Case: Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 ; [2002] 209 CLR 533
Outcome: applied
ground of appeal was relevantly particularised in this way: Her Honour erred in law by upholding the Tribunal's finding that the sole or dominant motivation for harming the appellant in Sindhupalchak would be for the satisfaction merely of a person grudge against him by the Maoists no matter that the appellant had been a police officer in Nepal engaged in anti-Maoist activities, and in armed combat with them had apprehended a number of their members and had turned them over to the authorities to be dealt with and by so doing failed to apply the reasoning in MIMA v Singh [2002] HCA 7 ; (2002) 209 CLR 533 encapsulated in the dictum of McHugh J that "A decision-maker makes an error of law by assuming that the fact that an act was one of "revenge or retribution" necessarily makes it a "non-political". There is no such dichotomy." In Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 ; [2002] 209 CLR 533 the High Court of Australia considered the matter of revenge and whether it may sit within a political context. That case concerned a Sikh of Indian nationality who entered Australia and applied for a protection visa. His application was refused. On an application for review, the Administrative Appeals Tribunal concluded that the applicant was excluded from protection by virtue of Art 1F(b) of the Convention because he had been implicated in serious non-political crimes in India. The applicant gave evidence that he had participated as a member of a political organisation in the killing of a police officer by supplying information and intelligence about the officer's movements to facilitate his killing by other members of the organisation. The Tribunal considered that the crime was non-political because it had been committed by the applicant as an act of revenge or retribution for the torture of a member of the organisation. On appeal, the Full Court held that the Tribunal had erred in law in determining that the suspected crimes were "non-political". It concluded that the Tribunal had proceeded from an artificial antithesis between political action and revenge. That finding was upheld by the majority in the High Court, (Gleeson CJ, with Kirby and Gaudron JJ). In some respects, Singh is analogous to the present matter. Like Singh, on one interpretation, "there was no real suggestion of private purposes or of a personal motivation" on the part of the appellant in his conflict with Maoists in 1998: Singh at [138]. In Singh, the issue was how to characterise whether a crime that targeted a police officer for reasons of revenge was personal or political. In the present case, there is an issue as to how to characterise persecution that targets a police officer for reasons of revenge: personal or political. For the appellant, if the motivation for the persecution was political, and not based on a private grudge, then there is a strong argument that he was targeted for reasons of his actual or imputed political opinion, or for reasons of his membership of a particular social group under Art 1A(2) of the Convention. The crucial link between the two cases is the analysis of motive. In Singh , analysis of motive (including revenge, and the political objectives of an organisation) was essential in characterising a crime. In the present matter, analysis of motive is key, as Art 1A(2) of the Convention requires persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion". The Federal Magistrate sought to distinguish Singh on the grounds that it concerned perpetrators of "serious non-political crimes" under Art 1F(b) of the Convention. Her Honour, referring to Singh stated at [54]: That case was not concerned with whether a person met the definition of refugee in Article 1A(2), but rather with whether the Administrative Appeals Tribunal had erred in finding that a person was excluded from protection by virtue of Article 1F(b) of the Convention on the basis that there were serious reasons for considering that he had committed " a serious non-political crime ". The High Court was not addressing the notion " for reasons of " in the context of Art 1A(2). [Emphasis added] I do not, for my part, consider that the principles of analysis and characterisation of motives in Singh should be read so as to confine their application only to cases involving consideration of Art 1F(b) of the Convention. In its Statement of Decision and Reasons, the Tribunal recognised that Singh was not directly on point, but cited its authority going to the existence of multiple motives for feared harm: Though [ Singh ] is not directly on point to the matter at hand, the Tribunal accepts that in cases where a significant and essential reason for feared harm is based on at least one of the grounds provided in the Refugees Convention, protection obligations may arise notwithstanding that another significant and essential reason for the harm may have been non-Convention related. I note too that the Guide to Refugee Law in Australia developed and used by the Refugee Review Tribunal and Migration Review Tribunal recognises the relevance of Singh to discussions of refugee status under Art 1A(2) of the Convention: Legal Services, Refugee Review Tribunal, A Guide to Refugee Law in Australia , at 10-33, note 177, http://www.mrt-rrt.gov.au viewed 22 July 2008. While [ Singh ] involved consideration of the concept of "non-political crime" in Article 1F of the Convention, the discussion of "revenge" is equally relevant to the questions of motivation that arise under Article 1A(2). In my opinion, the principles governing the analysis and characterisation of motive, articulated in Singh are an apt analogue in the present case. The question of motive, objectively viewed, should be considered against all the relevant circumstances. These will include, in this context, the objectives and methods of the Maoist insurgents as an organisation: Singh at [22], [46]-[47] and [141]. The Tribunal did not do this. At first blush it might be thought that the Tribunal specifically considered the relevant law, and instructed itself that "revenge is not the antithesis of political struggle, it is one of the most common features": see Singh at [18]. The Tribunal referred to Singh in its reasons in this way: ...the High Court in MIMA v Singh [2002] HCA 7 (7 March 2002), Gleeson CJ, Gaudron, McHugh, Kirby &amp; Callinan JJ, stated inter alia, '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; however revenge is not the antithesis of political struggle, it is one of the most common features' (per Gleeson CJ para 18; see also Gaudron J para 44) ... even if the Tribunal accepts the applicant may be targeted for harm in Sindhupalchok by Maoists for reasons of his having been responsible for the arrest (and possible mistreatment) of a number of their colleagues after the abovementioned 1998 incident; based on the evidence provided, the Tribunal is satisfied the sole or dominant motive for harming the applicant in Sindhupalchok would be for the satisfaction of a personal grudge against him. (Emphasis added) The evidence before it, without more, did not support a conclusion that the Maoists had a 'personal grudge' against the appellant. True it was that the Maoists threatened revenge against the appellant as an individual but it was in the context of the longstanding armed struggle between the Maoist insurgents and the State of Nepal. The police force was an agency of the State. The deaths, injuries and subsequent imprisonment of insurgents were the result of a fire fight initiated by a group of Maoists against a group of police officers commanded by the appellant. None of the insurgents was known to the appellant and there is no evidence, apart from his position as the officer in command at the time of the fire fight, that he was known to them. The death threats made against him arose out of that armed clash and its aftermath. Indeed the threats were accompanied by demands that he arrange for the release of the four imprisoned insurgents. Counsel for the first respondent conceded that there was no evidence to warrant a conclusion that the appellant was threatened for reasons of personal animus or private retribution. On its face it is difficult, with respect, to see how these threats could, in the circumstances, be characterised as the result of a personal grudge held against the appellant. Apart from other considerations the threats carried with them a demand for the release of the imprisoned Maoists. Counsel for the first respondent, did not identify any basis in the evidence for such a finding. No rationale exists beyond the fact that the appellant acknowledged in evidence that his fear was related to possible revenge by Maoists. This analysis, it seems to me, points up two things. First, it accords with my own view that the Tribunal's conclusion that the Maoists were motivated by a personal grudge against the appellant was based solely on the appellant's evidence that the motive was revenge for his involvement in the events of 1998. However, that evidence poses but does not answer the question: was the threatened revenge, and the asserted fear of persecution generated by it, by reason of the appellant's membership of the Nepalese police force and/or as a result of actual or imputed political opinion. To admit that revenge was likely to have been the motive does not amount to a concession that the motivation was for the satisfaction of a personal grudge against the appellant. Second, the analysis actually highlights the failure of the Tribunal to consider the methods and objectives of Maoists on the significant question of motive: cf Singh at 546 [22] per Gleeson CJ; at 552 [47] per Gaudron J; at 578-579 [141] per Kirby J. There is no specific consideration in the decision record of the methods used by the Maoists or whether targeting police officers were part of their accepted modus operandi . The Tribunal did not make findings as to whether the Maoists' objective of freeing their imprisoned comrades was consistent with threatening or killing the appellant. The proper characterisation of revenge will depend on the evidence as to the activities of the Maoists and their aims and attitudes toward the State of Nepal involving, in this case, the police force as one of its agencies. That genre of evidence was all but absent in this case. I do not agree. What was said by Gleeson CJ at [19] in Singh on this point is apt: 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. (Emphasis added) Although it acknowledged, by setting out the passage from Singh set out above, that revenge is not the antithesis of political struggle, the Tribunal failed to consider all of the relevant evidence necessary to enable it to find whether indeed the revenge threatened arose from one or both of the Convention reasons relied upon. That failure was, in my opinion, a relevant error of law. I do not consider that the Tribunal properly instructed itself as to the law, that even where revenge is the immediate purpose or motive, that it can nevertheless sit within a political context, sufficient to attract the protection of the Convention. As Kirby J pointed out in connection with the political/personal dichotomy, revenge and personal hatred may be the expression, in a particular case, of a political motive: Singh at [141]. There was an impermissible short-cut in the Tribunal's reasoning, consistent with the observations of Gleeson CJ at [22] and Kirby J at [141]. In substance, the Tribunal implicitly concluded, as occurred in Singh, that vengeance was incompatible with a political motive. This in turn, it appears, led the Tribunal to side-step the question of the political nature of the Maoist insurgents operating in Nepal. In so doing it erred. The conclusion of the Federal Magistrate which is, in effect, to the contrary, at [69], is in my respectful opinion incorrect. Again, contrary to the finding of the Federal Magistrate [71], I do not consider that the Tribunal discharged the necessary evaluation in relation to the reasons why the appellant was targeted and claimed to have a well-founded fear of persecution: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 per Kirby J at [69]. I will make orders that: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court made on 14 December 2007 be set aside. In lieu thereof there be orders that: (a) The matter be remitted to the Refugee Review Tribunal, differently constituted, to be heard and determined according to law. (b) The first respondent pay the applicant's costs to be taxed if not agreed. 4. The first respondent pay the appellant's costs of the appeal to be taxed if not agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 24 July 2008 Counsel for the Appellant: Mr M Newman Solicitor for the Appellant: Newman &amp; Associates Counsel for the First Respondent: Mr J Mitchell Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 6 May 2008 Date of Judgment: 24 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1090.html