E THE SECOND TRIBUNAL DECISION
86 The decision under review in this proceeding was published on 14 May 2021 (T). The Tribunal put the issue for determination as whether there are serious reasons for considering that the applicant has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments prescribed by the applicable regulation: T[2].
87 After setting out the relevant legislative framework and a brief background, the Tribunal dealt with a preliminary question relating to whether the Tribunal's statutory task involved a consideration of evidence or submission concerning the current state of affairs in Sri Lanka.
88 The respondent argued that material concerning the current state of affairs in Sri Lanka was irrelevant, as it did not fall within the ambit of the Tribunal's statutory task when one construes and applies s 5H(2) of the Migration Act. The applicant argued that in relation to this section the Tribunal was bound to undertake a balancing exercise, apply the proportionality test, and consider Australia's non-refoulement obligations. Further, that the proportionality test should be applied in reaching a decision that there are "serious reasons for considering" the commission of the relevant crimes under the section: T[29]-[32].
89 After a review of the authorities, the Tribunal decided that proportionality analysis cannot be introduced into a consideration of whether there are serious reasons for considering that an applicant has committed a serious non-political crime as referred to in s 5H(2)(b). The Tribunal considered that consistency of construction leads to a conclusion that the same analysis must apply when determining whether there are serious reasons for considering that an applicant for a protection visa has committed a war crime or a crime against humanity as referred to in s 5H(2)(a). Accordingly, the preliminary ruling was made in favour of the Minister: T[46]-[50].
90 The Tribunal then dealt with choice of law, namely the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), the relevant tests contained in that Statute, and the applicant's position concerning the evidence. The Tribunal then set out its observations on the evidence.
91 The Tribunal noted that in his initial entry interview the applicant provided false information in relation to his involvement with the LTTE, namely that he only sold the LTTE items, that he had never received any training in preparation for conflict, and that he had never been involved in any military service: T[86]-[88].
92 The Tribunal then considered the applicant's answers to his request for refugee status assessment. Again, the applicant falsely answered "no" to a question asking if he had ever served in a military or paramilitary organisation. The applicant also misleadingly did not disclose that he had used a bogus passport: T[95]-[96].
93 The Tribunal concluded that these answers "do not reflect well on him", particularly because he had had the benefit of advice from a migration agent at a law firm. The Tribunal's view was that these answers "must affect his credibility": T[99]. The applicant also gave other false or misleading answers: T[106]-[107], [109], [111].
94 The statutory declaration accompanying the refugee status assessment did not accurately recount the applicant's history with the LTTE, which the Tribunal viewed as false or misleading or both: T[102]. The Tribunal noted that during the first Tribunal hearing the applicant admitted that the statutory declaration was a made-up story which incorporated some elements of truth. The applicant said that he gave this declaration because the people smuggler who sent him to Australia in the boat told him that if he informed authorities that he belonged to the LTTE he would not get a visa: T[104].
95 The Tribunal found it implausible that the applicant would prefer the advice of a people smuggler over a migration agent. Thus, the false information given was done so deliberately: T[105]. The Tribunal took the view that the false statements and misrepresentation "quite consciously and deliberately, reflects very poorly on his character, not to mention his credibility": T[108]. As an aside, there is palpable irony in this finding by the Tribunal which was apparently missed by it - the impugned advice of the people smuggler was prescient in light of the decision of the Tribunal to refuse the applicant a protection visa on account of his involvement with the LTTE, being the very involvement that the people smuggler advised against revealing.
96 Turning to the 5 May 2010 letter that amended the applicant's claims, the Tribunal noted the independent merits reviewer's comments about the serious inconsistencies in the applicant's account of his motives for returning to Sri Lanka in 2005. In circumstances where the applicant had advice and still did not provide the independent merits reviewer the true story of his involvement with the LTTE, the Tribunal took the view that "this failure to tell the truth in all respects reflects extremely poorly on the Applicant's credibility": T[119].
97 The Tribunal noted that the applicant had said the Stone report and the Cornall report were accurate as to his involvement with the LTTE and that he had told ASIO the truth: T[121], [124].
98 In addressing the inconsistencies in the applicant's versions of events, the Tribunal accepted that the applicant suffers from mental health issues and that there was material supporting the applicant's contention that he has difficulty recalling details and/or important aspects of traumatic events. However, the Tribunal considered that these issues did not explain the considerably different versions of events that the applicant had furnished and therefore his credibility was "highly questionable": T[126]-[129].
99 In reliance on the interviews with the delegate on 31 January and 1 February 2017 and his interview with ASIO as summarised in the Stone report, the Tribunal proceeded to set out the applicant's involvement with the LTTE: T[130]-[150].
100 In traversing this material, the Tribunal made the following observations. First, in relation to his arrest in 2004, and the claim that he informed Mathavan Master following time in gaol that he did not wish to remain with the LTTE, that this is inconsistent with the applicant's evidence in several places that leaving the LTTE was not an option. The Tribunal's view was that it clearly was an option, and the applicant was confident enough to speak to a senior LTTE officer about doing so. Secondly, in relation to his time in Qatar and his refusal of an order to kill Kurvi, that this was an example of the applicant's readiness to refuse to follow directions or orders given to him by very senior officers of the LTTE. He was not subjected to any discipline, threats or retribution for his defiance of orders that were given to him: T[144], [146].
101 The Tribunal then, under the heading "Consideration", first dealt with the applicant's arranging of travel. The Tribunal made the following findings. First, that there are serious reasons for considering that the applicant facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder in relation to the suicide attacks in Colombo, organised by Brother Charles or the intelligence wing of LTTE: T[157], [161], [164].
102 In relation to the attack at the Temple of the Tooth Relic in Kandy, where the applicant said he was responsible for sending one of the boys, the Tribunal found that this admission gave rise to serious reasons for considering that the applicant facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder: T[165]-[166].
103 The Tribunal did not accept the applicant's evidence that he did not know the suicide attack targets were civilian targets, namely the Colombo Central Bank, the Behiwala train, the World Trade Centre building in Colombo or the Colombo International Airport. Further, that by mid-2005-2007, the applicant "must surely have known" that sending boys to Colombo included the possibility that they would undertake suicide missions; this was especially so in circumstances where he was "obviously a trusted intelligence official, at, it would appear, a significant level": T[170], [173]-[174].
104 The Tribunal accordingly found that there were serious reasons for considering that the applicant has facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder. He facilitated attacks of which the objects were civilians or civilian targets who were not engaged in the conflict. One or more persons were killed, and such persons were civilians. It was said that the applicant was aware of the factual circumstances that established their status. He was aware of the factual circumstances that established the existence of an armed conflict. Such armed conflict was not of an international character: T[175].
105 While the applicant did not carry out the attacks, the Tribunal found that Art 25(3) of the Rome Statute operated on the applicant because he facilitated the travel to those who did; he solicited and induced the commission of the crimes: T[176].
106 The Tribunal also considered that there were serious reasons for considering that the mental element provided for in Art 30 of the Rome Statute had been satisfied. The Tribunal considered that the applicant had awareness of the circumstances or consequences occurring in the ordinary course of events when he arranged the safe travel of boys to Colombo to do various "jobs" for Brother Charles. He knew that Brother Charles was arranging suicide attacks: T[177].
107 Next, the Tribunal turned to reporting spies, interrogation and torture. The Tribunal considered that the applicant was an active participant in the interrogation process, which he knew involved torturing victims. In obtaining a signed confession from the torture victim, he was therefore playing a very important role in the process: T[181].
108 Regarding the applicant's involvement in sleep deprivation and stick beatings, the Tribunal said that the facts relevant to these events satisfied the first two elements of the war crime of torture for the purposes of Art 8(2)(c)(i) of the Rome Statute. The Tribunal also considered that the applicant had attempted to downplay his role in the beatings by saying he was an infiltrator in the Karuna Group. The evidence was that such persons being tortured were either hors de combat or civilians and the applicant was aware of that: T[193], [197]-[198].
109 As for the applicant's role in interrogations, where he heard screaming and saw people with their nails removed, among other things, while at J Section, the Tribunal considered these matters raised serious concerns that his presence at these interrogations involved the commission of a war crime jointly with others. It also considered that there must be serious concerns that he aided, abetted or otherwise assisted in the commission or attempted commission of such crimes by a group of persons acting with a common purpose, specifically he wrote reports: T[199].
110 On the issue of reporting spies, the Tribunal's view was that the applicant was well aware that suspected spies were usually interrogated, frequently tortured, then publicly humiliated, shamed and shot in the presence of villagers. That awareness it was said satisfied the elements of the war crime of murder under Art 8(2)(c)(i) of the Rome Statute. It also satisfied the elements of the crime against humanity of murder for the purposes of Art 7(1)(a). Such conduct on the part of the applicant contributed to the commission of such a crime by exposing the victims to the fate of death. To the extent the applicant did contribute to the commission of such a crime, this would fall within the concept of individual criminal responsibility as identified in Art 25(3): T[202].
111 For completeness, the Tribunal noted that that the mental element addressed in Art 30 of the Rome Statute has also been established concerning the reporting of suspected spies, interrogation and torture. The Tribunal therefore concluded that there were serious reasons for considering that the applicant had committed war crimes and crimes against humanity of murder and torture: T[203]-[204].
112 The Tribunal then turned to the applicant's defences, beginning with duress. In finding that the applicant could not avail himself of the defence of duress, the Tribunal said that none of the matters relied upon by him that had emerged in the evidence and in particular in the several statements that he had made can be said to amount to duress resulting from the threat of imminent death or of continuing imminent serious bodily harm within the meaning of Art 31(1)(d) of the Rome Statute. The Tribunal said the applicant's claims were generalised assertions which are to be viewed in light of the findings against his credibility and false declarations: T[209].
113 The Tribunal noted that the applicant did not give evidence of, and there was no evidence that the applicant had been threatened with, imminent death or continuing or imminent serious bodily harm in the event that he disobeyed orders by refusing to facilitate Black Tiger operations or report suspected spies: T[210].
114 There was specific evidence that he refused such orders without relevant consequence to him or his family, including that while undercover with the Karuna Group, he refused a direct order to assassinate Satchu Master. There were no apparent repercussions or punishment; and during his time in Qatar, a direct order to assassinate Kuruvi was defied. By reason of this defiance he was recalled to Sri Lanka and ordered to resume his previous duties: T[211]-[213].
115 The Tribunal also added that the applicant was involved with the LTTE for over 19 years, including as a high-level and respected intelligence officer, so it was difficult to accept his claim that his involvement was forced: T[216]-[218].
116 The Tribunal then considered the defence of superior orders. It noted that little by way of evidence and contentions separate from the defence of duress had been advanced in support of the argument that the applicant acted under the orders of his superiors. The Tribunal found there was no evidence directed to the second limb of Art 33(1) and the third limb was not addressed in the evidence or submissions: T[221]-[225].
117 The Tribunal considered that there were serious reasons for considering that the defence of superior orders does not apply because any orders to carry out the acts in question would have been manifestly unlawful: T[227].
118 Finally, the Tribunal considered the defence of involuntariness. The Tribunal said that even if one accepts that the applicant was forcibly recruited by the LTTE as he contended, it cannot be said that the remainder of his acts and his involvement over approximately 19 years' membership of that organisation were involuntary. Further, there were facts that demonstrated that he was able to disobey directions and/or orders and, in reality, he brought his own free will to the tasks and actions that he engaged in. The acts of disobeying the directions or orders identified are indicative of someone who was a ready, willing and active participant and not acting involuntarily. Accordingly, the defence was not made out: T[233]-[239].
119 In conclusion, the Tribunal found that there are serious reasons for considering that the applicant committed war crimes and crimes against humanity as set out in s 5H(2)(a) of the Migration Act. By reason of such finding, the applicant was ineligible for a grant of a protection visa on complementary protection grounds under s 36(2C). Consequently, the Tribunal affirmed the reviewable decision: T[240].