MIMA v Singh

[2001] HCATrans 32

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

DALJIT SINGH

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 12.11 PM

Copyright in the High Court of Australia

MR A. ROBERTSON, SC:   If your Honours please, I appear for the applicant, with MR S.B. LLOYD.  (instructed by Australian Government Solicitor)

MR M.W. GERKENS:   I appear for the respondent with MR J.A. GIBSON.  (instructed by Fernandez Canda & Gerkens)

GAUDRON J:   Yes.

MR GERKENS:   By way of clarification, your Honours, I would point out that the official Court lists seems to have reversed our names.

GAUDRON J:   Yes, we have been altered to that, Mr Gerkens.  I am sorry.

MR GERKENS:   Thank you, your Honour.

GAUDRON J:   Yes, Mr Robertson.

MR ROBERTSON:   Thank you, your Honours.

GAUDRON J:   You should direct your attentions, I think, Mr Robertson, as to whether there was any real error in the decision of the Full Court rather than whether there is an important issues.

MR ROBERTSON:   If your Honour pleases.  Briefly, to mention the background of the matter, your Honours will see at the foot of page 4 of the book and the top of page 5 that this aspect of the Refugees Convention is the question whether there are serious reasons for considering that the person has committed a serious non‑political crime outside the country of refuge prior to his admission.  Your Honours would have seen that also section 65, as your Honours heard earlier this morning, was a case involving satisfaction, originally, of the Minister and later of the Administrative Appeals Tribunal.

Broadly speaking, the facts were that the applicant had, at least at the time of the decision before the delegate, admitted or accepted that he had been involved in the murder of a policeman and he had also accepted that he had been involved in other killings and the distribution of weapons and supplies and since the question was as framed by the Administrative Appeals Tribunal whether the Khalistan Liberation Force were either on one view or on another view terrorists is the essential part of the Tribunal’s reasoning, which it is important to go to because this is where we say the Full Federal Court was in error.

KIRBY J:   Is it not a truism that today’s terrorist is tomorrow’s freedom fighter?

MR ROBERTSON:   That  has been said, particularly in ‑ ‑ ‑

KIRBY J:   It just seems very artificial to divide the conduct, at least in a case where overall there is an umbrella of a political motive, into purely vengeance or individual criminality, unless it is very clearly so, because if we look at the world – I mean, look at every night on the television and you see what is happening in countries around the world and the means of political actions seems to be violence and terror.

MR ROBERTSON:   That must be so, your Honour.  What our submission is, is that although the Full Court held that that was the simplistic and wrong view taken by the Administrative Appeals Tribunal, what I have endeavoured to show by reference to page 19 of the book was that the Tribunal was in fact quite aware of, if I can use some other words to describe what your Honour Justice Kirby was putting to me, that you can have complex, dual motivation in these matters and that the Tribunal looked at it in that light, found that it was not solely a political act and then went on to consider ‑ ‑ ‑

GAUDRON J:   And it found it was solely other than a political act, did it not?  It found that it was solely motivated by revenge.

MR ROBERTSON:   Can I take your Honour to page 19 because that is where the language appears?

GAUDRON J:   Yes.

MR ROBERTSON:   So, in paragraph 40 the Tribunal poses the question:

The question then arises as to whether this crime is non‑political.

It then accepted that:

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.

So far, not controversial.  Then the Tribunal finds:

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.

Then the Tribunal goes on to say:

Accordingly, there can be said to be no nexus –

and that the act ‑ ‑ ‑

KIRBY J:   But is there not a fallacy in that?  You see, it is “revenge or retribution” against a person for “alleged torture of a KLF member”, so, you have in the one sentence the fact that it has a double motivation, it has revenge and retribution and it has revenge and retribution because the person was a KLF member.  It is very difficult to divide it off, it seems to me.  Assume you had somebody who had killed a parent or a child or a something of that kind, well, maybe, you could say, “Well, we will categorise as this pure personal vengeance” but where it is a public office holder and connected with the objects of the political action it seems pretty artificial to say, “Well, it is just unconnected”.  That is the problem I have.

MR ROBERTSON:   Yes, I think I understand that, your Honour.

KIRBY J:   It seems to me that the Full Court is correct and though the point you raise is important I wonder whether we should trouble with it.

MR ROBERTSON:   As your Honour pleases.  What was being put - and this has to be understood in the context of what the Tribunal was dealing with - was the murder of the police officer was:

directed solely at achieving the creation of the independent Sikh state -

and so on.  In our submission, what the Tribunal was doing was to say, “No, it was not directed solely, it was” – because of the reference to the particular police officer and so on – an act or revenge or retribution”.  In our submission, what that meant in the Tribunal’s view was that therefore it is not solely political, therefore, the Tribunal goes on to consider the question of whether there was nexus or proportionality or closer direct link to the political objectives.

The Tribunal referred to another Tribunal decision called Hapugoda, which your Honours will see there in that same paragraph, where a different tribunal had said in relation to the murder of a policeman, that was personal revenge because the policeman had been killing a particular individual.  So, a particular policeman was killed for killing a particular individual.  Now, if one, as we would submit should be done, looks at it in this light, that is, that the Tribunal was rejecting a submission that the murder was done solely for political purposes - - -

KIRBY J:   Where does the word “solely” come in in the legislation?

MR ROBERTSON:   It does not come in in the legislation.

KIRBY J:   I was just looking for it and I did not find it.

MR ROBERTSON:   No, I beg your Honour’s pardon.  It was the submission that was being put and which is referred to most directly on that very page 19 that I was taking your Honours to at line ‑ ‑ ‑

KIRBY J:   But the legislation does not talk of solely, so all you have to do is being able, fairly, to categorise the case as one which does not fall within committing a serious non‑political crime, so that the ultimate question is, “Do you classify the case as a non‑political crime”

MR ROBERTSON:   Quite so.

KIRBY J:   How can you say that the killing of a person who was alleged to have tortured a member of the political organisation is a non‑serious, non‑political crime?

MR ROBERTSON:   You have to take it in steps, your Honour.

KIRBY J:   Yes.

MR ROBERTSON:   The submission that was being put to the Tribunal was that this was a political crime because it was directed solely – this was the argument, not the words of the Convention – at achieving the creation of the independent Sikh state.  What the Tribunal held was that on its view it was not directed solely to that end because at least in part, I could say – at least in part, for the purposes of our argument, it could be characterised as having personal motives.  Now, as soon as you have, as most often you would have, a question where there is a political motive and a personal motive, you have then a case of mixed motives and therefore directed to the provision of the Convention, which your Honour Justice Kirby has mentioned, the tribunal of fact has to make up its mind as a matter of evaluation, having these two elements, what is the proper characterisation of the crime in question.

The Tribunal then goes on in the same paragraph saying having, “characterised” it “as an act of revenge or retribution” therefore it is not directed solely to the creation of the independent Sikh state and then goes on to say there is:

no nexus or proportionality or close or direct causal link between this crime and the alleged political objectives –

In other words, the Tribunal is saying, as a matter of fact, “I do not see how killing this particular policeman for having killed a member of the KLF directly relates to the political objective of the creation of the independent Sikh state of Khalistan”.  The Tribunal then goes on to say, “As in Hapugoda this lacks ‘any meaningful political character’”.  Now, of course, it is not a question for the Federal Court as to whether or not they agree with that, it is question of whether or not it was open to the Tribunal to reach that view, or to put it another way, whether there was any error in approaching the matter in that light.

Could I then go directly, as your Honour Justice Gaudron indicated I should, to the reasoning of the Full Federal Court on this issue and, in short, the Full Federal Court does not get to grips with, in our respectful submission, this case of dual motivation.  In other words, the Full Federal Court says the Tribunal erred in taking an overly simplistic or one‑eyed view of this, they were wrong, so therefore, the appeal should be disposed of against the Minister. 

Could I take your Honours to the foot of page 56, if I may?  Of course, we are content, for our part, to accept that what the majority of the House of Lords said in T’s Case is a correct statement in terms of identifying – what I am referred to is in Lord Lloyd of Berwick’s speech in T v Home Secretary [1996] AC at the foot of 786.  That is:

A crime is a political crime . . . 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.

Now, this Tribunal does not mention specifically T’s Case but plainly the language that I have taken your Honours to is an application of that very part of Lord Lloyd’s speech.

KIRBY J:   Is that a correct way to approach it?  Would not the way to approach it be the normal way that the legislation would tend to suggest that life’s actions have mixed motives and the job is to characterise and you do not have to look to its being only for political motives, you have to look to whether, looked at as a whole, the character to be ascribed to it is political or personal, or non‑political, basically.

MR ROBERTSON:   Indeed, that is so, because as your Honour points out, the ultimate question is there are serious grounds for thinking this is a non‑political crime.

KIRBY J:   I just have a feeling that slipping in this adverb “solely” – or is it an adjective – slipping it in is ‑ ‑ ‑

MR ROBERTSON:   Whatever it is it was not ours, your Honour, it was the submission for the other side that slipped that out.

KIRBY J:   But it also seems to slip in – what is that authority you referred to?

MR ROBERTSON:   This the House of Lords.  It is in the bundle that we have the Court.  It is T v Home Secretary [1996].

KIRBY J:   Yes, I remember reading that.

MR ROBERTSON:   Their Lordships do not use the word “solely”- - -

KIRBY J:   No, but some of their reasoning seems to be similar.

MR ROBERTSON:   They do use the expression “if, and only if”, (1) and (2).  But–

But, that is in order to assist the decision‑maker analyse the question.  They do not prescribe anything as strict as saying, “Your motives must be pure and solely directed”.  Our submission is that that was a proposition that was being put for the applicant and what the Tribunal did was to say, “No, no, this is mixed motive”, as your Honour points out most cases would be, one would think.  So, that is why this raises a proper construction or the proper approach of this provision in a direct way.

Can I take your Honours then to the reasons for judgment of the Full Court of the Federal Court at page 56.  Their Honours along the way have set out the reasons of the Tribunal, the reasons of the trial judge, Justice Mansfield, have referred to the learned writers, Professor Goodwin‑Gill, the UNHCR Handbook; have taken issue with the formulation in some of the speeches in T of how the matter should be approached and then at the foot of page 56, at line 25, say:

All the authorities agree that, in addition to “incidence”, there is a further matter to be taken into account –

and then their Honour’s talk about:

It is variously expressed in terms of weighing, proportionality or whether the crime is particularly atrocious.

All these formula ‑ ‑ ‑

KIRBY J:   I just do not understand how that can be a factor.  I mean, some political crimes are terribly atrocious.  Terribly.  Look at the bus driven into a bus stop of innocent people just waiting there, but that it has a political quality and is for political purposes, characterised as such, would be indisputable.

MR ROBERTSON:   Taken as an abstract proposition, I certainly have to accept the force of what your Honour Justice Kirby puts.  What the speeches of the House of Lords say is that if one has regard to – I am putting words into their mouths, in a sense, but if one has regard to the context and the purpose of the Convention – this particular part of it – an element of it must be the protection of the receiving state.  Another question which is not far distant from that is the question of is the home state going to deal with this crime as a matter of an ordinary crime or is it going to bring to bear political considerations.

So, taking the bare language, one can of course see the logic of what one puts to me, but what the House of Lord’s approach was is to say there are some crimes which are so atrocious, and I think their Lordships would include driving a bus into a dozen civilians.

KIRBY J:   Well, the context suggests perhaps something for this because it says you leave out war crimes and crimes against humanity and leave out crimes against United Nations personnel.  That is, I understand in the literature, quite controversial, but it has been slipped in, and then you leave out non‑political crimes, but it takes colour from its context.

MR ROBERTSON:   Yes.  But, the important point, for present purposes, is that the weighing, which must be part of the function of assessment, is something, which your Honours would have seen from that paragraph, the Tribunal did.  The Tribunal looked at the relationship between what was said to have been done, the murder of the policeman and the political objectives.  I see the orange light is on so I must come directly to paragraph 26 on page 57 where the Full Court said:

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.

Our submission is that as the Tribunal approached it it was sufficient because it was, putting it at its lowest, a personal motive, an element of the personal, therefore it was a mixed motive crime, therefore it was for the tribunal of fact to make an assessment, as it did, of the relationship between the crime in question and the political objectives, given that it had been put to the Tribunal that this crime was directed solely at achieving the establishment of the Sikh state.  Then their Honours go on to say, and this is again why it is an important question:

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.

Now, that has two thoughts in it.  One of them is that a crime is political if it satisfies the “incidence” test.  Now, that is not what the House of Lords said in T v Home Secretary.  What the majority has said was that a crime is a political crime if and only if, one, it is an incident, and, two, there is a sufficiently close and direct link between the crime and the objective of the organisation.  So, in our submission, the Full Court has unwittingly parted company from the House of Lords in that respect and that ‑ ‑ ‑

KIRBY J:   Of course, we are not bound by the House of Lords.

MR ROBERTSON:   Of course not.

KIRBY J:   But I suppose one could say that in a matter of an international convention something heard by a final court in a country of refuge is something that ought to be given a lot of consideration before we come to a different view in Australia.

MR ROBERTSON:   We would so submit and we would also submit, with respect, that the analysis and the speeches of their Lordships is the most sophisticated, if I can put it that way, of the two or three recent occasions on which the Supreme Court of the United States and the Canadian courts have examined this question.

KIRBY J:   And this is not a matter that our Court has looked at.

MR ROBERTSON:   That is so, your Honour.  If your Honours please.

GAUDRON J:   Yes.  Yes, Mr Gerkens.  Again, Mr Gerkens, I think the real issue is can it be said that this decision is clearly correct because, after all, it is an important issue.

MR GERKENS:   Yes, your Honours, except I would make the point that it was a specifically narrow issue by the Full Court and would not enable this Court to basically consider the whole of Article 1F(b).  It is merely a specific facet of Article 1F(b), that is the issue of notification.

KIRBY J:   Yes, but what is put is the issue has been considered by final courts in other countries.  It is an important matter of international law.  It is a matter especially important to a country like Australia which is a country of refuge.  The Full Federal Court is in difference with the House of Lords which has given careful attention to it and, in a sense, even if we disagreed with the House of Lords that that is an important reason for the final court in Australia to examine the matter and that therefore you have wandered into a case which happens to be quite important and tenders the issue in this sense that this was the killing of a policeman and, at least on the face of things, it had a political component and you seemed to have accepted the “if” and “only if” or the sole cause criterion for yourself which may have been an unnecessary narrowing of your requirements, and above all, it is an interesting case.

MR GERKENS:   Yes, your Honour.  It is indeed, your Honour.

KIRBY J:   All of these are reasons why you are really facing problems, at the moment.

MR GERKENS:   We do not accept that the Full Court is in conflict with T’s Case and in fact I should start out by pointing out that the situation here is that the respondent accepted instructions from his superiors in the KLF to conduct intelligence operations which assisted towards the KLF killing a policeman who was involved in the political struggle, and that is all.  It is not a situation where - and I would say this, if it was this situation, the applicant may be on stronger ground.  But it is not a situation where, for example, some 10 years previously the respondent, or even one of the KLF superiors was in a personal business relationship with the policeman who was killed and had a grudge, a personal grudge, against that policeman.  There is nothing personal whatsoever in what the respondent did, or for that matter what the KLF did.  It is part of their struggle.

KIRBY J:   That is why, in a sense, it tenders the case in factual circumstances which really put to the test the proposition which the Minister advances and allow us, in a sense, to refine the questions, on the face of things.  From your point of things it is a strong factual case and yet you lost in the Tribunal.

MR GERKENS:   We lost in the Tribunal because the Tribunal did not consider all of the issues.  The Tribunal basically said, “There is revenge motive here, therefore, it is not political”.  If I could take your Honours to page 19, paragraph 41, the Tribunal deliberately eschews the necessity to:

enquire into the political nature or otherwise of the KLF ‑ ‑ ‑

KIRBY J:   What line is that?

MR GERKENS:   That is line 18 to 22, your Honour.

KIRBY J:   On the face of things, that seems a clear error.  I suppose your best argument is this is not a good vehicle to test the matter because there is just no way that this Court is going to allow that error to stand.  Is that what the Full Court corrected, that statement, in your submission?

MR GERKENS:   Yes, your Honour.  That was part of the Full Court’s consideration of the matter, and I would also ‑ ‑ ‑

KIRBY J:   In order to, as it were, send it back, you have to have clarified exactly what the Tribunal has to do and the suggestion is that that is what this Court should do, tendered the issue for the first time.

MR GERKENS:   Yes, your Honour.  I do not think that is a proper function for this Court.

KIRBY J:   It is an international legal obligation of Australia.  It is a function which other final courts have thought fit to take up and consider and it is, at least arguably, an important matter of refugee law which seems to be becoming an increasing part of the practice of the High Court of Australia.

MR GERKENS:   Yes, your Honour.  If I could then go back to T which the applicant relies on.

KIRBY J:   As well as that, I have some doubts about the way the House of Lords has expressed it, doubts that they have taken too narrow a view.

MR GERKENS:   And, indeed, the applicant relies on a statement at page 768 of Lord Mustill as supporting its case, but if you go to that particular statement, it is clear that Lord Mustill was talking about a situation exactly as I referred to before where there is a clearly personal situation involved.  If you go to page 768, line 3, his Honour says:

If one changes the case once more, so that instead of stealing arms directly the insurgents steal from a bank the money with which to buy them, I can see that if the raiders intend to keep some of the proceeds for their own personal use it could well be held that the personal element of the crime is both non‑political and serious enough to bring article 1F into play.

So, it seems to me, what the applicant is saying in his summary of argument is an argument in our favour because that is not the situation here.  There is absolutely no personal element involved.

KIRBY J:   Yes.  It just really comes down to whether this interesting and important point is tendered to us in an appropriate vehicle in this case.

MR GERKENS:   It is our submission that this is not an appropriate vehicle to in fact embark on that consideration.

KIRBY J:   Yes, thank you.

GAUDRON J:   That completes your submissions, does it, Mr Gerkens?

MR GERKENS:   I would just make one other point, your Honour.  In the application for special leave documentation, the applicant has canvassed the issue of atrocity quite seriously and I would make the point that atrocity was never part of this whole equation.  It has always been motivation.  If the Court pleases.

GAUDRON J:   Yes.  Thank you, Mr Gerkens.

MR ROBERTSON:   Could I make three or four short points ‑ ‑ ‑

GAUDRON J:   Before you do, in the event that special leave were granted what would be your offer with respect to costs?

MR ROBERTSON:   We could give, if I can say, the usual undertaking which is, as I understand it, not to disturb any of the costs orders below and to pay the ‑ ‑ ‑

GAUDRON J:   And to pay the reasonable costs of the respondent.

MR ROBERTSON:   In any event.

GAUDRON J:   In any event, yes.

MR ROBERTSON:   Yes, I am instructed to give that.

GAUDRON J:   Does that ordinarily involve your making financial resources available in advance, or perhaps it does not matter.

MR ROBERTSON:   I think that it is a matter of negotiation and sometimes it does ‑ ‑ ‑

KIRBY J:   Getting money out of the coffers of the Commonwealth.

MR ROBERTSON:    ‑ ‑ ‑and sometimes it is afterwards but I am sure it is a matter the solicitors can sort out.  Could I just deal with two or three short matters.

KIRBY J:   It could be as well, though, to put it on the record.

MR GERKENS:   We would appreciate that, your Honours.

GAUDRON J:   What?

MR GERKENS:   That it was on the record.

MR ROBERTSON:   Can I get some short instructions on that while I make these two or three other points, your Honours?

GAUDRON J:   Yes.

MR ROBERTSON:   Your Honour Justice Kirby looked at page 19, paragraph 41, where, on a quick look at it, the Tribunal seems to be saying, “Look, we do not have to go into the political nature or otherwise of the KLF”.  Does your Honour recall being taken to that?

GAUDRON J:   Yes.

MR ROBERTSON:   What the Tribunal is there saying, in context, is disclosed by the previous sentence and that is, “I do not have to inquire whether this organisation is in fact a terrorist organisation or whether the applicant is a terrorist”.  What the Tribunal is saying is, “I am not going to be assisted by looking at the labels of which one could attach to these things.  Because I have already reached the view that there is some personal motivation here, as a finding of fact, and I have examined in accordance with T the:

nexus or proportionality or close or direct causal link between this crime and the alleged political objectives –

the political objectives being as described on behalf of the then applicant, that is the establishment of the independent Sikh state.  What theTribunal of

fact is saying, “I do not need to go further than that for present purposes.  I do not have to characterise them”.  We would say, with respect, that the characterisation would be unhelpful as either a terrorist organisation or not.

KIRBY J:   What were the personal motives that the Tribunal found that, as it were, took what apparently is a political crime out of that category?

MR ROBERTSON:   There are two clear indications of what the Tribunal though the personal motivation was.  One was that it was this particular police officer who was killed because he was alleged to have tortured a colleague of the applicants.

KIRBY J:   A colleague who was in the revolutionary movement?

MR ROBERTSON:   Yes, in the KLF.  The Tribunal referred to, as I have already indicated, Hapugoda’s Case where again a tribunal differently constituted held that there was a personal element in the killing of a policeman and that therefore the matter was not directed solely – again - to a political purpose and therefore the matter needed to be characterised by reference to the motives of the political organisation.  The last point that I would seek to make is ‑ ‑ ‑

KIRBY J:   Do you support the necessity of “sole purpose”?

MR ROBERTSON:   Could I put it this way, your Honour:  if there was a sole political purpose, if there was no other purpose, then that would be a relatively easy case, probably a rare case, one might think, but where there is a mixed motive then that is where what Lord Mustill said, which my learned friend drew attention to, comes into play.  You need to balance and assess the political from the non‑political.  You need to see whether the personal, the non‑political element, has a relationship to the political objectives. 

I might say, finally, your Honours, that although of course T is not binding, I think strictly on any court in Australia, there is very little doubt that the Tribunal, the AAT, has followed and would continue to follow the House of Lords’ decision.

In relation to the costs undertaking, I am instructed that the Department is certainly prepared to make an arrangement to pay some of the amounts in question up front or as it goes so that there would not be any obstacle.  If your Honours please.

GAUDRON J:   Yes.  Gentlemen, there will be a grant of special leave in this matter but the grant will be on terms that the Commonwealth – well, on the noting of the Commonwealth’s undertaking not to disturb the costs orders below and to pay the reasonable costs of the respondent in this Court, in any event, and to make some provision for the payment of some part of that in advance.

AT 12.45 PM THE MATTER WAS CONCLUDED