Case: SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 ; (2005) 147 FCR 1
Outcome: referred to
This decision of the delegate was previously the subject of an unsuccessful application for review to the Tribunal: see SRYYY and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 927. In an appeal to this Court against the Tribunal's decision, Lindgren J found no jurisdictional error and dismissed the application as incompetent: see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1588. An appeal from that judgment was successful and the Full Court remitted the matter to the Tribunal for determination according to law: see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 ; (2005) 147 FCR 1. 3 Under s 36(2)(a) of the Migration Act 1958 (Cth), a criterion for a protection visa is that the Minister is satisfied that the visa applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Under Art 1F of that Convention: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. (emphasis added) 4 One means of ascertaining the meaning of a crime against humanity is to refer to the International Criminal Court Act 2002 (Cth). Section 3(1) of the Act provides that the principal object of the Act is to facilitate compliance with Australia's obligations under the Statute of the International Criminal Court done at Rome on 17 July 1998 (the Rome Statute) which is Schedule 1 to that Act. The Rome Statute is an international instrument of the type referred to in Art 1F(a): see SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 ; (2005) 147 FCR 1 at [66] . Relevantly, the Rome Statute provides: Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) ... ... (f) Torture; ... 2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; ... (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; ... ... Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. ... Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. ... Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 Individual criminal responsibility 1. ... ... 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; ... ... Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. ... Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. 5 The Tribunal had to determine whether the applicant was subject to the exclusionary provisions in Art 1F of the Refugees Convention. That is, it had to determine whether it was satisfied that "there are serious reasons for considering" that the applicant had committed a war crime or a crime against humanity. 6 The Tribunal set out the applicant's evidence at length. It was from a number of sources (including departmental interviews and a transcript of oral evidence given at the previous tribunal hearing) and spanned the years 2000 to 2006. The applicant joined the Sri Lankan Army in May 1997 as an ordinary soldier. At that time there was a civil war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE). After a year or so on the frontline in Trincomalee and then another year at Elephant Pass the applicant requested a transfer because he disliked witnessing innocent civilians and fellow soldiers being killed and injured. He was posted to Jaffna where he was assigned to a unit responsible for questioning suspects. This sometimes involved threatening and harming detainees. 32 The applicant submitted, in relation to ground 2, that because the Rome Statute was not in force at the time the applicant was alleged to have committed the crimes alleged, he ought not to be precluded from reliance on the defence of superior orders. He noted that the Full Court decision in SRYYY questioned whether Art 33 accurately reflected customary international law. The applicant submitted that to the extent that Art 33 excluded the defence of superior orders in relation to crimes against humanity, it ought not to be given retrospective effect.