R v Alif - [2011] QDC 247

[2011] QDC 247

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE DEVEREAUX SC

Indictment No 917 of 2011

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alif

Details

AGLC: R v Alif [2011] QDC 247
Case: [2011] QDC 247
Decision Date: 05/10/2011

CaseChat Overview and Summary

In the case of R v Alif, the defendants were charged under section 232A of the Migration Act 1958 for facilitating the bringing of a group of 24 non-citizens into Australia without valid visas. The defendants sought a ruling on whether the offence required proof that the group crossed the outer boundary of Australia's territorial sea. The court examined the relevant provisions of the Migration Act and the legal definitions pertinent to the offence.

The key legal issues revolved around the interpretation of the phrase "facilitate the bringing to Australia" and whether it required proof that the group actually crossed into Australian territory. The court considered the definitions and objectives of the Migration Act, particularly section 42(1), which pertains to non-citizens travelling to Australia without effective visas.

The court found that the offence under section 232A does not necessitate proof that the group crossed the outer boundary of Australia's territorial sea. The judge reasoned that the term "facilitate the bringing to Australia" should be understood as assisting in the process of bringing the group to Australia, rather than requiring proof of arrival in Australia. This interpretation aligns with the broader objectives of the Migration Act and the concept of facilitating an event or process. The court also noted that similar conclusions had been reached by other judges in different contexts, reinforcing the interpretation that the offence can be established without proof of crossing into Australian territory.

The court's decision clarifies that the prosecution need not prove that the group of non-citizens actually arrived in Australia to establish the offence under section 232A. Instead, it is sufficient to prove that the defendants facilitated the process of bringing the group to Australia, regardless of whether the group reached its final destination.

Orders