FEDERAL COURT OF AUSTRALIA

GZCK v Minister for Home Affairs [2021] FCA 1618

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

A    INTRODUCTION

1    The applicant fled from Sri Lanka, arriving in Australia by boat in December 2009 aged 36. He has been in immigration detention continuously since then – an unimaginable period of 12 years. He suffers severe mental health issues caused, or at least exacerbated, by his lengthy detention.

2    It is common ground that, but for the question that this case addresses, the applicant satisfies the criterion for a protection visa on refugee and complementary protection grounds, namely that owing to a well-founded fear of persecution he is unable or unwilling to avail himself of the protection of Sri Lanka (refugee ground) and there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm (complementary protection ground).

3    The outstanding question, addressed by this case, is whether the applicant is excluded from qualification for a protection visa on the ground that the relevant Minister has serious reasons for considering that the applicant has committed war crimes or crimes against humanity. That question arises from the applicant’s long involvement as an intelligence officer with the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka during the civil war in that country after having been forcibly recruited to that organisation at a young age.

4    Under s 476A of the Migration Act 1958 (Cth), the applicant seeks relief in the form of an order quashing the decision of the second respondent, the Administrative Appeals Tribunal, made on 14 May 2021 to affirm the decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse the applicant’s application for a protection visa. The applicant also seeks an order in the nature of mandamus directing the Tribunal to determine his protection visa application according to law, and costs.

5    In brief, the decision of the Tribunal was that there are serious reasons for considering that the applicant has committed war crimes and crimes against humanity as set out in s 5H(2)(a) of the Migration Act in light of his involvement with the LTTE. By reason of that finding, the applicant was found to be ineligible for a protection visa on refugee grounds under that provision and on complementary protection grounds under s 36(2C)(a)(i).

6    For the reasons that follow, I have concluded that the Tribunal was not in jurisdictional error in concluding that there are serious reasons for considering that the applicant committed the war crime and the crime against humanity of murder and on that account is ineligible for a protection visa. The application should accordingly be dismissed. The Tribunal also found that there are serious reasons for considering that the applicant committed the war crime of attacking civilians and the war crime and the crime against humanity of torture. I have concluded that those findings are not available on the evidence.

7    It is helpful to set out the applicant’s history of involvement in the LTTE as he has explained it at various points because his story has changed over time. The history is presented in the order of interviews or examinations where he told his story, rather than the underlying order of the matters canvassed, because the evolution of the applicant’s story is relevant to the Tribunal’s approach to the evidence and the applicant’s credit. References to the court book have been included as a general guide but should not been taken as a complete reference to material referred to.

B    BACKGROUND

B.1    Initial interviews, December 2009 – early 2010

8    In December 2009, the applicant participated in his initial entry interview on Christmas Island with an officer of the then Department of Immigration and Citizenship with the aid of a Tamil interpreter (“Department” is used in these reasons for the various incarnations of the relevant government department over time). The interview was conducted against a pro-forma form where information was filled in as was necessary, presumably by the Department’s officer. [CB76]

9    The applicant did not mention his time with the LTTE. Rather, he mentioned that he worked in a grocery store then an electronics store and as a cleaner. Similarly, in answering a question about why he left Sri Lanka, the applicant noted that where he was staying was under the control of the LTTE, where he sold the LTTE food and electronic items but not that he was involved with the LTTE. [CB80, 86]

10    The applicant was asked if there were any armed groups, political groups, or religious groups operating in the area in which he lived and his level of involvement with them. The applicant’s answer was that he “just sold” the LTTE items such as food, video cameras, phones, digital recorders, torch lights, Swiss army knives and other things, and that he had “no other involvement”. [CB88]

11    He was asked if he had ever participated in any armed conflict or fight, to which he answered “no”. He also answered “no” to whether he had ever received training in preparation for conflict or was involved in any military service. [CB89]

12    The applicant also gave an explanation of why he left Sri Lanka. In short, in 2004 he was caught by the police and held for three and a half months in gaol because he was selling goods to the LTTE. The applicant said that after that the LTTE was captured by the military so everyone in his village was “told to go to camps”. He then said he did not go to a camp because he was scared and instead went to stay at his partner’s house. Thereafter, the splinter Karuna Group of the LTTE was looking for him, because he was not in the camp. While staying at his uncle’s house, he was involved in the 2008 provincial council election, where he helped and worked for the UMP Party. This work caused the Karuna Group to contact some of his family members causing them problems. His family encouraged him to leave the country. He then left for Thailand, travelling then to Malaysia and Indonesia. [CB79, 92, 96, 98-99]

13    In January 2010, the applicant requested a refugee status assessment. The assessment required the applicant to answer a number of questions. The “no” box was ticked in answer to the question whether he had served in a military or paramilitary organisation. [CB114, 126]

14    In a statutory declaration accompanying the refugee status assessment, the applicant said that in 1995 he had a business working from home buying and selling goods and that he was forced to supply goods to the LTTE. He was arrested in 2004 – presumably this is the same arrest mentioned in his initial entry interview, “interrogated and beat up” and he had to admit he had been helping the LTTE. He said that the police demanded that he help them against the LTTE or they would kill him, so he agreed. Given that he was scared, he fled to Qatar in 2004 and was employed as a cleaner. However, he later returned home when he was informed that his mother had had a stroke. [CB133]

15    In a further statutory declaration, the applicant declared that he had never been associated within anyone who had or could reasonable have been suspected to have been involved in war crimes or crimes against humanity. [CB148]

16    In around mid-March 2010, the Department notified the applicant of his refugee status assessment, namely that it found him not to be a refugee under the 1951 Convention relating to the Status of Refugees, opened for signature 2 July 1951, 189 UNTS 137 (entered into force 22 April 1953) (Refugees Convention). In the refugee status assessment record, the relevant decision-maker took the view that the applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring if he returned to Sri Lanka. [CB171, 189]

17    The applicant appealed his finding to the independent merits reviewer, as is evident in a letter from the applicant’s then solicitors dated 5 May 2010. The letter states that the applicant had given instructions that his statement of claims be amended as follows: [CB191-2]

(a)    he was forced by members of the LTTE to join the organisation in 1990. Shortly after this he was ordered into battle by the LTTE but fear made him incapable of fighting,

(b)    consequently, he was put to work by the LTTE purchasing supplies for them from government-controlled areas of Sri Lanka. He would cross the river that separated his part of the Eastern Province to purchase supplies that he would then bring back into the LTTE area,

(c)    he continued this work for the LTTE until April 2004 when he was arrested by the police in Batticaloa and detained until July of that year. During his detention by the police he suffered serious mistreatment amounting to abuse of his human rights and persecution,

(d)    he managed to remain out of trouble with the police and the LTTE until November 2004 when he arranged to go to Qatar,

(e)    in July 2005 he received a facsimile from his sister informing him that his mother, who had been ill for some time, had suffered a stroke and asking him to return to Sri Lanka. It took him about a week to make his arrangements to return home,

(f)    when he arrived home in Palukamam in the Eastern Province, he found that his mother had not suffered a stroke but an LTTE cadre by the name of Rammanan had gone to the family home and threatened his mother that he would kill or seriously harm others of her children unless she enticed him back from Qatar. Accordingly, his mother and sister had concocted the story of a stroke,

(g)    approximately 5 days after he returned to Batticaloa, he reported to the LTTE as he feared that if he did not report to them soon after returning home, they would become suspicious of him and cause him or members of his family serious harm,

(h)    he continued to work as a purchasing officer for the LTTE until December 2008 when he left the country to travel to Thailand after the Sri Lankan Army had defeated the LTTE in his part of the country,

(i)    he did not join the LTTE voluntarily but was forced to join them by the threat of serious harm,

(j)    at no time during the years that he was forced to work for the LTTE did he commit any serious crimes or crimes against humanity,

(k)    apart from the one occasion when he was sent into battle soon after he joined the LTTE in 1990, he never carried arms on their behalf and never fought in any battles, and

(i)    he was not a voluntary member of the LTTE but was forced to cooperate with them for fear of the consequences if he had defied them.

18    On 15 July 2010, the independent merits reviewer made a recommendation that the applicant met the definition of a refugee under Art 1A of the Refugees Convention as he had a well-founded fear of persecution for reasons of his imputed political opinion. In the statement of reasons, the independent merits reviewer noted a number of matters, including concerns over the applicant’s amended story, that the reviewer believed the applicant was now telling the full story, and had been acting on bad advice in relation to concealing his involvement with the LTTE. Also, overall the reviewer accepted that the applicant was coerced into joining the LTTE, received weapons training, resumed worked with the LTTE after leaving the country and continued to work with the LTTE until it surrendered. [CB214, 230, 232]

19    The applicant did not mention to the independent merits reviewer his time working in intelligence for the LTTE, to which I will come, despite saying that he wanted to “tell the truth regardless of the consequences”.

B.2    ASIO interview (September 2010) and the Stone report (August 2014)

20    On 1 and 2 September 2010, the Australian Security Intelligence Organisation (ASIO) interviewed the applicant. The applicant was assured that the details of the interview would remain confidential and would only be released to those with a need to know. The transcript of the interview was not before the Tribunal or the Court and was apparently not available to the parties. [CB252] However, as will be seen, what the applicant told ASIO was ultimately used against him in concluding that he does not meet the requirements for a protection visa.

21    On 18 February 2011, ASIO advised the Department that the applicant was assessed to be directly or indirectly a risk to security under s 4 of Australian Security and Intelligence Organisation Act 1979 (Cth) and recommended that any application for a visa be refused. [CB234]

22    It was not until 18 April 2013, more than two years later, that the applicant was provided with an unclassified ASIO summary of reasons. The summary states: [CB259]

It is not consistent with the requirement of security for [the applicant] to be issued a permanent protection visa for reasons that include the following:

a.    ASIO assesses he was an Liberation Tigers of Tamil Eelam (LTTE) soldier, intelligence officer and leader for an extensive period of time;

b.    ASIO assesses he was involved in the facilitation and provision of logistical support for LTTE ‘Black Tigers’ suicide missions;

c.    ASIO assesses he ideologically supports the LTTE and its use of politically motivated violence;

d.    ASIO assesses he has financially supported the LTTE at the direction of LTTE leadership;

e.    ASIO assesses he is likely to continue to support the LTTE in Australia if he is granted a permanent protection visa; and

f.    ASIO assesses he would likely to engage in acts prejudicial to Australia’s security if he is granted a permanent protection visa. [sic]

23    The applicant then sought a review of the ASIO recommendation. On 3 June 2013, the applicant made written submissions, and on 19 May 2014 oral submissions, to the late the Honourable Margaret Stone AO as the independent reviewer of adverse security assessments. Ms Stone prepared a report that is dated 25 August 2014 (Stone report).

24    The independent reviewer was required to examine all the material relied on by ASIO in making its assessment, which included ASIO’s interview with the applicant. [CB242] The Stone report is a key document in this case as it is the best available evidence of what the applicant had told ASIO in 2010. The report noted the following.

25    With respect to the period 1990 to 1991, the applicant said he was forcibly recruited to the LTTE at age 17 in 1990 by someone named Ramanan, who was a high-profile LTTE member. On one occasion he and another person were required to supply goods to an LTTE camp in the jungle in Kithul which turned out to be a base for training LTTE recruits. The applicant was put in a hut and told that he was to remain at the camp for training. At the camp the applicant took part in a three-month training course which involved physical training, attending lectures and using sticks to learn how to handle weapons. Towards the end of the course the applicant was given a T56 rifle to handle (similar to an AK-47 assault rifle). He denied joining the LTTE voluntarily. [CB253]

26    In 1992, the applicant was involved in ambushes of the Sri Lankan Army (SLA). During the second half of 1992 the applicant was sent to camp at Kudumpi Malai where he was required to go into battle against the SLA. He took part in an ambush of the SLA at Singapura in which 500 to 600 people, split into smaller groups, participated. The applicant explained that the purpose of such ambushes was to kill SLA personnel and to take their weapons and ammunition. The applicant was involved in a second ambush at Unnichchai, again involving around 500 to 600 LTTE personnel. Brother Ravatan gave him his rifle which he used for the duration of the battle in which people from both sides were killed. A third ambush took place at Kokkaddicholai, where a group of 25 to 30 SLA personnel were attacked as they crossed a river. [CB253]

27    From 1993 to 1995, the applicant undertook intelligence training. The applicant, with 10 to 15 others, was selected by someone named Master Uruthira, to undertake intelligence training. He was selected for the training because he was young and small and because he had marched with Master Uruthira. In mid-April 1993, his group was taken to an LTTE member “Bosco’s” camp at Ariyalai, Jaffna District. There they joined a group of 38 boys and 18 girls. The first year of the course was study and the second year was practical training. The intelligence training comprised instruction in collecting information, surveillance techniques, interrogation and infiltrating groups. The applicant mentioned that in 1994 he was present at the interrogation of Mathaya (variously spelled) (then the second in charge of the LTTE) after Mathaya was arrested on suspicion of involvement with Indian Intelligence. The applicant said that Brother Ghandi took him to the interrogation and that he was responsible for producing the interrogation report. [CB254]

28    From 1996 to 2004, the applicant was involved in intelligence work in Batticaloa. The applicant said that he remained in the village from 1996 to 1998 and that, in addition to his procurement role he was also tasked by Brother Ghandi with making arrangements for boys being sent to Colombo for “jobs” by Brother Charles, the chief of military intelligence for the LTTE. (It is unclear how old the “boys” mentioned were.) He explained that Brother Charles was responsible for organising the “jobs” and that his own role was to arrange for the boys’ safe passage to Colombo using false identity papers and to set them up in a safe-house in Colombo. Once in Colombo the boys would begin their tasks, which sometimes involved intelligence gathering and, sometimes, suicide attacks. The applicant said that some boys stayed in Colombo for up to a year, while others stayed as little as three months. The applicant was only made aware of who was doing what after an attack had taken place. Between 1996 and 1998, the applicant sent six or seven boys to Colombo. He said that in addition to his role facilitating the travel of boys to Colombo, he was also in charge of four boys who were responsible for collecting information on SLA movements and plans. Based on the information they provided, the applicant wrote reports for Brother Ghandi and would meet with him monthly to discuss the reports. [CB254-5]

29    The applicant said that, under Brother Charles, he sent nine or 10 boys to Colombo in the period 1998 to 2001. He mentioned a number of suicide attacks that occurred during this period, including an attack at a Buddhist temple in Kandy in 1998 (variously described including as the “Tooth Temple”) which had been planned by Brother Charles. Asked about his role in the attack, the applicant said that he was responsible for sending one of the boys. He also mentioned the attack on Colombo Airport in 2001, in which 12 or so people were killed and 12 planes were destroyed. He said that although his section had originally received a request to send boys for the attack, those who eventually carried it out had been sent by another section based in Vanni. [CB255]

30    In November 2003, the applicant was involved in an altercation with someone named Brother Keerthi (variously spelled). To avoid further trouble, the applicant ended up at a “gaol base” to assist someone named Vithuran. The applicant’s task was to observe the interrogations of informers and to write interrogation reports, which Vithuran would deliver to someone named Pottu Amman. The applicant only ever observed and reported on the interrogations and did not participate in the conduct of them. On occasion he had ensured that people were kept awake as part of a sleep deprivation technique. He said that he had seen people being electrocuted, suspended by their feet and beaten, and having their fingernails pulled out. [CB256]

31    Following the split by Col. Kamna from the LTTE in early 2004, the applicant was sent to Batticaloa. His task was to infiltrate the Karuna Group (an LTTE splinter group) in order to gather information and persuade people to return to the LTTE. The applicant travelled to Vavuniya where he met with Satchu Master, who had defected to Karuna’s side. In an attempt to gain his trust the applicant told Satchu Master that he had run away from the LTTE. During his time with the Karuna Group he took part in beatings of people who were suspected of passing information back to the LTTE. [CB256]

32    After his arrest in 2004 and a stint from 2004 to mid-2005 as a cleaner in Qatar he returned to Sri Lanka. He was in contact with the LTTE during this time. It is also recorded that the applicant was instructed by Brother Praba to return to Sri Lanka in July 2005 after he refused an order to kill Kuruvi, who was recruiting boys from the LTTE camps for the Karuna Group. [CB256-7]

33    From mid-2005 to early 2007, the applicant was again involved in intelligence and procurement duties. On his return to Sri Lanka he was taken to an LTTE camp by Brother Praba and Brother Keerthi; he agreed to return to his old duties. The applicant was based in Palukaman where he resumed sending boys to Colombo and was also required to procure and distribute goods such as cameras, walkmans, electronic goods and generators. In 2006, he was given an additional role reporting to Brother Keerthi on possible SLA spies in the area. He said that based on his reporting Brother Keerthi would send others to investigate and that four or five suspected spies were caught and interrogated by another team at a jungle base in Theravai. [CB257]

34    Ms Stone determined that the material relied on by ASIO supported its factual findings and assessments. She consequently concluded that the adverse security assessment in respect of the applicant was an appropriate outcome and should be maintained and should be reviewed again in 12 months from the date of the report. [CB263]

B.3    Statutory declaration, April 2015

35    On 21 April 2015, the applicant signed a lengthy statutory declaration, presumably for the review of his adverse security assessment. It was provided to ASIO and relied on in the Cornall report mentioned below, and it was tendered to the Tribunal. Without summarising the whole document, the applicant made the following comments on his story. [CB697]

36    In respect of his recruitment into the LTTE, the applicant recalled the moment he was recruited when he was 17. He said that on one of his deliveries to an LTTE camp, “a man” forcibly recruited him into a training course. The applicant said that he cried and wanted to go home at which point the man showed the applicant two or three boys who were tied to different trees. The man said to the applicant if he cried too much the same would happen to him. He said runaways were beaten and starved. [CB700/19, 24]

37    With regard to his return to Batticaloa in 1996, he said that he had heard and witnessed that the families of people who had run away were badly treated by the LTTE and he did not want his family harmed, so he decided he had better not run away. Those who ran away could be killed because they had LTTE secrets. [CB713/73]

38    The applicant explained that he came to believe that the boys that he was sending to Colombo were “going on missions.” He said that they were probably Black Tigers and doing things “like suicide bombings”. He said that he was not told explicitly what they were doing, but he “figured it out”. He said that it became obvious because within days of them leaving, an incident would be reported and the boys often did not return. [CB715/79]

39    The applicant also dealt with his escape from Keerthi’s camp to Vanni, in 2003 to 2004. The applicant said after his altercation with Keerthi, he was afraid he may be put in gaol so he left the camp. In Vanni, he was told by Sangar, who was in charge of intelligence at Pudhu Kudierupu, that he was to stay in Vanni. The applicant assumed that was his punishment for the altercation. After a month he was told to go to the gaol base, which was “a sort of punishment”. He said he had to cook for everyone. He also said he was not given intelligence or interrogation work. He knew that torture happened there but he was not involved and did not witness it. [CB723-4/111-115]

40    On 25 August 2015, the applicant was invited by the Department to apply for a temporary protection or safe haven enterprise visa. [CB266]

41    On 2 October 2015, the applicant’s then representative made an application for a temporary protection visa. [CB272]

42    On 19 October 2015, ASIO once again advised the Department that they assessed the applicant to be directly or indirectly a risk to security. [CB323]

43    On 12 November 2015, the Australia Border Force invited the applicant to comment on the adverse security assessment in light of his visa application. [CB323]

B.4    The Cornall report, August 2016

44    On 25 November 2015, Robert Cornall AO notified the applicant that he had been appointed the independent reviewer of adverse security assessments. On 14 December 2015, the applicant’s then representative made further submissions to Mr Cornall. [CB332, 358]

45    On 12 January 2017, Mr Cornall provided the applicant an unclassified copy of his Final Primary Review Report, which was dated 24 August 2016 (Cornall report). The Cornall report is another key document, so I will set out its contents in some detail. [CB350]

46    First, a background of the LTTE between 1970 and 2009 is set out which the applicant accepts is an accurate summary: [CB354-5]

From the 1970s to 2009, the LTTE engaged in armed conflict against the Sri Lankan Government in order to establish a separate Tamil homeland within Sri Lanka. Until its military defeat in 2009, the LTTE was considered one of the world’s most effective terrorist and guerrilla organisations. At its peak the LTTE was considered the most sophisticated insurgency group in the world; strictly organised and possessing extensive capabilities in weaponry, logistical support, propaganda platforms, fundraising and smuggling networks.

The LTTE did not tolerate any challenge to its leadership and sought to systematically eliminate any rival or opposition Tamil groups as well as being responsible for the death of over 100,000 people, mostly civilians. Subsequent to its assassination of alternate non-LTTE leadership figures within the Tamil community, the LTTE declared itself to be the sole representative force of Sri Lankan Tamils.

LTTE cadre were dedicated and well trained. They received regular instruction in battle tactics, weapons handling, ambush and camouflage methods, and escape and evasion techniques. The LTTE employed significant use of suicide attacks and assassinations. Targets for assassination by the LTTE included: Tamils opposed to the LTTE; prominent university teachers, heads of schools and senior administrators; lawyers; journalists; social workers; and Sri Lankan government officials, politicians and military personnel. Furthermore, actions of the LTTE against civilians included: direct targeting civilians with claymore mines and suicide bombers; summary executions of persons in its custody; use of civilians as human shields; blocked water supply to civilian populations; and the forcible recruitment of children using a combination of intimidation and bribes.

47    It was further noted that: [CB359]

It is common ground that [the applicant]:

•    was a member of the LTTE for 20 years

•    undertook a number of different roles and responsibilities during that long time

•    received military training but only had limited involvement in military action

•    took part in the preparations for Black Tiger missions, and

•    became an LTTE senior intelligence officer who was known to and acquainted with the principal LTTE leaders.

48    With reference to the applicant’s further submissions, the Cornall report noted that he had said in his statutory declaration made on 21 April 2015 (referred to at [35] above) that: [CB360]

I do not support the LTTE ideology. I resent the impact the LTTE has had on my life. My life has never been my own. I resent the tactics they used to keep me in the movement, threatening myself and my family. The LTTE forced me to join the movement. Any respect I had for the leaders was lost with all the killing that happened and then the infighting … I don’t think Tamil Eelam was ever an achievable goal.

49    Mr Cornall noted that the applicant answered questions openly and directly without any hesitation, waffling or apparent obfuscation. It was noted that the applicant did not appear to be withholding any information or trying to sidestep questions. It was also noted that his conduct was genuine, appropriate and normal. [CB361]

50    Mr Cornall identified and then made conclusions on each of the grounds of ASIO’s adverse security assessment of the applicant. In relation to the first ground, where ASIO had said that the applicant was a voluntary member and ideological supporter of the LTTE for over 20 years, Mr Cornall noted that the applicant claimed he was forced to join the LTTE and “one has to question what voluntary means when he was only 16 at the time and living in an area brutally controlled by the LTTE …” (emphasis in original). [CB364]

51    The details of the further grounds of ASIO’s security assessment are not relevant to the present exercise because they deal with predicting the applicant’s behaviour in the future rather than what he did in the past. Ultimately, Mr Cornall concluded that the adverse security assessment was founded on conclusions drawn from the applicant’s actions as a member of the LTTE before its collapse in 2009, when his circumstances were entirely different. Accordingly, the facts, arguments and reasoning put forward by ASIO were not sufficient to support an adverse security assessment. [CB366]

B.5    Interview with the delegate, February 2017

52    On 31 January 2017 and 1 February 2017, the applicant was again interviewed by a delegate of the Department in connection with this application for a temporary protection visa. The relevant parts are summarised below. [CB339, 408]

53    In this interview, the applicant responded to a question “when did you join the LTTE?” with “I didn’t join, they joined me in the end of 1990 … Our village was under the LTTE control.” [CB419]

54    The applicant was asked about the manner of his joining the LTTE and specifically what happened to him at the training camp. The applicant’s answer included the following: [CB421-422]

And they told me, “Here you can’t escape. The people who try to escape or try to run away, have been treated this way” and they showed me some people who were tied. They told, “You can’t run away but if you try to run away we will catch you and we will do the same thing like tying you like the same like these people.” That is what they told me. I was crying. I was crying the whole day, the whole night. I was worried about myself and I was worried about the family. I was thinking about my family. …

I was scared. I was thinking if I try to run away then I will be subjected to their cruelty. I was scared and I thought I can’t do anything, and the following day they asked everyone to come for training. They lined up everyone. … In the morning, they start the training by asking us to run. If we don’t run they will beat. If someone doesn’t run and stay there, they will beat them with the sticks, there will be people around us with sticks, so there is no other option than running. I couldn’t do any other thing. There is no other option than doing what they want us to do. So even though sometimes I was worried and I was in tears, I was running. Sometimes they would beat me, but have no other option than doing what they asked me to do.

55    The applicant also answered questions on his intelligence training and his time in the inquiry division also known as J Section. The applicant said that he did not do any questioning – more senior people did – but that he was required to watch and to write reports on the interrogations. [CB461-2] When questioned further about this, the applicant said that he did not provide any assistance to the J Section in relation to unfinalised cases. He would write a report after the interrogation had taken place; “after that person got tortured”. He said that he would write the report knowing that the person had been tortured because he could see the person’s injuries. After he had written the report, he would have to read it back to the detainee and if they agreed they would sign the report. [CB477-478]

56    The applicant said that he witnessed members of J Section torturing suspects when they were being interrogated but he did not do any of the torturing. He said he was not in a position to prevent the more senior people from doing the torturing; if he tried, he would have been beaten. He said he could not have helped anyone. [CB464] The applicant also mentioned that he heard but “didn’t witness” the interrogation of a high ranking LTTE member, Mahttaya, and saw him being transported from “one place to other”. [CB465]

57    The applicant was asked whether he was aware of any members of the LTTE seriously harming other individuals in the period between 1996 and 2004. He said that he did not witness that, but he became aware of it. He said that people who were identified as working with the military and “dobbing LTTE” would be identified, publicly exposed and shot. [CB491-2]

58    The applicant was asked about the “boys” that he had been involved in sending to Colombo who were involved in intelligence gathering and sometimes suicide attacks. He said that he did not know what they were going to Colombo for because he was not told. He said that he just facilitated the travelling. It was after “some things happened or incidents happened, then we have to connect that this is what – this is why this person has gone there”. He also said: [CB498-9]

Actually they are going for intelligence work but I don’t know what kind of information they are going to gather. Actually we can’t ask them and they won’t tell either. If we question them and if anything happened then they will shoot us, we will get into trouble.

59    The applicant said that he only came to know after there had been suicide bombings in Colombo that boys he had sent had been involved: “When the person who has gone, when he didn’t come back, then we have to come to a conclusion something had happened.” [CB500]

60    When asked about his role “aiding and abetting the movement of LTTE who he subsequently learnt engaged in suicide bombing”, he said: [CB500]

I feel sorry for them because they are innocent in a way. I didn’t do this because I want to do it, they asked me to do it. If I don’t do this they may send me to the battle field. That’s why I did this and I want to stay in my village. So I did whatever they want me to do. In-between I had an idea of running away and I made and ID card and all, but I learnt that they shot the people who were trying to run away so I was scared. Actually when obtaining the ID the LTTE the movement didn’t know, I did that without the knowledge of the movement and I gave that to my mother. In the movement we can’t do that kind of thing. If they found out they will punish us and give us more punishment.

61    The applicant said that he was not aware of any of the boys that he sent to Colombo being involved in the suicide attack on the Temple of the Tooth in Kandy. It was then pointed out to him that he had told the independent reviewer that he was responsible for sending one of the boys, which was a direct contradiction. To that, the applicant explained that he did not know before the incident happened – he had sent someone to Kandy and it was only when the person did not return that he had to “figure out this is what happened”. [CB503]

62    The applicant agreed that once it became evident to him that at least some of the boys had been involved in suicide attacks, he thought there was a possibility that some of the boys he was sending to Colombo may have been engaging in suicide missions. He was then asked whether he did anything to prevent the boys going to Colombo or elsewhere to commit suicide attacks because he thought that they may have been involved in such attacks, to which he answered: [CB506-7]

Actually before they leave I didn’t know. Normally there are times some boys travel back and forth a couple of times, they go and come back and sometimes they won’t come back. So when a boy didn’t come back then normally I will connect that boy to the incident which happened during his absence or stay. …

At that time I was not exactly told what they are going to do and even we can’t ask them what they are going to do, and they won’t tell us either. …

I did have a feeling considering there were previous things happened in the past. Sometimes I used to think these boys may do something and end up in some other things but I can’t ask them or discuss these things with others. At the same time, some of the boys had run away from the movement and gone to overseas, so there were things like that had happened too.

63    The applicant was asked how he felt about being involved in sending boys to Colombo who may have been involved in suicide attacks. He said: [CB508-9]

I don’t like people getting killed and dying in this manner but I can’t stop them. They were going willingly. They were – when they go, they go happily. No one can stop them. I can’t ask them or discuss anything with them. If I go to ask or discuss something and if they go and tell to the person who is in charge, then I will get into trouble. Some of the (indistinct) boys had got into trouble because of these kind of things.

64    When asked what sort of trouble he might get into, the applicant said that they could shoot him and that they had shot others. [CB509]

65    The applicant was questioned about his involvement in interrogations involving Vithuran at the gaol base. The applicant accepted that his task was to observe the interrogations of informants and to write interrogation reports. The applicant said that he did not witness people being electrocuted, suspended by their feet and beaten and having their fingernails pulled out, but he had seen them after their fingernails were removed. He said that at that time he could not do anything or make any comment. He had been sent to the gaol base as a punishment. He was there for three months and was confined to camp. [CB514-5]

66    The applicant was asked whether he had on occasion ensured that people were kept awake as part of the sleep deprivation technique. He said that Vithuran was the person who was in charge and that he did what he was told to do. He could not remember whether he had done anything other than keeping people awake. He reiterated that he was serving punishment at the gaol base. He said that he felt bad for the people who were questioned there; he sympathised with them. [CB515]

67    The applicant was asked about the time when he was undercover in the Karuna Group, having infiltrated it on instructions. Sachu Master had defected to the Karuna Group, so the applicant told him that he had run away from the LTTE to gain his trust. It was put to the applicant that it was documented that he had taken part in beatings of people who were suspected of passing information back to the LTTE. He agreed to that, saying that he had done it along with Sachu Master. [CB517]

68    The applicant said that sometimes he was told to beat a person, which he then did. He would beat them with a stick, “four, five times maybe and when he cried I’ll stop.” He said that the people he was told to beat were accused of giving information to the LTTE, and that he did the beatings to avoid suspicion. The applicant explained: [CB520]

The problem here was I was there with Karuna group people. I was there pretending to be a supporter of Karuna group. Actually Karuna and his members had kind of a suspicion on me. A person called Rumbo had told me Karuna had told that don’t trust this person, he come from that side.

69    At the conclusion of the interview, the applicant was told that the material consideration in the assessment of his temporary protection visa application was going to be whether or not there were serious reasons for considering that he knowingly contributed to the commission of war crimes or crimes against humanity. The applicant was asked to comment on that, to which he answered: [CB560]

Honestly, I didn’t do any crime against humanity or war crime. I haven’t involved in any war crime. Actually, they tricked me into agree or they forced me or took me and made me join the army and I think [Colonel R] wants me to leave here because no one from our area was there. In our area or in our village there used to be (indistinct) and his people in relation to the temples and all other stuffs, and he has shot four or five people from other area. He shot them saying that they had commissioned with the military. Everyone in the village knew about this. Later on I came to know because no one from us were joined in the movement, that’s why he want me to join. That’s why he forcibly took me. He has shot some of our village boys. The reason I didn’t run away was if he – if I run he will either shoot me or shoot – he will do something bad to my family. Mostly everyone in the village knew about his previous activity.

70    On 6 February 2017, the applicant’s then representatives made submissions to the Department based on his evidence to the delegate. [CB389] There is nothing material in the submissions by way of evidence, although, as will be seen, the Tribunal referred to the submissions in its decision.

C    THE DELEGATE’S DECISION

71    On 24 July 2017, the Department notified the applicant of the refusal of his application for a temporary protection visa because he did not satisfy s 36(2) of the Migration Act; that he was not someone to whom Australia has protection obligations.

72    The delegate set out his reasons in a protection visa decision record. After setting out a number of factual findings, he found that there were serious reasons for considering the applicant had committed a crime against the peace, a war crime or a crime against humanity as defined by international instrument prescribed by the regulations as referred to in s 5H(2)(a) of the Migration Act. The result was that the applicant was excluded from being a refugee in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Migration Act. [CB30]

73    The delegate also found that although he was satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm, the applicant is ineligible for complementary protection under s 36(2C)(a)(i) of the Migration Act. That was on the basis of the same conclusion with regard to the applicant having committed a crime against the peace, a war crime or a crime against humanity. [CB30-31]

74    The delegate noted that the applicant had not been entirely truthful when speaking to the Australian government but that the more frequently a person is asked to describe events, the more likely it is that inconsistencies will emerge; particularly if the events took place a long time ago.

D    FIRST TRIBUNAL HEARING

75    The applicant sought to have the decision of the delegate reviewed in the Tribunal. The Tribunal decision was published on 5 April 2019, but it was set aside by order of this Court on 30 August 2019. It is not the decision under review in this proceeding and its findings are irrelevant; however, the evidence and transcript of the applicant’s evidence at the first Tribunal hearing was tendered in the second Tribunal hearing. The relevant parts are summarised below.

76    On being asked whether the applicant knew of examples of others involved in the LTTE bombing civilian targets, the applicant replied that he did not know of incidents where civilians were targeted, but rather that civilians were attacked in some incidents and that “the movement never told to kill civilians”. [CB605:4-7] The applicant also said that he did not know the “whole details” of what the intelligence wing of the LTTE was planning. [CB604:45]

77    In relation to the Tooth Temple attack, the applicant said that he had heard that the military had attacked the Tooth Temple and that a lot of civilians were killed but he was not sure about the full details. He said that if the LTTE wanted to target civilians, “they would have done it somewhere else”. [CB605:24-30]

78    The applicant was also asked about the bombing of the Colombo Central Bank in 1996, the bombing of the Dehiwala train in 1996, the bombing of the World Trade Centre building in Colombo in 1997, and the attack on Colombo International Airport in 2001. The applicant said he had heard of these attacks but everyone in Sri Lanka had. Also, he could not confirm if they were all civilian targets or if they had any military reason for the attacks. He was nonetheless aware that the intelligence wing of the LTTE was facilitating at least some of the attacks and that “everyone knew” Brother Charles may be involved. However, he said “I have not done any of this acts”. [CB606:9-30]

79    The applicant said that he was not present when Mahattaya was questioned in 1994 nor did he write the report; the applicant was “a small person” and “the senior people” questioned Mahattaya. [CB624:1-9]

80    In relation to sending boys to Colombo in the period 1998 to 2001, during which time the Tooth Temple at Kandy was attacked, the applicant said that he did not know what was going to happen. He said: [CB631:13-22]

They told they have to send one person to Kandy and they told he has to be sent and I did the arrangement, that’s it. They don’t tell what is going to happen… When they send, they won’t tell us or the person who is making the arrangement why these people are going. They will just tell this person is going for tour. They won’t tell that they go to – they are planning an attack, because the news can’t leak, then it’s problem and we can’t ask, they won’t tell.

81    The applicant further said that he did not know what boy would undertake a suicide attack. He said “[s]ometime the boy who I seen, if he doesn’t return then I have to think into myself that he’s the one did that”. He also said that “[t]hey won’t tell the information like where they are going to go or anything like that. Even we can’t ask those informations [sic] from those boys because if anything happen to the boy, then they will shoot us, they shoot me. Everything because of fear, because of the fear can’t ask any questions.” [CB632:42-44, 634:8-11]

82    The applicant said that the attack on the Tooth Temple was carried out by the Black Tigers, part of the intelligence wing, and was organised by Brother Charles. The applicant sent one boy to Kandy but was told it was for “sightseeing”; he is not sure if the boy “has done that”. [CB648, 649: 24-33]

83    In relation to the sleep deprivation at Vithuran’s gaol base, the applicant said “sometimes I have to make sure the person they question doesn’t go to sleep. He is awake. That task will be given in a routine. Like, everyone will have one hour. On top of that, I was doing cooking and other tasks.” [CB652:34-37]

84    The applicant also said that he would be punished if he did not do what he was told during an interrogation, which included “they can send to do fighting”. [CB682: 13-16] The applicant also said that he was not involved in any of the discussions about the planning of the attacks in Colombo; they were “only done by the people who are in charge and they will do in a confidential manner”. [CB682: 18-46] The applicant said later on, to a broader question about why he did not leave the LTTE, that “[i]f I run away they will shoot me and my family is living in their controlled area”. [CB682:41-2] He added that he was not allowed to question what he was sending a boy to do: “I can’t ask and at the same time never question that for my own safety”. [CB684: 18-20] Further, that “if I ask something and if that boy get into any other trouble and anything happened to that boy, they will suspect me and they will harm me. That has done previously to others. The movement boys was shot in front of me. I have witnessed.” [CB684: 25-28]

85    In a statement of evidence, and in relation to the stick beatings, the applicant said that “I tried my utmost to only inflict as little pain as possible without arousing the suspicion of the [Karuna Group] officials”. [CB768/47(e)].

E    THE SECOND TRIBUNAL DECISION

86    The decision under review in this proceeding was published on 14 May 2021 (T). The Tribunal put the issue for determination as whether there are serious reasons for considering that the applicant has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments prescribed by the applicable regulation: T[2].

87    After setting out the relevant legislative framework and a brief background, the Tribunal dealt with a preliminary question relating to whether the Tribunal’s statutory task involved a consideration of evidence or submission concerning the current state of affairs in Sri Lanka.

88    The respondent argued that material concerning the current state of affairs in Sri Lanka was irrelevant, as it did not fall within the ambit of the Tribunal’s statutory task when one construes and applies s 5H(2) of the Migration Act. The applicant argued that in relation to this section the Tribunal was bound to undertake a balancing exercise, apply the proportionality test, and consider Australia’s non-refoulement obligations. Further, that the proportionality test should be applied in reaching a decision that there are “serious reasons for considering” the commission of the relevant crimes under the section: T[29]-[32].

89    After a review of the authorities, the Tribunal decided that proportionality analysis cannot be introduced into a consideration of whether there are serious reasons for considering that an applicant has committed a serious non-political crime as referred to in s 5H(2)(b). The Tribunal considered that consistency of construction leads to a conclusion that the same analysis must apply when determining whether there are serious reasons for considering that an applicant for a protection visa has committed a war crime or a crime against humanity as referred to in s 5H(2)(a). Accordingly, the preliminary ruling was made in favour of the Minister: T[46]-[50].

90    The Tribunal then dealt with choice of law, namely the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), the relevant tests contained in that Statute, and the applicant’s position concerning the evidence. The Tribunal then set out its observations on the evidence.

91    The Tribunal noted that in his initial entry interview the applicant provided false information in relation to his involvement with the LTTE, namely that he only sold the LTTE items, that he had never received any training in preparation for conflict, and that he had never been involved in any military service: T[86]-[88].    

92    The Tribunal then considered the applicant’s answers to his request for refugee status assessment. Again, the applicant falsely answered “no” to a question asking if he had ever served in a military or paramilitary organisation. The applicant also misleadingly did not disclose that he had used a bogus passport: T[95]-[96].

93    The Tribunal concluded that these answers “do not reflect well on him”, particularly because he had had the benefit of advice from a migration agent at a law firm. The Tribunal’s view was that these answers “must affect his credibility”: T[99]. The applicant also gave other false or misleading answers: T[106]-[107], [109], [111].

94    The statutory declaration accompanying the refugee status assessment did not accurately recount the applicant’s history with the LTTE, which the Tribunal viewed as false or misleading or both: T[102]. The Tribunal noted that during the first Tribunal hearing the applicant admitted that the statutory declaration was a made-up story which incorporated some elements of truth. The applicant said that he gave this declaration because the people smuggler who sent him to Australia in the boat told him that if he informed authorities that he belonged to the LTTE he would not get a visa: T[104].

95    The Tribunal found it implausible that the applicant would prefer the advice of a people smuggler over a migration agent. Thus, the false information given was done so deliberately: T[105]. The Tribunal took the view that the false statements and misrepresentation “quite consciously and deliberately, reflects very poorly on his character, not to mention his credibility”: T[108]. As an aside, there is palpable irony in this finding by the Tribunal which was apparently missed by it – the impugned advice of the people smuggler was prescient in light of the decision of the Tribunal to refuse the applicant a protection visa on account of his involvement with the LTTE, being the very involvement that the people smuggler advised against revealing.

96    Turning to the 5 May 2010 letter that amended the applicant’s claims, the Tribunal noted the independent merits reviewer’s comments about the serious inconsistencies in the applicant’s account of his motives for returning to Sri Lanka in 2005. In circumstances where the applicant had advice and still did not provide the independent merits reviewer the true story of his involvement with the LTTE, the Tribunal took the view that “this failure to tell the truth in all respects reflects extremely poorly on the Applicant’s credibility”: T[119].

97    The Tribunal noted that the applicant had said the Stone report and the Cornall report were accurate as to his involvement with the LTTE and that he had told ASIO the truth: T[121], [124].

98    In addressing the inconsistencies in the applicant’s versions of events, the Tribunal accepted that the applicant suffers from mental health issues and that there was material supporting the applicant’s contention that he has difficulty recalling details and/or important aspects of traumatic events. However, the Tribunal considered that these issues did not explain the considerably different versions of events that the applicant had furnished and therefore his credibility was “highly questionable”: T[126]-[129].

99    In reliance on the interviews with the delegate on 31 January and 1 February 2017 and his interview with ASIO as summarised in the Stone report, the Tribunal proceeded to set out the applicant’s involvement with the LTTE: T[130]-[150].

100    In traversing this material, the Tribunal made the following observations. First, in relation to his arrest in 2004, and the claim that he informed Mathavan Master following time in gaol that he did not wish to remain with the LTTE, that this is inconsistent with the applicant’s evidence in several places that leaving the LTTE was not an option. The Tribunal’s view was that it clearly was an option, and the applicant was confident enough to speak to a senior LTTE officer about doing so. Secondly, in relation to his time in Qatar and his refusal of an order to kill Kurvi, that this was an example of the applicant’s readiness to refuse to follow directions or orders given to him by very senior officers of the LTTE. He was not subjected to any discipline, threats or retribution for his defiance of orders that were given to him: T[144], [146].

101    The Tribunal then, under the heading “Consideration”, first dealt with the applicant’s arranging of travel. The Tribunal made the following findings. First, that there are serious reasons for considering that the applicant facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder in relation to the suicide attacks in Colombo, organised by Brother Charles or the intelligence wing of LTTE: T[157], [161], [164].

102    In relation to the attack at the Temple of the Tooth Relic in Kandy, where the applicant said he was responsible for sending one of the boys, the Tribunal found that this admission gave rise to serious reasons for considering that the applicant facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder: T[165]-[166].

103    The Tribunal did not accept the applicant’s evidence that he did not know the suicide attack targets were civilian targets, namely the Colombo Central Bank, the Behiwala train, the World Trade Centre building in Colombo or the Colombo International Airport. Further, that by mid-2005-2007, the applicant “must surely have known” that sending boys to Colombo included the possibility that they would undertake suicide missions; this was especially so in circumstances where he was “obviously a trusted intelligence official, at, it would appear, a significant level”: T[170], [173]-[174].

104    The Tribunal accordingly found that there were serious reasons for considering that the applicant has facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder. He facilitated attacks of which the objects were civilians or civilian targets who were not engaged in the conflict. One or more persons were killed, and such persons were civilians. It was said that the applicant was aware of the factual circumstances that established their status. He was aware of the factual circumstances that established the existence of an armed conflict. Such armed conflict was not of an international character: T[175].

105    While the applicant did not carry out the attacks, the Tribunal found that Art 25(3) of the Rome Statute operated on the applicant because he facilitated the travel to those who did; he solicited and induced the commission of the crimes: T[176].

106    The Tribunal also considered that there were serious reasons for considering that the mental element provided for in Art 30 of the Rome Statute had been satisfied. The Tribunal considered that the applicant had awareness of the circumstances or consequences occurring in the ordinary course of events when he arranged the safe travel of boys to Colombo to do various “jobs” for Brother Charles. He knew that Brother Charles was arranging suicide attacks: T[177].

107    Next, the Tribunal turned to reporting spies, interrogation and torture. The Tribunal considered that the applicant was an active participant in the interrogation process, which he knew involved torturing victims. In obtaining a signed confession from the torture victim, he was therefore playing a very important role in the process: T[181].

108    Regarding the applicant’s involvement in sleep deprivation and stick beatings, the Tribunal said that the facts relevant to these events satisfied the first two elements of the war crime of torture for the purposes of Art 8(2)(c)(i) of the Rome Statute. The Tribunal also considered that the applicant had attempted to downplay his role in the beatings by saying he was an infiltrator in the Karuna Group. The evidence was that such persons being tortured were either hors de combat or civilians and the applicant was aware of that: T[193], [197]-[198].

109    As for the applicant’s role in interrogations, where he heard screaming and saw people with their nails removed, among other things, while at J Section, the Tribunal considered these matters raised serious concerns that his presence at these interrogations involved the commission of a war crime jointly with others. It also considered that there must be serious concerns that he aided, abetted or otherwise assisted in the commission or attempted commission of such crimes by a group of persons acting with a common purpose, specifically he wrote reports: T[199].

110    On the issue of reporting spies, the Tribunal’s view was that the applicant was well aware that suspected spies were usually interrogated, frequently tortured, then publicly humiliated, shamed and shot in the presence of villagers. That awareness it was said satisfied the elements of the war crime of murder under Art 8(2)(c)(i) of the Rome Statute. It also satisfied the elements of the crime against humanity of murder for the purposes of Art 7(1)(a). Such conduct on the part of the applicant contributed to the commission of such a crime by exposing the victims to the fate of death. To the extent the applicant did contribute to the commission of such a crime, this would fall within the concept of individual criminal responsibility as identified in Art 25(3): T[202].

111    For completeness, the Tribunal noted that that the mental element addressed in Art 30 of the Rome Statute has also been established concerning the reporting of suspected spies, interrogation and torture. The Tribunal therefore concluded that there were serious reasons for considering that the applicant had committed war crimes and crimes against humanity of murder and torture: T[203]-[204].

112    The Tribunal then turned to the applicant’s defences, beginning with duress. In finding that the applicant could not avail himself of the defence of duress, the Tribunal said that none of the matters relied upon by him that had emerged in the evidence and in particular in the several statements that he had made can be said to amount to duress resulting from the threat of imminent death or of continuing imminent serious bodily harm within the meaning of Art 31(1)(d) of the Rome Statute. The Tribunal said the applicant’s claims were generalised assertions which are to be viewed in light of the findings against his credibility and false declarations: T[209].

113    The Tribunal noted that the applicant did not give evidence of, and there was no evidence that the applicant had been threatened with, imminent death or continuing or imminent serious bodily harm in the event that he disobeyed orders by refusing to facilitate Black Tiger operations or report suspected spies: T[210].

114    There was specific evidence that he refused such orders without relevant consequence to him or his family, including that while undercover with the Karuna Group, he refused a direct order to assassinate Satchu Master. There were no apparent repercussions or punishment; and during his time in Qatar, a direct order to assassinate Kuruvi was defied. By reason of this defiance he was recalled to Sri Lanka and ordered to resume his previous duties: T[211]-[213].

115    The Tribunal also added that the applicant was involved with the LTTE for over 19 years, including as a high-level and respected intelligence officer, so it was difficult to accept his claim that his involvement was forced: T[216]-[218].

116    The Tribunal then considered the defence of superior orders. It noted that little by way of evidence and contentions separate from the defence of duress had been advanced in support of the argument that the applicant acted under the orders of his superiors. The Tribunal found there was no evidence directed to the second limb of Art 33(1) and the third limb was not addressed in the evidence or submissions: T[221]-[225].

117    The Tribunal considered that there were serious reasons for considering that the defence of superior orders does not apply because any orders to carry out the acts in question would have been manifestly unlawful: T[227].

118    Finally, the Tribunal considered the defence of involuntariness. The Tribunal said that even if one accepts that the applicant was forcibly recruited by the LTTE as he contended, it cannot be said that the remainder of his acts and his involvement over approximately 19 years’ membership of that organisation were involuntary. Further, there were facts that demonstrated that he was able to disobey directions and/or orders and, in reality, he brought his own free will to the tasks and actions that he engaged in. The acts of disobeying the directions or orders identified are indicative of someone who was a ready, willing and active participant and not acting involuntarily. Accordingly, the defence was not made out: T[233]-[239].

119    In conclusion, the Tribunal found that there are serious reasons for considering that the applicant committed war crimes and crimes against humanity as set out in s 5H(2)(a) of the Migration Act. By reason of such finding, the applicant was ineligible for a grant of a protection visa on complementary protection grounds under s 36(2C). Consequently, the Tribunal affirmed the reviewable decision: T[240].

F    GROUNDS OF REVIEW

120    The applicant’s grounds of review in this Court are the following:

1.    The finding that there were serious reasons for considering that the Applicant had committed war crimes was a finding that was not reasonably open on the materials before the Tribunal, and thereby the Tribunal fell into jurisdictional error.

2.    The finding that there were serious reasons for considering that the Applicant had committed crimes against humanity was a finding that was not reasonably open on the materials before the Tribunal, and thereby the Tribunal fell into jurisdictional error.

3.    In finding that there were serious reasons for considering that the Applicant had committed war crimes and crimes against humanity the Tribunal erred in the construction and application of s 5H(2)(a) of the Migration Act 1958 (Cth) (the Act) and consequently fell into jurisdictional error.

4.    In finding

a.    that material tendered to demonstrate the extent of personal risk faced by the Applicant should he be returned to Sri Lanka was inadmissible;

b.    that the Tribunal should not consider current or prospective risks to the Applicant should he be returned to Sri Lanka; and

c.    that the Tribunal should not consider the proportionality of the conduct alleged of the Applicant and the consequences of exclusion under s 5H(2)(a) to the Applicant;

the Tribunal adopted an erroneous construction of s 5H(2)(a) and thereby committed jurisdictional error.

5.    The finding that the circumstances of the Applicant’s involvement with the LTTE gave rise to a serious reason to consider that the Applicant had committed war crimes or crimes against humanity by reason of the application of the extended operation of Article 25(3) of the Rome Statute was a finding that:

a.    was not reasonably open on the materials before the Tribunal;

b.    involved an erroneous construction of Article 25(3);

and consequently the Tribunal fell into jurisdictional error.

6.    The Tribunal failed to consider the mental element of the defence of duress pursuant to Article 30 of the Rome Statute of the International Criminal Court (Rome Statute) and thereby:

a.    denied the Applicant procedural fairness;

b.    failed to take into account a relevant consideration;

c.    failed to apply the international instrument prescribed by s 5H(2)(a) in accordance with the principles of interpretation applicable to that instrument required by international and Australian law;

and consequently fell into jurisdictional error.

7.    In finding that there were serious reasons for considering that the Applicant had committed war crimes the Tribunal failed to give proper consideration to the totality of the circumstances of the Applicant, including that the Applicant had been forcibly recruited into the Liberation Tigers of Tamil Eelam as a minor, and thereby:

a.    denied the Applicant procedural fairness; and/or

b.    failed to take into account a relevant consideration,

and consequently fell into jurisdictional error.

121    The applicant’s submissions, both in writing and orally, were not directed at identified or identifiable grounds of review; rather, they ranged generally and broadly over the law and the evidence. In seeking to ensure that I do them justice, I have adopted the Minister’s analysis of the matter as raising the following issues:

(1)    whether the Tribunal misconstrued its statutory task under s 5H(2)(a) of the Migration Act (grounds 3, 4 and 5(b));

(2)    whether the Tribunal had evidence to support its various findings, and, if so, whether its reasons were irrational so as to disclose jurisdictional error, including by reference to the proper construction of Art 25(3) of the Rome Statute (grounds 1, 2 and 5(a));

(3)    whether the Tribunal failed to apply the correct law in determining that the defence of “duress” does not apply (ground 6); and

(4)    whether the Tribunal failed to properly consider the totality of the applicant’s circumstances, including his forcible recruitment into the LTTE as a minor (ground 7).

122    I will deal with the issues in that order. Before doing so, it will be helpful to set out the relevant statutory and convention provisions.

G    LEGISLATIVE AND TREATY FRAMEWORK

123    The key provision in this proceeding is s 5H of the Migration Act:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

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

124    Section 5H can be seen as the legislative embodiment of Arts 1A(2) and 1F of the Refugees Convention. Article 1F of the Refugees Convention is in the following terms:

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.

125    The definition of refugee in s 5H of the Migration Act is picked up by s 36(2)(a) which identifies the criterion for a protection visa as Australia having protection obligations in respect of a person because they are a refugee.

126    Section 36(2)(aa) sets out the criterion for a protection visa on the basis of what is referred to as complementary protection. Section 36(2C)(a)(i)-(iii) then provides that the criterion for complementary protection is not satisfied if the Minister has serious reasons for considering that any one of three circumstances exists, which circumstances are identical to those set out in s 5H(2)(a)-(c). The result is that the applicant’s ineligibility for a protection visa both on refugee and complementary protection grounds turns on the same question of whether there are serious reasons for considering that he committed one or more of the prescribed crimes in ss 5H(2)(a) and 36(2C)(a)(i). For convenience, like the parties I will refer to s 5H(2) but the reasoning applies equally to s 36(2C)(a).

127    Regulation 2.03B of the Migration Regulations 1994 (Cth) sets out each international instrument that defines a crime against peace, a war crime or a crime against humanity as referred to in s 5H(2)(a). Those instruments relevantly include the Rome Statute.

128    The relevant Articles of the Rome Statute are the following:

Article 7

Crimes against humanity

1.     For the purpose of this Statute, “crime 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:

(a)    Murder;

…

(f)    Torture;

…

2.    For the purpose of paragraph 1:

(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 organizational 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;

Article 8

War crimes

1.    The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

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:

…

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

(b)    Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i)    Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)    Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

…

(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;

…

(d)    Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e)    Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i)    Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

…

Article 9

Elements of Crimes

1.    Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

129    It is to be observed that under Art 8(2)(f), Art 8(2)(e) “applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. It is common ground that the Sri Lankan civil war amounted to such a conflict.

130    The Elements of Crimes document referred to in Art 9 provides for the following:

Article 7(1)(a)

Crime against humanity of murder

Elements

1.    The perpetrator killed one or more persons.

2.    The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

3.    The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

...

Article 7(1)(f)

Crime against humanity of torture

Elements

1.    The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2.    Such person or persons were in the custody or under the control of the perpetrator.

3.    Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.

4.    The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

5.    The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

…

Article 8(2)(c)(i)

War crime of murder

Elements

1.    The perpetrator killed one or more persons.

2.    Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.

3.    The perpetrator was aware of the factual circumstances that established this status.

4.    The conduct took place in the context of and was associated with an armed conflict not of an international character.

5.    The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

…

Article 8(2)(c)(i)

War crime of torture

Elements

1.    The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2.    The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.

3.    Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

4.    The perpetrator was aware of the factual circumstances that established this status.

5.    The conduct took place in the context of and was associated with an armed conflict not of an international character.

6.    The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

...

Article 8(2)(e)(i)

War crime of attacking civilians

Elements

1.    The perpetrator directed an attack.

2.    The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

3.    The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

4.    The conduct took place in the context of and was associated with an armed conflict not of an international character.

5.    The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

131    Article 22 of the Rome Statute provides that the definition of a crime shall be strictly construed and shall not be extended by analogy.

132    The Rome Statute also has Articles relevant to accessorial criminal responsibility and the requisite mental element:

Article 25

Individual criminal responsibility

…

3.    In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a)    Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b)    Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c)    For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d)    In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i)    Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii)     Be made in the knowledge of the intention of the group to commit the crime; …

Article 30

Mental element

1.    Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2.    For the purposes of this article, a person has intent where:

(a)    In relation to conduct, that person means to engage in the conduct;

(b)    In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3.    For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

133    As will be seen, Arts 25(3)(c) and (d) are particularly pertinent in what follows. They are forms of accessorial liability on the basis that the accused “aids, abets or otherwise assists” in the commission of the crime or the accused “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose” respectively.

134    The Rome Statute has Articles dealing with defences to the crimes set out above:

Article 31

Grounds for excluding criminal responsibility

1.    In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

…    

(d)    The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(i)    Made by other persons; or

(ii)     Constituted by other circumstances beyond that person’s control.

135    I turn now to the issues raised by the grounds of review.

H    ISSUE 1: WHETHER THE TRIBUNAL MISCONSTRUED ITS STATUTORY TASK (GROUNDS 3, 4 AND 5(B))

H.1    The applicant’s submissions

136    The applicant submits that the relevant international crimes relate only to conduct of the utmost gravity so as to be deserving of international criminal liability. He submits that proportionality requires that because of the highly significant consequences for a refugee in being denied protection that they would otherwise enjoy, Art 1F of the Refugees Convention (and hence s 5H(2) of the Migration Act) is to be applied only to the most serious and grave conduct, clearly encompassed by international criminal law, and not to conduct at the margins, or where international criminal law lacks clarity.

137    The applicant submits that the “serious reasons for considering” test pursuant to s 5H(2)(a) engages a heightened civil standard requiring “strong” and logically probative evidence. In that regard, the applicant refers to FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1 at [14]-[16] per French CJ and Gageler J. The applicant submits that Art1F and s 5H(2) are exceptions to the object and purpose of the Refugees Convention, which, with reference to its preamble, is to ensure the widest possible protection for refugees throughout the world. The exclusions must accordingly be construed narrowly, and in a manner consistent with the Convention’s humanitarian object and purpose. The applicant refers to R (on the application of JS) (Sri Lanka) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 15; [2011] 1 AC 184 at [2] and [3] in that regard.

138    The applicant submits that the statutory task under s 5H(2)(a) is necessarily to identify conduct that is sufficiently grave so as to trigger the disentitlement to protection. That is not only because international law requires such an approach, but because it is a consequence of the application of proportionality analysis. The applicant refers to NADB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; 126 FCR 453 at [41] per Merkel J, Madgwick and Conti JJ agreeing, in support of that proposition.

139    The applicant submits that such a “strict approach” is supported by KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 at [37]-[38], R (On the application of JS) at [38], The Prosecutor v Tadić, IT-94-1-A, ICC Appeals Chamber Judgment, 15 July 1999; (1999) 9 IHRR 1051 at [186], The Prosecutor v Brdjanin, IT-99-36-A, ICC Appeals Chamber Judgment, 3 April 2007 at [427]-[430].

140    On the basis of those submissions, the applicant submits that the conclusions of the Tribunal at T[175] and [197] in relation to the actual conduct of the applicant are inconsistent with the adoption of a narrow or proportionate construction of Art 25(3)(d) of the Rome Statute consistent with the international meaning to be given to that provision.

H.2    Consideration

141    The applicant’s case is that the Tribunal made errors of law in its construction of the requirement that there are “serious reasons for considering” that certain crimes were committed by the applicant, and in its construction of Art 25 of the Rome Statute with regard to individual criminal responsibility. It is convenient to consider those two aspects separately. I will then consider a third aspect to the submissions, which is that the present and future conditions in Sri Lanka are relevant to the inquiry under s 5H(2) of the Migration Act.

H.2.1    “Serious reasons for considering”

142    The applicant’s submission with regard to proportionality is essentially that the offences in the Rome Statute must be restrictively interpreted because of the harsh consequences of refoulement that would be faced by someone in respect of whom it is determined that there are serious reasons for considering that they have committed such an offence. Review ground 4 also asserts that the harsh consequences faced by the applicant in this case if he is returned to Sri Lanka bear on the construction of s 5H(2)(a).

143    That approach overlooks that s 5H(2)(a) of the Migration Act incorporates the interaction of, relevantly, two international conventions, the Refugees Convention and the Rome Statute. The applicant’s submissions focus on the former in drawing attention to the harsh consequences of refoulement and on that basis contend for the restrictive interpretation of the relevant offences in the latter. That would have the result that the offences would be interpreted differently depending on the circumstances in which they were relevant. However, the Rome Statute sets international norms of conduct that apply universally. Those norms cannot be different depending on whether they are invoked in the context of Art 1F(a) of the Refugees Convention as opposed to, say, the context of a prosecution in the International Criminal Court. To the extent that proportionality plays a role it can therefore only be in the construction of the chapeau to s 5H(2) (or Art 1F) and not to the offences in paragraph (a). Also, it cannot be that the circumstances of a particular individual bear on the construction of a statutory provision as the provision applies normatively and must have the same meaning for all people.

144    In FTZK, the High Court gave meaning and content to the requirement of “serious reasons for considering” in the chapeau to s 5H(2) of the Migration Act. The appellant was denied refugee status under Art 1F(b) of the Refugees Convention, i.e., that there were serious reasons for considering that he had committed a “serious non-political crime”. The relevant conduct was that he had been implicated in the kidnapping and murder of a student in China where criminal charges were pending against him.

145    The two questions that arose in the appeal were (1) what was required in determining whether there were “serious reasons for considering” that the appellant had committed “serious non-political crime[s]”, and (2) whether the Tribunal had taken into account irrelevant matters: [10] per French CJ and Gageler J and [46] per Crennan and Bell JJ. The proposition that the consequences of refoulement for an individual applicant for refuge should inform the application of the criterion of “serious reasons for considering” that the applicant has committed a serious non-political crime was not reached (at [12], [47] and [99]), although French CJ and Gageler J said that that proposition does not fit readily with the logical structure of Art 1F(b) (at [12]).

146    The following can be drawn from the joint concurring judgment of French CJ and Gageler J:

(1)    The requirement that there be “reasons for considering” that an applicant for refuge has committed a proscribed crime indicates that there must be material before the receiving State which provides a rational foundation for that inference: [13].

(2)    The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference: [14].

(3)    The position was stated accurately by Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; 106 FCR 465 at [54], namely:

It is sufficient … if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged; to meet that requirement the evidence must be capable of being regarded as “strong”. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.

(At [14].)

(4)    Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection: [14].

(5)    With reference to WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; 138 FCR 579 at [52] per French J, the criterion of serious reasons for considering does not require anything less than “meticulous investigation and solid grounds”: [16].

(6)    The decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the Article poses: [16].

147    Hayne J, in a separate concurring judgment, held that the decision-maker must actually be persuaded that the matters advanced in support of the proposition that the person has committed a crime of the identified kind “are serious reasons for considering that the person concerned has committed the crime: that is, that the matters are or give serious reasons for considering that the relevant proposition is true” (emphasis in the original): [32]. The decision-maker must be persuaded of the existence of serious reasons for considering that the person has committed the crime, not of actual guilt: [37].

148    The following can be drawn from the joint concurring judgment of Crennan and Bell JJ:

(1)    With reference to Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745 at [16], Art 1F (particularly Art 1F(c)) should be “interpreted restrictively and applied with” caution because of the serious consequences of excluding from protection under the Convention a person who has a well-founded fear of persecution: [74]-[75].

(2)    The statements by Weinberg J in Arquita endorsed by French CJ and Gageler J referred to and quoted above (at [146]) were apparently endorsed by Crennan and Bell JJ: [80]-[81].

(3)    The following passage in Al-Sirri (at [75]) draws together international consensus about an exacting standard of satisfaction which is not derived from domestic standards of proof:

This leads us to draw the following conclusions: (1) “Serious reasons” is stronger than “reasonable grounds”. (2) The evidence from which those reasons are derived must be “clear and credible” or “strong”. (3) “Considering” is stronger than “suspecting”. In our view it is also stronger than “believing”. It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question.

(At [82]-[83].)

149    In summary, the requirement of “serious reasons for considering” requires that there is a rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision-maker is required.

150    It can be seen from the above that the generally serious consequences of refoulement – but not the particular consequences in an individual case – are taken into account in giving meaning and content to the requirement that there be “serious reasons for considering”. The particular consequences are also not taken into account in the construction of the elements of the relevant crimes. The reasoning of the High Court in relation to the meaning and content of the requirement that there be “serious reasons for considering” applies equally to Art 1F(a) as it does to Art 1F(b). It is therefore that meaning that the Tribunal was required to apply, and it is the meaning that I am required to apply.

151    The applicant refers to NADB (at [41]) where it was said that in determining whether the disqualifying crime is “serious” it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, that was said in the context of giving meaning and content to the expression “serious non-political crimes” in Art 1F(b) – the word “serious” imports considerations of gravity to the crimes caught by paragraph (b) of Art 1F. That does not arise in the present case because the crimes captured by paragraph (a) are not qualified by the word “serious”. NADB is accordingly inapposite to the present case.

152    Insofar as the applicant’s reliance on KJ (Sri Lanka) is concerned, that case dealt with Art 1F(c), i.e., whether there were serious reasons for considering that the applicant for refugee status had been guilty of acts contrary to the purposes and principles of the United Nations. At [35], Stanley Burton LJ, with whom Dyson and Waller LJJ agreed, explained, with reference to the requirement that there be “serious reasons for considering”, that the crimes and acts referred to in each of paragraphs (a), (b) and (c) of Art 1F are serious, and the seriousness of the reasons must correspond with the seriousness of the crimes and acts in question. I do not understand that to be any different from what the High Court said in FTZK. In any event, given that KJ (Sri Lanka) pre-dates FTZK and the reasoning in the latter is binding on me, there is little assistance to be derived from the former.

153    The Tribunal did not expressly identify the meaning that it gave to the statutory provisions. It is therefore not apparent from the Tribunal’s reasons that in concluding that it had serious reasons for considering that the applicant had committed war crimes and crimes against humanity it applied the wrong test, or asked itself the wrong question, with regard to the requirement of “serious reasons for considering”. The applicant does not identify any specific error in that regard. Rather, it is by scrutinising the Tribunal’s process of reasoning and fact-finding, which is the exercise demanded by the other grounds of review, that one can answer the question whether there was evidence that could give rise to the Tribunal having serious reasons to consider, in the relevant sense, that the applicant had committed the identified crimes. If the evidence is incapable of supporting the Tribunal’s conclusion to the requisite level of satisfaction, i.e., that it had “serious reasons for considering”, then it will have made a jurisdictional error in respect of that conclusion.

154    Although I have rejected the applicant’s submission that the offences referred to in Art 1F(a) must be narrowly or strictly construed because of the refugee context in which they are to be applied, it is nevertheless to be observed, and kept firmly in mind, that under Art 22(1) of the Rome Statute the definition of a crime shall be strictly construed, and shall not be extended by analogy. Also, in case of ambiguity, the definition of a crime shall be interpreted in favour of the person being investigated, prosecuted or convicted.

H.2.2    Individual criminal responsibility

155    The other authorities relied on by the applicant go to the requirements for the proof of war crimes and crimes against humanity, in particular where the accused is not the primary actor but rather an actor in concert with others or in support of the primary actor. That is to say, they deal with accessorial criminal responsibility.

156    Under Art 25(3) there are relevantly two independent bases to criminal liability of a non-principal actor for a crime:

(1)    Under paragraph (c), the person is criminally responsible if, for the purpose of facilitating the commission of the crime, they aid, abet or otherwise assist in the commission or its attempted commission, including by providing the means for its commission, i.e., “aiding or abetting”.

(2)    Under paragraph (d), the person is criminally responsible if they in any way contribute to the commission or attempted commission of the crime by a group of persons acting with a common purpose, i.e., “common purpose” or, as it is sometimes referred to, “joint criminal enterprise” (JCE): see Schabas W, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., Oxford University Press, 2016) 566-567. With respect to this basis for individual criminal responsibility, the contribution must be intentional and must either (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, or (ii) be in the knowledge of the intention of the group to commit the crime.

157    I turn now to consider the cases relied on by the parties.

H.2.2.1        KJ (Sri Lanka)

158    The applicant refers specifically to paragraphs [37]-[38] of KJ (Sri Lanka). Those paragraphs reason that if the person in question was an active member of an organisation that promotes its objects only by acts of terrorism, then there will almost certainly be serious reasons for considering that they had been guilty of acts contrary to the purposes and principles of the United Nations. However, if the organisation in question pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the relevant government (such as the LTTE did), the application of Art 1F(c) is less straightforward. It was reasoned that whether or not the person was caught by Art 1F(c) would depend on whether they had participated in acts of terrorism, but the higher up in the organisation the person was the more likely will be the inference that they agree with and promote all of the organisation’s activities, including terrorism.

159    That reasoning may apply also to the question whether there are serious reasons for considering that a person has committed, relevantly, war crimes or crimes against humanity as referred to in Art 1F(a). That is to say, if the organisation pursues its objectives in a range of ways that include war crimes and crimes against humanity, mere membership of the organisation will not give rise to there being serious reasons for considering that that person committed war crimes or crimes against humanity. However, the higher up they are in the organisation, the more likely will be the inference that they agree with and promote all of its activities, including those that involve committing war crimes and crimes against humanity. However, none of that reasoning supports the applicant’s submissions with regard to the seriousness of the consequences of refoulement needing to be taken into account in interpreting the elements or requirements of the crimes in question.

160    It is to be noted that because the case dealt with Art 1F(c) of the Refugees Convention, i.e., whether the person was guilty of acts contrary to the purposes and principles of the United Nations, and not with particular crimes, it did not deal with prescribed requirements for individual criminal responsibility such as those set out in Art 25(3)(c) and (d) of the Rome Statute.

H.2.2.2        Art 25(3)(c): aiding or abetting

161    Tadić is a judgment of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (the ICTY). One of the issues on appeal was the individual criminal responsibility of the appellant for the killing of five men even though there was no evidence that he personally killed any of them. The issues with regard to that were whether the acts of one person can give rise to the criminal culpability of another where both participate in the execution of a common criminal plan, and what degree of mens rea is required in such a case. (At [185].)

162    The Appeals Chamber decided that question with reference to Art 7(1) of the Statute of the ICTY which provided that “[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” The Appeals Chamber held (at [186]) that:

Article 7(1) also sets out the parameters of personal criminal responsibility under the Statute. Any act falling under one of the five categories contained in the provision may entail the criminal responsibility of the perpetrator or whoever has participated in the crime in one of the ways specified in the same provision of the Statute.

163    The equivalent provisions in the Rome Statute which are relevant to the applicant’s case are Arts 25(3)(c) and (d), i.e., aiding or abetting and common purpose. Although those provisions obviously have elements in common with Art 7(1) of the Statute of the ICTY, the provisions are different and it is not apparent to me what support the applicant’s case derives from the decision in Tadić.

164    There are also cases in this Court dealing with accessorial criminal responsibility under the Rome Statute, although they do not make explicit whether they were considering Art 25(3)(c) or (d). They should nevertheless be considered.

165    The appellant in SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 308; 133 FCR 561 was denied refugee status under Art 1F(a) of the Refugees Convention. The appellant had been an officer of Khedimati Atela’ at-i Dawlati (KHAD) in Afghanistan in the period 1984 to 1992. KHAD was an independent directorate-general within the President’s bureau which was responsible only to the President and, through him, directly to the Revolutionary Council. It had been found by the Tribunal that during the time that the appellant was an officer of KHAD, KHAD had committed atrocities amounting to war crimes and crimes against humanity and that the appellant would have been well aware of the activities in which KHAD was involved, even if he were not himself engaged in acts of torture, violence and detention.

166    The Full Court (Mansfield, Emmett and Bennett JJ) held as follows (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.

167    On that basis the Court upheld the Tribunal’s conclusion that there were serious reasons for considering that the appellant bore criminal responsibility for having made reports to his superiors about the activities of opponents of the regime in the knowledge that KHAD would interrogate them including torturing them if they were perceived to be withholding information, even though it was not established that the people in respect of whom the appellant reported were themselves tortured.

168    In MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; 139 ALD 497, an independent merits review (IMR) found that there were serious reasons to consider that the appellant, a citizen of Sri Lanka, while a member of the LTTE was complicit in the crime against humanity of murder committed by the LTTE in Sri Lanka: [3]. Like the applicant in the present case, the appellant in MZYVM served in the intelligence unit of the LTTE. It was found that his role was to identify civilians suspected of working with the SLA in LTTE controlled areas. Once suspected persons were identified, they were detained and questioned by the central intelligence unit. The appellant’s understanding was that people of concern would be imprisoned and people of major concern to the LTTE would be shot. However, the appellant claimed that he did not know of any cases where someone he identified, detained and handed over to the central intelligence unit was subsequently killed. (At [15].)

169    The appellant’s grounds of challenge to the findings of the IMR were based on procedural fairness. There was no challenge to the conclusion by the IMR that there were serious reasons to consider that the appellant had committed the crime against humanity of murder within the meaning of Art 7(1)(a) of the Rome Statute: [47]. In summary, that was on the basis of the following findings by the IMR (extracted at [48]):

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 civilian 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. … 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.

170    There are also judgments of the International Criminal Court dealing with the requirements for aiding or abetting.

171    In Prosecutor v Jean-Pierre Bemba Gombo et al, Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/13, 19 October 2016, (Gombo TC) the Trial Chamber of the ICC held (at [84]) that accessorial liability is independent of whether the principal is identified, charged or convicted. Also (at [85]), the accessorial perpetrator under Art 25(3)(c) does not exercise control like a co-perpetrator under Art 25(3)(a) in the sense of having the power to frustrate the commission of the offence by not performing their task, but merely contributes to or otherwise assists in an offence committed by the principal perpetrator. The Trial Chamber also held as follows (references omitted):

97.     Article 30 of the Statute applies to all forms of participation under Article 25 of the Statute, including Article 25(3)(c), ‘unless otherwise provided’. Unlike other international instruments, Article 25(3)(c) of the Statute expressly sets forth a specific ‘purpose’ requirement according to which the assistant must act (‘for the purpose of facilitating the commission of such crime’). This wording introduces a higher subjective mental element and means that the accessory must have lent his or her assistance with the aim of facilitating the offence. It is not sufficient that the accessory merely knows that his or her conduct will assist the principal perpetrator in the commission of the offence. Mindful of the twofold intent of the accessory (viz. firstly, the principal offence and, secondly, the accessory’s own conduct), the Chamber clarifies that this elevated subjective standard relates to the accessory’s facilitation, not the principal offence.

98.     Additionally, liability for aiding and abetting an offence requires proof that the accessory also had intent with regard to the principal offence pursuant to Article 30 of the Statute, which applies by default. This means that the aider or abettor must at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events. Finally, it is not necessary for the accessory to know the precise offence which was intended and which in the specific circumstances was committed, but he or she must be aware of its essential elements.

172    When that case went on appeal, the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo et al, Appeals against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute”, ICC-01/05-01/13, 8 March 2018, (Gombo AC) held as follows (references omitted):

1327.    … The Appeals Chamber recalls that article 25(3)(c) of the Statute provides for individual criminal responsibility of a person who “[f]or the purpose of facilitating the commission of […] a crime, aids, abets or otherwise assists in its commission or attempted commission”. The text of this provision therefore only requires that the assistance in the commission (or attempted commission) of the crime be provided for the purposes of facilitating such commission without indicating whether the conduct must have also had an effect on the commission of the offence. The Appeals Chamber considers that the actus reus under article 25(3)(c) of the Statute is certainly fulfilled when the person’s assistance in the commission of the crime facilitates or furthers the commission of the crime, as the showing of such an effect indicates that the person indeed assisted in its commission. Whether a certain conduct amounts to “assistance in the commission of the crime” within the meaning of article 25(3)(c) of the Statute even without the showing of such an effect can only be determined in light of the facts of each case. …

…

1329.    … Article 25(3)(c) of the Statute provides that a person shall be criminally responsible for a crime if he or she “aids, abets or otherwise assists in its commission or its attempted commission”. Nothing in this provision requires that an accessory aid, abet or otherwise assist a specific person, whether considered a “principal perpetrator”, “intermediary perpetrator”, or otherwise; rather, individual criminal liability under article 25(3)(c) of the Statute is established in reference to the assistance in the commission or attempted commission of a crime.

173    To summarise the requirements of Art 25(3)(c):

(1)    It is not necessary that there be a finding with respect to a specific incident (SHCB at [23]) or perpetrator (Gombo AC at [1329]).

(2)    The accessory must have lent their assistance with the aim of facilitating the offence. It is not sufficient that the accessory merely knows that their conduct will assist the principal perpetrator in the commission of the offence (Gombo TC at [97]).

(3)    The aider or abettor must at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events, although it is not necessary to know the precise offence, only the essential elements (Gombo TC at [98]).

(4)    The accessory must facilitate or further the commission of the crime (Gombo AC at [1327]).

H.2.2.3        Art 25(3)(d): common purpose or joint criminal enterprise

174    In Tadić, the Appeals Chamber of the ICTY identified three distinct categories of collective criminality encompassed by the notion of common purpose (or JCE) from cases concerning war crimes in the post-World War II period (at [195]). The first category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention (at [196]). The second category, embracing the so-called “concentration camp” cases, applied the notion of common purpose to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps, i.e., by groups of persons acting pursuant to a concerted plan (at [202]). The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose (at [204]).

175    Brdjanin is also a decision of the Appeals Chamber of the ICTY. One of the issues was whether the appellant was guilty on account of participation in a JCE. The Appeals Chamber set out at some length the requirements for such liability. With reference to the three categories of JCE identified in Tadić, the Appeals Chamber held as follows:

(1)    With respect to the first category of JCE liability, the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission. (At [365].)

(2)    With respect to the second category, the accused must be shown to have personal knowledge of an organised criminal system and intend to further the criminal purpose of the system. (At [365].)

(3)    With respect to the third category, the accused can only be held responsible for a crime outside the common purpose if, under the circumstances of the case: (i) it was foreseeable that such a crime might be perpetrated by one of the other members of the group and (ii) the accused willingly took that risk (dolus eventualis), i.e., the accused, with the awareness that such a crime was a possible consequence of the implementation of the enterprise, decided to participate in that enterprise. The crime must be shown to have been foreseeable to the accused in particular. (At [365], [411].)

176    In Brdjanin, the Appeals Chamber held (at [427]) that to be held responsible for a crime committed pursuant to a JCE, the accused need not have performed any part of the actus reus of the perpetrated crime, but the accused must have participated in furthering the common purpose at the core of the JCE; not every type of conduct would amount to a significant enough contribution to the crime to give rise to responsibility for it. It was also emphasised (at [428]) that “JCE is not an open-ended concept that permits convictions based on guilt by association.”

177    The Appeals Chamber explained that in addition to the accused possessing the requisite intent (at [429]-[430], references omitted):

A trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime (or, for convictions under the third category of JCE, the foreseeable crime) did in fact take place. Where the principal perpetrator is not shown to belong to the JCE, the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the JCE (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise; and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible.

178    In R (On the application of JS), Lord Brown of Eaton-under-Heywood JSC delivered the principal judgment with which Lords Rodger, Walker and Kerr JJSC agreed. As will be seen, in a separate concurring judgment, Lord Hope of Craighead DPSC agreed with certain material parts of Lord Brown’s judgment.

179    Lord Brown considered the decisions of the Appeals Chamber of the ICTY in Tadić and Brdjanin. It was said (at [19]) that the three-part categorisation of collective criminality identified in Tadić had not been found to be especially helpful. That was because the third category has no relevance with regard to war crimes committed by the LTTE because there was no suggestion that such crimes were committed outside the common design of such part of the LTTE organisation as was directly responsible for them, and the second category is merely an illustration of the first. The real question was thus how the first category was to be applied.

180    Lord Brown (at [34]-[35]), adopting the same approach as that in Brdjanin at [427] and the German Federal Administrative Court in Bundesverwaltungsgerichtshof (Case No 10 C 48.07) 14 October 2008 at [21] with regard to significant or substantial contribution, held that if the person makes “a substantial contribution to” the crime, knowing that their acts or omissions will facilitate it, they come within the relevant disqualification in Art 1F. A person who substantially assists an organisation that is known to be “dedicated to achieving its aims through such violent crimes” to continue to function effectively in pursuance of its aims will be similarly disqualified.

181    Lord Brown went on (at [36]) to explain that criminal responsibility would only attach to those with the necessary mens rea (mental element), but, as Art 30 of the Rome Statute makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from their actions, they are taken to have acted with both knowledge and intent. Also (at [37]), when the accused is participating in (in the sense of assisting in or contributing to) a common plan or purpose, not necessarily to commit any specific or identifiable crime but to further the organisation’s aims by committing Art 1F crimes generally, no more needs to be established than that the accused had personal knowledge of such aims and intended to contribute to their commission.

182    Lord Brown, in closing, re-phrased the matter as follows (at [38]), which formulation was also endorsed by Lord Hope (at [49]):

I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.

183    Noting that “participation” is not a word that appears in the relevant articles of the Rome Statute, and is therefore not a requisite for criminal responsibility, Lord Hope also endorsed (at [48]) what was said by the German Administrative Court in Bundesverwaltungsgerichtshof (Case No 10 C 48.07) at [21] that the person need not have committed the crime in question but must be “personally responsible” for it, and that if a person has made a substantial contribution to the commission of the crime in the knowledge that his or her act or omission would facilitate the criminal conduct that will be sufficient.

184    With regard to Art 25(3)(d) of the Rome Statute, R (On the application of JS) that establishes that a significant or substantial contribution to the commission or attempted commission of a crime by a group of persons acting with the common purpose is required, rather than merely any contribution. In Prosecutor v Callixte Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10, 16 December 2011, the Pre-Trial Chamber of the ICC (at [284]) reasoned that a case-by-case assessment is required to determine whether particular contributions are significant. Certain factors relevant to that assessment were identified as follows (references omitted):

Guided by leading scholars and past international cases as to why defendants have been convicted as principals, convicted as accessories or acquitted altogether, the Chamber considers that several factors are useful to help assess whether the suspect’s relevant conduct amounts to a significant contribution: (i) the sustained nature of the participation after acquiring knowledge of the criminality of the group’s common purpose, (ii) any efforts made to prevent criminal activity or to impede the efficient functioning of the group’s crimes, (iii) whether the person creates or merely executes the criminal plan, (iv) the position of the suspect in the group or relative to the group and (v) perhaps most importantly, the role the suspect played vis-à-vis the seriousness and scope of the crimes committed. These factors are not a substitute for assessing the suspect’s contribution to a crime, but they can assist in the assessment.

185    With regard to the subjective elements of the offence when reliance is placed on Art 25(3)(d), the Pre-Trial Chamber reasoned as follows (at [289], references omitted):

The Chamber points out that this element is disjunctive. Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged. This stands in sharp contrast with liability under article 25(3)(a) of the Statute, where the suspect must meet the subjective elements of the crimes charged.

186    In Prosecutor v Germain Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07, 7 March 2014, the Trial Chamber of the ICC, with reference to Art 25(3)(d), held (at [1632]-[1633]) that a significant contribution is a contribution which may influence the commission of the crime, or have a bearing on the occurrence of the crime and/or the manner of its commission; conduct inconsequential and immaterial to the commission of the crime cannot be considered sufficient and constitute a contribution within the meaning of Art25(3)(d). It is the effect of the conduct on the realisation of the crime which counts – irrespective of whether the contribution is provided to a person who is or is not the perpetrator of the crime – and that the contribution may be connected to either the material elements of the crime or to its subjective elements (at [1635]).

187    To summarise the requirements of Art 25(3)(d):

(1)    The accessory must have voluntarily contributed in a significant or substantial way to the organisation’s ability to pursue its purpose of committing war crimes, aware that their assistance would in fact further that purpose (R (on the application of JS) at [38] and [49]).

(2)    A significant contribution is a contribution that may influence the commission of the crime, or have a bearing on the occurrence of the crime and/or the manner of its commission (Katanga at [1632]-[1633]) and a number of different factors may be relevant to that assessment (Mbarushimana at [284]).

(3)    It is the effect of the conduct on the realisation of the crime which counts (Katanga at [1635]).

(4)    Knowledge of the group’s criminal intentions is sufficient (for the mental element) to incur liability for contributing to a group of persons acting with a common purpose; intent to commit any specific crime is not required (Mbarushimana at [289]).

H.2.2.4        Conclusion on individual criminal responsibility

188    There is no identifiable error in the expression of the relevant requirements for individual criminal responsibility in Art 25(3)(c) and (d) of the Rome Statute in the decision of the Tribunal. Indeed, save for identifying those provisions as being relevant (T[70]) and in using words taken from the provisions in places in its reasoning (e.g., T[161]), the Tribunal did not set out any analysis of the requirements. To the extent that there is legal error relevant to these requirements, it will be able to be identified in the Tribunal’s reasoning to its conclusions with regard to the applicant’s possible guilt based on its factual findings. That is the subject of issue 2 addressed further below. Insofar as issue 1 is concerned, there is no relevant error.

H.2.3    The present and future situation in Sri Lanka

189    Grounds 4(a) and (b) under issue 1 raise a different question, namely whether the current and prospective risks to the particular applicant if returned to their receiving country should be taken into account in considering whether they are disqualified by s 5H(2) of the Migration Act (or Art 1F of the Refugees Convention).

190    In my view, there is no basis at all to the applicant’s submissions on this question. Section 5H(2) is only backward-looking; it is concerned with whether there are serious reasons for considering that the person has committed certain acts in the past. The only aspect of that inquiry which is directed at the present is the state of the evidence, i.e., whether the present evidence is sufficient as to give rise to the requisite serious reasons for considering. There is nothing in the inquiry under s 5H(2) which is directed towards the future. Grounds 4(a) and (b) must accordingly also fail.

191    Each of review grounds 3, 4 and 5(b) accordingly fails.

I    ISSUE 2: WHETHER THE EVIDENCE SUPPORTS THE FINDINGS (GROUNDS 1, 2 AND 5(A))

192    The identified grounds of review raise the question whether the Tribunal’s conclusions that there are serious reasons for considering that the applicant committed war crimes and crimes against humanity, in particular with reference to accessorial responsibility under Art 25(3) of the Rome Statute, were available on the evidence. If they were not available, then the Tribunal was in jurisdictional error.

193    The applicant identifies five categories of conduct or involvement in conduct by him in respect of which the Tribunal found that there are serious reasons for considering that he committed war crimes or crimes against humanity. That conduct is the following:

(1)    Facilitating the travel of Black Tiger operatives to Colombo or elsewhere to undertake suicide or other attacks in which civilians were killed amounting to the war crimes of murder and attacking civilians and the crime against humanity of murder (T[151]-[177]).

(2)    Reporting on suspected Sri Lankan army spies to Brother Keerthi knowing that they would likely be interrogated, tortured, publicly humiliated and killed amounting to the war crimes of torture and murder and the crimes against humanity of torture and murder (T[194]-[196], [202]-[204]).

(3)    Assisting with the interrogation of detainees during which the detainees were tortured amounting to the war crime and crime against humanity of torture (T[179]-[190], [199]-[201]).

(4)    Depriving detainees of sleep amounting to the war crime and crime against humanity of torture (T[186]-[190], [197]-[198]).

(5)    Beating Karuna Group detainees with a stick amounting to the war crime and crime against humanity of torture (T[191]-[193], [198]).

194    The only evidence before the Tribunal of the applicant’s own conduct and his role in the conduct of others was his own evidence. As dealt with above, the applicant’s evidence on these questions evolved over time. I consider that the Tribunal committed no jurisdictional error in taking the applicant’s evidence at its most damaging to him, in particular in view of the adverse impression that it had of his credibility. It is therefore not the case, as seems implicit in some of the applicant’s submissions, that the Tribunal was bound to accept the applicant’s exculpatory explanations of his conduct that he had previously admitted without equivalent qualification.

195    The first three conclusions of the Tribunal identified above (at [193])) with regard to the bases on which the applicant is disqualified under s 5H(2) of the Migration Act depend on accessorial liability with reference to Art 25(3)(c) and (d) of the Rome Statute, whereas the fourth and fifth conclusions rest on the applicant’s own actus rei as a principal actor and therefore concern the application of Art 25(3)(a).

I.1    Facilitating the travel of Black Tiger operatives – suicide bombings

196    The Tribunal’s findings on this issue were that there were serious reasons for considering that the applicant facilitated, or aided, abetted or otherwise assisted in, the commission or attempted commission of the war crime of murder, the war crime of attacking civilians and the crime against humanity of murder (T[164], [166], [174]-[177]) (see [101]-[106] above).

197    The war crime of murder (Art 8(2)(c)(i) of the Rome Statute) has the following elements (with reference to Elements of Crimes):

(1)    The perpetrator killed one or more persons.

(2)    Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.

(3)    The perpetrator was aware of the factual circumstances that establish this status.

(4)    The conduct took place in the context of and was associated with an armed conflict not of an international character.

(5)    The perpetrator was aware of factual circumstances that establish the existence of an armed conflict.

198    There is no serious controversy with regard to there being serious reasons for considering that the elements of that crime with regard to a principal perpetrator were established. Rather, the question is whether the evidence was sufficient to give rise to there being serious reasons for considering that the applicant facilitated or aided or abetted the commission of the crime within the meaning of Art 25(3)(c) or significantly contributed to its commission with the aim of furthering the criminal purpose of the group of perpetrators or in the knowledge of the intention of the group to commit a crime within the meaning of Art 25(3)(d). I will return to that question.

199    The war crime referred to as “attacking civilians” is actually the crime of “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” (Art 8(2)(e)(i)) which has the following elements:

(1)    The perpetrator directed an attack.

(2)    The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

(3)    The perpetrator intended the civilian population as such or individual civilians not taking part in hostilities to be the object of the attack.

(4)    The conduct took place in the context of and was associated with an armed conflict not of an international character.

(5)    The perpetrator was aware of factual circumstances that establish the existence of an armed conflict.

200    Once again, there is no serious controversy with regard to the elements being established with regard to some principal perpetrator. There is, however, no foundation in the evidence to any conclusion, whether based on “serious reasons for considering” or on some other basis, that the applicant facilitated or contributed to “directing” any attack. Even if he facilitated the travel of perpetrators to undertake suicide bombings with knowledge that it was likely that that is what they would do, to which I will return, that did not constitute any involvement in or substantial contribution to directing such bombings. The war crimes involving the “directing” of certain conduct are aimed at the mid-or high-level commander who directed the conduct and not at the foot soldier who carried it out: Boas G, Bischoff JL and Reid N, Elements of Crimes Under International Law – International Criminal Law Practitioner Library Series Vol II (Cambridge University Press, 2008) 301; Schabas W, The International Criminal Court: A Commentary on the Rome Statute (2nd ed, Oxford University Press, 2016), 256-259. There is no basis in the evidence for the Tribunal’s conclusion that there are serious reasons for considering that the applicant committed such a crime.

201    The crime against humanity of murder (Art 7(1)(a)) has the following elements:

(1)    The perpetrator killed one or more persons.

(2)    The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

(3)    The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

202    All three of these elements are in controversy with respect to the involvement of the applicant.

203    The applicant’s evidence on these matters is detailed above: at [28]-[29] and [33] (Stone report), [38] (statutory declaration), [58]-[62] (interview by the delegate) and [76]-[82] (evidence before the Tribunal). Further, the Cornall report set out pertinent information about the LTTE and its tactics including the use of suicide bombers attacking the civilian population (at [46] above) which the applicant accepts.

204    On the basis of that evidence I consider that it was available to the Tribunal to conclude that there are serious reasons for considering the following:

(1)    The applicant worked under the direction of Brother Charles who was the chief of military intelligence for the LTTE.

(2)    The applicant knew that military intelligence, under Brother Charles’s leadership, undertook, amongst other things, the suicide bombing of civilian targets.

(3)    The applicant knew that Brother Charles was responsible for organising “jobs” for the “boys” for whom the applicant organised safe travel and accommodation, and he deduced that those “jobs” sometimes included suicide bombings of civilian targets even though he did not know in advance of sending any particular boys that that is what they would do.

(4)    Once it became evident to him that at least some of the boys he had sent to Colombo were involved in suicide attacks, the applicant knew that there was a possibility that boys that he thereafter sent to Colombo would be engaged in suicide missions.

(5)    Suicide attacks on civilian targets as part of the LTTE’s guerrilla warfare campaign amounted to murder committed as part of a widespread or systematic attack directed against a civilian population (Art 7(1)(a)) and violence to life and person, in particular murder, committed against persons taking no active part in the hostilities (Art 8(2)(c)(i)).

205    The applicant complains that the Tribunal cited the January 1996 truck bombing of the Central Bank in Colombo where 91 people were killed and 1400 wounded as an example of a civilian attack which played some role in the applicant’s culpability, but the Tribunal accepted that the applicant’s role with respect to the Black Tigers did not commence until February 1996 (T[140]). On that basis, the applicant submits that there can be no serious reasons to consider that the applicant had any involvement in that attack. However, contrary to the applicant’s submission, the Tribunal made no such finding. The role of the Central Bank attack in its reasoning is that there was widespread knowledge of the attack, including by the applicant which he accepted, which meant that the applicant knew of such suicide attacks. He was thereafter involved in sending boys to do “jobs” from which they sometimes did not return which caused him to deduce that they had undertaken particular attacks which to his knowledge occurred after he had sent them.

206    The applicant also complains that the Tribunal (T[170]) referred to the attack on the Colombo International Airport in July 2001 as an attack on a civilian target whereas the only evidence to support that it was a civilian target is one line in a newspaper article which refers to the target as civilian. The article in question reports that there was first an attack on the nearby Katunayake military airbase and then an attack on the “civilian airport” which started at 3:30 am and destroyed a major part of the (civilian) Air Lanka fleet. The article does not report that civilians were killed in the attack, and the airport could legitimately have been regarded as a military target. The article reported that at least five Sri Lankan servicemen died and there is other evidence that 12 people were killed, but it is not apparent whether they were military personnel or civilians. [CB255, 377, 1463, 1561]

207    However, the applicant’s criticism does not ultimately go anywhere because there was evidence before the Tribunal of multiple civilian attacks between February 1996 and 2001, being the period of the applicant’s involvement in sending boys to Colombo albeit not continuously. That evidence includes the following “suicide attacks by LTTE in Sri Lanka” (excluding those recorded as having been undertaken by women suicide bombers as it is not suggested that the applicant sent any women): [CB1459]

(1)    15 October 1997, World Trade Centre, 118 killed and 40 wounded;

(2)    25 January 1998, Sacred Tooth Temple in Kandy, 11 killed and 25 wounded;

(3)    18 December 1999, Presidential election meeting at Ja-Ela in the Colombo, a former army general and eight others killed and 70 wounded;

(4)    2 March 2000, Rajagiriya, 25 killed;

(5)    10 March 2000, top floor of the Serpentine Flat C Wanathamulla, three policemen and at least 20 others killed;

(6)    15 September 2000, Eye Hospital in Colombo, seven killed and 30 wounded; and

(7)    19 October 2000, near Town Hall, five people killed and 23 wounded.

208    Specifically with regard to the attack on the Sacred Tooth Temple in Kandy, the applicant’s evidence was that he sent one of the boys who participated in the attack, although at the time that he sent the boy he did not know that that is what the boy would do. That attack was in 1998 when the applicant had been sending boys on “jobs” for two years. There is no suggestion in the applicant’s evidence that at that time he did not know that some boys that he sent on “jobs” were involved in suicide bombings or attacks.

209    Turning now to the various elements to establish guilt under Art 25(3)(c) (see [173] above), it is not necessary that there be a finding with respect to a specific incident or perpetrator. It was available on the evidence for the Tribunal to conclude that there are serious reasons for considering that the applicant arranged accommodation and transport for the boys whom he sent to Colombo with the aim of facilitating whatever job or mission they were on and with the knowledge that such “job” or mission might be a suicide attack on the civilian population. It is sufficient that on the evidence there is the available conclusion that the applicant was aware that such an offence would have occurred in the ordinary course of events, even though he did not know the precise offence.

210    With regard to Art 25(3)(d) as an alternative possible basis of guilt (see [187] above]), it was available on the evidence for the Tribunal to conclude that there are serious reasons for considering that the applicant contributed in a significant or substantial way to the LTTE’s purpose of murdering civilians (i.e., persons taking no active part in the hostilities). It is not necessary for the applicant to have had the intention to commit any crime, but only that he knew that he was contributing to a group of persons acting with a common purpose in the commission of the crime.

211    In the circumstances, I am satisfied that there is a basis in the evidence for the Tribunal’s finding that there are serious reasons for considering that the applicant committed the war crime of murder and the crime against humanity of murder. No jurisdictional error by the Tribunal is established.

I.2    Reporting on suspected spies

212    The Tribunal’s reasoning to its conclusion on this issue is that the applicant said that he was aware that when spies or collaborators with the military were caught they were publicly humiliated and shot and that he was involved in collecting intelligence in order to identify suspected spies who were then caught and interrogated (T[194]-[196]). On that basis the Tribunal concluded (T[202]) that the applicant was well aware that suspected spies were usually interrogated, frequently tortured, then publicly humiliated, shamed and shot in the presence of villagers which satisfies the elements of the war crime of murder under Art8(2)(c)(i) of the Rome Statute. It was also said to satisfy the elements of the crime against humanity of murder for the purposes of Art 7(1)(a). The Tribunal concluded (T[203]) that the applicant knowingly contributed to the conduct by identifying suspected collaborators (see above at [110]).

213    There is a real difficulty with the Tribunal’s conclusions in this regard. The applicant’s evidence about collaborators being identified and then humiliated and shot is specifically with regard to the period 1990 to 2004 (at [57] above). His evidence with regard to collecting intelligence on suspected spies to be apprehended and interrogated was in 2006 (at [33] above). The two periods of time, and the applicant’s responsibilities and involvement in them, are distinct; there is nothing to say that what he was referring to in the earlier period bore any relationship to what occurred in the later period.

214    Dealing with the crime against humanity of murder first, it requires that the conduct was committed as part of a widespread or systematic attack directed against a civilian population. The factual circumstances on which the Tribunal relied in its conclusion that there are serious reasons for considering that the applicant committed the crime against humanity of murder by identifying suspected spies does not come close to establishing this element.

215    Insofar as the war crime of murder is concerned, the elements include that the persons who were killed had a particular status, namely that they were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities, and that the perpetrator was aware of the factual circumstances that established this status. Since it is not suggested that the applicant was himself the principal perpetrator, it would be necessary to be able to conclude that he aided or abetted the commission of the crime within the meaning of Art 25(3)(c) or that he contributed to the commission of the crime as part of a joint criminal enterprise with the aim of furthering the criminal activity or common purpose of the group or in the knowledge of the intention of the group to commit the crime within the meaning of Art 25(3)(d).

216    In view of the applicant’s involvement in the identification of possible SLA spies and what was then done to them being quite distinct from the time and circumstances in which he was aware that people who were identified as working with the military were publicly exposed and shot, there is no evidence to support the necessary conclusions that the applicant knew that possible spies identified by him would in the ordinary course be killed, or even that they were killed. There is also no evidence to suggest that the people he identified had the necessary status of victims of the war crime of murder, or that he knew the factual circumstances that established that status. There is also no evidence to support the conclusion that anyone he identified, or indeed that anyone identified by anyone else in similar circumstances in the relevant period, was killed. That is to say, there is no evidence to support a conclusion that the war crime of murder was committed in respect of the suspected spies identified by the applicant, let alone that the applicant bears criminal responsibility for such a crime.

217    In the circumstances, it was not available on the evidence for the Tribunal to conclude that there are serious reasons for considering that the applicant committed the war crime of murder and the crime against humanity of murder in respect of his role in identifying suspected spies. The absence of evidence in support of the Tribunal’s finding amounts to jurisdictional error.

I.3    Assisting with interrogations of detainees

218    The Tribunal’s reasoning on this issue starts with the applicant’s role in the early 1990s with the J Section in writing post-interrogation reports. The Tribunal concluded (T[181]) that the applicant’s evidence that after writing a report he was required to read it back to the victim who would sign it if they agreed meant that the applicant “was an active participant in the interrogation process, which he knew involved torturing victims”. The Tribunal reasoned that in obtaining “a signed confession from the torture victim”, the applicant was playing a very important role in the process. The Tribunal went on to postulate that if the torture victim refused to sign the report prepared by the applicant, “they might well have been subjected to further adverse treatment including additional torture” (see above at [107]). I do not consider that that conclusion was available as a “strong inference” or that the evidence on which it was based was clear, credible or strong. The applicant was clear in his evidence that he was not involved in the torture of detainees. He was required to write a report and read it back to the detainee. He said that his involvement was only after the interrogations had ended. There is no satisfactory basis upon which it might be concluded that there were strong reasons for considering that the applicant was himself involved in torturing the detainees, or that he significantly contributed to their torture or facilitated or aided and abetted their torture within the meaning of the relevant articles, which I consider further below.

219    Next, the Tribunal dealt with the question of the applicant being present at the interrogation of Mathaya in 1994. The Tribunal concluded (T[182]-[185]) that the applicant was present at the interrogation and wrote the report. I consider that that conclusion was available, but it does not establish any culpability by the applicant for the interrogation.

220    Next, the Tribunal dealt with the applicant’s role from November 2003 when he was sent to work at a “gaol base”. He had to observe interrogations of informers and write interrogation reports. He also saw (or at least saw the results of) people being electrocuted, suspended by their feet and beaten, and having their fingernails pulled out. It was also at the gaol base that the applicant was involved in the sleep deprivation of detainees to which I will return. The Tribunal concluded that the evidence “raises serious concerns” that the applicant was involved in the commission of the war crime of torture and that “he was certainly performing an important part of the torture process even if he did not physically undertake the torture concerned” (T[199]).

221    The Tribunal reasoned that the evidence concerning the applicant’s involvement in the torture process is capable of being regarded as strong and there is a rational foundation to support a strong inference of his involvement (T[201]). The Tribunal concluded that there are serious reasons for considering that the applicant committed the war crime and crime against humanity of torture (T[204]).

222    The applicant’s evidence on these matters is summarised above: at [27] and [30] (Stone report), [39] (statutory declaration), [55]-[56] and [65] (delegate interview) and [79] (Tribunal evidence).

223    The crime against humanity of torture requires that it be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (Art 7(1)(f) of the Rome Statute). Torture is defined as meaning 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 (Art 7(2)(e)). The war crime of torture is in Art 8(2)(a)(ii) and is applied by Art 8(2)(c)(i) to armed conflicts not of an international character in respect of acts committed against persons taking no active part in the hostilities, including members of armed forces who are detained.

224    Aside from sleep deprivation, to which I will return, there is no evidence to support a finding that the applicant was himself involved in the torture of anyone, or played any support role in such torture. On the evidence, at most he witnessed torture and he wrote reports. He did not make any significant contribution to torture, and he did not facilitate it or aid or abet its commission. It could not be concluded that he had a common purpose with others to commit torture and that he made a significant contribution to realising that common purpose. When he was at J Section he was junior in the organisation and when he was at the gaol base he was himself there for punishment. He did not have any leadership role at either place.

225    The Tribunal having “serious concerns” that the applicant aided, abetted or otherwise assisted in the commission of torture could not on the evidence rise to the level of the Tribunal actually being persuaded that there are serious reasons for considering that the applicant aided, abetted or otherwise assisted in the commission of torture; having serious concerns about whether something occurred is not the same as having serious reasons for considering that it did occur. The Tribunal’s conclusion in this respect amounts to jurisdictional error.

I.4    Depriving detainees of sleep

226    The Tribunal found that when the applicant was at the gaol base, on occasion he ensured that people were kept awake as part of a sleep deprivation technique (T[186]). The applicant described this as a routine task which he was doing on top of cooking and other tasks (T[187]). The applicant also said that he did this when he was told to do so by Vithuran who was in charge and whom he had to obey (T[189]). On the basis of those findings, the Tribunal concluded that there were serious reasons for considering that the applicant aided and abetted or otherwise assisted in the commission of the war crime of torture, and that he did so as part of a group of persons acting with a common purpose within the meaning of Art 25(3)(d) of the Rome Statute (T[197]-[198]) (see above at [108]). The applicant’s evidence on these matters is summarised above: at [30] (Stone report), [66] (delegate’s interview) and [83] (Tribunal evidence). There is no error in the Tribunal’s findings of fact. The question is whether those findings form a proper basis for the ultimate conclusion with regard to exclusion from refugee protection under s 5H(2)(a).

227    There is little doubt that sleep deprivation if sufficiently severe can constitute torture: Mettraux G, International Crimes Vol II: Crimes Against Humanity (Oxford University Press, 2020) 527 [6.7.2.2]. Moreover, in the context of other evidence as to what went on at the gaol base including detainees being electrocuted, being suspended by the feet and beaten and having their fingernails pulled out, there is a solid basis to the inference that the sleep deprivation referred to by the applicant was of such a nature as to amount to torture. The real question then is whether the findings that the applicant aided or abetted or otherwise assisted in the commission of torture within the meaning of Art 25(3)(c) or significantly contributed to it acting in common purpose with others within the meaning of Art 25(3)(d) was open to the Tribunal.

228    Leaving the defence of duress to one side as I will consider it separately, in my view the Tribunal’s conclusions were available to it. There was a solid basis to conclude that the applicant’s role in the commission of the crime of torture by taking turns to keep detainees from sleeping aided or abetted or otherwise assisted in the commission of that crime. Also, those involved in the torture of suspects, including by depriving them of sleep, were engaged in a common purpose and the applicant made a significant contribution to that common purpose with the aim of furthering it or at least in the knowledge of the intention of the group to commit the crime.

I.5    Beating detainees with a stick

229    The Tribunal recounted from Ms Stone’s report and what the applicant had told the delegate that the applicant was tasked to infiltrate the Karuna group in order to gather information and persuade people to return to the LTTE. During that period of infiltration the applicant was involved in “maybe two or three beatings” of people who were suspected by the Karuna group of passing information back to the LTTE. The applicant said that he struck the people with a stick four or five times until they cried, when he would stop (T[191]-[192]).

230    The Tribunal then referred (T[193]) to a letter to the delegate from the applicant’s solicitor in which it was said that “the beating with a stick a few times was done because if you have not done so, [Karuna Group] would have suspected him and punished him with torture and death. On the other hand he could not have disobeyed the orders of the LTTE.” The Tribunal characterised this as “yet another version” and “a different version” of the beatings, but this is unfair because there is in reality no material difference between the applicant’s different accounts of those events.

231    The Tribunal concluded (T[198]) that the applicant’s evidence with regard to the beatings satisfied the elements of the war crime of torture (see above at [108]).

232    The applicant’s evidence on these matters is summarised above: at [31] (Stone report) and [67]-[68] (delegate’s interview).

233    Aside from finding that the applicant changed his version on this issue, for which there was no basis, there is no error in the Tribunal’s factual findings. However, those findings do not give rise to serious reasons for considering that the applicant committed torture because the beatings were not, on the evidence, sufficiently severe to amount to torture. The elements of the war crime of torture include that the perpetrator inflicted “severe physical or mental pain or suffering upon one or more persons” and that they did so for the purpose of “obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind”. It is necessary that the torture be executed for the specific purpose of furthering the war effort, i.e., it must be linked to an armed conflict and it must be undertaken for one of the listed purposes: Du Plessis M in Brandon M and Du Plessis M, The Prosecution of International Crimes (Commonwealth Secretariat, 2005) 61.

234    The crime of torture requires a high threshold of pain and suffering inflicted upon the victim; the suffering must be severe. It is the severity of the harm caused that makes torture a particular serious offence. That is one of the elements that distinguishes torture from other harm-based offences. Torture constitutes one of the gravest criminal offences under international law against a person’s mental or physical integrity, so care must be taken not to dilute its currency and specificity by broadening its scope too far. Only acts of substantial gravity may be considered torture. See Mettraux 523-525 [6.7.2.1].

235    There is no basis in the evidence for a finding that the beatings that the applicant was involved in amounted to severe physical pain or suffering of the nature contemplated by the crime of torture. On the evidence, they were brief beatings and the Tribunal made no factual finding that they were any more severe than that. It is also doubtful whether it can be said that there are strong reasons for considering that the applicant undertook the beatings for the purpose of obtaining information or a confession, as opposed to merely to maintain his cover as an infiltrator in the Karuna group. However, in view of my conclusion that the beatings were insufficiently severe to amount to torture, it is not necessary to decide that point.

I.6    Conclusion on issue 2

236    To summarise, I have found that there was no jurisdictional error in the Tribunal’s conclusion that there are serious reasons for considering that the applicant committed the war crime of murder and the crime against humanity of murder in respect of his role in sending boys to Colombo some of whom undertook suicide bombing missions against the civilian population. The same is true of the Tribunal’s conclusion in relation to the applicant committing the war crime of torture by contributing to the deprivation of sleep by detainees at the gaol base.

237    Whether or not those conclusions are sufficient for the applicant’s case to fail depends on the consideration of issues 3 and 4 which are dealt with below.

238    I have, however, concluded that there was no basis in the evidence for the Tribunal’s conclusions that there are serious reasons for considering that the applicant committed war crimes or crimes against humanity in respect of his role in reporting on suspected spies, assisting with interrogations and beating detainees with a stick. The Tribunal’s conclusions on these issues reveal jurisdictional error.

J    ISSUE 3: DURESS

239    Under Art 31(1)(d) of the Rome Statute, conduct which is alleged to constitute a crime that has been caused by duress “resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and that person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided” does not give rise to criminal responsibility.

240    The Tribunal concluded (T[209]) that none of the matters relied on by the applicant can be said to amount to duress within the meaning of Art 31(1)(d). Aside from characterising the applicant’s evidence of duress as amounting to, for the most part, “generalised assertions”, the Tribunal in particular relied on the following considerations in dismissing the defence (see above at [112]).

241    First, the Tribunal identified (T[213]) four instances in which the applicant disobeyed directions or orders and was not exposed to any threat of imminent death or continuing or imminent serious bodily harm. On that basis, the Tribunal rejected the applicant’s case that he faced such harm if he disobeyed orders to do the various things on which the Tribunal based its conclusions that he committed crimes against humanity and war crimes.

242    Secondly, the Tribunal noted (T[216]) that the applicant served the LTTE for approximately 19 years and it seems implausible to suggest that he could not have left the LTTE at some stage during that period. Rather, he continued to adhere to his beliefs in the LTTE cause and therefore willingly remained an active participant in its actions.

243    Thirdly, the Tribunal noted (T[217]-[218]) that the applicant discharged several senior and important positions in the LTTE despite his occasional acts of defiance. It seems implausible that the senior hierarchy of the LTTE would have entrusted the applicant with significant operational positions if he was not a dedicated member of the cause acting under his own free will.

244    The applicant’s evidence with regard to duress is summarised above: at [25] (Stone report), [36] (statutory declaration), [50] (Cornall report), [53]-[54], [63]-[64] and [69] (delegate’s interview) and [84] (Tribunal evidence).

245    The applicant submits that the Tribunal’s approach to the issue of duress is manifestly unreasonable. He submits that two of the instances in which the applicant disobeyed orders were minor and could not sustain the Tribunal’s proposition that if he had disobeyed the orders to undertake the conduct in respect of which he is said to have committed the relevant crimes he would not have faced imminent death or serious bodily harm. In respect of the other two instances, the applicant submits that “to his great personal credit” he refused to commit acts which would amount to murder. He then submits that far from allowing him “the moral credit that those acts deserve” the Tribunal reasoned that his claim of duress should be rejected. He submits that in the context of the totality of the evidence, and the fact that he had been forcibly recruited into the LTTE at age 15 or 16, the decision rejecting the claim of duress is against the evidence and is manifestly unreasonable.

246    Perhaps nothing turns on it, but there is nothing to support the submission on behalf of the applicant that he might have been as young as 15 when he was recruited. His carefully prepared statutory declaration which gives his date of birth and when he was recruited establishes that he was 17 at the time.

247    The trouble with the applicant’s submission that he should be given moral credit for not murdering people when he was ordered to is that it is not to the point; it does not meet the point of the Tribunal’s reasoning at all. Of course it is to the applicant’s credit that on two occasions he did not kill people whom he was instructed to kill, but that does not detract in any way from the point that the fact that he was not severely punished for disobeying those orders rather undermines his case that had he disobeyed other orders he would have been severely punished. But more telling is the Tribunal’s reasoning that the applicant was in the LTTE for a very long period of time, which included spending time out of Sri Lanka and time working in Sri Lanka with relative independence and autonomy, yet he did not run away and he kept returning to the LTTE. That included returning at a time when he knew the kinds of work that he was required to do. He only ultimately ran away after the authorities had caught up with him and the civil war was nearly at an end.

248    In those circumstances, whilst it can be accepted that the applicant was young and impressionable when he was forcibly recruited to the LTTE, he thereafter unequivocally associated himself with the LTTE’s aims and objectives and he pursued them voluntarily. There is ample basis for the Tribunal to have concluded that there were serious reasons for considering that the applicant had undertaken innumerable activities for the LTTE, in particular sending boys on missions to Colombo, collecting intelligence and writing interrogation reports, other than under threat of imminent death or serious bodily harm against himself or family members.

249    The situation with regard to the instances of assisting with sleep deprivation and interrogations at the gaol base and beating suspects with sticks for the Karuna group is different. With regard to assisting with sleep deprivation and interrogations, the applicant was at that time himself undergoing punishment at the gaol base. There is no suggestion that he could have avoided undertaking the duties that were assigned to him, including by running away, without facing very severe consequences. It is to be inferred that he would have been subjected to similar treatment to which that the detainees at the base were subjected to if he disobeyed orders. Moreover, his contribution was relatively minor – taking turns an hour at a time to make sure that detainees did not fall asleep and writing interrogation reports. I consider that there is no strong basis to conclude that the applicant’s defence of duress would not apply in those circumstances.

250    With regard to the stick beatings, the people being beaten were suspected infiltrators of the Karuna group. The applicant was at that time himself an infiltrator of the Karuna group. Had he not participated in the beatings, he would have exposed himself as an infiltrator and would himself have been subjected to beatings and, likely, worse. In those circumstances there is no strong basis to conclude that the defence of duress would not apply.

251    The applicant also refers to the observations of Mr Cornall in his report that when the applicant was a member of the LTTE “that organisation basically controlled his life” and “one has to question what voluntary means when he was only 16 at the time [he was forced to join the LTTE] and living in an area brutally controlled by the LTTE”. [CB364-365] The applicant submits that the Tribunal paid no regard to those conclusions.

252    There are a number of answers to that submission. First, the Tribunal expressly referred to and paraphrased Mr Cornall’s observations (T[231]). Secondly, and in any event, Mr Cornall was not addressing the requirements for a defence of duress under the Rome Statute; his observations were made in the context of considering whether the applicant is at risk of committing crimes or being a threat to security in the future. Those observations were not directly relevant to what the Tribunal had to consider. Even taking those observations into account, there was a basis in the evidence for, and hence no jurisdictional error in, the Tribunal’s conclusion that even if one accepts that the applicant was forcibly recruited by the LTTE, it cannot be said that the remainder of his acts and his involvement over approximately 19 years’ membership of that organisation were involuntary; at some stage his membership had the qualities and characteristics of being voluntary (T[233]).

253    In the result, there is no jurisdictional error in the Tribunal’s conclusion that the applicant’s defence of duress fails with respect to his role in sending boys to Colombo on missions, some of which included suicide missions against the civilian population. However, in my view there is jurisdictional error in the Tribunal’s conclusion with regard to the applicant’s defence of duress failing in respect of the other war crimes and crimes against humanity that he was accused of before the Tribunal based on assisting with interrogations, sleep deprivation and stick beatings.