X & Y v. Refugee Status Appeals Authority

High Court Auckland CIV-2006-404-4213
23 April 2007; 17 December 2007
Courtney J

Introduction

[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.

X's account

[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: