FEDERAL COURT OF AUSTRALIA

MZYVM v Minister for Immigration and Citizenship [2013] FCA 79

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth)

REASONS FOR JUDGMENT

INTRODUCTION

1    By a notice of appeal dated 25 September 2012, the appellant appeals from a decision of a Federal Magistrate who, on 5 September 2012, dismissed his application for judicial review of a recommendation of the Independent Merits Reviewer (“the IMR”) made on 20 January 2012, that the appellant not be recognised as a person to whom Australia has protection obligations. The IMR found that although the appellant might otherwise meet the definition of a refugee, he was excluded from the benefit of the United Nations Refugees Convention of 1951, as amended by the Refugees Protocol of 1967 (“the Convention”) by Art 1F.

2    Article 1F of the Convention provides:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)    he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)    he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)    he has been guilty of acts contrary to the purposes and principles of the United Nations.

3    The IMR found that there were serious reasons to consider that the appellant, a citizen of Sri Lanka, while a member of the Liberation Tigers of Tamil Eelam (“LTTE”) was complicit in the crime against humanity of murder committed by the LTTE in Sri Lanka.

4    On 13 July 2012, the appellant applied to the Federal Magistrates Court for judicial review of the IMR’s recommendation, alleging the IMR’s failure to put to him certain country information about the activities of the LTTE was a denial of procedural fairness. The Federal Magistrate dismissed the application. The appellant now appeals to this Court, essentially on the same basis.

Facts and evidence

5    The appellant was born in Sri Lanka on 17 November 1985. In December 2000, he joined the LTTE, was released from the LTTE in 2006 and left Sri Lanka for Malaysia on a three month work visa. In 2009, he travelled to Indonesia, from where he arrived by boat at Christmas Island as an offshore entry person.

6    While in Malaysia, the appellant was interviewed by the UNHCR. The UNHCR Refugee Status Determination (“RSD”) Assessment form recorded that the appellant, from 2000 to 2006, carried out activities as a member of the LTTE.

7    On arrival at Christmas Island, the appellant completed a Biodata form. On 19 December 2009, he participated in an entry interview.

8    On 30 January 2010, the appellant requested a Refugee Status Assessment (“RSA”) and made a statutory declaration dated 30 January 2010, in which he claimed that in Sri Lanka he was kidnapped and beaten by the Karuna Group. The appellant repeated those claims at his first Refugee Status Assessment (“RSA”) interview on 4 February 2010.

9    On 17 March 2010, a delegate determined that the appellant was not a refugee. The Department withdrew that assessment when it received the UNHCR RSD form which indicated that the appellant had been a member of the LTTE.

10    The appellant then had a second RSA interview on 20 April 2010, in which he still denied his LTTE membership.

11    It was not disputed that, up to that point, the appellant fabricated a history in his Biodata form, the interviews and statutory declaration, and his denial of membership of the LTTE was (as he subsequently admitted) false.

12    The appellant made a further statutory declaration dated (inaccurately) 5 January 2010, and had a third interview with a delegate on 2 September 2010.

Interview on 2 September 2010

13    At the above interview, the appellant admitted that he was an LTTE member and had lied in his prior statements. He stated that in December 2000, the LTTE asked him to join them and threatened violence against him, his mother and brother in order to overcome his reluctance. The appellant subsequently attended exercise training for two months and rifle training for four months. He was deployed to Meenagam base at Batticaloa under Colonel Karuna in the on-call team to defend the base against a possible Sri Lankan Army (“SLA”) attack. His team also attacked SLA camps in the jungle. The appellant stated that he fired shots in the jungle during battles, but did not know if he hit anyone.

14    The appellant stated that although he was involved in 15 to 20 battles including defending the LTTE base and attacking SLA camps, he never shot at a soldier directly and considered it a sin to take human life.

15    The appellant stated that due to his academic achievements and physical features, he was transferred to the Intelligence Unit, headed by Colonel Ramanan, where he received one month’s intelligence training. His role was to identify civilians suspected of working with the SLA in LTTE controlled areas. The appellant stated that once suspected persons were identified, they were detained, transported to the base in a van and handed over to the Central Intelligence Unit (“CI”) which undertook its own questioning. The appellant stated that his own understanding was that CI would imprison people of concern and shoot persons who were of major concern to the LTTE. The appellant claimed, however, that he did not know of any cases where someone he identified, detained and handed over to the CI was subsequently killed.

16    The appellant stated that in 2004, he was sent to study in a Hindu College as a cover. He assumed the more responsible role of conducting meetings with people of adverse interest to the LTTE, whom he warned that unless they ceased their activities, they would be kidnapped or shot by the CI. The appellant stated that if his warnings were ignored, he would inform Colonel Ramanan. However, he came to realise that he was the cause of other people’s distress and asked to be moved to the Political Wing to assist civilians.

17    In early 2005, the appellant was, at his request, transferred to the Political Wing where he received 6 months training. He stated that in that role, he would meet LTTE village officials. He met with Prabhakaran, the founder and leader of the LTTE, and Tamil Chelvan, the leader of the Political Wing. The appellant received information about corrupt LTTE government officials, arranged meetings with them and discussed the allegations of corruption with those accused.

18    In May 2006, the appellant was released from the LTTE at his mother’s request. He went to Muttur where his fiancée lived, fled that area due to SLA roundups and moved to Trincomallee Town, where he remained until August 2006. He then left due to roundups by Pillayan and Karuna groups and relocated to Kandy. He fled Kandy on being threatened by the police and returned to Muttur to find his house destroyed. He decided to leave Sri Lanka. From May 2007 to November 2009, the appellant and his family lived in Malaysia. The appellant left Malaysia for Indonesia, and from there, travelled to Christmas Island.

independent merits review

The IMR Interview

19    The IMR questioned the appellant about the UNHCR RSD assessment record from Malaysia. It recorded that:

(a)    the appellant joined the LTTE of his own free will because his father was burnt and killed by the Sinhalese;

(b)    the appellant attained the position of LTTE head of the Batticaloa Township; and

(c)    the appellant, during regular weekly meetings with Colonel Ramanan, reported on people, and if a person were considered problematic, the Colonel would order them to be shot. The record also noted that the appellant was the head of management in Batticaloa and had about 35 subordinates.

20    When questioned by the IMR about the statement in the UNHCR RSD assessment form, the appellant replied:

Claimant: Yes sometimes Colonel Ramanan does say that because that was not a job that I was doing. I was not involved with that job.

…

Colonel Ramanan sometimes he would mention in the meeting that some of those reports…that these people are very problematic and the punishment for them could be very severe. … But those who are assigned to see to that they are somebody else…

Reviewer: So were you aware though that they were going to be killed?

Claimant: They would talk about these things in the meeting, that this is the way this particular person would be punished or something…after I served my reports, after that they take such a decision but I really don’t know. They might have talked about these things at the meetings.

21    The IMR pointed out inconsistencies between the UNHCR RSD report and the appellant’s oral evidence. The IMR asked why he should doubt the evidence in the UNHCR report. The appellant stated that as his first interview with the UNHCR was with a Tamil lady, he was scared, as “90% I am sure Tamil people are supporters of the LTTE” and that any comment or information he gave “could be provided back to” the LTTE.

22    The appellant, in interchanges with the IMR, did not deny that people were ill-treated or killed by the LTTE, but denied that he personally killed the persons on whom he reported, or decided or knew their fate.

23    The appellant told the IMR that in a group of three or four people, he would approach suspects for questioning and sometimes asked the suspects to accompany them back to the base. If people refused, they would be forcibly taken back. The appellant stated that the suspects were then questioned by the coordinator, and would be released if there were no problems. If, however, there were doubts, the suspects would be transferred for further questioning. When asked what happened to those people, the appellant stated that maybe the superiors would try to convert them to the LTTE, but he was “only guessing”.

24    The appellant stated that while with External Intelligence, he was given names of people and told to investigate and write a report. He said that all of the information in the report would be verified as true. The Hindu College was a cover for his investigation work on nominated suspected persons. The appellant stated that he provided all of his reports to his coordinator and did not know what happened to the subjects after that. He denied that he knew whether anyone was harmed or killed as a result of the reports, or even if it were possible or probable.

25    The IMR raised with the appellant a concern that he was trying to downplay his activities, inconsistently with the guilty conscience reflected in his desire to leave the LTTE. The appellant responded that he was “also a human being” and as he now had a wife, he realised the consequences of his reports on “all those people and they have families”.

26    The IMR recorded that he put inconsistencies to the appellant as follows at [42]:

I put to the claimant that if that was all he was doing why did he leave the LTTE, and further that this level of activity did not coincide with what he had previously said, and that he had left due to the harm he was causing other people. He responded “it wasn’t an ordinary job and I did collect information on other people, and yes it is true that I previously said that other people have been killed and harmed as a result but I cannot say this with certainty”. I put to the claimant that if his activity was wrenching on his conscience so much why would he describe it in such a mundane manner. I put to the claimant what he had said previously and in particular as noted in the RSA decision dated 11 May 2011 at page 4 (second paragraph) wherein he is recorded as saying “The claimant was aware that CI (Central Intelligence) would imprison people of concern and shoot them if their activities were of major concern to the LTTE …The claimant is however unaware of any cases where a person he handed over to CI was subsequently killed”. He said “no none of that happened”. I put to the claimant the content of paragraph 4 of the same decision wherein it is recorded that he “would warn the person that if they continued their activities they would be kidnapped or shot by the Intelligence Unit and if he found that they ignored his warnings, he would inform Colonel Ramanan … he said there was a possibility that these people could have been subjected to being kidnapped or shot as a result of his actions in referring them to the Colonel”. He responded “I can say that something like this happened. But I would meet with them and tell them how they should be and to lead a better life”. I put to him that he had told me previously he only observed and gathered information. He said that was in relation to “people on the list, here I am talking about other people men and boys who I would meet with and I would say this to them … I would tell them that if they continued their activity with the Karuna group then something would happed (sic) to them …I would say what you are doing is wrong and if you continue there will be trouble don’t get involved in this activity as if you do this will cause trouble for you”. I put to the claimant that if that was all he was saying why would they bother listening to him. He responded “I always tried to help people”.

27    The appellant claimed that if he returned to Sri Lanka he would be killed by the SLA, and would also face harm from the Karuna group, the Eelam People’s Democratic Party (EPDP) and the LTTE.

IMR’s reasons for decision

28    The IMR stated at the outset of his findings and reasons at [51]:

I have carefully considered this application, the claims and evidence presented by the claimant, and the country information as detailed in the submissions from [the appellant’s agent] in the RSA decision and above.

29    In the reasons, the IMR set out the relevant law on Art 1A(2) and Art 1F of the Convention and the appellant’s claims and evidence, including his statements in the interview with the IMR.

30    The IMR set out independent evidence and country information, noting that some of it was also referred to in the RSA officer’s decision dated 11 May 2011.

31    The IMR set out extracts from US Department of State (Bureau of Democracy, Human Rights and Labor) Reports on Sri Lanka, Country Reports on Human Rights Practices dated 4 March 2002 (“2001 report”), 25 February 2004 (“2003 report”), 28 February 2005 (“2004 report”), 8 March 2006 (“2005 report”) and 6 March 2007 (“2006 report”).

32    From the 2001 report, the IMR extracted the following:

The LTTE continued to commit numerous serious human rights abuses in the ongoing war with the Government. The LTTE regularly committed extra judicial killings, including killing prisoners taken on the battlefield, and also was responsible for disappearances, torture, arbitrary arrest, detentions and extortion.

33    The 2001 report further stated that the LTTE was responsible for an undetermined number of civilian disappearances, admitted killing security forces personnel rather than taking prisoners, executed injured soldiers on the battlefield, used excessive force in war and “engaged in hostage taking, high-jackings and bombing of civilian targets”.

34    The IMR referred to the 2003 report, stating that in general it repeated its prior comments about the LTTE. In summary, the IMR noted:

The LTTE continued to commit serious human rights abuses. The LTTE was responsible for arbitrary arrest, torture, harassment, disappearances, extortion, and detention. Through a campaign of intimidation, the LTTE continued to undermine the work of elected local government bodies in Jaffna and the east. On occasion, the LTTE prevented political and governmental activities from occurring in the north and east. There was overwhelming evidence that the LTTE killed more than 36 members of anti-LTTE Tamil political groups and alleged informants during the year. There were also instances of intimidation of Muslims by the LTTE, and there was fighting between LTTE personnel in the east and Muslims that left several Muslims dead. The LTTE continued to control large sections of the north and east. The LTTE permitted journalists some access to the areas of the country it controlled. Some LTTE-imposed restrictions remained on freedom of movement of citizens. The LTTE denied those under its control the right to change their government, did not provide for fair trials, infringed on privacy rights, used child soldiers, and discriminated against ethnic and religious minorities.

35    The IMR referred to the 2004 report stating that it repeated prior information. In particular, the IMR noted:

In March, when the eastern military LTTE leader Karuna split from the northern Vanni LTTE, 120 LTTE cadre and civilians died in fighting that ensued between the 2 LTTE factions in the east. There were reports that the Government provided aid to the Karuna faction.

During the year, there was credible evidence that, in addition to the 120 cadres and civilians killed in fighting between LTTE factions in March, the LTTE killed more than 81 members of anti-LTTE Tamil political groups, LTTE cadres loyal to Karuna, alleged Tamil informants for the security forces in the north, the east, and in Colombo, and civilians. Both current and former members of anti-LTTE Tamil political parties were targeted by the LTTE. During the year, 10 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members were killed, including V. R. Kamalan, an eastern town council leader, and Media Secretary Balanadarajah Iyer. In March, unknown assailants killed Sinnathamby Sunderpillai, a candidate in the country’s parliamentary elections. The assailants killed Sunderpillai at the hospital after failing to kill him near his home earlier in the day. Credible sources indicated that after the fighting in March, the LTTE killed an additional 43 members of breakaway military leader Karuna’s group. On August 24, Karuna supporter Periyaamman Jayakumar was killed, and two prison officials injured, when a LTTE member shot Jayakumar in the Magistrate’s courtroom in Akkaraipattu in Ampara District. On July 15, an inmate in the Batticaloa prison with allegiance to the Vanni faction of the LTTE killed pro-Karuna cadre Kanapathipillai Mahendran (see Section 2.a.).

The LTTE also targeted alleged Tamil informants to the military, killing 10 during the year, including Kandaiah Yoharasa and Tissaveerasingam Dushyanthan.

36    The IMR referred to the 2005 report. He stated that it provided a summary of occurrences during the prior year and quoted extracts including:

During the year there were credible reports that LTTE killed 68 members of the police and military, more than 106 members of anti-LTTE Tamil paramilitary groups, LTTE cadres loyal to the Karuna faction, alleged Tamil informants for the security forces, and civilians. The LTTE targeted both current and former members of anti-LTTE Tamil political parties. During the year 18 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members were killed. Credible sources indicated that the LTTE killed 45 members of the breakaway military leader Karuna’s group. There was also credible evidence that the LTTE killed 15 members of the military intelligence apparatus in a targeted campaign.

37    The IMR referred to the 2006 report. He stated that in part of the summary, it detailed information including that there were credible reports of human rights problems, including politically motivated killings associated with the LTTE, an LTTE attempt to assassinate the Defence Secretary and that the LTTE “engaged in politically motivated killings; suicide attacks; disappearances; torture; arbitrary arrest and detention; denial of fair public trial; arbitrary interference with privacy; denial of freedom of speech, press, and of assembly and association; and the recruitment of child soldiers”.

38    The IMR found, overall, that the appellant was not a credible witness. The IMR noted that the appellant had presented a false story in his initial statement and interviews, indicating a willingness to deceive in order to advance his claims. In particular, the IMR did not accept the appellant’s claims that he was forcibly recruited into the LTTE or that his activities within the organisation were benign.

39    The IMR stated at [57[-[58]:

57.    I do not accept that he was involved in benign activity with the LTTE, I find that in all of his roles he was actively involved in investigation, reporting, detention, intimidation and threatening of civilians; and this with the full knowledge that those he reported on and detained had a real risk of being killed though [sic] his actions. He provided significant detail of his activities to UNHCR and also at the RSA interview and to me. In particular he was an operative in both the internal and external intelligence wings of the LTTE and had close association with the Military Intelligence; he was on his own evidence involved in the identification of civilians suspected of being SLA; he was involved in detaining those persons; questioning them and referring them on to others knowing that they may be shot. In Batticaloa he was involved in spying on people, writing reports on them, meeting with people and threatening them with being kidnapped and shot, and having meetings with Colonel Ramanan at which time troublesome people would be identified to be shot.

58.    I am also concerned about the training of the claimant and his intelligence work, and how this impacts on his credibility. In particular, as discussed with him he is trained in deception, pretending to be someone who he is not and extracting information. This training I find clearly enabled the claimant to fabricate his initial history, and is also being used by him now to try and paint his activities as benign, and his claiming that he lacked any real knowledge of what was happening to those he reported on and detained. Having carefully considered the history of the claimant, his positions, training and deception in this process (his refugee application history in Australia) I do not accept that is at all reasonable to believe as true. Given the roles he had, and also what he has admitted to UNHCR Malaysia, and to me, it is clear that he had a senior role in the LTTE in both the political and intelligence areas. In Batticaloa he was head of the Political wing and in charge of 35 people. He reported direct to Colonel Ramanan who is know [sic] to have been one of the most senior LTTE leaders. I do not accept that he could have achieved that position if he was involved in the benign and ordinary activity he portrays. I find that he gained that position due to the nature of his involvement in the LTTE, and that must have been because of his performance in his duties and value to the organisation. That could only be indicative of his knowledge of activities and involvement in them including the planning of the arrest, detention and killing of people suspected of being SLA, informers and including civilians so suspect. I find that he was actively involved in those decisions.

40    The IMR considered Art 1F and stated at [65]:

65.    In the claimant’s circumstances he does not deny that he was a member of the LTTE from 2000 to May 2006. That is from the ages of 15 to 21. During this time he received basic training, was involved in battles, and then when he was older he was transferred to the Intelligence unit – serving from about the age of 16 or 17 until 18, and then from the age of about 19 and 20 he was a Political leader in Batticaloa Town area at a time when it was under SLA control. In that role he had about 35 people reporting to him. As noted above he was in contact on a weekly basis with other senior people including Colonel Ramanan (the second most senior official in Batticaloa of the military wing of the LTTE) and met with Prabakharan (the leader of the LTTE). During his period of activity in both the Intelligence and Political wings of the LTTE by the very nature of his positions he was involved in, not just the gathering of information and preparation of reports as reported by him, but on my findings above also actively involved in the arrest and detention of civilian suspects including by force those who resisted, threatening people, and knowing that those he reported on were being killed and knowing that some had been killed. He was involved in meetings when this was discussed and decisions made that people would be killed.

41    The IMR found that the appellant’s position in Batticaloa where he reported directly to Colonel Ramanan did not correlate with the claim that his activities were benign. The IMR found that the appellant was likely to have been actively involved in the arrest, detention and killing of suspected informers and civilians. The IMR found that the appellant had a senior role in both the political and intelligence areas of the LTTE.

42    The IMR accepted that the appellant was a member of the LTTE from 2000 to early 2006 and concluded that if returned to Sri Lanka he would face serious harm from the authorities and the Karuna group.

43    The IMR nevertheless concluded that the appellant was excluded from the protection of the Convention by Art 1F.

44    The IMR noted that a credibility assessment would often be significant to determining whether there are “serious reasons for considering” as “[e]vidence of commission of crimes often will be from the claimant, and what they have said about their activities and positions. It may be that a claimant has made the prior statements in an attempt to further their claims of being recognised as a refugee, and it is apparent, claimants (sic) may later attempt to retract past statements” (at [67]).

45    The IMR observed that “serious reasons for considering” required strong evidence of the commission of the relevant crime, but evidence of a formal charge or conviction was unnecessary (at [12]). Further, liability under Art 1F(a) did not require the personal commission of a relevant crime, but could take the form of aiding and abetting with personal and knowing participation where the person “knew that crimes resulted or were the likely result of their reporting activities” (at [73]).

46    The IMR stated at [74]:

74.    I have carefully considered the evidence and am satisfied of the following:

•    the claimant was a member of the LTTE from 2000 to 2006 and at that time this was a terrorist organisation involved in a war with the Sri Lankan government;

•    during the period of about 2002 and 2003 he was an intelligence operative in the Kokkaduchcholai area under Colonel Ramanan, and during this period would approach civilians in the market, question them, direct their detention using if necessary force, and knowing that those civilians found to be questionable would be shot on the direction of Colonel Ramanan or others;

•    in February 2004 due to his work and aptitude he was deployed to the External Intelligence wing in Batticaloa to work in a government controlled area and posing as a school student. During this period he would meet regularly with Colonel Ramanan, be given surveillance tasks on certain people who were civilian and considered suspect, compile reports on those people, attend meetings at which time it was determined who was to be investigated and killed; he also meet [sic] other civilians who were suspect and warn them that unless they did as he suggested he would inform Colonel Ramanan with a threat that they would be kidnapped or shot;

•    he was a senior member of that organisation as Political Leader of Batticaloa town area during the period late 2004 to late 2005 or early 2006. During that period by the nature of his senior position he implicitly was aware of the excesses of the LTTE and that they were involved in detention, kidnapping, extra-judicial killing and disappearances.

•    Country information concerning the activities of the LTTE coincides with what the claimant has said of his activities, and what I have found above to be the level of his activity and involvement. During the period he was involved with the LTTE it is reported to have committed numerous serious human rights abuses ... regularly committed extrajudicial killings, including killing prisoners taken on the battlefield, and also was responsible for disappearances, torture, arbitrary arrest, detentions, and extortion, was responsible for an undetermined number of civilian disappearances in the north and east and was regularly accused of killing civilians.

47    The IMR stated at [75] that there were serious reasons for considering that the appellant had committed the crime against humanity of murder within the meaning of Art 7(1)(a) of the Rome Statute of the International Criminal Court 1998 (“Rome Statute”).

48    The IMR stated at [76]:

76.    Article 7(1)(a) is a crime against humanity of murder and requires that a perpetrator killed (or caused the death) of one or more persons, that this was committed as part of a widespread or systematic attack directed against the civilian population, and the perpetrator knew that the conduct was part of or intended to be part of a widespread or systematic attack against the civilian population. I am satisfied there are ‘serious reasons for considering’ that the claimant has committed this crime against humanity. In particular: During the period of his activity with the LTTE it was a terrorist organisation involved in a war against the government of Sri Lanka. The nature of that war was that its activities were directed not only as against the Sri Lankan armed forces, but also against the civilian population -Tamil, Sinhalese and Muslim. These attacks against those populations were widespread and systematic and ongoing for years even during the ceasefire. As part of his role he did detain civilians suspects and some of those by force, this at a time when the LTTE was waging an armed conflict against the Government of Sri Lanka. He knew that the civilian population was being targeted, he knew that his reports lead to the death of others, by the nature of his positions in the LTTE he would have known this was part of an overall widespread campaign against the civilian population. He reported to Colonel Ramanan who is known to be a senior LTTE official. He has, by his later contrition and realisation of the harm he was causing, evidenced that he was aware of his conduct and the gravity of it. He was so fearful of the repercussions of his actions he fled from Batticaloa in 2006 following his leave of the LTTE. By the very nature of his positions he knew that some of those persons he detained or reported on were civilian and not taking part in the hostilities. He would have known that there was a likelihood of this. He knew that people were being killed on the orders of Colonel Ramanan and others.

49    The IMR was satisfied that the appellant had the requisite intent and knowledge. The IMR, in that context, found that the from 2002 to 2003, the appellant was an intelligence operative in the Kokkaduchcholai area who was involved in questioning civilians in the market and detaining them if necessary, knowing that the questionable civilians would be shot on the direction of Colonel Ramanan or others. The appellant then worked in the External Intelligence wing in Batticaloa, where he regularly met with Colonel Ramanan, conducted surveillance operations on civilian suspects, complied reports on those people and attended meetings where their fate was determined. The IMR found that from late 2004 to late 2005, or early 2006, the appellant was a senior member of the Political unit of the LTTE in Batticaloa and in that capacity was implicitly aware of the activities committed by the LTTE, including detention, kidnapping and extra-judicial killing. The IMR found that country information coincided with the appellant’s claims and indicated that the LTTE regularly committed numerous serious human rights abuses.

50    The IMR concluded that no possible defences or mitigating factors under the Rome Statute applied. The IMR found that the appellant had joined the LTTE voluntarily, without threats of harm against his brother or mother. The IMR held that although the appellant was following instructions and obeying orders, he was under no legal obligation to obey. The IMR also considered the appellant’s relative youth when he joined the LTTE, but observed that he was an adult when he was the Political head of Batticaloa Town. The IMR considered the appellant’s remorse, but noted that later remorse was not a mitigating factor.

51    The IMR concluded that he had serious reasons for considering that the appellant was actively involved in the commission of crimes against humanity and was therefore excluded from the protection of the Convention.

Application to the federal magistrates court

52    In his amended application to the Federal Magistrates Court filed on 13 July 2012, the appellant relied on the following ground (excluding particulars):

The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information which was credible, relevant and significant and from which the reviewer drew conclusions adverse to the applicant’s claims.

53    The appellant submitted that the US Department of State reports on Sri Lanka for the years 2003, 2004 and 2005 contained credible, relevant and significant information which the IMR failed to bring to his attention and provide an opportunity to comment. The appellant submitted that as he denied that anyone had been killed as a direct result of his activities and the relevant country information sealed off that hypothesis, procedural fairness required that it be put.

54    His Honour rejected that submission. He found that the IMR was entitled to disbelieve the appellant on the material, including the appellant’s history of fabricated claims. His Honour concluded that a combination of the appellant’s own evidence and the country information led the IMR to the conclusion. His Honour found that although the country information was credible and relevant, it was not significant in the sense described by Brennan J in Kioa v West (1985) 159 CLR 550 (“Kioa”). There was thus no denial of procedural fairness. Accordingly, the application was dismissed.

The Appeal

55    The notice of appeal contained the following grounds:

1.    The Court erred in finding that the country information complained of was not significant to the decision to be made.

2.    The Court erred in failing to find that procedural fairness required the second respondent to bring the country information to the attention of the appellant and to allow him an opportunity to comment on it.

relevant legal principles

56    In Kioa, Brennan J acknowledged that procedural fairness did not require that all adverse information be put to a claimant. His Honour stated:

The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegation to which the repository of power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed.

57    Brennan J recognised, in that context, (at 629) that:

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

58    In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”) at [16]-[17], the High Court referred to Brennan J’s observations in Kioa and elaborated on the meaning of “adverse information that is credible, relevant and significant to the decision to be made”. Their Honours (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) stated:

As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

59    In NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 at [84], Allsop J stated of Brennan J’s comments (at 629) in Kioa:

This passage indicates that it is not sufficient to seek to shut out or disavow the relevance of material if it is “credible, relevant and significant” and if it is material of the kind that creates a real risk of prejudice, albeit subconscious. To a degree, as the last sentence of the passage shows, the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.

60    In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 the Full Court (Northrop, Miles and French JJ) clarified the requirements of procedural fairness in putting adverse information, as follows:

It is a fundamental principle that where the rules of procedural fairness apply to a decision making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41.

61    The Full Court observed that natural justice did not require the decision maker to disclose what he or she is minded to decide so that the parties have the opportunity to criticise the decision maker’s mental processes before reaching a final conclusion: (F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock). If, however, information on a factor personal to the claimant was obtained which was likely to affect the outcome, the claimant should be given the opportunity to deal with it.

62    The Full Court noted that the above general propositions were subject to two qualifications propounded by Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108-109. First, the person affected by the decision was entitled to be directed to the critical issues or factors on which the decision was likely to turn, in order to have the opportunity of dealing with it (Kioa per Mason J at 587). Secondly, the person affected by the decision was entitled to respond to any adverse conclusion drawn by the decision maker on material known to be the subject which was not an obvious or natural evaluation of the material.

63    The Full Court stated at (at 591-592):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).

64    In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [91], the High Court stated that:

procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiffs’ claims ... The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made’.

65    As the first respondent submitted in written submissions:

15.    As such, the authorities provide, and it is a well established rule, that the decision maker has an obligation to unambiguously and clearly raise the critical issues on which the decision will turn: Kioa v West at 587; Darabi at [91]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27].

16.    The Reviewer’s obligation (and the applicant’s entitlement) is to have his or her mind directed to the core or critical issues on which the decision will turn: Darabi at [93].

17.    Depending on the circumstances of the particular case, procedural fairness may require that country information be put to the applicant where the country information is determinative of the decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [97]-[99] per Gaudron J; [140]-[141] per McHugh J and [193]-[194] per Kirby J. However, where the country information is used by the Reviewer as a basis against which to assess the applicant's claims, procedural fairness does not require that country information, even where it is perceived to be of relevance, be provided as long as the issues of concern are raised and the applicant has had the opportunity to put their case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [27]-[28] per Allsop J; Darabi at [95].

18.    Nicholls FM in Darabi at [100]-[101] stated that procedural fairness requires that the applicant knows the case against them and has the opportunity to put their case. To resolve this issue, a Court must determine, having regard to the relevant actual and specific circumstances of the case, whether the Reviewer put the critical issues to the applicant such that they were able to meaningfully respond.

19.    Smith FM in SZQJP v Minister for Immigration and Anor [2011] FMCA 759 at 27 noted that not every passing new citation of country information by a Reviewer gives rise to a breach of procedural fairness, merely because the applicant was not given an invitation to comment. In every case, the Court must consider the significance of the absence of the invitation to comment through a prism of fairness in the particular circumstances. Specifically, whether the undisclosed information was "credible, relevant and significant" to the decision. When determining that question, the actual significance given to the information in the reasons for decision may prove decisive evidence. However, it is the Court's assessment of the significance of the adverse information which is determinative: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [10]-[17].

Article 1F of Convention

66    In Attorney General v Tamil X [2010] NZSC 107; [2011] 1 NZLR 721 (“Tamil X”) at [75], the Supreme Court of New Zealand considered Art 25.3(d) of the Rome Statute in the context of the application of Art 1F of the Convention. McGrath J stated:

It is inherent in the notion of criminal complicity that liability arises only once a primary criminal act has been committed, with which the accomplice has become associated by reason of his or her conduct. There must be “a predicate offence committed by someone other than the accomplice” whose conduct itself will not usually amount to an autonomous separate crime, because its criminality lies in facilitating the criminal enterprise of another. This reflects the general position in domestic criminal law where an accomplice’s acts are not usually criminal in themselves and become so only because they made the accomplice a party to the principal’s completed crime. (footnotes omitted)

67    In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579 at [51]-[52], French J stated that while the phrase “serious reasons for considering that” does not require a positive finding of the commission of a particular crime against humanity, the phrase is not inconsistent with “the need for meticulous investigation and solid grounds”.

68    In SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9, Wilcox J (although in the minority) stated, as an uncontroversial proposition, at [22]:

The adopted standard, ‘serious reasons for considering’, does not require proof, even on a balance of probabilities. It is sufficient if there is ‘strong evidence of the commission of one or another of the relevant crimes or acts’: see Dhayakapa v Minister for Immigration and Ethnic Affairs (1995) 62 FCA 556 at 563 (French J). See also Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179 and Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476.

69    In SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229, the Administrative Appeals Tribunal (“AAT”) found that while the appellant was an officer of a state information agency in Afghanistan, the agency, on strong evidence, perpetrated acts of atrocity, torture, cruelty, violence to the person, arrest and detention for indefinite periods. Although the appellant denied knowledge of the agency’s conduct or playing any part therein, the AAT found that there was strong evidence that he would have been aware that reporting information to his superiors would be likely to lead to such acts being perpetrated against the subjects of his reports (at [11]).

70    The AAT concluded that the appellant was aware that his reporting had consequences for the persons concerned, and given his position in the agency and his knowledge of its activities and the action it would take, there was strong evidence that he reported information knowing that the agency was likely to engage in activities that amounted to war crimes or crimes against humanity.

71    The appellant appealed to the Federal Court. Before Selway J, the appellant alleged that the AAT erred in failing to make a finding about any specific act, being a war crime or crime against humanity, for which he could be culpable. While the AAT found that the agency perpetrated numerous acts of atrocity, torture, cruelty and violence to the person during the time when the appellant, as an officer, was passing on information, the AAT did not make a finding that such acts occurred as a consequence of his passing on information. Rather, it found that the appellant passed on the information knowing that the atrocity, torture, cruelty or violence to the person was a likely consequence.

72    Selway J stated at [13]:

Mr Hanna went so far in relation to this issue as to argue that to show such a common purpose it was necessary to identify a specific or particular war crime or crime against humanity in which the relevant person had been complicit. This is clearly too onerous a test. It is an unfortunate fact of modern history that there are organisations which have had the objective of committing various war crimes or crimes against humanity in pursuit of political or other objectives. The SS and the Gestapo are obvious examples from the Second World War. These organisations would have been well known to those responsible for drafting the Refugee Convention. This does not mean that everyone associated with these criminal organisations could not be a refugee. But the suggestion that senior members of the organisations, who had been members for long periods, were entitled to be treated as refugees unless it could be shown that they had been complicit in specific crimes is unrealistic. Such an interpretation of the Convention is not required either by the terms of the Convention or by the cases decided in respect of it.

73    On appeal, in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561, the Full Court (Mansfield, Emmett and Bennett JJ) affirmed Selway J’s approach. Their Honours stated at [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.

DISCUSSION

74    The two grounds of appeal may be conveniently considered together. Before me, the appellant primarily submitted that the Federal Magistrate erred in finding that the IMR’s failure to put specific country information to him for comment denied him procedural fairness. The appellant argued that the information was credible, relevant and significant to the IMR’s decision that the appellant was complicit in the crime against humanity of murder under Art 7(1)(a) of the Rome Statute by the LTTE.

75    The appellant conceded that it was unnecessary to put information which was not new or would already have been apparent on the known material, and that the gist or kernel of such information sufficed.

76    It was undisputed that the annual US Department of State Reports for the relevant period followed a uniform pattern and included a “pro forma” summary of the LTTE’s abuses, cast in adjusted but very similar terms.

77    Further, it was not disputed that the RSA’s reasons referred to a document which paraphrased the general summation in the 2004 report about the LTTE’s human rights abuses, including politically motivated killings and an Amnesty International Report to similar effect. The submissions of the appellant’s agent dated 1 October 2010 and 4 August 2011 contained extracts from the 2008 US Department of State Report.

78    The appellant accordingly conceded that the general summation from the US Department of State Report of the LTTE’s abuses, including extrajudicial killings, which the IMR cited in his reasons but did not put to the appellant, was not novel. The appellant acknowledged that he would have been aware of such country information and the issues it raised.

79    The appellant nevertheless submitted that in this case, the gist or substance of the country information included the specific details of the numbers, characteristics or categories of persons killed by the LTTE during the period of his own activities, which were not included in any of the reports previously cited to him or of which he was aware.

80    The appellant identified the relevant detailed information distilled from the 2003-2005 US Department of State Reports as follows:

-    the “overwhelming evidence” of the LTTE killings of more than 36 members of anti-LTTE Tamil political groups and alleged informants during the year 2003 as referred to in the 2003 USSD report;

-    the “credible evidence” of the LTTE killings of more than 81 members of anti-LTTE Tamil political groups, LTTE cadres loyal to Karuna and alleged Tamil informants for the security forces, including the LTTE killing of 10 current and past anti-LTTE Eelam People’s Democratic Party members; and indication from “credible sources” of the LTTE killings of an additional 43 members of breakaway military leader Karuna’s group; all during the year 2004 as referred to in the 2004 USSD report;

-    the “credible reports” of the LTTE killings of more than 106 members of anti-LTTE Tamil parliamentary groups, LTTE cadres loyal to the Karuna faction, alleged Tamil informants for the security forces, and civilians; information of the LTTE killings of 18 current and past anti-LTTE Eelam People’s Democratic Party members; indication from “credible sources” that the LTTE killed 15 members of the military intelligence apparatus in a targeted campaign; all during the year 2005 as referred to in the 2005 USSD report.

81    The appellant’s identification of the issue to which the above detailed country information was significant shifted somewhat.

82    The appellant primarily submitted that the detailed country information was in itself credible, relevant and significant to the adverse decision against him because, as stated in Tamil X, the crime of complicity required the establishment of a predicate offence at the time of his activities in the LTTE, of which the additional numbers, characteristics and classifications of the LTTE’s victims, were probative, because they tallied with the description of persons he investigated and reported on between 2003 and 2005. The appellant submitted that the IMR’s observations at [74] indicated that those details (which were not disclosed to him by any other means) influenced, and fortified, the IMR’s finding that the LTTE committed the predicate offence.

83    The appellant submitted that, consistently with the different nature of the tests under Art 1F and Art 1A, the gist or substance of credible, relevant and significant adverse information should be more stringently characterised when applying Art 1F.

84    The appellant submitted that his denial of knowing that a single person on whom he reported was killed left open the hypothesis that there was no such victim, and hence, no predicate offence. The hypothesis was, however, “closed off” by the detailed country information, which therefore should have been put to him.

85    Alternatively, the appellant submitted that the detailed country information was significant to the “link” between the predicate offence of murder by the LTTE and his activities, because it indicated specific numbers of victims who were of the same description or category as the people on whom he reported.

86    In my opinion, the Federal Magistrate did not err as alleged. The detailed country information, while credible and not irrelevant, had no significance independent of the general summation which was already known to the appellant.

87    The detailed country information was illustrative of the general summation. It provided specific numbers of victims of LTTE killings and classified them principally as anti-LTTE Tamil groups, LTTE cadres loyal to Karuna, alleged Tamil informants for the security forces, LTTE Ealam Peoples Democratic Party members, members of break-away Karuna or anti-LTTE Tamil parliamentary groups and alleged Tamil informants. The location of the killings was rarely indicated.

88    Such details were not only unnecessary to, but would not materially fortify, the finding that the LTTE had committed the predicate offence of murder.

89    As the first respondent submitted, the appellant’s earlier acknowledgment that persons on whom he reported were possibly shot constituted strong evidence of the commission of the predicate offence, which the appellant’s denial and disavowal before the IMR did not negate. The IMR was entitled to assess the credibility of the appellant’s claims, including his retraction of previous statements, and to accept the veracity of the earlier accounts.

90    The “summation” in the country information to which the IMR referred in [74] also constituted evidence of the commission of a predicate offence by the LTTE, and constituted, in that context, the gist of the significant information.

91    The IMR’s observation at [74] that country information “coincides with what the appellant has said of his activities” was ambiguous. The word “coincide” might signify temporal concurrence with, or confirmation of, the appellant’s stated activities. Nevertheless, to the extent to which the country information confirmed, or was consistent with, what the IMR had found on the basis of the appellant’s statements, the inclusion of the summation of the LTTE’s abuses from the country information immediately after the relevant observation nevertheless suggested that the summation was the significant element.

92    While a decision-maker’s disavowal that information which creates a real risk of prejudice influenced his or her decision does not exclude the obligation to put it, in this case, to the extent to which the country information was significant to the finding of a predicate offence, the details were not core or critical issues on which that aspect of the decision would turn.

93    Nor, in my view, was the detailed country information significant to the decision because it evidenced a link between a predicate offence and the appellant’s conduct.

94    The appellant’s description of the classes of persons on whom he reported, met and warned was expressed in relatively general terms as suspect persons, persons of concern and allegedly corrupt LTTE officials in a particular area. The IMR found that the appellant dealt with civilians suspected of being SLA, people in Batticaloa and informers in the relevant area. In the detailed country information for 2003 to 2005, the categories of the LTTE’s victims were also described quite generally and location was rarely specified. In my opinion, there was no “close correlation” between the particulars of the LTTE’s victims and the persons on whom the appellant claimed to have reported. The detailed country information did not, in my view, materially fortify or add probative force to a link between the appellant’s activities and a particular murder committed by the LTTE which was, in any event, unnecessary to a finding of complicity.

95    Accordingly, in my view, his Honour correctly held that the substance of the country information that the IMR failed to put to the appellant was either not novel or would have been obvious on known material. To the extent that it contained details which had not been disclosed elsewhere, it was not significant to any aspect of the IMR’s adverse determination.

96    The appellant also alleged that the Federal Magistrate erroneously concluded that the detailed country information was not significant to the IMR’s decision because, contrary to the established principles, he analysed that question retrospectively and wrongly required a causal relationship between the information and the adverse conclusion reached.

97    In my view, his Honour did not err by adopting, as alleged, an erroneous “rear view post decision subtraction analysis”, contrary to the statements in VEAL. While VEAL recognises that a primary decision maker must necessarily assess prospectively whether adverse information may be credible, relevant and significant to his or her decision, in order to put it to the claimant, a reviewer must determine what disclosure procedural fairness required in all the circumstances of the case (see Darabi v Minister for Immigration & Citizenship [2011] FMCA 371 at [94] per Nicholls FM; Muin v Refugee Review Tribunal (2002) 68 ALD 257 at 287 per McHugh J). Further, on a fair reading of his reasons, his Honour did not base his conclusion that the relevant information was not significant on an erroneous causal approach.

98    Accordingly, I see no error in the Federal Magistrate’s conclusion that the IMR’s failure to put the relevant country information to the appellant denied him procedural fairness.

99    Grounds 1 and 2 of the appeal are not established.

Conclusion

100    In my opinion, the appeal should be dismissed.

Associate:

Dated:    13 February 2013