SRCCCC and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 315
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1309
GENERAL ADMINISTRATIVE DIVISION ) Re
"SRCCCC"
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date26 March 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant is not excluded from the provisions of the Convention Relating to the Status of Refugees of 1951 by reason of Article 1F(b) of the Convention.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – Convention Relating to the Status of Refugees of 1951 – Australia’s obligations under the Convention – whether the Applicant is a person to whom Australia owes obligations under the Convention – whether the Applicant committed a serious non-political crime outside his country of refuge – people smuggling – examination of the events surrounding the conviction of the Applicant for “people smuggling” - found that the Applicant had a lesser role in the operation and did not initially know the purpose of the trip – held that the Applicant’s conduct could not be considered as of such a serious nature to negate any protection obligations towards him – decision of the Respondent is set aside – Applicant is not excluded from the provisions of the Convention by reason of Article 1F(b) of the Convention.
Convention Relating to the Status of Refugees 1951 Article 1F
Acts Interpretation Act 1901
Migration Act 1958 ss 5(1), 29, 36, 65, 232A, 496
Migration Regulations 1994, Schedule 2
Migration Legislation Amendment Act (No 1) 1999
Arquita v Minister for Immigration and Multicultural Affairs 106 FLR 465
Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 71 ALD 41
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
S v Refugee Status Appeals Authority [1998] 2 NZLR 291
Re SRBBBB and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1066
REASONS FOR DECISION
26 March 2004 Mr RP Handley, Deputy President Summary
1. The Applicant, “SRCCCC”, was a fisherman in Sri Lanka. He was one of the crew of nine (including the captain) on a boat that carried 24 “boat people” from Sri Lanka to Australia, arriving near Coral Bay, Western Australia, on 18 April 2001. The Applicant was employed on a temporary basis. He claims his role was to fish on the return journey to Sri Lanka, although he acknowledged helping prepare food for the crew and passengers on three or four occasions on the outward journey. After the “boat people” were landed, one of the boat’s engines developed mechanical problems and the boat ran out of fuel. They therefore put in to the Cocos Islands.
2. On arrival on the Cocos Islands, the Applicant and other crew members were detained and charged with facilitating the “bringing to Australia of a group of five or more people” contrary to the Migration Act 1958 (“the Act”). The Applicant was convicted in the Perth District Court on 31 August 2001 and, on 19 September 2001, was sentenced to three years and six months imprisonment with a non-parole period of one year and nine months commencing on 29 April 2001.
3. On 28 January 2003, the Applicant was released from prison and taken into immigration detention. On 11 April 2003, he applied for a protection visa. This was refused on 22 July 2003 on the ground that he had committed a serious non-political crime – the offence under the Act – outside his country of refuge, and was thereby excluded from the protection afforded to refugees by the Refugees Convention.
4. The Respondent, the Minister for Immigration, Multicultural and Indigenous Affairs, contends that the crime of which the Applicant was convicted was “serious” and non-political.
Background
5. The Applicant was born in Sri Lanka on 26 June 1971 and is aged 32. He is single and has never been married. He worked as a fisherman from the age of about 20. In February 2001, he approached the captain of a fishing boat, the “Mariyan Niranjani”, looking for work as a temporary hand. The captain asked him to start work the next day (T p45). However, once they were at sea, he was told that they were not going fishing but were taking people to Australia and would then fish on the return journey. He was told that he would be paid 50,000 Sri Lankan rupees (approximately Aus$1,000) for his work, which was that of a general hand. The Applicant said, on learning this, he did not want to remain on the boat but he had no real option but to do so.
6. The boat left Sri Lanka with 17 passengers. However, one engine developed mechanical problems after about 10 days at sea and they had to stop for repairs. The captain, who had offered him the job on the boat, left at this stage because he had not been paid. When the boat resumed its journey, a further seven passengers had joined the boat, taking the total number of “boat people” to 24. The passengers reportedly paid up to about $10,000 each. The voyage to Australia took approximately another 21 days (T p75). When the boat arrived close to the shore of Western Australia, the 24 “boat people” were taken ashore in a dinghy. They were told that they were near the town of Geraldton and that it was not far to walk. The boat had in fact landed near Coral Bay, approximately 140 kilometres south of Exmouth, where the 24 “boat people” were found walking, in a dehydrated state, some days later (T pp54-55).
7. The boat, with the Applicant still aboard, then commenced its return journey to Sri Lanka. However, one engine again developed mechanical problems and they ran out of oil and were very low on diesel. The captain therefore decided to go to the Cocos Islands to refuel. When they arrived there, the boat was confiscated (T p55) and later destroyed by Australian authorities.
8. The Applicant was detained at the Cocos Islands Detention Centre. After questioning, he was charged under s 232A of the Act with facilitating the bringing to Australia of a group of five or more people knowing those people were unlawful non-citizens (T p63). On 31 August 2001, before the District Court of Western Australia, the Applicant pleaded guilty to the charge of “did facilitate the bringing to Australia of a group of 24 people and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Migration Act 1958” (T p63). On 19 September 2001, the Applicant was sentenced by Chief Judge Hammond to a term of three years and six months imprisonment with a non-parole period of one year and nine months, the sentence deemed to have commenced on 29 April 2001 (T p62). While in prison, the Applicant provided information to the Australian Federal Police. He claims to have informed them of all he knew of the people smuggling operations and gave them the names of the two people whom he knew as the organisers (T p46). He states that despite the promise of a payment of 50,000 rupees for crewing the boat, he was never in fact paid.
9. The Applicant was released from prison on 28 January 2003, but immediately taken into immigration detention and transferred to the Perth Immigration Detention Centre (T p13). He was subsequently transferred to the Baxter Immigration and Processing Centre, Port Augusta, South Australia, where he was at the time of the hearing.
10. On 11 April 2003, the Applicant lodged an application for a protection (class XA) visa seeking protection from having to return to Sri Lanka (T p20). In answer to Question 41 “What do you fear may happen to you if you go back to that country?”, the Applicant said he feared that he would be killed by the supporters of the two organisers whom he had named to the Australian Federal Police. He stated “I need to be protected. Because I assisted authorities in Australia my life is in danger” (T p63).
11. On 28 April 2003, an onshore protection officer of the Respondent advised the Applicant that he was considering refusing his application for a protection visa as a result of his conviction for people smuggling and inviting him to respond (T p64). On 21 May 2003, Kerry Murphy, Solicitor, of Craddock Murray Neumann Lawyers, made submissions on his behalf (T p80). These submissions stated that the Applicant “is at most, a low-key player in the offence … he was not an organiser” and that because of the assistance that he provided to the authorities concerning the people smugglers, he has a genuine belief that his life would be in danger if he were returned to Sri Lanka (T p82). The Applicant also submitted two letters from his sister in Sri Lanka stating that various members of the family had heard that relatives of the “organisers” whose names the Applicant gave to the authorities were awaiting his return (T p84).
12. On 22 July 2003, a delegate of the Respondent decided to refuse the grant of a protection visa to the Applicant on the ground that the Applicant had committed a serious non-political crime outside his country of refuge. Accordingly, the delegate found the Applicant is not a person to whom Australia owes protection obligations pursuant to the exclusion afforded by Article 1F(b) of the Convention relating to the Status of Refugees (“the Refugees Convention”) (T pp6-18). On 1 August 2003, the Applicant lodged an application for a review of this decision by the Tribunal (T p1).
13. At the hearing, the Applicant was represented by Chandra Jayawardena, Solicitor and Migration Agent, and the Respondent was represented by Andras Markus, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together a Statutory Declaration by the Applicant dated 24 September 2003 (A1) tendered by the Applicant at the hearing. The Applicant gave oral evidence by videoconference from Baxter Detention Centre.
The Relevant Law
14. Section 36(1) of the Act provides for a class of visas to be known as “protection visas”. Section 36(2) states:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
15. Section 65 requires the Minister to grant a visa where satisfied that there is a valid application which meets all statutory requirements and regulatory criteria. Schedule 2 of the Migration Regulations 1994 specifies the criteria which are to be satisfied before visas of various classes will be granted. The Applicant applied for a protection (class XA) visa.
16. The Migration Regulations provide in Schedule 2, clause 866.221, that among the criteria to be satisfied at the time of the decision are:
866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
In clause 866.111, “Refugees Convention” is stated to mean “the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees”.
17. Article 1A (2) of the Refugees Convention defines a “refugee” as a person who:
Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …
18. However, Article 1 of the Convention also excludes certain persons from the protection obligations that State Parties agree to afford refugees. In particular, Article 1F states:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
…
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
The Applicant’s Evidence
19. The Applicant said he attended school until Year 6, leaving at the age of 12 or 13 without attending secondary school. He lived at home with his parents until the age of 20. His father was a truck driver and the Applicant spent a year working with him learning this work. However, at the age of 21, he started work as a fisherman. For the next 10 years, he worked as a fisherman for various employers. His first job was as a cook on a fishing boat but, while aboard, he learned the trade of fishing – using nets, line fishing, unloading fish etc.
20. The Applicant said fishermen do not usually get paid wages as such. Their reward is a share of the profits from each catch after the deduction of expenses. For example, the owner of the boat might take a 50% share of the profits and the other 50% might be shared among members of the crew. The Applicant said that in 2001 his average earnings were about 15,000 to 20,000 rupees per month based on one fishing trip per month involving 15 to 20 days at sea.
21. The Applicant said that from 2001 he did not work for a particular employer. He chose to undertake temporary work when available from one of a number of employers. He would obtain temporary work by going in the early morning to the daily fish market near his village. He knew some of the boat crews there and would ask around about available work. In mid March 2001, when at the fish market inquiring about the availability of temporary work, the Applicant met with Gerard, whom he knew as the captain of a fishing boat. Gerard said there was work on his boat and told him to be at the boat two hours before its planned departure early next morning. The Applicant did not ask how he would be paid for the trip. He assumed his pay would, as was customary, be a share of the profits from the catch.
22. The Applicant reported at the fishing boat at about 3.00am the next morning, stowed his gear and went to sleep in the sleeping quarters that were part of the engine room on the deck of the boat. The boat left port at about 5.00am. When the Applicant woke about an hour later at 6.00am, it was daylight, the boat was about two kilometres out to sea but had stopped with the shore still in sight. He saw two smaller boats carrying passengers heading towards the fishing boat. This had never happened before during his time as a fisherman so he asked the captain, Gerard, what was going on. Gerard told him they were taking passengers to Australia and to keep quiet about it.
23. The Applicant said he asked Gerard why he had not been told earlier: if he had known about this, he would not have come. Gerard said after they had taken the passengers to Australia, they would fish on the way back and it was for this purpose that he had been employed. He would be paid 50,000 rupees for the trip. The Applicant told the Tribunal he was not in a position to argue about his situation. One of the smaller boats ferrying the passengers had returned to shore; the other had been taken on board the fishing boat. The Applicant could not have swum ashore so he kept quiet and kept to himself: he would get involved in the fishing on the return journey.
24. Embarking the passengers, none of whom the Applicant knew, took about 30 minutes. The fishing boat then resumed its voyage. Of the nine crew aboard, he knew the captain, Gerard, and three others who were from his village. These four were acquaintances rather than friends, whom he had met while working as a fisherman.
25. After about 13 days at sea, one of the boat’s two engines developed mechanical problems and Gerard decided to turn back to Sri Lanka for repairs. There was radio and telephone communication equipment aboard and he arranged to be met about two kilometres offshore from the port of Kirinda to the south south east of Sri Lanka. When they arrived off Kirinda, they were met by smaller boats carrying men to repair the engine. Mariyan Fernando, the son of the owner of the fishing boat, came aboard with seven more passengers. The repair of the engine took six to seven hours. The boat then resumed its journey and headed for Australia.
26. The Applicant was not immediately aware that Gerard had returned to shore and that Mariyan Fernando had taken over as the captain of the boat. The Applicant learned later from other members of the crew that Gerard left the boat because those organising the trip had refused to make him an upfront payment. The Applicant acknowledged that it might also have been possible for him to go ashore at this stage. However, it was over 200 miles from Kirinda back to his home at Negombo and he had no money and few clothes.
27. From Kirinda, the journey to Australia took about another 21 days. The Applicant said, as a temporary hand, he would not ordinarily get involved in other work on board other than that for which he had been employed – fishing. He therefore occupied himself by reading newspapers and talking with the others on board. The only work he did during this time was on three or four occasions to help in the preparation of food. He did not assist in general duties on the boat such as cleaning or serving the food. This was done by others and would not normally be expected of a temporary hand.
28. The Applicant said he learned from talking to the others on board that the two organisers of the trip were Mariyan Fernando and David Rajah, both of whom are from Negombo and known to be involved in people smuggling. The Applicant learned that the passengers had paid between 300,000 and 500,000 rupees for their passage to Australia, and that the organisers were involved in arranging for another group to be smuggled ashore in Australia.
29. The boat stopped about two kilometres off the West Australian shore and the 24 passengers were transferred to shore by motorised dinghy. All the crew and passengers got together to lower the dinghy into the water. It took two trips to ferry all the passengers to shore, an operation that took three to four hours.
30. After delivering the passengers, the captain said they would return to Sri Lanka and catch fish en route. However, after travelling for one and a half days, one of the boat’s engines again developed mechanical problems and stopped operating. So they hoisted a sail and continued with the remaining engine. But when, after eight or nine days, they were running out of engine oil and were low on diesel, the captain decided to head for the Cocos Islands to refuel. He could speak good English and spoke with the police on the Cocos Islands, and when they arrived about a day later, he was told to anchor offshore. The captain was taken ashore by the police and when he returned, he told the crew he had spoken by phone with people in Sri Lanka and had arranged for money to be sent to pay for the fuel. However, they were all then detained by the police and taken ashore.
31. The Applicant was asked why he had declined to answer questions from the police on the Cocos Islands. He said he was frightened to answer questions and relied on advice from the captain, Mr Fernando. Moreover, he did not want to tell his story because he was in detention with the captain and other crew members. However, he told the police that he was prepared to give evidence in court. He did not then understand Australian law. Two other members of the crew did make statements and had a lot of problems with Mr Fernando as a result. The Applicant pleaded guilty, having been advised by Mr Fernando that if they pleaded not guilty, they might have to spend many years in prison. Mr Fernando said the lawyer’s advice was that the maximum sentence for a guilty plea would be 18 months but that after serving six months, they would be permitted to return to Sri Lanka.
32. The Applicant said all nine crew members had the same lawyer who came to the prison. Mr Fernando translated what he said. The Applicant never spoke to the lawyer with the assistance of an interpreter. He said the lawyer would attest to this.
33. The Applicant said that after the court proceedings were concluded, he offered to make a statement to the Australian Federal Police. This was for a number of reasons: first, when he asked Mr Fernando for the 50,000 rupees which had been promised to be paid to his family in Sri Lanka, Mr Fernando refused; second, he felt Mr Fernando had made use of him and got him into trouble because the Applicant had not initially been told the object of the trip; and, third, whilst initially he wanted to return to Sri Lanka without criticising Mr Fernando, the Applicant changed his mind when Mr Fernando started criticising him and blaming him for what went wrong.
Discussion of the Relevant Law and Facts
34. The issue for the Tribunal to decide is whether the Applicant is subject to the exclusionary provisions set out in Article 1F of the Refugees Convention. Relevantly, this requires the Tribunal to determine whether it should be satisfied that “there are serious reasons for considering” that the Applicant has committed a war crime or a crime against humanity. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563, French J said:
… “serious reasons for considering” that suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts.
In Arquitav Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 478, Weinberg J said, that there must be strong evidence before the decision-maker upon which it could reasonably and properly be concluded that the Applicant has committed the crime alleged. However, the evidence need not be of such weight as would be required to persuade the decision-maker on the balance of probabilities or beyond reasonable doubt.
35. In the Applicant’s case, the exclusionary provision relied on by the Respondent is Article 1F(b) – that “he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.
36. There is no question that the Applicant was charged with and convicted of an offence under s 232A of the Act. The issue, however, is whether he committed a “serious non-political crime” for the purposes of Article 1F(b). Section 232A states:
232A. A person who:
(a)organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42 (1) applies; and
(b)does so reckless as to whether people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years
or 2,000 penalty units, or both.
37. This offence was inserted into the Act by the Migration Legislation Amendment Act (No 1) 1999. In the Second Reading Speech for the Bill made in the House of Representatives on 30 June 1999 (A4), Peter Slipper MP said:
These new provisions are primarily aimed at those who profit from people trafficking – those who, for a fee, organise individuals or groups to enter Australia illegally.
38. The Tribunal notes that the UN High Commissioner for Refugees (“UNHCR”), Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1988) emphasises that the aim of the Article 1F(b) exclusion clause "is to protect the community of the receiving country from the danger of admitting a refugee who has committed a serious common crime” (paragraph 151). As to the meaning of “serious non-political crime”, the Handbook states:
155. What constitutes a ‘serious’ non-political crime for the purposes of this exclusion clause is difficult to define, especially since the term ‘crime’ has different connotations in different legal systems. In some countries the word ‘crime’ denotes only offences of a serious character. In other countries it may comprise anything from petty larceny to murder. In the present context, however, a ‘serious’ crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b) even if technically referred to as ‘crimes’ in the penal law of the country concerned.
156. In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.
157. In evaluating the nature of the crime presumed to have been committed, all the relevant factors – including any mitigating circumstances – must be taken into account. It is also necessary to have regard to any aggravating circumstances as, for example, the face that the applicant may already have a criminal record. The fact that an applicant convicted of a serious non-political crime has already served his sentence or has been granted a pardon or has benefited from an amnesty is also relevant.
39. The UNHCR Guidelines on the application of exclusion clauses says this of the UNHCR Handbook referred to above:
51. The Handbook specifies that a “serious” crime refers to a capital crime or a very grave punishable act. Examples would include homicide, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, serious injury to persons, evidence of habitual criminal conduct and other similar factors. It is evident that drafters of the 1951 Convention did not intend to exclude individuals simply for committing non-capital crimes or non-grave punishable acts. The seriousness of the crime can be deduced from several factors, including the nature of the act, the extent of its effects, and the motive of the perpetrator. The overriding consideration should be the aim of withholding protection only from persons who clearly do not deserve any protection on account of their criminal acts. While there are risks in seeking to define crimes which would not be thus covered, crimes such as petty theft, or the possession and use of soft drugs should not be grounds for exclusion under Article 1F(b), because they do not reach a high enough threshold to be regarded as serious.
40. One of the often cited secondary authorities on this area of law is James C Hathaway, The Law of Refugee Status (Butterworths,1991). Professor Hathaway states at 91:
UNHCR defines seriousness by reference to crimes which involve significant violence against persons, such as homicide, rape, child molesting, wounding, arson, drugs traffic and armed robbery. These are crimes which ordinary warrant severe punishment, thus making clear the Convention’s commitment to the withholding of protection only from those who have committed truly abhorrent wrongs.
41. Turning to what the Federal Court has said about the meaning of the word “serious” in this context, in the decision of the Full Court in Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 71 ALD 41, Merkel J, with whom Madgwick and Conti JJ agreed, cited with approval, at paragraph 38, a decision of the New Zealand Court of Appeal in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 297-300:
Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences.
42. In NADB (supra) at paragraph 39, Merkel J went on to cite with approval the decision of French J in Dhayakpa (supra) at paragraph 563:
The adjective “serious” in Article 1F(b) involves an evaluative judgement about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgement.
Finally, in NADB (supra) at paragraph 41, Merkel J said:
In determining whether the disqualifying crime is “serious” it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes.
43. In Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173, a decision of the Full Federal Court, Branson J, with whom Sackville J agreed, said at page 185 that the question of whether particular conduct is a “serious non-political crime”:
… may be answered by reference to notions of serious criminality accepted within the receiving State.
44. The Applicant has been convicted of an offence under s 232A of the Act. As the Full Federal Court made clear in Minister for Immigration and Multicultural Affairsv SRT (1999) 91 FCR 234, the Tribunal may not “impugn the conviction” (paragraph 25) made by a court:
At least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The obvious example is a finding as to the circumstances of the commission of the offence (paragraph 40).
45. However, as Branson J recognised in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at paragraph 45, these limitations:
do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of the conduct which led to the convictions and the significance of such conduct so far as the risk of recidivism is concerned.
46. Since the Applicant has not asserted that there is any political aspect to the crime, the issue is whether the crime is “serious”. As Mr Markus submitted, the starting point in a consideration of whether the Applicant has committed a “serious” crime should be his conviction and sentence. All members of the crew of the fishing boat pleaded guilty to the offence. As a result, there was no very detailed account of the facts by the sentencing judge, Chief Judge Hammond of the West Australian District Court.
47. Chief Judge Hammond found that there were 24 passengers and nine crew, including the Applicant, on the fishing boat “Mariyan Niranjani” which landed the passengers at Coral Bay and was subsequently detained at the Cocos Islands. The 24 unlawful immigrants each paid $10,000 for their passage. On landing, they were told they were near the town of Geraldton and that they should turn left when they reached the road. They were not near Geraldton and were found wandering in a dehydrated state by a tourist some days later (T pp54-55).
48. The Chief Judge found that apart from the captain of the boat, “All the other men carried out lesser roles in the voyage such as labouring duties, cooking and catching fish” (T p56). In sentencing the men the Chief Judge commented:
that the voyage was a very great distance over 20 days in which both the passengers and crew must have existed in cramped conditions, and at enormous risk. (T p57)
He said photographs of the boat taken by the Federal Police “show the very bad unhygienic and unsafe conditions in which this voyage was undertaken” (T p55). The Chief Judge referred to the enormous expense of dealing with such a matter, issues of quarantine and, above all, the issue of deterrence and sending a message to the organisers of people smuggling that such activity will be the subject of “strong punishment”. He noted that the boat had been destroyed and stated:
Leaving aside the captain for a moment all of the men in the dock are people of little or no education who exist in a hand to mouth way in a third world country, and to these men the promise of some small financial reward was irresistible considering their personal circumstances. They have to be treated in a different way to the captain. I am also conscious of the hardship that imprisonment in this country will inflict upon their families back in Sri Lanka.
…
With respect to the captain I believe that as a starting point a term of 8 years’ imprisonment is indicated but because of his early plea of guilty that is reduced to 5 and a half years. I set a non-parole period of 33 months.
49. The Chief Judge then proceeded to discuss the appropriate sentence for six of the crew, including the Applicant, who had not cooperated by providing information to the police. In the Applicant’s case, he took part in a record of interview but declined to answer questions. The Chief Judge found their personal circumstances to be “more or less identical”. While their involvement was less than the captain’s:
nevertheless, because of the seriousness of the offence the term starting point is that of 5 and a half years but it is reduced to a term of 3 and a half years in recognition of the very prompt plea of guilty. (T p58)
The Chief Judge set a non-parole period of 21 months. The other two crew members who cooperated by providing further information were given a non-parole period of 15 months “to acknowledge their cooperation” (T 59).
50. The Tribunal notes the Chief Judge’s comments about the crew members “being people of little or no education who exist in a hand to mouth way in a third world country”. The Applicant gave evidence that he left school at the age of 12 or 13 without going on to secondary education. When he was offered temporary work on the fishing boat by the then captain, Gerard, he assumed he would be paid in the customary way by receiving a share of the profits at the conclusion of what he believed would be a fishing trip. It was only after he had joined the crew and the boat was at sea that he learned the true purpose of the trip when he saw passengers being brought aboard from small boats and asked Gerard for an explanation. At this stage, the fishing boat was two kilometres offshore and, realistically, the Tribunal accepts that it would have been difficult for the Applicant to withdraw. Moreover, although the Applicant did not acknowledge this, as Chief Judge Hammond recognised, the financial reward promised to the Applicant by Gerard – of 50,000 Sri Lankan rupees – was not inconsiderable in the context of his average monthly earnings of 15,000 to 20,000 rupees.
51. The Applicant acknowledged that he could possibly have tried to leave the boat when it was stopped two kilometres offshore from Kirinda when the engine was being repaired. However, he said he had no money and few clothes and it would have been difficult for him to get home to Negombo which was about 200 miles north east of Kirinda.
52. The Applicant claimed that he was employed to fish on the return journey to Sri Lanka and the only work he did on the outward journey to Australia was to assist in the preparation of the food on three or four occasions. The Tribunal finds it somewhat improbable that the Applicant, as a member of the crew, would not have been required to undertake daily work on the boat.
53. The Applicant said he and other members of the crew were advised by the captain, Mr Fernando, to plead guilty on the basis that they would receive a more lenient sentence and be able to return to Sri Lanka after six months. The Applicant appears to have followed Mr Fernando’s advice in declining to answer questions put to him during his interview with police. The Applicant claimed that all communication with their lawyer was through Mr Fernando and that he did not have the benefit of an interpreter.
54. While at first, the group of Sri Lankan accused stuck together, later there seems to have been dissension, particularly after their sentencing. The Applicant asked Mr Fernando for the 50,000 rupees he was promised to be paid to his family in Sri Lanka. Mr Fernando refused. The Applicant states he felt Mr Fernando had made use of him and got him into trouble notwithstanding that the Applicant had not initially been told the purpose of the trip. While initially he wanted to return to Sri Lanka without criticising Mr Fernando, the Applicant changed his mind when Mr Fernando began criticising him and blaming him for what went wrong.
55. The Applicant said he therefore contacted the Australian Federal Police offering to provide information (letter dated 30 January 2002 – T p92). He subsequently made a statement to the Police on 26 March 2002 (T p73) identifying David Rajah and the Fernando family in Negombo as people smugglers. In a Statutory Declaration made on 24 September 2003 (A1), the Applicant said he was told by the Australian Federal Police officer that his statement would not be released to the Sri Lankan authorities. However, if such a promise was made, it was not honoured because, on 2 April 2002, two officers from the Sri Lankan Police came to see him at Bunbury Prison and he made a detailed statement to them. On learning of this, Mr Fernando apparently harassed and threatened the Applicant and he was transferred to another prison “for my safety”. David Rajah was later charged by Sri Lankan Police, and convicted and sentenced to seven months imprisonment. The Applicant claims that, as a result, his life would be at risk from the families of the two smugglers should he return to Sri Lanka.
56. The Tribunal is required to make an evaluative judgement about the crime committed by the Applicant (Dhayakpa (supra) at 563). Is his crime “serious” in the sense that it is “of such a nature as to result in Australia not having protection obligations to persons who commit such crimes” (NADB (supra) at paragraph 41)? In answering this question, regard will be had to “notions of serious criminality” in Australia (Ovcharuk (supra) at 185). However, as the Tribunal stated in Re SRBBBBand Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1066 at paragraph 56, a distinction should be drawn between the offence in law and the particular criminal conduct of the Applicant that led to his conviction for that offence: it is the latter that it is the focus of the Tribunal’s evaluative judgement.
57. The “people smuggling” offence of which the Applicant was convicted is undoubtedly a serious one in the eyes of the Australian Government and the Parliament. This is reflected in the heavy maximum penalty of 20 years imprisonment. However, it would appear from the relevant Second Reading Speech, quoted above, that the maximum penalty is intended to have a deterrent effect and is aimed primarily at the organisers of people smuggling. As Chief Judge Hammond recognised in his sentencing remarks, aside from the captain of the boat, the other crew members played “lesser roles in the operation such as labouring duties, cooking and catching fish” (T p56).
58. In the Applicant’s case, the Tribunal considers that his crime is a more modest one when one considers the circumstances and nature of his involvement. The Tribunal accepts that he did not initially know the principal purpose of the trip. He learned this when the boat was already at sea. Nevertheless, there was at least one opportunity when he could have extracted himself from the operation – when the boat was off Kirinda having its engine repaired. That he chose not to do so is a reflection of his being some distance from home and with little money. There was also, as Chief Judge Hammond recognised, the lure of 50,000 rupees, equivalent, according to the Applicant’s evidence, to about three months wages.
59. The Applicant states that his role was to fish on the return journey to Sri Lanka and that it was for this reason that he was hired. He claims the only work he undertook on the outward journey was to prepare food on three or four occasions; otherwise, he kept himself occupied reading newspapers or talking with the others on board. The Tribunal finds it improbable that he did so little over a period of about a month before the passengers were landed on the West Australian coast, and considers it more likely that his involvement was greater than this. Nevertheless, in the Tribunal’s opinion, neither by Australian standards nor by the standards espoused by the UNHCR could his criminal conduct be described as of such a serious nature as to negate any protection obligations Australia may have pursuant to the Refugees Convention. The Tribunal therefore determines that the Applicant is not subject to the exclusionary provisions set out in Article 1F of the Convention. This does not, of course, mean that the Applicant meets the definition of a “refugee” in Article 1A (2) of the Convention. This was not an issue before the Tribunal because it has no jurisdiction to determine such an issue.
I certify that the preceding 59 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 8 March 2004
Date of Decision 26 March 2004
Solicitor for the Applicant Mr C Jayawardena
Solicitor for the Respondent Mr A Markus
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