in addition to Kabul, reports referred to … Kandahar.
Victims of torture included government and police officials, teachers, students, businessmen and shopkeepers. Most were accused of contacts with opposition groups and were tortured to secure “confessions”.

24.     Other material referred to and tendered in this context is the 1990 Amnesty International report on Afghanistan (Exhibit 6) and 2005 Afghanistan Justice report (Exhibit 2).
other tribunal decisions referable to afghanistan
25.     The attention of the Tribunal was drawn to other Tribunal decisions referrable to persons employed by KHAD during the relevant time. In SAL and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1164 the applicant was an officer of KHAD responsible for interviewing people who were of interest to it. The applicant held the rank of second lieutenant initially and was then promoted to lieutenant, captain, senior captain and major. The Tribunal found that the applicant had committed either war crimes or crimes against humanity and that he came within Article 1F(a) of the Refugees Convention. In the course of delivering its reasons, the Tribunal expressed satisfaction “that there is strong evidence that SAL would have been well aware of the activities in which KHAD engaged even if he were not himself engaged in acts of torture or violence and detention of the sought to which I have referred”. The Tribunal continued by finding that “there is strong evidence that he would have been well aware that his reporting information to his superiors would be likely to lead to such acts being perpetrated against those about whom he reported”. It is clear that SAL was actively engaged in a reporting process and would have been well aware of the contents of the reports.
26.     In VAB and Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 990, the applicant joined KHAD in 1980 and after completing training he obtained the rank of major and was then appointed as department director (supervisor of a department that was “responsible for opening and managing files regarding particular active opposition individuals, groups and organisations and political parties which were involved in anti-government activities”). The presiding member continued by noting that “the department also dealt with the opening and management of files of KHAD secret agents and collecting information about the profile and activities of particular agents and placing the information on files”. It was found that the applicant had “knowledge of KHAD’s activities in the Afghan community at that time”. The Tribunal further stated that “the Tribunal finds it inconceivable given the Applicant’s rank and standing within KHAD over a very substantial period of years that he was not personally well aware of the purpose for which his department existed and was not knowingly participating in the inhumane treatment of the overall organisation’s many, many hapless victims. The fact that the Applicant’s duties were clerical renders him no less complicit. His duties and his functions were obviously central to KHAD’s nefarious activities”.
27.     It is relevant to note the activities of the department to which the then applicant was attached and the nature of its activities; “the opening and management of files of KHAD secret agents and collecting information about the profile and activities of particular agents” would undoubtedly involve such applicant in advancing KHAD’s nefarious activities.
28.     The Tribunal is conscious of the opinions expressed in these decisions and also of the need to look at the facts pertinent to each case. It is clear that in SAL the applicant was involved in a reporting process and in VAB the applicant was involved in the recording of information relevant to individuals involved in anti-government activities. In each of these matters the applicants were clearly participating in the collation and processing of information relevant to persons who may have been subjected to inhumane treatment. Whether this situation pertained in the present application is a matter yet to be determined.
chronology of relevant events
29.     A chronology of facts relevant to the present application which are not in dispute between the parties is as follows:

Date

Event

28 October 1965

Applicant born in Afghanistan;

May 1979

Applicant becomes a member of the Youth Democratic Organisation of Afghanistan;

1979-80

KHAD established in Afghanistan;

1980-84

Applicant granted scholarship to study mechanical engineering in the Soviet Union;

October 1984

Applicant returns to Afghanistan;

November1984

Applicant joins KHAD and receives six to seven months training. He assumes position of being responsible for repairing and maintaining coding machines in Kabul;

1985

Applicant joins the Peoples Democratic Party of Afghanistan;

1986

Applicant promoted to assistant manager of Coding Department with KHAD;

1989

Applicant transferred to KHAD office in Kandahar as assistant manager of coding office and has staff under his supervision;

1995

Taliban enters Kabul;

March 1995

Applicant escapes Afghanistan;

June 1995

Applicant deported back to Afghanistan

November 1999

Applicant arrives in Australia on a boat as unauthorised arrival;

27 February 2000

Applicant makes application for protection visa;

31 October 2000

Applicant granted a subclass 785 (Temporary Protection) visa;

13 March 2001

Applicant lodges an application for a Protection (class XA) visa; and

24 December 2004

Applicant’s application for a protection (class XA) visa refused.

matters admitted by the applicant
30.     The matters admitted by the Applicant are as follows:
(a)The Applicant was a member of KHAD from November 1984 to March 1993;
(b)The Applicant worked in the Coding Department of KHAD; an intelligence service of Afghanistan;
(c)From late 1984 to 1989, the Applicant was employed in the coding section in the Kabul offices of KHAD;
(d)In 1989, the Applicant was transferred to the Coding Department of the Kandahar branch. His work at this branch continued to involve the maintenance and repair of the coding machines in Kandahar and in regional offices;
(e)The Coding Department in Kandahar was a small department without authority. It was comprised of approximately six employees and its primary function was to receive information from non-military government departments including KHAD and relay the information on to other departments. According to the Applicant, the only information that he had access to or understood was non-secret information such as repairing of roads, building or repairing of mosques or financial matters such as the wages of employees. Any secret or classified information received was in coded form and relayed on in a coded form undecipherable to him. Daily war reports, daily casualties, deaths and injuries were also the subject of coded transmissions;
(f)In 1985, the Applicant joined the Parcham faction of the Peoples Democratic Republic Party of Afghanistan, became an officer and in time, attained the rank of major;
(g)The Applicant was promoted to assistant manager of his section after working in KHAD for about two years and supervised up to 13 people;
(h)The Applicant was known as a communist and atheist and was recognised for his party work in Kandahar and Kabul (T179).

evidence for the applicant
31.     After the Applicant returned from Russia in 1984, he was approached by friends and ex-classmates who worked for KHAD and they talked him into joining the organisation, one of the advantages of which was that he would avoid doing national service. By joining KHAD he obtained an “officer” ranking; this he achieved within two weeks of joining KHAD. Initially, finding out that he could not study if he joined KHAD, he declined the position. However, a KHAD recruiting officer visited him at home and led him to believe that he would be able to study in the future if he joined the organisation. He was given seven or eight months of on-the-job training on the machines he was to maintain. His job involved repairing and maintaining M105 coding machines as well as compiling reports about the machines. The Applicant was required to travel to various provinces to repair KHAD’s coding machines. After about two years he was promoted to assistant manager in the Kabul office. His work didn’t change and his duties remained the same. The office was quite small, there being five persons including the manager. Later, the Applicant was promoted to the number 4 sub-department of coding with the same duties subject to helping in the delivery of supplies to provincial offices. He would also inspect the coding offices and check if they were complying with procedures. He remained in this position until he left Kabul. The Applicant says that any promotion was due to his performance and being considered a good, efficient worker.
32.     The Applicant was aware that KHAD was a security organisation but says that he gave little attention to this aspect being then young and having “a lot of interests such as soccer and socialising with my friends. I just worked at the coding sections and treated it like going to any job”. He says that he was not aware that people were frightened of the KHAD. Most people who knew him knew that he worked for KHAD and they did not appear to think badly of him on this account.
33.     In 1989, the Applicant went to Kandahar, leaving his wife and child in Kabul, to assume the position of assistant manager of the Coding Department where there were five or six other persons. Whilst he was in Kandahar his wife was killed in the fighting in Kabul. Important information would not go through the office “as we were not at a level where we were considered trusted with secret information”. The army had its own coding section. Army and internal affairs information was not sent through the Coding Department. KHAD also had its own postal system.
34.     The Applicant says that in the circles in which he worked and socialised he did not hear reports of KHAD torturing anyone. He did not see any prisoners or witness any interrogations, “such things were not done in the vicinity of my workplace. I had no knowledge of what was done with prisoners”. Although his older brother held a high government position, the Applicant’s relationship with him was not especially close. “He and his associates were much older than me I had very little in common with him”.
35.     The Applicant, with respect to him, is an intelligent, self-controlled and perceptive person. Arriving in Australia in 1999, he says he “tried hard to learn English” and now does voluntary work as an interpreter. He has also made himself well aware of the historical events in Afghanistan.
36.     During the course of his cross-examination, the Applicant acknowledged that he had “joined the ranks of officers” with KHAD but said that there were two sections of the organisation; a military and a government section and, although he was in the civil or government section, he was still given officer rank. He summarises the work that he did for KHAD over the eight years of his employment as “assisting one part of KHAD communicating with another”. Nobody, he said, gave him a briefing about any other functions of KHAD. Whilst he knew it was an information-gathering organisation, he did not know of its other activities. He believed that the role of KHAD, especially when it became part of the Ministry of State Security, was to protect the State from danger especially at that time from the Mujahedin. He was aware in a general sense that opponents of the regime such as the Mujahedin may well be arrested and then interrogated. He says that he knew no more. Prior to his leaving the Kabul office, the Applicant had three people working under him, his main responsibility being maintenance of the code machines. The Applicant’s team were all concentrated in one office and those involved in coding and decoding were all working in the same building. In all, he says, there were over 100 persons working in the coding office in Kabul.
37.     The Applicant admits that KHAD “was a secretive organisation”. Its structure, he said, was “very complicated” and he was “not allowed to ask a person what another person was doing”. He denies having ever seen anything about torture or hearing about torture. Having read reports he does not now deny that inhumane acts were committed by officers of KHAD or that it went to extraordinarily lengths to eliminate opponents. He accepts now what is said about the regime but maintains that he “did not know at the time”.
38.     Various of the matters contained in the report to the European Union were put to him. He maintains that his employment with KHAD was as a result of his friends already working there and denies that he was subjected to the rigorous interrogation and investigation that is referred to in the report. He says that whilst his qualifications and background was assessed, it was training in the job that he was to do that took up most of the early period of his employment. With reference to arrest and interrogation, he says that he was not aware of these activities at the time although he does not deny imagining that “from time to time KHAD and WAD would arrest people as they were part of a military force of the government”. He imagined as KHAD had an operational section that “they would arrest opponents”. There was an operational part of KHAD that was involved in fighting opponents. It was one function of KHAD to “suppress opposition to the communist regime in Afghanistan”. He was not himself aware of “the regime punishing anyone who opposed it”. He was not aware of KHAD spying on opponents to the regime or of opponents being tortured and executed. He was not aware of KHAD being “designed to terrorise the civilian population to not oppose the government”. He says that the work that he carried out “was not for those purposes”. From the things he saw, there was nothing to indicate improper or inappropriate conduct. Indeed it was only after the fall of the communist government, he says that he “saw the other side of KHAD and turned his back on it”.
39.     The structure of KHAD in Kabul was that it extended over a very large area of the city and had up to 20,000 employees. According to the Applicant, it was a part of a legal government of Afghanistan and, from the time he joined the organisation, he believed that he was “engaging in one of the positions of government in constructing the country and serving the people of the country”.

40.     Mr Asadullah Schirbaz worked as director of the Coding Department of KHAD in Afghanistan. He took on the work at the behest of Dr Najibullah, the president of the country who assured him that following the previous dictatorship “they were recruiting new people to work in KHAD and were making KHAD a good organisation”.
41.     He started his work in 1983,and says that, from his point of view and from his knowledge of the environment in KHAD, “bad behaviour was not condoned or encouraged”. “As far as KHAD and the government at the time were concerned, people who tortured and mistreated others were breaking the law and would be prosecuted and punished if discovered”. He further maintains that “at the time I worked at KHAD in Afghanistan, the government was making efforts to bring law and order to [the country]”. Mr Schirbaz was involved in interviewing the Applicant for his position in the Coding Department. He was employed “in the mechanical and technical section of the Coding Department to repair and maintain the coding machines”. He was responsible for the technical support of the coding machines and also for instruction on procedures in the technical branch. In 1989, he was appointed assistant manager of the Kandahar coding office. Mr Schirbaz says that he knew the Applicant “to be a reliable, hardworking, honest and polite employee, he had a good reputation with the other staff and was well respected and well liked”. The coding department was responsible for the coding and transmission of general information in Afghanistan and employed “well educated people” … “who could read and write to work in our department”. The work was considered administrative in nature, the information that went through the coding offices being such. He says that in the Coding Department, most people were members of the Peoples Democratic Party of Afghanistan. Mr Schirbaz says that he was familiar with a period of apprenticeship known as Parawachi when information was collated about a person’s character when they were seeking employment. However, he maintained that it was not the policy of the party to torture people or inflict physical or mental harm upon them. “Our job was to code” and so far as he knew no improper conduct was performed or contact made. He acknowledges that there were probably some “weak and cruel people, torturing people, some individual mistreating” but he was not personally aware of any individual instance. Political opponents damaging the government were detained but torture “would have been breaking the law”. He says that not once did he hear, from one of his estimated 3,000 employees working for him all over the country, that there had been torture or mistreatment of individuals.
42.     Mr Mohammad Sahow, now an Australian permanent resident, was born in Afghanistan and lived in Kabul until 1997 where he had a milk shop. He came to know the Applicant as a customer, first meeting him in 1986. He says that they were friends, and that he was aware the Applicant worked for KHAD. Over a period of time, they became good friends, socialising with one another. He says that “my knowledge of the government and intelligence service at that time was from the newspapers, radio and television and from people”. He did not become aware of anything or have an impression that he should be fearful. He says that he was not politically inclined and “didn’t like anything” that related to the government or the Mujahedin. He says that his “understanding and that of ordinary people like me was that the government did not harass or unnecessarily charge common people”. He says that “to me [the Applicant] was a good, honest and open person whom I liked a lot”.
43.     Mr Kawa Moballigh is an Australian citizen who has lived in Australia since 1997. He lived in Kabul until he left Afghanistan in 1996. He met the Applicant when he was about 16 years of age; this in 1988. He says that the Applicant is “a very easy-going person … a popular person and people seemed generally very comfortable with him”. He knew that the Applicant worked for KHAD. He was not himself involved in politics in Afghanistan and was not a communist. He knew other people who worked for the security ministry and had “no reason at the time to be scared or intimidated by them. Lots of ordinary people worked at the security ministry”. He says that things “were very bad in Afghanistan” in 1978/ 1979 when “you could be arrested just for criticising the government. My uncle was taken and killed. He was just an ordinary person”. He says that things “slowly got better”. It was in 1988, he says, that he started “reading books about Islam. I would discuss these with [the Applicant]”. He was aware of the fact that the Applicant was a communist, he arguing in favour of it whilst Mr Moballigh “was seriously considering Islam”.
44.     Mr Moballigh says that in Afghanistan there was “a lot of propaganda from both sides, especially in the early 1980s”. The opposition, he said, accused the government of torturing ordinary people and from 1980 until about 1984 “I had believed this was true”. At the time that he knew the Applicant in 1988 to about 1991, he understood that KHAD had changed from a small organisation to a large ministry of security with many ordinary people employed there in a variety of roles, such as administrators, military and other roles”. Whilst he was aware of the media, such as the BBC and Amnesty International being critical about KHAD’s involvement in torture, this being reported “only in general terms”, he says “I am sure that the security ministry was not involved in the torture of ordinary people in the late 1980s”. He says that at the time he knew the Applicant, “if a government opponent was arrested they would be processed in accordance with the law with a trial by court to consider the allegations”. He says that to the best of his knowledge, the Applicant “was not involved in any way in any human rights abuses in Afghanistan”.
45.     Mr Moballigh’s father had been a Professor of Literature and was not a member of the Peoples Democratic Party of Afghanistan. Indeed politics was not of interest to his family. He says that he was not aware of anyone being tortured and it was only what he heard on the media that alerted him. He says that he knew of people who were arrested and whose cases were dealt with by the courts. Some were Mujahedin, some were fighters.
46.     Mr Najibullah Risouli was born in Kabul, Afghanistan and is presently working as a police officer with the Ministry of the Interior of Afghanistan. From about 1981 to 1992, we worked in the Coding Department of KHAD. He, like the Applicant, joined KHAD as it was “the best way to avoid compulsory national service”. He met the Applicant in early 1989 when he transferred to the Kandahar Coding Department where he was then working. The Applicant, according to Mr Risouli, was responsible for the repair and maintenance of the coding machines in the Kandahar region. The Department was responsible for sending and receiving government documents. It was a non-military and non-operative department of KHAD. He, like the Applicant, “believed that KHAD had responsibility for security and defending our national interest”. He never received “any indication” that KHAD was involved in torture or mistreatment of prisoners. “To the best of my knowledge human rights abuses and torture were not government policy. There were tens of thousands of KHAD employees, the majority of whom were educated, literate and loved their country”. Mr Risouli says that he knew the Applicant “to be a good, kind-hearted person” who “was not the sort of person to have any involvement in bad things in Afghanistan”. To the best of his knowledge “none of our work in the coding office had any direct or indirect involvement in any human rights abuses in Afghanistan”.
47.     Mr Risouli did not himself, although being employed by KHAD, become a member of the party. Even be it that the Applicant worked in the same office as himself, Mr Risouli said that he “did not know if he was a member of the party or not. It was not a subject that was discussed”.
the applicant’s submissions
48.     It is maintained, on behalf of the Applicant, that a finding that there are serious reasons for considering that the Applicant was an accomplice to the commission of war crimes and crimes against humanity is not sufficient without specifying the particular criminal act involved. There is no evidence, it is said, of any specific crime in which the Applicant could be said to be an accomplice. I do not agree with this submission. If it can be satisfactorily shown that the Applicant was party to the commission of war crimes and crimes against humanity, even be it a particular crime cannot be identified, this might well be sufficient. It is further submitted that “mere membership of KHAD” is not sufficient to ascribe the Applicant with war crimes or crimes against humanity. With this submission I agree. As was indicated in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 229 it is necessary for a person to be shown to, in the sense of there being strong evidence to indicate that such person, “have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose”.
49.     It was contended, on behalf of the Applicant, that in the present application there has not been demonstrated a common purpose as between the Applicant and other members of KHAD such as would amount to complicity in war crimes and crimes against humanity. There is no direct evidence, it is said, that the Applicant had the requisite mens rea to be complicit in war crimes and crimes against humanity. It was also submitted that there is no evidence that the Applicant viewed his work as other than assisting in the proper administration of his country and that he lacked the requisite knowledge, responsibility and/or complicity for any war crimes or crimes against humanity that took place in Afghanistan during his period with KHAD.
50.     It is accepted by the Applicant, and on his behalf, that war crimes and crimes against humanity were committed by other members of KHAD and during the time of his employment, but that he did not participate nor was he aware at the time of any such acts occurring. As already mentioned, it must be shown that the Applicant had the intention, by his conduct to further the criminal human rights abuses. The evidence given by each of the witnesses displayed a different position as to their knowledge of abuses occurring. As to Mr Schirbaz and Mr Risouli, each maintained the integrity of the Coding Department. They all gave evidence consistent with the Applicant having a lack of knowledge of any abuse. Whilst there are inconsistencies with the European Union report as to indoctrination and training, the Applicant did obtain his position through friends and had prior to that spent four years at university in Russia. He was well qualified for his technical job. It is difficult to conceive of all the 20,000 or so employees of KHAD being put through the rigorous program referred to in the report. One would think that the nature of the investigation and indoctrination would depend upon the responsibilities that were to be assumed. If a person such as the Applicant is to be in a coding, administrative job relying upon his technical expertise and not exposed to the political arm of the organisation, he might well not require the same degree of political correctness. The Applicant, it is said, did not have access to sensitive information and did not have knowledge of human rights abuses or the necessary criminal intent.
51.     Mere membership of KHAD is not sufficient. The passing of information in a coded form is not sufficient. Further it is submitted that guilt by association is not sufficient. It is necessary, as earlier submitted, for the Tribunal to have serious reasons for considering that the Applicant has committed the classes of crime or is guilty of the classes of acts specified. It is necessary for there to “be strong evidence of the commission of one or another of the relevant crimes or acts”. It is submitted that in the circumstances of this Applicant that there is no such strong evidence.
submissions on behalf of the respondent
52.     On the basis of the factual situation detailed earlier in these reasons, the Respondent submits that for the Tribunal to find that there are serious reasons for considering that the Applicant has committed war crimes or crimes against humanity, it is not necessary for it to first be satisfied that the Applicant personally carried out the offending acts. It is sufficient, it is said, if it is satisfied that the Applicant was a leader, organiser, instigator or accessory who participated in the formulation or execution of a common plan or conspiracy to commit war crimes or crimes against humanity. Article 6 of the Nuremburg Charter and Article 8 of the Rome Statute deal with the liability of accessories. The Respondent contends that the Applicant participated in the execution of a common plan and otherwise aided, abetted and assisted in the commission of war crimes and crimes against humanity by being “integrally and closely involved in the activities of the KHAD and as a result of his position in the KHAD”.
53.     Again, it is submitted, on behalf of the Respondent, that when regard is had to independent country information regarding the activities of KHAD in the period that the Applicant worked for it and the Applicant’s senior rank in KHAD, his high level of responsibility within the organisation and the nature of his work in ensuring the flow of sensitive information to other KHAD officers, the military and other parts of the government, that there are serious reasons for considering that the Applicant aided, abetted or otherwise assisted in the commission of crimes against humanity.
54.     The Tribunal is satisfied that it is not necessary in order for it to find “serious reasons for considering” that the Applicant be personally involved in the carrying of the offending acts. The Tribunal is not, however, satisfied that the Applicant was at any time a leader, an organiser or an instigator who participated in the formulation or execution of a common plan or conspiracy to commit war crimes or crimes against humanity. Nor is it satisfied, on the basis of the evidence before it, that he participated in the execution of a common plan or otherwise aided, abetted or assisted in the commission of war crimes and crimes against humanity.
55.     The Respondent maintains that the Applicant “must have known”. KHAD, it is said, was the Afghanistan KGB, structured to maintain a “one party state” and “suppress internal and external opposition”. There is no issue in this application that the Tribunal should look to the most recent and authoritative international law definition of war crimes and of crimes against humanity; those as contained in the Rome Statute. The Tribunal can look to the Statute in the process of interpreting what acts could be considered to constitute war crimes and crimes against humanity within the meaning of Article 1F(a) as it is a recent development in international law representing a comprehensive definition of war crimes and crimes against humanity. Article 7 (crimes against humanity) and Article 8 (war crimes) of the Rome Statute are relevant to these proceedings. However, it is as to the existence or otherwise of “serious reasons for considering” that the attention of the Tribunal is to be directed. It is said, on behalf of the Respondent, that the Tribunal should disregard the evidence of the Applicant and his witnesses as they negated involvement and responsibility. It is said that they are not likely, one the director the other a co-employee, to even at this time implicate themselves in human rights abuses. It is again maintained that there is a degree of incredibility in their denials. The evidence of the witnesses as to the good character of the Applicant is also discounted. Again it is said that the Applicant would “of course” deny that to his then knowledge KHAD was involved in serious human rights abuses. He does not maintain that now. What he does say is that he himself was not aware of such abuses at the time he was working for the organisation. The Respondent maintains that it is not credible for the Applicant to not have been told of the human rights abuses officers of KHAD were committing. The Tribunal does not share this incredulity. There is not any evidence that the Applicant saw messages detailing abuses or any other material alerting him to this activity. The Tribunal is satisfied that the Applicant’s conduct fell far short of complying with the definition provisions.
decision
56.     Whilst it was submitted on behalf of the Respondent that such lack of knowledge and awareness was inconceivable, I do not accept that this was so. The Applicant impressed me as a truthful witness who did not seek to minimise the extent, limited as it was, of his involvement in the activities of KHAD. I am satisfied on the basis of the evidence before the Tribunal that the Applicant was not a participant in any criminal activities. He did not aid and abet the carrying out of any criminal activity. He was not an accessory to the carrying out of any criminal activity. He did not have knowledge at relevant times of the carrying out of any relevant criminal acts. I am satisfied that there are no serious reasons for considering that the Applicant committed a serious non-political crime. I am satisfied that there is no evidence before the Tribunal upon which it could reasonably and properly be concluded that the Applicant has committed the crimes alleged. I am further satisfied that there is no reason or reasons to believe that the Applicant has committed an offence of the type specified. I find that there are no serious reasons for considering that the Applicant is a person who has committed:
(a)a war crime as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
(c)a serious non-political crime.

57. The decision under review is set aside. The application is referred back to the Respondent for further and appropriate reconsideration.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of the Hon RNJ Purvis AM QC, Deputy President
Signed:         A. Krilis  Associate
Date/s of Hearing  5 – 8 December 2005
Date of Decision  3 February 2006
Counsel for the Applicant         Mr Chris Hanna
Solicitor for the Applicant          Ms Louise Boon-Kuo
Counsel for the Respondent     Mr Robert Beech-Jones
Solicitor for the Respondent     Mr Avinesh Chand

ANNEXURE A

Rome Statute
Article 7
Crimes against humanity
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 attack:
(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.

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;
(b)"Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c)"Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d)"Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e)"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f)“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other frame violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g)“Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h)“The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i)“Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender does not indicate any meaning different from the above.
Rome Statute cont
Article 8
War crimes
The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
For the purpose of this Statute, "war crimes" means:
(a)Grave breaches of the Geneva Conventions of 12 August 1949, namely, BDY 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-tem 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 wounded 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 entirety 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 of 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 international 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 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.

Nothing in paragraph 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.
Rome Statute cont
Article 25
Individual criminal responsibility
The Court shall have jurisdiction over natural persons pursuant to this Statute.
A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a)Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b)Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c)For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d)In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i)Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii)Be made in the knowledge of the intention of the group to commit the crime;

(e)In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f)Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law

Rome Statute cont
Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a)A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i)That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii)That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b)With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i)The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii)The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii)The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Nuremberg Charter
Article 6
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a)CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b)WAR CRIMES: namely, violations of the Jaws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian 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 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, organizers, 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
Geneva Convention
Relative to the Protection of Civilians in Time of War
Article 3

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, shalt in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other 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 and torture;
(b)Taking of hostages;
(c)Outrages upon personal dignity, in particular humiliating and degrading treatment;
(d)The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2.The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

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
30.Article 5
Crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
31.(a) murder;
(b)extermination;
(c)enslavement;
(d)deportation;
(e)imprisonment;
(f)torture;
(g)rape;
(h)persecutions on political, racial and religious grounds;
(i)other inhumane acts.

Article 7
Individual criminal responsibility
1.A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
2.The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
3.The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
4.The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Key Legal Topics

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Immigration & Refugee Law

Legal Concepts

Refugee Status
Judicial Review
Protection Obligations
War Crime

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Citations

SROOOO and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 91

Cases Citing This Decision

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Cases Cited

4

Statutory Material Cited

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SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229

Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310

SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229

Number	Document
Exhibit A	Statement of Applicant dated 22 June 2005
Exhibit B	Statement of Asadullah Schirbaz dated 2 August 2005
Exhibit C	Statement of Najibullah Rasouli dated 2 August 2005
Exhibit D	Statement of Kawa Moballigh dated 27 September 2005
Exhibit E	Statement of Mohammad Hashim Sahow dated 5 September 2005
Exhibit 1	Council of the European Union from the Netherlands delegation re Afghanistan Security Services in Communist Afghanistan (1978 – 1992) dated 26 April 2001
Exhibit 2	The Afghanistan Justice Project; “Casting Shadows: War Crimes & Crimes Against Humanity: 1978 – 2001”
Exhibit 3	Record of interview dated 5 March 2000
Exhibit 4	Record of interview dated 28 June 2004
Exhibit 5	Afghanistan: Amnesty International Report on Afghanistan
Exhibit 6	1990 Amnesty International Report on Afghanistan

Date	Event
28 October 1965	Applicant born in Afghanistan;
May 1979	Applicant becomes a member of the Youth Democratic Organisation of Afghanistan;
1979-80	KHAD established in Afghanistan;
1980-84	Applicant granted scholarship to study mechanical engineering in the Soviet Union;
October 1984	Applicant returns to Afghanistan;
November1984	Applicant joins KHAD and receives six to seven months training. He assumes position of being responsible for repairing and maintaining coding machines in Kabul;
1985	Applicant joins the Peoples Democratic Party of Afghanistan;
1986	Applicant promoted to assistant manager of Coding Department with KHAD;
1989	Applicant transferred to KHAD office in Kandahar as assistant manager of coding office and has staff under his supervision;
1995	Taliban enters Kabul;
March 1995	Applicant escapes Afghanistan;
June 1995	Applicant deported back to Afghanistan
November 1999	Applicant arrives in Australia on a boat as unauthorised arrival;
27 February 2000	Applicant makes application for protection visa;
31 October 2000	Applicant granted a subclass 785 (Temporary Protection) visa;
13 March 2001	Applicant lodges an application for a Protection (class XA) visa; and
24 December 2004	Applicant’s application for a protection (class XA) visa refused.

[2006] AATA 91

3 February 2006

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Refugee Status

Judicial Review

Protection Obligations

War Crime