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Administrative Appeals Tribunal of Australia |
Last Updated: 4 December 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
"SRBBBB" |
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And |
Minister for Immigration and Multicultural and Indigenous Affairs |
Tribunal |
Mr RP Handley, Deputy President |
Decision
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Deputy President
CATCHWORDS
IMMIGRATION - Convention Relating to the Status of Refugees of 1951 - Australia's obligations under the Convention - whether the Applicant is a person to whom Australia owes obligations under the Convention - whether the Applicant committed a serious non-political crime outside his country of refuge - people smuggling - examination of the events surrounding the conviction of the Applicant for "people smuggling" - necessity to draw a distinction between the offence in law and the Applicant's conduct - held that the Applicant's conduct was not the sort of "serious non-political crime" which should exclude the Applicant from protection under the Refugees Convention - decision of the Respondent set aside with a direction that the Applicant is not excluded from the provisions of the Convention Relating to the Status of Refugees 1951.
Migration Regulations
Convention Relating to the Status of Refugees 1951 Article 1F
Migration Act 1958 ss 29, 65, 232A, 496
Migration Legislation Amendment Act (No 1) 1999
Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 71 ALD 41
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
S v Refugee Status Appeals Authority [1998] 2 NZLR 291
24 October 2003 |
Mr RP Handley, Deputy President |
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Summary
1. The Applicant, "SRBBBB", worked and trained as a mechanic in Sri Lanka. He was one of 71 "boat people" who arrived on the Cocos Islands by boat from Sri Lanka on 15 September 2001. During the course of the voyage, he assisted the crew by fixing one of the engines when it broke down.
2. On arrival on the Cocos Islands, the Applicant was detained as an illegal immigrant and subsequently charged with facilitating the "bringing to Australia of a group of five or more people" contrary to the Migration Act 1958 ("the Act"). He was convicted in the Perth District Court on 19 July 2002 and subsequently sentenced to three and a half years imprisonment with a non-parole period of 14 months commencing on 15 September 2001.
3. On 14 November 2002, the Applicant was released from prison and taken into immigration detention. On 19 December 2002, he applied for a protection visa. This was refused on 17 March 2003 on the ground that he had committed a serious non-political crime - the offence under the Act - outside his country of refuge, and was thereby excluded from the protection afforded to refugees by the Refugees Convention.
4. The Applicant contends that the offence of which he was convicted was "political" because of his need to escape political persecution in Sri Lanka. Alternatively, he contends that the crime he committed was not a "serious" non-political crime.
5. The Respondent, the Minister for Immigration, Multicultural and Indigenous Affairs, contends, first, that the Applicant's motive for offending was not political. The fact that the Applicant committed an offence to facilitate his (and others) coming to Australia to escape the persecution he alleges, does not characterise the offence as political. The Applicant's motives were largely if not completely personal: he wanted to improve his personal circumstances by living in Australia. Second, the Respondent contends that the crime of which the Applicant was convicted was "serious".
Background
6. The Applicant was born in Sri Lanka on 8 March 1975 and is aged 28. He states that in 1993 he became a member of the United National Party ("UNP") and was the assistant to the UNP organiser in his village, canvassing votes and putting up posters for the UNP. In 1994, he was assaulted by members of the Sri Lankan Freedom Party and hospitalised as a result. In 1999, he was assaulted again when putting up UNP posters during the Presidential elections (T p61). That year, he was dismissed from his job as a mechanic because of political pressure on his employer.
7. In 2000, the Applicant claims to have been threatened that he would be killed if he did not cease his political activities. Shortly after this, the UNP organiser for whom he worked was murdered. In January 2001, the Applicant left Sri Lanka by boat and went to Yemen, where he stayed for five months working as a mechanic (T p62). He returned to Sri Lanka in early August 2001, but later that month left by boat bound for Australia, arriving at the Cocos Islands on 15 September 2001 (T p38).
8. Upon arrival, the Applicant was detained at the Cocos Islands Detention Centre. After questioning, he was charged under s 232A of the Act with "the bringing to Australia of a group of five or more people to whom the relevant provisions of the Migration Act applied, namely a group of 71 people, and you did so reckless as to whether those people had a lawful right to come to Australia" (T p25). On 19 July 2002, after a trial before the District Court of Western Australia, the Applicant was found guilty by the jury of the charge of having "facilitated the bringing to Australia of a group of 5 or more people ... and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the said Act" (R1). Wisbey DCJ said the charge was "loosely described as people smuggling" (T p25). On 30 July 2002, the Applicant was sentence by Judge Wisbey to a term of three and a half years imprisonment, with a non-parole period of 14 months, the sentence deemed to have commenced on 15 September 2001 (T p30). The Applicant was released from prison on 14 November 2002, but then transferred to Perth Immigration Detention Centre. He was later transferred to Baxter Immigration and Processing Centre, Port Augusta, South Australia, where he was at the time of the hearing.
9. On 19 December 2002, the Applicant lodged an application for a protection (Class XA) visa seeking protection from having to return to Sri Lanka (T p36). In the relevant part of the application, the Applicant stated that he had been a member of the UNP in Sri Lanka (T p61). In answer to Question 41 "What do you fear may happen to you if you go back to that country?", the Applicant said he feared that he would be killed by United National Front supporters (T p63).
10. On 7 January 2003, an onshore protection officer of the Respondent advised the Applicant that he was considering refusing his application for a protection visa as a result of his conviction for people smuggling and inviting him to respond (T p68). On 10 and 16 January 2003, Marg Le Suer, a migration agent of the Catholic Migrant Centre, made submissions on his behalf. These submissions stated that the Applicant only assisted the "people smugglers" by working on the boat's engine because he feared that everyone on the boat would die if he did not get the engine working (T p76), and that because of his involvement with the UNP and the threats made on his life, he could not return to Sri Lanka (T p80).
11. On 17 March 2003, a delegate of the Respondent decided to refuse the grant of a protection visa to the Applicant on the ground that the Applicant had committed a serious non-political crime outside his country of refuge. Accordingly, the delegate found the Applicant is not a person to whom Australia owes protection obligations pursuant to the exclusion afforded by Article 1F(b) of the Convention relating to the Status of Refugees ("the Refugees Convention") (T2 p5). On 8 April 2003, the Applicant lodged an application for a review of this decision by the Tribunal (T p3).
12. At the hearing, the Applicant was represented by Kerry Murphy, Solicitor, of Craddock Murray Neumann, Solicitors, and the Respondent was represented by Robert Bromwich, Counsel, instructed by Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties at the hearing. The Applicant gave oral evidence at the hearing by videoconference from Baxter Detention Centre.
The Relevant Law
13. Section 36(1) of the Act provides for a class of visas to be known as "protection visas". Section 36(2) states:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
14. Section 65 requires the Minister to grant a visa where satisfied that there is a valid application which meets all statutory requirements and regulatory criteria. Schedule 2 of the Migration Regulations 1994 specifies the criteria which are to be satisfied before visas of various classes will be granted.. The Applicant applied for a protection (Class XA) visa. Class XA includes two subclasses: 785 (temporary protection) and 866 (protection) which is a permanent visa. The Migration Regulations provide in Schedule 2, clause 866.221, that among the criteria to be satisfied at the time of the decision are:
866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
In clause 866.111, "Refugees Convention" is stated to mean "the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees".
15. Article 1A (2) of the Refugees Convention defines a "refugee" as a person who:
Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...
16. However, Article 1 of the Convention also excludes certain persons from the protection obligations which State Parties agree to afford refugees. In particular, Article 1F states:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
...
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
The Applicant's Evidence
17. The Applicant provided a statutory declaration dated 3 April 2003 (A1). He is 28 years old and was born in the town of Negambo, a town on the coast of the western province of Sri Lanka. He has one younger brother and two sisters who remain in Sri Lanka. His mother is still alive but his father, who was a fisherman, is missing. The Applicant said he was at school for about 11 years until ordinary level exams. After school, he studied to be a mechanic for three years and, having qualified, worked as a head mechanic for three years. Thereafter, he had his own business drying fish, before fleeing to Yemen in March 2001 after threats to his life made by political opponents.
18. The Applicant said he is of Sinhalese background and a Catholic. Most people in Sri Lanka are Buddhists but there is a Sinhalese Catholic minority. He joined the United National Party (UNP) in 1993 and began working as an election organiser and doing social work in his local area. At that time, the People's Alliance Party was in power and the UNP were in opposition. He acknowledged that the UNP subsequently came into power in about 2001, after he arrived in Australia, although the President is from the People's Alliance Party. The People's Alliance Party is now in opposition.
19. In his statutory declaration (A1), the Applicant describes a number of incidents in which a worker for the People's Alliance Party, from whom he also received death threats, assaulted him. The Applicant suffered injuries as result of these assaults requiring hospitalisation. He also lost his job as a mechanic as a result of pressure exerted by that person on his employer. The Applicant said members of the People's Alliance Party also killed another UNP organiser with whom the Applicant worked, and People's Alliance Party workers came searching for the Applicant on a number of occasions with, the Applicant assumed, the intention of physically assaulting him. Threats were also made to the Applicant.
20. After fleeing to Yemen and spending approximately five months there, the Applicant returned to Sri Lanka having first contacted a friend, Tyrone, requesting that he try and find a means for the Applicant to again flee Sri Lanka. On arriving back in Sri Lanka, Tyrone told him of a boat which was preparing to leave for Australia and agreed that payment for the Applicant's passage on the boat could be made later. The boat had already departed Negambo and was heading for Dondra where more people would be taken aboard prior to the boat setting sail for Australia. The Applicant therefore rushed to Dondra, arriving the next day. When he located the boat and told them he had been sent by Tyrone with a view to his travelling to Australia, he was allowed on board. The boat remained in Dondra for a further day before departing. The Applicant said he does not know the reason for the delayed departure but thinks it was probably because of problems with the boat. The next day at about 6pm, the boat departed. Then, at about 1am or 2am the following morning, the boat met with two other boats and people from those boats came aboard.
21. The Applicant said the voyage to the Cocos Islands took about 15 days. He was seasick and vomiting and spent much of the time trying to sleep. About six or seven days into the voyage, he was woken from sleep and told "friend you know this job - it seems one engine has stopped. Just see what's wrong".. When he went to look at the engine, another person was already there. It was a small job to rectify the problem. Having done so, he went outside and vomited again. The Applicant said he believed that if he had not helped fix the engine, others on the boat would have been angry and he feared he might be thrown overboard. He also feared for the safety of the boat and his own life. During the rest of the voyage, he was asked to fix the engine on another two or three occasions.
22. The Applicant said there were two engines on the boat. It was only one engine which caused problems, but everyone feared that if the other engine stopped, the boat might capsize because the boat was heavy and the sea was very rough. The Applicant said the only occasions when he had been to sea previously were when he travelled to and from Yemen from Sri Lanka. He had never worked on engines at sea before - only on land.
23. The Applicant was asked about evidence given by Mr RJO Tissera at the District Court trial (R2). The Applicant acknowledged that the engines had been stopped from time to time, sometimes up to three times a day, to enable them to cool down. He was not involved in this. He never changed an oil filter on the engines nor did he do such routine things as checking the oil. These are things that every fisherman is capable of doing. The Applicant was also asked about evidence given by Mr CK Seneviratne at the District Court trial (R2). The Applicant repeated that he had only worked on the engine about four times. It is a blatant lie for Mr Seneviratne to claim that he, the Applicant, filled the fuel tanks when they were empty. Such a job would never be the duty of a mechanic; rather this was something done by an ordinary member of the crew. It was a complete lie to state that he was a member of the crew. He had no connection with any of them.
24. The Applicant said when he gave evidence at the District Court trial, he only gave evidence of things that he then knew. Later, he came to know that certain things that he said were wrong. Previously, he was unaware of who the mechanic for the boat was and who was paid to undertake that job. After the trial, he came to know this.
25. The Applicant said when the boat reached the Cocos Islands, the police asked who the engineer on the boat was. Some of the police saw that he had a key in his hand, which was to the equipment and tools he had used to work on the engine. Also, his hands had grease and oil on them. He believes this is why the police arrested him. There was no one on the boat who knew his personal details and problems and could act as his witness. He said, as a result, he spent 14 months in prison for an offence he did not commit.
26. The Applicant said he did not receive any money for working on the engine. He knew he would be required to pay between 200,000 and 300,000 rupees to Tyrone for his passage once he got to Australia. Later, after they reached the Cocos Islands and there was talk about what the passengers had been charged for their passage, he learned that some on the boat had paid 400,000 or 500,000 rupees and some had paid no money at all. This was something over which he had no influence. At that time, the exchange rate was 50 rupees to Aus$1 (ie 200,000 rupees was $4,000). The Applicant said while he was in prison, Tyrone put pressure on his family to pay for his passage. His mother therefore borrowed 50,000 rupees at 5% interest and paid the 50,000 rupees to Tyrone.
27. The Applicant said he came to Australia in order to have a freer life and also to protect his life - he feared for his life because of the threats that had been made to him. If he had not had political problems in Sri Lanka, he would not have come to Australia. In Sri Lanka, he had been told that on arriving in Australia, he would be required to give a statement to immigration officers and, provided they were satisfied with this, he would be granted a visa enabling him to remain in Australia. When he arrived on the Cocos Islands, the police officers did not ask much about his political problems in Sri Lanka. However, when he gave a statement to immigration officers, he gave a full description of his problems there. He also filled out an application form.
Discussion of the Relevant Law and Facts
28. The Respondent contends that the Applicant is excluded from the protection obligations afforded to refugees under the Refugees Convention by reason of Article 1F(b) of the Convention: that he "committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee".. The Applicant concedes that he was convicted of an offence and that the crime was committed outside his country of refuge. At issue between the parties is whether the Applicant committed a "serious non-political crime" and the interpretation of those words. The Applicant contends that his crime was "political" and even if the Tribunal was to find that it was "non-political" then, in the alternative, it was not a "serious" crime. The Respondent, of course, contends that the Applicant committed a serious non-political crime when he "facilitated" the bringing to Australia of a group of 71 non-citizens who had no lawful right of entry.
29. The Applicant was charged with and convicted of an offence under s 232A of the Act which stated:
232A. A person who:
(a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42 (1) applies; and
(b) does so reckless as to whether people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.
30. This offence was inserted into the Act by the Migration Legislation Amendment Act (No 1) 1999. The Applicant referred the Tribunal to the Second Reading Speech for the Bill made in the House of Representatives by Peter Slipper MP on 30 June 1999 (A4). Mr Slipper said:
These new provisions are primarily aimed at those who profit from people trafficking - those who, for a fee, organise individuals or groups to enter Australia illegally.
31. A further amendment to the Act was made with effect from 16 January 2003, deleting s 232A from the Act and replacing it with a new s 73 in the Criminal Code Act 1995 covering similar criminal conduct. In the new section there is, however, a lesser offence (s 73.1) punishable by up to 10 years imprisonment or 1,000 penalty units or both, where the conduct involves the unlawful entry of a person, as opposed to a group of at least five persons, into Australia. There are two aggravated offences: that involving exploitation, where the victim is subjected to cruel, inhuman or degrading treatment giving rise to a risk of danger or serious harm to which the accused is reckless (s 73.2); and that involving a group of at least five persons (s 73.3). The maximum penalty for the aggravated offences is 20 years imprisonment or 2,000 penalty units or both.
32. The Applicant was convicted under s 232A after a three week jury trial in the Western Australian District Court and sentenced by Wisbey DCJ to three and a half years imprisonment with a non-parole period of 14 months. The Applicant was tried with five others. He and three others were convicted. Two of the four defendants convicted were sentenced to five years with a non-parole period of two years because they were, respectively, the "skipper" of the boat and the organiser of the voyage. The fourth convicted defendant was, like the Applicant, sentenced to three and a half years imprisonment with a non-parole period of 14 months. The fourth defendant was second in charge of the vessel and responsible for navigating the boat when the skipper was resting.
33. In his sentencing remarks, Judge Wisbey said of the Applicant:
... you embarked upon the journey not for selfish financial reward but in order to establish a better life for yourself in this country and that is a matter necessary to be taken into account in determining sentence. It's clear from the evidence that your contribution to facilitating the voyage was by exercising your mechanical skills in keeping the motors or, as it subsequently turned out, the motor operating. That clearly was of considerable importance to the success of the voyage.
... There is no evidence that you received any payment for your part in the venture and indeed such evidence as there is suggests the contrary position.
34. The material facts are essentially not in dispute. The Applicant claims that he was assaulted and dismissed from his job as a mechanic because of his political activities on behalf of the UNP in his hometown in Sri Lanka. Members of the People's Alliance Party, which at that time was in government, carried out the assaults and persecution. The Applicant fled Sri Lanka because of further threats to his life - travelling first to Yemen and then, shortly after returning to Sri Lanka, to Australia.
35. The Applicant secured a place on a boat through a friend, Tyrone, shortly before it was due to leave Sri Lanka, on the basis that he would pay for his passage once he arrived in Austalia. The Applicant gave evidence that because he has been in detention since arriving in Australia, he has been unable to make the required payment. His friend put pressure on the Applicant's mother to pay and she has now borrowed 50,000 rupees from a bank in order to pay part of the money owing.
36. The Applicant's evidence is that about six or seven days into the voyage to Australia, when he was lying on the deck of the boat feeling nauseous, he was approached by two men who asked whether he could try and fix one of the boat's two engines. It turned out to be a fairly small problem and he was able to fix it. The problem recurred and he fixed it on another three occasions before the boat reached the Cocos Islands. The Applicant said this is the only work he did on the engine and, contrary to the evidence of the witnesses at the District Court trial, he was not otherwise involved in the routine maintenance of the engines or refuelling. The Applicant said he received no financial benefit for fixing the engine, something which was accepted by Judge Wisbey in his remarks quoted above.
37. Mr Bromwich noted that the Applicant had tried to "gild the lily" when he said that he feared he might be thrown overboard if he did not assist with the engines. This is inconsistent with paragraph 31 of the Applicant's statutory declaration (A1) where he said "I was not forced or compelled".. Rather he said:
I felt like it would not be fair if I didn't help as I knew how to fix it. In addition to this my life was in danger because if I didn't fix the boat it would sink. I fixed the boat out of humanitarian concern for the lives of others and my own.
38. The Tribunal was referred to the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. It is clear from this decision that the Tribunal may not "impugn the conviction" (paragraph 25) made by a court:
At least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example is a finding as to the circumstances of the commission of the offence (paragraph 40).
39. However, as Branson J recognised in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at paragraph 45, these limitations:
do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of the conduct which led to the convictions and the significance of such conduct so far as the risk of recidivism is concerned.
While this decision concerned a deportation order made by the Minister rather than a decision in respect of an Article 1F exclusion, nevertheless, in the Tribunal's view, the facts are otherwise similar and the principles which should be applied are the same.
40. The first of the Applicant's contentions is that the crime committed was "political". The principal authority on the meaning of this word in the context of Article 1F(b) of the Refugees Convention is the High Court decision in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533. At paragraph 21, Gleeson CJ said:
... there must be a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act. And the achievement of that objective must be the substantial purpose of the act.
Gaudron, McHugh, Kirby and Callinan JJ made similar statements.
41. Mr Murphy submitted that it is therefore important for the Tribunal to consider the Applicant's motivation for being on the boat. He claims to have come to Australia because of politically related fears and because he would be safe and have a better life in Australia. He was frightened by the threats to his life (T pp33, 61) and agreed to pay a large sum of money for the passage to Australia. His motivation was political: if he had not had political problems, he would not have come to Australia. He only repaired the engine on the boat because he was afraid of others on the boat and because if he did not do so the boat might sink and he might die. Mr Bromwich, by contrast, contended that the Applicant's reasons for leaving Sri Lanka were different from his reasons for coming to Australia. Even if his reasons for leaving Sri Lanka were political, his choice of Australia as his destination had no political element to it.
42. The Tribunal accepts that that the Applicant's motivation for being on the boat was, in part, to escape the persecution and threats he had experienced in Sri Lanka. However, whatever the Applicant's motivation for fleeing Sri Lanka, there was no political objective to the crime itself. As Gaudron J said in Singh (supra) at paragraph 45:
... I would consider a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed.
She continued at paragraph 46:
A crime is unlikely to have a political purpose if it has no relevant connection with the political aims of those involved in its commission.
As Kirby J noted at paragraph 122:
The motives for the crime are not conclusive as to its character ... the perpetrator's intention may well be relevant ... On the other hand, the mere fact that the crime has been committed by a person involved in a political movement, or during disorder associated with that movement, is not enough to warrant its classification as "political" rather than "non-political".
43. In the Tribunal's view, there was no sufficiently close connection between the Applicant's criminal act and some objective identifiable as political: the act was not intended to influence the political situation in Sri Lanka or those with whom the Applicant was politically associated. The objective of the act was to facilitate his and the other passengers' arrival in Australia. Thus, the Applicant's criminal act is not "political" in the sense described in Singh (supra).
44. The Applicant's second and alternative contention is that if the crime is characterised as "non-political", then it is not "serious".. Mr Murphy said while the Applicant does not seek to "go behind" the conviction, it should nevertheless be noted that the offence in s 232A is described in very broad terms and would have included acts such as steering the boat. This was recognised by Judge Wisbey who said that "the section covers a wide and varied spectrum of activities" (T p26).
45. The Tribunal notes (in terms of extrinsic material by virtue of s 15AB Acts Interpretation Act 1901) that the Second Reading Speech on the Migration Legislation Amendment Bill 1999, which led to the insertion of s 232A into the Act (A4), refers to those who profit from people trafficking. The Applicant is not in this category. He had agreed to pay the organiser for his passage, and only agreed to assist in repairing the engine when a breakdown occurred.
46. Mr Murphy referred the Tribunal to one of the often cited secondary authorities on this area of law - James C Hathaway, The Law of Refugee Status (Butterworths), 1991) at 91 (A5). Professor Hathaway states:
UNHCR defines seriousness by reference to crimes which involve significant violence against persons, such as homicide, rape, child molesting, wounding, arson, drugs traffic and armed robbery. These are crimes which ordinary warrant severe punishment, thus making clear the Convention's commitment to the withholding of protection only from those who have committed truly abhorrent wrongs.
47. The UN High Commissioner for Refugees ("UNHCR"), Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1988) (A6) emphasises that the aim of the Article 1F(b) exclusion clause "is to protect the community of the receiving country from the danger of admitting a refugee who has committed a serious common crime" (paragraph 151). In evaluating the nature of the crime, "all the relevant factors - including any mitigating circumstances - must be taken into account" (paragraph 157).
48. The UNHCR Guidelines on the application of exclusion clauses (A7) says this of the UNHCR's Handbook referred to above:
51. The Handbook specifies that a "serious" crime refers to a capital crime or a very grave punishable act. Examples would include homicide, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, serious injury to persons, evidence of habitual criminal conduct and other similar factors. It is evident that that drafters of the 1951 Convention did not intend to exclude individuals simply for committing non-capital crimes or non-grave punishable acts. The seriousness of the crime can be deduced from several factors, including the nature of the act, the extent of its effects, and the motive of the perpetrator.. The overriding consideration should be the aim of withholding protection only from persons who clearly do not deserve any protection on account of their criminal acts. While there are risks in seeking to define crimes which would not be thus covered, crimes such as petty theft, or the possession and use of soft drugs should not be grounds for exclusion under Article 1F(b), because they do not reach a high enough threshold to be regarded as serious.
49. Mr Murphy also referred the Tribunal to the decision of the Full Federal Court in Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 71 ALD 41. In that case, Merkel J, with whom Madgwick and Conti JJ agreed, cited with approval, at paragraph 38, a decision of the New Zealand Court of Appeal in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 297-300:
Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences.
50. At paragraph 39, Merkel J went on to cite with approval the decision of French J in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at paragraph 24:
The adjective "serious" in Article 1F(b) involves an evaluative judgement about the nature of the allegedly disqualifying crime.
Finally, at paragraph 41, Merkel J said:
In determining whether the disqualifying crime is "serious" it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes.
51. In Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173, a decision of the Full Federal Court, Branson J, with whom Sackville J agreed, said at page 185 that the question of whether particular conduct is a "serious non-political crime":
... may be answered by reference to notions of serious criminality accepted within the receiving State.
52. Mr Murphy said, while not disputing the conviction, the Applicant contends that regard should be had to the specific conduct involved and to the Applicant's motives. Judge Wisbey found that the Applicant's motive was not financial reward, but his wish to establish a better life in Australia (T p29). Mr Murphy noted that the Applicant was a paying passenger and that his mother subsequently had to take out a loan under pressure to make a payment to Tyrone who had arranged for the Applicant's place on the boat.
53. Mr Murphy referred the Tribunal to the Second Reading Speech made in relation to the Amendment Bill by which s 232A was inserted into the Act, quoted above. Mr Slipper, who made the Second Reading Speech in the House of Representatives, emphasised that the new provisions were "primarily aimed at those who profit from people trafficking - those who, for a fee, organise individuals or groups to enter Australia illegally" (A4). Mr Murphy also noted that Parliament has recently changed the offence, which has been moved from the Act to the Criminal Code and has been replaced by two offences in s 73: the standard offence under s 73.1 which carries a maximum penalty of 10 years imprisonment or 1000 penalty points, and an aggravated offence (including exploitation) under s 73.2 for which the maximum penalty is 20 years imprisonment or 2000 penalty points. He said the offence of which the Applicant was convicted would now fall under the lesser of these two offences set out in s 73.1 (although the Tribunal doubts this since a group of at least five persons was involved - see s 73.3, above).
54. Mr Murphy submitted that the Applicant's contribution to people smuggling was very small: he is not in the same category as those referred to in the Second Reading Speech on 30 June 1999; he was not an organiser and he did not profit financially from his actions. The Applicant's offence was at the lower end of the spectrum and should not be regarded as serious.
55. Mr Bromwich noted that the offence under s 232A was punishable by a very serious maximum penalty when compared with other crimes. Although the section was primarily directed at those making money from people smuggling, it also catered for lesser associated conduct. The fact that the Applicant was given a three and a half year sentence with a non-parole period of 14 months is an indication of the seriousness with which the Judge viewed the offence, in respect of which it was open to him to impose a non-custodial sentence if he felt it appropriate. Under section 17A of the Crimes Act 1914, the Court must be satisfied that no other non-custodial sentence is appropriate when imposing a custodial sentence. Mr Bromwich referred the Tribunal to Judge Wisbey's sentencing remarks, suggesting that the Judge accepted that there was some continuity in the Applicant's work in keeping the engine of the boat operating. Mr Bromwich said the very heavy maximum sentence applicable in the case of this offence is a reflection of the seriousness with which the Government regards unlawful arrivals and the risks to the lives of those involved.
56. Turning then to whether, in the Tribunal's judgement, the Applicant's crime was "serious", it is clear that the maximum penalty for the offence of which the Applicant was convicted under s 232A is a heavy one. Undoubtedly, this reflects the seriousness of the offence of "people smuggling" in the eyes of the Government and the Parliament. However, in the Tribunal's view, a distinction should be drawn between the offence in law and the particular criminal conduct of the Applicant that led to his conviction for that offence: it is the latter that is the focus of the Tribunal's evaluative judgement (NADB (supra) paragraph 39).
57. It is clear from Judge Wisbey's sentencing remarks that the Applicant's criminal conduct was his contribution to facilitating the voyage by exercising his mechanical skills in keeping the motor operating (T p29). In determining the appropriate sentence for the Applicant, the Judge took into account that the Applicant "embarked upon the journey not for selfish financial reward but in order to establish a better life" in Australia. The Judge determined that the appropriate sentence was of three and a half years imprisonment with a non-parole period of 14 months, towards the lower end of the spectrum for this offence.
58. Whilst acknowledging the seriousness with which the Government views the offence of people smuggling, the Tribunal must also consider, as Merkel J recognised in NADB (supra) at paragraph 41, whether the Applicant's particular criminal conduct is "of such a nature as to result in Australia not having protection obligations" to the Applicant. Mr Murphy referred the Tribunal to the Guidelines on the application of exclusion clauses published by the UNHCR (A7), quoted above. These suggest that the application of the Article 1F(b) exclusion clause clearly contemplates that certain crimes - the examples given are petty theft and the possession and use of soft drugs - do not reach a sufficiently high threshold to be regarded as "serious".
59. As stated above, a distinction must be drawn between the offence in law, which is of a serious character, and the Applicant's conduct which, in the Tribunal's view, is not so serious. His criminal conduct comprised, on a number of occasions, his repairing an engine on the boat. He did not so do for profit but merely to facilitate the boat continuing on its voyage and reaching its destination. In the Tribunal's view, this is not the sort of "serious non-political crime" which should give rise to Australia's protection obligations under the Refugees Convention not applying.
60. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant is not excluded from the provisions of the Convention Relating to the Status of Refugees of 1951 by reason of Article 1F(b) of the Convention.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
Associate
Date of Hearing 9 October 2003
Date of Decision 24 October 2003
Representative for the Applicant Mr K Murphy, Solicitor
Representative for the Respondent Mr R Bromwich, Counsel
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