"VAB" and Minister for Immigration and Multicultural Affairs
[2001] AATA 990
•5 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 990
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/602
GENERAL ADMINISTRATIVE DIVISION )
Re "VAB"
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date5 December 2001
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt ]
Deputy President
CATCHWORDS
Immigration - Refugees - protection visa - applicant alleged to have committed crimes against humanity - whether there is "serious reason for considering" that he had committed such crimes - "personal and knowing participation" in such crimes.
Migration Act 1958 – ss29,31,36
Convention Relating to the Status of Refugees 1951 – Articles 1(a), IF
Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889
SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128, 22 February 2000
W98/45 and Minister for Immigration and Multicultural Affairs (AAT Decision No. 13450, 17 August 1998)
REASONS FOR DECISION
5 December 2001 Mr S P Estcourt QC., (Deputy President)
This is an application to review a decision of the respondent refusing to grant to the applicant a protection visa pursuant to the Migration Act 1958 ("the Act").
The only evidence before the Tribunal are the documents compiled pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, "the T documents" which collectively are Exhibit 1.
The general provisions relating to the granting of visas are to be found in s.29 of Migration Act 1958. Section 29 provides inter alia that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
"(a) travel to and enter Australia; or
(b) remain in Australia."The Act also makes provision for prescribed classes of visa (s.31(1)), and the Regulations may prescribe criteria for visas of specified classes (s.31(3)).
Section 36 of the Act makes provision for a class of visas to be known as "protection visas". The criterion for the grant of such a visa is that the applicant be a non-citizen of Australia, to whom Australia has protection obligations under the Refugees' Convention (the 1951 United Nations Convention and the 1967 Protocol Relating to the Status of Refugees).
Article 1(a) of the Convention defines a refugee as a person who fulfils the following conditions:
"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside of the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it".
The application of this condition is qualified by Article 1F of the Convention, which states:
"The provisions of this convention shall not apply to any person with respect to whom there are serious reasons for considering that:
he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the International Instruments drawn up to make provision in respect of such crimes;
he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
he has been guilty of acts contrary to the purposes and principles of the United Nations."
The issue in this application is whether there are serious reasons for considering that the applicant has committed, relevantly, a crime against humanity and is thus excluded from protection under the Refugee Convention by virtue of Article IF ("the exclusion clause").
The applicant is a 36-year-old citizen of Afghanistan. He is married and his wife and her children together with the rest of his family live in Afghanistan.
The following matters, which are relevant to the question of the application of the exclusion clause in this case are taken from the respondent's decision record dated 27 May 2000 (Exhibit 1, T2). As they are comprised of the applicant's own statements and were not contradicted on the hearing of this application the Tribunal finds them as facts:
(a)In 1980 the applicant joined Afghanistan's secret police known as KHAD (Khedamat-e Etela'are Dawlati), also known as the State Information Service, as a non-military KHAD intelligence officer at rank 10 being appointed to KHAD 2nd Division (foreign division) by the then KHAD 3rd Deputy Director.
With regard to appointment requirements, the first condition the applicant had to satisfy was that he had to be a member of the People's Democratic Party of Afghanistan (PDPA) and his relatives could not be members of any other Party. He had to have a proper family background and needed to be supported by three permanent members of the PDPA who acted as his guarantors.
(b)After service in the KHAD 2nd Division for one and a half months the applicant was transferred to the L35 Department, where he was promoted to the position of Department Director/Supervisor. The applicant performed the function of the head of L35 Department until the demise of KHAD.
(c)In 1982 the applicant was sent to Takshkient, Uzbekistan, where he was trained for four months by the then Soviet KGB.
The applicant became a full member of the People's Democratic Party of Afghanistan and was given a red card.
The applicant's KHAD intelligence officer's rank was converted to that of Army Major. The applicant served in the rank of Army Major until KHAD was abolished following the collapse of the Afghan Communist regime in 1992.(d)Throughout his employment with KHAD the applicant obtained regular KHAD training which included: training seminars, training in recruitment techniques, photographic and filing training, use of hand grenades and general military training.
(e)The importance of the L35 Department in the overall operations of KHAD was that it was "the heart of the heart" of KHAD. As the Supervisor of L35 Department the applicant was responsible for the entire operation of the Department which consisted of three divisions: Statistics Operative, Statistics Agentura and Archives.
(f)The applicant had extensive knowledge of the operations of the three divisions and how they fitted into the operations of other KHAD and Government Departments and divisions.
The Statistics Operative Division was responsible for opening and managing files regarding particular active opposition individuals, groups, organisations and political parties, which were involved in anti-Government activities. This included searching and collecting particular information about individuals and groups, placing the information on files and responding to requests for specific information about individuals, groups and political parties from other KHAD officers or Government Departments. When a file was requested by another KHAD or Government Department the applicant was responsible for collecting and placing specific information on file, for forwarding the file and ensuring that it was returned to his Department after the case had been finalised.
The Statistics Agentura Division dealt with the opening and management of files of KHAD secret agents. This included opening files, searching and collecting information about the profile and activities of particular agents and placing the information on files.(g)With regard to handling of files relating to people arrested by KHAD, if a person was arrested and detained, the file of that particular person would be sent by the applicant's Department to the Department that arrested the person, and would subsequently be returned to his Department as a completed file after the case was closed. The applicant's Department dealt with files pertaining to all groups and persons under 65 years of age of interest to KHAD, including those who died in detention as a result of ill-treatment and torture. An example was a file relating to a person under 65 who died in detention as a result of electric shocks applied during interrogation.
The applicant stated that he did not see photographs of tortured people because it was not possible to ascertain from viewing photographs whether a person had died as a result of torture. The applicant further stated that films had not been included in the files and that they were kept by the Department of Investigations. With regard to the contents of files, the applicant explained that, for instance, a file relating to a particular person involved in activities against the Government, would include information relating to the person's character, his educational background, his employment history, political party affiliation, history of how he became involved with Party activities, whether he was pressurised to join the Party, whether he was a loyal Party member, information regarding the relevant Party etc.
The following material on the nature and activities of KHAD was included in the evidence tendered as part of Exhibit 1 and given it was unchallenged, is accepted as accurate and reliable.
CIS Document AFG19845.E (Exhibit 1, T23)
"… Khad was created by the communist government in 1978 on the model of the KGB. Its members were trained and supervised by the KGB and became more sophisticated after the September 1979 Soviet invasion. Soviet advisers were always visible and involved in Khad operations …
Functioning as an independent department, Khad was accountable to, and dealt directly with, the prime minister's office. During the government of President Najibullah from November 1986 to April 1992, Khad became the ministry of natural security.
… it appears as though Khad consisted of three levels: (a) the external affairs Khad which dealt with international intelligence and counter-intelligence; (b) the military Khad which deal with military intelligence; and (c) the civilian Khad which deal with all other aspects of Khad. In addition to its trained agents working in the civilian departments and its official staff working within the military, Khad also had informants, working mostly undercover, who were found throughout the society. Information was obtained either "willingly or unwillingly" from these informants.
Khad carried out investigations of detained and arrested people, collected information on anti-government activists and opponents, and infiltrated the ranks of the mujahideen and the resistance fighters, in order to defeat and control them. It was also widely accepted that human rights abuses were carried out against prisoners in Khad's custody …".CIS Document (CX41204) (Exhibit 1, T25)
"Abdul-Ghulam didn't think much of it when a Russian man came into his store recently and bought a rare Kabul street map.
But he had reason to think a lot about it a few days later when a group of the authoritarian regime's secret police, known as Khad, burst into his shop. "Why are you selling subversive materials?" one of them demanded.
The agents confiscated his remaining maps. Then they turned to a small selection of books that Abdul-Ghulam, (not his real name) stocks. They gathered up Islamic fundamentalist titles and Afghan history books by American scholar Louis Dupree, whom they denounced as a CIA operative.
"My store is good for the government. It is good for culture. But still they do these things", said Abul Ghulam. "Things are better than they were before, but still you must be very careful."
(The incident highlighted a daily fact of life for residents of the Afghan capital: fear.) They no longer face the regular prospect of midnight disappearances and murders at the notorious Pul-i-Charki prison, common in the years after the 1978 Marxist coup. But lesser encounters with Khad, such as arrest and harassment, are still common for intellectuals, merchants and workers, particularly those selling to or working with foreigners.
Khad has arrested thousands of people since Soviet troops withdrew from Afghanistan last February, according to foreign officials who have lived here during the last year. A Security Ministry official insisted this week that all but a few hundred had been released.
"There is a measure of tolerance," said a non-communist professor at Kabul University. "But behind that tolerance there is Khad. Anybody could be Khad. Khad is everywhere – in the university, in government and in the ministries. When I am in a store, in a hospital, at the university, I am cautious what I say. I have to stay within the boundaries where it is not dangerous."
In the last three years, President Najib has lowered Khad's profile as part of his political campaign against the U.S. - backed Mujahedeen guerrillas, who are trying to wrest control of the country.
The chief political weapon his opponents have is Najib's role as chief of the KGB-trained Khad for six years before he became president in 1986.
In a news conference Wednesday, Najib rejected the notion that he is incapable of presiding over a genuine reconciliation between his Soviet-backed regime and the rebels and their sympathizers. He said his opponents are using Khad's continuing role as an excuse to avoid negotiations.
"The positive and active role played by Afghan security organs in defence of national interests is a matter of appreciation by the Afghan people," Najib said. "Many leaders can be found in countries with different socio-economic systems who in the past had responsibility for security and information-gathering."
(He may have been referring President Bush, who was head of the CIA in the 1970s). Government spokesman Mohammend Naquib claimed Tuesday that in the three years since the government launched its national reconciliation program, "some 70 percent of all armed groups have stopped fighting us." The figure could not be confirmed.
Still, Najib clearly takes a serious view of the Afghans' deep bitterness towards Khad. He has turned at least two Khad interrogation centres in Kabl into restaurants. Khad agents have not been known recently to break up street conversations between Afghans and foreigners.What remains is a subtler - but, Afghans say, still effective – officially sponsored pattern of activity based on fear.
A government official declined last week to reveal Khad's size. Foreign diplomats with close ties to the government estimated that Khad employs 30,000 civilian agents and about 24,000 combat troops who spearhead the army's field operations. Afghanistan's population is about 16.6 million.
The number of political prisoners' Khad holds is not known. Diplomates estimated that Pul-I-Charki held between 4,000 and 5,000 prisoners, but that number is said to include some foreigners and common criminals.
Last month, Khad agents swept up 127 members of the army on charges of plotting against Najib on behalf of the Mujahedeen. Their names were not released, but sources said five senior officers were among them, including the general commander of air defence, the chief of army communications and the assistant commander for military intelligence. No more than a handful have been released, informed sources said.
Afghans with no official connections said in recent interviews that they assume they are watched both at work and in their neighbourhoods. They visibly stiffened, sometimes paled and changed the subject at the mention of Khad. No Afghan could be found who would consent to be interviewed by a foreigner in such public places as Kabul's main hotels.
A grim-one-liner making the rounds in Kabal these days is that if Khad arrests one son, his father will not complain in front of his other son.
"Khad is a fact of life," said the ambassador of a nation with long-time close relations with the Soviets and Afghans. "Whether they are discreet or obtrusive varies from operative to operative and operation to operation. But Khad casts a wide net."CIS Document (CX19938) (Exhibit 1, T26).
"In May 1986 the Soviets installed the head of the notorious Khad secret police, Dr Najibullah as President Najibullah. He was a member of the Parcham faction of the PDPA. Due to his large physique, he was referred to as Najib-e-Gaw (Najib, the Bull) by his opponents.
… In 1980, he was appointed the head of Khad, the dreaded secret police organisation. Under Najibullah's directions, Khad arrested, imprisoned, tortured and finally executed tens of thousands of Afghans throughout the eighties. Najibullah replaced Karmal as Afghanistan's President in 1986 after a shift in Soviet Union's policy towards Afghanistan. Under his Presidency, Najibullah shuffled the government twice by bringing in new members. ( The Online Centre for Afghan Studies).
The Taliban walked up to Najibullah's room, beat him and his brother senseless and then bundled them into a pick-up and drove them to the darkened Presidential Palace. There they castrated Najibullah, dragged his body behind a jeep for several rounds of the Palace and then shot him dead. His brother was similarly tortured and then throttled to death. The Taliban hanged the two dead men from a concrete traffic control post just out side the Palace, only a few blocks from the UN compound. (TALIBAN – "Militant Islam, Oil and Fundamentalism in Central Asia by Ahmed Rashid", p49, published by Yale University Press 2000" CIS#12723)"CIS Document (CX19905) (Exhibit 1, T27)
"KABUL, May 13, Reuter – the big bloodstain spread across the carpet at KHAD security police headquarters in Kabul bears testament to the demise of one of the most feared organisations in Afghanistan. The stain marks the spot where Khad chief Ghulam Farooq Yaqubi blew his brains out or was possibly murdered after President Najibullah failed in his bid to escape Kabul as guerrilla forces closed in last month …
… KHAD was swiftly abolished by the new Islamic government when it took office two weeks ago and its headquarters taken over by Defence Minister Ahmad Shah Masood. His mujahideen followers today pass freely through the gates which would have struck terror only a monthly ago … Those not so lucky would have ended up in the notorious Pol-I-charki jail outside Kabul. Many in the first few years after the Marxist revolution in 1978 would have been shot and buried in mass graves. The new government found human remains last week during test digging at one suspected site of Afghanistan's killing fields at Pol-I-Gon near Kabul."Amnesty International Report 1985: Afghanistan (CIS Document: CX51146) (Exhibit 1, T24)
"Amnesty International continued to be concerned about the imprisonment of prisoners of conscience, the detention of political prisoners without charge or trial and the use of the death penalty. The organisation also continued to receive reports of torture and ill-treatment of prisoners and extrajudicial executions…
… Amnesty International continued to call for the unconditional release of prisoners of conscience Professor Hassan Kakar, Dr Osman Rustar, and Shukrullah Kohgadai. They had been sentenced to eight, 10 and seven-year prison terms respectively in 1983 reportedly for participating in a discussion group at Kabul University seeking peaceful solutions to the armed conflict. In addition, Amnesty International adopted as a prisoner of conscience Habiburahman Halah, a professor of journalism at Kabul University also alleged to have been a member of this group. He was arrested in December 1981 near the border with Pakistan and sentenced in 1983 to seven years' imprisonment for attempting to leave the country and for counter-revolutionary offences. Amnesty International was informed that at his trial Habiburahman Halah withdrew an earlier confession on the grounds that it had been extracted under torture. On 20 December the official Kabul New Times announced that the government had declared its support for the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the United Nations General Assembly.
Despite this, Amnesty International continued to receive persistent reports of torture and ill-treatment of people taken into custody by the Khedamat-a Atla't Dawlati (Khad), State Information Service. The reports asserted that those tortured and ill-treated in custody by Khad agents included not only people accused of armed resistance to the government but also people arrested on suspicion of non-violent political opposition, such as the distribution of illegal shab nameh ("night letters" - clandestinely circulated pamphlets criticising the government). Torture was apparently most often used to extract information or confessions of guilt. Amnesty International received allegations that Soviet advisers attached to Khad units were present at detention centres where torture was reported. On 23 May Kabul Radio announced that nuclear physicist Dr Mohammad Younis Akbari had been condemned to death by a Special Revolutionary Court for engaging in subversion and counter-revolutionary activities on behalf of the People's Republic of China (see Amnesty International Report 1984). Dr Akbari allegedly confessed to being a member of Reha'i, a Maoist political group, and to receiving money from China.
On 25 May Amnesty International appealed for commutation of Dr Akbari's death sentence and asked for details of his trial. It was not known whether he had been executed by the end of 1984. Amnesty International was concerned about the marked increase in the number of reported death sentences and executions in 1984. In a statement submitted on 29 May to the UN the government said that it was trying to reduce the number of executions and was working towards the abolition of capital punishment. Amnesty International welcomed this statement on 14 August but expressed concern at a recent Kabul Radio announcement that Abdul Kodous Kal and 14 other unnamed people had been sentenced to death for murder and anti-government activities. On several occasions Amnesty International called for the commutation of such sentences and in December launched a collective appeal for the 77 people reported in the official Afghan news media as having been condemned to death. Most of these were sentenced for murder and terrorism. In all, 68 people were officially reported executed during 1984 compared with 12 in 1983.
Amnesty International was concerned that all these death sentences had been handed down by Special Revolutionary Tribunals against whose decisions there was not right of appeal, in violation of Article 14(5) of the International Covenant on Civil and Political Rights, to which Afghanistan is party. In December in a speech to Khad investigators, President Babrak Karmal declared that "false humanity … [towards] the counter-revolutionaries" should be avoided. He urged prosecutors to object if the court "unjustifiably determin [ed] a light punishment" and directed the courts to acquit defendants "only in the light of total and clear innocence of the accused". Amnesty International believed that these political directives, the absence of appeals procedures and the reported torture of political suspects during interrogation, could lead to death sentences being imposed arbitrarily. It submitted all reported cases to the UN Special Rapporteur on Summary or Arbitrary Executions."Amnesty International Report 1986 on Afghanistan (CIS Document CX52716) (Exhibit 2, T31)
"… Systematic torture and ill-treatment of people suspected of supporting armed opposition groups by the Khedamat-e-Etela'at Kawlati (KHAD), State Information Service, continued to be reported. Amnesty International remained concerned about the detention of political prisoners without charge or trial, and about political trials which did not conform to internationally recognised standards for fair trial. The death penalty continued to be imposed frequently …
… Reports of torture and ill-treatment of people taken into custody by the Khad persisted. 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 Pul-e-Charkhi prison and in military detention; in addition to Kabul, reports referred to Bamian, Ghazni, Heart, Jalalabad and 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 "confession". Forms of torture reported included beating, burning with cigarettes, removal of fingernails, insertion of a bottle in the rectum, sleep deprivation, exposure to cold or to sun, standing in water or snow, mock execution, and witnessing of torture of others. Consistent accounts were given of various forms of electric shock torture; the use of electric shock batons, the application of current by a telephone-like device with wires variously attached to the fingers, toes, ears, tongue and penis, and the use of an electric chair. Several reports referred to the presence of Soviet personnel during interrogation under torture."Amnesty International Report 1989 (CIS Document 6585) (Exhibit 1, T32)
"… Some political prisoners were sentenced after trials by Special Revolutionary Courts which did not conform to international standards. There were reports of torture and ill-treatment of prisoners although on a lesser scale than in previous years. There were also reports of extrajudicial executions by Afghan security forces and Soviet troops …
… At the end of the year over five million Afghans remained in exile, mostly in Pakistan and Iran. They constituted the largest refugee group in the world."1989 US Statement Department Report on Human Rights Practices: Afghanistan (CX51323) (Exhibit 1, T29)
"RESPECT FOR HUMAN RIGHTS
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing.
Arbitrary killing and other acts of violence against suspected opponents of the Kabul regime were commonplace. Executions continued in Afghan prisons, often following summary trial and conviction -- sometimes for political offences -- by special courts. Reportedly, regime forces and some mujahidin groups have executed prisoners in the field.
The fierce fighting early in the year around the city of Jalalabad involved reported mujahidin executions of regime troops who had surrendered. There have also been murders of Afghans both inside and outside Afghanistan which have been ascribed to mujahidin groups as well as to WAD agents.b. Disappearances continued in areas under regime control. This is frequently the result of the impressment into military service of males as young as 13 years old. Some persons also disappear as a result of the action of mujahidin, who have been reported to have abducted or captured regime military and civilian cadre and suspected regime collaborators. In its October report, Asia Watch cites five cases of disappearances of intellectuals and alleges that throughout the conflict the distribution of arms and aid has been an important factor in the conflict among resistance groups and that aid workers and intellectuals have been a frequent target of attack.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
Regime authorities frequently use torture to punish or to extract information or confessions. The practice is sufficiently widespread to indicate that it has official sanction. Torture techniques include both physical and psychological abuse; the use of electric shock to sensitive areas of the body, immersion in water, and beatings are common forms of abuse reported by victims and witnesses. Threats of abuse against family members and prolonged sleep deprivation are typical forms of psychological torture. Some reports describe cases of mental disturbances induced by torture in regime prisons. In its 1989 Report, covering 1988, Amnesty International (AI) noted that it had continued to receive reports of the torture and ill-treatment of prisoners, although again, as noted in its 1988 report, on a smaller scale than in previous years."US State Department Report on Human Rights Practices for 1990: Afghanistan (DCS #995) (Exhibit 1, T30)
"… The current regime in Kabul derives its political power from a coup in 1978, the 1979 Soviet invasion and 10-year occupation, and following the withdrawal of Soviet forces in 1989 – massive military and economic support program provided by the U.S.S.R. Since its establishment the regime has faced continuous armed opposition supported by a large portion of the population …
… The keystone of President Najib's control is the Ministry of State Security (WAD), responsible for internal security functions in regime-controlled areas …
… Reports continue of torture by regime authorities to extract information or confessions … Techniques include beating, electric shock, and immersion in water. Threats of abuse against family members and prolonged sleep deprivation are typical forms of psychological torture … ."Amnesty International Report 1990 (CX 51322) (Exhibit 1, T28)
"Thousands of political prisoners were believed to be imprisoned, including some possible prisoners of conscience. Torture and ill-treatment of prisoners, particularly during interrogation, continued to be reported, although on a lesser scale than in previous years, despite the completion of the withdrawal of Soviet troops in February, the conflict between government forces and armed opposition groups – the Mujahideen by the USA and Pakistan. It was difficult to obtain and corroborate information about human rights violations due to the war and social dislocation. However, there were several reports of Mujahideen forces carrying out extrajudicial executions of prisoners and civilians. In February the authorities at Kabul's Pul-e-Charkhi Prison said they were holding 2,165 political prisoners; definite information about prisoners of conscience was available in only a few cases. Maulavi Abdul Rauf Logari, the Imam of the Wazir Akbar Khan Mosque in Kabul, was detained in March after preaching at the mosque in the presence of President Najibullah.
He reportedly recited a Persian verse which seemed to be directed at the President: "You have done nothing for your Creator, so you cannot do anything for His creatures". He did not advocate violence during the sermon and was considered to be a prisoner of conscience. He was released from Pul-e-Charkhi Prison later in the year. Among possible prisoners of conscience believed still held at the end of the year was Amin Yusufzai. He had been detained at Kabul airport in January 1986, reportedly because he was found carrying a picture of his brother, a member of the Mujahideen. He was not known to have been charged or tried. There was no new information about two other possible prisoners of science, Syed Abdul Samad and Mohammad Nazar.Both Afghans, they were tried and convicted of spying in January 1988 after they had entered the country illegally with Alain Guillo, a French journalist (see Amnesty International Report 1989). They were sentenced to 16 years' imprisonment and were believed to be held at Pul-e-Charkhi Prison. Dr Mohammad Younis Akbari, a nuclear-physicist sentenced to death in 1984 (see Amnesty International Report 1985), was also believed to be still imprisoned, although his whereabouts were unknown. Information was received in January that seven members of the Afghan Mellat, the Afghan Social Democratic Party, held since 1983, had been released in 1988 (see Amnesty International Report 1989).
Torture and ill-treatment of prisoners, particularly during interrogation, by the security police and the military continued to be reported. In one case, a member of the Mujahideen captured in combat at Deh-e Sabz village in January was released in May after he had become deranged reportedly as a result of torture. He was still suffering from its effects when he was admitted to a psychiatric clinic in Pakistan in July. There was no new information about people who had reportedly "disappeared" in detention in previous years, such as Ziaul-Haq, who had "disappeared" in early 1983 (see Amnesty International Report in 1989)."
CIS Document 12542 (Amnesty International Reports of Torture and Long Term Detention without Trial (AI Index: ASA 11/91/1991) (Exhibit 1, T33)
"Reports of prolonged incommunicado detention of political prisoners in interrogation centres and prison blocks operated by the Ministry of State Security of Afghanistan are of serious concern to Amnesty International. Hundreds of prisoners have reportedly been held without charge or trial for up to nine years in the centres, including the segregated Blocks 1 and 2 of Pul-e-Charkhi Prison near Kabul, and are denied access to legal counsel and family visits. Amnesty International has received reports that political prisoners in these centres are subject to systematic torture and ill-treatment, and that they are held under conditions that fail to meet UN Standard Minimum Rules for the Treatment of Prisoners …
… Pul-e-Charkhi Prison comprises several blocks. Blocks 1 and 2 are reserved for unsentenced prisoners and are operated by the Ministry of State Security. Other blocks hold sentenced prisoners and are run by the Ministry of the Interior…
The Khad (Khedamat-e-Etela'ate Dawlati) or the State Information Service was established in 1980 under the direction of Dr Najibullah, now president. Interrogation centres were set up throughout the country known as KHAD centres. Since 1986 when the Khad was upgraded, becoming the Ministry of State Security, these centres have been officially called Riasats (Directorates). The public, however, still commonly refers to them as KHAD Centres.
There are currently over a dozen Riasat Interrogation centres in Kabul with an unknown number in provincial cities. Torture reportedly takes place in all of these centres …".
Human Rights Watch World Report 1992 (CIS #424) (Exhibit 1, T34)
"… Most arrests are carried out by the Ministry of State Security, and there are few safeguards against arbitrary arrest and torture. In his 1991 report on human rights in Afghanistan, UN Special Rapporteur Felix Ermacora stated:
persons suspected of having acted against State security have been tortured during the process of interrogation by security personnel with a view to obtaining information about a presumed network engaging in anti-constitutional and terrorist activities … The means of torture were described as electric shock, beating … cigarette burns and continuous deprivation of sleep."
As to the meaning of the phrase "serious reason for considering" used in Article IF of the Convention, the Tribunal directs itself in accordance with the observations of Weinberg J in Arguita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889 (22 December 2000). There his Honour said at paragraphs 51 to 54:
"51. It was for the AAT to determine, upon all the evidence, whether Art IF operated so as to preclude the applicant from being considered for the grant of a protection visa. As Branson J said in Ovcharuk at 301:
'Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.'
52. I regard the observations of French J 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.
53. In my view the applicant's contention that Art IF(b) requires the relevant decision-maker to be satisfied beyond reasonable doubt that the applicant has committed a serious non-political crime cannot be sustained. No can his alternative contention that Art IF(b) requires proof on the balance of probabilities. There is nothing in the language of Art IF(b) that suggests it should be read as imposing upon a decision-maker an obligation to apply either of these curial stands of proof.
54. It is sufficient, in my view, if the material before the decision 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."
As to the concept of crimes against peace and crimes against humanity, the Tribunal in directing itself in this case is mindful of the observations of Deputy President Chappel in SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128 (22 February 2000) at paragraphs 96 – 100. There the learned Deputy President said.
"Article IF(a): crimes against peace and crimes against humanity
96. Both crimes against peace and crimes against humanity referred to in Article IF(a) are said to be those which are "defined in the international instruments drawn up to make provision in respect of such crimes." The international instruments which do make provision for such crimes were discussed in some detail by the former President of this Tribunal, Mathews J, in N96/1441 and Minister for Immigration and Multicultural Affairs (AAT 12977, 11 June 1998), at 49-65. In that decision Mathews J noted that the "foundation definition of crimes against humanity" appeared in Article 6C of the Charter of the International Military Tribunal at Nuremberg (T7:63), while in relation to the meaning of "crime against peace", Article 6A of that Charter provided further content to the phrase.
97. Article 6 of the Charter states the following in regard to crimes against peace and crimes against humanity:
"(a)Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
…
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war: or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
'Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan." (T7:63)
98. In N96/77 and Minister for Immigration and Multicultural Affairs Mathews J held that:
"… the requirement that crimes against humanity be perpetrated against a civilian population means that isolated or random acts against individuals will not be sufficient. There must be a systematic pattern of persecution aimed at members of an identifiable race or group within the civilian population." (at 65)
99. This view expressed by Mathews J is in accord with the obiter statements of two Justices of the High Court in Polyukhovich v The Commonwealth (1991) 172 CLR 501. In that case Deane J said that the term "crimes against humanity" was:
"… a convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international laws but which may not involve a war crime in the strict sense by reason of lack of connexion with actual hostilities." (at 596)
100. In the same case Toohey J said, after considering Article 6C of the Charter:
"… a crime against humanity must comprise conduct directed at a civilian population. Isolated acts against individuals, unconnected with a larger design to persecute or exterminate a population, are not within the definition of a crime, whether committed by an individual or by a state authority." (at 669)"
As to the question, of accessorial liability for crimes against peace and humanity the Tribunal is guided by the consideration of the cases by Deputy President Chappell in SRL and Minister for Immigration and Multicultural Affairs (supra) at paragraphs 103 to 107. There Deputy President Chappell said:
"103. The respondent's submissions also acknowledged that the case before the Tribunal raised an important issue concerning the scope of accessorial liability under Article IF. The decision of Mathews J in W97/1164 and Minister for Immigration and Multicultural Affairs (AAT 12974, 10 June 1998) appeared to be the first Australian authority to deal with accessorial liability under Article IF (at 68). In that case the applicant was a citizen of Myanmar and a member of the Myanmar Navy. The applicant was aware of, and present at, occasions when activists and students were being systematically murdered by other members of the Myanmar Navy. Justice Mathews applied a test derived from relevant Canadian authorities that:
"… participants in the shooting of fleeing students will be held responsible for killings committed by others if they shared the common objective that students be shot and killed. This is consistent with the approach adopted by the courts in Moreno and Finta, namely that complicity rests on the existence of a shared common purpose, which must be determined subjectively."
104. On the facts before her in W97/164, Mathews J found that the applicant should not be regarded as an accomplice to international offences and thereby excluded from protection of the Convention since he was "a very minor player in the events"; he "himself shot no one", nor did he "share the common purpose that fleeing activists should be shot"; and he "did everything that was realistically within his power to avert harm to his intended victims" - he therefore "lacked the requisite mental element for accessorial liability." (at 83)
105. In a later decision of Mathews J in W98/45 and Minister for Immigration and Multicultural Affairs (AAT 13450, 17 August 1998), the Tribunal considered the provisions of Article IF and accessorial liability in the context of an Algerian applicant who Mathews J found:
"… was involved in a series of assassination operations. His role was to observe the target's movements and report them back to the group. He was not involved in selecting the target, nor in the actual killing. But his role was nevertheless integral to the assassination operation." (at 45)
106. On those findings, Mathews J concluded that the applicant was:
"… clearly well aware of the purpose for which he was carrying out his surveillance duties. He was thus a personal and knowing participant in acts of assassination which, on my finding, amounted to crimes against humanity." (at 50)
107. Having referred to these recent decisions of the former President of the Tribunal, Mr Lancaster also referred to Canadian authorities that suggested that "personal and knowing participation" in persecutorial acts was required to activate the exclusion clause in the Convention; see Ramirez v Canada (1992) 89 DLR 4th 173; Weisman, "Article IF(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law" (1996) 8 International Journal of Refugee Law 111 at 135. These authorities suggested that the mere membership of an organisation that commits international offences might or might not exclude an applicant from refugee status - the circumstances of the particular case governed that conclusion. It might be, for example, that the structure and operation of a particular organisation was such that a member by necessity had "personal and knowing participation" in the offences: see Weisman at 134-141."
The Tribunal is further guided by the full analysis of Justice Mathews in W98/45 and Minister for Immigration and Multicultural Affairs (supra) of the question of accessorial liability, only part of which is set out above in the passage from the decision of Deputy President Chappell in SRL and Minister for Immigration and Multicultural Affairs. Her Honour said:
"Accordingly, the systematic killing of police officers by FIS constituted, in my view, crimes against humanity under Article IF(a). It is thus not necessary to consider whether they also constituted serious non-political crimes under Article 1(F)(b). As to the applicant's involvement in these crimes, Article 6 of the Nuremberg Charter deals, in a general way, with accessorial liability. It provides as follows:
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed in execution of such plan.
As MacGuigan JA commented in Ramirez, this passage is decisive of the inclusion of accomplices as well as active participants in crimes against humanity, but it leaves outstanding the very large question as to the extent of participation required for inclusion as an "accomplice" (at p 178). However given my factual findings in this matter, there can be no doubt on this issue. As the Canadian cases, including Ramirez, all confirm, the primary requirement is that there be "personal and knowing participation" in the criminal acts. The applicant was clearly well aware of the purpose for which he was carrying out his surveillance duties. He was thus a personal and knowing participant in acts of assassination which, on my finding, amounted to crimes against humanity."
Bearing all these observations in mind, the Tribunal is of the view that the applicant was sufficiently highly placed in KHAD for a sufficiently long period of time as to be fairly saddled with responsibility for that organisation's excesses. It follows that there are serious reasons for considering that he has committed crimes against humanity and he is thus excluded by Article IF from the protection of the Refugee Convention.
In this regard the Tribunal adopts as its own, the reasoning of the respondent's delegate in his decision of 17 May 2001 which appears at pages 22-23 of Exhibit 1 as follows:
"I have considered the independent evidence and the applicant's claims carefully.
Independent country information indicates that the use of torture and ill-treatment by Khad officers to punish or extract information was endemic. Independent evidence indicates that 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 "confession". Independent evidence indicates that forms of torture by Khad officers to extract information or confessions included beating, burning with cigarettes, removal of fingernails, insertion of a bottle in the rectum, sleep deprivation, exposure to cold or to sun, standing in water or snow, mock execution, and witnessing of torture of others. Consistent accounts were given of various forms of electric shock torture; the use of electric shock batons, the application of current by a telephone-like device with wires variously attached to the fingers, toes, ears, tongue and penis, and the use of an electric chair. Independent evidence indicates that immersion in water, prolonger sleep deprivation and threats of abuse against family members were typical forms of psychological torture committed by Khad. The independent evidence indicates that the forms of torture referred to above were methodical and systematic practices and a deliberate course of Khad conducted throughout the eighties. The independent evidence indicates that torture and inhuman treatment of prisoners causing great suffering were sufficiently widespread and systematic against the civilian population and against persons taking no active part in the hostilities, including intellectuals, merchants and workers. Independent evidence indicates that under Najibullah's directions, Khad arrested, imprisoned, tortured and executed thousands of Afghans throughout the eighties.I find that the above practices by Khad come within the meaning of "crime against humanity" as defined by the international instruments referred to above.
The applicant was a KGB vetted and trained Khad officer. He was employed as a Director of Afghanistan's Ministry of National Security (Khad) in the rank of Army Major continuously for more than 10 years at the time when arrests, detention and interrogation of people suspected of political opposition was routine and when torture and ill-treatment of people taken into Khad custody was a widespread, regular and methodical behaviour contrary to internationally accepted norms.
The applicant joined Khad in 1980 and served as security officer continuously until its demise in April 1992.
Although the applicant did not admit to having committed personally, any acts of torture or murder, the applicant was employed at level of authority, namely, Director of Department in the rank of an army major, where he would necessarily have attained a knowledge of the likely consequences of the activities of the Department which he headed in gathering details and information about particular individuals and groups and passing that information on to relevant Khad Departments.
The activities of the applicant's Department have resulted in imprisonment and deprivation of liberty, torture and persecution causing suffering as part of a widespread attack directed against anti-Government activists and non-violent political opponents. In the applicant's own words, L35 Department was "the heart of heart" of the Khad operations. It was a vital link in the purpose chain of Khad activities.
Although the applicant claimed to have never interrogated or tortured anyone he admitted he was aware that people died in Khad custody as a result of torture or ill-treatment through such methods as electric shock torture.
The fact that the applicant had not admitted to any involvement in human rights abuses is not in itself a bar to finding that he is excluded.
The applicant was aware of the purpose and consequences of his Department's activities of collecting and passing on the information – namely imprisonment, deprivation of liberty, torture and ill-treatment.
The evidence demonstrates that the applicant did nothing to halt these acts of ill-treatment or distance himself from these acts. The applicant has not claimed to have resisted the KHAD operations, and there is no other evidence to suggest that he did so. The applicant understood the purpose and the intended consequences of his Department's activities and did nothing to seek the opportunity to leave the organisation. The applicant actively sought promotion during his employment to the position of a Department Director and he served within the organisation continuously for 12 years until its demise in April 1992 following the collapse of the Soviet-led regime.
The applicant was involved in the process that he knew could end in human rights abuses. The applicant 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 – imprisonment, torture, persecution makes him complicit in the crimes against humanity.
I find the circumstances of this case therefore constitute serious reasons for considering that the applicant has committed crimes against humanity outside the country of refuge prior to his admission to that country as a refugee.
Given my finding that there are serious reasons for considering that the applicant has committed a crime against humanity and falls within the operation of exclusion clause IF, there is no obligation to go on and consider whether the further claims of the applicant entitle him to the protection of the Refugees Convention."
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 inhuman 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.
In the Tribunal's view the evidence of the applicant's complicity in the commissions of crimes against humanity, in this sense of "personal and knowing participation", is strong. It follows that he is not a person to whom Australia has protection obligations under the Refugee Convention and as a consequence he is not entitled to a protection visa.
The decision of the Tribunal is therefore that the decision under review is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: ......K L Miller...............................................
Personal AssistantDate/s of Hearing 25 October 2001
Date of Decision 5 December 2001
Counsel for the Applicant Ms Koya
Solicitor for the Applicant Macpherson & Kelley Lawyers
Counsel for the Respondent Ms S Law
Solicitor for the Respondent Australian Government Solicitor
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