Question No.145

Senator Ludlam asked the Minister for Immigration and Citizenship, upon notice, on 29 September 2010:

(1)(a) For each financial year since the last published figures in 2004-05, how many cases have been referred to the War Crimes Screening Unit (WCSU); and (b) of those cases referred, how many individuals were refused citizenship or a visa on suspicion of having committed war crimes.
(2) Upon refusal of an application does the department notify the relevant state authorities in which the individual resides.
(3) Does the Minister have plans to improve reporting of results of border screening by the WCSU.
(4)(a) How many visas have been refused or cancelled in the past 10 years based on Article 1F of the Convention Relating to the Status of Refugees, that provides that an asylum seeker can be denied protection on the basis there are serious reasons for considering an individual has committed a ‘crime against peace, a war crime, or a crime against humanity'; (b) how many of these decisions have been upheld by the Administrative Appeals Tribunal (AAT); and (c) of those cases upheld by the AAT, have all these individuals been removed from Australia; if not: (i) how many of these individuals remain in Australia, (ii) for how long have they remained in Australia since the AAT decision, and (iii) what action is the department taking in regard to these individuals.
(5) For the past 10 years: (a) how many suspected war criminals have been extradited from Australia; and (b) on how many occasions has Australia rejected an extradition application from another country for a suspected war criminal.
(6) For what reasons has Australia rejected applications for extradition from other states other than for the lack of prima facie evidence.
(7) How many times in the past 10 years has a person's visa been revoked for suspicion of having committed a war crime, crimes against humanity or genocide.
(8) (a) Does the department provide any specialised training to staff who conduct visa and refugee interviews to assist them in screening for potential war criminals; and (b) if training is provided, is it offered to all staff that process refugee and visa claims; if not, which staff receive the training. 

Senator Carr - The Minister for Immigration and Citizenship has provided the following answer to the honourable senator's questions:

(1)(a) DIAC records indicate that, for the financial years since 2004-05, the number of cases referred to the WCSU were:

• 2005-06: 798
• 2006-07: 933
• 2007-08: 674
• 2008-09: 813
• 2009-10: 369

(1)(b) The legislation that underpins visa and citizenship decisions (the Migration Act 1958 and the Australian Citizenship Act 2007) does not differentiate between war crimes and any other crimes. Departmental statistics identify where an application for a visa or Australian citizenship has been refused due to character, but they do not identify the specific crimes or reasons why a person did not pass the character test.

My Department is looking at how it might enhance its reporting on war crimes screening, including the ability to collate figures identifying the number of persons who have been refused Australia citizenship or a visa specifically on the basis of their involvement in war crimes or crimes against humanity.

(2) My Department does not liaise with state authorities about particular war crimes cases. However, my Department works closely with the Australian Federal Police on war crimes related matters.

(3) My Department is continually seeking to improve its processes, including reporting on war crimes screening as part of Australia's border management strategy (see 1(b) above).

(4)(a) Departmental records indicate that since July 1999, 38 people were refused their Protection visa (PV) applications on the basis of Article 1F(a) of the Refugees Convention and subsequently sought review by the Administrative Appeals Tribunal (AAT). Article 1F(a) is an exclusion clause in the Refugees Convention and operates to the effect that, where there are serious reasons for considering that the applicant has committed a crime against peace, a war crime or a crime against humanity, the obligation to not return is not owed. The figure of 38 comprises applicants who have been convicted of such crimes or have admitted to such crimes, or whose particular circumstances gave the decision maker serious reasons for considering that the applicant committed such crimes.

Departmental systems cannot easily identify those individuals who were refused a PV based on Article 1F(a) but who did not seek review at the AAT. The figure of 38 is, therefore, unlikely to present a complete picture of the total number of people refused a PV based on Article 1F(a). As applicants for protection, however, it is more likely than not that they would have exercised their right of appeal to the AAT.

(4)(b) Of the 38 PV refusals, 22 decisions were upheld by the AAT and, where applicable, at judicial review.

In one of the 22 cases, the Department refused the individual's PV application on the grounds of Articles 1F(a) and 1F(b). The AAT, however, overturned the refusal decision on the basis of Article 1F(a) but upheld the refusal decision on the basis of Article 1F(b).

In 16 cases, the Department's primary decision was ultimately reversed.

(4)(c) No. Seventeen (17) of the 22 failed PV applicants have subsequently left Australia, either as a removal under s198 of the Migration Act 1958 or as a voluntary return.

(4)(c)(i-iii) Of the 5 who remain in Australia, one has had their immigration status resolved through the grant of a substantive visa issued in 2007 following intervention by the then Immigration Minister, Kevin Andrews. The length of time that the remaining 4 have been in Australia since the AAT decision ranges from 5 to 8 years (noting this group includes the individual whose PV application was refused on the basis of Article 1F(b) - refer to Question (4)(b) above). A number of factors have contributed to these periods, including the time taken by the individuals in pursuing review and Ministerial intervention opportunities. My Department is working to resolve the immigration status of these clients, including effecting removal where possible.

(5) Australia has not ever extradited a person to face prosecution in a foreign country for alleged war crimes offences. Any extradition request received by Australia for an alleged war criminal is considered in accordance with Australia's Extradition Act and any applicable treaty.

As a matter of longstanding practice the Government does not disclose whether or not an extradition request has been received until the person whose extradition is sought is either arrested or brought before public proceedings, to ensure the person does not have an opportunity to flee the jurisdiction. To do otherwise would defeat the purpose of extradition and could compromise crucial police investigations.

It is a matter of public record that Australia has received extradition requests for three persons accused of war crimes offences:

• In 2000 Latvia made an extradition request for Mr Konrad Kalejs who was accused of Nazi war crimes. Mr Kalejs died in 2001, aged 88, before he could be surrendered.

• In 2005 Hungary requested the extradition or Mr Charles Zentai who is wanted to face prosecution for an alleged war crime. On 12 November 2009 the Minister for Home Affairs made a final determination under the Extradition Act that Mr Zentai should be surrendered to Hungary. Mr Zentai challenged the lawfulness of the Minister's determination in judicial review proceedings in the Federal Court on 27 and 28 April 2010. On 2 July 2010, Justice McKerracher of the Federal Court allowed Mr Zentai's judicial review application on three grounds. The Court reserved the making of orders to give effect to its decision pending submissions from parties as to the orders it should make.

• In 2006 Croatia requested the extradition of Mr Daniel Snedden (also known as Dragan Vasiljkovic), who is wanted to face prosecution for alleged war crimes offences. The High Court upheld an appeal by the Republic of Croatia, confirming the magistrate's order that Snedden is eligible for extradition. On 20 September, Mr Snedden filed an application in the Federal Court seeking a declaration that he is not an extraditable person under the Extradition Act, a declaration that he is unlawfully imprisoned, a declaration that Croatia only requires him for questioning and that he is not accused or charged with the relevant offences, a writ of habeus corpus, compensation and damages.

(6) As a matter of longstanding practice the Government generally does not publicly disclose whether or not an extradition request has been refused or the reasons for any refusal, other than as a result of public proceedings.

Australia's extradition process involves a number of stages, including decisions by the executive government (the Attorney-General or Minister for Home Affairs) and by a magistrate who will independently assess the request against statutory requirements.

Australia may refuse an extradition request on various grounds if it does not meet the necessary statutory requirements or the requirements of any relevant treaty (for example, dual criminality is not established, or an extradition objection is able to be established).

The Extradition Act and relevant treaties contains a number of grounds for refusing an extradition request and ultimately whether or not a request is accepted, or whether or not a person is surrendered pursuant to an extradition request, involves the exercise of a general discretion by the Attorney-General or Minister for Home Affairs.

(7) See response for (1)(b).

(8)(a) - (b) My Department provides face to face war crimes screening training to staff who conduct visa and refugee interviews in Australia and to officers being posted overseas prior to departure. To resolve the issue of staff turnover, the training is supplemented by written guidance which is readily available on my Departments Intranet. The War Crimes Unit provides a helpdesk service to answer complex enquiries.