Singh v Minister for Immigration & Multicultural Affairs

Facts; decision of the Tribunal 6 The appellant was born on 11 November 1954. He and his family lived in Delhi where they operated a trucking business. In 1984, the appellant 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. In 1986, the appellant joined the Khalistan Liberation Force (KLF), whose aims included the creation of an independent Sikh state of Khalistan. The appellant was an active member of the KLF until his departure from India in December 1996. 7 So much was uncontroversial. In a statutory declaration lodged with his application for a protection visa, the appellant gave this description of his activities as a member of the KLF. "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 week, 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." 8 The appellant was interviewed by the Minister's delegate. The Tribunal recorded, in its reasons, the following exchange between the delegate and the appellant: "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: 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: What other weapons. Mr Singh: AK47. Mr McHugh: Was that the main strike weapon, an AK47? Mr Singh: Most of the time." 9 The Tribunal recorded also the following statement made by the appellant at the end of the interview: "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." 10 Finally, the Tribunal quoted the following additional passage from the transcript of the interview: "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." 11 In his evidence before the Tribunal, the appellant somewhat modified his account. He claimed that he never knew the contents of the boxes which were to be transported. So far as he was aware, they could have contained food, clothing, medicine, political literature and pamphlets, or indeed weapons; but he had no specific knowledge of their contents. The reasons of the Tribunal record that: "During his oral evidence before the Tribunal, the [appellant] 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 [appellant] 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 [appellant] 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."

The appellant told the Tribunal that he did not know why his superiors wanted information about the police officer or similar information which he had collected "many, many times". He said that, in addition to moving boxes and collecting information, he had supplied banners to strikers, prepared and distributed political literature, arranged accommodation, transport and supplies for KLF members in hiding and provided assistance to victims of attacks by Indian authorities. He had also 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.

12 The Tribunal found that the evidence given before it by the appellant was unreliable and that the statutory declaration and the answers given by the appellant during the interview with the delegate represented an accurate account of the appellant's involvement in the activities of the KLF. The Tribunal proceeded to make the following three 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." 13 The Tribunal found that the killing of the police officer was a serious crime; that the appellant was an accessory to it; and that the crime was non‑political because, whatever the goal of the KLF's activities might have been, the crime itself could "only be characterised as an act of revenge or retribution against the particular police officer for the alleged torture of a KLF member" so that there could "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". Thus the appellant fell within Art 1F(b) of the Convention. 14 The Tribunal made, in addition, the following findings also justifying the conclusion that the appellant was excluded by Art 1F(b) from the Convention definition of "refugee": "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.

Primary Judge's reasons 15 The only substantial issue before the primary Judge was whether the Tribunal had correctly applied the law in concluding that the crimes in which the appellant, on its findings, had been involved were non‑political crimes. The appellant accepted, before the primary Judge, that the appropriate test was that propounded by Lord Lloyd of Berwick, with whom Lord Keith of Kinkel and Lord Browne-Wilkinson agreed, in T v Home Secretary [1996] AC 742 at 786, 787: "A crime is a political crime for the purposes of article 1F(b) of the Geneva Convention 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." 16 The appellant also relied on the following passage in the judgment of Wilcox J in an extradition case, Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 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." 17 The primary Judge commented, at par 25: "It is apparent that there are differences between the 'definition' of Lord [Lloyd] 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." 18 His Honour accepted a submission on behalf of the appellant that to characterise a criminal act as an act of revenge does not necessarily preclude it from being a political crime. The question was whether the motive for the crime was merely private or personal. His Honour concluded that the Tribunal did not properly consider the question of whether the appellant's crime in being an accessory to the murder of the police officer was a political offence. The essence of his Honour's reasoning appears at par 35 of his judgment: "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." 19 Nevertheless, the primary Judge dismissed the appeal. He did so because, in his view, the conclusions reached by the Tribunal about the other crimes in which the appellant was implicated were not vitiated by any error of law. The quality of a particular crime might, on the authorities, characterise it as non‑political, even if it were committed on account of a political motive. Though its reasons in this respect were laconic, the Tribunal had "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 Art 1F(b) of the Convention". Although the Tribunal's reasons were not detailed or as clearly expressed as they might have been, it was inappropriate to subject them to too keen or precise an analysis: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272, 273, 290‑293. His Honour continued: "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. … 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."

(It is perhaps as well to point out, though it does not affect the outcome of the appeal, that s 430 of the Migration Act did not apply to the Tribunal: that provision deals exclusively with requirements to be observed by the Refugee Review Tribunal.)

The appeal 20 The appellant accepted that the trial Judge was correct in holding that a particular crime by its nature may be non‑political even if the motives of its perpetrators were political. He submitted that his Honour's reasons and conclusion, in relation to the murder of the police officer, were correct. He contended, however, that, because the Tribunal had made no particular finding about the nature or gravity of the other crimes, his Honour erred in holding that it was unnecessary for the Tribunal to have considered the political context in which those crimes were committed. The respondent, on the other hand, contended, in accordance with what was, in form, a notice of cross‑appeal but, in substance, a notice of contention, that his Honour had erred in relation to the killing of the policeman: the error lay in failing to apply the test propounded by Lord Lloyd in T and in holding that a killing motivated by revenge was not necessarily non‑political. The respondent contended that the primary Judge was correct in holding that the Tribunal had committed no error in applying to its findings concerning the other crimes the principle that a crime may be non‑political irrespective of the motive of its perpetrator. 21 The Convention concept of a "non‑political crime" is a vexed and difficult one. It is clear at least that, although political motivation is essential to deprive a crime of non‑political character, it is not always sufficient. Professor Goodwin‑Gill (The Refugee in International Law, 2nd ed 1996) summarises the considerations at pp 105, 106 as follows: "The nature and purpose of the offence require, examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organisation or the very structure of the State, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature." 22 That passage is substantially to the same effect as par 152 of the UNHCR Handbook. It does not suggest, we think, that a crime is political only if the motivation of the criminal is pure, in the sense that it is exclusively political. On the other hand, the crime must be directly linked to the political object. Equally, there are some crimes which, whatever their motivation and whatever their link with a political objective, will be regarded as non‑political. The suggestion is that a balancing exercise is to be undertaken: a crime may be non‑political if it is grossly disproportionate to the alleged political objective or if it is "atrocious". 23 The test propounded by Lord Lloyd is very similar. There are, however, real conceptual difficulties with the tests of direct link (or its obverse, "remoteness") and proportionality: see Lord Mustill's discussion in T at 764‑771 and the speech of Lord Slynn of Hadley at 775, 776. Their Lordships also discuss a number of other difficult issues: are judgments to be made, for example, as to the relative merits or virtues of the political philosophies represented or propounded by the government of a state and by those who seek to overthrow it? There are extensive and instructive discussions of principle and authority in all three speeches in T, in the recent decision of the Supreme Court of the United States in Immigration and Naturalization Service v Aguirre‑Aguirre (3 May 1999, case number 97‑1754) and in the decision of the Court of Appeal of the Federal Court of Canada in Gil v Canada (Minister of Employment and Immigration) [1994] FCJ 1559. It has not previously been necessary for this Court to consider, in the Convention context, the meaning of "non‑political" and, in the absence of full and detailed argument, it is in our view inappropriate for us to venture now into that difficult territory further than is necessary in order to decide this appeal. 24 We have quoted various formulations, including that of Lord Lloyd in T, none of which appears to suggest that a crime is political (or not non‑political) only if the motive of the criminal is purely political. In the extradition context, there are statements in some of the authorities which support a contrary view. For example, in R v Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931 Lord Diplock said, at 945: "So, even apart from authority, I would hold that prima facie an act committed in a foreign state was not 'an offence of a political character' unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there."

See also the passage which we have quoted from the judgment of Wilcox J in Prevato. But Lord Diplock's observations were made in a context where his Lordship was concerned to describe purposes which are properly described as political rather than the purity of the offender's motivation. In our view, the true principle is that stated by Lord Mustill in T at 764:

The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the 'incidence' theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle." (See also the formulation adopted by Lord Slynn of Hadley at 775). That proposition is, we think, consistent with the first part of Lord Lloyd's definition and has the advantage, if we may say so, that, not being expressed as a definition, it is less likely than a proposed definition to divert attention from the language to be construed or to lead to the substitution for construction of the text of successive exercises in the exegesis of judgments concerning it. 25 All the authorities agree that, in addition to "incidence", there is a further matter to be taken into account in ascertaining whether a particular crime is non‑political. It is variously expressed in terms of weighing, proportionality or whether the crime is particularly atrocious. As the speeches in T reveal, all those formulations have their difficulties. But on one point the authorities are unanimous, and we do not think it is necessary for us to go beyond that point for the purposes of this appeal. It is that a crime will be non‑political if it is calculated to cause death or injury indiscriminately to innocent persons not themselves involved in the political struggle. T, Aguirre‑Aguirre and Gil were all cases involving crimes of that kind. Lord Mustill described such crimes as "terrorist" crimes. Again, illustration or label should not be mistaken for definition. To seek to achieve political ends by attacking, rather than political or government targets, uninvolved members of the public is to commit a crime which is non‑political; of course, it does not follow that to kill or maim low level government officials, having no particular influence or involvement in the political struggle, is to commit a political crime. It is impossible, we think, in the context of a judicial decision in a particular case to offer more precise guidance. 26 An application of the principles which we have discussed leads to the conclusion, in our view, that the primary Judge was correct in holding that the Tribunal erred in concluding, on the basis on which it put the conclusion, that the murder of the police officer was a non‑political crime. It was insufficient, particularly, to reach that conclusion merely on the basis that the murder was a "revenge" killing. If there is a political struggle in which agents of the government, including police, have a policy of torturing and killing those who oppose the government, we see no reason why crimes directed at those agents, or police officers, may not be regarded as political (that is, as satisfying the "incidence" test) even though they may be characterised as crimes of revenge. It is, of course, necessary to look at the circumstances of the particular crime in order to decide (on the basis of what may be very limited information) whether there are serious reasons to believe that it cannot be characterised as political. It is necessary also, of course, to consider whether the crime has characteristics which, notwithstanding "incidence", require it to be regarded as non‑political. Those are the steps which, in our view, the Tribunal did not take. Accordingly, for reasons which are substantially similar to those given by his Honour, in our view the primary Judge was correct in relation to the murder of the police officer. 27 His Honour held, in relation to the other crimes in which the appellant was implicated, that the Tribunal had correctly applied the test, as propounded by Lord Lloyd in T, in concluding that some of them at least were non‑political. Although his Honour was concerned that the Tribunal mentioned an insufficiency of information to show an appropriate nexus between the crimes and the political objectives of the KLF, he concluded, at par 42: "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." 28 The Tribunal gave, in substance, two reasons for its conclusion. One was expressed as follows: "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 [appellant] 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 Art 1F(b)." 29 That aspect of the Tribunal's reasoning must, in our view, be regarded as affected by the same error as its reasons in relation to the murder of the police officer. The Tribunal's use of the word "purely" cannot be taken to indicate - and there is no other indication - that the Tribunal had in mind that there might be a distinction between the motives leading to the killing of the police officer and those actuating the crimes on the "other occasions". 30 The second aspect of the Tribunal's reasons was expressed in this way: "It is also not unreasonable to infer in the Tribunal's opinion that the provision by the [appellant] 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 [appellant]. The nature of the actions of the [appellant] 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 [objectives] of the KLF." 31 Certainly, it was not unfair of the primary Judge to describe that reasoning as "laconic". It might perhaps be taken simply to reflect the proposition that it was for the appellant to satisfy the Tribunal that, so far as the Tribunal was to determine whether the appellant met the Convention criteria for refugee status, the appellant met them. Looked at in that way, the Tribunal's reasoning was substantially that it had found that the appellant was guilty of serious crimes and it was not satisfied that those crimes were not non‑political. The difficulty, however, is that the Tribunal did not explain the basis on which it came to the conclusion that the evidence to which it referred indicated that on one or more occasions a serious non‑political crime had been committed by the appellant. All that that evidence showed was that there were "targets" which were "hit" and that firearms and explosives were supplied in order that they might be "hit". There is no indication that any consideration was given to the question whether, on the material before the Tribunal, there was anything to show whether the targets included uninvolved civilians or political targets only or, indeed, whether the crimes were (or were not) directed towards the attainment of the political goals of the KLF. Those were, in our view, matters which, in accordance with the authorities, the Tribunal should have considered. It might be supposed that, to some extent at least, answers might be found in information from reliable governmental or non‑governmental sources about the activities of the KLF and, generally, about the nature of its targets and the way in which it attacked them. There was some information of that kind - perhaps not very much - in the documents before the Tribunal. The fact that the Tribunal made no reference to such material suggests that the Tribunal found it unnecessary to do so; but for the reasons we have given, it was necessary, in our view, for the Tribunal to make a finding, on the whole of the material before it, as to the nature of the crimes in which the weapons and other materials, in the supply of which the appellant was involved, were likely to have been used. 32 In our opinion, accordingly, the appellant has made good his submission that the primary Judge erred in holding that the Tribunal's decision was not affected by an error of law in its reasoning as to the "other crimes". That being so, in our opinion, the appeal should be allowed; the orders made by the primary Judge should be set aside; and the matter should be remitted to the Tribunal for further consideration according to law. The respondent should pay the appellant's costs of the appeal and of the proceeding before the primary Judge. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Branson and Lehane JJ.

Associate: Dated: 15 August 2000 Counsel for the Applicant: M W Gerkens

Solicitor for the Applicant: Fernandez Canda Gerkens

Solicitor for the Respondent: Australian Government Solicitor