WAV and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/388

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

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date14 June 2002
PlacePerth

Decision 1. The decision under review is set aside. 2. In lieu thereof it is decided that the applicant is not precluded from the provisions of the Refugees Convention by virtue of the provisions of Article IF of the Convention. 3. The applicant's application for a protection visa is remitted to the respondent for reconsideration in accordance with this decision.

[Sgd The Hon C R Wright QC]
Deputy President
CATCHWORDS
Refugees - Protection visa - applicant prison officer during Communist regime in Afghanistan - alleged to have committed crimes against humanity - whether there was "serious reason" for so considering.

W97/164 v Minister for Immigration and Multicultural Affairs - AATA 618

Refugees Convention 1951, Article IF.

REASONS FOR DECISION

14 June 2002 The Hon C R Wright QC., (Deputy President)

Introduction

The applicant is aged 39 years. He is an Afghan national of Tajik ethnicity. He commenced work at the Pul-e-Charkhi Prison in Kabul at the age of 18 years as a prison officer. Before this he had spent 2 years studying at a police academy in the Soviet Union. He worked at Pul-e-Charkhi Prison from 1981 until 1988 when, for disciplinary reasons he was demoted and sent to a war zone to assist in the conflict between the Communist administration and the Mujahideen rebels. He was injured and retired from the police service. Thereafter he was employed in a civilian job issuing identity cards. When the Taliban took over control in Afghanistan in 1992 he became fearful for his life and moved about within Afghanistan to avoid detection. It has been claimed that about 200 former police officers were killed by the Taliban in revenge and retribution for the perceived excesses of security forces during the Communist era.
With the assistance of people smugglers the applicant came to Australia via Pakistan, Malaysia and Indonesia arriving here on 8 March 2001. He was accompanied by his wife and children who were granted protection visas in June 2001.
The applicant's application for a protection visa was refused on 18 October 2001 on the ground that he was not a person to whom Australia owed protection obligations as he came within the exclusionary provisions of Article IF(a) of the Refugees Convention. He now seeks a review of that decision.
Legislative Framework
Under s29 of the Migration Act 1958 (Cth) ("the Act") the Minister may grant a visa to a non-citizen to travel to and enter or remain in Australia. Under s65(1) a visa may be granted only if the Minister is satisfied that the prescribed criteria for the visa have been satisfied.
The criteria for the grant of a protection (Class XA) visa subclasses 785 and 866 are set out in Parts 785 and 866 of Schedule to the Migration Regulations respectively and s36 of the Migration Act.
Subsection 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Australia is a party to the Refugees Convention and has protection obligations to people who are refugees within the terms of the Convention, subject to the exclusionary provision of other Articles of the Convention.
The term "refugee" is defined in Article 1A(2) of the Refugees Convention.
Article IF(a) provides for a person to be excluded from the provisions of the Refugees Convention if there are serious reasons for considering that (inter alia):
"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 crime

"Serious reasons for considering"

Article IF requires that there be "serious reasons for considering" that the person has committed the relevant crime or act. There is no obligation upon a receiving state to make a positive or concluded finding about the commission of the relevant crime or act. It is sufficient that there be strong evidence of the commission or one or other of the relevant crimes or acts. Further it is not necessary that every element of a crime must be capable of identification and particularised before the Article may be relied upon:
(See Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, 563 and Ovcheruk v Minister for Immigration and Ethnic Affairs (1998) 88 FCR 173)

"As Defined in International Instruments

The most recent and authoritative definition of crimes against humanity in international law is contained in a statute of the International Criminal Court adopted in Rome in July 1998 ("the Rome Statute"), Article 7 of which provides as follows (emphasis added):
"Article 7 Crimes against humanity
1.For the purposes of this Statute, "crimes against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a)Murder;
(b)Extermination;
(c)Enslavement;
(d)Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy and forced sterilisation or any other form of sexual violence of comparable gravity;
(h)persecution against an identified group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health.
2.For the purposes of paragraph 1:
(a)"attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a state or organisational policy to commit such attack."
Further, at Article 25 the Rome Statute provides as follows (emphasis added):
"In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime with the jurisdiction of the Court if that person:
(a)Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b)Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c)For the purpose of facilitating the commission of such a crime aids, abets or otherwise assists in its commission or its attempted commission including providing the means for its commission;
(d)In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i)Be made with the aim of furthering criminal activity or criminal purpose of the group where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii)Be made in the knowledge of the intention of the group to commit the crime."

The Applicant's Contentions

The applicant contends that:
The applicant joined as a member of the Youth wing of the Peoples Democratic Party of Afghanistan in 1981 and later became a full member of the Party then officially called the Vatan Party in 1990.

At the commencement of his employment at Pul-e-Charkhi Prison, the applicant worked for approximately 6 months as a prison guard. He was then transferred to the Information Section of the Administration of the Prison and worked for the remainder of his employment in that position in an Office immediately outside the Prison Gates.

The applicant's primary duties were to liase with the relatives of the sentenced prisoners and to inform the relatives concerning the prisoner's sentence, visits to the prisoner and other related matters.

The main part of Pul-e-Charkhi Prison was run as an ordinary prison by prison officers who were employed as police officers by the Ministry of the Interior. The inmates of this section of Pul-e-Charkhi Prison were sentenced prisoners who comprised both ordinary criminals and those convicted of terrorism, sabotage and other crimes against the Government (political prisoners).

There was a separate area within the main walls of Pul-e-Charkhi Prison, but which was kept entirely separate and with a guarded entrance accessible from the main prison, which was known as the KHAD Blocks 1 and 2. This portion of the Prison was run by the State Intelligence Service commonly known by its acronym KHAD and the ordinary prison administration had no authority over or access to this area. The KHAD area within the Prison walls, was not part of ordinary Prison in administrative or control terms.

So far as the applicant was aware KHAD had complete control of any prisoner taken into their charge and retained that control until the prisoner was sentenced to a term if imprisonment and was transferred into the ordinary prison system.

Conditions in Pul-e-Charkhi Prison were poor, principally by reason that the Prison was grossly over crowded. The poor conditions were as a result of the Civil War or terrorist campaign waged against the Government and the poverty of the Afghanistan.

So far as the applicant was aware executions, torture and other human rights abuses did not occur to prisoners serving their sentences in the ordinary prison system. If such events did occur within the ordinary prison system, they must have been isolated incidents because the applicant was not aware of them, either directly or through rumour.

The KHAD operated in secret. Whilst the applicant was working at Pul-e-Charkhi he heard of some stories and rumours of torture and other ill-treatment perpetrated by the KHAD. He was not aware of the extent of the KHAD's activities. The applicant feared the KHAD and feared coming to their adverse attention. The applicant also feared the Mujahideen who were seeking to overthrow the Government of Afghanistan by violence and terrorism.

The applicant, in the course of his employment as the Information Officer at the Prison, became aware of a limited number of sentences of execution, which were ordered by the Court and which were carried out, following an enquiry by the relatives that the prisoner had been executed. So far as the applicant was aware those prisoners who were due to be executed remained under the control of the KHAD who had the responsibility for carrying out the sentence of execution. The KHAD would then formally notify the section of the Prison Administration named the "Office for carrying out Sentences" and the applicant (who was employed in the Information Section) would then be able to obtain the information on enquiry.

The applicant had no direct contact with the KHAD and he did not participate in or facilitate any of their activities. The KHAD was not part of the Ministry of Interior and was entirely separate from it and was also entirely separate from the Police Force. The ordinary prison officers at Pul-e-Charkhi Prison had no access to that part of the Prison run by the KHAD and could not even approach KHAD for information. The only section that received information from the KHAD was the section known as the "Office for carrying out Sentences". Pursuant to his ordinary duties the applicant received information from time to time from the "Office for carrying out Sentences".
The Communist Government was the lawful Government of Afghanistan throughout the period that the applicant was employed at Pul-e-Charkhi Prison, and the Government was involved in a war of survival against the forces of the Mujahideen, who committed widespread acts of terrorism, murder and other crimes of violence. No crime of any sort was committed by the applicant in supporting and being in the employ of the lawful government of Afghanistan.

The applicant submitted that crimes against Humanity have been held to involve such acts as murder, extermination, enslavement, deportation and other inhumane acts (including, in particular, torture) committed against any civilian population, before or during any war. There must be a systemic pattern of persecution aimed at members of an identifiable race or group. Poor and unhygienic living conditions occurring within Pul-e-Charkhi Prison caused by poverty and overcrowding do not amount to Crimes against Humanity. In any event, nothing the applicant did whether directly or indirectly caused or contributed to these conditions.

There is no suggestion that the applicant has personally committed any Crimes against Humanity or indeed any Crimes. The respondent alleges an indirect liability as an accessory. The correct test for liability as an accessory, is whether there has been "personal and knowing participation" in the particular Crime against Humanity alleged to have been committed.

The country information shows that substantial human rights abuses were committed by the KHAD. However the KHAD operated under its own department, later its own Ministry, responsible only to the highest level of the Government in particular Dr Najibullah. As a relatively junior prison officer whose only promotion was by years of service, the applicant had no involvement whatsoever in the activities of KHAD.

The human rights abuses occurred in the KHAD section of the Pul-e-Charkhi Prison. This area was entirely under the control of KHAD and was not even thought as part of the ordinary Prison by the applicant. There was no participation by the applicant in those crimes committed by the KHAD.

The applicant properly carried out his lawful duties as a Prison Officer. Those duties primarily involved the provision of information between prisoners and their relatives and the applicant's activities were beneficial to the prisoners and to their relatives. To pass on information concerning the execution of a prisoner by KHAD or by Court decree does not in any way involve the applicant in that execution.

In any event, the applicant was not involved in the execution of any prisoner, but rather simply passed on information concerning such execution after the event, a Court ordered death penalty or execution for crimes such as murder, terrorism, treason or other violent activity designed to overthrow the Government. This could not in itself amount to a crime against humanity. The death penalty for such violent crimes remains an acceptable and recognised sentence in many countries including the USA.

It was also submitted that the delegate who made the adverse determination against the applicant relied on extensive Country Information about human rights abuses in Afghanistan, but that information generally refers to the KHAD and does not appear to refer to ordinary police officers and prison officers of the Ministry of the Interior. Whilst not all the Country Information contained in section 37 documents, when referring to human right abuses, clearly distinguishes between the ordinary Prison of Pul-e-Charkhi run by the Ministry of the Interior and the separate KHAD area, there is sufficient information to show that the applicant is correct to claim that the two areas of Pul-e-Charkhi Prison were indeed separate and were separately controlled. See pages 78m, 79 and 83-85 of the section 37 documents. See also extract from CIS 12542 (Amnesty international Reports of Torture and Long Term Detention without Trial) quoted along with extensive other Country Information at par 12 in "VAB" v MIMA (2001) AATA 990. Any general statement about conditions in Pul-e-Charkhi Prison, which does not distinguish between the 2 separate areas, is unhelpful in determining the conditions in the main part of the Prison."
The Respondent's Contentions
The respondent contends that the applicant is a person to whom Article IF(a) of the Convention applies and, consequently, is a person to whom Australia does not have protection obligations:
Relying on independent information relating to the conditions of the Pul-e-Charkhi prison the respondent contends that the acts which the communist regime, of which the applicant was a part, committed in Pul-e-Charkhi prison in the period that the applicant was employed by the facility come within the meaning of the terms "crimes against humanity" under Article 7 of the Rome Statute.

The respondent contends that the range of acts which the Communist Regime are known to have committed in the Pul-e-Charkhi Prison in relation to the killing and torture of political prisoners were committed as part of a widespread or systematic attack on the civilian population of Afghanistan.
The respondent concedes that the applicant has not admitted to personal participation in the torture or execution of political prisoners at the Pul-e-Charkhi prison during the time that he was employed there. However, the respondent submits that given:

The applicant's length of service in the prison;
The type of position which he claims to have held;
The period of time spent in the organisation;
His rank;
The nature of the organisation that employed him; and
The fact that he was voluntarily a member of the PDPA.

The applicant would have been well aware of the documented human rights violations, torture and murder and appalling prison conditions within the Pul-e-Charkhi prison.
The respondent relies on the following factors as indicating that there are serious reasons for considering that the applicant was complicit in crimes against humanity committed at the Pul-e-Charkhi prison during the period he was employed there:

(a)Method of Recruitment: the applicant admitted that he had joined the PDPA in 1980, and that his brothers and family were also members.   He remained a member until 1992/93, and there is nothing to suggest that his membership was other than voluntary.
(b)Nature of the organisation: there is credible and ample country information that the communist regime in Afghanistan of which the applicant was a member and an employee was involved in serious and extensive human rights violations.
(c)Rank: during the course of his employment the applicant was promoted on a number of occasions achieving a senior non commissioned rank or junior commissioned officer rank.   This indicates that the applicant was a trusted and reliable official of the regime and held sufficient tank to be aware of decisions and participate in implementing those decisions.   Further the duties of the applicant reveal an important administrative function in relation to the execution of political prisoners.
(d)Knowledge of atrocities:   the respondent submitted that the applicant evaded answering questions about his knowledge of atrocities committed within the prison, and claimed that the conditions in the prison were good, and that the prison was run by police and not by KHAD.   The respondent contends that these claims have been contradicted by independent country information. The applicant was aware of the executions of political prisoners, and the respondent submits that the applicant, who had emphasised that many of the executions were given after political prisoners had confessed, would have been aware of the way in which those confessions were obtained through torture.

(e)Opportunity to leave the organisation: the applicant remained employed at the prison for eight years, he did not seek to leave the prison because of human rights abuses, but instead obtained four promotions over this period. He only left his work in the prison involuntarily when he was demoted and transferred when the applicant was injured in 1988. He was able to secure alternative employment with the government dealing with identity cards.

The Documentary Evidence Adduced at the Tribunal Hearing

In addition to the section 37 (or "T") documents which were tendered as Exhibit "A", the following documents were taken in as exhibits during the hearing:
Affidavit of Gregory Stuart McNeilly who interviewed the applicant on 21 March 2001. The affidavit verified and authenticated notes made by Mr McNeilly at the interview. This was Exhibit "B". Mr McNeilly was not required for cross-examination.
A statement by Gulalai (surname deleted), a sister of the applicant. This was Exhibit "C". This witness was not required for cross-examination.
A copy of the Auscript Transcript (29 pages) of an interview between the Minister's delegate and the applicant at the Curtin Immigration Reception and Processing Centre on 8 April 2001. This was Exhibit "D".
An affidavit by Shanen Wheatley, an Australian citizen, originally from Iran, a NAATI certified level 3 Interpreter, skilled in the Persian Language and with knowledge of Dari, the language spoken by the applicant. Ms Wheatley's affidavit identifies a number of errors made by the interpreter who was present at the applicant's interview both in translating questions asked by the delegate and in translating the applicant's answers to those questions. She also identified a number of transcription errors. Many of these difficulties seem to have resulted from persons participating in the interview talking across each other.
Some, if not most of the translation errors identified by Ms Wheatly were of little consequence in the overall scheme of things, but in some areas which the delegate later relied on as critical in making his assessment and adverse decision against the applicant, the meaning of the applicant's story became significantly distorted and, on further analysis, it is plain that his recorded responses cannot be relied on to support some of the conclusions reached by the delegate. Ms Wheatley was not cross-examined. Her affidavit was Exhibit "E".
The applicant's proof of evidence was tendered during his oral evidence. It became Exhibit "H". Annexures to that Exhibit were tendered separately and became Exhibit "F" (Annexures A, B, C, E, F and G). Annexure D became Exhibit "I".

The Oral Evidence

The applicant's wife gave sworn oral evidence during the course of which her proof of evidence was tendered as Exhibit "J". She was cross-examined.
The only witness to give oral evidence other than the applicant and his wife was the Tribunal interpreter, Fayeda Maarya Wasiqe, who gave evidence of complaints she had heard, that the interpreter who had translated a statement by the applicant for his solicitors, Macpherson and Kelley, was prone to making errors. She said that the person should not be interpreting "legal matters". However I have no real basis for accepting this evidence as an indictment of the other interpreter's accuracy. The applicant made a spirited denial that he said many of the things recorded in the translated statement at page 217 of the T documents (T18), but his protestations were hardly convincing. Furthermore, a late affidavit by Martin Thomas Kennedy, sworn and filed by leave on behalf of the respondent after the Tribunal hearing had concluded confirmed that the original interpreter (who should not, in my opinion, be named in these reasons) was, at the relevant time, accredited as a para-professional level 2 interpreter by the National Accreditation Authority for Translators and Interpreters (NAATI).
The applicant's criticism of the interpreter and his attempted explanation of statements which have been attributed to him in the challenged document (T18) may have carried more weight if, during his oral evidence, he had not made intemperate blanket allegations of bias and incompetence against all interpreters who have been present to translate during the course of his interviews or who have translated documents on his behalf during the course of the Departmental investigation into his status.
I find that the applicant did in fact make the statements attributed to him in T18 despite his vigorous denials.
It was not contested at the Tribunal hearing that KHAD was an organisation forming part of the structure of the Communist government in Afghanistan involved in secret police activities and systematic brutal treatment and murder of individuals suspected of being hostile to the regime.
Mr Christie, counsel for the applicant said "The applicant is quite happy to accept that a considerable part of KHAD's activities in Afghanistan would come within that definition" (i.e. of crimes against humanity). This concession was properly made in my opinion. There is no need for me to go into detail about KHAD's methods and activities. Its victims probably numbered in the tens of thousands. Two of the applicant's brothers were members of the KHAD organisation. If it could be shown that the applicant was also a member, I would have no hesitation in concluding that he was an accomplice to crimes against humanity. As Mathews J said in W97/164 v MIMA (1998) AATA 618 at paragraph 69:
"I seems apparent, that where an organisation is principally directed to a limited brutal purpose, such as a secret police activity, mere membership may, by necessity involve personal and knowing participation in persecutorial acts".
The applicant was a police officer at Pul-e-Charkhi. As already mentioned, an essential part of his case was that he had no participation in the KHAD activities which were carried out in Blocks 1 and 2, and that he had no direct, or even indirect, involvement in punishing or executing prisoners who came into the ordinary civilian part of the gaol where he was stationed.
The applicant's father was a wealthy doctor who embraced the philosophies of the PDPA (the Peoples Democratic Party of Afghanistan - the Afghanistan Communist Party). Not surprisingly the applicant and his brothers were also members of the PDPA. However criminal liability does not spring directly from family association or political allegiance, although, in appropriate circumstances, these may be factors to be considered in assessing the nature and extent of involvement in alleged violence.
In his evidence-in-chief, contained in Exhibit "H", the applicant described his work at Pul-e-Charkhi prison in the following terms:
"When I returned to Kabul from the Soviet Union from Russia I was required to work for the Ministry of the Interior and they placed me at the Pul-e-Charkhi Prison.   I was assigned there.   I did not have a choice of where I worked.   I went where the government sent me.   By the time that I returned to Kabul, the civil war had already started, no new school leavers were being taken at Kabul University.    The 2 choices open to me were to join the government service in a civilian role or to do 2 years miliary service.   However, I was expected to join the Police Force having studied at the Policy Academy in Tashkent.   I have the booklet comprising my Police Identity Card that was issued to me in 1985 which shows my employment as Police Officer by the Ministry for the Interior.   I annexe a copy of the Policy Identity Card marked "C".
Pul-e-Charkhi is a big prison and it would take you about half an hour to walk around the outside of it.    This was the only official prison in Kabul.   There are other smaller lockups and detention centres attached to the Courts in Kabul.   There are other prisons in Afghanistan; each city has its own prison.   I have never seen those other prisons, but I think that the Pul-e-Charkhi Prison was the biggest prison in Afghanistan.
I wore a grey coloured uniform with shoulder buttons.   The prisoners did not wear any uniform.
The ordinary Prison where I worked was essentially divided into 2 parts there was area where there were ordinary criminals were kept and another area for the political prisoners – these were principally those who had been convicted of violent crimes against the government, i.e. terrorists and saboteurs.
There was another part or area of Pul-e-Charkhi, which was physically part of the Prison, but was run entirely separately and it was not regarded as part of the ordinary Prison and that was the area that was just called the KHAD Blocks 1 and 2.   It was controlled entirely by the KHAD and the ordinary prison staff had no access to it or any part of it.   Prisoners, particularly the political prisoners, came to the ordinary Prison after they had been interrogated by KHAD and had been sentenced.
So far as I am aware, the prisoners who came to the Prison from the KHAD were not usually further interrogated once they were serving a prison sentence.   I am aware that some prisoners held by the KHAD were sentenced to death.    I believed then and I still believe that these prisoners had committed murder or other serious crimes against the Government. I believe that the executions of these prisoners were either carried out within the KHAD section of the Prison or outside the Prison altogether.   I was not aware of any executions carried out within the ordinary area of the Prison or by ordinary prison officers.   Those who were given death sentences were kept in the KHAD area and were not brought into the ordinary prison population.   I believe that the fact of the sentence of execution and the fact that the execution had been carried out was recorded by the official Prison Administration (in the particular section of the Prison Administration known as the "Office for carrying out Orders") on information provided to it by the KHAD, but I have no direct or specific knowledge of this, it was not something that I was involved.
I became aware of some of the executions that occurred, because I made enquiries on the part of the families of some of these prisoners.   However, I was only aware of a few executions during the period of about 7 or 8 years that I worked at the Prison.   The number of executions I heard of was only about 50 or 55 in the 7 years that I worked at Pul-e-Charkhi Prison.   Those are the ones that I had made enquiries about on behalf of relatives and I had received confirmation in response to my enquiries that a particular prisoner had been executed.   The enquiries that I made were to the "Office of carrying out Orders".   It had all the information concerning all the prisoners in the ordinary Prison.   I believe that this section also had information as to the names and official records of the prisoners who went into and out of the KHAD area, but had no further information about what happened in the KHAD area. So far as I am aware, when the KHAD had completed its investigation, the person held would be released by the KHAD, or taken to Court and sentenced, either to imprisonment or to be executed.   If the prisoner was sentenced to execution, the prisoner would remain within the KHAD area and the sentence would be carried out by the KHAD, but the fact of the execution would be recorded by the ordinary Prison Administration in the "Office of carrying out Orders".   I am speaking of my general understanding; I do not have direct knowledge of these matters.
The initial enquiry I would receive from a relative would normally be formal and in writing signing by an official of the Ministry of the Interior.   This would be an authority to enable me to provide information to the particular relative concerning the prisoner.   The enquiry would usually concern a prisoner in the main part of the Prison, as they were prisoners under the charge of the Ministry of the interior.   Occasionally I would get an enquiry about a prisoner who had been executed.   If enquiries were made by relatives to me, I would go to the "Office of carrying out Orders" to enquire about the prisoner.   If the prisoner had been sentenced either to imprisonment (or on the few occasions when this had occurred had been executed, the officials of the "Office of carrying out Orders" would usually inform me in writing as to the sentence.   In the same way I would often also deal with the Red Cross in relation to specific prisoners in the main part of the Prison.   So far as I am aware and can recall the particular interest of the Red Cross was in respect of prisoners who didn't have relatives to visit or assist them. In circumstances where the prisoner were not held at the main part of the Prison or there was no formal record of the execution, the officials of the "Office of carrying our Orders" would state that they had no information about the prisoner.   There was usually no direct confirmation that the prisoner was held by the KHAD.   At most there was an indication that the relatives should speak to the KHAD direct. Often the KHAD did have contact with the relatives; for instance the relatives might be required to provide additional or clean clothing.   If relatives came to me about a missing person and it seemed to likely that the person was held by the KHAD, I would usually suggest that the relatives speak to the KHAD direct.
If the prisoner was by now in the ordinary prison, I would be able to confirm that fact in writing in response to the formal enquiry.   I could usually advise when a visit might be able to be arranged.   Sometimes I could alter the general visiting schedules, in order to arrange for a visit to fit in with the needs of the relatives, who might be visiting from a village distant to Kabul.   I would also make enquiries on behalf of the families about the completion of a sentence.   For instance, a relative might come to me and say that a prisoner had received a sentence of 5 years and was still not released.   I would make enquiries and the response might be for instance that the prisoner had received an extra 6 months for fighting in the Prison and I would pass this information on to the family.
I have recently been told by my lawyer that there is Country Information relating to Afghanistan which puts the number of executions in the KHAD section of Pul-e-Charkhi Prison at thousands or tens of thousands.   I was not aware of this.
I have prepared and refer to the attached sketch map of Pul-e-Charkhi Prison.   I annexe to this Statement a copy of this sketch map marked "D".
The areas on the map marked with a 1 are security towers.   There were 7 of them on the outside of the entire prison complex, including KHAD area.   The towers were 10 - 12 m high.   They contained a guard who kept a look out for escapees.
A wall made of stone, which was about 10 m high, surrounds the Prison complex. There was a road (marked 2) outside prison, which was only used by vehicles coming into the prison.
The building marked 3 was for central heating.   The two areas marked 4 outside the entrance are covered visitors waiting areas.   The building marked 5 was a canteen.
The Building marked 9 was that part of the Prison where the political prisoners were held and building marked 10 was that part of the Prison where the ordinary criminal prisoners were held.
When I first started at the Prison, I worked in the area marked 10, i.e. the building where the criminals were held.   I worked there for 6 months.   My duties were to observe and supervise the prisoners; each level had a person assigned to ensure that they did not fight with each other.   There were 3 or 4 of us in charge of a section of the Prison with about 200 prisoners.   I was young and quite small in stature, when I started to work at the Prison.   I felt that I couldn't properly control the majority of the prisoners, most of whom were older and larger than I was.   After about 6 months I asked for a transfer to the administrative area.
After that, I was transferred to work in a small building outside the entrance, which I have marked on the map with a 6. This was where visitors would come to find out information about the prisoners.   I worked there with on or two other people.
During the period I was there, about 7 years, my position did not change.   I did receive promotions every 2nd year, but this was automatic on service.   You would receive a "star" to put on your shoulder plates and I would have an increase in my salary – between 5 – 10 %, but my actual position remained the same.   As I was in the same liaison position for so long, I became well known to many of the visitors to the Prison, most of whom were families of the prisoners, but there were also Government officials.   People got to know me – they would even come to my house to ask me questions and stop me in the street in the city.   I was the person that the ordinary public dealt with.
I was able to give people information about the sentences of the people who were located both in the political and the criminal sections of the Prison.
The area marked with a 7 is an open area and to the left is a kitchen and to the right, marked with an 8, is the entrance to the area called "KHAD" – there were 2 blocks there.   This is where people, who had been arrested, were interrogated by the KHAD to find out whether they were guilty or not.
The area was sealed off with a large metal grate.   It was usually guarded by 2 KHAD guards.   They had different uniforms to us – they wore Army clothes that were light brown in colour.   The people who worked inside KHAD appeared to wear ordinary clothes – no uniform.
Prisoners were brought in by vehicles belonging to the KHAD. The vehicles were generally closed and I did not see the prisoners.
Block 1 and 2 in KHAD were separate from the ordinary prison areas.   No police from the ordinary prison were allowed to enter the KHAD area.
Blocks 1 and 2 were 4 storey buildings.   The people that were there were not allowed visitors.   They were not allowed visitors, until they were released or moved to the other part of the prison after their sentence. KHAD officials would sometimes bring out the prisoners' clothes for the family outside to clean and return. But so far as I was aware no families were allowed to visit the prisoner, whilst he was held by KHAD.
If people wanted to know about their relatives and they suspected that the relatives were in Blocks 1 or 2, they would sometimes ask me and I would say that I didn't know that they would have to ask the KHAD.   I did not have access to the details of who was kept there.   Someone from the KHAD would come out regularly every day, but if it was needed I could contact someone from the "Office of carrying our Orders" and they might contact the KHAD, who might come out to speak to the relatives or to collect clothing etc.
If people were to be executed they would be kept in Blocks 1 or 2.   If family members asked me about it, I would have to ask the "Office of carrying our Orders".   The KHAD would notify that office of the execution, after it had been carried out.   I would then get a response to my enquiry and would be able to officially notify the family.   The family would often know by then that they had a relative in Blocks 1 or 2, because they would have been collecting their clothes for washing.   When they were not given any more clothes, they would become worried.   I would then have to find out for them whether their relative had been sentenced to a prison term or had been executed.
If they became sentenced prisoners in the ordinary Prison, I could then tell their relatives what the sentence was and check when visits would be allowed.
I don't know first hand what happened in KHAD Blocks 1 and 2, because I was not allowed in there.   But we were afraid of these blocks and what happened there.   I heard about what went on from prisoners and families.   Even some of my friends have been in there as prisoners.   I heard that they interrogated people for long periods and used to beat them and torture them.   I did not want to ask the KHAD about it – no one did; we were too afraid to ask about if in case it got us into trouble.
The area marked 11 is an industrial area, carpentry, washing etc.   Prisoners used to work in there.
The area marked with a 9 is a political prison. It had 4 levels and was divided into different blocks with areas (marked with a ã ) for exercise and for visits between the blocks of cells.

Administration and records (area marked (a))
Male prisoners (called ZONE) this was known as "Block 3)
Female prisoners (area marked (b))
Children kept in Block 6 separate from adults
Other male prisoners in Block 5
There was additional administration in the area marked (f) and the officer in charge of Blocks 5 and 6 was located in this area
Area marked (g) was empty
Prisoners used to be able to work at the area marked with the number 11.   They also did exercise and watched TV.   The prison had a library also and they could read books.
Food was brought from the kitchen area and prisoners used to eat in the area they were staying in.
The conditions in the section of the Prison for political prisoners were poor.   It was overcrowded.   There were between 4,000 – 5,000 people held in there.   There were about 200 people per level.   They were all held in dormitory style areas and did not have separate rooms.   There were not enough toilet facilities for all of the people held there.
I agree that the standard of the prison was not one that was acceptable by international standards and it was not the way people should have been kept.   It was badly overcrowded.
The area marked with the number 10 was the area where people, who had committed crimes such as, fraud, burglary, drugs etc, were kept.   There were about 3000 – 4000 people kept there.    The conditions were slightly better there than for the political prisoners.   The criminal prisoners were generally kept in rooms with about 2 – 3 people.   They were allowed visitors every week.
The Red Cross and the United Nations used to visit the Prison.   I would be the person responsible for arranging the times to visit.   They would be allowed to visit both the political and the criminal sections of the ordinary Prison, but were not allowed to go in KHAD Blocks 1 and 2.
It was my duty and responsibility to help the prisoners and to help the friends and families of those who were in the Prison.   I was basically an information officer and liaison officer.   One of my duties was to arrange appointments between the family and the prisoners, particularly where the family had to travel, I would write letters and answer letters and also find out which prisoner was in which block and which cell in the Prison.
I would help families come and visit, when I had free time I would teach the prisoners.   The branch I was working in was administrative not criminal.   If an appointment changed or needed to be postponed or changed, I would send someone from my office to go and tell the family.   I was in charge of my particular section.   All of these things are important because it is important to let the family and prisoners know what was going on.
Whilst conditions in the Prison were pretty harsh, it was part of my job to make the best of things for the prisoners and for their families.   The Prisoners were allowed to exercise and even play soccer and other matches.   A government officer in the Ministry for Sport would attend from time to time at the prison to organise soccer and volleyball matches and weight-lifting competitions between the prisoners.
The delegate in his decision states that I could have left my position at the Prison if I wanted to.   However I did not consider that I should quit my employment, as my position was one where I felt that, by giving information to relatives, I was helping people.   I was not ashamed of what I did.   In any event I couldn't just change my job, in Afghanistan, at that time you did the jobs the Government chose for you."

The applicant then went on to describe the circumstances in which his employment at Pul-e-Charkhi was terminated and he subsequently fled to Australia. There is no need to explore that evidence, save to say, as the applicant's counsel submitted, that if indeed he was demoted and subsequently assigned to an administrative position at a centre away from Kabul where armed conflict was occurring, this would tend to show that he did not hold a particularly exalted rank in the police force, as the offence for which he was punished was relatively trivial. Against this, counsel for the respondent urged that, though the offence was not particularly serious, it was committed on a night when the prison was visited by a very high ranking official who was very displeased to find that the applicant and several of his police colleagues were committing the same offence (being absent without leave) at the same time. Both these arguments have superficial merit, but do not really assist me in making a confident assessment of the applicant's seniority within the prison administration.
In paragraphs 83 - 90 of his statement, the applicant continued his narrative, firstly, proffering the following explanation of some of the documentary evidence.   He said:
"I was interviewed 2 or 3 days after I arrived in Australia.   I have had read to me the extracts from the Interviewing Officers notes of that interview which appear at pages 158 and 160 of the section 37 documents.   What is stated there appears to be somewhat confused and I am sure it does not represent what I actually said.   It certainly does not represent the true position.   I told the Interviewing Officer about my job at the prison.   I believe that I said that I was in charge of Information and liaison with the prisoners' relatives.   I may have said that I separated prisoners according to religious faction and age.   This was one of my responsibilities when I was employed as a guard inside the prison initially, that is for the first 6 months.   I also on occasions gave advice concerning the separation of prisoners according to their status and the nature of their crimes, when the officers who made those decisions were inexperienced and they sometimes sought my advice.   Because I had studied in the Soviet Union my advice was respected by other officers.   I don't believe that I said I asked prisoners if they had been interrogated illegally or that I looked after prisoners who had been sentenced to death.   I was not involved in such matters.   I believe that I was attempting to explain that the prison officers' duty was to take the prisoners who had been sentenced and that the sentencing was the responsibility of the KHAD and the Court.   I was talking about the prisoners who had been sentenced and who served their sentences at Pul-e-Charkhi Prison. I also tried to explain that those who were sentenced to death were not dealt with in the ordinary Prison, that it was not the prison officers' responsibility.   I do not believe that I ever said, "it was the job of my office to be sure that the command had been carried out".   This is completely wrong and is inconsistent with the statement that follows immediately after it.    In relation to executions, it was my job to find out if they had occurred and to formally notify the relatives who enquired. I also refer to the interview at p170 what I am attempting to state there is that, as prison officers we were responsible for implementing the prison sentence, we were not responsible for the sentence being imposed.
I did not take orders directly from the KHAD.   I do not know the extent, if at all, that the KHAD may have given orders to the high ranking prison officers.   I believe that there was a system of recording and prisoners in and out of the prison including the KHAD area and that involved the "Office for carrying out Orders" would be notified of those who were sentenced to death as a matter of official record there was also the handover of prisoners from the KHAD when they received a prison sentence and became the responsibility of the Prison.   I had no direct contact with the KHAD at all, so far as I was aware the office with any official contact with KHAD was the "Office for carrying out Orders".   I was not part of their department but dealt with them on an official basis when I needed information to pass on to a relative.
I said that I was never a member of the KHAD, I also did not work with them or for them. I worked with completely different Ministry, the Ministry for the Interior.   Ordinary police officers did not regard the KHAD officers as colleagues; they feared and avoided them.
There is also a statement signed by me at page 217 of the Section 37 documents. I don't believe that the statement that I held a "high position(s) with the Najibulla Government" is an accurate reflection of what I intended to state.   I had already stated that I was a police officer and my documents showed that I was a police officer and my relatively low rank.   I meant only that my family was influential.
The statement at page 217 goes on to say "I was working in the office responsible for the execution of political prisoners … and at times I was required to sign as a policeman and a witness that the orders had been carried out".   I do not know how this statement arose.   I do not believe that it could have been translated to me in that form by the interpreter.   It is not a true and accurate statement of any of my duties at Pul-e-Charkhi Prison.   I do not even know of any office responsible for the execution of political prisoners.   The only organisations that I believed had that responsibility were the KHAD and the Court.    I did not work for either.   I believe from the context of the statement that what I was trying to say was that I had the responsibility of formally notifying relatives of a prisoner in writing that he had been executed.   I further believe that I made it clear that I was not involved in or responsible for the executions.
When I arrived in Australia the interviewing officers claimed by reference to an interpreter that I was from Pakistan and that I should admit it as it would quickly established.   My language analysis subsequently confirmed my identity from Afghanistan.   The Delegate who interviewed me and made my primary decision then claimed that an interpreter had told him that my Police Identity Booklet showed that I was a member of KHAD.   This is also demonstrably untrue.   I do not know whether the Delegate deliberately lied to me or whether it was misinterpreted to him, but any honest interpreter from Afghanistan would know that this card has nothing to do with KHAD.   I am also aware from discussions with my current Solicitor and interpreter that the transcript of my interview with the Delegate contains many errors not only in relation to the transcript, but also vital errors of interpretation so that the Delegate's questions were not accurately interpreted to me and my answers were also not accurately interpreted for the Delegate.
When I was interviewed by the police here in Australia they asked me, "How could I not know?" they said "You have closed your eyes and blocked your ears".   They did not specify and I do not know specifically to what they were referring.   However I believe that they were referring to human rights abuses committed by the KHAD during the Communist Government of Afghanistan.   But it was not my responsibility or duty.   The Communist Government was engaged in a war against Mujahideen terrorists, I saw the Government as protecting me and my family from terrorists and my fears were realised when the Government eventually lost control of Kabul to the Mujahideen and the death and destruction became so much worse.   During the period of the Mujahideen uprising against the Government and of Kabul against those who were attempting to overthrow the Government.   The KHAD was a secret and frightening organisation.   As previously stated, I had friends who were interrogated and very badly treated by the KHAD.   However, those who were sentenced and executed, were, so far as I knew and believed, people who had committed violent crimes in their attempt to overthrow the Government.   I could not question or make any enquiry as to what the KHAD did. (Equally, I did not later question or oppose what the Mujahideen did, when they had the power of life and death over the people of Kabul).   In either case, it was far too dangerous to bring attention to yourself and I had no wish to know.   We lived in fear of the KHAD, but we lived in greater fear of the Mujahideen and later the Taliban.   Two of my brothers were in the KHAD.   They didn't talk about their work and I didn't question them.
During the period of the Communist Government in Afghanistan, I believe that I was employed by the lawful Government of Afghanistan in a necessary and lawful position as a prison officer and that I appropriately and compassionately performed my duties in difficult circumstances."
The strength of the respondent's case is derived from statements attributed to the applicant after he arrived in Australia in which he described his duties at Pul-e-Charkhi. When he first arrived and was interviewed it may be assumed that he was anxious to demonstrate to the Department that he had a genuine and soundly based fear of persecution or physical harm or death if he was returned to Afghanistan. In such circumstances it is not difficult to surmise that a protection visa applicant may tend to exaggerate his role in the regime, membership of which has allegedly produced such fear. If he does so he may be jumping out of the frying pan into the fire by describing activities and events which constitute disentitling conduct under Article IF of the Convention without realising the implications of doing so.
However during the Tribunal hearing the applicant did not meet the respondent's allegations by suggesting that he had concocted any such exaggerated description of his own importance. Rather, he denied that he had made the damaging statements attributed to him and, as I have already said, he blamed the interpreter's for wrongly recording or translating his story.
In the disputed passage of document T18, (a statement prepared with the assistance of a registered migration agent as well as the maligned interpreter), the applicant said this:
"Why I left my country":
Before the Mujahideen came into power, at the time of Najib, my father, my brothers and I were members of the Democratic Political Party, a communist party. We were against Islamists and were politically active. We all held high positions within the Najibulla government. At the time of Najib I was working in the office responsible for the execution of political prisoners, however I was not directly involved in the executions. The orders for execution from the Revolutionary Court would come to the office and at times I was required to sign as a policeman and a witness that the orders had been carried out.
Having worked in the Pul-e-Charkhi prison and the office responsible for the execution of political prisoners I became well known, and so since the Taliban came into power myself and my family have been under their constant surveillance.
In 1996, knowing that I was a member of the Democratic Political Party, I was detained by the Taliban and taken to their base at Bagh-e-Babur. There the Taliban beat me. After one week some of the Taliban who I knew from my area, Khair Khana, spoke to the Taliban from Bagh-e-Babur. An arrangement was made that I pay three million Afghani in order to be released. Subsequently, my family and I were forced to relocate within Khair Khana because we were afraid that the Taliban would come to detain me again. After relocating I found out that the Taliban had confiscated my home in Micro Royan, increasing my fear for my life."
That document is signed by the applicant and I am satisfied that he made these statements and authorised their use to support his protection visa application. His claim to the contrary involves the proposition that the interpreter deliberately misinterpreted his original words, caused the erroneous version to be incorporated in the typed document, then read the same back to the applicant in the correct version according to his instructions and thus tricked him into signing an untrue document. I reject this.
The applicant also made a number of other statements consistent with what he had said in the passage just quoted from, p217 of the T documents.
Also in T18 (at p158) he is noted as saying "I was in charge person of information and inspection of the Pul-e-Charkhi jail. My job was to look after prisoners especially political prisoners. Also I was involved not to put different Islamic factions in the one cell and to split up prisoners because of age. To ask prisoners if they had been interrogated illegally by other officers. Also I was looking after prisoners who were sentenced to death".
The applicant explained that in this passage he was speaking about his role during the first six months of his employment, but I think this is unlikely. The role described does not appear to me to be that which would be entrusted to an 18 year old novice and it was not limited as to duration in the applicant's initial description.
At page 159 he said "My job was actually looking after political prisoners. I was carrying [sic] the command from the High Court of Afghanistan".
At page 160 he was asked "How do you define `in charge'", to which he replied "I was in charge of political prisoners. Every block has local commander. My job was to order local commander not to put prisoners from the same political group in one cell and to separate prisoners due to their sentence duration e.g. if we had commander of 1000 people we would put him in a different cell so that he was away from those accused of minor crime".
He was then asked "How did you implement the commands of KHAD?" His response was "As said my duties were to take command from KHAD and the Special Military High Court. They were responsible for sentencing prisoners when papers completed they sent prisoners to us. My job was to look after them e.g. person sentenced to death there was another group to carry [sic] the command. Not my office. When the execution carried out, then it was the job of my office to be sure that the command had been carried out". There is then a note "He" (presumably the applicant) "wasn't responsible".
At page 161 he said "I wasn't a member of KHAD but we used to work together with some of those people".
At page 170 in Part C in a passage signed by the applicant, he said in answer to a question "Why did you leave your country of Nationality (Country of Residence)?" (inter alia) " I was in charge of inspection and info [indecipherable] … we were responsible for implementation of commands. When … took power in Afghanistan in 1992 they massacred around 200 police man in jail. Because I was manager of [indecipherable] almost everybody knew me. I tried to hide from public eye...".
The applicant steadfastly maintained during his cross-examination at the hearing that his role as jailer was to ensure that prisoners did not fight among themselves and were appropriately segregated according to age and religion. He said he had no role in questioning them, administering torture or actually being present at executions. He was at pains to emphasise that his function was largely a benevolent one, acting as go between for prisoners and their families within the restrictive confines of the rules which applied. He pointed out that he was only one member of a prison staff of 300. It would be fair to say that few, if any, inconsistencies were demonstrated between his evidence in chief and what he said in cross-examination.
I see nothing of particular significance as to the applicant's seniority or involvement in the administration of Pul-e-Charkhi prison in the transcript of his interview of 8 April 2001. His account there does not differ substantially from that which he gave in Exhibit "H", although at the commencement of the passage designated SW1 in Ms Wheatley's affidavit, and in several places in SW2 in the same affidavit, it is clear that the interpreter has apparently gratuitously added material to the applicant's actual reply which could be interpreted as strengthening the respondent's case against him.

There was considerable debate during the hearing as to the applicant's rank at the Pul-e-Charkhi prison. He agreed he was promoted 4 times, but said that this was essentially a matter of salary increase rather than an increase in responsibility. It was suggested to him on the basis of the translation of his police identification document, that he reached the rank of third lieutenant. However the evidence was unclear whether his actual rank was equivalent to such a ranking in one of the western armed forces or other para-military groups.
In spite of his statements in T18 suggesting that he held a senior rank in the command structure at Pul-e-Charkhi, I entertain some doubt as to this. I am sure that we did not hear the full story as to the applicant's duties and rank and I must say that his attempt to minimise his importance did not strike me as being the product of candour and honesty.
Nonetheless, he was employed as a police office for some 8 years. He had a formal training in the Soviet Union which I am sure would not have been provided to the average applicant for police status. He is obviously intelligent and I would be surprised if a man of his obvious talents did not achieve a fairly rapid rise in power and influence in the police hierarchy. His family involvement with the PDPA would have been an obvious advantage. On the other hand he was only 23 or 24 years old when he ceased working at Pul-e-Charkhi.
Conclusion
There is no direct evidence of the applicant's involvement in illegal activity of any kind, let alone crimes against humanity. I do not think his statements during interview provide a secure basis for inferring that he was so involved. Nor do I think that they provide "serious reason for considering" that he was. Some of the country information suggests that the ordinary police force was involved with brutal and oppressive conduct against enemies of the state similar to that perpetrated by KHAD, but without more this kind of material does little to enhance the case against the applicant. The point was well made, I think, that the appalling conditions at the prison were not so much part of a systematic process of degradation of prisoners involving the applicant and others, but were more probably the product of the generally primitive conditions one might expect in an impoverished country after years of war and internecine bloodshed.
In Exhibit "K" information from the Afghanistan Information Centre says (inter alia):
"The civilian police force (Saradoi) in Kabul did indeed engage in the surveillance and apprehension of suspect mijideen [sic] activists (and other supporters) on behalf of KHAD. They arrested them, tortured them, and delivered them to KHAD and sometimes took them to Pul-e-Charkhi (and other) prisons. They were all part of the same regime".
This is as close as the evidence gets to involving the applicant in crimes against humanity, but in my opinion it lacks the quality of detail and specificity to enable an inference to be drawn that the applicant was involved with an organisation with a "limited brutal purpose" of the kind described by Mathews J in W97/164 (above) or was himself engaged in activities within the police force which of necessity not only afforded him knowledge of torture and unlawful killings and the like, but also implicated him in an accessorial role. This does not mean that I do not have strong suspicions of the applicant. His exculpatory evidence does not convince me of his innocence; in fact it tends to deepen the suspicion, but mere suspicion is not enough. There must be established facts from which an inference of guilt may be drawn – "may" be drawn will suffice. However in my opinion the evidence falls short of establishing "serious reasons for considering" his guilt of crimes against humanity.
Although I have reached a different conclusion from the Minister's delegate, this should not be seen as a criticism of his very detailed and scholarly assessment of the relevant issues in his written decision, which caused me to give very careful thought and consideration to the case before arriving at the conclusion which I have stated.
The decision under review will be set aside and the matter will be remitted to the respondent with a declaration and direction that the applicant is not precluded from the grant of a protection visa by reason of disentitling conduct of a kind specified in Article IF of the Refugees Convention.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller     .....................................................................................
  Personal Assistant
Date/s of Hearing  2 and 3 May 2002
Date of Decision  14 June 2002
Counsel for the Applicant        Mr H Christie
Solicitor for the Applicant         Christie and Strbac
Counsel for the Respondent    Mr P R Macliver
Solicitor for the Respondent    Australian Government Solicitor

[2002] AATA 463

14 June 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Refugees Convention 1951

Crimes Against Humanity

Refugee Status Determination