To, Ho Ming v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 234

NOT FOR GENERAL DISTRIBUTION

JUDGMENT NO. 2.3 . 4.. :I ... 2.92

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO. 248 of 1990

)

GENERAL DIVISION )

BETWEEN: H0 MING TO

Applicant

AND: MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	18 MAY 1990

MINUTES OF ORDER	RECEIVED
FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

THE COURT ORDERS THAT:	REGISTRY
1.	pending any further order of the Court, the respondent, his servants and agents, be restrained from involuntarily removing or deporting the applicant from Australia.
In the event that the sister of the applicant, Ho

Ping Kwok, deposlts with the Registrar of the Court the sum of $10,000, as security for compliance with the conditions of this order, the applicant is to be

released from custody subject to the following

conditions:

(a)	his reporting.to the office of the Department of Immigration and Ethnic Affairs at Bankstown on each Tuesday and Friday;
(b)	his residing at 12 Supply Street, Lurnea;

(C) hls notifying the said Department of

any proposed change of address or change of material circumstances;

(d) unless the applicant shall have by
then departed from Australia, hls
appearing at the final hearing of this
proceeding.

Costs be reserved.

The matter be listed for directions on Friday, 29

June 1990.

Note:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules. [See also Order 37
rule 2(3)1.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO. 248 of 1990

)

GENERAL DIVISION )

BETWEEN: H0 MING TO

Applicant

Respondent

CORAM:	WILCOX J
PLACE:	SYDNEY
DATE :	18 MAY 1990

EXTEMPORE REASONS FOR JUDGMENT

This is an interlocutory application whereby the

applicant, Ho Ming To, seeks an extension of an interlocutory

order which I made last Monday, and continued last Tuesday,

restraining the respondent, its servants and agents from

taking any action to remove hlm from Australla.

I do not propose to deal with the facts at length.

~t is sufficient for me to say that I am of the oplnion that the applicant has established a serious question to be trled on the issue whether the decision which was taken last Sunday

to refuse him a temporary entry permit into Australia was
unreasonable. The decision was made under difficult
circumstances in that it was a Sunday and the applicant speaks
little, if any, English. The officer who was dealing with the
matter, MS R M McMahon, was faced with a communication problem
and she did her best by using the telephone Interpreter
service. Unfortunately, there were interruptions to the
service, with the result that her interrogation of the
applicant was through three separate interpreters. Some of
the answers given by the applicant, according to MS McMahon
and of course relying on the respective interpreters, were
mutually inconsistent. She was influenced by this perception
in making her recommendation to the Director of the
Department, MS Ruth Sharkey, that an entry permit be refused.

MS McMahon expressed the opinion that Mr To did not appear to be a genuine business vlsitor. This opinion seems to have been based substantially upon what she regarded as

misleading and inconsistent answers to questions. But it also

was related to the fact that he did not have any business

cards or company names in his baggage and that he had a

quantity of household and personal effects. Mr To has
explained the latter circumstance by saying that he was

proposing to stay with his sister and he had brought out

thlngs for her. It is not unknown for people travelling from

Hong Kong to Australia to bring personal items and household effects.

The absence of business cards and company names was a

matter which might properly excite some suspicion. But the explanation of his activities given by Mr To is that he was assisting his brother-in-law, who migrated to Australia with

Mr To's sister, his wife, in August last year, in searching for suitable properties for purchase.

I have not reached any final judgment about whether or not the decision ought to be regarded as unreasonable in the relevant sense. It would be incorrect for me to attempt

to do that. But I am concerned that the decision to refuse
the entry permit, being a decision made in respect of a person
who had a valid visa which remained current until 24 August
1990, was made on the basis of an interview conducted through
three telephone interpreters. I would have thought that,
under the circumstances, the better course would have been to
postpone a decision until after there could be an interview

with a single interpreter present, face-to-face, throughout.

I note, also, that Mr To says that he informed MS

McMahon that he would be residlng at 12 Supply Street, Lurnea.

According to MS McMahonrs understanding, Mr To said that he would be staying with a friend. Mr To's sister, Ho Ping Kwok,

does in fact reside at that Lurnea address. It would be

surprising if, under those circumstances, Mr To had used the words, "a friend". I think that this understanding may have been a casualty of the problems of interpretation. If

enquiries had been made from Mrs Kwok, MS McMahon would, I
think, have been rather more reassured about Mr To's support

durlng his perlod in Australia.

On the whole, and looking at the matter purely on an

interlocutory basis, I think that the correct vlew is that
there is a serious issue to be trled as to the validity of the
decision. Accordingly, I ought to make an order restraining
the removal or deportation from Australia of Mr To pending a

final hearing.

An application has been made to the Court that the

Court order the release of Mr To pendlng a final hearing.
This has been opposed. It has been pointed out that one
effect of a release will be that Mr To is no longer in
"custody", within the meaning of that term under s.11 of the
Migration Act 1958. He would become an illegal immigrant if
he ever sought to return to Australia after any departure. He
would have to reveal that fact upon pain of deportation on the

subsequent occasion. This has been pointed out to counsel for

Mr To and I understand that she has discussed this with her

client. Notwithstanding, I am asked to order Mr Tors release.

I think that the issue for me is whether Mr To is

likely to abscond if he is released from custody. As to that
matter, one question which immediately arises is whether there
is material indicating that he is a person not to be trusted
in respect of his compliance with the migration laws.

Mr To was cross-examined, at some length, by counsel for the Minlster in relation to the circumstances under which he applied for a visa in August 1989 and in relation to his

current trip. Notwithstanding the matters that were raised
with Mr To, I see no reason to believe that he has at any
stage set out to mislead the Australian migration authorities
or to defy his obligations under Australian migration law. I
think that it is noteworthy that he voluntarily departed
Australia in April this year, before the expiration of his

then- current entry permit and without any intervention of the

Department. If he was minded to "go underground", to use the

term selected by counsel for the respondent, it might have
been expected that he would do so at that tlme. But he dld

not. He returned to Hong Kong; and then he subsequently made

a return visit to Australia in accordance with the multlple

entry visa which he held.

Apart from the history of the matter, I have been

informed that Mr To's sister, Mrs Kwok, is prepared to deposit

a sum of $10,000 as security for her brother's compl~ance with the conditions of any order of release. I think that I should take this into account as a factor mitigating any temptation

that Mr To might have to abscond. Mr To would also, no doubt, take into account the fact that, if he were to abscond and was subsequently apprehended and deported, his chances of

obtaining permission to re-enter Australia at a future time

would be severely jeopardised.

I have been lnformed by counsel for the applicant

that, in any event, Mr To contemplates leaving Australia
within two months. He said in evidence that he stated in his
application for the entry permit that he proposed to stay in

Australia for four months but 'that he had in mind it would

probably only be two months. I do not want to take any course

which would present an impediment to Mr To voluntarily
departing Australia, if he is so minded. On the other hand it

is not for me to make any order in that regard.

The orders that I propose to make are as follows: I

order that, pending any further order of the Court, the respondent, his servants and agents, be restrained from

involuntarily removing or deporting the applicant from

Australia. In the event that the sister of the applicant, Ho

Ping Kwok, deposits with the Registrar of the Court the sum of

$10,000, as security for compliance wlth the conditions of

this order, the applicant is to be released from custody

subject to the following conditions:

(a	his reporting to the office of the Department of Immigration and Ethnic Affairs at Bankstown on each Tuesday and Friday;
(b)	his residing at 12 Supply Street, Lurnea;
(C)	his notifying the said Department of any proposed change of address or change of material circumstances;
unless the applicant shall have by then departed from Australia, his appearing at the final hearing of this proceeding.

Costs will be reserved. I stand over the matter for

directions to Friday, 29 June 1990. I note that the solicltor
for the applicant is preared to personally guarantee by
endorsement Mrs Kwok's personal cheque. Under those
circumstances I direct that payment by her of a personal
cheque so endorsed shall be regarded as a payment for the
purpose of these orders. I reserve the question of costs.
Liberty to apply on two days notice.

I certify this and the six
preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Counsel for the Applicant:	MS M Gilmour
Solicltors for the Applicant:	I Seeto & CO
Counsel for the Respondent:	Mr C J Stevens
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	18 May 1990