CPCF v Minister for Immigration and Border Protection

An Australian border protection vessel intercepted an Indian flagged vessel carrying the plaintiff and 156 other passengers in the Indian Ocean about 16 nautical miles from the Australian territory of Christmas Island. The plaintiff was a Sri Lankan national of Tamil ethnicity who claimed to have a well-founded fear of persecution in Sri Lanka on grounds which would qualify him as a refugee under the Refugees Convention.

The Indian vessel had become unseaworthy due toa fire in the engine house, and its passengers were taken on board the Australian vessel. The Australian vessel began sailing to India at the direction of the National Security Committee of Australia. The maritime officers purported to exercise maritime powers to detain and take persons to a place outside Australia pursuant to section 72(4) of the Maritime Powers Act 2013 (“MPA”).

The Australian vessel reached India about 11 days later and remained there for about 12 days, when it became apparent that Australia would not be able to reach an agreement with India which would permit the discharge of the passengers onto Indian territory. At the direction of the Minister for Immigration and Border Protection, the Commonwealth vessel then sailed to the Australian territory of the Cocos (Keeling) Islands where the passenger were taken into immigration detention pursuant to section 189(3) of the Migration Act.

The plaintiff filed a lawsuit alleging wrongful imprisonment. He argued that Australia’s obligations under international law, particularly under the U.N. Convention on the Law of the Sea and the Refugees Convention, limited the scope of the maritime powers under the MPA.

The Court rejected the plaintiff's claims, holding that the maritime offers had the power to detain the passengers on the Australian vessel. The Court agreed that the MPA must be construed in accordance with Australia's international legal obligations, but did not agree that the actions of the Australian maritime officers had violated the principle of non-refoulement (not returning a person to a country if that person has a well-founded fear of persecution in that country) as set forth in Article 33(1) of the Refugees Convention and Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Court reasoned that Australia had not violated the principle of non-refoulement because the plaintiff had been taken to India, not to Sri Lanka, and he only had a well-founded fear of prosecution in Sri Lanka.

The Court also found that Australia had complied with its rescue obligations under international law because its ship had taken aboard the passengers of the Indian ship when the Indian ship had become dangerous due to a fire.

"The content of the term 'safe for the person to be in that place' in s 74 may be evaluative and involve a risk assessment on the part of those directing or advising the relevant maritime officers. A place which presents a substantial risk that the person, if taken there, will be exposed to persecution or torture would be unlikely to meet the criterion 'that it is safe for the person to be in that place'. The constraint imposed by s 74 embraces risks of the kind to which the nonrefoulement obligations under the Refugees Convention and the Convention against Torture are directed. The existence of such risks may therefore amount to a mandatory relevant consideration in the exercise of the power under s 72(4) because they enliven the limit on that power which is imposed by s 74 at the point of discharge in the country to which the person is taken. However, whether a person is entitled to the benefit of non-refoulement obligations in the place to which that person is taken does not of itself determine the question whether that is a safe place within the meaning of s 74." Para. 12.

"I agree, for the reasons given by Hayne and Bell JJ, that given the agreement of the parties to the questions framed in the Special Case, Question 1(a) should not be regarded as hypothetical. There are, however, no facts set out in the Special Case from which it may be inferred that, assuming the plaintiff to be a refugee or otherwise at risk in Sri Lanka, taking him to India would have involved transgressing the limit imposed by s 74. There is no agreed fact in the Special Case to the effect that if the plaintiff had been taken to India and discharged on Indian territory, he would have been at risk of removal from India to a place in which he would not have been safe. That is relevant to the answer to Question 2. There is no basis for a conclusion that the discharge of the
plaintiff in India would have contravened s 74." Para. 13.