R v Ambo

[2011] NSWDC 156

District Court

New South Wales

Medium Neutral Citation:	R v AMBO [2011] NSWDC 156
Hearing dates:	20 - 28 September 2011
Decision date:	28 September 2011
Jurisdiction:	Criminal
Before:	B J Knox SC DCJ
Decision:	The application for a directed verdict of acquittal is rejected
Catchwords:	CRIMINAL LAW - Judgment - Application for a directed verdict - Lawful right
Legislation Cited:	Criminal Code Migration Act
Cases Cited:	Applicant A v Minister for Immigration & Ethnic Affairs (1996 - 1997) 190 CLR 225 DPP v Jeky Payara (2011) Vict CA Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration v Ibrahim (2000) 204 CLR 1 NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 Plaintiff M70/2011 v Minister for Immigration and Citizenship; M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32 R v Mahnedra [2011] NTSC 57 T v Home Secretary [1996] AC 742
Texts Cited:	Explanatory Memorandum to the Anti-People Smuggling & Other Measures Bill (Cth) 2010 Universal Declaration of Human Rights
Category:	Principal judgment
Parties:	The Crown Asse Ambo
Representation:	D Lee - The Crown Mr Kerkyasharian - The Accused Director of Public Prosecutions (Cth) O'Brien Hudson Law - The Accused
File Number(s):	2011/148339

Judgment

APPLICATION FOR A DIRECTED VERDICT

1. At the conclusion of the Crown case, Counsel for the accused made an application for a directed verdict. These are my reasons for rejecting that application.

INDICTMENT

1. The accused is charged with one count on an indictment as follows:

Between about 5 February 2011 and about 8 February 2011 in the waters between the Republic of Indonesia and the Territory of Christmas Island, Australia, facilitated the bringing or coming to Australia of a group of five or more people, namely a group of fifty-three people who were non-citizens and travelled to Australia and who had, or have, no lawful right to come to Australia, and he did so reckless as to whether those people had or have a lawful right to come to Australia .

OFFENCE

1. The charge has been brought against the accused under section s 233C of the Migration Act which provides:

(1) A person (the first person ) commits an offence if:

(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons ); and

(b) at least 5 of the other persons are non-citizens; and

(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.

Penalty: Imprisonment for 20 years or 2,000 penalty units.

ELEMENTS

1. The elements of this offence are as follows; that the accused:

(1) Organised or facilitated the bringing or coming to Australia a group of at least 5 persons;

(2) At least 5 of the other persons are non-citizens of Australia;

(3) Those 5 persons who are non-citizens of Australia had or have no lawful right to come to Australia.

1. It is the third element which raises the issue in this application, that is, the meaning of the phrase ' had or have no lawful right' as it applies to the relevant persons in this case.

FACTS

1. On 8 February 2011 a SIEV (Suspected Illegal Entry Vessel) was apprehended in Australian waters off Christmas Island containing 55 persons. Two of them (the accused - who comes from Sulawesi, Indonesia - and his nephew) were said to be the crew of the vessel. The remaining 53 were said to be stateless or from either Iran or Iraq. All had boarded that vessel in Indonesia which had travelled towards Australia in a journey that lasted about sixty hours.

1. The SIEV was boarded by a Royal Australian Navy boarding party from HMAS Maitland. The SIEV was taken to Christmas Island where those on the vessel were off-loaded, processed and detained, initially in the Christmas Island detention centre and then subsequently in other centres on Christmas Island. Evidence was given from seven of those passengers, all of whom are currently in immigration detention.

1. A number of others from that vessel have been given protected status. There is no evidence before me as to the basis for whatever applications were made in each of those cases. This is said to be relevant in terms of the Defence submission that it always was possible for such applications to be made by any person on the relevant vessels.

1. Evidence has been given that those who had passports from other countries or who had false passports gave them to various persons immediately prior to their embarkation onto the SIEV. Those passports were either destroyed or not returned to them or in one case, thrown overboard. All seven have given evidence that they did not have Australian visas at all relevant times.

APPLICATION

1. Against this background, Counsel for the accused has sought that I direct a verdict of acquittal on the basis that:

(a) those on the boat had a lawful right to come to Australia; or, in the alternative

(b) the Crown has not proved that they did not have a lawful right to come to Australia.

1. Mr Kerkyasharian submits that, on either of these bases, the passengers on the SIEV had a lawful right to come to Australia in that they could subsequently apply for asylum and/or refugee status. Accordingly, the jury cannot be satisfied that the people had no lawful right to come to Australia and consequently, there should be a verdict of acquittal.

1. The Crown opposes the application. It is submitted that the passengers on the SIEV did not have visas at the time they were apprehended travelling from Indonesia to Australia. In brief summary, the Crown case is that they did not have visas and consequently did not have a lawful right to come to Australia.

VICTORIAN COURT OF APPEAL STATED CASE

1. Both parties have referred to a similar or related case - Cth DPP v Jeky Payara - where the same issue has been the subject of a stated case to the Victorian Court of Appeal. Defence counsel has tendered on the voir dire the submissions made to that Court by both the Appellant and the Commonwealth DPP (MFI 1).

1. The stated case before the Victorian Court of Appeal is as follows:

(1) Does a person who wants to come to Australia for the purpose of seeking asylum from persecution have a 'lawful right to come to Australia' within the meaning of section 233C(c) of the Migration Act (Cth) 1958?

(2) If a person who enters Australia for the purpose of seeking asylum from persecution is subsequently granted asylum did they have a 'lawful right to come to Australia' within the meaning of section 233C(c) of the Migration Act at the point that they entered Australia?

(3) If the answer to either question 1 or 2 is yes, what circumstances must the prosecution prove to establish that the "other persons" referred to in section 233C(c) of the Migration Act had 'no lawful right to come to Australia'?

1. It is agreed that section 233C requires that persons brought to Australia had 'no lawful right to come to Australia' . There is no statutory definition for the phrase 'no lawful right to come to Australia' . No application has been made for me to state a case on this matter.

SUBMISSIONS

1. A summary of the respective submissions relied on in this case is as follows:

1. ACCUSED

Counsel for the Appellant in the Victorian stated case makes the following arguments:

1. The entitlement to seek asylum from persecution founds a lawful right to come to Australia, at least for those people whose claim for asylum is ultimately accepted.

1. Section 233C of the Migration Act does not specifically equate the lack of a valid visa with the absence of a lawful right to come to Australia. If Parliament had intended this, it could have used the language 'unlawful non-citizen'. An earlier provision establishing this offence used this device: Section 232A of the Migration Act referred to 'unlawful non-citizens' .

1. The use of the alternatives 'had or have' in the wording of the section suggests that an entitlement to come to Australia can be determined after the fact through an assessment of refugee status. The phrase 'or have' must be intended to capture something not captured by the word 'had' . The word 'have' in this context must logically refer to a later point in time. If the word 'had' denotes the position at the time of the conduct, the words 'or have' are otherwise redundant.

1. People seeking asylum from persecution have a right to come to Australia to seek such asylum; international law imposes positive obligations in relation to treatment of asylum seekers regardless of how those asylum seekers arrive. Australia has imported these international obligations into its domestic law through the Migration Act .

1. The right to come to Australia as referred to in s 233C is no more than a right to present at the border and make a claim for asylum, however, a 'right' to 'come to Australia' includes a right to present at Australia's borders to seek asylum.

1. International law is relevant to contextualise the phrase 'lawful right to come to Australia' and can be used as a tool of statutory interpretation. Article 14(1) of the Universal Declaration of Human Rights gives everybody the right to 'seek and to enjoy in other countries asylum from persecution.' This does not impose an obligation on States to grant asylum but it does impose on States an obligation not to obstruct a person's lawful right to seek asylum. Reference is made by Counsel for the Appellant in the Victorian matter to Article 33 of the Convention and s 36 of the Migration Act .

1. Mr Kerkyasharian, Counsel in the present case, also submits that section 503 of the Migration Act is the determinative provision in that it specifies categories of people who cannot lawfully come to or remain in Australia. He submits that none of the relevant persons in this case fall within those categories. He also refers to the Crown submission that section 42 of the Act requires everybody who comes to Australia to have a valid visa, and that a person without a current, valid visa is unlawfully in Australia. He argues that section 42 in itself provides some exemptions from holding a visa, some of which are ex post-facto, i.e., they only apply after a person arrives in the migration zone. Accordingly he submits that the absence of a visa does not equate with 'no lawful right' .

1. Mr Kerkyasharian further submits that, if I find - contrary to his submission - that s 42 is the relevant provision, a visa is not required to travel to Australia if a non-citizen is brought into the migration zone under 42(2A) - the power relating to detain people found on an intercepted off-shore boat. He asserts that the Crown has not proved that the people were not taken off the ship and taken into the migration zone. There is evidence in the Crown case that the people were taken to Christmas Island but no evidence that they were not later taken into the migration zone; in fact, seven of the witnesses came to Sydney to give evidence. In this event, he submits that s 42(1) does not apply and the Crown case fails as it is predicated on these people requiring a visa to come to Australia.

1. In relation to the wording 'had or have' in the section, Mr Kerkyasharian submits that these words should not be read down so that only the word 'had' applies. Given the serious nature of the charge, Counsel submits that the words 'or have' should be given their plain meaning. He refers to the fact that the Crown has not led any evidence to show that applications for asylum and /or refugee status have been denied.

1. Mr Kerkyasharian also asserts that the existence of a scheme whereby people seeking asylum can apply for refugee status evinces a lawful right for them to do so. In the alternative, Counsel argues that the Act does not take away a right to apply for asylum. On this basis, people seeking asylum have a lawful right to come to Australia and to make such an application.

1. CROWN

The Crown opposes the application and relies on the Commonwealth Crown submissions in the Victorian stated case in CDPP v Jeky PAYARA . In essence the Commonwealth submission is that to travel without a visa is to travel without a lawful right to come to Australia. A person claiming asylum does not thereby obtain a lawful right to travel to or enter Australia and that the provisions of the Act specifically provide against that.

1. The Crown in the Victorian stated case has submitted that s 233C(1)(c) is clear, that there is no uncertainty surrounding the definition of the element. The 'lawful right' referred to in s 233C(1)(c) is a right under domestic law and such a right only arises from the granting of a visa pursuant to the Act. In other words, if the people who form part of the 'group' coming to Australia do not have valid visas, this element of the offence is satisfied.

1. The right of asylum is not an individual right to assert a right to enter a State or territory and insist on being received. The Crown reiterates the obligation on States not to return asylum seekers to the place of persecution.

1. The Crown further relies on the "Object" section of the Migration Act , section 4 , which states at (b) : "... the Parliament intends that this Act be the only source of the right of non-citizens to so enter..." Accordingly, the Migration Act requires non-citizens to enter Australia lawfully.

1. S 42 of the Migration Act states that, inter alia, "a non citizen must not travel to Australia without a visa that is in effect." The Crown asserts that the accused's claim that a genuine asylum seeker without a visa has a lawful right to come to Australia is difficult to reconcile with this provision and other provisions of the Act that indicate that legitimate entry is dependent on possession of a valid visa.

1. In response to the Defence submissions in regard to the wording 'had or have', the Crown asserts that it is the status of the other person at the time the accused engaged in the conduct that is relevant. A subsequent change of status (for example, as would occur with the granting of a protection visa) does not exonerate an accused nor retrospectively give a person who entered unlawfully a lawful right to come to Australia.

1. Mr Lee, Counsel for the Commonwealth DPP in this matter, has referred me first to customary international law to look at the implications of conventions and protocols relating to refugees and asylum seekers and then refers to domestic law, specifically, the Migration Act .

1. Counsel for the Crown referred me to the following cases: NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161; Minister for Immigration v Ibrahim (2000) 204 CLR 1; T v Home Secretary [1996] AC 742; Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225; Nguyen Tuang Cuong v Director of Immigration [1997] 1 WLR 68; R v Mahendra [2011] NTSC 57 which advance the following principles. International law deals with the right of asylum as a right of states, not individuals; individuals cannot act outside municipal legal systems. The contents of Conventions do not detract from the right of a States to determine who shall enter its territory ( NAGV, applied in Ibrahim ). The Privy Council case of Nguyen refers to the fact that refugee status is not an international passport that entitles one to demand entrance into a contracting state. The only active obligation on states is not to punish asylum seekers or return them to the claimed country of persecution.

1. The Crown submits that Australian law is determinative as to whether travel to or entry into Australia is lawful or unlawful. In relation to the Object of the Act , Mr Lee refers me to sub-sections 1-3 of the s 4 of the Act , particularly sub-section 1 where the purpose of the Act includes the regulation of the 'coming into ' Australia by non-citizens.

1. Mr Lee has referred to the Explanatory Memorandum to the Anti-People Smuggling & Other Measures Bill (C'th) 2010 where s 233C is discussed. The Crown asserts that reference to the third element of 'lawful right' addresses proposed entry in terms of compliance with Australian law. He submits that the combined effect of sections 29 and 42 of the Migration Act is that a person's lawful right to enter is dependent on the grant of a visa. Those provisions together with the combined effect of sections 188-189 determine if a person seeking asylum has a lawful right to travel to/enter Australia.

1. In response to Defence submissions regarding the applicability of s 503 , Mr Lee notes that s 503 is contained in Part 9 of the Act titled 'Miscellaneous' . The Crown submits that it is illogical that the determinative section regarding lawful or unlawful entry into Australia would be placed in this section rather than within Part 2 , titled 'Control of Arrival and Presence of Non-Citizens'. Mr Lee notes that sections 29 and 42 are in Part 2 . Further, Mr Lee asserts that s 503 is restrictive in its terms and applies specifically to sections 200-203 .

1. In response to the Defence assertion that a person brought into the migration zone at a later point in time does not require a visa, Mr Lee argues that the submission ignores the extra-territorial applicability of the offence provision of s 233C . Further, it cannot be the case that the exceptions listed in 42(2A) have the retrospective effect of validating what, up until that point, would otherwise be unlawful travel.

1. On the matter of the offence containing the words 'had or have' , the Crown submits that the focus of the provision is on the conduct at the relevant time; in this case, when the SIEV was intercepted by the RAN. The word 'have' correlates with s 4.1 of the Criminal Code - the physical element of the offence; which refers to the circumstances in which the conduct occurred. The Explanatory Memorandum relates the phrase 'had or have' to ' does not or would not comply with the entry requirements under Australian law' . The Crown submits that this mirrors the section in reference to a specific point in time.

1. In reply, Defence asserts that to cover conduct at the relevant point in time, the word 'had' would cover this situation. The word 'have' should be given its natural and ordinary meaning.

LAW

1. In The Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; 1995 HCA 20, the High Court addressed the relationship between domestic Australian law and international law, establishing that there are international rights which exist but that they may be overborne by clear domestic legislation to the contrary. The subsequent case-law referred to me by the Crown confirms this approach.

1. In Plaintiff M70/2011 v Minister for Immigration and Citizenship; M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32, Kiefel J summarised the position at [247] and following:

In Polites v The Commonwealth ( (1945) 70 CLR 60 at 68-69 per Latham CJ (citing Maxwell on the Interpretation of Statutes, 8th ed (1937) at 130), 77 per Dixon J and 81 per Williams J; [1945] HCA 3) it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law. (A similar approach had been applied in Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363 per O'Connor J (citing Maxwell on the Interpretation of Statutes, 3rd ed (1896) at 200); [1908] HCA 95.) In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20) , Mason CJ and Deane J took the proposition to apply to favour the construction of a statute which is in conformity, and not in conflict, with Australia's international obligations, at least so far as the language of the legislation permits. The ambiguity, to which such a construction was relevant, should not be viewed narrowly, in their Honours' view. Their Honours went on to say (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 [100]; [2003] HCA 6.) :

"So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations."

The rule of construction stated in Teoh has been applied in Kartinyeri v The Commonwealth ((1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ; [1998] HCA 22.), Plaintiff S157/2002 v The Commonwealth ((2003) 211 CLR 476 at 492 [29] fn 64 per Gleeson CJ; [2003] HCA 2), and Coleman v Power ((2004) 220 CLR 1 at 27-28 [19] per Gleeson CJ; [2004] HCA 39).

1. International law recognises that a state has the right to regulate its own position in regard to refugees. Relevant authorities make it clear that the Convention does not confer on refugees or those claiming refugee status the capacity to act outside the municipal or domestic legislation. Similarly, a contracting state can determine who should be allowed to enter its territory - R v Ibrahim [2000] 204 CLR 1 per Gummow J at [137 ]; Applicant A v MIEA (1996-1997) 190 CLR 225 at 273; and in the UK, T v Immigration Officer [1996] AC 742 at 754B. That approach is also confirmed in Article 26 of the Convention itself.

1. In that regard Australian law is determinative as to whether travel to and entry to Australia is lawful or unlawful. The relevant Australian domestic law is the Migration Act . In the context of this case, I do not see any conflict between the Migration Act and relevant principles of international law. Even if there was, the provisions of the statute must be enforced, if and to the extent to which they amount to a contravention of accepted principles of international law - Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ, citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27).

1. Nor do I see that there is any ambiguity about the provisions of the Migration Act . The relevant part of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill (2010) concerning the relevant section under which this indictment has been laid - s 233C - sets out that the legislation is aimed at:

"strengthening the Commonwealth's anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation. The Bill will put in place laws to provide greater deterrence of people smuggling activity and to address the serious consequences of such activity."

1. That in turn reflects the Migration Act in the objectives - s 4 , the specification that visas are the basis for the right to enter or remain in Australia - s 29, and the unequivocal statement in s 42(1) that a person must not travel to Australia without a visa.

CONSIDERATION AND FINDINGS

1. The issue of the lawfulness or unlawfulness of the travel for the passengers on the SIEV in this case was determined at the time of their entry to Australia in the territorial waters off Christmas Island.

1. The reference in the Explanatory Memorandum to the words 'have or had' being akin to 'does not or would not' are relevant in this regard to determine the interpretation intended by Parliament. The Explanatory Memorandum goes on to explain that this means that the "bringing or coming, or entry or proposed entry, does not or would not comply with the entry requirements under Australian law." In my view the words 'would not' do not import some future entitlement to claim protection; rather, those words cover a situation where a person has already entered Australia.

1. Against the background of the matters set out, there does not seem to be any ambiguity about the Commonwealth position as set out in the legislation. I see no reason why the phrase 'a lawful right to come to Australia' should be interpreted in this case to mean that any subsequent determination that one of the passengers on the SIEV is a refugee, can retrospectively entitle such an applicant to have a 'lawful right' to come to Australia at the time they were apprehended.

1. I do not accept the submissions advanced in relation to the effect that s 503 rather than s 42 provides for what constitutes 'unlawfulness' . That section is concerned with specific categories of applicants in referring to sections 200-203 .

1. The third element of the offence on which the jury will be directed is the circumstance that the persons coming to Australia 'had or have no lawful right to come' . That does not import a requirement to consider a possible future entitlement. Once in Australia, a person has a right to claim asylum. But that does not affect their status as having arrived unlawfully and without a visa and, under Australian law, becoming unlawful non-citizens.

1. I reject the submission that I should direct the jury that the passengers on the SIEV vessel who accompanied the accused were persons who had a lawful right to come to Australia.

1. In my view the interpretation sought by Defence counsel would require either legislative amendment to the Migration Act , or a contrary interpretation by a higher court following consideration of the relevant provisions by a higher court. I am bound to apply the law as it applies at this time.

RULING

1. I reject the application for a directed verdict of acquittal.

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Decision last updated: 13 October 2011