VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 658

FEDERAL COURT OF AUSTRALIA

VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 658 Migration Act 1958 (Cth) s 500(1)(c) Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 cited VWYJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 278 OF 2005 SUNDBERG J 18 APRIL 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 278 OF 2005

BETWEEN: VWYJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 18 APRIL 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time be dismissed. 2. The notice of appeal be struck out. 3. The applicant pay the respondent's costs of 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

VICTORIA DISTRICT REGISTRY VID 278 OF 2005

BETWEEN: VWYJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 18 APRIL 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to seek an order for review of the decision of the Administrative Appeals Tribunal (the Tribunal) confirming a refusal by the Minister's delegate to grant him a protection visa, on the ground that he fell within article 1F of the Convention Relating to the Status of Refugees. Section 500(1)(c) of the Migration Act 1958 (Cth) provides for review by the Tribunal of such a refusal. So far as relevant to this case, that article provides: "The provisions of this convention shall not apply to any person with respect of 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 provisions 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." 2 The Minister's decision was based on the applicant's involvement in the killing of hundreds of civilians in the Sabra‑Shatila refugee camps in Lebanon in 1982. The Tribunal noted that the applicant had given three different accounts of his involvement. The first was at a hearing in 1995, before the Refugee Review Tribunal (the RRT) and in a submission by his solicitors, filed with the RRT at that time. The submission, which the Tribunal said was consistent with his evidence to the RRT, contained admissions that he had engaged in "these (and other) terrible actions", had suffered trauma on account of his involvement in the killing of maiming of both combatants and innocents, and that he had participated in violent and brutal actions designed to force the Palestinian people from Lebanese territory. 3 The second version was contained in a statutory declaration in March 1998. In this he very much diminished his role, compared with the original version of events. The third version was given at the hearing before the Tribunal. It was to much the same effect as the second, but with differences the tribunal identified. 4 In paragraph 25 of its reasons, the Tribunal persuasively explained what it discerned as the reason for the difference between the original and later versions. When the first version was propounded, the applicant and his advisers were not alert to the disqualifying effect of Article 1F and it suited them to use his violent conduct as a reason for fearing persecution in Lebanon. Later when Article 1F came to the fore, it was necessary to back pedal. 5 The Tribunal found that there was a high probability that the applicant was engaged directly in the slaughter of civilians during the Sabra‑Shatila massacre. It rejected his accounts aimed at distancing himself from the killings. It found that he was a willing participant in the massacre of civilians, though it was not possible to say how many he directly slaughtered. 6 The Tribunal went on to say that if it was wrong in "these positive conclusions" it was firmly of the view that "there are serious reasons for considering that the applicant was directly and willingly involved in the massacre". These last quoted words are the words of article 1F itself. 7 The Tribunal quoted what had been said by Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465: "It is sufficient in my view if the material before the decision‑maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as "strong". It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as "strong" without meeting either of these requirements." 8 The Tribunal then referred to the definition of the various crimes falling within article 1F. It found that the murder of civilians in the circumstances described was a war crime, a crime against humanity, and a serious non‑political crime. The original version of events before the RRT brought the applicant's conduct within the definitions. The Tribunal then considered whether there were any defences available to the applicant. The applicant contended he was simply following orders and that he engaged in the conduct in question because he feared for his own life and for the safety of his family. 9 The Tribunal noted that it was not a defence under international law that a person was following orders, at least in a case where the crimes are manifestly unlawful as was the case here. The Tribunal also ruled out duress as a defence. It did not accept that the evidence given by the applicant established a reasonable basis for finding that he was not criminally responsible by reason of duress. This is the language of article 31(1) of the Rome Statute dealing with the defence of duress. The Tribunal went on to consider the applicant's later version of events and alternative bases of liability. The Tribunal summed up at paragraph 49 as follows: "As already stated, my conclusion is that on the balance of probabilities the applicant committed war crimes, crimes against humanity and serious non‑political crimes by his personal participation in the massacre of civilians at the Sabra/Shatilla camps. Alternatively there are serious reasons for considering that he did so. No defences are reasonably available to the applicant on the basis of his carrying out superior orders or his fear of retribution for failing to do so. Additionally, but unnecessarily in the circumstances I find that the applicant also bears criminal responsibility for the events at the massacre on the basis of his command responsibility. He is also criminally responsible for aiding and abetting the commission of war crimes, crimes against humanity and serious non‑political crimes carried out by his Phalangist colleagues and on the basis of his participating with them in the common purpose of engaging in the slaughter of the occupants of the Sabra/Shatilla camps, regardless of whether or not those occupants were PLO combatants or non‑combatant men, women and children." 10 The Tribunal's reasons are detailed and carefully expressed. I have read them several times and I do not think there is sufficient prospect at their being disturbed on review to justify granting an extension of time. The grounds contained in the draft application for review are not particularised, and although apparently drafted by a lawyer, bear no relationship to the facts of the case or to the decision of the Tribunal. 11 The applicant has also filed a notice of appeal from the Tribunal's decision. Provision is made by section 44 of the Administrative Appeals Tribunal Act 1975 for an appeal to this court on a question of law from a decision of the Tribunal. However, section 485 of the Migration Act provides that section 44 does not apply to a privative clause decision. The Tribunal's decision is a privative clause decision within section 474 of the Migration Act, there being no jurisdictional error identified, and accordingly the appeal is incompetent. 12 The application for an extension of time is dismissed and the notice of appeal is struck out. 13 The applicant must pay the respondent's costs of the application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.