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Oxford Reports on International Law: CPCF V Minister for Immigration and Border Protection and Australia, First Instance Decisio

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Oxford Reports on International Law: CPCF V Minister for Immigration and Border Protection and Australia, First Instance Decisio CPCF v Minister for Immigration and Border Protection and Australia, First instance decision, (2015) 316 ALR 1, ILDC 2936 (AU 2015), 28th January 2015, Australia Date: 28 January 2015 Citation(s): (2015) 316 ALR 1 (Other Reference) ILDC 2936 (AU 2015) (OUP reference) Content type: Domestic court decisions Product: Oxford Reports on International Law [ORIL] Module: International Law in Domestic Courts [ILDC] Jurisdiction: Australia [au] Parties: CPCF Minister for Immigration and Border Protection, Australia Additional parties: (Intervening Party) Australian Human Rights Commission; (Amicus Curiae) Office of the United Nations High Commissioner for Refugees Judges/Arbitrators: Robert French (Chief Justice); Virginia Bell; Kenneth Hayne; Susan Crennan; Susan Kiefel; Stephen Gageler; Patrick Keane Procedural Stage: First instance decision Related Development(s): Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act (Commonwealth), 2014 (Australia) (amendment removing inconsistency with international law as a ground for invalidating an exercise of power under the Maritime Powers Act) Subject(s): Asylum — Expulsion — Migrants, rights — Non-refoulement — Comity — Sovereignty — UNCLOS (UN Convention on the Law of the Sea) Core Issue(s): Whether Australia’s executive powers were constrained by international non-refoulement obligations, which had not been implemented in domestic legislation, under the Convention relating to the Status of Refugees (‘Refugee Convention’), the International Covenant on Civil and Political Rights (‘ICCPR’), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Convention against Torture’). Whether non-refoulement obligations under the Refugee Convention, the ICCPR, and the Convention against Torture applied to extra-territorial actions taken by states. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: University of Melbourne; date: 25 October 2019 Whether rights and obligations under the United Nations Convention on the Law of the Sea allowed states to detain individuals, on board an incoming vessel and take them from that state’s contiguous zone to a foreign country. Oxford Reports on International Law in Domestic Courts is edited by: Professor André Nollkaemper, University of Amsterdam and August Reinisch, University of Vienna. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: University of Melbourne; date: 25 October 2019 Facts F1 On 29 June 2014, an Indian-flagged vessel carrying 157 people who were attempting to sail to Australia was intercepted 16 nautical miles from the Australian territory of Christmas Island by an Australian border protection vessel. That was within Australia’s contiguous zone. The officer in charge of the Australian vessel authorized the interception on the basis of a reasonable suspicion that those on board the Indian-flagged vessel intended to breach Australian migration laws. F2 There was a fire on board the Indian-flagged vessel and it became unseaworthy. The passengers were transferred to the Australian vessel. F3 Following a decision by the National Security Committee of Cabinet on 1 July 2014, the Australian vessel was directed to sail toward India with an intention of disembarking the passengers in India, subject to India’s permission. The Australian vessel left the contiguous zone, reached the vicinity of India, and remained on the high seas. That voyage lasted from 1 to 22 July 2014. F4 Negotiations between the Australian government and the Indian government in order to disembark the passengers were unsuccessful. On 23 July 2014, the Australian vessel was ordered to sail back to the Australian territory of the Cocos Islands, where the passengers were disembarked and taken into immigration detention. F5 CPCF, a Sri Lankan national of Tamil ethnicity who was one of the passengers, brought a claim of false imprisonment before the High Court of Australia for the period of the passengers’ voyage on board the Australian vessel and sought damages. F6 A special case application was made to the High Court under its original jurisdiction. Pursuant to that type of application, the parties agreed on a list of questions of law to be answered by the High Court. F7 The Minister for Immigration and Border Protection (‘Minister’) and the Commonwealth of Australia (‘Australia’) argued that the detention of CPCF was lawful given the powers granted to maritime officers under Section 72(4) of the Maritime Powers Act (Commonwealth), 2013 (Australia). That provision allowed a maritime officer to detain a person and take them to a place outside Australia. F8 CPCF argued that removal to India would place him in danger of deportation back to Sri Lanka. He claimed to have a well-founded fear of persecution if he were returned to Sri Lanka. He argued that Australia’s non-refoulement obligations under the Convention relating to the Status of Refugees (28 July 1951) 189 UNTS 137, entered into force 22 April 1954 (‘Refugee Convention’) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85, entered into force 26 June 1987 (‘Convention against Torture’) acted as a constraint on the exercise of power under the Maritime Powers Act. He submitted that Australia’s non-refoulement obligations operated in spite of the fact that actions had taken place outside of Australian territorial waters. F9 The United Nations High Commissioner for Refugees (‘UNHCR’) appeared as amicus curiae. The UNHCR submitted that Australia owed non-refoulement obligations under the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: University of Melbourne; date: 25 October 2019 Convention against Torture and the Refugee Convention to people outside Australian territory where it exercised effective control over such people. F10 A further question arose regarding whether Australia’s obligations under the United Nations Convention on the Law of the Sea (10 December 1982) 1833 UNTS 3, entered into force 16 November 1994 (‘UNCLOS’) was a constraint on the exercise of powers in the contiguous zone under the Maritime Powers Act. Article 33 of the UNCLOS allowed coastal states, in their contiguous zone, to exercise ‘control necessary’ in order to prevent an infringement of that state’s immigration laws in its territory or territorial sea. The particular question was whether Article 33 allowed a coastal state to detain individuals on inward bound vessels and remove them from the contiguous zone (CPCF v Minister for Immigration and Border Protection and Another, Hearing, [2014] HCATrans 227, 14 October 2014). F11 The Minister and Australia argued that international non-refoulement obligations did not act as a limit to the powers that the state was entitled to exercise under the Maritime Powers Act. Even if they were, there was no suggestion that India would not have afforded CPCF adequate protection against refoulement. Furthermore, non-refoulement obligations were only owed by Australia in respect of refugees within its territory, and therefore would not include those intercepted in the contiguous zone. Held H1 French CJ in a separate opinion: There was some support for the view that the non- refoulement obligation under the Refugee Convention only applied to receiving states in respect of refugees within their territories. (paragraph 10) There was no textual basis in Section 72(4) of the Maritime Powers Act to support a construction limiting the power which it conferred by reference to Australia’s non-refoulement obligations, assuming they subsisted extra-territorially. Section 74 of the Maritime Powers Act required that a person could only be taken to a place that was ‘safe’ for that person to be in. The risk of refoulement was relevant to evaluating whether a place was ‘safe’. (paragraphs 11–12) H2 Australia was a party to the International Convention on Maritime Search and Rescue (27 April 1979) 1405 UNTS 97, entered into force 22 June 1985 (‘Search and Rescue Convention’). Extraterritorial non-refoulement obligations had been acknowledged by the International Maritime Organization in their guidelines relating to that Convention. The Indian-flagged vessel, after interception by the Australian vessel, became unseaworthy, thus engaging Australia’s rescue obligations at international law in respect of its passengers and crew. (paragraphs 16–7) H3 ‘[S]hips of all states enjoy a right of innocent passage through the territorial sea of a coastal state’ under Article 17 of the UNCLOS. However there was no suggestion that the Indian-flagged vessel was engaging in innocent passage. (paragraph 20) H4 All Australian statutes were to be interpreted, as far as their language permitted, in accordance with international law. (paragraph 8) However ‘international law and convention or treaty obligations [did] not have a direct operation under Australian domestic law’. (paragraph 21) H5 Crennan J, in a separate opinion: The exercise of maritime powers in the contiguous zone was subject to a number of limits, reflecting Australia’s obligations under the UNCLOS. (paragraphs 181–2) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: University of Melbourne; date: 25 October
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