FEDERAL COURT OF AUSTRALIA SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 229 MIGRATION – privative clause decision – appeal from Administrative Appeals Tribunal – jurisdiction of Federal Court – protection visa – war crimes – crimes against humanity – jurisdictional error Migration Act 1958 (Cth) s 474, s 483 Administrative Appeals Tribunal Act 1975 (Cth) s 3, s 44 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 followed Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 followed W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948 cited W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618 approved SHCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 279 of 2002 SELWAY J ADELAIDE 24 MARCH 2003 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 279 OF 2002 ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SHCB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 24 MARCH 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent his costs of and in relation to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 279 OF 2002 ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SHCB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE: 24 MARCH 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant, his wife and his six children arrived in Australia in August 2001. They are Afghani citizens who left Afghanistan because the applicant's life was in danger from the Taliban who then governed much of the country. They were and are "unlawful non-citizens" for the purpose of the Migration Act 1958 (Cth) ("the Act"). They were taken into detention. On 19 September 2001, the applicant applied for a protection visa. The criterion for the grant of such a visa is that the respondent is "satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol": s 36(2)(a) of the Act. The application for a protection visa was initially heard by a delegate of the Minister. On 7 May 2002, the delegate informed the applicant that his application was refused. The ground for refusal was that the exclusion clause in Article 1F(a) of the Convention applied: "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. …" 2 The applicant appealed from that refusal to the Administrative Appeals Tribunal ("AAT"). The Tribunal, comprising a Deputy President, delivered its decision on 12 November 2002. The Tribunal affirmed the decision of the delegate. 3 The applicant has appealed from the AAT to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Chief Justice of this Court, after consultation with the President of the AAT, has determined that the appeal should be heard by a single Judge. 4 Although the process is described as an appeal, it is in fact in the original jurisdiction of this Court. That jurisdiction is limited. In particular, it is limited by s 483 of the Act which provides: "Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to a privative clause decision." Reference should also be made to s 3(1) and Sch 1 of the Administrative Appeals Tribunal Act 1975 (Cth) which is to similar effect. A "privative clause decision" is one falling within the definition in s 474(2) of the Act: "… privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." 5 On the face of it the decision of the AAT in this case was a "privative clause decision". However, that definition now has to be understood in light of the High Court's decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157"). It is now clear that a "privative clause decision" does not include a decision which is invalid by reason of a jurisdictional error (see S157 at [76]), although in determining whether or not there is a jurisdictional error, the context of the Act, including s 474, is to be taken into account (see S157 at [77]-[78]). 6 Although the High Court has not ruled specifically on this question (see S157 at [97]) it is apparent that s 483 of the Act and s 3(1) of the Administrative Appeals Tribunal Act 1975 (Cth) do not apply so as to preclude this Court from hearing an "appeal" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) if the decision of the AAT involves a jurisdictional error. 7 Was there a jurisdictional error by the AAT? 8 The basis upon which the AAT rejected the applicant's application was his membership of an organisation called Khadimat-e Atal'at-e Dowlati ("KHAD"). KHAD was an internal security agency established by the Communist Government which was in power in Afghanistan from 1978 until 1992. The applicant was a member of KHAD from 1981 until the end of the Communist regime. 9 In his evidence the applicant did not deny that KHAD, or at least a division of it called the 5th Riasat, had been involved in various atrocities. However, he denied any personal knowledge of, or involvement in, such atrocities. The AAT found that KHAD was responsible for "war crimes" and "crimes against humanity": "The material points to KHAD's being involved in acts of torture and attacks against the civilian population or individual civilians who were not taking a direct part in hostilities. It also points to KHAD's having been engaged in violence to life and person including cruel treatment and murder where it was involved in armed conflict within Afghanistan and not of an international nature. I am satisfied that it provides strong evidence that KHAD committed crimes against humanity or war crimes or both within the meaning of an international convention such as the Nuremberg Charter.... [T]here is strong evidence that acts of atrocity, torture, cruelty and violence to the person as well as arrest and detention for indefinite periods were perpetrated by KHAD not only in Kabul but in other areas of Afghanistan." It was not disputed before me that these findings were fairly open to the Tribunal. 10 Of course, mere membership of KHAD is not sufficient to ascribe the applicant with these crimes. The Tribunal acknowledged this: "In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime." Both parties before me accepted this as a correct statement of the test for the "complicity" of a member of an organisation involved in systematic crimes. It is consistent with the detailed reasoning and analysis of Mathews J in W98/45 and Minister for Immigration and Multicultural Affairs [1998] AATA 948 and W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618 ("W97"). 11 In determining whether the applicant was relevantly complicit in the acts of KHAD the AAT drew attention to the following: · The applicant was a middle-ranking officer of KHAD who had been promoted during the course of his service with the organisation; · KHAD was feared in the community; · The applicant would have been well aware of the activities of KHAD even if he himself was not personally engaged in those acts; · The applicant would be aware that reports by him to his superiors could lead to others within the organisation committing war crimes or crimes against humanity against those named in the reports. The Tribunal gave two examples: o the applicant gave evidence that he asked for a certain geographical area to be secured. This resulted in various persons being charged before a military tribunal with "political" crimes; o the applicant gave evidence that he disclosed information about the whereabouts of a particular individual. The AAT concluded: "Given his position in KHAD, the knowledge of KHAD's activities in the community, his knowledge of the action that KHAD would take when he reported his information, I am satisfied that there is strong evidence that [the applicant] reported that information with the knowledge that KHAD would take action to end the security threat in one area or the destructive activities alleged to have been undertaken by Azad Beg in another. He would have done so in the knowledge that KHAD was likely to engage in activities that amounted to war crimes or crimes against humanity in the sense I have described above." Mr Hanna, who appeared for the applicant, argued that the AAT had made a factual error in finding that the reports by the applicant were subsequently dealt with by KHAD. However, if there was any such error it was an error within jurisdiction which need not concern me at least until a jurisdictional error has been identified. 12 Mr Hanna argued that there were two jurisdictional errors by the AAT. The first involved what he submitted was the application of the wrong test for complicity. More particularly he argued that the AAT applied a test of "knowledge" rather than joint purpose in order to establish complicity. It is true that the AAT drew attention to the applicant's knowledge of the acts of KHAD. But the reason why the AAT dealt at some length with this issue was because the applicant denied such knowledge. This does not mean that the AAT ignored the question of purpose. The other matters referred to by the AAT relating to the applicant's level in the organisation and his providing information to the organisation are matters relevant to showing that he participated in the common purpose of the organisation. 13 Mr Hanna went so far in relation to this issue as to argue that to show such a common purpose it was necessary to identify a specific or particular war crime or crime against humanity in which the relevant person had been complicit. This is clearly too onerous a test. It is an unfortunate fact of modern history that there are organisations which have had the objective of committing various war crimes or crimes against humanity in pursuit of political or other objectives. The SS and the Gestapo are obvious examples from the Second World War. These organisations would have been well known to those responsible for drafting the Refugee Convention. This does not mean that everyone associated with these criminal organisations could not be a refugee. But the suggestion that senior members of the organisations, who had been members for long periods, were entitled to be treated as refugees unless it could be shown that they had been complicit in specific crimes is unrealistic. Such an interpretation of the Convention is not required either by the terms of the Convention or by the cases decided in respect of it. 14 The second jurisdictional error suggested by Mr Hanna was that the AAT did not consider whether the applicant was acting under duress. Of course, the applicant did not claim to be acting under duress. The applicant claimed that he did not know of and was not involved in any atrocities. A claim of duress is necessarily inconsistent with such a claim. Nevertheless there was some evidence which the Tribunal apparently accepted which could have raised the issue of duress: "When asked why he had not attempted to escape... [the applicant] asked rhetorically how could he. He would be killed by KHAD. …KHAD officers and non-commissioned officers could not leave without being branded disloyal. [The applicant] stated he would be killed if he attempted to leave... He was an officer who was entitled to benefits and whose departure would not only be noted but would be visited with dire consequences." 15 This issue was addressed by Mathews J in W97 at pars [77]-[83]. Her Honour concluded that the analysis of duress and the analysis of common purpose would reach the same result. The question ultimately was whether the applicant had been in a position to make the relevant moral choice. I adopt, in particular, her Honour's analysis at pars [80]-[83]: "Probably the main authority on the defence of obedience to higher orders is Finta, which dealt with atrocities committed in Hungary during the Second World War. The court there held that when military orders are manifestly unlawful (as was clearly the situation in the present case) this defence can have limited operation. It will normally apply only when there are 'imminent, real and inevitable threats to the subordinate's life ...' (at p 611). On the other hand, the court accepted that there is an element of 'moral choice' in relation to this defence … Also relevant to this defence is the need to compare the harm which would be inflicted upon an individual who refused to obey orders, and the harm which was in fact inflicted in pursuance of the orders (Hathaway, p 218). This comparison is particularly relevant in the present case … I would add this to the comments of the text-writers. The lower the rank of the recipient of an order, the greater will be the sense of compulsion that will exist and the less will be the likelihood that the individual will experience any real moral choice. It cannot be forgotten that the whole concept of the military is to a certain extent coercive. Orders must be obeyed. The question of moral choice will arise far less in the case of a private accused of a war crime or a crime against humanity than in the case of a general or other high-ranking officer … All of this leads me to conclude that the applicant, faced with an intolerable choice, adopted the least terrible of the courses available to him. It would be extraordinarily harsh, and would be wrong in principle, to find that in doing so, he rendered himself liable for shootings committed by others. Whether the conclusion in this case be reached by reference to principles of accessorial liability, or by reference to the defence of coercion, or through a combination of these, the result will be the same." 16 Applying that reasoning in this case it can be seen that there is no error of principle by the AAT. Whether or not the applicant may have been harmed if he had disobeyed orders is not to the point. The question is, did he have a common purpose with the organisation? The AAT found that he did. As I have remarked above, there was no jurisdictional error in that finding. 17 I admit that this matter has caused me some concern. On a superficial reasoning the decision of the AAT did seem to extrapolate from the criminality of the organisation to that of the individual without undertaking any clear analysis of purpose or complicity - issues which are necessarily complex and difficult. And, of course, the consequences of refusing a visa to the applicant may be very serious for him. But on detailed consideration of the reasons of the AAT I am satisfied that the AAT did deal with the relevant and appropriate issues. Whether or not I would have come to the same conclusion as the AAT did is simply not to the point. There was no jurisdictional error. 18 The application must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 24 March 2003 Counsel for the Applicant: Mr K Hanna Solicitor for the Applicant: Refugee Advocacy Service of South Australia Inc Counsel for the Respondent: Ms S J Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 March 2003 Date of Judgment: 24 March 2003