Los Modelos

A

USTRALIA

Australia’s economic prosperity and political stability make the country an attractive destination for irregular migrants, with significant numbers of unaccompanied minors smuggled to Australia over the past two decades. Laws and policies regarding the protection of smuggled unaccompanied minors, and the sanctions against those who smuggle them, are characterised by Australia’s harsh approach to irregular migration generally.¹ Beginning with the so-called ‘Pacific Solution’ policy in August 2001, Australian law has used, inter alia, detention of smuggled migrants, interdiction at sea and tow-backs/turn-backs and take-backs of smuggling vessels,² transfers of smuggled migrants to regional processing centres in third countries, and restrictions on access to asylum and legal status as ways to deter irregular migration and punish those who come to Australia unlawfully. Although many of these measures were halted temporarily between 2008 and 2013, they returned as part of Australia’s

‘Operation Sovereign Borders’ policy. Launched in September 2013, and described as a

‘military led response to combat people smuggling and to protect [Australia’s] borders’,³ this policy, and Australia’s laws, deny smuggled migrants many of the rights and protections they are entitled to under international law.

1 The smuggling of migrants is referred to as ‘people smuggling’ by the Australian Government. The terms are used interchangeably in this Chapter.

2 Tow-backs/turn-backs involve interception at sea and return to a neighbouring transit country, while take-backs involve interception at sea and direct repatriation to either a country of origin or return to a safe third country. See Peter Billings, ‘Operation Sovereign Borders and Interdiction at Sea: CPCF v Minister for Immigration and Border Protection’ (2016) 23(2) Australian Journal of Administrative Law 76, 78.

3 Liberal Party of Australia, ‘The Coalition’s Operation Sovereign Borders Policy’ (2013) 2, quoted in Andreas Schloenhardt and Colin Craig, ‘“Turning Back the Boats”: Australia’s Interdiction of Irregular Migrants at Sea’ (2015) 27(4) International Journal of Refugee Law 536, 548.

124

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^{EVELS AND}

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HARACTERISTICS

Available Data

The number of smuggled migrants entering Australia has varied considerably in response to factors such as global and regional refugee flows, the situation in, and cooperation of transit countries, and government policies adopted to stem and deter these flows from reaching Australia. Since the 1990s, maritime arrivals of smuggled migrants into Australia have occurred in two main periods, first between 1999 and 2001, then between 2009 and 2013.⁴ Between August 2001 and February 2008 and from September 2013 onwards, the measures adopted as part of the Pacific Solution and Operation Sovereign Borders effectively prevented the arrival of almost all smuggled migrants to Australia, because smuggled migrants arriving during these periods are mostly intercepted before entering Australian territory and either returned to the departure point or country of origin.⁵

Data for smuggled unaccompanied minors arriving in Australia since 2007 is available from the 2006-07 through to 2012-13 financial years. This data is limited to arrivals by sea, referred to as ‘illegal/irregular maritime arrivals’ by the Australian Government.⁶ These arrivals can be equated with migrant smuggling, as the evidence shows that the vast majority of migrants who enter Australia illegally by sea travel on boats facilitated by smugglers.⁷

4 Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia since 1976’ (Research Paper, Australian Parliamentary Library, 2013) 22.

5 See, eg, Schloenhardt and Craig, n 3; Jane McAdam, ‘Australia and Asylum Seekers’ (2013) 25(3) International Journal of Refugee Law 435. Liberal Party of Australia, ‘The Coalition’s Operation Sovereign Borders Policy’ (July 2013) 2.

6 The term ‘irregular maritime arrival’ was used prior to the election of the Coalition Government in September 2013. Following the election, the new immigration minister, Scott Morrison (as he then was), directed that the term ‘illegal maritime arrival’ should be used. The current terminology is used in this Chapter when referring to Australian Statistics. See Katherine Murphy, ‘“Illegal” Boat Arrivals: Scott Morrison Directed Customs to use Term’, The Guardian (online), 19 November 2013

<http://www.theguardian.com/world/2013/nov/19/illegal-boat-arrivals-scott-morrison-directed-customs-to-use-term>.

7 For example, of the 5255 illegal maritime arrivals interviewed by the Department of Immigration and Citizenship in the 2009-2010 financial year, all of them had been facilitated by migrant smugglers: Senate

125 Arrivals of smuggling vessels to Australia are mostly overt; arrival statistics are, therefore, indicative of the levels of maritime smuggling.

Figure 1: Illegal maritime arrivals in Australia (according to financial year)⁸ 2006-

Figure 1 above shows that the number of unaccompanied minors increased from the 2008-09 to 2012-13 financial years. Significant rises were recorded from the 2008-09 to 2009-10 and from the 2010-11 to 2012-13 financial years. Unaccompanied minors arriving in Australia by

Standing Committee on Legal and Constitutional Affairs, Senate of Australia, Answers to Questions on Notice, Immigration and Citizenship Portfolio, Additional Estimates 2010–11 (2012). See also Cat Barker,

‘The People Smugglers’ Business Model’ (Research Paper No 2, Parliamentary Library, Parliament of Australia, 2013) 6-9.

8 Department of Immigration and Citizenship, ‘Annual Report 2009-2010’ (2010) 195; Department of Immigration and Citizenship, ‘Annual Report 2011-2012’ (2012) 219; Department of Immigration and Citizenship, ‘Annual Report 2012-2013’ (2013) 203; Janet Phillips, ‘Boat Arrivals and Boat “Turnbacks”

in Australia Since 1976: A Quick Guide to the Statistics’ (Research Paper Series 2015-16, Australian Parliamentary Library, 2015) 2; ‘Operation Sovereign Borders: Asylum seekers still trying to reach Australia, says Lieutenant General Angus Campbell’, ABC News (online), 28 January 2015

<http://www.abc.net.au/news/2015-01-28/operation-sovereign-borders-boat-turnbacks/6053244>; Liberal Party of Australia, ‘Operation Sovereign Borders Marks Milestone - Year With No Boats’ (Media Release, 7 August 2015) <http://www.liberal.org.au/latest-news/2015/08/07/operation-sovereign-borders-marks-milestone-year-no-boats>.

126 sea, as a percentage of total illegal maritime arrivals, also increased from the 2008-09 to 2011-12 financial years. In the 2009-10 financial year, unaccompanied minors constituted approximately 9% of all illegal maritime arrivals. This percentage doubled in 2011-12 to approximately 17%. In 2012-13, while total illegal maritime arrivals rose to 25,091, arrivals of unaccompanied minors decreased compared to the previous financial year to 1,301, or 5.19%

of total arrivals. Since September 2013, and the re-introduction of interdiction at sea under the auspices of Operation Sovereign Borders, the Australian Government has been secretive about much of the information and data concerning migrant smuggling to Australia, including arrivals of unaccompanied minors.

Air Arrivals

While migrant smuggling is generally considered synonymous with illegal maritime arrivals in Australia, there are indications that smuggling by air into Australia occurs.⁹ Numerous reports have noted large scale production and use of fraudulent documents for travel to Australia,¹⁰ and some individual instances of smuggling by air are identifiable in court transcripts.¹¹ While significant numbers of unauthorised air arrivals enter Australia each year (for example, persons using fraudulent travel documents or otherwise refused immigration clearance), it is not known how many of these arrivals are related to migrant smuggling.¹² The clandestine nature of smuggling by air also means that persons smuggled successfully are not represented in available data.

9 Barker, n 7, 9-10.

10 See, eg, Sarah Ferguson, ‘People Smugglers Selling Asylum Seekers Passports and Visas for Entry to Australia by Plane’, ABC News (online), 18 November 2013 <http://www.abc.net.au/news/2013-11-18/people-smugglers-visas-asylum-seekers-passports-australia/5098002>; Lindsay Murdoch, ‘Police Crack Thai Fake Passport Racket and Arrest “The Doctor”, The Sydney Morning Herald (online), 10 February 2016 <https://www.smh.com.au/world/police-crack-thai-fake-passport-racket-and-arrest-the-doctor-20160210-gmq7kl.html>.

11 See, eg, SZOPW v Minister for Immigration and Citizenship [2011] FMCA 48; SZPJ v Minister for Immigration and Citizenship [2012] FCA 18.

12 See generally, Andreas Schloenhardt, Freya Douglas, and Joseph Lelliott, ‘Stop the Planes!? Document Fraud and Migrant Smuggling by Air in Australia’ (Research Paper, University of Queensland)

<https://law.uq.edu.au/files/6711/Schloenhardt-Douglas-Lelliott_Migrant-Smuggling-by-Air-and-Document-Fraud.pdf>.

127 Profile and Origin

According to official information, the majority of smuggled unaccompanied minors who enter Australia are male. Of the 476 and 411 unaccompanied minors who were smuggled to Australia in the 2009-10 and 2010-11 financial years respectively, only 6 (1.26%) and 24 (5.84%) individuals were female.¹³ In 2011-12 and 2012-13 only 99 (7.23%) and 84 (6.44%) were female.¹⁴ The percentage of unaccompanied female minors consistently accounts for less than 10% of arrivals. Data about age or countries of origin of unaccompanied minors arriving in Australia is not available.

Qualitative information from case reports and secondary sources provides an indication of the major countries of origin of unaccompanied minors arriving in Australia. According to this information, the majority of illegal maritime arrivals since 2000 have come from Afghanistan, Iraq, Iran, Pakistan, and Sri Lanka.¹⁵

Routes and Methods

The majority of migrants smuggled by sea have left from ports in the southern Indonesian archipelago.¹⁶ Before reaching Indonesia, these migrants often travel through several transit countries. Migrants from Afghanistan and Iraq, for example, often initially travel to Pakistan and then fly onwards to Thailand or Malaysia, sometimes with the use of fraudulent

13 Department of Immigration and Citizenship, ‘Annual Report 2009-2010’ (2010) 195; Department of Immigration and Citizenship, ‘Annual Report 2010-2011’ (2011) 201.

14 Department of Immigration and Citizenship, ‘Annual Report 2011-2012’ (2012) 219; Department of Immigration and Citizenship, ‘Annual Report 2012-2013’ (2013) 203.

15 See Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert Panel on Asylum Seekers’ (Australian Parliament, 2012) 76; Barker, n 7, 6-7.

16 Human Rights Watch, Barely Surviving Detention, Abuse, and Neglect of Migrant Children in Indonesia (2013) 13; UNODC, ‘Smuggling of Migrants by Sea’ (2011) 18–19.

128 documents.¹⁷ Some migrants also pay bribes to officials in transit countries.¹⁸ Once in Indonesia, migrants are generally taken to secluded or remote locations in places such as Southern Java or Sulawesi where they board smuggling vessels bound for Australia.¹⁹ These vessels are often overcrowded, poorly maintained, and equipped with inadequate food and water.²⁰ Smuggling vessels departing from Indonesia have been and continue to be, albeit in reduced numbers, mostly intercepted near the Australian off-shore territories of Ashmore Reef and Christmas Island, which are in closer proximity to Indonesia than mainland Australia.

In some instances, smuggling vessels leave from Sri Lanka or India, carrying primarily Sri Lankan migrants.²¹ Vessels embarking from Sri Lanka may attempt to sail directly to Australia, or more commonly reach the Cocos (Keeling) Islands which are located roughly halfway between the two countries.²² There have also been a small number of Vietnamese vessels.²³

C

RIMINALISATION OF

F

ACILITATORS

Australia is a State Party to the Protocol against the Smuggling of Migrants by Land, Sea, and Air,²⁴ and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially

17 Marie McAuliffe, ‘Seeking the Views of Irregular Migrants: Decision Making, Drivers and Migration Journeys’ (Occasional Paper Series, Department of Immigration and Border Protection, 2013) 25-27;

Houston, Aristotle, and L’Estrange, n 15, 75-76; Antje Missbach and Frieda Sinanu, ‘“The Scum of the Earth”? Foreign People Smugglers and Their Local Counterparts in Indonesia’ (2011) 30 Journal of Current Southeast Asian Affairs 57, 73.

18 McAuliffe, n 17, 26.

19 Melissa Crouch and Antje Missbach, ‘Trials of People Smugglers in Indonesia: 2007-2012’ (Centre for Indonesian Law, Islam and Society, 2013) 12.

20 Leane Weber and Sharon Pickering, ‘Counting and Accounting for Deaths of Asylum-seekers en Route to Australia’ in Tara Brian and Frank Laczko, Fatal Journeys Tracking Lives Lost during Migration (IOM, 2014) 181.

21 Ibid 180; UNODC, n 16, 18-19.

22 Matthias Neske, ‘Strategic Assessment Report on Migrant Smuggling from Sri Lanka’ (UNODC, 2013) 38, 70.

23 Billings, n 2, 78, 100.

24 Opened for signature 12 December 2000, 2241 UNTS 507 (entered into force 28 January 2004) (‘Smuggling of Migrants Protocol’).

129 Women and Children.²⁵ Smuggling offences are consolidated in two federal acts: the Migration Act 1958 (Cth) [Migration Act], and the Criminal Code Act 1995 (Cth) [Criminal Code]. Trafficking offences are set out in the Criminal Code and in the criminal laws of most states and territories.

Smuggling of Migrants

The Migration Act sets out smuggling offences in Division 12, Subdivision A. The Criminal Code contains almost identical offences in Division 73, the only difference being that the Migration Act offences solely target smuggling into Australia, while the Criminal Code offences target smuggling into foreign countries whether or not via Australia. The offences in both statutes are referred to as ‘people smuggling’ offences, a term that is used to refer to smuggling of migrants by the Australian Government, though it differs somewhat from the international terminology.

People Smuggling Offences

Any person who ‘organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia’ of another person who is a ‘non-citizen who had, or has, no lawful right to come to Australia’, may be liable for the offence of people smuggling under s 233A of the Migration Act.²⁶ Significantly, this offence does not require proof that the perpetrator had the purpose of obtaining a financial or material benefit, constituting a departure from the requirements of the Smuggling of Migrants Protocol.²⁷

The conduct element for the offence contained in s 233A is organising or facilitating ‘the bringing or coming to Australia, or the entry or proposed entry into Australia’ of another person.²⁸ There is no requirement of successful entry into Australia; ‘proposed entry’ is

25 Opened for signature 12 December 2000, 2237 UNTS 319 (entered into force 25 December 2003) (‘Trafficking in Persons Protocol’).

26 See also Criminal Code, s 73.1.

27 Article 3(a).

28 See further R v Mahendra [2011] NTSC 57; PJ v R [2012] VSCA 146; Criminal Code, s 4.1(a).

130 sufficient.²⁹ The circumstance element is that the second person is a non-citizen who had, or has, no lawful right to come to Australia. It is immaterial whether the non-citizen is owed refugee protection by Australia, whether under the Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees,³⁰ or for any other reason.³¹

Section 233A requires proof that the perpetrator intended to engage in the conduct and that the perpetrator was reckless to, or knew of, the second person’s lack of a lawful right to come to Australia.³² It is not required that the perpetrator knew that the second person was a non-citizen.³³

The Migration Act contains a range of other offences criminalising conduct relating to people smuggling. Section 233E covers situations where a person conceals or harbours a second person who is not lawfully in Australia. Document fraud offences are set out in ss 234 and 234A,³⁴ while s 233D criminalises supporting the offence of people smuggling by providing material support or resources.³⁵ Under Chapter 2, Division 11 of the Criminal Code,³⁶ liability for people smuggling offences under the Migration Act and the Criminal Code is extended to attempts, incitement, participation, and conspiracy.

29 R v Ahmad [2012] NTCCA 1, [46].

30 Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) [jointly referred to as the (‘Refugee Convention’)].

31 Migration Act, s 228B(2). This section was introduced by the Australian Government to negate international law-based arguments raised by migrant smugglers against people smuggling charges under the Migration Act. See R v Payara [2012] VSCA 266; Deterring People Smuggling Bill 2011 (Cth).

32 See PJ v R [2012] VSCA 146; Bahar v R [2011] WASCA 249. See also Criminal Code, ss 5.4, 5.6(1), 5.2(1).

33 Migration Act, s 233A(2).

34 See also Criminal Code, s 73.6-73.11.

35 See further Andreas Schloenhardt and Thomas Cottrell, ‘Financing the Smuggling of Migrants in Australia’

(2014) 38(5) Criminal Law Journal 265. See also Criminal Code, s 73.3A.

36 Migration Act, s 4A.

131 Aggravated Offence of People Smuggling

Aggravated people smuggling offences are set out in ss 233B and 233C of the Migration Act.³⁷ In addition to the elements in s 233A, subsection 233B(1)(b) requires ‘cruel, inhuman or degrading treatment’ of a smuggled migrant. Subsection (1)(c) requires conduct giving ‘rise to a danger of death or serious harm’. Section 233B reflects the aggravations under Article 6(3)(a) and (b) of the Smuggling of Migrants Protocol, except for the omission of the

‘exploitation’ circumstance otherwise included under Article 6(3)(b). This reflects the Australian legislature’s view that a circumstance of ‘exploitation’ amounts to trafficking in persons.³⁸ Section 233C criminalises situations where people smuggling involves five or more non-citizens, however there is no equivalent provision in the Smuggling of Migrants Protocol.

Trafficking in Children

Any person who ‘organises or facilitates the entry or proposed entry into Australia, or the receipt in Australia, of another person under the age of 18, for the purpose of exploitation’ may be liable for the Australian offence of trafficking in children under s 271.4(1) of the Criminal Code. Domestic trafficking in children, and trafficking from Australia to another country, are criminalised respectively under ss 271.4(2) and 271.7(1). The conduct element of the s 271.4(1) offence is organising or facilitating the proposed entry into Australia of a child.

Consistent with Article 3(c) of the Trafficking in Persons Protocol, the child trafficking offences in the Criminal Code do not require proof of the means of exploitation. The offence requires proof that this conduct was intentional and that the perpetrator intended exploitation of the child, or was reckless as to whether the child would be exploited.

37 See also Criminal Code, ss 73.2, 73.3.

38 Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Cth) 65.

132

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^ROVISIONS

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ELATING TO

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LLEGAL

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NTRY

Persons entering Australia are referred to as ‘lawful’ or ‘unlawful’ non-citizens, depending on whether or not a person holds a valid visa to enter Australia.³⁹ Pursuant to s 4(2) of the Migration Act, holding a valid visa is the only basis of lawful entry or stay in Australia.⁴⁰ There is, for example, no recognised lawful right to enter to seek asylum.⁴¹ Smuggled migrants (a term not used in Australian law), who, by definition, illegally enter a state,⁴² have no valid visa and are, thus, unlawful non-citizens under the Migration Act.

While illegal entry into Australia is not a criminal offence per se, unlawful non-citizens are subject to certain stringent measures under Australia’s legal framework, pursuant to provisions under the Migration Act and Maritime Powers Act 2013 (Cth) [MPA]. Three of these measures impact substantially, and adversely, on smuggled migrants and may be summarised as follows. First, unlawful non-citizens who enter, or attempt to enter, Australia by sea may be interdicted, detained at sea, and transported to any place inside or outside Australia.

Second, all unlawful non-citizens who enter Australia must be detained and held in immigration detention until they are removed from Australia or granted a visa.⁴³ Powers to grant a visa, or otherwise allow an unlawful non-citizen to be detained in the community (as opposed to a detention centre), are the sole preserve of the Minister for Home Affairs and are compellable and reviewable. Third, if these powers are not exercised, unlawful non-citizens who arrive by sea must be removed from Australia and taken to a ‘regional processing

39 Migration Act, ss 13, 14; see Plaintiff M47-2012 v Director General of Security [2012] HCA 46, [176]-[178].

40 This manifests Australia’s universal visa requirement – ‘every non-citizen present on Australian soil must hold a valid visa’: Leanne Weber, Policing Non-Citizens (Routledge, 2013) 21. In some cases unlawful non-citizens may be permitted to reside in Australia, pending the outcome of a visa determination. See 4.4.3, and the Minister for Immigration’s power to make a ‘residence determination’: Migration Act, ss 197AB, 197AC.

41 Patrick Emerton and Maria O’Sullivan, ‘Rethinking Asylum Seeker Detention at Sea: The Power to Detain Asylum Seekers at Sea under the “Maritime Powers Act 2013”’ (2016) 39(2) UNSW Law Journal 695, 703.

42 Smuggling of Migrants Protocol, Article 3.

43 Or until their detention is deemed unlawful by the courts (see 4.3.2). Migration Act, ss 189, 196, and 198AB.

133 country’ as soon as reasonably practicable. Each of these measures, and their impact on the rights of smuggled unaccompanied minors, are explained further in the following sections.

Interdiction and Detention at Sea

Section 69 of the MPA allows any vessel and its occupants to be intercepted and detained where there is a contravention of Australian law. Unlawful non-citizens who enter, or seek to enter, Australia without a valid visa contravene s 42(1) of the Migration Act, which states that a ‘non-citizen must not travel to Australia without a visa that is in effect’.⁴⁴ Persons detained at sea may be held on the vessel they entered, or sought to enter, Australia on, or may be removed from it and detained on another vessel or aircraft.⁴⁵ There are no restrictions on the length of detention at sea, which may be extended as long as ‘reasonably required’ to, inter alia, decide

Section 69 of the MPA allows any vessel and its occupants to be intercepted and detained where there is a contravention of Australian law. Unlawful non-citizens who enter, or seek to enter, Australia without a valid visa contravene s 42(1) of the Migration Act, which states that a ‘non-citizen must not travel to Australia without a visa that is in effect’.⁴⁴ Persons detained at sea may be held on the vessel they entered, or sought to enter, Australia on, or may be removed from it and detained on another vessel or aircraft.⁴⁵ There are no restrictions on the length of detention at sea, which may be extended as long as ‘reasonably required’ to, inter alia, decide

In document Modelo de clusters, para la selección de carteras en los mercados de renta variable (página 49-55)