Citation: R v AMBO [2011] NSWDC 156
Court: District Court of New South Wales
Date: 28 September 2011
Judge(s): B J Knox SC DCJ
Background
The accused, an Indonesian national from Sulawesi, was charged under s 233C of the Migration Act 1958 (Cth) with facilitating the bringing of a group of 53 non-citizens to Australia without lawful right to come. The group was apprehended by the Royal Australian Navy in waters off Christmas Island in February 2011, travelling from Indonesia aboard a suspected illegal entry vessel. None of the 53 passengers held Australian visas, and many had disposed of or destroyed their passports before embarking.
At the conclusion of the Crown case, defence counsel applied for a directed verdict of acquittal. The application turned on the third element of the offence: whether the 53 passengers "had or have no lawful right to come to Australia."
Legal Issues
- Whether asylum seekers travelling to Australia without visas possess a "lawful right to come to Australia" within the meaning of s 233C of the Migration Act, by virtue of their entitlement to seek asylum or refugee status.
- Whether a subsequent grant of asylum or refugee status to any of the passengers could operate retrospectively to establish that they had a lawful right to come to Australia at the time of entry.
- Whether the Crown was required to prove, as part of the offence, that none of the passengers could ever qualify for asylum or refugee status.
Decision
Knox SC DCJ rejected the application for a directed verdict of acquittal. His Honour held that the phrase "lawful right to come to Australia" in s 233C refers to the position at the time the persons entered Australian waters, not to any entitlement that might arise later through an asylum or refugee determination process.
The Court accepted the Crown's position that s 42 of the Migration Act requires all persons entering Australia to hold a valid visa, subject to limited exemptions. None of the 53 passengers held visas at the relevant time. The accused's argument that s 503, rather than s 42, governed what constituted unlawfulness was rejected: s 503 concerns specific categories of applicants and does not displace the general visa requirement.
On the defence argument that the phrase "had or have" in s 233C contemplates a future, retrospective assessment of lawful right, his Honour disagreed. The Explanatory Memorandum to the legislation indicated that the phrase is equivalent to "does not or would not comply with entry requirements under Australian law," with the words "would not" addressing persons who had already entered, not importing a future entitlement to claim protection.
His Honour acknowledged that once in Australia a person has the right to claim asylum, but held that this does not alter the fact that they arrived unlawfully and without a visa, thereby becoming unlawful non-citizens. Any different interpretation, the Court observed, would require either legislative amendment or a contrary ruling from a higher court.
Orders Made
No orders were made in this decision. The ruling was limited to rejecting the application for a directed verdict of acquittal, leaving the matter to proceed to the jury.
Key Takeaways
- The District Court held that "lawful right to come to Australia" in s 233C of the Migration Act is assessed at the time of entry into Australian waters, not by reference to any subsequent asylum or refugee determination.
- A subsequent grant of refugee or protected status does not retrospectively confer a lawful right to come to Australia on passengers who arrived without valid visas at the time of entry.
- Under s 42 of the Migration Act, the absence of a valid visa at the time of travel is the operative criterion for establishing that a person had "no lawful right to come to Australia" for the purposes of s 233C.
- The entitlement to seek asylum upon arrival in Australia is a distinct right that arises once a person is present in the country; it does not constitute a pre-existing lawful right to travel to Australia in the first place.
- In reaching this conclusion, the Court noted that an interpretation to the contrary would require either legislative amendment or a decision from a higher court, and that it was bound to apply the law as it then stood.
Legislation and Cases Referenced
Legislation:
- Migration Act 1958 (Cth), particularly ss 42, 232A, 233C, 36, 503
- Criminal Code (Cth)
Cases:
- DPP v Jeky Payara (2011), Victorian Court of Appeal (stated case)
- R v Mahnedra [2011] NTSC 57
- Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225
- Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
- Minister for Immigration v Ibrahim (2000) 204 CLR 1
- NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161
- Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32
- Kartinyeri v The Commonwealth (1998) 195 CLR 337
- Koowarta v Bjelke Petersen (1982) 153 CLR 168
- T v Home Secretary [1996] AC 742
- Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68