Arquita v Minister for Immigration & Multicultural Affairs [2000] FCA 1889

FEDERAL COURT OF AUSTRALIA

Arquita v Minister for Immigration & Multicultural Affairs [2000] FCA 1889

MIGRATION – refugees – application for protection visa – whether serious reasons for considering commission of serious non-political crime outside country of refuge – application of Art 1F(b) of Convention Relating to the Status of Refugees – meaning of "serious reasons for considering". WORDS AND PHRASES - application of Art 1F(b) of Convention Relating to the Status of Refugees – meaning of "serious reasons for considering". Migration Act 1958 (Cth) Pt 8 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol, Art 1F(b) Re Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173 referred to Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 followed Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 followed Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 289 followed W97/164 v Minister for Immigration and Multicultural Affairs AAT No 12974 [1998] AATA 618 not followed N96/1441 v Minister for Immigration and Multicultural Affairs AAT No 12977 [1998] AATA 619 not followed W98/45 v Minister for Immigration and Multicultural Affairs AAT No 13450 [1998] AATA 948 not followed Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 referred to American Cyanamid v Ethicon Ltd [1975] AC 396 at 407 referred to Thorp v Abbotto (1992) 34 FCR 366 at 370 at 372 referred to Doney v The Queen (1990) 171 CLR 207 at 212-214 referred to Hussien v Chong Fook Kam [1970] AC 942 at 948 referred to George v Rockett (1990) 170 CLR 104 at 115-116 referred to Edwards v The Queen (1993) 178 CLR 193 referred to

GENJULDEL ARQUITA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V347 of 1999 WEINBERG J 22 DECEMBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 347 OF 1999

BETWEEN: GENJULDEL ARQUITA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 22 DECEMBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 347 OF 1999

BETWEEN: GENJULDEL ARQUITA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE: 22 DECEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Administrative Appeals Tribunal ("the AAT") made on 11 June 1999 affirming a decision made by a delegate of the respondent on 12 August 1996 refusing an application for a protection visa under s 36 of the Migration Act 1958 (Cth) (" the Act"). 2 The applicant is a citizen of the Philippines who arrived in Australia on 12 June 1995. On 20 September 1995 he applied to the respondent for a protection visa. On 8 August 1996 he was interviewed in connection with his application. On 12 August 1996 a delegate of the respondent wrote to him informing him that the delegate had refused the application for a protection visa. The reason for the refusal was that the delegate considered that the applicant was not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol on the basis that there were serious reasons for considering that he had committed a serious non-political crime outside Australia, and was therefore excluded from protection under the Convention by the operation of Art 1F. 3 Article 1A(2) of the Convention provides that the term "refugee" shall apply to any person who: "… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …" 4 Article 1F relevantly provides: "The provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) … (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) …" 5 Regrettably, the letter of the delegate setting out the delegate's decision informed the applicant that he could apply for review of that decision to the Refugee Review Tribunal. On 5 September 1996 the applicant did apply to the Refugee Review Tribunal for review of the delegate's decision. After some further correspondence concerning the question of jurisdiction, the Refugee Review Tribunal correctly determined that it had no jurisdiction in the matter. Section 500 of the Act makes it plain that a decision to refuse to grant a protection visa relying on Art 1F of the Convention may only be made the subject of an application for review in the AAT, and not in the Refugee Review Tribunal. No doubt this arrangement is thought to be appropriate because the AAT is the body which reviews deportation orders made against non-citizens who are convicted of crimes, and cancellation of visas on character grounds – see M Crock, Immigration Refugee Law in Australia, The Federal Press, 1998 at 157. 6 The applicant then applied to the AAT for review of the decision of the delegate to refuse a protection visa. Oral evidence was adduced and there were also tendered a number of documents. 7 On 11 June 1999 the AAT gave its decision affirming the decision of the delegate under review. On 24 June 1999 the applicant instituted the present proceeding seeking review of that decision pursuant to Pt 8 of the Act.

The factual background 8 The applicant, who was born in 1961, is a citizen of the Philippines. In 1986 he joined the Philippines National Police ("the PNP"). In April 1991 he was stationed at Quezon Police Station, Bukidnon, living with his family in the nearby village of San Jose. Another police officer, Sgt Zenon Madrial Snr lived two houses away from him. 9 The circumstances giving rise to the applicant's claim for protection arose out of an incident on 28 April 1991 when another person, Mr Romula Bayarco, died of gunshot wounds to the abdomen during an incident with the applicant. The shot which killed Mr Bayarco was fired from the applicant's rifle. His death occurred in the aftermath of the murder earlier that morning of Sgt Madrial Snr at his home by members of the Communist New People's Army ("the NPA") and the killing of a member of the NPA by Sgt Madrial Snr's son in a reprisal shooting during which three civilians caught in the cross-fire also died. 10 In a statutory declaration made on 24 September 1998, and lodged with the AAT, the applicant amplified an account of the events in question that he had earlier given in a record of interview on 29 May 1991 as part of the investigation into the circumstances of the death of Sgt Madrial Snr. In substance, the applicant's statutory declaration reads as follows: "2. On the morning of 28 April 1991 at about 7.00am I was getting ready to go to work when I heard three gunshots fired from the direction of Madrial Senior's house. I instructed my sister-in-law to go outside and to see if she could see anything happening. She came running back to the house and told me that an unidentified man believed to be a member of the New People's Army ("NPA") was lying dead on the highway in front of my parents' house. At the same time I heard gunshots from a Garand rifle. I grabbed my M16 rifle and my bandolero that was full of bullets and ran down to my parents' house. When I got there there was gunfire coming from Madrial Senior's house and gunfire being returned by three men or women dressed in fatigue uniforms who were running away from Madrial Senior's house and turning to fire back as they ran. I got into a position under my sugar cane hauling truck at the front of my parents' property so that I could see what was going on while being covered. I fired a few gunshots at the fleeing men or women and noticed that there was a dead man dressed in fatigue uniform lying on the road about five metres away from me with an M16 rifle. As the fleeing men or women got further away the gunfire exchange stopped. I came out from under my truck and went over to the body on the highway. I took the M16 rifle and a 45 calibre pistol and other items that I knew belonged to Madrial Senior. I took these items to my parents' house and went over to Madrial Senior's house to find out what had happened. I saw Madrial Senior lying still on the floor. He had a big opening at the back of his head and he was no longer breathing. I was convinced that this was the work of the NPA and immediately left Madrial Senior's house to follow the NPA and to clear the area of people who might get injured. 3. I walked up the highway towards Quezon Town until I reached a passenger jeepney that had been left at the side of the road. The driver and two women sitting next to the driver were dead. I did not know where the NPA was but decided that the best thing was to stop the traffic passing through the area until it was safe. I began to signal the traffic to stop. All of the vehicles obeyed my signals except for a motor-cycle with two passengers that passed me and stopped right near the passenger jeepney where there were the three dead bodies. The two passengers on the motor-cycle got off the motor-cycle and one of them walked around the passenger jeepney. As he did so he looked at the other passenger who was standing nearby and shook his head. I was only a few metres away from them and spoke to them to identify myself as a member of the Philippine National Police and to order them to leave the area. When I did this the man who had been standing and watching his companion walk around the passenger jeepney came walking towards me. He got very close to me and I noticed that there appeared to be a gun bulging at his waistline. I was going to search him when he suddenly grabbed my M16 by the upper hand-guard. I did not let go and screamed at him to let go. He did not let go but pulled the barrel of the gun towards him and it went off accidentally hitting him in the stomach. Even though he had been hit he kept trying to wrestle the gun from me. We fell to the ground struggling and rolled into the gutter. He was bigger and stronger then me so I yelled out for assistance as there were many people standing by. A teenage boy jumped over us and grabbed a pistol that had been hidden in the clothing of the man who was fighting me and pointed it at him. I yelled at the boy: "Don't, don't" and was able to tear my gun away from the man and stand up. I yelled to the civilians to help the injured man along the road and to get him to a hospital. 4. I then took the motor-cycle and the injured man's pistol to the house of my parents and returned to the passenger jeepney with the dead bodies. On my way to the passenger jeepney I saw the injured man with four teenage boys coming towards me. He had his hands tied and he was trying to kick the boys while walking slowly and in a zig-zag pattern along the road. I felt sympathy for him and called out to my mother to make sure that he got to the hospital. Before I reached the passenger jeepney people began to run everywhere shouting that the NPA were coming back with reinforcements. The vehicles that had been stopped were no longer blowing their horns and I suddenly found myself alone on the road. I ran back to my parents' house, jumped over the fence and hid among some big stones. I heard someone moaning and then saw that the injured man had been left with his hands tied on the road by the teenagers. The sound of military vehicles broke the silence. It was my superior officer Second Lieutenant Tuliao with my company stopping outside my parents' home. There was also a 10-wheeler army truck with 22 fully armed soldiers. I came out of hiding and Second Lieutenant Tuliao congratulated me and ordered me to put on my uniform to go and fight the NPA. We followed a trail of blood along a walking trail for about three kilometres towards another village, Minsalerac, but then lost the trail. This had been our only clue to the whereabouts of the NPA. 5. After this time my family received many threatening letters, some asking for money. I told my superior officer about this and he said to ignore the letters. On the day before Madrial Senior's funeral unknown persons set fire to my sugar-cane farm of five hectares. After the burial of Madrial Senior, my superior officer approved my transfer to Cagayan de Oro at the request of my mother. She could not sleep because of the reports that the NPA would retaliate against the Arquita family for the death of Romulo Bayarco in the battle on 28 April 1991. As it was the NPA did not need a reason to kill any police officer so I was very scared. When I transferred to Cagayan de Oro with my wife and son I had to take a one-room flat for us inside the army camp for security reasons. My family still lives there. I was assigned by my chief in Cagayan de Oro, to be a police patrol-car driver with no permanent car number to avoid identification by the NPA. I continued to work like this until I received a warrant of arrest at the end of 1993. 6. I was very shocked when I was arrested. I had never been charged with any crime and have never been convicted of a crime in my life. I did not even know that I was suspected of murdering Bayarco. I hadthe right to know that I was being investigated before I was arrested but no-one told me about it. After I was arrested I was put in jail and the prosecutor told me the case would be dropped if I paid 50,000 pesos to the Bayarco family. I told him I could not pay that amount of money and he told me to discuss this with my family. My family could not pay this amount of money so the case went ahead in the Bukidnon Regional Trial Court. My mother paid a lawyer, Arcadio Fabrio, to help me. I do not think that he did very much to help me. I pleaded innocent to the charge but felt that even though I had done nothing wrong there was nothing I could do to get a fair trial because of NPA and other political influence. During the days of my trial in the Bukidnon Regional Trial Court I understood that the prosecutor and my lawyer, Arcadio Fabrio, who is now a judge, were just playing games on my case. I was also scared that the NPA would hurt or kill me while I was waiting for the case to be decided. I had no other way out but to leave the Philippines." 11 The applicant's mother, in a statutory declaration also lodged with the AAT, said she witnessed the incident of 28 April 1991 as described by her son. She corroborated his version of events. In addition, her statutory declaration reads: "12. I returned to the Philippines in May 1998 to talk with Dorothy Bayarco, Bayarco's widow, to try and persuade her to stop the prosecution of my son. I also went there to try to find a lawyer for Genjuldel who could stop this trial from going ahead. My meeting with Dorothy Bayarco was organised by the prosecutor of the case against my son. At this meeting I was told that the case would be dropped if the sum of 100,000 pesos was paid to the Bayarco family. It is impossible for my family to pay that sum. I was also told by two lawyers that it is not possible to have the case stopped for lack of evidence but that my son would be acquitted if he was found to be acting in self-defence and in the course of his duty as a policeman. 13. I firmly believe that the NPA and its political connections have been responsible for the decision to prosecute Genjuldel for murder and for the way that the prosecution has conducted the case. Even though Genjuldel is innocent of the charge against him, I firmly believe that he would be convicted because the prosecution and judges of the Bukidnon Regional Trial Court are corrupt and the best defence lawyer that we could pay for has not wanted to, or not been able to, take a stand against them. It Genjuldel had to go back to the Philippines he would also risk great physical harm by the NPA while waiting for the court case to finish and afterwards. I do not see how Genjuldel would be saved by going to the Court of Appeal in Manila as my family does not have the money to pay to ensure that his case will be considered fairly." 12 It appears that the PNP initially considered that the applicant was acting in the course of his duty as a police officer. Following a police investigation he was not charged with any offence. However, the deceased's widow was unhappy with the result of the inquiry and at her instigation a subsequent investigation was carried out by the Philippines Commission on Human Rights. It appears that the special investigator recommended that charges be laid against the applicant. 13 On 18 November 1993 the Office of the Provincial Prosecutor of Bukidnon filed an information for murder against the applicant in the Bukidnon Trial Court. The information was accompanied by a certification from the Assistant Provincial Prosecutor dated 9 November 1993 to the effect that he had completed "the proper preliminary investigation" into the matter and that "there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty of the offense (sic) charged". The certification also indicated that the applicant was informed of the complaint and of the evidence submitted against him, and that he was given an opportunity to submit controverting evidence. 14 The applicant was subsequently detained before being released on bail on 24 January 1994. On 23 February 1994 he pleaded not guilty to the charge of murder and a date was fixed, in October 1994 for a preliminary hearing in the Bukidnon Trial Court. 15 On 27 October 1994 the applicant was suspended from office. On 14 November 1994 the prosecution sought to have the case transferred to what is described as the "Ombudsman Court" because the applicant had allegedly committed the crime in the course of his duties as a PNP officer. On 17 November 1994 the Bukidnon Trial Court ordered that the case be transferred to the Ombudsman Court. On 10 January 1995 the case was referred to the Special Prosecutor Manila. On 21 March 1995 the applicant was suspended from the PNP until resolution of the charge. 16 After considering the matter, the Ombudsman Court remitted the case back to the Bukidnon Trial Court on 16 February 1996 on the basis that it did not have jurisdiction to try the matter. In the meantime, on 22 May 1995 the applicant applied for a visa to visit Australia. His application was successful. He arrived in Australia on 12 June 1995.

The application for a protection visa 17 In his application for a protection visa lodged on 20 September 1995 the applicant claimed he was being persecuted by the NPA on account of his political opinions. He claimed that the NPA hated and attacked his relatives, harassed his family and constantly hunted him. He further claimed that he had been discharged from his employment without a fair trial and was at risk from the PNP who were also looking for him. In addition, he claimed that he had been subject to human rights abuses including a physical assault in prison by a prison officer. He asserted that the Philippine authorities were unable to protect him and provide him with adequate legal representation, or provide for a fair and just legal system. 18 By reason of the operation of Art 1F(b), the applicant's claims were not considered on their merits. The delegate concluded that he fell within the terms of that Article, and was therefore not eligible to be considered for a protection visa.

The AAT's reasoning 19 The applicant's case before the AAT was that the allegations made against him were entirely false. He claimed that the delegate ought not to have concluded that there were serious reasons for considering that he had committed a serious non-political crime when he shot and killed Mr Bayarco. He said that Mr Bayarco's death had been accidental, and had occurred while he was engaged in performing his lawful duties as a police officer. 20 The applicant submitted that there were no eyewitnesses to the fatal shooting who in any way contradicted the exculpatory account he had given. There were no prosecution witnesses who saw the fatal shot being fired. The applicant's belief was that the subsequent criminal prosecution was motivated by a desire on the part of the family of the deceased for compensation or retribution against him. This was confirmed by the fact that on two occasions one of the prosecutors dealing with his case in the Philippines had stated that the case could be resolved if the applicant paid the dead man's family the sum of 50,000 pesos ("the first offer") or 100,000 pesos ("the sum mentioned on the second occasion"). The applicant did not have the means of paying either sum, and therefore the criminal process had continued. The applicant claimed that he would not receive a fair trial in the Philippines, and it was for that reason that he had come to Australia and applied for a protection visa. 21 The AAT noted that there were conflicting accounts of what had occurred on the morning of 28 April 1991. It had the opportunity to observe the applicant who gave evidence before it. The AAT said: "46. Mr Arquita was examined at length about the events. He gave his evidence with the assistance of an interpreter but appeared to have a good understanding of English, at times responding without waiting for the interpretation. His evidence had a well rehearsed ring about it and he was not a particularly convincing witness. I formed the same impression of his mother's evidence. My concerns about Mr Arquita's veracity were not allayed by the contents of an affidavit he swore on 25 April 1995 for the purposes of his application for a visa to visit Australia, stating that in June 1993 his occupation was "seaman" and since December 1993 "farmer", without any mention of his occupation as a police officer." 22 The AAT then stated its understanding of the law as follows: "47. For the crime of murder, domestic law, in the common law jurisdictions, requires an intention to kill or an intent to inflict grievous bodily harm if death results. Reckless intent will be sufficient intent for murder in the common law jurisdictions. On one, albeit untested, view of the facts, Mr Arquita's "intent" is in issue. Although in the present case, Mr Arquita has been charged with murder, the ordinary meaning of the phrase "serious reasons for considering" does not require a charge or a conviction (Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 289 per Whitlam J at 294), nor must every element of an identified offence be able to be identified and particularised before Article 1F(b) may be relied on (Ovcharuk per Branson J at 301). 48. I have come to the conclusion that on the whole of the evidence and material before the Tribunal, there are serious reasons for considering Mr Arquita has committed a serious non-political crime outside Australia. 49. The decision under review will be affirmed." 23 In arriving at its conclusion, the AAT referred to what was said in relation to the construction of Art 1F(b) by the Full Court in Ovcharuk. The AAT observed: "19. The construction of Article 1F(b) was considered by a Full Court of the Federal Court (Whitlam, Branson and Sackville JJ) in Ovcharuk … in separate judgments, the members of the Court concluded that Article 1F(b) is not to be given a narrow construction. They found that Article 1F should be construed according to the ordinary meaning of the words of the Article. There is no reason to confine the ordinary meaning to persons who are fleeing from or otherwise seeking to avoid prosecution for offences committed outside the country of refuge. The Court accepted that the transparent policy of Article 1F(b) is to protect the order and safety of the receiving State. This was in accord with the conclusion expressed by French J in Dhayakpa v Minister for Immigration and Multicultural Affairs (1995) 62 FCR 556 at 565: "The provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. The fact that a crime committed outside the receiving State is an offence against the laws of that State does not take it out of the ordinary meaning of the words of Art 1F(b). Nor does the fact that the crime has subsequently been punished under the law of the receiving State. The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State. The protective function is not limited according to whether or not the punishment has been inflicted in Australia or elsewhere. Nor, on the language of the Article or its evident policy, is it necessary that the disqualifying crime have any connection to the reason for seeking refuge. A person who would otherwise qualify for admission as a refugee may be disqualified by the operation of Art 1F(b) if it were shown that such a person had a record of serious non-political crime offences whether in the county of origin or elsewhere." 24 The AAT noted that in the present case the applicant had been charged with, but not tried for, the offence of murder in the Philippines. While on bail he left the Philippines and came to Australia. The applicant did not claim the incident in which Mr Bayarco died had a political element. Additionally there was no dispute that an allegation of murder was an allegation of a "serious" crime. 25 Before the AAT, it was submitted on behalf of the applicant, that the mere fact that he had been charged with having committed a serious non-political crime in the Philippines did not mean that there were "serious reasons for considering" that he had committed such a crime. It was submitted that upon the evidence before the AAT, the elements necessary to constitute the offence of murder were not present, and that the discharge of the applicant's rifle had been accidental. Alternatively, the killing of the deceased had been an innocent act because it had occurred in self-defence in the performance by the applicant of his duties. It was also said that the entire prosecution of the applicant involved a corrupt process. 26 The AAT rejected these submissions. It concluded that on the whole of the evidence the authorities in the Philippines had serious reasons to believe that the applicant had committed a serious crime. The steps taken by the prosecuting authorities pointed to a conclusion that the proceedings were regular on their face, and not corrupt, and those proceedings remained extant. 27 The AAT observed: "The Philippines has a democratic system of government. It is a republic with an elected President and a political party system. It has a Constitution with a Bill of Rights. It has an independent judicial system." 28 The AAT continued: "Allegations of corruption have been made against some judges and court officials, but the criticism is directed primarily at inefficiency and delay in the legal system." 29 Turning to the circumstances of the offence, the AAT noted that there were before it conflicting accounts of the events of 28 April 1991. The applicant's version of the circumstances of the death of Mr Bayarco received general support from a number of persons all of whom were known to the applicant. Mr Madrial Jnr supported the applicant's claim that the shooting of Mr Bayarco was an accident. Other statements in support of the applicant suggested that Mr Bayarco was a member of the NPA, and that he was linked to the incidents involving the killing of Sgt Madrial Snr and the reprisal killing by Mr Madrial Jnr and the death of the civilians. 30 A report by the PNP commanding officer stated that in the incident in which Mr Bayarco died the applicant was involved in a "fierce gun battle" which lasted fifteen minutes. A statement of Mr Antonio Urot said the applicant was at the scene checking traffic, and that he stopped the motorcycle on which Mr Bayarco was riding. According to Mr Urot, Mr Bayarco tried to take hold of Mr Arquita's rifle and in the struggle the rifle discharged. Mr Urot was 200 metres away when he observed this. 31 Mr Salvador Nunez Jnr said he saw the applicant and Mr Bayarco wrestling and fall over. He heard a shot from the applicant's rifle "accidentally discharge". He was 250 metres away. 32 Mr Salvador Tan saw the applicant and another male (unknown to him) trying to wrestle the applicant's rifle from him. Mr Tan was in the waiting shed with other people at the time. He began to walk home when he "heard a gun fire" from where the applicant and the other person were wrestling. He was 80 metres away at the time. 33 The AAT observed that the account given by the applicant, and supported by his witnesses, conflicted with other accounts in the Bukidnon Trial Court file. There were claims that the applicant had shot Mr Bayarco deliberately, and a suggestion by Mr Bayarco's widow that the applicant had a motive for doing so in that her husband (who was a crop inspector employed by Bukidnon Sugar Milling Co) had, shortly prior to his death, refused to overestimate the applicant's sugarcane crop. In evidence the applicant said he managed his mother's sugarcane farm, but denied any previous knowledge of Mr Bayarco or having had a dispute with him in relation to the sugarcane crop. 34 As noted earlier, the applicant and his mother claimed that the Bayarco family had made a demand for money. However, Mr Bayarco's widow claimed that it was the applicant's wife and parents who approached her with an offer to pay her money to drop the prosecution. She had rejected that offer. 35 The AAT then set out the statements on the Trial Court file which were at variance with the account given by the applicant and his witnesses. The AAT observed: "41. In a statement on the Trial Court file Mr Romeo Peron said that on the morning of 28 April 1991, on hearing that his uncle (Cristituto Temaryo, one of the civilian casualties) had been shot, he went to the scene with his neighbour Mr Bayarco, on Mr Bayarco's motorcycle. At the scene he saw his uncle at the wheel of his jeep with gunshot wounds to the head. An armed person who was in civilian attire appeared "... pointing his gun to us ... we both raised our hands-up and further told the armed men that we were here only to pick-up my uncle. He then told me to ran (sic) away leaving behind Mr Bayarco. At more or fifty metres away, burst of gunfire was heard by me." (TrialCourt file, p19). In evidence Mr Arquita disputed Mr Peron's statement denying that he was asked about the wounded person, or that Mr Peron and Mr Bayarco, put their hands up, or that Mr Peron was ordered to leave the scene. 42. Mr Edgar Pabro who was also a crop inspector at Busco and knew Mr Bayarco as a fellow employee (Trial Court file, p20) said he heard a single burst of gunfire, rushed to the road and saw Mr Bayarco with blood on his shirt, hog tied with both hands, take at least five steps towards a dead person 10 metres away and fall to the ground. He saw Mr Arquita (a neighbour of Mr Pabro) holding his rifle. Mr Pabro was about 35 metres away. 43. Mr Efren Dumapias said that he was on his way to work on his motorcycle together with four companions including Mr Bayarco, when he heard several bursts of gunfire. When the shooting stopped, Mr Bayarco proceeded ahead, the others following slowly about 100 metres behind, Mr Bayarco stopped, alighted from his motorcycle and raised his hands. Mr Dumapias and the three other companions sensing the situation unsafe immediately left. An hour later he was informed Mr Bayarco had been killed. (Trial Court file, p21) Mr Arquita denied in evidence that Mr Bayarco raised his hands as observed by Mr Dumapias." 36 The AAT concluded that the conflicting accounts of what had occurred could not be tested in the proceeding before it. It noted that many questions were left unanswered. It observed that the state of the material did not permit ascertainment of what precisely occurred because a number of aspects the statements required further clarification, particularly as to the actual observations of witnesses. It pointed to inconsistencies between the applicant's version of his involvement surrounding the death of Mr Bayarco, and the After Battle Report dated 5 June 1991 of the commanding officer who reported that the applicant had killed one armed person and wounded several others. The commanding officer's description of a "… furious exchange of volume of gunfire which lasted for fifteen minutes" did not accord with the applicant's evidence that he fired two to three shots. There was no suggestion that the applicant was involved in the death or wounding of any person other than Mr Bayarco. A question which was raised was whether the applicant had exaggerated the incident to investigators to make it appear that Mr Bayarco was an NPA member killed in an exchange with police. 37 The AAT then expressed its reservations about the credibility of the applicant and concluded that the decision of the delegate should be affirmed.

The submissions before the Court 38 The sole ground of the present application is that the decision of the AAT involved an error of law pursuant to s 476(1)(e) of the Act. The applicant contends that the AAT erred in interpreting or applying the phrase "serious reasons for considering that … he had committed a serious non-political crime". It was acknowledged that the AAT had considered the relevant authorities that deal with the construction of Art 1F(b). It was submitted, however, that the AAT had failed properly to apply the law to the facts as found by it. 39 The applicant submitted that the phrase in Art 1F which was required to be interpreted and applied by the AAT required a standard of proof which, if not "beyond reasonable doubt", was at least greater than a test on the balance of probabilities. The AAT, however, had interpreted Art 1F as reflecting a standard of proof requiring less than the balance of probabilities. In that regard, the AAT had followed a line of authority which had its source in a decision of the Canadian Federal Court of Appeal in Re Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173. A similar approach was said to have been adopted in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 where French J observed at 563: "Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words "serious reasons for considering that" suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. The precise construction of that phrase does not fall for consideration in the present case as it is not in dispute that the crime relied upon by the Tribunal to ground the rejection of the claim for refugee status was committed." 40 This dictum by French J was accepted as correctly stating the relevant legal principles in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385by Marshall J at first instance. His Honour said at 388: "Notwithstanding that French J's views about the words "serious reasons for considering" were not central to his reasons for judgment and notwithstanding that Mr Dhayakpa had been found guilty of conspiracy, whereas Mr Ovcharuk has not, I consider his Honour's approach to the meaning of those words to be highly persuasive." 41 On appeal, the Full Court in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 289 also considered the construction of Art 1F. In that context, Whitlam J at 294 observed: "What is most striking to me about Art 1F is the plain, matter-of-fact requirement that there should be "serious reasons for considering that" a person "has committed" a specified type of crime (paras (a) and (b)), or "has been guilty" of the proscribed acts: para (c). Charges or convictions are not required. Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case." 42 In W97/164 v Minister for Immigration and Multicultural Affairs AAT No 12974 [1998] AATA 618 Mathews J, sitting as President of the AAT, reviewed the authorities governing the meaning to be ascribed to the expression "serious reasons for considering" in Art 1F(b). Her Honour said: "… I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be "serious reasons for considering" that a crime against humanity has been committed should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be "serious reasons for considering" (emphasis added) that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v Briginshaw (1938) 60 CLR 336, Helton v Allen (1940) 63 CLR 691." See also N96/1441 v Minister for Immigration and Multicultural Affairs AAT No 12977 [1998] AATA 619; and W98/45 v Minister for Immigration and Multicultural Affairs AAT No 13450 [1998] AATA 948. 43 The applicant submitted that notwithstanding the fact that he had been charged with murder, there were no "serious reasons for considering" that he had committed that crime. He pointed out that there was no evidence from any eyewitness as to what had occurred at the precise moment that Mr Bayarco was shot. It followed that there was no direct evidence which was capable of contradicting his own account. 44 The applicant submitted that it was not sufficient, for the purposes of Art 1F(b), that there be serious reasons for considering that he might have committed a crime of the type specified. Rather, there must be serious reasons for considering that he had committed that crime. He submitted that that the AAT's finding that the various accounts contained in the Trial Court file could not be tested in the proceedings before it meant that it was not open to the AAT to find that there were serious reasons for considering that he had committed the crime of murder. 45 The applicant submitted that there was no evidence of any intention on his part to kill the deceased or to cause him grievous bodily harm. He submitted that there was no evidence to rebut his claim that the rifle had discharged accidentally during the course of a struggle, and even if there were, there was no evidence to rebut a possible defence of self-defence. 46 Contrary to his primary submission, the applicant submitted that if, upon its proper construction, Art 1F required a lesser standard of proof than that for which he contended, the material before the AAT did not permit a finding to be made on the basis of that lesser standard. He submitted, that no tribunal of fact could lawfully have concluded, on the evidence before the AAT, that he had committed the crime of murder. Accordingly, the AAT had erred in interpreting or applying the law in being satisfied that Art 1F applied. It must therefore be taken to have interpreted Art 1F incorrectly, and its decision should therefore be set aside. 47 The respondent submitted that there was ample evidence to support the AAT's conclusion that there were serious reasons for considering that the applicant had murdered Mr Bayarco. The AAT had noted a number of inconsistencies between the applicant's account of the circumstances surrounding Mr Bayarco's death, and the accounts given by others that were present at the time. It had the opportunity to observe the applicant's demeanour when he gave evidence before it. It concluded that his evidence "had a well rehearsed ring about it" and that he was not "a particularly convincing witness". It formed a similar view about his mother. 48 The respondent submitted that it was of little consequence that the case against the applicant was largely circumstantial, rather than being based on direct eyewitness testimony. A circumstantial case might nonetheless be a strong case. Indeed it might be a stronger case than one based exclusively upon eyewitness testimony. 49 The respondent also submitted that it was important to note that several witnesses who were present at the time Mr Bayarco was shot had given accounts which were significantly at variance with the account given by the applicant. Those witnesses claimed that they saw the applicant raise his rifle and point it towards Mr Bayarco moments before he was shot. They also said that both Mr Bayarco and Mr Peron had raised their hands in the air after being ordered by the applicant to do so. The applicant's account was entirely different. He denied having pointed his rifle at Mr Bayarco, and he maintained that Mr Bayarco had not raised his hands in the air. The differences between these accounts were, therefore, in several respects, fundamental. 50 The respondent also pointed to what were said to be inconsistencies between the applicant's statutory declaration in support of his claim for a protection visa, and the evidence that he gave before the AAT. These inconsistencies were set out in detail in the respondent's submissions, and it is unnecessary to repeat them here. It is sufficient to say that the respondent claimed that they were matters properly to be taken into account by the AAT.

Conclusions on the appeal 51 It was for the AAT to determine, upon all the evidence, whether Art 1F operated so as to preclude the applicant from being considered for the grant of a protection visa. As Branson J said in Ovcharuk at 301: "Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker." 52 I regard the observations of French J in Dhayakpa as being particularly helpful in elucidating the meaning of the expression "serious reasons for considering". It was unnecessary, in accordance with those observations, for the AAT to "make a positive or concluded finding about the commission of a crime". It was sufficient if there was "strong evidence of the commission of" the crime specified. 53 In my view the applicant's contention that Art 1F(b) requires the relevant decision-maker to be satisfied beyond reasonable doubt that the applicant has committed a serious non-political crime cannot be sustained. Nor can his alternative contention that Art 1F(b) requires proof on the balance of probabilities. There is nothing in the language of Art 1F(b) that suggests it should be read as imposing upon a decision-maker an obligation to apply either of these curial standards of proof. 54 It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as "strong". It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as "strong" without meeting either of these requirements. 55 To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree. 56 The expression "serious reasons for considering" means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be "serious". 57 It is dangerous to reason by analogy in this area. The meaning to be attributed to the word "serious" will depend upon the context in which that word is used. It would be wrong, for example, to equate the test under Art 1F(b) with what would arguably be a lesser standard required for the grant of an interlocutory injunction, namely, that there be a "serious question to be tried": Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153. In both situations the word "serious" operates as a filter, ensuring that allegations of insufficient strength are discounted. 58 In determining the meaning to be ascribed to the word "serious" in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word "serious" in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a "prima facie" case, the test formerly favoured for the grant of an interlocutory injunction: American Cyanamid v Ethicon Ltd [1975] AC 396 at 407. 59 Perhaps a more pertinent analogy may legitimately be drawn with the test that must be satisfied before a person may be committed to stand trial for an indictable offence. That test is expressed in different terms in legislation relating to committal proceedings in the States and Territories of Australia. In Thorp v Abbotto (1992) 34 FCR 366. Lockhart J observed at 372: "… a magistrate conducting a committal, having heard the evidence for the prosecution and for the defence, and having formed the opinion that there are two hypotheses open on the material before him, one consistent with guilt and the other with innocence, is not necessarily bound to discharge the defendant. The task of a committing magistrate is essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could. It is not the task of a magistrate conducting a committal proceeding to assume the role of the jury at a criminal trial. At the conclusion of the evidence adduced on a criminal trial for both the prosecution and the defence a number of inferences may be open to the jury consistent with guilt or innocence. Some may be stronger than others; each is essentially a matter for the jury to consider in the course of its deliberations when assessing whether the defendant is guilty or not guilty of the offence with which he has been charged. If a magistrate was obliged to discharge a defendant whenever a hypothesis was reasonably open on the evidence consistent with his innocence, albeit that another hypothesis was consistent with his guilt, it is difficult to image a case where there ever would be a committal for trial of a defendant as there are very few sets of facts or circumstances which cannot admit at least in theory of a possible explanation consistent with innocence. An inference from the facts consistent with guilt may be strong or weak in the eyes of the magistrate and so may an inference consistent with innocence. The conclusion by the magistrate that there are two competing inferences open, one consistent with guilt and the other with innocence, cannot necessarily require that the accused be discharged." 60 It is clear that a magistrate would not, under any formulation of the committal test which applies in this country, commit a person to stand trial for an indictable offence unless there were at least "serious reasons for considering" that he had committed that offence. That does not mean that the evidence must persuade the magistrate beyond reasonable doubt, or even on the balance of probabilities, of that fact. It is interesting to note that the phrase "strong evidence" which French J adopted in Dhayakpa in explaining the expression "serious reasons for considering" in Art 1F(b), is not dissimilar to the statutory formulation which was used, historically, in relation to committal proceedings before the test was modernised, namely, that there be a "strong and probable presumption of guilt". 61 It seems clear that the material before the AAT in the present case does not exclude all hypotheses consistent with innocence. That simply means that if that material were to stand, in its present form, it would not, in this country, establish the guilt of the applicant beyond reasonable doubt. That is hardly surprising. The witnesses whose statements were before the AAT were not heard to give their evidence directly, and were not subjected to cross-examination. It does not follow that this material did not give rise to "serious reasons for considering" that the applicant had committed a crime of the type specified. 62 If there is no evidence capable of supporting a conclusion that the applicant has committed an offence of the type specified, Art 1F(b) will not be applicable. 63 If there is some evidence capable of supporting such a conclusion, but that evidence is so tenuous or inherently weak or vague that no trier of fact, acting properly, could be satisfied beyond reasonable doubt of the guilt of the applicant, then again Art 1F(b) will not be applicable: Doney v The Queen (1990) 171 CLR 207 at 212-214. A case which is built around nothing but suspicion will not be sufficient to meet the requirements of that Article. 64 "Suspicion", as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove"." The objective circumstances necessary to demonstrate a reason to believe something, or to consider it to be so, need to point clearly to the subject matter of the belief. That is not to say that those objective circumstances must establish on the balance of probabilities, let alone beyond reasonable doubt, that the subject matter in fact occurred or exists. A fact may be considered to be true on more slender evidence than proof: George v Rockett (1990) 170 CLR 104 at 115-116. 65 The present case is not of that character. The applicant claims to have a complete answer to the charge of murder brought against him. That may, indeed, prove to be the case. However, as well as hypotheses consistent with innocence, there are also available hypotheses consistent with guilt. A trier of fact may accept the evidence of the witnesses who say that they saw the applicant point his rifle at Mr Bayarco, and saw Mr Bayarco raise his hands in the air, moments before he was shot. There is nothing inherently implausible about the accounts given by these witnesses. Nor is there anything to indicate that they lack credibility and should not be believed. It would be open to the trier of fact to conclude that the applicant had lied about these matters, which are plainly material, and that he thereby evinced a consciousness of guilt – Edwards v The Queen (1993) 178 CLR 193. Were the trier of fact to accept the evidence of these witnesses and conclude that the applicant had lied, there would be cogent evidence from which an inference of guilt could properly be drawn. 66 The AAT was obliged to give careful consideration to the material before it; in the words of Lockhart J in Thorp v Abbotto, "to sift the wheat from the chaff". In my opinion the AAT did give such consideration to the whole of the evidence before it. It did carry out its statutory function in accordance with law. 67 I am unable to discern any error in the manner in which the AAT went about its task of construing Art 1F(b). Nor can I discern any error in its application of that Article to the facts before it. The weight to be given to these facts was a matter for the AAT. Its conclusion that there were serious reasons for considering that the applicant had murdered Mr Bayarco was, in all the circumstances, one which was open upon the whole of the evidence. 68 The application for review of the AAT's decision must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 22 December 2000

Counsel for the Applicant: Mr A. Krohn

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr W.S. Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 23 October 2000

Date of Judgment: 22 December 2000