NADB v Minister for Immigration & Multicultural Affairs

Failure to consider what crime was committed under Indonesian law 17 The application in this Court for relief under s 39B of the Judiciary Act particularises eleven alleged errors on the part of AAT as the grounds on which the application is made. Written submissions were lodged by the applicant prior to the hearing elaborating upon those grounds. 18 In oral submissions, senior counsel for the applicant contended that AAT had committed a jurisdictional error because it failed to identify the particular crime under Indonesian law which AAT considered the applicant had committed. Whilst the applicant admitted his involvement in certain conduct, it was submitted that there was no material before AAT upon which it could conclude that this conduct was criminal under Indonesian law. 19 Counsel for the applicant contends that grounds 1, 2, 3 and 4 of the application to this Court raise this matter as an issue. I do not agree. Those grounds go to the issue of whether the crime was "serious"; not to whether the admitted conduct was criminal in character. 20 In any event, the proceedings were conducted before both the delegate and the AAT on the common assumption that the conduct in which the applicant admittedly engaged was criminal under Indonesian law. The substantial issues which arose for determination were whether the admittedly criminal conduct was "serious", and whether Article 1F required a balancing exercise to be undertaken. Whether the conduct was criminal under Indonesian law was not an issue between the parties. In Ovcharuk v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 173 at 186 Branson J held that the terms of Article 1F(b) suggest against a requirement that every element of an identified offence must be able to be identified and particularised before the article may be relied upon. The applicant's admissions and the conduct of his application were sufficient to establish that there are serious reasons for considering that the applicant committed a serious non-political crime outside Australia and before his admission to Australia. 21 In Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Deane J, sitting as a member of the Full Federal Court said at 342: "In the ordinary case a Tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues ..." See also A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at 36 per Katz J. AAT did not commit any error by commencing its enquiry on the foundation that the conduct which the applicant admitted was criminal under Indonesian law as the parties were ad idem that the application before AAT should be determined upon that basis. No error of law has been demonstrated in the manner in which AAT dealt with the matter: see also Commissioner of Taxation v Glennan (1999) 90 FCR 538 at 556-558.

Ground 7: whether the application of the Article 1F exclusion could be determined without reference to whether the applicant is a "refugee"

Ground 8: whether AAT erred in law by failing to determine whether the applicant had a well-founded fear of persecution for reasons of political opinion

Ground 9: whether AAT erred in law in failing to balance the seriousness of the crimes committed by the applicant against the possible harm to the applicant if returned to Iran, in determining whether the operation of Article 1F was attracted 22 These grounds are interrelated, at least to some extent, and it is convenient to consider them together. I have reformulated Ground 9 slightly so as to bring it into conformity with the submission which was put. 23 Article 1A of the Convention, when read with the Protocol relating to the Status of Refugees (1967), defines a refugee in terms which are familiar, and which can be summarised as a person who has a well-founded fear of persecution for a Convention reason. Article 1F qualifies the application of the Article 1A definition. There has been some discussion by commentators as to whether the issue of exclusion under Article 1F should be considered prior to the determination of inclusion under Article 1A. 24 Policy reasons for determining inclusion prior to exclusion were identified in an Expert Roundtable discussion on International Protection, organised by the United Nations High Commissioner for Refugees ("UNHCR") in Lisbon, on 3-4 May 2001. Paragraph 15 of the summary conclusions of that colloquium is as follows: "(15) A holistic approach to refugee status determination should be taken, and in principle the inclusion elements of the refugee definition should be considered before exclusion. There are a number of reasons of a policy, legal and practical nature, for doing this: · exclusion before inclusion risks criminalising refugees; · exclusion is exceptional and it is not appropriate to consider an exception first; · non-inclusion, without having to address the question of exclusion, is possible in a number of cases, thereby avoiding complex issues; · inclusion first enables consideration to be given to protection obligations to family members; · inclusion before exclusion allows proper distinction to be drawn between prosecution and persecution; · textually, the 1951 Convention would appear to provide more clearly for inclusion before exclusion, such an interpretation being consistent in particular with the language of Article 1F(b); · interviews which look at the whole refugee definition allows for information to be collected more broadly and accurately." 25 In a paper prepared by Professor Gilbert, the head of the Department of Law at the University of Essex in 2001 styled "Current Issues in the Application of the Exclusion Clauses", the Professor addressed the issue of inclusion before exclusion under the heading of "Procedural Issues and Other Areas of Interest". The Professor noted that par 141 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status propounds that it will normally be during the determination process under Article 1A(2) that the operation of Article 1F will fall for consideration. However, the Professor noted that: "The view held by a significant number of States is that the application of Article 1F precedes refugee status determination under Article 1A(2). The Canadian Federal Court of Appeal has held that there is no need to consider whether the claimant falls within Article 1A(2) if s/he falls within Article 1F." 26 In a publication styled "Refugee Law in Context: The Exclusion Clause" edited by Peter J. van Krieken, Asser Press, The Hague, 1999 at p 6, under the heading "Procedure" the author states: "Another issue concerns a procedural aspect. UNHCR is officially of the opinion that the application of the exclusion clause should be preceded by a determination of the refugee status: inclusion (1A) should precede exclusion (1F). However, in reality, UNHCR has on a number of occasions advised that the exclusion clause could be applied immediately." Examples of that advice are given. 27 In Arquita v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 465 Weinberg J said at par 58: "In determining the meaning to be ascribed to the word 'serious' in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits." His Honour proceeded upon the basis that the operation of Article 1F(b) is capable of being determined in advance of any assessment under Article 1A, although an assessment of whether a crime is sufficiently "serious" must take into account the circumstance that the consequence of the assessment may be to deny to a person the protection of the Convention. His Honour's treatment of that question is consistent with the observations of Marshall J in Selvarajah v Minister for Immigration & Multicultural Affairs [2001] FCA 1307 at (31): "A person who has committed a serious non-political crime is ineligible to seek a protection visa as a consequence of the relevant exclusion provided by Art 1F(b); ..." This statement implicitly construes Article 1F(b) as not necessitating an assessment under Article 1A, or of any balancing between the seriousness of the crime committed, and the seriousness of the harm feared. 28 Article 1F(a) and (c) do not contain any geographic or temporal limitations. Article 1F(b) refers to a serious non-political crime committed outside the country of refuge and before the person's admission to the country of refuge as a refugee. These expressions impose temporal and geographical limitations on the crimes which are within Article 1F(b), without any implication that there must first be a determination of whether the person in question is a refugee before the application of Article 1F can be considered. 29 Whether issues arising under Article 1F are determined before considering whether the applicant is a refugee in terms of Article 1A is purely a procedural matter, without substantive significance, unless the fact that the applicant is a refugee within Article 1A has some bearing upon what might otherwise be the operation of Article 1F. Thus whether the application of the Article 1F exclusion can be determined without reference to whether the applicant is or is assumed to be a refugee, is related to the question of whether consideration needs to be given in the application of Article 1F to whether the applicant would be persecuted if returned to his country of origin.

A balancing test? 30 Paragraph 156 of the UNHCR Handbook (1979) states, in relation to Article 1F(b): "In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee." 31 Zagor, "Persecutor or Persecuted: Exclusion under Article 1(A) and (B) of the Refugees Convention" (2000) 23 UNSWLJ 164 at 186 notes that the balancing test (ie the balance between the nature of the offence presumed to have been committed and the degree of persecution feared) is advocated by all eminent writers in the field and is "clearly consistent with the object and purpose of the clauses, and overarching human rights purpose of the Convention. However, it has been explicitly abandoned in the common law jurisdictions of the United Kingdom, Australia, Canada, New Zealand and the United States. In other words, once a non-political crime is characterised as 'serious', no assessment of the feared persecution is required". 32 Mr Zagor also notes that in Australia, the lack of a weighing principle is given systemic support by the institutional arrangements for review under the Act, whereby an appeal from a primary rejection on the basis of an exclusion clause is reviewed not by the expert refugee review body, but by the AAT, which has neither the appropriate resources nor the expertise to consider fully the human rights implications of a negative decision. 33 Keller, in a note appearing in 1999 2 Yale Human Rights and Development Law Journal 183 refers to an issue of debate as to whether Article 1F(b) requires countries to consider the severity of the persecution that the individual would face upon repatriation. The author states that the European Union has advocated a balancing approach, which takes into consideration both the context of the crime and the nature of the persecution faced by the refugee in determining the seriousness of the crime. Chahal v United Kingdom 23 E.H.R.R. 413 (1996), a decision of the European Court of Human Rights, is cited in support of this proposition, but that case was concerned with deportation issues rather than Article 1F(b). 34 Professor Gilbert, in the article earlier referred to, notes at p 18 that the view ordinarily adopted by several States is that whether the applicant would be persecuted if denied refugee status and forced to return to his country of origin is of no consequence when applying Article 1F. 35 In T v Secretary of State for the Home Department [1995] 1 WLR 545, after referring to par 156 of the UNHCR Handbook, the United Kingdom Court of Appeal said at 555: "If a person has committed a serious non-political crime outside the United Kingdom prior to his arrival here, the provisions of the Convention do not apply to him. We can find nothing in the Convention which supports the view that, in deciding whether a non-political crime is 'serious' and therefore within Article 1F, the Secretary of State or the appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the gravity of the crime." An appeal to the House of Lords (T v Immigration Officer [1996] A.C. 742) was dismissed. At A.C. 769, Lord Mustill said: "The gravity of the offence is relevant to the question whether it is 'serious' for the purposes of Article 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned." The same may be said about whether a crime is "serious". 36 In Dhayakpa v Minister for Immigration & Ethnic Affairs (1995) 62 FCR 556 at 563 French J held that the adjective "serious" in Article 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime: "But once the non-political crime committed outside the country of refuge is properly characterised as 'serious' the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin." 37 In S v Refugee Status Appeals Authority (1998) 2 NZLR 291 the New Zealand Court of Appeal considered whether Article 1F(b) requires a balancing exercise, under which there is need to weigh the seriousness of the crime against the gravity of the consequences of return to the person's homeland. The Court held, after considering authorities in Australia, England and Canada as well as academic writings, that nothing in Article 1F indicated or required that such a balancing exercise be conducted. A crime is or is not serious when committed, and its character as such cannot depend on later consequences should the offender be returned to the homeland. The Court concluded that whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if returned to the homeland eventuates. That accords with the approach adopted by the Canadian Courts, which was re-affirmed by the Federal Court of Appeal in Malouf v Canada (Minister of Citizenship & Immigration) (1995) 190 N.R. 230. 38 The Minister's delegate determined the application of Article 1F in the present case without first determining whether the applicant was a refugee within the meaning of Article 1A of the Convention. AAT confined its consideration of the matter to Article 1F. It follows from the authorities to which I have referred that AAT was entitled to proceed in that way. The terms of the Act also indicate that the jurisdiction of the AAT was confined to a consideration of the matters arising under Article 1F, rather than Article 1A. I conclude therefore that none of grounds 7, 8 or 9 have been made out.

"A serious non-political crime" 39 Grounds 1, 2, 3, 4, 5, 6 and 11 raise the issue of whether the AAT erred in law in coming to the conclusion that the drug trafficking crimes to which the applicant admitted whilst in Indonesia, are properly regarded as serious non-political crimes. 40 It is not necessary to set out each of these grounds in detail. The essential thrust of the applicant's contentions, as expressed in the written submissions, is as follows: "In short, the Tribunal was required to determine whether the applicant had committed a 'serious' non-political crime, not by the mere characterisation of the conduct as falling within conduct proscribed by Australian law, but following full evaluation of the applicant's individual circumstances, as propounded by Indonesian law. In failing to undertake that evaluation, or apply the correct principle by reference to Indonesian law, the Tribunal erred in law." In particular, complaint was made of the failure to evaluate whether there was "duress" associated with the commission of the crimes which might constitute a defence under Indonesian law. The applicant alleged that AAT based its finding as to "seriousness" on irrelevant considerations as to whether the applicant's conduct in Indonesia constituted a crime under Australian law. 41 AAT proceeded on the basis of the applicant's admission that he was involved in drug trafficking in Indonesia and thereby committed a crime in Indonesia prior to his coming to Australia. In determining whether the crime should be characterised as "serious", AAT took into account the fact that the Australian community regards crimes involving trafficking in drugs, particularly heroin, as serious. AAT was entitled to proceed upon the basis that whether a particular crime should be characterised as serious may be answered by reference to notions of serious criminality accepted within the receiving State: Ovcharuk v Minister for Immigration & Multicultural Affairs (supra) at 185 per Branson J. It was legitimate for AAT to take into account the fact that had the conduct in question occurred in this country, then the quantities of drugs with which the applicant was involved, both as a "middle man" and as a "courier", would be regarded as trafficable quantities or commercial quantities under domestic legislation, as this bore upon the seriousness with which such a crime would be viewed in this country. 42 AAT took into account the mitigating factors identified by the applicant's counsel inasmuch as it took into account the circumstances in which the crime was committed. Not all factors which might result in a reduced sentence necessarily impact upon the seriousness of the crime. For example, a plea of guilty and the fact of repentance might be reflected in a reduced sentence, but without mitigating the seriousness of the crime. 43 The applicant submits that it was not, on the Statement of Facts supplied by the applicant before AAT, a far-fetched possibility that the applicant may have pleaded a defence of duress under Indonesian law. Arguably, in the applicant's submission, "'duress' may constitute a defence to the application of an exclusion clause under Article 1F". 44 AAT did not commit any error in failing to consider this question. If the conduct which the applicant admitted was induced by "duress", and if "duress" negatived criminality, then the conduct in question would not have amounted to a crime in Indonesia. The hypothesis which the applicant's submission constructs is inconsistent with the basis on which the proceedings were conducted before the delegate and before AAT. In any event, it is not necessary that AAT have material before it which excludes all hypotheses consistent with innocence in order to be satisfied that there are serious reasons for considering that the applicant has committed a relevant crime: Arquita v Minister for Immigration & Multicultural Affairs (supra) at par 61. 45 Accordingly, grounds 1, 2, 3, 4, 5, 6 and 11 are not made out.

Ground 10: that the Tribunal erred in law by failing to consider and determine whether the applicant passed the character test prescribed by s 501 of the Act pursuant to Article 7 of the Convention 46 Article 7(1) of the Convention provides that except where the Convention contains more favourable provisions, a contracting State shall accord to refugees the same treatment as is accorded to aliens generally. Section 501 of the Act enables the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is defined in s 501(6). In the applicant's contention it is the character test which should have been applied to the applicant, rather than the provisions of Article 1F. 47 There is no substance to this contention. Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention as amended by the Refugees Protocol. The application of that criterion necessarily requires that the provisions of Article 1F be taken into account. The general provisions of Article 7 do not override the specific provisions of Article 1F.

Conclusion 48 The applicant has not made out any of the grounds of review raised in the application, and the application should be dismissed with costs. 49 The High Court delivered its judgment in Minister for Immigration & Multicultural Affairs v Singh on 7 March 2002, after preparation of these reasons. As this matter is listed for judgment on 8 March 2002, it is sufficient for me to say that the High Court's decision does not require or indicate any different conclusion on grounds 7, 8 and 9 than the conclusion which I have reached. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant: A W Street SC, A Abadee

Solicitor for the Applicant: Allens Arthur Robinson