BOMBSHELL – I WAS ORDERED

TO KILL ALTANTUYA BECAUSE

SHE WAS A RUSSIAN SPY:
NAJIB’S EX-BODYGUARD SIRUL
TELLS AUSSIE TRIBUNAL
Politics | February 20, 2019 by | 0 Comments

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

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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.
3. 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

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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.

4. 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”.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

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11. 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.
12. 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.
13. Findings as to motive were not made against the applicant.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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];

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 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.

20. 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