A Sri Lankan citizen who was a crewman on a gun-running boat for the Tamil Tigers has been given the right by the Supreme Court to apply for refugee status in New Zealand.
In a unanimous decision, the court has dismissed an appeal by the Attorney-General against a Court of Appeal judgment that the applicant, who cannot be named, was eligible to claim refugee status.
The court has referred the matter back to the Refugee Status Appeals Authority for reconsideration on whether the applicant meets the requirements of the Refugee Convention and New Zealand law to be recognised as a refugee.
The convention excludes people who have committed crimes against humanity or serious non-political crime as refugees.
"We conclude that the respondent was not shown to be excluded from refugee status - reconsideration should be in accordance with the Court of Appeal's order," the Supreme Court judgment yesterday said.
The applicant was chief engineer during a voyage in 1993 on MV Yahata, a cargo vessel owned by the Liberation Tigers of Tamil Ealam used for transporting munitions and weapons to Sri Lanka for the organisation's use.
He came to New Zealand with his wife and children on visitors' permits in 2001, and applied for refugee status.
The appeals authority had earlier said it did not believe the applicant's claim that he did not know he was on a Tamil Tigers ship before the voyage began, or that it was used to smuggling arms, ammunition and explosives in Sri Lanka.
"The Tamil Tigers would not have put a person whose loyalty was uncertain into such a responsible position on the vessel as that held by the respondent," the authority concluded.
The Crown argued that his involvement in the voyage made him "complicit in the atrocities committed by the Tamil Tigers" and that made him an accomplice to crimes against humanity.
The vessel was intercepted by the Indian Navy, but before reaching the port in Chennai, it was sunk by some of the crew, some choosing to remain on board the ship as it sank.
The applicant, and other surviving crew members, were convicted in an Indian court on charges arising from this event.
The Crown said his involvement in the sinking of the ship was a serious non-political crime, which disqualified him from being recognised as a refugee by law.
But the Supreme Court decided that these did not show that the applicant's supportive activities were directly linked to any atrocities committed by the Tamil Tigers.
"The armaments which he helped transport did not reach the Tamil Tigers as they went down with the ship," it said.
"Accordingly, it was not established that any crime against humanity had been committed to which the respondent was an accomplice."