(a) information provided in the Form 1399 was affected by miscommunication; > > (b) while unsure about the length of time served in Erbil in north Iraq, RSZN worked there in an administrative capacity 'in charge of running services such as food distribution, personal leave, staff welfare, etc'; > > (c) further, '[t]he applicant was not involved in armed conflict with Kurdish forces while [he] served in Erbil, but fought with gangs who used the opportunity of instability of the country and committed criminal acts ...'; and > > (d) RSZN was based in Basra during the Shia uprising and 'was a Captain linked to Division 37. He did not order or was involved in any armed conflict but served as an administrator in the regiment'.

3. In the decision under review here, in mid-2020, the delegate considered both written and oral statements made by the Applicant about his military service, and identified what was described as a 'substantial shift' in RSZN's claims (T24a), 265). That is, put simply, the Applicant had earlier characterised himself as undertaking combat roles but later claimed to be working in an administrative capacity. The delegate considered that the material demonstrated that RSZN had served in combat roles in both the Anfal campaign and in Basra when he returned there. This, combined with consideration of a substantial amount of country information, led to the finding that the Applicant was not owed protection obligations due to his particular contribution to the campaign against the Kurds in the north, and the suppression of the Shia in Basra.

1. The meaning of 'refugee' is provided in s 5H of the Act, but under ss 5H(2) the term does not apply in circumstances where the Minister:

... > > has serious reasons for considering that:

(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations ...

1. The same serious reasons identified above also operate, by reasons of s 36(2C) of the Act, to prevent a non-citizen satisfying the protection obligations that might otherwise qualify them for grant of a protection visa.
2. Principal among the numerous international instruments prescribed in the Migration Regulations 1994 (Cth) at r 2.03B is the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998 (the Rome Statute). The Full Court of the Federal Court of Australia held in SRYY v Minister for Immigration and Indigenous and Multicultural Affairs [2005] FCAFC 42; (2005) 147 FCR 1 (at [67] and [76]) that the Rome Statute is an appropriate instrument for the purposes of considering the commission of crimes against humanity and war crimes.
3. Various authorities provide insight into the task of determining whether serious reasons arise in a given matter. They include:

(a) there is a need for 'meticulous investigation and solid grounds' in order to meet the standard established in the legislation (WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245, at [52]) (WAKN); > > (b) it would be concerning should a finding be based on 'merely extrapolating from the criminality of an organisation to that of an individual without ... undertaking any clear analysis of purpose or complicity ...' (WAKN); > > (c) given the exclusionary effect of the provision in the context of fear of persecution, a decision must be made 'only on clear and convincing evidence, not simply on suspicion and speculation' (WAKN, citing Cardenas v Canada (1994) 23 Imm.L.R. 92d, 244); and > > (d) the requirement of serious reasons 'requires that there is a rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision maker is required' (GZCK v Minister for Home Affairs and Another [2021] FCA 1618, (GZCK) at [149]).

4. Extracts of the relevant articles of the Rome Statute and the accompanying Elements of Crime document are set out in GZCK (at [128]-[134]), and also in the RSFIC (at [37]-[55]).
5. Article 7(1) of the Rome Statute provides that crime against humanity means any of the various specified acts 'when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack'. Acts specified include: murder, extermination, deportation or forcible transfer of population, and persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds universally recognised as impermissible.
6. Article 8 of the Rome Statute defines war crimes as acts contrary to the Geneva Conventions of 12 August 1949, other serious violations of the laws and customs applicable in international armed conflict, and also certain actions taken in armed conflict not of an international character.
7. It is implicit throughout the submissions of the Respondent in this matter that the Minister considers RSZN only culpable for crimes against humanity since no reliance is placed upon war crimes. I infer from this approach that either or both the factual background or country material are not considered adequate to breach the threshold of 'armed conflict'. As I do not have submissions as to the relevance of war crimes to the Applicant's circumstances, it would be unreasonable - and potentially procedurally unfair - to attempt to address them as part of my considerations.
8. Article 7(2) provides, relevantly, the following definitions:

(a) attack directed against any civilian population means 'a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to, or in furtherance of a State or organizational policy to commit such attack'; > > (b) extermination includes 'the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population'; > > (c) deportation or forcible transfer of population means 'forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law'; and > > (d) persecution means 'the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity'.

9. Article 9 of the Rome Statute (Elements of Crimes) provides that the elements 'shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis'.
10. The elements for the crime against humanity of murder are:
    1. The perpetrator killed one or more persons.
    2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
    3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.
11. The elements of the crime against humanity of extermination are:
    1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.
    2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.
    3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
    4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
12. The elements of the crime against humanity of deportation or forcible transfer are:
    1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
    2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
    3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
    4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
    5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
13. The elements of the crime against humanity of persecution are:
    1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.
    2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
    3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
    4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.
    5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
    6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
14. Individual criminal responsibility is provided for in a variety of forms in art 25(3) of the Rome Statute:

... a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime ...

1. Additional criminal responsibility may lie in a commander under art 28 for crimes committed by forces under their effective command and control, or effective authority and control, as a result of failure to exercise proper control.
2. Article 30(1) of the Rome Statute provides for a mental element for criminal responsibility being that the material elements of the crime must be committed 'with intent and knowledge'. The article further provides:

1. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct; > > (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

1. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events ...
2. Defences are provided for in the Rome Statute as follows: art 31(1)(d), duress resulting from a threat of imminent death or serious bodily harm and the person acts necessarily and reasonably to avoid this threat; and art 32, mistake of fact that negates the mental element required. Under art 33, commission of a crime pursuant to superior orders does not relieve a person of criminal responsibility unless they were under legal obligation to obey, did not know the order was unlawful, and it was not manifestly unlawful.

1. The single issue before me is to determine whether there are serious reasons for considering whether RSZN has committed crimes against humanity.

1. It is appropriate to first address RSZN's military career, including his involvement in the two campaigns which are said by the Respondent to raise concerns about the Applicant's commission of crimes against humanity.
2. I will then set out the relevant elements of country information provided in this matter with respect to the two campaigns said to be the setting for crimes against humanity. This material is constituted of material lodged by the Respondent. The Applicant did not lodge country information or expert material, and neither party introduced an expert witness.
3. A brief chronology will assist in framing the evidence. Not all elements of this chronology rely upon material produced for the hearing.

Final phase of Anfal campaign (25 August - 6 September)

1. There is no dispute in this matter as to the general character and duration of RSZN's career in the Iraqi army. The written and oral evidence together demonstrate that RSZN was a career officer who served in the Iran-Iraq War following graduation from military college. The evidence also demonstrates that he was an infantry officer throughout his career, and I accept that he saw combat service in the Iran-Iraq War and was wounded, probably in 1986.
2. Written evidence about his career progression was broadly confirmed in the Applicant's oral evidence. RSZN stated in evidence that he received promotions approximately every three years and I understood him to amend prior written descriptions of his career. Thus, he stated that he served as a LT between 1983 and 1986, a First LT between 1986 and 1989, as a CAPT between 1989 and 1993, and then as a MAJ. This is confirmed by the information provided in the Form 1399 (T21b)) which sets out the Applicant's career progression, and initial deployment as a Second LT.
3. There is somewhat less clarity about RSZN's unit affiliation. I have set out some of the written descriptions above, and the RSFIC summarises the further descriptions that appear in transcripts of interviews with the Applicant [59]. At the hearing RSZN explicitly confirmed one such written description, being 'Regiment 2, Brigade 14, Division 37, Corps 3', which aligned with his deployment to Basra at the time of the uprising.
4. I accept that the evidence more broadly embraces a range of inconsistent unit designations, being Unit, Regiment, Division, Brigade but all associated with the number 14. RSZN provided some evidence about unit structure, explaining that a Brigade consisted of three units, which he designated as Companies, with the Brigade Headquarters consisting also of a Company. I have no material before me to confirm Iraqi army unit hierarchies and have not found a publicly available source to assist.
5. This evidence arose in the context of questions dealing with RSZN's particular duties and his level of command responsibility, if any. There is no mention of RSZN spending time in northern Iraq in his arrival interview (T26). The chronology of different deployments to Basra given here is indistinct, but the Applicant mentions three locations specifically which are recorded as 'Al Ashar', 'Zubair', and 'Rashad'. It appears from answers given here that RSZN may have acknowledged being in Basra at the time of the war in Kuwait. I note in this oral evidence he stated that he was present in Basra between the end of the Iran-Iraq War and 1993, with a posting to northern Iraq within this time frame. Publicly available sources confirm that there is a district in central Basra city named Al Ashar, and a region to the southwest of Basra city named Al Zubayr, and the capital of this area is Az Zubayr.
6. In his protection visa interview RSZN agreed that he went to Erbil straight after the end of the Iran-Iraq War (T27, 371). He stated that he 'was in command of different units' and that 'we had a crackdown' on rebels. RSZN also stated that 'we attacked them ... we got them ... [a]nd then the area became safe'. Shortly following this, the Applicant stated (T27, 372):

We went - we climbed the mountains to where they were, and there were the planes - aeroplanes coverage for us, which bombarded them. And sometimes the - what is it called? The tankers, sorry, tankers also would shoot at them [amended then to field artillery]

Well, they were fighting against the government and then they would run, hide into the mountains and these mountains of course being the borderline between Iran and Iraq, they would then flee to Iran. The mountains were so high ... it could take up to 16 hours to climb to reach those points which these rebels were hiding ... > > ... > > Now, those units who would provide us with food, stuff or arms, and weapons, and all these things, which is the administrative or the food supplies or whatever we needed ... it will take them, like, 16 hours to reach us there.

1. Later in this interview (T27, 374) RSZN states that after being in the north he returned to Basra. The Applicant states further that during the liberation of Kuwait he was in a place called 'Ras al-Bisha', in 'al-Faw' on the border. RSZN denied being involved in the uprising in Basra (T27, 375), stating: 'I did not engage in any role in that uprising. But I have witnessed many dead, innocent people who got killed ...'.
2. RSZN agreed in interview (T27, 377) that his whole Division was in Basra after they withdrew from Ras al-Bisha. The Applicant described Basra: 'there were a lot of bodies lying down, civilians, and shops - cars were burned ... it was a complete mess'. Publicly available sources confirm that Ras al-Bisha is effectively the southernmost coastal portion of Iraq, adjacent to the Iranian border.
3. The Applicant maintained in his evidence that, following his injury, he performed administrative duties only, as opposed to taking part in, or commanding, infantry fighting. More particularly, RSZN stated that during his time in or about Erbil his duties in headquarters was to supervise the supply of food only. He also stated that on one occasion he went to see his commander on operations, which involved a 12 hour climb into mountains. He acknowledged that organising food for combat operations was a task of Brigade headquarters.
4. RSZN denied that he was in command of different units as part of a crackdown, as he had previously advised. He denied describing the target of the operation as 'rebels' and then added that 'we had Kurdish people guiding us'. RSZN insisted throughout that he was referring to the pursuit of 'gangs' who were carrying out looting, theft and vandalism. When asked about his location the Applicant described it as being in a resort area to the north of Erbil. In short, RSZN stated that he had nothing to do with the Anfal campaign, which he said involved insurgents.
5. I asked the Applicant about his comment in interview about bombardment. He responded that this was against gangs and occurred in a remote area, against two-to-three villages based upon information provided by Kurds assisting the military. RSZN considered the villages to consist only of two-to-three houses which were slightly damaged and empty. He was unable to identify the villages but agreed that he knew where operations were taking place, including in the mountains, and in two villages in a valley. When pressed further on his prior statement that 'we got them', RSZN responded that this was a reference to the activities of his unit, and that 'they ran away to the mountains toward Iran'. He insisted that this particular answer meant that they had carried out their duty.
6. The Applicant stated that after this mission his whole Brigade returned to the Basra region and that he was located in a defensive role some 180 km south of Basra city, named as 'El Bishahed'. RSZN stated that orders were later received to move into Basra to fight against a rebellious group, mostly Shia. He stated that they found Basra empty and that he saw some dead, possibly 2-3 bodies. RSZN described the government response as being to move in and arrest people. He stated that he was still in a headquarters role, and was among the last to enter the city, looking after equipment, such as pots for cooking and sleeping bags.
7. RSZN named his location in Basra city as in the centre, in a location named 'Al Hayuljazzah' [my transliteration] and accepted he was in the first group to enter following the insurrection. The Applicant stated that they did not find any insurgents but some suspects were arrested, interrogated by intelligence, and all then discharged; there were no executions. The Applicant also stated that if the rebellion had been better organised, he would have joined it.

1. There is a substantial volume of material lodged concerning the Anfal campaign. In the RSFIC a deal of reliance is placed upon one report in particular, the Human Rights Watch report titled 'Genocide in Iraq: The Anfal Campaign Against the Kurds' (1993) (T34).
2. The campaign took its name from a chapter of the Qu'ran in reference to the fight against non-believers, in an attempt to justify the attack on Kurds in religious terms (T47, 1018). It was led by Saddam Hussein's cousin, Ali Hassan al-Majid (and notorious as 'Chemical Ali' for his use of chemical weapons against civilians in Iraq, including in the Anfal) (T47, 1019). Majid was given emergency powers in March 1987 at which time an intermittent counterinsurgency against the Kurds became a campaign of destruction (T34, 562).
3. Human Rights Watch describe the Anfal as the 'centrepiece' of the Kurdish Genocide of 1987-1989. The claim to genocide is supported by reference to Raul Hilberg's The Destruction of the European Jews (1961) in which three organic steps of definition, concentration (or seizure) and annihilation represent an 'invariant structure': 'for no group can be killed without a concentration or seizure of the victims, and no victims can be segregated before the perpetrator knows who belongs to the group'.
4. Following the establishment of a legal and bureaucratic structure to underpin the campaign, chemical weapons were used for the first time in history against a state's own civilian population in April 1987 (T34, 563). The Anfal campaign followed village clearances and a national census (T34, 563), and comprised eight comprehensive military offensives lasting from 23 February 1988 to 6 September 1988 (T47, 1019). A conservative estimate is that 50,000 rural Kurds died in the Anfal, and many thousands of women and children perished, most in two clusters associated with the third and fourth Anfal (T34, 566). Another summary proposes that the Anfal involved the destruction of hundreds of villages, the death and disappearance of 182,000 and the flight of hundreds of thousands of refugees (T47, 1037).
5. I note for orientation purposes, that a map of Kurdish territory appears in the materials (T47, 1016). In respect of that portion covering Iraq, it depicts a portion of the state of Iraq running across northwest and northern Iraq adjacent to Syria and Turkey to the city of Mosul, south below the city of Erbil, across to Kirkuk and then onward to the southeast effectively merging into the border with Iran, somewhat parallel to Baghdad (the border with Iran running along the eastern edge of this territory).
6. A further map (T47, 1023) depicts so-called prohibited areas in Iraq which largely reflect the northern and eastern portions of this territory (adjacent to the borders with Turkey and Iran). A further map plots the phases of the Anfal that follow (T47, 1037). The final phase is depicted as taking place in the north of Iraq adjacent to the Turkish border, and the remaining seven are all concentrated to the east and southeast of Erbil, largely between there and the Iranian border (these seven areas described in Wikipedia as being the stronghold of the Patriotic Union of Kurdistan).
7. Clearly enough, the Applicant's own written and oral evidence places him in and around Erbil at some point in the latter part of 1988. A summary of the corresponding final phase of the Anfal can be described as taking place in the Badinan district, being a large region to the north of the city of Duhok and reaching up to the Turkish border, between 25 August and 6 September 1988 (T47).
8. The two sources cited in this section confirm that the 14th Brigade was deployed in the final Anfal (T47, 1035) and that it is reported that elements of the Third Army were redeployed to Iraqi Kurdistan in the final campaign (T34, 658). It is also stated in the latter source that the First Corps which had handled earlier phases from Kirkuk would 'mop up lingering resistance in the Shaqlawa-Rawanduz valleys' (those both being the names of towns to the northeast of Erbil), and the Fifth Army Corps based in Erbil would take charge of the operations in the Dohuk governate, bordering Turkey.
9. Further detail about the Anfal is provided in the Human Rights Watch report. By the time of the 8 August 1988 ceasefire in the Iran-Iraq War, the peshmerga (Kurdish resistance fighters) were in 'full flight and the Iraqi Army had not been able to cut the main avenues of escape to Iran' (T34, 637). This portion of the text appears to be referring to the Balisan valley (northeast of Erbil) and notes that families continued to flee through August with the remaining peshmerga fleeing the area on the 28th, leaving the whole territory under government control. The text here also confirms the more specific allocation of units identified above, being that the Fifth Corps would operate in Badinan and the First in the Balisan-Smaquli sector.
10. A general amnesty was announced on 6 September 1988 (T34, 670). It appears that survivors were relocated in two main complexes (T34, 673) and other camps spread across land to the northeast of Erbil (T34, 674). However, the amnesty was 'not the end of the story' with continued mass executions of prisoners, forced relocations, and resettlement of returnees and family of suspected pershmerga (T34, 679). Furthermore, there were continued village clearances across Kurdistan and there was 'no guarantee of security for the minority of villages that had survived the Anfal campaign' (T34, 680). Fourteen villages northeast of Erbil and relatively close to the Iranian border - near Bradost and Dolamari - are identified as having been demolished in an army sweep in December 1988.
11. Human Rights Watch, accordingly, pose the question '[w]hen did Anfal reach its conclusion' (T34, 683). Strictly speaking, it ended with the defeat of the Kurdish Democratic Party in Badinan and the amnesty of 6 September. Celebrations were also organised by the authorities on 1 October 1988. However, '[a]s far as the logic of the Anfal as a campaign of extermination is concerned, it certainly went on for several more months, at least until well into 1988'. It might be argued, the report notes, that the Anfal lasted until June 1989 when troops destroyed a large town to the east of Erbil and relatively close to the Iranian border.

1. The Introduction to a Human Rights Watch report from mid-1991 (T29, 402) provides a valuable summary of the context for incidents that took place in Basra:

Widespread human rights violations were reported in Iraq following the withdrawal of Iraqi forces from Kuwait on 26 February 1991. These violations were perpetrated in the aftermath of a mass uprising which began on 1 March 1991 in several cities in southern Iraq, and which spread to the Kurdish regions of northern Iraq. Widespread arrests, torture and mass extrajudicial killings of individuals suspected of having taken part in the uprising were carried out by Iraqi military, intelligence and security personnel. Unarmed civilians, including women and children, were also targeted, including in situations outside the context of armed conflict. The human rights violations summarised in this document were brutal in the extreme, and effectively ensured the ending of the uprising by late March/early April 1991. Over 1.5 million Iraqis fled their country in less than one month, while the fate of many of those who remain in Iraq can only be assessed in terms of Iraq's past human rights record.

2. The same report observes that Arab Shi'a Muslim opponents of the regime briefly seized control of towns in southern Iraq including Basra (T29, 406). It notes fierce clashes, arrests of thousands in house-to-house searches, and summary executions. The report notes accounts received by Amnesty International of bombardment of residential areas in the al-Hayanniyeh district of Basra, and there was a report of bodies lying beside a road to the east of Tannumah itself on the east of Basra, and the use of women and children as human shields (T29, 408). It was not clear to Amnesty whether killings had taken place outside of armed conflict. There is further eyewitness testimony concerning a place of detention to the southeast of Basra where executions and torture took place (T29, 409). The regular armed forces are described as the principal perpetrators of violations (T29, 404).
3. Another report (T31, 432) describes the general pattern of the government response where cities were taken by rebels. This included troops, primarily the Republican Guard, massing outside a town and directing fire at suspected rebel strongholds, with little distinction however made to limit civilian casualties. It reports variations to this pattern and notes that Basra never fell completely into rebel hands, but was the 'scene of chaotic pitched battles' (T31, 433). Other details provided here include (T31, 434):

(a) tanks rolling through residential neighbourhoods, firing at residential buildings and civilians, and people strapped to the front of tanks in al-Ashar; > > (b) troops machine gunning people in their homes, and streets 'littered' with bodies; > > (c) the public execution of four hundred people some time prior to 6 March; and > > (d) the army gained the upper hand within five days but resistance was not subdued until April.

4. With respect to the involvement of specific units, a CIA assessment of Iraq ground forces describes the 37th Infantry Division, which had been deployed in the north, as being among the first regular army units committed against insurgents in Basra (T28, 394). A detailed history of the Iraqi army notes that the Republican Guard 'bore the brunt' of suppressing the uprising in southern Iraq (T54, 1200-1201). One of the reasons for this being the presence of Shi'a among the wider military. It is noted that the 2nd and 3rd Corps:

... were designated to clear the Basra Governate and to open the major axis moving north toward al-Qurna. The 2nd Corps was responsible for the section from Basra to Al-Hartha (halfway between Basra and Al-Qurna), and the 3rd Corps was responsible for the section from Al-Hartha to Al-Qurna. The 2nd Corps was apportioned seven divisions ... [including] the 28th and 37th Infantry Divisions ...

5. For orientation, reference to publicly available maps of Iraq demonstrate that there is a district to the east of central Basra on the bank of the Shat Al Arab waterway of al-Ashar. Al Hartha is a city some 20-30 km to the north of Basra, and Az Zubayr is a city a similar distance to the southwest.

1. It was submitted for the Respondent at the hearing that the Applicant provided varied accounts of his military history at different stages of the migration process. It was contended the genesis for this was the realisation that some events and activities in his past may have the consequence of disqualifying him for a protection visa. Despite the variation, it is contended that RSZN has provided a consistent story that raises significant concerns about his army career.
2. In light of the Applicant's oral evidence concerning operations against 'gangs', the Respondent submitted the Tribunal should place significant weight on answers in interview in 2016 which were detailed, coherent, and consistent with respect to participation in the Anfal campaign. It can be inferred that pursuit of individuals included civilians, but in any event, it was submitted, the account deals with bombardment and attacks on villages that amount to crimes against humanity. It should also be found that RSZN's statement 'we got them' amounts to an admission to killing the individuals being pursued. The account of attacks on villages was consistent with the orders for the campaign and the modus operandi in general, and therefore it is open to make a finding that the Applicant was directly involved.
3. Further, it was submitted that his account of only providing indirect support for operations was a relatively recent account and not credible. The Tribunal only has RSZN's oral evidence about the impact of his injury on his career and it was not previously raised by the Applicant as affecting his participation in the northern campaign. In particular, the transcript reveals a reversal of the support function claimed in oral evidence, and needs to be understood in the context of evidence given about RSZN's role in headquarters.
4. In summary, it was contended that RSZN was involved jointly, or with others, in killing civilians which amounts to murder. Alternatively, RSZN ordered or induced such criminal activity, and therefore bears shared responsibility. With respect to the mental element, the Respondent contended that it was the Applicant's intention to be involved and that he knew the consequences would be killings. RSZN was aware of what was expected in the operation and either took part or otherwise aided and abetted the crimes given the context of a systematic attack on the local population.
5. In respect of the Basra uprising, the Respondent contended that the Applicant has put evidence that is in stark contrast to the Human Rights Watch summary of events. His account of being among the first into Basra but of seeing virtually no casualties is an account that lacks credibility. Rather, it was contended that it is open to find that RSZN's Division was directly involved in fierce fighting, particularly in March, but also into April, leading to many deaths. Even were it accepted that the Applicant played a logistics role, nonetheless he could be understood as implicated in the suppression of the insurrection and the deaths of many civilians.
6. The Respondent placed reliance upon that part of SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 561 in which the Full Court of the Federal Court found that it is not necessary to make a finding with respect to a particular crime against humanity, where there are many such instances. Here, the Applicant knowingly took part in acts aware of their consequences for the wider population. For this reason, there are particular grounds for a finding that RSZN is responsible for aiding and abetting crimes against humanity.
7. To the extent that the ASFIC raises a defence of duress, the Respondent contended that RSZN was not a conscript and had followed orders to participate in the suppression of the Kurds. Indeed, his answers in interview might reveal a sense of pride. The Applicant has not demonstrated second thoughts or actions to minimise his involvement and was undertaking legitimate tasks as an army officer. With respect to participation in the Basra uprising, RSZN's evidence indicated some reflection on the nature of the event and a judgment about its level of organisation and success.
8. Notwithstanding that RSZN is in receipt of a protection finding, the Applicant's written submissions in this matter almost exclusively address the risk of return. No substantive oral submissions were made at the hearing. As noted by the Respondent, the Applicant's written submissions contend that RSZN was a conscript and therefore forced to serve in the army, and 'never permitted to leave the military' due to the risk of being murdered for doing so (RSFIC, p 5). It is also submitted that he never committed war crimes, and did not give instructions to those under his command to do so.
9. In submissions to the agency by a previous representative (T23a)), it was contended that: RSZN was injured prior to the Anfal campaign; was posted to Erbil in an administrative capacity and fought against rebel gangs; in Basra did not order or become involved in armed conflict, but served as an administrator in the regiment; and, it would be inappropriate to link the Applicant to crimes of the regime 'by general assumptions' (T23a), 250). The submission goes on to quote the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers. In part, this document is reported as stating that as a rule, membership or association with a group or organisation is insufficient to establish individual responsibility for excludable acts. Rather, a thorough assessment of activities, roles and responsibilities is to be made to determine whether the relevant 'serious reasons' arise.

1. I set out above a brief summary of pertinent descriptions in the authorities of the nature of the test found in the Act. The Respondent has also presented a fair summary in the RSFIC [30]-[34]. Given the emphasis placed in submissions on whether a finding needs to be made in respect of particular incidents, I consider some further reflection on the authorities is warranted. I also note in this respect the related written contentions which reflect this issue in the context of individual criminal responsibility (RSFIC [48], [96]).
2. The reason for this arises from the degrees of complicity identified in art 25(3) of the Rome Statute. A person may: be directly responsible for certain acts; order or induce their commission; aid, abet or otherwise assist; and, finally, contribute in any other way. Central to all of these options is the commission of a crime and/or, in the cases of the less direct forms of complicity, its attempted commission.
3. In WAKN, French J did not render a finding on the underlying facts in that matter, but it involved the decision of a delegate that the applicant there was a senior member of a political and military group in the Shia community in Afghanistan. No particular incident appears to have played a part in the administrative decision.
4. Of more direct relevance are the decisions of the Tribunal and courts in SHCB which appear to be the root of the commentary in respect of what findings are necessary to base a determination under the statutory test. The Full Court in SHCB said as follows with respect to findings concerning specific incidents [23]:

[i]t is not necessary, for a finding that the appellant committed a war crime or crime against humanity, that there be a finding with respect to a specific incident, if there are findings of many such incidents and a finding that the appellant took steps ... knowing that such acts would be a consequence of his steps. It was open to the AAT, on the material before it, to conclude that the appellant aided, abetted or otherwise assisted the commission or attempted commission of such acts. The AAT made findings that [he] was involved in crimes against humanity and war crimes at a time when the appellant, in the course of his duties as a reasonably high ranking officer, passed on information that was likely to lead to the commission of such acts.

5. The underlying decision on appeal there was that of Deputy President Forgie in SAL v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1164 (SAL). The Deputy President there considered that the appellant's position as a high ranking officer in an organisation in communist Afghanistan with an intelligence or interior ministry function would have given him knowledge of the organisation's activities [90]. However, more specific findings were also made, as indicated by the Full Court in SHCB. Critical to the outcome in SAL was the finding that the applicant had in two particular instances reported information in the course of his duties leading, in one case, to individuals being detained and charged by a military tribunal, and in the other, to security forces being sent to an area to take preventative action. Thus, the Deputy President was persuaded that the reports made in those instances had consequences for the subjects, which were directed at ending their activities.
6. What will be sufficient evidence to base a finding will depend upon the circumstances of a particular case. The ultimate objective of authorities, such as WAKN, is to reinforce that in no case is it necessary to apply a criminal or civil standard of proof; hence the test is actual persuasion based on a strong inference of guilt. As will be seen below, furthermore, the range of forms of complicity under the Rome Statute potentially further reduce the degree of specificity as to acts alleged and required to base a finding under the Act, so long as crimes, or their attempted commission, has been found.
7. The Respondent does not address the question of elements of crimes at any length, and detailed contentions are not articulated with reference to the elements of crimes (RSFIC [90], [93]). As noted above, each of the crimes against humanity potentially arising for consideration here carry at least three and as many as six elements. In reality the elements include, generally, repetition of parts of article 7 and article 25(3)(d) of the Rome Statute.
8. The wording of article 9 of the Rome Statute does not require the strict application, or findings upon, all elements of a crime. Rather, these elements are to assist a decision-maker. This appears to be consistent with the nature of administrative decision-making in this statutory context. That is, rigid adherence to the multiple elements of a crime is not appropriate.

1. The country information demonstrates that a protracted campaign of repressive measures was undertaken by the Iraqi military against the civilian population in 1988 primarily in locations outside of Erbil, and including areas between Erbil and the Iranian border. I consider the material lodged to demonstrate persuasively that this campaign included instances of crimes against humanity in the form of murder, extermination, deportation and forced transfer and persecution against local Kurdish populations.
2. The evidence also demonstrates that these measures were not confined to the several specific sub-campaigns but continued through later 1988, at the least. This included repressive actions also amounting to crimes against humanity outside Erbil and toward the Iranian border in December 1988.
3. There is no dispute in this matter that RSZN was in or near to Erbil at some point after the end of the Iran-Iraq War, and for a period of some months, possibly as long as six months on one account. Assuming his deployment is unlikely to have occurred before the official end of hostilities with Iran, RSZN could not have moved north before sometime in late August or September. He has put in one document the deployment as in October 1988.
4. The Applicant's account in evidence of his activities differs starkly from that given in his protection visa interview. I consider that the Respondent is correct to argue that the earlier account should be preferred over later exculpatory accounts. This is for several reasons. His denial of participation in the Anfal campaign is only credible if a very narrow interpretation is taken of the timing associated with the various sub-campaigns. As noted, I am satisfied that repressive action involving crimes against humanity was taken outside Erbil in the time that RSZN was posted to this area.
5. Further, RSZN described in his visa interview being engaged in field operations against 'rebels'. He described physically moving into challenging terrain to undertake these operations, with support from other army elements. This support included fire support. At the hearing the Applicant reversed the supporting function, placing himself in that role and also attempted to characterise the targets of military operations as criminals. I consider both of these variations to be aimed at minimising in critical ways RSZN's active participation in operations against the civilian population.
6. In addition, I consider RSZN's previous claim in interview ('we got them') to indicate that he considered the operations to have been successful. In evidence the Applicant also sought to minimise the nature and effect of the operations by, for example, claiming that a village or villages were empty when entered by the army, or that there was minimal damage to buildings. I understood RSZN to attempt in evidence to ascribe the use of the word 'we' to the wider community of forces, however I do not consider a close reading of the interview transcript to bear out this variation.
7. As part of advancing the narrative of his support role, RSZN also described a visit to an area of operations in terms similar to those used in his earlier interview. Thus, at the very least, on this evidence, even in a support capacity the Applicant can be said to have insight into the location of operations, and I consider also by extension, into the objectives of the army's activities. It is also notable that in reinforcing his administrator narrative, RSZN accepted that this meant he was in the headquarters component of an infantry unit. This, I consider, also inherently places the Applicant, in a position to have insight into and knowledge of unit activities. I note that the better view of the evidence is that he was a CAPT at this point in his career.
8. Accordingly, I consider the evidence overall enables me to find that RSZN was engaged as an infantry officer in operations outside Erbil in the latter part of 1988. The issue then arising is what form of individual criminal responsibility lies in these circumstances, and for what crime or crimes.
9. Notwithstanding the findings I have made in respect of RSZN and the Anfal campaign, I consider the country information and evidence in this matter is characterised by a degree of generality that limits the range of findings available to me in respect of individual criminal responsibility. With reference to article 25(3)(a) of the Rome Statute, I do not consider there to be any evidence that RSZN was personally responsible for any of the crimes against humanity of murder, extermination, deportation or forcible transfer or persecution. Some or all of these might arise by extrapolation from the nature of the campaign, however it remains a matter of speculation whether the Applicant can be so closely associated with killing, the forcible movement of people and the deprivation of fundamental rights.
10. Equally, I consider that ordering, soliciting, or inducing as expressed in art 25(3)(b) of the Rome Statute, also require greater granularity of circumstance to be made out. That is, while I have accepted RSZN's position as a commander of infantry forces, the issue remains whether any of those specific levels of involvement can be attributed to the Applicant for the crimes of murder, extermination, deportation or forcible transfer, or persecution beyond the level of supposition.
11. The following subparagraph, art 25(3)(c), introduces complicity by aiding, abetting or otherwise assisting with the commission or attempted commission of crimes. These are clearly of a somewhat less direct nature, but, I consider, still require in the case of murder and extermination, some material evidence of killings which I consider are not provided by the material overall. Deportation or forcible transfer are crimes I consider to have formed part of the Anfal campaign, but both concepts entail specific forms of conduct that are not made out with any degree of certainty from the evidence concerning RSZN's participation, or that of his unit.
12. The situation is different, however, I consider in respect of the crime of persecution. The Anfal generally, and the Applicant's personal role, both involve the persecution through the severe deprivation of fundamental rights of the Kurdish population, targeted specifically because of their identity and ethnic and/or political grounds. I consider it reasonable to conclude that RSZN as an officer in an infantry unit deployed to pursue the government's campaign outside Erbil can be understood as - at least - assisting with the commission or attempted commission of the crime against humanity of persecution. RSZN as an officer in a command role also fulfils the mental element in accordance with art 30(1) in that he meant to engage in the conduct, and understood the consequences for the local population. This is also supported by the Applicant's evidence of his direct role in operations.
13. Furthermore, art 25(3)(d) reflects an even lower threshold for participation, and is directed at a person's participation in a group acting with common purpose. While I am satisfied with RSZN's individual responsibility under the previous subparagraph of art 25(3), I consider these same findings must apply equally, if not more so, to the contribution made by the Applicant as an infantry officer in a unit, as part of a wider group of forces, deployed to pursue a campaign of persecution against the Kurds. His conduct in undertaking operations, as I have found, was made in the furtherance of the common criminal activity knowingly, and understanding its consequences.
14. Despite the wider potential scope of the lowest threshold of complicity, I do not consider I am able to make a finding that RSZN contributed in any other way to the crimes of murder, extermination, or deportation or forcible transfer for the reasons given above. While these crimes were part of the Anfal campaign there is insufficient evidence to support relevant findings in respect of the Applicant.
15. I consider it also appropriate to address further the Applicant's alternative version of events. While I prefer the view that RSZN was involved in combat operations outside Erbil, I consider that he does not avoid individual criminal responsibility even on his narrative of fulfilling an administrative or support role, probably in a headquarters unit. As I have indicated above, subparagraphs (c) and (d) of art 25(3) establish lower standards of complicity. As also indicated, I have greatest confidence in findings concerning the crime of humanity of persecution, this being the entire character of the Anfal campaign, including in its follow-on phase.
16. Accordingly, an officer in the headquarters of an infantry unit undertaking operations in pursuit of Kurds must be otherwise assisting in the commission of that crime. Equally, he must also be contributing in another way to the group enterprise undertaken at least by his own unit, if not the wider combat forces so deployed.

1. I am satisfied on the country information that the civilian population in Basra in and around March 1991 was subjected to crimes against humanity. There is evidence of murder, extermination and persecution of the local population.
2. There is no disagreement here that RSZN was in and around Basra at this time. I consider the better view of the evidence to be that he was initially located to the south of Basra and at some point, was deployed into the city. There is some ambiguity about location that arises from a comparison of his evidence about being in central Basra with the country information indicating his unit was deployed to territory just to the north of Basra, being the Basra Al-Hartha corridor. These may not necessarily amount to conflicting accounts, as movement north might well entail passage through the city.
3. At its highest, the Applicant's role is described in his written evidence as observing bodies and the aftermath of probably quite damaging military action. I accept that RSZN continued to rely on the administration narrative in this context. I did not find his apparent further downgrading of his role in his infantry unit to a supplier of sleeping bags to be convincing. It appears to me to be a continuation of his self-serving narrative from the Anfal campaign.
4. That said, I am not satisfied that the material overall permits any relevant findings to be made about the Applicant's complicity, directly or more indirectly, in crimes against humanity. This is due to there being some inconsistency in the material about the respective contributions of the Republican Guard and army units. There is also some ambiguity about the timing of RSZN's entry to Basra and his location within the city. Therefore in the circumstances of this incident, I consider that, at best, RSZN might be considered complicit (at any degree specified in art 25(3)) solely by extrapolation, or correlation.

1. There is no evidence, written or oral, dealing with possible defences. To the extent that written submissions for RSZN raise what might amount to a defence of duress under art 31(1) of the Rome Statute, I find that this is not supported by the evidence overall.

1. In summary, I am persuaded on the evidence that RSZN has individual criminal responsibility under the Rome Statute for the crime against humanity of persecution. This finding is based upon country information establishing that a campaign of various operations was undertaken by the Iraqi military, relevantly, including outside Erbil in late 1988. I am satisfied on RSZN's own responses to answers in interview, rather than his oral evidence, together with supporting evidence about his career, that he as an infantry CAPT participated in persecution of the Kurdish population as part of the then State policy. This policy involved the commission of a systematic attack against that population on political, racial or ethnic grounds, and the Applicant meant to engage in that conduct and knew its consequences for the Kurdish population due to his rank and role.

1. For the reasons given above, the Tribunal affirms the decision under review.

Robert McMahon, RPM International Migration Services

David Brown & Sophie Ward, Australian Government Solicitor