application under s 476A of the Migration Act 1958 (Cth) (Act) to quash a decision of the Administrative Review Tribunal
whether there are serious reasons for considering that the applicant has committed crimes against humanity as referred to in s 36(2C)(a)(i) of the Act and is thereby excluded from refugee protection
whether the Tribunal committed jurisdictional error by misunderstanding or misapplying the law
Quick Take
1For exclusion from complementary protection under s 36(2C)(a)(i) of the Migration Act based on Art 25(3)(c) of the Rome Statute, the decision-maker must find that the person lent assistance with the aim (purpose) of facilitating the offence; a finding that the person merely knew their conduct would assist the principal perpetrator is insufficient, as Art 25(3)(c) introduces a higher subjective mental element beyond the ordinary mens rea in Art 30.
2For individual criminal responsibility under Art 25(3)(d) of the Rome Statute, the decision-maker must find that the person made at least a significant or substantial contribution to the commission of the crime by a group acting with a common purpose; a finding of mere participation or contribution without assessing its significance or substantiality does not satisfy the legal threshold.
3A decision-maker's earlier recitation of the correct legal test in its reasons does not permit a reviewing court to infer that the test was properly applied in the analysis, where the critical findings required by that test are absent from the reasoning.
