Federal Court of Australia

RSZN v Minister for Immigration and Citizenship [2026] FCA 1467

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Second Respondent dated 21 May 2025.

2.    A writ of mandamus issue directing the Second Respondent to determine the Applicant’s application for review according to law.

3.    The First Respondent pay the Applicant’s costs of the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant is an Iraqi citizen and Shi’a Muslim. He was (until shortly before the collapse of the regime of Saddam Hussein) an officer in the Iraqi army, attaining the rank of Lieutenant Colonel. On 7 December 2016, a delegate of the first respondent (Minister) refused to grant the applicant a Safe Haven Enterprise (subclass 790) visa. On review by the Immigration Assessment Authority, the matter was remitted with a direction that the applicant satisfied the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (on the basis of the applicant’s Shi’a faith and the security situation in Baghdad). On 30 June 2020, a (different) delegate found that the applicant was taken not to satisfy the criterion in s 36(2)(aa) of the Act because s 36(2C)(a)(i) applied to the applicant – that is, the delegate had serious reasons for considering that the applicant had committed crimes against humanity – thus excluding him from the terms of s 36(2)(aa).

2    On 21 May 2025, the second respondent (Administrative Review Tribunal) affirmed the decision of the delegate (TD). The applicant now applies for judicial review of that decision.

3    For the reasons that follow, the applicant’s amended application for judicial review will be allowed with costs.

Grounds of review

4    The applicant raises the following two grounds of review:

(1)    The Tribunal erred by failing to act on a correct understanding of the applicable law, namely by overlooking requirements as to intent and degree of involvement for the relevant crimes against humanity as required by Art 25(3) of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

(2)    The Tribunal erred by failing to undertake its statutory task, namely to form a state of satisfaction as to there being ‘serious reasons for considering’ the applicant had committed a crime against humanity, including having regard to the nature, form and context of the material on which it relied.

Key findings of the Tribunal

5    At TD [17], the Tribunal set out that s 5H(1) of the Act defines ‘refugee’, but, under s 5H(2) a person is excluded from that meaning if the Minister has serious reasons for considering that, relevantly, “the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the [R]egulations”. At TD [18], the Tribunal noted that, similarly, under s 36(2C)(a)(i), if the Minister has serious reasons for considering such a crime has been committed, then the person is excluded from the terms of complementary protection in s 36(2)(aa).

6    At TD [19], the Tribunal accepted that the Rome Statute was an appropriate instrument prescribed by the Migration Regulations 1994 (Cth) at r 2.03B, for the purpose of considering the commission of crimes against humanity: citing SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 1; [2005] FCAFC 42 at [67] and [76] (Merkel, Finkelstein and Weinberg JJ).

7    At TD [22] and [25], the Tribunal set out Art 7 of the Rome Statute. At TD [27]–[33], the Tribunal set out: the elements of each of the crimes against humanity of murder, extermination, deportation or forcible transfer and persecution; the circumstances in which individual criminal responsibility will be imposed under Art 25(3); and the required mental element for criminal responsibility in Art 30(1).

8    At TD [35], the Tribunal indicated that the single issue before it was whether there were serious reasons for considering that the applicant had committed crimes against humanity.

9    At TD [36]–[52], the Tribunal set out and analysed the applicant’s evidence. The evidence related primarily to two campaigns, the Anfal campaign and the Basra uprising. It was not disputed that the applicant was a career officer and served in the Iran-Iraq War. There was “less clarity” regarding the applicant’s unit affiliation and his postings.

10    The applicant gave evidence that he was in Basra from the end of the Iran-Iraq War to 1993, including a posting to “northern Iraq”: TD [43]. The applicant denied being involved in the Basra uprising: TD [46].

11    At TD [44]–[45], the Tribunal recounted the following evidence given by the applicant in his protection visa interview (and recorded in the transcript of that interview), which is of significance to this application:

In his protection visa interview RSZN agreed that he went to Erbil straight after the end of the Iran-Iraq War (T27, 371). He stated that he ‘was in command of different units’ and that ‘we had a crackdown’ on rebels. RSZN also stated that ‘we attacked them … we got them … [a]nd then the area became safe’. Shortly following this, the Applicant stated (T27, 372):

We went – we climbed the mountains to where they were, and there were the planes – aeroplanes coverage for us, which bombarded them. And sometimes the – what is it called? The tankers, sorry, tankers also would shoot at them [amended then to field artillery]

RSZN went on to state about the rebels:

Well, they were fighting against the government and then they would run, hide into the mountains and these mountains of course being the borderline between Iran and Iraq, they would then flee to Iran. The mountains were so high … it could take up to 16 hours to climb to reach those points which these rebels were hiding …

…

Now, those units who would provide us with food, stuff or arms, and weapons, and all these things, which is the administrative or the food supplies or whatever we needed … it will take them, like, 16 hours to reach us there.

12    The applicant maintained that, following an injury in 1986, “he performed administrative duties only, as opposed to taking part in, or commanding, infantry fighting”, including during his time in or about Erbil, and “in short, … stated that he had nothing to do with the Anfal campaign, which he said involved insurgents”: TD [48]–[49].

13    At TD [53]–[63], the Tribunal summarised the country information regarding the Anfal campaign. At TD [55]–[56], the Tribunal referred to the Human Rights Watch report entitled “Genocide in Iraq: The Anfal Campaign against the Kurds”, and the “Anfal” report by the Centre of Halabja against Anfalization and genocide of the Kurds (Anfal Report) (being the document referred to by the Tribunal as T47), and said as follows:

Human Rights Watch describe the Anfal as the ‘centrepiece’ of the Kurdish Genocide of 1987-1989. The claim to genocide is supported by reference to Raul Hilberg’s The Destruction of the European Jews (1961) in which three organic steps of definition, concentration (or seizure) and annihilation represent an ‘invariant structure’: ‘for no group can be killed without a concentration or seizure of the victims, and no victims can be segregated before the perpetrator knows who belongs to the group’.

Following the establishment of a legal and bureaucratic structure to underpin the campaign, chemical weapons were used for the first time in history against a state’s own civilian population in April 1987 (T34, 563). The Anfal campaign followed village clearances and a national census (T34, 563), and comprised eight comprehensive military offensives lasting from 23 February 1988 to 6 September 1988 (T47, 1019). A conservative estimate is that 50,000 rural Kurds died in the Anfal, and many thousands of women and children perished, most in two clusters associated with the third and fourth Anfal (T34, 566). Another summary proposes that the Anfal involved the destruction of hundreds of villages, the death and disappearance of 182,000 and the flight of hundreds of thousands of refugees (T47, 1037).

14    At TD [59], the Tribunal said that on the applicant’s evidence, he was in Erbil in the latter part of 1988. The Anfal report described the final phase of the Anfal campaign taking place between 25 August and 6 September 1988 (in the Badinan district, being a large region to the north of the city of Duhok and reaching up to the Turkish border).

15    In relation to the Basra uprising, the Tribunal said the following at TD [64]:

The Introduction to a Human Rights Watch report from mid-1991 (T29, 402) provides a valuable summary of the context for incidents that took place in Basra:

Widespread human rights violations were reported in Iraq following the withdrawal of Iraqi forces from Kuwait on 26 February 1991. These violations were perpetrated in the aftermath of a mass uprising which began on 1 March 1991 in several cities in southern Iraq, and which spread to the Kurdish regions of northern Iraq. Widespread arrests, torture and mass extrajudicial killings of individuals suspected of having taken part in the uprising were carried out by Iraqi military, intelligence and security personnel. Unarmed civilians, including women and children, were also targeted, including in situations outside the context of armed conflict. The human rights violations summarised in this document were brutal in the extreme, and effectively ensured the ending of the uprising by late March/early April 1991. Over 1.5 million Iraqis fled their country in less than one month, while the fate of many of those who remain in Iraq can only be assessed in terms of Iraq’s past human rights record.

16    At TD [93], the Tribunal found that the applicant “was engaged as an infantry officer in operations outside Erbil in the latter part of 1988. The issue then arising is what form of individual criminal responsibility lies in these circumstances, and for what crime or crimes”.

17    At TD [94], the Tribunal was unable to find the applicant personally responsible, under Art 25(3)(a) of the Rome Statute, for any of the crimes against humanity of: murder, extermination, deportation or forcible transfer, or persecution. The Tribunal said:

[T]he country information and evidence in this matter is characterised by a degree of generality that limits the range of findings available to me in respect of individual criminal responsibility. … Some or all of these [crimes against humanity] might arise by extrapolation from the nature of the campaign, however it remains a matter of speculation whether the Applicant can be so closely associated with killing, the forcible movement of people and the deprivation of fundamental rights.

18    At TD [95], the Tribunal considered that “ordering, soliciting, or inducing as expressed in Art 25(3)(b) of the Rome Statute, also require greater granularity of circumstance to be made out”.

19    At TD [96], the Tribunal considered Art 25(3)(c) (aiding, abetting or otherwise assisting), and found that the material could not support such a finding in relation to murder, extermination or forcible transfer as they entail specific forms of conduct that were not made out with any degree of certainty from the evidence concerning the applicant’s participation or that of his unit.

20    However, the Tribunal found that there were serious reasons for considering that the applicant assisted in the persecution of Kurdish people and did so contrary to Art 25(3)(c) of the Rome Statute.

21    The Tribunal also found that there were serious reasons for considering the applicant had contributed to the commission or attempted commission of the crime of persecution by a group of persons acting with a common purpose, contrary to Art 25(3)(d), finding at TD [98]:

Furthermore, art 25(3)(d) reflects an even lower threshold for participation, and is directed at a person’s participation in a group acting with common purpose. While I am satisfied with RSZN’s individual responsibility under the previous subparagraph of art 25(3), I consider these same findings must apply equally, if not more so, to the contribution made by the Applicant as an infantry officer in a unit, as part of a wider group of forces, deployed to pursue a campaign of persecution against the Kurds. His conduct in undertaking operations, as I have found, was made in the furtherance of the common criminal activity knowingly, and understanding its consequences.

22    At TD [102], the Tribunal found that, based on the available country information, the civilian population in Basra in and around March 1991 was subjected to crimes against humanity, in particular, murder, extermination and persecution of the local population. However, at TD [104], the Tribunal found that despite the applicant’s presence in Basra in or around March 1991, at its highest, the applicant’s written evidence amounted to observing bodies and the aftermath of action.

23    At TD [51] and [104], the Tribunal noted that it was sceptical of the applicant’s self-serving oral evidence to the Tribunal in relation to the Basra uprising, including his evidence that he was only “a supplier of sleeping bags”. The Tribunal was not satisfied the material permitted any relevant findings to be made about the applicant’s complicity, directly or indirectly, in crimes against humanity in relation to the Basra uprising, and that, at best, the applicant might be considered complicit “solely by extrapolation, or correlation”, which was insufficient: TD [105].

24    In summary, the Tribunal found there were serious reasons for considering that the applicant was individually responsible pursuant to Art 25(3)(c) and/or (d) for the crime against humanity of persecution, and therefore, was excluded from refugee status under s 5H(2)(a) of the Act and from complementary protection under s 36(2C)(a)(i). It is this finding that is the subject of the application for review.

Ground 1

Article 25(3)(c)

Applicant’s submissions

25    The applicant submits that the Tribunal erred by failing to act on a correct understanding of the applicable law, by overlooking requirements as to the intent and degree of involvement as required by Art 25(3) of the Rome Statute.

26    The applicant contends that the Tribunal misunderstood the “purpose” requirement in Art 25(3)(c) of the Rome Statute because the Tribunal made no finding that the applicant “lent [his] assistance with the aim of facilitating the offence”.

27    The offence of a crime against humanity under Art 7.1 of the Rome Statute includes “acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Such acts can include “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law” (Article 7(1)(h)).

28    As I have said, the Tribunal considered both Art 25(3)(c) and (d), as alternative means of establishing individual criminal responsibility for the crime of persecution.

29    Art 25(3)(c) requires that the relevant person “… 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…”. The applicant submits the assistance must have been “for the purpose of facilitating the commission of such a crime” and that that phrase creates an additional requirement for the mental element of the offence.

30    In GZCK v Minister for Home Affairs (2021) 290 FCR 96; [2021] FCA 1618, Stewart J, at [173(2)], in considering the authorities on Art 25(3)(c) said that “[t]he 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”.

31    The applicant submits that the Tribunal concluded that the applicant was not “personally responsible for any of the crimes against humanity of murder, extermination, deportation or forcible transfer or persecution” (under Art 25(3)(a)), nor was he involved in “ordering, soliciting, or inducing” crimes (under Art 25(3)(b)): TD [94]–[95]. Further, as I have said, the Tribunal found there was insufficient evidence that the applicant was complicit (under Art 25(3)(c)) in the crimes against humanity of “murder, extermination, deportation or forcible transfer”: TD [96]. But the Tribunal did find that the applicant was individually responsible for the crime of persecution pursuant to Art 25(3)(c) and (d).

32    Specifically, the Tribunal found at TD [97]:

The Anfal generally, and the Applicant’s personal role, both involve the persecution through the severe deprivation of fundamental rights of the Kurdish population, targeted specifically because of their identity and ethnic and/or political grounds. I consider it reasonable to conclude that RSZN as an officer in an infantry unit deployed to pursue the government’s campaign outside Erbil can be understood as – at least – assisting with the commission or attempted commission of the crime against humanity of persecution. RSZN as an officer in a command role also fulfils the mental element in accordance with art 30(1) in that he meant to engage in the conduct, and understood the consequences for the local population. This is also supported by the Applicant’s evidence of his direct role in operations.

33    The applicant submits that this passage reveals the Tribunal’s misunderstanding of the requirements of the law it was purporting to apply, being Art 25(3)(c). It also shows, in the applicant’s submission, a non-application of a critical part of the requirements of that law. The applicant submits that later, when the Tribunal deals with the applicant’s “alternative version of events”, at TD [100], the Tribunal made the same error of ignoring or misunderstanding the applicable law. The Tribunal said at TD [101] that “an officer in the headquarters of an infantry unit undertaking operations in pursuit of Kurds must be otherwise assisting in the commission of that crime …”. The applicant submits that this conclusion also does not make any finding in respect to the required mental element for Art 25(3)(c) – that is, the Tribunal does not make a finding that the applicant, in undertaking operations in pursuit of Kurds, had the aim of facilitating that offence.

34    The applicant submits that the Tribunal made no finding that he “lent [his] assistance with the aim of facilitating the offence”. Instead, the applicant submits that the Tribunal only made a finding that the applicant “merely kn[ew] his conduct would assist the principal perpetrator in the commission of the offence”. That is not sufficient: GZCK at [173(2)].

35    As a consequence, the applicant submits that the Tribunal misunderstood the mental element of the offence. The applicant submits that so much is made plain when the Tribunal merely recited the two elements of Art 30 when addressing the “mental element”. In so doing, the Tribunal ignored the fact that Art 25(3)(c) “introduces a subjective threshold which goes beyond the ordinary mens rea requirement within the meaning of Art 30”, and it “implies a specific subjective requirement stricter than mere knowledge”. Further, the Tribunal gave no indication that it understood that there was the “two-fold intent” requirement involving a “higher subjective mental element”. The applicant submits that whether the Tribunal understood this higher subjective mental element or not, it made no finding in respect of the purpose/intent requirement and thereby did not apply the law correctly.

Minister’s submissions

36    The Minister submits that the applicant’s contention that the Tribunal misunderstood the “purpose” requirement of Article 25(3)(c) of the Rome Statute because the Tribunal made no finding that the applicant “lent [his] assistance with the aim of facilitating the offence”, must be rejected. The Minister submits that the Tribunal correctly identified the requirements for individual criminal responsibility in Art 25(3)(c) (at TD [31]) and no misunderstanding is otherwise shown in the Tribunal’s reasons for concluding that the applicant provided assistance as described in Art 25(3)(c).

37    The Minister submits that a key part of the Tribunal’s reasoning is that the applicant was
“an officer in an infantry unit deployed to pursue the government’s campaign outside Erbil”. In this respect, there was “no dispute in this matter as to the general character and duration of the applicant’s career in the Iraqi army”. The written and oral evidence together demonstrated that the applicant was a career officer who served in the Iran-Iraq War following graduation from military college: TD [39]. The Tribunal also observed that, “[c]learly enough, the applicant’s own written and oral evidence places him in and around Erbil at some point in the latter part of 1988”.

38    The Minister submits that the Tribunal found that the applicant was an officer in an infantry unit deployed to pursue the Anfal campaign outside Erbil in the latter part of 1988 (TD [93]), a period in which there were “eight comprehensive military offensives lasting from 23 February 1988 to 6 September 1988”: TD [56]. The Tribunal also found that, as an infantry officer, the applicant had been “engaged in field operations against ‘rebels’”, including “physically moving into challenging terrain to undertake these operations, with support from other army elements. This support included fire support”: TD [90]. The Tribunal stated that it preferred the view that the applicant was involved in combat operations outside Erbil: TD [100]. The Tribunal rejected the applicant’s later variations to his written evidence aimed at minimising, in critical ways, the applicant’s active participation in operations against the civilian population: TD [90].

39    The Tribunal observed that, “even in a support capacity” the applicant had “insight into the location of operations”, “the objectives of the army’s activities”, and “insight into and knowledge of unit activities”: TD [92].

40    The Minister submits that the Tribunal was entitled to draw inferences as to the applicant’s active participation in combat without making findings at any further level of granularity. It not being necessary that there be a finding with respect to a specific incident or perpetrator: GZCK at [173(1)].

41    The Minister submits that the facts as found by the Tribunal, in combination with the identification of the “purpose requirement” at TD [31], support the inference that the Tribunal in fact found that the applicant lent his assistance for the purpose of facilitating the commission of the crime. The Minister submits that this is supported also by the Tribunal’s careful rejection of the applicant’s complicity in crimes against humanity in Basra, solely by extrapolation or correlation. The Minister submits that while it may be accepted that it is not sufficient for the person merely to know that their conduct will assist the perpetrator in the commission of the offence, the motivation itself behind the assistance is irrelevant. The Minister submits that it is difficult to conceive of the Tribunal having come to its findings without also accepting that the applicant acted with the requisite purpose.

42    The Minister submits that the Tribunal’s explicit findings as to the applicant’s subjective intent and knowledge were that: (1) he meant to engage in the conduct of lending assistance, and (2) understood the consequences for the local population.

Article 25(3)(d)

Applicant’s submissions

43    The applicant submits that the Tribunal at TD [98] and [101] considered an alternative way to establish individual responsibility for the crime. Under Art 25(3)(d) a person will be individually responsible for the relevant crime where the person:

… 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.

44    The applicant notes that in GZCK at [176] Stewart J emphasised that this crime “is not an
open-ended concept that permits convictions based on guilt by association” nor is “merely any contribution” enough to make it out: GZCK at [184]. What is required is that the accused person made “at least” a substantial contribution to the crime, knowing that their acts or omissions will facilitate it or a finding that the person contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes (or crimes against humanity), aware that his assistance will in fact further that purpose: GZCK at [177]–[182].

45    The applicant submits that what “needs to be established [is] that the accused had personal knowledge of such aims and intended to contribute to their commission” and did so in a significant or substantial way”: GZCK at [181]. The words “in a significant way” and “will in fact further that purpose” provide the key to the exercise. Those are the essential elements that must be satisfied to fix the applicant with personal responsibility. To that end, Stewart J in GZCK observed:

[S]everal 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.

46    The applicant submits that the Tribunal’s analysis and the findings within it and to which it refers do not meet the “legal thresholds”. The Tribunal did not identify what level of contribution the applicant was said to have made, nor find that it was significant or substantial. Rather, the Tribunal merely stated that “the same findings must apply” and referred to what it had already “found”.

47    The applicant submits that on the Tribunal’s findings it was not able to reach a state of satisfaction as to the “specific levels of involvement” of the applicant: TD [95]. Whether the “level of involvement” went beyond the “level of supposition” was not resolved by the Tribunal. The law required a finding of significant or substantial involvement in order for there to be shown a correct application of the law. The applicant submits that this was neither acknowledged by the Tribunal, nor was it the subject of a finding for the purposes of Art 25(3)(d), despite such a finding being a necessary element to make out the relevant crimes.

48    The applicant also submits that the Tribunal at TD [100]–[101] (where it considered the applicant’s alternative version of events) did not consider or apply the correct thresholds and merely concluded that “fulfilling an administrative or support role” was sufficient to make out this crime against humanity.

49    In relation to ground 1 overall, the applicant submits that the Tribunal was required to act on a correct understanding and application of the law: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17at [27] (Kiefel CJ, Keane, Gordon and Steward JJ) (holding that a misunderstanding as to the applicable law may give rise to jurisdictional error). The applicant submits that in this instance, the Tribunal did not apply nor seemingly understand the law correctly. In particular, the Tribunal misunderstood and did not apply the correct mens rea for Art 25(3)(c), nor did it find significant or substantial involvement by the applicant as required by Art 25(3)(d). The applicant submits that it follows the Tribunal’s decision was infected by jurisdictional error.

Minister’s submissions

50    The Minister submits that for the purposes of Art 25(3)(d) there was no requirement of a finding of significant or substantial involvement in order for there to be a correct application of the law. An express finding of this kind is not required for the purposes of Art 25(3)(d). The Tribunal at TD [98] said that the same factual findings underlying its conclusion for Art 25(3)(c) applied “equally, if not more so, to the contribution made by the applicant as an infantry officer in a unit, as part of a wider group of forces, deployed to pursue a campaign of persecution against the Kurds.”

51    The Minister submits that those findings provided a rational foundation for the Tribunal having serious reasons for considering the applicant was responsible under Art 25(3)(d). While “conduct inconsequential and immaterial to the commission of the crime cannot be considered sufficient and constitute a contribution within the meaning of Art 25(3)(d)” (GZCK at [186]), the Tribunal evidently did not consider the applicant’s conduct to be of that kind, nor, in the Minister’s submission, was the Tribunal compelled to address expressly and seriatim the factors relied upon by the applicant. In particular, the Minister referred to the following statement from Prosecutor v Callixte Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10, 16 December 2011 at [277], that the threshold is supposed to:

[E]xclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every power utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for the infinitesimal contribution to the crimes committed.

Consideration

Article 25(3)(c)

52    In GZCK at [173], Stewart J summarised the requirements of Art 25(3)(c) as follows:

(1)    It is not necessary that there be a finding with respect to a specific incident or perpetrator.

(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.

(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.

(4)    The accessory must facilitate or further the commission of the crime.

53    It is convenient to start with what the Tribunal expressly said in relation to the task before it. At TD [31] the Tribunal set out the text of Art 25(3) and at TD [33] the Tribunal set out Art 30(1) of the Rome Statute.

54    At TD [81], the Tribunal set out the following statement from SHCB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 561; [2003] FCAFC 308 at [23] (Mansfield, Emmett and Bennett JJ):

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 … 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.

55    The Tribunal said at TD [83] that “the range of forms of complicity under the Rome Statute potentially further reduce the degree of specificity as to acts alleged and required to base a finding under the Act, so long as crimes, or their attempted commission, has been found”.

56    However, the Tribunal made no finding that the applicant “lent [his] assistance with the aim of facilitating the offence”: GZCK at [173(2)] (emphasis added). Although the Tribunal set out Art 25(3)(c) in full at TD [31], nowhere in the consideration section of its reasons did it refer to, or apply, the requirement that the applicant acted for the purpose of facilitating the commission of the crime. Indeed, in paraphrasing Art 25(3)(c) at TD [96], the Tribunal omitted those words.

57    Contrary to the Minister’s submission, the factual findings made by the Tribunal at
TD [86]–[93], in combination with the earlier recitation of the purpose requirement at TD [31] does not allow for the drawing of an inference of the required mental element of Art 25(3)(c).

58    At TD [86]–[87], the Tribunal found that the country information demonstrated that “a protracted campaign of repressive measures was undertaken by the Iraqi military against the civilian population in 1988 primarily in locations outside of Erbil, and including areas between Erbil and the Iranian border” and that the “campaign included instances of crimes against humanity in the form of murder, extermination, deportation and forced transfer and persecution against local Kurdish populations”, which “continued through later 1988, at the least”. The Tribunal preferred the applicant’s evidence given during his protection visa interview over “later exculpatory accounts” and found that the above-mentioned crimes took place in the area outside Erbil while the applicant was posted there: TD [89].

59    The Tribunal referred to the applicant’s evidence of “being engaged in field operations against ‘rebels’”, and “physically moving into challenging terrain to undertake these operations”: TD [90]. The Tribunal then said at TD [91]:

I consider RSZN’s previous claim in interview (‘we got them’) to indicate that he considered the operations to have been successful. In evidence the Applicant also sought to minimise the nature and effect of the operations by, for example, claiming that a village or villages were empty when entered by the army, or that there was minimal damage to buildings. I understood RSZN to attempt in evidence to ascribe the use of the word ‘we’ to the wider community of forces, however I do not consider a close reading of the interview transcript to bear out this variation.

60    The Tribunal found that, even on the applicant’s alternative narrative of providing administrative support, the applicant had “insight into the location of operations, and … by extension, into the objectives of the army’s activities”: TD [92].

61    The Tribunal, at TD [93], found the evidence overall enabled a finding that RSZN was engaged as an infantry officer in operations outside Erbil in the latter part of 1988.

62    The Tribunal at TD [94] and [95] was not satisfied the evidence established that the applicant was personally responsible for crimes against humanity in relation to the Anfal campaign under Art 25(3)(a) or (b) of the Rome Statute because the general nature of the evidence did not permit the Tribunal to make findings as to the level of involvement of the applicant.

63    In relation to complicity by aiding, abetting or otherwise assisting the commission or attempted commission of crimes, under Art 25(3)(c), the Tribunal, at TD [96], concluded that the requirements were not satisfied in respect to the crimes of murder, extermination, deportation or forcible transfer as part of the Anfal campaign – the evidence did not make out, with any degree of certainty, the applicant’s or his infantry unit’s participation in those crimes.

64    The Tribunal, however, found at TD [97] that the situation was different when considering the crime of persecution. The Tribunal reasoned that:

I consider it reasonable to conclude that RSZN as an officer in an infantry unit deployed to pursue the government’s campaign outside Erbil can be understood as – at least – assisting with the commission or attempted commission of the crime against humanity of persecution. RSZN as an officer in a command role also fulfils the mental element in accordance with art 30(1) in that he meant to engage in the conduct, and understood the consequences for the local population. This is also supported by the Applicant’s evidence of his direct role in operations.

65    That reasoning of the Tribunal, in my view, does not address the mental element required by Art 25(3)(c) as the Tribunal has not made any finding that the applicant lent his assistance with the aim of facilitating the offence. That mental element is absent. The Tribunal has only made a finding as to the applicant’s intentional engagement in the conduct, and at best, knowledge of the consequences of the conduct. This may be sufficient to establish the mental element in Art 30, but is not sufficient for the purposes of Art 25(3)(c). As the International Criminal Court (ICC) Trial Chamber said 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 at [97], quoted by Stewart J in GZCK at [171]:

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.

66    So, it is not sufficient that the applicant knew that his conduct would assist the principal perpetrator in the commission of the offence, he must have intended to (in the sense of having the purpose to) facilitate the commission of the offence: GZCK at [173(2)].

67    The Minister’s submission that the Tribunal was entitled to draw inferences as to the applicant’s active participation in combat without making findings at any further level of granularity is not to the point. The applicant’s complaint is not in respect of a lack of finding as to a specific incident, or incidents. The error is that there is no finding as to the required purpose of the applicant in facilitating the offence of persecution. I do not accept that a recitation of the purpose requirement earlier in the Tribunal’s reasons allows the drawing of an inference that the Tribunal later found that the applicant “lent his assistance for the purpose of facilitating the commission of the crime”. Similarly, I do not accept the Minister’s submission as to the irrelevance of the motivation behind the assistance – the error is the lack of finding as to purpose, not motivation.

68    Further, at TD [100]–[101] the Tribunal found that, even accepting the applicant’s “alternative version of events” where he was “fulfilling an administrative or support role”, he must have been “otherwise assisting in the commission of [the crime of persecution]”. The Tribunal does not address the purpose requirement of Art 25(3)(c) in relation to this alternative scenario; at best, it can be inferred that the knowledge requirement is imputed to the applicant by virtue of his position.

69    Finally, the Minister referred to the following statement from the International Commission of Jurists Expert Legal Panel, Report on Corporate Complicity in International Crimes (Corporate Complicity & Legal Accountability; Volume 2: Criminal Law and International Crimes, 2008) at page 22:

[P]ractically speaking, if it is established that a corporate official had knowledge that an act would facilitate the commission of a crime, and yet proceeded to act, then the purpose to facilitate could be found to exist.

70    However, first, the statement says that knowledge could lead to purpose being found. That does not answer the lack of engagement or finding as to purpose by the Tribunal. Second, as I said above at [65], the ICC in Bemba explicitly drew the distinction between mere knowledge of assisting in the commission of the offence and finding that the person had the purpose of facilitating the offence. As I have said, it cannot be inferred from the Tribunal’s reasoning and conclusions as to knowledge that the Tribunal also found the applicant had the requisite purpose. It is not for this Court to imply or infer a critical finding that the Tribunal did not make: FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26 at [67] (Crennan and Bell JJ); see also at [18]–[19] (French CJ and Gageler J), LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) at [29].

71    Therefore, I am satisfied that the Tribunal did not apply the requirements of Art 25(3)(c) correctly. The Tribunal misunderstood and did not apply the correct mental element for Art 25(3)(c) and therefore fell into error.

72    It is convenient to first consider the further finding of the Tribunal that there were serious reasons for considering the applicant had committed an offence pursuant to Art 25(3)(d) before turning to the question of materiality; that is, whether the error is jurisdictional. This is because they are independent findings, and so the applicant must show jurisdictional error in both to succeed on this application.

Article 25(3)(d)

73    The Tribunal at [98]–[101] found that the applicant contributed as an infantry officer in a unit, as part of a wider group of forces, deployed to pursue a campaign of persecution against the Kurds. The Tribunal found that the applicant’s conduct in undertaking operations was made in furtherance of the common criminal activity knowingly and understanding its consequences. The Tribunal’s reasoning, however, does not identify any substantial contribution by the applicant to the crime, nor that the applicant contributed in a significant way to the campaign of persecution against the Kurds. If the requirements of Art 25(3)(d) are to be established, the Tribunal needed to make findings on the evidence of the applicant’s significant or substantial contribution to the crime, knowing that his acts or omissions will facilitate it: GZCK at [187].

74    The Tribunal’s reasons do not identify what level of contribution the applicant was said to have made, nor did the Tribunal find that the contribution was significant or substantial. The Tribunal does not set out the requirement that the contribution must be significant or substantial. Therefore, it cannot be inferred that, implicitly, the Tribunal’s reasoning addressed whether the applicant’s contribution was significant or substantial contribution.

75    The Minister relied on GZCK in support of the submission that the evidence provided a rational foundation for the Tribunal’s findings. However, that case involved grounds of review specifically framed as whether the evidence supported the findings, and if so, whether the reasons were irrational (including by reference to the proper construction of Art 25(3) of the Rome Statute): see GZCK at [120]–[121]. Stewart J found that the Tribunal in that case had not expressly stated the meaning that it gave to the provisions, so it was not apparent whether it had applied the wrong test: at [153]. It was in that context that Stewart J said:

[I]t 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, ie, that it had “serious reasons for considering”, then it will have made a jurisdictional error in respect of that conclusion.

76    There is no ground of review in this case that the Tribunal’s findings were not supported by the evidence or were irrational. Further, unlike in GZCK, in my view, in this case the Tribunal did express the test and relevant provisions which it was applying. Nonetheless, I reject the Minister’s submission that the Tribunal evidently did not consider the applicant’s contribution to be “inconsequential and immaterial to the commission of the crime” and that based on the evidence before the Tribunal and the conclusions made by it, it is “impossible” to see how the applicant’s contribution could be other than significant or substantial. Stewart J said as follows at [187] in GZCK:

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 … and a number of different factors may be relevant to that assessment …

It is the effect of the conduct on the realisation of the crime which counts.

77    The Tribunal does not engage with any assessment of the scope and effect of the applicant’s contribution to the common purpose of a campaign of persecution against the Kurds. The high point of the Tribunal’s conclusions seems to be that the applicant was “engaged as an infantry officer in operations outside Erbil in the latter part of 1988” and that he considered the operations were “successful”: at TD [91], [93]. Contrary to the Minister’s submission, this does not demonstrate that the applicant’s contribution must have been considered to be significant or substantial.

78    I am satisfied that the Tribunal did not apply the requirements of Art 25(3)(d) correctly. The Tribunal did not find significant or substantial involvement by the applicant as was required by Art 25(3)(d).

79    It follows that the Tribunal’s decision is affected by error.

80    Turning to materiality. The Minister submitted orally that in respect of Art 25(3)(d), it is “impossible” to see how the applicant’s contribution as found could have been other than substantial, such that the applicant has not discharged his onus of establishing materiality. I have already rejected this submission. I was not otherwise explicitly addressed on materiality in respect of ground 1. An error will only be jurisdictional error if it is material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT at [7].

81    The Minister submitted that inadequacy of reasons is not a jurisdictional error. But I have found that the error was the misunderstanding or misapplication of the law (noting this was the error contended for by the applicant in the amended application for review), which is a category of jurisdictional error: LPDT at [3]. I am satisfied that in this case there is a realistic possibility that the Tribunal’s decision could have been different if each of the errors had not been made. Plainly, if the Tribunal had properly considered and applied the requirements in respect to both Art 25(3)(c) and (d), it may not have reached the conclusion that there were serious reasons for considering the applicant had committed crimes against humanity, thereby excluding the applicant from complementary protection.

82    This ground of review must be allowed.

Ground 2

Applicant’s submissions

83    The applicant submits that the Tribunal erred by failing to undertake its statutory task, namely, to form a state of satisfaction as to there being “serious reasons for considering” the applicant had committed a crime against humanity including having regard to the nature, form and context of the material on which it relied.

84    The applicant submits that the meaning and content of the phrase “serious reasons for considering” requires the Tribunal to be satisfied that there is “strong evidence of the commission of the crime specified”: Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 (French J). In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579; [2004] FCA 1245, French J said (at [52]) that the decision-maker should regard the exception as being engaged “based on meticulous investigation and solid grounds”.

85    In FTZK at [14], French CJ and Gageler J said that: “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”.

86    The applicant submits that whilst the Tribunal concluded at TD [107] that there were “serious reasons for considering that the applicant had engaged in the crime against humanity of persecution”, it did not identify with any detail or precision those reasons and merely summarised the submissions that had been put to it. The applicant submits that the Tribunal engaged in a “ritualistic incantation” of a statutory criteria which “may not be sufficient to clothe a statement of reasons with impunity” especially when the stakes for the person impacted – here a finding the applicant engaged in crimes against humanity – are so high: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 at [46] (Flick, Griffiths and Perry JJ); see also KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111 at [55]. The applicant submits that mere advertence to a consideration, without any analysis, is not sufficient.

87    The applicant submits in this case, the Tribunal determined that he fell within the exception to protection based on one of a series of interviews given by the applicant concerning his past history in the armed forces of Iraq. The Tribunal at TD [93] found that the applicant “was engaged as an infantry officer in operations outside Erbil in the latter part of 1988.”. Key to that finding was one part of one interview given a decade ago by the applicant. The interview was conducted in person, except for the interpreter, who attended by phone. In that interview, the Tribunal understood from an English transcript that the applicant had said “we got them”. That account, the Tribunal observed, differed starkly from the latter accounts: TD [89].

88    The applicant submits that the transcript records were uncertain. According to one version, the Tribunal understood the phrase “we got them” to refer only to people being “taken”. According to another version – relied upon by the delegate – “we got them” referred to people being “attacked”. The applicant submits that the evidence does not disclose that there were “serious reasons for considering” that the applicant had engaged in “the crime against humanity of persecution”.

89    The applicant submits that what was required to meet the threshold imposed by the statute was “strong evidence” and “solid grounds”. The applicant submits that what the Tribunal instead relied upon were a handful of words parsed through an interpreter from a transcript about which there was disagreement from many years earlier, and gave those words determinative weight over more recent explanations.

90    The applicant submits that the Tribunal made a finding of such a significant kind with little, if any, regard for the way in which the evidence was given and without proper weighing of the later clarifications, which is demonstrative of the Tribunal failing to perform its statutory task.

91    The applicant submits that the approach of the Tribunal was to read the English translation transcript “closely” and to fix on a handful of words, giving them determinative significance without weighing those considerations. The applicant submits that this was not sufficient.

92    The applicant submits that when the law requires “strong evidence” and “solid grounds”, conflicting evidence not properly engaged with is insufficient and making findings without those matters being weighed is demonstrative of error.

93    The applicant submits that the error here was in failing to perform the statutory task imposed by the Act on the Tribunal; namely, to properly consider whether there are “serious reasons for considering” that the applicant committed a crime against humanity.

Minister’s submissions

94    The Minister submits that the applicant has mischaracterised and inaccurately described the process of weighing and evaluation undertaken by the Tribunal in performing its fact-finding function, which was a matter for the Tribunal.

95    The Minister points to the Tribunal’s consideration, at TD [44]–[45], of the applicant’s protection visa interview where the applicant had said:

(a)    he went to Erbil straight after the end of the Iran-Iraq War;

(b)    he “was in command of different units” and “we had a crackdown” on rebels;

(c)    “we attacked them … we got them … [a]nd then the area became safe”;

(d)    “We went – we climbed the mountains to where they were, and there were the planes – aeroplanes coverage for us, which bombarded them. And sometimes the [field artillery] also would shoot at them”;

(e)    “Well, they were fighting against the government and then they would run, hide into the mountains and these mountains of course being the borderline between Iran and Iraq, they would then flee to Iran. The mountains were so high … it could take up to 16 hours to climb to reach those points which these rebels were hiding … Now, those units who would provide us with food, stuff or arms, and weapons, and all these things, which is the administrative or the food supplies or whatever we needed … it will take them, like, 16 hours to reach us there.”

96    The Minister submits that at the Tribunal hearing the applicant was given the opportunity to explain the things he had said at the protection visa interview, with his attention drawn specifically to his statements about the “crackdown” on rebels hiding in the mountains, the bombardment by aeroplanes and his prior statement “we got them”: TD [49]–[50].

97    At TD [49], the Tribunal noted the applicant’s denials and his evidence given at the hearing that “he had nothing to do with the Anfal campaign”. The Minister notes that the Tribunal gave several detailed reasons as to why it concluded that “the respondent is correct to argue that the earlier account should be preferred over the later exculpatory accounts” (TD [89]), including that:

His denial of participation in the Anfal campaign is only credible if a very narrow interpretation is taken of the timing associated with the various sub-campaigns. As noted, I am satisfied that repressive action involving crimes against humanity was taken outside Erbil in the time that RSZN was posted to this area.

98    The Minister submits that it was well open to the Tribunal to find that the applicant had given inconsistent evidence. That being so, the Tribunal turned its mind, reasonably and fairly, to whether or not the presence of the relevant evidentiary anomalies was significant enough to warrant its rejection of the applicant’s later narrative. Ultimately, the Tribunal preferred the earlier account. The Minister submits the Tribunal was not obliged to accept all or any part of the oral evidence as presented at the hearing, and it is not the function of the Court to re-exercise the Tribunal’s fact-finding function.

99    The Minister submits that, in any event, even if error be established, it is not material. That is because the Tribunal considered the applicant’s “alternative version of events” and found that “even on his narrative of fulfilling an administrative and support role, probably in a headquarters unit”, the Tribunal was nevertheless satisfied that the applicant was criminally responsible under Article 25(3)(c) and (d): TD [100]–[101].

Consideration

100    Strictly speaking, as I have resolved that ground 1 of review is to be allowed, that is dispositive of the application for judicial review (given that the formation of the state of satisfaction as to there being ‘serious reasons for considering’ is based on the erroneous conclusions as to Arts 25(3)(c) and (d)). However, I will nonetheless consider this ground, as it was argued as a separate ground of review.

101    The exclusion in s 36(2C)(a)(i) of the Act relevantly provides that a non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if the Minister has serious reasons for considering that the person has committed a crime against humanity, as defined by international instruments prescribed by the Regulations (emphasis added). Pursuant to r 2.03B of the Regulations, the Rome Statute is prescribed, for the purposes of s 36(2C)(a)(i) of the Act, as such an instrument.

102    The Tribunal in its reasons at TD [20], correctly summarised the meaning and content of the phrase “serious reasons for considering” by reference to longstanding and settled authority: WAKN at [52]. The Tribunal’s summary included the following statement from Stewart J in GZCK at [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.

103    Ground 2 was put in the amended application for review as a failure by the Tribunal to “form a state of satisfaction as to there being ‘serious reasons for considering’ the applicant had committed a crime against humanity, including having regard to the nature, form and context of the material on which it relied”. However, the applicant’s written and oral submissions in respect of this ground were focused on a particular error in the Tribunal’s reasoning – that the Tribunal erred by accepting the applicant’s evidence in his protection visa interview to the exclusion of his later evidence, in particular by focusing on the words “we got them”.

104    There appears to really be two distinct complaints. First, that the Tribunal did not properly weigh and consider ‘competing evidence’. Second, that the Tribunal erroneously fixed on the words “we got them”, without properly considering the variations in the translation of this part of the interview, and that generally it should not be assumed that translations are precise.

105    Turning first to the Tribunal’s consideration of the applicant’s inconsistent evidence, the Minister is correct that it was open to the Tribunal to find that the applicant had given inconsistent evidence and after considering the relevant evidentiary anomalies to conclude that it preferred the applicant’s earlier account in his protection visa interview, over later “exculpatory” evidence. The Tribunal set out at TD [44]-[50] and [89] its reasons for so doing. I accept the Minister’s submission that it is not for this Court to re-exercise the Tribunal’s
fact-finding function. There was no ground of review, and it was not submitted, that the Tribunal’s decision to prefer the earlier account was irrational or illogical. There was no procedural fairness ground of review advanced, and understandably so, as the Tribunal did give the applicant the opportunity to explain what he meant by the words “we got them” and other statements in the protection visa interview.

106    Turning to the second point, that the Tribunal did not properly consider and weigh the various translated versions of the interview, I accept the Minister’s submission that the applicant bore the onus of putting on evidence of a mistranslation or other material error in the transcript. The applicant did not put on any such evidence and, therefore, the only course available to me is to accept the transcript as accurate. In any event, I accept the Minister’s submission that the Tribunal did not simply fasten on the words “we got them”, but rather considered the whole of the interview, along with the available country information and the later change in the applicant’s evidence in making its factual findings. The applicant sought to rely on W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757; [2002] FCA 379 (Lee, Carr and Finkelstein JJ) but that decision was in relation to the (erroneous) rejection by the Tribunal of relevant and probative evidence that was available to it.

107    Further, the Minister points to TD [100], where the Tribunal considers the alternative version of events put forward by the applicant – that is, that he only held an administrative role – and still found there were serious reasons for considering the applicant had committed crimes against humanity. The applicant did not address me on the significance of this alternative finding in respect of this ground of review.

108    The only submission from the applicant in respect of this ground, which was not directed specifically at the transcript point, was that (a) in the consideration section, the phrase “serious reasons” was only mentioned once and (b) that mere advertence to a consideration (which I presume to mean the statutory criterion of ‘serious reasons for considering’) without analysis “may not be sufficient”.

109    Therefore, based on the manner in which the ground was argued, I find there was no error as alleged in ground 2. However, as I said, the Tribunal’s conclusion as to there being serious reasons for considering the applicant has committed crimes against humanity, and is thereby excluded from complementary protection, is infected by jurisdictional error due to the misapplication of the applicable law.

Disposition

110    The application for judicial review is allowed. I will order that the Tribunal’s decision be quashed and the applicant’s application for review be remitted to the second respondent for determination according to law.

111    The first respondent will pay the applicant’s costs.

Associate:

Dated:    8 October 2026