High Court Cases
High Court Auckland
CIV-2006-404-4213
23 April 2007; 17 December
2007
Courtney J
Benefit of the doubt
- duty to apply - whether a duty to give benefit of doubt - application
in exclusion cases
Credibility findings
- findings based on implausibility - whether jurisdiction to determine
plausibility - scope of challenge on judicial review
Exclusion - Article
1F(a) - crime against humanity - whether necessary to specify
proscribed act only or whether necessary to identify a specific
instance of a proscribed act - Refugee Convention 1951 Article 1F(a)
Exclusion - Article 1F(b) - non-political crime - meaning of non-political - Refugee Convention 1951 Article 1F(b)
Exclusion - burden
of proof - whether legal burden of proof on Executive
Exclusion -
complicity - level of knowledge and involvement required
Exclusion - standard
of proof - standard
of proof under Article 1F(a) - whether lower standard of proof than
balance of probabilities
Judicial review -
implausibility - finding of - principles of review
Judicial review -
nature of judicial review - nature of judicial review
Procedure of RSAA -
burden of proof - exclusion - whether legal burden of proof on Executive
UNHCR Guidelines -
binding effect - whether proper interpretation of Refugee Convention to
be diverted by non-binding Guidelines which do not accord with purpose
of Convention - UNHCR Guidelines: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees
X and his wife Y sought refugee status in New Zealand. In relation to X the Refugee Status Appeals Authority determined that there were serious reasons for considering that he had committed both crimes against humanity and serious non-political crimes with the result that he was excluded from the provisions of the Refugee Convention by reason of the application of Article 1F(a) and Article 1F(b) of the Refugee Convention. In relation to the wife, while not herself excluded from the Refugee Convention, the Authority determined that she had failed to establish the "well-founded" element of the refugee definition.
Held:
1 On
an application for judicial review the Court would only intervene if
the decision or the decision-making process exceeded the power of the
Refugee Status Appeals Authority, was procedurally unfair, was based on
a misunderstanding of the facts or disclosed an error or law, if the
Authority had taken irrelevant matters into account or was so
unreasonable that no rational Authority could have made that decision.
Judicial review was concerned not with the decision, but with the
decision-making process (see para [6]).
Chief Constable of the North Wales Police
v Evans [1982] 1 WLR 1155 (PC) and Mercury Energy Ltd v Electricity
Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) applied.
2 The
Authority had jurisdiction to determine the plausibility of testimony
and to make findings on the basis of implausibility. Such findings,
however, may well be marginally easier to challenge on judicial review
but to succeed, the plaintiffs had to show that the Authority's
decisions, including its determination in relation to X's credibility,
were so unreasonable that no Authority, properly directing itself could
have made them (see paras [7], [8] & [9]).
B v Refugee Status Appeals Authority
(High Court Auckland, M1600/96, 23 July 1997, Giles J) and Cen v Canada (Minister of Citizenship and
Immigration) [1996] 1 CS 310 (FC:TD) applied.
3 The Authority could not be diverted from the proper interpretation of Article 1F by non-binding guidelines (such as the UNHCR guidelines on the application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees), which do not accord with either the purpose of the Article and are contrary to persuasive authority as to the proper construction of that Article (see para [16]).
KK v Secretary of State for the Home
Department [2005] INLR 124 (UKIAT) followed.
4 There was
no burden on an asylum-seeker to prove that Article 1F does not apply
but that there must be some evidence on which a determination is made
and it was for the Executive to point to such evidence. In the absence
of such evidence there will not be "serious reasons for considering"
that the refugee claimant has committed one of the specified acts but
this does not equate to imposing a legal burden of proof on the
Executive (see para [21]).
Gurung v Secretary of State for the Home
Department [2003] Imm AR 115; [2003] INLR 133 (UKIAT) followed.
5 One could
expect the application of Article 1F to be determined in part on the
evidence adduced by the claimant in support of his or her refugee
claim. However, the Authority is entitled to obtain and rely on its own
country information as well. Where there is evidence, the issue in a
judicial review application can only be whether an Authority conducting
itself properly could reasonably have reached the conclusions it did on
the evidence before it. It would, however, be wrong to view this as
being determined by reference to a burden of proof (see para [22]).
6 There was
no basis to justify and no authority to support the submission that the
benefit of the doubt should be exercised in favour of the refugee
claimant in the application of Article 1F of the Refugee Convention.
Procedural fairness does not equate to allowing the benefit of the
doubt (see paras [28] & [29]).
7 The
Authority was not bound to give the husband the benefit of the doubt.
Provided there was evidence to support the inferences that the
Authority drew the High Court would not interfere. The fact that
another tribunal or even the High Court might have drawn different
inferences from the same evidence was not relevant. The High Court
would only interfere if the refugee claimant could show that the
inferences drawn were so unreasonable that no Authority conducting
itself properly could have reached them (see paras [41] & [54]).
8 In
considering the application of Article 1F(a) in the context of alleged
crimes against humanity, the Authority is required only to specify a
particular proscribed act and is not required to identify a specific
instance of a proscribed act (see paras [59] & [69]).
9 The
Authority was correct to proceed on the basis that the phrase "serious
reasons for considering" in Article 1F establishes a lower standard of
proof than the balance of probabilities (see paras [73] & [99]).
10 A person
will be complicit in a crime against humanity if he or she
participates, assists or contributes to the furtherance of a systematic
and widespread attack against civilians knowing that his or her acts
will comprise part of it or takes the risk that it will do so. There
need not be a specific event identified that is linked to the
accomplice's own acts (see para [81]).
Ramirez v Canada (Minister of Employment
and Immigration) [1992] 2 FC 306 (FC:CA); Sivakumar v Canada (Minister of Employment
and Immigration) [1994] 1 FC 433 (FC:CA); Bazagan v Canada (Minister of Citizenship
and Immigration) (1996) 205 NR 282 (FC:CA); Mugesera v Canada (Minister of Citizenship
and Immigration) [2005] SCC 40; (2005) 254 DLR (4th) 200
(SC:Can) and Prosecutor v Blaskic
(Appeals Chamber, Case No. IT-95-14-A (29 July 2004)) (ICTY)
applied.
11 The
assessment of conduct as a serious non-political crime is to be
undertaken by reference to the offending itself and probable penal
consequences. It is not be assessed on a comparative basis against the
seriousness of the possible persecution (see para [89]).
S v Refugee Status Appeals Authority
[1998] 2 NZLR 291 (CA).
Application for
review
by husband dismissed. Application for review by wife successful.
Counsel
C S Henry for the
plaintiff
M Woolford for the
defendant
[Editorial note: On appeal, the
Court of Appeal in Tamil X v Refugee
Status Appeals Authority [2009] NZCA 488; [2010] 2 NZLR 73 held
that it had not been shown on the evidence before the RSAA that the
exclusion provisions in the Refugee Convention applied to Tamil X. An
appeal by the Crown to the Supreme Court was dismissed in Attorney-General (Minister of Immigration)
v Tamil X [2010] NZSC 107 (27 August 2010).]
COURTNEY J
Contents
Introduction
Proper approach on
judicial review
First ground of
appeal – should the Authority have interpreted Article 1F so as to
place the burden of proof on the Executive and accord X the benefit of
the doubt?
General approach to
interpretation of Article 1F
Who had the burden of proving that X falls
within Article 1F
Was X entitled to the benefit of the doubt?
Second ground of
appeal – was the Authority’s credibility determination open to it on
the basis of the evidence?
X’s
account
Mohan’s
statement
Authority’s
reason
for rejecting X’s account
Third ground of
appeal – did the Authority fail to identify the crime against humanity
that it had serious reasons for considering that X had committed?
Was the Authority required to identify a
specific crime
against
humanity?
Did the Authority identify the war crime
in which it considered
X
was complicit?
Fourth ground of
appeal – was the Authority entitled to find that X was
complicit in the crime against humanity?
Standard
of proof
What is required for
complicity in a
crime against humanity?
The
Authority’s finding as to X’s
complicity in crimes against humanity
Commission
of a serious non-political crime
The
Authority’s finding
The judgment of the Supreme Court of India
Application by Y
Conclusion
[1] X and his
wife,Y, are Sri Lankan. In 1992 X assumed the position of Chief
Engineer on a vessel, the MV Yahata,
which was owned by the Liberation Tigers of Tamil Elam (LTTE), an
organisation dedicated to the right of self-determination for the Tamil
population of Sri Lanka. The vessel was sunk during a
confrontation with the Indian Navy in January 1993. At the time,
it was carrying several LTTE members and substantial quantities of arms
and explosives. X was convicted and imprisoned in India on
charges relating to the destruction of the ship.
[2] X and Y came to New Zealand in
2001 and sought asylum as refugees. In its decision 19 April 2006
the Refugee Status Appeals Authority found that neither were
refugees. It found that X was not a refugee because he fell
within Article 1F of the 1951 Convention Relating to the Status of
Refugees, which provides that a person is not a refugee if there are
serious reasons for considering that he or she has committed certain
acts, including a crime against humanity or a serious non-political
criminal act. The Authority considered that there were serious
reasons for thinking that X was complicit in crimes against humanity
committed by the LTTE and had committed a serious non-political crime,
namely the offences that he was convicted of in India. The
Authority found that Y was not a refugee either because there was no
well-founded ground on which she should fear persecution if she
returned to Sri Lanka.
[3] X and Y seek
judicial review of the Authority’s decision. In submissions Mr
Henry, for the plaintiffs, departed somewhat from the errors identified
in the amended statement of claim. However, Mr Woolford, for the
Crown, did not object and I therefore deal with the grounds as they
were argued before me.
[4] X asserts that the Authority
erred in:
[5] Y asserts that the
Authority erred in:
Proper approach on
judicial review
[6] In an application for judicial
review the Court will only intervene
if the decision or the decision-making process exceeds the Authority’s
power, is procedurally unfair, is based on a misunderstanding of the
facts or discloses an error of law, if the Authority has taken
irrelevant matters into account, or is so unreasonable that no rational
authority could have made that decision. The principles were described
in the House of Lords decision in
Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173, (applied the Privy Council in
Mercury
Energy Limited v Electricity Corp of NZ Limited [1994] 2 NZLR 385, 389):
[7] One aspect of the
Authority’s decision that is strongly challenged
is its adverse credibility assessment of X. That assessment
substantially influenced the Authority’s conclusions as to whether X
was likely to have committed
certain acts. The basis for the credibility assessment was that the
account X gave
was inherently implausible. In B v
Refugee Status Appeals Authority HCAK
M1600/96 and HC146/96 23 July 1997 Giles J
considered the review of credibility findings, including those made on
the basis of
implausibility. The Judge referred with approval to the decision in Cen v Canada (the
Minister of Citizenship and Immigration) [1996] 1 CS 301 and in particular the passage
cited in
that case from Augebor v Minister of
Employment and Immigration (1993) NR 315 (FCA):
[8] Giles J went on to observe that
findings of implausibility may well
be marginally easier to challenge than a finding of non-credibility,
concluding that while jurisdiction to review exists:
[9] To succeed, X and Y must show
that the Authority’s decisions,
including its determination in relation to X’s credibility, were so
unreasonable that no RSAA, properly conducting itself, could have made
them.
First
ground of appeal
– should the
Authority have interpreted Article
1F so as to place the burden of proof on the Executive and accord X the
benefit of the doubt?
General approach to
interpretation of Article 1F
[10] The purpose and
effect of Article 1F of the 1951 Convention
Relating to the Status of Refugees is to exclude from the refugee
protection regime those considered unworthy of its protection.
The relevant provisions of Article 1F in this case are:
[11] Mr Henry submitted that Article
1F should be interpreted in a
restrictive manner and in particular, in this case, this meant that the
burden of proving that Article 1F applied lay with the Executive and
that X was entitled to the benefit of the doubt. He relied on the
article by Michael Bliss “Serious
Reasons for Considering: Minimum
standards of procedural fairness in the application of Article 1F
exclusion clauses” International Journal of Refugee Law Vol. 12 Special
Supplementary
Issue and
on the UNHCR “Guidelines on
International
Protection 5: Application of the exclusion clauses: Article 1F of the
1951 Convention Relating to the Status of Refugees”.
[12] In his article, Mr Bliss
asserts (pp
92-93),
without
citing any authority, that:
[13] Mr Bliss’ view is, presumably,
based on the
UNCHR Guidelines which
promotes a restrictive interpretation:
[14] The approach contended for by
Mr Bliss has
generally not been followed by tribunals who have considered the effect
of the Guidelines, either in
relation to Article 1F or other of the exclusion clauses. Mr
Woolford
submitted that there is no practical means by which Article 1F could be
restrictively interpreted;
its terms are mandatory and, provided the threshold test of “serious
reasons for
considering” that the applicant had committed one of the specified acts
is met, then he
or she is, by definition, not a refugee.
[15] This submission is supported
by the decision in
KK v Secretary of State for the Home
Department [2004] UKIAT 00101, [2005] INLR 124, where the UK Immigration
Appeal Tribunal rejected
the views expressed in the Guidelines
and referred instead to previous
decisions of the House of Lords disapproving the Guidelines’ suggestion that there
should be a restriction on the interpretation of Article 1F where the
act in
question falls within the words of the Article (R v Secretary of State for the Home
Department ex parte Sivakumaran;
R v Secretary of State for the Home
Department ex parte Vaithialingam;
R v Secretary of State for the Home
Department ex parte Vilvarajah; R v
Secretary of State for the Home Department ex parte Vathanan; R v
Secretary of State for the Home Department ex parte Navaratnum (United
Nations High Commission for Refugees Intervening [1988] AC 958). Although the IAT was
considering the
application of Article 1F(c) as opposed to (a) or (b), which are
relevant in the
present case, I consider that its remarks apply equally to those
provisions:
[16] Mr Henry also
submitted that the Guidelines
should be accorded
greater merit than the RSAA allowed (RSAA
decision [80]-[82]) as a result of its obligation under Article
35.1 to co-operate with the UNHCR. However, I prefer the approach taken
in KK; the RSAA
cannot be diverted from the proper interpretation of Article 1F by
non-binding
guidelines, which do not accord with either the purpose of the Article
and are
contrary to persuasive authority as to the proper construction from the
House of
Lords.
Who had the burden of
proving that X falls
within Article 1F?
[17] In his article Michael Bliss
comments (pp
112-113)
that:
[18] However, the Convention itself
is silent on the issue of burden of
proof in relation to exclusion cases and the bald assertion as to who
bears the burden of proof has not been adopted in subsequent UK cases.
In Gurung [2002] UKAIT 04870 the UK AIT distinguished
evidential burden of proving that
an appellant comes within one of the exclusion clauses from a legal
burden of proof. It adopted the following statement from
Thayabaran IAT Appeal No 18737 9 October
1999:
[19] The Tribunal went on to
consider whether there was, in addition to
an evidential burden, also a legal burden of proof but concluded that
there was not, since the purpose of an examination under the exclusion
clauses is not a criminal examination to establish an appellant’s guilt
or innocence. Although an assessment had to be made about whether
acts or crimes had been committed, any such assessment in the context
of a refugee determination was neither binding nor necessarily
conclusive as to whether such offences had been committed.
[20] This approach is contrary to
the position taken in the Canadian
decision Baqri v Minister of
Citizenship and Immigration [2001] FCT 1096 relied on by
Mr Henry in which the Federal Court of Canada recorded the agreed
position that it was the Minister who bore the onus of proof in
relation to Article 1F(a) cases. However, Mr Woolford cautioned against
reliance on Canadian and UK decisions on this point, including Baqri; the relevant Canadian
domestic legislation
specifically provides the minister with a reasonable opportunity to
present evidence and in both Canada and in the UK it is usual for the
relevant minister to be represented at the hearing of a refugee claim,
which is not the case in New Zealand.
[21] In New Zealand s 129P(1)
Immigration Act 1987 imposes on a person
seeking refugee status the burden of ensuring that all information and
evidence that he or she wishes to have considered are provided to the
Authority. In comparison, there is no such burden imposed on the
Minister of Immigration in relation to the exclusion clauses under
Article 1F. Given that, I consider that the correct approach in
New Zealand must be that expressed in Gurung
i.e. that there is no
burden on an asylum seeker to prove that Article 1F does not apply but
that there must be some evidence on which a determination is made and
it is for the Executive to point to such evidence. In the absence
of such evidence there will not be “serious reasons for considering”
that the appellant has committed one of the unspecified acts but this
does not equate to imposing a legal burden of proof on the Executive.
[22] One can expect the application
of Article 1F to be determined in
part on the evidence adduced by the claimant in support of his or her
claim under Article 2. However, the Authority is entitled (as it did in
this case) to obtain and rely on its own country information as
well. Where there is evidence, the issue in a judicial review
application can only be whether an Authority conducting itself properly
could reasonably have reached the conclusions it did on the evidence
before it. It would, however, be wrong to view this as being determined
by reference to a burden of proof.
Was X entitled to the
benefit of the
doubt?
[23] Mr Henry submitted that, in
considering whether it accepted X’s
account, the Authority should have accorded X the benefit of the
doubt. He relied on the general assertion in Mr Bliss’ article
that the benefit of the doubt should be exercised in favour of the
asylum seeker in the application of Article 1F:
[24] However, the reasons given by
Mr Bliss for his view are not
persuasive. The first, that the decision-maker bears the burden
of proof in an exclusion proceeding, I have already rejected. The
second, that the “serious reasons for considering” standard is a high
one, is inconsistent with the authorities, which hold that the standard
is actually lower than both the criminal and civil standard, as I
discuss later. This position is well settled in both the UK and Canada
and has been accepted as applying in New Zealand as well (Ramirez v Canada [1992] 2 FC 306; Mugesera v Canada (Minister of
Citizenship and Immigration) [2005] SCC 40; (2005) 254 DLR (4th)
200
(SC:Can) at [114]; Gurung v
Secretary of State for the Home Department
[2002] UKAIT 04870; S v Refugee
Status Appeals Authority [1998] 2 NZLR
301,306; S v Refugee Status Appeals
Authority [1998] 2 NZLR 291 (CA); Garate v Refugee Status Appeals Authority
[1998] NZAR 241, 248).
[25] The third reason given is that
the consequences of an incorrect
decision are potentially severe. While this is likely to be true
in many instances, the wording of Article 1F, and its purpose, make it
clear that exclusion as a result of the application of Article 1F is to
be determined solely by reference to the test contained therein. The
rationale of Article 1F is that some people are unworthy of protection,
notwithstanding the danger they may face if returned to their own
country. The prospect of severe repercussions for the asylum
seeker cannot, in itself, affect the application of Article 1F.
If there are serious reasons for considering that the person has
committed one of the specified acts then he or she is not a
refugee. The potential consequences of that fact cannot affect
that position.
[26] In T v Home Secretary [1996]
AC7 42 at 769
the House of Lords, considering whether a
particular offence was a political crime for the purposes of Article
1F(b), observed:
[27] Finally, I note that the
Tribunal in KK specifically
rejected the
suggestion in the Guidelines
that the applicant was entitled to the benefit of the
doubt. It observed that, not only does the wording of the Convention
exclude the principle
of giving a claimant the benefit of the doubt, but even on the basis of
the UNCHR
Handbook the benefit of the
doubt would only to be given to those whose general
credibility the Authority is already satisfied of. After noting that
the
Guidelines are not binding,
the Tribunal said:
[28] Nor do I accept Mr Henry’s
submission that allowing a claimant the
benefit of the doubt is required in order to satisfy the expected
standard for
procedural fairness in determining the application of Article 1F.
Whilst
there can be no argument that a claimant is entitled to procedural
fairness, that does
not equate to allowing him or her the benefit of the doubt. Mr Henry
relied,
once again, on Mr Bliss’ article for this proposition where the author
asserts:
[29] However, this section of Mr
Bliss’ article specifically identifies
the minimum requirements of procedural fairness. They do not
include allowing a claimant the benefit of the doubt. Mr Henry has
extrapolated Mr Bliss’ statements regarding procedural safeguards so as
to include allowing the benefit of the doubt when it is not
specifically identified by Mr Bliss as a requirement. There is no
basis on which to justify that approach and no authority to support it.
Second
ground of appeal –
was the
Authority’s credibility determination
open to it on the basis of the evidence?
[30] The Authority
concluded that X had been a willing participant in
the attempted smuggling of arms and explosives into Sri Lanka in 1993.
The critical factual issue was whether X knew before boarding the MV
Yahata on its final voyage that the ship was an LTTE vessel. X
adamantly denied that he knew this, claiming to have discovered it only
when he went to speak to the master about the new crew who had just
joined the vessel. The Authority rejected X’s account because it
considered it to be inherently implausible.
[31] X’s account of his history and
the relevant circumstances before
the Authority were as follows. He was born and educated in
Velvettithurai in Sri Lanka. This area is dominated by the LTTE and X
told the Authority that no-one in the area of Velvettithurai was
against the LTTE. As a teenager X travelled and worked on ships
in the Persian Gulf. During this time he worked as a ships
engineer on a container ship between Singapore and Malaysia and
Indonesia. By 1992 X and his wife had a baby and during their marriage
moved several times because of fighting between the LTTE and the Sri
Lankan Army.
[32] In mid-1992 X was contacted by
an employment agent and advised of
an opportunity for work as the chief engineer on a Thailand-based
vessel. He was not told the name of the ship’s owner but trusted
the employment agent. He proceeded to Thailand where he signed on to
the vessel. For the next six months the ship transported cargo
around South East Asia. X did not know what the cargo was. In all
there were nine crew but X claimed to have had little interaction with
the crew and did not know much about them apart from the fact that
most, if not all, came from or near Velvettithurai. He was never
asked what his views on the LTTE were.
[33] On 4 January 1993 the ship
departed Phuket for Sri Lanka. X
did not know what the cargo was. On this journey the ship also
took ten men aboard. Two were brought to the engine room and X
was instructed to teach them. They refused to accept orders,
saying that they were from the LTTE and would not take orders from
him. When X raised this matter with the master of the ship he was
told that the ship was a LTTE ship. Present at that time were
members of the LTTE, including the well-known second-in-command who
went under the name Kittu. X said that he wished to leave and the
master told him that he would be free to leave once the vessel reached
Sri Lanka.
[34] At about noon on 13 January
1993 the engines were stopped and the
vessel drifted for some hours. That evening it was approached by
an Indian coast guard vessel. X was required to relinquish control of
the engines to the bridge. The vessel started towards
Madras. On 16 January 1993 it was surrounded by Indian Navy
vessels. Kittu assembled the crew and told them that he had agreed with
the Indian Navy that it would take the crew members and repatriate them
to Sri Lanka. However, soon afterwards the Indian Navy began firing on
the vessel. The crew, including X, jumped into the sea. The
vessel burnt. X was eventually rescued and taken into custody.
[35] X and other crew members
were initially acquitted on various
charges but following an appeal, convicted on charges relating to the
destruction of the vessel and sentenced to three years imprisonment.
For reasons connected with his immigration status he continued to be
held in India until he obtained a Sri Lankan passport. He arrived in
New Zealand in September 2001 and his wife and children came from Sri
Lanka in December 2001. He fears returning to Sri Lanka because he
anticipates being viewed by government forces as someone who either was
a member or had assisted the LTTE and is likely to face reprisals as a
result. Alternatively, he fears being pressured by the LTTE into
participating in its activities.
Mohan’s
statement
[36] Another crew
member, Mohan Theivasigamani (referred to in the
decision only as Mohan), was granted refugee status in the United
Kingdom. He provided X with a statement in which he described
briefly his involvement with the LTTE and the last voyage of the MV
Yahata, which ended in he and X being taken into custody.
Although the
statement was tendered by X’s counsel on the basis that it was
consistent with what X had said, the Authority considered that
statement was inconsistent with X’s claim not to have known that the
ship was an LTTE vessel.
[37] Mohan’s statement recorded that
he had been a member of the LTTE
since 1988. He had assisted LTTE fighters crossing from the Vanni
jungle into Jaffna, had worked in a munitions factory belonging to the
LTTE and in mid-1992 had been ordered by the LTTE to fly to Singapore
and join an LTTE vessel which had made several trips ferrying clothes,
medication and petroleum products between Thailand and Sri Lanka. The
last trip he made from Singapore was on the vessel MV Yahata, on which
X was serving as the chief engineer. He described the last voyage
of the MV Yahata as follows:
[38] I note that the date of the
incident he refers to is different
from that given by X but it was never suggested that this had any
significance. The Authority considered that Mohan’s statement was
significant because it showed that Mohan’s presence on the vessel as an
oiler was neither accident nor coincidence. He had been placed
there after having proved himself a loyal and dedicated member of the
LTTE. Further, it was obvious from the statement that Mohan had known
at the start of the voyage that the vessel was carrying arms and
explosives for the LTTE.
Authority’s
reasons
for rejecting X’s
account
[39] On the issue of
X’s credibility the Authority concluded that [65]:
[40] The Authority gave three
specific reasons for disbelieving X, all
of which are challenged on the basis that they were not open to the
Authority on the evidence or that there were equally likely
explanations favourable to X and that the Authority should have given X
the benefit of the doubt in respect of them. In response, Mr
Woolford said that, whilst the inferences suggested by Mr Henry might
well have been open to the Authority on the evidence, in the context of
an application for judicial review it was not sufficient to merely
point to another inference that was equally open as the one that was
drawn.
[41] As I have already discussed,
the Authority was not bound to give X
the benefit of the doubt. Provided there was evidence to support the
inferences that the Authority drew this Court will not interfere.
The fact that another tribunal or even this Court might have drawn
different inferences from the same evidence is not relevant. This
Court will only interfere if X can show that the inferences drawn were
so unreasonable that no Authority conducting itself properly could have
reached them.
[42] I therefore turn to consider
whether the reasons given by the
Authority for rejecting X’s account were open to it on the
evidence. The first reason was that it was unlikely a person of
Mohan’s background and known loyalty to the LTTE would have been
deliberately placed on the vessel as an oiler but X, with no LTTE
experience or known sympathies should have been placed on the same
vessel as chief engineer. That would mean that more humble crew
members such as an oiler were carefully chosen on the basis of their
proven loyalty but that X,
an officer, was not:
[43] The fact that a scenario
“defies common-sense” is not, in itself,
a basis on which to draw an inference and was probably an unfortunate
choice of expression by the Authority. However, it was clearly being
used in the sense of being inherently improbable because the Authority
immediately proceeded to identify the specific grounds for its
conclusion, namely:
[44] Mr Henry submitted that there
was no evidence before the Authority
as to the hiring practices of the LTTE and in particular whether or not
they conducted loyalty tests before hiring someone in the capacity that
X was engaged. To the contrary, Mr Henry submitted that
information provided by the Canadian Intelligence Service about the
LTTE’s maritime operations was such that an inference could
equally be drawn that a person of X’s skills might not be easily filled
from within the LTTE ranks and that the LTTE could and might well
choose to engage needed personnel without disclosing its involvement in
the vessel.
[45] Mr Henry also pointed to the
complete absence of evidence as to
the LTTE’s attitude towards X and referred to the Authority’s
“unsupportable” conclusion that no enquiry had been made as to X’s
sympathies. The only evidence was, apparently, in the form of the
Authority’s question to X about whether he had been asked if he
supported the LTTE to which he had answered negatively. Mr Henry
postulated that it was just as likely that the LTTE could have been
satisfied from X’s personal circumstances that he sympathised with
their ultimate aim of securing a self-governing homeland for Sri
Lanka’s Tamils without knowing whether he condoned or supported their
methods.
[46] However, I do not read the
decision as concluding that no inquiry
had been made of X’s sympathies. The Authority was clearly
expressing the view that the chief engineer of the vessel would only
occupy that position if the LTTE was satisfied as to his
loyalties. While it is entirely possible, as Mr Henry submitted,
that the LTTE might not have been able to find a suitable chief
engineer from within its own ranks and might have been accepting of a
person who was likely to be sympathetic to its aims but not an active
participant in its activities, it is equally, and probably more likely,
that the conclusions drawn by the Authority were correct.
[47] There was plainly evidence in
the form of Mohan’s statement and
published information about the LTTE and its operations on which the
Authority could have reached this conclusion. This included an
article published on 18 February 1996 in the Sunday Times’ military
column entitled “Killing of Sea Bird
not a big blow to LTTE shipping
operation”. The article concerned the destruction of an LTTE
ship, Sea
Bird. However it contained comment about the MV Yahata and also general
comment about the shipping operations of the LTTE. These included
the following extract, (not specifically referred to by the Authority
in its decision):
[48] This information was consistent
with Mohan’s statement in that he
and others had been especially brought on board that voyage, with its
illegal cargo. The significance of that particular voyage was
such as to make it unlikely that unnecessary risks would be
taken. Not only were there weapons and explosives on board but
also a high-ranking LTTE leader. The deliberate placement of a
relatively low-level crew member is inconsistent with accepting a
civilian chief engineer (and indeed two other officers). On the
basis of the information that the Authority had it was certainly open
to it to conclude that X would not have been on that voyage if the LTTE
were not satisfied as to his loyalties.
[49] The second reason given by the
Authority for rejecting X’s account
was the inherent improbability of his claim that in the six months he
served on the MV Yahata he
was never aware of the nature of the cargo
carried, apart from a single occasion on which he was told that the
packages contained air conditioners. In comparison, Mohan was
able to describe the cargo he had carried on the other ship as clothes,
medication and petroleum products. The Authority concluded that,
against these earlier statements, Mohan’s statement that on its last
voyage the MV Yahata “was
carrying arms and explosives” was a statement
as to his knowledge prior to the MV
Yahata being stopped by the Indian
Navy.
[50] Mr Henry submitted that there
was no evidence to contradict X’s
claim that he did not know what cargo the MV Yahata had been
carrying. Referring to one report (Canadian Security Intelligence
Service, commentary No. 77, p6 ABD3/1) that described the LTTE
shipping operation as “a highly secretive shipping network”, he
submitted that it was logical that the LTTE would conceal the true
nature of their cargo from X. Mr Henry said there was nothing
inconsistent about Mohan knowing the contents of the MV Yahata cargo
since he was an admitted member of the LTTE.
[51] I do not accept this
submission. The published material
accepted by the Authority suggested that the vast majority of voyages
carried legitimate commercial cargo. Even if the LTTE’s shipping
operation were highly secretive, there would be no reason to hide
legitimate cargo from X and it seems very unlikely that X could have
spent six months on the vessel without sailing on ordinary commercial
voyages. The fact that Mohan was an admitted member of the LTTE does
not make it any more likely that he should be allowed to know the
nature of ordinary commercial cargo but X was not.
[52] The third aspect
of X’s account that the Authority considered
inherently improbable was his assertion that after six months at sea
with the eight other crew he claimed to know almost nothing about them
apart from their place of birth. Mr Henry submitted that the
Authority’s rejection of X’s claim was based on what the Authority
“would have thought” as opposed to any evidence as such. During the
hearing the chairperson had said, although he had never worked on a
boat he “would have thought that perhaps [X] would have got to know a
bit about [the non-officer crew members]. Mr Henry submitted that
the Authority’s conclusion on this point was therefore reached without
any evidential foundation whatsoever and there was no reason to
disbelieve X on this point.
[53] However, the Authority’s point
was, clearly, that it was unlikely,
given human nature, to spend six months with a small group of people
and to know virtually nothing about them at the end of it. The
Authority was entitled to conclude that that assertion, coupled with
the other factors already viewed as inherently implausible for other
reasons made his account generally implausible. The fact that
Authority members might not have had any maritime experience is quite
irrelevant.
[54] I conclude that the Authority
was not bound to give X the benefit
of the doubt in considering his version of events and that there was
credible information available to it in the form of published material
and Mohan’s statement which was inconsistent with the account X
gave. There was, therefore, an adequate basis on which the
Authority could have concluded that X’s account lacked
credibility. The fact that it could have drawn different
inferences from some of that material does not justify this Court
interfering with its decision.
Third
ground of appeal –
did the Authority fail to identify the crime
against humanity that it had serious reasons for considering X was
complicit in?
Was the Authority
required to identify a specific crime against
humanity?
[55] The Authority focused on the
exclusion relating to crimes against
humanity as having the clearest application to the facts in the present
case. It reviewed a selection of documented instances involving
the murder and persecution of civilians by the LTTE, concluding that
these constituted crimes against humanity. It acknowledged that there
was no evidence that X had personally committed any such crime and that
his liability, if any, would depend on being an accomplice or party. It
was, however, satisfied that there were serious reasons for considering
that X had been an accomplice by willingly participating in LTTE
operations knowing that it was guilty of gross human rights abuses
including the murder and persecution of innocent civilians.
[56] X challenges this conclusion on
the basis that the Authority
failed to identify a specific crime against humanity to which X was a
party and that there was no or no adequate evidence that he knowingly
assisted the LTTE. Mr Henry submitted that for a person to be
held responsible as an accomplice the crime for which he was to be held
responsible had to be specifically identified and the Authority had
failed to do that. He said that the Authority was wrong to
conclude that, since the LTTE was guilty of widespread and systematic
abuses of human rights and X had willingly assisted its attempt to
smuggle arms and explosives into Sri Lanka, there were serious reasons
for considering that he was a party to that ongoing abuse. Mr
Henry further submitted that, since the MV Yahata had not reached its
destination, it was not possible in this case to identify any crime
against humanity for which X could be held responsible.
[57] Mr Woolford submitted that
this was not the effect of the relevant
jurisprudence and that the decisions in Sumaida v Canada (Minister of
Citizenship & Immigration) [2000] 3 FC 66; (2000) 183 DLR
(4th) 713
and Mugasera v Canada (Minister of
Citizenship & Immigration) [2005] SCC40; (2005) 254 DLR
(4th) 200 at [119], [128] [170] and
[171] showed
that there did not need to be
any specific crime identified. Alternatively, he submitted that
an attempt to commit a crime against humanity was itself a crime
against humanity and therefore it was possible to specify the crime to
which X had been a party.
[58] Because of the differing views
of counsel as to the effect of the
cases in which this issue has been considered I intend to review those
decisions. There is no disagreement as to what is meant by a
crime against humanity. In Mugesera
the Supreme Court of Canada
undertook a comprehensive analysis of the elements of a crime against
humanity. Although decided under the s 7(3.76) of the Canadian
Criminal Code, the principles identified apply equally to determining
whether a crime against humanity has been committed for the purposes of
Article 1F. The Court identified the elements of a crime against
humanity as:
[59] The proscribed acts identified
in Mugesera under the
Criminal Code
were murder, extermination, enslavement, deportation, persecution or
any other inhumane act or omission. The issue being raised in the
present case is whether the Authority is required only to specify a
particular proscribed act or whether, as Mr Henry asserts, it must
identify a specific instance of a proscribed act. I consider that
the position on the authorities is clear that it is the former.
[60] In Sivakumar v Canada (Minister of Employment
& Immigration) [1994] 1 FC 433 the Canadian Federal Court of Appeal held that the Refugee
Division had
erred in failing to make findings of fact as to the specific crimes
against humanity which the claimant was alleged to have
committed. It emphasised:
[61] The Court ultimately concluded
that the appellant had committed
crimes against humanity, having held positions of importance within the
LTTE’s intelligence services:
[62] The approach in Sivakumar was adopted in Cardenas v Minister of
Employment & Immigration [1994] 23 Imm LR (2d) 244 at
[24] where
the Court, in an obiter
observation, said:
[63] I consider that this passage
refers to the failure of the Board to
identify the specific crime against humanity that it is asserting the
applicant was complicit in i.e. general bombings and shootings as
opposed, for example, to murder or persecution. I do not consider that
it refers to particular instances of such crimes. This is evident
from the decision of the Federal Court of Appeal in Sumaida v Canada
(Minister of Citizenship & Immigration) [2000] 3 FC
66 where Sivakumar was
explained further.
[64] In Sumaida the appellant had made a
submission virtually identical
to that being advanced on behalf of X. He had admitted reporting
the names of activists to the Iraqi secret police, who were notorious
for the torture and
execution of any person opposed to the then current regime and for
reprisals against
families of such people. The appellant had submitted that there was no
evidence of
his complicity in a crime against humanity because there was no
evidence that any harm
had befallen the alleged victims or any crime had been committed
against them. He relied, as X does in this case, on the statements of
the Federal Court of Appeal in
Sivakumar as to the importance
of making findings of fact as to specific crimes
against humanity which the refugee is claimed to have committed.
However, the
Court rejected this interpretation of its earlier statements:
[65] Nor do I consider that the
decision in Baqri v
Canada (Minister of Citizenship & Immigration) [2001] FCT 1096 relied on by Mr Henry is
inconsistent
with the earlier cases that I have discussed. In Baqri the Court referred to both
Sivakumar and Cardenas concluding that:
[66] The issue of complicity was
examined at length
in a different context by the Appeals Chamber of the International
Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991 in its
decision in
Prosecutor v Blaskic Case No IT-95-14-A 29 July 2004. Citing with approval the
definitions of the actus reus
and
mens rea of aiding and
abetting expressed in an earlier decision, the Appeal
Chamber made it clear that a causal link between a person who aids and
abets a crime
against humanity and a specific instance of that crime is not required:
[67] These passages make it clear
that the crime that
is to be specified is the relevant proscribed act, with the Appeals
Chamber referring to murder, extermination, rape, torture, wanton
destruction of civilian property
crime, which are specified in the 1993 Statute of the International
Tribunal on
Yugoslavia. It is clear that a specific link is not required between a
particular instance of
the proscribed act and the applicant. So this decision does not support
X’s submission.
[68] The most recent case of
relevance in this area
is Mugesera, to which I have
already referred in relation to the general definition of a crime
against humanity. However the decision does not specifically address
the issue that
arises in the present case because the crime against humanity
identified by the court was persecution in the form of a specific
speech that incited violence.
[69] I consider that the position is
clear that the Authority had to
identify a specific crime, but not in the sense asserted by Mr Henry.
It had to identify one of the specified crimes against humanity, but
not a particular instance of that crime.
Did the Authority
identify the war crime in which it considered X was
complicit?
[70] The Authority considered the
conduct of the LTTE generally for the
purposes of establishing whether crimes against humanity had been
committed by it, being crimes in which X might have been
complicit. It summarised 30 separate instances of attacks on the
civilian population in Sri Lanka between 1985 and 1996. On the
basis of those examples and on other evidence before it the Authority
concluded that the LTTE had, from at least May 1985:
[71] The Authority considered that
these acts of murder and persecution
were committed deliberately, as part of a widespread or systematic
attack directed at the civilian population generally and against
certain identifiable groups
in particular, namely Tamils opposed to the LTTE, Muslims and
Sinhalese. It concluded that:
[72] The Authority was plainly
entitled to reach this conclusion on the
information that it had and I consider that this finding sufficiently
specified the crimes against humanity that it believed X to have been
complicit in.
Fourth
ground of
appeal – was it open to the Authority to find that X
was complicit in a crime against humanity?
Standard
of proof
[73] The Authority proceeded on the
basis that the phrase “serious
reasons for considering” in Article 1F established a lower standard of
proof than the balance of probabilities. Mr Henry accepted that
this was the correct approach but submitted that even on this lower
standard the quality of the evidence required to meet the standard was
higher than that available to the Authority. He relied on Mugesera v
Canada [2005] SCC 40 (which was decided on the Canadian statutory equivalent of
the
Convention test):
[74] Mr Woolford did not resist the
submission that compelling and
credible information was required as the basis for the Authority’s
belief as to the existence of serious reasons. The issue between
the parties was the difference in their respective views as to whether
the Authority had based its decision on compelling and credible
evidence or whether it had based it on suspicion and speculation, as Mr
Henry submitted.
What is required for
complicity in a crime against humanity?
[75] The level of
knowledge and involvement required to render a person
complicit in a crime against humanity has been the subject of careful
judicial consideration and is now well established. In Ramirez v Canada
(Minister of Employment & Immigration) [1992] 2 FC 306 at 317-318
(FC:CA)
MacGuigan J said:
[76] Ramirez was cited with approval in Sivakumar v Canada (Minister of
Employment & Immigration) [1994] 1 FC 433 (FC:CA) where Linden JA specifically
considered
the position of complicity through association:
[77] Both Ramirez and Sivakumar were cited with approval
in Penate v
Canada (Minister of Employment & Immigration) [1994] 2 FC 79 (Fed.T.D.) in which Madam Justice
Reed summarised the then state of the law as follows:
[78] A more precise description was
advanced in Bazagan v Canada
(Minister of Citizenship & Immigration) ((1996) 205 NR282 (FC:CA) at
[11] – [12] affirmed in Murillo v
Canada
(Ministry of Citizenship & Immigration) [2003] 3 FC 287
(FC:CA) at
[34]; Harb v Canada (Ministry of
Citizenship & Immigration) [2003]
27 Imm LR (3d) 1 (FC:CA) at [17] – [19]; Zrig v Canada (Ministry
of Citizenship & Immigration) [2003] 3 FC 761 (FC:CA) at
[56] and
Zazai v Canada (Ministry of
Citizenship & Immigration) [2004] 41 Imm
LR (3d) 60 (FC:TD) at [28]):
[79] In Prosecutor v Blaskic Appeals Chamber Case No.
IT-95-14-A 29 July 2004 (ICTY), the Appeals Chamber specifically
considering the mens rea
requirements of a crime against humanity and the question of
whether there needed to be a causal relationship between the conduct of
the
accomplice and the commission of the crime, stated:
[80] On the question of causal
connection between the conduct of the
accomplice and the commission of the crime, the Supreme Court of Canada
in
Mugesera v Canada (Minister of
Citizenship & Immigration) [2005]
SCC 40,
citing amongst
other cases, the Appeals Chamber decision in Blaskic said:
[81] From these cases it is clear
that a person will be complicit in a
crime against humanity if he or she participates, assists or
contributes to the
furtherance of a systematic and widespread attack against civilians
knowing that his or
her acts will comprise part of it or takes the risk that it will do so.
There
need not be a specific event identified that is linked to the
accomplice’s own acts.
The
Authority’s finding as to X’s complicity in crimes against humanity
[82] It is clear that the basis for
the Authority’s decision was X’s
voluntary decision to join the MV
Yahata in July 1992. On the final voyage
the vessel was laden with explosives and weapons and carrying LTTE
members, including
the then second-in-command, Kittu. Given the available information
about the
LTTE, the Authority was entitled to conclude that there was an equal
possibility
that these explosives and weapons would be used against innocent
civilians as
against Sri Lankan military forces.
[83] Having found that X was aware
from witnessing events himself, that
the LTTE was guilty of gross human rights abuses on a large and
systematic
scale, including the killing and bombing of civilians, the Authority
concluded:
[84] Mr Henry pointed out that there
was no evidence to suggest that X
had been either a direct participant or an accomplice in any of the
atrocities that occurred prior to January 1993 and submitted that since
the last voyage was not completed nor could it be said that he had
helped smuggle anything into Sri Lanka on that occasion. Mr Henry
effectively accused the Authority of concluding that X was guilty
solely on the basis of his association with the LTTE because of his
presence on board the vessel.
[85] It is possible, given X’s
evidence that in Velvatiturai “there are
no people against LTTE”, that he secured his initial position on the MV
Yahata without difficulty by virtue of his place of origin.
However, it was certainly open to the Authority to conclude that, at
least in relation to the last voyage, it was inherently implausible
that the LTTE would have accepted as an officer, a person of whom they
were at all uncertain. The inevitable conclusion is that when X
assumed his position on the MV
Yahata’s last voyage he was the willing
participant in an attempt to smuggle arms and explosives into Sri
Lanka. Given the extensive country information about the LTTE’s
methods of warfare which included numerous and random attacks on
civilians, the Authority was entitled to find that his willing
participation was not only evidence of his dedication to the aims,
objectives and methods employed by the LTTE but also a direct form of
assistance. The fact that the MV
Yahata was sunk and the
explosives and weapons therefore never used does not detract from the
fact that X had actively assisted the LTTE and in doing so had
demonstrated that he shared not only its purpose but also its methods.
[86] Whilst there is no evidence of
X’s involvement in the LTTE as a
member, much less a leader in the organisation, and no evidence of
direct participation by him in any previous attacks on civilians, his
participation in that voyage, even if there was no other such voyage,
cannot be viewed in any way other than providing active assistance to
the LTTE with knowledge of the real possibility that the explosives and
weapons were destined to be used against civilians. I therefore
consider that it was open to the Authority to find that X was complicit
in the war crimes committed by the LTTE.
Commission of a
serious non-political crime
The
Authority’s finding
[87] The second major finding
against X was that he fell within Article
1F(b) which provides:
[88] There was no issue taken with
the definition of “non-political
crime” adopted by the Authority, namely the statement by Lord Lloyd in T v Secretary
of State for the Home Department [1996] AC 742 (HL):
[89] The assessment of conduct as a
serious non-political crime is to
be undertaken by reference to the offending itself and probable penal
consequences. It is not to be assessed on a comparative basis against
the seriousness of
the possible persecution (S v Refugee Status Appeals
Authority). In S v Refugee Status
Appeals Authority the Court of
Appeal accepted that the exclusion was directed towards offending:
[90] The Authority found that there
were serious reasons for
considering that X had committed a serious non-political crime, namely
as “…a party to the
intentional
destruction by fire of a vessel carrying explosives.” ([140]) The basis
for this finding was the judgment of the Supreme Court of India 13
March 1997 convicting X and others on board the MV Yahata of offences
under the Indian Penal Code 1860 relating to the destruction of the
vessel. All of the accused were sentenced to terms of
imprisonment of two and three years.
[91] The Authority considered the
nearest analogous crimes under New
Zealand law were arson (s 267 Crimes Act 1961), intentional damage (s 269 Crimes Act 1961) and endangering
transport (s
270
Crimes Act 1961). Specifically, it considered that the act of destruction
was likely to have endangered the lives of those on board the MV
Yahata, officers of the nearby Navy and coastguard vessels and
members
of the Navy boarding party. It considered that the circumstances in
which the destruction of the MV
Yahata had occurred and the penalty
imposed by the Supreme Court of India meant that the crime was
sufficiently grave to justify excluding X from the benefits of the
Refugee Convention.
The judgment of the
Supreme Court of India
[92] Mr Henry submitted that the
Authority should not have relied on
the judgment of the Supreme Court because it was, on its face,
unreliable. In its judgment the Supreme Court reviewed the evidence by
both the prosecution and the accused. It held that the lower court had
wrongly rejected some of the prosecution evidence and reached
conclusions that were against the weight of evidence. However, it
accepted that the evidence did not establish the more serious charges
that had been brought, leaving open only the offences relating to the
destruction of the MV Yahata.
The Court concluded:
[93] Mr Henry submitted that the
Authority should not have accepted the
decision at face value without making some effort to satisfy itself
that the conviction was legitimately obtained. He relied on Mr
Bliss’ article (p118):
[94] Mr Henry submitted that it was
unsafe to rely on the Supreme
Court’s decision for two reasons. First, there was no evidence of
and no finding that X had personally assisted in using criminal force
against the Indian naval officers or in destroying the ship. The
Supreme Court did not give any specific consideration to X as an
individual. The finding was expressed to be against the accused as a
group. Mr Henry pointed to the review of the facts in the decision:
[95] Secondly, Mr Henry pointed to
the unsatisfactory state of the
evidence on which the Supreme Court reached its decision. In
particular, at the lower court hearing, the Judge drew an adverse
inference against the prosecution because it had failed to produce (in
the face of a petition by the accused to do so) route maps, logbooks or
diaries. There was no suggestion that these documents were later
produced for the purposes of the appeal; the Supreme Court simply
referred to re-examination of the evidence rather than consideration of
fresh evidence.
[96] Thirdly, Mr Henry
criticised the Supreme Court’s decision on the
basis that, on the face of it, it had failed to adhere to the criminal
standard of proof of beyond reasonable doubt. He compared the
decision at first instance where the Judge held that “the prosecution
failed to prove this charge beyond reasonable doubt” (ABD1/252) with the finding
already referred to that “it can be reasonably inferred that the
accused…thought it proper to destroy their ship”. (ABD1/277)
[97] Mr Woolford submitted that the
absence of specific reference to
X’s personal situation in the Supreme Court’s decision or to the
standard of proof in a criminal prosecution did not render the decision
unreliable. The notes of evidence from the lower court hearing,
which appears to have run for over a month, were not available and
therefore the Authority did not have before it the evidence, if any,
that might have been given about X’s personal involvement in the
destruction of the vessel. Nor was there material produced to show the
rules of evidence that the Court would have been applying and in
particular a rule analogous to the New Zealand co-conspirators rule,
which would have rendered admissible statements by one accomplice
against the other. Further, Mr Woolford pointed out that Judges
are presumed to know the criminal standard of proof and are not obliged
to re-state the standard.
[98] I agree that there was reason
for concern in relation to this
judgment. There was no attempt at all to consider the position of
any individual accused. If there was evidence, one might have
expected some reference to it, given the careful consideration given to
other aspects of the evidence. If there was no evidence one might
reasonably expect some reference to that fact and an explanation as to
why the accused were all to be nevertheless regarded as equally
culpable. Secondly, whilst judges can be expected to apply the
criminal standard without necessarily re-stating it, it is of concern
that the Court’s conclusion was expressed in terms contrary to the
criminal standard.
[99] However, the Authority was not
required to be satisfied to the
criminal standard or even the civil standard (arguably the standard
expressed by the Supreme Court). It was entitled to undertake its
consideration of Article
1F(b) in the context of its earlier finding that X was a loyal
supporter of the LTTE and was willingly on board the MV Yahata with
knowledge of its cargo. In those circumstances the Authority was
entitled to conclude that, notwithstanding the unsatisfactory aspects
of the Supreme Court’s decision, it was sufficient to provide serious
reasons for considering that X had committed the crimes for which he
was convicted.
Application
by Y
[100] It was not disputed that Y bore the burden of proving that
she
was a refugee within the definition of Article 2. In order to so
she had to satisfy the Authority that she had a well founded fear of
being persecuted for one of the Convention reasons, namely race,
religion, nationality, membership of a particular social group or
political opinion. Y’s position was essentially that she was a member
of a particular social group, namely Tamils considered by the
authorities in Sri Lanka to be associated with the LTTE. She
sought refugee status on the basis of her fear that if she returns to
Sri Lanka her relationship to X will become known to the authorities
and she will be persecuted as a result of him being viewed as a LTTE
supporter.
[101] Mr Henry submitted in the
alternative that (if the Authority’s
characterisation of X as a LTTE supporter were right) X may be treated
by the LTTE as a deserter and he and his wife would be at risk of
reprisals by the LTTE. This is inconsistent with X’s denial that
he was a supporter of the LTTE. Y is, of course, entitled to have
her position determined independently and given the Authority’s firm
(and justified) conclusion that X was a LTTE supporter both
possibilities were open to her as the basis for her fear of
persecution. However, Mr Henry did not actually point to any
concrete evidence that might have supported this ground.
[102] Where a person claims to be
part of a social group that is at
risk of persecution the first step for the tribunal to consider is
whether such a social group exists and whether the applicant is a
member of it. The question that then arises is whether there is a
well-founded fear of persecution by the applicant. The relevant
principles are encapsulated by Gummow and Hayne JJ in Appellant
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 (HCA):
[103] The Authority’s determination
of Y’s appeal is notable for its
brevity in comparison with the detailed consideration afforded X’s
appeal. It did not identify the Convention reason being relied on by Y,
though it is apparent from
the recital of the facts that it was membership of a particular social
group.
Nor did it consider how those in that group were treated by the
authorities.
[104] The Authority gave two reasons
for rejecting Y’s appeal. The first was that there was no basis on
which to assert that Y faced a real risk of
persecution, given that she had not suffered persecution between the
time X joined the MV
Yahata in 1992 and her departure from Sri Lanka in 2001. Mr
Henry
acknowledged that this was the case but submitted it this may have been
because the Sri Lankan
authorities had not connected Y with X prior to her departure from Sri
Lanka.
He pointed to the fact that X’s details do not appear on Y’s passport
which was obtained
in Sri Lanka in 2001, compared with X’s passport which was obtained
through agents
in 2000 while he was in India. The Authority rejected this suggestion:
[105] Mr Henry submitted that the
Authority’s conclusion showed that it
had wrongly based its assessment of the risk facing Y on her past
experience rather than the prospective risk to her. He relied on the
Authority’s own
decision in Re MSM (Refugee Appeal No. 300/92 1
March 1994)
in which it had stated the prospective nature of the enquiry:
[106] Mr Woolford accepted that
past experience is not determinative of
prospective risk but said that the Authority’s conclusion could not be
said to have been unreasonable on the basis of the information before
it. However, as is made clear in the decision in Appellant S392/2002, whilst looking
at what
has happened in the past may be helpful, it cannot be determinative of
what is likely to happen in the future. In particular, what has
happened in the past will be an unreliable indicator if there has been
change in circumstances over time. The facts that Y points to
seem to me not so much speculation as circumstances consistent with her
claim that her relationship with X had not come to the attention of the
authorities. If examination of the available country information were
to show a pattern of persecution of the families of LTTE supporters,
these facts should be significant.
[107] This brings me to the
Authority’s second reason for finding that
Y does not face a real risk of persecution, namely that there has been
a cease-fire in place between the Sri Lankan military and the Tamil
Tigers since February 2002 so that there was no evidence that Y would
be at risk of persecution even if her relationship with X became known
to the Sri Lankan authorities.
[108] Mr Henry submitted that the
Authority’s conclusion as to the
effect of the cease-fire was unsupportable in the face of recent
country information showing that, for example, in 2005 there were 25
instances of politically motivated disappearances at the hands of the
security forces and ten instances by paramilitary forces allegedly tied
to the government. Mr Woolford accepted the instances of
persecution by authorities cited by Mr Henry but submitted that they
did not assist in determining whether Y herself had a well-founded risk
of persecution.
[109] If a group of which Y is a
member faces persecution
notwithstanding the cease-fire the mere fact of the cease-fire cannot,
in itself, justify the conclusion that Y does not face a real risk of
persecution. The Authority does not refer at all to the
information Mr Henry relied on and it is not clear whether it was, in
fact, before the Authority. However, such information would
clearly be relevant to Y’s position and should be considered. The
sinking of the MV Yahata was
well publicised at the time. Given X’s
conviction in connection with that event it must be likely that he is
regarded in Sri Lanka as a LTTE supporter. If there is danger to
families of LTTE supporters and there is reason to think that Y was not
previously connected with X, then her position needs to be considered
against those facts. It may be that the outcome of such an
enquiry will produce the same result. However, I consider that Y’s
position does need to be reviewed with the benefit of the country
information relied on by Mr Henry.
Conclusion
[110] I find that X’s
application must fail because:
[111] Y’s application succeeds
because the Authority
erred in :
[112] The matter is remitted back to
the Authority for re-consideration
of Y’s position.
[113] I was not addressed on the
issue of costs. If counsel wish
to address that issue they may file memoranda as follows:
Solicitor for the
plaintiff: Loo & Koo (Auckland)
Solicitor for the
defendant: Meredith Connell (Auckland)