R v Husen Baco & Ors  NTSC 75
PARTIES: The Queen
Husen Baco, Imus,
Mbau, Mikel and
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 21040049, 21040047 and 21040050
DELIVERED: 28 September 2011
HEARING DATES: 26 September 2011
JUDGMENT OF: KELLY J
Evidence Act s 26L – determination of questions of law before jury empanelled
Migration Act s 232A(1)(b) – whether passengers had “a lawful right to come to Australia” – determined in accordance with Australian law Migration Act – no lawful right to come to Australia
Migration Act 232A – facilitating the bringing to Australia of 5 or more people to whom s 42(1) applies – elements of the offence – whether necessary to prove knowledge that passengers are “people to whom s 42(2) applies” - s 232A(1)(b) provides fault element of recklessness – intention/knowledge not required
Criminal Code (Cth), s 4.1(1)(a), s 4.1(c), s 4.1(2), Chapter 2, s 5.2, s 5.1(1), s 5.6.(1), s 5.6(2)
Evidence Act (NT), s 26L
Migration Act 1958 (Cth), s 4A, s 5(1), s 5.6, s 13(1), s 14(1), s 42(1), s 46A, s 68, s 232A, s 232A(1)(b)
Application v Minister for Immigration (1997) 190 CLR 225; Minister for Immigration v Ibrahim (2000) 204 CLR 1; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; Nguyen Tuan Cuong v Director of Immigration  1 WLR 68; R v Saengsai-Or (2004) 61 NSWLR 135; SZ v Minister for Immigration and Cultural Affairs (2000) 101 FCR 342; T v Home Secretary  AC 742; considered
Plaintiff: W Abraham QC with N Batten
Defendant (Husen Baco): I Read with F Kepert
Defendants (Mbau & Mushollah) I Read with J Adams
Plaintiff: Commonwealth Director of Public Prosecutions
Defendants: Northern Territory Legal Aid Commission
Judgment category classification: A
Judgment ID Number: KEL11018
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
R v Husen Baco & Ors  NTSC 75
IMUS HUSEN BACO, MIKEL MBAU and HENDRYK MUSHOLLAH
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 September 2011)
 Each of the accused is charged with one count alleging that he facilitated the bringing to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applies, namely 43 people, being reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act. The allegation is that the accused were the captain and crew of the Cahaya Purnam, a vessel on which they carried the 43 people from Indonesia to Australia.
 Two questions of law have been set down for preliminary determination pursuant to s 26L of the Evidence Act. The first is whether five or more of the people onboard the Cahaya Purnama when it was intercepted by Australian authorities “had or have a lawful right to come to Australia” within the meaning of s 232A(1)(b). It is common ground that the Crown must establish that five or more of the passengers had no lawful right to come to Australia, or the prosecution cannot succeed.
 The second question concerns the elements of the offence which the prosecution must prove. Is it necessary for the Crown to prove that the accused intended to bring into Australia a group of people to whom subsection 42(1) applies – ie non-citizens without visas – or does it only need to establish that the accused were reckless as to that fact?
 For the purposes of determining these preliminary questions, I am to assume that the facts as set out in the Crown’s opening can be established. Those facts include the following.
 On 16 May 2010 the Ashmore Guardian, which is an Australian Customs and Border Protection Vessel, detected a vessel, the Cahaya Purnama, at a position of 12 06.41 South/123 00.24 East, being approximately 6.85 nautical miles from outer lagoon of the Ashmore Reef Marine National Nature Reserve, Territory of Ashmore Reef and Cartier Islands, Australia.
 At about 1:49 p.m. Australian Central Standard Time (“ACST”), Australian Customs and Border Protection Service (“ACBPS”) officers boarded the Cahaya Purnama where they found 43 passengers. At 1:52 p.m. the position of the Cahaya Purnama was at 12 09.05 South/123 00.20 East. (It is common ground that the place where the Cahaya Purnama was intercepted was in the Territory of Ashmore Reef and Cartier Islands within Australia.)
 The 43 passengers consisted of 25 Afghan men, 1 Afghan woman, and 17 Afghan children, 13 boys and 4 girls. Each of the passengers had paid to be brought to Australia. They informed the ACBPS officers that they were Afghan refugees on their way to Ashmore Island.
 Also aboard the Cahaya Purnama were 4 Indonesian male crew members including the accused, Imus Husen Baco, who was the Captain, and the two co-accused, Hendryk Mushollah and Mikel Mbau. The fourth crew member was a juvenile and has been returned to Indonesia.
 The Cahaya Purnama had sailed from Indonesia having departed between 7 and 13 days before being intercepted by the ACBPS officers on 16 May 2010.
 None of the 47 persons who were onboard the Cahaya Purnama when it was intercepted on 16 May 2010 had (or had applied for) valid visas authorising them to travel to, enter, or stay in Australia: none of them was an Australian citizen.
 Each of the three co-accused has been charged with an offence under s 232A of the Migration Act which provides as follows.
232A Organising bringing groups of non-citizens into Australia
(1) A person who:
(a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and
(b) does so reckless as to whether the people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.
(2) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
 The defence argument is that the passengers were asylum seekers claiming refugee status and that, consistently with Australia’s obligations under international law they had the right to present themselves to the lawful Australian authorities and apply for asylum.
 In written submissions, the defence relied for this proposition upon international law: the Refugee Convention, Articles 31 and 33, the Protocol against the Smuggling of Migrants by Land Sea and Air, 2004, Article 8(2), and the Universal Declaration of Human Rights 1948 (“UDHR”), Article 14(1).
 It seems to me that the reference in s 232A(1)(b) to a “lawful right to come to Australia” must mean a right under Australian law, the relevant law being contained in the Migration Act. However, even if one were to accept the contention of the defence that the source of such a “lawful right to come to Australia” might be found in international law, I do not think the defence can identify any such right in international law.
 There is nothing whatsoever in Article 8(2) of the Protocol Against the Smuggling of Migrants by Land Sea and Air, 2004 which would support the asserted right. That Article deals with the rights of a State Party that has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law is engaged in smuggling migrants by sea.
 UDHR Article 14(1) provides that “everyone has the right to seek and to enjoy in other countries asylum from persecution”. However, of itself, that Article confers no legal rights on anyone, and it is clear that neither under Australian law nor under international law, does a refugee have a legal right to “enjoy …… asylum from persecution” in Australia.
 In NAGV, Gleeson CJ, McHugh, Gummow, Hayne, Callinan & Heydon JJ stated at p 169  that:
“… customary international law deals with the right of asylum as a right of states not of individuals; individuals, including those seeking asylum, may not assert a right under customary international law to enter the territory of a State of which that individual is not a national”
“… it has long been recognised that, according to customary international law, the right of asylum is a right of States not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State or which that individual is not a national. The proposition that every State has competence to regulate the admission of aliens at will was applied in Australian Municipal Law from the earliest days of this Court”.
 Gummow J said in Applicant v Minister for Immigration:
“The predominant view (including that of the Supreme Court of the United States ….. and the House of Lords ….) is that decisions to admit persons as refugees to the territory of member states are left to those states.”
“Hence the recent statement by Lord Mustill:
“[A]lthough it is easy to assume the appellant invokes a ‘right of asylum’, no such right exists. Neither under international law nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.”
Gummow J also quoted Lord Goff of Chievley and Lord Hoffman:
“Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any contracting state. It is always a status relative to a particular country or countries.”
 In SZ v Minister for Immigration and Cultural Affairs, the full court of the Federal Court held that an applicant for a protection visa has no existing right to enter or remain in Australia, but only such rights as are conferred on him or her by the Migration Act, and, further, that the Migration Act does not incorporate the Refugees Convention into Australian municipal law so as to make it a direct source of rights and obligations under Australian law. Branson J, with whom Beaumont and Lehane JJ agreed, said:
“The contentions of the applicant were unequivocally based on the assumption that if he is a person to whom Australia has protection obligations under the Refugees Convention he has a right of asylum in Australia. This assumption is not well founded. The Refugees Convention provides a definition of the term ‘refugee’ in Art. 1, but does not create any general right in a refugee to enter and remain in the territory of a Contracting State.”
Branson J quoted the above statement by Lord Mustill in T v Immigration Officer, and continued:
“The position is the same in Australia under both international law and municipal law. The position under the Refugees Convention is explained above. As is explained below, the Act does not give any person who falls within the definition of ‘refugee’ in the Refugees Convention any right to enter or remain in Australia.”
 Section 42(1) of the Act provides:
(1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.
 Section 36 makes provision for the granting of protection visas if the Minister is satisfied of certain matters (including that the applicant is a non-citizen to whom Australia has protection obligations under the Refugees Convention); s 68 makes it clear that a visa, when granted, does not have retrospective effect.
 On the basis of the above statutory provisions and authorities, Mr Read for the defence properly conceded that the asylum seekers on board the Cahaya Purnama had no legal right to asylum in Australia. However, in the terminology of UNDHR Article 14(1), he contended that they had “the right to seek ….. in other countries (including Australia) asylum from persecution”, and that for this right to have any substance, it must include the right to come to Australia, present themselves to the proper authorities, and ask for asylum – ie make application for a protection visa. In other words, to use an analogy from the law of trespass to property, although the passengers had no right to enter the house, they had a legal right to come to the house and knock at the door. Mr Read contended that the English and Australian cases referred to above were limited in effect to the proposition that a refugee has no legal right to asylum (ie no legal right to refuge “in the house”); they should not be construed as establishing or supporting the proposition that a refugee has no lawful right to apply for asylum (ie no right to “knock at the door”).
 The Crown contends that those authorities are not so limited and I am forced to agree. So far as the asserted right to apply for asylum is said to entail the right to enter Australia for that purpose, I can find no support for that alleged right in the material relied on by the defence, and it seems to me that the provisions of the Migration Act referred to above and the authorities referred to above are all to the contrary.
 Articles 31 and 33 of the Refugees Convention, relied on by the defence as supporting a legal right to enter and apply for asylum, provide, relevantly, as follows.
REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGEE
The Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
 These Articles do not, in their terms, purport to confer rights on refugees, but to impose obligations on contracting states. As explained above, these provisions have not been incorporated into Australian law, but even if they had been so incorporated, they do not confer any right to apply for asylum, let alone a right of entry into Australia for the purpose of making such an application. In fact, Article 31 pre-supposes that the initial entry of refugees into the territory of a contracting state may have been illegal: all that Article does is to impose an obligation of the contracting states not to impose penalties for such illegal entry, provided the conditions in the Article are satisfied.
 The defence gains no more assistance from Article 33. It obliges the contracting state not to return a refugee to the frontiers of territories where his or her life or freedom would be threatened on account of the matters set out in the Article: it does not confer a right to apply for asylum or a right of entry into a contracting state for that purpose.
 There is nothing in the Migration Act which supports the existence of any right to ‘knock at the door’. In fact, in amendments to the Act in recent years, the legislature has gone to what some may consider extreme lengths to ensure that there is no such right, particularly for asylum seekers who arrive by sea. The Cahaya Purnama was intercepted by Australian authorities in the Territory of Ashmore Reef and Cartier Islands, which is “an excised offshore place”, so that the passengers (who were non-citizens without visas) became “unlawful non-citizens” and “offshore entry persons”. Section 46A of the Act provides that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non-citizen. So far from recognising an implied right to come to Australia to make application for asylum, this amounts, essentially, to a specific prohibition against coming to Australia to make such an application: any application for a protection visa made by asylum seekers in those circumstances will be invalid, unless the Minister thinks it is in the public interest to allow a specified type of application to be made and gives the appropriate notice.
 Accordingly, the answer to the first question: “Did the passengers have a lawful right to come to Australia?” must be “No”.
What are the elements of the offence: does the Crown have to prove an intention to facilitate the travel of people to Australia “to whom s 42(1) applies”?
 The defence contends, for reasons which will be explained, that, for the Crown to succeed, it must prove that the accused knew the passengers were non-citizens of Australia and did not have visas permitting them to enter Australia. The Crown contends that it need only prove that the accused were reckless as to whether or not the passengers had valid visas which would have permitted them to travel to Australia lawfully. The argument concerned the application of the “fault element” provisions in the Commonwealth Criminal Code; the characterisation of the phrase “people to whom s 42(1) applies”, as either “conduct” or “a circumstance in which conduct occurs”; and whether the concept in s 232A(1)(b) of being reckless as to whether people had a “lawful right to travel to Australia” referred to the same concept as the phrase “persons to whom s 42(1) applies” in s 232A(1)(a).
 Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (which sets out the general principles of responsibility) applies to all offences against the Act.
 Section 4.1(1) of the Criminal Code provides that a physical element of an offence may be:
(b) a result of conduct; or
(c) a circumstance in which conduct occurs.
 Section 4.1(2) provides that “conduct” means an act, an omission to perform an act, or a state of affairs.
 The fault element for a particular physical element of an offence may be intention, knowledge, recklessness or negligence. The law creating an offence may specify the fault element for a physical element of that offence. If the law creating the offence does not specify a fault element for a particular physical element, then the default fault elements in s 5.6 apply. If the physical element consists only of conduct, then the fault element is intention; if the physical element consists of a circumstance or a result, then the fault element is recklessness.
 The Crown analyses the offence created by s 232A in this way.
(a) The first physical element consists of conduct – namely facilitating the bringing to Australia of a group of five or more people.
(b) As no fault element is specified for that physical element, by default, the fault element for that physical element is intention.
(c) The next physical element is that at least five of those people, being people to whom s 42(1) applies (ie non-citizens with no visas), had no lawful right to come to Australia. The Crown characterises this physical element as “a circumstance in which that conduct occurs”.
(d) The Crown says that the fault element for that circumstance is specified in s 232A (1)(b) – ie recklessness as to whether the people had, or have, a lawful right to come to Australia. (If the Crown is correct in characterising the requirement that at least 5 of the people had no lawful right to come to Australia as a circumstance in which that conduct occurs, then recklessness would be the default fault element for that physical circumstance in any case.)
 The defence characterises the offence created by s 232A differently.
(a) The defence says that the first physical element is a composite one – ie facilitating the bringing to Australia of a group of five or more people to whom s 42(1) applies – and consists entirely of conduct. Under this analysis, the requirement that at least five of the people are people to whom s 42(1) applies is “a state of affairs” within the meaning of the definition of “conduct” in s 4.1(2) of the Criminal Code.
(b) The defence contends that no fault element is specified for this composite physical element and, as it consists entirely of conduct, the fault element applying by virtue of s 5.6(1) is intention. Since a person has intention with respect to conduct only if he or she “means to engage in that conduct”, the upshot of all that is that the Crown must prove that the accused knew that each of at least five of the passengers was a non-citizen without a visa.
(c) The defence contends that s 232A(1)(b) specifies an additional physical element– that the people had no lawful right to come to Australia - for which a fault element, namely recklessness, is specified.
 The defence relies on the decision of the New South Wales Court of Criminal Appeal in R v Saengsai-Or in which the offence of importing a prohibited import was treated as one in which the physical element was importing the prohibited substance – not of simply “importing” with the fact that the import was of a prohibited substance being a circumstance in which the conduct occurs. Hence, there being no fault element specified in the relevant section, it was necessary for the Crown to prove actual knowledge that the substance being imported was (in that case) heroin, and not merely recklessness as to whether it was heroin. The defence submits that, logically, a similar analysis should apply to the offence created by s 232A. The conduct which is the target of s 232A is facilitating the travel to Australia of people who to whom s 42(1) applies – not facilitating travel simpliciter. The status of the people (like the nature of the substance being imported in Saengsai-Or) is an essential part of the conduct which is prohibited, not simply a circumstance in which the conduct takes place. I tend to agree with that analysis. However, it is not necessary for me to decide because, for the reasons set out below, I am of the view that the default fault elements do not apply, as the legislature has specified the fault element for the offence in s 232A(1)(b).
 The Crown’s position is that the phrase “people to whom s 42(1) applies” in s 232A(1)(a) means precisely the same thing as the concept in s 232A(1)(b) that “the people had, or have, [no] lawful right to come to Australia” – concerning which the Crown must prove the accused were reckless. The defence contends that this cannot be so, for a number of reasons.
(a) If the legislature had intended the two phrases to mean exactly the same thing, it would have used the same words in each paragraph.
(b) The defence contends that, in fact, there may well be people to whom s 42(1) applies (ie they are non-citizens without visas) who do have a lawful right to come to Australia. Although counsel for the defence pointed to no specific provisions of either Australian or international law which conferred such a right, Mr Read referred to the possibility of people being, for example, rescued at sea and lawfully brought to Australia under the provisions of the International Convention for the Safety of Life at Sea 1974.
 Ms Abraham QC for the Crown contended that these rather vaguely described circumstances could not give rise to any rights under Australian law to come to Australia; that one must look to the Migration Act to ascertain whether a person has a right to travel to or to enter Australia; and that anyone to whom s 42(1) applies, ipso facto has “no lawful right to come to Australia”. I consider that that submission is correct. Section 42(1) provides a prohibition on non-citizens who do not have a visa in effect, travelling to Australia. It is expressed to be “subject to subsections (2), (2A) and (3)”. Those are the only exceptions. Subsections (2) and (2A) make it plain that “subsection (1) does not apply” to the classes of people described in those subsections, so people who have a lawful right to travel to Australia because of the matters set out in sub-sections (2) or (2A) are not “people to whom s 42(1) applies” for the purposes of the offence created by s 232A. Subsection (3) provides that the regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa. Subsection (3) does not clearly state that “subsection (1) does not apply” to people permitted to travel to Australia without a visa by virtue of those regulations, but the fact that s 42(1) is expressed to be subject to subsection 3 has the same effect.
 As “people to whom s 42(1) applies” all, ipso facto, have no lawful right to travel to Australia, it seems to me that the legislative intention in enacting s 232A(1)(b) must have been to specify the fault element for the physical element in s 232A(1)(a) consisting of the fact that five or more of the people whose travel to Australia was facilitated, were people to whom s 42(1) applied. A construction which required the Crown to prove that the accused intended to facilitate the travel of “people to whom s 42(1) applies” (ie that the accused knew the passengers were non-citizens without visas) but only required the Crown to prove that the accused were reckless as to whether those people had a lawful right to come to Australia (ie that the accused was reckless as to whether the passengers were non-citizens without visas) would be absurd.
 As to the contention that if the legislature had intended the two terms to mean the same thing, it would have used the same words, there may have been good reasons for using different words for the same concepts, for example a desire to avoid any suggestion that an accused must know the details of the statutory provisions before he could be found to have been reckless as to whether or not passengers had a lawful right to travel to Australia under those provisions. In any case this contention is not sustainable in light of the above analysis of s 42.
 I therefore consider that the elements of the offence under s 232A which the Crown needs to prove in relation to each of the accused are:
(a) that at the times and places specified in the indictment, the accused facilitated the bringing to Australia of a group of five or more people (a physical element consisting of conduct);
(b) that the accused intended to engage in the conduct comprising that first physical element (the default fault element for conduct);
(c) that at least five of the people whose travel to Australia was facilitated by the accused were non-citizens without visas in effect; and
(d) that the accused was reckless as to whether those people had a lawful right to come to Australia (ie were non-citizens without a visa in effect).
 As s 232A(1)(b) specifies the fault element set out in paragraph (d) above for the physical element in paragraph (c) above, there is no occasion to apply the default fault elements in the Criminal Code and it does not matter whether it is characterised as part of the proscribed conduct or as a circumstance in which that conduct takes place.
 They subsequently referred to this vessel as Suspected Illegal Entry Vessel 150 (SEIV 150).
 Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force on 22 April 1954).
 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161.
 Minister for Immigration v Ibrahim (2000) 204 CLR 1.
 at p 4 para .
 at p 72 para .
 (1997) 190 CLR 225 at 273.
 T v Home Secretary  AC 742 at p 745 quoted by Gummow J at p 273 – 274.
 Nguyen Tuan Cuong v Director of Immigration  1 WLR 68 at p 79.
 (2000) 101 FCR 342.
 Para  on p 350.
 Convention Relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (registered on 22 April 1954).
 Para  on p 348.
 Migration Act s 5(1).
 Migration Act ss 13(1) and 14(1).
 Migration Act s 5(1).
 Inserted by the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).
 s 46A(2).
 Code s 4.1 (1) (c).
 Code s 5.1(1).
 Code s 5.6(1).
 Code s 5.6(2).
 Code s 5.2.
 (2004) 61 NSWLR 135.
 International Convention for the Safety of Life at Sea 1974, 01 November 1974, International Maritime Organization (entered into force 25 May 1980): This was the only possible source of any such rights referred to, and no reference was made to any specific provisions of that Convention. In fact there is nothing in that Convention which provides any right of entry to contracting states of people rescued at sea. The closest that the Convention comes to anything of that nature is an undertaking in Chapter V, Regulation 15 by each Contracting Government to “ensure that any necessary arrangements are made for coast watching and for the rescue of persons in distress at sea round its coasts”.