Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1599 (19 November 1999)

Last Updated: 24 November 1999

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [ 1999[ FCA 1599

IMMIGRATION - meaning of non-political crime in Article 1F of the Refugees Convention - whether there were serious reasons for considering that appellant had committed serious non-political crime - appropriate test as to the meaning of "non-political" in Article 1F(b) - link between fulfilment of political purpose and crime - whether motive of revenge precludes crime from being political crime.

WORDS AND PHRASES - meaning of "non-political crime".

Migration Act 1958 (Cth) ss 36(2) and 500(1)

Migration Regulations reg 866.221

Extradition Act 1988 (Cth) s 7

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 considered

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

T v Home Secretary [1996] UKHL 8; [1996] AC 742 considered

Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4d) 497 applied

Immigration and Naturalization Service v Aguirre-Aguirre (Supreme Court of the

United States, 3 May 1999) considered

S v Refugee Status Appeals Authority [1998] 2 NZLR 301 considered

Prevato v The Governor, Metropolitan Remand Centre [1986] FCA 17; (1986) 8 FCR 358 considered

R v Wilson; Ex parte Witness T [1976] HCA 33; (1976) 135 CLR 179 applied

Todea v Minister for Immigration and Ethnic Affairs (1994) 20 AAR 470 considered

R v Governor of Brixton Prison, Ex parte Schtraks [1964] AC 556 considered

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

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 considered

DALJIT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 13 OF 1999

MANSFIELD J

ADELAIDE

19 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 13 OF 1999

BETWEEN:	DALJIT SINGH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	19 NOVEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 13 OF 1999

BETWEEN:	DALJIT SINGH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MANSFIELD J
DATE:	19 NOVEMBER 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 27 January 1999 that the appellant was not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"). I use those terms as they are defined in the Migration Act 1958 (Cth) ("the Act"). Consequently, the appellant did not satisfy the criterion for the grant of a protection visa for which he had applied, as that criterion is specified in s 36(2) of the Act and reg 866.221 of the Migration Regulations ("the Regulations"). The Tribunal's decision was based on the conclusion that the appellant fell within the exclusion contained in Article 1F(b) of the Convention. It affirmed the decision of a delegate of the respondent to refuse the appellant a protection visa.

2 Article 1F of the Convention provides:

"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 of that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

Background

3 The appellant is an Indian citizen of Sikh ethnicity. At the time of the decision, he was forty-eight years of age. He and his family operated a trucking business in Delhi for many years. Following the assassination of Indira Gandhi in 1984, members of his family were killed by Hindu mobs and the family business was destroyed.

4 In 1986, the appellant joined the Khalistan Liberation Force ("KLF"), whose aims included the creation of the independent Sikh state of Khalistan and he remained an active member of the KLF until he left India in December 1996, that is for some ten years. By 1991, he was a senior member of the KLF, in the position (as he described it) of "commander of information".

5 The appellant arrived in Australia on 28 December 1996. On 23 January 1997, he applied for a protection visa under s 36 of the Act. He claimed that his life would be in jeopardy should he return to India, by reason of his activities as a member of the KLF.

6 On 1 July 1997, that application was refused by a delegate of the respondent. The delegate decided that the appellant had committed crimes against peace within the meaning of Article 1F(a) of the Convention. It is not necessary to refer to that finding in detail.

The Tribunal's reasons

7 The appellant applied to the Tribunal for review of that decision pursuant to s 500(1) of the Act. The Tribunal refused to grant the visa sought on the ground that the applicant was excluded from being a refugee within the meaning of that term in the Convention, by reason of Article 1F(b) of the Convention. In reaching its conclusion, the Tribunal applied the directions of the High Court in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 as to the proper approach to the interpretation of the Convention.

8 The Tribunal decided that the Convention did not apply to the appellant because it was satisfied that there were serious reasons for considering that the appellant had committed a serious non-political crime outside Australia prior to his admission to Australia. It directed itself that the requirement that there be "serious reasons for considering" that the applicant had committed such a crime meant that it had to be satisfied that there are strong grounds for being of the opinion that the appellant has committed a serious non-political crime. It noted and applied the observations of French J in Dhayakpa v Minister for Immigration & 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"

and as to the word "serious" at 563:

"the adjective "serious" in Article 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgment. 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 ..."

9 No issue was raised on this appeal as to the Tribunal's construction or application of those expressions. The only question on the appeal was whether the Tribunal had applied the correct test as to the meaning of "non-political" in Article 1F(b).

10 The respondent before the Tribunal submitted that the evidence showed that there are serious reasons for considering that the appellant knowingly assisted in the transportation of weapons for the KLF, and so he had knowingly assisted in the violent activities of the KLF including murder. It was also submitted that the appellant had assisted in the gathering of intelligence about the movements of a police officer for the purpose of assisting in his murder, and that that police officer was then murdered. It was contended that there were therefore serious reasons for considering that the appellant had committed serious non-political crimes in India. Thus, the respondent invited the Tribunal to reject the appellant's claim to refugee status by reason of Article 1F(b) of the Convention. As the Tribunal did reach that conclusion, it was not necessary for it also to consider whether the provisions of Article 1F(a) applied (the clause upon which the delegate's decision was made), or whether the provisions of Article 1F(c) applied, so as to disentitle the appellant from refugee status under the Convention.

11 The appellant's response was that, if he was found (contrary to some of his evidence to the Tribunal) to have engaged in that conduct, the crimes 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 people from oppression at the hands of the Indian authorities. He submitted that his alleged crimes were political crimes which did not fall under Article 1F(b) of the Convention.

12 It is necessary to refer in some detail both to the Tribunal's findings of fact, and to how it then approached the application of Article 1F(b) to those facts.

13 The Tribunal had serious concerns about the truthfulness of the evidence given by the appellant. It gave its reasons for those concerns. It had regard to the whole of the material before it, including the appellant's application for a protection visa and his interview before the delegate of the respondent. It found 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 police officer was one who was alleged to have committed acts of torture against Sikh citizens and KLF members]. 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."

14 The Tribunal concluded that the killing of the police officer was a serious crime within the meaning of Article 1F(b). It found that that crime took place because that police officer was alleged to have tortured a member of the KLF. It found that the active participation of the appellant in that crime made him an accessory to the murder of the police officer. It then addressed the question whether that crime was "non-political". Its reasons and conclusion are contained in the following passage:

"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 [Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 1] 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.

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."

15 In relation to the more general findings numbered 2 and 3 set out above, the Tribunal observed that there was a paucity of information about the exact nature and extent of those acts perpetrated by members of the KLF. Despite that lack of information, it added:

"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."

16 It also observed that it was "not unreasonable to infer" that the appellant's role on one or more of those occasions was such as to constitute a serious reason for considering that he had committed a serious non-political crime within the meaning of Article 1F(b), and that the provision by the appellant of weapons and explosives to members of the KLF to "hit any target" (an expression used in the appellant's statutory declaration to the respondent) and corroborative material obtained at interview also resulted on one or more occasions in the appellant having committed a serious non-political crime. It concluded:

"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 (sic, objectives) 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."

Consideration of principal contention

17 The meaning of the expression "non-political" in Article 1F(b) of the Convention has been considered in a number of decisions. They were extensively reviewed in the speeches of Lord Mustill and Lord Lloyd of Berwick of the House of Lords in T v Home Secretary [1996] UKHL 8; [1996] AC 742 ("T"). For the purposes of this appeal, it is not necessary to rehearse that review again. The appellant, an Algerian national, sought refuge in the United Kingdom. He was a member of a group named `F.I.S.', which he claimed had been elected to power in Algeria but had been ousted by the previous regime. F.I.S. was declared an illegal organisation. It embarked upon a terrorist program intended to secure power in Algeria, and to that end it was prepared to use random violence to achieve that purpose. The appellant had been involved in an indiscriminate bombing attack at the Algiers airport in which a number of innocent civilians were killed. He had also been involved in a raid to seize arms from an army barracks, during which one person had been killed.

18 Lord Lloyd, with whom Lord Keith of Kinkel and Lord Browne-Wilkinson agreed, proffered the following definition of a political crime for the purposes of Article 1F(b) of the Convention as being one (at 786-787):

"... if, and only if (1) it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public."

His Lordship (at 787) described that "definition" as the description of an idea. The appellant in that case was found not to have met the second of the two elements of the "definition".

19 The appellant in the matter before me accepted that passage as accurately stating the appropriate test to be applied in determining whether a particular serious crime is a political crime. It is sometimes called the "proportionality" test, that is the weighing of the gravity of the crime in the scales to determine whether it is of a political character. It is not to balance the criminal acts against the risk of persecution the appellant would face if he were returned to his country of origin. It is consistent with the approach of the Canadian Federal Court of Appeal in Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4d) 497 ("Gil"). Hugessen JA delivered the judgment of the court. His Honour found that there was no objective rational connection between the crime and the political objective of forcing the government regime to fall or to change its policies. The violence was wholly disproportionate to any legitimate political objective. The appellant in that case engaged in indiscriminate bombing of business premises in crowded places, causing injury and death to bystanders.

20 More recently, in Immigration and Naturalization Service v Aguirre-Aguirre (Supreme Court of the United States, 3 May 1999), the same general approach appears to have been taken. Kennedy J delivered the judgment of the Court, restoring the decision of the Board of Immigration Appeals that the applicant for asylum had committed a "serious nonpolitical crime", in burning buses, assaulting passengers, and vandalising and destroying private property in protest at various policies and actions of the Guatemalan government. Kennedy J pointed out that full elaboration of what may constitute a political crime should be developed on a case by case basis, but that the Board had not applied an incorrect test. His Honour said:

"Our decision takes into account that the BIA's test identifies a general standard (whether the political aspect of an offense outweighs its common-law character) and then provides two more specific inquiries that may be used in applying the rule: whether there is a gross disproportion between means and ends, and whether atrocious acts are involved. Under this approach, atrocious acts provide a clear indication that an alien's offense is a serious nonpolitical crime."

21 A similar conclusion appears to have been accepted by Smellie J in S v Refugee Status Appeals Authority [1998] 2 NZLR 301 ("S"). The applicant in that case engaged in a rampage of aggravated assaults on shopkeepers in Colombo, demanding money, under the guise of that money being applied for the political purposes of a communist-based movement aiming to destabilise the government and to take over the running of the country. His Honour, after referring to the views in T and in Gil, found that the robberies were not political crimes because they were carried out for personal gain and that there was no true political motive involved in any event. It was not necessary for Smellie J to reconsider that approach carefully.

22 The discussions in those cases, and the earlier cases, were not confined to decisions directly concerning Article 1F(b) of the Convention. Extensive reference was made to extradition cases. In many jurisdictions, a person is not liable to be surrendered to a foreign state in respect of an offence of a political character: see, for example s 7, Extradition Act 1988 (Cth) ("the Extradition Act"). There is obviously a close resemblance of the two concepts under Article 1F(b) and under extradition legislation, although they are not necessarily analogous: see the discussion on this question in the judgment of Hugessen JA in Gil at 502-503.

23 Wilcox J in Prevato v The Governor, Metropolitan Remand Centre [1986] FCA 17; (1986) 8 FCR 358 ("Prevato") had to address s 7 of the Extradition Act. The applicant in that case successfully sought judicial review of a decision that he was liable to be extradited to Italy. He was alleged to have been complicit in a campaign of subversion and deliberate damage to government educational establishments. He claimed that his actions were in protest at the methods used to select students. Wilcox J found, in the circumstances of that case, that his alleged offences were of a political character. After reviewing many of the same authorities as were referred to it T, and others including the High Court decision in R v Wilson; Ex parte Witness T [1976] HCA 33; (1976) 135 CLR 179, Wilcox J concluded (at 386):

"Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organised, prolonged campaign involving a number of people. The offence must be directed solely to that purpose; it must not involve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the campaign may be a political offence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be."

24 I observe that both Lord Mustill and Lord Slynn in T at 768-775 respectively suggested that their Lordship might reach a different conclusion on the latter of those two illustrations.

25 It is apparent that there are differences between the `definition' of Lord Keith in T as to the meaning of political crime in Article 1F(b) of the Convention, and the views of Wilcox J in Prevato as to the meaning of a similar term in the Extradition Act. Counsel did not make detailed submissions as to which of those views is the correct one, although my attention was drawn to both those decisions. That is no doubt because the differences are not relevant to the determination of this appeal. The point at issue on the appeal concerned how the motivation of revenge leading to the commission of a serious crime affects its characterisation as political or non-political. Both the views of Lord Keith and of Wilcox J require the existence of a political purpose for the commission of the crime, and a particular form of link between the fulfilment of that purpose and the nature of the crime. The contention of the appellant is that the finding of the Tribunal that the purpose of the appellant was not a political purpose but was revenge reflected an incorrect understanding of the law. It is contended that the fact that a crime is an act of revenge does not automatically exclude it from having the character of a political crime.

26 In view of the acknowledgment by counsel for the appellant, it is also not necessary to address the views of Lord Mustill (at 762, 772-773) and of Lord Slynn of Hadley (at 775-776) in T which adopted a different, and probably wider, approach to what criminal conduct falls within the concept of political crime.

27 The Tribunal appears to have eliminated the appellant's crime from the rubric of "political" protection because it was an act of revenge. I do not consider that, to characterise a criminal act as an act of revenge necessarily precludes it from being a political crime. If that is what the Tribunal did, then I think it was in error. If, on the other hand, it simply found as a fact that the appellant's motive of revenge was not directed to fulfilling the political objectives of the KLF, but was remote from that purpose, then the conclusion of the Tribunal would not be in error. The outcome, then, would be similar to the outcome in S in New Zealand. Wilcox J in Prevato at 386 recognised the same distinction. See also the decision of Sackville J in Todea v Minister for Immigration and Ethnic Affairs (1994) 20 AAR 470 at 488.

28 In my judgment, one cannot necessarily disentangle from the concept of "political" crimes those which are acts of revenge. The definition of "revenge" includes: maintain, uphold or vindicate (a cause, quarrel etc) by some act of retribution or punishment (SOED, Vol 2 at 2579). The concept of "an eye for an eye" has been a feature of political violence over history. One need only think of the periodic escalation of violence in Northern Ireland in response to some perceived intrusive initiative on the part of the authorities to make that point. For example, when in August 1971 the Minister for Home Affairs for Northern Ireland exercised powers to intern many of those believed to be associated with the Irish Republican Army, the response was a campaign of targeting and killing soldiers and members of the Royal Ulster Constabulary. In a period of a few weeks, many more were killed than in the preceding months.

29 In Gil, it appears the Immigration Appeal Board had doubted that the appellant's crimes were politically motivated at all, or were simply acts of "revenge and anarchy in his mind" so that they did not go beyond personal vindictiveness (see 501). The commission of an offence under the guise of a political offence, when it merely fulfils a personal grudge will not constitute a political offence: R v Governor of Brixton Prison, Ex parte Schtraks [1964] AC 556 per Lord Reid at 583. The point is also recognised in the United Nations Human Rights Commission Handbook, par 152 (at 36) and in Goodwin-Gill The Refugee in International Law (Clarendon Press, 1983) at 60, although not explicitly in the second edition (1996). But in Gil, Hugessen JA described the Board's scepticism about that appellant's motives as "misconceived". His Honour said at 515:

"While there is no doubt that a purely personal motive such as monetary gain or the settling of accounts with a hated adversary might serve to vitiate a claim that a crime was political, I do not think that characterizing this appellant's motives as being "revenge" or "vindictiveness" does him justice. There is no indication in the evidence that the rich merchants who were the target of the appellant's attacks were personally known to him, and indeed he indicated that he took orders from higher-ranking members of his group who selected the targets for him. In a sense, of course, the appellant was seeking revenge in that he perceived those targets as being responsible for the difficult political, social and economic situation in which he found himself. Such perception, however, is a normal component of a desire for political revenge and the emotion, although not the action, is common enough in political relationships even in this country."

30 The Tribunal referred to Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 25 AAR 1 ("Hapugoda") as providing support for its approach to the question. Hapugoda involved a member of the People's Liberation Front (JVP) in Sri Lanka, who had participated in an armed attack on a police station resulting in the death of six people. The Tribunal there found that the visa applicant was excluded from being a refugee by reason of Article 1F(b) of the Convention. It found as a fact that the purpose of the attack was to seek retribution for the death of a friend, and "in that sense it was not directed solely for a political purpose or for genuine political motives". The motive was a private and personal one too remote from the political objectives of the JVP. The friend had been found dead by a roadside some time before, but the evidence as recorded in the reasons for decision did not suggest that that death was related to JVP activities. The Tribunal said, at 9:

"The objectives of the JVP as cited by the applicant were politically-motivated and, if the attacks were organised solely with those aims in mind, it would be open for the Tribunal to find that the offences were political, despite the violent way in which they occurred. However, this is clearly not the case, at least in relation to the attack on the police station in Madampe on 26 September 1989. While there were a number of similarities to previous attacks it differed in that the applicant admitted it was a revenge attack on the police for the death of his friend, Mahesh."

31 In the light of those observations, and the findings of fact, I do not consider that that decision supports the proposition that an act of revenge or retribution cannot by virtue of that characteristic be a political offence. Nor do I consider that it supports the proposition that the element of revenge or retribution results in there being no "nexus or proportionality or close or direct causal link between" the crime and the political objectives of the KLF in the present circumstances. It was a decision on the particular facts that the crime was not politically motivated.

32 In my judgment, the Tribunal in the case before me did fall into the error of treating the appellant's crime as non-political because it was a crime of revenge. Neither authority nor logic support such a dichotomy. The Tribunal's reasons are partly set out above. It was, the Tribunal said, because the crime was one of revenge that it lacked any political character. It said that the element of revenge alleviated the necessity to inquire into the political nature of the KLF or of its activities. It treated those matters as irrelevant because the crime was one of retribution.

33 The respondent submitted that the Tribunal's conclusion was simply a conclusion of fact, that is, that the conclusion that in the particular circumstances, the crime of killing the policeman was only an act of revenge or retribution was a decision on the facts. I do not think that the Tribunal did make that decision as a fact, having properly instructed itself that as a matter of law the mere fact that a crime motivated by political causes can nevertheless be a political crime even if the immediate purpose is revenge or retribution. The Tribunal found, as its reasons show, that the crime was against a particular police officer for the alleged torture of a KLF member, and because of that fact there was no nexus or proportionality or close or direct causal link between the crime and the political objectives of the KLF. In my judgment it is saying that an act of retribution per se cannot constitute a serious political crime.

34 Later in its reasons, it said that whatever the political nature or objectives of the KLF

"... 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,"

the application must fail. It is also said that there may have been other occasions when "purely for retributive purposes" targets of the KLF may have been killed or injured.

35 It is plain that political motivation does not convert every crime into a political offence. But the emphasis is upon the intention or motive of the perpetrator. To say that that motive is revenge does not really address the real question: revenge may be personal, or it may be political. In a sense, every political crime is a reaction to circumstances which the perpetrator regards as threatening or unsatisfactory. If the act of revenge, in an immediate sense, had the purpose of endeavouring to dissuade the authorities from engaging in the conduct to which the political objection is taken, then I think that crime may nevertheless be a political crime not excluded by Article 1F(b). The crime in question may have been an act of revenge, but directed exclusively to inducing the government to change its policy about the torture of KLF members who had been arrested.

36 I have therefore reached the conclusion that the Tribunal did not properly consider the question of whether the appellant's crime in being an accessory to the murder of a police officer was a political offence.

37 The Tribunal's consideration of the matters referred to in the findings numbered 2 and 3 is quite brief. Those reasons are set out above. To the extent that the Tribunal concluded that the appellant had been party to particular persons being killed or injured "purely for retributive purposes", in my judgment the Tribunal has erred in the same way as I have set out above.

Consideration of the Tribunal's further finding

38 The Tribunal also found further non-political criminal conduct on the part of the appellant (set out in par 13 above). It explained that finding as follows:

"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" ... 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 Tribunal's conclusion and reasons on that aspect are set out in par 16 above.

39 As that aspect had not been fully dealt with in primary submissions, I provided the parties with the opportunity to make further written and oral submissions. Counsel for the appellant put two submissions. First, it was contended that, if the Tribunal was found to have been in error in respect of the principal contention, that error permeated the whole of the Tribunal's reasons, so that the further finding did not provide an independent basis for the Tribunal's decision. Secondly, it was contended that the reasoning of the Tribunal was inconsistent, having regard to its views expressed earlier in its reasons (in the passage quoted at par 14 above) that it was unnecessary to enquire into the political nature or otherwise of the KLF, and did not properly apply the test enunciated by Lord Lloyd in T at 786-787. I took that to invoke s 476(1)(e) of the Act. Counsel for the appellant did not contend that there was any error by reason of the generality of the Tribunal's reasons, nor by reason of the limited extent of its reasons (s 430 of the Act), nor in any other respect.

40 In my judgment, the finding now under consideration provides a separate and independent reason for the Tribunal's decision. The Tribunal addressed that issue discretely. It did so, as it said, for the sake of completeness. The element or motive of revenge, which arose in respect of its earlier findings, was not a feature of the third finding. I do not accept the submission that the error of law which I have found in relation to how the Tribunal treated the significance of the motive of revenge tainted the Tribunal's reasons in relation to this finding.

41 The Tribunal's reasons for its conclusion on this aspect are laconic. Having regard to the observation earlier in its reasons that it was unnecessary to enquire into the political nature of the KLF, it is surprising that it later concluded that the KLF (and the appellant by his participation) engaged in non-political crimes without much explanation. It made only a cursory reference to the material upon which it relied. However, its consideration of that question is at a later point in its reasons, and is in relation to a different element of the criminal conduct in which it found the appellant had engaged. In addition, its finding concerns the quality of the crimes themselves rather than of the KLF's political objectives. As is apparent from the authorities referred to above, a particular crime by its very nature may be "non-political" for the purposes of Article 1F(b) irrespective of the political motives of its perpetrators. There is therefore, in my judgment, no inconsistency between the finding of the Tribunal on this matter and its earlier observation.

42 The two elements necessary to constitute a political crime, as enunciated by Lord Keith in T at 786-787, relate to its purpose and to its character in relation to that purpose. The Tribunal in this part of its decision clearly concluded that the character of the crimes was such that, assuming a political purpose, they did not have a sufficient relationship to the fulfilment of that purpose to fall within the aegis of Article 1F(b) of the Convention. The Tribunal's reasons are not to be analysed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272-273, 290-293 ("Wu Shan Liang"). Although it is not explained in any detail, it is apparent that the Tribunal has had regard to the quality of the crimes in which it found the appellant had participated. That must include the targets of those crimes, and whether they involved indiscriminate killing or injuring of members of the public. I confess to being concerned that, having referred to the character of the crimes, the Tribunal then referred to the insufficiency of information to show an appropriate nexus between the crimes and the political objectives of the KLF. That is a paraphrase of the second limb of Lord Keith's "definition". One might expect it to have been part of the consideration of the quality of the crime. In addition, it is not the case that an onus of proof arises in relation to such issues: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425. However, I am not in the end of the view that that part of the Tribunal's reasons demonstrate error on its part in the way contended for. It is open to the Tribunal to determine that the character of a particular crime, whatever its political objectives, is such that it is not a political crime because of its characteristics. The tribunal has done that. That later passage, in context and bearing in mind the direction of the High Court in Wu Shan Liang, does not indicate that the Tribunal misapplied the law in reaching that conclusion. It may simply be the Tribunal indicating that it has not addressed the political objectives of the KLF for that reason. The Tribunal's reasons might well have explained in greater detail in what crimes the appellant had participated, and how and why it came to its conclusion about why the crimes in which it found the appellant had participated were non-political, but as noted earlier there is no complaint by the appellant that it has not complied with s 430 of the Act.

43 Accordingly, in my judgment, the appeal should be dismissed. I so order. Bearing in mind that the appellant has succeeded on his principal contention, but has failed on his subsidiary contention, in my view there should be no order on the costs of the appeal.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 19 November 1999

Counsel for the Applicant:	Mr M Clisby
Solicitorfor the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S Maharaj
Solicitors for the Respondent:	Australian Government Solicitor
Dates of Hearing:	13 and 18 September 1999
Date of Judgment:	19 November 1999