The case of SIEV 229 involved the arrival of 53 unlawful non-citizens who were brought from Indonesia to Australia by the accused, Mr Ambo, in February 2011. Court proceedings later revealed that Mr Ambo had been approached by another man and had been given IDR 1.9 million to locate a vessel to carry the smuggled migrants to Australia. To assist with this venture, Mr Ambo recruited his nephew.
The smuggled migrants travelled from Iran, Iraq or other locations to either Malaysia or Indonesia. Thereafter, they travelled around Indonesia in buses and stayed in various kinds of accommodation.
The vessel left from a beach in Java, Indonesia at night. SIEV 229 then travelled for some 60 hours from Indonesia to a point about 2000 yards within Australian territorial waters off Christmas Island where it was apprehended. The SIEV was accompanied by another vessel which provided it with assistance when it broke down.
Due to quarantine requirements, SIEV 229 was towed further out to sea and incinerated according to standard Royal Australian Navy procedures.
The Saudi Riyals (SAR) (unknown amount) found on the vessel belonged to the passengers and was forfeited to the Commonwealth.
The judge stated that the 1.9 million Indonesian Rupiahs (IDR) (approximately A$217) found on the accused could not be definitively proven to be part of the proceeds of the crime, thus the Commonwealth forfeiture order for the money was rejected.
New South Wales District Court
Mr Ambo applied for a directed verdict of acquittal which was rejected by the judge.
Following the failed application for a directed verdict of acquittal in the previous hearing, Mr Ambo's case went to trial. Mr Ambo pleaded not guilty. The jury returned a verdict of guilty, and Mr Ambo was convicted of the offence under s 233C of the Migration Act 1958 (Cth). Mr Ambo was convicted at trial on 28 September 2011. The sentencing decision for his conviction was delayed until 25 November 2011. Mr Ambo was sentenced to 5 years imprisonment, with a non-parole period of 3 years.
The judge noted that the criminality of the accused was out of proportion to the mandatory prison sentence required to be ordered. Nevertheless, the judge was required by the provisions under the Migration Act 1958 (Cth) to impose the mandatory minimum sentence of 5 years imprisonment with a non-parole period of 3 years.
The accused recruited his nephew, who was originally named as a co-accused.
Crew, including procurement of vessel and navigation.
Mr Ambo was approached by a person in his home town who offered to pay him IDR 1.9 million for one months work. After the initial meeting the Mr Ambo travelled by bus to another port area and located a vessel which later became SIEV 229. Thereafter he stayed with the vessel. He was present when the 53 passengers were loaded onto the vessel from another vessel, off the Indonesian coast.
Whilst not strictly a 'defence' in itself, Mr Ambo did attempt to defend his actions by arguing that the persons he brought on a boat to Australia were not 'unlawful non-citizens' as required by the offence under s 233C of the Migration Act 1958 (Cth). This is further discussed in the commentary section.
New South Wales District Court
R v Ambo  NSWDC 156 (28 September 2011) (trial)
R v Ambo  NSWDC 182 (25 November 2011)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
Mr Ambo did attempt to defend his actions by arguing that the persons he brought on a boat to Australia were not 'unlawful' as required by the offence under s 233C of the Migration Act 1958 (Cth).
Counsel for Mr Ambo argued that under Article 14(1) of the Universal Declaration of Human Rights, the entitlement to seek asylum from persecution founds a lawful right to come to Australia, at least for those people whose claim for asylum is ultimately accepted. Thus the accused could not be convicted of bringing five or more 'unlawful persons' into Australia per s 233C of the Migration Act 1958 (Cth).
The Court rejected the arguments raised by the defence. It was held that Australian law is decisive in determining whether travel to Australia is lawful or unlawful. The 'lawful right' referred to in s 233C(1)(c) is a right under domestic law and such a right only arises from the granting of a visa pursuant to the Act. In other words, if the people who form part of the 'group' coming to Australia do not have valid visas, this element of the offence is satisfied.
The relevant domestic law in this circumstance is found in s 42(1) Migration Act 1958 (Cth), which contains an 'unequivocal statement' that a person must not travel to Australia without a visa. Accordingly, the 'no lawful right to come to Australia' referred to in s 233C(1)(c) could not be interpreted to mean that the passengers had a lawful right to come to Australia merely because they were subsequently found to be refugees.