'War' v Minister for Immigration and Multicultural Affairs - [2001] AATA 475

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/231

GENERAL ADMINISTRATIVE DIVISION       )
           Re      'WAR'
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date1 June 2001
PlacePerth

Decision      The Tribunal affirms the decision under review.
  ...........(sgd S D Hotop)...........
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – protection visa – whether applicant a person to whom Australia has protection obligations under Refugees Convention – whether serious reasons for considering that applicant has committed a crime against humanity – whether serious reasons for considering that applicant has committed a serious non-political crime outside Australia prior to admission to Australia

Migration Act 1958, ss 29(1), 31, 36, 65(1)
Migration Regulations 1994 Pt 785, subcl 785.221, Pt 866, subcl 866.221

Convention relating to the Status of Refugees, arts 1A, 1F

Arquita v Minister for Immigration and Multicultural Affairs (2000) 32 AAR 252
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Polyukhovich v Commonwealth (1991) 172 CLR 501
Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51
T v Secretary of State for Home Department [1996] AC 742

REASONS FOR DECISION

1 June 2001 Associate Professor S D Hotop, Deputy President

The applicant has sought review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent"), dated 21 June 2000, refusing his application for a protection visa under the Migration Act 1958 ("the Act") and the Migration Regulations 1994 ("the Regulations").
At the hearing the applicant was represented by Mr J Gibson of counsel and the respondent was represented by Mr P Macliver of counsel. The Tribunal had before it the statement and documents ("T documents", numbered T1-T18) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and 3 documentary exhibits (numbered A1-A3) tendered by the applicant. The applicant gave oral evidence. There were no other witnesses. Dr M Islam, an interpreter, was also in attendance.
In accordance with the Confidentiality Orders made by the Tribunal under s35(2) of the AAT Act, the applicant's name has not been disclosed, and no specific references to names, organisations, places, dates and times associated with the applicant's relevant activities in the country of his nationality will be made in these reasons.
Immediate background to present application for review
Relevant background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents and other material before it, are as follows.
The applicant, who is a citizen of Bangladesh and is presently aged 29 years, arrived in Australia without authorisation under the Act in September 1999 and was placed in immigration detention as an "unlawful non-citizen". He lodged an "Application for a protection visa (866)" form with the Department of Immigration and Multicultural Affairs ("DIMA") on 28 February 2000. (T10)
By letter dated 21 June 2000 a delegate of the respondent notified the applicant that his application for a protection visa had been refused. In the "decision record" accompanying the abovementioned notification letter, the delegate stated that, as he considered the applicant not to be eligible for the grant of a "Subclass 866 (Protection) visa", the applicant's application would instead be "assessed against the criteria for the grant of a "Subclass 785 (Temporary Protection) visa". The delegate determined that the applicant did not satisfy the following essential criterion prescribed by the Regulations for the grant of a Subclass 785 visa:
"The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention".

The delegate recorded his decision as follows:

"I am satisfied that [the applicant] is not a person to whom Australia has protection obligations under the Refugees Convention. He therefore does not meet a prescribed criterion under clause 785.221 for the grant of a Subclass 785 (Temporary Protection) visa. As the applicant fails to satisfy the criteria of either subclass 785 or 866, I refuse his application for a Protection (Class XA) visa". (T17)

The delegate, in his letter of notification to the applicant, advised the applicant of his right to seek a review of that decision by the Refugee Review Tribunal.

By letter dated 13 July 2000 the delegate again notified the applicant that his application for a protection visa had been refused on the ground stated in the "decision record" previously sent to him. The delegate's letter of 13 July 2000, however, after noting that the previous letter of 21 June 2000 contained incorrect advice about the applicant's right to seek a review of the relevant decision, correctly advised the applicant of his right to apply to this Tribunal for a review of that decision (T18): see s500(1)(c) of the Act.
On 17 July 2000 the applicant lodged with this Tribunal an application for review of the delegate's decision to refuse his application for a protection visa.
Legislative Framework
The Act
Section 29(1) of the Act authorises the respondent to grant to a non-citizen a visa to "(a) travel to and enter Australia;" and/or "(b) remain in Australia." Section 31 of the Act provides that there are to be various classes of visas, including the class provided for by s36 of the Act, and that the regulations may prescribe criteria for specified classes of visas, including the class provided for by s36 of the Act.
Section 36 of the Act provides:
"(1) There is a class of visas to be known as protection visas.
(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."

In s5(1) of the Act "Refugees Convention" is defined to mean "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "Refugees Protocol" is defined to mean "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

Under s65(1) of the Act the respondent, if satisfied that specified criteria (including criteria for the grant of the relevant visa prescribed by the Act or the Regulations) and other matters have been fulfilled, is obliged to grant the visa, or, if not satisfied that those criteria and other matters have been fulfilled, is obliged to refuse to grant the visa.
The Regulations
Schedule 1 to the Regulations sets out the classes of visas (which include protection visas) and Schedule 2 to the Regulations contains provisions with respect to the grant of Subclasses of visas, including the criteria which must be satisfied by applicants. As the Regulations stood at the relevant time, the criteria for the grant of a Protection (Class XA) visa, Subclasses 785 and 866, were set out in Parts 785 and 866, respectively, of Schedule 2 to the Regulations. Among the criteria to be satisfied at the time of a decision on an application for either a Subclass 785 visa or a Subclass 866 visa was that prescribed by, respectively, subclauses 785.221 and 866.221 in Parts 785 and 866 of Schedule 2 to the Regulations as follows:
"The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention".

In Parts 785 and 866 of Schedule 2 "Refugees Convention" was defined to mean "the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees".
The Refugees Convention

Australia is a party to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention"), and, accordingly, Australia has "protection obligations" under the Refugees Convention to a person who is a "refugee" within the meaning, and for the purposes, of that Convention. Article 1 of the Refugees Convention relevantly states:
"A.      For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
(1)       …;
(2)       … 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; …
…
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."

Material Before the Tribunal
The T documents

Document T5 is a DIMA form entitled "Unauthorised Boat Arrivals Bio-Data Questionnaire" completed by the applicant (with the assistance of an interpreter), signed by the applicant and the interpreter and dated 30 September 1999. In answer to the question: "What was your occupation?", the applicant's response is recorded as follows:
" I was a active member of a underground … party. My … party is very secret and dangerous. My duty was informer. Sometimes party get money and arms from India and Pakistan. I always collect news. Sometimes my underground party killed rich bad people. My work was always collect information about that kind of people."

Document T6 is a DIMA form entitled "Initial Interview for Unauthorised Boat Arrivals". That form comprises a record of an interview between a DIMA officer and the applicant, with the assistance of an interpreter, bears the signatures of the applicant, the DIMA officer and the interpreter, and is dated 1 October 1999. In answer to each of the questions: "When did you leave your country of nationality?" and "When did you begin to plan/think about leaving your country of nationality?", the recorded response is the same, namely: "July 1996". In answer to the question: "Why did you leave the country of nationality?", the recorded response is:
"The police and members of his group would have killed him…".

Document T8 is a handwritten record of a supplementary interview which was conducted by telephone between a DIMA officer and the applicant, with the assistance of an interpreter, on 24 November 1999. Relevant extracts from that record of interview are as follows:
"…
Q: When did you begin to plan/think about leaving Bangladesh?
A: In July 1996
Q:Was this the result of one specific event or something that had built up over a period of time?
A:In July 1996. Suddenly there was an event in my life causing problems. I was involved in an underground movement. There were problems within the party itself and the government started to more actively pursue members of this party.
Q:Why did you leave Bangladesh?
A:I left in order to save my life.
Q:You advised in your interview on 1/10/99 that you left Bangladesh because the police and members of your group would kill you. Why would the police kill you?
A:The party was forbidden in Bangladesh. The police were pursuing not only me but all the members of my party because the party was functioning illegally.
Q:Why would the members of your group kill you?
A:There was a power struggle within the different groups of the group concerning the leadership.
Q:How did this power struggle effect (sic) you personally?
A:In the previous interview, I told you I was born in an orphanage. I went to a town to look for work and a man offered me a job … I was told my job would be filing in an office. The man who offered me a job was a member of an underground movement. The man who recruited me was involved in a power struggle and I supported him. The problem was that I had information about where everyone in the group was. The other members were afraid that if I was caught, I would tell the police who had murdered who, and who was involved in drugs. I destroyed all the information I had on the members, however I still can remember what happened, and the members don't know that I have destroyed the information.
…
Q:Why did you join the group?
A:I joined because there was nobody to guide me. I didn't know what was right or wrong. I was just looking for work. I didn't know it was illegal.
Q:Why is the group illegal?
A:It is outside the constitution, everything it does is illegal. They threaten the wealthy people. If the wealthy people don't make monthly contributions then they kill them. I have seen police take some of the members into custody, ill treat them and kill them. When I realised the party was illegal I tried to leave. They told me it is very easy to join the party but if you leave we will kill you.
Q:When did you join the group?
A:1987
Q:What was your role within the group?
A:My role when I first joined was in the office passing information from office to office. After 3-4 years they began to trust me and let me do field work: ie, illegally bringing drugs and arms from India. The arms were distributed amongst the members. The drugs were sold. I was associated with the peacekeepers. I distributed arms to the different districts. It was my responsibility to keep a list of the people who were to be killed.
…".

Document T10 comprises the applicant's application for a protection visa and accompanying documents including a statement dated 27 February 2000 signed by the applicant whose contents are (relevantly) as follows:
"…
2.I joined the … Party ['X'] in January 1987. I left school … and met a person named ['Y'] who had promised me a job as a 'bearer' (manual worker) at an office. At this time I did not know this was an office of the [X] Party.
3.I worked there for 6 months and was paid regularly and treated well. I did not take any interest in knowing what was happening in the office. After working there I came to know that it was not a commercial office but an information centre for the [X] … Party. I was told that they worked for the people, I was given motivational speeches about their good work. Having convinced them of my loyalty and integrity, they recruited me into their Party. I did not know at this time that the Party was committing violent and subversive undertakings.
4.They told me that it was a Party working for the emancipation of the poor… They asked me to work assisting them with the poor. I trusted them with all of my honesty and started working for them.
5.Initially my work involved carrying information. This lasted for 4 years. I travelled around Bangladesh carrying information from one member to another. I did not know what information I was carrying. I asked the Party to advise me of the contents of the letters but the information they told me was they contained information concerning welfare and relief for the poor. I did not open the envelopes because I was loyal to the Party.
6.In 1992 I was recruited to work on the Indian border and came to know that the Party was involved in smuggling drugs and arms. After 1 month of working for the Party on the border I asked why boxes were being smuggled under cover of darkness. I was told that the goods in the boxes were from donor countries to carry on welfare activities. Their explanation was that as the Party were banned and working for the poor, the Government, working for the rich was against their welfare activities. That was the reason why the goods were being smuggled into Bangladesh at night.
7.I was not fully satisfied at their explanation and attempted to discover the contents of the boxes. One day I managed to open one of the boxes and found some pistols, sawn-off rifles and pipe guns. I realised that they were involved in subversive activities and out of fear did not want to know any more.
8.I met [Y] and asked him to send me back to my last job which was to carry information but he would not let me. I told him that he gave me false information about the activities about the Party. He told me that I talked too much and asked too many questions. If I continued the questions, I may be killed. I told him that I was ready to do any regular work but not these activities. He told me that once you join the Party, you can only leave the Party dead. He advised me not to disclose that I wanted to leave to anyone but him. He said that he liked me because I was an orphan. He told me as well that the Party was constitutionally illegal in Bangladesh and that if the Police arrested anyone from the Party, they were sure to meet their death.
9.I realised that I did not have any alternative but to work with more dedication for the Party. I used to keep inventories of the arms smuggled into Bangladesh. I worked on the border for 4 years. I was transferred back to the Information Centre for 15 days and during this time I obtained files which named influential people. I asked why there were files on these people and I was told that the Party demanded a 'toll' (money) from them and that if they didn't pay, they were killed.
10.I was transferred back to the border and continued the same work. I was working on the border until 1996 when the Party fragmented into 2 pieces due to a leadership clash. I had to identify myself with one of the factions. The Parties (sic) main activities came to a halt and they started killing each other secretly. In many cases, many were arrested by the Police and killed.
11.Knowing all of these bad elements, I informed the person who recruited me that I did not want to be involved with these subversive activities. I began finding out ways to leave the Party and the country.
12.In July 1996 [Y] advised me that if I stayed in Bangladesh I would be killed. He told me that as he loved me very much, he advised me to leave for India and he arranged for my passage from India to Singapore.
…".

Document T4 comprises various documents containing information from credible media sources regarding the social and political situation in Bangladesh, including information regarding, inter alia, the party with which the applicant claimed, in the abovementioned supplementary interview on 24 November 1999 and statement dated 27 February 2000, he was involved in Bangladesh (hereafter referred to as the "X party"). These documents provide the following information relating to the activities of the X party during the period in which the applicant claimed to be associated with it (namely, 1987-1996):
·     news reports of an attack in 1991 by 40 masked gunmen, said to be members of the X party (which was described as an "outlawed … group"), in a shopping centre during which shoppers were shot at and "crude bombs" were detonated resulting in the killing of 5 people and the injuring of about 200 others;
·     media reports of an offer of an amnesty by the government of Bangladesh to members of the X party, which was described as an "underground … organisation" and as "being engaged in unlawful and terrorist activities" in specified districts, who surrendered themselves and their "unauthorised arms" by a specified date;
·     a media report of police statements to the effect that about 15 members of the X party "stormed" a village in Bangladesh in 1993 and "started firing indiscriminately with automatic weapons" killing 6 people and injuring about 20 others, and that the X party was "responsible for 300 deaths" during the past 3 years.

Document T11 is a handwritten document entitled "Post Interview Submission". That document, which appears to be a submission made by the applicant, is undated but the Tribunal infers from its contents that it was prepared after a further interview between a DIMA officer and the applicant held on 1 March 2000, the transcript of which comprises Exhibit A3. In that submission it is stated that the applicant "knew nothing" of the X party's activities, including the "bombing incident" (namely, the shopping centre incident referred to in the preceding paragraph) about which he had been questioned by the DIMA officer in the abovementioned interview. The submission also states:
"I never became a member of this party. I was never involved in the smuggling. I was an innocent 'pawn' – used as a cleaner & to count boxes & to deliver some messages the contents of which I did not know …
…
I am opposed to violence/arms/drugs (I'm not aware of this group being involved in drugs)."

Exhibit A3

As mentioned above, Exhibit A3 is a transcript of an interview held on 1 March 2000 between a DIMA officer and the applicant. Also present were an interpreter and the applicant's legal representative. The Tribunal does not think it necessary to set out the contents of that document here as it does not add significantly to the contents of the other relevant material before the Tribunal which is set out in these reasons.
The Applicant's Evidence
The applicant was shown a document entitled "Applicant's Statement of Evidence" dated 3 November 2000 and he confirmed that the contents of that document were accurate. That document, which was tendered in evidence (Exhibit A1), relevantly states:
"…
3.I am a Sunni Muslim from Bangladesh. I am an orphan and grew up in an institution. I ran away from the orphanage because of mistreatment and discrimination when I was 15 in or about 1987… I was befriended by a man called [Y]. He told me he would give me a job working in an office for board and pay.
4.I did various jobs in the office, and due to my ignorance it was some time before I realised it belonged to an underground … party [X]. At that time I was told that the ideology of the party was to help the poor which I accepted and agreed with. I did not know until later that the party was committed to violence.
5.For the first four years or so I worked in the office passing information from office to office or carrying information to different places … While I had some suspicions, I thought that the envelopes I received contained information about party activities especially welfare activities.
6.In 1992 I was asked to work on the Indian border where I spent nearly all the next four years except for a very short period back at the office. My responsibility was to count the boxes. After one month there I asked [Y] why boxes were being smuggled under cover of darkness. He told me that they contained goods from donor countries to enable the party to carry on its welfare activities. I thought the wooden crates contained clothes and medicines. One day I managed to open one of the boxes which I discovered contained arms and ammunition and realised the group was involved in subversive activities. I was terrified and did not speak to anyone about this. When [Y] came to the border I said to him I did not want to work for him any more. He told me that the only way I could leave was as a 'dead person' and warned me that I already knew too much. If I left the party I would be pursued by the police as well. In substance I was told that I should not question these things or I would be killed.
7.Despite serious misgivings I continued to work assisting in illegally bringing drugs and arms into the country from India. I had no other choice. I was terrified I would be killed. My duties were to count the boxes. I never saw any drugs but I believe they were sold. I helped to count the arms. I never personally handled guns or sold drugs. I followed instructions and most of the time I stayed at the border. When I went back to work in the office for a short period I found out that the party kept files on wealthy people from whom the party extorted money and who would be killed if it was not paid. This made me even more scared. Apart from this short time back in the office (Information Centre) I continued to work on the border … This lasted for four years. I was not actively involved in the smuggling operations. I was used as a cleaner, to count boxes and deliver messages, the contents of which I did not know. I had jobs at the bottom rung of the ladder. I never knew about any bombing incident carried out by [X] which I was asked about in the interview.
8.There were times when I thought about surrendering to the government but I believed they would kill me as most are involved in the smuggling and are involved with [X]. I did not know about any amnesty. I believed the amnesty was a ploy of deception. Even if I had known I would have felt that I could not be protected from those who had not surrendered. Even if I had gone to the police with information, I felt how would they know that I really did belong to [X] and I was giving them accurate information. Anyway, the police in Bangladesh are so poorly trained that I was afraid of being tortured or ill-treated. I believed they would not believe me and would kill me – many people are killed by Bangladeshi police due to their imputed political opinion.
9.At the beginning of 1995 a leadership struggle broke out and the party split into two. [Y] was in one of these factions. After a while I told him that I did not want to be involved with the party's activities any more. He said to me that I would be killed if I stayed in the country and I managed to cross the border to India and escape from Bangladesh in July 1996. I went straight to Calcutta. [Y] helped me financially to do this by paying my travel and accommodation expenses. If I had really supported what the party was doing I would not have left Bangladesh. I could have earned thousands of rupees continuing my activities.
…".

In his examination-in-chief, the applicant was referred to the DIMA "Unauthorised Boat Arrivals Bio-Data Questionnaire" (T5 – see paragraph 14 above) and he confirmed that he had written the answers to the questions himself in both Bengali and English. Asked to explain his statements: "My duty was informer" and "I always collect news" in that document, the applicant said that for 4 years from 1987 when he was recruited by the X party his job was to carry information in envelopes - which he was told was information about welfare activities for poor people – between the party's office and various towns in Bangladesh. He said that from 1992 he worked for the X party at a place on the Indian border. As regards his statement : "My work was always collect information about that kind of people", the applicant explained that during the period he was working on the border he was transferred back to the party's office for a period of 15 days during which he was "forced" to collect information and keep a file on people from whom the party extracted money. He added, however, that that was not his "job", and that after that 15-day period he was transferred back to the border area where he remained until 1996 when he left Bangladesh.
The applicant was next referred to the DIMA document entitled "Initial Interview for Unauthorised Boat Arrivals" (T6 – see paragraph 15 above) in which he stated that he left Bangladesh because "the police and members of his group would have killed him". He explained that he became involved with the X party "for good things, not for bad things" but that in 1992 he came to know that they (the X party) were doing something that was wrong and he "den(ied) to do it" but they forced him and told him that if he did not do it he would be killed and that he would be "persecuted" by the police for having been involved with the party because it was "politically banned".
The applicant was the referred to the DIMA record of supplementary interview held on 24 November 1999 (T8 – see paragraph 16 above). In relation to his recorded answer to the question: "What was your role within the group?", the applicant was asked to explain exactly what he did in connection with the distribution of arms. He said that he never personally handled any guns and that his role was merely to inform other party members by letter that "goods are ready" to be collected by them. He added that when he started working on the border in 1992 he was told that his job would be "to collect some boxes just coming from India" and, when he inquired about such boxes, he was told that they would be containing welfare material, such as medicine and clothes, for Bangladeshi poor people. He said that one day, however, out of curiosity he managed to open a box and discovered that it contained arms, and not clothes and medicine, and, although he then objected, he was "forced" to continue to count the boxes. As regards his recorded statement that "(t)he drugs were sold", the applicant said that he never saw any drugs but that he heard from other party members that drugs were coming and, when he "argue(d)" with them, they told him that the drugs were not for their personal use but were to be sold and the money received for them would be party funds to be used for party activities. As regards his recorded statement that "(i)t was my responsibility to keep a list of the people who were to be killed", the applicant said that he was referring to the short period of 15 days when he was transferred from the border back to the party office where he was "forced" to keep such a file.
Finally, the applicant confirmed that the statement, dated 27 February 2000, which accompanied his application for a protection visa (T10 – see paragraph 17 above) is an inaccurate account of the events and matters referred to in that statement. In response to a question whether he ever knew anything about attacks that were carried out by the X party on members of the Government or civilians, the applicant said that he knew nothing about that. Asked whether he was "ever involved in planning or organising anything of that kind", he said: "No".
In cross-examination, the applicant was asked to explain his statement in the DIMA "Unauthorised Boat Arrivals Bio-Data Questionnaire" (T5 – see paragraph 14 above) as follows:
"Sometimes my underground party killed rich bad people. My work was always collect information about that kind of people."

The applicant said that he never killed anyone and did not know anything about that although he knew that the X party kept a file on people who were to be killed in the future. He said that he asked party members why they kept that file and why those people were to be killed and they told him that those people were corrupt and were class enemies. The applicant said he opposed the party members "several times about this". He denied that part of his work was to collect information about people who were to be killed and said that he was told that the information he collected in envelopes (which he never opened) was information about welfare activities, not killings. He acknowledged, however, that in 1992, when he was transferred from the border to the X party office for a short period, he came to know about such things. He said that, prior to that time, he had become aware that the boxes which were received by him on the border from India contained arms but that he was not then aware that the party was going to kill people.

The applicant was next questioned about his statement in the supplementary interview with a DIMA officer on 24 November 1999 (T8 – see paragraph 16 above) that when he first joined the X party his role was in the office passing information from office to office but that after 3-4 years they "began to trust [him] and let [him] do field work ie illegally bringing drugs and arms from India". The applicant said that he was not a party leader but was a "very small member" and that he was forced to do these things from 1992 to 1996. He added that it was not his decision and that he was not happy about it. As regards his party duties at that time, he said that he never brought any drugs or arms into Bangladesh but that his role was just to count the boxes which came from India. He acknowledged, however, that deliveries only arrived once or twice per month and that sometimes 2-3 months went by before another delivery arrived.
The applicant was then questioned about his statement in the record of supplementary interview as follows:
" I distributed arms to the different districts. It was my responsibility to keep a list of the people who were to be killed."

He reiterated that he did not actively distribute arms; instead, he merely sent messages to party members in various districts in Bangladesh informing them that their boxes were ready to be collected. He also reiterated that it was not his responsibility to keep a list of people to be killed and that the abovequoted statement, as recorded by the DIMA officer, involved a misunderstanding. He said that, in his answer to the DIMA officer's question, he was referring to the short period of 15 days when he was transferred back to the party office from the border during which he became aware that the party kept a file on wealthy people who were to be killed and he was then "forced" to keep that file.

Finally, the applicant reiterated that he did not know that the arms that were received by the X party from India were being used to kill people, although he acknowledged that he realised at that time that they were "illegal arms". He rejected the suggestion that he could have left the X party much earlier than he did and moved, for example, to Dhaka where he could have lived in safety. He said that X party members were "everywhere in Bangladesh" and that it would be easy for them to find him and "get" him.
The Issue
The general issue in this case is whether the applicant falls within any of the so-called "exclusionary provisions" in art 1F of the Refugees Convention. More specifically, the issue is whether there are "serious reasons for considering" that the applicant has committed (relevantly) either a "crime against humanity" (within the meaning of para (a) of art 1F), or a "serious non-political crime" (within the meaning of para (b) of art 1F) outside Australia prior to his admission to Australia. Both parties made extensive oral submissions in relation to the abovementioned issue and the substantive aspects of those submissions will be addressed below.
Consideration of issue and relevant prinicples and findings on material questions of fact and law
Article 1F of the Refugees Convention – the threshold requirement
Before either of the exclusionary provisions in paras (a) and (b) of art 1F of the Refugees Convention can apply, there must be "serious reasons for considering" that the relevant person has committed a crime within any of the categories referred to in those paragraphs. The meaning of the phrase "serious reasons for considering" has been explained by the Federal Court of Australia. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 French J said (at 563):
"Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words 'serious reasons 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…".

Recently, in Arquita v Minister for Immigration and Multicultural Affairs (2000) 32 AAR 252 Weinberg J followed the approach of French J in Dhayakpa. Weinberg J said (at 265):

"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.
…
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'."

Article 1F(a) of the Refugees Convention

A "crime against humanity", within the meaning of para (a) of art 1F of the Refugees Convention, is such a crime "as defined in the international instruments drawn up to make provision in respect (thereof)". One such international instrument is the Charter of the International Military Tribunal ("the Nuremberg Charter") which was attached to the 1945 London Agreement. Article 6(c) of the Nuremberg Charter relevantly states:
"Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."

The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), however, recognises (in art 1(b)) that crimes against humanity may be "committed in time of war or in time of peace": see Weisman, "Article 1F(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law" (1996) 8 International Journal of Refugee Law 111 at 122.

In Polyukhovich v Commonwealth (1991) 172 CLR 501 Toohey J, referring to art 6(c) of the Nuremberg Charter, said (at 669):
"… 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, …".

Likewise, it is commonly accepted that a necessary element of a "crime against humanity" is that it be "committed in a widespread, systematic fashion": Weisman, op cit at 123.

As regards the present case, the Tribunal is prepared to find, on the basis of the information contained in the documents referred to in paragraph 18 above, that there are serious reasons for considering that members of the X party have committed crimes against humanity, within the meaning of art 1F(a) of the Refugees Convention – namely, the killing and seriously injuring of large numbers of innocent people (including city shoppers and villagers) in Bangladesh over a substantial period of time. The question is, however, whether, on the material before it, the Tribunal is satisfied that there are serious reasons for considering that the applicant has committed a crime against humanity, within the meaning of art 1F(a) of the Refugees Convention. Mr Macliver (for the respondent) submitted that the applicant's own statements to DIMA officers (see paragraphs 14-16 above) provide strong evidence of his involvement in such killings by other members of the X party, and in the smuggling and distribution of arms to be used for that purpose, such that he is caught by the exclusionary provision in para (a) of art 1F of the Refugees Convention. Mr Macliver urged the Tribunal to attach greater weight to those earlier statements by the applicant than to his subsequent statements to DIMA (see paragraphs 17 and 19 above) and his evidence to the Tribunal (see paragraphs 21-25 above) which suggested a much lower level of involvement (if any) on his part in the smuggling and distribution of arms for the purposes of the X party and no involvement in any killings by members of the X party.

In the Tribunals' opinion the whole of the material before it does not suggest that there is strong evidence available upon which it could reasonably and properly be concluded (Arquita, above) that the applicant has committed a crime against humanity, namely, the killing and seriously injuring of large numbers of innocent civilians in Bangladesh over a substantial period of time. In the first place, there is no evidence (and the respondent did not contend) that the applicant personally killed or injured any person. The question is whether there is strong evidence of his involvement in the perpetration of such crimes by others to a degree sufficient to give rise to accessorial liability on his part for such crimes. The matter of accessorial liability for crimes against humanity is referred to generally in art 6(c) of the Nuremberg Charter (see paragraph 32 above). The only relevant kind of accessorial liability for the abovementioned crimes that might arguably attach to the applicant is that of an accomplice but, in the Tribunal's opinion, there is insufficient material before it on the basis of which it could reasonably and properly be concluded that the applicant was an accomplice to the commission of such crimes by members of the X party. In the first 4-5 years of the applicant's working for the X party (1987-91, when he was aged between 15 and 19 years) his role was, according to the material before the Tribunal, that of delivering sealed envelopes containing information from the X party's office to party members in various towns in Bangladesh. The Tribunal is prepared to accept the applicant's evidence that at that time he was unaware of the actual contents of such letters and that he thought that they contained "welfare" information only. In any event there is, of course, no evidence before the Tribunal as to the actual contents of those letters. In the Tribunal's opinion there can be no real suggestion that the applicant bore any accessorial responsibility for any killing or injuring of persons perpetrated by members of the X party during that period. As regards the period from 1992 to 1996 during which the applicant was stationed at the border between India and Bangladesh, the applicant, according to his own evidence, soon became aware that the X party was receiving illegal arms from India and that there was a list (kept at the X party's office to which he was transferred for 15 days during 1992) of the names of people who were to be killed by members of the party. The Tribunal accepts the applicant's evidence that his job in relation to the illegal arms was to keep an inventory of them and to notify party members of their arrival in order that they might be collected by them rather than to actively deliver them himself to party members. There is, however, nothing in the material before the Tribunal to connect the applicant's dealings in illegal arms with any particular incident involving the killing or injuring of any person by members of the X party. The Tribunal accepts the applicant's evidence that he had no specific knowledge that members of the X party had actually killed or injured innocent civilians. In short, the Tribunal is of the opinion that the applicant's admitted involvement in the illegal smuggling of arms for collection by members of the X party, although a serious crime in itself, is too far removed from, and not sufficiently closely connected with, any killing or injuring of innocent civilians perpetrated by members of the X party to render the applicant an accomplice to such crimes against humanity.
The Tribunal finds, therefore, that there are not serious reasons for considering that the applicant has committed, either as a principal or as an accomplice, a crime against humanity, within the meaning of para (a) of art 1F of the Refugees Convention.
Article 1F(b) of the Refugees Convention
Paragraph (b) of art 1F of the Refugees Convention will apply to the applicant if there are "serious reasons for considering" that he has committed a "serious non-political crime" outside Australia prior to his admission to Australia. It is common ground that any relevant crime committed by the applicant was committed by him outside Australia prior to his entry into Australia. The question for determination by the Tribunal is whether there are "serious reasons for considering" that the applicant has committed a "serious" crime of a "non-political" character.
The policy of para (b) of art 1F of the Refugees Convention is to protect the order and safety of the receiving state: Dhayakpa (above), at 565; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179, 185. Accordingly, the question whether there are serious reasons for considering that a person has "committed a serious non-political crime", within the meaning and for the purposes of para (b) of art 1F, may be answered "by reference to notions of serious criminality accepted within the receiving state": Ovcharuk, at 185, 191.
The alleged activities of the applicant outside Australia, which arguably might give rise to serious reasons for considering that he has committed one or more serious crimes outside Australia, are those associated with the illegal smuggling and distribution of arms and drugs during the period from 1992 to 1996 when the applicant was stationed at the border between India and Bangladesh. The Tribunal has already found (see paragraph 35 above) that there are not serious reasons for considering that the applicant has committed, either as a principal or as an accomplice, a crime involving the killing or injuring of a person and, accordingly, those obvious categories of serious crime will not be considered here.
As regards the concept of "serious crime", Professor G S Goodwin-Gill in The Refugee in International Law (2nd ed, 1996) refers (at p107) to a proposal made by the United Nations High Commissioner for Refugees ("UNHCR") in 1980, in relation to applications for asylum by 125,000 Cubans who had arrived in the United States, as follows:
"With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. However, that presumption should be capable of rebuttal by evidence of mitigating factors, some of which are set out below. The following offences might also be considered to constitute serious crimes, provided other factors were present: breaking and entering (burglary); stealing (theft and simple robbery); receiving stolen property; embezzlement; possession of drugs in quantities exceeding that required for personal use; and assault. Factors to support a finding of seriousness included: use of weapons, injury to persons; value of property involved; type of drugs involved; evidence of habitual criminal conduct. With respect to all cases, the following elements were suggested as tending to rebut a presumption or finding of serious crime: minority of the offender; parole; elapse of five years since conviction or completion of sentence; general good character (for example, one offence only); offender was merely accomplice; other circumstances surrounding commission of the offence (for example, provocation and self-defence)." (footnotes omitted)

In the present case there is material before the Tribunal which relates to the applicant's possible involvement in the smuggling and distribution of illicit drugs. That material, in summary, is as follows:
· the applicant's recorded statement in the DIMA supplementary interview on 24 November 1999 regarding his role in the X party as follows (T8, see paragraph 16 above):
"After 3-4 years they began to trust me and let me do field work ie illegally bringing drugs and arms from India. The arms were distributed amongst the members. The drugs were sold. …";

the applicant's statement, dated 27 February 2000, accompanying his application for a protection visa, which contains the following statement (T10, see paragraph 17 above):
"6.In 1992 I was recruited to work on the Indian border and came to know that the Party was involved in smuggling drugs and arms. …";
the following statement in the applicant's "Post Interview Submission" (T11, see paragraph 19 above):
"I was never involved in the smuggling … I am opposed to violence/arms/drugs (I'm not aware of this group being involved in drugs).";
the applicant's statement of evidence, dated 3 November 2000, to the Tribunal which states as follows (Exhibit A1, see paragraph 21 above):
"7.Despite serious misgivings I continued to work assisting in illegally bringing drugs and arms into the country from India. I had no other choice. I was terrified I would be killed. My duties were to count the boxes. I never saw any drugs but I believe they were sold. I helped to count the arms. I never personally handled guns or sold drugs. …";
the applicant's oral evidence to the Tribunal that he never brought drugs into Bangladesh or saw such drugs but that he had heard from other party members that drugs were coming and that such drugs were not for their personal use but were to be sold and the proceeds used to finance party activities.

In submissions made on behalf of the applicant it was conceded that the applicant was aware at the relevant time that boxes smuggled across the border (where he was stationed at that time) from India contained drugs which were to be sold for the purpose of financing the political aims of the X party and that "at worst" he was "but a mere accomplice in the smuggling of drugs".
Having regard to the material summarised in paragraph 41 above, the Tribunal finds that there are serious reasons for considering that the applicant, during the period from 1992 to 1996, was directly involved in the smuggling of illicit drugs from India to Bangladesh and their subsequent distribution in Bangladesh in that he knowingly received such drugs and arranged for their collection by other members of the X party in the knowledge that they were then to be sold to finance the operations of the X party. There is, however, no specific evidence before the Tribunal regarding the type(s) of drugs concerned or the quantity of such drugs. The Tribunal is prepared, nevertheless, to infer from the abovementioned summarised material – in particular, the applicant's evidence that he was aware that the smuggled drugs were to be sold to finance the X party's operations – that the relevant drugs fell into the category of "hard" drugs and that their quantity was substantial and certainly of trafficable proportions, and that the applicant was aware of those matters. Accordingly, the Tribunal finds that there are serious reasons for considering that the applicant was, from 1992 to 1996, directly involved in the illegal importation of trafficable quantities of "hard" drugs. The Tribunal also finds – it was not contended otherwise – that the illegal importation of trafficable quantities of "hard drugs" over a substantial period of time constitutes a "serious" crime in the criminal justice systems of Bangladesh and Australia.
Before the Tribunal finally concludes, however, that there are serious reasons for considering that the applicant has committed the abovementioned serious crime, it must also consider whether there are any "mitigating factors" (Goodwin-Gill, op cit, p107 – see paragraph 40 above) which militate against such a finding. Mr Gibson (for the applicant) submitted that the following mitigating factors existed in this case, namely, the applicant's youth and lack of education when he first became involved with the X party, the "low level" nature of his participation or complicity in the relevant illegal activities, and the duress under which he continued to work for the X party and participate in its illegal activities after he became aware of them.
In Dhayakpa (above), French J said (at 563):
"The adjective 'serious' in Art 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgment. But once the non-political crime committed outside the country of refuge is properly characterised as 'serious' the provisions of the Convention do not apply."

The Tribunal will, accordingly, proceed to make an "evaluative judgment" regarding the seriousness, or otherwise, of the applicant's involvement in the abovementioned crime of illegally importing trafficable quantities of "hard" drugs from 1992 to 1996, having regard to the abovementioned allegedly mitigating factors.

The applicant's youth and lack of education when he first became involved with the X party in 1987 do not, in the Tribunal's opinion, constitute mitigating factors in relation to his commission of the abovementioned crime from 1992 to 1996. By 1992 the applicant had turned 20 years of age and had served in the X party for some 5 years and, according to his statement to the DIMA officer on 24 November 1999 (T8 – see paragraph 16 above), had gained the trust of the X party such that he was allowed to do "field work ie illegally bringing drugs and arms from India". As regards the level of his participation in the abovementioned crime, the Tribunal has already found (see paragraph 43 above) that there are serious reasons for considering that he was directly involved in the commission of that crime in that he knowingly received the illegally imported drugs and arranged for their collection by other members of the X party in the knowledge that they were to be sold to finance the operations of the party. The nature of the applicant's participation in that crime was, in the Tribunal's opinion, not that of a "mere accomplice"; rather, it was that of a co-perpetrator of that crime. The Tribunal, furthermore, does not accept that the seriousness of the applicant's participation in that crime is significantly mitigated by such factors as his disillusionment with the illegal activities of the X party and duress. Even if it be true that the applicant did become increasingly disillusioned with the X party, the fact remains that he continued to work for that party and participate in at least some of its illegal operations. As regards whether he did so by reason of duress, the Tribunal is not satisfied that the applicant was actually threatened with serious harm unless he participated in the illegal smuggling and distribution of the illicit drugs, or was otherwise forced to do so. The Tribunal does not accept the applicant's evidence that he was told by X party members that he would be killed if he questioned their illegal activities or if he did not continue to participate in those activities. The Tribunal accepts, as more credible, Mr Macliver's submission that it was open to the applicant to leave the X party once he became aware of its illegal activities in 1992 if he genuinely did not wish to be associated with those activities. The Tribunal notes that the applicant did eventually leave the X party and Bangladesh in July 1996 but that the catalyst for his so doing appears to have been a factional struggle that broke out within the X party for control of the party coupled with an increased government and police interest in cracking down on the X party, rather than a disavowal by him of the X party's aims and activities: see the record of his supplementary interview with the DIMA officer on 24 November 1999 (T8 – paragraph 16 above), his statement dated 27 February 2000 (T10 – paragraph 17 above), and his statement of evidence dated 3 November 2000 (Exhibit A1 – paragraph 21 above).
It was also submitted by Mr Gibson (for the applicant) that, in determining whether a crime is "serious" within the meaning and for the purposes of para (b) of art 1F of the Refugees Convention, the Tribunal should, as stated in para 156 of UNHCR Handbook on Procedure and Criteria for Determining Refugee Status, balance the gravity of the relevant crime against the degree of persecution feared by the applicant if he were to return to Bangladesh. Mr Gibson submitted that:
"there is a real chance that the degree of persecution feared from the [X party] out of retribution for his leaving the organisation if the applicant were to go back to Bangladesh (and his fear of the police for having been a member of that organisation) is sufficiently serious and likely to endanger his life and freedom that, as compared with the gravity of the alleged offences, it cannot be said that they are of such gravity so as to exclude him from the protection of the Convention …".

In Dhayakpa (above), however, French J said (in a passage which immediately follows the passage quoted in paragraph 45 above) (at 563-564):

"There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin. In par 156 of the Handbook on Procedure and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, 1992), it is said of Art 1F(b):
'156. In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.'

In T v Secretary of State for Home Department [1995] 1 WLR 545 at 554-555; [1995] 2 All ER 1042 at 1050-1051, the Court of Appeal held that there is nothing in the Convention to support the view that in deciding whether a non-political crime is 'serious' the relevant Minister or appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the granting (sic) of the crime. It is not necessary for present purposes to decide whether the evaluative characterisation of an offence as serious attracts elements of a balancing exercise. For on any view, a conspiracy to import into Australia trafficable quantities of heroin must be regarded as a serious offence."

The Tribunal regards French J's remarks as apposite in the present case and is likewise of the opinion that the relevant crime in whose commission the applicant was directly involved, namely, the smuggling and distribution of illicit drugs from 1992 to 1996, is so clearly to be regarded as a serious crime as to render inappropriate the kind of balancing exercise contended for by Mr Gibson.

The Tribunal finds, therefore, that the abovementioned factors pleaded in mitigation by Mr Gibson (for the applicant) do not significantly mitigate the seriousness of the applicant's involvement in the crime of smuggling and distributing trafficable quantities of illicit drugs from 1992 to 1996. Accordingly, the Tribunal finds that there are serious reasons for considering that the applicant has committed the abovementioned serious crime.
The Tribunal turns finally to the question whether the abovementioned serious crime is a "non-political crime" within the meaning of para (b) of art 1F of the Refugees Convention. In Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51 the Federal Court of Australia (Full Court) said (at 59):
"The Convention concept of a 'non-political crime' is a vexed and difficult one. It is clear at least that, although political motivation is essential to deprive a crime of non-political character, it is not always sufficient. Professor Goodwin-Gill (The Refugee in International Law (2nd ed, 1996)) summarises the considerations at pp 105, 106 as follows:
'The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organisation or the very structure of the State, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.'
That passage is substantially to the same effect as par 152 of the UNHCR Handbook. It does not suggest, we think, that a crime is political only if the motivation of the criminal is pure, in the sense that it is exclusively political. On the other hand, the crime must be directly linked to the political object. Equally, there are some crimes which, whatever their motivation and whatever their link with a political objective, will be regarded as non-political. The suggestion is that a balancing exercise is to be undertaken: a crime may be non-political if it is grossly disproportionate to the alleged political objective or if it is 'atrocious'."

The Court had earlier (at 57) quoted the following passage from the speech of Lord Lloyd of Berwick in T v Secretary of State for Home Department [1996] AC 742 at 786-787:

"A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public."

Later the Court said (at 60):

"In our view, the true principle is that stated by Lord Mustill in T at 764:
'The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the `incidence' theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle.'

…
All the authorities agree that, in addition to 'incidence', there is a further matter to be taken into account in ascertaining whether a particular crime is non-political. It is variously expressed in terms of weighing, proportionality or whether the crime is particularly atrocious. As the speeches in T reveal, all those formulations have their difficulties. But on one point the authorities are unanimous, ... It is that a crime will be non-political if it is calculated to cause death or injury indiscriminately to innocent persons not themselves involved in the political struggle. … To seek to achieve political ends by attacking, rather than political or government targets, uninvolved members of the public is to commit a crime which is non-political;".

In the present case the Tribunal is satisfied that the X party was at all relevant times engaged in a "political struggle" with the government of Bangladesh and that the serious crime of smuggling and distributing trafficable quantities of illicit drugs in which the applicant was directly involved from 1992 to1996 was committed in the course of that political struggle and would probably not have been committed but for that political struggle. In that sense the crime could be described as an incident of that political struggle. But, as the Full Court indicated in Singh (above) at 60, the fact that a crime is committed as an incident of a political struggle is not of itself sufficient to characterise that crime as a political crime. It is, as the Full Court said (at 61):
"necessary also … to consider whether the crime has characteristics which, notwithstanding 'incidence', require it to be regarded as non-political."

In the Tribunal's opinion the serious crime of illegally importing and distributing trafficable quantities of illicit drugs, of which the applicant was a co-perpetrator from 1992 to 1996, is, of its true nature and character, a non-political crime. That is because such a crime, of its nature, is likely to cause misery, suffering, injury or death indiscriminately to persons, not themselves involved in the relevant political struggle, who ultimately use those drugs: Singh (above) at 60. Furthermore, that crime may be regarded as so atrocious, and also so disproportionate (in terms of its injurious effects on uninvolved civilians) to the X party's political objectives, as not to warrant the description of a "political crime". Indeed, the Tribunal notes that the International Law Commission, for the purpose of preparing a Draft Code of Offences Against the Peace and Security of Mankind, has:

"identified the illicit traffic in narcotic drugs by an individual, on a large scale, whether within the confines of a State or in a transboundary context, as a crime against humanity".

(Weisman, op cit, p124)
The respondent, however, did not submit that the drug smuggling and distribution in which the applicant was involved constituted a crime against humanity, and the Tribunal makes no such finding. The Tribunal does find, however, that, as submitted by the respondent, the serious crime of smuggling and distributing trafficable quantities of illicit drugs in which the applicant was directly involved from 1992 to 1996 is a "non-political crime" within the meaning and for the purposes of para (b) of art 1F of the Refugees Convention.

Accordingly, the Tribunal finds that there are "serious reasons for considering" that the applicant has committed a "serious non-political crime" outside Australia prior to his admission to Australia, within the meaning and for the purposes of para (b) of art 1F of the Refugees Convention.
In the light of the findings made in paragraphs 50 and 51 above, it is not necessary for the Tribunal to determine whether the applicant's admitted involvement in the smuggling and distribution of illegal arms from 1992 to 1996 also constitutes a "serious non-political crime" within the meaning and for the purposes of para (b) of art 1F of the Refugees Convention.
Conclusion
It follows from the Tribunal's findings in paragraph 51 above that, in accordance with art 1F of the Refugees Convention, the provisions of that Convention do not apply to the applicant and that, accordingly, the applicant is not a person to whom Australia has protection obligations under that Convention. The applicant does not, therefore, satisfy one of the essential primary criteria for the grant of either a Subclass 785 (Temporary Protection) visa or a Subclass 866 (Protection) visa. In that circumstance, s65(1) of the Act provides that the applicant's application for the grant of a protection visa must be refused.
Decision
For the above reasons the Tribunal affirms the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed:
.................................(sgd S Railton)..............................
Associate
Date of Hearing  18 December 2000
Date of Decision  1 June 2001
Counsel for the Applicant        Mr J Gibson
Solicitor for the Applicant
Counsel for the Respondent    Mr P Macliver
Solicitor for the Respondent    Australian Government Solicitor

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'War' v Minister for Immigration and Multicultural Affairs [2001] AATA 475

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