Dhayakpa, Tenzin v Minister for Immigration and Ethnic Affairs [1995] FCA 942

IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) No. WAG 134 of 1994

B E T W E E N: TENZIN DHAYAKPA Applicant and THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: FRENCH J. PLACE: Perth DATE: 9 November 1995

REASONS FOR JUDGMENT Background Tenzin Dhayakpa was born in Tibet on 6 July 1945. Upon the Chinese invasion of Tibet in 1960, he and his family fled to India. Many of his family were killed during that flight by Chinese troops. Dhayakpa says he became a member of a Tibetan resistance group based in India. He married in South India in 1976. He and his wife had four children. In 1989, Dhayakpa entered into an arrangement with a man called Arjun at Kathmandu. He agreed with Arjun and three other men, Madan, Khatri and Pun that he and they would obtain visas to enter Australia and would carry heroin from Bangkok to Sydney via Melbourne. Dhayakpa agreed to take 200 grams of heroin to be concealed in packages carried in his body. He was to receive $140,000 for the heroin thus imported by himself and the other men and would bring the money back to Arjun. Dhayakpa entered Australia at Perth on 5 March 1989 using a Nepali passport with a visitor's visa under a false name, Ramesh Shrestha. He was arrested at Perth Airport, charged and subsequently convicted in the District Court of Western Australia on an indictment which alleged: 1. Between 1 December 1988 and 6 March 1989 at Perth and other places outside Australia, the applicant (Ramesh), Madan Kumar Shrestha ("Madan"), Bijay Kumar Pun ("Pun") and Madan Krishna Khatri ("Khatri") conspired with each other and divers other persons to import into Australia prohibited imports to which s.233B of the Customs Act 1901 (Cth) ("the Act") applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, contrary to s.233B(1)(cb) of the Act. (2) On 5th March 1989 at Perth Ramesh did import into Australia prohibited imports to which s.233B of the Act applied, namely narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, contrary to s.233B(1)(b) of the Act.