OxMo-Vol.-3-No.-1

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Oxford Monitor of Forced Migration Vol. 3, No. 1 Different Sources of International Criminal Law and Exclusion: How the Federal Court of Australia in SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs Got It Wrong and Why It Matters Abstract By Catherine Drummond At the heart of the intersection of international refugee law and international criminal law lie the international crimes which provide the basis for exclusion from refugee status pursuant to Article 1F(a) of the 1951 Convention Relating to the Status of Refugees. While it is clear that the alleged act in question must have constituted an international crime at the time of its commission, whether criminality is determined by customary international law or international instruments, what the relationship between the two is, and what role defences play are issues which Australian courts have failed to properly grasp and something which is the subject of assumption and conjecture in the literature. In the leading Australian case on Article 1F(a), SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs, the Federal Court of Australia made a fundamental error in applying Article 1F(a) in a manner inconsistent with its interpretation. This paper aims to set the records straight and fills a gap in existing literature on the interpretation and application of Article 1F(a). Introduction At the heart of the intersection of international refugee law and international criminal law lie the international crimes which provide the basis for exclusion from refugee status pursuant to Article 1F(a) 14 of the 1951 Convention Relating to the Status of Refugees (hereinafter Refugee Convention). Article 1F(a) provides that there must be ‘serious reasons for considering’ that the alleged conduct must have constituted a crime against peace, a war crime or a crime against humanity at the time of its commission. However, whether criminality is determined by customary international law or international instruments, what the relationship between the two is, and what role defences play are issues which Australian courts have failed to properly grasp and something which is the subject of assumption and conjecture in the literature. This Article will focus on the leading Australian case on Article 1F(a), SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs (hereinafter SRYYY). It will be argued that the Federal Court of Australia in SRYYY made a fundamental error. The Court affirmed the uncontroversial view that Article 1F(a) requires that the conduct justifying exclusion constitute an international crime at the time of its commission, which necessarily entails the absence of a defence absolving the person from criminal responsibility. However, in applying Article 1F(a) the Court failed (and at one point 14 Article 1F(a) will be referred to interchangeably as “Article 1F(a)” or “the exclusion clause.” 35
Oxford Monitor of Forced Migration Vol. 3, No. 1 of the judgment even refused) to ascertain whether the substantive basis for criminality was treaty or customary international law. The result was that the Court considered that the defence of superior orders in Article 33 of the Rome Statute must be applied, notwithstanding that it was not clear that it reflected custom applicable to the applicant (SRYYY) at the time the conduct was engaged in nor was the Rome Statute binding on SRYYY. The Court therefore departed from the requirement that there be a basis for the substantive criminality at the time the conduct occurred. The gravity of the error is more acute when the approach in other jurisdictions, such as the United Kingdom, is considered, suggesting that the error is not one limited to Australia. This paper aims to set the record straight and to fill a gap in existing literature on the interpretation and application of Article 1F(a). It posits that alleged criminality justifying exclusion must be based on either customary international criminal law or international instruments in force in respect of the particular conduct in question. To this end, courts are obliged, contrary to the position of the Court in SRYYY, to determine whether the ‘instrument’ they are applying accurately reflects customary international law at the time of the alleged conduct or was itself in force as a substantive basis for criminal liability in respect of the alleged conduct. The paper proceeds in three parts: first, it examines the reasoning of the Federal Court of Australia in SRYYY; second, it assesses the implications of such an approach; and third, it makes recommendations required to correct the Court’s error. It concludes that the proper interpretation and application of Article 1F(a) is fundamental to the integrity of the institution of asylum and to the protection of persons whose exclusion is not legally justified. The Approach of the Federal Court of Australia in SRYYY SRYYY was a decision of the Federal Court of Australia on appeal from the Administrative Appeals Tribunal (hereinafter AAT). The AAT affirmed a Ministerial delegate’s refusal to grant a protection visa to the applicant, a former member of the Sri Lankan army, pursuant to Article 1F(a) 15 because there were serious reasons for considering that the applicant had committed war crimes or crimes against humanity by interrogating Tamil civilians (SRYYY: [3]-[4]). The Court held that the AAT committed a jurisdictional error for, inter alia, failing to consider the defence of superior orders as set out in Article 33 of the Rome Statute (SRYYY: [127]). Despite producing what is largely a well-researched 16 and reasoned judgement, the Court fell into error in its interpretation of the role of customary international law in Article 1F(a) which has, and will continue to have, serious implications for the institution of asylum and the rights of asylum applicants in Australia, and potentially, in other jurisdictions. 17 15 See also Migration Act 1958 (Cth) s36(2)(a); Migration Regulations 1994 (Cth) Schedule 2, cl. 866.221. 16 Which some have noted is unusual in curial opinion: Johnston & Harris 2007. 17 SRYYY has been relied on by counsel in similar proceedings across various jurisdictions. See, for example, R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184: 185, 219. 36
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