District Court New South Wales Medium Neutral Citation: R v Oke LADOKE, R v Ardi LA LAU and R v Haris LA SAID [2011] NSWDC 183 Hearing dates: 20 October 2011 Decision date: 20 October 2011 Jurisdiction: Criminal Before: Judge Haesler SC Decision: Applications to direct verdicts rejected. Catchwords: CRIMINAL - Judgment on applications to direct verdicts - Lawful right - People smuggling Legislation Cited: Migration Act 1958 (Cth) Evidence Act 1995 (NSW) Cases Cited: R v Asse Ambo [2011] NSWDC 156 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 T v Secretary of State for Home Department [1996] AC 742 Sale v Haitian Centers Council Inc (1993) 509 US 155 Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 Category: Interlocutory applications Parties: Regina Oke Ladoke Ardi La Lau Haris La Said Representation: Mr B Neild (Crown) Mr N Steel (Offender Ladoke) Mr G Brady (Offender La Lau) Mr M Pickin (Offender La Said) File Number(s): 2010/331771 2010/331650 2010/331965 Judgment 1Each accused is charged pursuant to the then applicable s 232A(1) Migration Act 1958 (Cth). Each count is framed in identical terms. 2Critically s 232A(1) requires the Crown to prove that a person who facilitates the bringing or coming of a group of five or more people to Australia to whom s 42(1) applies does so, "reckless as to whether the people had or have a lawful right to come to Australia". Section 42(1) notes that subject to subss 2, 2A and 3, which are not presently relevant, "a non-citizen must not travel to Australia without a visa that is in effect". 3The bulk of the Crown case against each accused is set out in an Agreed Facts document tendered pursuant to s 191 Evidence Act 1995 (NSW) (Exhibit B). It is not in dispute that SIEV 120/ Banyo was intercepted by the Australian Navy off Ashmore Reef on 24 March 2010 and escorted to Christmas Island. It was then crewed by the three accused and carried ninety-four Afghani nationals as passengers. None of the ninety-seven people on board had applied for an Australian visa authorising their travel to, or entry or stay in, Australia prior to 24 March 2010. 4Every one of the ninety-four passengers has subsequently applied for a protection visa: section 39 Migration Act. As at 13 October 2011 eighty-five of the passengers had been granted protection visas and nine had their protection visa applications pending. 5Each defence counsel opened their client's case to the jury. The critical factual issue to be determined is whether the Crown have established beyond reasonable doubt that each accused intended to facilitate the bringing of a group of more than five Afghani nationals to Australia. It is the defence case that each accused believed that the passengers were being taken to an island within Indonesia, not Australia. Each accused was a subsistence farmer and not a regular seaman. As crew they had no say in, or knowledge of, the vessel's destination or why they were carrying passengers. 6It is axiomatic that if each accused's intention did not involve knowledge that the vessel's destination was Australia they had not turned their minds to the question of whether those persons had a lawful right to come to Australia. 7The Crown must establish all the elements of the offence. This means the Crown must prove each accused either: (a)knew or believed that the group of five or more people had no lawful right to come to Australia, or (b) (i)was aware of a substantial risk that the group of five or more people had no lawful right to come to Australia, and; (ii)having regard to the circumstances known to him, it was unjustifiable to take that risk. 8It is the defence contention in each accused's case that each of the ninety-four passengers had, or have, a lawful right to come to Australia and that consequently each accused was neither reckless with respect to the circumstance of their passengers' status or intended or had knowledge that those people had, or have, no lawful right to come to Australia. If that contention is correct the Crown have not proved an essential element of their case. 9The accused have not sought to meet any evidential burden placed on them of establishing s 42(1) Migration Act does not apply. As I understand it, it is not said that any of the subsections or regulations in that section apply to the passengers on SIEV 120/ Banyo . Rather, it is submitted that as a matter of law each of the passengers had a lawful right to come to Australia. 10At the conclusion of the Crown case counsel for each accused made an application for a directed verdict. Mr Brady put the argument on behalf of Mr La Lau; Mr Pickin and Mr Steel adopted it. Mr Brady also adopted the arguments put by the defence in a similar application recently made to Judge Knox SC, although it is accepted that that case concerned the new s 233C Migration Act, s 23A having been repealed: see R v Asse Ambo [2011] NSWDC 156. 11The question I must ask is: Did a non-citizen who has not applied for a visa pursuant to s 42(1) Migration Act, and who does not fall within the exceptions in 232A(2), have a lawful right to come to Australia? Submissions 12Mr Brady in oral argument and in his written submissions (MFI 2) said in summary: "(a) The term 'lawful right' is not defined nor are the critical terms used in s 42. Different tests must have been intended to apply when s 42 and 232A(1)(b) are interpreted. (b) Section 42 only relates to visa requirements required when travelling to Australia. It does not exclude the possibility that a non-citizen may come to Australia lawfully through some other circumstance. (c) As statutory provisions should be interpreted so they are in conformity and not in conflict with established rules of international law and as Australia has adopted the Refugee Convention, in particular Article 31, and is a signatory to the Universal Declaration of Human Rights which gives a right to seek and enjoy in other countries asylum from persecution, refugees with such rights have a lawful right to come to Australia to seek such asylum. (d) Nothing in s 36 Migration Act, which clearly recognises Australia's obligations under the Refugee Convention (as amended by the Refugee Protocol) indicates that the person seeking refugee protection does so unlawfully. (e) That applying international law in s 36 leads to a conclusion that the purposes of the Migration Act are consistent with the refugee's right to seek asylum in Australia and s 42, in its terms or taking a purposive approach to its interpretation, does not mandate against this conclusion." 13From these points he asks that I draw the following conclusions: (1) A reading of s 42 does not lead to the conclusion that it unambiguously conflicts with Australia's obligations under international law, particularly when that law is read in conjunction with s 36. (2) Bearing in mind these are criminal charges, any ambiguity should be resolved in favour of the accused. It is the accused's submission that there are possible interpretations for the expression "lawful right" in s 232A other than a valid visa or an exception under s 42. (3) The Crown have not excluded that the refugees, that is, the passengers on SIEV 120/Banyo, had no lawful right to come to Australia. 14For the Commonwealth Director of Public Prosecutions, Mr Neild, in his written submissions (MFI 3), draws my attention to the provisions of the Migration Act, specifically, its objects provisions in ss 4 and 42 and the terms of the now repealed 232A, particularly 232A(1), which adopts as part of its provision s 42. In addition, he notes the Migration Act links, in ss 13 and 14, the definitions of "lawful" and "lawful non-citizens" to their possession of visas. He also notes the Act's clear recognition of Australia's rights and obligations in the Universal Declaration of Human Rights and the Refugee Convention and Protocol which are set out in various provisions of the Act. 15The Crown submits that, as to s 232A, its construction, in particular the provision of two distinct fault elements and the incorporation of s 42 into subs (1), provides for and anticipates the critical elements which the Crown must, and in his submission have, proved in this case. 16The Crown draws my attention to the decisions of the High Court in relation to customary international law and the status of asylum seekers, in particular, the statements of the Court confirming that customary international law deals with the right of asylum as a right of states not of individuals and the consistent opinions of the High Court of Australia and the Courts in the United Kingdom and the United States that no individual, including those seeking asylum, may assert a right to enter the territory of a state of which that individual is not a national: see NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at [14], Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, T v Secretary of State for Home Department [1996] AC 742, Sale v Haitian Centers Council Inc (1993) 509 US 155, 188[9], and Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225. 17The Crown reminds me, in particular, of what was said by Gummow J in Applicant A at p 273: "...as the title of the Convention suggests, it is concerned with the status and civil rights to be afforded to refugees within member states". 18He concludes by submitting that the appropriate focus when considering the question of whether a person has a right to come to Australia should be domestic law: here, the Migration Act. That Act, absent exceptions which do not apply here, requires a person coming to Australia either to be a citizen or hold a visa. Applying the Act and relevant principles to the facts here, this means, he submits, that the passengers on SIEV 120/Banyo had no legal right to come to Australia and no right to come to Australia without a visa and no right to come to Australia could be implied from Australia's acceptance of its international obligations to deal with the passengers according to the Convention and the Protocol once they arrived. Determination 19A non-citizen has a right to seek asylum in Australia. A non-citizen has a right to seek a visa to come to Australia or to come to Australia without a visa if they fall within an exception to s 42. A non-citizen within Australia without a valid visa has a right to apply for a protection visa, that is, seek asylum and claim refugee status. As I understand s 39 and the other provisions of the Migration Act a non-citizen who travels to Australia, when s 42 says they may not do so, does so unlawfully. Nevertheless, they commit no criminal offence by doing so. Once in Australia, they have the right to ask for and receive a protection visa but does that right, under international law, accepted and adopted by the Australian Parliament in s 39 of the Migration Act, mean they have a right to come to Australia in order to exercise that right? As I read the Act and the authorities, the answer to this, and thus the question asked in the present application, is "No". Neither the existing express right set out in s 39 nor any international customary law or available interpretation of the Migration Act creates, by necessary implication, this suggested implied right. 20The phrase "no lawful right to come to Australia" is not defined in the Migration Act or any other relevant Act. It has not, to date, been subject to determination or discussion by a superior court. I am informed that a Stated Case raising the issue before me is presently listed before the Victorian Court of Appeal. As I understand it, where Australian governments have entered into International Treaties it is accepted they and internationally recognised rights and obligations can apply to assist in the interpretation or application of domestic laws. Those implied rights and obligations can be overborne or contradicted by clearly expressed domestic legislation to the contrary: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 at 247 per Kiefel J. 21I must focus on the words of the section and the Act and its relevant statutory context which form the basis for this indictment. There is no ambiguity in the terms "non-citizen", "valid visa", "lawful right to come to Australia", in s 42 and the now repealed s 232A Migration Act . I interpret the section and its terms having regard to their meaning and purposes of the Act, some of which are empathically set out in s 4. 22In my opinion there is no basis in the Migration Act or international law or Australia's Treaty obligations to imply into the Act a lawful right to come to Australia in order to seek a protection visa. A person whose travel to Australia is precluded by operation of s 42 has a right, having arrived, to apply for a visa and refugee protection. That Australia is obliged by its Treaty obligations as incorporated in the Act to provide these rights, does not of itself confer a right to travel, that is come to Australia, unless the person falls within the exceptions set out in s 42 or its Regulations. 23The Migration Act provides for the acceptance of Australia's Treaty and other international obligations towards refugees. It does not, of itself, create any right to come to this country. As the decisions of the High Court of Australia referred to by the Crown make clear, individuals, including those seeking asylum or refugee status, may not assert a right under international customary law and, as I interpret the Act, domestic law, to enter a country of which that person is not a national: see NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161. 24Nothing in s 232A or the Act, which might be seen as contemplating or allowing for a future entitlement, imports into the Act a lawful right to come to Australia to claim that entitlement. Section 42 does not penalise a person who comes to Australia without a visa. It states simply, as a matter of fact and law, that a non-citizen must not do so. 25The Parliament of Australia, in s 42 Migration Act, has clearly stated that a non-citizen who arrives in Australia without a visa, who seeks to come to Australia and who does not fall within the exceptions set out in s 42, does not do so lawfully. Whether or not the person came to Australia with a valid visa does not preclude their applying for a protection visa as a refugee. No international or domestic law confers a right on a non-citizen to come to this country. To the contrary, the Migration Act specifically sets out to regulate in the national interest the coming into, and the presence in, Australia of non-citizens: see s 4(1). 26That a non-citizen who comes to Australia has rights recognised by domestic and international law to apply for refugee status does not of itself confer, directly or by implication, any right to enter this country and seek such asylum or status and would be contrary to the clear provisions and understood purposes of the Migration Act as applicable in March 2010. 27I have had the benefit of reading the decision of Judge B J Knox SC in R v Asse Ambo [2011] NSWDC 156 which deals with similar arguments raised in relation to the now applicable s 233C Migration Act. I share with Judge Knox SC the opinion that I am bound to apply the law as it applies at this time. I reject the application for directed verdicts of acquittal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2011