FEDERAL COURT OF AUSTRALIA

SRYYY v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCA 1588

MIGRATION – Article 1F of Refugees Convention – war crime – crime against humanity – whether Administrative Appeals Tribunal’s decision that applicant for protection visa not entitled to protection of Refugees Convention by reason of operation of Art 1F involved error of law – whether there were serious reasons for considering that applicant had committed a war crime or a crime against humanity – duress – obedience to superior orders – whether applicant retained moral responsibility for his actions.

Rome Statute of the International Criminal Court Arts 7, 8

Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited

Narain v Parnell (1986) 9 FCR 479 cited

NANO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 205 cited

SRYYY v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

N 1538 of 2003

LINDGREN J

19 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed as incompetent.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from a decision of the Administrative Appeals Tribunal (‘AAT’) constituted by Deputy President Handley given on 19 September 2003.  The AAT affirmed a decision of a delegate of the respondent (respectively ‘the Delegate’ and ‘the Minister’) made on 4 December 2002 refusing to grant the applicant a protection visa.

2                     The Acting Chief Justice determined that the ‘appeal’ should be heard and determined by a single judge:  see s 44(3)(b) of the AAT Act.

3                     The Delegate and the AAT were not satisfied that Australia owed protection obligations to the applicant under the Convention relating to the Status of Refugees of 1951 as ‘amended’ by the Protocol Relating to the Status of Refugees of 1967 (compendiously, ‘the Refugees Convention’).  The reason is that they accepted that there were serious grounds for considering that the applicant had 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’:  see Article 1F of the Refugees Convention.

BACKGROUND FACTS

4                     The applicant was born in Sri Lanka on 20 December 1979.  He served as a soldier in the Sri Lankan Army from May 1997 until late March 2000.  After a training period, he was stationed at Trincomalee from 1997 to 1998.  He was then transferred to Elephant Pass, where he served until 1999, before being transferred to Jaffna.  He served in Jaffna from about August 1999 to about March 2000, according to his evidence.

5                     Some two months later, on 20 May 2000,  the applicant left Sri Lanka and went to Singapore to study.  On 16 November 2000 he left Singapore and came to Australia, arriving at Sydney Kingsford Smith Airport on 17 November 2000.  He entered Australia on a visitor visa which permitted him to remain here until 10 December 2000.

6                     On 8 December 2000 the applicant lodged an application dated 5 December 2000 for a protection visa.  He stated in that application, in response to a question, that he feared that if he returned to Sri Lanka he would be killed.  He stated that he had found it very hard to survive in Jaffna because soldiers died there every day from attacks by the Liberation Tigers of Tamil Eelam (‘LTTE’).

7                     In a letter to the Department of Immigration and Multicultural Affairs (‘the Department’) dated 24 December 2000, the applicant stated in relation to his time stationed at Jaffna (solecisms uncorrected):

‘It was a most difficult and frustrating period of my life because I was assigned to torture children arrested on suspicion that have links with LTTE.  I also watched helplessly killing innocent people in raid.

This is just to create fear and terror in the Tamil race.  Tamils are also citizen of Sri Lanka and fighting for their grievances, this is war between two races in my country.  My religion does not teach to kill own citizens and most Tamils have the same religion.  I wanted to fight with the enemies but I do not want to kill or torture my own citizens although the minority group belongs to a different race.  I was so depressed I was all the time thinking to rebel against the Government but I controlled my sentiments.

I know this situation my army would kill me if I did not run away.  Therefore I left the country without informing the security forces, to save my life on 20/5/2000.  If I go back, the security officials will take action to take me into custody and torture me, this way I will end up in jail.’ 

8                     The applicant was interviewed by an officer of the Department on 7 and 14 May 2001.  On 1 August 2001 the Department wrote to the applicant advising him that he appeared to be excluded from the protection offered by the Refugees Convention because he had been an ‘accomplice’ in the commission of war crimes and crimes against humanity.  The letter invited his comments. 

9                     In response, the applicant provided to the Department a statutory declaration dated 20 August 2001 in which he stated that he was following orders when ‘asked to interrogate and torture or assault’ detainees, and that he had a ‘moral conscientious objection’ to ‘severe torturing against innocent citizens in Jaffna’.  He also stated:

‘I was never able to fulfil the entirety of torture that was asked.  At maximum I would push or shove them or pull their ears and used my voice to shout at them.  I was always conscientious to not cause bodily harm or cruelty to anyone.’

10                  The Delegate refused the application for the protection visa on the ground that there were serious reasons to consider that the applicant had been complicit in the crimes against humanity and the war crimes of the Sri Lankan army.  The Delegate did not accept the applicant’s ‘Defence of duress/acting under orders’.  Accordingly, the Delegate found that the applicant was excluded by Art 1F of the Refugees Convention from the protection of that Convention.

11                  On 19 December 2002 the applicant lodged with the AAT an application for a review of the Delegate’s decision.

12                  The applicant provided to the AAT a written statement of evidence dated 28 April 2003.  The AAT conducted a hearing on 20 August 2003.

THE PROCEEDING BEFORE THE AAT

13                  In its reasons for decision dated 19 September 2003, the AAT reviewed relevant provisions of the Migration Act 1958 (Cth) (‘the Act’) and of the Migration Regulations 1994 (Cth), as well as the relevant terms of the Refugees Convention, including Art 1F, which states:

‘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.’

14                  Subsection 500(1) of the Act provides that applications may be made to the AAT for review of a decision to refuse to grant a protection visa where the ground relied on for the refusal is Art 1F of the Refugees Convention.

15                  The AAT reviewed the evidence, including the interviews of the applicant by the Departmental officer and the oral testimony of the applicant before the AAT itself.  The critical circumstances concerned what occurred when the applicant was stationed at Jaffna in connection with the questioning by the Sri Lankan Army of Tamil civilians in that area.

16                  The applicant said he was assigned with four other soldiers to duties as part of a unit responsible for questioning suspects.  Questioning of suspects took place on most days, usually two or three suspects a day.

17                  The questioning took place in a room, with one person being questioned at a time.  The interrogators usually worked in pairs.

18                  The applicant’s immediate superior was a sergeant and the officer in charge was a second lieutenant.

19                  If the sergeant was present in the interrogation room, he would often ask the questions himself.  At times, the second lieutenant would be present.

20                  If the sergeant thought a person was lying or was holding back information, he would instruct the applicant and his fellow soldiers to intimidate the person.  He said that he and other soldiers did this by kicking or beating the individual with a baton, mostly about the legs.  The baton was made of wood and was about 18 inches long.  The applicant said that he at first refused to participate, but his sergeant ordered him to ‘just do it’.

21                  According to the applicant, if the sergeant believed a person was telling the truth, and was innocent or knew nothing, the person would be taken elsewhere and probably released.  If, on the other hand, the sergeant thought the person was not telling the truth after questioning, which could last for three to five hours, the person would be taken to another part of the camp for further interrogation.  The applicant said he did not know what happened at that stage, although he had heard rumours of more severe action.  If the person was actually a member of the LTTE, the person would be detained and questioned repeatedly.  The applicant said he suspected that such a person would be subjected to assaults and torture elsewhere in the camp.

22                  The applicant said he complained to the sergeant many times that he did not wish to do this work and asked to be transferred, but the sergeant replied that he could not be transferred immediately and had to remain in the camp at Jaffna for some time.  The applicant said he was scared that if he did not comply with orders from his superior officer, he would face severe punishment or be court martialled.  He said he did not leave or quit because he thought he would be caught and brought back to serve.  He was not sure whether others who deserted were punished.  He said this was kept confidential, and that if they were punished severely and this fact was publicised, no one  would enlist in the Army.

23                  Paragraphs 19, 20, 23 and 24 of the AAT’s reasons for decision were as follows:

‘19.      The Applicant said most of the beating he was involved in took place on the legs to avoid serious wounds to other parts of the body.  He did not intend to cause pain, wounds or bleeding or make the person cry.  The objective was to intimidate a person in order to get a reply to questions.  The Applicant acknowledged that he had also slapped a person on the face on about four occasions although he cannot recall when.  He cannot recall ever causing a person any permanent injury or to bleed.

20.       The Applicant said children were sometimes brought in with their families.  If children between the age of 11 and 14 were questioned, the objective was to scare them so they would provide information.  The sergeant ordered him to intimidate the children by threatening them verbally, for example that they would be killed if they did not tell the truth.  The Applicant said he only questioned children under 16 during the first two days he was at the camp.  He only slapped a child of such an age once.  The sergeant forced him to do this.  The younger children urinated on the floor in fright.  After two days, he protested against questioning younger children and, thereafter, was only ever involved in questioning the older children.  It was sometimes necessary to threaten or hit them.  Young people of that age were sometimes keen members of the LTTE.

……………………………

23.       In cross-examination, the Applicant denied that he had ever been personally involved in beating a suspect which had resulted in the breaking or dislocation of bones …  However, others might have done this.  He said there was only one occasion when his slapping a person had led to the person’s lips breaking and there being a little blood.  He only would slap a person in the face if he was ordered to do so.  He said a statutory declaration made by him on 20 August 2001 was exaggerated – it was prepared by someone who wanted to help him.

24.       The Applicant acknowledged that he had assaulted suspects when no superior officer was present but only having been ordered to do so by the sergeant who then went elsewhere in the Camp but with the intention of returning.  They would not hit every person questioned – only if they thought the person had information in which case hitting became part of the questioning procedure.’

24                  The applicant said that in early March 2000 he became ill and was admitted to the military hospital at the camp.  When, after five or six days he was still not well, he was permitted to go home on leave for three months to recuperate.  His parents suggested he undertake further education at Tamasek Polytechnic in Singapore.  He went to Colombo to obtain a passport, and flew to Singapore on 20 May 2000.  In October 2000 he went to the Australian Embassy in Singapore, where he obtained a visitor visa for entry to Australia.  As noted at [5] above, he left Singapore on 16 November 2000, arriving in Australia on 17 November 2000.

25                  The AAT summarised the submissions which were made to it by counsel for the applicant and the solicitor for the Minister.  Counsel for the applicant referred the AAT to the Rome Statute of the International Criminal Court (‘the Rome Statute’) of 17 July 1998 which the AAT considered to be the relevant ‘international instrument’ for the purposes of the definitions of ‘war crime’ and ‘crime against humanity’ as those expressions are used in Art 1F of the Refugees Convention.  It was not suggested on the hearing before me that this was an error.

26                  The AAT referred to the forms of interrogation of both children and older individuals in which the applicant had engaged.  The applicant was required to interrogate children brought to the camp.  On at least the first two days, he was involved in questioning children between the ages of 12 and 14.  He said his job was to make the children frightened and excited.  He said that he would threaten the children with death if they did not cooperate.  He said sometimes small children, when they were threatened, urinated in fear.  These children were aged 12 or 13 or 14 according to the evidence the applicant gave before the AAT.  He also said that the children were assaulted by being slapped about the face.  He said this was the main way of assaulting the children, but teenagers of 16 or 17 were also ‘assaulted and kicked’.  There was also the evidence of the assaults with batons referred to earlier.

27                  The AAT was satisfied on the basis of the evidence given by the applicant himself that there were serious reasons for considering that he had been involved in acts which could be characterised, in the AAT’s words, as ‘lower level torture or cruel and inhuman treatment involving the intentional infliction of both physical and mental pain and suffering’ within the Rome Statute.

consideration of the ISSUES BEFORE THIS COURT

28                  The two issues raised on the application before this Court are whether the level of harm inflicted was sufficiently serious to amount to a war crime or a crime against humanity and whether the fact that the applicant was ‘obeying superior orders’ rendered the decision of the AAT erroneous.  The applicant was unrepresented before me and handed up a short written submission which raised, but did not elaborate greatly upon, those two issues.

War crime or crime against humanity

29                  The Rome Statute entered into force on 1 July 2002.  Australia signed it on 9 December 1998 and ratified it on 1 July 2002.

30                  Article 7 of the Rome Statute defines ‘crimes against humanity’ as follows:

‘1.        For the purposes of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

            …

(f)        Torture;

            …

(k)       Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’

Paragraph 2 of Art 7 provides that for the purposes of par 1 of that Article:

‘(a)      “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack;

            …

(e)        “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused;  except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

            …’.

The AAT also noted the definition of ‘crimes against humanity’ in the Charter of the International Military Tribunal (the ‘Nuremberg Charter’) which I will not set out here.

31                  Article 8 of the Rome Statute defines ‘war crimes’ relevantly as follows:

‘2.        For the purpose of this Statute, “war crimes” means:

(a)       Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i)        …

(ii)       Torture or inhuman treatment, including biological experiments;

(iii)      Wilfully causing great suffering, or serious injury to body or health;

            …

(b)       …

(c)        In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i)        Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)       Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

…’.

32                  The AAT was satisfied, on the basis of the country information before it, that ‘the Sri Lankan Army was involved in systematic persecution of a civilian group, namely the Tamil population’ (at [63]).  On the present appeal, the applicant does not seek to attack this finding.

33                  The AAT carefully considered the applicant’s various accounts of the nature and level of his involvement in the interrogation of Tamils in the Sri Lankan Army camp at Jaffna.  The AAT set out the following passage from the interview on 14 May 2001 (Ms Watson was an officer of the Department):

‘interpreter:        … always tells me, try to make the person or make the person fear and give the answer or the correct answer because he is in fear and after attempting in the first manner I said only then I start either slapping on the cheeks or using a baton or start kicking.  All these orders are given by … He will tell me at a certain stage, … will tell, now you assault him because he is not coming with the truth, coming out with the truth, so assault him.

watson:       Okay but are you able to choose how you assault the person?

interpreter:         I was instructed to slap the cheeks of a person in the preliminary stage by asking questions.  If the proper answer is not given by the person the next step will be to assault him with the baton.  At that particular point and within that particular time I had a small opportunity to decide in which manner I could proceed with it.

watson:       Okay, and were the people injured by these assaults?

interpreter:         Sometimes there were injuries, sometimes when the cheeks are slapped in a particular manner the lips break and injuries are got.  Sometimes when a baton is used to beat, or kick by boots some parts of the body get numbed.

watson:       When you say get numbed, what do you mean?

interpreter:         If the attack or assault was so serious that particular place of the body, I mean powerless, something like numb.

watson:       Do you mean they won’t be able to move it again?

interpreter:         Yes, it’s something like it slipped from the grip.

watson:       Slipped from the grip?

interpreter:         Slipped from the grip, what that word means, it slipped from the grip of the bone.

watson:       Oh, so it becomes detached, the bone becomes detached?

interpreter:         Yes, not severely but in a little manner, little slippery, some sort of slippery.’  (my emphasis)

34                  Turning to the applicant’s evidence that he was required to interrogate children, the AAT noted that according to the applicant, on at least the first two days, he was involved in questioning children between 12 and 14 years of age.  The AAT set out the following passage from the record of the interview of the applicant on 7 May 2001:

‘watson:      … Now in your statement you mentioned the torture of children.  Can you explain what you meant by this?

interpreter:         The suspects of my age or similar age are assaulted but at times even the children are made frightened and made excited.  Sometimes we’d threaten the children – sorry, that if you do not come with the truth we will kill you.  Sometimes small children when we threaten even they urinate in fear.  These children age 14 or 13 or 12.

watson:       So was this the extent of torture of children?

interpreter:         The children are assaulted by slapping in their face.  That was the main way of assaulting the children but teenagers of 16 or 17 are assaulted and also kicked.

watson:       Can you describe what you, you said that you assault with, you were ordered to assault with batons.  What were these batons like?

interpreter:         That’s a wooden baton.

watson:       And how long would it be?

interpreter:         About one and a half to two feet.’  (my emphasis)

35                  In the hearing before the AAT, the applicant said he had questioned children under 16 only during his first two days at the camp, but that in his subsequent questioning of older children, it was sometimes necessary to threaten or hit them.

36                  In my opinion, the AAT was entitled on the evidence before it to reach the conclusion which it expressed at [60] of its reasons for decision as follows:

‘On the basis of the above evidence, the Tribunal is satisfied that there are serious reasons for considering that the Applicant was involved in acts which could be characterised as lower level torture or cruel and inhuman treatment involving the intentional infliction of both physical and mental pain and suffering.  Even if the physical pain was not always severe, the mere physical threats and lower level violence could have led to more severe mental suffering, especially in the case of children.’

Obedience to superior orders

37                  In relation to the second issue, the AAT was of the view that the evidence of the threat of repercussions adverse to the applicant was not so clear that he should be regarded as having, in effect, been relieved of moral responsibility for what he did:  cf Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 51 ALD 432 at [80]–[83].

38                  The applicant said that if he had not complied there was a likelihood that he would be transferred to a front line unit.  The Deputy President observed that although the applicant might not have liked this, he had served in the past in such units in both Trincomalee and Elephant Pass.  He was, after all, a soldier!

39                  The AAT accepted that the applicant was acting in accordance with the orders of his superior officer and that he protested over the interrogation techniques he was told to use.  The AAT also accepted that although the ‘defence of obedience to superior orders’ is not mentioned in the Rome Statute, Arts 7 and 8 of the Rome Statute ‘suggest that there should be an element of intention or wilfulness in the conduct’ (at [53]).

40                  The AAT was simply not satisfied, however, on the evidence before it that the applicant was subjected to such pressure or threat as removed that element of ‘intention’ and ‘wilfulness’ on his part which made him morally responsible for the torture which he inflicted.

41                  In my opinion, no error of law infected the reasoning of the AAT in reaching this conclusion.

Notice of objection to competency

42                  The Minister filed a notice of objection to competency based on s 483 of the Act.  That section provides that:

‘Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to a privative clause decision.’

The expression ‘privative clause decision’ is defined in subs 474(2) of the Act.  The decision of the AAT would be a privative clause decision unless it was no decision at all for the reason that it involved jurisdictional error:  see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

43                  In his short written submission, the applicant complained that s 483 was inconsistent with the Constitution.  He submitted that s 483 ‘limits the power of the High Court making prohibition, mandamus, declaration or certiorari against an officer of the Commonwealth’.

44                  Section 483 does no such thing.

45                  Where there is no substance in a constitutional challenge, I am not required to stay the matter until notices under s 78B of the Judiciary Act 1903 (Cth) are issued:  cf Narain v Parnell (1986) 9 FCR 479 at 489;  NANO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 205 at [28].

46                  Moreover, the alleged constitutional question could be avoided by the applicant’s amending to rely upon s 39B of the Judiciary Act, rather than s 44 of the AAT Act.  The Minister has stated in submissions that he would not object to an amendment of that kind, if such an amendment should be thought necessary in order to ensure that the Court has jurisdiction to entertain the substance of the applicant’s complaint.

47                  Amendment is not necessary.  There was a decision of the AAT from which an appeal lay to this Court on a question of law.

48                  The contention of constitutional invalidity is spurious and I reject it.

CONCLUSION

49                  No jurisdictional error is demonstrated.  For the above reasons the application will be dismissed as incompetent with costs.

Associate:

Dated:                          6 January 2004