Singh and Minister for Immigration and Multicultural Affairs [1999] AATA 45 (27 January 1999)

Last Updated: 25 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1997/226

GENERAL ADMINISTRATIVE DIVISION )

Re DALJIT SINGH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date 27 January 1999

Place Adelaide

Decision The decision under review is affirmed.

.............(Signed)....................

Deputy President B.H. Burns

CATCHWORDS

IMMIGRATION - application for protection visa - refusal under Article 1F of the Refugees Convention - whether serious reasons for considering that the applicant has committed a serious non-political crime - decision affirmed

Migration Act 1958: ss36, 65(1), 500(1)(c)

Migration Regulations: reg 886.221

Article 1F of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556

Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 1

W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 12974

N96/1441 and Minister for Immigration and Multicultural Affairs [1998] AATA 12977

Ramirez v. Canada (Minister for Employment and Immigration) (1992) 89 DLR (4^th) 173

Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385

Applicant A and another and Minister for Immigration and Ethnic Affairs and another (1997) 190 CLR 225

REASONS FOR DECISION

27 January 1999 Deputy President B.H. Burns

1. This is an application by Daljit Singh ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") dated 1 July 1997 refusing to grant to him a protection visa pursuant to s65(1) of the Migration Act 1958 ("the Act").

2. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with the exhibits tendered by the parties at the hearing. In addition, the Tribunal heard oral evidence from the applicant, as well as from Karnail Singh, Ajit Singh and Sukhdeep Singh Deol who gave oral evidence on behalf of the applicant. No oral evidence was led by the respondent.

3. The applicant was represented by Mr R. Glazbrook, a migration agent, and the respondent was represented by Ms S. Maharaj, of counsel.

4. By way of background, the Tribunal makes the following findings of fact which are not in dispute:

(a) The applicant was born on 11 November 1954 and is an Indian citizen of Sikh ethnicity.

(b) The applicant and his family lived in Delhi where they operated a trucking business. In 1984, the applicant learned that his family had been killed by a Hindu mob following the assassination of Indira Gandhi and that the family business had been destroyed. Subsequently, in 1986, the applicant joined the Khalistan Liberation Force ("the KLF") whose aims include the creation of the independent Sikh state of Khalistan. The applicant was an active member of the KLF until his departure from India in December 1996.

(c) In December 1996, the applicant arrived in Australia. On 23 January 1997 he lodged an application for a protection visa (subclass 866) claiming that his life would be in jeopardy should he return to India on account of his activities as a member of the KLF.

(d) On 1 July 1997, the application for protection visa was refused on the grounds that the applicant was not a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ('the Refugees Convention") as he was excluded under Article 1F of the Refugees Convention. It was thereby determined that the applicant did not meet a criterion prescribed by clause 866.221 of the Migration Regulations and hence, he did not qualify for the grant of a protection visa.

(e) On 4 August 1997, the applicant applied to this Tribunal for review of the decision to refuse to grant him a protection visa.

5. The issue to be determined by the Tribunal is whether the applicant should be excluded from coverage of the Refugees Convention by virtue of the exclusion provisions contained in Article 1F. It was submitted, and the Tribunal agrees, that if an Article 1F exclusion is found to apply, then the delegate's decision should be affirmed by the Tribunal. If the Tribunal finds that no Article 1F exclusion is applicable to the applicant, then the matter must be remitted to the respondent for consideration as to whether the other criteria necessary for the granting of a protection visa have been met.

Legislation

6. Section 36 of the Act establishes the class of visas known as protection visas. Relevantly, it reads as follows:

'Protection visas

36. (1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.'

It is not in dispute that the applicant is a non-citizen in Australia, for the purposes of s36(2) of the Act, and the Tribunal so finds.

7. Regulation 866.221 reiterates the provision in s36(2) of the Act in so far as one of the criteria which the Minister must be satisfied of at the time of a decision to grant a protection visa is that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Regulation 866.221 reads as follows:

'866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.'

8. Article 1F is the exclusion provision relied on by the respondent, and reads as follows:

'The provisions of this 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.'

The delegate determined that the applicant had committed crimes against peace within the meaning of Article 1F(a), however, the Tribunal is not limited to a consideration of that aspect of Article 1F alone. If the Tribunal decided that any of the exclusory provisions in Article 1F were to apply to the applicant, his application for visa would fail irrespective of the other question as to whether the applicant is a refugee or not which is not within the jurisdiction of the Tribunal and would not arise if the above were the case.

9. The power to grant or refuse to grant a visa is contained in s65(1) of the Act. Subsection (1)(a)(ii) reflects the fact that certain criteria contained in the Act and Migration Regulations must be satisfied before the visa is to be granted. Relevantly, s65(1) reads as follows:

'Decision to grant or refuse to grant visa

65. (1) After considering a valid application for a visa, the Minister:

(a) is satisfied that:

...

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

...

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.'

10. The Tribunal is given jurisdiction to review a decision under Article 1F by s500(1)(c) of the Act.

'Review of decision

500. (1) Applications may be made to the Administrative Appeals Tribunal for review of:

...

(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, ...:

...'

The Evidence

11. In his application for protection visa, the applicant provided a statutory declaration setting out the grounds on which he was relying (T8, p79-81). Relevantly, it provided as follows:

'I and my family were living at Roshana Road, Delhi. My parents owned a trucking business. My father was running his business from Kanpur (in Utter Pardes) to Ambala (in Haryana) but our head office was in Delhi where our whole family was staying. When Indra [sic] Ghandhi was shot and killed in October 1984, what happened to the Sikh community throughout India the whole world knows including the indiscriminate killing of innocent people of Sikh background. I am very lucky that I was not in Delhi on that day. I was visiting my friend Panipat Karnal in Haryana state. We heard on the news that the situation in Delhi was really bad and dangerous. I became really worried about my family.

During the second week of November, I was told by my friend (who is clean shaven) that my whole family, including my father, mother, two brothers and my sister had been killed by Hindu mobs and that our house and business has been looted and destroyed. I was really angry and felt hopeless as there was nothing that I could do. My friend made me realise that I was still alive. This was the only good part. In the first week of December, I and my friend went to Delhi to see if anyone in the family survived or whether anything was left. Our family house and business were gone. Whatever my friend had told me was true. I was so angry. I stayed there at least two weeks at Gurudwara Sish Ganj Sahib and tried to trace my family through the camps but there was no luck.

I came back with my friend to Haryana and started living there. I was just helping my friend a little bit in his business. In November 1986 I moved to Delhi and got a job in Delhi/Calcutta Transport. In June 1988 I was introduced to Mr Davinder Pal Singh (Deepak) through one of my friends. Later in July 1988 I was also introduced to Navneet Singh (Kadian) and Daya Singh Sandhu (Lohoria) through Deepak. Because of what happened to my family and our people I could not sit at home for the rest of my life and be a slave to the Hindus.

First our Golden Temple was attacked by the Indian army in June 1984; then in October 1984, thousands of Sikhs were killed, their businesses were looted and destroyed by Hindu mobs encouraged by the Indian Government. I quit my job and joined KLF (Khalistan Liberation Force) and started working for KLF to liberate our country Khalistan. Later on in January 1991 I was introduced to our General, Gurjant Singh (Budh Singh wala). He was so impressed at my hard work and honesty that he promoted me as a Commander of Information.

My roles and duties: To collect the information for the upper level movement or to do whatever was assigned from the boss, and to arrange the necessary supplies to hit any target. I also arranged the transportation for operatives after the target has been hit and arrange places to hide.

How I did the job: There were no rules to do this kind of work. This kind of procedure had to be changed all the time on different occasions because each area was different.

How we made the contact: We always used different types of secret codes and different languages particularly if we were using the phone line. Sometimes we gave messages personally but it depended on what level the contact was to be made and how urgent it was.

Pick up and delivery: This is not a regular transportation business it is an underground operation therefore it had to be used with different kinds of procedures and also depended on the area and location.

Who knows of cargo contact: If we were using a truck to transport the weapons. The driver of the truck only knew that he was just driving and taking a load of vegetables or other merchandise. Whatever was in some other boxes only very special people knew. All the documents of the load referred to the merchandise only to show the police on the Barriers (Checking stations).

How I gather Information: Each case was different. Each situation was different. Each area was different. Most of the time we had to change our description which also depended on the area.

How I passed it on: Each time we got an assignment, we set the time for the target eg. we gave certain criteria in order to contact each other two to four weeks, such as certain days and certain times and certain places. If we were not able to make it or we felt the time and area was not in our favour, we changed our plans and different locations.

In late December 1994, Davinder Pal Singh (Deepak) was arrested in Germany and brought back to India. He is a very hard worker and well known to our force and to those outside in the public too (sic). In January 1995, one of our high level members was arrested. It was he who made all the arrangements for Davinder Pal Singh (Deepak) to leave the country. After his arrest they then arrested more of our members. When they were tortured by the Indian Police, they told to the police about our secret places and some of the high level officers names.

The police were looking for us everywhere, nation wide. It was really dangerous for us to live there any more and to hide for the rest of our lives. When police raided our secret place, I was not there, this is my good luck. Our Commanding General, Dr Pritam Singh Sekhon ordered us to save our lives from Indian forces and to go to different countries. Arrangements were made for me to come to Australia through our organisation through some other agent.

I boarded a ship on December 1^st 1996 from Bombay to Melbourne (Australia) and arrived on December 28^th 1996. During the evening, crew members helped me to get out of the port and a taxi was called. I then went to Gurudwara Cragie Burn and the Hume Highway. I stayed there for two days and found the connection to the ISYF (International Sikh Youth Federation) through people at the Gurudwara. Now I have joined the ISYF which is a well know organisation for Sikhs. I want to live in Australia and follow the Australian Constitution.

If I were to return or be returned to India, my life would be put into jeopardy. Because of my role in the KLF and my position, I would be subjected to possible torture and imprisonment. I am not likely to be given any protection by the Indian government.'

12. On 23 April 1997, the applicant was interviewed by the delegate in the course of which he was asked a number of questions pertaining to matters contained in the statutory declaration. A copy of the transcript of that interview was placed before the Tribunal (Exhibit H).

13. At the interview, the applicant maintained that he joined the KLF in 1986. The applicant told the Tribunal he joined the KLF, not out of any personal grievances he may have harboured as a result of the deaths of his family, but in order to fight for the liberation of the Sikh "nation" from the oppression suffered at the hands of the Indian authorities. Before the delegate, the applicant described the members of the KLF as "freedom fighters" as opposed to terrorists.

14. The applicant told the delegate that initially after joining the KLF he worked in Delhi arranging for the movement of boxes containing supplies. The following line of questioning was pertinent to this topic:

'Mr McHugh: What did you do?

Mr Singh: Like, when they wanted to move one shipment to the other area, and they wanted to deal with the trucking transportation, I have the connection. I tell them, "There's a couple of boxes you want to move from certain places to certain places," like that.

Mr McHugh: So you made the arrangements?

Mr Singh: Yes, making the arrangements.

Mr McHugh: And what are we talking about? Boxes of what?

Mr Singh: Sometimes they have weapons also in the boxes, too.

...

Mr McHugh: What sort of things were needed? What would go into a typical operation, that's what I'm asking. What sort of supplies would you move?

Mr Singh: What do you mean, "supplies"? Are you talking about the weapons, are you talking about - - -

Mr McHugh: Well, I don't know, you've called them supplies in your application. I'm asking you

....

Mr Singh: Well, if they want to hit the target they need the weapon, that could be arranged by the chief.

Mr McHugh: What sort of weapons?

Mr Singh: Whatever they needed, what's best for the target.

Mr McHugh: Well, give me an example.

Mr Singh: They need, say like a revolver or a gun.

Mr McHugh: A walawa, what's that?

Mr Singh: I'm talking about a pistol or something like that.

Mr McHugh: A pistol, is it? A revolver?

Mr Singh: A revolver, yes.

Mr McHugh: What other weapons.

Mr Singh: AK47.

Mr McHugh: Was that the main strike weapon, an AK47?

Mr Singh: Most of the time.'

15. During his oral evidence before the Tribunal, the applicant's account was at some variance with the above remarks. For example, while he was responsible for the transportation of boxes, he maintained that at all times he had no knowledge as to the contents of them. He said that as far as he was aware, they could have contained food, clothing, medicine, political literature and pamphlets, or indeed weapons but that he had no specific knowledge of their contents. At the conclusion of the interview with the delegate, the applicant had the following to add to his account of his duties arranging for the transportation of boxes for the KLF:

'In the cargo, like when we were moving those boxes, and I was required the connection and the transportation, and sometimes in the boxes, like they have explosive stock, weapons, clothing and like, when I get an order, "We need so much material," and wherever the place we were hiding that, I go there, we pack up the boxes, make it look like it is like, say, clothing inside, or stuff like that. But the driver of the truck, he doesn't know what's inside the cargo.'

When asked by the Tribunal about the term "explosive stock" in this passage the applicant reiterated that it was just by way of example and that he had no personal knowledge of the contents of the boxes.

16. In the statutory declaration, the applicant said his job was to "arrange the necessary supplies to hit any target" (emphasis added). At the interview, the applicant was asked to provide "details of a target that you helped to arrange" and he gave an example of a police officer who was alleged to have committed acts of torture against Sikh citizens and KLF members. The following passage of the interview transcript is relevant in this regard:

'Mr McHugh: ... All right, you've got a police officer who is torturing one of your men, you've got someone to approach him. What happened?

Mr Singh: Then he didn't release him, then I as ordered, from my boss, and find out all the detail about his family. How many kids he got, and what school they go, what time he go to work, and which road he takes when he is leaving from house, and what route he takes when he is coming back. So I work on that case, and collect all the information, and pass it to my chief.

Mr McHugh: What happened to that policeman?

Mr Singh: They get rid of him.

Mr McHugh: So they killed him?

Mr Singh: Yes, because before they did it the KLF killed, right, the policeman kill him, and then they wait and kill him too.

Mr McHugh: How many operations like that would you have passed information about?

Mr Singh: To hitting the target?

Mr McHugh: Mm, how many operations, how many actions like that would you have been involved in?

Mr Singh: I was not involved in the action.

Mr McHugh: In collecting the information for the action?

Mr Singh: I don't know exactly what number, many, many times.'

17. During his oral evidence before the Tribunal, the applicant was asked at length as to his understanding of the word "target" and what he meant by use of the phrase "hit any target" and other similar terminology used by him from time to time. Consistently, the applicant maintained that in his understanding and usage, "hitting the target" meant doing a job or carrying out an assignment. He said that it could involve supplying sick people with medication, providing accommodation for KLF members in hiding or supplying information to his superiors when requested to do so. When asked as to his understanding of the word "target" in the context of the killing of the police officer, the applicant said that he was referring to the assignments of other members of the KLF whose "target" he said could have been a person marked for killing, although he denied any personal involvement in this type of operation. This aspect of his evidence was at some variance with earlier statements to the effect that as far as he was aware, the KLF never killed anyone whilst he was a member of it.

18. At the interview, the applicant maintained that he was also responsible for collecting information which was then supplied to his superiors. As contained in the passage of transcript reproduced above, he gave the example of being ordered to collect information about a police officer who was later killed by the KLF, including where he lived, how many children he had, what time he went to work and which route he takes when he leaves and returns to the house. He stated that he had collected similar information "many, many times." Before the Tribunal, the applicant denied knowing why his superiors might have required such information and he denied knowing that the KLF was responsible for the killing of the particular police officer, the subject of surveillance by the applicant. Rather, he said that he saw on the news that the Indian Government had blamed the KLF for the killing.

19. Further, the applicant elaborated upon the nature of his other duties as Senior Information and Supply Commander in the KLF. He said that in addition to moving boxes and collecting information as requested by his superiors, he supplied banners to people going on strike, prepared and distributed political literature, arranged accommodation, transport and supplies for KLF members in hiding, provided assistance to victims of attacks by Indian authorities and arranged for the collection of information and statistics regarding human rights abuses allegedly perpetrated by the Indian authorities upon the Sikh community and assisted in the dissemination of such information to the international media.

20. Other witnesses called on behalf of the applicant included Karnail Singh, Ajit Singh and Sukhdeep Singh Deon each of who gave background evidence based on their own experiences as members of various international Sikh organisations as to the political situation in the Punjab province of India and the structure, role and activities of organisations such as the KLF. None of the witnesses had first hand knowledge of the specific role of the applicant in the KLF or the particular activities performed by him nor were they asked to attest to the veracity of the applicant's account of such matters.

Submissions of the Parties

21. On behalf of the respondent, it was submitted by Ms Maharaj that the information provided by the applicant to the delegate at the interview on 23 April 1997 was an accurate account of his involvement in the KLF. She submitted that in his capacity as Senior Information and Supply Commander, he had arranged for the transportation of boxes which he knew to contain weapons and in so doing, had knowingly assisted in the violent activities of the KLF, including murder. She further submitted that he had assisted in the gathering of intelligence about the movements of a police officer who was then killed by the KLF and that he carried out surveillance of a similar nature "many, many times". Ms Maharaj submitted that this information had been given freely and voluntarily by the applicant and was not solicited or prompted in any way by the interviewer.

22. Ms Maharaj submitted that, in contrast, the Tribunal should have serious and grave concerns about the applicant's credibility with respect to the oral evidence he gave before the Tribunal. She submitted that the applicant's evidence before the Tribunal was a blatant attempt to undo the effect of that which he had said in his statutory declaration in support of his application for protection visa and in the interview with the delegate and that it was unreliable for this reason and should not be accepted as representing the truth of the matter. She submitted that his earlier accounts were reliable and ought to be accepted by the Tribunal.

23. Ms Maharaj then submitted that the admissions by the applicant at the interview were clearly sufficient to satisfy the Tribunal that there were serious reasons for considering that he had been an accessory both before and after the fact of murder, namely, the murder of the police officer who was killed by the KLF on the basis of intelligence information collected and supplied by the applicant. Ms Maharaj submitted that murder was clearly a serious crime. In addition, she submitted that the KLF was a terrorist organisation involved in revenge killings of people alleged to have committed acts of violence against the Sikh community of which the murder in question was an example and that, for this reason, the crime committed by the applicant could not be said to be of a political nature. In other words, as the crime was not committed in furtherance of the political objectives of the KLF, it could not be said to be a political crime. It followed, in the respondent's submission, that as there were serious reasons for considering that the applicant had committed a serious non-political crime he was excluded from protection under the Refugees Convention by virtue of Article 1F(b). In the alternative, Ms Maharaj submitted that the applicant's acts constituted crimes against peace or crimes against humanity or were acts contrary to the purposes and principles of the United Nations such that he would fall within the exclusion provisions of Article 1F(a) or (c) respectively. Ms Maharaj invited the Tribunal to affirm the decision under review.

24. On behalf of the applicant, it was submitted that the applicant was not involved in crimes. In his submission, Mr Glazbrook emphasised the peaceful nature of the applicant's activities as a member of the KLF including the planning of demonstrations, the gathering and dissemination of information about human rights abuses against the Sikh community and the transportation of boxes, the contents of which the applicant said he had no knowledge. In this regard, Mr Glazbrook invited the Tribunal to accept the applicant's oral evidence as an accurate account of his involvement in the KLF as well as his explanations as to what he meant by things said at the interview and contained in the statutory declaration. It was submitted in the alternative that if the Tribunal was satisfied the applicant had committed the crimes as alleged by the respondent, that it should find that the crimes were nonetheless of a political nature such that the applicant did not fall within the exclusion clause of Article 1F(b) of the Refugees Convention. Mr Glazbrook submitted that all the activities of the KLF and of the applicant in his capacity as a member of the KLF were committed in the course of attempting to achieve the political objectives of the KLF, namely, the creation of the independent Sikh state of Khalistan and the protection of Sikh peoples from oppression at the hands of the Indian authorities.

Consideration of the Matters at Hand

25. The Tribunal would indicate that it has had regard to the entirety of the material before it including the submissions of the parties and the authorities referred to therein.

26. The Tribunal now turns to consider whether there are serious reasons for considering that the applicant has committed a serious non-political crime pursuant to Article 1F(b) of the Refugees Convention.

27. At the outset, consideration must be given to the meaning of the phrase "serious reasons for considering that" ("the phrase"). The phrase has been examined by the Tribunal in Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 1 and in the more recent cases of W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 12974 and N96/1441 and Minister for Immigration and Multicultural Affairs [1998] AATA 12977 which were decisions of the President of the Tribunal delivered on 10 June 1998 and 11 June 1998 respectively.

28. In Hapugoda (supra), the Tribunal followed the Canadian case of Ramirez v. Canada (Minister of Employment and Immigration) (1992) 89 DLR (4^th) 173 which held that the phrase established a standard of proof requiring less than the balance of probabilities. In the other two cases, the Tribunal was of the opinion that the phrase should not be restated as a standard of proof as it was clear of meaning, relatively easy of application and that it was unnecessary to restate it in terms of a standard of proof and may in some cases lead to confusion and error. The Tribunal disagreed with the standard of proof set in Ramirez (supra) on the ground that the seriousness of the allegation and the extreme consequences which can flow from an affirmative finding upon it would require a decision maker to give substantial content to the requirement that there be "serious reasons for considering" (emphasis added) that such a crime had been committed.

29. The proper construction of Article 1F(b) of the Refugees Convention was considered by the Full Court of the Federal Court in Ovcharuk and Minister for Immigration and Multicultural Affairs (delivered 16 October 1998). In so doing, the Full Court gave consideration to the principles, in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which govern the interpretation of the Convention in light of the High Court's views of those principles in Applicant A and another and Minister for Immigration and Ethnic Affairs and another (1997) 190 CLR 225. The Full Court concluded in Ovcharuk (supra) that there was nothing in the context, object and purpose of the Convention which required that Article 1F(b) be construed other than according to the ordinary meaning of the words of the Article. In so doing, the Full Court applied Article 31 but was of the view that it was unnecessary to have regard to Article 32.

30. Whilst the issues in Ovcharuk (supra) did not necessitate a consideration of the precise construction of the phrase, it is clear and binding upon this Tribunal to give the phrase in question its ordinary meaning.

31. The Tribunal's considered view as to the ordinary meaning of the phrase is that it means "strong grounds for being of the opinion that" a person has committed a serious non-political crime. This meaning accords with the views expressed by French J in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 565 that the phrase "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" (emphasis added). French J went on to point out however that the precise construction of the phrase did not fall for consideration in that case. The Tribunal would, however, indicate that French J's views were adopted by Marshall J in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 where at page 388 His Honour said "... I consider His Honour's approach to the meaning of those words to be highly persuasive".

SERIOUS NON-POLITICAL CRIME

32. Article 1F(b) of the Refugees Convention requires a non-political crime to be serious. In Dhayakpa (supra), French J expressed the following view as to the word "serious" (at page 563):

'... The adjective "serious" in Art 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 Convention on 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. ...'

33. The Tribunal respectively adopts, for the purpose of its consideration of Article 1F(b), the views of French J and is mindful that the words of Article 1F(b) are to be given their ordinary meaning.

34. The facts in Dhayakpa (supra) did not necessitate consideration of the meaning of "non-political" in the context of Article 1F(b) as it was clear that the crime in that case (importation of heroin) was of a non-political nature. However, consideration of that term is to be found in Hapugoda (supra). In that case, the Tribunal affirmed a decision to refuse to grant a protection visa to a member of the People's Liberation Front (JVP) in Sri Lanka. The Tribunal found that the applicant came within the exclusion provision of Article 1F(b) on account of his participation in an armed attack on a police station which resulted in the death of six people. Applying the reasoning of French J in Dhayakpa (supra) in finding that the attack did constitute a serious crime within the meaning of Article 1F, the Tribunal, after reviewing the relevant authorities, considered whether the acts of the applicant for visa could be said to be of a political nature. In this regard, the Tribunal drew the following conclusion:

'The nature and purpose of this attack was clearly to seek retribution for the death of his friend Mahesh. In that sense it was not directed solely for a political purpose or for genuine political motives. There was no sufficiently close or direct causal link between the attack on the Madampe police station and the alleged political purposes of the JVP. There was a lack of nexus between the crime and any realistic political objective. It was for a private purpose involving a personal motive too remote from the political objectives of the JVP.

... It was clearly disproportionate to any political objective sought to be achieved.'

In relation to the task of the Tribunal in determining whether there are serious reasons for considering that Mr Singh has committed a serious non-political crime, the respondent submitted that the issue for determination is whether there are serious reasons for considering that the applicant knowingly assisted in the transportation of weapons and the provision of intelligence to his superiors in the KLF which knowingly assisted in the killing of at least one police officer and, if so, whether any of this constitutes a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention. If the Tribunal is not so satisfied, the Tribunal is then to consider in the alternative whether there are serious reasons for considering that the applicant has committed "a crime against peace" or "a crime against humanity" for the purposes of Article 1F(a) or an act "contrary to the purposes and principles of the United Nations" for the purposes of Article 1F(c).

FINDINGS OF FACT

35. The Tribunal has had the advantage of closely observing and listening to the applicant during the giving of his oral testimony. The Tribunal was of the view that in many respects he was a very unimpressive witness. The evidence he gave before this Tribunal as to the reasons why he had given certain answers to questions asked of him at the interview with the delegate was unconvincing to say the least. The Tribunal formed the distinct impression that in the main, the applicant's testimony before the Tribunal was a deliberate and calculated attempt to avoid the consequences which might well flow from the information furnished by him at the interview as to his activities as a member of the KLF and, in particular, to avoid revealing the fact that he knowingly provided information as to the movements of the police officer for the purpose of enabling the officer to be killed by members of the KLF. Clearly, his evidence did not represent the truth of the matter and, in particular, with respect to the following topics: what the applicant meant by the terminology "hitting the target"; the state of the applicant's knowledge as to the existence of weapons and explosives in boxes transported by him; the applicant's knowledge as to use of violence from time to time by the KLF; and the state of the applicant's knowledge as to the role that information supplied by him on the whereabouts and movements of the police officer would play in the eventual killing of the police officer by the KLF.

36. In contrast to the unreliability of his oral evidence before the Tribunal, the Tribunal is of the view that the statutory declaration and statements made in the course of the interview with the delegate represent an accurate account of the applicant's involvement in the activities of the KLF and the Tribunal so finds. As to the interview, the applicant had the advantage of having the assistance of his representative who was present during the interview and whom he was able to communicate with in the course of it. There was no suggestion that the interview took place in a coercive or intimidating atmosphere or that the applicant was disadvantaged in any way, shape or form in the giving of his answers to questions asked of him or that the answers were not given freely or of his own volition. Similar considerations apply to the statutory declaration. The Tribunal does not accept, however, that when the applicant informed the interviewer that he "was not involved in the action", he meant that he was not involved in the supply of information about the movements of the police officer well knowing the information was to be utilised, and in fact was utilised for the purpose of killing the officer. The Tribunal accepts the answer to mean only that the applicant was not involved in the physical act of killing the officer in question or of other persons about whom he had supplied information.

37. The Tribunal would indicate that it accepts the factual content of the evidence of the other witnesses who gave oral evidence on behalf of the applicant. The Tribunal found them to be helpful in the background picture they painted of the political landscape in the Punjab region of India, much of which was not disputed by the respondent.

38. The Tribunal makes the following findings of fact on the evidence which it has accepted and by drawing from it what it considers to be inescapable inferences. The Tribunal would indicate that the strength of the evidence is such that it makes these findings on the balance of probabilities:

1. The applicant knowingly and actively participated in the unlawful killing of the police officer referred to earlier in these reasons. The applicant did so by the provision of information and intelligence pertaining to the whereabouts and movements of the police officer knowingly for the purpose of the killing of him by other members of the KLF.

2. The applicant has on other occasions knowingly participated in the commission of similar acts by the provision of information and intelligence concerning the movement and whereabouts of other persons who were "targets" for KLF purposes.

3. The applicant also knowingly and actively participated in acts of violence perpetrated by members of the KLF in so far as he assisted in the provision of weapons and explosives to those members full well knowing the purpose for which they were to be used and after these acts of violence were carried out, he arranged from time to time transportation for these members and places for them to hide.

39. The Tribunal now turns to a consideration of whether the actions of the applicant, or any of them, amount to a crime for Article 1F(b) purposes. The Tribunal is of the opinion that the killing of the police officer was clearly a crime. There was no lawful justification for such action. It goes without saying that this crime was serious on any view of the matter. It is a crime which must be described as serious for Article 1F(b) purposes.

40. The question then arises as to whether this serious crime is non-political. Having regard to the accepted evidence, the Tribunal is satisfied on the balance of probabilities that the planned unlawful killing of the police officer took place because he was alleged to have tortured a member of the KLF. Despite the assertions by the applicant that his involvement with the KLF and the activities of the KLF in general were directed solely at achieving the creation of the independent Sikh state of Khalistan and protecting Sikh minorities from oppression by the Indian authorities, in the Tribunal's opinion, the crime in question can only be characterised as an act of revenge or retribution against the particular police officer for the alleged torture of a KLF member. Accordingly, there can be said to be no nexus or proportionality or close or direct causal link between this crime and the alleged political objectives of the KLF. The Tribunal is of the view that this serious crime is very much akin to the subject crime in Hapugoda (supra) which the Tribunal found to be lacking in any meaningful political character. For these reasons, the Tribunal finds that the unlawful killing of the police officer falls to be considered as a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention.

41. The obvious reason why the police officer was unlawfully killed, namely to avenge the torture of a KLF member, alleviates the necessity to enquire into the political nature or otherwise of the KLF involving as it would an enquiry as to whether that organisation is in fact a terrorist organisation and whether the applicant is in fact a terrorist. In short, the political nature or otherwise of the KLF (of which the applicant was a member) has no relevant bearing on whether the serious crime was political or not simply because the unlawful killing of the police officer out of retribution cannot, on the facts before the Tribunal, constitute a serious political crime for Article 1F(b) purposes.

42. The Tribunal now turns to the applicant's degree of participation in the unlawful killing of the police officer. The Tribunal is satisfied that the applicant actively participated in the killing of the officer in the sense that he knowingly provided information about the officer's movements for the purpose of and which enabled the killing of the officer. The Tribunal is satisfied that the applicant's actions at the very least make him an accessory to the murder of the officer and that constitutes for Article 1F(b) purposes a serious non-political crime.

43. The Tribunal's findings with respect to the unlawful killing of the police officer are such that there are serious reasons for considering that the applicant has committed a serious crime outside the country in which he seeks refuge. For the sake of completeness, while this finding by the Tribunal is sufficient to preclude the applicant from the protection provided by the Convention and accordingly from obtaining a protection visa, the Tribunal will deal, albeit briefly, with the remaining findings by the Tribunal as to the actions of the applicant and determine whether or not there are serious reasons for considering that the applicant has committed other serious non-political crimes. In this respect, the Tribunal refers back to its findings on the balance of probabilities that:

The applicant has on other occasions knowingly participated in the commission of similar acts by the provision of information and intelligence concerning the movement and whereabouts of other persons who were "targets" for KLF purposes.

The applicant also knowingly and actively participated in acts of violence perpetrated by members of the KLF in so far as he assisted in the provision of weapons and explosives to those members full well knowing the purpose for which they were to be used and from time to time, arranged transportation for members and places for them to hide.

45. The Tribunal would indicate that there is a paucity of information before it to determine the exact nature and extent of these acts perpetrated by members of the KLF. It is not unreasonable to infer from the record of interview, however, that where the "target" was a person (as was the case with the police officer) then there were other occasions when purely for retributive purposes a person was killed or injured. It is also not unreasonable to infer that the role played by the applicant was on one or more of those occasions such as to constitute serious reasons for considering that he had committed a serious non-political crime within the meaning of Article 1F(b). It is also not unreasonable to infer in the Tribunal's opinion that the provision by the applicant of weapons and explosives to members of the KLF "to hit any target" (see statutory declaration) coupled with the corroborative material contained in the record of interview, resulted on one or more occasions in a serious non-political crime being committed by the applicant. The nature of the actions of the applicant and the KLF in the above regard strongly suggest that these crimes were non-political. There is, in any event, clearly insufficient information before the Tribunal to indicate the necessary nexus or proportionality or close or direct causal link between crimes of this nature and the alleged political objections of the KLF. The Tribunal accordingly finds that there are serious reasons for considering that the applicant has committed serious non-political crimes other than that which involved the unlawful killing of a police officer.

46. As the Tribunal is satisfied on the balance of probabilities that the applicant has committed serious non-political crimes outside Australia prior to his entry to Australia, it goes without saying that there are serious reasons for considering the same and the Tribunal so finds. Clearly then, the applicant falls within Article 1F(b) of the Refugees Convention and is thus excluded from protection under that Convention. As the applicant is not a person to whom Australia has protection obligations, his application for a protection visa must be refused.

47. The Tribunal would indicate that it does not consider it necessary, having reached the above conclusion, to determine whether the same conduct also falls within Article 1F(c) or Article 1F(a).

48. For these reasons, the decision under review is affirmed.

I certify that this and the 21 preceding pages are a true copy of the decision and reasons for decision herein of DEPUTY PRESIDENT B.H. BURNS

Signed: ...........................Lisa Powell...........................

Associate

Date/s of Hearing 17-18 November 1998 and 17 December 1998

Date of Decision 27 January 1999

Counsel for the Applicant Mr R. Glazbrook

Solicitor for Applicant

Counsel for the Respondent Ms S. Maharaj

Solicitor for the Respondent Department of Immigration and Multicultural Affairs