Case: Tran v The Commonwealth [2008] FCA 901 ; (2008) 103 ALD 290
Outcome: followed
16 June 2008 the Court delivered its findings in respect of specific questions which were asked of it pursuant to O 29 r 2 of the Federal Court Rules (Cth): see Tran v The Commonwealth [2008] FCA 901 ; (2008) 103 ALD 290 (' Tran No. 1 '). Since the facts and legislation are set out in that decision, the present decision should be read in conjunction with Tran No. 1 . In Tran No. 1 the Court found that s 261A of the Migration Act 1958 (Cth) ('the Migration Act ') operated to effect an automatic forfeiture of the ship Hao Kiet BL91693TS ('the ship') on or about 1 July 2003 when the ship entered Australia carrying persons who held no valid Australian visas. To answer the specific questions the Court was provided with an agreed statement of facts. The determination of such questions did not finally resolve the rights of the parties since an automatic forfeiture brought about by s 261A of the Migration Act remains contestable: see Tran No. 1 at [45]. The continuation of the hearing in respect of which this judgment is now delivered provided the applicant with the opportunity to provide any evidence upon which he relied to dispute that forfeiture of the ship had occurred. In Tran No. 1 the Court referred to the automatic forfeiture as ' the purported forfeiture ' (at [49]), only as a means of indicating that in these proceedings the applicant could challenge the forfeiture under the mechanism explained in that decision, that is, through the condemnation process. On 9 September 2008 the applicant filed a Further Amended Application seeking a declaration that the ship is not forfeited, or, in the alternative, a declaration that any forfeiture ' including under s 261A of the Migration Act , is revoked ' and further declarations relating to the right of the applicant to possession of the ship. The Further Amended Application also seeks declarations relating to claims for damages arising from the alleged unauthorised destruction and/or loss of possession of the ship. A Further Amended Statement of Claim was also filed on 9 September 2008. The Further Amended Statement of Claim raised the following claim (at [4]): At all material times the Applicant was responding to a sudden and extraordinary emergency and believed that each of the Vietnamese citizens who so fled from Vietnam to Australia were entitled to receive protection from Australia by virtue of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugee ['the Refugee Convention ']. For these reasons the applicant submits that there is no relevant contravention of the Migration Act , and that in the absence thereof there has been no forfeiture and accordingly the Court should not confirm the automatic forfeiture. The applicant invites the Court to revisit its findings in Tran No. 1 in light of its further submissions. The applicant claims that there has been a trespass to his property or intentional or negligent interference with his property and that just terms are payable under the Customs Act 1901 (Cth) in respect of the loss of the ship. The claim for damages is itemised in the amount of $307,274.85.