Citation: [2011] NSWDC 183
Court: District Court of New South Wales
Date: 20 October 2011
Judge(s): Judge Haesler SC
Background
Three accused were each charged under s 232A(1) of the Migration Act 1958 (Cth) with facilitating the bringing of a group of five or more non-citizens to Australia. The vessel they crewed, SIEV 120/Banyo, was intercepted by the Australian Navy off Ashmore Reef in March 2010 and escorted to Christmas Island. It carried 94 Afghan nationals as passengers, none of whom held an Australian visa.
All 94 passengers subsequently applied for protection visas. By the time of the hearing, 85 had been granted protection visas and 9 had applications pending.
The accused were subsistence farmers acting as crew. Their defence was that they believed the vessel was heading to an Indonesian island, not Australia, and that they had no knowledge of or control over the destination.
Legal Issues
- Whether the 94 Afghan passengers had a "lawful right" to come to Australia within the meaning of s 232A(1) of the Migration Act, notwithstanding that none held a visa at the time of travel.
- Whether Australia's international obligations under the Refugee Convention and the Universal Declaration of Human Rights conferred on the passengers an individual right to enter Australia to seek asylum.
- Whether any ambiguity in the term "lawful right" in s 232A should be resolved in favour of the accused, leaving open the possibility that refugees possessed such a right independently of s 42 of the Migration Act.
Decision
Issue: Meaning of "lawful right" under s 232A(1)
The defence argued that the term "lawful right" in s 232A was not exhaustively defined by s 42, and that international law, read alongside s 36 of the Migration Act, left open the possibility that refugees held a lawful right to enter Australia to seek asylum. They contended that any statutory ambiguity on this question should be resolved in favour of the accused.
The Crown submitted that domestic law, specifically the Migration Act, provided the relevant framework. It argued that the Act expressly links lawful entry to the holding of a visa, and that absent the s 42 exceptions (which did not apply), a non-citizen arriving without a visa does not do so lawfully.
Issue: Effect of international law on the question of individual entry rights
Judge Haesler accepted the Crown's position. Relying on a line of High Court authority, his Honour confirmed that under both customary international law and Australian domestic law, individuals, including those seeking asylum, cannot assert a personal right to enter a foreign state. The right of asylum in international law is a right belonging to states, not individuals.
His Honour held that while the Migration Act acknowledges Australia's Refugee Convention obligations and provides mechanisms such as the protection visa system, it does not create a right to enter Australia to claim those protections. A non-citizen arriving without a visa and outside the s 42 exceptions does not arrive lawfully. The fact that such a person may later be entitled to apply for, and be granted, a protection visa does not retroactively confer or imply a right of entry. The applications for directed verdicts of acquittal were therefore rejected.
Orders Made
- Applications to direct verdicts rejected.
Key Takeaways
- Under s 232A(1) of the Migration Act 1958 (Cth) as it then applied, a non-citizen who travels to Australia without a visa and does not fall within the exceptions in s 42 does not do so lawfully, regardless of whether that person may subsequently qualify for refugee protection.
- International law, including the Refugee Convention and the Universal Declaration of Human Rights, does not confer on individuals a personal right to enter a foreign state. The District Court confirmed this principle, consistent with multiple High Court decisions, and applied it to reject the argument that asylum seekers held a "lawful right" to come to Australia.
- A future entitlement to apply for a protection visa, or the subsequent grant of such a visa, does not import into the Migration Act a present lawful right of entry at the time of travel.
- The Migration Act's recognition of Australia's international obligations towards refugees operates through the domestic visa and protection framework, not by conferring independent rights of entry outside that framework.
- The reasoning in this decision aligns with the contemporaneous District Court decision in R v Asse Ambo [2011] NSWDC 156, which reached a similar conclusion in relation to the successor provision, s 233C of the Migration Act.
Legislation and Cases Referenced
Legislation
- Migration Act 1958 (Cth)
- Evidence Act 1995 (NSW)
Cases
- 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