ZYVZ and Minister for Immigration and Border Protection (Migration)
[2018] AATA 3967
•23 October 2018
ZYVZ and Minister for Immigration and Border Protection (Migration) [2018] AATA 3967 (23 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0528
Re:ZYVZ
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:23 October 2018
Place:Perth
The Tribunal affirms the decision under review.
........[sgd]................................................................
Deputy President Boyle
CATCHWORDS
IMMIGRATION – protection visa – safe haven enterprise visa – whether a person is a refugee – whether Applicant is a person to whom Australia has protection obligations – whether serious reasons to believe the Applicant committed serious non-political crimes – decision affirmed
LEGISLATION
Immigrants and Emigrants Act 1949 (Sri Lanka) – ss 34, 35, 45C
Migration Act 1958 (Cth) – ss 5, 5(1), 5H, 5J, 35A, 35A(3A), 36, 36(2), 36(2)(a), 36(2)(aa), 36(2C), 36(2C)(a)(ii), 65, 233A, 233C, 473CA, 500(1)(c)
CASES
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Edwards v The Queen (1993) 178 CLR 193
FTZK v Minister for Immigration and Border Protection [2014] HCA 26
Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659
JSDW and Minister for Immigration and Border Protection [2017] AATA 2420
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173; [1992] 2 FC 306
SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9
Trikilis and Minister for Immigration and Border Protection [2017] AATA 1409
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245YYMT and MQCR and Minister for Immigration and Citizenship [2010] AATA 447
SECONDARY MATERIALS
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Article 1F
Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of RefugeesUNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Reissued Geneva, December 2011
REASONS FOR DECISION
Deputy President Boyle
23 October 2018
THE APPLICATION
The Applicant seeks the review of a decision of a delegate of the Respondent dated 31 January 2018 (T29) (the reviewable decision) to refuse to grant the Applicant a safe haven protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
A decision to refuse to grant a protection visa under s 65 of the Act is reviewable by the Tribunal under s 500(1)(c) of the Act.
BACKGROUND
The Applicant was born in Sri Lanka in 1982. He is a citizen of Sri Lanka.
The Applicant left Sri Lanka in late August 2012 and travelled to Australian territorial waters by boat which was intercepted by Australian authorities. The Applicant was transferred to Christmas Island on 16 September 2012 (T29, page 328). On 16 October 2012 he was transferred to Nauru where he stayed until 1 November 2014 when he was returned to Australia.
The Applicant lodged an application for a safe haven enterprise visa (SHEV) on 9 May 2016 (T29, page 328).
On 26 September 2016, a delegate of the Respondent refused the application (the initial decision) on the grounds that the Applicant did not satisfy any of the criteria set out in s 36(2) of the Act.
The matter was referred to the Immigration Assessment Authority (IAA) in accordance with s 473CA of the Act.
The IAA remitted the initial decision for reconsideration on 16 November 2016 with the direction that there were substantial grounds for believing that, “as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm” (T29, page 328).
By the reviewable decision a delegate of the Respondent refused the application. The delegate accepted that there were substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being returned to Sri Lanka, there is a real risk that the Applicant will suffer significant harm.
However, the delegate found that the Applicant was ineligible for the grant of a protection visa on complementary protection grounds as the delegate found that there were serious reasons for considering that the Applicant had committed a serious non-political crime before entering Australia. The delegate formed this view on the basis that the Applicant had been charged with and convicted of the crimes of abduction and gang rape of a woman in Sri Lanka for which he was sentenced to terms of imprisonment of 5 years for the abduction and 13 years for the rape by the High Court of Sri Lanka on [redacted] 2015 (T24, page 294).
The delegate also found that there were serious reasons for believing the Applicant had committed the crime of people smuggling noting the Applicant had contravened the Sri Lankan Immigrants and Emigrants Act 1949 (Sri Lanka) as he had aided and abetted more than one person to leave Sri Lanka in contravention of that Act.
Accordingly, the delegate found that the ineligibility provision in s 36(2C)(a)(ii) of the Act applied to the Applicant.
THE ISSUES
The Respondent identifies the issues in its Statement of Facts, Issues and Contentions (SFIC) as being:
13.1 whether the crimes for which the applicant was convicted by the Sri Lankan High Court constituted serious non-political crimes outside Australia; and
13.2 whether there are serious reasons for considering that the applicant committed a serious non-political crime outside Australia by facilitating the bringing or coming to Australia, or the entry or proposed entry into Australia of a group of 4 (sic) people who are non-citizens who had no lawful right to come to Australia.
The Applicant expresses the issues for determination (in its Statement of Facts, Issues & Contentions (SFIC)) as being the following questions:
(a)in relation to the Applicant’s convictions for gang rape and abduction in Sri Lanka, whether there are serious reasons for considering that he committed those crimes (para. 11 of the Applicant’s SFIC);
(b)whether a contravention of s 45C of the Sri Lankan Immigrants and Emigrants Act 1948 (I assume that the reference to the Immigrants and Emigrants Act 1948 is meant to be a reference to the Immigrants and Emigrants Act 1949 (Sri Lanka)) ought to be considered a serious crime (para. 31 of the Applicant’s SFIC); and
(c)whether there are serious reasons for considering that the Applicant committed an offence contrary to s 233A of the Act (para. 37 of the Applicant’s SFIC).
While the issues as identified by the Respondent do not specifically refer to a breach of the Immigrants and Emigrants Act 1949 (Sri Lanka) which is identified by the Applicant as a question for determination, the delegate considered that issue and there is evidence before this Tribunal in relation to a possible breach of that law. Accordingly, it is a matter that I will consider.
STATUTORY FRAMEWORK
Section 35A of the Act defines protection visas as being those provided for in that section. Subsection 35A(3A) of the Act provides that there is a class of temporary visa to be known as a safe haven enterprise visa. That is the type of visa for which the Applicant applied.
Section 36 of the Act, relevantly, provides:
Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b)at least one of the criteria in subsection (2).
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;…
Section 5H of the Act defines “refugee” and provides as follows:
Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
Section 5J of the Act relevantly defines “well-founded fear of persecution” as follows:
Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Subsection 5(1) of the Act defines “serious Australian offence” and “serious foreign offence” as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
Subsection 36(2C) of the Act relevantly provides that:
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a)the Minister has serious reasons for considering that:
(i)the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non-citizen committed a serious non-political crime before entering Australia; or
(iii)the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations;…
The expression “non-political crime” is defined in s 5(1) of the Act:
non-political crime:
(a)subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and
(b)includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
Section 233A of the Act provides:
Offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
(b) the second person is a non-citizen; and
(c) the second person had, or has, no lawful right to come to Australia.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.
Section 233C of the Act provides:
Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
(b) at least 5 of the other persons are non-citizens; and
(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3) If, on a trial for an offence against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;
the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Section 45C(1) of the Immigrants and Emigrants Act 1949 (Sri Lanka) provides that any person who organises one or more persons to leave Sri Lanka in contravention of any provision of that Act, or who attempts or does any act preparatory to, or aids and abets any other person to so organise one or more persons leaving Sri Lanka in contravention of that Act, commits an offence. A person convicted of such an offence is subject to a term of imprisonment of not less than one year and not more than five years. Subsection 45C(3) of that Act defines “organise” to include transportation of persons by sea without obtaining valid travel documents.
Section 34 of the Immigrants and Emigrants Act 1949 (Sri Lanka) makes it an offence to leave Sri Lanka from any place other than an approved port of departure, and s 35 of that Act, amongst other things, makes it an offence for any person who is a Sri Lankan citizen to leave Sri Lanka without a passport.
The effect of the above legislative provisions, for the purposes of this application, is that if the Respondent has serious grounds for believing that the Applicant committed a serious non-political crime before entering Australia, then:
(a)by operation of s 5H(2) of the Act, the Applicant will not be a refugee and therefore will not be a person in respect of whom Australia has obligations as a refugee under s 36(2)(a) of the Act; and
(b)by operation of s 36(2C) of the Act, the Applicant will be taken not to satisfy the criterion in s 36(2)(aa) of the Act, being a person in respect of whom Australia has protection obligations because there is a real risk that he will suffer significant harm if he is returned to Sri Lanka.
The only criteria in s 36(2) of the Act which could have any application in the present case are those identified in ss 36(2)(a) and 36(2)(aa) of the Act. Accordingly, as at least one of the criteria in s 36(2) of the Act must be satisfied for a protection visa to be granted (s 36(1A) of the Act), if neither of the criteria in ss 36(2)(a) or 36(2)(aa) of the Act is satisfied, then the protection visa cannot be granted.
THE EVIDENCE AND THE HEARING
The application was heard in Perth on 31 August 2018. The Applicant appeared in person and gave evidence through an interpreter. The Applicant was represented by Mr Glenister of Cathal Smith Legal Pty Ltd. The Respondent was represented by Mr Gerrard of the Australian Government Solicitor.
The following documents were admitted into evidence at the hearing:
·the Applicant’s Statement of Facts, Issues and Contentions dated 10 July 2018 (Exhibit A1);
·the T-Documents (T1 – T29, pages 1 to 354) (Exhibit R1); and
·the Respondent’s Statement of Facts, Issues and Contentions dated 29 May 2018 (Exhibit R2).
CONSIDERATION
Are the crimes serious non-political crimes?
There are five crimes (or groups of crimes) that the Applicant could be considered to have potentially committed before entering Australia. They are:
(a)gang rape and abduction;
(b)breach of bail granted in relation to the gang rape and abduction charges;
(c)breach of the Immigrants and Emigrants Act 1949 (Sri Lanka);
(d)people smuggling or aggravated people smuggling contrary to the Act; and
(e)stealing the boat in which he and the others came to Australia.
There is no definition of serious crime in the Act. This issue was considered in the case of JSDW and Minister for Immigration and Border Protection [2017] AATA 2420 (JSDW) at [34] to [64]. As was noted in JSDW at [37], the terms “serious Australian offence” and “serious foreign offence” are defined in s 5 of the Act (set out at [20] above). As was also noted in JSDW, these definitions are a guide for generally determining the sorts of offences to be considered serious enough to warrant exclusion under Article 1F of the 1951 Convention Relating to the Status of Refugees (the Refugees Convention) and s 36(2C) of the Act. Although the Act no longer refers to the Refugees Convention, the considerations relevant to the Refugees Convention are applicable to the current version of s 36(2)(a) of the Act. The version of s 36(2)(a) of the Act relevant to the visa application considered in JSDW referred to protection obligations owed by Australia under the Refugees Convention. The reference to the Refugees Convention has been replaced in the current and relevant version of the Act by the addition of a reference to refugee in s 36(2)(a) and the addition of a definition of refugee by s 5H of the Act. These sections, however, in effect replicate the operation of the former s 36(2)(a) of the Act and the Refugees Convention. Whereas previously Article 1F(b) of the Refugees Convention excluded the convention’s operation to any person in respect to whom there were serious reasons for considering that they had committed a serious non-political crime, that same exclusion in s 36(2)(a) now applies by operation of s 5H(2)(b) of the Act (see the Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at pages 10, 169 to 170).
By any measure, the crimes of rape and abduction must be considered serious crimes. I do not understand the Applicant to contend otherwise. The elements of a “serious Australian offence” and a “serious foreign offence”, as defined in the Act (see [20] above), are present in these crimes. These crimes also have the characteristics described in the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (see [34] of JSDW) and the Background Note on the Application of the Exclusion Clauses: Article 1F of the Refugees Convention (see [35] of JSDW) as being indicative of a crime being considered to be a serious crime for the purposes of Article 1F of the Refugees Convention. They also fit the description of serious crime used by leading academic Professor Goodwin-Gill in the passage quoted at [36] of JSDW which specifically cites rape as a serious crime.
I also refer to the decision of Deputy President Forgie in YYMT and MQCR and Minister for Immigration and Citizenship [2010] AATA 447 (YYMT) and to the decision of Deputy President Forrest in Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659. In the former case YYMT, Deputy President Forgie, speaking of the approach taken by Deputy President Forrest, said (at [164]):
… His approach is consistent to some extent with that suggested by GS Goodwin-Gill in The Refugee in International Law. The author writes of the arrival of 125,000 Cuban asylum seekers in the United States of America in 1980. As a result, the United Nations High Commissioner for Refugees (UNHCR) was asked to advise on asylum applications likely to be refused on account of the asylum seekers’ criminal background. The UNHCR proposed:
...that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery...
Also, for the reasons set out in JSDW at [40] to [46], I find that an offence against s 233A of the Act (people smuggling) and, for the reasons set out in [65] to [67] of JSDW that an offence against s 233C of the Act (aggravated people smuggling) are serious crimes for the purposes of ss 5H(2)(b) and 36(2C) of the Act.
As noted at [31] above, there were other potential offences that the Applicant may have committed which might be considered to be serious crimes for the purposes of ss 5H(2)(b) and 36(2C) of the Act. However, having found that the crimes of rape and abduction and of people smuggling and aggravated people smuggling are relevantly serious crimes, and because of my findings below in relation to whether there are serious reasons for considering that the Applicant committed one or more of these crimes, it is not necessary for me to decide whether the offences referred to in [31(b), (c) and (e)] are serious crimes.
Are there serious reasons for considering that the Applicant committed the serious crimes of rape and abduction?
Both s 5H(2) and s 36(2C) of the Act use the phrase serious reasons for considering that the person/non-citizen has committed a serious non-political crime before entering Australia. This phrase, in the context of s 36(2C) of the Act and Article 1F of the Refugees Convention, has been the subject of extensive judicial consideration.
In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, French J (as he then was) said:
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 Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 186, Branson J said that:
Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.
The meaning of the expression “serious reasons for considering” was also considered by Mathews J as President of the Tribunal in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150. Her Honour referred first to the Canadian case of Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173; (1992) 2 FC 306, in which the Canadian Federal Court of Appeal held that the words “serious reasons for considering” establish a lower standard of proof than the balance of probabilities. Her Honour continued:
82. In any event, I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be ‘serious reasons for considering’ a matter raises similar issues to the test of ‘reasonable grounds to believe’. The requirement of seriousness goes well beyond that of reasonableness in my view. Nor do I agree that the ‘serious reasons for considering’ test should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be ‘serious reasons for considering’ [original emphasis] that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Helton v Allen [1940] HCA 20; (1938-1939) 63 CLR 691).
In Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465 (Arquita), Weinberg J (cited with apparent approval by the High Court in FTZK v Minister for Immigration and Border Protection [2014] HCA 26 (FTZK) at [80]) considered the authorities referred to above. His Honour concluded:
54. 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.
...
56. 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’.
...
58. In determining the meaning to be ascribed to the word ‘serious’ in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word ‘serious’ in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a ‘prima facie’ case, the test formerly favoured for the grant of an interlocutory injunction…
59. Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the States and Territories of Australia…
60. It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least ‘serious reasons for considering’ that he had committed the offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. ...
…
64. ‘Suspicion’, as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948; ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’ The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115 116.
In SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9, Wilcox J set out four propositions which were not in dispute between the parties. The majority did not set them out but neither did they question the validity of those propositions in their judgments. Consequently, although Wilcox J was in the minority, it can be assumed that His Honour’s recitation reflected the view of the Court. Relevantly, in relation to the first proposition, his Honour said at [22]:
…The adopted standard, ‘serious reasons for considering’, does not require proof, even on a balance of probabilities. It is sufficient if there is ‘strong evidence of the commission of one or another of the relevant crimes or acts’: see Dhayakapa v Minister for Immigration and Ethnic Affairs (1995) 62 FCA 556 at 563 (French J). See also Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179 and Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476.
In the earlier case of WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245, French J (as he then was) gave more expansive guidance to the steps to be taken in deciding whether there are serious reasons for considering that a person has committed an offence or crime alleged to have been committed:
[51] 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: Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 per French J; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 at 388 per Marshal J and on appeal Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 at 179 per Whitlam J. See also Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476 where Weinberg J reviewed the authorities. A contrary view in relation to standard of proof was expressed by Mathews J sitting as President of the Tribunal in Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 27 AAR 482 at 491. In Canada the Federal Court of Appeals has held that the words require something less than proof on the balance of probabilities: Ramirez v Canada (1992) 89 DLR (4th) 173. But see also Cardenas v Canada (1994) 23 Imm LR (92d) 244 where a requirement for ‘clear and convincing evidence’ was posited by Jerome ACJ (at 252).
[52] 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 ... 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 229at [17] per Selway J. See also the helpful discussion of this question in Zagor, Persecutor or Persecuted: Exclusion under Art 1F(A) and (B) of the Refugees Convention’ (2000) 23 UNSW Law Journal 164 (at 168–70). The observation of Jerome ACJ in Cardenas is apposite (at 252):
the Board must be extremely cautious in its application of the exclusion clause particularly in situations... where it has concluded that the claimant has a well founded fear of persecution in his country of origin. In light of the potential danger faced by such a claimant, the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.
In the context of the above judicial statements as to the meaning of the phrase “serious reasons for considering”, are there serious reasons for considering that the Applicant committed the crimes of which he was convicted in Sri Lanka, namely rape and abduction?
The fact of convictions, provided that they were the result of a proper legal process in a jurisdiction adhering to recognised legal standards and the rule of law, would normally be a serious reason for considering that the person committed the crimes. In some circumstances a conviction may not, of itself, be serious reason for considering that the person committed the crimes for which they were convicted. In that regard the Applicant’s counsel (at page 3 of the Transcript) referred to FTZK as a case in which the court, in that case the High Court, found that a conviction for murder alone was not a sufficient reason for considering that the appellant in that case had committed murder. That is not my reading of the judgment in that case. Although the appellant had been implicated in abduction and murder by statements made by his co-accused (later convicted and executed for those crimes), the appellant himself had not been convicted (see [59] of the judgment in that case).
The High Court in FTZK took issue with the Tribunal’s reasoning in finding that the accusations made by the appellant’s co-accused, and the Chinese authorities, were corroborated by the appellant’s conduct, including providing false information on his Australian visa application and being evasive in his evidence before the Tribunal on his religious affiliations. These, and a number of other factors, were taken by the Tribunal in that case, when considered together, as being serious reason for considering that the appellant had committed the crimes of abduction and murder. The High Court was of the view that the Tribunal had erred in relying on the conduct as corroborating the appellant having committed the crimes because the conduct relied on by the Tribunal was consistent with motivations other than guilt, such as wanting to stay in Australia.
The present case is materially different to the circumstances in FTZK. In the present case the Applicant was actually convicted, albeit in absentia, after a trial. The Applicant’s evidence (Transcript pages 32 to 33) was that there was a trial. The Full Translation of Sentencing Order (T24) refers to “submissions made by both parties” and the translation of the newspaper report on the trial refers to “Attorney-at-law [redacted], appeared for the defendants” (T14, page 205).
It also appears that the process in Sri Lanka that lead up to the trial and the Applicant’s convictions was not dissimilar to the process that would be followed in Australia. Having been arrested the Applicant was granted bail (Transcript page 30) and during the period leading up to the trial before he absconded, the Applicant was required to appear in court. On these appearances the Applicant was represented by a lawyer for whom he paid. His co-accused was separately legally represented (Transcript page 31) in the appearances leading up to the trial. During this period he also reported to police as a condition of his bail, although, as noted above, at some point he did stop reporting to police and instead paid the police to falsely record him as having reported (Transcript page 34).
On the face of it, it seems that there was due process leading up to the Applicant’s conviction and he was legally represented throughout the process, even potentially at trial. What then does the Applicant put forward to displace the convictions as being treated as a serious reason to consider that he committed the crimes?
In his SFIC the Applicant raises the following arguments for the convictions not to be treated as serious reasons for considering that he committed the crimes:
18. On [redacted], [the Applicant] was convicted in absentia of gang rape and abduction by the High Court of Sri Lanka… (T24, 294). While [the Applicant] did receive legal representation prior to his trial (T24, 288), it appears he was not represented during his trial (T24, 294). [The Applicant] has always maintained that neither he, nor his friend [the co-accused], committed these crimes (T3, 44; T3, 54; T6, 117; T24, 288).
19. [The Applicant] has claimed that these charges are politically motivated (T6, 118) and has previously claimed to have had a sexual relationship with [the woman] (T3, 44; T3, 54) which he has since resiled from (T24, 288). The Delegate appeared to draw inferences of [the Applicant’s] guilt from these claims (T1, 18).
…
22. [The Applicant’s] convictions were secured during a trial for which he was unrepresented, when he was unable to challenge the evidence adduced against him and unable to give evidence himself. Were Sri Lanka to apply for [the Applicant’s] extradition, he would be deemed to merely be accused of these crimes: Extradition Act 1988 (Cth) s 10(1). As such, his convictions ought to be considered as no more than allegations, and, therefore, the starting point for the inquiry about serious reasons for considering, not its end: FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [37] per Hayne J.
…
28. Given the credible alternative explanation for claiming that his charges were politically motivated and the fact that there is no strong evidence that it is lie, it is submitted that [the Applicant’s] claim that his charges were politically motivated does not constitute reasons for considering that he committed the crimes for which he was convicted.
…
30. The fact of [the Applicant’s] convictions alone is not sufficient to ground a finding that there are serious reasons for considering that he committed the crimes of gang rape and abduction, given that they were obtained in absentia. The inferences drawn by the Delegate do not disclose a consciousness of guilt and cannot constitute reasons for considering that [the Applicant] committed those crimes.
The first of the matters raised is that the convictions were entered in absentia. The reason that the convictions were in absentia is that the Applicant, in breach of his bail conditions (Transcript pages 31-33), and probably also in breach of the Immigrants and Emigrants Act 1949 (Sri Lanka), absconded prior to trial. In cross-examination the Applicant conceded that the reason that he absconded while on bail, having bribed the police to record that he had reported in accordance with his bail terms (Applicant’s statement at T24, page 288, para. 9), was that with having to face the rape and abduction trial and “…with the other issues – I had some problems I had to face – I decided to come to Australia” (Transcript page 33). He also stated in cross-examination (Transcript page 37) that the reason that he took his boss’s boat and left Sri Lanka was:
Because of the issues I had, I had to come, because I - the political reasons, the other issues I had been facing, I had to leave Sri Lanka.
The Applicant in cross-examination also conceded that he appreciated that by his action of absconding he abandoned his opportunity to put his case at the trial. The following exchange took place at the hearing (Transcript page 35):
MR GERRARD: So when you left Sri Lanka you knew that your court proceedings had not finished.
INTERPRETER: Yes.
MR GERRARD: And you knew, by doing that, that you lost your opportunity, or you abandoned your opportunity to plead not guilty.
INTERPRETER: Yes.
MR GERRARD: And you knew that you abandoned your opportunity to give your side of the story.
INTERPRETER: Yes.
While it may be that in some cases a conviction in absentia should be treated with some caution, in this case, the only reason that the convictions were entered in absentia was because the Applicant absconded, by his own admission largely, because he did not want to face the trial. The circumstances of the Applicant’s conviction are different to those associated with the conviction by an Israeli Military Court of the applicant in the matter of Trikilis and Minister for Immigration and Border Protection [2017] AATA 1409. In that case the tribunal did not accept the conviction as constituting a substantial criminal record for the purposes of s 501(7) of the Act because of the serious questions surrounding the circumstances of the conviction. That is not the case with the Applicant’s convictions for abduction and rape. There appears to have been due process under a legal system that, on its face at least, seems not dissimilar to that of Australia. The Applicant was legally represented and it was solely as a result of his choice that he was not present at the trial.
The Applicant’s claim that the charges of abduction and rape were politically motivated does not stand scrutiny. The evidence is that the Applicant has never been a candidate in any election, he was not an office holder in any political party or involved in any high-profile political activity in connection with the 2009 elections or any other elections. As was noted in the reviewable decision, country information indicates relatively low levels of violence in the lead up to and on the election day and that there were no reports of election-related malpractices, irregularities or violence.
The Applicant’s claim that the charges were politically motivated does not explain why charges were laid against his co-accused, who, as far as the evidence before the Tribunal indicates (including the Applicant’s oral evidence), was convicted after a trial in which he was represented by legal counsel. The Applicant was cross-examined on that issue (Transcript pages 36 to 37), however, his explanation of why his co-accused, who had no political affiliations, was charged and convicted of abduction and rape if it was in fact the Applicant who was the target of the political interference, was less than convincing. In effect he couldn’t provide any coherent reason why that would have been the case if, as he claims, he was the target of politically motivated charges.
Further, the Applicant’s claim that the charges were politically motivated seems at odds with his alternative explanation that he and/or his co-accused (his story varies) had consensual sex with the woman and that she had been pressured by her family into claiming that she had been raped to avoid accusations of extra-marital sex. The Applicant’s story as to whether he had sex with the woman was also inconsistent. In his first statement to authorities made on Nauru in January 2013 shortly after he arrived by boat (T3 at 44), in the section “Were you ever arrested or detained by police or security organisations?” the Applicant provided the following answer:
Arrested by Sri Lankan police for 14 days;
Q: Why were you arrested?
A: At the time, involved during election time and I’ve been arrested because I worked for the UNP and the current government at the time, the Sri Lankan freedom party, the current government, they were the ones actually in power. Like I said before, the candidate I was helping before, during the interview, we helped him with posters, canvassing, meetings, stuff like that.
Q: Why were you arrested?
A: There was a fight between the two parties.
Q: What did the police charge you with?
A: The reason, I attacked the other group member.
Q: Is that the only time that you’ve been arrested?
A: Yes, there’s another involvement.
Q: When is the next time you were arrested?
A: I reckon it’s going to be back in 2010, but I’m not sure of the dates
Q: Briefly tell me why you were arrested that time.
A: Now this time my wife was in and I had an affair with another girlfriend, so what happened is meantime one day I was talking to her at the back of her house and her husband saw that we actually talking each other and then after that he gone to police and put a investigation on it and then the police arrested me for questioning.
In a statement made on 13 August 2017 (T24, page 288) the Applicant’s story was:
…
3. I can’t remember exactly when I was charged or when or who told me what the charges were.
4. [His co-accused] told me in gaol that [he] had a sexual relationship with [the woman].
5. I do think that [the woman] did consent to have sexual intercourse with [his co-accused] on the day I was arrested.
6. I didn’t have any relationship with [the woman].
…
17. I said that I had a relationship with [the woman] as I had let immigration know about the court case but I didn’t want to implicate [his co-accused] and I felt shame for having rape charge.
When asked in cross-examination why he had told immigration in 2013 that he had had an affair with the woman, his explanation was (Transcript page 26):
MR GERRARD: So your evidence is that you don’t remember telling the officers who interviewed you in Nauru that you had had an affair with [the woman], or with another person?
INTERPRETER: Yes, I can remember saying that, because there are some older people (indistinct), most the poor people came to Australia before that, they were older to me, and they advised me when I told them my story, so they were the senior refugees, sort of, and they said ‘You tell - you'll give - when you give evidence you tell this this way’.
MR GERRARD: All right, so now what you're saying is that you were told to tell this story on Nauru, not that you don’t remember that you had said an affair, but you were told to say that you'd had an affair?
INTERPRETER: I didn’t have any relationship with [the woman], but people told me to say this.
MR GERRARD: When you say ‘people’, do you mean other - well, who do you mean when you say ‘other people’? [sic]
INTERPRETER: They have about 200 people who came from Sri Lanka. They have some educated - well-educated people there. When they - they advised me to say this.
MR GERRARD: Right. So you're saying that you lied in that interview?
INTERPRETER: Yes, because they told me to say this.
This explanation for the change in his story lacks any logical basis. It does, however, demonstrate preparedness on the Applicant’s part to lie and to give answers that he perceives to be in his best interests rather than the truth. These are lies which are not incidental, but rather go to a material issue related to his commission of crimes of which he was convicted in Sri Lanka (see Edwards v The Queen (1993) 178 CLR 193 at 209 per Deane, Dawson and Gaudron JJ). It is fair to conclude that the Applicant chose to lie because he appreciated that telling the truth, even about the basis for his being arrested in Sri Lanka, would have been adverse to his interests.
I do not accept the Applicant’s claims that the crimes of which he was charged and for which he was convicted were politically motivated or that the complaints made to the police by the woman who claimed to have been abducted and raped were made as a result of pressure or for some ulterior purpose. Generally I did not find the Applicant to be a credible or truthful witness. Even allowing for the Applicant speaking through an interpreter, I found him evasive and inconsistent in his evidence. One example of this is his changing story concerning the stealing of the fishing boat on which he and the other five people came to Australia. In his initial interview in January 2013 he conceded that he had stolen the boat. In T3 at page 55, Question 8(a), the following exchange is recorded:
Q: So you stole the boat, is that correct?
A: Yes.
However, at the hearing the Applicant sought to resile from that admission. The following exchange took place (Transcript pages 37 to 38):
MR GERRARD: Yes, and it was your decision to take the boat?
INTERPRETER: Because of the issues I had, I had to come, because I - the political reasons, the other issues I had been facing, I had to leave Sri Lanka.
That's why I decided to come on this - in this boat. Now since coming here, for the last six years, I have no issues with anyone.
MR GERRARD: No, that's not the question I asked you. I didn’t ask you why you stole the boat. On two occasions Mr Glenister asked you questions about this. He asked you ‘Whose idea was it to take the boat?’, and you said ‘I decided’, and later on he asked you ‘Whose idea was it to steal the boat?’, and you said ‘Myself’. So that's correct, isn’t it?
INTERPRETER: I did not steal the boat. The other five people who came on the boat agreed to pay money, to be paid to the - money - agreed to pay money to the boat owner, and they said they will give me the money.
MR GERRARD: All right. Well you agree that you made the decision to take the boat?
INTERPRETER: Because they agreed to pay me - pay for the boat - I agreed. Otherwise I wouldn’t agree to them, if they did not (indistinct).
MR GERRARD: When it was said that it was your decision to take the boat, it was your decision, right?
INTERPRETER: Because they said that they will pay the money - - -
I find that in the circumstances of this case the convictions for abduction and rape following what, on the evidence, appears to have been due process, constitute a serious reason for considering that the Applicant did commit those crimes notwithstanding that the convictions were in absentia. The fact that the convictions were in absentia was effectively by choice of the Applicant. His conduct in breaching bail, stealing a boat and illegally leaving Sri Lanka to avoid the trial are indicative of him having committed the crimes of which he stood charged.
Are there serious reasons for considering that the Applicant committed the crimes of people smuggling or aggravated people smuggling contrary to the Act?
The uncontroverted evidence, largely that of the Applicant himself, is that:
(a)the Applicant stole the boat in which he and five others left Sri Lanka without the “permission of the Sri Lankan authorities and….valid travel documents” for the express purpose of coming to Australia (T24, paras. 21 and 22);
(b)the Applicant was the skipper of the boat nominated on the fishing pass issued by the Sri Lankan Navy (T24, para. 20);
(c)the Applicant was the skipper of the boat for the purposes of leaving the harbour (Transcript page 39);
(d)it was the Applicant who determined that there should not be any more than six people on the boat when it left the harbour because any more than that would have aroused Sri Lankan Navy suspicion (Transcript pages 39 to 40); and
(e)all of the people on the boat were non-citizens of Australia and none had a lawful right to come to Australia.
The above facts are a serious reason for considering that the Applicant committed the serious crime of people smuggling contrary to s 233A of the Act and/or aggravated people smuggling contrary to s 233C of the Act. In particular his action of stealing the boat, of which he was the nominated skipper, facilitated the coming to Australia of five other non-citizens, none of whom had a lawful right to come to Australia.
The fact that others may also have been involved in organising the boat trip from Sri Lanka to Australia, or elements of the venture, such as purchasing fuel or supplies, does not alter the fact that the Applicant’s actions significantly and critically facilitated the coming to Australia of the five other people. The single most important element of the venture was the stealing of the boat by the Applicant. Without that there would have been no boat trip to Australia. Accordingly, I find that there are serious reasons to consider that the Applicant also committed the offences of people smuggling or aggravated people smuggling. For the reason set out in [64] above, I have determined that offences against ss 233A and 233C of the Act are serious non-political crimes.
Are there serious reasons for considering that the Applicant committed breaches of s 45C of the Immigrants and Emigrants Act 1949 (Sri Lanka)?
As noted at [63(a)] above, it is admitted by the Applicant that none of those on the boat, including himself, had valid travel documents and that he did not have a Sri Lankan passport (T24, at 289 para. 22). Those admissions would be serious reason to consider that the Applicant had breached s 45C of the Immigrants and Emigrants Act 1949 (Sri Lanka). Although the penalty for a breach of that law is a term of imprisonment of not less than one and not more than five years, it is, in my view, doubtful whether a breach of s 45C of that Act would constitute a serious non-political crime when considered in light of the tests set out in [37] to [43] above. On balance I do not think that a breach of s 45C of the Immigrants and Emigrants Act 1949 (Sri Lanka) is a crime of the type judicially and extra-judicially identified as being a serious non-political crime for the purpose of the Act or the Refugees Convention.
CONCLUSION
I find that there are serious reasons for considering that the Applicant committed the crimes of rape and abduction and that he committed an offence or offences under ss 233A and/or 233C of the Act. I also find that the crimes of rape and abduction and offences under ss 233A and 233C of the Act are serious non-political crimes. I also find that there is nothing in the circumstances in which those serious crimes were committed or the circumstances specific to the Applicant at the time that he committed those offences or subsequently, which should cause those crimes to be treated as anything other than serious non-political crimes for the purposes of ss 5H(2)(b) and 36(2C) of the Act. Consequently, I find that, by operation of s 5H(2)(b) of the Act, the Applicant is not a person in respect of whom Australia has obligations because he is a refugee and that he therefore does not satisfy the criterion set out in s 36(2)(a) of the Act. I also find that by operation of s 36(2C) of the Act the Applicant does not satisfy the criterion set out in s 36(2)(aa) of the Act.
As the Applicant does not satisfy the criteria in either s 36(2)(a) or s 36 (2)(aa) of the Act, he is not entitled to the grant of a protection visa.
DECISION
For the reasons set out herein I find that the Applicant is not entitled to a safe haven protection visa and, accordingly, I affirm the reviewable decision.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.....[sgd]...................................................................
Associate
Dated: 23 October 2018
Date(s) of hearing: 31 August 2018 Counsel for the Applicant: Mr Glenister Solicitors for the Applicant: Cathal Smith Legal Pty Ltd Counsel for the Respondent: Mr Gerrard Solicitors for the Respondent: Australian Government Solicitor
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