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MIGRATION – protection visa – application refused on ground that Refugees Convention did not apply to the appellant by reasons of the operation of Art 1F of the Refugees Convention – where finding that appellant committed a war crime or crime against humanity – whether necessary that there be a finding with respect to a specific incident – duress – whether appellant in a position to make the relevant moral choice

SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 308 (22 December 2003)
Last Updated: 23 December 2003

FEDERAL COURT OF AUSTRALIA


SHCB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 308


MIGRATION – protection visa – application refused on ground that Refugees Convention did not apply to the appellant by reasons of the operation of Art 1F of the Refugees Convention – where finding that appellant committed a war crime or crime against humanity – whether necessary that there be a finding with respect to a specific incident – duress – whether appellant in a position to make the relevant moral choice


Administrative Appeals Tribunal Act 1975 (Cth) s 44
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 474, 483


Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited
SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 229 affirmed
W97/164, Re and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432













SHCB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S431 OF 2003





MANSFIELD, EMMETT & BENNETT JJ
22 DECEMBER 2003
ADELAIDE (HEARD IN PART VIA VIDEO LINK)


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 431 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SHCB
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: MANSFIELD, EMMETT & BENNETT JJ
DATE OF ORDER: 22 DECEMBER 2003
WHERE MADE: ADELAIDE (HEARD IN PART VIA VIDEO LINK)


THE COURT ORDERS THAT:


1. the appeal be dismissed;
2. the appellant pay the respondent’s costs.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S431 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SHCB
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: MANSFIELD, EMMETT & BENNETT JJ
DATE: 22 DECEMBER 2003
PLACE: ADELAIDE (HEARD IN PART VIA VIDEO LINK)


REASONS FOR JUDGMENT

THE COURT:

1 The appellant, with his wife and six children, arrived in Australia from Afghanistan in August 2001. The appellant is of Uzbek ethnicity and is a Sunni Muslim and claimed that Uzbeks were being treated cruelly by the Taliban. He and his family therefore applied for protection visas under the Migration Act 1958 (Cth) (‘the Act’). His wife and six children have been granted temporary protection visas but, on 7 May 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made a decision to refuse to grant a protection visa to the appellant.

2 The delegate’s ground for refusing to grant a protection visa was that, whether or not the appellant is a refugee within the meaning of the Refugees Convention, the Refugees Convention does not apply to him by reason of the operation of Art 1F(a) of the Convention. Article 1F(a) provides that the Convention does not apply to any person with respect to whom there are serious reasons for considering that the person has committed a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.

3 On 10 May 2002, the appellant applied for a review of the decision of the delegate by the Administrative Appeals Tribunal (‘the AAT’). On 12 November 2002, the AAT affirmed the decision of the delegate. The AAT was satisfied that there is strong evidence that the appellant has committed either war crimes or crimes against humanity within the meaning of an international convention and that the appellant therefore falls within Art 1F(a).

4 The appellant then filed a notice of appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). On 24 March 2003, a judge of the Court dismissed the proceeding with costs: see SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 229. The appellant now appeals from those orders to the Full Court.

5 The Minister contends that the decision of the AAT was a privative clause decision within the meaning of s 474 of the Act. If that is so, there is no right of appeal under s 44 of the AAT Act, by reason of the operation of s 483 of the Act. On the other hand, if the decision is not a privative clause decision, there would be a right of appeal under s 44. In any event, the Minister accepts that the Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) to grant relief, in the nature of prerogative writs, in respect of the decision of the AAT.

6 In his amended notice of appeal from the decision of the AAT, the appellant claimed that the AAT committed jurisdictional errors and that the following questions of law were raised:

(1) whether there are serious reasons to consider that the appellant has committed war crimes or crimes against humanity;
(2) whether the evidence, if there is any, of the appellant’s complicity in war crimes or crimes against humanity, constitutes strong evidence;
(3) to the extent that the appellant shared a common purpose with others who committed war crimes or crimes against humanity, whether such a purpose on the part of the appellant was held by him so integrally so as to render him complicit.
7 In the course of the hearing before the primary judge, the appellant contended that the decision of the AAT involved a jurisdictional error such that it was not a privative clause decision within the meaning of s 474(2) of the Act. Accordingly, s 474(1) of the Act had no operation: see Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at 46 [77]-[78].

THE AAT’S FINDINGS

8 The AAT found that the appellant was born in Afghanistan in 1967 and is an Uzbek and a Sunni Muslim. The AAT noted his claims that he had left Afghanistan because his life was in danger from the Taliban and that Uzbeks were being treated cruelly by the Taliban. When the Uzbek militia tried to recruit Uzbeks to fight against the Taliban, the appellant decided to leave Afghanistan.

9 The AAT also found that, in January 1980, a state information agency, Khedimati Atela’ at-i Dawlati (‘KHAD’), was established as part of the Ministry of the Interior of Afghanistan. Shortly after its establishment, KHAD was detached and transformed into an almost completely independent directorate-general within the President’s bureau. That meant that it was responsible only to the President and, through him, directly to the Revolutionary Council. The AAT concluded that the material before it pointed to KHAD’s being involved in acts of torture and attacks against the civil population or individual civilians who were not taking a direct part in hostilities. It considered that the material also pointed to KHAD’s having been engaged in violence to life and person, including cruel treatment and murder.

10 The AAT considered that there was strong evidence that acts of atrocity, torture, cruelty and violence to the person, as well as arrest and detention for indefinite periods, were perpetrated by KHAD. KHAD’s activities were not confined to Kabul and there was evidence that the atrocities it committed were worse in the regions other than Kabul. There was material before the AAT referring to numerous cases of torture. The cases were drawn not just from Kabul but from places such as Kandahar, Jalalabad and Pagman. It was satisfied that those activities involved the commission of crimes against humanity or war crimes or both within the meaning of international conventions.

11 The AAT found that the appellant joined KHAD in July or August 1984 and was given six months’ training. Most of his instructors were Russian. He was posted to Samangan and returned only once to Kabul in an official capacity. During his career, the appellant was promoted on several occasions. His final promotion occurred in approximately January 1992 when he became a major.

12 The AAT was satisfied that the appellant, as an officer of KHAD, had received quite extensive training and additional benefits, such as paid holidays, normally made available to officers of KHAD. The AAT was also satisfied that there was strong evidence that the appellant did not play a peripheral or menial role in KHAD. He was an officer entitled to benefits and whose departure would not only be noted but would be visited with dire consequences.

13 The AAT characterised the focus of the case before it as being whether the appellant had any part to play, whether directly or indirectly, in acts of atrocity committed by KHAD and, if so, whether his part leads to the conclusion that he had committed a war crime or a crime against humanity. The AAT stated the relevant legal principle as follows:

‘In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.’

There has been no suggestion that that statement of principle is wrong.

14 The AAT found that the appellant was an officer of KHAD at the time war crimes and crimes against humanity were committed by KHAD. However, the appellant denied that he knew about atrocities, torture and interrogation carried out by KHAD and denied that he played any part in them. The effect of his evidence was that he was engaged in encouraging mullahs not to oppose the government.

15 Many of the cases of atrocity referred to in the material before the AAT related to the period when the appellant was an officer in KHAD. The AAT was satisfied that there was strong evidence that the appellant would have been well aware of the activities in which KHAD engaged, even if he were not himself engaged in acts of torture, violence and detention of the sort just described. The AAT was also satisfied that there was strong evidence that the appellant would have been well aware that reporting information to his superiors would be likely to lead to such acts being perpetrated against those about whom he reported.

16 The AAT referred to two incidents in that regard. In the first incident, the appellant asked for an area to be checked out by the combined forces, when he detected a lack of security in the area. His evidence was that the forces securing the area did not take people but sent the people to a military tribunal where they were charged, for the most part, with crimes against the revolution, destructive activities and terrorist activities.

17 The second incident related to Azad Beg, whom the appellant described as an ‘agitator’ or an ‘opposition campaigner’ linked to the Pakistani army, who was causing unrest in a particular area. Azad Beg was an ethnic Uzbek who had migrated to Pakistan and was involved in a political party called the Islamic Council of the Northern Provinces of Afghanistan.

18 The appellant said that he received a report of destructive actions by Azad Beg intended to keep the forces in the north of Afghanistan busy. Azad Beg had operations in other areas but he also had operations in the area to the north of Samangan. The appellant said that, in 1991 or 1992, he received information that Azad Beg was undertaking activities in that area. He reported what he was told to his head of section in KHAD. The government then sent security forces to the area where Azad Beg was operating in order to prevent his destructive activities. There was evidence before the AAT that sending the security forces would mean that anyone who might have been an opponent of the regime would be arrested and exposed to interrogation, intimidation and threats by KHAD.

19 That material led the AAT to conclude that the appellant was aware that merely reporting information had consequences for those to whom the information related and that those consequences were directed to ending the activities of those whom he reported. Given the appellant’s position in KHAD, the knowledge of KHAD’s activities in the community and the appellant’s knowledge of the action that KHAD would take when he reported his information, the AAT was satisfied that there was strong evidence that the appellant reported information ‘with the knowledge that KHAD would take action to end the security threat in one area or the destructive activities alleged to have been undertaken by Azad Beg in another’. The AAT found that the appellant did so in the knowledge that KHAD was likely to engage in activities that amounted to war crimes or crimes against humanity.

ISSUES IN THE FEDERAL COURT

20 In essence, there were two contentions advanced before the primary judge. The first was that the AAT failed to make a finding about any specific act, being a war crime or crime against humanity, for which the appellant could be culpable. Secondly, the appellant contended that the AAT failed to consider a material fact, namely, the danger faced by the appellant and his family if he were to leave KHAD.

ABSENCE OF SPECIFIC FINDINGS

21 The AAT found that the appellant:

• knew of the activities of KHAD involving crimes against humanity or war crimes, by reason of his being an officer of KHAD who had received extensive training;
• was responsible for passing on information to his superiors knowing the consequences in relation to the steps that would be taken to end the activities reported by him.
During the period that the appellant passed on that information, the KHAD perpetrated numerous acts of atrocity, torture, cruelty and violence to the person. However, the AAT did not make a finding that a specific act of atrocity, torture, cruelty or violence to the person occurred as a consequence of the passing on of the information.

22 The AAT found that many such acts were committed by the KHAD while the appellant was an officer, in circumstances where he knew such acts were being committed. He passed on information in the two specific incidents mentioned, knowing that atrocity, torture, cruelty or violence to the person was a likely consequence.

23 It is not necessary, for a finding that the appellant committed a war crime or a 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 as an officer of KHAD knowing that such acts would be the 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 KHAD 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.

24 The AAT observed that the two incidents described led the AAT to conclude that the appellant was aware that his merely reporting information had consequences for those whom he reported and that those consequences were directed to ending the activities of those whom he reported. The AAT then said:

‘[The appellant] distanced himself from those consequences. They were carried out by others and the interrogations were carried out not by KHAD but by the Ministry of Justice or by the Special Revolutionary Tribunal.’
25 The appellant contended that, in the light of that observation, in order to determine complicity of the appellant in the commission of a relevant crime, the AAT was required to find that:

• there was strong evidence that the appellant had knowledge of the illegality of the processes of government departments other than KHAD, namely the Ministry of Justice and the Special Revolutionary Tribunal; and
• the appellant was intentionally and knowingly complicit in a common criminal purpose with the combined forces as well as the Ministry of Justice and the Special Revolutionary Tribunal.
26 It is clear enough that, in the passage set out above (at [24]), the AAT was citing the assertions made by the appellant. The AAT then went on to refer to evidence given by Dr William Maley on behalf of the Minister. Dr Maley is Associate Professor of Politics, University College, University of New South Wales, Australian Defence Force Academy and a research associate of the Centre for Arab and Islamic studies at the Australian National University. Dr Maley referred to a paper prepared by the Netherlands’ Ministry of Foreign Affairs, Asylum and Migration Division (‘the Netherlands’ Paper’), which stated that persons arrested by KHAD were first taken to interrogation centres operated by it. Detainees were questioned and, if thought to be withholding information, were threatened with force. If the person was still thought to be withholding information, torture was used. Dr Maley also said that the Special Revolutionary Tribunal was routinely involved in interrogation itself. The Netherlands’ Paper states that it and the Revolutionary Public Prosecutor were controlled by KHAD and that many were sentenced to imprisonment or death on the basis of information obtained under torture. Having regard to the findings made by the AAT, the contention on behalf of the appellant referred to above has no substance. The first ground is not made out.

27 The appellant further submitted that neither of the reports made by him could constitute a crime against humanity because the reports were directed against insurgents engaged in guerrilla warfare against the regime and not against civilians.

28 The AAT did note that the appellant had described Azad Beg in cross-examination as a ‘military officer in Pakistan’ and ‘involved in a political party’ and as a person ‘obtaining supplies from Pakistan and obtaining intelligence to favour the Mujaheddin’. No finding of fact was made by the AAT as to a characterisation of this person as military or civilian. There is no indication that the AAT was asked to make such a finding nor that such a distinction was drawn before the AAT. Neither the notice of appeal nor the amended notice of appeal raise the issue. It does not seem to have been raised before the primary judge.

29 The characterisation of Azad Beg in terms of civilian or military activity is a question of fact for the AAT. No such finding of fact was made, which is understandable in the absence of a case being made that there was such a distinction to be drawn. There was no error on the part of the AAT in that regard. The AAT’s finding was based on KHAD’s acts against the civilian population.

DURESS

30 The AAT noted that the departure of the appellant from the KHAD would be branded disloyalty and would be visited with dire consequences. Thus, it might be concluded that there was duress brought to bear on the appellant to ensure his continued membership of KHAD. However, the AAT did not find that merely being an officer of the KHAD constituted complicity in its acts. The finding was to the effect that the appellant, in his capacity as an officer, engaged in conduct knowing that that conduct was likely to lead to the commission of relevant acts. There was no finding by the AAT that the appellant continued to participate in the affairs of KHAD because of his fear of the dire consequences that would be visited upon him if he ceased to do so.

31 The defence of obedience to higher orders will normally apply only where there are imminent real and inevitable threats to a subordinate’s life. There is an element of moral choice in relation to the defence: see Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 at 449 [80]-[83]. As the primary judge observed (at [15]), the question ultimately was whether the appellant had been in a position to make the relevant moral choice. There is simply no finding by the AAT to support the contention that the appellant was in a position to make the relevant moral choice. The explanation for the absence of such a finding is that there was no evidence adduced on behalf of the appellant to that effect. The only evidence to which the appellant could point was equivocal. Indeed, the basis of his case was that he had no knowledge of any act that required him to make a moral choice.

32 Before the AAT, the appellant relied upon a written statement. That statement included the following, which was set out verbatim in the AAT’s reasons:

‘The 5th Riosat were the worst offenders in terms of treatment of prisoners. However, even they "softened" their methods after the initial period in which they consolidated their control. The workings of the 5th Riosat were kept secret and men like me with relatively routine jobs were generally not in contact with them.

I occasionally met 5th Riosat officers at party meetings or military courses. I didn’t talk to them about what they did. I recall some of them being in plain clothes at all times. I really was not aware of tortures going on. The communication infrastructure was extremely poor around the country, and that sort of information was not something readily made known.

I read newspapers, however these never mentioned mistreatment of prisoners. Newspapers were government controlled, as were virtually all communications. A new newspaper weekly came out six months after the fall of Najibullah, which had a slight degree of independence, but even this never contained any information about treatment of prisoners.

I once sought to leave the job due to the feelings of uneducated people against the security forces, possibly because of bad things being done by the 5th Riosat and others. I offered to resign, and my resignation was refused. But if I had just refused to turn up to work one day, I would have been arrested. This happened to people I knew.’
33 In the course of cross-examination, the following exchange occurred:

Counsel: ‘[Y]ou gave evidence to the [AAT] earlier that you, as late as 1991, took holidays in Mazar-e-Sharif. ... Why didn’t you survive by escaping?’
Appellant: ‘How could I escape if I was going to escape to the Mujaheddin’s area was getting killed definitely by them and the two countries were accepting refugees which is Pakistan and Iran. They were so far away from my – from my district where I used to live and I couldn’t ... Pakistan and Iran.’
Counsel: ‘Now, Mazar-e-Sharif was close to the border of Afghanistan, the northern border of Afghanistan.’
Appellant: ‘Yes. Yes. In the north of Mazar-e-Sharif there is Uzbekistan which was the communist – same communist government in there.’
Counsel: ‘And the communist government in Uzbekistan, you could have at least gone to Uzbekistan?’
Appellant: ‘Yes. I didn’t have any passports and they needed visa and I didn’t have those facilities and there was some contact between Uzbekistan and Afghanistan government of exchange of criminals which is exist right now as well. If they pinpoint some people as a criminal in Afghanistan, they are going to deport Uzbekistan and ... from Uzbekistan to Afghanistan.’

The AAT did not refer directly to that evidence in its reasons.

34 In the application to the AAT, the specified ground of review was that the appellant had been wrongly accused of being involved in human rights abuses by KHAD of which he had no knowledge. He did not claim the delegate of the Minister had failed to address the claim that he had remained in KHAD, and performed his duties as an officer of KHAD, due to fear of the consequences of other action on his part. That is consistent with the appellant’s position adopted before the delegate of the Minister. The appellant at the time was represented by solicitors. When the issue arose about his role in KHAD and the applicability of Art 1F(a) of the Convention to his circumstances, his response was not that he remained in KHAD because he had no choice. It was that he was unaware of KHAD’s more inhumane activities. The delegate noted the issue of duress had not been raised by the appellant.

35 In the written Statement of Agreed Facts dated and signed by the appellant’s solicitors on 18 September 2002 and submitted to the AAT, no claim of duress was made. The appellant claimed:

‘... never to have seen or heard of the KHAD committing torture. He claimed that he believed he was "bringing peace" to Afghanistan through his work for KHAD.’

He made no claim of duress.

36 It is consistent with that position that the application by way of appeal to this Court from the AAT decision, including the amended application, did not assert jurisdictional error on the part of the AAT for failing to address a claim of duress.

37 Thus, although the AAT found that the appellant may be branded disloyal if he left KHAD and his departure would be visited with dire consequences, there was no material before the AAT on which to base a conclusion that his involvement in the activities of KHAD was the consequence of duress or coercion.

38 Further, it is difficult to see how there can be jurisdictional error on the part of the AAT in failing to embark on a consideration of a question that it was not asked to consider. That is all the more so in circumstances where such a question was inconsistent with the claims made by the appellant to the AAT. The appellant claimed that he did not know of, and was not involved in, any atrocities on the part of KHAD. The claim of duress is necessarily inconsistent with such a claim. There was no jurisdictional error on the part of the AAT in failing to embark on investigation of claims inconsistent with the claim put by the appellant. The second ground is therefore not established.

CONCLUSION

39 It follows that there was no jurisdictional error on the part of the AAT. No other basis has been advanced for concluding that the decision of the AAT was not a privative clause decision. Accordingly, his Honour was correct to dismiss the proceeding before him and the appeal to the Full Court should be dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Emmett and Bennett.



Associate:



Dated: 22 December 2003


Counsel for the Appellant: K Hanna with R Sallis



Solicitor for the Appellant: Refugee Advocacy Service of South Australia



Counsel for the Respondent: S J Maharaj



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 21 August, 28 November 2003



Date of Final Submissions: 11 December 2003



Date of Judgment: 22 December 2003
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