(a) the bringing or coming to Australia of a non-citizen under
circumstances
from which it might reasonably have been inferred that the
non-citizen intended to enter Australia in contravention of this Act.
It was
submitted that there was nothing on the facts from which it might reasonably
be inferred that the Sri Lankans intended to
enter Australia in contravention
of the Act. The Sri Lankans did not give evidence before the learned
Magistrate for they had been
deported or removed from Australia prior to the
hearing. It was argued that the circumstances of the Indonesian vessel not
appearing
to have fuel to proceed from Ashmore Reef to Australia, that the
appellants only intended to take the Sri Lankans to Ashmore Reef
and no
further, that the Sri Lankans only paid for a one way passage to Ashmore Reef,
that the Sri Lankans deliberately approached
the Australian authorities at
Ashmore Reef and willingly placing themselves on board HMAS Gawler for
transporting to Australia, all
indicated, far from intending to enter
Australia in contravention of the Act, that their plain intention was lawfully
to exhaust
the possibilities of applying through the appropriate Government
authorities for permission to stay in Australia, as refugees or
otherwise. It
was further argued that for the Sri Lankans to have been taken into Australia
on board HMAS Gawler in the manner in
which they were taken was not in
contravention of the Act. In support of this submission it was said that there
was not provision
in the Act which makes it an offence to do what the Sri
Lankans did. Alternatively it was said that even if it was in contravention
of
the Act, the detention provisions, ie ss188 to 199, constituted a specific
regime which over-rode any other general provisions in the Act. Thus although
a visa was required for a non-citizen
to travel to Australia, s42(1), and that
a non-citizen within the migration zone without a visa is an unlawful
non-citizen who must be detained upon discovery,
s189(1), short of
deliberately avoiding the migration authorities or using false documents to
gain entry - neither of which could be suggested
here - the Sri Lankans, in
placing themselves in the hands of the authorities, as they did, could not be
said to have intended to
enter Australia in contravention of the Act. Counsel
for the appellants cited R v Naillie [1993] 2 All ER 782 in support of those
submissions. In that case the House of Lords held that s3 of the Immigration
Act 1971 UK made a distinction between
arrival and entry into the United
Kingdom and that a person was only "an illegal entrant" for the purposes of
that Act if he sought
to enter the United Kingdom by producing a forged
passport or attempting to deceive an immigration officer in a material way and
that if he presented himself to an immigration officer and asked for political
asylum and did not produce a forged document or otherwise
seek to deceive or
in fact deceive an immigration officer, he was not entering or seeking to
enter in breach of the immigration laws
and so was not "an illegal entrant".