Last Updated: Thursday, 21 August 2014, 09:01 GMT

X & Y v. Refugee Status Appeals Authority

Publisher New Zealand: High Court
Publication Date 17 December 2007
Citation / Document Symbol CIV-2006-404-4213
Cite as X & Y v. Refugee Status Appeals Authority, CIV-2006-404-4213, New Zealand: High Court, 17 December 2007, available at: http://www.refworld.org/docid/48ef79fd2.html [accessed 21 August 2014]
Comments Application for judicial review of a decision of the RSAA: Refugee Appeal Nos. 74796 & 74797, 74796 & 74797 (19 April 2006). The judgment was subsequently appealed before the Court of Appeal: X v Refugee Status Appeals Authority [2009] NZCA 488 (20 October 2009).
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

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:

a) Failing to interpret Article 1F restrictively, so as to place the burden of proof on the Executive and accord him the benefit of the doubt when making its credibility assessment;

b) Making an adverse credibility determination against him when there was no or no adequate evidence to support it;

c) Failing to identify the specific crime against humanity that the Authority considered there were serious reasons for thinking he was complicit in;

d) Finding that there were serious reasons for thinking that he was complicit in a crime against humanity when there was no or no adequate evidence on which it could reach that conclusion;

e) Relying on the judgment of the Indian Supreme Court convicting him of offences under the Indian Penal Code 1860 to conclude that there were serious reasons for thinking that he had been guilty of a serious non-political crime.

[5] Y asserts that the Authority erred in:

a) Relying on the fact that Y had not suffered persecution at the hands of the Sri Lankan security forces prior to leaving Sri Lanka in concluding that there was no real risk to her of future persecution;

b) Failing to consider whether the families of known LTTE members or sympathisers were at risk of persecution by the Sri Lankan security forces, notwithstanding the current cease-fire.

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):

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the court will...under the guise of preventing the abuse of power, be itself guilty of usurping power.

[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):

There is no longer any doubt that the Refugee Division, which is a specialised tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.

[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:

...whether a plaintiff succeeds on the merits will depend on whether the decision is so unreasonable that no reasonable RSAA, properly conducting itself according to law could have reached the decision under challenge".

[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:

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;

[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:

A decision to exclude an asylum seeker under Article 1F is a determination that a person is not deserving of Convention protection, that the principle of non-refoulement does not apply, and that he or she may be returned to a country where he or she may face persecution. It is an exception to the
"[fundamental] prohibition, and international conventions and customary international law, of the return of the refugee to situations endangering life or freedom". The consequences of an incorrect decision are clearly severe. Accordingly, the Article 1F exclusion clauses must be applied in a restrictive manner. Decision makers must also adhere to rigorous standards of procedural fairness when applying the exclusion clauses, to ensure that persons deserving protection are not incorrectly excluded.

[13] Mr Bliss' view is, presumably, based on the UNCHR Guidelines which promotes a restrictive interpretation:

2. The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts...At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner...(emphasis added)

34. The burden of proof with regard to exclusion rests with the State (or UNHCR) and, as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt.

[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:

[64] We readily accept that the exclusion clauses are to be interpreted restrictively. There is, for example, no basis for saying that Art 1F(c) should be read as applying to acts contrary to the purposes of any international organisation other than the UN; or acts contrary only to the legislation of the UN; or to thoughts as well as acts. The decision of the majority of the Canadian Supreme Court in Pushpanathan v Canada (Minister of Citizenship and Immigration) (Canadian Council for Refugees Intervening) [1999] INLR 36 is, in this sense, an example of the restrictive interpretation of the paragraph.....

[65] We see, however, no basis at all for saying that there should be any restriction on the interpretation of Art 1F(c) in cases where the act in question falls within the words of the Article. It is inherent in Art 1F that there will be those who need protection under the Refugee Convention but do not have that protection because of their past acts. The High Contracting Parties who agreed to the Refugee Convention as a whole did so with the limitation that it would not apply to those within Art 1F. It has never been decided or accepted by those parties that they should be obliged to shelter, as a refugee, any person who falls within Art 1F. To require decision makers to be sure that a person falls within Art 1F on applying it to them is one thing: that is restrictive interpretation. But to ask decision makers not to apply Art 1F to such a person is quite another thing. It is illegitimate.

[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:

In the case of exclusion, the decision maker bears the burden of showing that there are "serious reasons for considering" that the applicant should be excluded. This requires clear and convincing evidence of the commission of international crimes or serious non-political crimes...the asylum seeker does not bear the responsibility of showing that he or she is not excludable. The case law of a number of States has recognised that the decision-maker bears the burden of proof in an exclusion proceeding...

[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:

It appears to us that the phrase "there are serious reasons for considering that" in Art 1F relates to the state of the evidence on the issue in question. The phraseology makes it difficult to speak of a burden of proof. Clearly, however, the exclusion clause cannot be brought into play unless there is some evidence of the alleged crime and of K's nature. If there was [no] such evidence, it must follow that the claimant is not excluded by Art 1F, and the result would be that in an appeal contested on this point, the claimant would win and the Secretary of State would lose. We have tentatively reached the conclusion that it follows that the Secretary of State bears at least an evidential burden on this issue.

[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:

The benefit of the doubt should also be exercised in favour of the asylum seeker in the application of Article 1F. There are compelling arguments for this approach. The decision-maker bears the burden of proof in an exclusion proceeding, the "serious reasons for considering" standard is a high one and the consequences of an incorrect decision are potentially severe. Resolving any doubt which exists in favour of the asylum seeker is in keeping with the purpose of the Convention.

[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:

The gravity of the offence is relevant to the question whether it is "serious" for the purposes of Article 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned.

[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:

Before we part from the Guidelines, we would point out one passage in them which appears to be flatly contradictory to both the Convention and to other guidance issued by the UNHCR. That is the phrase in para 34..."as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt". We are surprised to find this phrase in a discussion of Art 1F, where the standard of proof is specifically expressed as where there are "serious grounds for considering" that an individual has been guilty of the acts in question. The wording of the Convention quite clearly excludes the principle of giving the claimant the benefit of the doubt. We would further draw attention to the fact that, in para 204 of its Handbook, the UNHCR's view is that the benefit of the doubt should not be given to all claimants, but only those in respect of whom the person making the decision is satisfied of their general credibility. This restriction has an obvious application to many of the types of circumstances that would arise under Art 1F, even without the specific wording of that paragraph, for the identification and conviction of criminals of any sort will very often depend (as indeed it did in the present case) on the formal rejection of a story tendered by the defendant.

[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:

An important and distinguishing characteristic of an exclusion proceeding is its quasi criminal nature. Although consideration of the exclusion clauses will generally occur as part of an administrative proceeding, a decision must be made as to the asylum seeker's involvement in criminal conduct. If the decision is made that the asylum seeker was involved in certain criminal conduct, a substantial "penalty" will usually be imposed – exclusion from the scheme of Convention protection and returned to possible persecution. Therefore the proceeding, although formally administrative in nature, is in some respects "quasi criminal". Accordingly, certain of the procedural safeguards which apply in domestic criminal proceedings and in the evolving field of international criminal law will be applicable in exclusion proceedings.

[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:

[11] During my last trip from Singapore which was made on vessel Yahata to Sri Lanka via Thailand 15 December 1992. This vessel belonged to the LTTE and was carrying arms and explosive for the LTTE. Mr Krishna Kumar @ Kittu (second in command after Mr Villaupllai Prabakaran) jointed [sic] along with 9 others, halfway at Straits of Mallaca. He too was returning back to Sri Lanka.

[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]:

Notwithstanding his denials to the contrary, the Authority is of the view that his engagement in the secretive smuggling operations of the LTTE was a fully known one and evidence of his dedication to the aims, objectives and methods employed by the LTTE. He knew that the items he smuggled into Sri Lanka would as likely be used in "conventional" warfare against the Sri Lankan army as in perpetrating gross human rights abuses against innocent civilians.

[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:

...It defies common-sense that the LTTE would hire as Chief Engineer a person in respect of whom no loyalty test had been conducted and in respect of whom no enquiry at all had been made as to his sympathies. [62]

[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:

a) The importance of the Chief Engineer's position;

b) The relatively small crew of only nine, four of whom worked in the engine room;

c) The significance of the cargo, being a huge quantity of explosives and the then second-in-command of the LTTE;

d) The assertion that two other crew members (including the second officer) were also unhappy at being on an LTTE vessel, which would have meant that of the three officers on board only one (the master) would have been aware that it was an LTTE ship;

e) The fact that more humble crew members such as the oiler Mohan were carefully chosen for proven loyalty but two out of the three officers were not.

[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):

By 1990, the LTTE fleet's finest vessel was Yahata. When Yahata was nearing the Indian waters, the first and the last letter of Yahata was painted
off, primarily to deceive any agency monitoring the movement of vessels. With the "Y" and "a" painted off, the vessel was known as Ahat...

The LTTE uses both civilian and LTTE crew. While the civilian crew receive payment, the LTTE crew renders its services free of charge like any other LTTE cadre.

It is also well known that the LTTE employs foreigners to work on board LTTE ships. They include some western as well as African nationals.
However, the vessels that engage in transporting armaments restrict their crew and passengers to Sri Lankan Tamil cadres of the LTTE.

(emphasis added)

[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:

a) The commission of one of the enumerated proscribed acts which contravenes international law;
b) The act occurs as part of a widespread or systematic attack;
c) The attack is directed at any civilian population.

[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:

The importance of providing findings of fact as to specific crimes against humanity which the refugee claimant is alleged to have committed cannot be underestimated in a case such as this where the refugee division determined that the claimant has a well-founded fear of persecution at the hands of the Sir Lankan government.

[61] The Court ultimately concluded that the appellant had committed crimes against humanity, having held positions of importance within the LTTE's intelligence services:

...from which it [could] be inferred that he tolerated the killings as a necessary, though perhaps unpleasant, aspect of reaching the LTTE's goal of Tamil liberation.

[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:

It should be noted, however, that the board has made little effort to link the applicant to specific criminal activities. Rather, it chose to refer only in general terms to shootings and bombings carried out by the military faction. Given the serious consequence to Mr Poblete of the application of the exclusion clause, the board should have endeavoured to carefully detail the criminal acts which it considers the claimant to have "committed".

[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:

[31] Our Court never required in that case [Sivakumar] that a claimant be linked to specific crimes as the actual perpetrator or that the crimes against humanity committed by an organisation be necessarily and directly attributable to specific acts or omissions of a claimant.

[32] Indeed, short of that kind of direct involvement and of evidence supporting it, our Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez (see p438 of the Sivakumar decision) as well as complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors (see pp439-440 of the Sivakumar decision).

[33] Moreover, despite the board's failure to make findings of fact as to specific crimes, our Court found therein that there was ample evidence that civilians were killed as part of a systematic attack on a particular group, that these killings constituted crimes against humanity, that the refugee claimant had knowledge of these crimes committed by the LTTE and that he had shared a common purpose with it evidenced by the "several positions of importance [that he held] within the LTTE....and from which it can be inferred that he tolerated the killings as a necessary, though perhaps, unpleasant, aspect of reaching the LTTE's goal of Tamil liberation" (see p450 of the decision).

[34] In that case, our Court thus found that the refugee claimant had committed crimes against humanity by virtue of his accomplice liability involving a shared purpose and knowledge. In reaching this find, it satisfied the "specific crimes" standard it had alluded to not by requiring evidence pointing to specific victims that could be connected to the claimant, but by filling in the three lacunae found in the Board's deficient reasons i.e., a finding that the LTTE was connected to "incidents in which civilians were killed" (see p450 of the decision), a finding that the claimant knew of these acts and shared the purposes of the LTTE and a finding that the acts of the LTTE amounted to crimes against humanity.

[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:

Given the seriousness of the possible consequences of the denial of the appellant's claim on the basis of s F(a) of Article 1 of the Convention to the appellant and a relatively low standard of proof required of the minister, it is crucial that the refugee division set out in its reasons those crimes against humanity for which there are serious reasons to consider that a claimant has committed them. In failing to make the required findings of fact, I believe that the refugee division can be said to have made an error for law.

In its reasons, the panel speaks in general terms of a broad range of violent and criminal acts. Its conclusion that the claimant had knowledge of the violence was equally general and not directed to any of the specific allegations referred to in the documentary evidence...

It is not for this Court to determine the applicant's complicity in the crimes against humanity because of his leadership position. However, the panel's errors of law concerning the vagueness of the credibility finding, the absence of clear and unmistakable reasons concerning credibility, the omission in stating the specific crimes for which the applicant was found to be complicit and the lack of questioning the claimant concerning those specific crimes required that the finding of exclusion under Article 1F(a) be set aside.

[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:

[45] In Vasiljevic the Appeals Chamber set out the actus reus and the mens rea of aiding and abetting. It stated:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property etc.) and this support has a substantial effect upon the perpetration of the crime...

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal.

The Appeals Chamber considers that there are no reasons to depart from this definition.

[46] In this case, the Trial Chamber, following the standard set ot in Furundzija held that the actus reus of aiding and abetting " consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime," it further stated the the mens rea required is "the knowledge that these acts assist the commission of the offence. The Appeals Chamber considers that the Trial Chamber was correct in so holding...

[48] The Trial Chamber in this case went on to state:

Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator s not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom.

The Appeals Chamber reiterates that one of the requirement of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime or proof that such conduct served as a condition precedent to the commission of the crime is not required...........

The Trial Chamber agreed with the statement in the Furundzija Trial judgment that "it is not necessary that the aider and abettor.....know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor". The Appeals Chamber concurs with this conclusion.

[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:

a) Systematically eliminated all those who have opposed it, including rival rebel groups, traditional Tamil leaders, senior Sinhalese political leaders and Rajiv Ghandhi himself;

b) Systematically and in a widespread fashion murdered Sinhalese and Muslim civilians;

c) Engaged in forcible "ethnic cleansing" of both Muslims and Sinhalese from the north and east of Sri Lanka;

d) Consistently and systematically attacked the civilian population of Sri Lanka by carrying out devastating bomb attacks, particularly in Colombo. ([123] and [124])

[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:

We are satisfied on this evidence that crimes against humanity as defined I article 6 of the London Charter and Article 5 of the Statute of the ICTY have been committed by the LTTE in furtherance of its aim of exercising complete control over the northern and eastern parts of Sri Lanka to thereby establish an independent Tamil state (Eelam).

[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):

The FCA has found, and we agree, that the "reasonable grounds to believe" standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities...In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.

[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:

From the premise that a mens rea interpretation is required, I find that the standard of "some personal activity involving persecution" understood as implying a mental element of knowledge is a useful specification of mens rea in this context. Clearly no-one can "commit" international crimes without personal and knowing participation.

What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organisation which from time to time commits international offences is not normally sufficient for exclusion from refugee status...

Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation...though, again presence coupled with additional facts may well lead to a conclusion of such involvement...

...However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere onlooker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it...

[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:

Another type of complicity, particularly relevant to this case is complicity through association. In other words, individuals may be rendered responsible for the acts of others because of their close association with the principal actors. This is not a case merely of being "known by the company one keeps". Nor is it a case of mere membership of an organisation making one responsible for all the international crimes that organisation commits (see Ramirez at p317). Neither of these by themselves is normally enough, unless the particular goal of the organisation is the commission of international crimes...

In my view the case for an individual's complicity in international crimes committed by his or her organisation is stronger if the individual member in question holds a position of importance within the organisation. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organisation's purpose in committing that crime. Thus, remaining in an organisation in a leadership position with knowledge that the organisation was responsible for crimes against humanity may constitute complicity...

In such circumstances an important factor to consider is the evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organisation...

To sum up, association with a person or organisation responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes, unless it is an organisation that has a "limited, brutal purpose", is not enough...Moreover, the closer one is to a position of leadership or command within an organisation, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.

[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:

...a person who is a member of the persecuting group and has knowledge that activities are being committed by the group and who neither take steps to prevent them from occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.

[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]):

In our view, it goes without saying that "personal and knowing participation" can be direct or indirect and does not require formal membership in the organisation that is ultimately engaged in the condemned activities. It is not working within an organisation that makes someone an accomplice to the organisation's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or outside the organisation...Those who become involved in an operation that is not theirs but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.

[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:

"in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct."

However, as previously stated in the Vasiljevic Appeal Judgment, knowledge on the part of the aider and abettor that his acts in the commission of the principal perpetrator's crime suffices for the mens rea requirement of this mode of participation...

[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:

[173] ...It is now well settled that in addition to the mens rea for the underlying act, the accused must have knowledge of the attack and must know that his or her acts comprise part of it or takes the risk that his or her acts will comprise part of it...

[174] It is important to stress that the person committing the act need only be cognizant of the link between his or her act and the attack. The person need not intend their act to be directed against the targeted population, and motive is irrelevant once knowledge of the attack has been established, together with knowledge that the act forms part of the act or was reckless in this regard...

[175] Knowledge may be factually implied from the circumstances...In assessing whether an accused possessed the requisite knowledge, the Court may consider the accused's position in a military or other government hierarchy, public knowledge about the existence of the attack, the scale of the violence and the general historical and political environment in which the acts occurred...

[176] In Finta the majority of this Court found that subjective knowledge on the part of the accused of the circumstances rendering his or her actions a crime against humanity was required (p819). This remains true in the sense that the accused must have knowledge of the attack and must know that his or her acts are part of the attack, or at least take the risk that they are part of the attack.

[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:

He voluntarily and in full knowledge joined the Yahata. His engagement in the secretive smuggling operations of the LTTE was, as we have earlier found, a fully knowing one and evidence of his dedication to the aims, objectives and methods employed by the LTTE. He knew that the items he helped smuggle into Sri Lanka would as likely be used in "conventional" warfare against the Sri Lankan forces as in perpetrating gross human rights abuses against innocent civilians. Knowing all this he willingly joined the Yahata intending to assist the LTTE in the prosecution of the war through the methods which the LTTE had chosen, namely conventional warfare, the terrorising of the civilian population of Sri Lanka and the "cleansing" of the north and east of Muslims, Sinhalese and Tamils who did not support the LTTE. Smuggling of arms and explosives into Sri Lanka was vital for each and every of these aims.

[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:

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.

[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):

A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if, (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such link exists, the Court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime is aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.

[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:

...in the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years.

[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:

In view of the facts and circumstances of the case it can be reasonably inferred that the accused, finding that it was no longer possible to avoid boarding of the vessel by the Indian naval officers, thought it proper to destroy their ship in order to avoid detection of the true state of affairs and consequential action. In our opinion, the prosecution can be said to have satisfactorily established that the accused had, in furtherance of their common intention, destroyed their ship. We, therefore, hold that the accused thereby have committed an offence punishable under s 438 IPC read with s 34 IPC. (p15 (ABD 1/277))

[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):

Although the fact that an asylum seeker has been convicted of an excludable crime is important evidence, a decision maker should not accept such a conviction at face value. It may be that the state has used prosecution as a tool of persecution, or that the trial fell so far short of the minimum requirements of criminal process in international law that the conviction is unreliable. It is therefore incumbent upon the decision maker to satisfy him or herself that the conviction was legitimate.

[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:

All the persons on board of MV Yahata were ordered to assemble on the foxle without any arms and explosives to enable the Indian Navy and coastguard ships to exercise their right of visit. The master and other persons on board again denied this right and took their positions with the AK47 rifles. They also fired shots from rocket propelled gun launcher and small arms and after some time set fire to their ship by using explosives. (p2-3 (ABD 1/264-265))

[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):

[72] It is well established that the Convention definition of "refugee" has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality.

[73] The objective element requires the decision maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the "reasons of race, religion, nationality, membership of a particular social group or political opinion" that are engaged.

[74] Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance or repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

[75] Again, because the question requires prediction, a decision maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared?

[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:

[145] From the time her husband left Sri Lanka in July 1992 to join the Yahata until her own departure from Sri Lanka in December 2001 she had no difficulties with government officials or with the LTTE. She was able to leave Colombo in February 1993 (that is, after the Yahata incident and the detention of her husband in India) and to return to the LTTE-controlled northern areas. She was also able to leave the LTTE-controlled area and return to Colombo with her children to commence her journey to New Zealand. In preparation for this trip she was issued with a Sri Lankan passport on 26 November 2001. In these circumstances we can see no basis whatever for her assertion that she faces a real risk of being persecuted in Sri Lanka either by the Sri Lankan authorities or by the LTTE.

[146] It was suggested that perhaps the incident-free period from January 1993 to December 2001 was due to the fact that the authorities in Sri Lanka had not made the connection between her and her husband. This is pure speculation and cannot establish a refugee claim. ....

[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:

It is trite law that an asylum seeker must demonstrate only a well-founded fear of persecution, not that persecution will occur: Re Naredo v Minister of Employment & Immigration (1981) 130 DLR (3d) 752, 753 (FCA) applied in Benipal v Minister of Foreign Affairs (HC AK A No. 878/83 29 November 1985) at 220, 224. Therefore, past persecution is not an essential element of the definition, although where evidence of past persecution exists, it is unquestionably an excellent indicator of the fate that may await the individual upon return to the country of origin: Hathaway, The Law of Refugee Status (1991) 88. Looking as it does to the future, the Convention is concerned with protection from prospective risk of persecution, and does not require that an individual should already have been victimised. It follows that past persecution is in no sense a condition precedent to recognition as a refugee: Hathaway op cit 87...

[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:

a) The Authority did not err in its interpretation of Article 1F;

b) It was open to the Authority on the evidence and information before it to make an adverse credibility determination;

c) The Authority adequately identified the crime against humanity that it considered X had been complicit in;

d) It was open to the Authority on the evidence and information before it to find that X was complicit in a crime against humanity;

e) The Authority did not err in relying on the judgment of the Indian Supreme Court to conclude that there were serious reasons for thinking that X had been guilty of a serious non-political crime, notwithstanding unsatisfactory aspects of that judgment.

[111] Y's application succeeds because the Authority erred in :

a) Using Y's past experience to determine the risk posed to her in the future without considering whether there had been a change in the circumstances that existed previously;

b) Failing to take into account whether persons in Y's position (families of known LTTE sympathisers or members) are suffering persecution by Sri Lankan security forces notwithstanding the cease-fire.

[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:

a) On behalf of X by 5pm 4 February 2008;

b) On behalf of the defendant in respect of X and Y by 5pm 11 February 2008;

c) On behalf of all parties in reply by 5pm 18 February 2008.

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