The Attorney-General (Minister of Immigration) v Tamil X and Anor

• Jurisdiction: New Zealand
• Judge: McGrath J
• Judgment Date: 27 August 2010
• Neutral Citation: [2010] NZSC 107
• Docket Number: SC 107/2009
• Court: Supreme Court
• Date: 27 August 2010

BETWEEN

The Attorney-General (Minister of Immigration)

Appellant

and

Tamil X

Firsr Respondents

Refugee Status Appeals Authority

Second Respondents

[2010] NZSC 107

SC 107/2009

IN THE SUPREME COURT OF NEW ZEALAND

Counsel:

A M Powell for the Appellant

A J Ellis G K Edgeler for First Defendant

T Ellis, Wellington

JUDGMENT OF THE COURT

• A The appeal is dismissed.

• B The respondent's application for recognition of refugee status is remitted to the Refugee Status Appeals Authority for consideration in accordance with the Court of Appeal's order.

• C Costs are reserved and counsel may submit memoranda if necessary.

REASONS

(Given by McGrath J)

CONTENTS

	Para No
Introduction	[1]
Background	[4]
Refugee Convention and legislation	[12]
Procedural history	[14]
High Court and Court of Appeal judgments	[22]
Nature of refugee decision-making	[32]
Application of art 1F:
(a) Factual conclusions	[40]
Complicity in a crime against humanity	[46]
Was any crime against humanity committed?	[71]
Were serious non-political crimes committed?	[81]
Conclusion	[101]

Introduction

1 The protection accorded by the 1951 Convention Relating to the Status of Refugees 1 extends generally to those to whomthe Convention accords the status of refugee. Included are those who fear persecution for reasons stated in the Convention andwho generally meet its requirements for recognition as a refugee.

There are, however, persons who are excluded by the Convention from receiving its protection because there are serious reasons for considering they committed specified criminal acts before arriving in the country in which they seek refuge. This appeal raises questions concerning the meaning and scope of the exclusionary provision of art 1F of the Convention:

F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

• (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

• (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

• (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

2 The first respondent (whom we will call “the respondent”) is a Sri Lankan citizen who claimed refugee status shortly after his arrival in New Zealand and admission under a visitor's permit in 2001. The context in which the issue arises of whether he is excluded from holding refugee status is the respondent's association with the Liberation Tigers of Tamil Eelam (Tamil Tigers) and their activities. While the Tamil Tigers is an organisation striving for political change which has been engaged in armed conflict against government forces, it has also committed many crimes against humanity during the period of conflict in Sri Lanka. The appellant, the Attorney-General, contends that the respondent became complicit in these international crimes in the course of his employment as Chief Engineer on a vessel, MV Yahata. This cargo vessel, which was owned by the Tamil Tigers, transported legitimate goods but also, at times, munitions and weapons for the Tamil Tigers' use in both conventional military and other operations, in some of which war crimes and crimes against humanity were committed. The appellant also contends that the respondent has committed serious non-political crimes during his involvement in the scuttling of the Yahata, after it had been apprehended in international waters by an Indian coastguard vessel. The appellant submits that in consequence of his actions, under art 1F(a) and (b) respectively of the Refugee Convention, the respondent is disqualified from being a refugee.

3 Following inquiry, the Refugee Status Appeal Authority 2 held that, because of his past conduct, the respondent is so disqualified under both paragraphs of art 1F. The High Court 3 dismissed his appeal against that decision but, on a further appeal, the Court of Appeal 4 held that it had not been shown on the evidence before the Authority that the exclusion provision inthe Convention applied to the respondent. The Crown has appealed against the Court of Appeal's judgment. The appeal raises the question of what more is required than merely membership of or an association

with an organisation that commits crimes against humanity for a person to become complicit in such actions so as to be excluded from qualifying as a refugee under the Convention. Related issues in the appeal concern what is meant by the requirement that there be “serious reasons for considering” that a claimant has committed a crime covered by art 1F(a) or that conduct amounts to a “serious non-political crime” under art 1F(b).

Background

4 The respondent was born in 1956 and grew up in Velvettiturai, in the north of Sri Lanka, an area in which the local population is strongly sympathetic to the Tamil Tigers. In 1981 he left Sri Lanka to go to sea. He was initially based in the Middle East, working in engine rooms first as an oiler and then as a third assistant engineer in the Persian Gulf. He spent brief periods in Sri Lanka in 1986 for personal reasons and returned in 1989 for his marriage when he remained for six months. At the end of 1989 he took up a position as fourth engineer on a container ship sailing between Singapore, Malaysia and Indonesia. He returned to Velvettiturai in April 1990 to be with his wife for the birth of their first child and remained in Sri Lanka for two years. During this period he was regularly moving between towns as the area was the focus of hostilities between the Tamil Tigers and the Sri Lankan Army.

5 From the mid-1980s the Tamil Tigers built up its own network of freighters. In general they were crewed by Tamils from Velvettiturai. For 95 per cent of the time these vessels transported legitimate commercial goods but during the remainder they also carried explosives, arms and ammunitions from a number of countries in Asia to areas of the Tamil Tigers' operations in Sri Lanka where they were offloaded and transferred to jungle bases. The Tamil Tigers had established a cell in Trang, a coastal town in Thailand, later shifting it north to Phuket.

6 The respondent said that in June 1992 he was contacted by an employment agent about an opportunity to work as Chief Engineer on a vessel owned by a Thai company. He was not told its name. He travelled to Trang where he met the ship's agent and then to Phuket where, on 5 July 1992, he boarded the Yahata, a cargo vessel with a total crew of nine. For the next six months the vessel worked routes in South Asia travelling to ports in Thailand and Singapore. The respondent told the Authority that he did not know the nature of the cargo during these voyages. He said he had little interaction with other crew members and knew nothing about them other than that most came from Velvettiturai, which is a fishing port and at that time a centre of commercial and maritime contacts for the Tamil Tigers. He also said he did not know that, as is established to have been the case, most of the vessel's crew were members of or sympathetic to the Tamil Tigers.

7 On 4 January 1993 the Yahata departed Phuket with the respondent on board. He said he had no knowledge of the cargo, which he had observed comprised packets and barrels when it was loaded from a trawler. During loading 10 extra persons joined the ship. Soon afterwards, the respondent said, he was advised that the Yahata was a Tamil Tigers' ship. He wanted to leave but was told he could not do so until the vessel reached Sri Lanka. He learned that the 10 persons who had boarded were from the Tamil Tigers and that one was Krishnakumar Sathasivam (Kittu) who had been the organisation's second-in-command until being injured during hostilities in Sri Lanka. The respondent acknowledged that at the time he knew who Kittu was.

8 During the Yahata's voyage to Sri Lanka, when the vessel was some 440 nautical miles off Chennai, the Master told the respondent that the vessel had reached its destination. The engines were stopped. The vessel drifted for about 10 hours without displaying its national flag and while displaying “not under command” lights. An Indian coastguard vessel approached and sought to board the Yahata for verification purposes. The Master warned the coastguard that the Yahata was carrying 110 tonnes of explosives and that dire consequences would follow if any attempt were made to board her. The Yahata then tried to flee and was chased for two and a half hours, when the Master agreed to proceed to Chennai. Near that port the Yahata was surrounded by vessels of the Indian navy and dropped its anchors. The respondent said that Kittu informed the crew members that the Indian navy had agreed that they would be repatriated to Sri Lanka. The Indian vessels came under rocket propelled grenade and small arms fire which they returned. The Yahata began burning and its crew jumped into the sea. They were rescued and placed in custody. Kittu and those others who had joined the Yahata for her last voyage remained on board and all died. The ship sank.

9 The respondent and other members of the crew were prosecuted in the Indian courts. In June 1996 the trial Judge acquitted them of all charges. The prosecution appealed to the Supreme Court of India, which, in March 1997, held that: 5

[T]he accused had used criminal force against the Indian Naval Officers while they were performing their duty and that was done with an intention to prevent or deter them from discharging their duty. They are, therefore, held guilty of having committed the offence punishable under Section 353 IPC [IndianPenal Code] read with Section 34 IPC.

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