SZCWP v MIMIA

[2006] HCATrans 476

[2006] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 2006

B e t w e e n -

SZCWP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 SEPTEMBER 2006, AT 2.24 PM

Copyright in the High Court of Australia

MR. B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.A. BURWOOD, for the applicant.  (instructed by Gilbert & Tobin)

MR S.J. GAGELER, SC:   May it please the Court, I appear with my learned friend, MS R.M. HENDERSON, for the respondent.  (instructed by Blake Dawson Waldron)

CALLINAN J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the point at stake which was decided against my client in the Full Court by a majority raises something which is inescapably factual – we raise that immediately – but it raises it in such a way as to give an opportunity for this Court to address important questions of the content of the relevant international instruments to finding war crimes and crimes against humanity.  It is an opportunity which ought to be taken because of the danger which would otherwise be run, and we submit illustrated by the result in this case, that relatively lowly participants in activities which can be attributed to organisations, some of whose members may indeed generate serious reasons for thinking they have committed war crimes or crimes against humanity.

The lowly members, in our submission, are in danger by way of the reasoning which led to our failure in the Full Court of being swept into a category of persons for whom the strong evidence – that is the presently authoritative gloss of serious reasons for considering – the strong evidence of commission of a war crime or a crime against humanity is largely, if not entirely, constituted by two things, the activities of others and the supportive membership of the individual who is the applicant against whom the Article is being invoked.

So the setting is a setting in which it is the class of person relatively lowly, to be specific in our case, a class of person below whom no subordinates are posited at all in the facts involved in the episodes of violence which are set out in the evidence.

CALLINAN J:   What about pages 62 and 63, line 17?  It talks about their policies and he is asked, “How would you eliminate them?” and he replied, “Kill them”.  On the next page, line 12:

Case officer:  Have you ever struck anyone with a khukura
  knife?

Interpreter:               Yes.

Case officer:  How many times have you done that?

Interpreter:               About once or twice.

MR WALKER:   Yes.  No one, I think, has suggested that it constitutes a war crime to have carried out that plainly criminal conduct referred to on page 63.

CALLINAN J:   Was there an issue of a non‑political or political crime, too?

MR WALKER:   There was at one stage but not in the Full Court.  Your Honour is talking about a serious offence, non‑political, yes.  So that would not arise in this case.

CALLINAN J:   But why does not the evidence show that, that on any view, on your client’s own admission, he committed a serious non‑political crime?

MR WALKER:   There was an opportunity for that to be the Commonwealth’s case against him, ultimately, and it was not.  It was at an earlier stage but it is not there now.  One answer to your Honour’s question is of the political nature of the evidence which, as your Honour has seen, is pervasive throughout the whole of the material.  So that the passage that your Honour has drawn to my attention on page 62 – and it is repeated, in effect, on the same page at line 40 – has, I think, been drawn to attention at every stage in dealing with this application.  It plainly is important, but what it does not do is amount to evidence, let alone strong evidence, that he has either committed a murder or has been complicit in the manner that the elements of ‑ ‑ ‑

CALLINAN J:   I do not know, Mr Walker.  At the foot of page 63:

RRT member:           So you had to get rid of the police and the
  armed forces or whoever is there.  How did you
  do that?

Interpreter:               By capturing them.

RRT member:           Were you involved in capturing these people?

Interpreter:               Yes I have to say yes.

RRT member:           Alright, and what did you do with them when
  you captured them?

Interpreter:               I didn’t actually capture them but because I was
  there with them I suppose I have to say yes I
  captured them.

RRT member:           And then what did you do ‑ ‑ ‑

MR WALKER:   The last passage, your Honour, is precisely the kind of material which required an element of crime analysis in terms of the war crimes, in terms of the crimes against humanity which is lacking in the majority in the Full Court and which Justice Wilcox did point out as having been lacking in the Tribunal and the decision‑makers below.  In other words, the police who it was held were killed as a result of the attack on the police station in which my client described his role variously, but a second line of defence rather than offence was one of the descriptions.

HEYDON J:   Was he not an accessory before the fact to that?

MR WALKER:   There is a reconnaissance as well, I think, your Honour, yes.

HEYDON J:   Killing seven, eight or 11 police officers is arguably a war crime.

MR WALKER:   If it were arguably a war crime, the outcome of the argument, yes or no, and more precisely the Convention question as to serious reasons for considering, et cetera, would include consideration of the matters to which Justice Wilcox turned but which the majority did not, in our submission, properly consider, namely whether it could be a war crime, bearing in mind the need to analyse where that raid ought to be seen in the context of the violence in the country, whether this was intermittent violence, whether it was war.  If it was war, internally, then the argument for war crime would run into a difficulty that would require factual analysis, namely, as to whether the police were involved in a combatant role, not whether police are civilian.  That is a different question – important but different.  It is simply whether they are in a combatant role. 

So, in answer to your Honour Justice Heydon’s question, of course that is a point which is raised immediately upon reading these facts.  We accept that entirely.  Our complaint is that in the decision‑making levels below, including in the Full Court, bearing in mind the gravity both of the necessary conclusion linking him with very serious crime and also the seriousness of the consequence for his application to achieve refugee status, all of that combined to require analysis of the facts as they were known about his involvement in the episode that led to the deaths of those policemen.

It would involve saying, for example, one way or the other whether the circumstances showed, as had been canvassed at least at one level below by a ministerial delegate, that the police were part of the combatant force on one side.  It means, in our submission, that the nature of the inquiry and of the conclusion – they are all provisional, of course, because no one has been convicted – the nature of those conclusions have to be calibrated to the seriousness of the offences in question – war crimes or crimes against humanity – bearing in mind that the elements of crime documents which your Honours have seen in the reasons certainly require if not direct commission of, for example, murder – that is physical killing – an involvement which would not be satisfied by mere ancillary participation in an overall operation.

It has been said in some of the Canadian decisions to which your Honours have seen reference in various levels of decision‑making before you in this case that one needs to examine as a matter of relevant fact the position of responsibility, if one likes, in the hierarchy of the organisation in question in order to evaluate complicity for the purposes of the international crimes.  That was not done in this case or, to put it slightly more pointedly, all that was revealed in this case was of a person at a most lowly level.

That is why we say this is a case that presents an opportunity for this Court to determine whether it is appropriate to regard anybody who is a supportive member of such an organisation – I am not talking about a passive member, that would be fatuous for this case – anyone who is a supportive member, because they can be seen as lending their little bit of assistance to the whole of the endeavours, does that automatically mean that where there is cogent evidence that some persons associated with the organisation ought to be considered to have serious reason to believe that they have committed war crimes or crimes against humanity it will flow down to everybody else who has assisted.

Your Honours have seen the phrases that are used variously in the attempt to translate what I will call the international elements of crime to the particular municipal systems which have to deal with these applications from time to time.  They will not all include Anglo‑American‑Australian notions of common purpose, for example, for criminal complicity.  Some will involve different elements in relation to prior knowledge but, in our submission, they all render relevant and requisite a detailed analysis and identification of two things:  the conduct said to constitute the offence being a war crime or crime against humanity as to which it can be said there is strong evidence that the applicant before the decision‑maker committed it.

CALLINAN J:   Mr Walker, if you were to succeed, ultimately, it would have to go back to the Tribunal, would it not?

MR WALKER:   Yes, your Honour.

CALLINAN J:   And the Tribunal would have that evidence before it of the commission of a serious non‑political crime?

MR WALKER:   Yes, your Honour.

CALLINAN J:   That is admission evidence by your client?

MR WALKER:   My client has the ‑ ‑ ‑

CALLINAN J:   Would not the outcome be inevitable?

MR WALKER:   No, your Honour.  The political circumstances would need to be explored, your Honour.  Your Honour, one sees, in particular, from both the English and Canadian decisions that very often the result of such a judicial outcome is that it goes back for the matter to be looked at with the appropriate level of detail.  We, of course, cannot ask for any particular outcome in this Court.  What we can ask for, with respect, if granted special leave, is that the correct legal questions be answered by the correct legal means requiring an identification of the offence or offences and the link by way of blame or attribution between those offences and my client so as then to be measured against the standard, which appears to be common ground, of strong evidence, that is that which in our jurisprudence provides serious reasons for considering, et cetera.

Now, the fact that one may look at this material and say, had there been a different level, perhaps an increased level, of scrutiny, it is by no means clear the applicant would succeed is no answer, in our submission, either to an appeal in this Court or, it would follow, to a grant, anteriorally, of special leave to entertain that appeal.  After all, all we can raise in this Court is the way in which things were done.  We cannot complain about the factual outcome.  That is the way in which we answer Justice Callinan’s point and those are the reasons why, in our submission, there ought to be a grant of special leave.

CALLINAN J:     In this matter we are not persuaded that there are sufficient prospects of success to warrant a grant of special leave.  The application for special leave is therefore dismissed, with costs.

MR WALKER:   May it please the Court.

AT 2.39 PM THE MATTER WAS CONCLUDED