Chanaka Hapugoda and Minister of Immigration and Multicultural Affairs [1997] AATA 108 (1 April 1997)

ADMINISTRATIVE APPEALS TRIBUNAL

CHANAKA HAPUGODA v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. V96/328
ATT No. 11738
Number of pages - 13
Citizenship & Migration

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
B.M. FORREST (Deputy President)

CATCHWORDS

Citizenship & Migration - Applicant a Sri Lankan citizen - member of People's Liberation Front - organised attacks against government - applied for protection visa - whether excluded from protection pursuant to Article 1F(b) of the Convention relating to the Status of Refugees - whether "serious non-political crimes" - decision affirmed.

Migration Act 1958 s. 65(1), 500(1)(c) Migration Reform Act 1992 Migration Regulations Regulation 866.221

Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 T v Secretary of State for the Home Department [1995] 1 WLR 545 T v Secretary of State for the Home Department on appeal to the House of Lords [1996] UKHL 8; [1996] AC 742 Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556. Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and Another (1995) 135 ALR 421 Prevato v The Governor, Metropolitan Remand Centre and Others; Prevato v Miszalski and Another [1986] FCA 17; (1986) 8 FCR 358

HEARING

MELBOURNE, 29 January 1997 1:4:1997

Counsel for the Applicant: Mr P. Rose

Solicitor for the Applicant: Wimal & Associates

Counsel for the Respondent: Mr P. Hanks

Solicitor for the Respondent: Mr R. Rigby, Department of Immigration and Multicultural Affairs

ORDER

The decision under review is affirmed.

DECISION

B.M. FORREST

BACKGROUND

1. Mr Chanaka Hapugoda, a citizen of Sri Lanka, made application to the respondent on 11 November 1993 pursuant to the provisions of the Migration Act 1958 ("the Act") for Refugee status in Australia, a domestic protection (temporary) entry permit, a processing entry permit and permission to engage in employment in Australia.

2. The Act was extensively amended by the Migration Reform Act 1992 as amended by the Migration Laws Amendment Act 1993, which came into effect on 1 September 1994. As a result, an application for refugee status and/or a domestic protection (temporary) entry permit made prior to 1 September 1994 is taken to be an application for a protection (residence) visa (866).

3. A delegate of the respondent informed the applicant by letter dated 17 July 1995 that the application for a protection visa was refused on the ground that the applicant came within the provisions of Article 1F of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention") and was thereby not a person to whom Australia has protection obligations under the Convention. The decision was made pursuant to s. 65 (1)(b) of the Act on the basis of the applicant failing to meet the criteria prescribed by regulation 866.221 of the Migration Regulations.

4. Section 65 (1) of the Act relevantly reads: "After considering a valid application for a visa, the Minister: (a) if satisfied that: ... (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and ... is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa."

5. Regulation 866.221 reads: "The Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

6. In refusing the application the delegate appeared to be relying on Article 1F(a) of the Convention: "...the applicant's testimony that he personally planned and organised terrorist activities which were aimed at and resulted in the murder of several individuals, his orchestrated use of transport commuters as camouflage and a basis for launching a terrorist attack, including the widespread destruction of public property, clearly indicate that the applicant has committed serious crimes against peace. ... Given that the applicant has provided unequivocal evidence of his activities, I find that the nature of his crimes preclude him from deserving protection under the Refugees Convention."

7. The applicant was also informed by the delegate that he may apply to the Refugee Review Tribunal ("RRT"), for a review of the decision. Subsequently the RRT decided that it had no jurisdiction in the matter. On 21 March 1996, the applicant lodged an application with this Tribunal for review of the delegate's decision.

8. The Tribunal has jurisdiction pursuant to s. 500 (1)(c) of the Act to review: "(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); other than decisions to which a certificate under s. 502 applies."

9. The applicant arrived in Melbourne on 11 May 1991 on a student visa Class 561. A further student visa (Class 560) was issued on 18 June 1992. He is currently the holder of a bridging visa which expires twenty-eight days from the date of this decision.

EVIDENCE

10. The Tribunal had before it, as part of the material lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (T1- T21 inclusive), a statement of the applicant, the transcript of a record of interview between the applicant and an officer of the respondent, together with a summary of the interview. The applicant gave oral evidence with the assistance of an interpreter.

11. The applicant was born on 3 August 1970 in Colombo, Sri Lanka. His ethnic or linguistic group is Singhalese. He grew up in the Singhalese village of Madampe, approximately 10 kilometres from Colombo in Sri Lanka. He lived in the village with his mother, father and twin sister who still live there. His father was an active member of the Sri Lankan Freedom Party and a party organiser. While the applicant was at school in Year 11, he became involved with the People's Liberation Front ("JVP") through a friend, Mahesh, who was the chief organiser for the JVP in the area. Other members of the JVP would talk to the school boys about the philosophies of the JVP, and invited them to join the organisation. The applicant joined the JVP in 1987 when he was 16-17 years. His first activity in the organisation was distributing posters. He and other members of the JVP also organised a school strike on 30-31 January 1989. Police officers were brought in to restore order. Stones were hurled by the students and the police retaliated. The applicant was then detained in custody for three days. He claimed to have been assaulted by police, to have been injured and to have received medical treatment. He was suspended from school from 4 February to 4 March 1989.

12. He continued organising other activities, and was appointed leader of a group which comprised about twenty youths. Eventually he was appointed chief organiser in the area, and became responsible for carrying out more important tasks. These included attacks on police vehicles and a police station. The first attack occurred in May 1989.

13. It was the applicant's evidence, in relation to the first attack on a police vehicle, that he was directed by more senior members in the JVP to organise the attack. He was supplied with arms and ammunition and he despatched a group of five people to carry out the attack. Three of his group died and three police officers were killed. Two days later, the bodies of the other two members of the group, who had been taken into custody, were seen burning on a pile of tyres.

14. The second attack occurred in June 1989. Ten of the applicant's friends were trained in arms, although he was not. It was his evidence that he planned and organised an attack on an official police vehicle, with arms supplied by the JVP. The attack occurred on a road in a jungle area outside Madampe. In his interview with an officer of the respondent, the applicant had said that in preparation for the attack he watched police movements and reported them to the JVP. He could not recall in his evidence how many people he had organised to take part in the attack. He said that five of his colleagues were killed. He could not recall if any police were killed.

15. The applicant's friend and leader Mahesh was found dead by a roadside on 21 July 1989. After this, an attack was organised on a police station in Madampe. This occurred on 26 September 1989. In evidence to the Tribunal and in his interview with a departmental officer the applicant admitted that the attack on the police station in Madampe was in revenge for the death of his friend. He instructed ten people to carry out the attack and they were told to be prepared to be killed: "I told them that they might not even return but they were prepared - they said they were prepared to go ahead with it because they also loved this person called Mahesh and they were ready to do anything to take revenge from the police ..." (S1, p. 28)

16. Those involved in the attack (whom the applicant referred to as his 'soldiers') were in a van and three or four others, armed with hidden rifles, boarded a commuter bus carrying other passengers. When the bus stopped at a stop near the police station, they fired on the station. The other members of the JVP fired from the van following the bus. Three JVP members died in the shooting, five others were taken into custody. Three police officers died and there was considerable damage to the police station. The incident which took place at dusk had been planned and performed on the assumption that the police would not fire on the commuter bus. The applicant was not present while it took place.

17. In the record of interview the applicant described various other activities which he had organised, such as setting fire to a bus, attacking the agrarian service centre, and setting fire to a post office. He claimed in evidence that none of the incidents, including the Madampe police station one, were intended to hurt civilians. They were directed at the police and the government. According to the applicant, the main aim of the JVP was to achieve a just government by overthrowing the government of the day, something which could not be done within the democratic process. By attacking property and causing chaos it intended to destabilise the government to the extent that it would eventually have to resign and allow the JVP to assume government. He claimed that his involvement was purely to achieve this political objective. He admitted in evidence that he doubted if the attacks would achieve this result, but he organised the attacks because he had to follow orders.

18. After the Madampe police station incident a summons, dated 2 October 1989, was issued to the applicant to attend at the police station in Chilaw for interrogation in relation to the attack on the police station and other activities. A summons was also issued in January for his attendance at the Magistrates' Court in Chilaw to answer a complaint in relation to the same activities (T19). The applicant said he left home after people came looking for him and went to stay in Colombo. He was approached by the JVP to organise further activities, however he refused to continue to do so for the safety of his family. He said he was given an ultimatum in September 1990 by the JVP and there were threats to kill him. His mother then decided it was best for him to leave the country and his father helped him obtain a passport by paying 1200 rupees. He claimed his father paid officials at the airport 10,000 rupees to enable him to depart. He said should he return to Sri Lanka he feared being taken into custody and other reprisals from the JVP.

19. In evidence the applicant appeared to recall little detail about the various incidents without the assistance of his written notes. The primary decision maker and the Tribunal have had to make do with the applicant's evidence of the circumstances surrounding the events he described and his motives.

WHETHER APPLICANT EXCLUDED FROM PROTECTION BY ARTICLE 1F

DISCUSSION

20. The issue before the Tribunal is whether the applicant is excluded from the protection of the Convention by the operation of Article 1F(b). The issue for consideration turns on the nature and purpose of the offences, that is, whether the crimes as described may properly be described as non-political.

21. Although the primary decision maker relied on Article 1F(a) in refusing the application it was common ground, and the Tribunal so finds, that the provisions of Article 1F(a) and (c) are not applicable in the present circumstances.

22. Article 1F of the Convention reads: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

"SERIOUS REASONS FOR CONSIDERING"

23. The term "serious reasons for considering" is a standard of proof requiring less than the balance of probabilities: see Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173. It is not necessary that the person concerned has been formally charged with or convicted of a crime. It is necessary in deciding if this standard is met, to look at the applicant's degree of participation in the crimes. Article 6 of the Excerpt From The Charter Of The International Military Tribunal (T7) states that "Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes [crimes against peace, war crimes, crimes against humanity] are responsible for all acts performed by any persons in execution of such plan". On the applicant's own evidence, although he was not present during the incidents described, he organised and planned the attacks. In that capacity, he is responsible for the actions of those who executed the planned attacks.

"SERIOUS NON-POLITICAL CRIME"

24. Mr Rose, counsel for the applicant, submitted that all of the applicant's activities arose from his political beliefs and support of the JVP and that none of his activities could be seen as involving non-political crimes. All his activities related to the objective of changing the government.

25. Mr Hanks, counsel for the respondent, submitted the applicant is disentitled from claiming the protection of the Convention. He submitted there can be no dispute that, on his own evidence, the applicant has committed serious crimes in Sri Lanka. He has been an active participant in the organisation and direction of acts of murder.

26. Further, it was submitted if those crimes can be regarded as non- political the applicant will be excluded from the Convention by Article 1F(b). A crime which is committed with the object of overthrowing or changing the government of a State will be a political crime if the commission of the crime is not too remote from the objective and not grossly out of proportion to the alleged objective. In the present matter, the relationship between at least some of the applicant's criminal acts and the objective of overthrowing or changing the government of Sri Lanka was, at best, remote; and those criminal acts (in particular, the revenge attack on the police station at Madampe on 26 September 1989) was not proportionate to the political objective.

27. Article 1F(b) and the analogous exclusion in extradition law (which refers to a "political offence") has received attention in a number of cases, authoritative text books and in the Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook") published by the United Nations High Commissioner for Refugees ("the UNHCR"). According to the Handbook, the policy of the provision is: "...to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence." (para. 151)

28. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 392 Mason CJ observed in relation to the Handbook: " "Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties...I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention." "

29. To exclude the applicant from the protection of the Convention the crimes, to which the applicant has admitted, must be "serious" and "non-political".

"SERIOUS" CRIME

30. According to the Handbook, a "serious" crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b), even if technically referred to as "crimes" in the penal law of the country concerned (para. 155). The UNHCR proposed, with a view to consistency, that in the absence of any political factors offences including homicide, rape, child molesting and wounding might be considered as raising a presumption of serious crime. Other offences, such as burglary, stealing, embezzlement and assault, may also raise the presumption if other factors such as use of weapons, injury to persons and property damage were present. Elements suggested as tending to rebut a presumption of serious crime include the age of the offender, parole, lapse of five years since conviction or completion of sentence, general good character, offender being merely an accomplice and other circumstances e.g. provocation and self defence surrounding commission of the offence - Goodwin-Gill, The Refugee In International Law (2nd Ed.) p. 107.

31. It is also suggested in the Handbook that: "In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee." (para. 156)

32. It was argued on behalf of the respondent that this balancing task is not required in deciding if the applicant's offences are serious. Mr Hanks relied on the decision of the Court of Appeal (England) in T v Secretary of State for the Home Department [1995] 1 WLR 545 where the Court held: "...that, in considering whether "a non-political crime" was "serious" within the meaning of article 1F, neither the Secretary of State nor the appeal tribunal was required to balance the threat to the applicant's life or freedom, if asylum were not granted, against the gravity of the offence he had allegedly committed; that, irrespective of whether the applicant's crimes were of a terrorist nature, the relevant question for the purposes of article 1F was whether they were too remote from or otherwise disproportionate to their alleged political objective;"

33. In Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556, the Court (French J.) referred to T's case and commented: "The adjective "serious" in Article 1F(b) involves an evaluative judgement about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgement. But once the non-political crime committed outside the country of refuge is properly characterised as "serious" the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin." (at 16-17)

34. His Honour did not have to decide whether the evaluative characterisation of an offence as "serious" attracts elements of a balancing exercise as it was clear that the crime in that case (conspiracy to import into Australia trafficable quantities of heroin) was to be regarded as serious.

35. T's case was appealed to the House of Lords [1996] UKHL 8; [1996] AC 742. In affirming the decision of the Court of Appeal, the House of Lords reaffirmed the principle that for a crime to be a political one for the purposes of Article 1F(b) it had to be sufficiently, closely and directly linked to the political purpose and not too remote from it, regard being had to the means used to achieve the political end and whether it was likely to involve the indiscriminate killing or injuring of members of the public. Two of their Lordships added that acts of terrorism likely to cause indiscriminate injury to persons having no connection with the government were outside the concept of a political crime within the meaning of the Convention and that the attacks in question on both the airport and an army depot had properly been characterised as terrorist offences.

36. The Tribunal finds that the crimes referred to earlier, which the applicant admits to having organised, should be regarded as raising a presumption of being serious crimes. This presumption is well founded when taking into account that weapons were used, that there was loss of life and extensive property damage. Factors including the age of the applicant at the time of the offences, the fact that he appeared to be under orders to organise the attack and his general good character subsequently, do not rebut the presumption that the crimes are serious.

37. If a person has committed a serious non-political crime outside Australia prior to his arrival here, the provisions of the Convention do not apply to him. On the authority of T's case and Dhayakpa, there is nothing in the Convention to support the view that the Tribunal, in deciding whether a non-political crime is "serious" and therefore within Article 1F, is obliged to consider what is ultimately a question of determining if a person is entitled to refugee status, that is, whether a person has a well-founded fear of persecution. Even if the Tribunal were required to undertake such an exercise, there was little in the evidence on which such a judgement could be made, apart from the assertion of the applicant that if he returns to Sri Lanka he fears reprisals and possible death from either the police or the JVP.

"NON-POLITICAL CRIME"

38. The Handbook at para. 152 indicates that a number of tests should be considered in deciding whether a crime is non-political or political: "...regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common- law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature."

39. In T's case Gledewell LJ., who delivered the judgment of the Court of Appeal, concluded that the common thread running through the para. 152 was: "...before any crime can be said to have a genuinely political purpose it must in some coherent sense be calculated to promote that purpose. That will simply not be so if the crime is wholly disproportionate to the purpose to be served. The more atrocious it is, the more gratuitous violence it involves, the more likely it is to be disproportionate. The more disproportionate it is, the more difficult will it be to establish the close and direct causal link that must exist between the crime and its suggested political object". (at 558-559)

40. This reasoning was adopted by the Federal Court of Australia by Beaumont J. in the cases of Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and Another (1995) 135 ALR 421. See also the discussion in an earlier Federal Court decision Prevato v The Governor, Metropolitan Remand Centre and Others; Prevato v Miszalski and Another [1986] FCA 17; (1986) 8 FCR 358, where Wilcox J. remarked: "Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organised, prolonged campaign involving a number of people. The offence must be directed solely to that purpose; it must not involve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign ..." (at 386)

41. In the House of Lords (T's case) Lord Lloyd of Berwick, after reviewing the authorities, arrived at the following definition of a political crime: "A crime is a political crime for the purposes of article 1F(b) of the Geneva Convention if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public." (at p. 786-787)

42. Turning to the present matter, in an interview with a departmental officer the applicant was asked how the activities he described were aimed at his political objectives and how they were related. He answered: "Our political aims could not have been achieved anyway because they didn't entertain us for any discussion or any such ... things. What we wanted to do was overthrow the government, get the power in our hands and then create a just government and then have discussions..." (S1 p. 31)

43. Later he was asked what his motive was in undertaking the activities. He answered: "The motive was to interrupt the UVP ..." "At that time when the UVP was in power and it was not only me who did all that. We had organised in most of the areas, all over Sri Lanka, and we wanted to create a disturbance and that way sort of get - achieve our aims, goals..." "Probably if it came to a crux the government would have sort of withdrawn then, they would have stepped down and they would allow us to carry on...." "We couldn't come out in the open and do anything, we had to do everything in hiding. So we had to overthrow the government and then come out, take power into our hands, and then tell the people that we have come out like this, let's all be one, form a government and let us all be one together..." (S1, p. 33)

44. The applicant gave evidence that he did not believe the attacks would achieve their purpose but that he was obliged to continue as a leader of the JVP. The objectives of the JVP as cited by the applicant were politically motivated and, if the attacks were organised solely with those aims in mind, it would be open for the Tribunal to find that the offences were political, despite the violent way in which they occurred. However, this is clearly not the case, at least in relation to the attack on the police station in Madampe on 26 September 1989. While there were a number of similarities to previous attacks it differed in that the applicant admitted it was a revenge attack on the police for the death of his friend, Mahesh. He admitted to being angry about Mahesh's death: "At the police station they said they have no person called Mahesh here. This boy, this Mahesh was really close to me and this incident sort of - I had hated the police. MS IONNOU: So, it was a revenge attack on the police? Yes ..." (S1, p. 28)

45. The nature and purpose of this attack was clearly to seek retribution for the death of his friend Mahesh. In that sense it was not directed solely for a political purpose or for genuine political motives. There was no sufficiently close or direct causal link between the attack on the Madampe police station and the alleged political purposes of the JVP. There was a lack of nexus between the crime and any realistic political objective. It was for a private purpose involving a personal motive too remote from the political objectives of the JVP.

46. The political element (if any) did not, on the evidence of the applicant, outweigh it's common law character. The attack which resulted in the death of at least six people did, on any objective view, place the lives of civilian bus passengers at risk. It was clearly disproportionate to any political objective sought to be achieved.

47. The Tribunal finds that the attack on the Madampe police station on 26 September 1989 was a serious non-political crime within Article 1F(b) of the Convention, which excludes the applicant from the protection of the Convention and from obtaining a protection visa.

CONCLUSION

48. For these reasons the Tribunal is of the opinion that, in the words of the Convention, there are serious reasons for considering the applicant has committed a serious non-political crime outside Australia prior to his entry to Australia. He is thereby excluded from the protection of the Convention pursuant to Article 1F(b). Accordingly, the decision under review to deny the applicant a protection visa is affirmed.