This case involves a vessel carrying 31 smuggled migrants of Sri Lankan background to Australia, where it was apprehended on 22 April 2009 near Barrow Island, Western Australia. One of the persons on board this vessel, Mr Antony Warnakulasuriya, was later charged and convicted for organising the vessel. He raised a defence of necessity against the charge, but was convicted by the jury. In 2012, he successfully appealed against his conviction on the ground that the trial judge misdirected the jury regarding the defence. The prosecution opted not to pursue a re-trial.
Evidence was adduced at trial that one of the smugglers, Mr Warnakulasuriya, collected money from passengers which he used to purchase the vessel in this venture.
District Court of Western Australia
Mr Warnakulasuriya was charged under former s 232A of the Migration Act 1958 (Cth) and tried in the District Court of Western Australia on November 17, 2010. Counsel for the defendant argued that Mr Warnakulasuriya was 'not criminally responsible for the offence in that he carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency within s 10.3 of the Criminal Code (Cth). The attempt to raise the defence under s 10.3 of the Criminal Code (Cth) was unsuccessful, and Mr Warnakulasuriya was convicted after the jury returned a unanimous verdict of guilty.
Supreme Court of Western Australia (Court of Appeal)
Mr Warnakulasuriya appealed his conviction on the sole ground that the trial judge misdirected the jury on the defence of sudden or extraordinary emergency under s 10.3 of the Criminal Code (Cth). His appeal was granted, with Justice Buss recognising that the trial judge incorrectly explained the requirements of the defence to the jury. One of the principal particulars of the appeal was that the trial judge told the jury that 'the word "emergency" describes a circumstance that requires there to be some immediate action.' Justice Buss stated that this was likely to convey to the jury that circumstances indicating an 'emergency' would not be 'extraordinary' 'unless those circumstances required that some immediate action be taken.' While the word 'emergency' does connote an element of urgency in its natural use, this case held that the emergency does not in fact need to be 'imminent' or require 'imminent action'. The Court of Appeal accepted that the trial judged erred in directing the jury that the defence of sudden or extraordinary emergency required the emergency to be 'imminent'. On that basis, Mr Warnakulasuriya's conviction was quashed and a retrial ordered.
Following the success of Mr Warnakulasuriya's appeal the prosecution decided not to further prosecute him and he was not required to face a retrial.
Federal Magistrates Court of Australia
These proceedings involve Mr Warnakulasuriya's application for a protection visa under s 46A(2) of the Migration Act 1958 (Cth). Originally Mr Warnakulasuriya was unable to apply for a protection visa as he did not fulfill the legal requirements of s 46(2). After his initial criminal trial in which he received a five year prison sentence, he was granted a criminal justice visa, which allowed him to apply for a protection visa.
Mr Warnakulasuriya made his application for a protection visa on 22 March 2011. His application was rejected by a delegate of the Minister for Immigration and Citizenship on 14 June 2011. On 6 July 2011, the appellant sought a review of the delegate's decision by the Refugee Review Tribunal (RRT). On 9 January 2012, the RRT affirmed the decision of the delegate. Subsequent to these decisions, Mr Warnakulasuriya's appeal against his criminal conviction was successful and the DPP decided not to pursue a retrial, meaning that his conviction for people smuggling was set aside.
Mr Warnakulasuriya then commenced proceedings in the Federal Magistrates Court of Australia, applying for judicial review of the decision of the Refugee Review Tribunal. He claimed that the RRT had erred on two principle grounds:
'The Tribunal erred in [its] interpretation of the term, "for reason of" in Article 1A(2) of the Refugees Convention. In finding that the applicant's detention and [mistreatment] in police custody in January 2009 was not Convention related, the Tribunal failed to consider why the applicant was in custody in the first place.' 'The errors of law made by the District Court of Western Australia in the course of convicting the applicant of people smuggling offences caused the Tribunal to commit a jurisdictional error. The Tribunal erred in finding that the applicant could raise a defence of double jeopardy to any prosecution of him for an offence in Sri Lanka, including a political offence in the nature of assisting LTTE suspects to escape the country.'
The Court rejected the first ground of appeal, holding that the RRT had adequately addressed the issue of Mr Warnakulasuriya's potential persecution by Sri Lankan authorities. The Court stated:
'Insofar as this ground does implicitly raise a contention that the Tribunal failed to deal with a claim, it is not made out. The Tribunal dealt with the applicant's claim to fear harm from the Sri Lankan authorities because of his suspected involvement with the LTTE [Tamils]. [...] It was not necessary for the Tribunal to make an express finding as to the reasons for the detention. [The Tribunal] sufficiently addressed this issue in its acceptance that the police may have suspected that the applicant had some involvement with an illegal organisation (the LTTE), but made their inquiries and let him go. It also dealt with the abuse the applicant suffered when detained and mistreated by drunken police, but found that while this reflected 'unacceptable" professional standards on the part of the police, 'this incident' (which clearly included both the detention and the subsequent mistreatment) was not 'associated with particular targeting of the applicant for serious harm for one or more of the Convention reasons.'
The Court also rejected the second ground of Mr Warnakulasuriya's appeal, accepting the RRT's assurance that under the principle of double jeopardy, which is embodied in the Sri Lankan Constitution, he would not be prosecuted in Sri Lanka for an offence for which he was convicted and imprisoned in Australia. The Court discussed the effect of Mr Warnakulasuriya's successful appeal leading to the quashing of his people smuggling conviction, subsequent to the RRT decision:
'Although the conviction has been set aside, and even if the applicant could now not raise a defence of double jeopardy to any prosecution in Sri Lanka, that does not establish that the Tribunal erred in a manner that constituted jurisdictional error. Contrary to the situations considered in the authorities relied on by the applicant, this is not a case in which the Tribunal 'acted on' a conviction that was later set aside. Rather it made findings about whether the applicant had a well-founded fear of persecution based on facts in existence at the time of its decision. Moreover what was in issue was whether the applicant had a well-founded fear of persecution for a Convention reason arising out of a risk of prosecution. Even if the Tribunal could be said to be in error in its discussion of double jeopardy, its reasoning in this respect was not the basis for its finding about an absence of a Convention reason for any fear of harm for reason of the applicant's people smuggling activities. The Tribunal's lack of satisfaction that the applicant would suffer harm for a Convention reason was not based on the finding about the availability of the defence of double jeopardy, but rather on the absence of evidence that Sri Lankan laws in relation to people smuggling would be applied to the applicant in a discriminatory way for a Convention reason.'
On the above reasoning, the Court dismissed Mr Warnakulasuriya's application for judicial review of the Refugee Review Tribunal decision.
Federal Court of Australia
Mr Warnakulasuriya's further appealed against the decision of the Federal Magistrates Court of Australia to the Federal Court of Australia. His appeal was based essentially on the same grounds as his argument in the Federal Magistrates Court, that:
'The Court below erred in holding that the Refugee Review Tribunal (the Tribunal) was not required to consider the reason why the appellant was [detained] and mistreated in January 2009. The Court below erred in failing to find that the Tribunal had committed a jurisdictional error in making its finding that the appellant could avail himself of a defence of 'double jeopardy' if he were prosecuted for a 'people smuggling' offence in Sri Lanka.'
The Federal Court rejected the first ground of appeal, agreeing with the Federal Magistrates Court that the RRT was not 'obliged to assign a particular motive to the police in relation to either occasion.' The Court also found that 'these issues concern findings about facts which are within the jurisdiction of the RRT to evaluate for their existence and significance.'
The second point of appeal was a matter of some extended discussion in the Federal Court. The particulars of this ground as argued by Mr Warnakulasuriya were that:
'The appellant's conviction having been set aside on appeal, the fact upon which the Tribunal based its finding did not exist; and
'Had the Tribunal not so erred it would have been open to it to have made further enquiries to determine whether the relevant Sri Lankan laws punishing 'people smuggling' may have themselves amounted to persecution on a Convention ground, or may have been applied against the appellant for a Convention reason.'
The Court accepted on principle the finding of the Federal Magistrates Court that the RRT cannot be faulted or criticised for having dealt with the circumstances as they were at the time of its decision. 'It was not obliged to wait until it was clear whether the appellant's conviction would be overturned.' The Court also noted that the outcome of Mr Warnakulasuriya's appeal was an order for a retrial, rather then a definitive quashing. 'It was the administrative decision by the DPP not to further prosecute which has resulted in the appellant not carrying a conviction for people smuggling in this country.' Accordingly, the Court found that there was no jurisdictional error in the RRT's approach to the matter, and no error of the Federal Magistrates Court's analysis.
The Court did, however express concern about the possibility that 'by failing to consider the possibility that the appellant's appeal against his conviction might be upheld, the RRT failed to address an essential integer of the appellant's claims having reassured him he could not be exposed to prosecution in Sri Lanka for people smuggling, or would have a good defence if he was prosecuted, by reason of the principle of double jeopardy.' The Court cited NABE v MIMIA (2004) 144 FCR 1 as authority for the principle that '[w]here the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.'
The Court noted that it could be inferred that there were two aspects to the RRT's treatment of the issue of possible prosecution for people smuggling in Sri Lanka. 'One was that the principle of double jeopardy would protect the appellant from further prosecution for people smuggling in Sri Lanka. The second was that there was no evidence to suggest that the laws in Sri Lanka would be applied to the appellant in a discriminatory way based on a Convention ground.' The Court considered that if this interpretation of the RRT's reasoning was accepted, it was necessary to consider both aspects, rather than only the first as the Federal Magistrates Court had done.
The Court did consider at some length the argument that there would be no discriminatory treatment of the appellant in Sri Lanka arising from his people smuggling activities which was based on a Convention ground. Ultimately however, the Court held that it was not shown that any law which might be applied to Mr Warnakulasuriya in Sri Lanka might be applied in a discriminatory way for a Convention reason. Hence the Court found that there was no relevant error in the judgement of the Federal Magistrates Court and no jurisdictional error in the decision of the RRT, and ordered that the appeal be dismissed with costs.
Mr Warnakulasuriya was born in Negombo, Sri Lanka, where he spent most of his life prior to organising the SIEV 37 voyage. He is of Sinhalese ethnicity and speaks both Sinhalese and Tamil.
In the criminal proceedings against him, Mr Warnakulasuriya recounted that he was affiliated with Sri Lanka's main opposition party. In the lead-up to the national elections in 2004, he was involved in party campaigning. After the party was defeated in that election, men associated with the party that won the election kidnapped Mr Warnakulasuriya. The men told him not to work for the opposition party any longer and cut off a finger on his left hand. Too scared to continue his political activities, Mr Warnakulasuriya purchased a boat to take up work as a fisherman. He later witnessed an incident in which members of the Tamil Tigers (LTTE), a separatist group, stabbed and shot people and also threatened him that he would be harmed unless he cooperated with the LTTE. For a short time he did assist the LTTE by carrying goods on his boat, but was later harmed and tortured when he refused to continue. Shortly after this experience, the Sri Lankan police summoned Mr Warnakulasuriya to question him over his association with the LTTE, which was seen as a terrorist organisation by Sri Lankan authorities at that time. In fear of further threats and harm from both the LTTE and Sri Lankan officials, he decided to organise a boat to flee from his home country.
Mr Warnakulasuriya organised and facilitated the SIEV 37 journey and purchased the vessel used to transport the smuggled migrants to Australia.
In raising the defence of sudden or extraordinary emergency, Mr Warnakulasuriya claimed that he did little more than help persons fleeing from persecution in Sri Lanka to a place of safety. Despite recounting his experience in Court, Mr Warnakulasuriya's attempt to raise the defence under s 10.3 of the Criminal Code (Cth) was unsuccessful.
Warnakulasuriya v The Queen (2012) 261 FLR 260;  WASCA 10 (24 January 2010)
Transcript of Proceedings, R v Warnakulasuriya (District Court of Western Australia, 1002/2010, Eaton DCJ, 17 November 2010)
SZRHH v Minister for Immigration and Citizenship  FCA 1424 (14 December 2012)
SZRHH v Minister for Immigration  FMCA 843 (14 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.