Tran v The Commonwealth

Case [2008] FCA 901

FEDERAL COURT OF AUSTRALIA

Tran v The Commonwealth [2008] FCA 901

CUSTOMS – MIGRATION – Automatic forfeiture of fishing boat engaged in transportation of unauthorised persons to Australia – whether Commonwealth’s failure to invoke condemnation procedure affects automatic forfeiture – whether acquisition of property results from automatic forfeiture

Acts Interpretation Act 1901 (Cth) s 15B
Commonwealth of Australia Constitution Act 1901 (Cth) s 51(xxxi)
Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 art 31(1)
Criminal Code Act 1995 (Cth) s 10.3(1)
Customs Act 1901 (Cth) ss 4AB, 185B, 203, 205, 229
Customs Consolidation Act 1876 (UK) ss 202, 226
Fisheries Management Act 1991 (Cth) ss 100(1), 100(2), 106(1)(a), 106A, 106C, 106E
Migration Act 1958 (Cth) ss 3B, 5, 42(1), 229(1), 232(1), 232A, 233, 261A, 261B, 261D, 261E, 261F, 261G, 261H, 261I
Federal Court Rules (Cth) O 29 r 2

Attorney-General of New Zealand v Ortiz and Others [1984] AC 1 referred to
Banwell v Erceg (1984) 1 NSWLR 90 referred to
Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 referred to
Burton v Honan (1952) 86 CLR 169 referred to
Cheatley v The Queen and Others (1972) 127 CLR 291 referred to
De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224 referred to
Dimella Constructions Pty. Ltd. v Stocker and Stocker (1976) 14 SASR 215 cited
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 referred to
Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia (1994) 179 CLR 155 referred to
Nguyen v R [2005] WASCA 22 referred to
Olbers Co Ltd v Commonwealth and Another (2004) 143 FCR 449 followed
Olbers Co Ltd v The Commonwealth of Australia and Another (2004) 136 FCR 67 followed
Powers v Maher (1959) 103 CLR 478 referred to
Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 179 CLR 270 followed
Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 referred to
The Annandale (1877) 2 PD 218 cited
The Commonwealth v Hazeldell Limited (1918) 25 CLR 552 referred to
Whim Creek Consolidated NL v Colgan and Another (1991) 31 FCR 469 referred to
Willey v Synan (1935) 54 CLR 175 cited

VAN TOL TRAN v THE COMMONWEALTH
NSD 494 OF 2007

COWDROY J
16 JUNE 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 494 OF 2007

BETWEEN:

VAN TOL TRAN
Applicant

AND:

THE COMMONWEALTH
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

16 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be stood over for directions on a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 494 OF 2007

BETWEEN:

VAN TOL TRAN
Applicant

AND:

THE COMMONWEALTH
Respondent

Continue reading Tran v The Commonwealth

Sign in free to access the full text

Details
AGLC
Tran v The Commonwealth [2008] FCA 901
Case
[2008] FCA 901
Decision Date

CaseChat Overview and Summary

Tran v The Commonwealth involved the Applicant, a Vietnamese citizen and ship owner, who had his ship, the Hao Kiet BL91693TS, destroyed by Australian authorities following an incident involving the transportation of Vietnamese nationals into Australian waters. The Applicant sought compensation under section 4AB of the Customs Act 1901 for the destruction of his ship, arguing that it was not forfeited under the Migration Act as his defence of sudden and extraordinary emergency had been successful.

The primary legal issue before the court was whether the ship was subject to automatic forfeiture under the Migration Act and if so, whether this forfeiture was valid given the Applicant's successful defence of sudden and extraordinary emergency. The court needed to determine whether the ship was forfeited under section 261A of the Migration Act, if the seizure and destruction complied with the procedural requirements of sections 261B and 261D, and if the ship was destroyed in accordance with section 261E.

The court held that the ship was indeed subject to automatic forfeiture under section 261A of the Migration Act due to the contravention involving unlawful non-citizens. However, the court noted that the seizure and destruction of the ship did not comply with the procedural requirements of sections 261B and 261D, as the Applicant did not receive a notice of seizure. Despite this, the court concluded that the destruction was permissible under section 261E of the Migration Act due to the serious difficulties in maintaining the vessel. Given that the Applicant successfully defended the charge under section 232A of the Migration Act by proving sudden and extraordinary emergency, the court found that the forfeiture was not applicable in this case.

The court ordered that the proceedings be stood over for directions on a date to be fixed. This outcome ensures that the Applicant's successful defence under section 10.3(1) of the Criminal Code Act 1995 (Cth) nullifies the forfeiture of his ship under the Migration Act, allowing him to pursue his claim for compensation under the Customs Act.

Orders

Orders of the court

1. The proceedings be stood over for directions on a date to be fixed.

Background

Background to the litigation

The parties have agreed that pursuant to O 29 r 2 of the Federal Court Rules (Cth) (‘the Rules’) the questions hereunder are to be determined separately from, and before, any other issues in the proceeding.AGREED FACTS The parties have formulated a statement of agreed facts for the purpose of determination of the agreed questions as follows:1.At all material times the Applicant was a Vietnamese citizen. 2.At all material times the Applicant was the owner of the ship with the markings Hao Kiet BL91693TS (“the Ship”).3.The Ship was at all material times a Vietnamese registered vessel and has never been registered for any purpose under a law of the Commonwealth or any State or Territory. 4.On or about 3 June 2003 53 (then) Vietnamese citizens including the Applicant (“Relevant Persons”), and one other person holding Australian citizenship (“Van Hoa Nguyen”), left Vietnam aboard the Ship bound for Australia.5.The Applicant was the master of the Ship on its journey to Australia.6.On or about 1 July 2003 the Ship arrived in Australia’s territorial sea.7.On or about 1 July 2003 the Ship was stopped by officers of the Australian Customs Service at a location that was within the “migration zone” as defined in the Migration Act.8.On or about 1 July 2003 officers of the Royal Australian Navy boarded the Ship and took the Relevant Persons off the Ship onto the HMAS Canberra where they were placed into immigration detention.9.To the Applicant’s knowledge, at all relevant times up to and including 2 July 2003 none of the Relevant Persons held a valid Australian visa.10.All of the Relevant Persons and Van Hoa Nguyen travelled on the Ship from Vietnam to the point at which it was stopped and boarded.11.On or about 2 July 2003 Commonwealth officers boarded the Ship and took control of the Ship where it was stopped. The team that took control of the Ship may have included an officer of the Australian Federal Police but otherwise comprised officers of the Australian Customs Service only. The officers which comprised the said team were not “authorised officers” within the meaning in sections 5 and 261B of the Migration Act nor were they officers who acted under an order by such an “authorised officer” within the meaning in the said sections. 12.At no point did the Applicant receive a Notice of Seizure in the form identified in section 261D of the Migration Act.13.On or about 4 July 2003 the Chief Executive Officer of the Australian Customs Service gave a direction to the Commanding Officer of the Australian Customs Vessel Roebuck Bay to destroy the Ship (“the direction”). The direction relevantly stated:I have reason to believe that the ship is in such poor condition that its custody or maintenance by the Commonwealth would involve an expense that would be likely to be greater than its value.14.On or about 8 July 2003 the Ship was destroyed by officers of the Australian Federal Police and/or Australian Customs Service.15.On or about 10 July 2003 the Applicant was issued with a notice from the Australian Customs Service which relevantly states:I must inform you that your ship with markings HAO KEIT BL91693TS was destroyed under section 185B(4) of the Customs Act 1901 on Tuesday 8 July 2003.The reason for destruction eventuated following consideration that led to the belief that the ship was in such poor condition that its maintenance by the Commonwealth would have involved expenses that would be greater than its value.You are also advised that compensation may be payable under Section 4AB of the Customs Act 1901. That provision provides for the payment of a reasonable amount of compensation in circumstances where property is acquired by the Commonwealth in accordance with the Customs Act 1901.16.The Secretary to the Department (“Secretary”) with the meaning of sections 5 and 261E of the Migration Act had no involvement in the destruction of the Ship. Neither has the Secretary given the Applicant any written notice (or any letter) in the form identified by section 261G of the Migration Act.17.In about July 2003, whilst held in immigration detention, each of the Relevant Persons applied for protection visas under the Migration Act. 18.On or about 28 October 2003 the Applicant and two other persons who had travelled to Australia aboard the Ship (Van Hoa Nguyen (“Mr Nguyen”) and Hoang Thanh Lai (“Mr Lai”)) were issued with indictments by the Commonwealth Director of Public Prosecutions for contraventions of section 232A of the Migration Act. The Applicant was charged with:Facilitating the bringing to Australia of a group of 5 or more people to whom subsection 42(1) of the Migration Act 1958 applied, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to section 232A of the said Act.19.On 6 November 2003 the Applicant wrote to the Australian Customs Service seeking compensation, pursuant to section 4AB of the Customs Act, for the seizure and destruction of his Ship. Since that date and, prior to the commencement of the present proceeding, the parties have exchanged various further correspondences in relation to the Applicant’s claim under section 4AB of the Customs Act.20.On or about 17 March 2004 the Applicant and Mr Nguyen were convicted of contravening section 232A of the Migration Act in the District Court of Western Australia. Mr Lai’s matter was dismissed.21.The Applicant and Mr Nguyen appealed against their convictions on the basis of a defence of sudden and extra ordinary emergency pursuant to section 10.3(1) of the Criminal Code Act 1995 (Cth) (“Criminal Code”). 22.On 16 December 2004 the Supreme Court of Western Australia Court of Criminal Appeal allowed the appeal of Mr Nguyen (Nguyen v R [2005] WASCA 22). 23.On or about 22 March 2005 the Crown conceded the Applicant’s appeal on the basis of the decision in Nguyen v R and the Applicant’s conviction was quashed. 24.By 2005, all of the Relevant Persons were granted Protection (Class XA) visas except for two who were granted Refugee and Humanitarian (Class XB) visas. 25.On or about 17 October 2005 on retrial the Applicant was acquitted by jury verdict because he established a defence to the offences, pursuant to section 10.3(1) of the Criminal Code in that he had brought the Relevant Persons to Australia in circumstances of sudden or extraordinary emergency. AGREED QUESTIONS FOR DETERMINATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COWDROY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

In contradistinction to the facts in Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 179 CLR 270, Tran submits that he successfully defended the charge under s 232A of the Migration Act since his defence relating to circumstances of sudden or extraordinary emergency succeeded under s 10.3(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’). THE MIGRATION ACT Division 13A of Part 2 of the Migration Act is entitled ‘Automatic forfeiture of things used in certain offences’. Subdivision A is entitled ‘Automatic forfeiture’, and s 261A which is the only section contained in such Subdivision relevantly provides:Forfeiture of things used in certain offences(1)The following things are forfeited to the Commonwealth: (a)a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i)the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non‑citizens; or (ii)the entry or proposed entry into Australia of one or more such persons; Subdivision B of Division 13A of Part 2 of the Migration Act is entitled ‘Seizure’. Section 261B contained in such subdivision relevantly provides:Seizure of things used in certain offences (1)An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a)the thing is forfeited under section 261A; or (b)the authorised officer reasonably suspects that the thing is forfeited under section 261A. Subdivision C of Division 13A of Part 2 of the Migration Act is entitled ‘Dealing with things seized as automatically forfeited’. Section 261D within this subdivision provides for a notice requiring an officer to give written notice of seizure of the thing to the owner or, if the owner cannot be identified after reasonable inquiry, to the person having possession or custody of the thing immediately before it was seized: see s 261D(1). Section 261D(3) provides:Notice of seizure(3)The notice must: (a)identify the thing; and (b)state that the thing has been seized; and (c)specify the reason for the seizure; and (d)state that the thing will be condemned as forfeited unless: (i)the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or (ii)within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e)specify the address of the Secretary. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261E provides:Dealing with thing before it is condemned(1)The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a)its custody or maintenance creates serious difficulties; or (b)the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. (2)If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions.