20 February 2019
Malaysian hitman faces deportation from Australia after losing asylum appeal
Sirul Azhar Umar, convicted of murder in Altantuya case, will be sent home if Malaysia abolishes death penalty
A bodyguard to former Malaysian prime minister Najib Razak has had his claim for asylum rejected by Australia, and will face deportation to his home country if it abolishes the death penalty.
Sirul, a former commando, was convicted with another officer and sentenced to death. But Sirul fled to Australia while on release pending an appeal. Australia has not returned him because he is facing the death penalty.
Sirul insists he was ordered to carry out the killing and in a rare exclusive interview with the Guardian last year said he had participated in the abduction but not the murder. He has refused to say who ordered the killing and no motive has ever been established.
Sirul has been held in the high-security wing of Villawood detention centre outside Sydney for three years. He recently told the Malaysian website Malaysiakini he was willing to return to Malaysia and reveal the truth about what happened in the murder case if he was granted a full pardon.
He also told Malaysiakini he believed many in Malaysia now saw him as a political detainee.
Sirul had already been refused a temporary protection visa in Australia on character grounds but had been preparing an appeal of this decision. The appeal was refused, the ABC reported, by the administrative appeals tribunal, meaning Sirul will remain at Villawood until he can be returned to Malaysia.
Last year, Malaysia’s new government announced it would abolish the death penalty and stop any executions that were pending.
WSZB and Minister for Immigration and Border Protection (Migration)  AATA 163 (18 February 2019)
Last Updated: 19 February 2019
WSZB and Minister for Immigration and Border Protection (Migration)  AATA 163 (18 February 2019)
File Number(s): 2017/7740
And Minister for Immigration and Border Protection
Tribunal: Deputy President B W Rayment OAM QC
Date: 18 February 2019
The reviewable decision is affirmed.
Deputy President B W Rayment OAM QC
18 February 2019
- 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.
- 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  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:
(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.
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Findings as to motive were not made against the applicant.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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  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  UKHL 8;  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 -, Gaudron J at 550-551 -; McHugh J at 553 ; Kirby J at 557-558 - and at 567  and 572 and 573-574  and Callinan J at 593 . 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.
- 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
Dated: 18 February 2019
8 June 2018
The Edge Markets @theedgemarkets
Dr M says looking to extradite man convicted in Mongolian model murder
KUALA LUMPUR (June 8): Prime Minister Tun Dr Mahathir Mohamad said on Friday that Malaysia may revoke the death sentence on Sirul Azhar Umar, who was convicted in the murder of Mongolian model Altantuya Shaariibuu in 2006, to facilitate his extradition from Australia.
“Sirul cannot return to Malaysia because Australia won’t allow someone facing capital punishment to return home,” Dr Mahathir told reporters at a press conference.
“We may revoke the death sentence, but replace it with a jail term,” he said, adding that they have not yet asked Australia officially to extradite Sirul.
Report: Australia agrees to extradite Sirul
KUALA LUMPUR, June 8 — Australian authorities have finally agreed to repatriate Sirul Azhar Umar following a fresh attempt by Putrajaya to have the convicted murderer extradited, The Guardian reported.
According to the British newspaper, a source said Malaysia and Australia jointly agreed on the terms for the extradition of the former police commando, who was sentenced to death here for murdering Mongolian Altantuya Shaariibuu.
The terms, among others, was for Malaysia to bear the cost of extradition for Sirul.
“It is believed Sirul will leave Australia within a month,” the news report said.
This revelation comes shortly after PKR de facto leader Datuk Seri Anwar Ibrahim openly condemned the Australian authorities for snubbing Malaysia’s bid to extradite Sirul.
Anwar had told the country’s ABC radio that some of Australia’s foreign policies were “tainted”.
Sirul, who was recently interviewed by The Guardian, said he was not willing to return to Malaysia even if his death sentence is commuted to life in prison.
He expressed fear that he would be killed while in prison here.
30 May 2018
Sirul claims was ‘scapegoat’, won’t say who ordered Altantuya’s death
KUALA LUMPUR, May 30 — Sirul Azhar Umar is hoping to start anew in Australia and is now adamant he will not name the parties who directed him and another police commando to murder Mongolian Altantuya Shaariibuu in 2006.
In an interview with The Guardian, the former police commando convicted of Altantuya’s murder and who absconded to Australia also claimed he never confessed to the murder.
He reportedly accused criminal prosecutors in Malaysia of failing to call key witnesses during his murder trial, and the other convicted ex-police commando, Azilah Hadri, of pinning the killing on him.
“I bring her halfway along the road, I give her to Azilah.
“I am not a bad person, but the case makes me out as bad,” he told the British newspaper in a rare interview at an immigration detention centre in Sydney.
The Guardian said both Azilah and Sirul claimed not to have known Altantuya or her significance.
When asked if he would say who instructed Altantuya’s murder, Sirul told the UK paper: “I am not going to comment about it.”
Sirul also declined comment when he was asked if he had valuable information on any fresh inquiry on the case.
A news portal previously reported Sirul as offering details of the murder in exchange for absolution in Malaysia where he is sentenced to hang.
In the interview, however, he said he has no intention to return here.
“Singh wants me to serve a life sentence. I don’t want to go back. People say: ‘Don’t give a pardon’. I would be killed in jail,” he said, in reference to Bukit Gelugor MP Ramkarpal Singh who previously said Sirul could be extradited if Malaysia commutes his death sentence.
Australia does not have the death penalty and cannot legally deport any individual who may be put to death in the extraditing country.
11 May 2018
Mathuri D. Santhi @MathuriSanthi 4 hours ago
Nak lari mana? Come to Australia why don’t you. I’m sure Sirul would appreciate a roommate at Villawood.
The GuardianVerified account @guardian
Time running out for Malaysian hitman in Australia
Sirul Azhar Umar is in detention where he must prove that he did not mastermind the killing of the former lover of the ousted Malaysian PM’s confidant
As Najib Razak was fighting the election that would end his controversial prime ministership of Malaysia, a former official of his political party quietly entered Australia’s Villawood detention centre to visit an inmate at the centre of one of the biggest scandals of Najib’s reign.
Two weeks ago, Datuk Khairul Anwar Rahmat, the former head of Najib’s United Malay National party’s youth wing, flew to Sydney and, with the approval of Australia’s department of home affairs, went straight to meet in private with Sirul Azhar Umar, a former police commando and hitman.
In 2009, Sirul was convicted in Malaysia and sentenced to death for the sensational murder of a Mongolian woman, Altantuya Shaariibuu, in a case widely suspected to have links to Najib. A source told the Guardian that the Malaysian visitor was in Australia to deliver a message to his countryman: “Don’t say anything”.
Sirul is under pressure from Australian authorities to prove he did not mastermind the killing if he is to be deemed not a threat to the Australian community and granted a protection visa. His case is due to he heard within months and questions remain over whether he will be willing to implicate others in order to secure freedom in Australia for himself.
Boss, I am in difficulties here’
Sirul escaped to Australia in late 2014 when he was out on bail waiting for the judgment on an appeal against his conviction. When that conviction and death sentence were upheld by the Malaysian federal court in January 2015, Australian Federal Police arrested Sirul in Queensland after an Interpol alert. He had overstayed his tourist visa and was later transferred to Villawood.
With no time to pack, he left behind a thick trail of evidence as reported by Al Jazeera’s 101 East program in 2016. Page after page of his diaries listed high-powered government contacts, such as the chief of security for the prime minister and various other senior officials in the deputy prime minister’s office.
Three days before he was taken into custody in Australia, Sirul sent an SMS message to a close associate with ties to Malaysia’s intelligence agency.
“Greetings boss. I am in difficulties here. I want 2 million Australian dollars before boss (you) come to meet me… after that I want 15 million … I will not return to Malaysia ever boss. I won’t bring down the PM.”
Four and a half hours later, the man replied: “They want to discuss.”
Greg Lopez, a Malaysia expert at Western Australia’s Murdoch University, says the new government in Kuala Lumpur is likely to re-open the Altantuya case.
“The fact no motive for the murder has ever been established leaves open the question that it was a state-sponsored killing and that needs to be thoroughly investigated. Najib could find himself in a very precarious situation.”
He believes the new prime minister, Mahathir Mohamad, will be looking to commute Sirul’s sentence and get him back to Malaysia.
From the Australian perspective, he says: “Questions need to be answered
as to the relationship between the Australian government and Najib.
“How is it that an individual, who was standing trial for murder in one of the
region’s most high-profile cases was allowed to come to Australia on a tourist visa and why were Malaysian officials allowed to visit and seemingly manipulate him in detention? Those questions have never been answered satisfactorily by the Australian government.”
For Sirul, he can’t remain silent any longer if he’s to prove why he isn’t “ineligible for the grant of a protection visa”.
sam hamid @CpsppsmiSam 1 hour ago
Sat 3.45pm 12May 2018 There is now hope that there will be justce for Altantuya. God bless her soul and family. The GUARDIAN reports. ALTANTUYA THE MOST HAPPY GHOST AFTER NAJIB’S SHOCK GE14 LOSS? WITHOUT A PROTECTOR, WILL KILLER SIRUL FINALLY… https://www.theguardian.co
Who really is the model’s real lover