Ho, P.O. v Minister for Immigration & Ethnic Affairs

[1986] FCA 628

LIMITED DISTRIBUTION

IN	THE FEDERAL	COURT OF AUSTRALIA	1
)

NEW	SOUTH	WALES	DISTRICT	REGISTRY	1	No. G.562 of 1986
1

DIVISION	GENERAL	)
BETWEEN:

Applicants

AND : -

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J

In these matters, the appllcants were a group of persons

deslrlng to come to Australia from Korea who, on the evidence,

arrived some time last July. It appears that the arrangements

€or their travel purported to be pursuant to the business

migration scheme, a scheme operated by the Department of

Immigration. I-n Pact, the -arrangements were not pursuant o that

scheme, or at any rate not properly pursuant to it. Those

arrangements involved the criminal activities of persons

including persons then wlthin the Customs Department. L:am

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Informed that charges have been laid agalnst two oEflcers, or former offlcers, of Customs, and at least one other person.

Upon their arrlval, the applicants were not Issued with temporary entry permits. They were placed under arrest and were taken to Villawood Detention Centre. They were interviewed by officers of the department and pollce offlcers, and the evldence (which is necessarily incomplete and sketchy, since the matter IS presented to me as a matter of extreme urgency) indlcates that certaln proposals were put to them by offlcers of the department and police officers, suggesting that hey could stay in Australla if they were prepared to co-operate and give evldence in the prosecutlon.

They agreed to do that, and It was Indicated to them

they could expect arrangements to be made for their release from the detention centre, and for the Issue of entry permits. This dld not occur, and the evidence Indicates that they wrote letters which are consistent, bearlng In mind language problems and the

problems - apart from language - of lay persons, with the

allegations now made. Those letters were not answered.

Deportation Orders were made on 20 August 1986, but not

carried out, a l thmgh, the applicants being in detention, there could have been no difficulty in carrying them out.

The respondent has not chosen to put any evldence before

me. It seems to me that the ordlnary principle In Jones v.

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Dunkel 101 C . L . R . 298 must be applied in that situatlon, and that

lnferences that are reasonably open, on the evidence that 1s

before me, may be relled upon with greater confidence, ~n accordance with that prlnciple, than would otherwise be the case. The inference seems to arlse, from an unexplained delay of more than three months in carrylng out the deportatlon orders, that there must have been some further administrative decision, either to revoke or to defer the carrylng out of the orders, and that there must have been a more recent decision to reinstate the

original orders, or to carry them Into effect. There also seems prlma facie ground to lnfer that the applicants would have had a reasonable expectation, having regard to what occurred, that they would be heard before the deportation orders would be elther

relnstated or carrled out. In that respect, the princlples In Kioa's case (1985) 62 A . L . R . 321 at 3 4 5 and in Attorney-General of Hong Kong v. Ng Yuen Shlu [l9831 2 A . C . 629 would seem to me to be relevant.

The applicants' evidence is that, havlng received no answers to thelr communications, and their incarceration having continued for such a lengthy period, they complained to the Ombudsman and were interviewed by the Ombudsman on 2 4 November 1986 at Vlllawood. Still wlthout any reply being given to thelr letters or any opportunity being afforded them to make representations as to why such action should not be taken, they were then notifled of the intended deportations which, In the

case of at least three of them, are to be carrled out (unless the

Court Intervenes) at 8 o'clock tonight (26 November 1986).

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The applicants c l a m that the Inference should be drawn

that the carrylng out of the deportatlon orders 1s intended to

stifle the Ombudsman's investlgation. But more Importantly, for present purposes, they claim that they have been denied natural justice In the failure to glve them an opportunity to make

representations as to why the investigatlon should be permltted to proceed, and not be stultified by their deportation, and as to why they should not, in all the circumstances, be deported.

A further feature is that they have also recently -

though not quite as recently - been notlfled that charges would be made for their support at Villawood, notwithstanding that they

had remalned originally in response to the request, to whlch I

have already referred, to co-operate in the prosecutions. They

have been glven no opportunlty to debate the rlghts and wrongs of

that matter, since, as I have said, the evldence is that their communications, Including a request for an interview, have been ignored. At an interview, if the request had been acceded to, they might have had an opportunity to put representations upon each of these matters, and upon other relevant Issues.

It is pointed out that some of these issues are of

considerable significance to them, having regard to the policy that persons deported are not generally permitted to re-enter

Australia withln 5 years, and a further alleged policy that

charges made, of the nature of the charges I have referred to,

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are requlred to be pald before persons subject to such charges

are permitted to re-enter Australia.

A number of other issues have been raised by the

affidavit on whlch the applicants rely. I do not think it

necessary to go into these for the purposes of the present

interlocutory application. I think, however, I should point out that some of the issues ralsed would requlre an amendment, or perhaps a number of amendments, including, at least, the seeking

of extensions of time by application to enable the appllcants to

challenge, not merely the decisions to carry out the

deportations, but also the ~nltial decisions to refuse entry

permits; the declsions to make the deportation orders: and,

posslbly, decisions made upon reconsideration In response	to the
letters sent by the applicants.

However, the decisions to carry out the deportation orders are clearly decisions in respect of which the appllcants are wlthin time, upon the evidence before me at this stage. It

is conceivable, but unlikely, that further evidence may change

even that part of the picture before the matters come to be heard on a final basis. But I have sald enough to indicate that, If

Mr. Barlow wishes to persist in all of the matters he raised with

me, there will be extensive amendments required. However, I think it is clearly open to him to rely on the matters that I have dealt with ln these reasons upon the application as it stands, and, for the reasons that I have given, I think there 1s

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a serious questlon to be trled wlthin the principle of the Coarse

Grain case (1982) 57 A.L.J.R. 425. So far a s the balance of

convenience is concerned, I think this clearly favours the

appllcants, and accordlngly, unless appropriate undertaklngs are

given, I would propose to grant rellef.

I certify that thls and the

preceding flve (5) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

W

Dated: 26 November, 1986.