REFUGEE REVIEW TRIBUNAL
DECISION AND REASONS FOR DECISION
RRT Reference: N96/12101
Date of decision: 25 November 1996
Place: Sydney
Decision: The Tribunal sets aside the decision not to grant a protection visa.
Catchwords: Membership of a particular social group; Imputed Political Opinion; Race; Credibility
In accordance with s.431 of the Migration Act 1958 (Cth), (as amended), the published version of this decision was prepared under the direction of the Deputy Registrar and does not contain any statement which may identify the Applicant or any relative or other dependant of the Applicant.
DECISION UNDER REVIEW
This matter concerns a decision made by a delegate of the Minister for Immigration and Ethnic Affairs (the Minister), in effect, to refuse to grant the Applicant Australia's protection as a refugee, as provided for under the Migration Act 1958 (the Act).
The Applicant sought refugee status by an application for a protection visa lodged with the Department of Immigration and Ethnic Affairs (the Department). The application for a protection visa was refused by a decision of the Minister's delegate and communicated to the Applicant by a letter of the same date. The Applicant lodged an application for review of this decision with the Tribunal.
The Tribunal is satisfied that the application for review has been validly made, and that the Tribunal has jurisdiction to review the decision.
In his primary and review applications for the protection visa, the Applicant was represented by a solicitor. At the Tribunal hearing, the Applicant was represented.
LEGISLATIVE FRAMEWORK
It is a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: Clause 866.221 of Schedule 2 of the Regulations.
'Refugees Convention' is defined by Clause 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.
Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended defines a refugee as any person who:
'owing to 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.'
THE REFUGEES CONVENTION
To come within the Convention definition of a refugee, an applicant must first be outside his or her country of nationality. Second, the applicant must have a well-founded fear of being persecuted. Third, the persecution feared must be for one of the five Convention reasons - 'race, religion, nationality, membership of a particular social group or political opinion'. Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country.
WELL-FOUNDED FEAR
As to whether a fear is a well-founded fear, the Tribunal notes that the test adopted by Australian courts, is whether there is a real, as opposed to remote, chance of persecution. For example, in Chan Yee Kin -v- MIEA (1989)169 CLR 379, (Chan's Case) Toohey J. stated, at page 407,
'The test..."a real chance" gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution, but, equally, it discounts what is remote or insubstantial.' (See also Mason CJ at page 389; Dawson J at page 398 and McHugh J at page 429).
Whether an applicant satisfies the Convention definition is to be determined upon the facts as they exist at the date when a determination is made (see Chan's case at 386-7, 398-9, 405-6, 408, 414-5 and 432 and in relation to the reasonably foreseeable future' (Mok Gek Bouy v MILGEA [1993] FCA 545; (1993) 47 FCR 1 at 66, approved by High Court in Wu's case at 497).. See also MILGEA v Mok Gek Bouy (1995) 127 ALR 223 at 250). However the circumstances in which an applicant left his or her country remain relevant and these are ordinarily the starting point in ascertaining the applicant's present status. Therefore, if an applicant has established that at the time of departure he or she satisfied the Convention definition of a refugee, the absence of any substantial change in circumstances will point to a continuation of his or her original status (Chan's case per Dawson J at 399; see also Mason CJ at 391).
PERSECUTION
The term 'persecution' is not defined by the Convention, but not every threat of harm or interference with a person's rights for a Convention reason constitutes 'being persecuted'. Mason CJ held that persecution necessarily involves 'some serious punishment or penalty or some significant detriment or disadvantage' (Chan's case at 388). It may be less than a threat to life or freedom and may include, in appropriate cases, serious violations of human rights (Dawson J at 399-400) and 'measures "in disregard" of human dignity' (McHugh J at 430).
'Persecution' involves 'selective harassment' whether 'directed against a person as an individual' or 'because he or she is a member of a group which is the subject of systematic harassment', although the applicant need not be the victim of a series of acts since a single act of oppression may suffice. 'As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention' (Chan's case per McHugh J at 429-430; see also Mason CJ at 388).
Because persecution involves systematic conduct aimed at an individual or at a group of people, 'it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances' (Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, Wilcox J, 28 July 1987, at 13). However, 'where a community is being systematically harassed to such a degree that the word persecution is apt', then an individual member of that community may have a well-founded fear of persecution (at 13).
The threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution (see Chan's case per McHugh J at 430).
PARTICULAR SOCIAL GROUP
For a person to be a member of a 'particular social group', he or she must be identified with a recognisable group in a society that shares 'some interest or experience in common' (Morato v Minister for Immigration Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401 per Lockhart J at 416). Examples include 'the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies' (per Lockhart J at 416). Further, the group must be sufficiently recognisable as to have something that may sensibly be identified as membership; and the fear of persecution must be 'for reasons of membership of a particular social group (per Black CJ at 404-5).
The Full Federal Court adopted the principles established in Morato's case in Ram v MIEA & Anor, [1995] FCA 1333; (1995) 130 ALR 314. In Ram's case, Burchett J said (at 318) that
'When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.'
BACKGROUND
The Applicant is from Liberia. He arrived in Australia in the 90s. He presented a false passport on his arrival in Australia, and from the date of his arrival to the date of this decision, was held in detention by the Department.
The record of interview at folios 22 to 24 of the Departmental file No. 96/002250, at the airport, states that the Applicant said that he belonged to 'Chastelo group' and could not return to Liberia because he was accused by this group of not keeping secrets. It is apparent from the hearing that the group written by the interviewer as 'Chastelo' group, is the Charles Taylor, NPFL, group in Liberia. The Applicant said that he went to his cousin's place after escaping from the group, and his cousin helped him to go to Sierra Leone in the night. He said that his two brothers were left in the Charles Taylor's group prison camp. He said that the person who harboured him in Sierra Leone was also giving shelter to 15 others. He said that a friend had introduced him to a man who organised for him and five others to get on a ship to Malaysia; from Malaysia, he and four others boarded a plane for Australia on a false passport; four others who boarded the plane with him continued on to Melbourne.
In his primary application, the Applicant stated that he was 'Mandingo', and a Christian. He stated that he attended primary school in Liberia and was self-employed.
In a statement the Applicant said,
'[Section deleted]
My first memory of the civil war was fighting I heard was taking place in Monrovia in about 1989. There are a number of parties involved in the fighting, among them a group led by Prince Johnson, the national Patriotic Front of Liberia (NPFL) led by Charles Taylor, and a party called ULIMO. They were fighting primarily amongst themselves and also against the government troops. Around this time peacekeeping forces from neighbouring African countries arrived in Liberia but had little effect on the fighting.
The first time the war came to my village was in about [deleted] when Charles Taylor's group, the NPLF, came to [my village]. They said they had heard that a lot of people from the Prince Johnson group were hiding in the village and they came to find and kill them. They found about 40 people living in [my village] who we knew to be members or supporters of Prince Johnson. It was early in the morning, around 4.00 am, and these 40 or so men were taken from their houses and shot, without having had a chance to escape. The rest of the village watched on and some of the younger men, including myself and my brother, decided that we had to try and get away. We had heard that Charles Taylor was forcibly recruiting young men into his "army" and we knew we would be prime targets. These young men are trained to kill and I did not want to be put in the position where I would have to kill someone or be killed. If you refused to take part, then of course the NPLF would have no need for you and you would be killed.
My brother and I ...were intercepted before we could get away...
Another 10 or so young men from our village were also recruited and all of us were taken by truck to their training camp which was in [deleted]...The camp itself was just a large open space with a number of shelters and I believe there were about 400 men there. Charles Taylor also had a house in the camp although this was some way from where we were to live. Although there were no fences the camp was heavily guarded by NPLF forces who all carried guns.
[Section deleted]
About six weeks after I arrived I was told that soon I would be sent on a "riot" which is what Charles Taylor called the occasions when he would go out to fight Prince Johnson forces, which at that time were his most bitter enemies...I took part in about 6 of these riots and although I did not wish to kill anybody I knew either I had to shoot them or I would be shot. However, I always avoided shooting anyone in the head or chest because I knew that would mean instant death for them, instead aiming only at their legs or arms...
[Section deleted] After about three months in the camp I was accused by a member of the group of trying to [assassinate] Charles Taylor, which was totally untrue. However, as the accusation had been made I was now to be locked up in one of the many guard rooms around the camp until a "hearing" of the charge could be arranged. I was locked into a guard room with about 8 other men...
On about the fifth day of my imprisonment one of the eight men died. We told the guards and eventually it was decided that four of us would be made to dig a grave for this man and bury him...Because the body had started to smell the guards who had accompanied us to the grave site stood some way from us. When the guards turned away we all took the opportunity to escape...
We ran for a little while until we came to a road...We walked for probably a few hours and then managed to flag down a truck. The driver told us he was going across into Sierra Leone and ...just before we came to the border we got out of the truck and crossed into Sierra Leone...
I did not return to my home for fear of being detected by Charles Taylor troops. As an escapee I would be treated as a traitor. I could not go anywhere else in Liberia because everyone was now terrified of aligning themselves with any of the groups and to take me in, as a person who had fought for Charles Taylor and then escaped, would put them at risk from both Charles Taylor and all the other groups involved in the fighting.
My father had a good friend in Sierra Leone called [name deleted]...
When I arrived there I found my brother [name deleted] had also made it to the [friend]'s home. He told me that he had been out on a "riot" and managed to escape whilst the fighting was going on. The [friend] ...had a friend who worked on a ship and he thought this friend might be able to arrange our passage to somewhere away from Liberia...
Early one evening in [month deleted] the [friend] told us that he had arranged for us to leave that night [deleted]...
When the boat reached [deleted] it was early evening in about [deleted]...After leaving the ship ...[we were directed] to a church ... called the [deleted] ... They took us in and allowed us to stay for 2 months during which time they supported us as we had no money and no job. Some time after I arrived I met a Liberian man who introduced me to a (sic) [man]. [He] gave me a job [deleted]...[Section deleted]...
I had met a [deleted] man who I became very friendly with. He told me that I would not be able to stay permanently in South Africa and that I should go elsewhere to claim asylum. He told me that he could organise a [deleted] passport and an Australian visa for me...[I came to Australia]...
When I arrived at Sydney airport I was escorted back to the plane I had alighted and asked where I had been sitting. I directed the officers to my seat where they found the ticket I had travelled on. I denied this was my ticket and told them that I had travelled by ship from Sierra Leone to Malaysia where I had boarded the flight. The reason I told them this was because I was frightened that if I admitted to having been in [deleted] they would send me back there...
If I returned to Liberia I am certain it would mean my death. Should I come to the attention of the NPLF I would be executed as a deserter. Charles Taylor has informers all over Liberia and the only place I could return to would be my home region because I have no way of supporting myself in any other region. At least in my village I have some land which I could farm. Even if I was not recognised by people aligned to Charles Taylor I would be forcibly recruited by the NPLF. '
At the Departmental interview, the Applicant said that the forces he fought against when he was in the Charles Taylor group were those loyal to Samuel Doe, a former president of Liberia. The Applicant's adviser wrote that the Applicant had told his adviser that 'he was unable to think clearly' when interviewed, because two weeks earlier, he was accused of helping another detainee escape and consequently, he had been transferred to 'stage 1' in the detention centre, where he was unable to sleep, and was disturbed by what he saw as a false accusation.
In the decision, the Minister's delegate considered the ID card submitted by the Applicant to be 'not genuine', and found that 'Significant discrepancies were identified at the interview which raised serious doubts as to whether the applicant was in fact a Mandingo, and as to whether he spent his formative years in Liberia'. However, the delegate found that the Applicant's country of former habitual residence was Liberia. The delegate found that he was 'unable to accept the applicant's claims on the basis that they are not credible'. He made this finding because: the Applicant submitted a false ID card; the Applicant's evidence as to when he left school was inconsistent; the Applicant could not display even a basic knowledge about Mandingos in Liberia (he did not know what proportion of the population in Liberia were Mandingos, he did not know where Mandingos are found in Liberia, and he did not know the majority religion of Mandingos); he varied in his evidence as to when the Charles Taylor group came to his village; he said in his statement that the group came to his village to kill supporters of Prince Johnson, but in his interview, he said the group came to kill supporters of Samuel Doe; the Applicant varied in his evidence as to when he was accused of plotting against Charles Taylor (in his statement, he said this occurred after about three months in the training camp, whereas at the interview, he said this occurred after he had been in the camp three weeks, then he said it occurred after two months); and the Applicant's account of his training in the group was 'vague and unconvincing'.
THE EVIDENCE GIVEN AT THE TRIBUNAL HEARING
The Applicant came to the hearing with his adviser. He gave evidence without an interpreter.
The Applicant said that his family are around the world. As well, he has a wife and a child in Liberia. The only member of his family with whom he is in contact is his brother; he had telephone contact with him about three weeks ago. The Applicant's adviser submitted to the Tribunal documents which read as follow:
- A letter confirming the Applicant's brother's gaining of refugee status in another country
- A paper stating that the Applicant's brother had been granted temporary residence in a foreign country
The Applicant gave evidence generally consistent with his statement as to his background, his family, his capture and training by Charles Taylor's group, the accusation of planning to kill Charles Taylor, his escape from the camp and from Liberia, and his experiences in the other country. He added further detail as follows.
[Section deleted]
The Tribunal asked how it was that if the Applicant's family lived in a small village, relatives moved to other countries. The Applicant said that these relatives had had the advantage of living in Monrovia and obtaining some secondary schooling there. The Applicant and his brother were brought up in their village and so did not 'have luck'.
After the death of his father, the Applicant married a woman who was a Christian and became a Christian. His mother was a 'pagan' and his father and paternal uncles were Muslim. After the Applicant became a Christian, his paternal uncles said that he was 'different now' to the family and he lost contact with them.
The Applicant said that before the Charles Taylor group came to his village, his wife and children went to his wife's parents' village. He has lost contact with them; when he asked someone to see if his wife and child were alright, the person reported back that the Applicant's in-laws' house was empty.
The Applicant said that when he was forced to become a member of the NPFL, he went on 'riots' about six times. He said that about 40-50 people would go on these riots; the others shot a lot of people but the Applicant did not want to hurt anyone. he knew that if he did not shoot, he might himself be shot, so when he did shoot, he aimed for the legs or hands, so as not to kill anyone.
He said that after he escaped from the camp, and when he and his brother arrived in the other country, and were advised to apply for a permit to stay in that country on refugee grounds. He said that the reason he left that country was that he had started a relationship with a girl, who became pregnant and said that he was the father of the child. He had doubts as to whether he was the father because his girlfriend had another friend who his girlfriend had spent the night with after her relationship with the Applicant started. The Applicant was told by his brother that he should give the girl the benefit of the doubt and look after her, and the Applicant did so. However, the Applicant dreamt of his wife and child in Liberia, and also he was a Christian, so he felt disturbed at living with his girlfriend, while not knowing what had happened to his wife and child and doubting whether the child by his girlfriend was his. His girlfriend's former lover whom the Applicant had met while visiting his girlfriend, had told others that if he caught the Applicant, he would kill him. Therefore, the Applicant decided to leave the country and he paid for this with his own money and money given to him by his brother.
The Tribunal asked the Applicant about the discrepancies noted by the Minister's delegate in the decision. The Applicant said that at the time of the interview, he was very distressed at the false accusation against him that he had helped a detainee escape from Villawood Immigration Detention Centre. As well, he was not very good with dates; sometimes he forgot his own birthday. His adviser said that she had noted that when she was taking the statement from the Applicant, he was distressed by the accusations that he had helped another inmate escape detention; the statement had taken five days of interview to prepare.
The Tribunal discussed with the Applicant the issue of relocation within Liberia, should he return. The Tribunal noted that the Applicant had spent time in Monrovia and had been able to support himself in the other country and so, it appeared to the Tribunal, would not have to return to his village in Liberia in order to keep himself. The Applicant agreed, but stated that Charles Taylor would seek him out because he had been accused of planning to kill him. Moreover, he had no contacts left in Monrovia. He said that Charles Taylor would find him wherever he was in Liberia. The Applicant said that the only reason he avoided being killed was that he had managed to escape before Charles Taylor returned to the training camp. He said that Charles Taylor had sent a message in the first time to put the Applicant in prison, and when a person was accused of attempting to harm Charles Taylor, Charles Taylor did not ask questions, he just shot the person. The Tribunal noted that the Applicant was only one of many conscripted by Charles Taylor, had only been in the group for three months, and there did not appear to be a real chance that the Applicant was of importance enough to incur seeking out by Charles Taylor. The Applicant that when each person was recruited, as they entered the camp, each new recruit had his photograph taken.
The Tribunal noted that since the Applicant had entered and left Sierra Leone illegally, and had stayed there for only a short period, there was no issue of Sierra Leone being a country of former habitual residence. However, it appeared that the Applicant had stayed in another country for a substantial period, had been granted asylum there. The Applicant's brother had also been granted the right to stay in that country on refugee grounds; the Applicant's brother remains there, and the Applicant said that his brother was not experiencing any particular problems there. The applicant's solicitor said that she believed that the asylum was only temporary and did not give the full rights of a national to the Applicant; however, she would make submissions on this, and on the issue of the reasonableness of relocation, in a week. The solicitor made the following submissions:
'We have been unable to locate anything particular to [the Applicant] in regards to his status in [the other country]. The [deleted] High Commission state that generally it can be said that the holder of a Temporary Permit is in the process of undergoing determination which may result in permanent residence. The information originally provided by the [deleted] High Commission was that the status of a person in [the Applicant]'s position was temporary only and permanent residence was subject to the lodgement of a successful residence application. We were advised that in all the circumstances of [the Applicant]'s case, including his departure from [the other country] on a false passport, it would be unlikely that any application for permanent residence would be successful...
[We] would submit that if his status is that of a temporary resident then he is clearly not excluded from protection by the operation of Article 1E. [The adviser then quoted Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191 and RRT decision V95/03273 of 10 August 1995]...
If [the Applicant]'s status in [the other country] is that of a temporary resident he could not be said to have the same rights and obligations as a [deleted] national and as a concomitant of that nor does he have the effective protection of that State...
The applicant fears that should he be returned to Liberia he would be located by Charles Taylor and the National Patriotic Front of Liberia (NPFL) and detained or executed for the following reasons: (a) the allegation of attempting to [kill] Charles Taylor; (b) escaping from detention which the applicant believes may be interpreted by the NPFL as a (sic) indication that he was guilty of the act of which he was accused. Alternatively, he believes he may be asked to rejoin the NPFL as a sign of his loyalty and any refusal to do so, particularly in the light of his history, would result in an imputation of an unfavourable political opinion of the NPFL, which would ultimately lead to his death...a rejection of the NPFL would be seen by that group as an acceptance of the politics of the predominantly Mandingo ULIMO-K...
The Tribunal expressed concern at the reasonableness of the applicant's fear of being targeted by the NPFL should he be returned to Liberia. We would draw the Tribunal's attention to the ongoing nature of the conflict in Liberia and also to the past persecution of the applicant...
[The Applicant] was forcibly recruited into Charles Taylor's Forces...We would submit that this is persecution for a Convention reason, namely, membership of a particular social group being young males of fighting age and/or imputation of political opinion...
Amnesty International 1995 reports that the NPFL were said to have executed as many as 80 of its own fighters, without any trial, and to have tortured and killed an (sic) NPFL commander for leading a mutiny against Charles Taylor (p.197). The US Department of State Country Report for 1995 reports "... The NPFL committed repeated arbitrary detentions in its territory where martial law has been in effect since the war began. NPFL fighters had almost unbridled power to make warrantless arrests. They exercised that power often and capriciously, detaining persons on spurious grounds or without charge for periods ranging from several hours to several weeks"...
Whilst noting the recent signing of another peace agreement, the history of these agreements and the seeming inability to truly work towards a peaceful resolution of the civil war do not bode well for Liberia. The most recent violation of the cease-fire agreement signed originally in August 1995 and amended in August 1996 occurred on 29 September...
Although relative peace may exist in and around Monrovia and other isolated areas, the transitory nature of peace in Liberia and the history of failed peace agreements must indicate that the applicant's safety cannot be guaranteed...
In the present case we submit that the applicant was clearly a refugee at the time of his departure from Liberia...
[It] is submitted that there has been adduced no compelling evidence of substantial change in Liberia which would ensure the security of the applicant in any part of Liberia in the immediately foreseeable future, were he to be returned...
The volatility of the country and the transitory nature of the many peace agreements must indicate that the applicant may be at risk if returned to Liberia...
[As to internal flight, we] submit first that, given the current state of Liberia which is essentially in a state of civil war, it would be incorrect to conclude that there are areas within that country where [the Applicant] could seek refuge and protection...Secondly, it would be unreasonable in all the circumstances for him to be expected to live in Monrovia, as suggested by the tribunal. He has lived his entire life, with the exception of the first four years, in a village of some six families. He made his living and supported his family as a farmer and although he has some training in [deleted] believes it would be impossible, as an unsophisticated and illiterate man, to earn a living in a large city which would support him and his family (if he can locate them). He sees his only skills as being that of a farmer. He has no contacts in any of the larger cities where some level of protection and obscurity may be available and has visited Monrovia on only two occasions that he can recall.
The Position paper [UNHCR Position Paper on Internal Flight December 1990) ...states,
"...internal flight should not be considered a protection option equivalent in viability to international refuge, particularly in the case of small countries suffering internal armed conflict" (p.5)...
[The adviser then referred to RRT decisions V95/03789 of 2 July 1996 and V95/03758 which refer to the conflict in Liberia being primarily ethnic based]...
In addition to the above, it is possible that the applicant would be at risk from members of the ULIMO-K faction, dominated by Kahn, because he is Mandingo.'
The adviser enclosed the following three documents: a paper from the US Agency for International Development dated 30 September 1996 which inter alia stated that,
'After six years of war, the leaders of the main warring factions signed a thirteenth peace agreement on August 19, 1995, in Abuja, Nigeria, known as the Abuja Peace Accord. On April 16, 1996, the cease-fire negotiated at Abuja was broken when fighting erupted in Monrovia between the NPFL and the ULIMO/Krahn. During April and May, the warring factions looted and destroyed major sections of the capital city...On August 17, an amended implementation schedule for the Abuja Peace Accord, which calls for a cease-fire and sets out a new schedule for disarmament, demobilization, and elections, was signed...
Although Monrovia remains calm, skirmishes continued in June, July and August between the ULIMO/Mandingo and ULIMO/Krahn factions in Bomi and Cape Mount counties and between the LPC and the NPFL in Grand Gedeh and Sinoe counties in the south east...
During April and May, the warring factions looted about 75% of Monrovia, including private homes, shops, churches, schools and, government buildings, and the offices of the UN agencies and NGOs. The ...airport terminal and control tower were burned ...Telecommunications services, electricity, and water were all affected by the crisis. All schools in Monrovia were suspended and have not yet re-opened.'
A document from The Africa Church Information Service, Kenya, All Africa Press Service, dated 21 October 1996, which stated,
'More than 40 people have been killed in fighting between rival groups of ...ULIMO ...
The fighting in the western Bomi and Grand Cape Mount counties, in which scores of people have been wounded, has threatened to the fragile peace process, once again dashing the hopes of war-weary Liberians.
The clashes intensified on September 29 in Sinje, 75 kilometres [from Monrovia], and came after the latest pact signed in August to end Liberia's civil war, which began in December 1989.'
United Nations paper dated 9 October 1996 'Liberia: Civilian suffering continues, Liberian Leader tells UN', states,
'Ruth Perry, chairman of State of the national Transitional Government of Liberia, said...after several failed peace agreements, ECOWAS had convened a meeting in Abuja, Nigeria in August 1995. At that meeting, a decision was taken for the first time to include the leaders of the three major warring factions in a six-man Council of State. Accordingly, a cease-fire was implemented and Monrovia was maintained as a safe haven. The members of the Council of State were inducted into office in September of 1995.
In April of this year, however, fighting had resumed and dealt another set-back to the peace process...[she said that fair and free elections would be held by May 1997]'.
A further letter from the Applicant's adviser states that the High Commission had confirmed that the Applicant could return to the other country, but the attachment from the High Commission states that his 'application for asylum is pending'.
FINDINGS
In summary, the Tribunal finds that the Applicant is a refugee within the terms of the definition set out in the Convention and Protocol.
THE APPLICANT'S CLAIMS
The Applicant claimed that he was a Mandingo. He claimed that Charles Taylor's group, the NPFL, had come to his village and, after killing some men in the village accused of supporting a rival (Prince Johnson's) group, forced the Applicant and his brother to join the NPFL. The Applicant claimed that he and his brother were taken by the NPFL to a training camp and trained as members of the group. He was taken by the NPFL on about six 'riots', but he aimed for legs and hands in order to avoid killing anyone. After he had been in the training camp several months, he and others were accused of a plot to kill Charles Taylor. While in detention, for his alleged plotting to kill Charles Taylor, awaiting Charles Taylor's return to the camp, the Applicant and other prisoners managed to escape. He stayed with a family friend in Sierra Leone; while there, he met up with his brother, who had also escaped from the NPFL, and they escaped to another country. They were given temporary refuge in that country and his brother remains there. Due to a personal situation (his girlfriend's former lover threatened the Applicant), the Applicant left the country on a false passport and came to Australia.
CREDIBILITY OF THE APPLICANT'S CLAIMS
In the decision, the delegate rejected the Applicant's claims as lacking credibility. His grounds for this included: his conclusion that the Applicant's Liberian identity card was false; the Applicant's lack of knowledge as to details of the religion, location and proportion of Mandingos in Liberia; the Applicant's conflicting - with his statement - evidence at his Departmental interview as to the groups the Charles Taylor group was in conflict with; some dates given by the Applicant at his Departmental interview conflicted with those given in his statement; and the delegate's perception of the Applicant's evidence as to his military training at the Departmental interview as 'vague and unconvincing'.
In the letter, the Applicant's adviser said that she had been instructed by her client that on the day of the Departmental interview, he was distressed at and had lost sleep over, his having been implicated in, and put in a different section of the detention centre for, a break-out by a fellow detainee. At the hearing, the Applicant re-iterated this explanation.
When asked by the Tribunal why there were some differences as to the dates he had given in the hearing to those previously given, the Applicant said (as he had said at the Departmental hearing) that he was not very good with dates. The Tribunal has considered the Applicant's explanations for the perceived inadequacy and inconsistencies of his evidence to the Department.
The Tribunal notes the UNHCR Handbook paragraph 199 comments on inconsistencies are, inter alia, as follows:
'..it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.'
The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, (the UNHCR Handbook), though not binding on the Tribunal, is useful as a guide: Chan's Case, per Mason CJ, at page 392.
The Tribunal is mindful also of the remarks of Hathaway on the issue of inconsistencies Hathaway, op cit, at page 85-86); he states,
'A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true.'
Also, the Tribunal notes that a finding that part of the evidence has been fabricated or is exaggerated, while it may reflect on the Applicant's general credibility, does not necessarily lead to the rejection of the whole of an applicant's evidence. On this point, the Tribunal notes, and follows, Guo Wei Rong v Minister for Immigration and Ethnic Affairs & Anor, unreported, Full Federal Court, Beaumont, Einfeld and Foster JJ, No 370 of 1995, 26 February 1996, in which Foster J stated, at pages 17-18,
'It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony....in cases where only a real possibility needs to be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted'
As to the Applicant's claims, the Tribunal's view is that it is not implausible that a person from a very small village in Liberia, with very limited contact with the outside world and limited schooling, might not know details as to the religion and such matters of others of his Mandingo tribe in Liberia. In any case, the Tribunal notes the evidence below as to the difficulties of differentiating between tribes in Liberia and notes that the Applicant's evidence as to his own family's religion and existence is consistent with the country information below as to religion and spread of Mandingos: The Peoples of Africa, An Ethnohistorical Dictionary, Greenwood Press, 1996, at pages 366- 367, states that most Mandingos are Muslims (as are the Applicant's uncles), although there are sizable Christian (as is the Applicant) and animist minorities (as were the Applicant's parents), who live in small, compact villages (as did the Applicant's family), composed of homes with mud walls and thatched roofs; Liberia - Events Since 1990, prepared by the Resource Information Center (RIC) of the United States Immigration and Naturalization Service (INS), 1994, at pages 51-52), states that, the Mandingos constitute most of the business/merchant class in Liberia.
The Tribunal's view is that it is not implausible that such a person (from a very small village in Liberia, with very limited contact with the outside world and limited schooling) might not be 'calendar-driven', and therefore might not be very accurate on dates of events; the Tribunal notes indeed, that the Applicant said at the hearing that he sometimes had forgotten his own birthday. Also, in the Tribunal's view, it is not implausible that a person who had experienced a war-torn country, separation from his wife and child, compulsory conscription, detention under threat of death in a terrorist group, and several major moves (from Liberia, from Sierra Leone, and from another country) might not be centred on the need for accuracy, even in an important interview, such as the Departmental interview, when he was confused at being (in his eyes) wrongly accused of helping another escape the detention centre and was lacking sleep.
As well, the Tribunal has had the benefit of material, additional to that available to the delegate, as to Liberian identity cards (see below), and having sighted the Applicant's identity card at the hearing; after considering the evidence, the Tribunal concludes that the identity card is genuine. Further, the Tribunal has had the benefit, which the delegate did not, of sighting at the hearing the documents given by the foreign government, in relation to refugee asylum, to the Applicant's brother supporting the Applicant's claims as to his being Liberian nationality, escaping with his brother to the other country, and their being accorded recognition of their refugee status, and temporary asylum in that country for that reason.
The Tribunal appreciates that the delegate did not lightly address the matter of the Applicant's credibility. Nevertheless, the Tribunal, having considered the totality of the Applicant's evidence, and his delivery of his evidence at the Tribunal hearing, accepts his evidence as credible.
THE COUNTRY INFORMATION
The Tribunal has considered the Applicant's evidence (and his adviser's enclosures in the letter), and the information below as to the Applicant's claims:
(i) The political situation in Liberia
(a) History of Liberia
* 'Update/Alert', Washington Office on Africa (a non-profit church, trade union and civil rights group supported organization that works with Congress on Africa-related legislation, which is affiliated with the Africa Policy Information Center), Washington, July 1996, states,
'Liberia was founded in the early 19th century by African Americans who returned to Africa as settlers. Their descendants, known as Americo-Liberians, dominated the country's government for more than 150 years. Ties with the United States were close, with continuing high levels of aid and investment. In the 1960s and 1970s, Liberia received the highest per capita level of U.S. aid of any country on the African continent. In 1980 the settler-dominated government was overthrown. Many Liberians hoped for reform and a shift of power to the indigenous 95% of the population. But military leader Samuel Doe bypassed grassroots opposition groups and ran a military dictatorship, favoring his own small ethnic group. The United States provided massive support for the Doe regime in the 1980s...At the time Liberia was a key staging post for a large-scale covert U.S. operation against Libya's Muammar Qaddafi. Washington continued its support for Doe despite documented human rights violations and a 1985 election widely seen to be marked by fraud and repression. In late 1989 insurgents led by Charles Taylor crossed into Liberia from the Ivory Coast, beginning a war against the Doe regime.'
(b) The political situation in Liberia 1989-1994
* Resource Information Center of the Immigration & Naturalization Service, 'Liberia - Events since 1990', prepared in November 1993, at page 47, stated that
'[After the insurgence in December 1989] many Liberians were glad to see Doe's repressive regime removed, [but] no group that emerged from the civil war was powerful enough to replace the Doe government. As result, the Republic of Liberia was plunged into a state of chaos from which it has yet to emerge.
In the meantime, Liberia has effectively ceased to exist as a nation.'
* Political Handbook of the World 1994-1995, edited by Arthur S Banks, CSA Publications, New York, at page 513 states that following the collapse of the Doe administration in 1980, the National Assembly established by the 1984 constitution was nominally superseded by interim bodies established by the Sawyer and Taylor regimes. Subsequently, in accordance with the 1993 Cotonou Agreement, a 35 member Transitional Legislative Assembly (LNTG) was inaugurated in 1994.
* 'Liberia Human Rights Practices, 1995', U.S. Department of State, published March 1996, states,
'The war has taken a horrendous toll on civilians. Of a prewar population of 2.8 million, 150,000 people have been killed, 750,000 have fled the country, and 1.2 million are internally displaced. The media, eyewitnesses, human rights monitoring groups, and international observers all reported flagrant disregard for human rights by the 40,000 to 60,000 fighters in the major factions. The factions looted and burned villages; used excessive force; engaged in arbitrary detentions and impressment, particularly of children under the age of 18; employed forced labor; committed torture, individual and gang rape, summary executions, mutilations, and cannibalism.'
* 'Update/Alert', Washington Office on Africa (a non-profit church, trade union and civil rights group supported organization that works with Congress on Africa-related legislation, which is affiliated with the Africa Policy Information Center), Washington, July 1996, states,
'[The insurgence in late 1989 led by Charles Taylor] led to high levels of atrocities against civilians by Taylor's forces, the remnants of Doe's army, and as many as five other armed factions. Doe himself was killed by another rebel leader in September 1990. Washington provided humanitarian aid - more than $425 million from 1990 through mid-1995.'
(c) Liberia in 1995
* 'Liberia Human Rights Practices, 1995', U.S. Department of State, published March 1996, states,
'Although the first 8 months of 1995 saw a continuation of civil war, a new peace accord signed in Abuja, Nigeria on August 19 offered some hope that the 6-year conflict would end. The factions signing the Abuja Accord included: the National Patriotic Front of Liberia (NPFL), two ethnic subfactions--Krahn and Mandingo--of the United Liberation Movement for Democracy in Liberia (ULIMO), and a coalition of anti-NPFL forces comprised of the Liberia Peace Council (LPC), the Lofa Defense Force, and a breakaway-NPFL group called the Central Revolutionary Council. A cease-fire agreed to in the new accord went into effect August 26, and a new Liberian National Transitional Government (LNTG-II, the successor to the LNTG-I) was inaugurated on September 1. A six- person Council of State--three members representing the warring factions and three representing civilians--began filling government positions in September.
Under the Abuja Accord timetable, the Economic Community of West African States Cease-Fire Monitoring Group (ECOMOG) and the U.N. Observer Mission in Liberia (UNOMIL) were to deploy into areas previously controlled by the factions, starting in October. ECOMOG's deployment was delayed, however, due to logistical problems. ECOMOG did begin further deployment in December but temporarily halted this process when its troops were attacked by rebels near Tubmanburg, Bomi county, at the end of the year.
The Armed Forces of Liberia (AFL) remained largely inactive, although they did man checkpoints near the Schiefflin Camp on the Monrovia- Buchanan highway. The AFL as an institution was not identified with human rights abuses, but many AFL soldiers were recruited into the LPC.
The Liberian National Police (LNP), which reports to the Ministry of Justice, together with the National Security Agency (NSA) and the Special Security Services (reporting directly to the LNTG) also have responsibility for internal security, but they lacked the resources and training to function effectively. In the spring, the LNP established a special operations department, composed of a task force and rapid response unit to combat soaring crime in Monrovia. While civilian authorities generally maintained control of these groups, there were instances in which individual members acted independently of governmental authority and committed human rights abuses.
ECOMOG was the key military force supporting the LNTG-II, as for all previous interim governments. At the end of 1995 ECOMOG was composed of approximately 7,200 troops from six West African countries; over half were Nigerian. ECOMOG is supported primarily by nations who have contributed troops. ECOMOG has in effect acted as the interim governments' security force.
The economy, ravaged by civil war, remained in severe disarray. Prior to 1990 it was based primarily on iron ore, rubber, timber, diamond, and gold exports. Eighty to 90 percent unemployment, massive displacements of civilians, and wanton destruction and looting devastated productive capacity, despite the country's rich natural resource endowments and potential self-sufficiency in agriculture. Gross domestic product was estimated to be less than one-fifth of its prewar level...
Continued fighting and attacks on civilians and humanitarian relief conveys prevented regular delivery of humanitarian assistance outside ECOMOG- controlled areas, although sometimes NGO convoys, crossing the borders from Guinea, Cote d'Ivoire, or factional lines within the country, managed to deliver food and medical supplies to needy civilians upcountry.
Because of the war, citizens have not been able to elect a representative government. The judicial system continued to be hampered by inefficiency and corruption. Prison conditions were life threatening. There were some attempts to limit freedom of the press and freedom of association. Violence against women is a longstanding problem. The practice of female genital mutilation persists. No progress was made in resolving outstanding incidents of past human rights abuses.
Although the 1985 Constitution, the Penal Code, and the Labor Code remain in effect, because of the civil war the rights provided for in these documents were largely not protected in practice.'
* Department of Foreign Affairs and Trade (DFAT), Cable LG29535, titled 'Liberia: Political Situation', Source DIEA Country Information Report No. 121/96, 25 January 1996, states
'The six years of fighting and the wholesale destruction of Liberia's infrastructure and productive capacity have devastated the economy and demoralised the population. Liberia had a pre-war population of 2.4 million. Since 1989 some 1.1 million people have been internally displaced while another 800,000 have sought refuge in neighbouring countries. Monrovia's pre-war population of 400,000 has swollen to 1. 2 million. ... Public Utilities are virtually non-existent. A curfew operates from 10pm to 6am each day. ECOMOG, the UNs observer mission ( UNOMIL) and warring factions provide a pervasive military presence. Our interlocutors were concerned that the resumption of fighting around Tubmanburg and Klay increased the risk of renewed destabilisation. While the latest hostilities involved only factions of ULIMO, the situation in other parts of the country was also far from encouraging.
(d) Liberia in 1996
* Amnesty International Report 1996, page 211, states that the Cabinet of the LNTG is answerable to the Council of State, which is composed of the leaders of the NPFL, ULIMO-K and the Liberian Peace Council (LPC) plus three civilians. It controls only the city of Monrovia and a coastal strip to Buchanan, less than 15 per cent of Liberia's territory.
* 'Update/Alert', Washington Office on Africa, Washington, July 1996, states,
'After a resurgence of violence last spring, relative calm has returned to parts of the Liberian capital, Monrovia, over the past two months. The West African peacekeeping force has regained control over the city and armed factions loyal to different warlords have been separated. However, the peace process which collapsed violently in April is not back on track. The humanitarian situation remains desperate...
Washington has pledged an additional $30 million to the West African peacekeeping force, known as ECOMOG, to enable it to maintain minimum levels of stability so that longer-term peace efforts and humanitarian relief can go forward. The U.S. government has also stated strongly that the international community will isolate anyone taking governmental power in Liberia by force. Despite these steps, the current level of international involvement remains insufficient. Without a higher level of engagement by the United States in particular, renewed peace efforts will be vulnerable to violent and repeated collapse. '
* UN Security Council 1996, 'Eighteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia', 22 August 1996, at page 6, states that 'Despite substantial improvement since the restoration of the cease-fire in Monrovia, the security situation in the city remains a cause for concern ... the city is now divided along factional lines ... recent weeks have witnessed a new wave of violence in Monrovia, some of which may have been politically motivated'.
The report stated (at pages 11 and 13) that ECOWAS agreed on a new timetable for implementation of Abuja Agreement, starting with restoration of cease-fire by 31 August 1996 and concluding with holding of free and fair elections on 30 May 1997 and installation of a new government on 15 June 1997, as well as designation of Ruth Perry as new Chairperson of the Council of State.
* Deutsche Presse-Agentur 7 September 1996, 'Key factions unite in Liberia', page 1, reported that two key warring factions, ULIMO-J and ULIMO-K signed a peace agreement in September 1996 and agreed to reunite in the interests of peace in Liberia.
* Agence France Presse, 'Kromah leads voluntary disarmament', 11 September 1996, reported that as a result of the ULIMO-J and ULIMO-K peace agreement, the trunk highway between Monrovia and Tubmanburg was reopened, after having been closed for seven months due to the fighting. As well, on 11 September ULIMO-K took the lead in voluntary disarmament in Voinjama and turned in some 200 pieces of weaponry. Charles Taylor's radio station reported that 500 NPFL fighters have been disarmed and 3000 others demobilised. Another warlord, George Boley, was reported to have made no move yet toward voluntary disarmament.
* Agence France Presse, 'Liberia names new foreign and justice ministers', 16 September 1996, reported on the first cabinet changes since Ruth Perry was inducted as head of the interim government; the Council of State appointed Moni Captan as Foreign Minister and female jurist Gloria Scott as Minister of Justice, adding to two other positions given to the NPFL two weeks previously.
(ii) Liberian identity cards
* UNHCR advice of 4 January 1996 notes that national identity cards are issued by the National Identification Card Division of the Ministry of Finance and a fee is charged. No cards have been issued since 1990, as a result of the civil war.
* German Federal Office for Refugees advice dated 29 March 1994 states that the Department of Finance issues the id cards, which are plasticised small blue documents (analogous with a credit card) bearing the inscription 'Republic of Liberia/Ministry of Finance/National Identification'.
(iii) The Mandingos of Liberia
* Liberia - Events Since 1990, prepared by the Resource Information Center (RIC) of the United States Immigration and Naturalization Service (INS), 1994, at pages 51-52), citing Harold D Nelson's Liberia: A Country Study, indicates that the use of physical, linguistic or social traits to distinguish members of various ethnic/tribal groups is problematic and should be approached with caution; it states that,
'The government of Liberia, in its 1974 census, recognized 16 indigenous ethnic groups, which, along with the Americo-Liberians, the Fande (an ethnic group of Ghanaian origin) and a small number of miscellaneous groups, constitute the population of the Republic of Liberia. These ethnic groups are distinguished by linguistic, rather than physical characteristics, but even the linguistic distinctions have a tendency to be problematic. In the first place, the language actually spoken by a recognized ethnic group of any significant size is far from homogenous, usually consisting instead of at least five or six distinct dialects. Additionally, although most of the recognized ethnic groups do fall into geographical clusters, these areas are not necessarily unified by an common culture, sociology, religion, or political loyalty. Instead, the reality seems to be that the ethnic classifications are a fairly arbitrary system which the old Whig government used to catalogue and organize the indigenous people. Frequently in the creation of the "official" ethnic groups very different groups of people were lumped together under one classification, or fundamentally similar groups were rather capriciously separated into units that had little de facto meaning.'
However, the report continues,
'Nevertheless, the ethnic classifications as a whole are not entirely useless. Some of the divisions have more than a conventional meaning, and there are some informative generalizations that can be made about them ... The Mandingoes (Malinke), the only recognized ethnic group that is geographically dispersed, are also ironically one of the most culturally, linguistically, and religiously unified of the groups. The Mandingoes (Malinke), as stated before, constitute most of the business/merchant class in Liberia.'
* REFInfo Response to Information Request Number LBR20446.E of 21 April 1995, makes a similar argument about the difficulty of profiling ethnic/racial/tribal groups; it states,
'According to Liberia: A Country Study, none of the government defined tribes, including those living in so-called traditional areas, were culturally homogeneous when they were defined, nor have they become more homogeneous over time, (ibid., 94). The source states,
'...the history of all the recognized ethnic categories has been marked by the movement and mingling of communities carrying different cultures, by varying adaptations to local ecological circumstances, and by the differential impact of processes such as urbanization, wage labour, education and other twentieth century phenomena (ibid.).'
* Despite these sources concerns about efforts to distinguish between ethnic/ tribal groups, at least some of the Liberian factions seem to believe they can distinguish one ethnic group from another, particularly on the basis of language. The US Department of State report on Liberia for 1995, March 1996, states that,
'Throughout the civil war, the factions used an individual's language to identify ethnicity and often summarily executed those from groups considered hostile.'
As well, 'Liberia - Events Since 1990', op cit, at page 72, states that in late March 1993 ULIMO executed 30 civilians suspected of being NPFL supporters on the basis of ethnicity.
* Olson, James S, The Peoples of Africa, An Ethnohistorical Dictionary, Greenwood Press, 1996, at pages 366- 367, states that most Mandingoes are Muslims, although there are sizable Christian and animist minorities. They live in small, compact villages, composed of homes with mud walls and thatched roofs. In many West African countries, they have become powerful merchants, civil servants, and religious leaders.
* Kurian, George, Encyclopaedia of the Third World, Vol. 2, .1992, p.1122, states that in Liberia, Mandingoes comprise only 2.9% of the population.
TRIBUNAL'S CONCLUSIONS AS TO THE APPLICANT'S CLAIMS
GENERAL RISK IN LIBERIA
Since the insurgence of the NPFL from the Ivory Coast in 1989, Liberia has been war-torn: 'Update/Alert', Washington Office on Africa, op cit, and 'Liberia - Events since 1990', op cit. Several factions, not just the NPFL, have been at war:'Liberia Human Rights Practices, 1995', U.S. Department of State. In the course of the conflict many lives, mainly civilian, have been lost and there has been massive displacement of people, both within, and fleeing from, Liberia: 'Liberia Human Rights Practices, 1995', U.S. Department of State, published March 1996). There was 'flagrant disregard for human rights by the 40,000 to 60,000 fighters in the major factions' (ibid) and 'high levels of atrocities' ('Update/Alert', Washington Office on Africa, op cit).
There is a peacekeeping force, known as Economic Community of West African States (ECOMOG):'Update/Alert', Washington Office on Africa, Washington, July 1996. At the end of 1995 ECOMOG was composed of approximately 7,200 troops from six West African countries; over half were Nigerian: 'Liberia Human Rights Practices, 1995', U.S. Department of State, op cit. ECOMOG has in effect acted as the interim governments' security force: ibid.
A new Liberian National Transitional Government (LNTG-II, the successor to the LNTG-I) was inaugurated on 1 September 1995: 'Liberia Human Rights Practices, 1995', U.S. Department of State, op cit. At the Abuja meeting in August 1995 which resulted in the latest peace accord, a decision was taken for the first time to include the leaders of the three major warring factions in a six-man Council of State: United Nations paper dated 9 October 1996 'Liberia: Civilian suffering continues, Liberian Leader tells UN'. The Cabinet of the LNTG is answerable to this Council of State, which is composed of the leaders of the NPFL, ULIMO-K and the Liberian Peace Council (LPC) plus three civilians. It controls only the city of Monrovia and a coastal strip to Buchanan, less than 15 per cent of Liberia's territory: Amnesty International Report 1996, page 211.
Many peace accords have been signed, the latest of which was signed at Abuja, Nigeria on 19 August 1996: 'Liberia Human Rights Practices, 1995', U.S. Department of State, op cit; The US Agency for International Development paper, dated 30 September 1996, stated that the Abuja peace accord was the thirteenth peace accord signed. The Abuja peace accord, like those which preceded it, was broken in April 1996 ('Update/Alert', Washington Office on Africa, op cit and United Nations paper dated 9 October 1996 'Liberia: Civilian suffering continues, Liberian Leader tells UN').
The Abuja peace accord was renegotiated, with a new timetable for peace: UN Security Council 1996, 'Eighteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia', op cit. The new timetable for implementation of Abuja Agreement agreed upon by ECOWAS started with restoration of cease-fire by 31 August 1996 and concludes with holding of free and fair elections on 30 May 1997 and installation of a new government on 15 June 1997. As well, there have been some signs of commitment by some warring factions to the peace attempts: Deutsche Presse-Agentur 7 September 1996, 'Key factions unite in Liberia', and Agence France Presse, 'Kromah leads voluntary disarmament', 11 September 1996. However, the prospect of peace in Liberia is by no means certain, given the breaking of the previous number of peace accords broken, the breach of the Abuja accord in April this year, and the fighting that continues in some parts of Liberia (The US Agency for International Development report dated 30 September 1996 stated that, 'skirmishes continued in June, July and August [1996] between the ULIMO/Mandingo and ULIMO/Krahn factions in Bomi and Cape Mount counties and between the LPC and the NPFL in Grand Gedeh and Sinoe counties in the south east.'
As well, the Tribunal notes The Africa Church Information Service, Kenya, All Africa Press Service, 21 October 1996, stated, that there was fighting in western Bomi and Grand Cape counties, and that on 29 September 1996, 'clashes intensified on September 29 in Sinje, 75 kilometres [from Monrovia]'.
Monrovia has remained relatively calm: 'Update/Alert', Washington Office on Africa, Washington, op cit. However, DFAT Cable LG29535, op cit, reported on 25 January 1996, that in Monrovia, 'Public Utilities are virtually non-existent. A curfew operates from 10pm to 6am each day. ECOMOG, the UNs observer mission ( UNOMIL) and warring factions provide a pervasive military presence'. The US Agency for International Development dated 30 September 1996 stated that, 'On April 16, 1996, the cease-fire negotiated at Abuja was broken when fighting erupted in Monrovia between the NPFL and the ULIMO/Krahn. During April and May, the warring factions looted and destroyed major sections of the capital city...During April and May, the warring factions looted about 75% of Monrovia, including private homes, shops, churches, schools and, government buildings, and the offices of the UN agencies and NGOs. The ...airport terminal and control tower were burned ...Telecommunications services, electricity, and water were all affected by the crisis. All schools in Monrovia were suspended and have not yet re-opened.' Further, the UN Security Council 1996, 'Eighteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia', op cit, reported on 22 August 1996, that 'Despite substantial improvement since the restoration of the cease-fire in Monrovia, the security situation in the city remains a cause for concern ... the city is now divided along factional lines ... recent weeks have witnessed a new wave of violence in Monrovia, some of which may have been politically motivated'.
In summary, the Tribunal finds that any person in Liberia today, whether in Monrovia or outside of Monrovia, faces a chance, which cannot be dismissed as remote, of harm occurring to them. However, as noted above, because persecution involves systematic conduct aimed at an individual or at a group of people, 'it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances' (Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, Wilcox J, 28 July 1987, at 13).
However, the Applicant's adviser, in her letter, stated that the Applicant feared not just the harm faced by all in Liberia in the civil war, but rather, the harm he feared was because he was a member of a particular social group for the purposes of the Convention, that is, 'young males of fighting age' and/or because of political opinion which would be imputed to him. The adviser said that as a 'young males of fighting age', he had been compelled to join the NPFL and this was persecution. The adviser said that he would be at risk by reason of political opinion imputed to him first, by groups who opposed the NPFL, and secondly, by the NPFL, which had accused him of plotting to kill Charles Taylor, and which knew he had escaped from the NPFL. She said that as a Mandingo, a rejection of the NPFL (in his plotting, escape and potential refusal to re-join the NPFL if asked) would be seen by that group as an acceptance of the politics of the ULIMO-K group, which is predominantly Mandingo.
MEMBERSHIP OF A PARTICULAR SOCIAL GROUP
The Tribunal accepts that if the Applicant were to be forced to join a rebel fighting faction, he would be expected to fight, would be forced to risk death or injury, and would be forced to commit human rights violations. The Tribunal finds that being forced to join a rebel group amounts to such serious harm and violation of fundamental rights as to amount to persecution within the Convention. In reaching this conclusion the Tribunal is making a distinction between forcible conscription by the state to serve in a legitimate army, and being forced to join a rebel group. Forcible conscription into the legitimate army of the state is not persecutory in itself, as it is an exercise of state power incidental to sovereignty (see UNHCR Handbook, paragraphs 167-174, Hathaway, op cit, at pages 179-185). However being forced to join a rebel force is fundamentally different; unlike a State, such groups have no legitimate power to compel persons to join and engage in combat.
The Applicant's adviser submitted that 'young males of fighting age in Liberia' are a particular social group for the purpose of the Convention since they are seen as a distinct group in Liberia which can be conscripted, voluntarily or involuntarily into a fighting faction. The Tribunal accepts that being involuntarily conscripted into a rebel group amounts to such a serious harm and a breach of fundamental rights as to amount to persecution within the Convention.
However, while the Tribunal accepts that young males of fighting age in Liberia can be identified as a recognisable group in Liberia, the harm feared from membership of the group is compulsory conscription by any one of a number of rebel factions. That is, the particular social group of which the Applicant is said by his adviser to be a member is defined by reference to the persecution feared. This is contrary to the decision of the Full Federal Court (Beaumont, Hill and Heerey JJ) in MIEA v A & B 130 ALR 48, which found that, although the applicants may have faced persecution,
'The respondents [were] not facing persecution by reason of membership of any social group having a recognisable existence separate from the persecutory acts complained of.' (page 62)
It does not appear from the country information that the Applicant is a member of another relevant particular social group for Convention purposes.
Therefore, the Tribunal finds that the Applicant is not a member of a particular social group for Convention purposes.
IMPUTED POLITICAL OPINION
The Tribunal turns now to consider whether if the Applicant returned to Liberia, he would face any chance of persecution from his imputed political opinion.
The Applicant claimed that if he returned to Liberia, the NPFL may find him and remember him as a person who planned to kill Charles Taylor and/or escaped from the NPFL. The Tribunal has considered the Applicant's evidence at the hearing that his photograph was taken on his recruitment into the NPFL. However, the Tribunal notes too the general chaos in Liberia, the number of people in Liberia, including displaced people, and the general state of the rebel troops of all factions, including the NPFL, which are being in part disarmed and disbanded as a result of the Abuja peace accord, and are being generally (though not wholly) contained to certain parts of Liberia. Despite the chaos, numbers in Liberia and state of the rebel groups, having considered the matter, the Tribunal accepts that if the Applicant returns to Liberia, there is a chance of the NPFL finding him and remembering him as a person who planned to kill Charles Taylor and/or escaped from the NPFL, and if it did, then, on the Applicant's evidence, the NPFL would almost certainly harm him. Given the finding below as to the overall chance of persecution, the Tribunal does not have to determine whether this is a real chance or a remote chance. The Tribunal accepts that the authorities in Liberia could not protect the Applicant from harm from the NPFL. The Tribunal accepts that harm from the NPFL in retribution for attempted killing of Charles Taylor and/or escaping from the group could amount to such a serious harm and breach of fundamental rights as to amount to persecution within the Convention.
The Applicant claimed that if he returned to Liberia, other fighting factions, apart from the NPFL, may discover that he was a NPFL member and impute political opinion to him from that membership. The Tribunal notes the chaos and numbers in Liberia, and the state of rebel factions. Nevertheless, if the Applicant returns to Liberia, there is a chance that other fighting factions, apart from the NPFL, may discover that the Applicant was a NPFL member, and if one (or more) such faction(s) did, then, on the Applicant's evidence, the group(s) could harm him for his imputed political opinion. Given the finding below as to the overall chance of persecution, the Tribunal does not have to determine whether this is a real chance or a remote chance. The Tribunal accepts that the authorities in Liberia could not protect the Applicant from harm from fighting factions, whether the NPFL or any other rebel group. The Tribunal accepts that harm from a rebel group, in response to the Applicant's NPFL former membership could amount to such a serious harm and breach of fundamental rights as to amount to persecution within the Convention.
The Applicant claimed that if he returned to Liberia, there is a chance that he may be forcibly conscripted into one of the rebel groups. The Applicant claimed that he did not want to fight, and that he had earlier escaped from a rebel group. The Tribunal accepts that given the state of Liberia, and that the Applicant is an apparently healthy male of fighting age, the Applicant faces a chance of this occurring. Given the finding below as to the overall chance of persecution, the Tribunal does not have to determine whether this is a real chance or a remote chance. Forcible conscription into a rebel group could amount to such a serious harm and breach of fundamental rights as to amount to persecution within the Convention. However, for a harm to amount to persecution within the Convention, inter alia, the persecutor must be motivated to impose serious harm on the Applicant and that motivation must be for a Convention reason. The fact that the Applicant is opposed to conscription and that this could be taken to be a political opinion, is not sufficient, since the rebel group would not be motivated to conscript him by the political opinion they would impute to him if he made his objection known to conscript him. That is not their motivation for imposing conscription on him. However, if the Applicant were to express dissent, reluctance or try to escape, the Tribunal finds that it is clear that he would face punishment severe enough to constitute persecution, and that this would be motivated by the political opinion imputed to him by these acts. Therefore although it cannot be said that he would be conscripted for a Convention reason, if, once he was so conscripted, he were to dissent, he could face persecution for political opinion imputed to him from his dissent.
RACE
The Tribunal notes that the Applicant is a Mandingo. Mandingos comprise only two per cent of the population in Liberia: Kurian, George, Encyclopaedia of the Third World, Vol. 2, .1992, p.1122. There is evidence before the Tribunal that lines between ethnic groups in Liberia are not clearly drawn: Liberia - Events Since 1990, op cit. However, there is also evidence before the Tribunal that however blurred in reality distinctions between ethnic groups might be in Liberia, fighting factions are willing to make judgements as to ethnicity and that the conflict in Liberia is in part, due to tribal conflict: The US Department of State 1995, 'Liberia', ('Throughout the civil war, the factions used an individual's language to identify ethnicity and often summarily executed those from groups considered hostile'); and 'Liberia - Events Since 1990', op cit, (in late March 1993 ULIMO executed 30 civilians suspected of being NPFL supporters on the basis of ethnicity). Having considered the evidence as to ethnic groups, and tension between them, in Liberia, the Tribunal finds that if the Applicant returns to Liberia, he may face a chance of harm from a rebel faction on the ground of his ethnicity and/or political opinion which may be imputed to him because of his ethnicity. Given the finding below as to the overall chance of persecution, the Tribunal does not have to determine whether this is a real chance or a remote chance. The Tribunal accepts that the authorities in Liberia could not protect the Applicant from harm from a rebel faction on the ground of his ethnicity and or political opinion which may be imputed to him because of his ethnicity. The Tribunal accepts that such harm could amount to such a serious harm and a breach of fundamental rights as to amount to persecution within the Convention.
APPLICANT'S OVERALL CHANCE OF PERSECUTION
After consideration of the Applicant's overall situation, and the evidence presented by him and from other sources (set out above), the Tribunal finds that each type of Convention-related persecution ground (imputed political opinion and race), regarded in the light of his past experiences (including forced membership of the NPFL), combine so that if the Applicant returns to Liberia, he would face an overall chance of persecution, which the Tribunal cannot dismiss as remote or insubstantial.
RELOCATION
The Applicant's claims were based on his experiences in Mandingo village. A person may be at risk in one part of his country of nationality, but not at risk in other parts. If it is reasonable for the person to do so, the person should avoid risk by relocation within the country of nationality, rather than in another country: Harjit Singh Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs, [1994] FCA 1253; (1994) 124 ALR 265, Black CJ, Beaumont and Whitlam JJ, 11 August 1994.
The Tribunal finds that recently, Monrovia has been relatively calm from the rebel conflict in Liberia. Given the Applicant demonstrated admirable survival skills when he lived in the other country, the Tribunal does not accept the Applicant's adviser's statement in her letter that the Applicant, as 'an unsophisticated and illiterate man' could not be expected to survive in Monrovia. However, the Tribunal finds on the evidence above, that the Applicant could not avoid risk by relocation to Monrovia: DFAT Cable LG29535, op cit; The US Agency for International Development dated 30 September 1996; and UN Security Council 1996, 'Eighteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia', op cit.
EXCLUSION UNDER THE CONVENTION ARTICLE 1F
Application of Convention Article 1F
The Applicant was a member of the NPFL, which is a rebel group operating in Liberia. There was 'flagrant disregard for human rights by the 40,000 to 60,000 fighters in the major factions' and 'high levels of atrocities' committed by the rebel groups, including the NPFL, in Liberia (see above). In the course of a raid on his village, he was forcibly conscripted into, and kept in, the NPFL; while a member of the group, before he was able to escape, he went on about six raids to villages. These raids were essentially against civilians, albeit the NPFL accused some of supporting a rival rebel group. In the course of these raids, and, as part of the NPLF, he shot at people's legs and hands, rather than, as others did, aiming to kill. Accordingly, his participation in the group raises the question of whether he is excluded from claiming protection under the Convention under Article 1F.
Article 1F states that the 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.
Article 1F(a)
As to Crimes Against Peace, War Crimes, and Crimes Against Humanity, the UNHCR Handbook at paragraph 150 states that the most comprehensive definition of what constitutes 'crimes against peace, war crimes and crimes against humanity' is to be found in the 1945 London Agreement and Charter of the International Military Tribunal. The Charter of the International Military Tribunal states:
'The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility....
(a) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, ... murder or ill- treatment of prisoners of war...
(c) Crimes against humanity: namely, murder, extermination ... and other inhumane acts committed against any civilian population, before or during the war;...'
Goodwin-Gill, The Refugee in International Law, Oxford University Press, New York, second edition, 1996, at pages 98-99 states,
'Just as the International Military Tribunal succeeded to an existing body of law, so Article 1F(a) today must be interpreted in the light of more recent developments, and the "relevant international instruments" referred to have been considerably supplemented since 1951. The principles of the IMT Charter have been strengthened by the 1949 Geneva Conventions and the 1977 Additional Protocols. "War crimes" are thus considered to include "grave breaches" of the Geneva Conventions, summarized to include any of the following acts: wilful killing; torture inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or a civilian or the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; and taking civilians as hostages.
Additional Protocol I also includes attack on or indiscriminate attack affecting the civilian population; attack on those known to be hors de combat; population transfers; practices of apartheid and other inhuman and degrading practices involving outrages on personal dignity based on racial discrimination; and attacking non-defended localities and demilitarized zones...
Crimes against humanity ... are akin to war crimes, save on a larger scale...The Statutes for the tribunals on Yugoslavia and Rwanda each provide for jurisdiction with respect to crimes against humanity, defined to include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts.'
Article VI(b) Charter of the Nuremberg International Military Tribunal states that 'War crimes can only be committed in armed conflicts of an international character': 'War Crimes, Crimes Against Humanity and Immigration Law', Joseph Rikhof, 19 Imm.L.R.(2d), page 18. As the conflict in Liberia is not an international one the question of war crimes does not appear to arise in this matter. However the distinction between the categories 'war crime' and 'crime against humanity' has been eroded in the Draft Code of Offences Against the Peace and Security of Mankind; as discussed below.
In Decision of Member Borsody in V94/02580, reference is made to the Draft Code of Offences Against the Peace and Security of Mankind, provisionally adopted by the Commission at its thirty ninth session. The Tribunal recognises that the Draft Code does not have the force of a ratified international convention. However the Tribunal notes that the International Law Commission was established by the United Nations General Assembly under Article 13 of the Charter of the United Nations, and that the Commission is charged with the progressive development and codification of international law (Harris, Cases and Materials on International Law, 4th Ed, 1991, Sweet & Maxwell, London; at p.67). The Tribunal accepts the Draft Code as a general statement of international law in this area, and follows it on that basis.
Member Borsody in V94/02580 stated,
'A crime against humanity must be committed in a wide-spread systematic manner, that is, an isolated offence will not constitute a crime against humanity (Rikhof supra). The International Law Commission, in its Commentary to the Draft Code of Offences Against the Peace and Security of Mankind, provisionally adopted by the Commission at its thirty ninth session, stated:
"(2) It was generally agreed, however, that crimes against the peace and security of mankind had certain specific characteristics. In particular, there seemed to be unanimity on the criterion of seriousness. These are crimes which affect the very foundations of human society. Seriousness can be deduced either from the nature of the act in question (cruelty, monstrousness, barbarity, etc), or from the extent of its effects (massiveness, the victims being peoples, populations or ethnic groups), or from the motives of the perpetrator (for example, genocide), or from several of these elements. Whatever factor makes it possible to determine the seriousness of the act, it is this seriousness which constitutes the essential element of a crime against the peace and security of mankind - a crime characterised by its degree of horror and barbarity - and which undermines the foundations of human society.'
Although the code refers to Offences against the Peace and Security of Mankind, and not to crimes against humanity, the history and background to its drafting clearly indicate that the concepts are closely interlinked. The Yearbook of the International Law Commission 1987, in its Introduction to the Draft Code of Offences Against the Peace and Security of Mankind states:
'10. By its resolution 177(II) of 21 November 1947, the General Assembly directed the Commission to: (a) formulate the principles of international law recognised in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal ; (b) prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in (a) above.'
Both the Charter and the Judgements referred to above deal with War Crimes and Crimes against Humanity. In the circumstances, it is clear that the Code was intended to deal with the same offences. This is clarified and emphasised by the commentary to the Draft code in the Yearbook of the International Law Commission 1991 which states:
'The draft no longer maintains a distinction between crimes against peace, war crimes and crimes against humanity. That distinction provided useful guidelines in determining the approach to be taken in relation to each crime but the Commission felt that, at this stage and pending the receipt of comments of Governments, it could be dispensed with inasmuch as solutions have emerged as regards the constituent elements and the attribution of each crime.'
Article 21 of the Draft Code is headed Systematic or mass violations of Human Rights [and states,]
"An individual who commits or orders the commission of any of the following violations of human rights :
- murder- torture
- establishing or maintaining over persons a status of slavery, servitude or forced labour
persecution on social, political, racial, religious or cultural grounds
in a systematic manner or on a mass scale; or
- deportation or forcible transfer of population
shall on conviction thereof, be sentenced [to . . .],"
Rikhof (op cit) considers the question as to whether an individual, who is not a representative or instrument of the state or government, can commit crimes against humanity. He concludes that this is possible (p.64). In Sivakumar v MEI (FCA no A-1043091, 4 November 1993) the Federal Court of Canada concluded (at page 11) that individuals 'without any connection to the state, especially those involved in paramilitary or armed revolutionary movements" can be held responsible for the commission of crimes against humanity': See 'Article IF of the 1951 Convention relating to the Status of Refugees in Canadian Law', Research paper by Manon Brassard, Nancy Weisman, Legal Services, Immigration and Refugee Board 14 December 1994, at page 22.
The Tribunal notes that Article 1F(a) has been used by the Tribunal to exclude a Filipino police officer who was involved in extra-judicial killings: see BN93/00914 dated 6 May 1994. Canadian decisions have also excluded those who have committed murder on this basis; in one decision, a claimant who admitted that he had killed three guerillas in El Salvador was found to have committed a crime against humanity and was excluded from the definition of Convention refugee: CRDD T89-01895 extracted in Reflex, July 1991, page 10.
The Tribunal finds that the activities of the group with which the Applicant was involved, in engaging in a number of raids on villages, and shooting civilians alleged to be supporters of a rival rebel group, constitute crimes against humanity. The next question is whether the Applicant is responsible for those acts and/or has a defence to them. This is discussed below.
Article 1F(b)
In relation to 'serious non-political crime', Goodwin-Gill (ibid, at pages 106-107) states that,
'The standard finally to be applied is an international standard...Each case will require examination on its merits, with regard paid to both mitigating and aggravating factors, and to the level of individual responsibility...A person with a well-founded fear of very severe persecution, such as would endanger life or freedom, should only be excluded for the most serious reasons...
With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. However, that presumption should be capable of rebuttal by evidence of mitigating factors...[including] offender was merely an accomplice; other circumstances surrounding commission of the offence (for example, provocation and self-defence).'
Hathaway (op cit, at page 221) states that '[Exclusion under Article 1F(b)] disallows the claims of persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status'. Further, he states (at page 224), '[inter alia], the crime must be an ordinary, common law offence, prosecuted and punished in a non-discriminatory way'.
In his commentary on the history and interpretation of the Convention, Nehemiah Robinson (Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation, New York, 1953, at page 68) states,
'It is a moot question whether the word "crime" was used in its broader sense (every punishable act) or in its narrower meaning (a felony or grave offense as distinct from a misdemeanour). The epithet "serious" was apparently inserted to denote that the word "crime" was used in the broader sense and then qualified by the addition of the word "serious". Thus, only grave infractions (murder, theft, and like (sic)) would come under subsec. (b) while lesser crimes and administrative infractions (for instance, traffic violations and the like) could not be regarded as a reason for exclusion.'
Although it has been suggested (Hathaway, op cit at page 225) that it is necessary to weigh the crime against the consequences to the applicant of having committed the crime, the Tribunal follows the Federal Court in the decision of Tensin Dhayakpa v The Minister for Immigration and Ethnic Affairs, No WAG 134 of 1994, the Federal Court considered the application of Article 1F(b). The matter related to a person who had agreed to illegally import heroin into Australia, and was sentenced to a term of 12 years by the Australian courts; in the course of an application by him for refugee status in Australia, the Tribunal considered the applicant's conviction and sentence, and a previous trip by the applicant to Australia two years earlier for the same purpose, and found that this constituted serious reasons for considering that he had committed a serious non-political crime, and concluded that the Applicant was excluded from claiming protection under the Convention. French J, stated at pages 12-13,
'Given that the Tribunal is required only to have "serious reasons for considering" that a serious non-political crime was committed outside Australia, it was not necessary for the Tribunal to consider precisely what offences may have been committed by Dhayapka contrary to the laws of Nepal or any other country. It is neither an express nor implied requirement of the Article that the crime referred to therein must be justiciable in the country in which it is committed.'
On pages 16-17, French stated,
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 adjective "serious" in Article 1F(b) involves an evaluative judgement about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgement. But once the non-political crime committed outside the country of refuge is properly characterised as "serious" the provisions of the Convention do not apply. There is no obligation under the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin...'
On pages 20-21, French stated,
'The provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Article 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 Article 1F(b)...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...'
Where an applicant has committed a politically motivated act of violence the decision-maker has to make a judgement whether the applicant has been involved in the commission of a serious non-political crime that is sufficient to exclude him from Convention protection. The Office of the United Nations High Commissioner for Refugees in a paper dated 1 June 1988 set out guidelines for its officers when confronted with this issue in refugee status determinations:
'11. When seeking to establish whether or not a common law offence constitutes both a "serious" and a "non-political" crime, regard should be had to the motive and purpose of the offence (the subjective element) as well as to its gravity and the extent to which the offence is proportional to the alleged goal (the objective elements).
12. Motive should be examined in the first instance, in the light of whether it can be clearly demonstrated that the offence was not committed for personal reasons or gain but out of genuine political commitment and towards a clearly identifiable goal. Such might be the case, for example, where the offence was directed towards modification of the political organisation (or the very structure of the State). Where there is, from the outset, no identifiable political motive, the exemption from exclusion for political offenders does not arise.
13. Assuming there is an identifiable political motive, this fact has, in the overall judgement, to be set off against the character of the act in question. Where the offence is of a particularly serious and disproportionate nature it cannot be treated as "political" for the purposes of Article 1(F) regardless of alleged political motive. In determining the gravity and proportionality of the offence, the following factors should be taken into account: - The means used and the possibility of attaining the ultimate goal through alternative means (was, for example, murder or indiscriminate bombing the sole or even the most reasonable and explicable means of attaining the alleged, political end ?).
- the proportionality of the offence to any alleged political goal (clearly the more atrocious, the less proportional);
- the relationship between both the act and the victim of the act to the political objective alleged (i.e. the degree of direct connection between the crime and the political objective and whether it affected persons foreign to the motives behind it)...'
In summary, the UNHCR guidelines provide a useful framework for decision-making in assessing whether a serious crime is non-political; they state that in assessing whether a serious crime is non-political, consideration can be made to the following:
- the motive and purpose of the offender (subjective elements); and
- the gravity and proportionality of the offence (objective elements).
The United States Court of Appeal in McMullen v. I.N.S. 786 F.2d 591 (9th Cir. 1986) found that a member of the Provisional Irish Republic Army ( PIRA) who was involved in terrorist acts was liable to deportation on the basis that there were serious reasons for considering that he had committed serious non-political crimes. The Court stated at 597:
'The crimes that the BIA found nonpolitical, and thus beyond the bounds of statutory protection, were terrorist activities directed at an unprotected civilian population, including "indiscriminate, bombing campaigns, ... murder, torture, and maiming of innocent civilians who disagreed with the PIRA's objectives and methods...Such acts are beyond the pale of a protectable "political offense." These actions were directed solely at bringing about social chaos, with the eventual demise of the State intended only as an indirect result. Indeed, arson, murder, and armed robber (a major financing tool for the PIRA) are clearly the sort of crimes contemplated by the Convention as both "serious" and "nonpolitical "...'
The Court at page 597 then commented on the problem of distinguishing between terrorist acts:
'The problem of course is that the PIRA is unquestionably a "terrorist" organisation, and these activities were part of their overall plan to rid Northern Ireland of the British. Terrorism does not fit easily into the complex rubric of international law, see Eain, 641 F.2d at 520, and it is difficult to meaningfully distinguish between one obviously terrorist act and another. However, there is one relevant distinction that has maintained legal force for many years, and which applies in this case. There is a meaningful distinction between terrorist acts directed at the military or official agencies of the state, and random acts of violence against ordinary citizens that are intended only "to promote social chaos" Id. at 519.'
In the present case, the actions of the group of which the Applicant was part, in raiding villages, shooting civilians and committing other human rights violations are clearly 'serious'. They are also 'non-political', as first, the Applicant did not act out of political motivation and secondly, the acts committed are so out of proportion to any possible political objective of the group of which he was he was part (such as the weakening of support for a rival political group) that this can not legitimately be seen as a political crime. The Tribunal finds that the actions of the Applicant constitute a prima facie serious non political crime. The next question is whether the Applicant is responsible for those acts and/or has a defence to them. This is discussed below.
Article 1F(c)
Goodwin-Gill (op cit at page 109) states that 'The purposes and principles of the United Nations are set out in the Preamble and articles 1 and 2 of the United Nations Charter. The main objectives are to prevent war, to reaffirm faith in fundamental rights, to establish the conditions under which justice and respect for obligations can be maintained, and to promote social progress and better standards of life in larger freedom.' At pages 113-114, he states,
'In summary, article 1F(c) will generally exclude high officials of State responsible for the implementation of policies that violate human rights or are otherwise contrary to the purposes and principles of the United nations. In appropriate circumstances, however, it also applies to individuals at some remove from political responsibility, who are party to human rights violations, either individually, or as members of organizations engaged in such activities...
[It includes] policy makers and those holding positions of political responsibility, in situations where, for example, violations of human rights or other activities contrary to the purposes and principles of the United Nations have occurred...the agents of implementation of such policies ...[and] individuals, whether as members of organizations or not, who, for example, have personally participated in the persecution or denial of the human rights of others...Article 1F(c) of the Convention is potentially very wide'.
Hathaway (op cit, at page 229) states,
'A sensible and purposeful interpretation of [Article 1F(c)], advocated by the United Nations, is therefore that it is intended to enable states to effectively act as agents of the international community in bringing to bear basic norms of acceptable international conduct against government officials who ought reasonably to understand and respect them, and to avoid tarnishing refugee status by the admission to protection of those who have exploited their political authority to jeopardize the well-being of individuals, their nation, or the world community'.
The Tribunal finds that the acts committed by the Applicant could fall within the terms of Article 1F(c), being acts contrary to the purposes and principles of the United Nations. The next question is whether the Applicant is responsible for those acts and/or has a defence to them. This is discussed below.
Tribunal's Conclusion as to whether the Applicant is excluded under Article 1F
In summary, the act of shooting, as part of an attack by a rebel group on a civilian village may exclude an applicant under all three clauses in Article 1F.
Liberia is in a state of civil war. There are various rebel factions, including the NPFL which engage in crimes against humanity and crimes against the principles and purposes of the United Nations.
Attacking a civilian village, albeit that some of the targets in the village are alleged to be supporters of rival rebel factions, can be termed not only a crime against humanity , but also a 'serious non- political crime' and an act contrary to the purposes and principles of the United Nations. After considering the material above, the Tribunal finds that shooting civilians, even if not to kill, as part of a rebel group, could fall within the ambits of any of the categories of Article 1F.
Responsibility and Defences
Exclusion under Article 1F must be considered in the light of all the circumstances, including the purposes of the Refugees' Convention. In this case, the Applicant was himself a victim of a crime against humanity, in that he was a civilian in a village attacked by rebels, was forcibly conscripted by the rebels, and was incarcerated by them without fair trial on the charge of attempting to kill their leader. The Applicant alleged that he was present at NPFL raids where people were killed, but that he himself shot not to kill. He was a member of the NPFL not because of his political beliefs, but rather, because he and his brother were forcibly made to join the NPFL in the course of a raid on their village, in which, it was clear from the shooting of others, resistance would be fatal. The Applicant shot at people, because his alternative was to be shot by other NPFL members. He was not in a position of authority in the NPFL. He escaped the NPFL when he had the opportunity to do so. He attempted to lessen the impact of the orders to kill by shooting in a manner to avoid killing anyone. The Tribunal has found his claims plausible and credible.
Responsibility and Defences - the law:
As to individual responsibility, Goodwin Gill says (op cit, at page 100),
'The International Military Tribunal had no hesitation on the issue of individual criminal responsibility; that a soldier was ordered to kill or torture in violation of the international law had never been recognized as a defence. This responsibility derives ultimately from international law...
The 1949 Geneva Conventions specifically provide for individual responsibility...It is clarified further in the Statutes for the tribunals on Yugoslavia and Rwanda, which stress that the "official position of any accused person, whether as head of State or Government, or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment". A superior may also be responsible for the actions of a subordinate, and while the subordinate will not be relieved of responsibility, superior orders may be considered in mitigation of punishment.
A distinction must nevertheless be drawn between "mere" membership of an organization which engages in international crimes, and actual complicity. The International Military Tribunal accepted that such membership was not sufficient to establish liability, and recent jurisprudence has also required "personal and knowing participation".'
Hathaway (op cit, at page 218) states that 'Intention is a necessary element of a crime under [Article 1F(a)]...it is possible to invoke coercion...[that is, there is recognition of a lack of intent] where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent danger...Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion.'
In Decision V94/02580, Member Borsody stated,
'There are a number of recognised defences to charges of crimes against humanity...
Article 9 of the Draft Code sets out the following defences, and these are based on the defences set out in the Charter of the International Military Tribunal, and applied by the Nuremberg Tribunal (Rikhof op cit, p.41). These read as follows, in so far as relevant:
The following constitute exceptions to criminal responsibility:
(a) self-defence
(b) coercion, state of necessity or force majeure;
(c) . . . .
(d) the order of a Government or of a superior, provided a moral choice was in fact not possible to the perpetrator.'
Rikhof (op cit at page 18) sets out the requirements of the defence of duress in relation to a crime against humanity.
'[The defence of duress], which has also been called the defence of necessity, can be raised in circumstances where a person has no other moral choice than to commit a war crime or a crime against humanity, usually as a result of an order from a superior.
In order to raise this defence successfully the following requirements have to be fulfilled:
- the acts charged were done to avoid an immediate danger both serious and irreparable;
- there was no other means of escape
- the remedy was not disproportionate to the evil;
- the above requirements are to be applied according to the facts believed by the person raising the defence.'
Brassard and Weisman (op cit) provide a similar analysis (at pages 23-25). They refer to the decision of the Canadian Federal Court in Ramirez v MEI [1992] 2 FC 308 (CA), where the court found that the defence of duress can be used to justify participation in certain offences providing that the harm directed at the person raising the offence is greater than the harm actually inflicted on the victim (at page 132).
Responsibility and Defences - the Tribunal's conclusions:
After applying that law to the facts, the Tribunal finds that the acts charged were done to avoid an immediate danger both serious and irreparable, the Applicant had no other means of escape, the remedy (shooting not to kill) was not disproportionate to the evil (being killed by leaders of the group for not participating). Therefore the defence of duress is made out, and the Applicant is not excluded under Article 1F(a) due to commission of a crime against humanity.
The Tribunal finds that the defence of duress is equally applicable to the question of responsibility for a serious non political crime and acts contrary to the purposes and principles of the United Nations. The Tribunal applies the same reasoning as set out above, and finds that the Applicant has a defence of duress to Article 1F(b) and Article 1F(c) of the Convention as well.
After consideration of all the facts, including the forced conscription of the Applicant, the likely consequences to the Applicant if he had shown resistance to NPL orders, and his attempts to at least lessen the harm the Applicant caused to others, the Tribunal finds that the Applicant is not excluded, under Article 1F, from seeking the protection of the Convention.
EXCLUSION UNDER THE CONVENTION ARTICLE 1E
Though the Applicant is not a national of the other country, nevertheless, the Applicant lived in that country for over a year and was granted the right to stay there temporarily after recognition of his refugee status. Article 1E of the Convention states that 'The Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country'. Therefore, the question arises, whether the Applicant has been recognized by the competent authorities in the other country and had accorded to him by the government in that country the rights and obligations which are attached to the possession of nationality of that country.
In the other country, the Applicant had a permit to stay for a period, which period could be renewed. The Applicant said he had a girlfriend (and possibly a child of that relationship) in that country, and a job. However, first, the Tribunal notes the letter, undated but attached to the permit, from the relevant government authority addressed to the Applicant's brother, stated that the addressee's application for asylum had been approved, but noted that 'if at the end of the period of exemption, you do not wish to leave the [deleted], the onus rests on you to contact the Department for the reviewal of your refugee status or to otherwise legitimise your continued stay in the [deleted] before the expiry date of your Certificate. Failure to do so may render you liable to prosecution in terms of the provisions of the [relevant Act]'. This letter was apparently the same as that given to the Applicant at the same time and denotes temporary, as opposed to permanent, protection. Secondly, the Tribunal notes the adviser's letter, which states that the High Commission 'state that generally it can be said that the holder of a temporary Permit is in the process of undergoing determination which may result in permanent residence...[and] in all the circumstances of [the Applicant's] case, including his departure from [deleted] on a false passport, it would be unlikely that any application for permanent residence would be successful'. The adviser's letter states that the Applicant may return to the other country, but generally confirms that his prior status was temporary there. Thirdly, the Tribunal notes that the Applicant's brother, who stayed in the country and did not depart on a false passport, has had his asylum extended several times, but it is still only valid for a temporary period.
After considering the issue, the Tribunal finds that though the Applicant was granted a permit to stay in the other country for a period, this was temporary only, and renewal was subject to a discretion. The Tribunal finds that the Applicant was not accorded in the past in that country the rights and obligations according with a national of that country. Accordingly, the Tribunal finds that the Applicant is not excluded by the Convention Article 1E from claiming protection from Australia under the Convention.
CONCLUSION
The Tribunal is satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention as amended by the Protocol.
DECISION
The Tribunal sets aside the decision not to grant a protection visa.
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