Tamil X v Refugee Status Appeals Authority

[2009] NZCA 488

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR PARTICULARS IDENTIFYING X AND Y

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/2008 [2009] NZCA 488

BETWEEN  X Appellant

ANDREFUGEE STATUS APPEALS AUTHORITY

First Respondent

ANDATTORNEY-GENERAL (MINISTER OF IMMIGRATION)

Second Respondent

AND  Y

Third Respondent

Hearing:         6 and 7 May 2009

Court:            Hammond, Arnold and Baragwanath JJ Counsel:        C S Henry for Appellant and Third Respondent

I C Carter and R A Kirkness for First and Second Respondents

Judgment:      20 October 2009 at 4 pm

JUDGMENT OF THE COURT

A        The appeal with respect to X is allowed.

B        The cross-appeal with respect to Y is dismissed.

C        The  cases  of  X  and  Y  are  remitted  to  the  Refugee  Status  Appeals

Authority, for consideration of their refugee status claims under Article

1A(2) of the 1951 Convention Relating to the Status of Refugees.

X V REFUGEE STATUS APPEALS AUTHORITY And Ors CA CA109/2008 [20 October 2009]

D       Costs are reserved.

E        This case may be cited as Tamil X v Refugee Status Appeals Authority.

REASONS

Hammond J  [1] Arnold J  [145] Baragwanath J  [182]

HAMMOND J

Table of Contents

Para No

Introduction  [1] The general narrative  [9] The Refugee Status Branch consideration  [19] The Refugee Status Appeals Authority appeal  [27] The judicial review application  [45] X’s appeal  [53] The appropriate approach to Article 1F of the Refugee Convention

The provenance of Article 1F  [56]

The practical difficulties associated with Article 1F  [67]
The doctrinal features of Article 1F  [71]

Complicity in crimes against humanity (Article 1F(a))

Introduction  [83]

The approach in the RSAA and High Court  [89] The correct legal test for complicity  [93] Was the “serious reasons for considering” threshold met in

this case?  [108]

Commission of a serious non-political crime (Article 1F(b))

Introduction  [113]

The approach in the RSAA and High Court  [115] Discussion [119] Conclusion  [125]

Y’s cross-appeal

Introduction  [128]

Y is declined refugee status  [131] The RSAA appeal  [132] The High Court determination  [133] This appeal  [137] Discussion  [138]

Result  [144]

Introduction

[1]      We have before us an appeal by X and a cross-appeal by the Attorney- General in relation to Y from a decision of Courtney J in the High Court: HC AK CIV-2006-404-4213 17 December 2007.  In her judgment, Courtney J dealt with a judicial review application brought by X and Y regarding a decision of the Refugee Status Appeals Authority (RSAA), which declined to grant both parties refugee status: Refugee Appeal No 74796 (19 April 2006).  X and Y are a married couple who are citizens of the Democratic Socialist Republic of Sri Lanka.

[2]      The RSAA found that X was not a refugee because he fell within Article 1F of  the  1951  Convention  Relating  to  the  Status  of  Refugees  (the  Refugee Convention).   It held that there were serious reasons for considering that X was complicit in crimes against humanity committed by the Liberation Tigers of Tamil Eelam (LTTE) and had committed a serious non-political crime.  The RSAA found that  Y  was  not  a refugee within  the  meaning  of  Article  1A(2)  of  the  Refugee Convention.   This was because Y had no well-founded fear of persecution if she returned to Sri Lanka.

[3]      X appeals against the High Court’s refusal to grant judicial review of the RSAA’s decision in relation to him.  The Attorney-General cross-appeals against the High Court’s grant of judicial review to Y and its remittal of her case back to the RSAA for a reconsideration of her refugee status.

[4]      The grounds of appeal in X’s case, as set out in the Notice of Appeal, are as follows:

1.1The  decisions  of  the  [RSAA]  and  the  High  Court  were  wrong because it is unreasonable, if applying the correct principles, to have concluded that there are serious reasons for considering that I have committed crimes against humanity and/or a serious non-political crime before coming to New Zealand.

1.2In arriving at its decision, the [RSAA] erred by effectively placing the burden on me to show that I was not ineligible for refugee status.

1.3Both the [RSAA] and the High Court adopted inferences which are unsupported by any or any sufficient evidence.

[5]      X seeks an order setting aside the decision of the RSAA, and remitting to it his application for refugee status, for consideration by a differently constituted panel than that which arrived at the challenged decision.

[6]      A note of caution must be intruded at this point.  This appeal is against the judgment of the High Court, which was a judicial review of the RSAA decision.  It is not a general, open-ended merit appeal against the determination of the RSAA. Effectively, Mr Henry maintained before us that the RSAA got it wrong, both in its legal approach and how it handled the facts, and that the High Court should have decided accordingly.  Such an approach would be quite inconsistent with orthodox judicial review principles.  It was only after some judicial prodding that the appeal was brought onto a proper footing.

[7]      With respect to X’s appeal, I propose to proceed in the following manner in this judgment.  First, I will set out the general narrative.  Secondly, I will indicate the course that the proceeding took in the Refugee Status Branch (RSB).  Thirdly, I will outline the RSAA determination.  Fourthly, I will note the basis of the complaint to the High Court, and the decision of the High Court on judicial review.  Fifthly, I will deal with the appeal against the High Court determination.

[8]      I will then deal separately with the cross-appeal relating to Y.

The general narrative

[9]      X was born on 26 August 1956 in Velvettithurai, Sri Lanka.  For most of his adult  life  he  has  worked  in  the  shipping  industry.    In  November  1981,  X  left Sri Lanka and was employed by the Petrostar Company in Saudi Arabia, and then as a third engineer with the Arabian Petroleum Supply Company.  Between 1981 and

1989, he spent a total of no more than two months in Sri Lanka, spread over three visits.  In June 1989, during the last of those visits, he married Y.

[10]     Following the marriage, X did not return to Saudi Arabia.   He spent five months at home before travelling to Singapore in November 1989 to work for the Neptune Orient Line as a fourth engineer on a container ship.  X next returned to Sri Lanka to be with his wife for the birth of their first child, a daughter who was born in May 1990.  Despite obtaining a licence of competence to work as a maritime engineer in 1991, X was unable to secure a job in his area of expertise for many months.

[11]     Finally, in June 1992 X was contacted by an employment agent who alerted him  to  a  chief  engineer  position  aboard  a  Honduran-flagged  cargo  boat,  the MV Yahata.  That vessel was owned by a company based in Thailand.  X joined the Yahata on 5 July 1992 to work as its chief engineer.  He had not previously held a position with that level of seniority.  His certificate was to act as a second engineer. But he was given this position aboard the Yahata because it was a relatively small ship compared to others on which he had previously worked.  The vessel had a crew of nine, including X.  For the remainder of 1992, the Yahata carried cargo between various ports in Thailand and Singapore.

[12]     On 4 January 1993, the Yahata set sail from Phuket on a voyage to Sri Lanka. Cargo was loaded in packets and barrels that we now know to have been arms and explosives.  During the loading, ten passengers boarded the Yahata in addition to the nine crew on board.  One was Krishnakumar Sathasivam, a founding member of the LTTE known as “Kittu”.  The other passengers were LTTE cadre.

[13]     X’s account was that he did not know that the Yahata was a LTTE ship nor did he know that those on board were LTTE members or sympathisers.  He claimed that he was only made aware of this when the Master of the Yahata brought two of the passengers to the engine room where he worked, to be shown the ropes by X. The passengers were resistant to being given orders and told X that they were from the LTTE.  X was disturbed by this development.  He protested to the Master, who confirmed that the Yahata was a LTTE ship, and then declared his wish to leave the ship before it sailed.  The Master firmly told X that he could not do so prior to the ship’s arrival in Sri Lanka.  The ship sailed with all LTTE passengers on board.

[14]     On the evening of 13 January 1993, the Yahata was intercepted on the high seas by a coastguard vessel of the Indian Navy.  Repeated radio calls to the Yahata were not responded to.  When the Master replied, he did not give the correct name of the vessel.   After the coastguard personnel demanded to board the Yahata for verification, the Master said that the boat contained explosives and that dire consequences would follow if an attempt to board was made.   The Yahata then attempted to flee.  After a chase, the Master acceded to the coastguard personnel’s demand that the Yahata sail towards Madras.   Near Chennai Harbour, the Yahata was surrounded by at least five vessels and two helicopters of the Indian Navy. Eventually, the naval vessels opened fire on the Yahata, and the crew, including X, jumped into the sea to save themselves.   They were rescued by Indian Navy helicopters while the Yahata sank, engulfed in flames.   The ten LTTE passengers who had come aboard, including Kittu, perished from causes which have apparently never been specifically determined.

[15]     The Yahata crew who had been rescued were detained and taken to Indian soil.   They were charged with committing, in international waters, nine offences against the domestic law of India.   After a trial in the Indian Court of Sessions, which lasted 36 days between September 1994 and June 1996, all the accused were acquitted on all charges.   During this period, X and the other crew members had remained in prison.

[16]     After the acquittals, the prosecution immediately appealed directly to the Supreme Court of India, under s 19(1) of the Terrorist and Disruptive Activities (Prevention) Act 1987 which specifically enabled such a course.  The two charges under that Act were striking terror in a section of people (here, the Indian naval/coastguard personnel!) (s 3(1)) and conspiring or attempting to commit a terrorist act (s 3(3)).

[17]     The Supreme Court of India set aside the acquittals of all nine crew members on two of the charges which had initially been laid under the Indian Penal Code

1860, and entered convictions: State v Jayachandra (Criminal Appeal No 823 of

1996) 13 March 1997.  The charges were for assault or criminal force to deter public servants from discharge of their duty (s 353), and mischief with intent to destroy or

make unsafe a decked vessel committed by fire or explosive substances (s 438).  The Supreme Court took this course after it “perused the evidence” which had been presented to the Court of Sessions.  X and his co-accused were then sentenced to a three year term of “rigorous imprisonment”.

[18]     Notwithstanding that the crew had already served their sentences, they all remained in custody under Indian immigration legislation for being in India without valid travel documents.   For reasons associated with his immigration status, X remained in custody in India until he was able to obtain a Sri Lankan passport in November 2000.  He was permitted to leave India for Singapore in August 2001.  He obtained a New Zealand visitor’s visa in Singapore and arrived in New Zealand on

13 September 2001.   Y and the couple’s two children arrived in New Zealand on visitor’s visas in December 2001.  Shortly thereafter, X and Y applied for refugee status.  Both X and Y have family in New Zealand and had made a social visit on an earlier occasion.

The Refugee Status Branch consideration

[19]     Article 1A(2) of the Refugee Convention defines a refugee as a person who:

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 ...

[20]     The basis of X’s claim to refugee status under Article 1A(2) was that because of his presence on the Yahata and his trial and conviction in India, he would be at risk of being regarded by the Sri Lankan authorities as a member of or supporter of the LTTE if he returned to Sri Lanka.   Further, should he return to Sri Lanka he would come under pressure from the LTTE to join or assist them.  If he agreed, he would increase the danger of coming to harm at the hands of the Sri Lankan authorities.  If he refused, he would risk being harmed by the LTTE.  Y’s claim was that she would be harmed either by the authorities or by the LTTE because she is the wife of X.

[21]     After a period of investigation of over a year, the RSB declined X and Y’s application  for  refugee  status  in  New  Zealand:  Claim  No  4071582  &  4094761

27 June 2003.

[22]     In the course of a lengthy decision, the RSB accepted X and Y’s claims as credible.  Significantly, the RSB accepted as credible X’s account of his employment as chief engineer on board the Yahata.

[23]     The RSB then turned to the issue of whether X and Y had a well-founded fear of persecution.  According to the RSB, X and Y feared returning to Sri Lanka for the following reasons (at 20):

(i)[X  and  Y]  fear  the  Sri  Lankan  authorities  because  they  will  be waiting for the return of the men associated with the MV Yahata incident.  If they were to return to Sri Lanka, [X and Y]  fear that X would be arrested, interrogated and mistreated because of his association with the MV Yahata; and

(ii)       [X and Y] fear the militant groups, Eelam People’s Revolutionary Liberation Front (“EPRLF”), Eelam People’s Democratic Party (“EPDP”), People’s Liberation Organisation of Tamil Eelam (“PLOTE”)  and  the  Tamil  Eelam Liberation  Organisation (“TELO”).    These militant groups may also target [X] for mistreatment because of his association with the MV Yahata.

[24]     In relation to fear of the Sri Lankan authorities, the RSB took the view that

(at 27):

... there is not a real chance [X] would be of interest to the Sri Lankan authorities:

•   [X] was cleared of any link with the LTTE and of engaging in terrorist activity by the Indian authorities;

•    He has already served his sentence in India;

•    He was able to acquire a genuine, valid Sri Lankan passport;

•    [Y] was not questioned about [X] by the Sri Lankan authorities;

•   She was able to acquire a genuine, valid Sri Lankan passport without any assistance; and

•   The Sri Lankan government is actively pursuing ceasefire talks with the LTTE, and has removed restrictions on the movement of all Sri Lankan citizens, including Tamils.

[25]     In relation to fear of the LTTE, the RSB considered (at 29):

There is no indication that either of them are of interest to the LTTE.  [X] has  never  been  approached  by  the  LTTE,  and  was  involved  in  the MV Yahata incident by accident.  There is no evidence that his position as a crewmember onboard this vessel has solicited any interest in him by the LTTE.   [Y] lived in Sri Lanka throughout [X’s] ordeal, and was never approached by any LTTE members inquiring after [X].

[26]     The RSB concluded that there was not a chance of X and Y being persecuted if they returned to Sri Lanka.  Because their fear of being persecuted was not well- founded,  X  and  Y  were not  refugees  within  the  meaning of  Article  1A(2)  and refugee status was declined.

The Refugee Status Appeals Authority appeal

[27]     Both X and Y appealed to the RSAA on 4 July 2003.  A hearing was held on

2 and 3 December 2003.   There was then a lengthy gap until two further days of hearing on 7 and 8 March 2006.

[28]     The RSAA explained this delay as follows.  By the end of the second day of the appeal hearing, the RSAA had, of its own motion, come to the view that the Article 1F exclusion provision had potential application in this case.

[29]     Article 1F of the Refugee Convention provides:

The provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)       He has been guilty of acts contrary to the purposes and principles of the United Nations.

(Emphasis added.)

[30]     The exclusion issue had not been raised by the RSB or in the submissions filed prior to the RSAA hearing.  Leave was granted for written submissions to be filed addressing the exclusion issue.   On 10 December 2003, Mr Petris, the then solicitor for X and Y, filed a brief submission to the effect that no exclusion issue arose on the facts.

[31]     The RSAA described this submission as untenable (at [5]): “Because the [RSAA] received so little assistance from both the [RSB] and from the solicitor for the appellant on the exclusion issue it was, of necessity, required to conduct its own researches.   Regrettably, this took some time”.   The product of this research, including extensive country information, was collated into two volumes of material, and was released for consideration in October 2005.   Further submissions and evidence for X and Y were filed in February 2006.   The hearing reconvened in March 2006.

[32]     The RSAA decision released on 19 April 2006 dismissed the appeals by X and Y.   X was excluded from the Refugee Convention by Article 1F(a) and (b). While she was not excluded from the Refugee Convention, Y was not a refugee within the meaning of Article 1A(2).

[33]     The RSAA decision begins with a short introduction discussing the delay which had occurred.    Under the heading “Background”, the circumstances surrounding the extraordinary sinking of the Yahata are detailed. This is followed by a lengthy chronicle of the misdeeds of the LTTE in Sri Lanka, based on the research assembled by the RSAA. Extensive examples of LTTE attacks on the civilian population are given to demonstrate “a consistent and flagrant pattern of human rights abuses by the LTTE in the twelve year period 1985 to 1996”: at [24]. After a contextual discussion of Kittu and the Yahata, the decision then sets out X’s case, where X denied all knowledge that he was on a LTTE vessel before 4 January

1993: at [35]-[48].

[34]     The RSAA then considered the credibility of X.  It said that X’s denial had to be assessed against “the totality of the evidence comprising not only his own account

but also the country information … as well as the written account given by one of the oilers on board the Yahata, Mohan”: at [49].

[35]     As early as December 2003, Mr Petris had advised the RSAA that X had been in contact with Mohan Theivasigamani, and that Mohan had been recognised as a refugee in the United Kingdom.  A Home Office letter dated 12 September 2002 confirming  that  Mohan  had  been  granted  indefinite  leave  to  enter  the  United Kingdom as a refugee was tendered as evidence.

[36] The RSAA noted that while Mohan’s statement clearly raised the issue of exclusion, “neither the appellant nor the [RSAA] has been able to ascertain whether this issue received consideration prior to Mohan being recognised in the United Kingdom as a refugee”: at [56]. When this Court became aware that Mohan had been recognised as a refugee in the United Kingdom, we pressed counsel for a copy of the decision. We are most grateful to Mr Carter for going to some trouble to procure the decision for us.

[37]     We now know the details of Mohan’s refugee status claim.  The RSAA did not.   On appeal, Mohan was granted refugee status in the United Kingdom: HX/22281/2001 20 December 2001.  The adjudicator held:

10.4.Applying Paragraph 156 of the UNHCR Handbook I do not consider that the exclusion clause should apply in this particular appeal as no evidence  has  been  adduced  that  the  Appellant  has  committed  a serious crime such as a capital offence.  However, I consider that the degree of persecution which the Appellant fears quite severe.

…

10.6.I consider that as the Appellant is fairly high ranking and has some notoriety he would be immediately brought to the attention of the authorities upon his return to Sri Lanka.  I have no doubt in my mind that following this the Appellant would be severely ill treated and tortured.

[38]      Mohan’s statement which was before the RSAA included the following:

During my last trip from Singapore which was made on vessel Yahata to Sri Lanka via Thailand on December 15, 1992.  This vessel belonged to the LTTE and was carrying arms and explosives for the LTTE.  [Kittu] joined us along with nine others, half way at Straits of Mallaca.  He too was returning back to Sri Lanka.

[39]     The RSAA considered that Mohan’s account challenged X’s account in the following ways (at [57]):

(a)       The Yahata was a LTTE vessel.   The presence of Mohan on that vessel as an oiler was not an accident or coincidence.  He was placed on the vessel by the LTTE after having proved himself as a loyal and dedicated member of that organisation.  It seems surprising that the appellant was not similarly a trusted and loyal LTTE member or supporter.

(b)The statement by Mohan … explicitly asserts that the vessel was carrying arms and explosives for the LTTE.  If the oiler knew this information, how is it that the Chief Engineer did not?

[40]     It is now necessary to set out in full the RSAA’s reasons for its adverse credibility assessment in relation to X:

[59]      The central issue in the appeal is whether the appellant is telling the truth when he asserts that he had no knowledge that the Yahata was a LTTE ship.  That is, until it was boarded by Kittu and his associates several days before the interception by the Indian Navy; that he was never asked, prior to joining the Yahata (or subsequently), whether he supported the LTTE; and that he had no means of acquiring knowledge (or cause for suspicion) either in relation to his dealings with the other members of the crew or in relation to the nature of the cargo carried by the Yahata.

…

[61]     In the following circumstances the Authority rejects the appellant’s claims that his presence on the Yahata was innocent, without knowledge that it was a LTTE vessel and without knowledge of its cargo, particularly the explosives it was carrying at the time it was intercepted by the Indian Navy.

[62]     First, it defies common sense that the LTTE would hire as Chief Engineer a person in respect of whom no loyalty test had been conducted and in respect of whom no inquiry at all had been made as to his sympathies. If the appellant’s denials are to be believed, it would mean that the LTTE placed in command of the engine room of a vessel in its fleet a person of unknown quantity.   In this relatively small vessel carrying a total crew of only nine (four of whom worked in the engine room), only the appellant was able to diagnose and supervise the vessel’s means of propulsion.   As the appellant said, the vessel could set sail without a Chief Engineer but if there were mechanical problems it was highly unlikely that the unqualified oilers would be able to restore propulsion.  This raises the question as to why an organisation as formidable as the LTTE would put in the hands of a wholly unknown element a vessel carrying not only a huge quantity of explosives but also the then second in command of the LTTE.  The appellant told the [RSAA] that he was not the only member of the crew surprised and unhappy at the presence of Kittu and the nine other men on the Yahata.  He said that one of the other oilers (Indralingam) and the second officer (Satkumalingam) were also most unhappy.  But this only makes the appellant’s story even less believable, asserting as he does that of the three officers on board, only the

Master was aware that it was an LTTE ship and that the two other officers were not.   His account also requires acceptance that more humble crew members such as the oiler Mohan were carefully chosen for proved loyalty but that two of the three officers were not.

[63]      Second, the appellant says that he was never aware of the nature of the cargo carried by the Yahata during his six months of service on the vessel.   That is, with the exception of the single occasion on which the Master told him that the boxes or packages contained air-conditioners.  He said that there was no connection between the deck and the engine room. While admitting to having seen parcels he claimed that he did not know what was inside them.  As to the statement by Mohan that he (Mohan) knew the cargo of the vessels on which he served, the submission made on behalf of the appellant is that Mohan’s knowledge of the presence of the explosives was knowledge gained ex post facto during the course of the criminal trial in India.  As mentioned earlier, we do not accept that this is how the statement by Mohan reads.  On the contrary, it is a detailed narrative given from first hand knowledge.   In particular para 10 of the statement is explicit in describing the cargo carried by other LTTE vessels on which Mohan served as “cloths, medication and petroleum products”.   When in para 11 Mohan describes the Yahata as carrying “arms and explosives for the LTTE” the context shows that this is a narrative of what Mohan personally observed. We are of the view that it is inherently improbable that after serving six months on a small vessel the appellant was quite unable to describe the cargo during this period apart from “packages” and “petrol drums and diesel”.

[64]      Third,  in  addition  to   these  factors,   when  the  appellant   was questioned about his knowledge that the vessel was part of the LTTE fleet, the overwhelming impression was of a witness who deliberately turned a blind eye to the obvious.   He claimed to have kept his distance from the crew, even the three oilers who worked daily under his supervision in the engine room.  He knew little more than their place of birth.  He also kept his distance from the other crew and did not fraternise with them.  In the result, after six months at sea with eight other persons, he claims to have known virtually nothing about his companions. When one adds:

(a)  His denial of any knowledge that the Yahata was a LTTE vessel;

and

(b) His  claim  that  at  no  time  was  he  ever  asked  whether  he supported the LTTE; and

(c)  His denial that he ever had cause for suspicion (until the arrival on board of Kittu)

the  accumulation  of  factors  is  so  overwhelmingly  improbable  that  the [RSAA] has no hesitation in rejecting his evidence.  The denials are, in our view, a device employed by the appellant to cover the fact that he was on the Yahata because he was a trusted member of or supporter of the LTTE and was willingly engaged in assisting the LTTE to smuggle war material including explosives into Sri Lanka for use by the LTTE.   As a dedicated and conscientious individual he had acquired the skills which would allow him to competently run an engine room on a small vessel such as the Yahata and was now putting his skills to good use.  He was aware that to maintain its cover the Yahata necessarily engaged in the carriage of “legitimate” cargo

but when the need or opportunity arose, it would then smuggle war material for the LTTE.  His responsibility, as the second most important officer on board, was to ensure that the means of propulsion was dependable and if there was a breakdown, that it was repaired.

[65]     From his own personal experience and observation, having lived in Velvettithurai and other places in the north of Sri Lanka as well as Colombo, he was well aware that the LTTE was guilty of gross human rights abuses on a large and systematic scale including the killing of innocent civilians and the deliberate bombing of civilian targets.  In fairness he accepted as much. But the issue is whether his presence on the Yahata was an innocent or knowing one.  Notwithstanding his denials to the contrary, the [RSAA] is of the view that his engagement in the secretive smuggling operations of the LTTE was a fully knowing one and evidence of his dedication to the aims, objectives and methods employed by the LTTE.  He knew that the items he helped smuggle into Sri Lanka would as likely be used in “conventional” warfare against the Sri Lankan Army as in perpetrating gross human rights abuses against innocent civilians.

[41]   The significance of the RSAA’s findings at [64]-[65] should not be underestimated.  The RSAA did not merely find that there were “serious reasons for considering” that X was complicit in the LTTE’s activities.  Rather, the RSAA made a very strong affirmative finding that X was “fully knowing” and complicit in gross human rights abuses by helping to smuggle arms into Sri Lanka which would likely be  used  both  in  conventional  warfare  against  the  Sri Lankan  Army and  against innocent civilians.   Those are, of course, findings of the utmost seriousness.   It is difficult to think of a jurisdiction which, knowing of these findings, would accept X’s presence with any degree of equanimity.  The consequences of being returned to Sri Lanka may well be very serious for X, given the events which have transpired in that country.

[42] After a survey of Article 1F jurisprudence, the RSAA considered that there was “personal and knowing participation by [X] and a sharing by him of a common purpose with the LTTE in the commission of the crimes against humanity”: at [126]. Thus, the RSAA concluded that X was excluded from the Refugee Convention by Article 1F(a) because there were serious reasons for considering that X had committed a crime against humanity: at [128].

[43]     While it was not strictly necessary to then address Article 1F(b), the RSAA

held as follows (at [142]):

Looked at against the background of the facts and circumstances earlier outlined and the level of penalty inflicted by the Supreme Court of India, we conclude that any of these crimes is of sufficent gravity to justify the withholding from the appellant the benefits conferred by the Refugee Convention.   By virtue of Article 1F(b) the provisions of the Refugee Convention cannot apply to [X].

[44] While Y was not excluded from the Refugee Convention, the RSAA considered that she had failed by a “substantial margin” to establish the well-founded fear element of the Article 1A(2) definition: at [146].

The judicial review application

[45]     X and Y sought judicial review of the RSAA’s decision.   That application was heard in April 2007.  Almost eight months then went by until the High Court delivered judgment in December 2007.

[46]     Mr  Henry  for  X  asserted  that  the  RSAA  erred  in  law  in  the  following respects:

(a)Failing to interpret Article 1F restrictively, so as to place the burden of proof on the Executive and accord X the benefit of the doubt when making its credibility assessment.

(b)Making an adverse credibility determination against X when there was no, or no adequate, evidence to support it.

(c)      Failing to identify the specific crime against humanity that the RSAA considered there were serious reasons for thinking X was complicit in.

(d)Finding  that  there  were  serious  reasons  for  thinking  that  X  was complicit  in a  crime  against  humanity when  there  was  no,  or  no adequate, evidence on which it could reach that conclusion.

(e)      Relying on the judgment of the Supreme Court of India convicting X

of offences under the Indian Penal Code 1860 to conclude that there

were serious reasons for thinking that X had been guilty of a serious non-political crime.

[47]     The High Court Judge first canvassed the proper approach to an application for judicial review of this kind (at [6]):

The Court will only intervene if the decision or the decision-making process exceeds the [RSAA’s] power, is procedurally unfair, is based on a misunderstanding of the facts or discloses an error of law, if the [RSAA] has taken irrelevant matters into account, or is so unreasonable that no rational authority could have made that decision.

She cited B v Refugee Status Appeals Authority HC AK M1600/96 23 July 1997 with approval and concluded (at [9]):

To succeed, X and Y must show that the [RSAA’s] decisions, including its determination in relation to X’s credibility, were so unreasonable that no RSAA, properly conducting itself, could have made them.

(Emphasis added.)

[48]     In relation to the first ground of appeal, the Judge held that it would be wrong to interpret Article 1F so as to place the burden of proof on the Executive, and accord X the benefit of the doubt.  The Judge said (at [22]):

Where there is evidence, the issue in a judicial review application can only be whether a [RSAA] conducting itself properly could reasonably have reached the conclusions it did on the evidence before it.  It would, however, be wrong to view this as being determined by reference to a burden of proof.

[49]     The   second   ground   of   appeal   was   whether   the   RSAA’s   credibility determination was open to it on the basis of the evidence.  Under this head, the Judge concluded (at [54]):

[T]he  [RSAA]  was  not  bound  to  give  X  the  benefit  of  the  doubt  in considering his version of events and that there was credible information available to it in the form of published material and Mohan’s statement which was inconsistent with the account X gave.  There was, therefore, an adequate basis on which the [RSAA] could have concluded that X’s account lacked credibility.   The fact that it could have drawn different inferences from some of that material does not justify this Court interfering with its decision.

[50]     On the third ground of appeal – whether the RSAA had identified the specific crime against humanity that it had serious reasons for considering X was complicit in

– the Judge held (at [69]):

…  the  position is  clear that the [RSAA] …  had to  identify one of the specified crimes against humanity, but not a particular instance of that crime.

[51]     On the fourth ground of appeal – whether it was open to the RSAA to find that X was complicit in a crime against humanity – the Judge held (at [86]):

Whilst there is no evidence of X’s involvement in the LTTE as a member, much  less  a  leader  in  the  organisation,  and  no  evidence  of  direct participation by him in any previous attacks on civilians, his participation in that voyage, even if there was no other such voyage, cannot be viewed in any way other than providing active assistance to the LTTE with knowledge of the real possibility that the explosives and weapons were destined to be used against civilians.  I therefore consider that it was open to the [RSAA] to find that X was complicit in the war crimes committed by the LTTE.

[52]     Finally, in relation to the commission of a serious non-political crime under

Article 1F(b), the Judge had this to say (at [99]):

[The RSAA] was entitled to undertake its consideration of Article 1F(b) in the context of its earlier finding that X was a loyal supporter of the LTTE and was willingly on board the MV Yahata with knowledge of its cargo.  In those circumstances the [RSAA] was entitled to conclude that, notwithstanding the unsatisfactory aspects of the Supreme Court’s decision, it was sufficient to provide serious reasons for considering that X had committed the crimes for which he was convicted.

X’s appeal

[53]     X’s  grounds  of  appeal  before  this  Court  are  set  out  at  [4]  above.    The arguments before us were wide-ranging.  They included extensive discussion of the appropriate standard of review  to be employed in a  case of this character, and whether  review  of  fact-finding  by  an  administrative  tribunal  is  permissible  on judicial review.  Because Mr Henry’s initial written submissions were insufficiently focused on the actual decision under appeal (that of the High Court), we found it necessary to allow further written submissions.   This has regrettably delayed the delivery of this judgment.

[54]     I have had the advantage of seeing in draft the judgment of Baragwanath J. He agrees with me on the grounds on which I would allow the appeal.  But he has taken the view that it is also appropriate to consider some of these wider issues, and would allow the appeal on those grounds too.

[55]     I think  the  appeal  can  and  should  be  resolved  on  a  straightforward  and orthodox judicial review basis: namely, that both the RSAA and the High Court misdirected themselves in law as to the proper approach to the issue of complicity in crimes against humanity.  To articulate this proposition, I need first to make some general comments about the proper approach to Article 1F, and then to address the specific issue of complicity in crimes against humanity and serious non-political crimes.

The appropriate approach to Article 1F of the Refugee Convention

The provenance of Article 1F

[56]     The definition of a refugee in Article 1A(2) of the Refugee Convention is a person who owing to well-founded fear of being persecuted for a Convention reason is unable or, owing to such fear, is unwilling to avail him or herself of the protection of that country.   The stipulated Convention reasons are race, religion, nationality, membership of a particular social group or political opinion.  For a careful treatment of the refugee definition, see Hathaway The Law of Refugee Status (1991).  Refugee status most usually arises in the wake of cataclysmic events such as civil or military wars or other periods of great social and economic upheaval.

[57]     The aftermath of the Second World War produced just such an upheaval, as countless thousands of refugees washed about the face of Europe and elsewhere.  It was in this context that the Refugee Convention was born.   This Convention has since been subscribed to by more than  a hundred nations.   A  good  number of countries have also absorbed the Convention into their domestic law, either in whole or in part, as a base standard in domestic legislation upon which asylum and other related protections have been formulated.  In New Zealand, refugee determinations

are governed by Part 6A of the Immigration Act 1987.  Section 129D(1) provides that refugee status officers and the RSAA are to act in a manner that is consistent with  New  Zealand’s  obligations  under  the  Refugee  Convention;  the  text  of the Refugee Convention itself is set out in Schedule 6.

[58]     From the outset, one of the concerns of the drafters was to avoid the Refugee Convention being abused.  This could happen in at least two ways.  First, there was the possibility of refugee status being granted to war criminals who were fleeing from  the  Axis  powers.    As  the  Supreme  Court  of  New  Zealand  has  noted  in Attorney-General v X [2008] 2 NZLR 579 at [15]: “[i]n a Convention negotiated in the years following the Second World War, [Article 1F] was intended to ensure that war criminals could not escape extradition and prosecution by claiming refugee status”. Secondly, there was the problem of divisive individuals, still torch-bearers for their various causes, who might in one way or another jeopardise the internal security of asylum countries. Why would countries sign up to an asylum convention if it meant those countries had to allow some particularly bad specimens of humanity into their body politic?

[59]     Article 14(2) of the Universal Declaration of Human Rights 1948 carved out an  exception  to  the  right  to  seek  and  enjoy  asylum  from  persecution  in  other countries in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.   Thus, in drafting  the  Refugee  Convention,  it  was  necessary  to  safeguard  the  rights  of countries of refuge just as much as the rights of potential refugees.   Hathaway described refugee law in its embryonic form as “constitut[ing] a humanitarian exception to the protectionist norm”: at 2.

[60]     Just how this safeguarding was to be done is a story of some complexity, which  is  detailed  in  a  number  of  works  on  international  law.    See  generally Goodwin-Gill & McAdam The Refugee in International Law (3ed 2007) at 162-190. Van Krieken (ed) Refugee Law in Context: the Exclusion Clause (1999) has a comprehensive collection of the basic documents.

[61]     The  outcome  of  the  international  accord  was  Article 1F  (at  [29]  above), which provided that those persons who fell within the Article were not considered to be deserving of international protection.   Articles 1D and 1E excluded from the refugee definition those receiving UN protection or assistance and those who were not considered to be in need of international protection.  As Robinson Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953) at

67 said:

Section F is couched in categorical language … It  follows that, once a determination is made that there are sufficient reasons to consider a certain person as coming under this section, the country making the determination is barred from according him the status of a refugee.

[62]     The peremptory effect of Article 1F has been noted by this Court in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 297, and by the Supreme Court of New Zealand in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [29].

[63]     Sovereign prerogatives were preserved by permitting Contracting States to decide for themselves when a refugee status claim was within the scope of the Article 1F exclusion provision.   In response to a proposal that exclusion be determined  by the United  Nations  High  Commissioner  for  Refugees  (UNHCR), Mr Rochefort,  a  French  drafter  of  the  Refugee  Convention,  said  (UN  Doc E/AC.7/SR.166 22 August 1950 at 6):

… in the absence of a world government and of a sovereign international court of justice, that power of discretion, which was an essential safeguard both for the real refugee and for the country of refuge, must, perforce, be left to States.  The only practical solution was to trust the countries which were willing to grant hospitality.

[64]     The issue of who determines refugee status was resolved by the UNHCR

Handbook on Procedures and Criteria for Determining Refugee Status under the

1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979) at

189:

It is … left to each Contracting State to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure.

[65]     The Contracting State must have “serious reasons for considering” that a claimant is within Article 1F.  Right from the outset, it was recognised that this was a difficult standard.  For instance, Mr Lequesne of the United Kingdom considered the standard to have been “too vague to justify an important decision.  The choice was difficult: it was necessary either to allow governments to take an administrative decision when a judicial decision was called for, or to run the risk of including …

criminals”: 5 UNGAOR (334th meeting) 4 December 1950 at 390.

[66]     For a quarter of a century, such doctrinal issues did not matter very much, as Article 1F was rarely invoked.  That may have been because the sort of persons who could have been caught by the exclusion provision routinely “went to ground” and simply did not apply for refugee status.   After all, one would not have readily advertised that one was an ex-Nazi seeking asylum.  However, appalling events in various places in the latter half of the twentieth century have brought the exclusion issue into much greater prominence, with all its attendant difficulties.   For an overview, see Gilbert “Current issues in the application of the exclusion clauses” in Feller, Türk & Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) at 425-478; and Hathaway

& Harvey “Framing Refugee Protection in the New World Disorder” (2001) 34

Cornell Int’l LJ 257.

The practical difficulties associated with Article 1F

[67]     Refugee status determination, particularly in relation to Article 1F issues, is complex yet must attract high quality decision-making.

[68]     The difficulties are apparent enough: somebody like X effectively comes out of the night, against the background of extraordinary and unusual facts.  Houle has said:

The process of assessing the weight of evidence to determine refugee status is complex and difficult, mainly because of the absence of credible evidence on which to base the refugee claims.   The events related by the claimant cannot be checked directly: they took place in a foreign country and often a considerable  period  of  time  before  the  …  hearing.    In  most  cases,  the decision-maker is given an incomplete story, namely the claimant’s version

of  events,  and  even  then  this  is  usually  done  through  an  interpreter. Therefore [decision-makers] are required to make sound decisions based on scanty, ever-changing information about the claimants’ countries of origin and, more significantly, information about a culture that is alien to them.  In fact, [decision-makers] are required to assess the credibility of testimony in something of a cultural vacuum.   These factors often impede [decision- makers] from fully understanding the claimant’s story.

“Pitfalls for Administrative Tribunals in Relying on Formal Common Law Rules of Evidence” in Creyke (ed) Tribunals in the Common Law World (2008) 104 at 107.

[69]     To like effect, see Goodwin-Gill & McAdam at 551:

Refugee claims are not like other cases; they rarely present hard facts, let alone positive proof or corroboration.   More often than not, the decision- maker must settle for inferences instead, that is, conclusions drawn from the generally inadequate material available.  In the absence of hard evidence, the possibility of persecution must be inferred from the personal circumstances of the applicant, and from the general situation prevailing in the country of origin.  The credibility of testimony is thus both an essential pre-condition to the drawing of inferences relating to refugee status; and a matter of inference in itself.   Inference in this context does not mean the strict logical consequences of known premises, or the process of reaching results by deduction or induction from something known or assumed.  Rather, it is the practical business of arriving at a conclusion which, although not logically derivable from the assumed or known, nonetheless possesses some degree of probability relative to those premises.

(Emphasis in original.)

See also Pearson “Fact-Finding in Administrative Tribunals” in Pearson, Harlow & Taggart (eds) Administrative Law in a Changing State: Essays in Honour of Mark Aronson (2008) at 301.

[70]     A recognition of these problems leads me to think that the difficulties in refugee cases, and perhaps even more so in Article 1F cases, are more forensic than doctrinal.   Nevertheless, there are some doctrinal disputes about Article 1F which were much aired before us, and on which I should comment.

The doctrinal features of Article 1F

[71]     A great deal of ink has been spilt on the standard which is required for exclusion of a person under the Refugee Convention.  The textual standard in Article

1F is that the decision-maker must find there are “serious reasons for considering”

that the claimant falls within Article 1F(a), (b) or (c).  “Serious reasons” can hardly be described as a specific standard. The UNHCR Guidelines on International Protection: Application of the Exclusion Clauses HCR/GIP/03/05 4 September 2003 have opined that to satisfy the standard, “clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met”: at [35].

[72]     In perhaps the leading journal article on the subject, Bliss argues that the “threshold is not a familiar standard in most legal systems and does not in itself provide a clear and precise test”: “‘Serious Reasons for Considering’: Minimum Standards of Procedural Fairness in the Application of the Article 1F Exclusion Clauses” (2000) 12 IJRL 92 at 115.  Bliss goes on to suggest that the standard is less than that required for conviction for a criminal offence in a common law system, but greater than a civil balance of probabilities standard: at 115-116.

[73]     Glass has rightly noted that “‘on the balance of probabilities’ and ‘beyond reasonable doubt’ reflect the particular values and interests considered to be at stake in, for example, negligence cases or criminal cases.  Refugee law generates different values and interests”: “Subjectivity and Refugee Fact-Finding” in McAdam (ed) Forced Migration: Human Rights and Security (2008) 213 at 216.

[74]     The  distinct  values  and  interests  generated  by  refugee  law  means  that attempting to approximate the “serious reasons for considering” standard of proof to a civil or criminal standard is ill-advised.  As Lord Steyn held in R v Secretary of State for the Home Department; ex parte Adan [2001] 1 All ER 593 at 605:

In  principle,  therefore  there  can  be  only  one  true  interpretation  of  [the Refugee Convention] … in practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it.   But in doing  so  it  must  search,  untrammelled  by  notions  of  its  national  legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.

[75]     This quest for the “true autonomous and international meaning of the treaty” has received an imprimatur in the Article 1F context by the English Court of Appeal in Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222. In that case, Sedley LJ held (at [33]-[34]):

It is part of [counsel’s] case that the standard of proof set by Art 1F is cognate with the criminal standard, that is to say proof beyond reasonable doubt or such that the tribunal is sure of guilt.  This is manifestly not right. The whole point of Art 1F is that it is dealing, at least in limbs (a) and (b), with people who in many instances might have been convicted and gaoled but have not been.  If the receiving state is in a position to prosecute them, it is a necessary assumption that it will do so.   Art 1F therefore deals with asylum-seekers who are suspect but still at large.  At the same time it clearly sets a standard above mere suspicion.  Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.

What it says can, however, be legitimately read in the light of the co-ordinate French text, which uses the phrase “des raisons sérieuses de penser".  This certainly imports no additional weight into the verb “consider” in the English text.

(Emphasis added.)

[76]     Arden LJ’s concurring speech in Al-Sirri dealt with the required standard in similar terms (at [77]):

There is no doubt that the Refugee Convention imposes obligations of the highest importance on states to provide refuge to refugees, and that the exceptions from the obligation to give refuge, such as that contained in art 1F(c),  must  be  applied  only  when  the  state  justifies  this  course  as required by art 1F(c).  As to the meaning of “serious grounds”, Art 33(2) of the Refugee Convention provides some guidance.   Under that provision a refugee cannot claim the benefit of refoulement if “there are reasonable grounds for regarding [him] as a danger to the security of the country in which he is …”.  The expression “serious reasons” is different from, and in my judgment on the natural meaning of the words requires more than “reasonable grounds”, for otherwise the same phrase would have been used in art 1F(c).

[77]     The view that the Refugee Convention simply means what it says has also found favour in Australia: Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at [56] (FC) and VWYJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1 at [25] (FC).

[78]    It follows that the required approach is similar to that of s 5(1) of the Interpretation Act 1999 (NZ): the meaning of an enactment must be ascertained from its text and in the light of its purpose.  In the Refugee Convention context, one has to give effect to the text bearing in mind the purpose, but with no added glosses that are not contained in the text itself.  If there are to be limitations, those should have been

provided by the Refugee Convention or the Contracting State’s implementing legislation.

[79]     In the result, the correct standard has to be considered in the terms of the Refugee Convention itself: the decision-maker  has to be satisfied that  there are “serious reasons for considering” that exclusion should apply.  The decision-maker does that by considering all the relevant material that is available to it.   Adding glosses by analogy with civil litigation or criminal prosecution simply confuses matters.

[80]     Even more ink has been spilt on the so-called “burden of proof”, although that terminology is inapt in this subject area: Jiao v Refugee Status Appeals Authority [2003] NZAR 647 at [31] (CA).

[81]     One  view,  consistent  with  traditional  common  law  principles  and  the

UNHCR Guidelines, is that it is entirely reasonable, given the character of Article

1F, to expect the decision-maker to presume that the claimant is innocent.  It is said there  is  enough  of  a  linkage  between  exclusion  and  the  criminal  process  that claimants should be given the benefit of the doubt before a decision-maker finds that there are “serious reasons for considering” that they fall within Article 1F.

[82]     The point of view adopted by the High Court Judge in this case is that the person seeking refugee status is responsible for ensuring that all information and evidence that he or she wishes to have considered is provided to the RSAA: see s 129P(1) of the Immigration Act.  This view was affirmed by this Court in Jiao at [31]. While the RSAA may make further enquiries if it sees fit, it is not obliged to do so but can decide the refugee claimant’s application on the evidence before it: s 129P(2). There is no burden on a refugee claimant to prove that Article 1F does not apply.

Complicity in crimes against humanity (Article 1F(a))

Introduction

[83]     The central issue on this appeal is whether the High Court was wrong to conclude that it was open to the RSAA on the evidence before it to find that X was complicit in crimes against humanity.

[84]     To invoke Article 1F, there must be “serious reasons for considering” that a claimant has (a) committed a crime against peace, a war crime, or a crime against humanity; (b) a serious non-political crime; or (c) is guilty of acts contrary to the purposes and principles of the United Nations.

[85]     The  parties  do  not  dispute  that  the  LTTE  has  been  involved  in  the perpetration of crimes against humanity and war crimes, as defined in the requisite international instruments, on a wide scale.

[86] An issue of critical importance in this particular case is whether there were “serious reasons for considering” that X was a member of the LTTE and involved in the commission of crimes against humanity. The RSAA observed that X’s liability, if any, would depend upon being an accomplice or party because there was “no evidence” that the appellant personally committed a war crime or crime against humanity: at [107].

[87]     The burden of Baragwanath J’s judgment is devoted to a consideration of whether  the  act  of  shipping  explosives  and  ammunition  on  the  Yahata  could constitute a crime against humanity.   His approach is predicated on the view that carriage by LTTE vessels of arms and munitions may not be treated as per se unlawful when the broader civil war context is appreciated.

[88]     I prefer to resolve the appeal on a more orthodox judicial review basis: that the RSAA  and  the High  Court  misdirected  themselves  in  law  as  to  the proper approach to complicity in crimes against humanity under Article 1F(a).  I deal with this issue under the following heads: the approach in the RSAA and High Court; the

correct legal test for complicity; and whether the “serious reasons for considering”

threshold was met in this case.

The approach in the RSAA and High Court

[89]     The RSAA’s definitional approach to crimes against humanity was based on the Supreme Court of Canada’s four-part test in Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 SCR 100 at [119]. First, a proscribed act must be carried out. Secondly, the act must occur as part of a widespread or systematic attack. Thirdly, the attack must be directed against a civilian population. Fourthly, the person committing the proscribed act must know of the attack and know or take the risk that his or her act will comprise part of that attack. The RSAA expanded on the fourth point, of critical relevance to X, with reference to a series of decisions of the Federal Court of Canada including Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 FC 433 and Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306.

[90]     The RSAA then turned to whether the evidence established that there were serious reasons for considering that X had committed a crime against humanity as an accomplice or party.  It concluded (at [126]):

The real issue is whether the final element of a crime against humanity has been established, namely that the appellant was a party to those acts and in particular that there was personal and knowing participation by the appellant and  a  sharing  by  him  of  a  common  purpose  with  the  LTTE  in  the commission of the crimes against humanity.   In this regard we are of the clear view that the answer must be in the affirmative.  By the time he joined the Yahata in July 1992 he was thirty-six years of age.  He was a mature, intelligent, hardworking and conscientious individual whose very qualities made him an exceptional choice to be the Chief Engineer on a significant LTTE   asset,   the   Yahata.      With   his   marine   qualifications   acquired legitimately while working for other shipping companies, he could be relied upon to keep the Yahata going.  Born and raised in Velvettithurai and having spent most of his life living in northern Sri Lanka (apart from during the periods when he was at sea), he was well aware from his own witnessing of events, from the scale of the violence and from the historical and political environment in which the LTTE emerged, that the LTTE was guilty of gross human rights abuses on a large and systematic scale, including the killing of innocent civilians and the deliberate bombing of civilian targets.   He was also aware of the ethnic cleansing operations carried out by the LTTE.  He voluntarily and in full knowledge joined the Yahata.  His engagement on the secretive smuggling operations of the LTTE was, as we have earlier found, a

fully knowing one and evidence of his dedication to the aims, objectives and methods employed by the LTTE.  He knew that the items he helped smuggle into Sri Lanka would as likely be used in “conventional” warfare against the Sri Lankan forces as in perpetrating gross human rights abuses against innocent civilians.  Knowing all this he willingly joined the Yahata intending to assist the LTTE in the prosecution of the war through the methods which the LTTE had chosen, namely conventional warfare, the terrorising of the civilian population of Sri Lanka and the “cleansing” of the north and east of Muslims, Sinhalese and Tamils who did not support the LTTE.   The smuggling of arms and explosives into Sri Lanka was vital for each and every of these aims.

[91]     After surveying the Canadian jurisprudence before the RSAA (at [75]-[80]), Courtney J formulated her test for complicity in the following way (at [81]):

… it is clear that a person will be complicit in a crime against humanity if he or she participates, assists or contributes to the furtherance of a systematic and widespread attack against civilians knowing that his or her acts will comprise part of it or takes the risk that it will do so.  There need not be a specific event identified that is linked to the accomplice’s own acts.

[92]     Courtney J placed considerable emphasis on the basis on which she could review the factual findings of the RSAA, rather than scrutinising whether the correct legal test for complicity was applied.  In terms of whether it was open to the RSAA to find that X was complicit in a crime against humanity, Courtney J noted (at [86]):

Whilst there is no evidence of X’s involvement in the LTTE as a member, much less a leader in the organisation, and no evidence of direct participation by him in any previous attacks on civilians, his participation in that voyage, even if there was no other such voyage, cannot be viewed in any way other than providing active assistance to the LTTE with knowledge of the real possibility that the explosives and weapons were destined to be used against civilians.

(Emphasis added.)

The correct legal test for complicity

[93]     I am presently concerned with whether Courtney J’s approach to complicity erred in law.

[94]     For many years, there has been some debate about whether mere membership of an organisation is sufficient to give rise to complicity.  There is such a thing as “innocent” association: somebody may, in a formal or less formal sense, belong to an

organisation but not go beyond a passive role.  The difficulty in a practical sense is how to determine when there is a sufficient degree of complicity.   The closer somebody is to being a leader rather than a “rank and file” member, the more likely an inference can fairly be drawn that the person knew and shared the organisation’s aims and purposes in committing the relevant crime.  For a review of the relevant principles, see Valère v Minister of Citizenship and Immigration [2005] FC 524 at [21]-[24] (FC).

[95]     The test for complicity has recently been helpfully clarified by the English Court of Appeal in two recent cases concerning Article 1F and LTTE personnel: KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 and R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2009] 3 All ER 588.

[96]     The appellant in KJ (Sri Lanka) had been a LTTE member, albeit one who had not been involved with terrorist activities or attacks on civilians.  The Asylum and Immigration Tribunal excluded him from refugee status on the basis that he was an active member of an organisation that carried out acts contrary to the purpose and principles of the United Nations within the meaning of Article 1F(c).

[97]     On  appeal,  Stanley  Burnton  LJ  noted  that  “mere  membership  of  an organisation that, among other activities, commits [proscribed Article 1F] acts does not suffice to bring the exclusion into play”: at [35]. The Judge did not characterise the LTTE as an organisation that promotes its objects only by acts of terrorism; rather, “it pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka”: at [38]. In relation to organisations such as the LTTE, the operation of the exclusion provisions is less clear cut (at [38]):

A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities.  Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.

[98] In allowing the appeal on the Article 1F(c) issue, Stanley Burnton LJ noted that the “facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations”: at [40]. Thus, KJ  (Sri  Lanka) supports  the proposition that in cases where an organisation engages in a conventional military struggle among other activities, a searching examination of individuated guilt is required.

[99]     JS (Sri Lanka) concerned JS, a Tamil citizen of Sri Lanka who had claimed asylum in the United Kingdom.  The Secretary of State had found that JS had been a highly-trusted member in the intelligence wing of the LTTE and had been complicit in its crimes under Article 1F(a).

[100]   On appeal, JS argued that the LTTE is not an organisation solely or mainly devoted to the commission of terrorist acts; instead, it is a political organisation which has been openly engaged in armed combat against government forces.   A further ground of appeal was that the Secretary of State had made a general reference to acts committed by the LTTE and had inferred from the claimant’s position in the LTTE that he bore criminal responsibility for them.

[101] In allowing JS’s appeal, Toulson LJ considered that the starting point for a decision-maker addressing the question whether there are serious reasons for considering that an asylum seeker has committed an international crime, so as to fall within article 1F(a), is the Rome Statute of the International Criminal Court: at [115]. The decision-maker had to identify the type of crime (Articles 7 and 8), and then determine whether there were serious reasons for considering that the applicant was guilty of such a crime. Where criminal responsibility as a commander is not alleged, the decision-maker would have to consider the provisions of Articles 25 and

30 dealing with individual criminal responsibility and the required mental element. Article 25(3)(d) is directed at joint criminal enterprise liability:

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:

…

(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.

[102] Toulson LJ endorsed the principles of joint criminal enterprise liability identified by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v Tadić Case IT-94-1 15 July 1999 (at [104]):

According to that jurisprudence, in order for there to be joint enterprise liability, there first has to be a common design which amounts to or involves the commission of a crime  provided for in the statute.   The actus reus requirement for criminal liability is that the defendant must have participated in the furtherance of the joint criminal purpose in a way that made a significant contribution to the crime’s commission.   And that participation must have been with the intention of furthering the perpetration of one of the crimes provided for in the statute.

[103]   In disapproving of the guidance on the exclusion provisions given by the Immigration Appeal Tribunal in Gurung v Secretary of State for the Home Department [2003] Imm AR 115, Toulson LJ held that it was clear that mere membership of an organisation committed to the use of violence to achieve its political goals was not enough to make a person guilty of a crime against humanity. He agreed with Stanley Burnton LJ in KJ  (Sri  Lanka)  that  joining  such  an organisation may not involve conspiring to commit criminal acts or in practice doing anything that contributes significantly to the commission of criminal acts.

[104] While it was the purpose of some members of the LTTE to commit international crimes in pursuit of political ends, the Secretary of State had wrongly presumed that JS, as a member of the LTTE, was guilty of personal participation in those crimes: at [123]. Rather, the Secretary of State should have considered whether there was evidence affording serious reason for considering that JS was party to that design, that he had participated in a way that made a significant

contribution to the commission of the crimes, and that he had done so with the intention of furthering the perpetration of them.   Although JS’s position in the LTTE showed that he was trusted to perform his role, neither a significant contribution nor an intention to further the purpose of those members of the LTTE was shown.

[105]   The approach to joint criminal enterprise liability in Tadić, as endorsed in JS (Sri Lanka), is a distinctly more restrictive approach to complicity in the Article 1F context than that applied by Courtney J in the High Court.  The learned Judge and the RSAA before her relied on Canadian jurisprudence that, in fairness to them, has been overtaken by the emerging English jurisprudence canvassed above.

[106]   I respectfully adopt the approach to complicity endorsed by Toulson LJ in JS (Sri Lanka).   Given that New Zealand is a state party to the Rome Statute of the International Criminal Court, New Zealand refugee decision-makers should focus on that international instrument when tasked with discovering “the true autonomous and international meaning” of the Refugee Convention: ex parte Adan at 605.  Because Article 1F(a) refers specifically to the definition of crimes against humanity in the international instruments, JS (Sri Lanka) was correct to view those instruments, including the Rome Statute, as the principal source of reference for domestic courts: at [95]. The characterisation of joint criminal enterprise liability, derived from the ICTY in Tadić, has been supported by Professor May in Crimes Against Humanity: A Normative Account (2005) at 124-128.   Professor Cassese has described the approach to joint criminal enterprise in Tadić as a “fully fledged legal construct of modes of criminal liability” in international criminal law: International Criminal Law (2ed 2008) at 191.

[107]   It follows that X’s appeal against the Article 1F(a) finding must be allowed because the High Court and RSAA misdirected themselves in law as to the proper approach to complicity.   Appellate intervention is justified in this instance on a similar  basis  to  that  adopted  by  Kirby  J  in  Minister  for  Immigration  and Multicultural Affairs v Singh (2002) 209 CLR 533 at [134]:

… Allowing fully for the elusiveness of an all-encompassing definition of what amounts to a question of law, there could be no doubt that a demonstrated error in an approach by a decision-maker to the meaning and operation of a critical statutory phrase would be an error of law.  It will often

be difficult to discern error of law in a finding of primary facts.  However, where the decision-maker has given reasons that indicate that the finding was arrived at by a misunderstanding of the applicable legal test, or where the finding resulted from a failure to apply correctly the language of that phrase to the facts as found, a court reviewing for error of law is entitled to intervene.  It does so not to impose on the decision-maker any view that the court may have of the facts, but to ensure that the correct legal criteria are applied when the administrative decision-maker reaches the conclusion on the facts.

Was the “serious reasons for considering” threshold met in this case?

[108] In this case, the High Court Judge found that there was no evidence of X’s involvement in the LTTE as a member, much less a leader, and no evidence of participation in previous attacks: at [86]. I pressed counsel during the course of the hearing as to whether there was evidence to the effect that X had been involved in LTTE activities prior to taking up employment on the Yahata.   No evidence was presented.  Thus, as he walked down the Thai wharf to join the Yahata in July 1992, X was “clean”.

[109]   The Judge ascribed significance to X’s “participation in that voyage” in itself as evidencing “active assistance to the LTTE with knowledge of the real possibility that the explosives and weapons were destined to be used against civilians”: at [86]. But this finding contravenes the RSAA’s earlier finding that the cargo would “as likely be used in “conventional” warfare against the Sri Lankan forces as in perpetrating gross human rights abuses against innocent civilians”: at [126].

[110]   The Attorney-General’s argument on appeal is that the combination of risk that the cargo would be used unlawfully and X’s presence, by which he is taken to have accepted such risk, establishes serious reasons for considering that he thereby committed a crime against humanity.   In other words, it is suggested that X’s participation in the Yahata’s last voyage, coupled with a credibility determination adverse to his account, gives rise to per se liability for the commission of crimes against humanity.

[111]   The third element of the correct test for complicity in JS (Sri Lanka) assumes prominence here: that participation must have been with the intention of furthering

the perpetration of a crime against humanity. The requisite intention cannot be forensically inferred from physical presence on a boat and an adverse credibility determination based on the apparent implausibility of X’s account.   The RSAA’s finding that X joined the Yahata in “full knowledge” (at [126]) is unmoored from the correct legal test.

[112]   On the correct approach to complicity outlined above, there could not be “serious reasons for considering” that X was complicit in crimes against humanity under Article 1F(a) of the Refugee Convention.

Commission of a serious non-political crime (Article 1F(b))

Introduction

[113]   Article 1F(b) of the Refugee Convention provides that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

[114]   The Supreme Court of India entered convictions against X on the following two charges under the Indian Penal Code 1860:

353.Assault or criminal force to deter public servant from discharge of his duty –

Whoever assaults or uses criminal force to any person being a public servant

in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant or in

consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine, or with both.

438.Punishment for the mischief described in Sec. 437 committed by fire or explosive substance –

Whoever commits, attempts to commit, by fire or any explosive substance,

such mischief as is described in the last preceding section, shall be punished with imprisonment for life, or with imprisonment of either description for a

term which may extend to ten years, and shall also be liable to fine.

For the sake of completeness, s 437 provides:

437.Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden –

Whoever commits mischief to any decked vessel or any vessel of a burden

of  twenty  tons  or  upwards,  intending  to  destroy  or  render  unsafe,  or knowing it to be likely that he will thereby destroy or render unsafe, that

vessel, shall be punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.

The approach in the RSAA and High Court

[115]   In concluding that Article 1F(b) applied to X, the RSAA characterised the s 438 conviction as follows (at [141]):

Our assessment of the facts is that [the destruction of the Yahata] was not committed for a political purpose, that is to say, with the object of overthrowing  or  subverting  or  changing  the  government  of  a  state  or inducing it to change its policy.  Rather, the act was committed to destroy the vessel and its cargo and to thereby prevent their seizure.  This is a serious non-political crime.

[116]   Courtney J had concerns about the RSAA’s reliance on the Supreme Court of

India’s conviction (at [98]):

There  was  no  attempt  at  all  to  consider  the  position  of  any  individual accused.  If there was evidence, one might have expected some reference to it, given the careful consideration given to other aspects of the evidence.  If there was no evidence one might reasonably expect some reference to that fact and an explanation as to why the accused were all to be nevertheless regarded as equally culpable.   Secondly, whilst judges can be expected to apply the criminal standard without necessarily re-stating it, it is of concern that the Court’s conclusion was expressed in terms contrary to the criminal standard.

[117] These concerns did not detract Courtney J from holding that the RSAA was “entitled to conclude that, notwithstanding the unsatisfactory aspects of the Supreme Court’s decision, it was sufficient to provide serious reasons for considering that X had committed the crimes for which he was convicted”: at [99].

[118]   Significantly, the Judge held that the RSAA was entitled to undertake its consideration of Article 1F(b) in the context of its earlier finding that X was a loyal supporter of the LTTE and was willingly on board the Yahata with knowledge of its cargo: at [99].

Discussion

[119] The Article 1F(b) point can be disposed of shortly. I have placed emphasis (at [108] above) on Courtney J’s finding that there was no evidence of X’s involvement in the LTTE as a member prior to taking up employment on the Yahata. I have also  concluded  that  the RSAA  failed  to  apply the  correct  legal  test  for complicity in concluding that X joined the Yahata in “full knowledge”.

[120]   Thus, Courtney J considered Article 1F(b) in the context of findings that I have  determined  are  based  on  an  evidential  lacuna and  a misapplication  of  the correct legal test for complicity.

[121]   The suggestion that X’s loyal support of the LTTE and his full knowledge of the Yahata’s cargo gave rise to a “non-political crime” in the sinking of the Yahata bifurcates political and  non-political activities in a quite artificial manner.   The RSAA was seeking to have it both ways by:

[272]   Mr Carter invited consideration of the criteria to be taken into account in determining the intensity of review suggested in Mihos v Attorney-General at [107]:

(a)      the scheme of the Act; (b)        the subject-matter;

(c)      the implications of the decision;

(d)      the capacity of the Court compared with that of the decision-maker; (e)        the context of the decision.

These support the need for correctness review in the present class of case.

[273]   As to (a), the scheme of the Act, s 129D states:

129D Refugee Convention to apply

(1)  In carrying out their functions under this Part, refugee status officers and the  Refugee  Status  Appeals  Authority  are  to  act  in  a  manner  that  is consistent with New Zealand’s obligations under the Refugee Convention.

(2) The text of the Refugee Convention is set out in Schedule 6.

By appending the Refugee Convention and requiring that the RSAA comply with it Parliament has made clear that failure to do so is unlawful.  That does not confer any discretion and points to judicial intervention in the event of non-compliance.

[274]   As to (b), the subject-matter, and (c), the implications of the decision, the case engages a question of fundamental human rights at international law, breach of which would be of the utmost gravity.  While ss 8 and 9 of the New Zealand Bill of Rights Act 1990 would prevent executive removal which would expose X to loss of life,   torture,   or   cruel,   degrading,   or   disproportionately   severe   treatment,   a

determination that X lacks the right to seek recognition as a refugee is a form of outlawry.

[275]   As to (d), the capacity of the Court compared with that of the decision-maker, the position is like that of any court of general jurisdiction required to review the judgment of an expert tribunal.  The RSAA’s experience and undoubted competence will receive the same kind of consideration as its advantage of having seen and heard the witnesses.  Where such considerations are relevant they will receive due weight. But they afford no excuse to the reviewing court to wash its hands of the case or defer to the decision-maker below, as courts of general jurisdiction will defer to rating decisions by local authorities and commercial decision-making under statutory authority.  The protection of fundamental human rights is the core business of the courts  of  general  jurisdiction.    Such  rights  will  receive  priority  attention  and intensive consideration on review.

[276]   Finally as to (e), the context of the decision, the relevant considerations have been discussed.   Taken together, the factors all point to the need for review of an intensity which can be achieved only by application of the correctness standard.

[277]   That standard requires proof not that X has actually committed a war crime or a crime against humanity but of the existence of “serious reasons for considering” he has done so.  As Arden LJ observed in Al-Sirri, “serious reasons” is different from, and requires more than, “reasonable grounds”.  The approach of the English Court of Appeal which uses the words of Article 1F, rather than offering comparisons with the standards of civil and criminal cases, neither of which employs the 1F formula, captures the point.

The standard of risk to employ

[278]   No doubt the carriage of armaments which the carrier knows are to be used to commit a war crime or crime against humanity itself constitutes such crimes.  If the LTTE used its armaments only to commit such crimes, participation in such carriage by a chief engineer with such knowledge would make him party to the crime.

[279]   But that is not this case.  Here there was at most an unquantified possibility that the armaments might be used for such purpose.  So the initial question is: what quantum of risk of use of the cargo for a war crime or crime against humanity, rather than for conventional military purposes, must be established for the carriage itself to constitute such a crime?

[280]    In civil law the House of Lords has only recently moved to accept that, by proving that the defenders had materially increased the risk of injury, the pursuer had proved that they had materially contributed to his injury: R v McGhee [1973] 3 All ER 1008 (HL). Lord Rodger in Barker v Corus UK Ltd [2006] 2 AC 572 at [77] (HL) described that step as “radical”.

[281]   “Materially increased the risk” of relevant crime must be the lowest possible standard for the Crown to meet in this case.  Although the 110 tonnes of explosives said to be carried by the Yahata is large by any standard, no attempt was made in evidence to establish the incidence of the LTTE’s legitimate use of matériel in combat against its use for war crimes and crimes against humanity.  We cannot now embark upon speculation as to that.

[282]   But it is in any event unlikely that such a low level test could be regarded as appropriate  to  measure  serious  reasons  for  considering  commission  of  a  crime against humanity or war crime.  Pitched so low, it might have caught members of the mercantile marine who during the Second World War manned vessels carrying explosives which the crew knew might be used in retaliatory raids on cities rather than against military targets.   While at the time of the Battle of the Atlantic international criminal law tended to focus on states rather than actors (Cassese at 5), the point illustrates the need for balance and, indeed, proportionality in one of the senses of that controversial term.

[283]   The opinion of the leading writer on international criminal law is against such a low level test.  Cassese (at 10) recognises that, like most national legal systems, international rules criminalise conduct creating an unacceptable risk of harm.  Where there  are  conflicting  interpretations  of  a  rule  the  construction  in  favour  of  the accused (dubio pro reo) may be preferred (50-51); although that must be reconciled

with the evolution of the law.   Recklessness (dolus eventualis), where a person foresees that his conduct is likely to produce prohibited conduct and yet willingly takes the risk of so acting, is a recognised basis for liability under some international rules (66-67).  And (at 226):

Although there is no consistent case law on this matter, it would seem that the gravity of international crimes (or at least the most serious of them) may warrant the conclusion that planning the commission of one or more of such crimes is punishable per se even if the crime is not actually perpetrated… .

It would follow that planning an international crime is also punishable per se as a distinct form of criminal liability, subject to a set of conditions that can be derived from the general system of [international criminal law]:

1.   Only the planning of serious or large-scale international crimes constitutes a discrete offence… for international crimes of lesser gravity… those rules must be construed in such a way as to favour the accused (favor rei).  Consequently, the mere planning of those crimes of lesser gravity may be held not to constitute a crime per se…

3. As for the requisite mens rea, it is necessary for the author to intend that the crime be committed, or else he must be aware of the risk  that  the  planned  crime  would  be  perpetrated  by  him or  by someone else (recklessness or dolus eventualis)

…

… in international law no customary rule has evolved on conspiracy on account of lack of support from civil law countries for this category of crime.  (In civil law systems, entering into agreement to commit a crime is not punishable per se, unless it leads to the perpetration of the crime; only exceptionally, and for such categories of serious offences as undermining state security or at setting up associations or organisations systematically bent on criminal conduct in various areas, is conspiracy as such prohibited).   In 2006 in Hamdan the US Supreme Court, per Justice Stevens, rightly rule out that conspiracy is criminalised as a war crime in international law.

[284]   President Cassese’s approach and the English decisions, most recently JS, are to similar effect.  To be disqualified under Article 1F there must be serious reasons for considering that the individual was personally party to a prescribed crime.

[285]   Section  66  of  the  New  Zealand  Crimes  Act  1961  captures  the  various concepts which other systems of law employ to meet that test.  A person is guilty of the crime if he or she:

(a)      commits it;

(b)      does or omits an act for the purpose of aiding another to commit it; (c)         abets any person in the commission of the act;

(d)incites, counsels or procures another to commit the offence or is party to a common intention to carry out an unlawful purpose and assist one another therein and in the course of that conduct there is committed by one of the participants an offence whose commission was known to be a probable consequence of the prosecution of the common purpose.

[286] Certainly, the evidence of “serious reasons” is not confined to material satisfying conventional rules of evidence: Karanakaran at 477. But the evidence in this case does not provide serious reasons for considering that X’s conduct meets any of those tests.

[287]   It follows that X’s appeal must be allowed on the ground that even on the basis accepted by the RSAA there is no sufficient evidence to establish that his conduct meets the requirements of Article 1F.

(c) What was X’s role?

[288]   It is therefore strictly unnecessary to review in detail the challenges to the evidence against X.  But because there are problems with some of the strong factual findings it is desirable to offer some comment upon them.

The quantity of explosives

[289]   The first point concerns the quantity of explosives carried on the Yahata which, while equipped as a reefer, was not used for carrying frozen goods.   It is common ground that there is no evidence implicating either the vessel or X in LTTE activity prior to the final voyage from Singapore en route to Sri Lanka.   X was questioned  about  the  fact  of  the  LTTE’s  ownership  of  the  vessel  and  LTTE

involvement of other crew members.  They included an oiler, Mohan, who said that after being detained and tortured by the Indian peacekeeping force he had joined the LTTE in 1988.

[290]   For  two  years  Mohan  worked  in  a  LTTE  shell  factory  manufacturing munitions.  He served on other LTTE vessels which ferried clothes, medication and petroleum products between Thailand and Sri Lanka.   His last voyage was on the Yahata.  The RSAA correctly records that “[i]n his statement he describes the vessel unambiguously as carrying arms and explosives for the LTTE”.   The unedited statement reads:

11.  During  my  last  trip  from  Singapore  which  was  made  on  vessel YAHATA to Sri Lanka via Thailand on December 15, 1992.   This vessel belonged to the LTTE and was carrying arms and explosive for the LTTE. Mr Krishna Kumar @?? Kittu (Second in command after Mr Villaupllai Prabakaran) jointed us along with 9 others, half way at Straits of Mallaca. He too was returning back to Sri Lanka.

12.  When we reached about 440 nautical miles southeast of Madras on the

13 January 1993 the Indian Coast Guard spotted our ship and suspected the vessel as belonging to the LTTE.  The coast guard requested the Master of

the vessel to allow for boarding for verification, however the Master of the

vessel refused this.   He further told the Coast guard that the vessel was carrying 110 tonnes of explosives and thereafter we tried to flee away from

the Coast Guard Ship.

13.  We were however followed by the coast guard for about 2½ hours and 2 warning shots were fired and we finally agreed to sail accompanied by the coast guard towards Madras port.

14.  On the 14 January 1993, the Indian Naval ship also jointed the coast guard and escorted our ship to Madras.  Upon arriving at the Madras port. We together with Mr Kittu were ordered to be surrendered to the Indian authorities.   We refused, and requested to be represented by one of the Advocates  Mr  Chandrasekaran  in  India.     The  Indian  authorities  than requested us to assemble on the navigation side of the vessel without arms for which we refused and were standing with our arms.  During the course of these the Indian Navy open fire and one of our crewmembers were killed and one  injured.    During  these  shootout  I  was  inside  the  ship  having  my breakfast.  I heard the shooting and went out to see what was happening.

15.  I notice that one of the crewmembers were shot death and one injured and the middle of the deck got fire.  Then rest of us jumped into the sea. The others and I were rescued and arrested by the coast guard.  We were then transferred from Madras to Visakhapatnam Central Prison, Andrapradesh, India on the 18 January 1993.

[291]   The statement supports the finding that the vessel was carrying explosives. Its account that the quantity was 110 tonnes is dependent on what Mohan said he heard the captain say when responding to the interception by the Indian navy with the passage of the vessel through international waters but without displaying a national flag.  The prosecution contention that the vessel was actually carrying such quantity of explosives was later rejected by the Indian court which tried X and others, on the basis that a vessel of 130 tonnes could simply not accommodate 110 tonnes  of  explosives.    That  conclusion  was  not  challenged  in  the  subsequent judgment of the Indian Supreme Court.

[292]   The captain’s statement may have been an exaggeration aimed at dissuading the naval vessel from approaching.  But it cannot be taken literally.  Without it there is no evidence of what quantity of explosives was on board.

Involvement with the LTTE

[293]     The RSAA conducted two substantial oral hearings at each of which X was closely questioned by the members.  It described X as intelligent, hardworking and conscientious with exceptional recall of his personal history.  When it was put to X (at 1624-1628), “We know … that the vessel was carrying arms and explosives” for the LTTE, he responded (at 1625), “No I didn’t know that”.   The RSAA inferred from the whole of the evidence that he was lying.

[294]   It found that:

[65] …[X’s] engagement in the secretive smuggling operations of the LTTE was  a  fully  knowing  one  and  evidence  of  his  dedication  to  the  aims, objective and methods employed by the LTTE.  He knew that the items he helped smuggle into Sri Lanka would as likely be used in conventional warfare against the Sri Lankan Army as in perpetrating gross human rights abuses against innocent citizens.

[295]   En route to that conclusion it reasoned that the LTTE would never have engaged a chief engineer who was not trustworthy.  His subordinate Mohan was a LTTE member, as were others on board.   The RSAA found it inconceivable that during his six months on the vessel he did not discern that it was LTTE owned and used as a munitions carrier.   But in the absence of evidence that munitions were

carried on previous voyages, since 95 per cent of the activity of LTTE vessels was legitimate commerce, there is no particular reason to dispute X’s account that he was unaware of arms or munitions being carried on such voyages.

[296]   Nor is there more than suspicion that X knew before that voyage that the vessel was owned by the LTTE.

[297]   Approaching Singapore, from where it made its final trip, the vessel was permitted to drift for 10 days; X was challenged as to reason and responded that they were ahead of schedule.  Such delay, while suspicious, is consistent with a desire to avoid wharf charges by arriving prematurely and does not of itself go beyond suspicion to proof.

[298]   After leaving Singapore the vessel was approached by another, from which ten armed men including Mr Kittu boarded the Yahata.  There was no opportunity for X to withdraw from the vessel after that stage.  Mr Kittu was in command when the vessel was intercepted by the Indian navy and forced to approach the Indian coast.  It is notable that following the navy gunfire it was the crew who were rescued from the sea and the LTTE new arrivals who went down with the ship.

[299]   X was examined to the effect that he came from an area where the LTTE was based; that he joined the vessel from Trang where the LTTE has a cell; that he must have had conversations with LTTE crew members; and that if he was not a member the LTTE would never have appointed him to a vessel intended to perform the ultimate trip from Singapore with Mr Kittu and the other nine LTTE new arrivals on board.  Against that, two of the new arrivals were posted to the engine room.  No explanation was given for that course, which is consistent with Mr Kittu’s belief that X required supervision.

[300]   It is unnecessary to delve further into the present point.  The experience and high reputation of the RSAA is to be added to the normal advantage of a tribunal which has seen and heard the witnesses.   I would nevertheless observe that, while there  were obvious  grounds  for  suspicion,  the  evidence  supporting the  RSAA’s

conclusion is less convincing than it considered.  There is also need to take account of the Indian proceedings in which detailed oral evidence was called.

The Indian proceedings

[301]   The record before the RSAA included the judgments at first instance and of the Supreme Court of India in the criminal proceedings against X and others.  The trial Judge rejected the prosecution evidence that the vessel, of 130 tonnes, was carrying 110 tonnes of explosives as well as petro-chemicals, which was an assertion alleged to have been made by the captain to a naval officer.   He found that there were on board 10 AK 47 rifles, one FNC rifle, 25 to 30 hand grenades, one RPG launcher and 500-2000 rounds of ammunition.  He further found that the Indian navy had no right to interfere with the free passage of the vessel sailing in international waters between Singapore and Sri Lanka.  He acquitted X and his co-accused of all charges. The Supreme Court did not interfere with the factual findings save to hold that they had used criminal force against the Indian naval officers with intent to prevent them from discharging their duty and had been party to a common intention to destroy the vessel.

[302]   The RSAA treated the decision of the Supreme Court of India as definitive and was accordingly critical of the first instance judgment.  But, with respect to that great court, with its unparalleled responsibilities and achievements, we share the concerns about that decision which were expressed by Courtney J.

The High Court decision

[303]   Mr Henry submitted in the High Court that there was no evidence that X had used force against the naval officers or participated in destroying the vessel.  Nor did the Supreme Court of India give specific attention to his individual position. Moreover the notes of evidence of the trial were unavailable to the RSAA.  Crown counsel submitted that these considerations did not make the Supreme Court’s decision unreliable; it may be inferred that it argued that the Supreme Court would have had those materials and relied on them.

[304]   Courtney   J   accepted   that   there   was   reason   for   concern   about   the Supreme Court judgment; that given the careful consideration of other aspects of the evidence some reference to evidence against X might have been expected if such evidence existed.   But she held that, coupled with the RSAA’s finding on other evidence that X was a loyal supporter of the LTTE and willingly on board the Yahata with knowledge of its cargo, it was sufficient to provide serious reasons for considering that X had committed the crimes of which he was convicted.  In doing so she directed herself that the RSAA was not required to be satisfied to the civil standard of proof.

[305]   Several points arise.   First, while the captain was reported to have told the Indian authorities that there were 110 tonnes of explosives on board the vessel, an account supported by an acknowledged LTTE supporter Mohan whose statement was before the RSAA, we have noted that the court of first instance rejected the prosecution contention that there were in fact such explosives on the 130 tonne vessel.  The Supreme Court did not reverse that decision.

[306]   Secondly, the Supreme Court’s conclusion that the crew including X sank the

MV Yahata is without reasons or, it seems, evidence.

[307]   Thirdly, it does not at all follow that, even if the Supreme Court was right to convict X of using criminal force against the Indian naval officers with intent to prevent them from discharging their duty and of being party to a common intention to destroy the vessel, the RSAA was  therefore justified in bringing him within Article 1F.  The High Court did not engage with that issue.

Article 1F(b): non-political crime

[308]   The RSAA found and the High Court agreed that X was party to the offences of which the Supreme Court found him guilty and that there were therefore serious reasons for considering that he had committed a non-political crime.   But, as the High Court of Australia demonstrated in Minister for Immigration and Cultural Affairs v Singh, such determination requires care.

[309]   I disagree with the conclusion below on two grounds.  The first is that there was no basis for the charges.  There is nothing in either the judgment at first instance or the reasons on appeal to suggest that the vessel was sunk by persons on board rather than by gunfire from the naval vessel.  Nor is there any suggestion that X or, for that matter, the others who survived participated in any such conduct even if it was performed by Mr Kittu and the LTTE personnel who went down with the ship.

[310]   The second is that the entire prosecution case was that the Yahata and its crew were engaged in highly political activity.   To assert that at the last moment, between the gunfire and the sinking, that activity became non-political is unreal.

Decision on X’s appeal

[311]   Coupled with their adoption of a less exacting test than the law requires which necessitates that the appeal be allowed, the RSAA and the High Court did not focus on the significance of the LTTE’s status as a combatant in a civil war.  Had they done so X’s application for review would have had to succeed.   While I am concerned about aspects of the other factual findings I do not rest this judgment upon that topic.

[312]   I would allow the appeal and decline to direct a rehearing of the Article 1F issue on which it is not reasonably open to the RSAA to find against X.  There must be a further hearing before the RSAA of the Article 1A issue in respect of X.

[313]   Nothing in this judgment should be read as detracting from the high respect in which the RSAA as constituted in this case is held.   But appearance of predisposition must be avoided and the RSAA should be reconstituted for the next hearing.

The cross-appeal against Y

[314]   The RSAA found that there was no significant risk to Y if she were to return to Sri Lanka.   It emphasised the absence of difficulties experienced by her with government officials or the LTTE from the time her husband left Sri Lanka in

July 1992 to join the Yahata until her own departure from Sri Lanka in December

2001.  She had been issued with a Sri Lankan passport on 26 November 2001.  She was able to leave Colombo after the Yahata episode and return to the LTTE- controlled area of the north and from there to leave for New Zealand.

[315]   It  rejected  her  submission  that  the  authorities  had  made  no  connection between her and her husband and added that there had been a cease-fire in effect since February 2002 when a government ban on the LTTE was lifted.  It therefore dismissed her application under Article 1A on the ground that she had failed to established the “well founded fear of being persecuted” element.

[316]   Courtney J was satisfied that the RSAA had erred in using past experience to assess risk without considering whether there had been a change of circumstances, and in failing to consider whether, despite the cease-fire, persons in Y’s position as family of persons found to be LTTE supporters are suffering persecution.   She remitted the matter to the RSAA for reconsideration.

[317]   Mr Carter submitted that the evidence before the RSAA was relevant to future as well as past conditions and it should be credited with having considered the effect of the change in circumstances.

[318]   This Court comes to consider its decision with the benefit of hindsight.  The recent tragic events in Sri Lanka make plain that the expectation of the RSAA that the cease-fire would continue was optimistic.   While the present judgment raises questions about the RSAA’s findings that X was a leading member of the LTTE it has not proposed setting those findings aside.  Nor are those opposed to the LTTE likely to view his position in any refined way.   Much has happened in Sri Lanka even since argument in this appeal.  There is obvious need for reconsideration by the RSAA of whether in today’s conditions Y satisfies the requirements of Article 1A.

Decision on cross-appeal

[319]   I would dismiss the cross-appeal.

Costs

[320]   We were told that X and Y are legally aided.  I would therefore reserve costs.

Solicitors:

Witten-Hannah Howard, Auckland for Appellant

Crown Law Office, Wellington