'VAG'And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
[1999] AATA 150
•23 December, 2002
CATCHWORDS – IMMIGRATION – protection visa – war crimes – crimes against humanity – whether applicant is a person to whom Australia has protection obligations under refugee conventions – whether serious reasons to believe applicant has committed war crimes or crimes against humanity – decision set aside.
Migration Act 1958 ss. 31, 36 and 501K
Migration Regulations 1994 Items. 785.221 and 866.211
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
War Crimes Act 1945
Canadian Criminal Code s. 7(3.71)
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173
Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321
SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983
Polyukhovich v The Commonwealth (1991) 172 CLR 501
W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948
W97/164 [1998] AATA 618
SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128
AXOIB and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 365
DECISION AND REASONS FOR DECISION [2002] AATA 1332
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/488
GENERAL ADMINISTRATIVE DIVISION )
Re'VAG'
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 23 December, 2002
Place: Melbourne
Decision:The Tribunal
1.sets aside the decision of the respondent dated 11 April, 2002; and
2.substitutes a decision that the applicant not be refused a protection visa on the basis of Article 1F of the Refugees Convention.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 8 May, 2002, the applicant, to whom I will refer as "VAG" because of the provisions of s. 501K of the Migration Act 1958 ("Act"), applied for review of a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs. That decision was dated 11 April, 2002 and notified to VAG on the same day. The decision was to refuse to grant the applicant a Protection Visa as the delegate was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July, 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January, 1967 ("Refugees Convention"). Consequently, VAG did not meet the prescribed criterion under Items 785.221 or 866.211 of the Migration Regulations1994 ("Regulations") for a Subclass 785 (Temporary Protection) Visa or Subclass 866 (Protection) Visa.
At the hearing, the applicant was represented by Mr Hanna and the Minister by his solicitor, Mr Brereton. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. An Organisation Chart prepared by VAG, a letter relating to his discharge from the Patriotic Union of Kurdistan ("PUK") and a translation of that letter were admitted in evidence in support of his case. Regard was also had to a witness statement summarising the evidence of VAG and acknowledged by him to be a true and correct statement. Admitted in evidence in support of the Minister's case were handwritten notes of the initial entry interview of VAG and a bundle of documents to which the delegate referred in her reasons for decision. VAG gave oral evidence in support of his case.
THE ISSUE
The issue in this case is whether there are serious reasons for considering that VAG has committed a war crime or a crime against humanity within the meaning of Article 1F(a) of the Refugees Convention and so does not come within the protection of that Convention.
BACKGROUND
There was no dispute between the parties regarding many of the factual matters forming the background to the issue I must decide. In view of that and on the basis of both the oral and written material, I have made the findings of fact that I will set out in the following paragraphs.
VAG was born on 1 July, 1945 in the province of Arbil in Iraq and is an Iraqi citizen and an ethnic Kurd. He is a Muslim Sunni. VAG is married and his wife lives in Iraq. They have nine surviving children, some of whom live in Iraq and some of whom do not. His eldest son was killed in 1988 when he was trying to help injured people in a village that had been attacked with chemical weapons. Between 1975 and 1996, VAG left Iraq on three occasions and travelled to Iran
VAG was head of the Kurdish Student Union in his town ("town") from 1962 until 1964. He was also a member of the Kurdish Democratic Party ("KDP"). In 1964, that party split into two factions and he aligned himself with the faction headed by Jalal Al Talibani. VAG continued his involvement with the faction until 1970 when the Iraqi government and the Kurds reached a reconciliation. At that time, the two factions of the KDP were reunited.
In 1974, VAG surrendered himself to authorities of the Iraqi government and he was required to sign a declaration that he would not be involved in political parties in the future. If he were to become involved, he would be executed.
In 1976, the Patriotic Union of Kurdistan ("PUK") was formed. Jalal Al Talibani contacted him to become a member. Despite having signed the declaration required by the Iraqi authorities, VAG joined the PUK and worked for it secretly in his town.
THE EVIDENCE
Outline of structure of PUK
Since he was a student, VAG said, he had been involved in the Kurdish political struggle first in the KDP and then in the PUK. He has only ever wanted to work for freedom and peace for the Kurdish people, he added. The General Secretary of the PUK is Jalal Al Talibani, who is the founder of the party. There is a small organisation, which elects the Secretary General and which is the leadership of the PUK. Directly below Jalal Al Talibani as General Secretary, the PUK divides into two branches. One is the general leadership and the other is the leadership of the peshmerga. The former is shown on the left hand side of a diagram prepared by VAG and the latter on the right hand side (Exhibit B).
The political bureau comes under the heading of general leadership. The political bureau comprises the chairmen of the districts. Below the political bureau is the organisation bureau followed by the leadership of the districts. VAG named each of the districts such as the district of Soran. Under the leadership of each of the districts are a number of committees. In the case of the district of Soran, there were six committees. Each of the six committees had responsibility for a local area in the district of Soran.
Under each committee in each district were 10 to 15 cells. Each cell comprised approximately 5 people. Before the uprising in 1991, VAG said, the members of the cells fought each other to gain power. After the uprising, his committee talked to them and told them that, as all of the other parties were working politically, they had to work politically too. Before the uprising, there were no Islamic parties but, after the uprising, neighbouring countries tried to form Islamic parties.
VAG's joining the PUK
In cross-examination, VAG confirmed that Jalal Al Talibani had asked him to join the PUK. This had come about, he said, because he had worked for the KDP and Jalal Al Talibani had worked for its political bureau then. He refuted any suggestion that it was strange for a relatively lowly officer to be recruited by the party's founder and effective head. The request had not been made to him alone but in a letter written to all of Jalal Al Talibani's former cadres in the political wing of the KDP. The letter had come at a time when Iraq started to transfer people to the southern part of Iraq and there was a need to organise something. His relationship with Jalal Al Talibani was as an old veteran and not because of any close relationship with him. Had he been a senior officer as Mr Brereton suggested, he would not have been working in Soran.
VAG's work in Abil province
He became a political leader in Arbil province organising approximately 120 party members. In a declaration taken at Woomera on 28 September, 2001, had said that he was "in charge" of the area (G documents, page 81). VAG said that he had not said "in charge" but "responsible". The leader is in charge and not he. VAG said that he had been responsible for an area but he was not a leader. He had experienced great difficulty with the interpreter who did not speak his dialect, Kurdish Sorani, and had to communicate with him in Arabic which he, VAG, spoke very poorly. Despite signing a declaration that the document had been read to him (G documents, page 83), it had not been read to him. He had written an organisational chart (Exhibit C) partly in Arabic and party in Kurdish because he found that interpreters were versed in Arabic. He was not really comfortable in Arabic, he said.
VAG said that he was in charge of an underground organisation in Arbil Province. The letters from Jalal Al Talibani to which reference had been made in the statement made in 2001 referred to government houses that were to be refurbished and given to others.
In 1986, VAG said, the Iraqi authorities became aware of VAG's activities in the PUK and a warrant was issued for his arrest. He escaped to the Kurdish militia under the PUK in Yakh Samar, Sulaymaniya. In 1988, Saddam Hussein attacked the Kurdish people and, in his area, 18 PUK members were arrested and never heard of again.
VAG said that, when the Kurds revolted against the Iraqi regime in 1991, he took part in that revolt as a political worker. His job was to ensure that public buildings and public documents were preserved. Propaganda circulated by the PUK was to the effect that the Kurds were not the enemy of Arabic people but that the Iraqi regime was the enemy of both the Kurds and the Arabic people. VAG said that his own view was that Iraqis captured by the Kurds should be confined but not killed.
VAG's work in Soran province from 1991 to 1994
Between 1991 and 1995, Kurdish rebels controlled Sulaymaniya and Arbil. At this time, VAG said, he became the political leader responsible for Soran Province under the PUK. The population of Soran Province was approximately 25,000. VAG said that he organised political events and occasionally had contact with Jalal Al Talibani. During this period, VAG said, the PUK encountered what he described as "many problems from opposition groups" (statement, paragraph 6).
In 1991, VAG's town had a population of approximately 5,000 and all of the political parties were vying for the townspeople's support. Those parties included the PUK, which had the majority support, the KDP, IMK, Socialists and Conservatives. Hassan Koestani was the leader of the PUK in the town. At this time, VAG was elected as a Party Organiser, which is equivalent to a Party Secretary, in the town. He headed a committee on nine people and said that their activities were political and not military. Together with approximately ten other committees, VAG's committee reported to the District Commission No. 6 Soran. In giving oral evidence, VAG said that his committee was responsible for organising people such as worker, women and engineers for the PUK. He "organised" them to believe in PUK programmes and that the PUK stood for Kurdish rights. The work was done in the committee and it did not direct other workers. It reported to the superior person in the District and could not expel or accept any person for membership of the PUK. That could only be done at the District level. In cross-examination, VAG agreed that he was a fairly junior officer. He was not very important.
In his statement, VAG said that he persuaded the man in charge of the Hezbollah Revolutionary Party ("Hezbollah") base in the town, Sheikh Raghib Abdul Al Sammad, and his men to join the PUK. That meant that approximately 70 militamen moved from the Hezbollah to the PUK together with their weapons and other equipment. As a result of his persuasive activities, VAG said, the leader of the Hezbollah, Adham Barzani, threatened him. Then, in 1993, the Hezbollah tried to capture Sheikh Raghib but PUK military forces surrounded the Hezbollah fighters who were forced to retreat.
In cross-examination, VAG explained that Hezbollah had been formed after 1991 and received all of its orders as well as its guns from Iran. Most of the members of Hezbollah in the area were friends with the PUK but the Hezbollah had problems with some of the military people in charge. The PUK was trying to get more votes. VAG said that he had known Sheikh Raghib Abdul Al Sammad at an earlier time and asked him to go back to the PUK because with Hezbollah he served Iran and not Islam.
Also in 1993, VAG said in his statement presented at the hearing, members of the PUK fought members of the Islamic Revolutionary Party ("IRP") some 20 kilometres from the town. The PUK captured approximately 150 prisoners in the action and took them to a large building next to another in which VAG had his office. VAG said that Chatto Harazi, who was the equivalent of the PUK's branch secretary, telephoned him spoke to him by wireless and told him that a group of prisoners would be sent to him. VAG said that Chatto Harazi called him because his office of the PUK was the closest office to the action. Chatto Harazi told him that there would be a list of the prisoners' names and that there would be either a tick or a cross next to each name. VAG said that he was told to release those who had a tick next to their names and to keep those with crosses until they were transferred to Shaqlawa. He said that he believed that Chatto Harazi decided who would be released but he thought that those marked with crosses were higher ranking members and officers of the IRP than others.
VAG said that the prisoners arrived with seven guards and two PUK administrative officers, Nahro Sayed Sofi and Mamosta Said. He said that he had been asked to arrange for the transportation of the injured prisoners to hospital and to let their relatives know where they were. This, VAG said, he did. He did not know them as, on the whole, the prisoners came from places over 200 kilometres from the town. Francois Hariri, whom VAG described as the "councillor to Massoud Barzani, leader of the KDP" (statement, paragraph 13), asked for a copy of the list of names. VAG said that he gave Francois Hariri a list as there was an openness between opposing parties. Openness also safeguarded the prisoners, he added, because the PUK could be criticised if they were mistreated. About 80 prisoners were released on the day after they were taken to the town. With regard to those prisoners who had crosses against their name, VAG said that they were kept for two days in five rooms on the upper floor of the building. Guards were posted to guard them. He believed that they were treated well.
At approximately 8am on the second day after their arrival, Kamal Ajam, a PUK administrator arrived to collect the prisoners. VAG said that, as far as he was aware, the prisoners were to be taken to the Shaqlawa PUK headquarters. Later, he asked after the prisoners at the office of the District Commission No. 6 Soran and was told that all had been released. Several months later, however, VAG was told by Hossein Hamademin that two of the prisoners had been killed. He was not told how they had been killed or the reason for it. When told that information, VAG said that he feared that the relatives of those two men would blame him for their deaths as they had been kept in his buildings.
Kamal Ajem, who had played a role in caring for the prisoners, was murdered in 1995. VAG said that their names had been included in the death list of the IRP. He said in his statement that it was unfair that his name had been included as he had provided the prisoners with food and water while they were in his buildings.
In the statement that he made on 28 September, 2001, VAG said:
"6. In 1993 Ibrahim Hamko, Adham Barzani's assistant, came with a large number of fighters and captured Sheikh Raghib. They came to my office and tried to take me but my men surrounded them and requested they release Sheikh Raghib and retreat their men peacefully so we would not engage in fighting. They released him and retreated as I had more fighters surrounding them. In 1993 the PUK were engaged in conflicts with an Islamic Revolutionary Movement Party (Bzourtenway Islami) in the Beat Watah area, 20Km from Rawandoz. The PUK closed all the bases and captured 150 prisoners and took them to my base for two days. I received an order to release the wounded and injured people on bail basis. They requested me to send all the higher rankings officers of the Party to Shaqlawa to the PUK Headquarters. We sent the prisoners with a person called Kamal Ajam as head of the escort. In Shaqlawa gave an order to hang two of the prisoners who were engaged in terrorist activities and killed many PUK members. The Islamic Revolutionary Party ordered a death penalty against Kamal and myself because we sent them. Kamal was killed and they came after me and until today I am still wanted by them.
7.I was in direct contact with some members of the Islamic Revolutionary Movement Party and was requesting them to join the PUK, two of their bases joined the PUK peacefully and left their bases full of armor, weapons and one tank. People tried to go to the bases and get the weapons. I ordered my men to go and stand [guard] to protect and keep the bases in order. We became engaged in a battle with the people who were also PUK and we killed one person. When he was killed his family members and relatives tried to avenge his death and became involved in a family feud and wanted to kill me because I was the political leader of the PUK of the area. Life became very difficult for me and I had much pressure and threats. Many people wanted to assassinate me and I requested my leader Al Talibani to exempt me from my position and withdraw me from the area so I could live in peace. He refused.
8.In 1995 I became the Head of the Authorities responsible for Soran Province under the Northern Iraq Government and PUK. In 1995, the Hezbollah Revolutionary Party helped the PDK and started bombarding Rawandoz particularly the area around my home and my base. Their direct order was to bombard my house and my base in particular. I withdrew my family and children from the town. They burnt my house and we managed to escape. Ibrahim Hamko made many attempts to assassinate me." (G documents, page 82)
In cross-examination, VAG said that he had not described the fighters as his fighters. He had described them as peshmerga. There were about 400 PUK fighters in the area. When Ibrahim Hamko's fighters surrounded his office, the peshmerga saw that and surrounded them in turn. There was no fighting as the Ibrahim Hamko's fighters just left when they were surrounded. Peshmerga troops guarded the committee in their offices but did not belong to the committee. He confirmed that his observation in his later statement that he had no fighters under his command and that he had only had armed guards was correct (statement, paragraph 22). VAG said that he had three armed guards.
VAG said that the political branch arranged for the crosses and ticks to be placed against the names of prisoners on the list. He said that the PUK had suffered casualties too and the political branch took the captured fighters to protect them. The list had the names of those captured together with their rank and date of birth. When asked by Mr Brereton whether he would have expected those marked with a cross to be executed when that had happened to members of the PUK in other areas, VAG said that he had no power to do anything. He was just getting his orders from the leadership. The same thing happened with the officers at Woomera. He was told that he could release those with ticks against their names. He did not ask why those people were to be released. VAG said that he was not involved in capturing or transferring them and it was not his job to ask questions. He was not in a position to dispute anything. Those who were being transferred went to his place and he gave them hospitality for two days.
In cross-examination, VAG said that members of the Hezbollah had tried to capture and/or kill him on many occasions as had members of the PDK. He thought that his political activities, his taking members from the Hezbollah and his always talking against the KDP, which always went with Iraqi interests, were the reasons behind the attempts to kill or capture him. In Kurdistan, the parties are not honest rivals. If a person says something against another, he thinks that person is his enemy. VAG said that he was against general fighting.
With regard to paragraph 7 of his statement made in September, 2001, VAG said that the PUK had decided to capture all the bases of the Islamic movement. If there had been fighting, people would have been killed and it was in the interests of those holding the bases to lay down their arms and go home without saying anything to anyone. All laid down their arms and none was captured. One of the headquarters had too many weapons and VAG was ordered to go there. There were cars and tankers at that headquarters. Some military people in his area tried to help themselves to the equipment but the guards did not allow it. One person was killed. After that, the PUK had a committee look at what had happened and why.
VAG's suspension from the PUK in 1994
VAG said that, from 1993, he became critical of the PUK because of the infighting with other Kurdish parties and within the PUK itself. At the end of 1994, VAG said that he was suspended because of his criticism of infighting in the PUK. Later, he applied to join the party once more but said that he did not want to continue with his previous political role.
VAG as Head of Authorities for Soran in the Northern Iraq Government from 1995
In 1995, VAG said that he became Head of Authorities for Soran in the Northern Iraq Government. This was a PUK appointment but VAG described it as being an office that was part of the civil administration and similar to that of a mayor. He also described it as a position requiring him to provide community leadership and that required him to ensure that there was a supply of food, safety and housing. On a couple of occasions, he distributed food from the Red Crescent or Red Cross and said that he did so without favouring any particular group. During that time, Hezbollah and the KDP were bombarding the town. VAG said that the title of "mayor" was not as "grand a position as the title suggests" as there was only one PUK town in the region that had a mayor of its own. VAG did not live in the town but lived in Arbil and travelled to the town twice each month.
VAG's contact with Jalal Al Talibani
VAG said that, although he had some responsibilities in the PUK, he did not have a prominent role in the party. Occasionally, he had contact with Jalal Al Talibani but he was not close to him. His contact came through their having both been involved in the struggle for Kurdish freedom for over 30 years and not because he had a particularly senior position.
Head of the Martyr's Department
VAG said that he met with Jalal Al Talibani and sought a different role. He then became the head of the Martyr's Department and worked there until January, 2001. The role of the Martyr's Department is to help Kurdish families who have suffered the loss of family members in the fighting. It is not affiliated with any party, VAG said. VAG said that his role in the Martyr's Department was slightly reduced in 1999 when the regional government appointments were reduced.
VAG said that he was given a pension following his retirement as head of the Martyrs' Department. He was given a pension and this was confirmed in a letter dated 5 Sarmawaz 2700, or 26 November, 2000, signed by the Prime Minister, Kosrat Ali Rassul (Exhibits C and D). His retirement meant that he no longer enjoyed the protection of the PUK, VAG said.
Subsequent events
VAG understands that he is on a death list kept by the IRP as a mullah who defected from that party and had revealed its contents to the PUK. As I have recorded above, he thinks that if he has been included on that list because prisoners had been held in his buildings, he thinks it unfair. VAG also understands that he is a target for assassination because he persuaded members of the IRP to joining the PUK. At an earlier time, he had asked that he be allowed to retire because he feared for his safety. His request had been refused by Jalal Al Talibani. When he was finally allowed to retire, VAG said that he lost all of his protection from the PUK and that he fled in fear because he believed that his political opponents would one day catch him and kill him.
Death and destructive activities
In cross-examination, VAG agreed with Mr Brereton that the situation in Iraq has been very difficult for Kurdish people over the last 20 to 25 years. On many occasions, the Kurdish people have been attacked by the Iraqi Army and the attacks have been very vicious and nasty. Infighting among the Kurdish people was also a problem as it was against their interests. He had heard that members of the PUK had been murdered by members of rival parties but had never seen that for himself. VAG supposed that it had happened in Kurdistan but it had not happened in Soran.
When Mr Brereton suggested to him that the PUK engaged in similar activities regarding its rivals, VAG replied that he did not say that such things had not happened but he had heard about them for the first time from the case officer.
LEGISLATIVE FRAMEWORK
Migration Act and Regulations
Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2) and (3)). Section 36 of the Act provides that there is a class of visas to be known as protection visas. Within the class of protection visas are two sub-classes: Protection Visa (Subclass 866) and Temporary Protection Visa (Subclass 785). The Regulations may prescribe criteria for a visa or for a visa of a specified class including Protection Visas (s. 31(3)). The Minister must grant a protection visa if he is satisfied that the criteria prescribed by the Act and the Migration Regulations have been fulfilled but must refuse it if he is not so satisfied (s. 65).
Section 36(2)(a) provides that the Minister must be satisfied that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention. Alternatively, the person must be the spouse or a dependant of such a person and that the person holds a protection visa (s. 36(2)(b)). This provision mirrors the primary criteria set out in Item 785.211 in relation to a Temporary Protection Visa and Item 866.221 in relation to a Permanent Protection Visa in Schedule 2 of the Regulations.
The time at which the applicant must meet these criteria is the time at which the determination of his status is made (Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302 per Mason J, Deane and Dawson JJ applied in Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 387 per Mason CJ, at 399 per Dawson J and at 405 per Toohey J). As the Administrative Appeals Tribunal Act 1975 (as modified by Division 9 of the Act) applies to the decision, it follows that the time at which the applicant must meet the criteria is the time at which I make my decision.
The Convention
The Refugees Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a "refugee" is defined in Article 1A(2) of Chapter I as a person who:
"… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. Article 1F is relevant in the circumstances of this case and 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 crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."
General principles regarding the interpretation of Article 1F(a)
As French J said in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 in the context of Art 1F(b), the "… provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State." (page 565) His Honour's observations are equally applicable to Article 1F(a) which is in issue in this case.
Charges or convictions outside the receiving State are not required in order to find that a person has committed a serious non-political crime for the Article 1F(b) refers to the person's having "committed" and not to his or her having been "convicted". There is a distinction between having committed an offence and having been convicted of an offence and that distinction is drawn in the Convention itself. It appears from a comparison of the provisions of Article 1F(b) with those of Article 33(2) where a person who has "been convicted by a final judgment of a particularly serious crime" may, in certain circumstances, be returned to the State from which he or she seeks refuge.
What is meant by the expression "serious reasons for considering" has been considered in a number of cases. In Dhayakpa case, French J said that:
"The use of the words 'serious reason 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. The precise construction of that phrase does not fall for consideration in the present case …" (page 563)
Branson J observed in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 (Whitlam, Branson and Sackville JJ) that "Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker." (page 186)
The matter was considered also by Mathews J as President of the Tribunal in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150. Her Honour referred first to the Canadian case of Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173 in which the Canadian Federal Court of Appeal held that the words "serious reasons for considering" establish a lower standard of proof than the balance of probabilities. She continued:
"82. In any event, I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be 'serious reasons for considering' a matter raises similar issues to the test of 'reasonable grounds to believe'. The requirement of seriousness goes well beyond that of reasonableness in my view. Nor do I agree that the 'serious reasons for considering' test 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. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v. Briginshaw (1938) 60 CLR 336, Helton v. Allen (1938-1939) 63 CLR 691)."
Finally, I will refer to the judgement of Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321 in which he considered the authorities to which I have referred. He concluded:
"54 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.
55 To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree.
56 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'.
57…
58In determining the meaning to be ascribed to the word 'serious' in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word 'serious' in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a 'prima facie' case, the test formerly favoured for the grant of an interlocutory injunction: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407; [1975] 1 All ER 504 at 510; [1975] 2 WLR 316 at 323.
59Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the states and territories of Australia. …
60It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least 'serious reasons for considering' that he had committed the offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. …
61…
62…
63…
64 'Suspicion', as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948; 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove".' The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115-116; 93 ALR 483 at 490-1." (pages 333-335)
Identification of the international instruments defining relevant crimes
Consideration also needs to be given to what is "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" in the context of Article 1F(a). At the time the Refugee Convention was promulgated in Geneva in 1951, the most comprehensive definitions of such crimes were found in the 1945 London Agreement and in the Charter of the International Military Tribunal ("Nuremberg Charter"). These, together with the main instruments in force at the time, were listed in Annexes V and VI of the UNHCR Handbook ("the Handbook"). Article 1F(a) is not, however, limited in its terms to those international instruments promulgated either in 1951 or in 1967 when the Protocol was agreed upon. Since then, instruments such as the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and the Statute of the International Criminal Court 1998 ("the Rome Statute") have come into existence. Having obtained 60 signatories, the Rome Statute entered into force in June, 2002. In his textbook, The Refugee in International Law (2nd edition, 1996), Professor Goodwin-Gill stated:
"Just as the International Military Tribunal succeeded to an existing body of law, so Article 1F(a) today must be interpreted in the light of more recent developments and the 'relevant international instruments' referred to have been considerably supplemented since 1951. The principles of the IMT Charter have been strengthened by the 1949 Geneva Conventions and the 1977 Additional Protocols. 'War crimes' are thus considered to include the 'grave breaches' of the Geneva Conventions, summarised in the 1993 Statute of the International Tribunal on Yugoslavia…" (page 98)
The crimes
In SRNN and Minister for Immigration and Multicultural Affairs [2000] AATA 983, Deputy President Chappell comprehensively surveyed international instruments coming within the purview of Article 1F. The following summary of relevant international conventions relies in large part upon his survey. I note that instruments such as the Rome Statute had not come into force at the time of the events with which I am concerned in this case. There was no submission made that I should have regard only to those that were in force at the time and so I have not added that limitation to my consideration. Each of the instruments was in existence if not in general force.
Article 6 of the Nuremberg Charter states:
"The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a)Crimes against peace: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b)War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during 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 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.' " (paragraph 55)
Article 6(c) was considered by Toohey J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ):
"The paragraph contains two important limitations. First, 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 the crime, whether committed by an individual or by a state authority: see, for instance, In re Altstötter (1947) 14 Annual Digest, at p. 284. The second limitation is that crimes against humanity must have been committed 'in execution of or in connexion with any crime within the jurisdiction of the Tribunal', that is, war crimes (Art. 6(b)) or crimes against peace or waging aggressive war: Art. 6(a). The second limitation applies both to acts of persecution and to acts of extermination." (page 669)
In his judgement, Deane J attributed a broader meaning to the phrase "crime against humanity" as it is commonly used. He described it as a "… convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connexion with actual hostilities." (page 596) His Honour implicitly drew a distinction between the general usage of the phrase and the question whether a person had committed a crime against humanity under international law. The War Crimes Act 1945, with which he was concerned, was not concerned with offences against international law and he did not explore further what was encompassed in a crime against humanity under international law.
In W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948, Mathews J said of the phrase "before or during the war" used in Article 6(c) that it "… was designed to restrict the jurisdiction of the Nuremberg Tribunal to crimes committed by the major war criminals during the Second World War. It is not suggested that the limitation has any continuing application now, fifty years later." (paragraph 48)
At the relevant time, s. 7(3.71) of the Canadian Criminal Code was expressed in terms similar to those used in Article 6(c). In considering s. 7(3.71) and in particular its reference to crimes against humanity or war crimes being committed against any civilian population or any identifiable group of persons, the Supreme Court of Canada noted:
"… What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race. (R v Finta (1994) 112 DLR (4th) 513 at 595, per Cory J)
Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War states that:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1)Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment."
Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the Statute of the International Criminal Tribunal for the Former Yugoslavia) refers to crimes that have been:
"committed in armed conflict, whether international or internal in character, and directed against the civilian population."
Most recently, the Rome Convention set out the crimes within the jurisdiction of the International Criminal Court. They include crimes of genocide, crimes against humanity, war crimes and the crime of aggression (Article 5). In so far as crimes against humanity are concerned, Article 7 provides, in part, that:
"1. For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the 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.
2.For the purpose of paragraph 1:
(a)'Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such attack.
…
(e)'Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in 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.
…
(i)'Enforced disappearance of person' 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 the 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.
3.…"
War crimes are the subject of Article 8 of the Rome Statute. In so far as that Article applies to this case, it provides that the International Criminal Court:
"… shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
2.For the purposes of this Statute, 'war crimes' means:
…
(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)...
(iii)Taking of hostages;
(iv)…"
(d)Paragraph 2(c) applies to the 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)…
(f)…"
Those responsible for crimes
Article 25 of the Rome Statute expands upon those who are responsible for the commission of a crime and liable for punishment:
"3. 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)…
(b)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 for its commission;
(c)In any 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."
Article 6 of the Nuremberg Charter also deals with the liability of accessories and reads in part:
"Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."
In W97/164 [1998] AATA 618, Mathews J reviewed a number of authorities considering the liability of accessories:
"67. The applicant was clearly not a leader, organiser or instigator of the crimes committed at [deleted pursuant to s 35] base in 1988. The substantial question is whether he was an accomplice. In relation to this matter, it is not sufficient to look to the Australian law on accessorial liability. An international convention cannot be read in the light of one only of the world's legal systems (Ramirez at p 179).
68. There are, so far as I am aware, no Australian cases dealing with the question of accessorial liability under Article 1F. However the matter has been the subject of discussion in a number of Canadian cases. The first of these was Ramirez. The court in that case made a number of general observations relating to accessorial liability under Article 1F. MacGuigan JA, delivering the judgment of the court, commented that the passage in Article 6, quoted above, 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' (Ibid at p 178).
69. MacGuigan JA adopted the proposition, which had been propounded in US deportation cases, that active personal involvement in persecutorial acts need to be established (at pp 178-179). Or, as MacGuigan JA put it, 'some personal activity involving persecution' (at pp 179-180) must be shown. He then proceeded, in the following terms, to address the question as to the degree of complicity which might be required in order to become an accomplice:
... A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. ...
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under s. 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere onlooking, such as occurs at public executions, where the on-lookers are simply bystanders with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g. s. 21(2) of the Criminal Code), and I believe is the best interpretation of international law. (at p 180)70. Later, MacGuigan JA added the following cautionary note:
One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism. (at p 182)
71. The appellant in Ramirez had voluntarily enlisted in the Salvadorean Army. The court found that the torture and killing of captives had become part of the military life in El Salvador and that the appellant played an active role in the military forces which committed these atrocities. It went on to find that the appellant's involvement in the interrogation and torture of prisoners was such as to render him an active participant in crimes against humanity. As MacGuigan JA observed:
... He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a "cheering section". In other words, his presence at this number of incidents of persecution, coupled with his sharing in the common purpose of the military forces, clearly constitutes complicity. ... The appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity. (at pp 187-188)
72. In Moreno the appellant had been forcibly recruited into the Salvadorean Army at the age of 16. He was assigned to guard duty, during the course of which he witnessed, but did not participate in, the torture of a prisoner. Later he participated in five armed confrontations with guerilla groups, having previously pledged his willingness to kill guerillas and their supporters. A failure to give this pledge would have resulted in his death. Not long afterwards the appellant deserted the Army and fled El Salvador. He was then 17 years old. Robertson JA, delivering the judgment of the court, made the following observations:
It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in persecutorial acts must be established. In this regard the reasoning in Ramirez is both binding and compelling (at p. 180): "At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it." At p. 182, MacGuigan J.A. concluded: "In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts."
Applying the above reasoning, we must determine whether the appellant's conduct satisfies the criterion of "personal and knowing participation in persecutorial acts". Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between "principal" and "accomplice". In other words, mens rea remains an essential element of the crime. In my opinion, a person forcibly conscripted into the military, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be considered at law to have committed a crime against humanity.
On a superficial level, it could be maintained that the appellant knowingly assisted or otherwise participated in a persecutorial act. What is absent from that analysis is any evidence supporting the existence of a shared common purpose. However, the evidence does establish that the appellant disassociated himself from the actual perpetrators by deserting the army within a relatively short period after his forcible enlistment. In the circumstances, the appellant's presence at the scene of a crime is tantamount to an act of passive acquiescence. Accordingly, there is no legal basis on which to rest the application of the exclusion clause.
In reaching this conclusion, I am influenced by one commentator's view that the closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach: see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Dordrecht: Martinus Nijhoff Publishers, 1992), at p. 343. Of course, the further one is distanced from the decision-makers, assuming that one is not a "principal", then it is less likely that the required degree of complicity necessary to attract criminal sanctions, or the application of the exclusion clause, will be met. I take it for granted that 16-year-old foot soldiers will not be accorded the same legal treatment as those who command the war. (at pp 442-443)73. Finally, in Finta, the Canadian Supreme Court discussed the concept of crimes against humanity and war crimes. Cory J, with whose judgment the majority of the court concurred, observed that the context in which these offences are committed must be taken into account in assigning the appropriate mens rea or mental element to the offence. He proceeded:
The requisite mental element of a war crime or a crime against humanity should be based on a subjective test. I reach this conclusion for a number of reasons. First, the crime itself must be considered in context. Such crimes are usually committed during a time of war. Wars are concerned with death and destruction. Sweet reason is often among the first victims. ... (at p 596)
74. Returning to the present case, Mr Macliver for the respondent urges that the applicant was not an innocent by-stander. Within the terms of MacGuigan JA's judgement in Ramirez he suggests that he was "an integral, albeit reluctant, part of the Burmese naval enterprise" which committed systematic murder at the [deleted pursuant to s 35] base in [deleted pursuant to s 35] 1988. Mr Lindsay, on the other hand, submits that no crime of any kind was committed by the applicant. Each of the seven servicemen was allotted an individual target. The applicant's targets escaped unscathed. He had no control over other members of the group. Accordingly, Mr Lindsay urges, there is no evidence pointing to the applicant as an accomplice to a killing by a fellow member of the firing squad and no question of complicity or common purpose.
75. It is likely that if these events had occurred in Australia, the applicant would have been legally liable for murder. His presence as an apparently active participant in the shooting of fleeing activists would probably be found to constitute sufficient encouragement to those who in fact shot their targets as to render him an accomplice in their acts of murder.
76. However as already observed, it is erroneous to determine liability under the Convention by reference to local municipal law. Quite apart from the inappropriateness of imposing municipal law standards upon international law principles, it must be recognised that the circumstances in which the applicant found himself in Burma in [deleted pursuant to s 35] 1988 could never be replicated in Australia in the late 20th century - or so it is profoundly to be hoped.
77. It was suggested at the hearing that there are two ways of approaching the applicant's culpability in relation to these crimes. The first (that which was advocated by the respondent) is to regard each member of the seven person group as responsible for killings perpetrated by the others. The second (that which was advocated by the applicant) is to treat each of them as responsible only for killings personally perpetrated. The first approach would be an exceedingly harsh one, given the circumstances in Burma in 1988. On the other hand, the second approach is excessively narrow. It would, for instance, exonerate participants who shared the common purpose of killing fleeing activists, but who failed, through poor marksmanship, to shoot their own targets.
78. The correct approach, in my view, must be an intermediate one, namely 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."
In the later case of W98/45 and Minister for Immigration and Multicultural Affairs, Justice Mathews considered the case of a man whom she found to have been:
"… 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." (paragraph 45)
The group in which he had been involved was the Front Islamic de Salut ("FIS") and the group had been engaged in the murder of police officers. Mathews J concluded:
"… the systematic killing of police officers by FIS constituted, in my view, crimes against humanity under Article 1F(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 by any persons 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." (paragraphs 49-50)
Regard should also be had to the case of SRL and Minister for Immigration and Multicultural Affairs [2000] AATA 128 (Deputy President Chappell) and SRNN and Minister for Immigration and Multicultural Affairs in which the principles set out by Mathews J were applied. Finally, in AXOIB and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 365, Deputy President Wright found that, taking into account an applicant's status and role in the United National Party ("UNP") and the Village Protection Unit together with his awareness of the terror campaign being waged by both Government and anti-Government forces, he knew full well that terror and torture awaited those whom he reported. Deputy President Wright considered both Article 6 of the Refugees Convention and Article 25 of the Rome Statute and concluded that "… there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera [the Minister for Fisheries exercising considerable influence over the UNP] or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. …" (paragraph 33).
CONSIDERATION
Although I have not attempted to summarise the written material to which the delegate referred in her reasons and found in Exhibit 3, I am satisfied that there have been countless examples of human rights abuses including torture, executions and deliberate and arbitrary killings over many years including the 1990s with which I am particularly concerned in this case. Tens of thousands of people have disappeared. Others have been detained. Some of the motives for the killings are politically based. Political parties such as the KDP and the PUK are based on the non-democratic nationalist, socialist and communist parties in the Middle East. Their leadership organs of a central committee and a political bureau are consistent with those models. The parties are totalitarian in their nature in that they do not tolerate deviation from their views or ideology. They incorporate and make use of the traditional values and norms of a hierarchical and vertical tribal and social system.
As I have already found, I am also satisfied that VAG has been politically active for many years, first as a member of the KDP and then as a member of the PUK. As to the precise nature of his activities, there is some doubt. At the hearing VAG denied being anything more than a person engaged in political activities. He was not a person who was engaged in fighting or who had control over those who were.
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.
Mr Brereton's submission focused on the level of VAG's duties and his knowledge of the PUK's activities generally. He referred to VAG's statement in September, 2001. When regard is had to that statement on its own, I agree with him that it points to VAG's being involved at a high level in the PUK and having considerable responsibility. If regard were had only to his statement of 29 September, 2001, it could be said that it provides evidence that he was in charge of the area of his town in 1986 and that he was in charge of all of the secret activities that took place in that area at that time. It could also be said that it provides evidence that, in 1993, he had men of whom he was in charge and that he ordered them to surround Ibrahim Hamko's men. Further, it could be said that it provides evidence that he was responsible for requesting Ibrahim Hamko's men to release Sheik Raghib Abdul Al Sammad. Similarly, he was responsible for sending his men to protect and keep in order bases previously occupied by members of the Islamic Revolutionary Party and he and his men were engaged in subsequent fighting with other members of the PUK.
Mr Brereton submitted that it was a more accurate statement of events and of VAG's involvement in them than he gave in his oral evidence.
The statement, however, is not the only evidence that I have in this case. I have VAG's later statement and his evidence given orally at the hearing. They contradict his earlier statements to some extent and certainly downplay his role and influence in the PUK. Although in another context the later statements and evidence would strongly suggest that they are of recent invention, I do not consider that they do so in the context of this case. VAG is a Kurdish Sorani speaker and his evidence that he is a poor speaker of Arabic was not challenged at the hearing. The statement he made on 28 September, 2001 was made with the assistant of an Arabic interpreter. Although he wrote some of the chart in Arabic, he explained that he did so because it was more likely to be interpreted by an Arabic interpreter than a Kurdish Sorani interpreter and so his use of the Arabic language does not diminish his claim to be poorly versed in that language. There is no tape of the interview against which the quality of the translation can be checked. In view of these matters, there is a very real question as to the accuracy of the translation that has been made of what VAG said in 2001 and so I do not prefer it to his later evidence.
There is, however, evidence that the PUK has been engaged in crimes against humanity or war crimes as the human rights abuses including torture, executions and deliberate and arbitrary killings to which I have already referred are war crimes or crimes against humanity. There is no material suggesting that VAG has committed any of these war crimes or crimes against humanity himself. His evidence is that he was engaged only in what he described as "political" activities such as persuading people that the PUK supported their interests and was the party they should support and such as finding food and accommodation for them. No evidence apart from that given by VAG addresses his activities.
Evidence of two examples of such killings was given by VAG himself. Those killings were of two prisoners who had previously been under his care and they were carried out by members of the PUK. VAG was part of the PUK but that does not automatically lead to the conclusion that he was responsible for the actions of the PUK. He stated that he was caring for the prisoners in the sense that he provided food and shelter for them. He released those he was told to release and sent the remainder to Shaqlawa PUK headquarters as he was told to do so. In his evidence at the hearing, he claimed that he did not know what would happen to the prisoners he sent to the headquarters but learned only later that two had been killed. That evidence is somewhat at odds with his statement given in September, 2001 but I have already expressed reservations about the statement.
It may also be thought to be somewhat at odds with the actions of a person who appeared to be known to the founder and General Secretary of the PUK, Jalal Al Talibani, and a person who was in charge of various activities even if those activities were described as "political" activities. VAG admitted to holding positions requiring him to be responsible for secret activities in Arbil province, to holding positions such as head of a committee and Party Organiser in Soran province and to being mayor of the town. The titles of his positions suggest influence and authority but VAG's chart of the organisation of the PUK and his place in that organisation suggest otherwise. They suggest that he was at a somewhat lower level in the chain of command and was not formulating plans of action or policy but subject to direction.
VAG's knowledge of Jamal Al Talibani suggests that he was a person of influence but his evidence that theirs was an association from the past is also consistent with his evidence that he was more lowly ranked in the PUK. As the years pass, many people retain old associations regardless of the different courses in which life may take them. The association does not of itself give authority or influence. VAG also knew Sheikh Raghib Abdul Al Sammad and was able to persuade him but again his knowledge of Sheikh Raghib Abdul Al Sammad came from the past. He was influential in persuading him to join the PUK but, on its own, that does not mean that he was influential in the PUK.
The view that he was a lower level political person in the PUK is consistent with his later evidence in relation to the prisoners in that he said that he simply sent those whose names were marked with a cross to the Shaqlawa PUK headquarters and that he had been given that list. It is also consistent with his earlier statement in which he did not claim to have chosen those on the list. He stated that he had been ordered to release certain prisoners and to send all the higher ranking officers to headquarters.
In his oral evidence, VAG said that he did not know what would happen to the prisoners whom he sent to Shaqlawa PUK headquarters. That is consistent with his earlier statement where he says that an order was given to hang two of the prisoners but he does not claim to have known about it prior to his sending them. Although he may not have known precisely what would happen to the prisoners, on the basis of his evidence at the hearing, I am satisfied that he had an awareness of what could happen to them. He was acting in accordance with directions to send them on but did not instigate those directions.
In the absence of any evidence that the killing of the two prisoners was carried out according to a judicial order properly obtained, it does amount to a war crime or a crime against humanity. Do VAG's actions in sending them on mean that was part of the common purpose in carrying out those activities. He participated in the ultimate result by sending the prisoners on to the headquarters. He was part of the PUK, some of whose members killed two of those prisoners, but he was not present at the time and disclaimed knowledge of what would happen. In that sense, VAG was at arm's length from the killings that ultimately occurred and there is no evidence to suggest that he was able to prevent their occurring. Unlike an informer who may be able to choose whether or not he passes on information, this was not a case in which VAG could choose not to send the prisoners as he had been directed to do without consequence to himself. In that case and given his distance from the killings themselves, I do not consider that he can be said to have been part of any common purpose in carrying out the killings. As they are the only specific crimes that are crimes against humanity or war crimes, I do not consider that VAG was part of a common purpose and so was not an accessory to them.
With regard to the wider war crimes and crimes against humanity committed by the PUK, I do not consider that the evidence supports a finding that there are serious reasons for considering that VAG was in a position where he could influence the course of events. Certainly, he was a long standing member of the PUK and a member who drew a number of people into the PUK but there is no evidence that he participated in acts of atrocity, was present at any as a bystander or instigated or directed any. There is no evidence that he initiated events that led to any such acts.
Having regard to all of the evidence that is available to me, I am not satisfied that there are serious reasons for considering that VAG has committed either war crimes or crimes against humanity within the meaning of an international convention. Therefore, for the reasons I have given I:
1.set aside the decision of the respondent dated 11 April, 2002; and
2.substitute a decision that the applicant not be refused a protection visa on the basis of Article 1F of the Refugees Convention.
I certify that the seventy-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)Signed: ...............................................................
P. Paczkowski AssociateDate/s of Hearing 8 November, 2002 and 2 December, 2002
Date of Decision 23 December, 2002
Counsel for the Applicant Mr K. Hanna
Solicitor for the Applicant Australian Migration Program & InvestmentsSolicitor for the Respondent Mr M. Brereton,
Australian Government Solicitor
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