CATCHWORDS IMMIGRATION - whether s. 189(2) applied in circumstances where a boat containing "boat people" was directed into Australian waters by an Australian naval vessel - inference of intention to make a landfall in Australia. Migration Act 1958, s. 5(1) and s. 189(2) PENG RONG HUA v. MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS AND ANOR NG 328 of 1995 NG 329 of 1995 Burchett J. Sydney 16 May 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 328 of 1995 ) NG 329 of 1995 GENERAL DIVISION ) BETWEEN: PENG RONG HUA Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent CORAM: Burchett J. PLACE: Sydney DATE : 16 May 1995 REASONS FOR JUDGMENT BURCHETT J.: Section 189 of the Migration Act 1958 contains in subs. (2) a provision as follows: "If an officer reasonably suspects that a person in Australia but outside the migration zone: (a) is seeking to enter the migration zone; and (b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person." Acting in reliance upon this provision, officers of the Immigration Department detained a number of persons, who appeared to be ethnic Chinese, speaking the Cantonese language, on a boat which has been referred to as the "Heron", at a point within 12 nautical miles of Bathurst Island and apparently some 40 nautical miles north of Darwin. The persons in the boat had been originally, I am told, refugees from Vietnam, who had gone to China and been received there but had later fled by sea from that country also in the "Heron". They had arrived in their boat somewhere in the vicinity of Bathurst Island, when they were intercepted by an Australian Naval vessel, HMAS Gawler. No evidence has been given by any officer or seaman present on the "Gawler". Evidence has been given in the applicant's case suggesting that the point of interception was well outside Australian territorial waters, and that it was the "Gawler" which directed the "Heron" towards the Australian Coast. There is some conflict of evidence as to what happened when the "Heron" was, for a second time, intercepted, this time whilst it was still in company with the "Gawler". It was then intercepted by an Australian customs vessel, carrying both customs officers and immigration officers. On the occasion of this interception, the "Heron" was, as I have already indicated, within 12 nautical miles of Bathurst Island. Although there is some dispute as to precisely what was said, I do not think it is necessary for me to resolve the question since, on any view, it is clear that those on board the "Heron" desired, if possible, to come to Australia, and were heading towards Australia before they were first intercepted. They say that they had a secondary intention, if Australia would not accept them, to travel on in search of refuge, either in New Zealand or in some other country, or even to attempt to colonize some uninhabited island in the Pacific. It seems to me it would be to defy credibility to infer otherwise than that the primary intention of endeavouring to come to Australia involved a firm intention, at the time when the "Heron" was already within a quite short distance of Darwin, to endeavour to make a landfall in Australia. Even if I were to come to a conclusion, on the probabilities, that the secondary intention which has been contended for also existed, it would remain the case that this vessel was headed for Darwin, or the vicinity of Darwin, and that there was an intention to apply to enter Australia. Counsel for the applicant in each case - and I should interpolate here that there were two cases, one brought by an individual, Peng Rong Hua, and the other brought by the same individual as representative of a large number of other persons who were travelling on the "Heron" - submitted that the action of the naval vessel in directing the "Heron", during the last stage of its voyage and immediately before it was intercepted by the customs vessel, made it impossible for the immigration officers reasonably to suspect that the persons on the "Heron" were seeking to enter the migration zone. I think in all the circumstances that is simply not so. I think it was perfectly open to the officers to have that suspicion, and to have it reasonably. I think, indeed, that the circumstances would have made it difficult for them to imagine anything else. That being so, my conclusion is that s. 189(2) quite precisely applied. (I should for completeness add that "the migration zone" is a defined expression, the definition of which is to be found in s. 5(1) of the Act, and that it would include the piers and similar structures at Darwin harbour.) Although a number of arguments were addressed to me as to the effect of s. 91A and subsequent sections, I do not think it is necessary to explore the questions raised by those provisions, since counsel for the applicant conceded that, unless he could succeed in showing that s. 189(2) did not apply, the injunction sought in these two proceedings could not be granted. In the circumstances, I think the proper order is to refuse that relief. Subject to further order - and I reserve the right to apply for some further order at the next directions hearing if so advised - there will be no order as to the costs of today. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Date: 24 May 1995 Counsel for the Applicant: Mr M.R. Gracie Solicitor for the Applicant: A.V. Fletcher Counsel for the Respondents: Mr R.R.S. Tracey Q.C. Solicitor for the Respondents: Australian Government Solicitor Date of hearing: 16 May 1995