Minister for Immigration and Multicultural Affairs v Singh

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, KIRBY AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   APPELLANT

AND

DALJIT SINGH  RESPONDENT

Minister for Immigration and Multicultural Affairs v Singh
[2002] HCA 7
7 March 2002
A11/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with S B Lloyd for the appellant (instructed by Australian Government Solicitor)

M W Gerkens for the respondent (instructed by Fernandez Canda Gerkens)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Singh

Immigration – Refugees – Exclusion from Convention protection for commission of "serious non-political crime" – Meaning of "serious non-political crime" – Whether murder can ever be a political crime – Proportionality of crime to political purpose – Relevance of revenge motive – Whether political purpose must be dominant, sole or significant purpose.

Immigration – Refugees – Exclusion from Convention protection – Commission of offence prior to "admission … as a refugee" – Meaning of reference to admission as refugee – Whether refugee status must be determined before consideration of exclusion.

Judicial review – Jurisdiction – Review for errors of law – Interpretation of "serious non-political crime" in Refugees Convention – Decision about whether murder was a political crime – Whether decision reviewable for error of law.

Words and phrases – "serious non-political crime" – "common crimes" – "pure political crimes" – "admission … as a refugee".

Migration Act 1958 (Cth), s 36(2).
Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967, Art 1F(b).

1. GLEESON CJ.   The respondent, a Sikh of Indian nationality, arrived in Australia in 1996, and applied for a protection visa, claiming to be a person to whom Australia had protection obligations under the Refugees Convention ("the Convention")[1]. In support of his application, he said that he had fled India because the Indian police were arresting members of the Khalistan Liberation Force (KLF), to which he belonged. He claimed to have held a senior position in the KLF, as a Commander of Information, and that he feared he would be subjected to torture and imprisonment if he returned to India. The delegate who considered that application questioned the respondent about the activities of the KLF, and the participation of the respondent in those activities. The delegate, without deciding whether the respondent otherwise satisfied the requirements for refugee status, concluded that the respondent was excluded under Art 1F of the Convention, which is part of Australian law by virtue of s 36(2) of the Migration Act 1958 (Cth). The respondent appealed to the Administrative Appeals Tribunal. The Tribunal affirmed the delegate's decision, although relying upon Art 1F(b), whereas the delegate had relied upon Art 1F(a). The respondent appealed to the Federal Court. The issue before the Federal Court was whether the Tribunal's decision involved an error of law in the interpretation and application of Art 1F(b). The respondent failed before Mansfield J, but succeeded before the Full Court of the Federal Court (Ryan, Branson and Lehane JJ)[2].

   [1]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   [2]Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51.

2. Article 1F of the Convention provides:

   "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

   (a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

   (b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

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

3. The Tribunal found that there were serious reasons for considering that the respondent had committed a serious non-political crime in India.  The jurisdiction of the Federal Court, invoked by the appeal to that Court, was to review the Tribunal's decision for error of law.  What the Tribunal regarded as serious reasons for considering that the respondent had committed a serious non-political crime were based substantially upon what the respondent had told the delegate about his activities in the KLF.  A finding that the respondent was, on his own account, implicated in serious crimes was open, having regard to what he told the delegate.  (Before the Tribunal, he attempted to resile from his most significant admissions, but the Tribunal disbelieved that part of his evidence.  That question of fact was not in issue in the Federal Court.)  The central issue concerned the Tribunal's characterisation of the crimes as "non-political".

4. A point was raised for the first time in this Court. It concerns the concluding words of Art 1F(b). The respondent left India by stowing away on a ship. When he arrived in Australia, he disembarked secretly and joined some fellow Sikhs. He then applied for a protection visa. The Australian authorities have never made any decision, or taken any step, that could amount to the admission of the respondent to Australia as a refugee. At present, his refugee status remains unresolved. If the decision of the Full Court of the Federal Court is upheld, the matter will go back to the Tribunal for further consideration, according to law, of the application of Art 1F and, depending upon the outcome of that consideration, of any other issues that arise concerning the respondent's status. Neither the delegate, nor the Tribunal, has made a decision as to whether the respondent has a well-founded fear of persecution, upon a Convention ground. The respondent claims to fear torture; but that claim might not be believed. He may simply have a well-founded fear of being prosecuted. Even if his criminal conduct were found to be political, that would not necessarily mean that for the Indian authorities to proceed against him, in accordance with due process of Indian law, would amount to persecution.

5. To give Art 1F(b) a strictly literal interpretation, so that it could only be considered and applied after the Australian authorities had made a decision that the respondent was a person to whom protection was owed under the Convention, would involve an internal inconsistency in the Convention as it applies by force of Australian law. Article 1F is expressed as an exception. If it is satisfied, the provisions of the Convention are said not to apply to the person in question. If the provisions of the Convention do not apply to the person, the person cannot be entitled to protection under the Convention. Whatever the operation of the expression "admission … as a refugee" in other systems of municipal law, in Australia there would be nothing to which the language could apply. It would be necessary to read the words "prior to his admission to that country as a refugee" as meaning no more than "prior to his entry into that country". The preferable solution is to read the reference to "admission … as a refugee" as a reference to putative admission as a refugee. Although the point was not adverted to before the Tribunal or the Full Court, that, in practical effect, was how the case proceeded. It was regarded, on both sides of the record, as convenient, and appropriate, to consider the application of Art 1F before addressing any other issues that might have arisen concerning the respondent's refugee status. The respondent has been legally represented at all stages, and it has not been suggested that this involves any unfairness to him. There may be cases in which it would be inappropriate to decide an issue arising under Art 1F as a preliminary question, but this is not one. There is no difficulty in assuming, without deciding, that the respondent has a well-founded fear of persecution on Convention grounds if he were returned to India, and deciding whether, on his own account to the delegate of his role in the KLF, there are serious reasons for considering that he has committed a serious non-political crime outside Australia before he entered Australia and applied for a protection visa.

6. The error of law attributed to the Tribunal arose out of the reasoning by which it characterised the crimes of which it suspected the respondent as non-political crimes.  I say "suspected" because, as the case was argued and decided in the Federal Court, there was no occasion to examine problems that, in other cases, might arise concerning the requirement that there be serious reasons for considering that a person has committed a crime, or that a crime be serious.  Once the Tribunal rejected, as it was entitled to do, the respondent's attempts to resile from his earlier accounts of his activities as a senior officer of the KLF, then his own evidence provided serious reasons for considering that he was an accessory to the killing of a police officer, and that he was knowingly concerned in the movement of weapons and explosives which were used to "hit" people who were "targets" of the KLF.  The context in which these admissions were made to the delegate was one in which the respondent was concerned to make the point that he was an important person in the KLF.  The delegate had put to the respondent that, on the information available to him, low-level members of an organisation such as the KLF had no reason to fear persecution in India.  It was by way of response to that suggestion that the respondent explained his involvement in killing a police officer, and in assisting with movements of weapons and explosives.

7. The respondent, in his evidence, depicted the Sikh population of India as having been, in 1984, victims of violence and persecution "by Hindu mobs encouraged by the Indian Government".  He said that, after the destruction of his family's business and property, he joined the KLF, which had as its objectives the liberation of Khalistan (the Punjab), the establishment of an independent Sikh state, and resistance to the oppression of Sikhs.  This, he said, was a political group, although the account he gave of its organisation suggested that it operated upon para-military lines.

8. As an example of his work in the KLF, the respondent told the delegate of one of the "targets".  A police officer in a certain town had arrested a KLF member and tortured him so badly that he was unable to walk.  The respondent, as a Commander of Information, was instructed to gather intelligence about the police officer, his family, and his movements.  He collected information which he passed on to his superior.  The KLF then killed the police officer.  The respondent said he was not involved in the actual killing, but the inference that his intelligence-gathering was used for the purpose of the killing was clearly open.  Indeed, that was part of the point he was seeking to make in support of his claim that he feared torture if he returned to India.

9. The Tribunal made the following findings of fact.

   "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."

10. The grounds of appeal to the Federal Court did not challenge those findings.  The appeal was limited to suggested error of law.

11. The Tribunal based its decision principally on par 1 of the above findings.  In its reasoning as to the consequences of that finding, the Tribunal recorded a submission made by counsel for the Minister: 

    "Ms Maharaj then submitted that the admissions by the applicant at the interview were clearly sufficient to satisfy the Tribunal that there were serious reasons for considering that he had been an accessory both before and after the fact of murder, namely, the murder of the police officer who was killed by the KLF on the basis of intelligence information collected and supplied by the applicant. Ms Maharaj submitted that murder was clearly a serious crime. In addition, she submitted that the KLF was a terrorist organisation involved in revenge killings of people alleged to have committed acts of violence against the Sikh community of which the murder in question was an example and that, for this reason, the crime committed by the applicant could not be said to be of a political nature. In other words, as the crime was not committed in furtherance of the political objectives of the KLF, it could not be said to be a political crime. It followed … that as there were serious reasons for considering that the applicant had committed a serious non-political crime he was excluded from protection under the Refugees Convention by virtue of Article 1F(b)."

12. That submission was accepted.  The Tribunal's conclusions were expressed as follows:

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

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

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

    43.The Tribunal's findings with respect to the unlawful killing of the police officer are such that there are serious reasons for considering that the applicant has committed a serious crime outside the country in which he seeks refuge."

13. The matter of Hapugoda[3] was a case in which a member of the People's Liberation Front in Sri Lanka had made an armed attack on a police station, resulting in the death of six people.  The motive for the attack was retribution for the death of a personal friend of the attacker.  There was held to be no connection between the crime and the political objectives of the Front.

    [3]Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659.

14. In due course, it will also be necessary to consider what the Tribunal had to say about the consequences of pars 2 and 3 of the findings quoted above.  The main focus of argument in the appeal, however, was the reasoning based upon the finding in relation to the killing of the police officer.  Mansfield J, and the Full Court of the Federal Court, found error of law in the Tribunal's reasoning, particularly in par 41, in that it proceeded upon an artificial and unwarranted antithesis between political action and revenge.  The appellant in this Court, the Minister, does not seek to support such an antithesis as a matter of legal necessity; rather, he argues that the Tribunal's reasoning merely reflected a view taken of the facts of the particular case; a view that was open and that involved no error of law.

15. The history of Art 1F(b), and of the expression "serious non-political crime", was considered by the House of Lords in T v Home Secretary[4].  The task of characterising a crime such as unlawful homicide as either political, or non-political, is difficult to relate to Australian concepts of criminal responsibility[5].  But it has confronted courts in common law jurisdictions for more than a century; originally in the context of the Extradition Act 1870 (UK), and more recently in the context of the Convention.  As one of the exceptions to an international obligation to afford protection on certain grounds, it recognises a state's interest in declining to receive and shelter those who have demonstrated a propensity to commit serious crime.  The qualification to the exception is that the crime must be non-political.  Part of the problem is that the concept of a political crime is not limited to conduct such as treason, sedition, or espionage, which in some cases might readily be recognised as related entirely to the political circumstances of the locality where it occurred, and as unlikely to carry any possible threat to public safety or order in the country of refuge.

    [4][1996] AC 742.

    [5]See Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 at 498-499 per Hugessen JA.

16. That unlawful killing can, at least in some circumstances, be political, has long been accepted in extradition cases.  It may be doubted that the image of the clinical assassin, with a narrow focus upon an oppressive dictator, taking care to avoid what would now be called collateral damage, ever bore much relation to reality.  While homicide is foreign to our experience of political conflict, that is because we have been favoured with a relatively peaceful history.  At other times, and in other places, the taking of life has been, and is, an incident of political action.  Even so, when courts have endeavoured to state the principles according to which a decision is to be made as to whether a crime which, by hypothesis, has been committed in another country, in circumstances utterly different from those that prevail in the country of refuge, is political, they have taken pains to confine the concept so as to avoid the consequence that all offences committed with a political motivation fall within it.  An example is to be found in the definition proposed by Lord Lloyd of Berwick, and agreed in by Lord Keith of Kinkel and Lord Browne-Wilkinson, in T v Home Secretary[6]:

    "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."

    [6][1996] AC 742 at 786-787.

17. Terrorist activities are not political crimes, for the reason given in that passage.  This, no doubt, is what the Tribunal had in mind in par 41 of its reasons when it adverted to the possible need to examine whether the KLF was a terrorist organisation.  As the Tribunal approached the case, that was an issue it did not need to address.

18. While the authorities accept the possibility that murder might, in some circumstances, be a political crime, they recognise one further qualification of direct relevance to the Tribunal's reasoning.  Even if a killing occurs in the course of a political struggle, it will not be regarded as an incident of the struggle if the sole or dominant motive is the satisfaction of a personal grudge against the victim[7].  But it is only necessary to state the qualification in order to see the danger of over-simplification.  People engaged in any kind of prolonged conflict, including military battle, and ordinary democratic politics, will have scores to settle with their adversaries.  It is difficult to imagine serious conflict of any kind without the possibility that parties to the conflict will seek retribution for past wrongs, real or imagined.  Revenge is not the antithesis of political struggle; it is one of its most common features. 

    [7]R v Governor of Brixton Prison; Ex parte Schtraks [1964] AC 556 at 583.

19. The respondent claimed that the Sikhs in India were victims of oppression and brutality that was sometimes condoned, sometimes instigated, and sometimes engaged in, by government agents, including the police.  That claim may not be true.  As the submissions of counsel for the Minister before the Tribunal plainly suggested, it may be an outrageous slur upon the Indian authorities.  But the Tribunal made no finding about that.  The respondent claimed that one of the political objectives of the KLF was to prevent oppression of the Sikhs, its ultimate objective, the establishment of an independent Sikh state, being only the final and most complete form of relief in contemplation.  Counsel for the Minister, on the other hand, submitted that the KLF was a terrorist organisation involved in revenge killings against people who were violent towards Sikhs.  The Tribunal found it unnecessary "to enquire into the political nature … of the KLF".  The Tribunal said that the political objectives of the KLF had no bearing because this particular killing of a government agent was done "out of retribution".  I agree with the conclusion of all four judges of the Federal Court.  The reasoning of the Tribunal was legally erroneous, and cannot be explained upon the basis suggested by the appellant.  It was not merely a finding of fact related to the particular circumstances of the case.  There was no evidence to warrant a conclusion that the police officer was killed for reasons of personal animus or private retribution.  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.

20. The very fact that the Tribunal found it unnecessary to form a view as to the political nature of the KLF, or as to whether it was a terrorist organisation, demonstrates that it was proceeding upon a view that there is a necessary antithesis between violent retribution and political action.  That was an error of law.

21. I do not suggest that, on the respondent's account of events and circumstances in India, and of the aims of the KLF, and of the circumstances of the killing of the police officer, it must follow that the crime was political.  Once it was accepted that the concept of a political crime was not limited to offences such as treason, sedition, and espionage, and could extend to what would otherwise be "common" crimes, including unlawful homicide, then it became necessary to find means of avoiding the consequence that any crime could be political if one of the motives for which it was committed was directly or indirectly political.  There is no bright line between crimes that are political and those that are non-political.  But, as the Tribunal rightly recognised in part of the reasoning quoted above, there must be a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act.  And the achievement of that objective must be the substantial purpose of the act.  The UNHCR Handbook[8] states:

    "There should also be a close and direct causal link between the crime committed and its alleged political purpose and object.  The political element of the offence should also outweigh its common-law character.  This would not be the case if the acts committed are grossly out of proportion to the alleged objective.  The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature."

    [8]Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for determining Refugee Status, par 152.

22. To identify homicide as a political act ordinarily requires a close and direct connection between the act and the achievement of an objective such as a change of government, or change of government policy, which might include relief from government sponsored or condoned oppression of a social group.  In the present case, upon an evaluation of the circumstances in India at the time of the killing, the relevant policies of the government, the observance of the rule of law by the agencies of government, including the police, and the objectives and methods of the KLF, the Tribunal might well reach the same conclusion as that which it reached in the first place.  Even so, the respondent is entitled to have his case considered according to law.  The path by which the Tribunal came to its original decision took an impermissible short-cut.

23. The Tribunal also, briefly, considered the significance of its findings 2 and 3, and concluded that they constituted an additional ground for deciding against the respondent under Art 1F(b). It was on this aspect of the case that the Full Court disagreed with Mansfield J, who would have upheld the Tribunal's decision on this ground.

24. The reasoning of the Tribunal was as follows:

    "45.The Tribunal would indicate that there is a paucity of information before it to determine the exact nature and extent of these acts perpetrated by members of the KLF. It is not unreasonable to infer from the record of interview, however, that where the 'target' was a person (as was the case with the police officer) then there were other occasions when purely for retributive purposes a person was killed or injured. It is also not unreasonable to infer that the role played by the applicant was on one or more of those occasions such as to constitute serious reasons for considering that he had committed a serious non-political crime within the meaning of Article 1F(b). It is also not unreasonable to infer in the Tribunal's opinion that the provision by the applicant of weapons and explosives to members of the KLF 'to hit any target' … 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."

25. Once again, the ultimate conclusion of the Tribunal may have been correct, but, as the Full Court pointed out, the process of reasoning is flawed.  First, it is affected by the errors that have already been found to exist in relation to the reasoning on the killing of the police officer; it commences by carrying that reasoning over into this context.  Furthermore, there is no apparent consideration of the nature of the "targets" of the weapons and explosives.  Whether they were civilians or government agents could be material.  Nor was there any examination of the objectives claimed to be political, or their relationship to the criminal acts.  The disinclination of the Tribunal to examine the political objectives of the KLF, and to consider the submission on behalf of the Minister that it was a terrorist organisation, might have favoured one side or the other, but these were matters to be taken into account in order to evaluate the competing contentions.

26. The appeal should be dismissed with costs.

27. GAUDRON J.   The Minister for Immigration and Multicultural Affairs ("the Minister") has appealed to this Court from a decision of the Full Court of the Federal Court of Australia.  That Court allowed an appeal from Mansfield J, set aside a decision of the Administrative Appeals Tribunal ("the Tribunal") and remitted the matter to the Tribunal for further consideration.  The Tribunal had, by its decision, rejected an application by the respondent, Mr Singh, for review of a decision of a delegate of the Minister ("the Delegate") refusing to grant him a protection visa.

28. The Delegate held that Mr Singh was not entitled to a protection visa because he was excluded from the benefit of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention") by reason of Art 1F of that Convention.

29. Article 1F of the Convention provides:

    "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

    (a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

    (b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

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

    The Delegate's decision was based on Art 1F(a) but confirmed by the Tribunal on the basis of Art 1F(b). Neither the Delegate nor the Tribunal found it necessary to consider whether Mr Singh fell within the definition of "refugee" in Art 1A of the Convention.

30. Before turning to the facts, it is convenient to refer to an argument made on behalf of Mr Singh for the first time in this Court. The argument concerns the phrase "outside the country of refuge prior to his admission to that country as a refugee" in Art 1F(b). It was argued on behalf of Mr Singh, by reference to that phrase, "that Article 1F(b) could have [no application to him] in the absence of a finding that he was a 'refugee' in terms of Article 1A."

31. The composite phrase "outside the country of refuge prior to his admission to that country as a refugee" describes both where and when a serious non-political crime must be committed before Art 1F(b) operates to exclude a person from the benefit of the Convention. The crime in question must have been committed outside "the country of refuge", a phrase which is apt to include a country in which the person concerned seeks refuge. And the crime must have been committed "prior to ... admission to that country as a refugee". The fact that the person has not, at the relevant time been admitted as a refugee is not to the point if the crime in question was committed before he or she could be so admitted. In such circumstances, the crime was necessarily committed "prior to ... admission ... as a refugee".

32. The facts which led the Delegate and, later, the Tribunal to consider Art 1F may be shortly stated.  Mr Singh is an Indian citizen of Sikh ethnicity.  In 1986, he joined the Khalistan Liberation Force ("the KLF"), an organisation whose objectives include the creation of an independent Sikh state.  In a record of interview conducted by the Tribunal, Mr Singh stated that its objectives were also "to protect their own people, to stop the genocide by the Indian government ... to distribute the literature, [and] educate the people [as to] how we can protect our religion [and] how we can protect our innocent people".

33. Mr Singh rose to become a KLF Commander of Information and, as such, his duties were, according to a statutory declaration provided with his application for a protection visa, to "collect ... information ... to arrange the necessary supplies to hit any target ... [to arrange] the transportation for operatives after the target [was] hit and arrange places to hide."  As is implicit in those duties, the KLF's methods include or, perhaps, included the use of violence.

34. One of the "targets" that was the object of KLF violence was a police officer at Ludhiana who, according to an earlier record of interview conducted by the Delegate and considered by the Tribunal, had tortured a KLF member and was later killed by the KLF.  Mr Singh stated that he was required to collect information with respect to the police officer as to "[h]ow many kids he [has], and what school they go [to], what time he go[es] to work, and which road he takes when he is leaving from [his] house, and what route he takes when he is coming back."  Mr Singh denied that he was ever "involved in the action" but said that he was involved in collecting information for such operations "many, many times."  He also said that he was required to organise supplies, including weapons, and their transportation.

35. In his evidence before the Tribunal, Mr Singh sought to portray the activities of the KLF as non-violent and denied that he had been involved in the transportation of weapons.  He also said that he did not know whether the police officer at Ludhiana had been killed by the KLF or by others.  The Tribunal, as it was entitled to do, rejected that evidence and proceeded on the basis of the matters set out in Mr Singh's statutory declaration and record of interview with the Delegate.

36. By reference to that earlier evidence, the Tribunal made the following factual findings:

    "1.[Mr Singh] knowingly and actively participated in the unlawful killing of the police officer [at Ludhiana].  [He] 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.[He] 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.[He] 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."

37. After recording the findings of fact set out above, the Tribunal passed to "a consideration of whether the actions of [Mr Singh] ... amount[ed] to a crime for Article 1F(b) purposes." In this regard, the Tribunal stated that the killing of the police officer in Ludhiana "can only be characterised as an act of revenge or retribution against [him] for the alleged torture of a KLF member [and, a]ccordingly, there can be said to be no nexus or proportionality or close or direct causal link between [the] crime and the alleged political objectives of the KLF." For that reason, the Tribunal held that the killing of the police officer was a serious non-political crime for the purposes of Art 1F(b) of the Convention. The Tribunal added that because the crime was to avenge the torture of a KLF member it was unnecessary to consider whether the KLF is "a terrorist organisation and whether [Mr Singh] is in fact a terrorist."

38. A preliminary question arises as to whether in characterising the killing of the police officer at Ludhiana solely as an act of revenge, the Tribunal was making a factual finding that it lacked any political objective.  A factual finding to that effect would not be open to review in the Federal Court[9] and would necessarily lead to the conclusion that the killing was a serious non-political crime for the purposes of Art 1F(b) of the Convention.

    [9]By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) a party to a proceeding before the Tribunal may only "appeal" to the Federal Court of Australia "on a question of law".

39. The Tribunal's reasons are not entirely clear, but its statement that, given the motive of revenge, there could be "no nexus or proportionality or close or direct causal link between [the] crime and the alleged political objectives of the KLF" strongly suggests that it was of the view that, as a matter of law, a crime which was motivated by revenge could never be characterised as a political crime.  In my view, its reasons should be so understood.

40. The question whether a crime that is motivated by revenge can constitute a political crime requires consideration of the expression "a political crime".  Historically, the notion of "a political crime" has not been confined to "pure" political crimes such as treason or sedition, whether for the purposes of extradition or refugee law[10].  Of recent times, however, there has been a tendency, for the purposes of refugee law, to impose limits on the notion by reference to "atrocious" crimes[11], "terrorist" activities[12] or "unacceptable" means[13], as though crimes which answered those descriptions were, on that account, incapable of constituting political crimes.  And the reasons of the Tribunal might suggest that the same is true of a crime which is motivated either wholly or in part by revenge.

    [10]An early and authoritative statement to this effect is found in In re Castioni [1891] 1 QB 149 in which the murder of a member of the state council of a Swiss canton, in the course of a political insurrection, was considered to be a political crime. See also the discussion in Lord Mustill's speech in T v Home Secretary [1996] AC 742 at 761-762; Lord Simon of Glaisdale's observations in R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931 at 953-954 and García-Mora, "The Nature of Political Offenses: A Knotty Problem of Extradition Law", (1962) 48 Virginia Law Review 1226 at 1239-1257.

    [11]See, for example, McMullen v Immigration and Naturalization Service 788 F 2d 591 at 596-598 (9th Cir 1986) per Wallace J; Immigration and Naturalization Service v Aguirre-Aguirre 526 US 415 at 429-430 (1999) per Kennedy J delivering the opinion of the Court; United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, rev ed (1992) at 36 [152]; Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 105-106.  See also in the context of extradition law, Carron v McMahon [1990] 1 IR 239 at 267 per Finlay CJ.

    [12]See, for example, T v Home Secretary [1996] AC 742 at 772 per Lord Mustill. See also in the context of extradition law, Eain v Wilkes 641 F 2d 504 at 520-521 (1981) per Wood J; Ellis v O'Dea [1991] ILRM 346 at 362 per Hamilton P; affirmed [1991] 1 IR 251; La Forest, Extradition to and from Canada, 3rd ed (1991) at 92-95, referring to the decisions of Re State of Wisconsin and Armstrong (1973) 32 DLR (3d) 265 and Re Commonwealth of Puerto Rico and Hernandez (No 2) (1973) 42 DLR (3d) 541.

    [13]See, for example, Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 at 518 per Hugessen JA. Equivalent expressions have included: "barbarous" (Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 106); "brutal, cowardly and callous" (Shannon v Fanning [1984] IR 569 at 581 per O'Higgins CJ); and, "disproportionate" (Lord Mustill discusses the different ways in which this notion has been applied in relation to the political offence exception in T v Home Secretary [1996] AC 742 at 768-770).

41. The tendency to place limits on the notion of "a political crime" by reference to descriptions such as "atrocities", "terrorist" activities, or, even "crimes of revenge" is readily understandable.  However, such descriptions are imprecise and may, on that account, involve over-simplification.  Moreover, and more to the point, they find no expression in the text of the Convention itself.

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.

43. In R v Governor of Pentonville Prison; Ex parte Cheng, an extradition case, Lord Diplock said that an offence was not political:

    "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."[14]

    [14][1973] AC 931 at 945.

44. This statement correctly identifies, in my view, political purpose as the defining feature of a political crime.  However, there are two aspects of that statement that require consideration.  The first is the requirement that political purpose be the only purpose of the crime in question.  In the absence of anything in the text of the Convention to suggest otherwise, there is no reason why the political purpose should be the sole or, even, the dominant purpose of the crime, so long as it is a significant purpose.  Further, and as Lord Slynn of Hadley pointed out in T v Home Secretary, it is not at all clear that "in order to be a political offence the act has to be directed against the government of the day"[15].

    [15][1996] AC 742 at 775.

45. In some, perhaps many countries, power and political influence are exercised by bodies and organisations that are not organs of government.  They may exercise power and influence with the tacit consent of the government concerned.  On the other hand, they may do so because the government is unable to assert its own authority.  And with increasing globalisation, the organisations or bodies in question are not necessarily confined to those that operate solely within national boundaries.  Accordingly, I would consider a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed.

46. Once it is accepted, as in my view it must be, that political purpose is the defining feature of a political crime, references to "proportionality", "nexus" or "causal link", as made by the Tribunal, assume legal significance[16].  A crime is unlikely to have a political purpose if it has no relevant connection with the political aims of those involved in its commission.  So, too, as has been explained in other legal contexts, "proportionality" is a useful indicator of purpose[17].  The true purpose of actions which are unnecessary or disproportionate to the end which is said to justify those actions is unlikely to be the achieving of that end but is likely to be the satisfaction of some other and different purpose.

    [16]See also R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931 at 945 per Lord Diplock; T v Home Secretary [1996] AC 742 at 787 per Lord Lloyd of Berwick; Eain v Wilkes 641 F 2d 504 at 521 (1981) per Wood J; McMullen v Immigration and Naturalization Service 788 F 2d 591 at 595 (9th Cir 1986) per Wallace J; Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 at 518 per Hugessen JA; United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, rev ed (1992) at 36 [152]; Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 105.

    [17]See with respect to constitutional powers that may be exercised for a particular purpose, The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 260 per Deane J; Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312 per Deane J; Davis v The Commonwealth (1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ (with whom Toohey J agreed on this point at 117); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 29 per Mason CJ, 89 per Dawson J, 93-94 per Gaudron J, 101 per McHugh J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 296-297 per Mason CJ, 317-323 per Brennan J, 350-357 per Dawson J, 371-378 per Toohey J, 388 per Gaudron J; Leask v The Commonwealth (1996) 187 CLR 579 at 593 per Brennan CJ, 605-606 per Dawson J, 614-615 per Toohey J, 616 per Gaudron J, 616-617 per McHugh J, 624 per Gummow J, 634-635 per Kirby J. See with respect to discrimination laws, Street v Queensland Bar Association (1989) 168 CLR 461 at 511-512 per Brennan J, 572-574 per Gaudron J; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472-474 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, 478-479 per Gaudron and McHugh JJ; Waters v Public Transport Corporation (1991) 173 CLR 349 at 363-364 per Mason CJ and Gaudron J. Note that in some of these cases the expression "appropriate and adapted" is used.

47. 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 Art 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.

48. It follows from what has been said that the Tribunal erred in the present matter by not determining whether, in relation to the killing of the police officer in Ludhiana, Mr Singh had a significant political purpose.  Such a purpose was not negatived by the element of revenge.  As the Chief Justice has pointed out in his reasons for judgment in this matter, revenge is likely to be an aspect of many political crimes.  Moreover, and as the Chief Justice has also pointed out, it was not negatived by looking simply to the main political objective of the KLF, namely, the establishment of an independent state.  It was necessary for the Tribunal to consider whether the purpose of the crime was the achieving of one of the other KLF objectives, including, for example, the protection of Sikh people from violence or torture.

49. The same error which has been identified in relation to the killing of the police officer at Ludhiana is to also be found with respect to other crimes which the Tribunal found Mr Singh had committed.

50. The appeal should be dismissed with costs.

51. McHUGH J. Associated with this case is the important question as to how this Court should define "a serious non-political crime" for the purpose of Art 1F(b) of the Refugees Convention[18].  But given the arguments of the parties and the view that I take of the case, I do not reach that question.

    [18]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

52. The first question in the appeal is whether the reasons of the Administrative Appeals Tribunal show that it held that a murder motivated by revenge could not be a political crime.  If it did, it erred in law.  If it did not, it made no error, and this appeal must be allowed.  In my opinion, the reasons of the Tribunal show no more than that it found as a matter of fact – not of law – that the particular killing had to be characterised as one of revenge and that it had no political character.

53. More than a century ago, the Queen's Bench Division, in In re Castioni[19], held that murder could be an offence "of a political character" for the purpose of the Extradition Act 1870 (UK).  Denman J said[20] that murder could be an offence of a political character if it was done in the furtherance of "a political matter, a political rising, or a dispute between two parties in the State as to which is to have the government in its hands".  That statement may not be exhaustive as to what constitutes a political crime for the purpose of the Refugees Convention.  But it is wide enough for the purposes of this appeal.

    [19][1891] 1 QB 149.

    [20]In re Castioni [1891] 1 QB 149 at 156.

54. The Tribunal held that Mr Singh was a party to the murder of a police officer who had tortured a member of the Khalistan Liberation Force, an organisation in which Mr Singh held the position of Commander of Information. The Tribunal went on to hold that there were serious reasons for considering that Mr Singh had committed a serious non-political crime within the meaning of Art 1F(b) of the Convention. The murder of the policeman was a cold-blooded one, and Mr Singh played an important part in its execution. Nevertheless, the Tribunal would not have erred in law if it had found that the murder was done in furtherance of the armed political struggle between the Khalistan Liberation Force and the government of India and was a political crime. When a group, intent on seizing political power or forcing political concessions from the State, believes that it can attain that power or those concessions only through "the barrel of a gun", its members inevitably commit themselves to killing their opponents to attain the group's objectives. To murder State functionaries who torture or mistreat group members is an almost inevitable consequence of a decision to engage in such an armed struggle. Murdering State functionaries may intensify the extent to which group members are mistreated and tortured. But such revenge killings also strike terror in the minds of those functionaries, weaken their resolve to continue the political struggle and increase the morale of members of the group. Murdering a policeman because he has tortured or killed a member of the group, qua membership, cannot be regarded as so remote from furthering the political objectives of the group that the murder is necessarily non-political.  But it will be non-political if the only motivation for the murder is personal revenge, divorced from the political struggle[21].

    [21]R v Governor of Brixton Prison; Ex parte Schtraks [1964] AC 556 at 583.

55. Contrary to the view of the judges of the Federal Court, I do not read the Tribunal's reasons as holding as a matter of law that the murder of the policeman was a serious non-political crime because the murderers were actuated by revenge.  When the reasons are fairly read, I think that the Tribunal simply held that the Khalistan Liberation Force members who committed this murder did so only because they privately wished to avenge the torture and subsequent death of their fellow member.  Upon the evidence, it was open to the Tribunal to hold that the killing was personal, not business, to use the terminology of Michael Corleone.  The Tribunal's holding may be erroneous as a matter of fact.  But with all respect to those who hold the contrary view, I think it requires an over-zealous reading of the Tribunal's reasons to conclude that the Tribunal erred in law in reaching its decision.

56. This Court has said "that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed"[22].  Unless that instruction is faithfully applied, the promise of judicial restraint in administrative review proceedings will be no more than "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will"[23].

    [22]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    [23]Edwards v California 314 US 160 at 186 (1941) per Jackson J, concurring.

57. In giving its reasons, the Tribunal said:

    "FINDINGS OF FACT

    …

    40.      The question then arises as to whether this serious crime is non-political.  Having regard to the accepted evidence, the Tribunal is satisfied on the balance of probabilities that the planned unlawful killing of the police officer took place because he was alleged to have tortured a member of the KLF.  Despite the assertions by the applicant that his involvement with the KLF and the activities of the KLF in general were directed solely at achieving the creation of the independent Sikh state of Khalistan and protecting Sikh minorities from oppression by the Indian authorities, in the Tribunal's opinion, the crime in question can only be characterised as an act of revenge or retribution against the particular police officer for the alleged torture of a KLF member.  Accordingly, there can be said to be no nexus or proportionality or close or direct causal link between this crime and the alleged political objectives of the KLF.  The Tribunal is of the view that this serious crime is very much akin to the subject crime in Hapugoda^[[24]^] which the Tribunal found to be lacking in any meaningful political character. For these reasons, the Tribunal finds that the unlawful killing of the police officer falls to be considered as a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention.

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

    [24]Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659.

58. The statement that "the crime in question can only be characterised as an act of revenge or retribution" occurs in a passage that discusses the evidence and in a section of the reasons that has the heading "FINDINGS OF FACT". Because that is so, the statement of the Tribunal seems more likely to be a finding of fact than a conclusion of law. Moreover, earlier in its reasons – at pars 27 to 34 – the Tribunal had discussed the meaning of and the cases dealing with the phrases "serious reasons for considering that" and "serious non-political crime" in Art 1F(b). Nothing in those paragraphs suggests that the Tribunal thought that a revenge killing could never be a political crime. In par 34, the Tribunal said:

    "However, consideration of that term is to be found in Hapugoda^[[25]^]. In that case, the Tribunal affirmed a decision to refuse to grant a protection visa to a member of the People's Liberation Front (JVP) in Sri Lanka. The Tribunal found that the applicant came within the exclusion provision of Article 1F(b) on account of his participation in an armed attack on a police station which resulted in the death of six people. Applying the reasoning of French J in Dhayakpa^[[26]^] in finding that the attack did constitute a serious crime within the meaning of Article 1F, the Tribunal, after reviewing the relevant authorities, considered whether the acts of the applicant for visa could be said to be of a political nature.  In this regard, the Tribunal drew the following conclusion^[[27]^]:

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

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

    [25]Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659.

    [26]Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563.

    [27](1997) 46 ALD 659 at 667.

59. The reference in par 40 to Re Hapugoda and Minister for Immigration and Multicultural Affairs[28] is significant.  In par 40, the Tribunal said that the murder of the policeman "is very much akin to the subject crime in Hapugoda which the Tribunal found to be lacking in any meaningful political character".  That suggests that the Tribunal was holding that the policeman's murder was committed "for a private purpose involving a personal motive too remote from the political objectives" of the Khalistan Liberation Force to be a political crime.  It also explains the Tribunal's statement in par 41 that the political nature of the Khalistan Liberation Force "has no relevant bearing on whether the serious crime was political or not simply because the unlawful killing of the police officer out of retribution cannot, on the facts before the Tribunal, constitute a serious political crime" (emphasis added).  If the Tribunal was intending to assert that an unlawful killing out of revenge could never constitute a serious non-political crime, the italicised words were superfluous.

    [28](1997) 46 ALD 659.

60. Unless the Tribunal's reasons are scrutinised "in a pernickety way, with an eye vigilant to the discovery of error"[29], no error of law can be found in its reasons. 

    [29]Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 175 ALJR 808 at 813 [30]; 178 ALR 497 at 504.

61. I agree with other members of the Court that the Court should reject Mr Singh's attempt to raise a new ground concerning the concluding words of Art 1F(b). As the Chief Justice points out in his reasons, the "preferable solution is to read the reference to 'admission … as a refugee' as a reference to putative admission as a refugee"[30].

    [30]Reasons of Gleeson CJ at [5].

62. The Minister's appeal should be allowed.

63. KIRBY J.   This appeal[31] concerns an exclusion from the definition of "refugee", contained in Art 1F(b) of the Convention relating to the Status of Refugees ("the Convention")[32].  That definition and exclusion have been incorporated into Australian law by the Migration Act 1958 (Cth) ("the Act")[33]. The meaning of the phrase "a serious non-political crime", appearing in Art 1F(b), is important. Where there are "serious reasons for considering that" a person claiming protection under the Convention has committed such a crime outside the country of refuge, he or she is not entitled to protection.

    [31]From the judgment of the Full Court of the Federal Court of Australia:  Singh v Minister for Immigration and Multicultural Affairs (2000) 102 FCR 51 ("Singh").

    [32]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, ATS 1954 No 5, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, ATS 1973 No 37.

    [33]The Act, s 36(2).

64. Defining a "serious non-political crime" has been described as a problem that presents "the gravest difficulties"[34].  In an earlier manifestation of the phrase, it was said to present one of the "most acute" dilemmas of extradition law[35].  So far as the Australian law on refugees is concerned, the scope of offences "of a political character" is not fixed[36]. This is the first time that this Court has had to consider Art 1F(b).

    [34]Grahl-Madsen, The Status of Refugees in International Law (1966), vol 1 at 290.

    [35]Clark, Coudert and Mack, The Nature and Definition of Political Offense in International Extradition, Proceedings of the American Society of International Law (1909) at 94 cited in García-Mora, "The Nature of Political Offenses:  A Knotty Problem of Extradition Law", (1962) 48 Virginia Law Review 1226 at 1231 ("García-Mora").

    [36]R v Wilson; Ex parte Witness T (1976) 135 CLR 179 at 191.

65. The difficulties of definition derive, in part, from the absence of any settled international consensus about the expression[37] and the changing views of national courts and tribunals about its meaning[38].  The content of the expression depends on an almost infinite variety of factors[39].  It has been influenced by the changing nature of crimes, of weapons, of the transport of criminals and of the global political order, and the increased vulnerability of modern societies to violent forms of political expression[40].

    [37]García-Mora (1962) 48 Virginia Law Review 1226 at 1227-1231.

    [38]R v Wilson; Ex parte Witness T (1976) 135 CLR 179 at 191.

    [39]In re Castioni [1891] 1 QB 149 at 155.

    [40]cf T v Home Secretary [1996] AC 742 at 762 per Lord Mustill.

66. Long before the Convention was adopted, Grotius wrote that asylum was accepted by international law as available for those fugitives who suffered undeserved enmity but not for those who had done something injurious to human society[41].  Since that distinction was propounded, first in the field of extradition law and more recently in the Convention, courts have struggled to find a point that will allow decision-makers to differentiate between fugitives accused of a serious political crime[42] and those in respect of whom there are "serious reasons for considering" that they have committed a serious non-political crime[43].

    [41]Grotius, De Jure Belli ac Pacis Libri Tres, Kelsey trans (1925) at 530 cited in García-Mora (1962) 48 Virginia Law Review 1226 at 1244.

    [42]As stated in the Extradition Act 1870 (UK), s 3; cf Extradition Act 1988 (Cth), s 5, s 7(a). In s 5 of the Australian Act, "political offence" is defined "in relation to a country" as meaning "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 expressly excludes certain offences, including offences against international law, offences declared by bilateral regulations, a range of attacks, threats or attempts upon heads of state or governments and offences constituted by taking or endangering the life of a person committed in circumstances in which "such conduct creates a collective danger, whether direct or indirect, to the lives of other persons" and is declared by regulations not to be a political offence in relation to the country. There is no similar definition of "non-political crimes" for the purposes of the Act and the Convention, Art 1F(b).

    [43]As stated in the Convention, Art 1F(b).

67. Given that this kind of differentiation has troubled courts for more than a hundred years, there is wisdom in Viscount Radcliffe's warning[44], that it is now unlikely that the point of distinction will receive a definitive answer accepted by everyone as universally applicable.  On the other hand, where important rights and duties turn on the meaning of the expression, being rights and duties that must be considered by judges and other decision-makers, it is reasonable to demand that there should be a measure of clarity about the concept.  Even if the best that courts can do is describe the idea, and the appropriate ways to approach it, they should attempt to do so[45].  The alternative is a negation of the rule of law and the surrender of such questions to idiosyncratic opinions that may have little or nothing to do with the context of the case at hand.

    [44]R v Governor of Brixton Prison; Ex parte Schtraks [1964] AC 556 at 589.

    [45]T v Home Secretary [1996] AC 742 at 787.

    The facts

68. The respondent[46] is by nationality a citizen of India, by language and culture a Punjabi and by religion a Sikh.  After the murder of his family in communal violence in Delhi in 1984, he joined the Khalistan Liberation Force ("KLF").  The basic object of the KLF is to create an independent Sikh State of Khalistan, centred on the Punjab.  According to an Australian Government document dated 1997, included in the respondent's bundle before the Administrative Appeals Tribunal, the KLF is not a registered political party in India.  The Indian Government regards it as a terrorist organisation.  Perhaps it is worth mentioning that the same Australian document in 1997, described Fretilin, the movement that pressed for an independent State of East Timor, as a body that the Indonesian Government regarded as a "rebel organisation".  As has often been remarked, those who demand self-determination of peoples and the rewriting of national boundaries are often described as terrorists or rebels unless they secure their political objectives[47].

    [46]The respondent was identified by name before the Tribunal, in the Federal Court and in this Court. No application was made to substitute an identifier. See now the Act, s 501K.

    [47]T v Home Secretary [1996] AC 742 at 755 per Lord Mustill. See also Kirby, "Australian Law – After 11 September 2001", (2001) 21 Australian Bar Review 253, where examples are given of earlier "terrorist actions".

69. It was common ground that the respondent had been an active member of the KLF within India.  He claims that when he was ordered to leave India he did so, and subsequently arrived in Australia, evading immigration clearance.  In January 1997, he applied for a protection visa on the ground that he was a refugee.

    The history of the proceedings

70. In accordance with the Act[48], the application was first heard by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister").  The delegate accepted that the respondent was a senior member of the KLF and had been actively engaged in its activities.  These activities reportedly included suicide bombing; attempted use of remote controlled bombs; kidnappings of business people or their children for ransom; and use of a car bomb in New Delhi.

    [48]The Act, s 496.

71. The delegate appears to have proceeded on the assumption that the respondent would qualify for refugee status, subject to the operation of any exclusions in Art 1F of the Convention.  He addressed those exclusions directly.  He concluded that the KLF had been responsible for "crimes against peace", one of the crimes mentioned in Art 1F(a).  Without determining other issues, he therefore held that the respondent was excluded under Art 1F of the Convention and was thus not a person to whom Australia had protection obligations.

72. The respondent appealed to the Administrative Appeals Tribunal ("the Tribunal")[49].  There he gave oral evidence and submitted documents that included the foregoing description of the KLF[50].  In the course of its reasons for decision[51], the Tribunal, like the delegate, proceeded directly to consider whether the respondent fell within an exclusion recognised by the Convention. Unlike the delegate, the Tribunal found that the respondent was disqualified by the commission of a "serious non-political crime" under Art 1F(b)[52].  The Tribunal made the three findings of fact that became the focus of the hearings in the Federal Court and in this Court.  As those findings are set out in the reasons of Gleeson CJ[53], Gaudron J[54] and Callinan J[55], I will not repeat them.

    [49]Appeals in respect of decisions concerning Art 1F of the Convention lie to the Tribunal and not to the Refugee Review Tribunal ("RRT"). See the Act, s 500(1)(c). The distinction between appeals to and from the Tribunal and the RRT was noted by the Federal Court: Singh (2000) 102 FCR 51 at 58 [19].

    [50]Extracts from the record of interview in the Tribunal are contained in the reasons of Callinan J at [146]-[147].

    [51]Constituted by Burns DP.

    [52]Reasons of the Tribunal at 13.

    [53]Reasons of Gleeson CJ at [9].

    [54]Reasons of Gaudron J at [36].

    [55]Reasons of Callinan J at [148].

73. Correctly, the Tribunal addressed its attention (as the delegate had not) to the involvement of the respondent personally (as distinct from the involvement only of the KLF) in the disqualifying conduct which would take him outside an entitlement to protection.  It held that the killing of the police officer was a "serious non-political crime".  It made the other findings set out in the reasons of the other members of this Court[56].  In effect, the Tribunal classified the crimes of the respondent as "only … an act of revenge or retribution" and for that reason "non-political".

    [56]Reasons of the Tribunal at 19.  These are set out in the reasons of Gleeson CJ at [12], McHugh J at [57] and Callinan J at [148].

74. The respondent then "appealed" to the Federal Court of Australia.  The "appeal" was limited to one on a question of law[57]. The primary judge in that Court (Mansfield J) concluded that an act of revenge "in an immediate sense" could still have the purpose of "endeavouring to dissuade the authorities from engaging in the conduct to which the political objection is taken" and thus be a "political crime", not excluded by Art 1F(b) of the Convention[58].  On this footing he found a legal error in the reasons of the Tribunal.  However, he held that the Tribunal's third finding (regarding other "acts of violence") had not been vitiated by error of law.  He therefore concluded that it had been open to the Tribunal to find that the respondent's involvement in those crimes amounted to serious "non-political" crimes.

    [57]Administrative Appeals Tribunal Act 1975 (Cth), s 44. The decision is not excluded from the jurisdiction of the Federal Court: the Act, s 485(2) (as it previously stood). The Full Federal Court noted that the decision of the Tribunal might also have been the subject of judicial review: Singh (2000) 102 FCR 51 at 53 [4].

    [58]Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1599 at 13.

75. The Full Court[59] upheld the first part of the decision of the primary judge.  In relation to the other finding, the Full Court held that the Tribunal had failed to explain the basis on which it had come to its conclusion that the respondent had been guilty of serious "non-political" crimes[60].  It therefore found errors of approach in each of the three findings upon which the Tribunal had based its decision.  It upheld the respondent's complaint of error of law.  It ordered that the matter be remitted to the Tribunal for further consideration.

    [59]Ryan, Branson and Lehane JJ.

    [60]Singh (2000) 102 FCR 51 at 62 [31].

76. It is from the judgment that included that order that the Minister ("the appellant"), by special leave, has appealed to this Court.

    The three issues

77. Three issues were argued in the appeal:

    (1)Refugee status: Whether the Tribunal and the Federal Court had erred in law in considering the application of Art 1F(b) of the Convention, given that the respondent had not been admitted to Australia as a refugee;

    (2)"Serious non-political crime": Whether the Federal Court had erred in its approach to the meaning of Art 1F(b) of the Convention; and

    (3)Question of law:Whether the Federal Court had erred in setting aside the decision of the Tribunal on the ground of error of law, having regard to the Tribunal's findings of fact, the applicable law and the proper approach of the Federal Court to reviewing such decisions.

78. It is possible to dispose quite briefly of the first and third issues. The second issue, which requires elucidation of the meaning of the contested phrase in Art 1F(b), presents greater difficulty.

    The refugee status point

79. The respondent's contention: The terms of Art 1F(b) of the Convention are set out in other reasons[61].  The delegate, the Tribunal and the Federal Court were unanimous in accepting the submissions of the appellant on the first issue.  He submitted that there was no occasion to consider whether the respondent was a "refugee" within the meaning of the Convention[62] once it was decided that the respondent fell within the exclusion in Art 1F(b). In this Court, although not previously, the respondent contended that this approach was wrong in law. He submitted that the failure of the Tribunal first to make a finding that he was a refugee was fatal to the appeal.

    [61]Reasons of Gleeson CJ at [2]; reasons of Gaudron J at [29]; reasons of Callinan J at [161].

    [62]The Convention, Art 1A.

80. As the respondent put it, the only foundation for the invocation of the exclusion, in terms of that paragraph, was that he had already been admitted to this country as a refugee. In the absence of such an "admission", the exclusionary provisions of Art 1F(b) were not engaged. The respondent argued that he had never been admitted to Australia "as a refugee". In fact, he had entered Australia illegally as a ship's deserter.

81. Raising a new point: The legal process before this Court is an appeal, as contemplated by the Constitution[63].  Appeals to the High Court have been held to be "strict" appeals for the correction of error in the court below[64].  The point belatedly raised by the respondent is a point of law.

    [63]The Constitution, s 73.

    [64]Mickelberg v The Queen (1989) 167 CLR 259 at 267, 298; Eastman v The Queen (2000) 203 CLR 1 at 12-13 [17], 54 [164], 62-63 [189].

82. This Court has held that a failure to raise a point of law in earlier proceedings is not necessarily fatal to its later determination by the Court, if the point can be decided without recourse to new evidence and without procedural unfairness to any party[65].  The appellant made it clear that he raised no objection to the enlargement of the issues in the appeal to have the respondent's contention determined.  It is sensible to determine the contention.

    [65]Gipp v The Queen (1998) 194 CLR 106 at 116 [23], 150-151 [129]-[130]; Crampton v The Queen (2000) 75 ALJR 133 at 143 [52], 155-156 [121]; 176 ALR 369 at 382, 399-400.

83. Arguments of the parties: The respondent rested his submissions on what he said was the plain language of Art 1F(b). The position of that article in the scheme of the Convention must also be considered. Article 1F(b) represents an exemption to the definition of "refugee" contained in Art 1A. According to the respondent, unless the applicant for a protection visa qualifies as one to whom protection obligations are owed, logically, no question of exclusion is presented. By divorcing the exclusion from the entitlement to protection, there was, he submitted, a risk of characterising the "serious non-political crime" in an artificial light, divorced from the consequences that would follow for the applicant from such a characterisation.

84. The appellant argued that the introduction of this argument was not sustained by the way in which the case had been presented before the delegate and in the Tribunal. He submitted that there were obvious reasons of convenience for separating, and dealing first with, the issue presented by Art 1F(b) of the Convention. In a process that is already time-consuming, vexing and expensive, convenience suggested that it should be open for the delegate and the Tribunal to take the course adopted in this case where that course was otherwise appropriate.

85. Conclusion – no legal error: In my view the respondent has not demonstrated that the appeal must be dismissed for want of proof of an element in the exclusionary provision of Art 1F(b). I leave aside the consequences that would have followed for the respondent from the success of his contention. I will confine myself to dealing with it as it was presented.

86. There was nothing in the procedure followed in these proceedings to prevent the respondent making the points now advanced as reasons for approaching Art 1F(b) as an exception to duties falling upon States bound by the Convention in respect of persons who otherwise qualified within the definition of "refugee". Sometimes it could be convenient for both parties to have the suggested applicability of Art 1F(b) decided as preliminary to all other issues. Given that the respondent had been associated with the KLF and that such association was relevant both to his claim to refugee status and his potential exclusion for commission of "serious non-political crimes", it can readily be understood why a decision was taken to deal first with the exclusion.

87. In any case, the definition of "refugee" in Art 1A and the exclusions from it in Art 1F are not necessarily intended to be applied sequentially. Ordinarily, they will be decided, as necessary, in the one proceeding. However, there is nothing in the Convention or the Act that forbids the decision-maker saying to the applicant, as the delegate and the Tribunal said, in effect, to the respondent: "For the moment we will assume that you would be admitted as a refugee. We will approach your case on that footing, without finally deciding it. But we want first to determine whether you have 'committed a serious non-political crime outside' Australia." The Convention is expected to operate in the real world of speedy, economical and efficient decision-making. Where there is a choice between a construction of the Convention that would further decision-making of that character and one that would frustrate those objectives, the former construction should be preferred.

88. This conclusion has the merit of upholding proper procedures for raising objections before the decision-makers and courts below.  It rejects an objection that rings hollow in the mouth of the respondent.  It confirms a procedure before the delegate and the Tribunal that will, in given cases (of which this was one), be sensible.  Moreover, as Lord Slynn of Hadley pointed out in T v Home Secretary[66], an adverse decision, to the effect that Art 1F(b) of the Convention applies, does not necessarily mean that the applicant for protection must return to the State where he or she has committed a serious crime. It remains open to the Minister, if another State can be found willing to accept that person, to permit the applicant to go there.

    [66][1996] AC 742 at 776.

89. The first issue should therefore be determined against the respondent.

    The serious non-political crime point

90. The context of international law: I reach the substantive and difficult question in this appeal. It concerns the meaning of the phrase "serious non-political crime" in Art 1F(b) of the Convention and whether, as the Full Court found, the Tribunal erred in the meaning it gave to that phrase.

91. The first point to make is that the expression, although incorporated into Australian law[67], is one that appears in an international treaty.  It must therefore be given a meaning appropriate to its provenance[68].  This fact obliges a court to approach its meaning in the way laid down by the rules of municipal and international law governing the interpretation of treaties[69].  In the light of conflicting authority from many jurisdictions, it can hardly be doubted that the phrase is ambiguous.  Accordingly, it is permissible in elucidating its meaning to have regard to the state of international law before the Convention was adopted; its apparent purposes; the travaux préparatoires; and the opinions of scholars of international law[70].

    [67]The Act, s 36(2).

    [68]R v Wilson; Ex parte Witness T (1976) 135 CLR 179 at 191.

    [69]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 251-256, 294-295.

    [70]T v Home Secretary [1996] AC 742 at 763 per Lord Mustill.

92. The context of the Convention: The context in which par (b) appears in Art 1F of the Convention is obviously relevant. Article 1F(b) is found between two other exclusions, each of them applicable to highly reprehensible conduct, namely the commission of serious international crimes (par (a)) and acts contrary to the principles of the United Nations (par (c)). To some extent, the context gives emphasis to what the word "serious", appearing in par (b), already signifies. It is assumed for the purposes of par (b) that the applicant for protection has committed a "serious" crime. The applicant does not for this reason alone lose his or her rights as a "refugee". The entitlement to protection under Art 1A of the Convention is only lost if the crime in question is classified as "non-political".

145. The delegate of the appellant refused the respondent a protection visa.  The respondent sought a review of that refusal by the Administrative Appeals Tribunal ("the Tribunal").  In those proceedings, in which the respondent was represented by a migration agent, he effectively sought to repudiate the substance of some of his statements to the interviewing officer, Mr McHugh.  Two examples of his efforts in this regard are as follows.

146. During his examination-in-chief, the respondent was asked by the person representing him, Mr Glazbrook, a question about superior orders:

     "MR GLAZBROOK  Were you always acting under orders from your superior officers in the KLF to gain information, or were you just gathering information as you went around and then passed that information on?  Were you the instigator of the information?

     MR SINGH  We were collecting the information not only because we were ordered by the organisation, we were collecting the information because where there's a happen, we just go there, send over people, collect the information – what's happened, how many genocide – by the Indian government; not only because of the organisation and we pass that information to the political parties and all those human rights groups.  Whatever they do after the information, we don't know.

     MR GLAZBROOK              Did you pass the information onto other groups besides the KLF?

     MR SINGH  Yes, sir – just like political parties, you know, we tried to approach them, the political people and all the religious people you know, we give them the information because that information does not come because all the media's controlled by the Indian government.

     MR GLAZBROOK              Did you believe, or have any conscience feelings about what you were doing with information, as being against humanity, generally?

     MR SINGH  We tried to protect the humanity, not to genocide the humanity.

     MR GLAZBROOK              But you, yourself – did you have feelings that you were committing any offence yourself?

     MR SINGH  No."

147. Later he gave evidence at odds with his earlier statement that he had "tracked" one particular police officer (and his family) who was a "target" of the KLF and was, according to the respondent, later killed by a member of that organisation:

     "MR GLAZBROOK  Did the KLF go beyond offering protection?  Did the KLF institute actions against the police, of their own accord?

     MR SINGH  If they did, I have no knowledge.

     MR GLAZBROOK              Did you believe that the information you were giving to your leaders was a part of the process of taking action against certain police, or certain security forces?

     MR SINGH  That's not in my knowledge.  That's their decision, whatever they did to the information.

     MR GLAZBROOK              So you believe that the information that you were gathering and passing on, was information to assist the KLF in carrying out some of its functions?

     MR SINGH  No.  Because I'm not the only one who was collecting the information, there were a lot of other people they were doing the information."

148. The Tribunal was unimpressed by the respondent as a witness:  the Tribunal found that he had made a calculated attempt to avoid the consequences of his disclosure to the appellant's interviewing officer, which, in the Tribunal's opinion, generally represented an accurate account of the relevant events.  Accordingly, the following findings were made by the Tribunal:

     "1The 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.

     2The 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.

     3The 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."

149. The Tribunal held that the killing of the police officer by the KLF was a serious non-political crime:

     "The question then arises as to whether this serious crime is non-political.  Having regard to the accepted evidence, the Tribunal is satisfied on the balance of probabilities that the planned unlawful killing of the police officer took place because he was alleged to have tortured a member of the KLF.  Despite the assertions by the applicant that his involvement with the KLF and the activities of the KLF in general were directed solely at achieving the creation of the independent Sikh state of Khalistan and protecting Sikh minorities from oppression by the Indian authorities, in the Tribunal's opinion, the crime in question can only be characterised as an act of revenge or retribution against the particular police officer for the alleged torture of a KLF member.  Accordingly, there can be said to be no nexus or proportionality or close or direct causal link between this crime and the alleged political objectives of the KLF.  The Tribunal is of the view that this serious crime is very much akin to the subject crime in Hapugoda[137] which the Tribunal found to be lacking in any meaningful political character. For these reasons, the Tribunal finds that the unlawful killing of the police officer falls to be considered as a serious non-political crime for the purposes of Article 1F(b) of the Refugees Convention."

     [137]Re Hapugoda and Minister for Immigration and Multicultural Affairs (1997) 46 ALD 659.

     Appeals to the Federal Court of Australia

150. The respondent subsequently appealed against the decision of the Tribunal to the Federal Court of Australia (Mansfield J).  His Honour, after reviewing a number of authorities, concluded that in one respect the Tribunal did fall into error, that is, in treating the respondent's crime as non-political because it was in part at least motivated by a desire for revenge.  His Honour held, however, that there was another basis upon which the respondent's appeal should be rejected.  It was that the third of the findings (which I have earlier set out) justified the conclusion that the respondent had committed a serious non-political crime.  His Honour therefore dismissed the appeal.

151. The respondent then successfully appealed against the decision of Mansfield J to the Full Court of the Federal Court (Ryan, Branson and Lehane JJ).  There the appellant failed to persuade the Court that Mansfield J had erred in holding the Tribunal to have been in error in deciding that the respondent's participation in the murder of the police officer amounted to the commission of a serious non-political crime.  Their Honours said:

     "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."

152. They also took a different view of the respondent's other activities in India from the views of the Tribunal and Mansfield J:

     "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."

     The appeal to this Court

153. The appellant appeals to this Court on the following grounds:

     "1The Full Court erred in holding that the Tribunal was required to look at the circumstances of the crime so as to determine whether it is an incident of a political struggle before considering whether there are other characteristics of the crime which make it a 'non-political crime' within Article 1F of the Refugee Convention and Protocol notwithstanding the existence of any political struggle.  The Full Court should have held that it is not an error of law for the Tribunal to find that a particular crime is of a kind that is so atrocious that it can bear no sufficient proportionality to political objectives for it to be capable of characterisation as a 'political crime' irrespective of the existence of a political struggle.

     2         The Full Court erred in failing to find that:

     (a)of its nature, the object of revenge could not be an 'object of overthrowing or subverting or changing the government of a state or inducing it to change its policies' and, therefore, could not itself be characterised as 'political';

     (b)when a serious crime is done for revenge and for the purpose of overthrowing or subverting or changing the government of a state or inducing it to change its policies, the crime is done with mixed political and non-political motives;

     (c)when a serious crime involves a non-political motive it may be characterised as a non-political crime for the purposes of Article 1F(b); and

     (d)therefore, once the Tribunal had found that the murder of the police officer was affected by a revenge motive it was open to it to characterise the crime as a 'non-political crime' and to affirm the decision under review."

154. There are some observations that I should make at the outset with respect to matters that I think are of relevance and importance, and which have influenced me in deciding this appeal.

155. We live in a world in which, in many countries, seemingly endless cycles of violence occur.  Across the continent of Africa, in countries too numerous to mention, clans, tribes and factions repeatedly kill and maim one another.  In Northern Ireland, in the Balkans, in parts of the former Soviet empire, today in parts of Indonesia, less than a generation ago in Indo-China, in parts of South and Central America, and on the Sub-Continent ever since partition in 1947, peoples execute and assassinate members of rival groups, and, in some cases, adherents to different religious faiths.  It is often impossible to know, especially from a distance, and whilst living in a country of longstanding, stable, democratic political institutions, who in those places has right on their side, assuming that blame can be allocated.  Equally, it is impossible to know who is or was the initiator and what is an act of revenge, or an act in furtherance of a political objective.  It would be a mistake to assume that all of today's terrorists will turn out to be tomorrow's freedom fighters.

156. The rightness of a just cause or the monstrousness of an evil regime is often difficult to discern at the time.  From 1917 to 1989, even in the democratic world, opinion was far from unanimous as to the true nature of the Soviet regime.  Evidence of the horrors of the police state and the Gulag, the absence of freedom of expression and conscience, mass deaths in slave labour camps, the suppression of all dissent and other atrocities emerged only slowly and fitfully.  The same might have been said of the awareness of the activities of the Nazis in the 1930s, during which the gullible, as well as appeasers and sympathisers with malign motives, were disposed to take a benign view of Hitler's totalitarian regime, the full horrors of which only became fully revealed after the Second World War.  In both cases, those whom Lenin would describe as "useful idiots" could be found to act as apologists for some of the worst, or the worst crimes in human history.  There may be some regimes so brutal and some circumstances so intolerable that no one should be obliged to submit to them:  that practically any response is justified.

157. The underlying, inescapable, moral question which the Convention does not answer is, however, do the ends of a political cause justify any means, including murder and assassination?

158. In a sense, violence, especially in its final and worst manifestation, killing, is the antithesis of political activity.  Politics is the art or science of government.  Murder can hardly be fairly characterisable as an activity in furtherance of, or part of the practice of, an art or science. 

159. I would also point out that in this case there was no evidence whether, as in Australia, the death penalty has been abolished in India.  If it has, then, the respondent by being an accessory as I think it must be concluded he at least was, or by significantly contributing[138] to the killing of the policeman, inflicted a penalty upon him beyond the power of the polity of India to impose on the respondent.

     [138]See Royall v The Queen (1991) 172 CLR 378 at 441-451 per McHugh J; Osland v The Queen (1998) 197 CLR 316 at 399-404 [204]-[225] per Callinan J.

160. Civilised democratic societies abhor violence.  They are averse to unlawful self-help.  Their commitment is to open government and fair processes for all citizens.  Bearing all of the matters to which I have referred in the last five paragraphs in mind, I will state that I find myself obliged to approach the case with a disposition, with respect to my understanding of what is a political act, against unlawful self-help and violence, especially premeditated murder.

     The Convention

161. Clause 1F of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees provides as follows:

     "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

     (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

     (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

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

162. Contrary to a submission made in this Court for the first time by the respondent, I am of the opinion that the words "prior to his admission to that country as a refugee" should be understood to mean, "prior to his entry into the country in which he seeks or claims the status of a refugee".  Otherwise the purpose of the Convention would be subverted in that the nature of an applicant's prior criminal conduct could only be explored after he had been accorded refugee status. 

163. In finding the meaning to be given to the expression "non-political" in cl 1F(b), I should immediately record my debt to Lord Lloyd of Berwick for his review of the authorities in the United Kingdom, the United States and Canada in T v Home Secretary[139], although, with respect, I would express my conclusion somewhat differently from the way his Lordship (with whom Lord Keith of Kinkel and Lord Browne-Wilkinson agreed) did.  Lord Lloyd said this[140]:

     "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."

     [139][1996] AC 742.

     [140][1996] AC 742 at 786-787.

164. In my opinion, murder, especially premeditated murder, or its planning or furtherance, will practically never be a political crime.  I say "practically never" because, as I have already intimated, it is impossible to predict precisely what circumstances and cases of desperation, and justification, may come before the courts. 

165. A crime, in my opinion, will be a political crime if, first, it is done genuinely and honestly for political purposes, that is in order to change or influence an oppressive government or its policies, and, secondly, the means employed, although of a criminal nature according to the law of the country in which they are employed, are reasonably, in all of the circumstances, adapted to that purpose.  Circumstances which will be relevant to the question of reasonableness or otherwise are the nature and extent of the persecution, discrimination or oppression suffered by an applicant or a group to which he or she belongs before the commission of the crime; the availability and efficacy of measures to redress or punish such persecution, discrimination or oppression; the extent to which the applicant sought first to invoke or use such measures before embarking on the crime; the means available to the applicant or group to avoid persecution, discrimination or oppression; the nature of the government or its policies that the applicant wishes to influence or change; the process by which that government achieved power; the aims of, and means employed by any organisation to which the applicant belonged in furtherance of which the applicant claimed to be acting; the existence or otherwise of a free press in the applicant's country; the history, so far as it can be reliably ascertained, of dissension in the applicant's country; the way in which both the polity from which the applicant has departed and the polity of the country in which the applicant has sought refuge regard and punish the crime of the applicant, and any crime of his or her "targets" said to justify the former's crime; the respective roles of the government and the group of which the applicant is a member in the perpetuation of cycles of violence; and, the risk of indiscriminate harm to members of the public.  No one of these need necessarily be decisive, except perhaps the last in some cases.  As to that, its absence does not mean that the crime will necessarily be a political crime, although when it is present it will almost always be decisive as a ground of exclusion.

166. On the application of these principles, the Tribunal would, once it had found that the respondent's version contained in the official interview was to be preferred, inevitably, in my opinion, have reached the conclusion adverse to the respondent that it did, and on the bases of the two crimes or sets of them for which the appellant contends.

167. I deal first with the murder of the police officer.  It was the most violent of crimes.  On the respondent's own account (given to the interviewing officer) he was, at the least, and applying the Briginshaw[141] test which I think appropriate, an accessory to the crime of murder, or a conspirator in a plan to murder, and, on one view, a significant contributor[142] to, and therefore a principal in, the crime of murder.  The crime was committed out of a strong, if not exclusively retributive motivation.  Like the Full Court, I would not necessarily hold a crime to be a non-political crime simply because it was or may have been motivated in part by a desire for revenge, but that it has been so motivated cannot be disregarded in evaluating its true character[143].  The punishment by due process of oppressors, or, if those means are not available, activity, perhaps even violent activity, to dislodge them, or to prevent further oppression by them may be justified.  But violence, out of revenge is not, any more than revenge can of itself be regarded as a legitimate political activity.  It seems to me to be improbable that the killing of this police officer, or indeed a multiplicity of police officers, would produce any changes of the kind which the respondent and the KLF would wish to achieve.  There was evidence that there was freedom of movement of Sikhs in India and that oppression could be avoided without departure from the country.  I do not overlook that, on the respondent's version, the police officer who was the "target" of the KLF may have committed a dreadful crime or crimes but, as I have already indicated, the perpetuation of cycles of violence is itself likely to be futile.  Nor do I overlook that political intervention to save the tortured prisoner of the police officer failed.  These are matters which have to be weighed in the balance but they do not, in my opinion, tilt it in favour of the respondent. 

     [141]Briginshaw v Briginshaw (1938) 60 CLR 336.

     [142]See Royall v The Queen (1991) 172 CLR 378 at 441-451 per McHugh J; Osland v The Queen (1998) 197 CLR 316 at 399-404 [204]-[225] per Callinan J.

     [143]Francis Bacon wrote in "Of Revenge", in The Essays (1601):

     "Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.  For as for the first wrong, it doth but offend the law; but the revenge of that wrong, putteth the law out of office."

168. There was no suggestion that India lacked a free press.  It has a democratically elected government.  It also has an established hierarchy of courts.  It has to be remembered that its political boundaries, although to a large extent they may have been imposed upon the peoples, and perhaps with insufficient care and consultation[144], were ones which it would have been difficult for anyone to draw in such a way as to give satisfaction to all.  Having regard to that history, and the differing views, religions and traditions of the peoples of the Sub-Continent, 54 years would not appear to many to be a long period within which to mould and refine a democracy for more than a billion people.

     [144]Sir Cyril Radcliffe (later Lord Radcliffe), who was responsible for fixing the boundaries including that of the Punjab as part of the nation of India was given by the last viceroy, Lord Mountbatten (supported by the government of the United Kingdom) after approximately 200 years of British control, a total of 73 days for that purpose, so that his responsibilities would end on the second anniversary of the end of the war against Japan, 15 August 1947.  The difficulties of settling disputed boundaries have so far proved intractable.  An attempt by Sir Owen Dixon, acting as the special representative of the United Nations Security Council, to resolve the outstanding boundary disputes in respect of the nearby state of Kashmir in 1950 was unsuccessful.

169. The torturing by the police officer cannot be in any way condoned.  But the respondent's account throws no light upon the question whether the torture was committed because the victim was a member of the KLF or whether the latter was guilty himself of a criminal act, whether of violence, terrorism, intimidation or otherwise.  It is undesirable that a country give comfort to participants in crimes of violence on either side and I see no reason why considerations of these kinds should not influence the interpretation of such an imprecise expression as "non-political", particularly when there is so much room for difference as to an understanding of what is and what is not a political act. 

170. It follows, in my opinion, that the Tribunal was correct and both the Federal Court and the Full Court erred in not concluding that the respondent's participation in the activities that led to the killing of the police officer, although a retributive element may have been involved, did not necessarily mean in this case that the respondent had committed a serious non-political crime.  The purpose of the obtaining and passing of intelligence about the police officer's movements, the respondent well knowing that the police officer was, in the respondent's words, a "target", could only have been with a view to reprisals against him and to his elimination.  The respondent said that he had been aware of other targets on other occasions, and accordingly he could have been under no misapprehension as to the likely fate of the police officer and his role in its realisation.  Because I think this conclusion inevitable, there is no need for the matter to be sent back for reconsideration by the Tribunal.

171. I am also of the opinion that Mansfield J was correct in concluding that there was another basis upon which it could properly be held that the respondent had committed a non-political crime or crimes.  People do not move weapons around, including Kalashnikov rifles and explosives, in secret, in order that they may be merely looked at and admired.  Their movement could only have been for the purpose of their concealment and use.  Something in addition should be said in relation to explosives.  The possibility of indiscriminate wounding and killing must always be present when explosives are used unless a completely unoccupied and remote site is the target.  Accordingly, there was, in the respondent's involvement in the transportation and concealment of explosives a very real prospect of the wounding or death of, as it has been put euphemistically on other occasions, innocent "collateral casualties". 

172. In view of the conclusion that I have stated it is unnecessary for me to deal with the other matters argued by the appellant and referred to in the reasons of Kirby J.

     Orders

173. In my opinion, the orders of the Full Court of the Federal Court should be set aside, the appeal allowed and the decision of the Tribunal restored.  The respondent must pay the appellant's costs in the Federal Court and the Full Court of the Federal Court.