Federal Court of Australia
BYJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 734
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The decision of the second respondent dated 17 September 2021 be set aside.
2. The matter be remitted to the second respondent, differently constituted, for determination according to law.
3. The first respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.
4. In the event the parties cannot agree on a lump sum for the purposes of Order 3 by 4pm on 8 July 2022, the question of an appropriate lump sum for the applicant’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MORTIMER J:
1 This is an application for judicial review of a decision of the Administrative Appeals Tribunal. By s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal provision in s 44 does not apply to Tribunal decisions such as the present one. Rather, the terms of s 476 of the Migration Act 1958 (Cth) apply to confer jurisdiction on this Court to review the Tribunal’s decision.
2 It is not disputed that the applicant, who applied for a protection visa under the Migration Act in September 2015, is a national of Sri Lanka, of Tamil ethnicity, and was a member of the Liberation Tigers of Tamil Eelam (LTTE), during the civil war in Sri Lanka.
3 While a delegate of the first respondent, the Minister, found the applicant engaged Australia’s protection obligations within the terms of s 5H(1) of the Migration Act, the delegate also found s 5H(2) applied to the applicant, thus excluding him from the terms of s 5H(1). Section 5H(2) picks up the terms of Art 1F of the Refugees Convention. Its purpose is to exclude from protection persons who would otherwise be entitled to it, where their previous conduct is of sufficient gravity, and sufficiently contrary to the underlying humanitarian purposes and principles of surrogate state protection, that notwithstanding the risks to their lives and safety if returned to their country of nationality, surrogate protection by a receiving state can be denied to them.
4 The Tribunal affirmed the delegate’s decision about the application of s 5H(2), but only on one of the two grounds identified by the delegate. The ground affirmed by the Tribunal concerns the use of child soldiers by the LTTE, and the applicant’s alleged involvement in that conduct while he was a member of the LTTE. It was this aspect of the Tribunal’s reasoning which was challenged on judicial review.
5 For the reasons set out below, the application for judicial review will be granted, the decision of the Tribunal will be set aside, and the matter remitted for determination by a differently constituted Tribunal.
Applicable provisions
6 Section 5H provides:
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.
7 It was not in dispute that to construe the meaning of “war crime” in s 5H(2)(a) it was necessary, as with the other terms in that provision, to turn to applicable international instruments, and that interpretations of those instruments by the International Criminal Court were also relevant. For the purposes of s 5H(2)(a), reg 2.03B of the Migration Regulations 1994 (Cth) prescribes “each international instrument that defines a crime against peace, a war crime or a crime against humanity”. The Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, is expressly included, and Art 9 of that instrument incorporates the Elements of Crimes document published by the International Criminal Court.
8 Article 8(2) of the Rome Statute defines a “war crime”, relevantly to the grounds of judicial review, as:
(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:
….
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
9 The delegate also made adverse findings against the applicant in relation to Art 8(2)(c)(iv) of the Rome Statute, in relation to the treatment of individuals who deserted from the LTTE. On review, the Tribunal did not uphold these findings. There is no judicial review sought by the Minister of that aspect of the Tribunal’s decision, so those findings are not in dispute before the Court.
10 As to Art 8(2)(e)(vii), the second international instrument of direct relevance is the International Criminal Court’s document entitled “Elements of Crimes”. Art 9 of the Rome Statute provides for the making of such instruments:
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.
11 At [14] of its reasons, published as BYJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3315, the Tribunal described the Elements of Crimes document upon which it relied as “reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002”. There was no dispute before the delegate, the Tribunal or this Court that this document contained the appropriate description of the elements of the war crime set out in Art 8(e)(vii). The document is in evidence. The relevant elements for Art 8(2)(e)(vii) are prescribed to be:
1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.
2. Such person or persons were under the age of 15 years.
3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.
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.
12 It is important to note the way “children” is defined in this document, being persons under the age of 15 years.
13 Art 22(2) of the Rome Statute provides:
The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
14 Arts 25(3) and 30 of the Rome Statute set out the circumstances in which criminal responsibility will be imposed, and the requisite mental elements:
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;
…
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
…
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.
15 There were no direct grounds of judicial review about the Tribunal’s reasoning in respect of these matters, however, the Tribunal’s fact finding and reasoning about the applicant’s state of mind is indirectly raised by the grounds of review.
Summary of the applicant’s circumstances
16 There are almost no findings of fact by the Tribunal outside its brief and mostly conclusory findings for the purposes of s 5H(2) of the Migration Act. Therefore, to understand the context of the Tribunal’s decision, and the issues before it, it is necessary to set out, at least in summary, the findings made by the delegate. None of these were dealt with in the Tribunal’s decision and I infer that the Tribunal proceeded on the basis that it would rely upon the delegate’s general factual findings about the applicant’s circumstances.
17 The delegate found that the applicant voluntarily joined the LTTE in 1986, when he was 19 years of age. From this time, he took part in various combat operations against Sri Lankan government and Indian military forces. He held mid-level to senior positions with the LTTE in both the military and political divisions from 1990 until 2006, assuming these positions from the age of about 23 years. In 1990, he was in command, or second in command, of a squad of 45 cadres, and was promoted to be commander of a camp in 1990. In 1995, the applicant worked as an adjutant to an LTTE Batticaloa district commander, and from around 1996/1997 the applicant was transferred to Mullaitivu where he supervised the training of LTTE recruits, in preparation for attacks on Sri Lankan Army (SLA) positions. In February 1998, the applicant was involved in an attack on SLA positions in Elephant Pass, assisting the commander of the attack. Following this, the applicant was transferred back to Batticaloa where he supervised food distribution, oversaw checkpoints, and familiarised cadres from the north with the geography in the east. From around 1999, the applicant was transferred to the political division of the LTTE, where he was responsible for liaising with Tamil civilians, and preparing reports regarding court and civil matters for the LTTE high command. Following the 2003 ceasefire, the applicant was transferred to an LTTE office in a government-controlled area, where he was responsible for liaising with Sri Lankan government contractors over provision of services to LTTE areas. The applicant was discharged from the LTTE in late 2006 and departed Sri Lanka lawfully. It was the applicant’s role in the LTTE which led to the delegate’s finding in his favour under s 5H(1).
18 In terms of the applicant’s position within the LTTE, the delegate found:
Considering his LTTE history, detailed below, I accept that from relatively early in his LTTE career, he was considered a mid to senior LTTE cadre, with a reasonable level of authority and responsibility. I accept that the applicant held a rank equivalent to Lt Colonel in the LTTE at the time of him leaving the LTTE.
19 Relevantly to the judicial review application, the delegate made findings about the time the applicant spent in command of a camp in a region named in the Tribunal’s reasons but which I shall call “District B”. In these extracts I have omitted the findings concerning the applicant’s involvement with deserters from the LTTE, as these findings are not relevant to the judicial review application.
In 1990 the applicant said there was a brief ceasefire. In this period he went to stay with his mother for a couple of months, while he pondered whether to stay with the LTTE. He talked with his mother about this and she said he should do what he felt best.
Later in 1990, as he was one of the most experienced people and knew the area, he said he was put in command of many combatants. He stated he was in charge of an LTTE camp with about 150 soldiers. He was also responsible, along with two others, to receive, catalogue, clean and hide captured weapons. He was also responsible for overseeing small checkpoints in the area to ensure that cadres assigned to sentry duties were properly carrying out their duties.
….
In respect to combat operations in this period, the applicant stated he was required to undertake operations from time to time. He stated he took part in the following operations:
• 1991: [place name redacted] – Ambush of a [Sri Lankan police Special Task Force (STF)] truck
• 1993/94: [place name redacted] – STF ambush
• 1993: [place name redacted] – Ambush of STF truck – roadside bomb
• Unknown year: [place name redacted]. Attack on a SLA camp
20 The delegate referred extensively and in detail to country information. The delegate found:
Country information shows that the LTTE made extensive use of child soldiers for use in both combat and terrorist/suicide operations throughout its history, and particularly after 1987.
(Citation omitted.)
21 The delegate made adverse findings about the applicant’s role in relation to child soldiers in three circumstances: at the camp in District B, at another place I shall describe with the initial “M”, and finally at a notorious battle between the LTTE and the SLA in 1998 at the place called Elephant Pass: a narrow strip of land which provides the land entry point to the Jaffna Peninsula from the rest of Sri Lanka. Of these, the Tribunal did not affirm the delegate’s findings on the latter two events, only on what occurred at the camp in District B. Therefore, relevantly to the grounds of judicial review, it is only necessary to set out the delegate’s findings about the applicant’s role at the camp in District B in relation to child soldiers:
I accept that the applicant was not directly involved in the recruitment (forced or otherwise) of child soldiers. In his role of commanding an LTTE camp of 150 cadres however he knowingly trained child soldiers to actively participate in hostilities. At the [Temporary Protection Visa (TPV)] interview, the applicant explicitly acknowledged that there were child soldiers in the camp he commanded. In this role the applicant was responsible for the training and discipline of the fighters under his command. The applicant’s descriptions he provided at the TPV interview regarding the discipline and punishments for cadres for mistakes and for trying to run away, is consistent with what was reported in the [Human Rights Watch] report regarding the training of LTTE child recruits.
(Emphasis added.)
22 Thus, the delegate’s finding was confined to the second aspect of Art 8(e)(vii) – namely using people under 15 years to participate actively in hostilities. The first aspect of conscription or enlistment was not engaged. Therefore, on review the question for the Tribunal’s decision, to be considered afresh, was confined to whether the applicant “used one or more persons [who were under the age of 15 years] to participate actively in hostilities”.
23 Relevantly to the judicial review application, the delegate summarised his findings in the following way:
Between the years 1990 and 1995, while in Eastern Province, Sri Lanka, while holding a position of authority as commander of an LTTE camp of 150 cadres, the applicant knowingly trained and supervised child recruits of the LTTE, who were under the ages of 15 years old, and under his control, preparing them to actively participate in hostilities, namely combat or ambush operations against Sri Lankan government forces.
24 The delegate found there were no applicable defences available to, or claimed by, the applicant. This finding was not the subject of review in the Tribunal.
The applicant’s grounds of review
Ground 1: The under 15 years of age element of Art 8(2)(e)(vii)
25 Ground 1 of the applicant’s further amended originating application contends that the Tribunal “constructively failed to exercise jurisdiction when it applied a wrong test and failed to apply itself to the real question or questions to be decided”. The particulars to the ground make it tolerably clear that the applicant’s contention focusses on the Tribunal’s approach to the element of the war crime in Art 8(2)(e)(vii) concerning the age of child soldiers, and the need for them to be under 15 years of age for this element of the crime to be met.
26 As I understand it from written and oral argument, the applicant contends that the relevant passage of the Tribunal’s reasons is at [44], where the Tribunal expresses its reliance on the questions asked at the delegate’s interview with the applicant. In this way, the applicant contends the Tribunal asked itself the wrong question about this element of the crime because it did not direct its attention to whether there were serious reasons for considering that the applicant knew that children under the age of 15 years in the camp in District B were being used by the LTTE to participate actively in hostilities.
Ground 2: Meaning of “participating actively in hostilities”
27 The applicant contends the Tribunal misunderstood and misapplied the term “actively participating in hostilities” in Art 8(2)(e)(vii). He contends the only factual finding made by the Tribunal was at [42] of its reasons, where – according to the applicant – the Tribunal found the applicant knew the LTTE was using persons in the camp to participate in hostilities by collecting food from villages and storing and cleaning weapons for use by the LTTE.
28 Relying on a decision of the Appeals Chamber of the International Criminal Court (Prosecutor v Lubanga (Judgment on the Appeal against Conviction) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 A 5, 1 December 2014) (Lubanga Appeal)), the applicant contends there must be a link between the activities in which children under 15 were engaged, and the identified hostilities. At [335] of its decision, the Appeals Chamber in Lubanga Appeal said there must be a:
link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged. In determining the existence of such a link, the Appeals Chamber will be guided by the lists of activities set out in the ICRC commentary on the Additional Protocols and in the Preparatory Committee’s Draft Statute. The Appeals Chamber does not consider it appropriate to give further guidance on the parameters of the notion of “active participation in hostilities” in the abstract … Rather, a determination as to whether a particular activity falls within this definition must be made on a case-by-case basis.
(Citations omitted.)
29 The applicant also relied on Prosecutor v Lubanga (Judgment) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) (Lubanga Trial) at [628], which I have extracted later in these reasons.
30 The applicant contends there are no facts found by the Tribunal, and no factual reasoning, which demonstrate that it had formed a view there were serious reasons for considering such a link existed between the activities it listed at [42] of its reasons and combat in which the LTTE was engaged.
Ground 3: Legal unreasonableness
31 The applicant contends that in its reasoning and findings, the Tribunal relied heavily, and almost exclusively, on the record of interview with the applicant conducted by the delegate. This record of interview involved an interpreter whose interpretations of parts of the applicant’s evidence at this interview were later alleged to have been incorrect. This defect was said to affect the delegate’s interview, and the first day of the hearing before the Tribunal as initially constituted. The level of inaccuracy caused the Tribunal as first constituted by three members to disqualify itself, and resulted in the reconstitution of the Tribunal and the use of a different interpreter. However, the applicant’s contentions focussed again on the Tribunal’s heavy reliance, in its reasons, on the applicant’s answers during the delegate’s interview, including at least two answers accepted to have been affected by material mistranslation.
Resolution
32 The Minister accepted it was appropriate for the Tribunal, and this Court on judicial review, to consider what was said in the Lubanga Trial and the Lubanga Appeal. The Minister also referred to a decision of the Special Court for Sierra Leone, which appeared to be Prosecutor v Brima, Kamara and Kanu (Judgment) (Special Court for Sierra Leone, Trial Chamber II, Case No. SCSL-04-16-T, 20 June 2007), a passage of which was extracted and considered in Lubanga Trial at [624].
The Lubanga case
33 The trial, and appeal, in respect of the conduct of Thomas Lubanga Dyilo concerned events that took place between early September 2002 and 13 August 2003 in the district of Ituri in the Orientale Province, in the Democratic Republic of the Congo (formerly Zaire): Lubanga Trial at [67]. The Trial Chamber of the International Criminal Court found there are approximately 18 different ethnic groups in Ituri, with disputes between the Hema and Lendu ethnic groups prominent: Lubanga Trial at [73]-[75]. Mr Lubanga was one of the founding members of the Union des Patriotes Congolais (UPC), a Hema political group which later developed a military wing known as the Force Patriotique pour la Libération du Congo (FPLC). At the time of the alleged offences, he was jointly President of the UPC and Commander-in-Chief of the FPLC, and was alleged to have “directed the military to complete the conquest of Ituri”: Lubanga Trial at [28].
34 The Lubanga Trial decision was given on 14 March 2012. The investigation had been opened on 23 June 2004, following referral of the case by the DRC. Charges against Mr Lubanga were confirmed on 29 January 2007. The trial commenced in January 2009. There was then a series of interim rulings and appeals, and temporary stays because of unfairness to the accused, which meant that evidence was still being given throughout 2010 and was not formally closed until 20 May 2011. The scope of the trial was described in Lubanga Trial at [11]:
The Trial Chamber heard 67 witnesses, and there were 204 days of hearings. The prosecution called 36 witnesses, including 3 experts, and the defence called 24 witnesses. Three victims were called as witnesses following a request from their legal representatives. Additionally the Chamber called four experts. The prosecution submitted 368 items of evidence, the defence 992, and the legal representatives 13 (1373 in total). In addition to the written submissions, the oral closing arguments of the parties and participants were heard on 25 and 26 August 2011. Since 6 June 2007, when the record of the case was transmitted to the Trial Chamber, the Chamber has delivered 275 written decisions and orders and 347 oral decisions.
(Citations omitted.)
35 Somewhat remarkably, the Trial Chamber decision, consisting of 593 pages and 1364 paragraphs in terms of the majority reasons, was given only seven months after closing submissions.
The Trial Chamber’s decision
36 Relevantly, the prosecution’s core allegation against Mr Lubanga was (Lubanga Trial at [29], [32]-[34]):
It is the prosecution’s submission that, together with his Chief of Staff and other military commanders, the accused orchestrated campaigns in order to recruit soldiers of all ages, including those below the age of 15 years who were trained and sent to the front line.
….
Following their recruitment, the children were sent to one of 20 military camps set up throughout Ituri where they received standard military training from UPC/FPLC commanders. It is alleged they were beaten, whipped, imprisoned and inadequately fed, and young girls were raped. They were encouraged to drink alcohol and to take drugs, leading to frequent intoxication.
It is contended Thomas Lubanga either knew that children under 15 years of age were being conscripted or enlisted or he was at least aware that this was an inevitable consequence of what was occurring. Despite this knowledge, the recruitment drive continued, as part of the execution of the joint plan. He frequently saw child soldiers, and even his own personal protection unit included children aged between 13 and 17. The accused apparently received a copy of a document from one of the national secretaries to Eric Mbabazi which referred to the presence of child soldiers who were aged between 10 and 16 years.
The prosecution alleges that the use of young people, including children under the age of 15, continued throughout the period of the charges. This escalated when the fighting was intense and it drew the attention of the Organisation of the United Nations (“UN”) and various humanitarian organisations to this phenomenon. It is argued that in order to dispel the concerns of the international community about the use of child soldiers, the accused issued false demobilisation orders, while, in reality, the position remained unchanged. Thomas Lubanga visited a training camp two weeks after issuing an order of this kind where children significantly under the age of 15 were visible, including amongst the bodyguards of the senior commanders.
(Citations omitted.)
37 And in the victims’ submissions (extracted in Lubanga Trial at [63], [65]):
It is contended the use of child soldiers was a deliberate policy of which the accused was aware, and that as a result young recruits were sent to military training camps; children below 15 years of age fought in battles; and some of the victims endured severe mistreatment, which took different forms. It is argued the conditions at the camps were closer to a concentration camp than to barracks.
….
[…] Thomas Lubanga Dyilo was present at the time and place of the forcible enlistment of children under the age of fifteen years into the FPLC, and, as President and Commander-in-Chief of the FPLC and the coordinator of the implementation of the common plan with other members of the hierarchy with a view to bolstering the [UPC] and FPLC war effort, he even gave a speech before the young FPLC recruits, including those under the age of fifteen years, urging them to complete their military training and to prepare to participate in military operations.
38 Mr Lubanga denied the charges and insisted he neither approved nor accepted the enlistment of child soldiers, and implemented measures to prohibit their recruitment: Lubanga Trial at [47]. Thus the main focus of the Trial Chamber’s extraordinarily lengthy reasons is the involvement and knowledge of Mr Lubanga, rather than the matter which was at issue before the Tribunal in respect of the applicant. Nevertheless, in the course of Mr Lubanga’s case, the International Criminal Court did explain the relevant phrase in Art 8(2)(e)(vii) in a way which illuminates some of the issues on judicial review.
39 For instance, in its decision to confirm the charges brought against Mr Lubanga, the Pre-Trial Chamber of the Court described what it understood by “active participation” as follows (Prosecutor v Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/06, 29 January 2007) at [261]-[262]):
“Active participation” in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points.
In this respect, the Chamber considers that this article does not apply if the activity in question is clearly unrelated to hostilities. Accordingly, this article does not apply to food deliveries to an airbase or the use of domestic staff in married officers’ quarters.
(Citations omitted.)
40 Subsequently, in its reasons for judgment on the prosecution’s case against Mr Lubanga, the Court’s Trial Chamber made these findings about the phrase “use” children to “participate actively in hostilities” (Lubanga Trial at [626]-[628]):
The Special Representative (CHM-0003) suggested that the Trial Chamber should focus “in each case […] [on] whether the child’s participation served an essential support function to the armed force” and she referred to the SCSL jurisprudence in the AFRC Trial Judgment set out above. The Trial Chamber in that case held that:
‘Using’ children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat.
The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word “direct”.
The extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given. Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis.
(Citations omitted.)
41 It is clear the Trial Chamber understood “participation in hostilities” to be broader than active engagement in battle. For example, at [1247], in its finding about Mr Lubanga’s alleged use of children under 15 as his bodyguards, the Trial Chamber found:
Deploying children under the age of 15 as bodyguards falls within the scope of Article 8(2)(e)(vii) since it constitutes the use of children to participate actively in hostilities.
(Citations omitted.)
42 The footnote here refers back to [628], which I have extracted above.
43 At [1269], in the conclusory section of its reasons, the Trial Chamber found:
[Mr Lubanga] encouraged those present, including children who were under the age of 15, to complete their training in order to become soldiers, and to receive their weapons so they would be able to fight. The lack of any thanks directed at the commanders is a peripheral issue. The central factor is that the accused supported the continued recruitment, training and deployment of soldiers of all ages. He said if his chief of staff did not visit a camp, he would consider him to be an enemy. This establishes the accused’s authority over the other military leaders who were directly in charge of the military training provided to children under the age of 15 at the UPC’s camps.
44 It is clear from the Trial Chamber’s reasons overall, including its conclusions at [1355]-[1356], that in Mr Lubanga’s case there was some overlap in its reasoning on the findings between the first limb of Art 8(2)(e)(vii) (conscription and enlistment into an armed force) and the second limb (participation in hostilities). On the first limb, the findings concentrate on evidence about children being recruited, conscripted and present as part of the recruits being actively trained for military operations at the UPC/FPLC camps. On the second (and presently relevant) limb, the only specific factual finding is the use of children under 15 as bodyguards for commanders, including Mr Lubanga. That was found to be sufficient.
45 At [976], the Trial Chamber emphasised the distinct role of the International Criminal Court in interpreting the Rome Statute:
In the view of the Majority, both the Romano Germanic and the Common Law legal systems have developed principles about modes of liability. However, at their inception, neither of these systems was intended to deal with the crimes under the jurisdiction of this Court, i.e. the most serious crimes of concern to the international community as a whole. The Statute sets out the modes of liability in Articles 25 and 28 and, they should be interpreted in a way that allows properly expressing and addressing the responsibility for these crimes.
The Appeals Chamber’s decision
46 Mr Lubanga’s appeal against his conviction was, by majority, rejected. Relevantly, the Appeals Chamber held, in its “Key findings” at [5]:
In order to determine whether the crime of using children to participate actively in hostilities under article 8 (2) (e) (vii) of the Statute is established, the link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged has to be analysed.
47 There was a specific ground or grounds of appeal by Mr Lubanga about the alleged “legal and factual errors in relation to the Trial Chamber’s finding that he was guilty of having used, jointly with others, children under the age of fifteen years to participate actively in hostilities”: see Lubanga Appeal at [314]. The findings I have extracted at [40]-[43] above were challenged. Mr Lubanga relevantly contended that only “activities which have a direct part in the conduct of hostilities” can be considered as active participation in hostilities, and further that “activities which were blatantly unconnected to the hostilities, such as domestic chores and analogous activities” could not be relied upon to establish that children under the age of 15 years had been used to participate actively in hostilities. Instead, Mr Lubanga submitted that “only the participation of children under the age of 15 years in combat or their presence on the battlefield may establish the crime of use of children to participate actively in hostilities”: Lubanga Appeal at [319]-[320].
48 The finding of the Appeals Chamber was that the provisions of international humanitarian law do not establish that the phrase “participate actively in armed hostilities” should be interpreted so as to only refer to forms of direct participation in armed hostilities: Lubanga Appeal at [328]. It then noted the Trial Chamber erred in finding that “active participation” required a child to provide support to combatants that exposes the child to danger: Lubanga Appeal at [332]. At [333]-[334], the Appeals Chamber held:
The Appeals Chamber notes that neither the wording of articles 8 (2) (e) (vii) or 8 (2) (b) (xxvi) of the Statute, nor their corresponding provisions in international humanitarian law, refer to “exposure to real danger as a potential target” as a criterion for determining whether a child was used to participate actively in hostilities. A plain interpretation of the relevant provisions in their context reveals that the crime of using children to participate actively in hostilities requires the existence of a link between the activity and the hostilities. Although the extent to which the child was exposed to risk due to the activity in which he or she was engaged may well be an indicator of the existence of a sufficiently close relationship between the activity of the child and the hostilities, an assessment of such risk cannot replace an assessment of the relationship itself.
As to the requisite proximity between the child’s activities and the hostilities, the Appeals Chamber notes that the ICRC commentary on the Additional Protocols indicates that article 4 (3) of Additional Protocol II prohibits participation in “military operations such as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage”. In relation to the equivalent provision under Additional Protocol I, the ICRC Commentary on the Additional Protocols states that children under the age of fifteen years should not be required to perform indirect acts of participation, including, “in particular, gathering and transmission of military information, transportation of arms and munitions, provision of supplies etc”. The Appeals Chamber also notes the explanatory footnote to the phrase ‘to participate actively in hostilities’ provided in the Preparatory Committee’s Draft Statute, which set out the parameters of the requisite participation stating:
The words ‘using’ and ‘participate’ have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase [or] the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.
(Emphasis added; citations omitted.)
49 It was this reasoning which led to the finding by the Appeals Chamber at [335], on which the applicant relied and which I have extracted at [28] above, concerning the need for a “link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged”.
Conclusion on Lubanga
50 I have spent some time describing the relevant reasoning in Lubanga’s case, in both the trial and appeal decision, because it illustrates the care and detail with which these provisions of the Rome Statute are applied and considered by the International Criminal Court. It also illustrates the complexities of the arguments, at both factual and legal levels, about how the elements of war crimes must be established. Of course, unlike a decision maker in domestic law under s 5H(2) of the Migration Act, the International Criminal Court is passing judgment on a person’s guilt beyond reasonable doubt, rather than determining whether there are “serious reasons for considering” a person has committed a war crime. Nevertheless, these remain complex and sophisticated decision-making tasks. Reliance by the Australian Parliament on terms taken from Art 1F of the Refugees Convention, directly referring to crimes under international law, means that domestic decision makers cannot gloss over some of these complexities, nuances and details if they are to make such a serious finding as the one to which s 5H(2) is directed. Where made, those findings deprive a person of protection, in circumstances where they would otherwise be entitled to such protection. Under the present domestic legislative scheme, such findings may also consign a person to indefinite executive detention.
The meaning of “serious reasons for considering” in s 5H(2).
51 I am relieved from setting out the jurisprudence on this matter by the recent decision of Stewart J in GZCK v Minister for Home Affairs [2021] FCA 1618 at [142]-[149]. At [149], Stewart J concludes:
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.
52 I respectfully agree with and adopt his Honour’s description of the applicable thresholds, and the task of the decision maker.
53 At [21] of its reasons, the Tribunal states:
There have been numerous discussions of the meaning of the words “serious reasons for considering”. In applying section 5H of the Act it is important to bear in mind that each of the words is in common use and should be given its ordinary meaning. The words used by Parliament should not be replaced by other words in an attempt to define the former. However, the passages to which I have referred above assist by confirming that consideration does not require the proof of facts but does require a very careful assessment of the evidence before the Tribunal.
54 This statement comes after the Tribunal has referred to several of the authorities to which Stewart J referred in GZCK, including French J’s endorsement of the need for “meticulous investigation and solid grounds”: see WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; 138 FCR 579 at [52].
55 Paragraph [21] of the Tribunal’s reasons could be understood as suggesting the Tribunal considered itself free to put these authorities to one side, and adopt a different approach, simply looking at what, as a merits review decision maker, it considered was the “ordinary” meaning of the words in s 5H of the Migration Act. That, of course, would be a wholly incorrect approach. The Tribunal is bound by Australian law and the explanations in these authorities about what the phrase “serious reasons for considering” means, and how its task is to be discharged. It is not for the Tribunal to chart its own legal course on these matters.
56 Paragraph [21] may in part explain the Tribunal’s abbreviated approach to its task, as disclosed by its reasons.
Tribunal’s findings
57 In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [49], the Full Court said:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
58 The positive aspect of the proposition in MZYTS relates to how a supervising court is entitled to approach matters actually set out in the Tribunal’s reasons, being reasons which purport to comply with s 43(2B) of the AAT Act, which provides:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
(Emphasis added.)
59 The negative aspect of the proposition in MZYTS – what is not mentioned in the reasons – will require consideration of the facts and circumstances in a particular case, and whether the absence of references to specific pieces of evidence properly supports an inference that the Tribunal failed to consider such evidence: see generally the discussion in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646 at [90]-[93]. This aspect of the judicial review debate concerns how a supervising court should approach an allegation of jurisdictional error based on an alleged failure to consider certain material. That is not this case.
60 Here, the relevant aspect of the well-established principles in Yusuf and MZYTS is that the Tribunal was obliged to set out its reasons for the findings of fact that it made, and what material it based those findings on. The Tribunal did so, and expressly relied on a narrow category of evidence, unlike the delegate. This is a case about the positive aspect of the propositions in MZYTS.
61 It is well-established, but worth re-stating, that the Tribunal must consider the issues on the review for itself, afresh: see MZYTS at [32]; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10]; MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154 at [60].
Ground 1: No focus on children as defined in Rome statute (i.e., under 15 years old)
62 Contrary to the Minister’s submissions, this ground is not answered by any reliance on the principle to be derived from Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 41 FLR 338.
63 The applicant’s contentions did not turn on the proof of legal error on the part of the delegate. Rather, the applicant’s reliance on what was and was not put by the delegate to the applicant during the interview was for the purpose of demonstrating why the Tribunal’s selection of just a few passages of the applicant’s evidence from that interview was an inadequate evidentiary basis for the findings it went on to make. It is correct that – at least in these passages – the delegate did not appreciate, or did not make, the distinction between children generally, children under 18, and children under 15: the latter being what is required by Art 8(2)(e)(vii).
64 In other words, in the passages relied on by the Tribunal, the applicant was not asked specifically about children under 15 (as opposed to under 18), and was not asked about what children in the camps did which could be described as “participating actively in hostilities”. For the delegate’s decision, this was not critical because the delegate relied on a much wider range of sources for his findings about participation of children under 15, in particular country information.
65 The Tribunal did not take this approach. The Tribunal chose only to rely only on what the applicant said at the delegate’s interview. The Tribunal expressly indicated that was the approach it was taking, at [40]:
Bearing in mind the warning given by French J against extrapolating from the criminality of an organisation to that of an individual, it is necessary to consider the evidence of the actions of the Applicant himself.
(Emphasis added)
66 This was, of course, only a small part of French J’s observations. Nevertheless, this appears to be what the Tribunal focussed on, and explains its focus in its reasons on the applicant’s own evidence rather than any reliance at all on country information. In other words, it is clear that although the Tribunal set out some country information at [39] of its reasons, it did not rely on this information in making its findings, given its statement at [40].
67 There is not necessarily anything impermissible about such an approach, but the material a Tribunal relies upon must be probative of the findings it makes in purported reliance on that material: see Deane J’s observations in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 366-367, WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 at [22], and the authorities there referred to.
68 Before the key passage impugned on ground 1, the Tribunal embarks on a series of findings which are somewhat contradictory.
69 At [41], the Tribunal appears to find the applicant is not a reliable, or honest, witness:
Counsel for the Minister referred to the several occasions on which the Applicant knowingly provided false information to various authorities regarding his role in the LTTE. I am satisfied that on more than one occasion the Applicant was not honest in giving information. He accepted that this was the case in his oral evidence. I agree with the Minister that I should consider his evidence “with some circumspection and caution”.
70 Yet in the very next paragraph, rather than doubting the applicant’s evidence, the Tribunal relies on it (at [42]):
The Applicant gave evidence that cadres in the camp at [District B] collected food from villages and stored and cleaned weapons for use by the LTTE. On the basis of this evidence I am satisfied that there are serious reasons for considering that, as the person responsible for the day-to-day operation of the camp, the Applicant was using persons in the camp to participate in hostilities.
71 This paragraph is the subject of ground 2, and I will return to it below. Then in [43], the Tribunal again relies on what the applicant is reported to have said in the delegate interview. Then, at [44], is the finding which is the subject of ground 1:
Although the Applicant has denied that there were children under 15 years in the [District B] camp when he was in charge between 1990 and 1996, his responses to the delegate during the interview on 14 May 2018 provide serious reasons for considering that the Applicant used children under 15 years to assist in the operations of the camp and therefore that he used them in the hostilities in which the LTTE was engaged at the time. Article 8(2) of the Rome Statute does not require that the children be proved to have borne arms for a crime to have been committed.
(Emphasis added.)
72 I accept the applicant’s submissions that [44], read with [45], makes it clear the Tribunal relied on nothing else but the 14 May 2018 delegate interview for this finding. That proposition is established by the portion of [44] I have highlighted in bold, and also the portion of [45] below which I have highlighted in bold:
On the basis of the Applicant’s responses in the interview of 14 May 2018, I am satisfied that there are serious reasons for considering that:
• children engaged in the camp under the Applicant’s control were under the age of 15 years;
• the Applicant knew, or should have known, that the children concerned were under the age of 15 years;
• persons engaged in the camp provided assistance to the LTTE by supplying food and cleaning and storing weapons;
• the conduct took place in the context of, and was associated with, an armed conflict between the LTTE and the Sri Lankan Army which was not of an international character;
• the Applicant was aware of the factual circumstances that established the existence of an armed conflict.
73 Thus, the only material the Tribunal purports to rely on is what was said by the applicant in the delegate interview. This approach seems to stem, as I have said, from the Tribunal’s focus on what was said by French J in WAKN at [52], as the extract at [65] demonstrates.
74 Although it had set out in its reasons at an earlier point some of the evidence given by the applicant to the Tribunal itself, the Tribunal did not rely on this for its adverse findings. The explanation for that is apparent from the fact that the extract of the applicant’s evidence set out in the Tribunal’s reasons at [29] provides no support for an adverse finding against him. It is a long extract but it should be set out, because it is apparent that in his evidence to the Tribunal the applicant was denying he had any knowledge of the use of children under 15 at the camp in District B, and thus his own evidence to the Tribunal could provide no probative basis for the findings the Tribunal made. The applicant gave his evidence via an interpreter.
COUNSEL FOR THE MINISTER: Are you aware that during the 1990s the LTTE was regularly using persons under 18 as soldiers?
BYJB: I’ve only heard about those people who voluntarily joined, but I did not see those people.
COUNSEL FOR THE MINISTER: All right, so is this right, that while you were the commander of the camp between 1990 and 1996, you were aware that the LTTE did have voluntary soldiers who were under 18? Is that right?
BYJB: (Indistinct) I have heard about that, but I don’t know about the age. (Indistinct). The person who was in charge was Karuna. And I’ve heard that there were some who were this Karuna.
COUNSEL FOR THE MINISTER: Well is it the case that you were aware that there [were] soldiers under the age of 15 at camps near [your] camp, in Batticaloa and [District B]?
BYJB: I’ve heard. But I do not know to give you - I do not know how to tell this. I am unable to give you any further explanation about this.
COUNSEL FOR THE MINISTER: Well, do you accept that there were children under the age of 15 at camps near yours in Batticaloa and [District B]?
BYJB: I do not know how to say this. I do not know how to confirm this and say this. And I do not remember what I have said in the past.
COUNSEL FOR THE MINISTER: Well, I’ll just refresh your memory. Deputy President, this is by reference to the day 2 transcript, page 157 and 158. And Mr Applicant, you were asked - according to the transcript - you were asked a question:
In your camp and the people you were fighting with, were there any people under the age of 15 years old, or 15 and under?
And, if you want to get that down, I’ll then tell you the next part of the - and then on the next page of the transcript you are recorded as giving an answer:
In Batticaloa and [District B], in both places they were there.
And then you say:
No, not in my camp, in other camps.
So, is that evidence correct?
BYJB: Correct.
COUNSEL FOR THE MINISTER: That is correct? Thank you. And in the time you were at this camp - so, between 1990 and 1995 - did you see any LTTE soldiers who were under 15?
BYJB: I don’t remember, but I have (indistinct).
COUNSEL FOR THE MINISTER: Okay, well are you able to remember now whether you did see children under 15 as LTTE soldiers in that time?
BYJB: What I have heard is for Batticaloa and [District B], the person who was in charge for us was Karuna. And I’ve heard that he had, however, I didn’t have the opportunity to find out or ask about their ages. And I wasn’t able to.
…
COUNSEL FOR THE MINISTER: So, you just said that you understood that soldiers had to be 18 years or older, but I’d suggest to you that there is a substantial amount of country information before the tribunal that says that the LTTE regularly used children as young as nine as soldiers. What do you say about that?
APPLICANT [i.e., BYJB]: Well I haven’t seen a nine year old, but I do not want to argue about it. I can argue about it, but I do not want to do that. That is because the war has come to an end. Everybody knows who started the war and those people who know who came up with these laws, why the war was started.
COUNSEL FOR THE MINISTER: I put it to you that the LTTE was regularly using people under the age of 18 as soldiers. Do you accept that, or not?
APPLICANT: Yes, that’s what I am saying.
COUNSEL FOR THE MINISTER: Okay so when you said that you gave evidence that you understood a soldier to be 18 or older, in fact do you accept that there were many soldiers who were younger than that (indistinct)?
APPLICANT: Yes, sir, I do agree that there were, but I cannot say what age they were.
COUNSEL FOR THE MINISTER: Okay, well in relation to your camp that you were in charge of between 1990 and 1996, were there any children under your command who were under the age of 15 years?
APPLICANT: No one was there under my - when I was the in charge person.
COUNSEL FOR THE MINISTER: And how did you know the ages of the soldiers under your command?
APPLICANT: There was a head office, and also apart from that we were separately located, but there would be someone who does the clerical work, (indistinct) a clerk, who would have the height and the age and other details.
(Citations omitted.)
75 If it sought to focus on the applicant’s own evidence, in order to make a finding adverse to him, the Tribunal needed to look elsewhere than his evidence to the Tribunal. It looked to the delegate interview. That much is clear from the Tribunal’s reasons.
76 The age of people present in the camp in District B was no more than touched on with the applicant during the delegate interview. There are only two possible passages of the applicant’s evidence to which the Tribunal could be referring.
77 The first is the following passage. Again, the applicant’s evidence was given via an interpreter.
[Delegate]: So, your rank, your rank and length of service would indicate that you were a trusted mid to senior LTTE cadre. OK, and at times you were working in the political wing. So this would indicate that you probably had some involvement in recruitment and training of new recruits. So, what involvement did you have in recruitment for a start?
[BYJB]: Yeah, the thing is just that was not my job because actually the people who were recruiting them, they are the people who are allowed to go and live with the civilians. So they go there and they do the propaganda or anything and also most of the people they willingly came and joined with us. After the cease-fire … only after the cease-fire was broken only, they forcibly recruit, the LTTE … they forcibly start to recruit the people. Before that, most of the people they were came and joined with them.
[Delegate]: Well, the country information indicates that during the 1990’s, in the East, in particular, the LTTE had a tactic of forced recruitment. So, basically, if a family refused to give over one of their children --this was in the 90’s when you were working there-- if the family refused to give over one of their children to join the movement bad things could happen to that family. So, so, forced recruitment wasn’t just after the cease-fire. And it was a very strong tactic of Karuna.
[BYJB]: I was not aware they are forcibly recruiting anyone before that, because I know that after the cease-fire was broken only, the Karuna was separated then he forced everyone to come and join with him.
[Delegate]: So, you’re saying that even though you were in the political wing of the LTTE of that period, dealing with civilians where mothers would come and say, “Where is my child?” you had no idea that forced recruitment was going on?
[BYJB]: Yeah, the thing is just honestly I am telling you at that time, we were not forcibly taking anyone. The child maybe came and joined with us willingly, the mother came and find out, we heard … they learned that the child was joined, so they’re there to find out that information about that child, where is he now and that kind of things. So, I am passing that information to the other people to find their son, where is the location and everything.
78 Two points are clear. First, this evidence concerns forcible recruitment rather than participation in hostilities; that is the first limb of Art 8(2)(e)(vii), not the second. The applicant denies there was forcible recruitment. Next, there is no evidence at all given by the applicant about the age of persons recruited. This passage provides no probative basis for the Tribunal’s findings at [44] and [45].
79 The second passage is the following, which occurred immediately after the first passages.
[Delegate]: OK, well what about when you were in the LTTE as a commander, did you have child soldiers working for you?
[BYJB]: Yeah, the thing is actually when I was there, yes, there were child soldiers. Personally, I went and asked them, “Why did you come and join here?” But the bad thing was happened, they went and informed to my supervisor I am asking … questioning them like this. So there were many young soldiers were released to go back to their home to join with their parents, they are living there still.
[Delegate]: Yeah, in 1998, when you were in Batticaloa, it was estimated that of all the LTTE combatants killed in combat, 40% were below the age of 18. Now, between 2002 and 2004, again, while you were a member of the LTTE, the UNHCR document, so the UNICEF documented 4600 cases of under-age LTTE recruitment. Yeah, the LTTE released only, of those 4600 cases only 1208 children were actually released after being identified. OK. So, as a relatively higher level member of the LTTE, you must have been aware that the LTTE was recruiting significant numbers of under-aged combatants.
[BYJB]: Which time period that you are meaning?
[Delegate]: The whole time period.
[BYJB]: Yes, as I said, again and again, for most of those people there were willing to come and join, no-one was forced them but after that the parents came and found their children. The LTTE sent them back with their parents but most of the child soldiers, they don’t want to go back.
[Delegate]: It’s not a matter of whether they want to go back or no want to go back, again, under the Rome stat … under the various protocols relating to war crimes, recruitment of child soldiers is a war crime. (Interpreter speaks) No, sorry, just let me finish, so you knew that the LTTE had under-age soldiers working for them?
[BYJB]: Yes, I know that. There were.
[Delegate]: But you chose to remain in the LTTE as a relatively senior member for a significant period of time despite knowing that?
[BYJB]: The thing is just, though I also a senior member, I did not have the rights to release them. Even if I asked them to escape from there, if my supervisor comes to know he will kill me.
[Delegate]: OK. So, I’m just going to ask … I am not going to dwell on this any further, but it’s something which I’m going to ask if you could address that in any submissions.
[BYJB’s representative]: Well, I think it’s … you’re casting a very wide …
[Delegate]: (interrupts) Well, anyhow, so…
[BYJB’s representative]: (continues) He’s never ever, and even ASIO never even found that he was involved in recruitment….
80 Again, this evidence concerns forcible recruitment. Next, insofar as the delegate directs the applicant’s attention to the use of children by the LTTE (generally, rather than by the applicant), he does so in relation to persons aged under 18, not 15. The age of 18 is the only age that is mentioned. The applicant is not asked, and gives no evidence about, what he means by a “child”.
81 This passage provides no probative basis for the Tribunal’s findings at [44] and [45]. Specifically, neither of these passages provides any probative basis for the findings that:
(a) any children at the camp in District B were under 15 years of age;
(b) any children under 15 years of age at the camp in District B were “under the Applicant’s control”; and
(c) the applicant knew the children concerned were under the age of 15 years.
82 Further, the Tribunal also makes a finding of no, or little, relevance to its task, being that there were “persons engaged in the camp [who] provided assistance to the LTTE by supplying food and cleaning and storing weapons”. Whether or not there were “persons” so engaged, such a task could not advance the issue on review before the Tribunal one way or the other. The correct focus was on whether there were children under the age of 15 years at the camp in District B who were engaged in tasks that fell within the concept of them being used by the LTTE actively to participate in hostilities.
83 That the Tribunal erred in its reasoning on this critical aspect of Art 8(2)(e)(vii) is reinforced by the finding made by the Tribunal at [42] in the last sentence that:
the Applicant was using persons in the camp to participate in hostilities.
(Emphasis added.)
84 The question for the Tribunal was not about the use of “persons”; it was about the use of children under 15. Not all children, but children under 15.
85 There is no place for the application of Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 to these kinds of findings. This Tribunal made the very barest of factual findings in any event. Its reasons are conclusory. No “fine eye attuned to error” is being applied to reach the conclusion the Court reaches. The error is plain to see in the slim finding made by the Tribunal. It took a clearly wrong turn.
86 The Minister’s response to this ground did not direct the Court to any other passages of transcript where the applicant gave evidence capable of being probative of the Tribunal’s findings. Instead, the Minister relied only on one sentence in [42] of the Tribunal’s reasons, where the Tribunal found:
The Applicant gave evidence that cadres in the camp at [District B] collected food from villages and stored and cleaned weapons for use by the LTTE.
(Emphasis added.)
87 The Minister’s response to this ground is unpersuasive. At best, this evidence does no more than support the Tribunal’s finding that “persons engaged in the camp provided assistance to the LTTE by supplying food and cleaning and storing weapons”. The Minister accepted that “cadre” simply meant LTTE member, and that is how the delegate used the term in his decision. That the applicant gave this evidence goes nowhere near providing a probative basis for the key findings of the Tribunal.
88 Ground 1 should be upheld.
Ground 2: Misunderstanding of “participating actively in hostilities”
89 As I have explained, the Appeals Chamber in Lubanga held that “active participation in hostilities” did not need to be direct participation in hostilities, and that the Trial Chamber erred in its formulation requiring children under 15 to engage in conduct that exposed them to “real danger” as a “target”. It held that there needed to be a sufficiently close relationship between the activities that children under 15 were undertaking in an armed conflict, and the hostilities of that conflict. Exposure to risk during the activity or activities might be an “indicator” of the existence of a sufficiently close relationship, but does not replace the assessment of the relationship itself.
90 It will be recalled that in Lubanga the Appeals Chamber upheld the Trial Chamber’s finding that having children under 15 acting as bodyguards to commanders (including Mr Lubanga himself), and doing so in an active conflict zone, was a sufficiently close relationship. In this context the Appeals Chambers also referred to the Trial Chamber’s finding that children under the age of 15 had been deployed by the UPC/FPLC as soldiers and participated in combat, and held it was “beyond dispute” that this was a sufficiently close relationship for the purposes of the second limb of Art 8(2)(e)(vii): Lubanga Appeal at [336]-[337].
91 The only finding by the Tribunal about the nature of the participation of children in the camp in District B is the single sentence I have extracted at [86] above. I accept the applicant’s submissions that there is no reasoning, at all, about how this finding of fact establishes a “sufficiently close relationship” or a “link” to the hostilities against the SLA occurring at that time, in which the LTTE was engaged. There are no factual findings by the Tribunal about the role or function of the camp in District B, nor about whether soldiers participating in combat for the LTTE were living at the camp in District B, nor where they participated in combat, if they did. It is apparent from the material before the Court that there may have been evidence upon which the Tribunal could have made such findings, but it made none at all. It simply leapt, as the applicant submitted, from the factual finding about how “persons” were used to supply food and clean and store weapons to the conclusion that there were serious reasons for considering the applicant “was using persons [not children under 15] in the camp to participate [actively] in hostilities” (emphasis added).
92 Ground 2 should be upheld.
Ground 3: Legal unreasonableness
93 I have set out my approach to the consideration of a ground of legal unreasonableness in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 at [109]-[111]:
I accept that the term “plainly unjust” (or “manifestly unjust”) is used in some of the reasons for judgment in Li (see, for example, at [70], [76] (Hayne, Kiefel and Bell JJ), [110] (Gageler J)) by reference to earlier authorities such as Kruse v Johnson [1898] 2 QB 91 at 99-100, House v The King (1936) 55 CLR 499 at 505, and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1178 [68]. It might be said that injustice is generally a consequence of legal unreasonableness. However, moving to the language of “plainly unjust” in the exercise of supervisory jurisdiction, rather than in the context of appellate review of a discretionary judgment, may tend to encourage individual assessments of the desirability of the outcome, a tendency which would not be consistent with a court’s constitutional function, as described by Brennan J in Quin at 35-36.
For my own part, and with great respect to those who have a different view, until the law about legal unreasonableness in Australia becomes more developed in its application and in its nuances, I prefer to restrict my articulation of principle to asking whether the exercise of power or performance of a function is such that no decision-maker, acting reasonably, could have approached the exercise of power or performance of the function in that way, in the statutory context and factual circumstances as they were at the relevant time. To my mind, adhering to that kind of approach emphasises, as Gageler J said in Li at [113], the stringency of the test, and the fact that judicial determinations of legal unreasonableness have, in practice, been “rare”. Of course, the descriptor “rare”, in the migration jurisdiction of the Federal Circuit Court, this Court and the High Court, must be applied taking into account the thousands of cases determined each year. In that context, the number of times a legal unreasonableness ground is upheld remains, in my view, “rare”.
Justice Gageler repeated observations to this effect in SZVFW at [52], in terms with which I respectfully agree:
Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the “extremely confined” scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words.
(Footnotes omitted.)
94 I adhere to those views. The threshold for legal unreasonableness is a high one. Relevantly to ground 3, the question is whether no Tribunal member, acting reasonably, could have utilised the passages from the delegate’s interview said to be affected by interpreting errors in the way this Tribunal member did. That question should be answered against the applicant.
95 The applicant relies on the Tribunal’s reliance and reproduction, at [23] and [25] of its reasons, of two passages from the delegate interview which he contends had been interpreted wrongly. It is fair to say the passage at [23] of the Tribunal’s reasons featured more prominently in argument, as it was this passage which was also said to be critical to the evaluation of ground 1 of the application.
96 This ground should be rejected, for the reasons given in argument on behalf of the Minister. During the review hearing, the transcript shows the Tribunal was conscious of the interpreting issues that had previously been raised on behalf of the applicant, and which had resulted in the reconstitution of the Tribunal. It had a table of agreed interpreting errors before it, which was also in evidence on this application. During its own hearing, the Tribunal held what counsel referred to as a “voir dire” about how the applicant could, or could not, be cross examined on what he said at the delegate interview, because of the interpreting issues. While counsel’s description “voir dire” might be inappropriate for a hearing in an administrative tribunal, the relevant fact is that the Tribunal well understood that there were objections to aspects of the applicant’s evidence in (relevantly) the delegate’s interview being used, because of interpreting errors.
97 I have considered the table of interpreting errors. It was not a document disputed by the Minister. The interpreting errors revealed by the table are not of a nature that substantively affected the way some of the passages containing those errors were used by the Tribunal in its reasons – for example, at [23].
98 The applicant’s submissions did not link the interpreting errors with any of the Tribunal’s findings, so as to demonstrate how reliance on a wrongly interpreted passage had contaminated the Tribunal’s reasoning. If anything, all that occurred was the miscarriage of the Tribunal’s task identified in ground 1. That miscarriage happened to involve one of the wrongly interpreted passages – but the error I have accepted was made by the Tribunal had nothing to do with the incorrect interpretation. On the correct interpretation, the point was the same. In the very particular passages relied on by the Tribunal, in neither the incorrect nor the correct interpretation had the applicant given any evidence that he knew there were children at the camp in District B who were under 15 years of age. The interpreting errors made this error no better, nor any worse.
Materiality: Were the errors jurisdictional?
99 Counsel for the Minister submitted the error alleged in ground 1 was not material to the exercise of power by the Tribunal. As far as I can see, no submissions on materiality were made in respect of ground 2. Even if the Minister contended for a lack of materiality in both grounds 1 and 2, I reject that contention. Both errors went to the core task of the Tribunal in determining the review, being a review afresh of whether the elements of Art 8(2)(e)(vii) were met in respect of the applicant’s conduct at the camp in District B. This was the only aspect of the review decided unfavourably to the applicant. The Tribunal’s errors deprived the applicant of a possibility of a successful outcome on the review. The errors were jurisdictional in nature.
100 To this could be added the paucity of fact finding and reasoning by the Tribunal, on what was on any view an issue of utmost seriousness. The applicant had been denied the surrogate protection otherwise available under the Refugees Convention by reason of the very serious finding inherent in an application of s 5H(2). It could not be said that the Tribunal had expressed “a rational foundation for a strong inference of guilt”, or had identified in its reasons evidence that was “clear and credible or strong”, nor that the Tribunal had conducted a “meticulous investigation” which had led to its “actual persuasion”. The Tribunal’s reasons were attenuated, abbreviated and in the end reliant on only one source. When one removes the parts in that source affected by error, there is little reasoning left.
Conclusion
101 There will be orders setting aside the decision of the Tribunal, and remitting the matter for reconsideration according to law. It is unfortunate from the applicant’s perspective, but this order will mean the entire review by the Tribunal must be conducted again. Given the Tribunal’s adverse credibility findings, it is appropriate the Tribunal be differently constituted.
102 The applicant arrived in Australia in 2009. It may well be appropriate that his claim for protection in Australia is revisited in a more holistic sense. It might be thought that 13 years’ uncertainty is enough, especially given he has been residing in the community for a considerable period of time, and exclusion provisions such as s 5H(2) do not have a punitive purpose. However, that is a decision for the Executive, not the Court.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. |
