Saric v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Saric v Commonwealth of Australia [2018] FCA 1620

File number: QUD 715 of 2017
Judge: DERRINGTON J
Date of judgment: 29 October 2018
Catchwords:

ADMIRALTY – forfeiture of vessel entering Australian migration zone – applicant’s vessel entered Australia’s migration zone carrying persons not having evidence of holding a relevant Australian visa – automatic forfeiture of vessel under Migration Act 1958 (Cth) – whether vessel was used in a contravention of a provision of the Migration Act 1958 (Cth) involving the bringing of persons to Australia who were unlawful non-citizens

EVIDENCE – standard of proof – establishing in civil proceedings the contravention of an offence provision – whether Commonwealth must negate defences under ss 10.1 and 10.3 of the Criminal Code 1995 (Cth) Schedule on balance of probabilities or beyond reasonable doubt – civil standard applied subject to the rule in Briginshaw v Briginshaw
Legislation:

Customs Act 1901 (Cth) s 15

Evidence Act 1995 (Cth) s 140

Fisheries Management Act 1991 (Cth) s 106A

Maritime Powers Act 2013 (Cth) s 42

Migration Act 1958 (Cth) ss 4A, 5, 13, 198, 229, 245E, 245F, 261A, 261B, 261D, 261F, 261G, 261H

Migration Regulations 1994 (Cth) reg 2.40, 5.21

Criminal Code 1995 (Cth) ss 10.1, 10.3, 13.2, 13.3, 13.4, 13.5
Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Helton v Allen (1940) 63 CLR 691

May SS v The King [1931] SCR 374

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Oblers Co Ltd v Commonwealth (2004) 136 FCR 67

Rejfek v McElory (1965) 112 CLR 517

The Eleanor (1809) Edwards’ Admiralty Reports 135

The Ship “Queen City” v The King [1931] SCR 387

Tran v Commonwealth (2010) 187 FCR 54
Date of hearing: 21-22 May 2018
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 145
Counsel for the Applicant: Mr M J McCarthy and Ms J Marr
Solicitor for the Applicant: Fisher Dore Lawyers
Counsel for the Respondent: Ms E S Wilson and Mr C K Copley
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 715 of 2017
BETWEEN:

MARIO SARIC

Applicant
AND:

THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

29 OCTOBER 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. Mr Mario Saric (Mr Saric) and his companion, Mr Jerko Bonacic (Mr Bonacic), are experienced sailors.  Each of them had a significant history in the boating industry and, in particular, in sailing yachts.  On 23 November 2016, they left their home in Dubrovnik, Croatia with another person and commenced an around-the-world voyage in Mr Saric’s yacht, a 12.9…

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Details
Case
[2018] FCA 1620
Decision Date

CaseChat Overview and Summary

The case of Saric v Commonwealth of Australia involved the automatic forfeiture of a vessel under the Migration Act 1958 (Cth) due to its use in contravention of provisions concerning the entry of non-citizens into Australia without appropriate visas. The applicants, Mr Saric and Mr Bonacic, argued against the forfeiture of their vessel, Exodus, on the basis that they were not in possession of the necessary visas when they entered Australia. The central legal issues revolved around the standard of proof required for the Commonwealth to negate any available defences under sections 10.1 and 10.3 of the Criminal Code 1995 (Cth) in civil forfeiture proceedings and whether the vessel had indeed been used in contravention of the Migration Act.

The court found that the Commonwealth had satisfied the requirements of the Migration Act, establishing that Mr Saric and Mr Bonacic were non-citizens without valid visas upon entering Australia. The court further determined that the standard of proof in civil proceedings, subject to the Briginshaw principle, was the appropriate standard rather than the criminal standard of proof beyond reasonable doubt. It held that the Migration Act’s provisions did not import the criminal standard of proof into civil proceedings, and thus the Commonwealth was only required to negate any available defences on the balance of probabilities. The court concluded that the Commonwealth had effectively negated any defences on the higher standard of proof beyond reasonable doubt. Therefore, the vessel was forfeited as per the Act's provisions.

The court dismissed the applicants' claims and ordered that the application be dismissed with costs awarded to the respondent. This ruling confirmed that the vessel, Exodus, was forfeited to the Commonwealth as a consequence of the contravention of the Migration Act provisions.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence established that each Mr Saric and Mr Bonacic were “non-citizens” within the meaning of that expression as used in the Act.Mr Saric and Mr Bonacic were not, when entering Australia, in possession of evidence of a visa that was in effect and permitted them to travel to and enter Australia – s 229(1)(a) The point in time at which it must be ascertained whether the non-citizens were in possession of evidence of holding a relevant visa is “when entering Australia”. The expression “enter Australia” in relation to a person means when they enter the migration zone: s 5(1) of the Act. Here, that means entering into a port and, in particular, a proclaimed port, being a port appointed under s 15 of the Customs Act 1901 (Cth). The Port of Brisbane has been, and was at all relevant times, so appointed under that Act. That is established by a “Customs Act 1901 notice under s 15, Port Appointment, Appointment Number 2528” which was notified in the Commonwealth Gazette No GN27, 11 July 2012. The limits of the Port of Brisbane for the purposes of the current proceedings is the line drawn from the southern extremity of Porpoise Point to a point on Nerang Head on the mainland (latitude 27°, 56 inches, 06 south, longitude 153°, 26 inches, 00 east), being the entry to the Gold Coast seaway. For the purposes of the issues under discussion, the concept of a “visa” is, pursuant to s 29(1) of the Act, a permission granted by the Minister for a non-citizen to either travel to and enter Australia, or remain in Australia, or both. The evidence before the Court conclusively established that, when entering the migration zone by passing through the Gold Coast seaway, neither Mr Saric nor Mr Bonacic were in possession of a visa that was in effect and permitted them to travel to and enter Australia, or to remain here. That being so, they could not have been in possession of evidence of such a visa. ABF Officer Whitney deposed in his affidavit that after the record of interview, Mr Saric said to him words to the effect that he did not have a visa for Australia, he was European and he thought that Europeans did not need a visa to travel to Australia. Similarly, Mr Bonacic was asked whether he had a visa for Australia, to which he responded “no”. Neither Mr Saric nor Mr Bonacic produced a visa to any ABF officer. In a statement made during an interview Mr Saric said he did not have a visa to come to Australia. In an interview between Mr Bonacic and ABF Officer Rowlinds, Mr Bonacic also made statements to the effect that he did not claim to hold a visa or to have applied for a visa in Australia. It follows that the Commonwealth satisfied the requirements of s 229(1)(a).Neither Mr Saric nor Mr Bonacic held a “special purpose visa” – s 229(1)(b) Neither Mr Saric nor Mr Bonacic held a “special purpose visa”. Again, it is apparent neither of them were entitled to a special purpose visa under s 229(1)(b). Neither fulfilled any of the criteria prescribed under reg 2.40 of the Migration Regulations 1994 (Cth) and, indeed, neither of them suggested the same. Further, during the course of a removal planning interview, Mr Bonacic said words to the effect that he did not claim to hold such a visa. Similarly, Mr Saric, during the course of his removal planning interview, also said that he did not claim to hold such a visa.

Decision

Reasons for decision

It follows that neither of the defences under s 10.1 or 10.3 are available to Mr Saric. Even if it is assumed that the defences had been raised by him, the Commonwealth negated their availability. Indeed, it has disproved their availability on the higher standard of proof being beyond reasonable doubt. Conclusion It follows the Commonwealth has established that Exodus was involved in a contravention of s 229(1) because the requirements of that section were satisfied and no available defence existed. It also follows that the requirements of s 261A have been established and Mr Saric has not shown any entitlement to recover the vessel. The consequence is that the orders Mr Saric seeks should be refused and his application should be dismissed with costs. His lack of success on his application has the effect that, by reason of the operation of the Act, the vessel has been condemned as forfeited to the Commonwealth.

Ratio Decidendi

Legal Principle Established

Mr Saric also accepted that, by s 13.3 of the Criminal Code, he carried the evidential burden of raising any defence under ss 10.1 and 10.3 of that code. That burden required him to adduce or point to evidence in respect of such defences “that suggests a reasonable possibility that the matter exists or does not exist”. The crucial issue between the parties concerned the standard to which the Commonwealth must exclude any defences so raised. The Commonwealth accepted that if the issues arose in the course of a criminal prosecution, it would be required to exclude them beyond reasonable doubt: ss 13.1(2) and 13.2(1) of the Criminal Code. However, it says that is not the case in the present proceedings where the civil standard of proof is applicable.Consideration The arguments advanced by Mr Saric on this issue were relatively brief. He submitted that s 4A of the Act imported ss 10.1, 10.3 of the Criminal Code and the provisions dealing with the burden of proof found in Division 13, Part 2.6, Chapter 2. He further submitted that, once he had discharged the evidential burden of raising any defence in s 10.2 or 10.3, the Commonwealth bore the legal burden of disproving it and that the applicable standard of proof is that referred to in s 13.2 of the Criminal Code. That section provides:13.2 Standard of proof - prosecution(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof. Further, Mr Saric submitted that there is nothing in the Act that affects the operation of this section and the standard of proof which the Commonwealth must meet in negativing a defence under s 10.1 or s 10.3 was beyond reasonable doubt. He also submitted the words of s 4A of the Act, “Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act”, ought to be given their ordinary meaning and should not be read down such that s 13.2 applies in determining whether the Commonwealth had excluded his defences. He sought to support that submission by identifying that s 229(1) was an offence provision and one of absolute liability, the penalty for which was severe and which might also lead to forfeiture of property. That being so, he argued, the section ought to be strictly construed. Mr Saric’s submissions in this regard ought not to be accepted. His action is a civil matter involving a dispute between himself and the Commonwealth as to whether his vessel was forfeited. There is no doubt that the circumstances of the forfeiture depend upon the Commonwealth establishing the existence of criminal conduct, but that occurs in the context of civil proceedings. There is no actual prosecution within the meaning of s 13.2 of the Criminal Code and Mr Saric was not, as a result of these proceedings, ever exposed to the imposition of criminal sanctions. These proceedings did not imperil his liberty or expose him to a fine or pecuniary penalty.