WBV and Minister for Immigration and Citizenship
[2007] AATA 2046
•12 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2046
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600327
GENERAL ADMINISTRATIVE DIVISION ) Re WBV Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date12 December 2007
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 – crime against humanity – serious non-political crime – no serious reasons for considering that applicant has committed crime against humanity or serious non-political crime – 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 (Cth), Sch 2, cl 785.221 and cl 866.221
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
12 December 2007 Deputy President S D Hotop Introduction
1. The applicant was born in Zimbabwe in 1980 and is a citizen of Zimbabwe. He arrived in Australia on 12 November 2005 holding a Temporary Business Entry (Class UC) (Subclass 456) visa which permitted him to remain in Australia for 3 months from the date of his arrival.
2. The purpose of the applicant’s visit to Australia was to undertake recruiting evaluations in respect of a position with the Western Australia Police Service for which he had applied. Those evaluations were conducted in the period 21-24 November 2005 but his application was unsuccessful.
3. On 9 February 2006 the applicant applied for a Protection (Class XA) (Subclass 866) visa. On 11 October 2006, however, a delegate of the respondent refused to grant a Protection visa to the applicant because she was satisfied that he did not meet one of the legislative criteria for the grant of a Protection visa, namely, that he be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: see s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and clauses 785.221 and 866.221 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the regulations”) (see paragraph 9 below). The delegate was so satisfied because she concluded that the applicant fell within the terms of Article 1F of the Refugees Convention and that, accordingly, the protective provisions of that Convention did not apply to him. The delegate’s conclusion was based on her finding that there were “serious reasons for considering” that the applicant had committed “crimes against humanity”, within the meaning of Article 1F(a) of the Refugees Convention (see paragraph 10 below).
The Issue and the Tribunal’s Determination
4. The issue for the Tribunal’s determination is whether the applicant falls within the terms of Article 1F of the Refugees Convention – more specifically, whether there are “serious reasons for considering” that he has committed:
· a “crime against humanity”, within the meaning of para (a) of Article 1F; or
· a “serious non-political crime”, within the meaning of para (b) of Article 1F.
5. For the reasons which follow, the Tribunal has determined that there are not “serious reasons for considering” that the applicant has committed a “crime against humanity” or a “serious non-political crime”, within the meaning of para (a) or para (b), respectively, of Article 1F 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 as amended by the Refugees Protocol.
The Legislation
6. Section 29(1) of 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.
7. 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”.
8. 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.
9. Criteria for the grant of a Temporary Protection visa and the grant of a Protection visa, prescribed by clause 785.221 and by clause 866.221, respectively, in Schedule 2 to 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
10. Australia is a party to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”), and accordingly, Australia has “protection obligations” under the Refugees Convention to a person who is a “refugee” within the meaning, and for the purposes, of that Convention. Article 1 of the Refugees Convention relevantly states:
“A.For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:
(1) …;
(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…
…
F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non–political crime outside the country of refuge prior to his admission to that country as a refugee;
…”
Article 1F of the Refugees Convention – the threshold requirement
11. Before the exclusionary provisions in para (a) and para (b) 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 those paragraphs. The meaning of the phrase “serious reasons for considering” has been explained by the Federal Court of Australia. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 French J said (at 563):
“Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words ‘serious reasons for considering that’ suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts…”.
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 reason 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 or 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 – International Instruments
12. The categories of crime referred to in Article 1F(a) of the Refugees Convention are:
“… 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.”
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 (83 UNTS 280, entered into force on 8 August 1945) (“the London Charter”), the Statue 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.
13. 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: …;
(b) War crimes: …;
(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.”
14. 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 recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
…
(d) ‘Deportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
…
(g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
…
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;
…
Article 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:
…
(d)The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:
(i)Made by other persons; or
(ii)Constituted by other circumstances beyond that person’s control.
…
Article 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a)The person was under a legal obligation to obey orders of the Government or the superior in question;
(b)The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”
The Evidence
15. The evidence before the Tribunal comprised:
· the documents (T1-T22, pp 1-180) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· the applicant’s witness statement dated 27 March 2007 (including attachments) (Exhibit A2);
· additional documents tendered by the applicant (Exhibits A1, A3-A7);
· transcript of an interview of the applicant by an officer of the (former) Department of Immigration and Multicultural Affairs (“DIMA”) on 22 June 2006 (Exhibit R1);
· bundle of supplementary documents tendered by the respondent (Exhibit R2);
· the oral evidence of the applicant and of a character witness called by him.
The applicant’s evidence
16. In his witness statement and oral evidence, the applicant sought to clarify and explain certain parts of written statements, dated 15 February 2006 and 6 July 2006, which he provided to DIMA in connection with his application for a Protection visa, and certain statements which he made in the course of an interview conducted by a DIMA officer on 22 June 2006.
17. In his written statement of 15 February 2006 the applicant stated (inter alia):
“ . . .
5. [In] December 2001 I joined the Zimbabwe Republic Police Force (ZRP).
. . .
13.I began my career as a Recruit Constable… before graduating as a Constable policeman [in] December 2002.
14.One of my duties during my training was as a member of a police security unit providing security at political rallies in the capital.
15.In around March 2002, during the Presidential Elections in Zimbabwe, I was part of a unit providing security to President Mugabe and was in the convoy attached to his motorcade driving through Chitungwiza, a suburb of Harare.
16.Our convoy passed a rally being held by the MDC [Movement for Democratic Change] and being addressed by the MDC leader, Morgan Tsvangirai.
17.Our unit was ordered to report to Machipisa police station, which was close to where the MDC rally was being held, and the Officer-in-Charge of the police station told us to go to the MDC rally and monitor it.
18.When we got there, the Officer-in-Charge told us to disperse the crowd by charging them with baton sticks drawn and to arrest anyone we found at the rally.
19.We then charged into the crowd, beating them severely as we had been ordered to do.
20.I also arrested people from the crowd at the rally and took them back to the police station where I became aware that some police officers planting (sic) dagga (marijuana) on those innocent people who had been arrested and then charging them with drug offences.
21.I was very upset at having to beat, injure and arrest these innocent people and seeing them falsely charged, but as recruits we had been told that we should at all times obey orders.
. . .
48.In April 2005, the Zimbabwean government orchestrated Operation Murambatsvina, a campaign to demolish supposedly illegal dewellings in various parts of the country but actually to punish perceived supporters of the MDC and to drive them back to the rural areas.
49.As policemen we were forced to participate in this and to provide security for the bulldozers that had been ordered to demolish buildings.
50.One day in May 2005 I was in my church, St. Michael’s Anglican Church in Kwekwe, when a police vehicle arrived outside.
51.An Assistant Inspector (whose name I prefer not to reveal as I fear for his safety) was also in the church with me and he went out to find out what the policemen from the vehicle were doing.
52.He came back inside and told me that I was ordered to join the other policemen outside.
53.These policemen told me that I was to go with them and assist them in providing security for bulldozers that were destroying buildings nearby.
54.So I was forced to return to my home, put on my uniform and guard the bulldozer that was demolishing homes in the area.
55.Some of these homes were the homes of members of our church congregation and some of these people were crying and hiding in their houses to try to prevent the demolitions and refusing to come out.
56.We were ordered to go in and force these people out of their homes, beating them when they resisted.
57.Some of these people recognized me and demanded to know why I was helping in the destruction of their homes.
58.I felt ashamed of my actions but I was afraid of the consequences from ZANU-PF [Zimbabwe African National Union – Patriotic Front] officials and supporters if I refused, . . .
. . .”(T9, pp 126, 127, 129)
18. In the transcript of the interview conducted by a DIMA officer on 22 June 2006, the applicant is recorded as having made the following statements (inter alia):
“ . . .
[DIMA officer]: Now, you’ve said that when you would complete your training you were a member of the police security unit. Can you tell me what your role in that unit involved.
[Applicant]: The role which I was involved, as the police constable, a regular constable, I took my one year training course. So during the one year training course, and I was attached to the duties of escorting the president – President Robert Mugabe to the rallies to provide the security every time when I was at most airport – every time I was going to provide security to the president.
[DIMA officer]: Okay. So how did you provide the security? What did you do to ensure that Mr Mugabe was not attacked in any way?
[Applicant]: We just go there, and we escort him, and we see that there are not any other members who want to maybe to disturb the rally. Hence, there’s no any rally aside maybe for, like, sometimes we only go for the rally, MDC rally, who held this rally I came. So we clear all the things.
[DIMA officer]: So how do you clear the people?
[Applicant]: Charging them with baton stick, is the order.
. . .
[DIMA officer]: What does that involve, charging people with baton sticks? Do you just walk towards them? Is there any physical violence involved? What does it actually involve?
[Applicant]: Physical violence. It was what we did. If you go to the public, like, when there’s anyone who wanted to stage the rally, even if we see the MDC supporters, we are told by our superiors to go and disperse the crowd. So sometimes is MDC supporters, they book for their rally to the police, to say ‘We want the all day rally.’ But when the permission is granted, but before the – when the permission is granted they must (indistinct) but when you are at that rally that they said, were told to disperse the crowd. So sometimes people they refuse to disperse, to be dispersed, so we charge them with baton sticks.
[DIMA officer]: So, okay. So you personally have hit other people with your baton stick, or taken to them? I want to know what you actually did when you were given the order - - -
[Applicant]: Yes, I was - - -
[DIMA officer]: - - - to disperse people.
[Applicant]: Yes, I was beating them.
. . .
[DIMA officer]: So your role was to protect the VIPs?
[Applicant]: Yes, the VIPs.
[DIMA officer]: Okay. And in what way were you to protect them?
[Applicant]: Even at gatherings, at the rallies, we protect the VIPs. Even at any functions of the politicians, we give – you give security to them.
[DIMA officer]: Okay. And on many occasions were you forced to use violence?
[Applicant]: That’s when – every time when we held the rally.
[DIMA officer]: Every time, you had to use violence?
[Applicant]: Every time. Yes, it was a must. Even - - -
(DIMA officer]: So did you actively participate? Were you ordered to use the violence? How did it come about? Like, if you were standing at the rally, for example, now, and there was a crowd of people?
[Applicant]: Yes.
[DIMA officer]: Would somebody order you to do it or would you just take that - - -
[Applicant]: I was to – at the time when we held the rally, always the inspector, the superintendent will be there. That’s all the people who give us commands, orders. Because when we go we have to protect people, it’s our superiors who give us orders. But with the rally of President Robert Mugabe there was not much violence. But when we go to the MDC rallies sometimes there was, because ever time, when you want to do a rally, you book for your rallies, they say for two hours. But when we are there at rally, when Morgan Tsvangirai, the President of MDC arrived, within two hours our superiors say ‘Disperse the crowd.’ So that’s – that caused the problem now, because people they – maybe the president, or Morgan Tsvangirai, will book for two hours, but when you go to the rally we disperse the crowd for – within an hour - - -
[DIMA officer]: So it was mainly at the MDF (sic) rallies that you dispersed crowds, and on other occasions there was no need to engage in any form of violence, because nobody was willing or attempting to attack the VIPs that you were protecting?
[Applicant]: Like, for example, in MDC, Morgan Tsvangirai, the opposition leader, obvious, the time when he come he will be liable to be attacked with his MDF (sic) supporters. So that’s when the problems started. You have to turn back – when Mugabe, when President Mugabe come for the rally no any problems at all, because they all fear. You have the security, even CIOs. Yes. But - - -
. . .” (Exhibit R1, pp 10-12, 14-15)
19. In his written statement of 6 July 2006 the applicant stated (inter alia):
“. . .
5.As part of our training, our group was ordered to provide security for the motorcade of President Mugabe and provide him with security at his rallies.
6.We were ordered to obey the commands of our superior officers who insisted that we show complete loyalty to President Mugabe.
7.As young recruits we were far too frightened to try to directly oppose these orders.
8.The only occasion that I used direct force against Zimbabwean people was in March 2002 (see paragraphs 15 to 21 of my earlier statement of 15 February 2006) when we were ordered to baton-charge a crowd at an MDC rally at Machipisa in order to disperse them.
9.We baton-charged this crowd because they were beginning to act riotously, throwing stones and attacking and damaging buildings and cars.
10.We were ordered to baton-charge these people and also to arrest some which I greatly regretted because I thought that some were innocent people who should not have been charged.
11.Nevertheless we young recruits were ordered to baton-charge and arrest members of the crowd and were too afraid and inexperienced to refuse such orders.
12.Also I would point out that when we baton-charged the crowd we did so according to the crowd dispersal techniques we were taught as part of our training.
13.Such crowd dispersal techniques are standard policing methods used to the best of my knowledge all over the world including by the police force of Western Australia.
14.Such standard methods of crowd dispersal as we used that day at Machipisa in March 2002 are widely used in other parts of the world and do not therefore constitute the abusing of people’s human rights.
15. I have never in the course of my police work in Zimbabwe been involved in abusing people’s human rights.
16.The only other occasion that I ever had to disperse a crowd was when we were ordered to use tear gas against a crowd in Torwood-Redcliff, Kwekwe in 2004 (Tsvangirai’s MDC rally).
17.On this occasion my only act was to use tear gas to disperse a crowd and I did this in accordance with standard police procedure and nobody was injured.
. . .” (T22, pp 178-179)
20. In his witness statement of 27 March 2007 the applicant stated (inter alia):
“ . . .
The Machipisa Rally incident
A. Clarification of My First Statement
26.In my First Statement at paragraphs 15 to 21 and in my Second Statement at paragraphs 8-14 I talked about my involvement in a baton charge upon a crowd at an MDC rally at Machipisa in March 2002. I affirm that what I said in these statements was true but I also would like to clarify the following points.
27.At paragraph 19 of my First Statement I said ‘we then charged into the crowd, beating them severely as we had been ordered to do.’ I want to make clear what I meant in this statement. At the interview I tried to explain that when I used the term ‘we’ I did not intend to say that ‘I’ beat the people severely. This statement in my interview was made in general. These statements do not mean that I did this act myself. I was talking about what some people in my unit did. I was not talking about what I did.
28.When I used the term ‘we’, what I intended to say was that my unit moved into the crowd and that some people in my unit beat the people.
29.I want to describe what I mean by the word ‘beat’. In my statements and in my interview, . . . when I used the term ‘beat’, I did not mean that I used great force or was violent. As you will see from the transcript of my interview (for example) at page 23, I use the word ‘beat’ to refer to the way that we used to disperse crowds in dangerous situations. I also repeat my statement that this crowd dispersal did not just happen in regard to demonstrations by the opposition MDC. In my experience, the same policing methods were used in dealing with any large crowds which presented a possible threat to safety.
30.In my Second Statement I said at paragraph 9 that we baton-charged the crowd because they were beginning to act riotously, throwing stones and attacking and damaging buildings and cars. I want to say some more about the events that happened at this rally.
31.At this rally I estimate there were 10,000 people but perhaps there were more. The rally was at a stadium which is called ‘Machipisa’ or ‘Highfield’. The stadium is a big open field with no walls or chairs.
32.I do not know what time the people arrived at the rally. I arrived there at 3.30pm or 4.00pm so I know the rally had started before 3.30 or 4.00pm on that day. The people at the rally were carrying banners which said things like ‘Mugabe must go’ and other anti-Mugabe slogans. The people were chanting pro-MDC slogans calling for a change of government. The people were addressed by the leader of the MDC, Morgan Tsvangirai. I arrived with my unit after the speeches were finished.
33.When I arrived at the field, the protestors were violent. My first task was to escort Morgan Tsvangirai safely from the field with the assistance of other police officers. I cannot remember how many other police officers were there but the crowd was much bigger than the number of police officers who were present.
34.The ZANU-PF supporters began to provoke the MDC supporters by making comments that were meant to upset them. The ZANU-PF supporters made comments to MDC supporters to provoke them. The ZANU-PF said things like ‘Morgan Tsvangirai is talking bullshit’. The ZANU-PF supporters also started throwing stones at the MDC supporters.
35.The MDC supporters then started responding to the ZANU-PF supporters by throwing stones and shouting at the ZANU-PF supporters.
36.My unit was ordered by a senior officer to disperse the crowd. I do not know the name of this senior officer because recruits were moved all over the country and travelled all over to do different tasks. I was not sure if he was a war veteran.
37.The extent of my involvement in this baton charge was only to follow standard police procedures for dispersing the crowd. I struck people with my baton in accordance with my police training. I was taught to perform the baton charge as follows:
(a)My shield was on my left arm and I held my baton in my right hand. I swung the baton from side to side to move the people backwards. I did not strike anyone; and
(b) If people approached me I would strike them once with my baton on the inside of their thigh as directed by police procedures.
38.I cannot put a number on how many people I struck with my baton. I only struck people on their thigh when they were coming towards me and I was trying to protect myself. I did see some other officers violently beating people in the crowd at the rally but I followed police procedures at all times. The officers who were beating the people in the crowd were war veterans who saw themselves as tougher than officers like me who were ‘Born Frees’. The officers who were war veterans said that younger officers who were ‘Born Frees’ were too lenient.
39.The force I used depended upon the direct threat which I perceived I was under. I would only strike someone if they were coming towards me and if I felt threatened that they would harm me. I did not injure anyone who I struck and I know there was no blood. Sometimes, I pushed people out of the way with my baton stick to reach MDC supporters who were being injured by ZANU-PF supporters.
40.I arrested some people at the rally. I know that I arrested at least ten people but it’s very difficult to put a final number on how many people I arrested. When I arrested people I grabbed them and then escorted them to the police station. Sometimes I performed ‘Stop and Search’ procedures. I would look and see if the persons had knives or other things which could injure people. I did not injure anyone when I undertook a Stop and Search arrest.
41.I was upset at the way some of the other police officers were behaving because they were taking the side of the ZANU-PF supporters.
B.Clarification of my Second Statement
42.In paragraphs 8 to 14 of my Second Statement I again explained my involvement in the Machipisa Rally in March 2002.
43.In my Second Statement (at paragraph 11) I said that we young recruits were too afraid and inexperienced to refuse the order to disperse the crowd. The reason why I was frightened to oppose the orders of my senior officers was because I was afraid of looking sympathetic to the MDC. If I was seen as being sympathetic to the MDC, I may be listed as a ‘hostile organisation’. A hostile organisation is a person who is watched closely by the senior officers, the CIO and is suspected of anything bad which happens in the ZRP. I had already been labelled a supporter of the MDC in the past due to my assistance of teachers who were under threat in Chidiya in 2000. My family are also MDC supporters . . .
44.At paragraph 12 of my Second Statement I said that when we baton-charged the crowd we did so according to the crowd dispersal techniques we were taught as part of our training. We were taught these techniques at our police training camp. I attach a copy of my notes that I made while on my training. I have read these notes again and confirm they correctly state the procedures that I followed.
45.As I have indicated above, I did not hit people while they were on the ground. I did not hit people while they were running away. I tried only to disperse people by moving my baton from side to side. If somebody threatened me I would them strike (sic) once with my baton. I also tried to reach MDC and ZANU-PF supporters and help them if they were being attacked. Police officers were also injured during the rally.
The Baton Charge – Legal Context
46. The order to disperse the rally came from senior officers at the Machipisa police station. I believed that the order to disperse the crowd was lawful. However, I knew it was done for political reasons.
47.I believe that the response of some officers was violent. By ‘violent’, I believe this to mean not following proper police procedures. Some officers were not violent. I was not violent because I followed police procedures and did not injure anyone.
48.I know that I also struck ZANU-PF supporters. I did not know who was who. I was just trying to disperse the crowd and restore order. I was just dealing with the case like a professional police officer and I just was doing my duty. I knew the Government did not like the MDC. I was told to remember the hand that feeds me, but I tried to deal with the situation fairly and in accordance with human rights.
. . .
Operation Murambatsvina: Clarification of My First Statement
57.At paragraphs 48 to 58 of my First Statement I talked about my involvement in Operation Murambatsvina. I affirm that what I said in these paragraphs is true. I would like to clarify the following points.
58.At paragraph 48 of my First Statement I referred to the operation as ‘a campaign to demolish supposedly illegal dwellings’. In my opinion, the purpose of this campaign was to deal with the MDC supporters who lived in the cities. The Government knows MDC supporters live in the city. The city people are knowledgeable and do not like the ZANU-PF. When the MDC won the city seats in 2005 Presidential Elections, Mugabe wanted to clean up and remove these people from the city. The official position was to clear the slums. In my opinion, this decision was targeted to remove the MDC supporters from the cities.
59.I did not know if Operation Murambatsvina was legal or illegal. I had heard that the United Nations was trying to stop it. I just followed my orders as a professional police officer. I do not know whether Operation Murambatsvina was legal in terms of Zimbabwean law. However, my conscience told me that it was wrong. My aunt’s home had previously been demolished. The demolition of my aunt’s home really upset me because that is where I stayed when I ran away from ZANU-PF supporters in the rural areas in 2000.
60.I was ordered by senior officers to participate. The operation had started in the capital city two months before the incident described in my First Statement. I had seen other homes in Kwekwe being destroyed about two months before I participated in Operation Murambatsvina.
61.At paragraph 49 of my First Statement, I said that, as policemen the unit was forced to participate in Operation Murambatsvina and to provide security for the bulldozers that had been ordered to demolish buildings. I was given the orders to participate by the officer in charge of Kwekwe police station. The rank of this officer was ‘Inspector’. I have decided not to name him because I am afraid that my naming him might become public.
62.On the day that I participated, I was pulled out of the church by the Inspector. I was then taken in a truck to my home. The Inspector briefed me while we were in the truck. There was the Inspector, drivers and perhaps four or five other police officers in the back of the truck. Once I was at home I put on my uniform. I then got back into the truck. We travelled to the area in Kwekwe where we were going to guard the bulldozers. This area was called Mbizo.
63.Some homes were made with brick walls and had asbestos roofs. Some homes were made with corrugated iron sheets. The homes had two or three rooms, but some homes were larger because they had extensions.
64.In my interview . . . I said: ‘I was also participating in the demolishing of the house of people’ (page 18 of transcript) and I also said ‘I was doing those demolitions’ (page 19 of transcript). I want to make clear what my involvement was in the demolitions.
65.I was ordered by the Inspector to guard and protect the bulldozers and the other people who were demolishing the houses. My job was to go into the houses, check and inspect to see if there was anybody in the houses and check to see that there were no people in the houses for safety reasons. A man called the ‘Inspector of Housing’ would decide which houses were going to be demolished. The Inspector of Housing would decide if a house was on the plan for demolition or not.
66.If the Inspector of Housing ordered a house to be demolished and there was somebody in the house I would ask them to go outside. On each occasion, the persons would leave their house peacefully. The bulldozers would then move towards the house after I had made sure that there was nobody inside the house. Sometimes people would run towards the bulldozers. I stretched out my arms to prevent them from going towards the bulldozers. I took this action to ensure that the people did not injure themselves on the bulldozers or with the people who were demolishing the homes. My job was to escort and to give protection only. I just walked next to the bulldozers. I did nothing with violence. My participation in Operation Murambatsvina lasted for two days.
67.I said at paragraph 56 of my First Statement, ‘we were ordered to go in and force these people out of their homes, beating them when they resisted’. In saying this I meant to convey that these were the orders which we were given. What I actually did in response to these orders was to escort and guard the bulldozers and the people doing the demolishing. At paragraph 56 of my First Statement I was talking generally and not saying that I actually demolished the houses. Other people were ordered to demolish the houses using the bulldozers and picks and axes. I was just there to guard them.
68.I did not intend to convey that I had beaten any person. I did not beat any person.
69.At paragraph 57 of my First Statement I said that during this operation some people from my church recognised me and demanded to know why I helped in the destruction of their houses. These people asked this question of me because I asked them to leave their homes before the bulldozers moved.
70.During the demolitions, I was issued with a FN rifle which was standard issue by the ZRP. I did not ever carry it with me during Operation Murambatsvina because there was no need to carry it with me.
71.We were ordered to arrest those people who resisted or who tried to interfere or to damage the equipment. Although I was involved in this operation I did not arrest anyone. I saw other people arresting people in their houses. My job was to stop and protect the people going towards the bulldozers. Once I saw a man throw a beehive into the bulldozer when his house was being demolished. This injured many people.
72.On several occasions I had to take hold of a person by the arm and lead them away from their house so that the bulldozer could demolish the house. I was only holding on to the person and did not hit them or in any way hurt them.
73.In my First Statement at paragraph 58 I said that I felt ashamed of my actions but I was afraid of the consequences from ZANU-PF officials and supporters if I refused to participate. I was afraid that if I did not follow the instructions to participate in the operation, I would be labelled a MDC sympathiser. I did not want to participate. I was just complying with my police duties in a professional manner.
74.If I had resisted I would have been listed as a hostile organisation. My name would have been passed on to the police security intelligence office and the CIO. I could have been arrested, kept in prison, beaten and tortured. My name would go to the President’s office. I could not refuse these orders.
The Interview – admissions to the use of violence
75.At page 11 of the transcript of the Interview I said ‘Physical violence. It was what we did …’. When I said this, I meant that the ZRP as a group reacted in this way. I did not mean to say that I was violent.
76.At pages 11-12 of the transcript, I tried to explain how the ZRP reacted to demonstrations by the opposition MDC. I explained that sometimes, although the MDC had been given permission to hold their rally, the ZRP would be ordered to disperse the crowd. I explained that when the crowd refused to be dispersed the ZRP would charge them with baton sticks.
77.At page 12 of the transcript, I said ‘Yes, I was beating them’. When I say I was beating them what I meant is that I was swinging my baton to move people backwards. If they came towards me I would hit them once on the thigh. This was in accordance with my training. I knew that some senior officers were opposed to the MDC. All I ever tried to do was follow my professional police duties and protect injured people.
78.At page 14 of the transcript, I said ‘Every time. Yes, it was a must. Even …’. Again, I was talking in general about other rallies where I heard violence had occurred. I always followed proper procedures and was not violent towards anyone. I only ever attended two rallies which were not peaceful (Machipisa and Torwood-Redcliffe).
79.At page 14 of the transcript, I was asked ‘And on many times were you forced to use violence’ to which I answered that we were forced to use violence every time when we [sic] held the rally. What I meant by this is that we were, on a number of occasions, ordered to respond with force at political rallies. I did not intend to say that on every occasion I personally took part in this violence, but rather, that this is what we were ordered to do.
80.In my Interview I gave the example of the violence which took place at a rally attended by MDC leader, Morgan Tsvangirai. In giving this example I intended to explain how the ZRP operated and how we were ordered to disperse opposition rallies. I did not mean in saying this, that I was involved in activities which could be considered to be crimes against humanity.
81.In my Interview I explained that there were occasions when I refused to obey the orders that we were given because I knew that we were being ordered to abuse human rights. Sometimes I could refuse to follow the orders. For example if a war veteran did not know about the law, I could tell them that I would not follow their orders. Whether I could refuse to follow their orders really depended on the circumstances. I could not always refuse to obey because I feared for my safety and the safety of my family.
…
84.Of course, as a police officer I was sometimes involved in situations where there was a level of confrontation with the public. I have explained my involvement in the Machipisa rally.
85.However, I have not taken part in any acts of severe beating, torture or killing. It is because I was aware that these things were taking place around me that I wished to leave the ZRP. …
…” (attachment omitted) (Exhibit A2)
21. In his oral evidence-in-chief the applicant confirmed that the contents of his witness statement are true and correct. It is unnecessary to refer to his oral evidence-in-chief in detail in these reasons.
22. In cross-examination the applicant was referred to paras 18-21 of his abovementioned statement of 15 February 2006 (see paragraph 17 above) and to the transcript of his interview with a DIMA officer on 22 June 2006 (see paragraph 18 above). He reiterated that, at the MDC rally at Machipisa in March 2002, he did not personally injure or harm anyone, but that he raised and waved his baton stick for the purpose of dispersing the crowd in accordance with standard police procedure.
23. The applicant was also referred to his abovementioned statement of 6 July 2006 (see paragraph 19 above) and it was put to him that he, in the course of his duties as a police officer in Zimbabwe, had been involved in the dispersal of crowds at rallies on many occasions. He confirmed, however, that the only occasions on which he had been involved in the dispersal of crowds at rallies were the rally at Machipisa in March 2002 and the rally at Torwood-Redcliff in 2004 (referred to in paras 8 and 16 of his statement).
Other evidence
24. The material in evidence before the Tribunal includes independent country information regarding Zimbabwe (Exhibit R2, pp 119-470). That information includes the following:
·Amnesty International, “Zimbabwe: An assessment of human rights violations in the run-up to the March 2005 parliamentary elections” (15 March 2005), in which it is stated:
“…
The rights to freedom of expression, association and assembly have been systematically violated in Zimbabwe over the past five years, both through the use of repressive legislation and the actions of the Zimbabwe Republic Police (ZRP). Amnesty International believes that the clampdown on freedom of expression, association and assembly forms a key part of government strategy to silence those who are critical of the government and the human rights abuses taking place in Zimbabwe.
…” (Exhibit R2, p 123)
·Human Rights Watch, “Zimbabwe: Government Intensifies Crackdown on Dissent” (1 November 2006), in which it is stated:
“ …
Political, social and economic conditions in Zimbabwe have deteriorated considerably in recent years. Civil society organizations have increasingly expressed concerns at the worsening conditions by engaging in peaceful protests and demonstrations. The government’s response has been heavy-handed and brutal. Police have violently disrupted peaceful protests by beating demonstrators with batons and in some cases rifle butts.
…” (Exhibit R2, p 131)
·Human Rights Watch, “‘You will be thoroughly beaten’: The Brutal Suppression of Dissent in Zimbabwe” (Vol 18, No 10(A), November 2006), in which it is stated:
“…
Police use of excessive force against unarmed and peaceful demonstrators in Zimbabwe has become a common occurrence, and recent demonstrations by unarmed peaceful protesters have been met with great heavy-handedness. On several occasions during the course of arrests police have forced protesters to lie on their stomachs or sit down, and beaten them with batons and in some cases rifle butts. …
On September 13, 2006, close to 130 members of the mass trade union organization the Zimbabwe Congress of Trade Unions (ZCTU) were arrested during peaceful demonstrations throughout the country against poor working conditions and government economic and political policies. Video footage of a demonstration in Harare obtained by Human Rights Watch shows police beating unarmed trade unionists with batons before bundling them into a van and a truck. …
…
On the same day about 20 police officers arrested 13 ZCTU members during a demonstration in a Harare suburb. The group was ordered to stop their demonstration and sit down. According to one activist, ‘[T]he police fired some shots in the air. They forced us down with their baton sticks and told us we were demonstrating illegally and then they started beating us.’ While on the ground the trade unionists were beaten with batons and rifle butts, and kicked. After about half an hour of beatings they were ordered to go home.
On September 20, up to 180 members of the National Constitutional Assembly (NCA) were arrested for demonstrating in Mutare city center. According to the account of one NCA member, police forced the activists to sit on the ground, and then beat them with batons before taking them to Mutare Central police station. A medical report given to Human Rights Watch by a private medical practitioner who visited and examined 29 of the activists soon after their arrest found that many of the victims had sustained injuries on their backs and arms that to him were consistent with blows by a blunt object. Many of the victims also had ‘defensive injuries’ on their arms and hands.
…
Women belonging to WOZA [Women of Zimbabwe Arise] have been subjected to repeated arrests and detentions for engaging in peaceful demonstrations. In the past year alone police have arrested women from the organization on four separate occasions.
In February 2006, almost 200 women from the organization were arrested on Valentine’s Day for demonstrating against the government’s political and economic policies. During the arrests, police kicked and beat the women with batons. …
…” (footnotes omitted) (Exhibit R2, pp 142, 143, 149).
·US Department of State, “Country Reports on Human Rights Practices – 2005: Zimbabwe”, in which it is stated:
“…
In May during Operation Restore Order… hundreds of thousands of persons lost their homes, property, and livelihoods without compensation or provision for alternative accommodation that would allow relocation without destitution.
During the operation security forces intimidated those being relocated and beat many of them.
…
On May 19, without prior notice the government embarked on Operation Restore Order, in which over 700 thousand persons lost their homes, their means of livelihood, or both. The government’s stated reason for the operation was to curb illegal economic activities and crime in slums and illegal settlements, but it made no provision for the affected before beginning the operation. Police, security forces, and some local authorities demolished, or required the victims to demolish, their homes and businesses. Police and security forces beat some residents and market vendors and arrested thousands of informal traders.
…
The police repeatedly used force to break up nonviolent demonstrations by critics of the government and erected roadblocks in urban areas to prevent public gatherings from taking place. …
…
There was no action taken against police who used excessive force to disperse a number of demonstrations and rallies in 2003 or 2004.
…” (Exhibit R2, pp 167, 171, 176-177)
Analysis and Findings
25. The respondent has submitted that, on the basis of the evidence before the Tribunal, there are “serious reasons for considering” that the applicant, in the course of his service with the Zimbabwe Republic Polic Force (“ZRP”) from December 2001 to November 2005, committed crimes against humanity and serious non-political crimes, within the meaning of Article 1F of the Refugees Convention.
Are there “serious reasons for considering” that the applicant has committed a “crime against humanity”, within the meaning of Article 1F(a) of the Refugees Convention?
26. The respondent submitted as follows:
“There is ample evidence in the independent country information in relation to Zimbabwe that the Zimbabwe Republic Police Force (‘the Zimbabwe Police’) has committed torture, inhumane acts and persecution against an identifiable group within the Zimbabwe civilian population as part of a widespread or systematic attack directed against that group, namely, those people who are opposed to the government and President Mugabe, and who support the opposition Movement for Democratic Change, contrary to Articles 7(1)(f), (h) and (k) of the Rome Statute. The country information also shows that the Zimbabwe Police took part in and assisted with the Zimbabwe Government’s Operation Murambatsvina which caused the deportation or forcible transfer of a large segment of the Zimbabwe population, contrary to Article 7(1)(d) of the Rome Statute.
…
The Applicant’s own evidence also demonstrates that he personally committed crimes against humanity by the Zimbabwe Police in that he regularly took part in severely beating and injuring persons attending rallies held by the Movement for Democratic Change, arresting people on false charges, and forcing people out of their homes and beating them when they resisted during the Zimbabwe Government’s Operation Murambatsvina. …
The Applicant’s own evidence also demonstrates that he was an accessory to the commission of crimes against humanity by the Zimbabwe Government as a result of participating in Operation Murambatsvina by providing security for the bulldozers that were demolishing homes in the Kwekwe area as part of that operation …”.
The applicant’s conduct in dispersing crowds at rallies
27. In the Tribunal’s opinion, the evidence before it is insufficient to provide serious reasons for considering that the applicant committed crimes against humanity, within the meaning of Article 1F(a) of the Refugees Convention, when engaged in crowd dispersal operations at the MDC rally at Machipisa in March 2002 or at other political rallies or in other similar incidents in the course of his service with the ZRP.
28. The Tribunal accepts the applicant’s evidence – as set out in his witness statement (Exhibit A2) and confirmed in his oral evidence – that, in the Machipisa rally incident in March 2002, although he struck a number of persons on the inside of their thighs with his baton, he only did so when the person was approaching him in a threatening manner and then only in accordance with standard police procedure. The Tribunal also accepts the applicant’s evidence that, on those abovementioned occasions when he struck persons with his baton, he did not cause them serious injury or harm. There is certainly no evidence before the Tribunal to the effect that any person was in fact injured or harmed by the applicant in the Machipisa rally incident.
29. Accordingly, the Tribunal is satisfied that none of the abovementioned baton- striking acts by the applicant constituted a crime against humanity, as defined in Article 7 of the Rome Statute, because they clearly did not fall within subparas (a) – (j) of para 1, nor did they constitute “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, within the meaning of subpara (k) of para 1 of Article 7.
30. The Tribunal also accepts the applicant’s evidence that the Machipisa rally incident of March 2002 was the only occasion on which he used direct force against others in the course of his duties with the ZRP. Again, there is no evidence before the Tribunal to the effect that any person was in fact injured or harmed by the applicant in any other incident.
31. It may be that, having regard to the abovementioned country information, there are serious reasons for considering that some officers of the ZRP have committed crimes against humanity on various occasions, and that, having regard to the applicant’s evidence (see para 38 of his witness statement), there are serious reasons for considering that some officers of the ZRP committed crimes against humanity at the Machipisa rally incident. In that event the question whether there are serious reasons for considering that the applicant aided and abetted, and was thus complicit in, the commission of those crimes would arise.
32. 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 offences:
·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 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.”
33. Having regard to the applicant’s evidence, the Tribunal is satisfied that the applicant did not share a common purpose, with other officers of the ZRP, to engage in violent conduct constituting a crime against humanity, whether in the Machipisa rally incident or on any other similar occasion. The Tribunal is also satisfied that the applicant did not intentionally and knowingly participate in violent conduct perpetrated by other ZRP officers which constituted a crime against humanity, whether in the Machipisa rally incident or on any other similar occasion. Accordingly, the Tribunal is satisfied that the applicant lacked the requisite mental element for accessorial liability for any crimes against humanity which may have been committed by other ZRP officers in the Machipisa rally incident and other similar incidents.
34. Having regard to the abovementioned analysis, it is unnecessary for the Tribunal to consider the applicability of Article 31 or Article 33 of the Rome Statute to this aspect of the present case.
35. The Tribunal finds, therefore, that there are not serious reasons for considering that the applicant committed a crime against humanity, within the meaning of Article 1F(a) of the Refugees Convention, when engaged in crowd dispersal operations in the Machipisa rally incident or in other similar incidents in the course of his service with the ZRP.
The applicant’s participation in Operation Murambatsvina
36. The Tribunal accepts the applicant’s evidence – as set out in paras 57-74 of his witness statement (Exhibit A2) and confirmed in his oral evidence – regarding his participation in Operation Murambatsvina. More specifically, the Tribunal is satisfied, on the basis of that evidence, that the applicant’s participation in Operation Murambatsvina comprised his ensuring that houses which were marked by the Government for demolition were vacant by peacefully escorting the occupants therefrom and guarding the bulldozers and their operators during a period of 2 days in June 2005 in Kwekwe pursuant to an order by a ZRP Inspector who was in charge of the local police station. The Tribunal also accepts the applicant’s evidence that he did not know whether Operation Murambatsvina was lawful or unlawful under Zimbabwean law but that he did feel that it was morally wrong and politically motivated and he did not wish to participate in it.
37. Having regard to the applicant’s evidence, the Tribunal is satisfied that the applicant did not share a common purpose with those persons directly responsible for the demolition of houses in Operation Murambatsvina that the occupants of those houses be forcibly removed and the houses be demolished. The Tribunal, furthermore, has substantial reservations as to whether Operation Murambatsvina necessarily involved the commission of crimes against humanity, within the meaning of subpara (d) or subpara (k) of para 1 of Article 7 of the Rome Statute. More specifically, the Tribunal doubts that Operation Murambatsvina (as described in material in evidence before the Tribunal – see Exhibit R2, pp 393-470) itself involved:
· “deportation or forcible transfer of population” (as defined in subpara 2(d) of Article 7 of the Rome Statute), within the meaning of subpara 1(d) of Article 7 of the Rome Statute; or
· the commission of “inhumane acts … intentionally causing great suffering or serious injury to body or to mental or physical health”, within the meaning of subpara 1(k) of Article 7 of the Rome Statute.
As regards that small part of Operation Murambatsvina in which the applicant was involved in Kwekwe for 2 days in June 2005, the evidence before the Tribunal (comprising paras 54-56 of the applicant’s statement of 15 February 2006 (T9,
p 129) and paras 57-74 of his witness statement (Exhibit A2)) is, in its opinion, insufficient to provide serious reasons for considering that a crime against humanity, within the meaning of subpara (d) or subpara (k) of para 1 of Article 7 of the Rome Statute, was committed by any person, whether as a perpetrator or as an accomplice, on that occasion38. Having regard to the abovementioned analysis, it is unnecessary for the Tribunal to consider the applicability of Article 31 or Article 33 of the Rome Statute to this aspect of the present case.
39. The Tribunal finds, therefore, that there are not serious reasons for considering that the applicant committed a crime against humanity, within the meaning of Article 1F(a) of the Refugees Convention, by reason of his participation in Operation Murambatsvina.
Are there “serious reasons for considering” that the applicant has committed a “serious non-political crime”, within the meaning of Article 1F(b) of the Refugees Convention?
40. The respondent submitted, in the alternative, that the abovementioned conduct of the applicant in dispersing crowds at rallies and in Operation Murambatsvina involved the commission by him of serious non-political crimes, within the meaning of Article 1F(b) of the Refugees Convention.
41. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, French J said (at 563):
“The adjective ‘serious’ in Art 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgement. But once the non-political crime committed outside the country of refuge is properly characterised as ‘serious’ the provisions of the Convention do not apply. …”
The Protection Policy and Legal Advice Section, Department of International Protection, Geneva has commented on the phrase “serious … crime”, within the meaning of Article 1F(b) of the Refugees Convention, as follows:
“Serious crime
38. The term ‘serious crime’ obviously has different connotations in different legal systems. It is evident that the drafters of the 1951 Convention did not intend to exclude individuals in need of international protection simply for committing minor crimes. Moreover, the gravity of the crime should be judged against international standards, not simply by its characterisation in the host State or country of origin. Indeed, the prohibition of activities guaranteed by international human rights law (for example, freedom of speech) should not be considered a ‘crime’, much less one of a serious nature.
39. In determining the seriousness of the crime the following factors are relevant:
· the nature of the act;
· the actual harm inflicted;
· the form of procedure used to prosecute the crime;
· the nature of the penalty for such a crime;
· whether most jurisdictions would consider the act in question as a serious crime.
40. The guidance in the Handbook [UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para 155] that a ‘serious’ crime refers to a ‘capital crime or a very grave punishable act’ should be read in the light of the factors listed above. Examples of ‘serious’ crimes include murder, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct and other similar factors. On the other hand, crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the seriousness threshold of Article 1F(b).”
(“Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees”, International Journal of Refugee Law Vol 15 No 3 (2003) p 502 at pp 514-515) (Pt of Exhibit A4).
The applicant’s conduct in dispersing crowds at rallies
42. As previously mentioned (see paragraph 28 above), the Tribunal accepts the applicant’s evidence that he, when engaged in crowd dispersal operations at the Machipisa rally incident in March 2002, did not cause any person serious injury or harm; nor is there evidence before the Tribunal to the effect that any person was in fact injured or harmed by the applicant in that incident or any other similar incident. Accordingly, in the Tribunal’s opinion, there are not serious reasons for considering that the applicant personally committed a “serious… crime”, within the meaning of Article 1F(b) of the Refugees Convention, in the Machipisa rally incident or in any other similar incident.
43. Likewise, for the reasons mentioned in paragraph 33 above, the Tribunal is satisfied that the applicant lacked the requisite mental element for accessorial liability for any serious crimes which may have been committed by other ZRP officers in the Machipisa rally incident and other similar incidents.
44. Accordingly, the Tribunal finds that there are not serious reasons for considering that the applicant committed a “serious … crime”, within the meaning of Article 1F(b) of the Refugees Convention, when engaged in crowd dispersal operations in the Machipisa rally incident or in other similar incidents in the course of his service with the ZRP.
The applicant’s participation in Operation Murambatsvina
45. Having regard to the considerations mentioned in paragraphs 35 and 36 above, the Tribunal is satisfied that the applicant’s participation in Operation Murambatsvina did not involve the personal commission by him of any “serious… crime”, within the meaning of Article 1F(b) of the Refugees Convention, or accessorial liability on his part for any such crimes which may have been committed by others in that incident. There are, furthermore, mitigating factors which, in the Tribunal’s opinion, militate against a conclusion that the applicant committed a “serious…crime” in that incident, namely:
· he was a relatively junior constable in the ZRP;
· he was not aware, and had no reason to believe, that Operation Murambatsvina was unlawful;
· his participation in Operation Murambatsvina was carried out in response to the orders of his superior officer in the ZRP which he was obliged to obey;
· his participation in Operation Murambatsvina, which (the Tribunal is satisfied) consisted entirely of peacefully evacuating the occupants of houses due for demolition and guarding the bulldozers and their operators in response to the orders which had been given to him by his superior officer in the ZRP, was not manifestly unlawful.
46. Accordingly, the Tribunal finds that there are not serious reasons for considering that the applicant committed a “serious… crime”, within the meaning of Article 1F(b) of the Refugees Convention, by reason of his participation in Operation Murambatsvina.
Conclusion
47. 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 or an act falling within any of the categories of crimes or acts mentioned in Article 1F of the Refugees Convention. 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 humanity, a serious non-political crime or any other crime or act falling within the categories of crimes or acts mentioned in Article 1F of the Refugees Convention.
48. 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
49. 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 49 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[Sgd Y Maker].....................
AssociateDates of Hearing 20, 21 August 2007
Date of Last Written Submissions 26 September 2007
Date of Decision 12 December 2007
Counsel for the Applicant Mr R Lindsay
Solicitor for the Applicant Allens Arthur Robinson
Counsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Refugee Status
-
Exclusion Clauses
-
Judicial Review
-
Convention relating to the Status of Refugees
0
6
0