The case of SIEV 38 involved the smuggling of 54 migrants from Sri Lanka to Australia. The vessel was intercepted on 25 April 2009 southwest of Ashmore Reef. The captain of the vessel was later charged and convicted for his involvement in this venture, though the charges were dropped after an appellate court ordered a retrial. He also applied for a protection visa to remain in Australia, but this claim was rejected by successive decisions in the Federal Magistrates Court and the Federal Court of Australia. Information about the second crew member was not available at the time of writing.
The captain of the vessel did not receive any financial or material benefit for his role on the vessel. It was not known at the time of writing whether the second crew member received a financial or material benefit for his role on the vessel.
Australia
Sri LankaDistrict Court of Western Australia
In this trial, the accused, SZRHH, was found guilty for 'people smuggling'. He was sentenced to the mandatory minimum term of imprisonment.
Supreme Court of Western Australia (Court of Appeal)
The appellate court upheld an appeal against conviction lodged by the accused. Following this decision the Director of Public Prosecutions elected not to further prosecute the appellant.
A retrial was ordered.
Federal Magistrates Court of Australia
Firstly, the appellant applied for an extension of time in which to make the appeal to the Federal Magistrates Court. This was granted by the Court.
The appellant also applied for a reversal of the decision by the RRT to refuse him a protection visa based on a legitimate fear of persecution. He argued that he had been persecuted by the police, by the LTTE, and by the Sri Lankan opposition party. However, the court found that the RRT had not made a jurisdictional error in making its decision.
Federal Court of Australia
The appellant appealed the decision of the previous court, claiming the court had made an error in assessing the conclusion of the RRT. However, the Court held that no error had been made by either the RRT or the Federal Magistrates Court, and the appellant's application for a review of the RRT's decision was refused.
According to some sources, there were 55 Afghans on board the vessel.
After SIEV 38 was intercepted the migrants were taken to Christmas Island for health, security, and identity checks.
The accused was born in Negombo, Sri Lanka and had spent most of his life there. He was of Sinhalese ethnicity, but he could also speak Tamil. He had a wife, whom he married in 2004, and two young children.
The accused told the Refugee Review Tribunal (RRT) that he had been a victim of persecution at the hands of the LTTE in Sri Lanka, and the Sri Lankan police force. He stated that he had been beaten and held without cause at police stations between 2008 and 2009. It should be noted that the RRT was critical of some of his claims.
There was a second crew member on the vessel, though at the time of writing no other information was known about his involvement in the venture, or any subsequent criminal proceedings against him.
It is mentioned that other people may have helped organise the vessel in Sri Lanka, though their identities are not given.
The accused, referred to by the acronym SZRHH way charged with being the captain of SIEV 38. He was, however, also one of the organisers of the vessel. He did not profit from the venture as he, too, came to Australia to seek asylum.
The charges were dropped after the Western Australian Court of Appeal ordered a retrial.
SZRHH v Minister for Immigration & Anor [2012] FMCA 843 (14 September 2012)
SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424 (14 December 2012)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
