R v Alif

[2011] QDC 247

[2011] QDC 247

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE DEVEREAUX SC

Indictment No 917 of 2011

THE QUEEN

v.

ALIF, AMIN AND ZOLMIN

BRISBANE

..DATE 05/10/2011

ORDER

CATCHWORDS

CITIZENS AND MIGRATION - MIGRATION - OFFENCES - BRINGING NON-CITIZENS INTO AUSTRALIA - whether an offence under section 232A of the Migration Act 1958 requires proof that the group of five or more persons crossed the outer boundary of Australia's territorial sea

HIS HONOUR:  This is an application for a ruling as to whether
an offence under section 232A of the Migration Act 1958
requires proof that the group of five or more persons crossed
the outer boundary of Australia's territorial sea.

The three defendants in this case are charged under that
section as follows:  that on and between about the 4th day
of March 2010 and the 12th day of March 2010 in Indonesia and
on the seas between Indonesia and Australia they did
facilitate the bringing or coming to Australia of a group of
five or more people, namely a group of 24 people who were
non-citizens and who travelled to Australia without visas that
were in effect, and did so reckless as to whether those people
had a lawful right to come to Australia.

This application started life apparently when the matter was
listed for mention before her Honour the Chief Judge.  A
notation on the indictment dated 23 September reads that the
prosecutor was “ordered to deliver an outline of argument as to whether The Queen v. Ahmad (2011) NTSC 71 applies where there is no evidence that the vessel entered Australian waters."

The application has become the question.  I'm prepared to
answer the question with respect to the charge before me.  I
raise the history of it because it's necessary to refer to the
decision of Blokland J in the Northern Territory in Ahmad.

Mr Davis of senior counsel led Mr Lewis for Alif in the
hearing today, and counsel for Amin and Zolmin join in the
argument.

Ms Abraham led Mr Ryan for the Commonwealth DPP.

Insofar as the question is applied to the charge, I answer the
question that the offence under section 232A as charged
against these defendants does not require proof that the group
of five or more persons crossed the outer boundary of
Australia's territorial sea.

I'll attempt to explain how I reached that conclusion.

The indictment reflects to some degree the provisions of
section 232A of the Migration Act under which the charge is
brought.

At the time that section provided relevantly that a person
who organises or facilitates the bringing or coming to
Australia or the entry or proposed entry into Australia of a
group of five or more people to whom section 42(1) applies,
and does so reckless as to whether the people had or have a
lawful right to come to Australia is guilty of an offence.

It seems to me then that the elements of that offence, to be
understood in the terms used in the Commonwealth Code, that
is, physical and fault elements, as charged are that the
prosecution must prove the defendants facilitated the bringing
to Australia - I will leave out "coming" for a moment - of the
group of people, that that must be done intentionally because
the conduct has as its default fault element intention; that
the people must be those to whom subsection 42(1) applies;
that I consider to be a circumstance; and that that
facilitation be done reckless as to whether the people had a
lawful right to come to Australia.

Having expressed my view of what the elements are, it may well
be that there is to be further argument in this trial
precisely about what the elements of the charge are, and I
will hear that if it arises.

The point at the moment is to understand what must be proved
for the purposes of proving that the defendants facilitated the bringing to Australia of a group of five or more people to
whom section 42(1) applies.

First, I want to look at subsection 42(1) and the Northern
Territory decision of Ahmad.  The honourable Blokland J
accepted that section 42(1), "As it applies to section 232A
requires proof that the subject persons travelled to Australia
which in turn requires they cross over the outer boundary of
Australia's territorial sea."

I, with respect, don't agree with that.  Section 42(1) relevantly provides that subject to some other subsections, a non-citizen must not travel to Australia without a visa that is in effect.
In my opinion, a person to whom the section applies is a
non-citizen or, perhaps more properly or fully described, a
non-citizen without an effective visa.

The behaviour that section 42 proscribes is the travel to
Australia without a visa that is effective.  That provision
might not apply in one sense until the person, a non-citizen
has done an act, namely travel to Australia in the
circumstance that the person doesn't have an effective visa. But the quality of the person that the section addresses, the
quality of the person that makes them susceptible to the
provision, is being a non-citizen without a visa that is in
effect.

It seems to me that the decision in the Northern Territory to
the effect, broadly speaking, that in order to prove a case
under section 232A, the prosecution must prove that the
persons needed actually to arrive in Australia, depended on
that construction of section 42 with which I respectfully
disagree.

So what must be proved is that the defendants facilitated the
bringing to Australia of such a group of people with the
various fault elements.  To me, the answer to the question
posed on the application depends on what those words
"facilitate" and "the bringing to Australia" mean.
I proceed on the basis that "facilitate" means to render
easier, to promote, to help forward or to lessen the labour
of, to assist.
What is it that the persons must have facilitated?  The
bringing to Australia.  One might facilitate an event, and it
had exercised my mind for a while whether what was to be
facilitated was an event but it seems to me that a proper
understanding of the term "the bringing to Australia" is that
that's a process, so what must be proved is that the
defendants facilitated a process.

Once that's understood, it seems clear to me that in order to
prove the defendants facilitated a process, it is unnecessary
to prove that the process reached its ultimate destination or
goal.

I haven't referred in detail to other provisions of the Migration Act but in reaching this formulation, I have, of course, taken into account section 4 which sets out the objects of the Act, various definitions in section 5 of the Act, particularly the provisions of section 29 which enunciate the concepts of travelling to, entering and remaining in Australia subject to visas.

Earlier this week in the case on indictment 922 of 2011 in
this Court, her Honour Judge Clare has, with respect to a
charge for relevant purposes similarly worded, reached the
same conclusion that I have just reached but by a different
route.

Her Honour said this, "The concept of travel or proposed
travel comes from the opening words of section 232A(1)a, namely 'facilitating the bringing or coming to Australia or the entry of proposed entry into Australia.' To facilitate in its ordinary meaning, would simply meaning to help or assist in some way. The words 'bringing to Australia or coming to
Australia, entry or proposed entry into Australia' have
overlapping meaning.  The proposed entry clearly requires
something less than actual arrival."

Her Honour continued, "It suggests a planned arrival without
the need for a successful conclusion.  The plain words of the
first element therefore contemplate something falling short of
a successful arrival in Australia to extend to a form of
attempt to get the group to Australia."

A little later, having referred to the position section 232A
occupies in the Migration Act and coming after, in particular,
section 228, her Honour said, "Having regard to the extra
territorial provision in section 228A and the breadth of
conduct listed in section 232A(1) in particular the extension
to facilitating the proposed entry, I am satisfied that
section 232A(1) has application not only to acts committed
outside Australia but does not require the actual arrival in
Australia of the group."

Mr Davis submitted that her Honour's reasons don't take
account of, or misconceive, the structure of section 232A. He
submitted that that provision creates a number of offences,
and in particular he divided them into two types or two
groups.  The first was organising or facilitating the bringing
or coming to Australia, and the second was organising or facilitating the entry or proposed entry into Australia of the group.

For what it's worth, although it's probably unnecessary for me
to go any further, I accept that argument.  The Commonwealth
Code provides that offences have physical and fault elements,
and a number of potential physical elements are enumerated in
subsection 1.

There is a difference between the bringing or coming to
Australia and the entry or proposed entry into Australia.
Entry into Australia is defined to mean entering into the
migration zone.  It is accepted, as I understand it, that the
migration zone is, as a geographical area, something less than
Australia more broadly.

There are qualitative differences there.  The
alternative argument which Ms Abraham made was that there is
only one element, but there are different ways of becoming
liable.  That might be so, but it just seems to me that there
is a conceptual difference between organising or facilitating
the bringing or coming to Australia, which means into the
territorial waters for the purposes of such cases as these,
and the entry or proposed entry into Australia, which means
into the migration zone.  That difference actually in my
opinion confirms the view I reached earlier, that what must be
facilitated or organised is the process. The bringing to
Australia is a process, whereas the entry or proposed entry is
an event or a proposed event.  It might be that if those
provisions are so understood that helps give meaning to the
section.  The conclusion I reach is that, for reasons perhaps
not on all fours with Judge Clare's, I am not satisfied that
her Honour's decision is plainly wrong.

I have been referred to a number of other decisions, perhaps
the one most cogent is the decision of Angel J in Ratu and
Ladjilu v. Dalla Costa, which is reported at 93 ACrimR 425.
That case involved a decision on a different provision.  It
was section 233 of the Migration Act, but as the headnote says
that provision relevantly provided "a person shall not take
any part in the bringing or coming to Australia of ... a noncitizen” under certain circumstances.  This was
an appeal from a decision of a Magistrate.  Angel J referred
to the reasons of the Magistrate at pages 430 to 431,
including the opinion expressed by the Magistrate that, "It is
not essential that a noncitizen actually reaches Australia for
the particular charge to be proved".  Angel J then said, "I
fully agree with the learned Magistrate that a noncitizen need
not actually reach Australia for an offence contrary to
section 233 of the Migration Act to have been completed".

Another case that I was referred to was the decision of the
Full Court of the Federal Court in Tran v. The Commonwealth
(2010) FCAFC 18, but neither Mr Davis in whose favour the
comments made by Judges in that decision might have been, nor

Ms Abraham particularly pressed that decision as persuasive
for the purposes of this application.

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