Refugee Appeal No. 29/91 Re SK

AT AUCKLAND

Before: R.P.G. Haines (Chairman), H.M. Domzalski (Member), F.W. Wong (Member)

Appearing for the Appellant: The appellant appeared on his own behalf

Appearing for the NZIS: Ms M.F. Ameratunga

Date of Hearing: 21 August 1991

Date of Decision: 17 February 1992

DECISION

This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, an Indian national of the Sikh faith born in the Punjab. Delivery of the decision has been delayed by virtue of the fact that in late November 1991 the appellant submitted further evidence in support of his appeal.

THE APPELLANT'S CASE

The appellant is a 26-year old single man who has lived most of his life in the family village in the Punjab. He has a married sister and a younger brother who presently lives with his parents. Their home is situated in a village near Jalandhar and the family farm is itself situated approximately one kilometre from the village.

At school the appellant met a young man whom we shall refer to as GS. They became very good friends and maintained this friendship into adulthood. They lived only half a kilometre from each other.

GS became a member of the Khalistan Commando Force, a banned Sikh militant group. He was actively involved in proselytising fundamentalist Sikh beliefs. To persuade those doubtful of his message he brandished a gun during his missions.

In 1986 or 1987 the appellant accompanied GS on his nocturnal visits to surrounding villages. The appellant transported GS on the back of his scooter. On these visits GS would confront villagers whom he believed were not following the particular fundamentalist beliefs adopted by GS. For example, it is not unusual for some Sikhs to keep their hair and beards trimmed, but fundamentalist Sikhs believe that the hair and beard should be left uncut. Those who do not follow this practice are seen as opposed to fundamentalist Sikhs.

The appellant recounted one particular incident when he drove GS to a village where GS confronted a number of villagers and accused them of not being true Sikhs. As always, GS was in possession of a firearm and made sure that the villagers were aware of this fact.

Approximately one month later the appellant drove GS back to the same village in order to check whether the villagers had changed their ways as promised at the conclusion of the first visit. On the second visit GS repeated the same message but this time in order to engender greater fear in the villagers, he fired once into the air and either two or three times directly at the villagers assembled before him. The appellant stated in evidence that he saw at least one person hit by the shots. The rest of the villagers ran off. The appellant and GS immediately left the scene.

The appellant was unable to tell the Authority the nature of the injuries inflicted upon the villager by the shooting or whether the villager was killed.

The appellant told the Authority that he did not know that GS was going to use the weapon and said that he did not agree with the shooting of the villager. He had, however, been in agreement with GS's own beliefs, namely that Sikhs should adhere to fundamentalist beliefs and that Sikhs should have their own separate country independent of India.

Two weeks after the incident the local police called at GS's family home making enquiries as to his whereabouts. Initially his family told the police that they would bring their son to the police station. When this promise was not fulfilled the police visited the home frequently, sometimes beating family members in an effort to find GS.

To escape the police GS began living at the appellant's home. He brought his gun with him. The appellant's family were unaware at first of their son's involvement in the shooting but soon the police began visiting the appellant's home having been told that GS had been sighted there. The police told the appellant's family of the accusation that GS was shooting and killing people. The appellant and GS then sought safety on the appellant's family farm which, as mentioned, was situated approximately one kilometre away. Fortunately for them, the police never searched the farm.

Two months later the appellant and GS moved to a large town approximately 100km away where they stayed for some five to six months with the appellant's grandparents. It was a successful move because the police remained unaware of the whereabouts of the two men.

Thereafter the appellant and GS split up. The appellant moved to New Delhi where he stayed with a friend. Two months after his arrival there he learnt that GS had been arrested for the shooting. The appellant told the Authority that GS was detained by the police for one year and then released on bail as a result of efforts made by the solicitor retained by GS. However, while on bail GS resumed his activities which the appellant described as "asking people to come back to the Sikh religion and shooting people". Not surprisingly, GS was re-arrested by the police. The appellant fears that as a result of being tortured GS has now told the police that the appellant was with him at the time of the first shooting with the consequence that the police are now looking for the appellant. Although the time frame was not particularly clear, the Authority understood that the release of GS on bail and his subsequent re-arrest were events which took place subsequent to the appellant's arrival in New Zealand.

The appellant remained in Delhi for one and a half years living with his friend and working in the friend's shop. During this time he encountered no difficulties from the authorities and the police apparently made no attempt to locate him.

Eventually, the appellant decided that he wanted "to stand on his own feet", to leave Delhi and move overseas. He was already in possession of a passport (obtained in 1985) and purchased an air ticket to Italy. On arrival in Italy, however, he was refused entry and was returned to India almost immediately. He encountered no difficulties with the Indian authorities upon leaving India from Delhi Airport or upon his return when he arrived at Bombay where he connected with a flight to New Delhi.

Some months later the appellant was able to obtain a New Zealand visa. He had no difficulty leaving New Delhi by air and arrived in this country on 3 July 1989. His refugee application was not lodged until 11 January 1991, two months after a removal warrant was obtained by the Immigration Service from the District Court at Whakatane.

Subsequent to the appeal hearing the appellant submitted further evidence in the form of a warrant of arrest and a letter from an advocate practising in the civil courts at Phillaur.

The warrant of arrest is dated 16 August 1991 and clearly records the appellant's name. Although the document is in part indecipherable, it is nonetheless tolerably clear that the warrant does not record the offence or offences of which the appellant is charged. This is unusual because it has been the Authority's experience that warrants of arrest emanating from courts in the Punjab more usually refer to the Indian Penal Code sections or other statutory provisions allegedly breached by the alleged offender. However, it cannot be said that the absence of such details from the document tendered by the appellant puts in issue the genuineness of the document. The Authority therefore accepts that a warrant for the appellant's arrest has been issued by the Magistrate's Court at Phillaur.

The letter from the advocate is dated 13 November 1991 and is addressed to the appellant personally. It acknowledges receipt of a letter from the appellant dated 20 October 1991, a letter which the Authority has not seen and no copy has been provided. In essence, the letter confirms that a warrant of arrest has been issued against the appellant and that proceedings are in train under cited sections of the Criminal Procedure Code against the appellant's property and his surety. It also makes mention of another case being lodged against him under the National Security Act following the discovery at the appellant's home of documents relating to the All India Sikh Students Federation (an organization associated with the Khalistan Commando Force). The advocate concludes that in the event of the appellant returning to India the appellant will be arrested and punished. It also refers to the possibility of the appellant being killed at the hands of the police. The advocate urges the appellant not to return home.

The Authority has not been provided with copies of the cited sections of the Criminal Procedure Code and the National Security Act and for this reason the references must remain obscure. The Authority also found the reference to action being taken against the appellant's "surety" cryptic as the appellant has made no reference at all to such person.

ASSESSMENT OF THE APPELLANT'S CASE

The Authority accepted the appellant as a credible witness and in relation to the new evidence accepts that a warrant has been issued by a Magistrate at Phillaur for the arrest of the appellant for an unspecified offence or offences.

The essential kernel of the appellant's case is that as a result of his willing participation in the gunpoint proselytising efforts of GS and his claimed unsuspecting involvement in the deliberate wounding or killing of an innocent villager, he has a well-founded fear of persecution were he to return to India.

As to the general context of the appellant's case, the Authority accepts that the activities of GS, particularly the threats and shooting, are entirely consistent with information which has been provided to the Authority in a large number of appeals and it is accepted that incidents of this nature are widespread in the Punjab. An accurate summary is to be found in the Asia Watch Report, Human Rights in India - Punjab in Crisis (August 1991) 170:

"Virtually all of the militant groups in Punjab have pursued their campaign for a separate state through acts of violence directed not only at members of the police and security forces but also at specifically targeted Hindu and Sikh civilians. While the civilian toll may never be known, after a decade of conflict the killings certainly number in the thousands."

THE ISSUES

In view of the appellant's involvement in acts committed against innocent civilians, the Authority is of the view that the following issues fall for consideration:

1.   Are the appellant's fears as to the consequences of his return to India a fear of prosecution, rather than a fear of persecution.

2.   Is the appellant excluded from the Convention by virtue of Article 1F of the Refugee Convention (commission of a serious non-political crime).

Each of these issues will be considered in turn.

ISSUE 1: PROSECUTION OR PERSECUTION

As stated by Professor Hathaway in The Law of Refugee Status (1991) at 169 it is clear that refugee status may not be invoked by an individual solely on the basis that he is at risk of legitimate prosecution or punishment for breach of the ordinary criminal law.

The principle is expressed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragraph 56 in the following terms:

"Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice."

Professor Hathaway explains at 170 that claims based on a fear of prosecution fall outside the scope of the Refugee Convention because the risk faced by the claimant is only the potential criminal liability of every citizen, and is therefore not linked to a form of civil or political status enumerated in the refugee definition:

"Insofar as an examination of both the nature of the criminal offence and its prosecution and punishment confirms that the offence is politically neutral in substance and application, then it cannot serve as the basis for a claim to refugee status."

However, it must be recognized that it is possible for a government with persecutory intent to use the criminal law as a means of oppressing its opponents. The principle is illustrated by Plender, International Migration Law 2nd ed (1988) at 418:

"If, therefore, a law which is neutral upon its face can be said to have been drafted with the object of penalising members of one of the groups identified in Article 1 of the Geneva Convention, or if it is designed for neutral purposes but is applied with particular rigour to members of such a group, it can be said to constitute persecution for the reasons set out in the Convention."

Grahl-Madsen in The Status of Refugees in International Law Volume 1 (1966) at 83 points out that laws for the protection of the national security and for the prevention of overthrow of the constitution and the government by force or subversion are found in all States regardless of their political system. In certain States, however, the list of punishable offences includes many acts which in other States are considered not only rightful, but as basic human and civic rights, such as criticism of the government, forming and belonging to a political party (other than the government's own party), publishing books and papers without special authorization, leaving the country without a special permit, etc:

"There exist States whose penal laws appear to be not in the least influenced by the ideas which have found expression in the Universal Declaration of Human Rights. In other countries innocent-looking' provisions of the penal code are given a broad interpretation and applied for the purpose of suppressing all political activity which does not conform to the government's policies. Irrespective of what it is officially called, we are here faced with prosecution for political offences." (p.84)

In addressing the problem of distinguishing conduct which is properly described as genuine criminality as opposed to conduct which is recognized under the Refugee Convention, the following classification is sometimes applied:

(a) Absolute political offences

These offences comprise an attempt to criminalize the exercise of a fundamental human right, at least in so far as the criminal prohibition applies in circumstances not recognized as emergency exceptions under international human rights law: Hathaway, The Law of Refugee Status (1991) at 172; Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966) at 83.

(b) Relative political offences

These are described by Grahl-Madsen in The Status of Refugees in International Law Volume 1 (1966) at 84 as "common crimes" such as murder, robbery, burglary, etc. committed not for personal gain, but out of political motives. He points out that it is often considered right to classify perpetrators of such crimes as political offenders and not as common criminals (fugitives from justice).

An interesting discussion of this concept in the not dissimilar context of the political offence exception to extradition is to be found in R v. Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931 (HL) in particular Lord Diplock at 945 and Lord Simon at 953. We will return to this issue when addressing the "serious non-political crime" element of the exclusion clause in Article 1F.

(c)  Criminal offences

This category does not on the facts of this case require further elaboration.

As the present case concerns the threatening and shooting of innocent civilians, it is clear that the focus of the discussion must be on the latter two categories. The question is whether the prosecution of the appellant is for an ordinary criminal offence as opposed to a "relative political offence".

Various tests have been postulated:

(a) Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966).

Grahl-Madsen discusses a case where a former Czechoslovak Frontier Guard, while on duty, stepped behind a fellow guard who was accompanying him and from a distance of about 10 feet shot his comrade dead. The guard thereupon ran across the frontier and gave himself up to the German authorities. Grahl-Madsen records that the German Court which considered the case made some pertinent remarks about the scope of the term "political opinion" in the Refugee Convention:

p.223"The Convention seeks to protect persons who would be subject to political persecution through no fault of their own. In this connection the struggle for a certain political conviction is not to be regarded as a fault but as a right founded in the Law of Nature. If, however, a person who is in no danger of being persecuted commits a crime which is not pertinent to his objective or necessary for his defence, there is no reason to give him special protection. This is particularly true if the crime is a heinous one. The Court came to the conclusion that the homicide committed by the plaintiff was not truly justified by his circumstances, and he was consequently refused recognition as a refugee." [emphasis added]

p.249 "The offence of which he is guilty must in some way be a reflection of his - true, alleged or implied - political opinion."

We see here two themes emerging. First, that the motive and purpose of the offence is relevant and may be decisive. To a similar effect in the extradition "political offence" context, see R v Governor of Brixton Prison, Ex parte Schtraks [1964] AC 556, 582-583; R v Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931, 945, 953 (HL). Secondly, there is the element of justification or proportionality, an issue particularly relevant if the crime is a serious one.

(b) Goodwin-Gill, The Refugee in International Law (1983):

p 34 "Whether prosecution and punishment amount to persecution in the sense of the Convention depends on the following factors: the object and purpose of the law, the precise motivation of the individual who breaches such law, the "interest" which such individual asserts and the nature and extent of the punishment."

Interestingly, Goodwin-Gill advances an almost identical test in relation to the exclusion clause in Article 1F of the Convention (commission of a serious non- political crime):

p 60 "The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature."

(c)  Hathaway, The Law of Refugee Status (1991):

p 174 (see also p 176):

"It would, of course, be appropriate to consider the genuineness of the political purpose of the act (as distinguished from more typically criminal motives such as personal gain); the extent of the linkage between the act committed and the political purpose being pursued; and perhaps most important, the proportionality of the good sought to be attained in relation to the harm inflicted through the crime."

p 174:

"Where the motivation is genuine, the strategy credible, and the incidental harm tolerable in relation to the goal sincerely pursued, it is reasonable to view the action as more fundamentally political than criminal, and hence to assess the refugee claim on its merits."

(d) Kurzban, Kurzban's Immigration Law Source Book (1990) at 122 offers the opinion that in United States law the Convention and Protocol standard involves:

"(1)      a determination that 'genuine political motives' existed;

(2) whether the act was directed toward modification of the political organization of the State;

(3) whether a cause or link exists between the crime and political purpose; and

(4) a balance of the political nature of the act with whether it was 'disproportionate to its objective' or 'of an atrocious or barbarous nature'."

Applying the foregoing tests to the facts of the present case the Authority is of the view that proselytizing fundamental Sikhism at the point of a gun cannot be categorized as a genuine political or religious act. Indeed, there is no acceptable or logical link between the political or religious purpose being pursued and the shooting of an unarmed civilian. The deliberate killing or wounding of an innocent person can be properly described as an act "of an atrocious or barbarous nature". The injunction against killing or wounding innocent persons is a universal one and the Authority knows of no basis on which it could be justified on the present facts. In short, there is here no proportionality between the good sought to be obtained in relation to the harm inflicted through the crime. The object and purpose of the law against killing or wounding citizens is to secure a fundamental human right recognized (inter alia) by the Universal Declaration of Human Rights Article 3 (the right to life, liberty and security of person); Article 7 (equal protection of the law); Article 18 (freedom of thought, conscience and religion); Article 19 (right to freedom of opinion and expression) and the corresponding provisions of the International Covenant on Civil and Political Rights: Article 6 (the right to life shall be protected by law); Article 9 (the right to liberty and security of person); Article 18 (the right to freedom of thought, conscience and religion; Article 19 (the right to hold opinions without interference); Article 26 (equal protection of the law).

For the sake of completeness, it is necessary to dispose of subsidiary issues.

It is recognized that the criminal process is susceptible to political manipulation. In Hathaway, The Law of Refugee Status at 177-179 three particular forms are mentioned:

(a) Politically selective prosecution.

There is no evidence before us suggesting that in present day Punjab political factors materially affect the decision whether a civilian should be prosecuted for killing or wounding another civilian. We emphasize that we are not called upon to adjudicate upon a case involving a shooting or wounding carried out by a member of the security forces upon an innocent civilian.

(b) The imposition of differential punishment upon conviction as a means of persecuting the government's opponents.

There is no suggestion that a differential punishment will be imposed upon the appellant and certainly no suggestion that such punishment will sought to be imposed as a means of persecuting the appellant.

(c)  A process of adjudication which ignores basic standards of fairness.

The Authority has taken into account the damning indictment of arbitrary arrest and detention without trial in the Punjab found in the Asia Watch Report, Human Rights in India - Punjab in Crisis (August 1991) 148-151 and in the Amnesty International Report, India - Human Rights Violations in Punjab: Use and Abuse of the Law May 1991 (ASA 20/11/91). On the other hand, on the appellant's own account GS was able to secure release on bail. Re-arrest only occurred after GS re-offended.

Our conclusion is that the question whether the appellant would be able to secure a fair trial is only relevant if it can be said that the process of adjudication which ignores basic standards of fairness has been set up in such a way as to result in or support political or religious repression. In other words, the abuses (which the Authority accepts are legion in the Punjab) must be Convention-related. The Convention is not an instrument to provide a remedy where the justice system of the country of origin fails to meet general standards of fairness.

Our conclusion in this respect then is not only that the appellant is sought for an alleged breach of the ordinary criminal law, but also that such unfairness as he will encounter in the Punjab criminal system is not unfairness which will be directed against him for a Convention-related reason.

The Authority recognizes, however, that the jurisprudence in this area is developing and it may be necessary in some future case to re-examine this issue. For it can be said that the return of an individual by one state to another does affect certain human rights. These rights include not only the non-refoulement provision in Article 33 of the Refugee Convention but also the Convention Against Torture, Article 3 (no torture); the International Covenant on Civil and Political Rights, Article 7 (no cruel or unusual treatment or punishment), Article 14 (right to a fair trial); the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3 (no cruel or unusual treatment or punishment), Article 6 (fair trial). The principle said to emerge is that the sending state is responsible for anticipating and protecting the individual from violations of these rights by the receiving state. To date most, if not all cases, have turned upon the particular Convention as interpreted by the appropriate regional Court or Tribunal, as in the case of Soering v. United Kingdom (1989) 11 E.H.R.R. 439 (extradition barred where the individual could face the death penalty). As to the facts of that case in the New Zealand context reference would have to be made to Section 5A of the Extradition Act 1965. This provision gives the Minister of Justice a discretion to decline to order the surrender of an offender to a foreign country if it appears to the Minister that the offender has been sentenced to death or is liable to be so sentenced by the appropriate authority in the country to which his or her surrender is sought.

Commenting on Soering, Susan Marks in Yes, Virginia, Extradition May Breach the European Convention on Human Rights [1990] CLJ 194 offers the following analysis and opinion:

(a) The European Court of Human Rights held that in terms of Article 3, parties would exceptionally be responsible where there are substantial grounds for believing that the person concerned, if extradited, runs a "real risk" of being subjected to treatment contrary to Article 3, or, putting it another way, where that is a "foreseeable consequence" of the extradition.

(b) The Court did not hold that execution per se is contrary to Article 3, although significantly it did acknowledge the possibility that it may be so held in the future.

(c)  The Court accepted the argument that the circumstances surrounding the imposition of the death sentence, and in particular the conditions of detention Soering would suffer pending execution (the so-called "death- row phenomenon") amounted to inhuman or degrading treatment within the principles enunciated in Ireland v United Kingdom (1978) 2 E.H.R.R. 25 and Tyrer v United Kingdom (1978) 2 E.H.R.R. 1.

(d) The Court's decision is to be applauded for widening the protection afforded by the Convention:

"States parties are now responsible for breaches of Article 3 that are the foreseeable consequence of extradition. Extrapolating only a little, it might be expected that parties to the Convention could equally be held responsible for breaches of other non-derogable provisions (Articles 2, 4(1) and 7). Or even derogable provisions, and for breaches that are the foreseeable consequence of some other act than extradition, such as deportation or refusal of asylum. It is likely that these cases of responsibility will remain limited to cases where a breach of the Convention is the foreseeable consequence of a state party's action. However, it is not clear whether the foreseeability of breaches of the Convention will be judged by reference solely to the knowledge the state actually has, as in the present case, or by reference to knowledge the state ought in the circumstances to have acquired."(p.196-197)

Useful reference can also be made to Gilbert, Aspects of Extradition Law (1991) at 88; Schabas, International Human Rights Law and the Canadian Charter (1991) at 146; Lawyers Committee for Human Rights Briefing Paper, The Human Rights of Refugees and Displaced Persons: Protections Afforded Refugees, Asylum-Seekers and Displaced Persons Under International Human Rights, Humanitarian and Refugee Law (May 1991) at 22 and to an apparently unpublished discussion paper edited by Tom Clarke, Protection of Individual Human Rights in All Forms of State Act of Return (1989).

THE POSSIBILITY OF EXTRA-JUDICIAL EXECUTION

The possibility of extra-judicial execution was recognized by the Canadian Federal Court of Appeal as a relevant factor to be taken into account in Padilla v Minister of Employment and Immigration (1991) 13 Imm LR 2nd 1. There the Convention Refugee Determination Division of the Immigration and Refugee Board accepted that the appellant was a conscientious objector, a status not recognized by the Government of El Salvador, and that he had deserted from the El Salvadoran Army by reason of his conscientious objection. The Board, nevertheless, found that his fear of returning to El Salvador was fear of prosecution, not persecution, and refused the appellant's claim for Convention refugee status. The Federal Court of Appeal allowed the appeal, holding that the Board, by confining its consideration of the consequences of the appellant's desertion from the Army to what might occur to the appellant through due legal process, ignored the basis upon which he had asserted his fear of persecution as well as ignoring the evidence. What the appellant feared was that he would be executed extra-judicially, and there was persuasive, corroborative, documentary evidence to support this fear. The matter was referred back to the Board for a full re-hearing by a differently constituted panel.

This decision emphasizes the fact that it is wrong to assess a case according to what might occur through due legal process if there is cogent evidence that due process will be ignored.

In this regard we refer to what we have said in relation to an adjudication process which ignores basic standards of fairness. The pursuit of extra-judicial detention and punishment must have the result of effecting or supporting political or religious repression, i.e. the deviation from due legal process must be on account of a Convention related reason or have an adverse effect upon a Convention protected class. On the facts of Padilla it was clear that a strong argument to that effect could be mounted. But that is not so on the facts of the present case.

THE POSSIBILITY OF TORTURE

In view of the foregoing discussion, it is necessary to briefly address New Zealand's obligations under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand signed the Convention on 14 January 1986 and ratified it on 10 December 1989. It became effective for New Zealand from 9 January 1990.

The Authority has already had occasion to refer to the Convention in Refugee Appeal No. 14/91 Re JS (5 September 1991) at 7-9.

For the purposes of the Convention, Article 1 defines the term "torture" as meaning:

"... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions."

Article 3 Paragraph 1 of the Convention imposes an obligation of non-refoulement:

"No State Party shall expel, return ("refoule") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

To some extent this Article is based on Article 33 of the Refugee Convention. However, the scope of the two provisions is different. In the Refugee Convention, protection is given to refugees, i.e. to persons who are persecuted in their country of origin for a special reason, whereas Article 3 of the Torture Convention applies to any person who, for whatever reason, is in danger of being subjected to torture if handed over to another country: Burgers & Danelius, United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988) at 125.

In Refugee Appeal No. 14/91 Re JS this Authority noted that there is nothing new about police torture in India.

The question, however, is whether there are, in the words of the Torture Convention, "substantial grounds" for believing that the appellant would be in danger of being subjected to torture in the event of his return to the Punjab.

We hold that on the evidence before us such substantial grounds have not been made out. Any conclusion to the contrary is conjecture. In distinguishing between conjecture and inference helpful reference can be made to the following quote from Jones v. Great Western Railway Co (1930) 47 TLR 39, 45 (HL) where Lord MacMillan stated:

"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof."

The reference to "legal proof" is, of course, inappropriate in the context of a refugee determination process but the sense of the distinction between conjecture and inference is nonetheless tolerably clear.

CONCLUSION ON ISSUE 1

Our conclusion under the first issue therefore is that the appellant is not a refugee within the meaning of the Refugee Convention and that his return to India would not be contrary to the Torture Convention.

However, in case we are wrong it is necessary to consider whether the appellant is nevertheless excluded from the Convention by virtue of the exclusion clause contained in Article 1F of the Convention.

ISSUE 2: THE APPLICATION OF ARTICLE 1F OF THE REFUGEE CONVENTION COMMISSION OF A SERIOUS NON-POLITICAL CRIME

Article 1F(b) of the Convention states:

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

(a) ...

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

(c)  ..."

This exclusion is a corollary of Article 14 of the Universal Declaration of Human Rights which, after stating that "everyone has the right to seek and to enjoy another country's asylum from persecution" continues:

"This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations."

Furthermore, Article 7(d) of the UNHCR Statute provides that the competence of the High Commissioner shall not extend to a person "in respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition".

EXTRADITION LAW AND THE LAW OF ASYLUM

The purpose of Article 1F has been described in various terms. For example, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status paragraph 151 declares:

"The aim of this exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence."

It is suggested in paragraph 155 of the Handbook that a "serious" crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b) even if technically referred to as "crimes" in the penal law of the country concerned.

A different emphasis is offered by Professor Hathaway in The Law of Refugee Status at 221. In his view, Article 1F(b) brings refugee law into line with the basic principles of extradition law:

"The common law criminality exclusion disallows the claims of persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status. This exclusion clause is not a means of bypassing ordinary criminal due process for acts committed in a state of refuge, nor a pretext for ignoring the protection needs of those whose transgressions abroad are of a comparatively minor nature. Rather, it is simply a means of bringing refugee law into line with the basic principles of extradition law, by ensuring that important fugitives from justice are not able to avoid the jurisdiction of a state in which they may lawfully face punishment ...."

However, it is important that sight is not lost of the fact that while the serious non- political crime exception is analogous to extradition, it is not equivalent to it. See Grahl- Madsen, The Status of Refugees in International Law Vol. 1 290:

"As Article 1F(b) is worded it is clear that it does not matter whether the person concerned is actually wanted for any specific crime, and it matters even less whether there exists any extradition treaty between the countries in question under which his extradition may be requested."

The reference to "the basic principles of extradition law" is no doubt a reference to the concept of the "political offence" exception which is now a common feature of extradition arrangements. In the New Zealand context, the political offence exception is to be found in Section 5(1) of the Extradition Act 1965 ("offence of a political character").

But as pointed out in Hartley Booth, British Extradition Law and Procedure Vol. 1 (1980) at 77 whilst there exists a consensus among States as to the principle of non-surrender of "political offenders", no such agreement has been reached in defining the scope of that principle:

"The inability to reach agreement rests principally - as has been pointed out - upon the fact that whilst some authors regard a crime as political only if it is committed from a political motive, others regard a crime as political only if it is committed for political purposes; still others do not regard a crime as political unless it is committed both from a political motive and with a political purpose, while some regard political offences as being only those offences, such as high treason and lèse-majesté, which are generally accepted as political by their very nature."

Neither the New Zealand nor the British legislation defines "offence of a political character". As pointed out by Hartley Booth at 78, this lack of definition has resulted in much academic and judicial discussion of the scope of the exception but this may not be a disadvantage. As Lord Radcliffe said in R v Governor of Brixton Prison, Ex parte Schtraks [1964] AC 556, 589:

"No definition has yet emerged or by now is ever likely to. Indeed, it has come to be regarded as something of an advantage that there is no definition."

This observation should not be lost sight of as it very much limits the degree of assistance to be gained from the law of extradition when interpreting the "serious non-political crime" exclusion in the Refugee Convention. With this caveat in mind, it is possible to turn to British extradition cases. It would appear that although the principle has eluded definition in British extradition law, the Courts have from time to time given guidance as to the circumstances in which an offence may come to be properly regarded as one of a political character. Hartley Booth observes (at 78) that whenever the principle is relied upon in argument to support resistance to surrender, the "well-known" list of authorities is "ransacked" for relevant quotations.

Having completed his own examination of the authorities, Hartley Booth offers the following summary as at 1989. See Hartley Booth, British Extradition Law and Procedure Vol. 1 (1980) at 80:

"(1)      'Pure' political offences, such as high treason, sedition and lèse-majesté, are not extraditable offences, as they are not included in the first Schedule to the 1870 Act. Genocide, although included as an extradition crime, is specifically excluded from the scope of political offences, as are certain offences committed as acts of terrorism. These are discussed below.

(2) In order to amount to an 'offence of a political character', there must be more than ill- will between two individual citizens: there must be on the one hand the State and on the other the individual at odds with that State.

(3) The 'political' element of the offence must be aimed at the requesting State and not at a third State.

(4)  The circumstances of each case will be looked at in the light of the fact that there is no definition of what amounts to an offence of a political character, but this enquiry will not include any assessment of whether the political cause in question is good or bad.

(5)  The term 'political' applies to the mental element in the offence and the court will look not only at the fugitive's motives in committing the offence but, it seems, also at the motives of the requesting State in asking for his surrender.

(6)  The political objective of the offender must not be too remote from the physical actions involved in the offence. For example, a robbery to collect political funds is likely to be too remote, whilst a political assassination or crime of violence committed in escaping an oppressive regime is not.

(7)  A plea on the fugitive's behalf that the offence is one of a political character does not permit the court to enquire into whether the demand for surrender was made in good faith, whether it infringes natural justice or whether it is likely to cause hardship."

The political offence exception is also a familiar concept in continental Europe. Jurisprudence there cannot be ignored. It apparently classifies a political offence as pure or relative; and a relative offence may be a délit complexe or a délit connexe: Gilbert, Aspects of Extradition Law (1991) at 118. The following quotes are taken from Gilbert at 118 to 119:

Pure Offences

"A pure political offence is one 'directed solely against the political order'. It can be seen in such offences as treason, sedition or espionage. The French case of Re Giovanni Gatti is accepted as giving the definitive interpretation.

'In brief, what distinguishes the political crime from the common crime is the fact that the former only affects the political organization of the state, the proper rights of the state, while the latter exclusively affects rights other than those of the state.'"

Délit complexe

"This category of relative political offence covers acts which are 'directed at both the political order and private rights'. It is this category which has presented in most detail the question of how to balance political against mere criminal activity. In form, the extradition request would be for a common crime, such as murder, whereas in fact, the offence may be political with regard to the object sought and the motive of the fugitive. As will be seen below, the most important factor is generally the remoteness of the crime from the ultimate political goal."

Délit connexe

"This variety of relative political offence is accepted in the U.S.A., Latin America and in Europe. It is 'in itself not an act directed against the political order, but which is closely connected with another act which is so directed.'

The theft of guns in order to prepare for an armed rebellion and robbing a bank in order to provide funds for subversive political activities, are the usual examples of délits connexes. Their very remoteness from the ultimate objective will make it very difficult to prove they are of a political character under most of the national tests, unless offences connected with a political offence are expressly brought within the protection by treaty or statute."

When confronted with summaries of the kind offered by Hartley Booth and Gilbert it is tempting to assume that the various categories are closed and also that they are based upon neutral logic. Neither assumption is necessarily safe.

In the Note Political Legitimacy in the Law of Political Asylum (1985) 99 Harvard Law Review 450 the point is forcefully made that in US extradition law "syllogistic" neutrality continues to disguise politically normative judgments of great moment. The reference is to the criticism made by Oliver Wendell Holmes of judges for reasoning too syllogistically, for pretending to the neutrality of logic when in fact their deductions continually mask political value judgments.

In the analysis of US law found in the Note the following opinions are offered:

(a) The origins of the political offence exception suggest the need to read a standard of political justifiability into its superficially neutral language, a standard which should be based on democratic ideals (p.455).

(b) To fulfil the original purpose of the political offence exception Courts must test each claim against a standard of political justifiability rooted in democratic ideals. While it may appear that this standard requires evaluation of the political conditions against which the offender took action, and may seem a model of non- justiciability, this element of the court's enquiry would be identical to the task Courts already face in assessing political asylum claims in the immigration context. The non-justiciability objection is therefore not a valid one. (p.457-458).

The Note argues that in determining asylum cases, the Courts already explicitly embrace a normative standard rooted in democratic political ideals. It further argues that in truth the same occurs in the extradition context but because the Courts have fallen into the trap of pretending to the neutrality of logic, the application of politically normative judgments is disguised with the result that distortions do occur in the extradition context. The thrust of the argument is that interpretation of the political offence exception in the law of extradition should be brought into line with the law of asylum. In both cases, the enquiry should be not whether certain acts and conditions are legitimately political; rather, the true question is whether they are politically legitimate (p.451). Very much the same conclusion is arrived at in Gilbert, Aspects of Extradition Law (1991) at 150.

There is therefore a danger in looking too closely to the political offence exception in the law of extradition as an aid to interpreting the "serious non-political crime" exception in Article 1F of the Refugee Convention. There is a very real possibility that extradition cases have developed within their own particular treaty or statutory contexts (see for example McMullen v INS 788 F. 2d 591, 595, 596 (9th Cir 1986) and the disagreement in the House of Lords on a point of statutory construction in R v Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931 (HL)) and without any or sufficient discussion of the standard of political justifiability, democratic ideals and the developing international law of human right as evidenced, for example, by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

It is intended now to make more particular reference to United States jurisprudence. There, the Refugee Convention exclusion clause in Article 1F(b) is to be found (see McMullen v INS 788 F. 2d 591, 594-595 (9th Cir 1986) in the Immigration and Nationality Act (US) Section 243(h)(2) which disqualifies certain categories of persons who otherwise might have a valid claim to withholding of deportation or exclusion. Under Section 243(h)(2)(c) deportation of an alien will not be withheld even if he meets the criteria that his life or freedom would be threatened if there are serious reasons for considering that the alien has committed a serious non-political crime outside the US before arrival in the US. This provision is commented upon in Anker, The Law of Asylum in the United States: A Manual for Practitioners and Adjudicators (1989) at 74 footnote 412 in the following terms:

"This bar requires a 'non-political crime'. In the case of Eain v. Wilkes, 641 F 2d 504, 522 (7th Cir. 1981) the Seventh Circuit suggested that violent acts directed solely at military targets incidental to a violent political disturbance (such as war, revolution, or rebellion) might be considered political. See also Quinn v. Robinson 783 F 2d 776 (9th Cir. 1986) cert. denied, 479 US 882 (1986) (allowing extradition of a PIRA [Provisional Irish Republican Army] member where his activities included letter-bombing private persons). Note, however, that the Ninth Circuit in McMullen opined that a violent act loses its 'political' character if the 'crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature'. Thus, these two cases suggest that crimes committed outside the US in furtherance of some cause might lose their political status if they involve grossly excessive violence which is directed primarily against non-military targets.

The non-political crime preclusion is similar in some respects to the 'political offence' exception present in many extradition treaties. The political offence exception prohibits the extradition of persons accused of committing crimes against their government, but it generally has not been held to apply to offences perpetrated primarily upon a civilian populous. See Eain v. Wilkes supra at 520-521 ..."

Commenting upon the same provision in the Immigration and Nationality Act, Kurzban in Kurzban's Immigration Law Source Book (1990) states at 122 that to determine whether a crime is "non-political" the Court should apply the Convention and Protocol standard [i.e. Article 1F(b)]:

"... which involves: (1) a determination that 'genuine political motives' existed; (2) whether the act was directed toward modification of the political organization of the State; (3) whether a cause or link exists between the crime and political purpose; and (4) a balance of the political nature of the act with whether it was 'disproportionate to its objective' or 'of an atrocious or barbarous nature'."

This formulation appears to have been influenced by the test advanced by Goodwin-Gill in The Refugee in International Law (1983) at p 60 when discussing Article 1F.

This reliance on Goodwin-Gill, The Refugee in International Law (1983) at 60-62 is amply justified by the approval given to Goodwin-Gill's opinion by the United States Court of Appeals, Ninth Circuit in McMullen v INS 788 F. 2d 591 (9th Cir 1986). This is an important case and as the Authority has found considerable assistance from it, it is intended to address it as a separate topic.

MCMULLEN V INS

In January 1972 McMullen deserted the British Army and joined the Provisional Irish Republican Army (the PIRA), an off-shoot of the para-military Irish Republican Army. For the next two years he was an active participant in PIRA activities, including the bombing of two separate British Army barracks. In September 1974 he formally resigned from the PIRA because he felt that the group had become extremist, employed too much terrorist violence and did not represent the Irish populace. A few months later he was arrested by the Republic of Ireland Police and charged with various offences related to his involvement in the PIRA. He was convicted and sentenced to three years imprisonment. Subsequent to his release, and after several instances of PIRA intimidation, McMullen again began to participate in PIRA activities. He housed PIRA members in his home on occasion, trained PIRA members, and co-ordinated illegal arms shipments from the United States to Northern Ireland for use by PIRA terrorists. In 1978 the PIRA ordered McMullen to plan and execute the kidnapping for ransom of an American citizen. He refused to obey this order with the result that the PIRA planned to murder him.

Early in 1978 McMullen fled to the United States where he hoped to obtain asylum in exchange for knowledge about PIRA activities. He co-operated with the Bureau of Alcohol, Tobacco and Fire Arms and with Scotland Yard investigators in the United States.

In July of 1978 the United Kingdom sought McMullen's extradition to face criminal charges stemming from the bombing of one of the British Army barracks. His deportation was held in abeyance during the extradition proceedings. In May 1979 a United States Magistrate in San Francisco ruled that McMullen could not be extradited to England because of the provisions of the Extradition Treaty then in force between the United States and the United Kingdom.

At his subsequent deportation hearing, McMullen testified that the PIRA was aware of his co-operation with the authorities in the United States and that he was considered a traitor who should be killed.

The Immigration Judge found that McMullen was not deportable because he would suffer persecution within the meaning of the Refugee Convention. In October 1980 the Board of Immigration Appeals reversed the Immigration Judge, finding that McMullen had not shown a sufficient likelihood that he would suffer persecution upon deportation. On appeal the United States Court of Appeals, Ninth Circuit reversed the Board: see McMullen v INS 658 F. 2d 1312 (9th Cir 1981). The matter was remitted for the Board's reconsideration.

Upon reconsideration the Board of Immigration Appeals found that McMullen's claimed persecution was not based on political opinion. It further found that McMullen was excluded from refugee status by virtue of his active membership and involvement in the activities of the PIRA's campaign of terrorist atrocities.

In the Court of Appeals McMullen argued that the Board of Immigration Appeals had erred in weighing the nature of McMullen's alleged offences against the political ends he sought to obtain. He argued that the same standard for determining whether a particular act, normally a common law crime, is a political offence in extradition cases should be applied when determining whether the withholding of deportation is mandated under Section 243(h)(2). Under his proposed standard an act would be considered a political offence when:

(a) There was an insurrection or rebellion at the time the criminal acts were committed; and

(b) The criminal acts were incident to or in furtherance of that insurrection or rebellion.

The Court of Appeals at 596 accepted that such formulation is consistent with the traditional definition of a political offence for extradition purposes. Reference was made to In Re Castioni [1890] 1 QB 149, 155-156.

The conclusions reached by the Court of Appeals, however, were as follows:

1.   The non-political crimes exception to withholding of deportation in Section 243(h)(2) of the Immigration and Nationality Act was based directly upon the language of the Protocol Relating to the Status of Refugees. Congress thereby intended that the legislation be consistent with the Refugee Convention and Protocol (p.594-595).

2.   Although the definition of political offences in extradition cases may serve as a guide, the definition did not control the analysis of "serious non-political crime" as used in Section 243(h):

 

"When extradition is the issue the attempt to remove an individual from the requested countries initiated at the specific request of another sovereign, whom the individual contends is seeking to extradite him solely in order to prosecute him for his political beliefs. Thus, the analysis in an extradition case turns on the language of the particular treaty, while the political offense analysis in withholding of deportation cases turns on a single standard - the Convention and Protocol.

In addition, in contrast to extradition, deportation is a matter solely between the United States Government and the individual seeking withholding of deportation. No other sovereign is involved ... Thus, we find ourselves unencumbered by the concerns we expressed in Quinn, 783 F. 2d at 804-805 (dicta), that we should be careful not to interfere with political processes in other cultures by extraditing individuals merely because they have committed acts that deeply offend civilized notions of decency and morality ... When we deport an individual we are not "interfering with any internal struggle of another nation ...." [emphasis added] p.596

3.   The Board of Immigration Appeals was correct in interpreting the statute as requiring, consistently with the Convention, a weighing of the nature of the alleged offences against the political ends sought to obtain:

"A balancing approach including consideration of the offense's "proportionality" to its objective and its degree of atrocity makes good sense. See G. Goodwin-Gill, supra at 61. Moreover, this approach better recognizes the type of crime involved in this and most such cases. There is a distinction between "pure" political crimes, such as sedition, treason, and espionage, and "relative" political crimes, crimes that have both common law criminal aspects and political aspects. See Eain 641 F. 2d at 512. An approach that considers the proportionality and atrocity of a particular course of conduct is better suited to the analysis of "relative" political offences under the Convention and Protocol." p.596

4.   The Court rejected an argument that placed the determination of "serious non- political crime" on the individual's state of mind:

"The law focuses on the circumstances surrounding the acts, and not on the alien's state of mind ... Of course, for a criminal act to be "political", the individual must have been motivated by political reasons. G. Goodwin-Gill, supra, at 60. However, "motivation is not itself determinative of the political character of any given act". Eain, 641 F. 2d at 520. The critical issue is "whether there is a close and direct causal link between the crime committed and its alleged political purpose and object". G. Goodwin-Gill, supra, at 61; accord Eain 641 F. 2d at 520-23; Garcia-Guillern, 450 F. 2d at 1192. This link, when balanced with proportionality and atrocity, must warrant the protection afforded a "political" crime. This doctrine was established to protect acts that are directed at the State itself, and not to protect every criminal act that in some sense contributes to the political goal of those committing it." p 597

5.   Turning to the facts of the case itself, the Court of Appeals determined that the crimes were serious and non-political. The crimes concerned were described as terrorist activities directed at an unprotected civilian population, including indiscriminate bombing campaigns, murder, torture, and maiming of innocent civilians who disagreed with the PIRA's objectives and methods:

"Such acts are beyond the pale of a protectable "political offense". These actions were directed solely at bringing about social chaos, with the eventual demise of the State intended only as an indirect result. Indeed, arson, murder, and armed robbery (a major financing tool for the PIRA), are clearly the sort of crimes contemplated by the Convention as both "serious" and "non-political". See G. Goodwin-Gill, supra, at 62." p 597

6.   Addressing specifically the question of terrorism, the Court of Appeals observed at 597:

"Terorism does not fit easily into the complex rubric of international law, see Eain, 641 F. 2d at 520, and it is difficult to distinguish meaningfully between one obviously terrorist act and another. However, there is one relevant distinction that has maintained legal force for many years, and which applies in this case. There is a meaningful distinction between terrorist acts directed at the military or official agencies of the state, and random acts of violence against ordinary citizens that are intended only "to promote social chaos". Id. at 519. The distinction between acts against ordinary civilians and official instrumentalities has been extant in the common law since In Re Meunier [1894] 2 QB 414. See also Eain 641 F. 2d at 521 (discussing Meunier)."

7.   The Court concluded (at 598) that the PIRA's random acts of violence against the ordinary citizens of Northern Ireland and elsewhere, are not sufficiently linked to their political objective and, by virtue of their primary targets, so barbarous, atrocious, and disproportionate to their political objectives that they constitute "serious non-political crimes" for the purposes of Section 243(h)(2)(C) and the Convention.

8.   The Court then turned to the question of the test to be applied when considering whether there are "serious reasons" to believe that the particular individual committed the crimes in question.

It was held that the statute [and by inference the Convention] did not require a finding that as a matter of fact that the applicant was directly involved in the acts, either beyond a reasonable doubt or by a preponderance of the evidence. Rather, the words "serious reasons for considering" required only probable cause:

"Once the conduct is determined to be a serious non-political crime, the Convention requires only a finding of probable cause to believe the alien has committed the crime in order to find "serious reasons"." p 599

9.   McMullen had argued that the exclusion clause only applied to those who were actually involved in the commission of violence against civilians. Thus, his assistance in training members of the PIRA and his involvement in the procuring of arms shipments were one step or more removed from the violence against civilians.

The Court of Appeals emphatically rejected this argument at 599:

"We interpret both the Convention and the act to permit deportation of individuals who commit serious, non-political crimes, and we have concluded that this includes terrorist acts against ordinary citizens. We refuse to interpret these documents to apply only to those who actually "pulled the trigger", because we believe that this interpretation is too narrow. In our judgment, the only reasonable interpretation of the exception is that it encompasses those who provide the latter with the physical and logistical support that enable, modern terrorist groups to operate."

For the exclusion clause in the context of participation in a coup attempt see Dwomoh v Sava 696 F. Supp. 970 (S.D.N.Y. 1988); Cosentino, Dwomoh v Sava: Accepting and Applying the Correct Definition of a Refugee (1989) 3 Geo.Immigr.L.J. 403, 421; Aleinikoff, The Meaning of "Persecution" in United States Asylum Law (1991) 3 International Journal of Refugee Law 5, 15-18.

CONCLUSIONS ON THE INTERPRETATION OF "SERIOUS NON-POLITICAL CRIME"

The conclusions that the Authority has reached as to the "serious non-political crime" exception in Article 1F(b) of the Refugee Convention are as follows:

(a) That while extradition cases dealing with the political offence exception are informative, they must be treated with caution.

(b) The preferable test is that advanced by Goodwin-Gill in The Refugee in International Law (1983) at 60-62 as approved and explained in McMullen v INS 788 F. 2d 591 (9th Cir 1986) namely:

"The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature."

(c)  The Authority is particularly attracted to this test because it is very similar, if not identical, to the test adopted in the context of the Prosecution or Persecution issue. There is considerable merit in ensuring that a consistent test is applied in both contexts, bearing in mind their very close inter-relationship, as the facts of the present case demonstrate.

(d) The conclusion the Authority has arrived at is further reinforced by the fact that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status contains a very similar test. It is not clear whether the Goodwin-Gill formulation preceded the Handbook formulation or vice versa:

"152 ... In determining whether an offence is non-political' or is, on the contrary, a political' crime, regard should be given in the first place to its nature and purpose, i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature ..."

"156 In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee."

(e) The Authority's conclusions also find support in the Swiss test as explained and recommended in Gilbert, Aspects of Extradition Law (1991) at 150:

"As was suggested above in Section 6.4.5, the Swiss approach is the best of the current methods of applying the political offence exemption. It can test any and every political motivated offence. It requires that the offence is sufficiently proximate to the ultimate goal of the fugitive offender and his organization. This remoteness test rules out most terrorist crimes in the politically complex western industrialized societies which is the aim, anyway, of most of the treaties and statutes so far considered and rejected as failures. And it retains judicial discretion while demanding the much more stringent final hurdle that the offence be proportionate to the goal: authority already exists to suggest that homicide, no matter what crime it results from, will rarely be proportionate. Finally, the test is simple, unlike the positive guidelines of H.R. 3347 and it does not create more difficulties that it solves."

(f)   The expression "serious reasons for considering" as employed by Article 1F of the Convention requires evidence establishing only probable cause.

We turn now to the application of these conclusions to the facts of the present case.

The Authority has earlier explained in the context of the prosecution/persecution issue why it has concluded that this is a case of prosecution, not persecution.

As the Authority has decided to apply that same test in relation to the second issue, it accordingly finds on the balance of probabilities that there are serious reasons for considering that the appellant has committed a serious non-political crime in the Punjab.

There is a further ground for the Authority's conclusion on the "serious non-political crime" issue.

In assessing the nature of the suspected offence committed by the applicant, the Authority has taken into account the terms of the Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of Non-international Armed Conflicts, adopted at Geneva on the 8th day of June 1977, a copy of which is set out in the Sixth Schedule to the Geneva Conventions Act 1958 as amended by the Geneva Conventions Amendment Act 1987. It is there referred to as the Second Protocol.

Article 4(2) in setting out fundamental guarantees of humane treatment prohibits absolutely:

"... violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment."

Article 13(2) provides:

"The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."

In the present case, on the evidence given by the appellant there are serious reasons for considering that both GS and the appellant (as his accomplice) were in breach of the prohibitions contained in Articles 4 and 13.

The Authority is of the view that the Second Protocol to the Geneva Conventions can be looked to as a standard in the context of determining whether the acts of the appellant can be described as "non-political". It is satisfied on this basis that the acts can properly be so described.

This conclusion is reinforced by the fact that the acts of GS and the appellant were violations of fundamental rights guaranteed to the victim or victims by both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The particular Articles have already been referred to earlier but include, most importantly, the right to life and the right to hold, without interference, their own religious views.

CONCLUSION ON ISSUE 2

The conclusion of the Authority is that even if we are wrong in holding that the appellant is not a refugee within the meaning of the Refugee Convention, he is excluded from the Convention by virtue of Article 1(F)(b).

SUMMARY OF CONCLUSIONS

By way of summary our conclusions are as follows:

1.   The appellant faces prosecution, not persecution, and is therefore not a Convention refugee.

2.   In the alternative, he is excluded from the Convention by virtue of Article 1F(b) of the Convention

The appeal is dismissed.

"R P G Haines" [Chairman]