VZL and Minister for Immigration and Multicultural Affairs

[2000] AATA 191

DECISION AND REASONS FOR DECISION [2000] AATA 191

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/456
GENERAL  ADMINISTRATIVE  DIVISION)                 
  VZL    

Applicant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             10 March 2000
Place:            Melbourne
Decision:      The decision under review is affirmed.   

(sgd) G.L. McDonald
  Deputy President
IMMIGRATION — protection visa — applicant an officer in Sri Lankan Navy — admitted to killing of unarmed civilians in a refugee camp — whether excluded from protection pursuant to Article 1F(a), (b) or (c) of the Convention relating to the Status of Refugees — whether a serious non-political crime — whether a crime against humanity
Administrative Appeals Tribunal Act 1975 ss.35(2), 37
Migration Act 1958 ss.5, 36(1), (2)
Refugees Convention   Article 1(F)
Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 654
[. . .] and Minister for Immigration and Multicultural Affairs [1999] AATA 116
Polyukhovich v The Commonwealth et Anor (1991) 172 CLR 501
W98/45 and Minister for Immigration and Multicultural Affairs (AAT 13450, 17 August 1998)

REASONS FOR DECISION

10 March 2000  Deputy President G.L. McDonald

1. A review is sought of a decision of a delegate of the Minister, made on 31 March 1999, refusing the applicant the grant of a protection visa. At the hearing Mr J. Gibson, of counsel, appeared for the applicant. Ms J. Carrington, a departmental advocate, appeared for the respondent. A report from Professor T. McCormack was filed by the respondent and Professor McCormack gave oral evidence. In addition, the Tribunal had before it the documents filed for the purposes of s.37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the parties each filed a statement of issues, facts and contentions.

2. Section 36(1) of the Migration Act 1958 ("the Act") establishes "protection visas" as a class of visa. Section 36(2) is as follows:

   36.         (2)     A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

Section 5 of the Act defines "Refugees Convention" as meaning "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and defines the "Refugees Protocol" as "the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 1(F) of the Convention is as follows:

F.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.

1. In the instant case, the respondent contends that the applicant is excluded from consideration for refugee status as the result of him committing a war crime, a crime against humanity, a serious non-political crime or, alternatively, is guilty of an act contrary to the purposes and principles of the United Nations.

2. The facts are not disputed:   they arise from information provided by the applicant in his application for a protection visa (T9) and from a transcript of  interview, conducted on 19 March 1999, between Mr Bourton, an officer of the respondent's Department, and the applicant.   The Tribunal is satisfied that the facts are as follows.   The applicant is a citizen of Sri Lanka.   He is married with a young child.   He joined the Sri Lankan Defence Forces.   After obtaining his commission he was posted to a number of different ships.   In early 1993, he was stationed off Jaffna in the north of Sri Lanka.   There was, at that time, and had been for some time, armed conflict between the Liberation Tigers of Tamil Eelam ("LTTE") and Government forces in the north of Sri Lanka.   Upon arrival in Jaffna, the object was to secure a pier from LTTE control.   Some three or four days after the pier was secured, the LTTE continued to attack the Forces.   Positioned between the Forces securing the pier and the LTTE forces, was an International Committee of the Red Cross ("ICRC") refugee camp containing some 300-400 Tamil refugees.   The ICRC flag was flying above the camp, clearly identifying it as being under the auspices of the ICRC.   The applicant was ordered by his Commanding Officer to kill the civilians in the camp, apparently in order to allow the Government forces more ready access to the LTTE forces.  

3. Under the command of the applicant, 8 men and a Tamil speaking interpreter approached the camp wearing clothes consistent with the usual dress of the LTTE, and tried through the Tamil interpreter, to engage the civilians in the camp.   The civilians in the camp were apparently not deceived by the guise and started shouting at the applicant and his men.   Upon this occurring, the applicant and his men exposed their M16 rifles formed an angle formation and shot at the civilians in the camp.    None of the camp occupants were armed and their ages varied between 5 to 6 years to 40 to 50 years of age.   The balance of the civilians in the refugee camp fled.   In his interview with a departmental officer the applicant stated that 40 refugees were killed; about 18 of who were in his range, including the pregnant woman (p.15 of interview, 19.3.99).   The applicant said that at the time he had been angered as the result of the LTTE killing his best friend, the day before the massacre occurred.   After the massacre, the applicant claims to have been commended by the Commanding Officer and told to forget about the events.

4. The test in relation to the factual matters under Article 1F is that there be "serious reasons for considering" that a person has committed the crime in question.   Whilst the consequences of an affirmative finding may be grave for the applicant, his evidence as to what occurred is uncontradicted and satisfies the test.

5. Since the above events occurred, a new government has been elected in Sri Lanka.   The new government has appointed a panel to investigate, prosecute and punish those who violated human rights during the period of the former Government.   In his application for the protection visa the applicant claimed that, if he was returned to Sri Lanka, he would be punished and put in gaol and would be unable to find employment (T9, p.85).  

6. The applicant does not claim any defence that he was acting under orders or subject to duress at the time the killings occurred.   Given the nature of the events he describes, the Tribunal is satisfied that no issue of this nature arises for consideration.   

7. It is contended on behalf of the applicant that the exclusionary provisions in Article 1(F) of the Convention do not apply to the applicant for the following reasons.
   War Crimes and Crimes against Humanity – Article 1(F)(a)

8. It is claimed by the applicant that the definition in Article 1(F)(a) of the Convention requires a finding that a person has committed a war crime or a crime against humanity "as defined in the international instruments drawn up to make provision in respect of such crimes".   This is a reference to international instruments issued from time to time by the United Nations.   It is claimed on behalf of the applicant that:

   (a)the applicant has not committed a war crime because, while it is conceded that he has killed civilians, the activity occurred during an internal armed conflict not of an international character and therefore could not amount to grave breaches of the 1949 Geneva Conventions and, consequently, is not recognised as being a "war crime".   It is contended that there are no international instruments bringing crimes committed in conflict of a non-international character within the definition of "war crimes".   Although, it is conceded that the killing in the circumstances amounts to a "prohibited act" as contained in Common Article 3 of the 1949 Geneva Conventions;

   (b)it is further submitted that the applicant has not committed a crime against humanity because essential elements necessary for that finding to be made are absent in that:

   (i)the act committed by the applicant is an isolated or random act, and that there is no evidence to support it as forming part of a widespread and systematic course of conduct directed against the civilian Sri Lankan population or any part of it;

   (ii)there is no evidence of the mens rea necessary to support a finding that a crime against humanity has occurred:

Serious Non-Political Crime – Article 1(F)(b)

1. The applicant does not assert that there was any political aspect arising from the killings in which he was involved, but it is claimed that Article 1(F)(b) refers to civilians who have committed crimes and it was never contemplated that the exclusion would be applied to anyone engaged in a military conflict.
   Acts Contrary to Purpose and Principles of the United Nations

2. It is contended that the applicant has not been guilty of acts contrary to the purposes and principles of the United Nations in the conduct undertaken.
   Consideration

3. The exclusionary provisions contained in Article 1(F) are expressed to be in the alternative and, accordingly, a finding against the applicant in relation to any one of the nominated exclusions will be determinative.  

4. In his book The Law of Refugee Status (Butterworths 1991), Professor Hathaway considers that the serious non-political crime exclusion clause was inserted as ". . . a means of bringing refugee law into line with the basic principles of extradition law, by ensuring that important fugitives from justice are not able to avoid the jurisdiction of a State in which they may lawfully face punishment . . ." (p.221).   Because of the narrow purpose sought to be achieved, Professor Hathaway noted the following constraints:

• The allegations of criminality must involve acts committed outside a country of refuge.

• The criminal offence must be justiciable in the country in which it was committed.

• In recognition of the seriousness of refusing to protect a person at risk of persecution the exclusion is limited to those at risk of prosecution or punishment for serious crime.

• Crime must be an ordinary, common law offence prosecuted and punished in a non-discriminatory way.

• The risks associated with exclusion from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment.

1. In the instant case, in the opinion of the Tribunal, not any of the constraints identified by Professor Hathaway operate to stop the exclusion from applying, that is (seriatim):

   ·     the alleged offences occurred in Sri Lanka prior to the applicant's seeking refuge in Australia;

• the applicant has not been tried and/or punished, and it is the fear of that occurring which he cites as the reason for him seeking refuge in Australia (T9, p.91);

• the killing of unarmed civilians in a refugee camp, even as part of a military exercise, knowing them to be unarmed, would ordinarily be expected to expose the perpetrator to risk of prosecution or punishment for a serious crime;

• that an incoming government has established a panel to investigate, determine and, if necessary, punish alleged atrocities does not result necessarily in a finding that there will be political interference in the process of carrying out those functions.   It is not suggested that, in carrying out its function, the panel will act selectively so as to disadvantage some particular group against whom allegations may arise, so that that group is seen to be disadvantaged vis-à-vis any others who may have allegations made against them as to the commission of crimes;

• in his application the applicant says that he will face a term of imprisonment, and will not be able to obtain employment.   Given he admits that he has killed and directed others to kill a number of unarmed civilians, if he is convicted under the proposed panel process, then the punishment he anticipates does not appear to be excessive, and given the nature of the events he describes, do not appear to "outweigh the harm that would be done by returning him to face prosecution [and] punishment".

1. On behalf of the applicant it was submitted that the exclusion contained in Article 1(F)(b) has never been applied to activities undertaken in a military context and that it was never contemplated it should be so applied.   It was also submitted that the exclusion should not be used as a "catch all" in the absence of circumstances which would not support the exclusions found in Article 1(F)(a).   No authority to this effect was able to be cited by Mr Gibson and the Tribunal has not been able to find one.   It is considered the law in this area is still in a developmental state.   The Tribunal should look to giving effect to the words used, rather than to either unduly expand or restrict the operation of the exclusion.   If the framers of the Convention and/or Protocols had intended to limit the exclusion to criminal actions of civilians, it could have easily have stated this.   It did not do so.   The fact that the applicant was engaged in a military operation does not, in the view of the Tribunal, exclude consideration of the exemption in Article 1(F)(b).   In his interview with the departmental officer, the applicant acknowledged that he was aware that it was wrong for him to kill civilians (p.18).  

2. Further, even if it could be accepted that the applicant's actions had a political motive, being suppression of Tamil opposition to the Sri Lankan Govenment, it has been determined that a crime which is a disproportionate method of achieving a political aim, cannot be categorised as a "political" offence for the purposes of the exclusion (see Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 654 and . . . and Minister for Immigration and Multicultural Affairs [1999] AATA 116 (Deputy President Purvis). Consistently, so too, should conduct carried out during the course of a military operation which transcends military standards be regarded as constituting criminal offences. Additionally, in the interview (p.19) the applicant admits that he had a personal axe to grind as a close friend had been killed by the LTTE the previous day. This admission further lessens any political aspect of his actions in killing the refugees. The Tribunal is unpersuaded that the use of the exclusion in this context amounts to a "catch all" – rather it applies the exclusion to a particular set of circumstances.

3. It follows from the above, in the Tribunal's view, that the application of the exclusion found in Article 1(F)(b) to the applicant's circumstances is made out.  

4. In any event, the Tribunal will now turn to whether or not the applicant has committed a crime against humanity.   The Tribunal is to determine the obligations which arise under the Convention and Protocols as at the date the events outlined above occurred, i.e. in 1993.   There have been some developments of the law in relation to this area since that time, including the passing of the Rome Statute for an International Criminal Court adopted in Rome in July 1998 ("the 1998 Rome statue).   The 1998 Rome Statute specifically addresses the issue of crimes against humanity.   Because of the developments, the date is of some significance.   The term "instruments", as used in Article 1(F)(a), includes United Nations treaties, Security Council resolutions, General Assembly declarations, draft treaty texts, statutes of international criminal tribunals, but does not extend to customary international law.   In Polyukhovich v The Commonwealth et Anor (1991) 172 CLR 501 at 669, Toohey J described the necessary preconditions for there to be a finding that there is a crime against humanity in the following terms:

   . . . 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 . . .   .

This judgment has been consistently applied by the Tribunal (see Mathews J in W98/45 and Minister for Immigration and Multicultural Affairs (AAT 13450, 17 August 1998) at paragraph 48 and Deputy President Purvis in Re . . . and Minister for Immigration and Multicultural Affairs [1999] AAT 116 at paragraph 29).  

1. The respondent maintained that there was evidence of a broader design engaged in by the Government of Sri Lanka at the time of the massacre against the Tamil population.   At the conclusion of the hearing the Tribunal gave the respondent leave to file any supportive material on the question of whether or not there was a large scale or systematic policy of the Government against Tamils in the north and east of Sri Lanka and the applicant the right of written response.   The respondent filed a more complete version of the US State Department Country Reports on Human Rights Practices for 1993 in respect of Sri Lanka ("the US Country Report) (extracts of which are at T3).   The conflict between the Tamils in the north and east of Sri Lanka and Government forces has been widely reported and involves violence on both sides.   The US Country Report acknowledges that by that time the total number of political and extrajudicial killings had declined significantly (i.e. as distinct from combat deaths) (T3, p.42).   That Report states:

   For the first time in 3 years, there were no reports of Sinhalese or Muslim civilians being massacred by the LTTE, nor were there any reprisal massacres directed against Tamil civilians by the security forces.     (T3, p.42)

Despite a decline in activity, the US Country Report notes that at least 12,000 civilians disappeared in Sri Lanka since 1983, with the majority in the period 1987-1991 and that "The vast majority of these disappearances took place in the war zones of the north and east and most were attributable to government forces" (T3, p.43).   Further, it notes torture and mistreatment of detainees, and states:

Although government officials privately acknowledge that torture is common, the Government has done little to address the problem.   Most members of the security forces regard torture as routine and acceptable.   (T3, p.44)

While the US Country Report also notes a reduction in the number of civilians held under emergency regulations, at the end of 1993 there were still approximately 2000 detainees, and continues:

Tens of thousands of Tamils were rounded up by the security forces in and around Colombo in the second half of 1993, following President Premadasa's assassination by a LTTE suicide bomber.   Most of them were released after an "identity check" lasting between several hours and several days, but a small number were placed under detention orders pursuant to the ER.   Many Tamils claimed that the mass roundups were an unjustified form of harassment based solely on ethnicity.    (T3, p.45)

It further noted the continuation of hostilities between the Government and LTTE throughout 1993, and states:

There were no army massacres of Tamil civilians similar to the ones . . . in 1991 and . . . 1992.   However, the Sri Lankan navy and air force were responsible for a number of civilian deaths, many due to indiscriminate or excessive use of force.   Over 250 civilians were killed in such attacks.   (T3, p.46)

and the Report goes on to nominate a naval attack on a group of civilians crossing the Jaffna lagoon under LTTE escort in defiance of military orders in which, at least, 35 civilians were killed.   The 1993 and 1994 reports of the ICRC (T4) note the ICRC continuing its efforts to promote understanding of and respect for international and humanitarian law among the field units of the armed forces, the police and the LTTE.  

1. From the above, the Tribunal is satisfied that, prior to and during the period in 1993, there was a larger plan by Government forces against the LTTE and resultant activity by the Government forces generally affecting the civilian Tamil population in Sri Lanka to the extent that that activity could be described as being part of a larger plan to persecute the Tamil population.

2. The above is re-enforced when regard is had to the act in which the applicant was involved.   It was clearly an act, directed by the applicant's commanding officer, in which the applicant freely participated.   The applicant did not report being surprised or alarmed at his Commanding Officer's direction.   The appointment of an investigative panel by a subsequent government indicates the events as not being random or isolated and, whilst not sanctioned, apparently condoned by the then government's military forces.   Accordingly, the Tribunal is satisfied that the applicant's actions cannot be regarded as being isolated or random acts, but rather part of a larger design to persecute Tamil civilians, including Tamil refugees.  

3. Further, the Tribunal is satisfied that the applicant possessed the necessary mens rea.   His actions were carried out in full knowledge of the circumstances, he admitted that he knew what he was doing was wrong, and stated that he had whilst at officer training studied combat law, and contrary to accepted military standards he agreed that he had fired directly at unarmed civilians.

4. Given the above findings, it is unnecessary to consider whether the conduct constitutes a war crime or is contrary to the purposes and principles of the United Nations.

5. At the conclusion of the hearing the applicant's representative suggested that reference to some events which may identify the applicant should not be published. Given that the Tribunal has anonymised his name, there may be no further reasons to withhold material from publication. However, this decision will only be provided to the parties on the basis that they will have until the close of the Tribunal's Registry, on Tuesday, 14 March 2000, to make written representations on this issue. Each party is constrained under s.35(2) of the AAT Act until the expiration of that time from publishing any part of this Decision.

6. The decision under review is affirmed.   The matter is remitted to the respondent on the basis that the applicant is not a person to whom Australia has protection obligations under the refugees Convention as he is excluded from the coverage of the 1951 Convention on Refugees under Article 1F(a) and 1F(b).

   I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Deputy President G.L. McDonald
   (sgd)   Judith Birch
             Associate

   Dates of Hearing:  30.11.99, 01.12.99
   Date of Decision:  10.03.2000
   Counsel for the Applicant:           Mr J. Gibson
   Solicitor for the Applicant:           AMPI Pty Ltd
   Solicitor for the Respondent:       Ms J. Carrington, Departmental Advocate