SRLLL and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 795

DECISION AND REASONS FOR DECISION [2002] AATA 795

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/51

GENERAL ADMINISTRATION DIVISION         )
           Re      SRLLL
  Applicant
           And    Minister for Immigration Multicultural   and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date 12 September 2002
Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION - Refugee – Protection Visa application – Article 1F of the Refugees Convention - exclusion from protection of Refugees Convention for commission of "serious non-political crime" – meaning of "serious non-political crime" – whether murder of police officers in Punjab was a "serious non-political crime" – whether the Bhindrawale Tiger Force (BTF) a political or militant organisation – examination of the Applicant's involvement with the BTF – examination of Security Council Resolution 1373 (2001) - held that the actions of the Applicant were acts of terrorism – decision under review affirmed.
Migration Act 1958
Extradition Act 1988
Migration Regulations
Convention Relating to the Status of Refugees 1951
Security Council Resolution 1373 (2001)
Arquita v Minister for Immigration and Ethnic Affairs (2000) 63 ALD 321
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Minister for Immigration ad Multicultural Affairs v Singh [2002] HCA 7
Polyukhovich v Commonwealth (1991) 172 CLR 501
SRIII v Minister for Immigration and Multicultural Affairs [2001] AATA 945
T v Home Secretary [1996] 2 AC 742
REASONS FOR DECISION

12 September 2002 RP Handley

This is an application by SRLLL ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 13 December 2001 to refuse the grant of a Protection (Class XA) visa to the Applicant on the ground that he is not a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees of 1951 ("the Refugees Convention").
At the hearing, the Applicant was represented by John Eyeson-Annan, of Counsel, and the Respondent was represented by Andras Markus, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the Applicant. Oral evidence was given in person by the Applicant.

BACKGROUND

The Applicant was born in the Punjab in India and is aged 34. He is an Indian citizen. He entered Australia on 15 June 1999 on a visitor visa valid for 3 months issued in Hong Kong on 28 May 1999. The passport on which he travelled, whilst in the Applicant's name, contained a false date of birth of 1 January 1976 and was issued on the basis of false information supplied to the Indian authorities. On 30 June 1999, the Applicant lodged an application for a subclass 785 (Temporary Protection) visa and a subclass 866 (Protection) visa and, on that day, he was granted a bridging visa with no conditions. In a statement dated 28 June 1999, the Applicant claimed to be involved in the Sikh militant movement, the Bhindrawale Tiger Force ("the BTF"), initially lead by Sant Jarnail Singh Bhindrawale, whose maternal grandparents lived in the Applicant's village.
The Applicant claimed to have been interrogated and tortured by the Indian police in June 1991 as a result of his involvement in the BTF. After he was released from hospital, where he was treated for a broken leg sustained during his interrogation, his parents obtained the false passport for him and, in November 1993, he travelled to Hong Kong on a visitor visa. He was later able to obtain residency and employment there. He returned to India for three weeks in July 1994 but otherwise remained in Hong Kong until travelling to Australia on 15 June 1999. He said that he feared persecution by the Indian Government if he were to return to India.
On 30 August 1999, the Applicant's application for a protection visa was refused by the Department. On 5 October 1999, the Applicant applied to the Refugee Review Tribunal ("the RRT") for a review of this decision. A hearing before the RRT took place on 9 March 2001 and, on 25 July 2001, the RRT, while finding that the Applicant satisfied the definition of "refugee" in Article 1A(2) of the Refugees Convention, remitted the matter to the Department for reconsideration, including consideration as to whether the Applicant is excluded from the protection afforded by the Convention by reason of Article 1F. Article 1F excludes a person from the protection afforded by the Convention by reason of having committed specified serious crimes. In the course of giving evidence at the RRT hearing, the Applicant said he was responsible for the death of three Punjabi police officers in connection with his BTF activities.
By letter dated 18 September 2001, the Department invited the Applicant to comment on whether the exclusionary provisions of the Refugees Convention should apply in his case by reason of his involvement with the BTF and his admission that he killed three police officers. The Applicant responded by letter dated 18 October 2001 confirming his evidence at the RRT. On 13 December 2001, the Department decided that the exclusionary provisions under the Refugees Convention applied in the Applicant's case and that he was not, therefore, a person to whom Australia owes protection obligations under the Convention. On 14 January 2002, the Applicant lodged an application for review with the Tribunal.
APPLICABLE LEGISLATION
Australia is a party to the Refugees Convention as amended by the 1967 Protocol relating to the Status of Refugees and, as a result, has "protection obligations" under the Convention to a person who is a "refugee" within the meaning and for the purposes of the Convention. Article 1A(2) of the Refugees Convention relevantly defines a "refugee" as a person who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;

Article 1 of the Convention also excludes certain persons from the protection obligations which State Parties agree to afford to refugees. In particular, Article 1F states:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes:
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.

Section 36(1) of the Migration Act 1958 ("the Act") provides for a class of visas to be known as "protection visas". Section 36(2) states:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Section 65 requires the Minister to grant a visa where satisfied that there is a valid application which meets all statutory requirements and regulatory criteria. Schedule 2 of the Migration Regulations 1994 specifies the criteria which are to be satisfied before visas of various classes will be granted. The Applicant applied for Protection (Class A) subclass 785 (Temporary Protection) and subclass 866 (Protection) visas, the latter being a permanent visa. The Migration Regulations provide in Schedule 2, clauses 785.221 and 866.221, that among the criteria to be satisfied at the time of the decision is a requirement that:
The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
With effect from 1 October 2001, s 91T of the Act provided as follows:
91T Non-political crime
(1) For the purposes of the application of this Act and the regulations to a
particular person, Article 1F of the Refugees Convention as amended by the
Refugees Protocol has effect as if the reference in that Article to a
non-political crime were a reference to a crime where the person's motives for
committing the crime were wholly or mainly non-political in nature.
(2) Subsection (1) has effect subject to subsection (3).
(3) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the
Refugees Protocol has effect as if the reference in that Article to a
non-political crime included a reference to an offence that, under
paragraph (a), (b), (c) or (d) of the definition of political offence in
section 5 of the Extradition Act 1988 , is not a political offence in
relation to a country for the purposes of that Act.
"Political Offence" is defined in s 5 of the Extradition Act 1988 in relation to a country as:
an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country) …

The definition goes on to exclude certain offences in relation to the unlawful seizure of aircraft, civil aviation, internationally protected persons, genocide, the taking of hostages, torture or other cruel, inhuman or degrading treatment or punishment, maritime navigation, and fixed platforms located on the Continental Shelf.

The jurisdiction of the Tribunal to review decisions under the Act is set out in s 500(1). This states, relevantly:
(1)Applications may be made to the Administrative Appeals Tribunal for review of:
(a) …
(b) …
(c)a decision to refuse to grant a protection visa, or to cancel a protection visa relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 (2);
The issue for the Tribunal to determine is whether the Applicant is excluded from the protection that would otherwise be afforded to a refugee under the terms of the Convention by reason of Article 1F. The Tribunal's jurisdiction does not extend to a review of whether an applicant is a "refugee" as defined in Article 1A(2) of the Convention: SRIII v Minister for Immigration and Multicultural Affairs [2001] AATA 945.
SRLLL'S ORAL EVIDENCE
The Applicant said that when he was in Year 9 at High School, Sant Bhindrawale visited the Applicant's village because his maternal grandparents lived there. While he was there, Mr Bhindrawale made speeches about his movement. The Applicant was impressed by his speeches about the Sikh religion and the rights of Sikhs, and he was attracted to the movement. His involvement with the BTF commenced at about that time and continued for 10 years, until 1993.
In 1993, the Applicant's parents managed to obtain a visa for him to reside in Hong Kong. The Applicant is not clear how they obtained this, but it was based on his being the stepson of a person in Hong Kong who sponsored his residing there. The stepson was, in fact, dead. The Applicant was granted an Indian passport in his name but with a false date of birth and based on other false details related to the deceased stepson.
In about 1998, he was interviewed by immigration officers in Hong Kong who told him that enquiries were being made about his status following information supplied by the Indian authorities: if his status was not correct, he could be imprisoned and/or deported. The Applicant said he did not know why the Indian authorities had supplied this information to Hong Kong. He could not return to India. His mother passed away in 1997 and he did not even attend her funeral. He therefore applied for visas for two countries, Canada and Australia, and was granted a visitor visa for Australia. He entered Australia on 15 June 1999.
The Applicant said his involvement with the BTF was in publicising their religious principles. He denied that he was ever involved in any criminal activity on behalf of the BTF. He denied that the BTF was a militant extremist or terrorist organisation or involved in murder, kidnappings or extortion. He said it was the Indian Government who, for their own political ends, accused the BTF of this. He agreed that other organisations were involved in militant activities, particularly after the Blue Star Operation at the Golden Temple in Amritsar in 1984, but said that while the BTF was blamed, they were not involved. Apart from publicising their religious beliefs, the BTF were also seeking the establishment of a separate Sikh state and demanding rights for Sikhs as a group. The Applicant denied Mr Bhindrawale was promoting violence.
The Applicant said he was medically unfit at the time of his RRT hearing but the RRT refused to postpone the hearing. He was sick and confused and he got upset when he thought of the past and of his being detained and tortured. He did not know what he was saying and perhaps he lied because he thought it would help his case. While the Applicant acknowledged that he told the RRT that he had shot three police officers, this is not true. He said he was able to name two of the police officers who had been killed because the police officer who interrogated him told him their names and accused him of being involved. The Applicant said he provided this additional information at the RRT hearing because he had been told that he did not provide sufficient details in the statement attached to his protection visa application. He did not realise the significance of his telling a "small" lie.
The Applicant said he was detained and interrogated by the Indian police because they had been given his name during the interrogation of another active BTF member who was one of his friends.
The Applicant said he was feeling dizzy – he is on medication and not feeling well. Last year he was admitted to Concord Hospital. After his release from hospital, he was detained at Villawood for a month.
SUBMISSIONS
Applicant
Mr Eyeson-Annan, for the Applicant, said the Tribunal should accept the Applicant's evidence. At the time of the RRT hearing, the Applicant was physically and mentally sick. He tendered a medical certificate and asked for an adjournment but the RRT refused this. At the RRT hearing, it was suggested to the Applicant that he should provide more detailed information in support of this case. He now says he lied about killing the police officers and the Tribunal should accept this. The Tribunal should give greater weight to the original statement made in support of his application for a protection visa.
Mr Eyeson–Annan noted that the RRT had considered the BTF's activities and determined that the Applicant satisfied Article 1A(2) of the Refugees Convention. However, the fact that the Applicant belonged to the BTF does not make him guilty of terrorist acts. Mr Eyeson-Annan said if the Applicant was involved in any criminal acts, they were political in nature with the objective of attaining a separate Sikh state. The Indian police in the Punjab were virtually at war with the BTF and other political organisation promoting secession.
Respondent
Mr Markus, for the Respondent, said the issue for the Tribunal to determine is whether the Applicant is excluded from the protection afforded by the Refugees Convention by reason of Article 1F. The Respondent relies on paragraphs (a), (b) and (c) of Article 1F.
Mr Markus noted that the Applicant's statements about his past activities are inconsistent. The RRT accepted that he satisfied Article 1A(2) of the Convention on the basis of the Applicant's evidence, including as to his shooting three police officers. If the Tribunal accepts the Applicant's most recent evidence that he lied when he said he shot these officers, then the RRT will need to reconsider its decision.
Mr Markus said it is not contested that the Applicant was a member of the BTF from 1983 to 1993. The independent country information included in the T Documents is that the BTF was an extremist Sikh organisation involved in a range of activities both violent and criminal in nature, including murder, extortion, kidnapping, bank robberies and drug smuggling. The Applicant's evidence that he was not personally involved in such activities and was only engaged in publicising the Sikh religion, should be regarded with scepticism given the inconsistency in his evidence and the independent country information. Even in his statement dated 9 September 2002 (A1, paragraph 6), the Applicant refers to himself as a Sikh militant.
With regard to Article 1F, the Tribunal must consider whether there are serious reasons for considering that the Applicant satisfies paragraphs (a), (b) or (c). The Federal Court has interpreted "serious reasons for considering" as meaning strong evidence that the person has committed the crime without necessitating the need for a positive or conclusive finding: Dhayakpa v Minister for Immigration and EthnicAffairs (1995) 62 FCR 556 at 563; Arquita v Minister for Immigration andEthnic Affairs (2000) 63 ALD 321 at 333.
Mr Markus said there are serious reasons for believing that an active BTF member would be involved in the activities described in the independent country information, including violent and criminal activities. Similarly, there are serious reasons for considering that the Applicant was involved in the murder of three police officers, especially since the evidence of this came directly from the Applicant, despite his recent but unconvincing denial which only indicates that the Applicant is prepared to lie about his past activities.
With regard to Article 1F paragraph (a), the Respondent submits that the Applicant has committed crimes against humanity as an active member of the BTF for 10 years and, more particularly, that he was personally involved in the murder of three police officers. The Respondent also submits that the Applicant committed serious non-political crimes (paragraph (b)) when involved in BTF activities, there being no sufficient relevant connection between BTF criminal activities such as extortion, kidnappings, and murder and BTF's political aims. Mr Markus submitted that the introduction of s 91T into the Act in October 2001 makes no substantive difference to the result achieved by the application of the principles set out by the majority of the High Court in Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7. None of BTF's criminal activities can be described as "proportional" to achieving their aims.
Finally, Mr Markus said while the scope and operation of paragraph (c) is controversial, assuming this exclusion applies to individuals and not just to States, then the Respondent submits that the Applicant, as a member of the BTF for 10 years, has been involved in terrorist acts. Pursuant to Security Council Resolution 1373 (2001), such acts are contrary to the purposes and principles of the United Nations.

CONSIDERATION OF LAW AND FINDINGS

The issue for the Tribunal to determine is whether the Applicant is excluded from the protection that is otherwise afforded to refugees by reason of Article 1F of the Refugees Convention. This requires that the Tribunal should be satisfied that "there are serious reasons for considering" that (a) the Applicant has committed a crime against peace, a war crime, or a crime against humanity, or (b) that he has committed a serious non-political crime prior to his entry into Australia, or (c) that he has been guilty of acts contrary to the purposes and principles of the United Nations. In Dhayakpa (supra) at 563, French J said:
"Serious reasons for considering that" 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 a commission of one or other of the relevant crimes or acts…

In Arquita (supra) at 333, Weinberg J stated:
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it can reasonably and properly be concluded that the Applicant has committed the crime alleged. To meet that requirement the evidence must be capable as being regarded as "strong". It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the Applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as "strong" without meeting either of these requirements.

Thus, there must be strong evidence before the decision-maker upon which it could reasonably and properly be concluded that the Applicant has committed the crime alleged. However, the evidence need not be of such weight as would be required to enable the decision-maker to make a positive or conclusive finding beyond all reasonable doubt or even on the balance of probabilities.

Paragraph (a) of Article 1F, refers to the commission of a "crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes". One of the foundation definitions of "crimes against humanity" appears in the Charter of the International Military Tribunal (the "Nuremberg Charter"). Article 6(c) of the Charter relevantly states:
Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war: or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

In Polyukhovich v Commonwealth (1991) 172 CLR 501, at 596, Deane J said that the term "crimes against humanity" was:
A convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connection with actual hostilities.

With regard to paragraph (b) of Article 1F, which refers to the commission of "serious non-political crime", French J said in Dhayakpa (supra), at 563:
the adjective "serious" in Art 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.

The Respondent also referred the Tribunal to the recent High Court decision in Singh (supra). The applicant in that case, Daljit Singh, had been an active member of the Khalistan Liberation Force (KLF), a militant pro-Sikh organisation whose aim is to create an independent Sikh State of Khalistan centred on the Punjab, and had been involved in the killing of a police officer. One of the issues before the Court was whether such an act could constitute a "political crime", not excluded by Art 1F(b) of the Convention. This in turn raised the meaning of "serious non-political crime" in Article 1F(b). A majority of the High Court (Gleeson CJ, Gaudron and Kirby JJ) dismissed an appeal against a decision of the Full Federal Court which allowed an appeal against a decision of a primary judge of that Court, and found that the Administrative Appeals Tribunal had made an error of law in failing to explain the basis upon which Mr Singh had been guilty of serious non-political crimes.
Discussing the meaning of "serious non-political crime", Gleeson CJ said, at paragraph 16, that it has long been accepted in extradition cases that "unlawful killing can, at least in some circumstances, be political". However, the courts have sought to confine the concept "so as to avoid the consequence that all offences committed with a political motivation" are accepted as political. His Honour quoted the definition proposed by Lord Lloyd of Berwick in T v Home Secretary [1996] 2 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.

His Honour noted at paragraph 17, that "Terrorist activities are not political crimes, for the reasons given in that passage". With reference to Mr Singh's evidence, he said, at paragraph 19:
On the Respondent's account, which the Tribunal evidently accepted, the police officer became a "target" because he had tortured, a KLF member. That can be described as a form of vengeance or retribution, but, if it were accepted that one of the political objectives of the KLF was to resist oppression of Sikhs, it is not vengeance, or retribution of a kind that is necessarily inconsistent with political action in the circumstances which the respondent claimed existed in India. For the Tribunal to say, even by reference to the facts of the case, that such retribution cannot be political, was wrong.
Gaudron J said, at paragraph 42:
One reason why there is a tendency to exclude "terrorist" activities and the like from the notion of "a political crime" is that the latter notion is incapable of definition by reference to the criminal acts involved in such a crime. Such acts necessarily vary from place to place and time to time with changing political circumstances and changing technologies. Thus, it is possible to define "a political crime" only by reference to its object or purpose. A political crime is simply a crime which has a political object or purpose.

At paragraph 46, Her Honour went on to discuss the connection between the crime and the political aims of those involved in its commission. She referred at paragraph 47 to the concept of "proportionality" as "a useful indicator of purpose":

Actions which are either unnecessary or disproportionate to the political objectives which are said to justify them are, perhaps, usefully described as "terrorist" activities. But for the purposes of Article 1F(b), that description is not, of itself, determinative. The issue is whether the actions in question were undertaken for a political purpose, in the sense that that purpose was a significant purpose.

Finally, Kirby J said, at paragraphs 122 and 124:
The motives for the crime are not conclusive as to its character. But because crime in most societies, including our own, ordinarily involves a mental element, the perpetrator's intention may well be relevant to the character of the crime. It may, for example, constitute a reason for classifying a crime, performed by a person who happens to be a member of a political movement, as "non-political", if its purpose was mainly for extraneous, personal or selfish reasons. On the other hand, the mere fact that the crime has been committed by a person involved in a political movement, or during disorder associated with that movement, is not enough to warrant its classification as "political" rather than "non-political". Neither does the existence of some degree of personal motivation necessarily warrant the classification of the offence as non-political. The sometimes complex array of motivations for any offence must be considered before a characterisation of the offence for the purposes of the Convention is determined.
If the target of the crime is an armed adversary or armed agent of the State (such as a police officer or other public official), it is more likely that the crime should be classified as "political", than if the target comprises innocent civilians, or if there is no particular target and just the indiscriminate use of violence against other human beings. In such cases it is open to the decision-maker, in the context of "non-political crimes" in Article 1F(b) of the convention, to conclude that the crimes are "serious" but outside the scope of the protection for serious "political" crimes.

As the Respondent pointed out, the High Court considered these issues in the context of the Act as it was prior to the insertion of s 91T, set out above. Subsection 91T(1) refers to a non-political crime as one "where the person's motives for committing the crime were wholly or mainly non-political in nature". Thus, the decision-maker will be required, where relevant, to make a finding of fact to this effect by reference to the nature and circumstances of the crime. Subsection 91T(3) includes within the definition of non-political crime all those crimes identified in the definition of "political offence" in s 5 of the ExtraditionAct 1988, regardless of the person's motives. The Respondent submitted that, in this case, no substantive difference results from the introduction of s 91T in the context of the High Court's decision in Singh (supra).
Paragraph (c) of Article 1F provides that the Convention shall not apply where there are serious reasons for considering that a person "has been guilty of acts contrary to the purposes and principles of the United Nations". The Tribunal notes the Respondent's submission that assuming the Charter of the United Nations can be applied to individuals rather than just States, such acts should now be taken to include terrorist acts. In the aftermath of the 11 September 2001 attacks on the World Trade Centre in New York, Security Council Resolution 1373 (2001) was adopted on 28 September 2001. Paragraph 5 of the Resolution, enacted under Chapter VII of the Charter of the United Nations, states:
Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.
Reiterating what was stated above, the issue for the Tribunal to determine is whether there is strong evidence to persuade the decision-maker that the Applicant has committed either (a) crimes against humanity, (b) serious non-political crimes, or (c) has been guilty of acts contrary to the purposes and the principles of the United Nations. Turning first to the Applicant's evidence, in the statement accompanying his protection visa application dated 28 June 1999 (T p22), the Applicant described how, after the assassination of Prime Minister Indira Gandhi in 1984 by a Sikh militant, "Police targeted the Sikh militants including myself".
At the RRT hearing on 9 March 2001 (T13 p104ff), the Applicant described shooting two or three police officers: both he and his companion fired at the third police officer and the Applicant did not know whose bullet killed him. The Applicant provided details of the names of the first two of the three officers killed, when and where the three officers were shot, and the weapon used – a revolver – and how it was loaded, although he did not know the make of the revolver. The Applicant also explained why each was killed and on whose instructions. He explained that he did not include these details in his earlier statement because they were his "secrets".
The RRT's findings in relation to this evidence are as follows (T15 p162):
For the purposes of the present application, I accept the evidence of the Applicant that he was responsible for the death of three Punjabi police officers. I accept that the police officers were killed upon the orders of superiors in BTF and with a revolver supplied by BTF.
In a departmental letter dated 18 September 2001 (T16), the Applicant was invited to comment on whether the exclusionary provisions of the Refugees Convention should apply to him by reason of his involvement with the BTF and his admission to the killing of three police officers. By letter dated 18 October 2001 (T17), the Applicant responded:
I have been entirely truthful in my versions and explanation in the interview on 9 March 2001 before the RRT … I am of the opinion that the police officers were shot because they were going to eliminate the BTF members. As far as the third Police officer, which I claimed in my statement in my hearing that I shot down, that third Police officer always terrorised and scared the local public to get money as a corruption, but still I am not really sure that officer was shot dead by my bullet or my companion's bullet.
Then in a statement dated 9 September 2002 (A1), the Applicant repeated that after the assassination of Indira Gandhi, "Police targeted the Sikh militants including myself". However, he said, referring to the RRT hearing:
At that time I was still under severe stress, so I now admit that I did not tell the real truth to the Tribunal. I thought that if I exaggerated my claims a bit it would help my case. So I told the Tribunal that I shot two or three policemen. I was not even sure about the number. The real truth is that I did not shoot any policemen and I stand by my original claims to the Department in any application for a protection visa. In that application I did not state that I had shot two or three policemen.
At the hearing on 9 September 2002, the Applicant denied that he was ever involved in any criminal activity on behalf of the BTF: his involvement was in publicising their religious beliefs. He denied that the BTF was a militant, extremist or terrorist organisation or involved in murder, kidnappings or extortion. He said it was the Indian Government who, for their own political ends, accused the BTF of this. The Applicant said at the time of the RRT hearing he was medically unfit – was sick, confused and became upset when he recalled how he had been detained and tortured. He did not realise the significance of his lying to the RRT about shooting the police officers. In the case of the two police officers he claimed to have shot whom he was able to name, these names had been told to him by the officer who interrogated him and accused him of being involved.
Apart from the Applicant's contradictory evidence as to the shooting of the three police officers, and as to whether he was a "militant", there were other inconsistencies and contradictions in his evidence. In his original statement dated 28 June 1999 (T p22), the Applicant said the police arrested him following their finding his "whereabouts" in the pocket of a friend who was killed in an encounter with the police. At the hearing on 9 September 2002, he said he was detained and interrogated after the police had been given his name during the interrogation of another active BTF member who was one of his friends.
The Applicant was also apparently confused about the date of his collapse and subsequent hospitalisation which appears to have occurred in September 2001 (A2). In his statement of 9 September 1992, he refers to his collapse and admission occurring before his RRT hearing, which took place on 9 March 2001. He also refers to his detention and release from Villawood Immigration Detention Centre as occurring before the RRT hearing (held on 9 March 2001) whereas at the hearing on 9 September 2002, he stated his detention in Villawood had been earlier in 2002.
At the hearing on 9 September 2002, the Applicant said he was sick and upset. In the Tribunal's view, his demeanour in giving evidence suggested histrionics. The overall impression of the Tribunal was that his demeanour and evidence were self-serving. By his own admission, the Applicant has lied in the past and the Tribunal was not convinced that his most recent evidence as to his involvement in the BTF did not also contain distortions of the truth.
The Tribunal has examined the independent country information about Sikh militancy in India contained in the T Documents. On the basis of those reports the Tribunal finds that the BTF was a militant organisation. A UK Home Office "Indian Country Assessment" of October 2000 describes (T p192) how Sant Bhindrawale emerged as "an obscure but charismatic religious leader" in 1977:
He preached strict fundamentalism and armed struggle for national liberation. His speeches inflamed both young students and small farmers dissatisfied with their economic lot.

The report describes how Bhindranwale was killed in the Indian Army's Operation Blue Star at the Golden Temple in Amritsar on 5-6 June 1984, following which "Sikh extremism was reinforced, and political assassinations increased".

A report in the Human Rights Watch dated September 1994 (T p408 at 431ff) describes Bhindrawale as a fundamentalist Sikh preacher who, in the early 1980s, "began to adopt more violent tactics". The report names the BTF as one of seven major militant organisations who:
staged frequent bloody attacks against unarmed civilians, engaging in both random acts of violence, as well as violence targeting particular individuals or groups…
Beginning in 1981, however, Sikh militants regularly engaged in a pattern of serious violations of humanitarian law. Most of these violations involved deliberate attacks on unarmed civilians. These took a variety of forms: random assaults on civilians; targeted killings of Hindu civilians and Sikh civilians suspected of collaboration with the Indian government; and assassinations of political figures and Hindu religious leaders …
Militants frequently opened fire in public areas such as marketplaces, crowded streets, and residential neighbourhoods; targeted Hindu labourers for murder; attacked public buses and trains; assassinated political and religious figures and government employees; engaged in election-related violence; threatened the lives of journalists; extorted money from local businessmen through threats and kidnapping; killed the families of policemen; and used religious sites frequented by civilians for military purposes. In almost all instances, they used light weapons such as automatic rifles, grenades, rockets and bombs.
A report in the Encyclopedia of World Terrorism, Volume 2, on "Sikh Nationalist Terrorism in India", dated 23 July 1997 (T p471ff), also describes the emergence of Bhindrawale, in 1978;
With his thundering style, Bhindranwale urged Sikhs to return to orthodox Practices, and called on them to defend themselves with violence against Hindu dominance. Bhindranwale and his followers took control of the Golden Temple in Amritsar, the Sikhs' holy city. The Indian government, alarmed by Bhindranwale's repeated calls for violence, ordered the army to attack Bhrindranwale's supporters in the temple in June 1984. The offensive was known as Operation Bluestar. During two days of fighting, more than 1,000 people were killed. Among them were Bhindranwale and two other important Sikh extremist leaders…

After the assassination of Indira Gandhi in October 1984, Sikh terrorism continued. The report states:

Four major groups dominated the Sikh terrorism at this time. Babbar Khalsa (BK), who were reputedly the most religiously zealous, specialized in bomb attacks. The Bhindranwale Tiger Force (BTF), Khalistan Liberation Force (KLF), and the Khalistan Commando Force (KCF) were the other major organizations. In turn, these four contained almost 150 subgroups. An additional 22 independent extremist movement, made a total of 167 terrorist groups in operation. Their leaders had military titles like "General" or "Lieutenant General." Innocent bus passengers were frequent victims of terrorist attacks. In Punjab in July 1987, seven Sikh gunmen forced Hindu passengers off a bus, then shot and killed 32 and wounded 38. A terrorist killed in the crossfire was carrying a letter saying he was a member of the Khalistan Commando Force. The next night terrorists boarded two buses and killed 36 passengers near the Punjab border.

Sikhs also used assassination against the Indian authorities. One of their more daring exploits was the killing of retired general A.S. Vaidya, who was commander-in-chief of the army when it stormed the Golden Temple in Amritsar. Four Skihs drew up on motor scooters and ambushed him in his car. They shot him in the head and neck from point blank range. There were about 600 killings in 1986 and more than 1,000 every succeeding year until 1993. Official figures recorded the number of killings in 1990, 1991 and 1992 as 3.787, 4,768 and 3,629 respectively. Increased firepower is probably the major reason for this escalation in the number of killings. In December 1987, Chinese built AK-47 assault rifles flowed in large numbers from Afghanistan, through Pakistan, and into Punjab. They were followed by rocket launchers, grenades, bombs, plastic explosives, and mines. Various sources provided funding for these expensive weapons. Criminal activities included extortion, bank robberies, kidnappings, and drug and gun smuggling. Extortion alone is estimated to have raised more than $3 million between 1987 and 1992. Sikh communities in England and North America, and support from Pakistan, were also sources of funding.

On the basis of the Applicant's evidence and the evidence as to the activities of the BTF, the Tribunal finds that there is strong evidence that as a militant member of the BTF from 1983 to 1993, the Applicant was involved in criminal activities in furtherance of its objectives. The country information about India at that time indicates that the BTF engaged in violence in pursuing their cause. There is strong evidence that such violence included murder, attacks on unarmed civilians, and other terrorist action. The Tribunal finds that by the Applicant's own admission, albeit later retracted, there is strong evidence that he was involved in the shooting of three police officers. The Applicant provided a significant level of detail in relation to these shootings which lead the RRT to accept his evidence. In the light of questions as to the Applicant's credibility as a result of inconsistencies in his evidence and his admission that he was prepared to lie to support his application, the Tribunal is not persuaded by his subsequent retraction that he was not involved in these shootings.
With regard to the exclusionary provisions of Article 1F, turning first to paragraph (a), the Tribunal finds there is strong evidence that the Applicant committed a "crime against humanity" as defined above, namely murder. With regard to paragraph (b), the Tribunal finds there is strong evidence that the Applicant committed a serious crime when he was involved, on three separate occasions, in the murder of police officers. This was terrorist activity that was not, in the Tribunal's view, proportional to the political aims of the BTF. However, were the crimes "non-political" in the sense of "wholly or mainly non-political in nature" (s 91T(i))?
At the RRT hearing, the Applicant was asked why he had shot the three police officers. Speaking through an interpreter, he is recorded as saying that he killed the first officer (T p121):
Because he had killed a friend of my friend and another relative of that friend because that was also unreasonable act.

The second officer was killed because he committed an unreasonable act:

Just to capture people and torture them for money or some people will pay money to police to get their revenge by telling the police, influencing the police and money to beat up the other person or torture the other person.
Similarly, the third police officer was killed:
Just…. money he'll get an old man and beat him up accusing that your son is with the terrorists just to obtain money.

While the Applicant's answer is difficult to understand, it appears that the reason for killing the second and third police officers was that they were corrupt.

At the RRT hearing, the Applicant was asked where the orders to kill the police officers had come from. He answered (T p121):
Our main man will instruct us that go and do this job by going to that place.
Since, at the hearing on 9 September 2002, the Applicant denied that he had killed the officers, there was no opportunity for the Tribunal to explore further the reasons for the killings, or the chain of command. If the Applicant's motives were those of establishing a separate Sikh state and securing rights for Sikhs as a group, then these were clearly political motives. However, if his motives were retribution or the elimination of corrupt officers, then they were less clearly political. Moreover, are terrorist killings of this kind unnecessary or "disproportionate" to the political objectives, as Gaudron J's judgment in Singh (supra) suggests they might be? On balance, the Tribunal's view is that the killing of three police officers is unnecessary or disproportionate to any political objectives and, therefore, the paragraph (b) exclusion should apply to the Applicant.
Turning lastly to paragraph (c) and whether the Applicant "has been guilty of acts contrary to the purposes and principles of the United Nations", in the Tribunal's view, there is strong evidence that the Applicant committed acts of terrorism by his involvement in the murder of three police officers. The Tribunal considers it reasonable to rely on paragraph 5 of Security Resolution 1373 (2001), set out above, as a statement that terrorist acts are contrary to the purposes and principles of the United Nations, so that the paragraph (c) exclusion also applies to the Applicant.
Thus, The Tribunal concludes that the Applicant is excluded from the protection that is otherwise afforded to refugees by Article 1F paragraphs (a), (b) and (c), and affirms the decision under review.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed:         .....................................................................................
  Associate
Date of Hearing  9 September 2002
Date of Decision  12 September 2002
Representative for the Applicant              Mr J Eyeson-Annan, Counsel
Representative for the Respondent        Mr A Markus, Solicitor