W275/01A v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-06-19|Before: French J, Nicholson J

REASONS FOR JUDGMENT 1 The applicant seeks an order for review of a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 1 June 2001. The decision was to the effect that the Tribunal affirmed the decision under review before it. That was a decision by a delegate of the respondent made on 21 June 2000 refusing an application by the applicant for a protection visa under the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994 ("the Regulations"). 2 The reasons of the Tribunal state that, in accordance with confidentiality orders made by it under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the applicant's name was not disclosed and no specific reference as to names, organisations, places, dates and times associated with the applicant's relevant activities in the country of his nationality were utilised in the reasons of the Tribunal. These reasons of the Court will be structured in the same manner. 3 The applicant arrived in Australia without authorisation under the Act in September 1999 and was placed in immigration detention as an "unlawful non-citizen". He lodged an application for a protection visa on 28 February 2000. It was that application which was the subject of the adverse decision by the delegate on 21 June 2000. At the time of the Tribunal's decision the applicant was aged 29 years.

Jurisdiction 4 For the respondent it is submitted that the Court has jurisdiction to review the Tribunal's decision pursuant to the provisions of s 476 of the Act as it was at the date of the application made by the applicant. It is said that the Tribunal's decision is a "judicially-reviewable decision" within the meaning of s 475(1) of the Act because it is a decision "made under [the] Act" within the meaning of s 475(1)(c). Because the Tribunal's decision was a decision affirming the delegate's decision refusing to grant a protection visa, it is submitted the Tribunal's decision was a decision relating to visas and was a decision made both under the Act and the AAT Act. This submission, however, did not find favour with French J in Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 11 - 13. 5 It is submitted in the alternative for the respondent that in the event the Court has no jurisdiction to review the Tribunal's decision pursuant to s 476 of the Act, it is made apparent by s 485(2) that s 485(1) does not affect the jurisdiction of the Court in relation to appeals under s 44 of the AAT Act. Accordingly, it is accepted for the respondent if the Court does not have any jurisdiction to review the decision pursuant to s 476 of the Act, the application should be treated and accepted as an appeal from the Tribunal's decision pursuant to s 44(1) of the AAT Act. 6 This is not the case in which the views expressed by French J in Powell are shown to be attended with such doubt that they should not be followed. The applicant was in most part unrepresented so there is no contradictor available to the Court on the point of jurisdiction. I decline therefore to find contrary to the view that jurisdiction does not arise in the manner contended for. I rely on the alternative acceptance of jurisdiction arising pursuant to the appellate jurisdiction from the Tribunal.

Convention Article 1F 7 Article 1F of the Convention provides: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations." It is against the provisions of this Article that the reasons of the Tribunal are to be understood.

Tribunal's findings and reasons 8 After setting out the material which was before it, the Tribunal described in some detail the evidence given by the applicant at the Tribunal hearing. It then identified the issue in the case as being whether the applicant fell within any of the "exclusionary provisions" in Article 1F of the Convention, and more specifically, whether there were "serious reasons for considering" the applicant had committed either a "crime against humanity" or a "serious non-political crime" within the meaning of either par (a) or (b) of Article 1F. 9 The Tribunal next dealt with the threshold requirement in both pars (a) and (b) of Article 1F of the Convention that there must be "serious reasons for considering" that the relevant person has committed a crime within any of the categories referred to in those paragraphs. The Tribunal referred to a decision of this Court in Dhayakpa v Minister for Immigration & Ethnic Affairs (1995) 62 FCR 556 that it is sufficient that there be "strong" evidence of the commission of one or more of the relevant crimes or acts. Article 1F(a): crime against humanity 10 The Tribunal then considered whether the applicant had committed a "crime against humanity" within the meaning of par (a) of Article 1F of the Convention. It was prepared to find there were serious reasons for considering that members of the X party had committed crimes against humanity. However, in the Tribunal's opinion, the whole of the material before it did not suggest there was strong evidence available upon which it could reasonably and properly be concluded the applicant had committed a crime against humanity. After referring to the relevant evidence, the Tribunal concluded that: "There are not serious reasons for considering that the [A]pplicant has committed, either as a principal or as an accomplice, a crime against humanity, within the meaning of para (a) of art 1F of the Refugees Convention." Article 1F(b): serious non-political crime 11 The Tribunal then turned to whether there were serious reasons for considering the applicant had committed a "serious non-political crime" outside Australia prior to his admission to Australia. It considered there was material before it which related to the applicant's possible involvement in the smuggling and distribution of illicit drugs, and it summarised that material. The Tribunal then found there were more serious reasons for considering that the applicant, during the period from 1992 to 1996, was directly involved in the smuggling of illicit drugs from India to Bangladesh and their subsequent distribution in Bangladesh, and that the applicant was, during that period, directly involved in the illegal importation of trafficable quantities of "hard" drugs. The Tribunal also found that such a crime was a "serious" crime. 12 The Tribunal also considered whether there were "mitigating factors" which might mitigate against such a finding. However, for the reasons which it set out, the Tribunal concluded the factors pleaded in mitigation by counsel for the applicant did not significantly mitigate the seriousness of his involvement in the crime of smuggling and distributing trafficable quantities of illicit drugs from 1992 to 1996. The Tribunal therefore found there were serious reasons for considering the applicant had committed that serious crime. 13 The Tribunal then turned to the issue whether the serious crime committed by the applicant was a "non-political crime" within the meaning of par (b) of Article 1F of the Convention. In considering this issue the Tribunal referred to the decision of this Court in Singh v Minister for Immigration & Multicultural Affairs (2000) 102 FCR 51, and the reference by the Full Court in that case to the judgments of Lord Lloyd and Lord Mustill in T v Secretary of State for Home Department [1996] AC 742. The Tribunal stated it was satisfied that the X party was at all relevant times engaged in a "political struggle" with the government of Country Y and that the serious crime of smuggling and distributing trafficable quantities of illicit drugs was committed in the course of that political struggle and probably would not have been committed but for that political struggle. Accordingly the crime could be described as an incidence of that struggle. However, the Tribunal noted the Full Court had indicated in Singh (at 60) the fact that a crime was committed as an incidence of a political struggle is not of itself sufficient to characterise that crime as a political crime. The Court had also said (at 61) that it was: "necessary … to consider whether the crime has characteristics which, notwithstanding "incidence", require it to be regarded as non-political." 14 The Tribunal stated that in its opinion the serious crime of illegally importing and distributing trafficable quantities of illicit drugs was, of its true nature and character, a non-political crime. This was because, such a crime, of its nature, was likely to cause misery, suffering, injury or death indiscriminately to persons, not themselves involved in the relevant political struggle, who ultimately used those drugs. The Tribunal also considered the crime may be regarded as so atrocious and so disproportionate to the X party's political objectives as not to warrant the description of a "political crime". The Tribunal concluded by finding that: "there are "serious reasons for considering" that the [A]pplicant has committed a "serious non-political crime" outside Australia prior to his admission to Australia, within the meaning and for the purpose of para (b) of art 1F of the Refugees Convention." Accordingly, the Tribunal said the provisions of the Convention did not apply to the applicant, and consequently he was not a person to whom Australia has protection obligations under that Convention. The provisions of the Act therefore meant that his application for a protection visa must be refused, so that the Tribunal affirmed the decision under review.

Grounds of appeal 15 Although the applicant had been represented before the Tribunal, he appeared unrepresented before the Court. In his application he formulated his grounds in a manner which indicated the principal ground was that the Tribunal was in error of law in concluding that his crime was non-political in character. His oral submissions also gave rise to the need to consider whether the no evidence ground provided for in ss 476(1)(g) and (4) could be invoked in his favour. Subsequently pro bono counsel was obtained to assist the applicant on a particular point, namely the decision of the High Court in Minister for Immigration & Multicultural Affairs v Singh (2002) 186 ALR 393.

Applicant's submissions 16 The applicant's written submissions filed in support of his case and his oral submissions focused on essentially the same matters. He started from the proposition that it was important for an Australian court to understand that X party was highly political in character. He said it had been banned under the Constitution. He described its origins as being such that it aligned itself with a foreign power which in turn had supported another country against the independence of his country. Its leader and other supporters had been killed. However, its membership was in the order of two million and it was wrong for the Tribunal's decision to impliedly characterise them as non-political criminals. 17 The applicant said he had become involved with the X party when he had been offered work with it in relation to what he was told was a humane cause, namely, providing clothes and medicine for poor people. It was only later he had found that the party was smuggling arms and drugs. His case was that he could not leave the party because to do so would be to attract a death sentence from it. He could not report to the police in his country because they were corrupt. Nor could he go to a neighbouring country because he would have no passport or visa and would inevitably end up being imprisoned. 18 The applicant stressed he had no intention of committing criminal acts; he had been the victim of circumstances and was forced to continue working for the party even after he had discovered its criminal activities. He also stressed that none of his criminal activity was in the nature of terrorist activities. 19 Accordingly, he said that the Tribunal had been in error in concluding that his crime was other than a political crime. To belong to the X party was to be highly involved in political matters and it was for his political opinion, as a member of that party, that he had a well-founded fear of persecution were he to be returned to his own country. 20 In relation to the specific question dealt with in the course of his hearings as to why he had not taken up an amnesty offered to members of X party, he said that he had been in an isolated place and it had been difficult for him to obtain information concerning this matter and additionally, in any event, the offer was not an honest one. 21 In the course of his statement the applicant stressed that he had never been involved in the sale of drugs or of arms. He said he had honestly described his situation to the authorities acting under the Act because he was desperate to save his life by not going back to his own country. 22 In reply the applicant said his evidence before the Tribunal had been given in circumstances where he had been told to keep his answers short and he had not fully explained the precise degree to which he was involved in the activities now characterised as his non-political crimes.

Respondent's submissions 23 Essentially the submissions for the respondent were to the effect that the Tribunal's reasoning did not disclose any error of law so that there was no basis for this Court to find any of the grounds of review set out in s 476(1) of the Act as having been made out. Specifically, the respondent submitted that the Tribunal was correct to characterise the crimes of the applicant as non-political.

Whether Tribunal in error of law in incorrectly interpreting "non-political crime" 24 When the issue of whether the applicant's serious crime (as found by the Tribunal) was a "non-political crime" within the meaning of par (b) or Art 1F of the Refugees Convention came before the Tribunal, the Tribunal relied upon the decision of the Full Court in Singh v Minister for Immigration & Multicultural Affairs (2000) 102 FCR 51. On 7 March 2002, that is after the first hearing in this present application, the High Court of Australia dismissed an appeal against the decision of the Full Court: Minister for Immigration & Multicultural Affairs v Singh. 25 In relying on the reasons of the Full Court in Singh for the purpose of its understanding of the concept of "non-political crime", the Tribunal relied on the passage in the reasoning of the Full Court at 59 to the following effect: "The Convention concept of a 'non-political crime' is a vexed and difficult one. It is clear at least that, although political motivation is essential to deprive a crime of non-political character, it is not always sufficient. Professor Goodwin-Gill (The Refugee in International Law (2nd ed, 1996)) summarises the considerations at pp 105, 106 as follows: 'The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organisation or the very structure of the State, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.' That passage is substantially to the same effect as par 152 of the UNHCR Handbook. It does not suggest, we think, that a crime is political only if the motivation of the criminal is pure, in the sense that it is exclusively political. On the other hand, the crime must be directly linked to the political object. Equally, there are some crimes which, whatever their motivation and whatever their link with a political objective, will be regarded as non-political. The suggestion is that a balancing exercise is to be undertaken: a crime may be non-political if it is grossly disproportionate to the alleged political objective or if it is 'atrocious'." 26 The Tribunal pointed out that the Full Court had earlier (at 57) quoted a passage from the speech of Lord Lloyd of Berwick (agreed in by Lord Keith of Kinkel and Lord Browne-Wilkinson) in T v Secretary of State for Home Department [1996] AC 742 at 786 - 787 where he said: "A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public." 27 The Tribunal also relied on the following passage in the reasoning of the Full Court (at 60): "In our view, the true principle is that stated by Lord Mustill in T at 764: 'The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the 'incidence' theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incidence of this struggle.' … All authorities agree that, in addition to 'incidence', there is a further matter to be taken into account in ascertaining whether a particular crime is non-political. It is variously expressed in terms of weighing, proportionality or whether the crime is particularly atrocious. As the speeches in T reveal, all those formulations have their difficulties. But on one point the authorities are unanimous, … It is that a crime will be non-political if it is calculated to cause death or injury indiscriminately to innocent persons not themselves involved in the political struggle. … To seek to achieve political ends by attacking, rather than political or government targets, uninvolved members of the public is to commit a crime which is non-political." 28 In the High Court, members of the Court stated their understanding of the concept of a "non-political crime". Gleeson CJ said (at 398, par [16]): "when courts have endeavoured to state the principles according to which a decision is to be made as to whether a crime which, by hypothesis, has been committed in another country, in circumstances utterly different from those that prevail in the country of refuge, is political, they have taken pains to confine the concept so as to avoid the consequence that all offences committed with a political motivation fall within it." He gave as an example the definition proposed by Lord Lloyd in T v Home Secretary. Later (at 400, par [21]) he said that: "once it was accepted that the concept of a political crime was not limited to offences such as treason, sedition, and espionage, and could extend to what would otherwise be "common" crimes, including unlawful homicide, then it became necessary to find means of avoiding the consequence that any crime could be political if one of the motives for which it was committed was directly or indirectly political." There was therefore "no bright line between crimes that are political and those that are non-political". However, there must be "a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act". 29 Gaudron J (at 405, par [45]) said she would consider "a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed." She continued by stating (at 405 - 6, par [46]) that "the true purpose of actions which are unnecessary or disproportionate to the end which is said to justify those actions is unlikely to be the achieving of that end but is likely to be the satisfaction of some other and different purpose". 30 Kirby J (at 427, par [141]) said that "to be "political" [the crime] must, in some appropriately close way, be linked with the purpose of changing the political environment, commonly the government, by the commission of the crime". Kirby J said (at 428, par [141]): "In deciding whether a crime is "political" or "non-political" it will sometimes be relevant to consider the weapons and means used; whether the "target" of the crime is a public official or a government agent as distinct from unarmed civilians chosen indiscriminately; and whether the crime is proportionate to the political end propounded. If it is excessive and disproportionate, it will be easier to infer that its true character is "non-political", that is, done for the satisfaction of some other and different, possibly entirely personal ("non-political") purpose. It will usually be necessary to examine the alleged objectives of any organisation involved and the applicant's connection, if any, with that organisation; and…" 31 I have set these passages out in order to make evident that they do not appear to me to provide any occasion to think that the concept of "non-political crime" applied by the Tribunal should be considered to have been in any way in error of law. The question then is whether the Tribunal was entitled to conclude that the applicant's crimes were "non-political". 32 The essence of the Tribunal's reasoning, summarised above, lies in the following passage: "In the Tribunal's opinion the serious crime of illegally importing and distributing trafficable quantities of illicit drugs, of which the applicant was a co-perpetrator from 1992 to 1996, is, of its true nature and character, a non-political crime. That is because such a crime, of its nature, is likely to cause misery, suffering, injury or death indiscriminately to persons, not themselves involved in the relevant political struggle, who ultimately use those drugs: … Furthermore, that crime may be regarded as so atrocious, and also so disproportionate (in terms of its injurious effects on uninvolved civilians) to the X party's political objectives, as not to warrant the description of a "political crime"." 33 In my opinion the Tribunal was entitled to reach this conclusion on the evidence before it and in application of the concept of "non-political crime". I do not accept the submission made by pro bono counsel for the applicant on this particular aspect that the Tribunal erred in law in focussing on the outcomes of the alleged crime rather than the object or purpose for which the alleged crime was committed. It was for the Tribunal to judge on all the evidence before it whether there was "a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act": Minister for Immigration & Multicultural Affairs v Singh at 400, par [21] per Gleeson CJ. The Tribunal had in mind that the crimes were such that they were "likely to involve the indiscriminate killing or injuring of members of the public": T v Home Secretary supra per Lord Lloyd of Berwick. It was open to the Tribunal in those circumstances to find that the crimes were "excessive and disproportionate so that their true character was non-political": Minister for Immigration & Multicultural Affairs v Singh at 428, par [141] per Kirby J. The Tribunal accepted that the crimes could be described as an incidence of the political struggle by the X party. However, the Tribunal correctly proceeded on the view that such incidence could not be itself determinative of the issue of characterisation of the crimes. 34 In my opinion the Tribunal was not in error of law when it has reached its conclusion that the applicant's crimes were non-political.

Whether there was no evidence that the applicant was involved with drugs 35 The Tribunal's reasons in par 41 read as follows: "In the present case there is material before the Tribunal which relates to the applicant's possible involvement in the smuggling and distribution of illicit drugs. That material, in summary, is as follows: · the applicant's recorded statement in the DIMA supplementary interview on 24 November 1999 regarding his role in the X party as follows …: "After 3-4 years they began to trust me and let me do field work ie illegally bringing drugs and arms from India. The arms were distributed amongst the members. The drugs were sold. …"; · the applicant's statement, dated 27 February 2000, accompanying his application for a protection visa, which contains the following statement …: "6. In 1992 I was recruited to work on the Indian border and came to know that the Party was involved in smuggling drugs and arms. …"; · the following statement in the applicant's "Post Interview Submission" …: "I was never involved in the smuggling … I am opposed to violence/arms/drugs (I'm not aware of this group being involved in drugs)."; · the applicant's statement of evidence, dated 3 November 2000, to the Tribunal which states as follows …: "7. Despite serious misgivings I continued to work assisting in illegally bringing drugs and arms into the country from India. I had no other choice. I was terrified I would be killed. My duties were to count the boxes. I never saw any drugs but I believe they were sold. I helped to count the arms. I never personally handled guns or sold drugs. …"; · the applicant's oral evidence to the Tribunal that he never brought drugs into [his country] or saw such drugs but that he had heard from other party members that drugs were coming and that such drugs were not for their personal use but were to be sold and the proceeds used to finance party activities." 36 The submissions on behalf of the applicant before the Tribunal on this aspect were summarised in par 42 of the Tribunal's reasons as follows: "In submissions made on behalf of the applicant it was conceded that the applicant was aware at the relevant time that boxes smuggled across the border (where he was stationed at that time) from India contained drugs which were to be sold for the purpose of financing the political aims of the X party and that "at worst" he was "but a mere accomplice in the smuggling of drugs." 37 Accordingly, the Tribunal concluded that there are serious reasons for considering that the applicant, during the period from 1992 to 1996, was directly involved in the smuggling of illicit drugs from his neighbouring country to his own country and their subsequent distribution within his country, in that he knowingly received such drugs and arranged for their collection by other members of the X party in the knowledge that they were then to be sold to finance the operations of the X party. The Tribunal made the inference that the drugs fell into the category of hard drugs. Accordingly it found there was serious reasons for considering that the applicant was, from 1992 to 1996, directly involved in the illegal importation of trafficable quantities of hard drugs and that this constituted a serious crime. 38 In my opinion the Tribunal was entitled to make those findings of fact from the evidence before it. This is not an instance where there was no evidence to support the findings.

Whether Tribunal in error of law in failing to take into account duress 39 The applicant's submissions emphasise he had maintained to the Tribunal that at all times he had only remained a member of the party, after discovering its true political objectives and its criminal activities, because of the duress which he was under in relation to his life. There remains, therefore, the question whether the Tribunal should have considered whether the applicant had not committed a crime because of such duress. 40 This aspect was addressed by the Tribunal in par 46 of its reasons when it said the following: "As regards whether he did so by reason of duress, the Tribunal is not satisfied that the applicant was actually threatened with serious harm unless he participated in the illegal smuggling and distribution of the illicit drugs, or was otherwise forced to do so. The Tribunal does not accept the applicant's evidence that he was told by X party members that he would be killed if he questioned their illegal activities or if he did not continue to participate in those activities. The Tribunal accepts, as more credible, Mr Macliver's submission that it was open to the applicant to leave the X party once he became aware of its illegal activities in 1992 if he genuinely did not wish to be associated with those activities." 41 The Tribunal's finding of fact on the issue of duress was entirely adverse to the applicant. It is a finding which was open to it and which was not in error of law.

Conclusion 42 The Court has considered the principal issue raised by the applicant as constituting the foundation of the Tribunal's error of law. It has also addressed two other issues which arguably arose from his contentions. For the above reasons, none of these issues assist the applicant. The consequence is that the application must be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 10 December 2001; 30 April 2002

Migration Act 1958(Cth)ss 475(1), 475(1)(c), 476, 476(1), 476(1)(g), 476(4), 485(1), 485(2), 500(1)(c)

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