FEDERAL COURT OF AUSTRALIA

NADB v Minister for Immigration & Multicultural Affairs [2002] FCA 200

MIGRATION – protection visa – application for review of a decision of Administrative Appeals Tribunal (AAT) – Judiciary Act 1903 (Cth) s 39B – whether AAT erred in law because it failed to consider what crime was committed by the applicant under Indonesian law – whether the application of Article 1F of the Convention Relating to the Status of Refugees 1951 could be determined without reference to whether the applicant is a “refugee” – whether AAT erred in law by failing to determine whether the applicant had a well-founded fear of persecution for reasons of political opinion – 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 his country of origin in determining whether Article 1F was attracted – whether AAT erred in law in concluding that the applicant’s drug trafficking crimes were “serious non-political crimes” under Article 1F – whether AAT erred in law by failing to consider and determine whether the applicant passed the character test under s 501 of the Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees 1951 Article 1A, 1A(2), 1F, 1F(a), 1F(b), 1F(c), 7

Migration Act 1958 (Cth) s 36(2), 411, 474, 474(2), 500(1)(b), 500(4), 501, 501(6)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Judiciary Act 1903 (Cth) s 39B, s 39B(1)

Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 followed

NABL v Minister for Immigration & Multicultural Affairs [2002] FCA 102 followed

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 cited

R v Murray; ex parte Proctor (1949) 77 CLR 387 cited

Ovcharuk v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 173 referred to

Sullivan v Department of Transport (1978) 20 ALR 323 cited

A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 referred to

Commissioner of Taxation v Glennan (1999) 90 FCR 538 referred to

Arquita v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 465 cited

Selvarajah v Minister for Immigration & Multicultural Affairs [2001] FCA 1307 cited

Chahal v United Kingdom 23 E.H.R.R. 413 (1996) referred to, distinguished

T v Secretary of State for the Home Department [1995] 1 WLR 545 cited

T v Immigration Officer [1996] A.C. 742 cited, followed

Dhayakpa v Minister for Immigration & Ethnic Affairs (1995) 62 FCR 556 cited

S v Refugee Status Appeals Authority [1998] 2 NZLR 291 cited

Malouf v Canada (Minister of Citizenship & Immigration) (1995) 190 N.R. 230 referred to

Minister for Immigration & Multicultural Affairs v Singh HCA 7 referred to

Summary Conclusions – Exclusion from Refugee Status, Lisbon Expert Roundtable Global Consultations on International ProtectionUNHCR, Lisbon, 3-4 May 2001

Current Issues in the Application of the Exclusion Clauses, Geoff Gilbert, UNHCR Background Paper for Lisbon Expert Roundtable Global Consultations on International Protection, 2001

Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979, re-edited 1992)

Refugee Law in Context: The Exclusion Clause,Peter J. van Krieken, Asser Press, The Hague, 1999

Persecutor or Persecuted: Exclusion under Article 1(A) and (B) of the Refugees Convention, Matthew Zagor (2000) 23 UNSWLJ 164

A Comparative and International Law Perspective on the United States (Non) Compliance with its Duty of Non-Refoulement, Kathleen Keller (1999)2 Yale Human Rights and Development Law Journal 183

NADB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1619 OF 2001

HELY J

8 MARCH 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a national of Iran who arrived in Australia on 17 December 2000 from Indonesia without travel documentation.  The applicant was refused immigration clearance and was placed into immigration detention.  He has remained in immigration detention ever since.

2                     On 12 January 2001 the applicant applied for a protection visa on the ground that he has a well-founded fear of persecution if returned to Iran by reason of imputed political opinion, he having been accused by the Iranian government of being a supporter of the Shah’s regime.

3                     The applicant claimed to have departed Iran in 1995 after a warrant for his arrest was issued.  He claimed to have travelled to Indonesia, where he remained until his arrival in Australia.  Whilst in Indonesia, the applicant had some involvement in the drug trade, which involvement he voluntarily disclosed to Australian authorities.

4                     The Minister’s delegate recorded admissions on the part of the applicant that:

-                     in 1997, the applicant acted as middle man in relation to sales of heroin in 250 gram quantities in return for payment of commission to the applicant;

-                     on three or four occasions he participated in the transportation of heroin within Indonesia.

5                     The applicant contended that at the time of his involvement in this activity, he did not have any money to live on, he had no job and was in a desperate position.  Since the end of 1997 (or perhaps, early 1998) he had sought to distance himself from any involvement in the drug trade, and to sever his connection with his former associates.  He was beaten up in 1998 by his former associates because of his withdrawal from involvement.  The applicant put himself forward as being a person who had made a mistake in getting involved in the drug trade due to pressures to which he was exposed and said he successfully distanced himself from involvement in relation to drug related activities from about the end of 1997 onwards.

6                     Article 1F of the Convention Relating to the Status of Refugees of 28 July 1951 (“the Convention”) provides as follows:

“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.”

The Minister’s delegate found that the applicant is excluded under Article 1F from coverage by the Convention.  The delegate did not identify any specific crime under Indonesian law as being the crime that the delegate considered the applicant had committed.

7                     The delegate said:

“Based on the above evidence [ie the applicant’s own statements summarised above] it is clear that the applicant has committed an offence.  Country information (B:5, B:6) indicates that “(c)onvicted drug traffickers and smugglers can face the death penalty in Indonesia”.  He has been candid in his responses to questions put to him at interview.  It was the applicant himself who first raised the matter of his involvement with drug movements within Indonesia.  Thus, I conclude the applicant has committed an offence under Indonesian law.”

8                     As to the seriousness of the offence, the delegate said:

“I believe that it is uncontroversial to find that the act of being a middle man in negotiating illicit drug deals involving heroin, along with the transportation of heroin in the quantities described by the applicant, are acts sufficiently grave to be determined as ‘serious’ in the context of ‘serious non-political crime’.  The activities of the applicant could not be described as being of a minor nature.  Drug trafficking of this nature is regarded internationally as a very grave punishable act with some countries advocating the death penalty.  Australia too regards the narcotics trade extremely seriously ...”

9                     Ordinarily, a decision to refuse to grant a protection visa is reviewable by the Refugee Review Tribunal (“RRT”) under Part 7 of the Migration Act 1958 (Cth) (“the Act”) (s 411).  However, s 500(1)(b) provides that an application may be made to the Administrative Appeals Tribunal (“AAT”) for review of a decision to refuse to grant a protection visa relying upon (insofar as is presently relevant) Article 1F of the Convention.  Such a decision is not reviewable by RRT under Part 7 (s 500(4)).  The decision of the Full Court in Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 confirms that the operation of the Act in this regard is as I have indicated.

10                  On 28 May 2001 the applicant applied to AAT for a review of the delegate’s decision.  The applicant lodged with AAT a Statement of Facts and Contentions which included both the “facts” relied upon in support of the applicant’s contention that he has a well-founded fear of persecution, as well as the “facts” as to his conduct in Indonesia.  The Statement of Facts did not resile from the delegate’s account of the admissions made by the applicant.  The Statement of Contentions asserted that AAT must consider whether the applicant has a well-founded fear of persecution for a Convention reason, as prior to making a decision to exclude the applicant under Article 1F(b), AAT must balance the seriousness of the applicant’s involvement in crimes committed in Indonesia against the likely persecution the applicant would suffer upon his return to Iran.  The Statement of Contentions also asserted that AAT should not characterise the applicant’s activities in Indonesia as amounting to a “serious non-political crime” because:

“(i)      the applicant’s involvement was of brief duration;

(ii)               the applicant’s involvement was, principally, as a conduit of information for other criminal acts;

(iii)             there were significant mitigating factors including poverty, financial dependence, unemployment and the constant fear of being returned to Iran; and

(iv)             the applicant has avoided any drug or criminal involvement since January 1998, until his arrival in Australia nearly three years later.”

11                  Under the heading “Balance Seriousness of Crime Against Possible Persecution” the following appeared:

“(f)      In reaching a decision the Tribunal should find that the applicant’s fear of persecution outweighs the seriousness of his crimes.”

12                  A statement prepared by the applicant on 5 September 2001 was before AAT.  In that statement he elaborated upon the “facts” referred to in the Statement of Facts and Contentions.  The statement included headings such as “Involvement in Indonesia drug trade”, “Attempts to get out of drug trade” and “Life after ceasing drug involvement”.  Under those headings, the applicant put forward matters such as his financial position, his inability to get a job and pressure which was put upon him by persons who had introduced him to the drug trade by way of mitigation of his conduct.  The applicant’s Statement of Facts and Contentions was constructed upon the assumption that the conduct which he had admitted was criminal under Indonesian law but contended that it should not be classified as “serious” because of the mitigating factors referred to above.

13                  On 16 November 2001 AAT affirmed the decision of the Minister’s delegate.  AAT stated that the question for its decision:

“is whether the non-political crimes involving drug trafficking that (the applicant) committed while in Indonesia are ‘serious’.”

AAT said that the drug trafficking crimes to which the applicant had admitted whilst in Indonesia are regarded as serious non-political crimes in Australia.  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 and also probably as commercial quantities under Australian legislation.

14                  AAT expressed its conclusion as follows:

“45.     The Tribunal recognises the seriousness with which the Australian community regards crimes involving trafficking in drugs, particularly heroin.  In making an ‘evaluative judgment’, the Tribunal had regard to the mitigating factors identified by Mr Abadee on behalf of the Applicant.  While the Tribunal accepts that because of his situation in Indonesia, [the applicant] found himself in financial difficulties and without valid documentation establishing his citizenship, nevertheless, [the applicant] was later able to find other avenues of financial support when he had stopped acting as a middle man and after his involvement as a drug courier.  These included financial assistance from his parents and girlfriend, and from a counsellor at the Iranian Embassy in return for undertaking some work there.  Moreover, the Tribunal does not regard his fear of being returned to Iran as a mitigating factor.  In the Tribunal’s view, taking the fear of being returned to Iran into account would have the same effect as entering into a balancing exercise of the kind that French J in Dhayakpa (supra) said the receiving State was under no obligation to conduct.”

15                  On 13 December 2001 the applicant filed an Application for an Order of Review in the Federal Court.  It purports to rely for the Court’s jurisdiction upon the provisions of the Act as it was both before and after 2 October 2001, the date on which the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) came into force.  During the course of argument it became clear that it was common ground that the Federal Court has jurisdiction in the matter under s 39B of the Judiciary Act 1903 (Cth).  It also became common ground that the decision under review is a “privative clause decision” within the meaning of that expression in s 474(2) of the Act.  However, there was a significant area of disagreement between the parties as to the grounds on which review is available under s 39B, given that the decision under review is a privative clause decision.

16                  In NABL v Minister for Immigration & Multicultural Affairs [2002] FCA 102 Allsop J noted that the relationship between s 39B of the Judiciary Act, the new provisions of the Migration Act introduced with effect from 2 October 2001, and the effect of the so-called “Hickman principle” (R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616 and R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399-400) is not the subject of authoritative judicial pronouncement.  The course which his Honour adopted in that case was to analyse the decision of the Migration Review Tribunal on the basis that it is subject to review in the ordinary way under general law concerning the relief contemplated by subs 39B(1) of the Judiciary Act, and to defer for later consideration, if necessary, the effect of the recent amendments to the Act, in particular, s 474.  That is also a convenient course to adopt in the present case as the applicant’s submissions, and in particular, the written submissions, did not involve a detailed consideration of the effect of the privative clause.

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.

Associate:

Dated:              8 March 2002