Minister for Immigration and Multicultural Affairs v Singh A11/2001 [2001] HCATrans 367 (13 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A11 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

DALJIT SINGH

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 13 AUGUST 2001 AT 2.38 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with MR S.B. LLOYD, for the appellant. (instructed by Australian Government Solicitor)

MR M.W. GERKENS: If the Court pleases, I appear for the respondent. (instructed by Fernandez Canda Gerkens)

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Thank you, your Honours. Your Honours, the matter concerns Article 1F of the Refugees Convention, which is set out on the first page to the second page of the judgment of Justice Mansfield, at page 260 of the appeal books, conveniently. The question whether Article 1F provided an exception to the potential operation of the Convention with respect to the respondent arose because of his apparent involvement, on his own story, with the murder of a police officer in India - - -

GAUDRON J: Well, he admitted he had provided information.

MR BASTEN: Yes. Well, I - - -

GAUDRON J: Did his admissions go beyond - and he knew that the policeman was subsequently killed.

MR BASTEN: Yes. The facts - - -

GAUDRON J: He did not make any admissions.

MR BASTEN: Perhaps not of physical involvement with the act of - - -

GAUDRON J: Not even of knowledge in advance, does he?

MR BASTEN: Well, the - yes - - -

KIRBY J: I thought he denied involvement. I thought he denied at one point physical involvement.

MR BASTEN: He certainly did, and that was accepted. There was no suggestion that he was, as it were, involved at the scene of the killing.

KIRBY J: He was a sort of intelligence officer.

MR BASTEN: Well, I think he might have been a bit more than that, your Honour. Your Honours, perhaps I should, more appropriately, go to the factual finding made by the Administrative Appeals - - -

GLEESON CJ: Could I interrupt you to ask you a question. It is inconsequential in terms of the outcome, Mr Basten, but I just want to understand the way the article works. On the top of page 261, I think there is a typographical error in the second line. Is that right?

MR BASTEN: Yes.

GLEESON CJ: And "of" should be "to".

MR BASTEN: Yes.

GLEESON CJ: You are relying on (b), are you not?

MR BASTEN: Yes, your Honour.

GLEESON CJ:

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

Was he admitted to this country as a refugee?

MR BASTEN: Not in terms, your Honour, no.

KIRBY J: This is a point raised at the end of the respondent's submissions, and I just do not understand whether they are taking some point of relevance to the record. But it is a question, is it not? Is that not a pre-condition to the operation of (b)?

MR BASTEN: We would say no, your Honour. May I come to that, that the short answer we make is that when one reads Article 1F as a whole, it is clear that this is an exclusionary provision, which would, if satisfied, permit the Minister to refuse a protection visa without considering the substantive questions of whether he would otherwise require protection in Australia, and that if one reads, firstly, the chapeau, it is clear that it refers to "any person", not to a refugee, "with respect to whom", et cetera. Secondly, in respect to paragraphs (a) and (c), that terminology, "prior to his admission to that country as a refugee", is missing, and that consequently, the case law says that there is no need to weigh, as it were, the nature of the crime against his possible claim to refugee status, and that accordingly, read as a whole, one does not have to ask whether he is in fact a refugee before considering the operation of the provision.

KIRBY J: Is that the result of the structure of our statute, or the way our courts have interpreted the matter, or courts elsewhere have interpreted the matter?

MR BASTEN: The last, your Honour, in the sense that there is no law in Australia on the operation of this provision prior to this case, certainly, none that discusses this aspect of the matter.

KIRBY J: Our legislation does not say you can proceed and assume that the person, for the purpose of the decision, is a refugee, but determine whether (b) is enlivened in its opening phrase.

MR BASTEN: No, that is so, your Honour. The legislative scheme is the same for the whole of the Convention, except in relation to appeals. Therefore, one turns to section 36(2); one finds the protection visa criterion stated in terms of Australia's protection obligations under the Convention. One then turns to section 65(1) and finds the satisfaction of the criterion as a basis for the grant of a visa - if not so satisfied, the obligation to refuse the visa; that, of course, does not distinguish between elements of the Convention. It is only when one comes to the review provisions in section 500(1), which provides that in a case involving Article 1F - or a decision relying on Article 1F, to be precise - the review application is made to the Administrative Appeals Tribunal.

GLEESON CJ: Does this mean that you read paragraph (b) as though it contained, after the word "admission", the words "or putative admission"?

MR BASTEN: Your Honour, perhaps before "refugee", "putative". This should not, obviously, be read - - -

GLEESON CJ: Well, he was never admitted to this country at all, was he?

MR BASTEN: It depends what one means by "admitted", your Honour. This is an international convention, of course, but that can be a term of art or it may not be. We would say, in this context, it is not. So it is not as if one needs to ask whether by physically entering the country he has been admitted to the country - - -

KIRBY J: Yes, but that explains "admission", but it does not explain "as a refugee".

MR BASTEN: Yes, your Honour. I was suggesting that it may be the putative elements relates to the status as a refugee rather than the admission, which may or may not have occurred, depending on how one looks at the factual circumstances of the entry.

KIRBY J: It is possible that that is a construction that one has to impose upon it, because the very question that is raised by the application is to be a refugee, and this is a disqualification. The other interpretation would suggest that a mistake has happened; the person has been admitted as a refugee, and should now be de-identified as a refugee, whereas, as I understand it, the theory of the Convention is that you are not entitled to be a refugee or to have the provisions of the Convention if you have committed this offence under (b).

MR BASTEN: That is so.

KIRBY J: It is very awkward, as you say, because one would have thought that the words would have come, if they were to govern it, before (a), (b) and (c), and not simply be tacked on to (b).

MR BASTEN: Yes. Whereas there is some - I will go to some of the authorities, but they do rely upon the fact that in relation to Article 1A, for example, the chapeau actually refers to "person" rather than refugee, as if that were a drafting decision of some significance - which makes sense of the provision, and, we would think, would therefore mean that one would not differentially apply paragraphs (a) and (b) within the terms of the same article.

KIRBY J: Although the respondent raises it, it does not help the respondent's cause very well, because unless it is in some way a notice of contention, it does not support the order that is made, because the theory that lies behind it is that he never got to first base, let alone second base.

MR BASTEN: Yes, that is so. We have not expressly taken that point, your Honour, because it would, in our view, be a matter for this Court whether it would wish to hear that - - -

KIRBY J: Well, you would not want to take it, because it inevitably leads - - -

MR BASTEN: No, that is not our point.

KIRBY J: - - - striking down the administrative decision.

MR BASTEN: I merely meant that we had not sought to take the point that there had been no notice of contention filed in this matter.

KIRBY J: It is not really a notice of contention point, because it is not seeking to support the order below on a different basis, is it?

MR BASTEN: No, well, that is so. I am sorry - as I understand the submission, it is, because it says Article 1F(b) somehow simply has no application to this person because he has not been admitted as a refugee, so its operation does not arise for some reason. Presumably, in the context of the Australian immigration scheme, he is saying that "You cannot ask a question about the operation of paragraph (b) of Article 1F until you have given me a protection visa." Therefore - - -

KIRBY J: I understand the point, but I did not see any remnant of it at all before Justice Mansfield or before the Full Court.

MR BASTEN: There is none, as far as we are aware, your Honour. I do not think that the point has been - - -

KIRBY J: I do not know quite what we are to do if we take the view that the point is a good one.

GLEESON CJ: It is not just a question of whether he has been admitted as a refugee; it is a question of whether he has been admitted at all, or as a refugee. From one point of view, he just jumped ship.

MR BASTEN: Yes. Well, if one takes the view that "admission" involves more than physical presence in the country, I suppose that is so. What we really say, your Honour, is that this is an inept, perhaps, definition of a period of time, namely, that it is the country of refuge, entry to which - or the country in which refuge is sought, entry to which is prescribed as the final date of this period, which moves backward and would include any crime committed before that date of entry. I have not put that terribly well.

GLEESON CJ: You read the words, "prior to his admission to that country as a refugee", as meaning nothing more than: prior to his entry into that country.

MR BASTEN: Yes. In other words, the crime must have been committed prior to entry into the country in which he seeks refuge - - -

KIRBY J: I can understand that as a reading of "admission to that country" but I find it hard to read "admission to that country as a refugee". You are wishing away, entirely, those words, "as a refugee" - the status upon which he was admitted to the country.

MR BASTEN: Your Honour, his entry into the country, from his perspective, presumably, was as a refugee. That is how the involvement of Australia - - -

KIRBY J: No, but you cannot read it as: prior to his assertion of entitlement to be admitted to the country as a refugee.

MR BASTEN: No, I do not, your Honour.

KIRBY J: It is an objective fact, rather than his opinion.

MR BASTEN: Well, it may be an objective fact, but what is needed is to identify, as the end point for the period during which the crime may have been committed, his entry to the country in which he seeks refuge.

McHUGH J: Whatever view you take about it, it has a serious flaw, because it commences by saying:

The provisions of this Convention shall not apply -

to a person, et cetera, et cetera, as a refugee - but you have to go to the Convention to find out who is a refugee. "Refugee" has a special definition in this Convention. So if the provisions of the Convention do not apply, you would never know whether or not the person was a refugee.

MR BASTEN: That is so, your Honour. I suppose what is put against us is that that definition is to be found in Article 1A, and therefore governs the meaning of the term in Article 1F. I do not know whether it is the appropriate way to look at things.

McHUGH J: Well, I know, but you can only find out what "refugee" means in 1F by looking at 1A - - -

MR BASTEN: That is so.

McHUGH J: - - - and yet, 1F says the Convention - the other. There would also be a practical difficulty in reading it literally. It would mean that 1F would never apply to, say, boat people; it would never apply to anybody who arrived here unless the person was actually admitted by the government as a refugee, and then the government sought to resile.

MR BASTEN: Yes. With respect, we would accept all of that, your Honour. It does not seem to us that it is, purposively, a correct way to approach the provision. If one looks at it in its context, it must be doing something other than what your Honour has - - -

KIRBY J: Would you remind me how the Convention becomes part of Australian domestic law? Does the statute simply say: it shall be part of Australian law, or is it - - -

MR BASTEN: No. I think - and I apologise for this - I am not sure whether your Honours - - -

McHUGH J: Is it not under 36(2)?

MR BASTEN: It is 36(2). We have not given your Honours the whole of the Act, and I am now not sure whether we have given - tab 2 in the bundle of authorities, I think, has section 36(2) in it, your Honour, and might I apologise: the version which is there contains subsections (3) and following, which were not in force at the date on which this matter was determined.

KIRBY J: None of them? Down to (7)?

MR BASTEN: None of them. Just (1) and (2). But in answer to your Honour Justice Kirby, it is therefore only as a criterion for the issue for the issue of a protection visa that the Act picks up Australia's protection obligations under the Refugees Convention. The primary obligation is that in Article 33 of non refoulement, which, of course, only applies to refugees.

KIRBY J: Can you tell us the way this is ordinarily administered? That is to say, that instead of worrying about whether the person qualifies as a refugee - the well-founded fear, the Convention ground, and all that - if there is a serious crime, that the decision-maker and the Tribunal go straight to whether or not they fall in the exclusion. That seems to be the way it was done in this case.

MR BASTEN: It certainly was, in this case. I do not know whether it would be automatic, your Honour, but there is some case law indicating that that is an appropriate course to take. For example, the decision of the United States Supreme Court in INS v Aguirre-Aguirre, which is at tab 12 of your Honours' bundle. There, the Board of Immigration Appeals approached the matter in this way, and it was a ground of appeal that it erred in taking that approach. That ground was rejected on the basis that it was appropriate to consider the operation of this provision before going to the question of threat of persecution. And if your Honours go to page 425 of INS v Aguirre-Aguirre 526 US 415 (1999), your Honours will see that under part A of the opinion:

The Court of Appeals' error is clearest with respect to its holding that the BIA was required to balance respondent's criminal acts against the risk of persecution he would face if returned to Guatemala.

And what happened was that the BIA had not considered that aspect of the matter, and that perhaps, at the end of the long paragraph in the middle of page 426:

The BIA, in effect, found respondent ineligible for withholding -

that is asylum -

even on the assumption he could establish a threat of persecution. This approach is consistent with the language and purposes of the statute.

I need not take your Honours through the whole passage, but this appears to be a common approach which has been adopted in other countries.

GAUDRON J: And which statute is that?

MR BASTEN: The statute in question in the American - your Honour, it is referred to there. They have enacted the terms of the Convention. There is an extract from it at the beginning of Justice Kennedy's judgment on page 418 at about point 3 on the page, where his Honour said:

The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States.

And there is a reference to volume 8 of the US Codes and the particular provisions. I can perhaps obtain that, if that would be of assistance in its full form.

GAUDRON J: Yes, but you see the difference in wording there?

MR BASTEN: Your Honour will tell me what you are referring to, but I would concede immediately that there are variations.

GAUDRON J: Because the quotation marks come after "crime", and then the description is: "before his entry into the United States". Now, we are not dealing with the words: before his entry into Australia.

MR BASTEN: No, we are not, your Honour. I accept that.

GAUDRON J: Well, it might be helpful if you could tell us precisely what the statutory provision is, and how the decision came, because the reasoning does not strike me as immediately appropriate.

KIRBY J: On the contrary, if you are looking at words "admitted to that country as a refugee", in the context of (b), there is at least an argument that requires you to consider the commission of the serious non-political crime in the context of the fact that the person has been admitted as a refugee; and therefore, contrary to what the Supreme Court said, and more in kin with what the Court of Appeals said, that you do view the non-political crime in the context of the refugee claim that has been admitted.

MR BASTEN: Yes, I accept that, your Honour. What I was going to say was that - and, again I would be asked the same question as to the statutory scheme in Canada, I am sure, but in case 13 in Gonzalez at pages 411a to b, one finds the same approach being adopted in Canada in relation to these matters and, your Honour, again, I, perhaps - I had not intended to go to this material for this purpose particularly, but perhaps I can again make sure overnight that I have available for your Honours a copy of the statutory provision in full in relation to the Canadian legislation. But you will see that it refers at page 407 to Article 1F, but obviously that may not give a full answer in relation to the issue.

GAUDRON J: You see, one possible approach to Article 1F is that it simply excludes the Convention obligations with respect to refoulement

MR BASTEN: Well, that would be acceptable on the argument I was putting because what is picked up by section 36(2) is Australia's protection obligation. The Act used to, as your Honour may recall, to refer to the refugee status. It no longer does that. It picks up the protection obligations which we would apprehend were primarily Article 33, and so on, and that if one was excluded from those obligations, then one is not entitled to the protection visa. That might be the correct form of analysis, in effect.

Your Honours, leaving that issue to one side, unless there is further material I should refer to in relation to that, I think I was going to say, in relation to the way in which the Tribunal had dealt with the matter - and I am instructed that this is not an unusual way. In other words, where the Delegate considers that one of the limbs of what Article 1F may have been engaged, it would be usual to go to that first. In fact, the Delegate's decision was that Article 1F(a) was involved, rather than (b). Your Honours do not have that in the appeal book but we provided a volume of supplementary materials and at page 5 of the supplementary materials your Honours will see there is set out, pages 5 through to 9, the decision of the Delegate which, ultimately, was that the first of the paragraphs was the one which excluded the respondent in the particular case.

KIRBY J: But you do not support that?

MR BASTEN: We do not.

KIRBY J: That was overturned by the Tribunal, and it is from the Tribunal that the point of law was taken to the Federal Court.

MR BASTEN: That is so, yes. We are not interested in that aspect of the matter. We simply say that the Tribunal did not err in law in the approach that it took to the matter.

GLEESON CJ: The Tribunal appears to have accepted the submission that is set out at page 242, lines 48 to 55.

MR BASTEN: Yes, in substance, that is so, your Honour.

GLEESON CJ: Well now, is there not a problem with the words "could not" in line 54?

MR BASTEN: I think that the submission was that, in the context, it could not because one does not read that out of the previous context, which was a submission that the KLF was a terrorist organisation. That was not something the Tribunal actually did decide and, secondly: "involved in revenge killings"; that, of course, was the circumstance which the Tribunal accepted, at least in relation to two acts before it, so that perhaps - - -

GAUDRON J: But revenge on whose part?

MR BASTEN: Revenge on the part of the political organisation of which he was a member, the Khalistan Liberation Force.

GAUDRON J: It just seems to me that the real problem about this decision is knowledge. Now, although I am aware that there is authority that says you are talking only on the balance of probabilities, one would have thought, when you are talking about serious crime, that you were really pretty much in Briginshaw v Briginshaw territory, and one would not necessarily be inferring knowledge in the face of a denial of knowledge.

MR BASTEN: Might I make two answers to your Honour Justice Gaudron? Before I do, might I just say that I think I was perhaps over-hasty in accepting the breadth of what your Honour the Chief Justice put to me. I am not sure that the Tribunal, accurately portrayed, did accept every element of that submission. So that one needs to perhaps go to - - -

GLEESON CJ: I related that submission to the conclusion expressed on page 249, lines 45 to 55.

MR BASTEN: Yes. Well, perhaps I can come to that. But one of the points I was seeking to make was that the Tribunal - well, perhaps I should deal with that in due course. I am not sure whether it is accurate to say that the Tribunal accepted that it was a terrorist organisation. It really omitted to deal with that aspect of the matter. It accepted, as we would read the decision, that for its purposes, it was sufficient to assume that the KLF did have what might be described as legitimate political goals and it was not necessary to determine whether, in fact, it was better described as a terrorist organisation, which I think was part of the submission which had been put to the Tribunal at the earlier stage. Perhaps if I - - -

KIRBY J: The problem with these labels is, if you look at the history of India itself - I mean, Mr Ghandi's movement would have been called a terrorist organisation after - - -

MR BASTEN: Yes.

CALLINAN J: Well, he was a pacifist though, was he not?

MR BASTEN: Yes.

KIRBY J: Well, he might have, but not everyone did.

MR BASTEN: One of the propositions I was going to put to your Honours in that regard - and perhaps I should indicate it clearly now - is that the matters about which judgment is required to be made are undoubtedly ones which require evaluation in qualitative terms - in the terminology of your Honours Justice Gaudron and Hayne in Foster's Case, to which I need not take you - but where there is satisfaction about such a matter, we would respectfully submit that the Court would be slow to intervene precisely because these are such matters. Neither the criteria against which the facts are to be assessed are clearly identified, nor are the judgments which are to be made, other than judgments about which minds might reasonably differ.

GLEESON CJ: Is this what you mean by "deference" in your submissions?

MR BASTEN: Yes, it is, your Honour.

GLEESON CJ: I wondered exactly what that concept meant.

MR BASTEN: Yes.

GLEESON CJ: I see it plays a prominent part in the United States reasoning that you showed us a little earlier.

MR BASTEN: Yes. I do not think I relied on the United States reasoning in that context specifically, but the same conceptual element is involved - - -

GAUDRON J: Well, for my part, I think we had better look at the terms of the grounds of review. I certainly - the notion of judicial deference to administrative decision-makers was given very short shrift in Enfield Council here a few years ago.

MR BASTEN: I am conscious that your Honour made some specific comments about that, but perhaps I should just indicate - I did quote the passage from Foster, perhaps I should just say it is [2000] HCA 38; 200 CLR 442, and it is paragraph 38, in the joint judgment of your Honour and Justice Hayne. But might I come back to the point that your Honour Justice Gaudron made to me a moment ago about questions arising from the factual finding. Firstly, in relation to whether it is a balance of probability test or not, the opening words of Article 1F do not require a finding of proven fact. They merely require that the decision-maker be satisfied that "there are serious reasons for consideration that" something has happened.

GAUDRON J: Yes, well, that is a bit more than suspect.

MR BASTEN: Well, your Honour, two things. Firstly - - -

GAUDRON J: It would seem to me to be a bit more than reasonable grounds for belief; a bit more than reasonable grounds for suspecting; would it not, to take concepts with which we are familiar?

MR BASTEN: Yes, well, in Arquita, I think Justice Weinberg compared it with the establishment of a prima facie case for committal proceedings as the appropriate analogy, perhaps, in the terminology with which we are familiar, which means that I would obviously agree with your Honour that it was more than what your Honour was putting to me in those terms. I think it is at tab 5 of the volume of cases, Arquita v The Minister for Immigration and Multicultural Affairs.

The other matter I was going to say was that there may be different questions which arise in relation to the different elements of Article 1F. In other words, the involvement in a crime is obviously one element. The assessment as to whether that crime is or is not non-political is quite a different question and involves quite different factors and matters for consideration.

KIRBY J: How does one divide a case where, or how does one draw a line between the factual finding, which is entirely within the province of the decision-maker, and a perverse or apparently absurd factual finding where it is clear that a wrong legal criterion has been applied to reach that factual conclusion. I am thinking of the case of Azzopardi in the Court of Appeal when the question was, the appeals from the New South Wales Compensation Court to the Court of Appeal was only on a point of law. Justice Glass, following a long line of English authority, said, "Even perverse findings of fact now cannot be elevated to a point of law".

I have never felt comfortable with that notion myself, but I just wonder where the authority of this Court stands on that issue. I think that the Federal Court took a slightly different view to Azzopardi in the administrative law matters and it may be, as Justice Gaudron suggested, that is because of the words of the administrative law statutes. But I would like to know what the common law principles were and what the relevant statutory provisions here are because we are here talking of an appeal from the AAT.

MR BASTEN: We are talking about section 44 of the AAT Act which is a question of law, not that I think anything necessarily turns on that as opposed to the grounds which might otherwise have been available under 476(1) of the Migration Act.

GAUDRON J: It is accepted, is it not, that absence of evidence is a question of law?

MR BASTEN: Yes.

GAUDRON J: Sufficiency of evidence is a question of law?

MR BASTEN: Yes.

GAUDRON J: Sufficiency of evidence is a question of law?

MR BASTEN: No, I would not accept that, your Honour.

GAUDRON J: Well, sufficient evidence to base a conviction is a question of law?

MR BASTEN: There must be some probative material. I am sorry, to base a conviction?

GAUDRON J: Yes.

MR BASTEN: I am sorry, your Honour is taking us outside the judicial review grounds, I am sorry.

GAUDRON J: No, but I am looking for what is a question of law, at least for the purposes of this - for error of law by the AAT.

MR BASTEN: Yes, I repeat what I said. I would want an absence of any probative material, at least for the error of law ground, as opposed to the no evidence ground supporting the ultimate decision.

McHUGH J: There must be some evidence upon which a jury, acting reasonably, could convict the accused - "could".

MR BASTEN: Yes.

GAUDRON J: Now, what would be wrong with saying, at least for the purposes of involvement, which I know has not featured a lot so far, but it seems to me to be a real problem in this case, that there is evidence upon which a reasonable person could conclude that he was involved, or on which event could conclude that he was involved in a serious crime? To have serious grounds for, or serious reasons for considering, what is wrong with the test that there must be evidence upon which a reasonable person could conclude that he was involved?

MR BASTEN: I would not have any difficulty with that proposition, your Honour.

GAUDRON J: Would it be a question of law whether there was evidence upon which a reasonable person could conclude?

MR BASTEN: Yes. Your Honour is talking about the involvement question?

GAUDRON J: Yes.

MR BASTEN: Yes, well, I do not have any difficulty with that. I do not know that four Federal Court judges have thought there was any need to address that question in this matter.

GAUDRON J: I know.

MR BASTEN: But that was really the position from which I was - - -

GAUDRON J: Which seems to me to be somewhat amazing. It is raised by the respondent in this Court in his submissions.

MR BASTEN: Well, it is raised, in a sense, yes. Perhaps I can come to the respondent's submissions in due course in relation to that aspect of the matter.

GAUDRON J: But I am wondering if we are really, to go back to what Justice Kirby said, in the territory of factual findings at all in this case. We are talking about serious reasons for - I have lost the wording - - -

MR BASTEN: Serious reasons for considering - - -

GAUDRON J: For considering. Now, I am wondering if there really are factual findings in issue at all in this case, because the AAT does not really deal with factual findings. They do not say, "This man knew", or, "It can be inferred that he knew", or any of that, do they?

MR BASTEN: I think so, your Honour. The evidence was considered in some little detail from the bottom of page 246, under the heading "Findings of Fact". The Tribunal starts by noting that it:

had the advantage of closely observing and listening to the applicant during the giving of his oral testimony.

It then goes on to discuss the fact that whereas before the Delegate, in a recorded interview, he had, in effect, explained his involvement in the KLF and his involvement in targets which were to be hit and his knowledge of the existence of weapons and explosives, he turned around and effectively took the contrary position, namely, that he had not been involved in, and did not know that the KLF had ever been involved in such activities. That was all the matter of an assessment of evidence which took place through page 247 - - -

GAUDRON J: It might be an assessment of the evidence, but there is no finding that he did anything other than provide information - - -

McHUGH J: There is express findings that he knowingly participated.

MR BASTEN: Yes - - -

GAUDRON J: But where is the evidence of knowingly?

CALLINAN J: Pages 146 and 147.

GAUDRON J: As distinct from the findings?

MR BASTEN: Well, the findings are at 248, your Honour, in paragraph 38, where the findings are expressly set out.

CALLINAN J: Pages 146 to 153, I think it is. I think it begins at about 146.

GAUDRON J: It is then explained he:

did so by the provision of information and intelligence . . . knowingly for the purpose of the killing of him by other members of the KLF.

But that, I take it, is inferred from something. The knowledge is inferred from something.

CALLINAN J: No, at pages 152 and 153, he speaks specifically about obtaining "the details of a target" who was a police officer, who was subsequently assassinated as a result of the provision of his information, by the organisation.

MR BASTEN: Yes, your Honour, that is part of an interview with the departmental officer. The statutory declaration which accompanied his protection visa application is at 46 to 47 and sets out a number of aspects of the story. It was elaborated on during the course of the interview in the passages to which his Honour Justice Callinan has referred - - -

GAUDRON J: But at no stage does he say - look, at best, I mean we are talking about what is said to be a serious crime. Forget the non-political for a moment.

MR BASTEN: There were three of them, yes.

NB T4

GAUDRON J: It might be conspiracy, it might be accessory before or accessory after the fact of murder. Is there anything else we might be talking about in this area?

MR BASTEN: I am sure that sufficiently covers the ground of what the Tribunal member had in mind at page 248 at line 25 to 35.

GAUDRON J: Yes, but could we be talking in any other terms besides those?

MR BASTEN: I would think not from the general information we have, I mean obviously that it was not as specific as that. The discussion in the Tribunal's reasoning - - -

GAUDRON J: You see, that is part of the problem, just saying that there were serious reasons for thinking that, it seems to me, without identifying the crime, and what there must be some evidence of upon which a reasonable person might conclude that he had committed the crime. What is concerning me in all of this is where is the evidence of fore knowledge or agreement to kill, or an agreement of a type that would encompass the killing by this man who is providing information?

MR BASTEN: He said, did he not, he could not get somebody released who was being tortured, then his boss told him to find out all the detail about the policeman's his family, how many kids he has got, what school he has got, what time he went to work, which road he takes, what route he takes when he is coming back, and then to pass that on, and then they killed him.

CALLINAN J: It is difficult to think of any other purpose for which such information would be obtained.

MR BASTEN: Yes. His Honour Justice McHugh is reading from a passage which is actually set out by the Tribunal in its judgment at page 240 at lines 20 to 30, in effect, ending with a conclusion:

Yes, because before they did it the KLF killed, right, the policeman kill him, and then they -

not well expressed -

wait and kill him too.

KIRBY J: The problem is characterising this as "non-political" as far as I am concerned. The history of the 20th century, and no doubt earlier centuries, has been that for a time organisations are called "terrorists", and then when they achieve their goals they become respected international statesmen.

MR BASTEN: Yes.

KIRBY J: That is the reality of the world. They do not run without information and without agents at a very low level, and a high level. This man was a low level person who gave certain information. It just seems rather unreal to say, "Well, we do not approve of this particular one, and therefore we will say it is terrorism, and not political", and no doubt that is what Mr Churchill said about Mr Gandhi in the 1930s.

MR BASTEN: Yes.

GAUDRON J: Even if you infer from that knowledge, how do you impute to this man that it was purely for revenge? How do you impute the KLF's motives to him, and how do you find the KLF's motives of revenge? You see, I really am having difficulty in these factual findings, notwithstanding that perhaps my colleagues do not.

GLEESON CJ: I have an additional difficulty. What is it that makes revenge non-political? If you walked into some areas of the world today where people have been engaged in what those to our north would call "payback" for hundreds of years, the question of who is taking revenge upon whom might be very difficult to answer.

MR BASTEN: Yes.

KIRBY J: That is basically what Justice Mansfield said, is it not?

MR BASTEN: It is, your Honour.

KIRBY J: What is wrong with it?

MR BASTEN: What is wrong with it?

KIRBY J: Yes, nothing?

MR BASTEN: Perhaps to answer the last question first, if I may, and that is the Chief Justice's question. We say it involves the wrong legal question. The question was whether, as a matter of law, it was not reasonably open to the Tribunal to categorise the motive as something other than a political motive.

GLEESON CJ: If you look at page 242 in the submission of Ms Maharaj, and the conclusion expressed on page 249, line 50, the theory of the Tribunal's approach appears to be that there was some kind of dichotomy between retribution and politics. You see the words:

simply because the unlawful killing of the police officer out of retribution cannot, on the facts before the Tribunal, constitute a serious political crime - - -

Why cannot killing somebody out of retribution constitute a political crime?

MR BASTEN: On the facts before the Tribunal?

GLEESON CJ: I do not know what those words add? Maybe there is something special to this case, and we can come to that in a moment, but as a general proposition is there some dichotomy between revenge and politics?

MR BASTEN: There is a possible dichotomy, yes. Not all politics involve revenge, and not all revenge is political, and nor is it sufficient, for the purposes of the Convention, that someone claims to have a political motive.

GLEESON CJ: That does not create a dichotomy, that just creates a difference.

MR BASTEN: Indeed. What your Honour is putting to me, and as I understand it this was perhaps part of the basis on which the Federal Court dealt with it, was that the use of the words "cannot" there, imputed some legal statement; namely, it can never constitute a political motive.

GLEESON CJ: I wondered whether perhaps what the Tribunal had in mind - and if this is right it might assist you - is that by revenge or retribution the Tribunal was thinking of some kind of personal animus towards the policeman who was killed, as distinct from a desire to advance the political cause of the Sikh movement by killing as many Hindu officials as possible.

MR BASTEN: Yes.

GLEESON CJ: Is that what they had in mind?

MR BASTEN: As I would understand it, yes, and that as I understand it, was what Justice Mansfield thought was a possible explanation at the top of page 269. Perhaps I should go to the bottom of page 268 where his Honour said, in the second - - -

The Tribunal appears to have eliminated the appellant's crime from the rubric of "political" protection because it was an act of revenge. I do not consider that, to characterise a criminal act as an act of revenge necessarily precludes it from being a political crime.

That, we say, is the wrong test.

If that is what the Tribunal did -

His Honour said that was an error.

If, on the other hand, it simply found as a fact that the appellant's motive of revenge was not directed to fulfilling the political objectives of the KLF, but was remote from that purpose, then the conclusion of the Tribunal would not be in error.

GAUDRON J: That is where my problem is. It does not seem to be that this man's motives were explored. It was the KLF's motives that were explored, and they were imputed to him.

MR BASTEN: This man was putting up a case. May I go back a stage? The way in which this matter came before the Tribunal and was presented before the Tribunal, was not without its difficulties. If your Honours turn to page 243 at paragraph 24 of the Tribunal's reasons, in that paragraph the first half notes that Mr Glazbrook, who appeared for the respondent in the present proceedings, emphasised "the peaceful nature of the applicant's activities". In other words, he was before the Tribunal denying any criminal activity. Then in the alternative, at line 30:

if the Tribunal was satisfied the applicant had committed the crimes as alleges by the respondent, that it should find that the crimes were nonetheless of a political nature such that the applicant did not fall within the exclusion . . . Mr Glazbrook submitted that all the activities of the KLF and of the applicant in his capacity as a member of the KLF were committed in the course of attempting to achieve the political objectives of the KLF, namely, the creation of the independent Sikh state and the protection of Sikh peoples from oppression -

Against those submissions, what the Tribunal has said is that "the revenge killing of someone who is believed to have tortured a KLF member or members in custody, could not advance those objectives in a sufficiently direct, and not a remote way."

GAUDRON J: Whose objectives, though?

MR BASTEN: The alleged political objectives of the KLF, which he does not assess, namely:

the creation of an independent Sikh state and the protection of Sikh peoples from oppression - - -

KIRBY J: I find that all a bit illogical. I mean one of the purposes of killing people who torture, is (a) to remove them from doing it again; and (b) to discourage others from doing it in case the same fate awaits them. So it is part of the politics of the situation, is it not?

MR BASTEN: It may be part of the politics, but that is not sufficient, with respect, to require that it be a political crime. Presumably a belief that somebody had been beaten up by police in Australia would not justify the killing of a police officer, so that the person could escape to another country and refuse to be returned.

GAUDRON J: We do know from these papers, that there has been considerable violence between the Indian authorities, Indian people, and the Sikh population, do we not? Very considerable violence. It emerges in this, does it not?

MR BASTEN: Yes. In the past, anyway. I do not know whether that emerges as to post-990s. That may not be - - -

GAUDRON J: Government violence is not carried out by pieces of paper. It is carried out by people, as agents of the state. It just seems to me, as Justice Kirby says, you cannot isolate it like that. More to the point, I do not think you can impute the KLF's motives to this man, because you are talking about a "personal crime" if you like.

MR BASTEN: One is talking about a crime in which he was involved individually, that is so. What I am seeking - - -

GAUDRON J: Not as a principle, though. That is right, not as a principle. You see, again, the analysis is not here, to know what you are really talking about, it seems to me.

MR BASTEN: The reason I took your Honour to that passage was to suggest simply this, that the way his case was put before the Tribunal was not without its difficulties. In substance his case was "I did not have any involvement, nor did I know of the murder of the policeman, but if I did it was for a political reason" and he failed, in effect, to persuade the trier of fact of either proposition, which perhaps is not difficult to understand in the circumstances. The way in which the alternative - - -

GAUDRON J: I am just wondering why he had to persuade the Tribunal of fact? We are talking in the area of crime. The Tribunal has to have serious reasons for considering, and it surely cannot be simply that he is not an impressive witness.

MR BASTEN: It has to make findings of fact which requires that it be satisfied to a particular degree. It said it was satisfied of the facts set out at page 248 on the balance of probabilities, but the point I was seeking to make in relation to motivation was simply that his case, as set out a page 243 in the middle of the page, was that his motives were those of the KLF, no less, no more. It was not suggested that if he did commit this crime there was any other motive which would take him outside Article 1F, other than those of the KLF.

GAUDRON J: Yes, but for, which he calls the "creation of the independent Sikh state and the protection of Sikh people from oppression.

MR BASTEN: Yes.

GAUDRON J: That is what he said his motives are. He says they are also the KLF's. Where in there can you say, "If the motives of those who ordered the killing were other than mine, I also had their motives"?

MR BASTEN: I think, your Honour, the answer is that within the context of what was known about the crime, the evidence he had given, the Tribunal simply did not accept that the killing of the police officer as revenge for torture was sufficiently closely connected - and perhaps I need to take your Honours - and I was intending to do this before I got perhaps into the full scale of this argument - to the tests which have been applied by overseas countries interpreting this article, other courts.

GAUDRON J: That may be where the problem lies in this matter.

GLEESON CJ: The way this developed was that he originally laid the foundation for his claim to refugee status on his identification of the KLF.

MR BASTEN: That is so.

GLEESON CJ: On page 132, at line 45, he said that his reaction to the conduct of Hindus was to quit his job, join the KLF and start working with the KLF to liberate his country.

MR BASTEN: Yes, that is so.

GLEESON CJ: Then, as I under the sequence forensically, somebody from the government side said, "Hang on, the KLF is an organisation of terrorists". Certainly by the time Ms Marharaj was putting her submissions, that was the line that was being taken.

MR BASTEN: Yes.

GLEESON CJ: So, his identification of himself with the KLF for purposes of his claim to refugee status, according to the government's submissions, backfired.

MR BASTEN: Yes. It had backfired before the Delegate before it got to the Tribunal. On the basis of that information that is so.

CALLINAN J: Mr Basten, could I explore another matter with you. Leaving aside any question of whether he may or may not have been an accessory, or indeed even a principal - and perhaps arguably on one view he was - but leaving aside that, do you concede that murder can ever be a political crime?

MR BASTEN: No.

KIRBY J: What, never?

MR BASTEN: We did not suggest that - - -

KIRBY J: You are denying Jomo Kenyatta and all the other people who were engaged in the politics of colonial liberation.

CALLINAN J: In one sense, politics eschews violence.

MR BASTEN: Yes.

CALLINAN J: I mean, I do not know. One can select plenty of examples from history of people who did very violent things in promotion of perhaps a very good cause or a very just cause but, on the other hand, they were still committing crimes at the time, very serious crimes, in circumstances in which some might take the view - I do not suggest all, but some would take the view - that the only proper way to achieve political ends is to achieve them in a civilised non-violent way.

MR BASTEN: Yes.

CALLINAN J: It might take a lot longer, but I just want to understand your submission. You do not concede that murder under any circumstances can be a non-political crime, is that right?

MR BASTEN: That is so, at least for the purposes of this case.

KIRBY J: But could I not suggest to you that we have to construe the Convention in an international setting for which it was created, not in respect of this case or this country. We have to look at it as it operates in an international setting. As I understand the theory of the Convention, it says that you are out if you commit a personal crime but if it is a political crime, given that it is often difficult to classify them, then that does not necessarily mean you are out.

MR BASTEN: Yes.

KIRBY J: Now, I just do not see how you can, in an international setting of an international Convention, say every murder, even though it may have been for the highest political motives is, "You're out".

MR BASTEN: Yes. Interestingly, in the light of the question your Honour asked me, there is now a move towards seeking to prevent terrorists gaining immunity, as it were, by travelling from one European country to the other. There is no agreement between the countries as to a definition of terrorism but there is a growing level of agreement that the assassination of a head of state, which one might have thought was the ultimate political crime, is not a basis for resisting extradition.

GLEESON CJ: So, if the people who attempted the murder of Adolf Hitler had fled, they could not be refugees?

MR BASTEN: Yes. Well, that might well be the result of that.

KIRBY J: They would have to be returned, like Dr De Valera's reception of mourning on Hitler's death.

CALLINAN J: It depends whether they manage to reach the victors or not.

MR BASTEN: It may or it may not, I suppose.

CALLINAN J: That is where it always counts.

MR BASTEN: I think we have drawn the comparison in the submissions between - and one of the cases does say between the assassin of John F. Kennedy and the attempted murder of Hitler, but the question really cannot be answered, we would respectfully submit, in an ahistorical manner and amongst other things, one does make a judgment about the legitimacy of the political struggle in which the person is allegedly involved, otherwise the country would be condemned to accepting terrorists from any country simply because the executive would have to eschew any evaluative judgment about the legitimacy of the acts which they have committed.

GAUDRON J: Again you say that but that, it seems to me, depends on a particular view of what is involved in serious reasons for considering. I mean, if you take the view - we will take another country - that a person was a member of the real IRA, therefore there are serious reasons for considering he was involved, that is one thing, but if you look at it as this particular individual, what were his motives, knowledge and so forth and so on, you might get an entirely different answer. We are not all so naïve as not to realise that individual motives and aspirations and desires and knowledge and so forth in freedom-type or liberation-type organisations will be very disparate and will vary from one person to another. It really is a question of whether you are looking at the individual, it seems to me, or the organisation, and what this article requires in that regard.

MR BASTEN: Yes. I was going to add, and what this article requires when applied to the facts of a particular case.

GAUDRON J: It seems to me to require a bit more than that the applicant did not make out his case.

MR BASTEN: No doubt. I am sorry, I was not seeking to put that submission in any form. Why I took your Honours to page 243 was to say - and presumably the applicant was putting his case at the highest - he needed to - - -

GAUDRON J: He was putting his case to be a refugee and in many respects that may all be tied up. I am just wondering what the procedural fairness requires in - I know that is not a ground for review in an appeal but it may bear on the relationships that have to be analysed, but how does the man know that - somebody suspects there are serious reasons for considering that he has been involved in serious - how does he know that? How does he answer that? In many respects that is - if you say, "How does he answer it?", that reveals the whole problem. It is not something you can answer unless you say no, it is the other way around. The Tribunal must put all its cards there and they must be out on the table and they must be such that a reasonable person could conclude that he was involved because, otherwise, it cannot he answered, can it? Well, perhaps you would like to think of - - -

MR BASTEN: Yes. It should be. Obviously the matter has to be articulated in a way that an answer is either understood to be required or not. I would accept that. In the way that this developed, though, I do not understand that problem to arise. The Tribunal looked to the fact that before the interviewing officer there had been representation. It was only because of the fact that he was presumably advised at that stage and not, as it were, caught on the hop, that the Tribunal was prepared to take into account the evidence that he had given before the interviewing officer. Of course, as I said before, that was distinctly at variance with that which he put to the Tribunal himself orally. But, having said that, there does not seem, as I would read it, to be any issue as to - - -

GAUDRON J: The highest the case against him is what he said to the Tribunal, is it?

MR BASTEN: Yes.

GAUDRON J: And the fact that the KLF is known to have used violence from time to time?

MR BASTEN: He denied that as the highest. His first alternative was that to his knowledge they never did.

GAUDRON J: No, but the highest evidence that could support a conclusion that he was involved in serious crime is what he said to the Delegate, is it, or to the Tribunal?

MR BASTEN: In his statutory declaration with his application and then to the Delegate.

GAUDRON J: Yes, plus what was known about the KLF.

MR BASTEN: What was known about the KLF.

GAUDRON J: That is the highest the case against him could rise, is that not right, if you are looking at it as a case against him as distinct from whether he made out a case.

MR BASTEN: Yes, that is so. In other words, that was the material that the Tribunal objectively, and without a burden of proof in mind, had to consider, but it nevertheless left the Tribunal with the proposition as set out in paragraph 1 at page 248 at line 25, with the satisfaction on the balance of probabilities that he was:

knowingly and actively participated in the unlawful killing of the police officer -

If you get past that stage, then there is a difficulty for him in satisfying the Tribunal that what is on its face a common law crime or a relative political crime is nevertheless to be categorised as a political crime, the opposite of a non-political crime.

Might I just go back one stage in that regard. The fact that this is an exclusion from the Convention appears to have been there because it would protect, as it were, the right to extradition in relation to serious crimes which were non-political and, although one can find little of assistance directly in the travaux on that point, it seems that that is the purpose for which the exception is there. May I hand up to the Court a note which we have prepared, largely dependent upon an article by Professor Garcia-Mora which I will hand up together with that material, if I may, which is an attempt to extract some principles from the law relating to extradition in this area.

The purpose of the note is in substance this, that once you have got away from the concept of a true political offence which is largely restricted to crimes such as sedition, treason, espionage, one is dealing with something which is a common law or ordinary crime which may have a political element.

KIRBY J: But treason was a common law crime and involved killing the monarch.

MR BASTEN: Yes. I am sorry, by "common law crime" I am - the terminology is that of the French version of the Convention which talks in those terms. The meaning for my purposes is a crime other than one directed at the State.

KIRBY J: Is it in the Convention or in that UN Refugee's Handbook?

MR BASTEN: The French?

KIRBY J: I saw it there, the reference to common law.

MR BASTEN: I am sorry, it may be in the handbook, your Honour.

KIRBY J: I think it is in that handbook and Professor Goodwin-Gill picks it up and repeats it. It is through the literature but I think it is in the handbook, not in the Convention itself.

MR BASTEN: Yes.

KIRBY J: Do not take time over it now.

MR BASTEN: I think actually what I should use is the first sentence of Professor Garcia-Mora in that article. He says:

Broadly speaking, a political offense is an act directed against the security of the state.

So that is the true political crime not directed at a particular individual, but I think he refers there to the terminology - but perhaps, as your Honour says, I should not stop to find that passage. What I was seeking to do, though, was to say that once one is out of that category, one is into a situation where there are various factors which have to be considered which each involve an evaluative judgment in order to determine whether or not what is not an attack on the State as such is nevertheless properly described as a political crime.

One might stop in relation to the Convention on a straightforward construction point at the first pure or true political offence category, because one only gets to the other categories in extradition law by use of phrases such as "political acts" or "crimes of a political nature", which are clearly intended to expand beyond the narrow category of "political offences". It seems to us that it is necessary to accept that for the purpose of this Convention one should go further because clearly the tests which apply in extradition law are relevantly tests which are reflected in the Refugee Convention, namely, the fact that a government may want a person in order to persecute rather than prosecute them, although the crime itself is a common crime, is something which should properly be taken into account.

But, having said that, it is clear that there must be a sufficient connection between a political struggle and the criminal activity so that the political element predominates and so that it cannot be said that this is an atrocious offence, such as murder may be, which can rarely, if ever, constitute a political crime, or that the criminality is disproportionate or not directed to the - - -

McHUGH J: I do not think I can ever bring myself to accept that proposition.

MR BASTEN: The disproportionate element, yes.

McHUGH J: Yes. Why? Palestinians are killing 18 people. It is done for a political purpose. You might say it is disproportionate to their goal of seeking freedom or self-government or their own land, but why does it prevent it being a political - - -

KIRBY J: Similarly the Israelis blowing up the Hotel David and killing lots of British officers.

MR BASTEN: Yes.

KIRBY J: I mean, unfortunately to say that that is not political - I just cannot accept that that is the way you can narrow down the compass of "political" in the context of this Convention.

MR BASTEN: Yes.

McHUGH J: And it is very difficult to formulate a principle, as was put earlier, of people like Stoffenberg and those who plotted against Hitler had fled, you would be hard pressed to think it was not a political crime. On the other hand, those members of the IRA who killed Lord Louis Mountbatten, you, at least I do, intuitively think it could not be regarded as a political crime, but perhaps that indicates my prejudices. But it is very difficult to think of a principle.

MR BASTEN: But, your Honour, that, in a sense, we respectfully accept, for the purpose of that argument because it demonstrates that there are evaluative judgments being made which are not necessarily easy, but which cannot be defined according to strict rules and probably not according to principles.

CALLINAN J: Such as that Hitler was conducting genocide, might cause one to take an entirely different view of his assassins.

GAUDRON J: But that was not necessarily acknowledged at the time. One has to be careful, even in that regard, in not - - -

CALLINAN J: It was not acknowledged in Germany at the time, but it was probably acknowledged in the rest of the world that was not allied with Germany at that time and, indeed, even the central powers who were would have taken the same view or most of the people would. Obviously there is some conduct which is so monstrous that it might justify the most drastic of measures to try to combat it, but I really think, with all due respect, that what happened during wartime, when a major world war as being waged by a particular aggressor has got very little to do with the sort of situation we are talking about here.

MR BASTEN: Yes. We, of course, would not disagree with any aspect of that.

CALLINAN J: Evaluative judgments, to some extent, are inescapable in this area.

MR BASTEN: Yes. Your Honour, they are inescapable under this Convention. The question is the extent to which the Court is willing to intervene to tell the Tribunal member that his evaluative judgment demonstrates error of law as opposed to something about which reasonable minds might differ, and in a case like this one would think that it was really a matter in which, unless it was clear that he had misdirected himself in law in refusing to consider whether or not this could be a political crime, then the court should have held its hand and what we really say is that the way Justice Mansfield put it, there was an ambiguity in one passage in the Tribunal's reasons. It was not appropriate in our view for his Honour to accept a particular proposition when the alternative was reasonably open and it was really - - -

GAUDRON J: Let us understand this alternative: that if the KLF's motive were revenge - is this the alternative - I will need further and better particulars shortly - but if the KLF's motives were revenge it could not be categorised as a political crime. Is this the alternative?

MR BASTEN: The alternative was that set out at the top of page 269:

If, on the other hand, it simply found as a fact that the appellant's motive of revenge was not directed to fulfilling the political objectives of the KLF, but was remote from that purpose -

It really is not a proposition, one would think, that the motive of revenge can never have a political element. Nobody is suggesting that.

GAUDRON J: Well, what did the Tribunal say though? It said something similar, did it not?

GLEESON CJ: At page 249, lines 46 to 55, the Tribunal seems to enunciate a proposition that I find, I must say, difficult to accept:

the political nature or otherwise of the KLF . . . 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 -

and I would take that to mean, in a case like this -

constitute a serious political crime -

I must say, subject to correction, I thought that was the key passage in the Tribunal's reasoning.

MR BASTEN: Yes. And the point, I suppose, that your Honour was putting to me before was whether that "cannot" was a statement of a legal principle.

GLEESON CJ: And the earlier statement at the beginning of that sentence of the irrelevance of the political nature of the KLF. It seems to say, once you get into the area of pay-back, you can forget politics. Well, that is not my understanding of politics.

McHUGH J: I read the evidence in this case before I read the Federal Court judgments and it may have changed my thinking or given me a difference approach, but I rather read the Tribunal as seeing this particular case as a very special case. It was a particular police officer who had tortured a particular person for 17 days so badly that he could not walk, that they had then sought to get a political to have him released, that failed. The policeman apparently killed the person, although it is a bit ambiguous, so they killed him. And it was in that context that I read the - - -

MR BASTEN: Yes, that is, indeed, correct, your Honour. May I just come back to the first passage which your Honour the Chief Justice took me to, because, as I would understand what the Tribunal has done in this case, it has been to accept the proposition that there is an organisation called the KLF, that is has as a goal the establishment of a separate State carved out of India and that there is ultimately a serious issue as to whether this is - - -

GAUDRON J: No, that was not its only goal though, was it? They did not say that was - - -

MR BASTEN: No, I am sorry.

GAUDRON J: - - - and it was to protect Sikhs from oppression, which you might think being tortured by police officers was.

MR BASTEN: Yes. Well that may or may not be a good way to protect them, but it is a matter for - - -

GAUDRON J: We are not talking about whether it is good or bad.

MR BASTEN: Well, can I come back to that aspect of it. The point I was seeking to make here was that what the Tribunal is eschewing in the first part of paragraph 41 is the need to inquire whether it, as it were, loses all legitimacy as a political entity because it is a terrorist organisation.

GLEESON CJ: Now that word "legitimacy" carries with it some problems of its own, does it not, in a context like this? I mean, it has been put to you before, but history shows that whether or not a group of people are a bunch of murderous thugs or glorious freedom fighters depends usually on whether they win.

MR BASTEN: Yes.

McHUGH J: I think it was Goering who said, "We are in trouble if we do not win this war" and those he spoke to knew what he was talking about.

MR BASTEN: Yes. But, your Honours, I do not have any difficulty with those propositions.

CALLINAN J: Well, Chairman Mao also said, "Power comes out of the barrel of a gun".

MR BASTEN: Well, whether justice does or not is another question.

GLEESON CJ: And he also said, "Revolution is not a tea party".

MR BASTEN: The point I was seeking to make was really that this decision, in relation to this individual, has to be made by an Australian Tribunal today and none of those questions can be answered, certainly not decisively. It does not mean, as I would understand my friend would have to put it, that each of those is an irrelevant consideration.

GAUDRON J: But it has to be made at least on the assumption that he is a refugee who has a fear of persecution for one of the Convention grounds, does it not? That assumption at least has to be made.

MR BASTEN: I do not accept that it has to be made, your Honour. This is an anterior question to that question, has he or not?

GAUDRON J: Well, I do not know that that is right. That comes back to where we started.

MR BASTEN: I think it does.

GAUDRON J: But if you do not make that assumption, then you may be making value judgments without reference to the whole of the material. Everybody has agreed that there are going to be value judgments made in a case such as this, I should have thought. How they are to be made may be a very critical issue in this case, because the value judgments may take colour from what is at the forefront of the decision-maker's mind and, indeed, from the very way the decision-maker goes about the process. Because if you do not make the assumption that this man was fearing persecution then it is so easy to categorise it as non-political. Not so easy to categorise it as non-political if you assume that Sikh people have been the victim of oppression for some time, at least since the death of Indira Gandhi, and there is a struggle going on. Is that not right?

MR BASTEN: Well, yes, but that does not necessarily mean one has to make a positive assumption that this man has either a subjective or well-founded fear of persecution in order to accept those propositions your Honour is putting to me, but I suppose it is implicit, at least in a broad sense, that there is acceptance of that because the existence and the political objectives of the KLF are identified. I mean one can say that the Tribunal does not set out all the factual material in detail, but the proposition that I was seeking to make in relation to paragraph 41 was that what the Tribunal was hinting at or, rather, what it was accepting, was an assumption in favour of the applicant, in the sense that it was not going to make the inquiry which might rule out the KLF as having legitimate political objectives, which would justify the operation of an exception to the exception, namely the presence of a political crime and in answer to your Honour the Chief Justice, yes we, I think, would have to accept that the word "legitimate" must be involved in that stage of the inquiry, although we say it was not reached in this case.

GAUDRON J: But I do not understand why?

MR BASTEN: What your Honour Justice Gaudron was putting to me is, as I understand it, was not that that assessment should be made, but that one could not distinguish a killing undertaken to revenge an organisation on a particular police officer from the protection of Sikhs from oppression.

GAUDRON J: Well, no, I am just saying, why bring "legitimate" in, at any point? I mean, nothing is - we all know that murder is never "legitimate". I mean we know that. And there are a whole lot of other things that are not legitimate either. The Convention does not use the phrase. One would have thought wisely, because one knows that all sorts of things that are not legitimate are done in the cause of fighting oppression.

McHUGH J: Well, not necessarily oppression. I mean, on one view, prior to 1930, Adolf Hitler might have qualified as a political refugee, with his people.

MR BASTEN: Indeed, and I suppose the point that I had in mind was that the Okalahoma bomber had a political goal apparently, namely to lower the rate of government interference with Americans, but no criminal act, one would think, would be justified, regardless of the act he committed, which involved the killing of government agents.

GLEESON CJ: Well there does seem to be a concept of proportionality that has been accepted here and presumably nobody could treat, as a political crime, the destruction of the Australian tax officers' building with the loss of lives of a lot of tax collectors, by somebody whose objective was to get a lowering of the tax rates.

MR BASTEN: Yes, and for two reasons: one, it is an atrocious crime, which would, on the cases, never be justified as a political crime, but secondly, because it is simply not sufficiently closely related to what might be a legitimate political objective.

GLEESON CJ: But if your objective is to rescue the Sikh people from oppression, a possible point of view is that a way to do that is to single out and go after the nastiest of the oppressors.

MR BASTEN: Yes, but, with respect, the judgment that Australia has to make is whether it will, like Pakistan, harbour those people or not.

GAUDRON J: No, the decision Australia has to make, in this case, is whether it owes protection obligations.

MR BASTEN: Yes, well, in relation - - -

GAUDRON J: - - -and it does not have to worry about harbouring or not harbouring; that intrudes a purely political component into this exercise.

KIRBY J: I think talking about Australia has to make. We are talking about what a court of law in Australia and a Tribunal and a decision-maker and the Minister have to make. It is not a political thing that is before us. It, of course, has implications for global politics because of the words of the Convention, but it is a legal question.

MR BASTEN: Yes.

KIRBY J: I think it is safer for us to stick to the legalities.

MR BASTEN: But, your Honour, that was the point that which we departed from the approach taken in the Federal Court, namely that what the court had done was to manufacture a legal question out of a possible ambiguity and one phrase in the Tribunal's reasons and then - - -

GAUDRON J: But if the Tribunal is wrong at paragraph 41 - - -?

MR BASTEN: When your Honour says "wrong", it is - - -

GAUDRON J: As a question of law. If it is wrong, then that is the end of the matter, is it not?

MR BASTEN: If the Tribunal is saying that there is a legal principle which distinguishes retribution from political motives and that is wrong, which, I suppose, it must- and I cannot understand anybody saying that frankly - then, yes, there is an error of law and the Court is entitled to intervene. What Justice Mansfield says was that there were two ways of approaching what the Tribunal said there, one did not reveal an error of law, and the question is whether in Wu Shan Liang terms his Honour was correct in opting for the other one, when the Tribunal itself had made a number of qualifications by specific reference to the facts before the Tribunal and so on, which suggests that it was dealing with a very specific case and retribution, as it had identified it, in the particular circumstances of the case.

McHUGH J: I must say I read paragraph 41 rather differently to the Chief Justice and Justice Gaudron. I thought that the Tribunal was making it plain at 249 at line 50 that:

cannot, on the facts before the Tribunal -

I mean they were the words "cannot, on the facts" of the case.

MR BASTEN: Yes.

CALLINAN J: I continue to be troubled by this notion of, in effect, justifiable murder for political ends. Now what about if somebody blows up a 747, highjacks it, kills 300 innocent people? The cause might be a cause in itself, which is impeccable.

McHUGH J: Well, in the blowing up of the conservative party convention at Bournemouth where Airey Neave was killed. He was - had he not been made Home Secretary in Northern Ireland. He was killed in it, was he not?

CALLINAN J: The Americans call this asymmetric warfare. Is that not the term that they have used?

MR BASTEN: Your Honour is undoubtedly right; I am not familiar with it.

GLEESON CJ: We would not have this problem if we were not, by hypothesis, dealing with serious crime.

MR BASTEN: That is so.

GLEESON CJ: By hypothesis, this is serious crime. The question is, whether it is political?

MR BASTEN: Yes, indeed, and that is why I was seeking to draw the distinction between crimes which are really only political and those which are not, but may, in certain circumstances, qualify as such.

CALLINAN J: There are plenty of serious crimes though, plenty of serious crimes, that could have either a political character or not, but not involve violence, not involve murder. Murder, let us not get away from that. The allegation against this man is that he was involved in a murder.

GLEESON CJ: As I understand it, your argument is that here is a concept that has a fairly hard meaning, that is a fairly crystallised meaning of a political crime - - -

MR BASTEN: Yes.

GLEESON CJ: - - -and it is not a crime carried out by a person with political motivations.

MR BASTEN: No.

GLEESON CJ: That is not what the expression "political crime" means at all; it means a crime against the stability or security of the State.

MR BASTEN: That is right.

GLEESON CJ: And then you can expand the concept out from that perhaps marginally by looking at some crime that do not quite fit that category but have such an element in them of attack upon the security of the State that they can be described as political crimes. But a crime is not a political crime just because it is carried out to secure a political objective. Is that what the proposition comes to.

MR BASTEN: Indeed. So that the person might be solely motivated by a political purpose and yet it would not be a political crime. The person's motivation may be relevant, but it is not a sufficient element and one might go further in the American - - -

GLEESON CJ: It is complicated by the fact that the expression we have got to deal with is not "political crime", it is non-political crime.

MR BASTEN: Yes, that is why, in the order of those notes I handed up, I started with the proposition that presumably one is dealing with the obverse of a coin and, in that sense, a political crime.

GLEESON CJ: You have not yet taken us, I do not think, to where the House of Lords has looked at this.

MR BASTEN: I was just about to, and I see the time, your Honour.

GLEESON CJ: Well, maybe it is a convenient time to do that tomorrow morning, Mr Basten.

MR BASTEN: Yes, your Honour.

GLEESON CJ: We will adjourn until 10.15.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 14 AUGUST 2001