This case involves a group of 46 smuggled migrants from Afghanistan who initially travelled on forged passports to Indonesia and then continued to Australia by boat using the vessel referred to as SIEV 112. SIEV 112 was intercepted near Ashmore Reef on 10 March 2010. The three Indonesian crew members on board this vessel were later charged and convicted for their involvement in this migrant smuggling venture. Two of them later unsuccessfully appealed their conviction.
The vessel referred to as SIEV 112 by Australian authorities left the Indonesian island of Sumbawa at night on 28 February 2010, carrying 46 Afghan asylum seekers and three Indonesian crew.
The vessel was detected by Australian authorities at approximately 6:00 am on 10 March 2010, travelling in a southerly direction approximately 9.9 nautical miles from East Island, a part of Ashmore Reef. At approximately 6:40 am the vessel was boarded by personnel from the HMAS Armidale, a Navy vessel operating under the control of Border Protection Command. At this point, SIEV 112 was approximately 9.75 nautical miles inside Australia's territorial sea.
At least one crew member on SIEV 112 was offered IDR 7,000,000 for his service during the voyage.
Afghanistan
IndonesiaAustraliaSupreme Court of Queensland
Messrs Jufri and Nasir were charged under s 232A of the Migration Act 1958 (Cth), on the indictment that 'between 28 February and 10 March 2010 at Indonesia and on the seas between Indonesia and Ashmore Islands, Australia, you facilitated the bringing to Australia of a group of five or more people, namely a group of 46 people, who were non-citizens and who travelled to Australia without visas and did so reckless as to whether those people had the lawful right to come to Australia.' On this charge both Mr Jufri and Mr Nasir were found guilty by the jury.
Mr Nasir and Mr Jufri were sentenced to 5 years imprisonment each.
Judge Atkinson stressed at some length that were it not for the mandatory minimum sentence imposed by s 232A of the Migration Act 1958 (Cth) (now s 233C), the sentence of five years imprisonment would not be in accordance with the sentencing requirements found in s 16 of the Crimes Act 1914 (Cth).
Judge Atkinson considered that both Mr Jufri and Mr Nasir had minimal roles in the SIEV 112 venture, and were not the 'serious offenders' at which s 232A was aimed. Atkinson J also observed that both offenders had shown contrition by declining to put the Crown to proof on a number of matters and by acting in a 'respectful and even penitent [manner] during the trial'.
Judge Atkinson further had regard to the deterrent effect of any sentence imposed upon the defendants. She considered that 'deterrence in this case is served by your being arrested and imprisoned. You have already been imprisoned for some 632 days during which your families have been left destitute. The sentence of imprisonment is not, therefore, necessary to deter you any more than that has already done.' Her Honour further stated, 'I regard you as already having been adequately punished. However, I am obliged to impose further imprisonment upon you so I will comply with the obligation I have at law.'
After a consideration of Messrs Jufri and Nasir's personal circumstances, remarking on the extreme poverty in which both defendant's lived in Indonesia, Judge Atkinson spoke positively of their chances for rehabilitation.
Finally, Judge Atkinson considered the probable effect of any sentence on family or dependents. Her Honour stated, 'the effect of any sentence on your families and dependents is appalling. Unlike prisoners of Australian citizenship, your families will not be supported by the State. There are no social services available to support them so they will suffer dreadfully from your sentence.'
Judge Atkinson sentenced each defendant to the minimum sentence required by law, of five years imprisonment with a non-parole period of three years.
Supreme Court of Queensland (Court of Appeal)
Both Mr Jufri and Mr Nasir appealed their convictions on the ground that the verdict was unreasonable and could not be supported having regard to the evidence. Their argument was that the evidence did not justify a finding, which was submitted to be necessary for proof of s 232A, that the appellants were actually or consciously aware that there was a real risk or a substantial possibility that the passengers were coming to Australia without having a lawful right to do so.
The Crown, as respondent, argued that the combination of the following circumstances rendered it open for the jury to conclude beyond reasonable doubt that each appellant was aware of a substantial risk that the passengers had no lawful right to come to Australia:
The appellants argued that 'there was no evidence in the prosecution case about [the appellant's] background from which an inference could be drawn that [they were] aware of a system of approving entry into Australia prior to arrival, or of any requirement for any formal permission to enter Australia.' They also argued that it was relevant that, on the evidence, neither of them spoke English or could communicate with the Afghan passengers.
The appellants further suggested that the circumstances relied upon by the prosecution were incapable of supporting an inference beyond reasonable doubt that either appellant was actually aware of a substantial possibility that the passengers on the vessel had no lawful right to come to Australia. As to point (i) they argued that the evidence did not justify a conclusion that, from the perspective of the appellants, the vessel was not designed or equipped to carry its passengers; in that respect the standards to be expected in Indonesia might differ from those prevailing in Australia. They advanced similar arguments in relation to points (ii), (iii) and (iv). As to the circumstance that the boarding was undertaken at night and (v) that the passengers remained below deck during the day to avoid detection, the appellants argued that, at its highest for the Crown, the evidence supported an inference that those who were aware of the passengers' behaviour might have thought that the passengers were hiding from Indonesian authorities, perhaps because they did not have a lawful right to be in, travel through, or leave Indonesia. It was submitted that, in the absence of evidence that either appellant was aware of this conduct or that the passengers were deliberately hiding, this evidence could establish no more than that the appellants might have believed that the passengers had their own reasons for going below deck during day time hours.
The appellants argued that the circumstance in point (vi) did not advance the prosecution case, and the circumstance (vii) that none of the passengers were asked about passports or Australian visas was not significant in the absence of evidence that either appellant knew what a visa or a passport was, that either appellant knew that the destination of the boat was Australia, or that there was a system in Australia which required entrants to obtain a visa or other formal permission before entering the country. The appellants also argued that it could not be assumed that it was the responsibility of members of the crew performing functions of a kind performed by the appellants to scrutinise travel documents and that there was no evidence that the passengers had not been asked to show their passports before they left the beach of the Indonesian island. As to point (viii), the Crown's proposition that the jury knew that the captain was aware that the passengers did not have a lawful right to enter Australia was based upon the admission made by each appellant at trial, that on 27 June 2011 the captain of the vessel, Haryadi, pleaded guilty to the offence of facilitating the bringing of a group of non-citizens to Australia. Neither appellant contradicted that mode of reasoning or the respondent's contention that the formal admissions made by each appellant that the captain had pleaded guilty to the offence were informed by forensic decisions by the appellants' counsel which were designed to highlight the difference between the role of the captain and the less significant roles of each appellant in the vessel. The appellants' argument was instead that there was no evidence and no reason to infer that the knowledge of Haryadi was communicated to either appellant.
Neither appellant disputed the finding that the appellants meant to facilitate the bringing of the passengers to Australia. They argued only that there was not sufficient evidence to support the finding that the appellants knew that the SIEV 112 passengers did not have the legal right to come to Australia.
Fraser JA, with whom the two other Justices agreed, rejected the appeal on the grounds that 'it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that each appellant was guilty of the offence.' He stated that '[g]iven the length of the voyage, the small size of the vessel, the large number of passengers, and that the crew consisted of only three men, it is difficult to accept that either appellant was not aware of each of the relevant circumstances, including the passengers' conduct in retreating to the obviously unattractive conditions below deck to avoid detection. Whether the inference should be drawn from these circumstances that each appellant was aware that there was a substantial risk that the passengers had no lawful right to come to Australia was for the jury to decide, but it was open to the jury to draw that inference to the exclusion of any competing hypothesis from the circumstances identified by the respondent.'
United Nations Human Rights Committee
On 24 October 2012, following the failed appeal against conviction, legal representatives of the Human Rights Clinic at the University of New South Wales in Sydney filed an individual communication with the UN Human Rights Committee on Mr Nasir's behalf. This communication seeks to challenge Australia's mandatory sentencing laws for certain 'people smuggling' offences. Is is submitted that Australia breaches several obligations under the International Covenant on Civil and Political Rights in relation to:
The submission to the UN Human Rights Committee seeks the repeal of mandatory sentencing provisions under Australian law, as well as compensation for Mr Nasir. The decision about this communication has yet to be made at the time of writing.
On 27 June 2011, Mr Haryadi pleaded guilty to the offence of facilitating the bringing of a group of non-citizens to Australia under s 232A Migration Act 1958 (Cth).
Mr Haryadi was sentenced to 5 years imprisonment.
Mr Nasir was born in Riau, Sumatra, Indonesia. He was educated only at primary school level, worked as a fisherman, was married, and lived in Probolinggo, East Java, Indonesia prior to his involvement in this migrant smuggling venture.
In his job as a fisherman he only earned approximately AUD 2 per day, living in what the trial judge later described as 'extreme poverty'. From this income, he had to support his present wife as well as two daughters from a previous marriage.
Mr Nasir had no criminal convictions prior to his involvement with SIEV 112.
Mr Jufri was born in Bone, South Sulawesi, Indonesia. He received seven years of schooling, worked as a fisherman, was married, and lived in Probolinggo, East Java, Indonesia before becoming involved in this venture. Mr Jufri was the sole income earner for his wife and two children in Indonesia.
In her sentencing remarks, Mr Jufri's trial judge summarised his circumstances by stating: 'You and your family live in a hut with a dirt floor with the dimensions of three by six metres. Because of the cost of calling by telephone to your village, you have only been able to speak to your wife once every few months. She has been able to get some work but she earns the equivalent of one and a half cents an hour shelling crabs, and your 11-year-old son has had to leave school because of the lack of support for the family. You have no criminal history.'
Mr Nasir worked as a cook on SIEV 112. He also steered the boat at night on one occasion. At trial, the court noted that Mr Nasir was 'not in charge of the boat and [was] performing relatively menial roles on the boat'.
Mr Jufri was the mechanic and deckhand on board SIEV 112. He assisted the captain, Mr Haryadi, and steered the vessel on some occasions. The trial judge in Mr Jufri's case later noted that Mr Jufri was 'not in charge of the boat and [was] performing relatively menial roles on the boat'.
he faced the same charges as the other co-accuseds.
Mr Haryadi was the captain of SIEV 112. Later testimony by SIEV 112 passengers indicated that he steered the vessel, and was in control of the navigational equipment and charts. He faced the same charges as the other co-accuseds.
R v Nasir and Jufri (Unreported, Supreme Court of Queensland, Atkinson J, 2 December 2011)
Jufri v The Queen; Nasir v The Queen [2012] QCA 248 (13 September 2012)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
The case against Messrs Nasir and Jufri is significant because of the sentencing remarks in the first trial, their appeal against conviction and sentencing, and the individual communication to the UN Human Rights Committee which followed the failed appeal.
At the heart of the judicial proceedings that followed the initial trial are concerns over Australia's mandatory sentencing regime that is imposed on several 'people smuggling' offences under the Migration Act 1958 (Cth). In his sentencing remarks, Judge Atkinson stressed at some length that were it not for the mandatory minimum sentence imposed by s 233C of the Migration Act 1958 (Cth) (formerly s 232A), the sentence of five years imprisonment would not be in accordance with the sentencing requirements found in s 16 of the Crimes Act 1914 (Cth). Judge Atkinson considered that both Mr Jufri and Mr Nasir only had minimal roles in the SIEV 112 venture, and were not the 'serious offenders' at which s 232A was aimed.
Their unsuccessful appeal centred on the argument that they were not or insufficiently aware of the nature of the venture they became involved in and the status of the persons they brought to Australia.
On 24 October 2012, following the failed appeal against conviction, an individual communication was filed with the UN Human Rights Committee on Mr Nasir's behalf. This communication seeks to challenge Australia's mandatory sentencing laws for certain 'people smuggling' offences on the grounds that they violate basic rights and principles articulate in the ICCPR, to which Australia is a State Party. The proceedings before this Committee were still ongoing at the time of writing.
This case also illustrate the poor background and often desperate circumstances of the Indonesia crew that lead them to become involved in smuggling of migrants by boat to Australia.