WSZB and Minister for Immigration and Border Protection (Migration) [2019] AATA 163 (18 February 2019)

Last Updated: 19 February 2019

WSZB and Minister for Immigration and Border Protection (Migration) [2019] AATA 163 (18 February 2019)

Division: GENERAL DIVISION

File Number(s): 2017/7740

Re: WSZB

APPLICANT

And Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal: Deputy President B W Rayment OAM QC

 

Date: 18 February 2019

Place: Sydney

The reviewable decision is affirmed.

…………………….[sgd]………………………………..

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – whether serious reasons for considering applicant committed serious non-political crime – consideration of “non-political crime” – decision under review affirmed

LEGISLATION

Extradition Act 1988 (Cth) s 5

Migration Act 1958 (Cth) s 36

CASES

Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533

T v Secretary of State for Home Department [1996] UKHL 8; [1996] AC 742

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

 

 

18 February 2019

  1. The reviewable decision made by the Minister’s delegate was that within the meaning of s.36 (2C)(a)(ii) of the Migration Act 1958 (Cth) there are serious reasons for considering that the applicant committed in Malaysia a serious non-political crime before entering Australia. If so, then according to s.36, complementary protection obligations under s.36(2)(aa) of the Act are not owed in relation to the applicant.
  2. A new definition of non-political crime was introduced in an evident intent to overcome those parts of the High Court’s decision in Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533 which had held that the relevant motives need not be the sole or dominant motive in order to qualify a crime as a political crime. The definition now provides:

non-political crime“:

(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and

(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.

  1. The incorporated Extradition Act 1988 (Cth) definition is as follows:

political offence“, in relation to a country, means 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), but does not include:

(a) an offence that involves an act of violence against a person’s life or liberty; or

(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or

(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.

  1. The applicant was convicted on 9 April 2009 in Malaysia of the offence of murder. The trial judge ordered that the applicant and another accused person be hung by their neck until dead. The applicant and his co-accused were each members of the Special Action Unit of the Royal Malaysian Police at Bukit Aman, Kuala Lumpur. The co-accused had the rank of inspector and the applicant had the rank of corporal. They were alleged to have murdered a Mongolian lady aged 28 in Selangor on the night of 19-20 October 2006. She died of “probable blast-related injuries”.
  2. After a trial before a judge alone which lasted 165 days, in which some 84 witnesses were called by the prosecution, but in which neither the applicant nor his superior officer gave sworn evidence, the trial judge gave lengthy reasons for judgment pronouncing both of them to be guilty. The applicant’s unsworn statement, upon which he was unable to be cross-examined, was given no weight by the trial judge, and the final court of appeal treated that finding as correct. It appears from the judgment of the trial judge that the applicant denied committing the offence.
  3. The defence appealed and an intermediate court in Malaysia set aside the trial judge’s verdict. At that moment the applicant was at liberty and in due course came to Australia on a tourist visa.
  4. After the applicant arrived here, the prosecutor appealed from the intermediate court’s decision to Malaysia’s final court of appeal, the Federal Court of Malaysia (Appellate Jurisdiction). In turn that court allowed the appeal from the intermediate court of appeal, and reinstated the orders made by the trial judge. After a review of the intermediate court’s criticisms of the reasons of the trial judge, the final court rejected all of those criticisms.
  5. The appeal judgment concentrates largely upon the case made by the applicant’s superior, who claimed to have an alibi, and whose claim also was that he left the victim in the care of the applicant. The applicant asserted before me that the reverse was the case, that he left the victim in the care of his superior.
  6. Evidence was accepted by the trial judge and by the final court of appeal that was damning of the applicant, in particular that he led investigating police to the scene of the crime, that he had bloodstained slippers in his motor vehicle, the blood being that of the victim and that he had in his possession after the murder jewellery and other items which belonged to the victim. Evidence was given by the applicant in his unsworn statement and a supporting witness that the jewellery and other items were planted by investigating police. That evidence was rejected by the trial judge and the final court did not interfere with the findings made by the trial judge.
  7. There was also CCTV evidence which showed the applicant and his superior to be together at the Malaya Hotel where they met the victim, and evidence of the use of the applicant’s car to transport the victim on the night she was killed.
  8. The trial judge did not admit into evidence a confession alleged to have been made by the applicant to another police officer on a plane. A claim that the alleged confession was not voluntary was upheld by the judge.
  9. A third person was charged together with the applicant and his superior officer. He was charged with abetting the murder, and held a position with the Malaysian Strategy Research Centre. It was alleged that he had a year long affair with the victim and that after the affair came to an end, the victim was threatening his life and demanding money from him. In turn she had reported to police that the third accused had threatened to kill her. The judge found that the prosecution had not made out a prima facie case against the third accused and discharged him. No appeal was brought against that order. The implied suggestion was made that the third accused incited the applicant and his superior to kill the victim.
  10. Findings as to motive were not made against the applicant.
  11. The applicant gave evidence before me and was cross-examined by Ms Watson for the respondent. Ms Watson cross-examined him on various findings made against him by the courts of Malaysia. The applicant maintained his innocence of the matters of which he was convicted.
  12. It seems to me that the question posed by s.36, as to whether there are serious grounds to consider that the applicant committed a serious crime is answered by a perusal of the judgments of the Malaysian courts. Evidence called before me fails to satisfy me of the contrary. The failure of the applicant to give sworn evidence in the courts which convicted him was important in Malaysia, as it would be important in this country. By contrast, the Tribunal was not in a position to compare the evidence led from the applicant with any of the evidence led by the prosecution.
  13. Merely to have heard the evidence of the applicant, without more, does not enable me to be satisfied that any miscarriage of justice took place in relation to the applicant’s conviction, or that serious grounds do not exist to consider that he was guilty of the crime of murder.
  14. A submission was made by Mr Levingston, who appeared for the applicant, that there were not serious grounds to consider that the applicant was guilty of a non-political crime. None of the findings made by the courts in Malaysia suggested that the crime in question was a political one.
  15. Evidence was led from the applicant before me when the matter resumed before me in November 2018 that the applicant had been ordered to kill the victim because she was a Russian spy. He said again that he had refused to carry out that order. The uncorroborated evidence given by the applicant that orders were given to him to assassinate a Russian spy did not satisfy me that orders had been given to him in those terms, or that he was acting on any such basis.
  16. The expression “non-political crime” has long been regarded as very difficult to define. It was considered by the High Court in Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533. It had previously been considered in the English courts, including in the House of Lords in T v Secretary of State for Home Department [1996] UKHL 8; [1996] AC 742. None of the suggestions made as to the meaning of the expression in the High Court or the House of Lords suggested that a State-ordered assassination would amount to a political crime. See the remarks of Gleeson CJ at 543-544 [15]-[17], Gaudron J at 550-551 [40]-[42]; McHugh J at 553 [53]; Kirby J at 557-558 [64]-[65] and at 567 [103] and 572[119] and 573-574 [124] and Callinan J at 593 [165]. Therefore if I had accepted that the applicant was given an order by the Malaysian government to kill the victim, I would not have been satisfied that the crime was other than non-political.
  17. In the result the reviewable decision will be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

……………………[sgd]……………………………………..

Associate

Dated: 18 February 2019

Date(s) of hearing:
22 August 2018 & 22 November 2018
Date final submissions received:
9 January 2019
Solicitors for the Applicant:
C Levingston, Christopher Levingston & Associates
Solicitors for the Respondent:
D Watson, Australian Government Solicitor
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