SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs

In the case of SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs, the applicant, a former soldier from Sri Lanka, sought to overturn a decision by the Administrative Appeals Tribunal (AAT) and the Delegate that he was ineligible for a protection visa due to potential involvement in war crimes and crimes against humanity. The applicant's service in the Sri Lankan Army from 1997 to 2000, including assignments in Trincomalee, Elephant Pass, and Jaffna, and his subsequent flight to Australia in 2000, formed the basis of his claim for asylum. The crux of the legal dispute centred on whether the acts the applicant was involved in were severe enough to qualify as war crimes or crimes against humanity under international law, and whether his status as a soldier following orders negated his personal culpability.

The court needed to determine whether the acts described by the applicant could be classified as war crimes or crimes against humanity as defined in the Rome Statute and other international instruments. Specifically, the definitions of 'torture' and 'other inhumane acts' in Article 7 of the Rome Statute were pertinent, as well as the provisions concerning 'grave breaches' of the Geneva Conventions in Article 8. Additionally, the court had to assess if the applicant's compliance with orders could absolve him of responsibility under international law.

The court concluded that the applicant's involvement in acts that could be characterised as 'lower level torture or cruel and inhuman treatment' met the threshold for being considered war crimes or crimes against humanity. Despite the applicant's argument that he was merely following orders, the court found that his participation in these acts, regardless of his rank or position, made him culpable under international law. The court also rejected the applicant's claim that the relevant provisions of the Migration Act were unconstitutional. Accordingly, the application was dismissed as incompetent, and the applicant was ordered to pay the respondent's costs.