WBR and Minister for Immigration and Multicultural Affairs
[2006] AATA 754
•5 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 754
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/392
GENERAL ADMINISTRATIVE DIVISION ) Re WBR Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date5 September 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant’s application for a Protection (Class XA) (Subclass 866) visa be determined on the basis that he does not fall within the terms of Article 1F of the 1951 Convention relating to the Status of Refugees.
.....[Sgd S D Hotop]......
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - protection visa - applicant's application for protection visa refused - Article IF of Refugees Convention - war crime - crime against humanity - no serious reasons for considering that applicant has committed war crime or crime against humanity - applicant not excluded from protection of Refugees Convention - applicant not excluded from being considered person to whom Australia has protection obligations under Refugees Convention - decision under review set aside
Migration Act 1958 (Cth) s 36 and s 65
Migration Regulations 1994
Convention relating to the Status of Refugees 1951 Art 1F
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Moreno v Canada (1993) 107 DLR (4th) 424
R v Finta (1994) 112 DLR (4th) 513
Ramirez v Canada (1992) 89 DLR (4th) 173
SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561
Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579
REASONS FOR DECISION
5 September 2006 Deputy President S D Hotop Introduction
1. The applicant was born in Afghanistan in 1968 and is a citizen of Afghanistan. He arrived in Australia by boat without any travel documents in October 1999 and he was placed in immigration detention. He applied for a Protection visa in November 1999 and he was granted a Temporary Protection visa on 24 March 2000. He then applied for a permanent Protection visa but his application was, after an initial refusal by a delegate of the respondent and a subsequent successful application to the Refugee Review Tribunal, ultimately refused by a delegate of the respondent on 31 October 2005. He has now applied to this Tribunal for a review of the delegate’s decision.
2. The delegate decided to refuse to grant a permanent Protection visa to the applicant because the delegate was not satisfied that the applicant fulfilled one of the legislative criteria for a Protection visa, namely, that he is “a person to whom Australia has protection obligations under the Refugees Convention”. The delegate was not so satisfied because the delegate concluded that the applicant fell within the terms of Article 1F of the Refugees Convention (set out in paragraph 9 below) and that, accordingly, the protective provisions of that Convention did not apply to him. The delegate’s conclusion was based on a finding that there were “serious reasons for considering” that the applicant had committed “crimes against humanity” and “war crimes”, within the meaning of Article 1F(a) of the Refugees Convention.
The Issue
3. The issue for the Tribunal’s determination in this case is whether the applicant falls within the terms of Article 1F of the Refugees Convention – specifically, whether there are “serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity”, within the meaning of para (a) of Article 1F.
4. For the reasons which follow the Tribunal has concluded that there are not “serious reasons for considering that [the applicant] has committed a crime against peace, a war crime, or a crime against humanity”, within the meaning of Article 1F(a) of the Refugees Convention, and that, therefore, he is not thereby excluded from being considered to be “a person to whom Australia has protection obligations under the Refugees Convention”.
The Legislation
5. Section 29(1) of the Migration Act 1958 (“the Act”) authorises the respondent to grant to a non-citizen a visa to enter and/or remain in Australia. Section 31 of the Act provides that there are to be various classes of visas, including the class provided for by s 36, and that the regulations may prescribe criteria for visas of specified classes, including the class provided for by s 36.
6. Section 36(1) of the Act provides for a class of visa to be known as “protection visas”. Section 36(2) provides that 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 s 5(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”.
7. Under s 65(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.
8. Criteria for the grant of a Protection visa prescribed by the Migration Regulations 1994 (“the Regulations”) include:
“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
“Refugees Convention” is defined in the Regulations 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
9. 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;
…”
Article 1F of the Refugees Convention – the threshold requirement
10. Before the exclusionary provision in para (a) of Article 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 that paragraph. 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 …”
In Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 Weinberg J followed the approach of French J in Dhayakpa. Weinberg J said (at 478):
“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 reasons or those reasons must be ‘serious’.”
More recently, in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579 French J said (at 592):
“The Australian jurisprudence presently supports the proposition that the use of the words ‘serious reasons for considering that’ does not mandate a positive finding by the receiving State that the applicant for protection has engaged in conduct of the kind contemplated in Art 1F. No question of proof on the civil or criminal standard arises in that context …
It should be emphasised however that the absence of a requirement for a positive finding of the commission of conduct of the kind contemplated by Art 1F is not inconsistent with the need for ‘meticulous investigation and solid grounds’ in order to meet the standard of ‘serious reasons for considering that’ the conduct has been engaged in. It would be a matter for concern if the Tribunal, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose of complicity: SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229 at [17] per Selway J …”
[The Tribunal notes that the phrase “meticulous investigation and solid grounds’” quoted by his Honour appears in a memorandum written by the Netherlands’ State Secretary for Justice in 1997, which is reproduced in van Kriken (ed), Refugee Law in Context: The Exclusion Clause, TMC Asser Press, 1999, p 301.]
Article 1F (a) of the Refugees Convention
11. The relevant categories of crime referred to in Article 1F(a) of the Refugees Convention are:
“...a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”.
Such “international instruments” include the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (82 UNTS 280, entered into force on 8 August 1945) (“the London Charter”), the Statute of the International Criminal Tribunal for the former Yugoslavia and the Statute of the International Criminal Tribunal for Rwanda established by the United Nations Security Council in 1993 and 1994, respectively, and the Rome Statute of the International Criminal Court (“the Rome Statute”) adopted by the Rome Diplomatic Conference on 17 July 1998 which entered into force on 1 July 2002.
12.Article VI of the London Charter provided:
“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a)Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b)War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of 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.”
13.The Rome Statute relevantly provides:
“Article 7
Crimes against humanity
1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally 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 a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2.For the purpose of paragraph 1:
(a)‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack;
…
Article 8
War crimes
...
2.For the purpose of this Statute, ‘war crimes’ means:
…
(c)In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i)Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii)Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii)Taking of hostages;
(iv)The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
…
Article 25
Individual criminal responsibility
...
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a)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 the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii)Be made in the knowledge of the intention of the group to commit the crime;
…”
The Evidence
14. The evidence before the Tribunal comprised the “T documents” (T1-T42, pp 1-252) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and other relevant documentation tendered by the respondent (Exhibits R1 and R2), and a statutory declaration dated 26 October 2005 (Exhibit A1), and the oral evidence, of the applicant.
The applicant’s evidence
15. The applicant tendered in evidence a statutory declaration (Exhibit A1) which he made on 26 October 2005 in response to a notice of intention to refuse his application for a visa which was given to him by a delegate of the respondent by letter dated 13 October 2005. The contents of that statutory declaration, which were verified by the applicant in his oral evidence, are as follows:
“…
2. I was born in Kabul, Afghanistan, on the 6 June 1968. I am of Hazara ethnicity and I am a Shi’a Muslim.
3. I am married … My wife is a Tajik but converted to Shi’a Islam when we were married. We have a son and a daughter. They now live in Iran.
4. After the fall of the communist government in Afghanistan in 1992, a civil war broke out and there was fighting between the various ethnic groups, Pashtun, Tajik and Hazara.
5. Hezb-i-Wahdat (‘the Wahdat party’) is a Hazara party. At that time they controlled West Kabul. The party needed recruitment. As they wanted recruitment if any Hazara refused to help them they looked at this person as a traitor. In every Hazara family the Wahdat party recruited at least one male member. As I was the eldest son in my family I was chosen to participate.
6. While I recognised that the Wahdat party was fighting for the civil, religious and political rights and freedoms of the Hazara people, I did not want to fight in armed combat where I might be killed or be required to kill other people. Everybody in my family was worried about my safety.
7. I had my own business in Kabul … I worked there every day to support my family. If I went to the ‘front’ to fight for the Wahdat party it would be difficult for me to work and support my family. Through my business I knew some Hazara men who were watchmen at the Wahdat party prison in West Kabul. The prison was called Katei Ganai.
8. My brother-in-law… was a middle-ranking member of the Wahdat party. He suggested that I work at the prison rather than be involved in combat fighting at the ‘front’. He was able to get me a position as a watchman at the prison. I started there in 1992. I was a watchman there until 1994 when the Taliban captured West Kabul and everyone fled.
The Katei Ganai prison
9. … Each day I would start work at about 7:30am and I would work till about 3:30pm or 4.00pm. Then I would ride my bicycle to the prison, which took me about 30 minutes. At the prison I would report to the senior officer and give him my name. I would collect a Kalashnikov rifle and would go on duty. None of the watchmen (including me) were paid nor did we wear a uniform.
10. The number of watchman at the prison varied and this determined the time that I would spend each night at the prison. If there were not enough watchmen I would be there for up to 5 hours. If there were many watchmen I would be there for 2 or 3 hours.
11. The prison consisted of a large 2-storied concrete house that was built inside a large enclosed mud-brick wall. The house had been the private dwelling of a Pashtun called Ganai, that the Wahdat party had seized to hold prisoners of war. It was divided into many rooms.
12. The perimeter wall had a large entrance at the front that could be closed by 2 large wooden doors, which could be barred shut if necessary. The entrance was sufficiently large to admit trucks and other vehicles. The wall had a number of watchtowers on it.
13. Inside the wall was a compound. The prison did not have electricity, telephone, running water, plumbing, or any of the services that a prison in Australia would have. In the compound was a water well that had a hand pump. There was also an enclosed latrine. There was no barbed wire or razor wire, no searchlights, no guard dogs or the things you would associate with a prison in Australia.
14. The prisoners were mainly Pashtun and Tajik irregulars who had been captured in the fighting. Some Hazara prisoners were also kept there. Some of the prisoners were accused of having committed serious criminal offences in the context of the fighting, such as murder and rape.
15. At night the prisoners slept in the house but during the day most of them spent their time in the compound. They did not wear uniforms. The prison was not like a prison in Australia. None of the prisoners had visits from family members or friends. They would be fed from a kitchen in the house.
16. The commander in charge of the prison was Sayed Hamzeh, who was also known as ‘Sayed the Engineer’. There were 3 Shi’a mullahs at the prison who were members of the Wahdat party. They were… their function was to administer Islamic Sharia law and to investigate allegations of criminal conduct by any of the prisoners.
My duties as a watchman
17. For the great majority of the time that I was at the prison my job was to act as a watchman in a watchtower on the prison wall. This was an enclosed room set into the wall (which was very thick) that had observation slits. My job in the watchtower was to observe all movement into and out of the prison and to notify other watchmen of these movements.
18. On 5 or 6 occasions when there were sufficient watchmen at the prison and because I was able to read and write I was asked to go to the different rooms of the prison and count the prisoners in each room and write out lists of the prisoners in each room.
19. On 2 occasions I was required to escort groups of Tajik and Pashtun prisoners by truck behind their front lines so that they could be exchanged for Hazara prisoners. On both occasions I was in a party of 6 guards.
20. On 2 occasions I escorted prisoners inside the prison for questioning by the mullahs. On the first occasion 8 new prisoners had been brought to the prison and … (one of the mullahs) ordered me to escort one from the room in which they were being held to another room for questioning. After I did this I left to attend to other duties. After the questioning I was called to escort the prisoner back to his room.
21. On the second occasion I was sitting in a guardroom. There was another watchman named Ramezan with me. [One of the Mullahs] ordered us to take a prisoner to a room for questioning. This prisoner was a Hazara commander known as General Sedaghat who was in a locked room by himself on the ground floor. I knew that he had been arrested because he was accused of killing a family of 8 people. Everyone knew this.
22. We escorted General Sedaghat to the room to be questioned. [The 3 mullahs] were in the room. General Sedaghat entered the room and the door was closed behind him. Ramezan and I made our way back to the guardroom. As I was walking away I heard General Sedaghat shouting and abusing the mullahs. It was clear that he was denying the charges against him and he was being beaten. I became very upset listening to the prisoner screaming and couldn’t take it. So I decided to go home. I handed in my weapon and went home.
23. The following day [one of the mullahs] spoke to me and said that I had disobeyed an order in leaving my post. He said that I would be punished. Nothing came of it however.
24. In my duties at the prisoner I did not cause nor was I complicit in:
(i)the death of any person;
(ii)the torture or inhumane treatment of any person;
(iii)causing great suffering, or serious injury to the body or health of any person;
(iv)compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
(v)wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vi)unlawfully deporting, transferring or confining any person;
(vii)taking hostages.
25. In effect my job at the prison was part time. I worked mainly in the later evening and at night. It was not something that I wanted to do but I was by force of circumstance required to do. I had no other reasonable choice. I did not want to fight at the ‘front’ to kill or be killed. I was a watchman because it was something that I could do to help the Hazara people and the Wahdat party but which was benign in nature.
26. I was aware that some prisoners were abused and mistreated to extract information. Apart from the incident involving General Sedaghat I did not actually personally see or hear any of the prisoners being abused and mistreated. I assumed that if someone of the rank and standing of General Sedaghat could be beaten as he had been then it could easily happen to others.
27. From friends and relatives in Afghanistan I heard that 3 men who had worked with me as watchmen at the prison were killed in Kabul. This was in 2003 after the fall of the Taliban and the election of the new Government in Afghanistan. One was Ramezan and another was a man named Lotfali. I do not remember the name of the third man. I believe that these men were killed because they were identified as members of the Wahdat party and former watchmen at the prison.
…”
16. In cross-examination the application was referred to an interview he had with an officer of the (former) Department of Immigration and Multicultural and Indigenous Affairs on 24 July 2003 in connection with his application for a Protection visa. A transcript of that interview was tendered in evidence by the respondent (part of Exhibit R1).
17.In answer to the interviewer’s question:
“What were your actual duties at the prison, please describe what you had to do as part of the job”
the applicant is recorded as having said:
“I was – I had different jobs like, but … was like watching the prisoners, like sometimes at the – because it was – it was a big castle, like it had posts like in each corner, so we were just watching there and outside and also inside, you know sometimes we were taking the prisoners for investigations and interrogations and these things and generally watching the prisoners just to make sure that they are okay.”
It was put to the applicant in cross-examination before the Tribunal that he had escorted prisoners for the purpose of investigations and interrogations on many occasions during the 2-3 years in which he worked at the prison. The applicant said that he had done this on only 2 occasions. He explained that he did not commence work at the prison until 4.00pm each day and that “it is not always that anything [is] happening on [a] day… after 4 o’clock”.
18.The applicant confirmed that, in answer to the interviewer’s question:
“And how were the prisoners treated?”
he said:
“They were tortured.”
He also confirmed that throughout the period in which he worked at the Katei Ganai prison he was well aware that the prisoners were being tortured and that torture was a “very regular occurrence”.
19. The applicant was referred to the following segment of the interview (which was conducted with the assistance of an interpreter in the Dari language):
“MR SMITH: … we were talking about the situation working as a prison guard and you’d just provided me the names of three people in Hezb-i-Wahdat, that carried out the interrogation. Can you give me an indication of how these interrogations were carried out?
THE INTERPRETER: Where they were interrogating the prisoners it was not very advanced sort of interrogation, but it was like a small room and there was a kind of – sort of rope, they was hanging the prisoners and they were asking questions.
MR SMITH: So they were hanging the prisoners by what?
THE INTERPRETER: Yeah, from the legs – foot.
MR SMITH: From the legs, so they were suspended upside down?
THE INTERPRETER: Yes.
MR SMITH: And what were they doing to them?
THE INTERPRETER: Beating. Whips.
MR SMITH: So they’re beating with whips. Any other implements?
THE INTERPRETER: No, that’s it.
MR SMITH: Did they use their fists at all, just physical ---
THE INTERPRETER: No, they were not using physical because they didn’t want to be tied themselves, you know, that – just using their sticks and the tree branches and ---
MR SMITH: And did they use any electric shock, batteries or anything like that?
THE INTERPRETER: No, because I mean there was no electricity there and I don’t know what electricity. The power’s not, you know, for all of the interrogations, you know, but for some important people, you know, we could hear the screaming.”
The applicant said that when he took a prisoner to the interrogation room he saw a rope hanging from the roof inside the room, but that he had not personally seen an interrogation being carried out. It was put to the applicant that his detailed answers in the interview (above) regarding the methods of torture used in interrogations suggested that he had been present at some of those interrogations and had seen some of the torture being carried out. The applicant responded:
“The answer is, I never been in the – not just me – no-one – only the in charge of the prison, they were inside, they didn’t allow anyone to get in. And one – I used to work for nearly three years over there, a lot of guards when I meet each other after – like, one month or more than that, they speak with each other, they talk with each other and one of them for example says: today, torture some prison – prisoners, sorry, and they torture – because they said like that I – I heard that – I knew. Personally myself, I haven’t seen – I never tortured anyone because I was lowest ranking, lowest person on that prison. Also they didn’t allowed anyone to get in. How I tortured prison but only because I used to work for my business, run my business, I come around 4 o’clock. Anything happen to the middle of day not at night time.” (Transcript, p 14)
20.The applicant’s interview of 24 July 2003 included the following exchange:
“MR SMITH: Were you ever involved in interrogations directly?
THE INTERPRETER: No.
MR SMITH: So to take one of your earlier responses, you were just involved in escorting the prisoners to and from the interrogation room. Is that correct?
THE INTERPRETER: Yes.
MR SMITH: What were your personal feelings about this at the time when you were witnessing this? I take it that you witnessed this pretty well on a daily basis. Is that correct?
THE INTERPRETER: Of course it was not pleasant for any human to see somebody being tortured but they had to and also it was not – it was very upsetting for me to see somebody suffering.
MR SMITH: Why did you stop your work with the prison?
THE INTERPRETER: The area had been taken by the opposition and Hezbollah (sic) in general had been defeated… come in there.
MR SMITH: So you were actually working there for nearly two years?
THE INTERPRETER: More than two years.
MR SMITH: More than two years.
THE INTERPRETER: Nearly three.
MR SMITH: Okay.
THE INTERPRETER: Started in the beginning of the …
MR SMITH: Three years. And you would have witnessed this torture pretty well on a daily basis over that three years?
THE INTERPRETER: Yes.”
It was again put to the applicant that his abovementioned answers demonstrated that, while working at the prison, he had frequently observed torture being carried out during the interrogation of prisoners. The applicant reiterated that he had escorted prisoners to the interrogation room on only 2 occasions and that he never saw torture being carried out.
21.Finally, the applicant was referred to the following segment of the interview:
“MR SMITH: You’ve said before that … you don’t like killing and that you were upset to – or no-one likes to see what was happening to these prisoners being tortured. I’m just wondering how you reconcile the fact that you were able to put up with that for three years. Why weren’t you able to disassociate yourself from this business, from this torture?
THE INTERPRETER: Yes, like I said before that I didn’t like these actions but I had to be there because we – that was my belief that we should have the same rights as other people and we should be treated the same as the other people, and then we had to defend ourselves and our area. And I know I didn’t like that but I had no choice, I mean, instead of going to the fight, you know, and forced to take part in the fight, I was prepared to be there. This was my belief, like I was – I felt responsible myself that I was working there.
MR SMITH: Okay. Are you aware, Article 1F of the Convention, I have to advise you: if you are involved directly or indirectly with mistreatment under the Convention of prisoners of war, you can be exempt from the Convention. Are you aware of that?
THE INTERPRETER: Yes.
MR SMITH: Do you have any comment to make about that?
THE INTERPRETER: Well, myself, is how much I recall is that I was just like a guard, a watchman. And the people who were interrogating them, they had to do that because they wanted to know why these people are killing them, why they are oppressing them. So why they are fighting against us? So they just wanted to know. They wanted to get some information.
…
… and also I mean they just wanted to know who was the leaders, who was encouraging these people from the mountains and why they are attacking us and why they are killing. And they just wanted to know who is their leader and why they are doing it.”
The applicant confirmed that he had given the abovementioned answers and added:
“… but when I say it, I believe that's around about every ethnic groups, every human must be the same right, that's right, I did, but why I stayed there, why I - I knew that there it was torture or happened, bad things, why I didn't leave the prison, had a beating so many times, I give answer that I had no choice around - surround - our area was surrounded by opposition and was warring, civil war, everywhere they attack every day to our area. When ..... all that to every family, one person must join to ..... party, I was responsible for myself, for that reason I says I am responsible. Because my - my other brother was young, younger than me, I was responsible. Of course, for that reason, I say I'm responsible, that's meaning I'm responsible for the prison - no, I wasn't responsible for that, I was responsible for myself to go over there, otherwise they took one of our family to front-line.
…
When I said they were responsible, that's meaning I wasn't - agree with them to, they do this one because I was low ranking that's not my job. When they say - they do, because the - every watchman when were waiting room over there they talked me to show that happen today. What is the reason they questioning, what is the reason questioning. From each other asking, they said they want to know why they attacked our, why they rape women, why they killing but that doesn't ask who is responsible for opposition to do this one. They - I know the watchman they talk with each other I hear that from them.” (Transcript, pp 17-19)
22. In re-examination the applicant said that he was aware that prisoners were being tortured at the prison because the other watchmen and guards would talk about it, but he said that he was not allowed to go into the interrogation room and he confirmed that he did not see any prisoner being tortured.
23. The applicant said that, on the occasion when he and another watchman were ordered to bring General Sedaghat to the interrogation room, the interrogators took General Sedaghat into the room and shut the door, and he and the other watchman then returned to their waiting room. He said that General Sedaghat had accompanied them to the interrogation room without any resistance, but that a few minutes later, after he had returned to the waiting room, he heard “screaming, shouting, swearing” and he then knew that the prisoner was being tortured. He said that could not “accept” this and was “very upset”, so he left the prison and went home.
Other evidence
24. Amongst the other evidence before the Tribunal is “country information” regarding Afghanistan in the period from 1992 (part of Exhibit R1), including the following:
·a Council of European Union Report on Afghanistan, Hezb-i-Wahdat: Human Rights Violations (1992-1999), 26 April 2001, which refers to the Wahdat party as “one of the most violent groups in Afghanistan during the civil war”, describes in general terms various kinds of violations of human rights perpetrated by members of Wahdat between 1992 and 1999, and concludes:
“Hezb-i-Wahdat, the Shiite coalition formed in 1989, may be seen as one of the most violent political and military movements. Its administrative and military officials, senior officers and soldiers repeatedly committed gross violations of human rights and breaches of international humanitarian law, including intimidation, threats, extortion, torture, arbitrary arrest and extrajudicial execution. Broadly speaking, Hezb-i-Wahdat created a genuine climate of terror among the Afghan people, both in the north of Afghanistan and in Kabul, where it held power between 1992 and 1995.”;
·excerpts from Casting Shadows: War Crimes and Crimes against Humanity: 1978-2001 – The Afghanistan Justice Project – 17 July 2005 including the following:
“…
6.5 Torture and summary executions and other abuses by Hizb-i Wahdat forces, principally in Kabul and Mazar-i Sharif 1992-1998.
A distinctive feature of Hizb-i Wahdat in this period was that it styled itself as a party of the oppressed. It ostensibly empowered and defended the rights of Shias in general and more particularly the Hazara ethnic minority, in the face of a history of inferior social status and exclusion form power and influence within the Afghan state. However, as the civil war developed, the call to empower the oppressed occasioned a new round of abuses. Hizb-i Wahdat commanders, newly in positions of authority over urban populations, were subject to no meaningful accountability and neither expected nor required any from their troops. They have been accused of visiting a reign of terror on the civil population and rivals alike.
The Afghanistan Justice Project has reviewed testimony charging commanders affiliated to Hizb-i Wahdat with a range of violations of the laws of war that fall into the following patterns:
1. War crimes committed pursuant to the factional conflict, principally the summary execution of prisoners and political opponents, torture, indiscriminate attacks and deliberate targeting of civilians and non-combatants.
2. Gross abuses against civilians, which were incidental to the conflict itself. These were directed largely against civilians deemed to be non-Hazara and aligned to rival factions, although some of the abuses were also directed against ethnic Hazara civilians of Hizb-i Wahdat controlled areas. This pattern of abuse has been documented in both Kabul 1992-95 and Mazar 1992-98. The abuses include abduction, arbitrary detention, inflicting cruel and degrading punishments, rape, summary executions, wanton destruction and looting.
3. Chronic abuse of power, particularly in Hazara majority rural areas, where local commanders and administrators used their de facto impunity to indulge in abuses such as rape and forced marriage.
4. Failure of leadership to take effective action against commanders who abused the authority and military power that they wielded by virtue of their position in Hizb-i Wahdat…
6.5.1 Examples of abuses against civilians and political opponents in Kabul conflict, 1992-95
…
After April 1992, Hizb-i Wahdat moved quickly to establish the semblance of a criminal justice system in the areas newly under its control, generally by retaining the pre-existing police stations and prosecutors offices. They both allowed former regime personnel to continue in their roles as police officers, interrogators or prosecutors and deployed Wahdat personnel at the captured institutions. However the systematic use of torture and arbitrary detention apparent in the testimony indicate that these institutions offered no substantive justice, only a cover for factional sanctioned violence. Hizb-i Wahdat’s main prisons included the Social Sciences Institute, before the fall of Afshar. Afterwards, the faction used Kota Gonai and Zone 3 Police Stations in Shura Road.
A witness interviewed by the Afghanistan Justice Project with intimate knowledge of Wahdat stated that a large number of prisoners captured by Wahdat during different phases of the Kabul conflict were killed in Kota Gonai. According to testimony received, the commander responsible for giving the orders to have detainees executed was Bahrami of Jaghori district in Ghazni province, then a Wahdat commander for internal security. He has also been accused of extensive use of torture.
Other Wahdat officials who are named in testimony received by the Afghanistan Justice Project as having been involved in the interrogation of prisoners included:
·Parwana from Shaidan district of Bamyan, Wahdat’s senior prosecutor. Worked in Kota Ganai and the Zone 3 Police Station. Accused of routinely torturing detainees. Now believed to be living in Quetta, Pakistan.
·Aziz, from Bamyan, worked in Kota Ganai. Worked for the KhAD in the 11th Department during the Najibullah era. Believed to be now living in Kabul.
One lower-ranking Ittihad-i Islami commander, Nazeer, who was captured by the Wahdat commander, Shafi Diwana, when Wahdat forces overran his post in Diwan Bigi, described being detained in a container set in the ground in Kota Gonai. ‘We had to piss inside the container and they would throw food in to us’, he said. ‘During the night, they’d take a couple of people out and pretend to release them, but we still don’t know what happened to them.’ Until he became too weak, Nazeer said, he was interrogated daily, ‘They hung me upside down by my feet and burned petrol below me. And from above they threw water. They beat me with pieces of wood and fired pistols next to my head.’ He says he was blindfolded and made to sit cross-legged on the ground with nails driven into the ground to prevent him moving. Then a dog was let loose on him. ‘It was touching me and tearing my clothes and scratching me.’
Nazeer was eventually freed after his commander exchanged Wahdat prisoners with Shafi Diwana…
...
Another man, Wali, was working with government intelligence when he was arrested by Hizb-i Wahdat in 1994. They accused him of working for Harakat-i Islami. He remembers being arrested and taken to the base of Dr Sadiq Mudabir and then to the Detective Branch (kashf) in Kart-i Seh. He said he was kept there for seven days locked in a toilet that was deliberately flooded with water. He was then transferred to Kota Gonai, where, he said, Parwana was, ‘in change of interrogation and torture.’ Wali himself said he was only subjected to mental torture, including threats to hang him and insults towards his wife and family. Wali estimated there were 250-300 prisoners detained in Kota Gonai at the time. They included prisoners of war, Shias accused of crimes against Hizb-i Wahdat and a number of high profile political prisoners. He said they were segregated, Sunnis and Shias. Wali’s family managed to intervene with Mazari and get their son released by guaranteeing that he would not leave west Kabul or go back to his government job or to areas controlled by Shura-i Nazar.
…”
Analysis and Findings
Are there “serious reasons for considering” that crimes against humanity and/or war crimes were committed by members of the Wahdat party in Katei Ganai prison in the period 1992-1994?
25. The applicant has acknowledged in his evidence that prisoners being held at Katei Ganai prison, in the period 1992-1994 when he was working there as a watchman, were tortured during interrogation sessions by their interrogators, and he does not dispute that the infliction of such torture constituted a crime against humanity and a war crime, within the meaning of Article 1F(a) of the Refugees Convention.
26. The Tribunal is satisfied, on the basis of the whole of the evidence before it, that there are “serious reasons for considering” that, in Katei Ganai prison in the period 1992-1994 when the applicant was working there as a watchman, torture was inflicted on prisoners by certain members of the Wahdat party in the course of interrogation sessions, and that, by inflicting that torture, those Wahdat party members committed crimes against humanity and war crimes, within the meaning of Article 1F(a) of the Refugees Convention (see, for example, Articles 7 and 8(2)(c) of the Rome Statute).
Are there “serious reasons for considering” that the applicant “has committed … a war crime, or a crime against humanity”, within the meaning of Article 1F(a) of the Refugees Convention?
27. The respondent accepts that the applicant did not personally interrogate or torture any prisoners in Katei Ganai prison in the period 1992-1994 when he was working there as a watchman, or otherwise personally perpetrate a war crime or a crime against humanity, within the meaning of Article 1F(a) of the Refugees Convention. The respondent submits, however, that there are “serious reasons for considering” that he aided and abetted, and was therefore complicit in, the commission of such crimes by others, namely, the acts of torture perpetrated by certain members of the Wahdat party on prisoners in Katei Ganai prison during interrogation sessions in the period 1992-1994 when he was working there as a watchman. Accordingly, the respondent submits, there are “serious reasons for considering” that the applicant, by reason of that complicity, himself bears individual responsibility for those war crimes and crimes against humanity, within the meaning of Article 1F(a) of the Refugees Convention (see, for example, Article VI of the London Charter and Article 25(3) of the Rome Statute).
28. In Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 the Tribunal (Mathews J, President), following a review of Canadian authorities (Ramirez v Canada (1992) 89 DLR (4th) 173; Moreno v Canada (1993) 107 DLR (4th) 424; R v Finta (1994) 112 DLR (4th) 513), adopted the following principles in relation to accessorial liability for crimes against humanity, for the purposes of Article 1F(a) of the Refugees Convention:
·membership of a group which from time to time commits international offences is normally not of itself sufficient to establish complicity in the commission of those offence;
·the requisite mental element of a crime against humanity is based on a subjective test;
·there must be a shared common purpose, as between the perpetrator and the accomplice, to engage in conduct which constitutes a crime against humanity;
·there must be a personal and knowing participation in conduct which constitutes a crime against humanity.
The Tribunal respectfully adopts those principles and will apply them in the present case.
29. The Tribunal also notes the following statement of principle which was implicitly accepted by the Federal Court of Australia (Full Court) in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561 at 564:
“In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”
30. In the present case the Tribunal had the benefit of observing the applicant when he gave oral evidence and it regards him as a credible witness and accepts the evidence which he gave at the hearing. On the basis of that evidence the Tribunal makes the following findings in relation to the applicant:
·he voluntarily joined the Wahdat party in Kabul in 1992;
·although he supported the aims of the Wahdat party in seeking to secure the civil, religious and political rights of the Hazara people, he did not want to be involved in combat fighting at the “front” in the civil war in which the Wahdat party was involved;
·instead of fighting in armed combat at the “front”, he commenced working as a watchman/guard at Katei Ganai prison (which was controlled by the Wahdat party) in Kabul, and worked there in that capacity from 1992 to 1994;
·he continued to work at his own business from 7:30am to 3:30pm each day and then went to work at the prison (on a voluntary basis) from 4.00pm for a period of 2-5 hours each day;
·his position at the prison was a very lowly one and he had no command responsibility and no authority to make decisions regarding prisoners;
·his duties at the prison predominantly involved acting as a watchman in a watchtower on the prison wall, but occasionally he was required to perform other duties, namely:
-on 5-6 occasions he was required to count, and prepare a list of, the prisoners held in each room;
-on 2 occasions he (as a member of a party of 6 guards) was required to escort groups of Tajik and Pashtun prisoners out of the prison for the purpose of exchanging them for Hazara prisoners;
-on 2 occasions he was required to escort a prisoner from the detention room to another room in the prison for the purpose of interrogation by 3 mullahs; on each occasion he did not enter the interrogation room and did not participate in, or observe, the interrogation, although on 1 occasion when he was returning to the guardroom after escorting the prisoner (General Sedaghat) to the interrogation room he heard the sound of screaming and shouting coming from the interrogation room and assumed that the prisoner was being beaten, whereupon he became very upset because he did not approve of such treatment and he then left the prison (without permission) and went home;
·he was aware, through talking with and listening to other guards at the prison, that prisoners were often tortured by their interrogators at the prison in order to extract information from them;
·although he supported the interrogation of prisoners at the prison for the purpose of obtaining information – especially military information – from them for the benefit of the Wahdat party, he did not support the use of torture or any other form of inhumane treatment or abuse against prisoners for the purpose of extracting information from them.
31. The Tribunal accepts that the applicant, as a member of the Wahdat party, shared the broad common purpose of members of that party to promote the civil, religious and political rights of the Shias in general and the Hazaras in particular. The Tribunal, however, is not satisfied that the applicant shared a common purpose with other members of the Wahdat party that torture or any other form of inhumane treatment or abuse be inflicted on prisoners in Katei Ganai prison or on any other persons. More specifically, although the Tribunal is satisfied that the applicant on 2 occasions intentionally escorted a prisoner to an interrogation room at Katei Ganai prison for the purpose of interrogation, the Tribunal is not satisfied that on either occasion he did so with a shared common purpose with the interrogators that torture or any other physical or mental abuse be inflicted on the prisoner in order to extract information from him. The Tribunal, furthermore, accepts the applicant’s evidence that the reason he commenced working at the prison, and continued to work there for almost 3 years even though he was aware that prisoners were being tortured, was in order to avoid combat fighting in the civil war, and, in the Tribunal’s opinion, it cannot reasonably be inferred from his continuing to work at the prison in those circumstances that he thereby necessarily shared a common purpose with persons in authority at the prison that prisoners be tortured.
32. Accordingly, the Tribunal finds that the applicant lacked the requisite mental element for accessorial liability for the war crimes and the crimes against humanity constituted by the abovementioned acts of torture and other abuse inflicted on prisoners by certain members of the Wahdat party in the course of interrogation sessions at Katei Ganai prison in the period 1992-1994: Re W97/164 and Minister for Immigration and Multicultural Affairs (above) at 449, 450.
33. The respondent has not suggested – and, in any event, there is no evidence before the Tribunal – that the applicant has participated, either as a perpetrator or as an accessory, in any other conduct that might constitute a crime falling within any of the categories of crimes mentioned in Article 1F(a) of the Refugees Convention.
34. Accordingly, the Tribunal, having regard to the whole of the material before it, finds that there are not “serious reasons for considering” that the applicant “has committed a crime against peace, a war crime, or a crime against humanity”, within the meaning of Article 1F(a) of the Refugees Convention.
Conclusion
35. It follows from the above finding that the applicant is not excluded, by Article 1F of the Refugees Convention, from the protection of that Convention and from being considered to be “a person to whom Australia has protection obligations under [that] Convention”, within the meaning of the Act and the Regulations.
Decision
36. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant’s application for a Protection (Class XA) (Subclass 866) visa be determined on the basis that he does not fall within the terms of Article 1F of the Refugees Convention.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ..................[Sgd S da Motta]...............................
AssociateDate of Hearing 11 July 2006
Date of Decision 5 September 2006
Counsel for the Applicant Mr D McKenna
Solicitor for the Applicant Legal Aid, Western AustraliaCounsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
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