62% LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.562 of 1986 GENERAL DIVISION BETWEEN: PARK OH HO, LEE JAE EUN, KO JUNG WOONG, LEE JONG IN, HAN BUM HOON, SONG BANG JIN, CHONG BONG YOL Applicants \2iw] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. In these matters, the applicants were a group of persons desiring to come to Australia from Korea who, on the evidence, arrived some time last July. It appears that the arrangements for their travel purported to be pursuant to the business migration scheme, a scheme operated by the Department of Immigration. In fact, the -arrangements were not pursuant to that scheme, or at any rate not properly pursuant to it. Those arrangements involved the criminal activities of persons including persons then within the Customs Department. L. am 2. informed that charges have been laid against two officers, or former officers, of Customs, and at least one other person. Upon their arrival, 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 police officers, and the evidence (which is necessarily incomplete and sketchy, since the matter 1s presented to me as a matter of extreme urgency) indicates that certain proposals were put to them by officers of the department and police officers, suggesting that they could stay in Australia if they were prepared to co-operate and give evidence in the prosecution, They agreed to do that, and 1t 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 did not occur, and the evidence indicates that they wrote letters which are consistent, bearing 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, although, the applicants being in detention, there could have been no difficulty in carrying them out. The respondent has not chosen to put any evidence before me. It seems to me that the ordinary principle in Jones v. 3. : Dunkel 101 C.L.R. 298 must be applied in that situation, and that inferences that are reasonably open, on the evidence that 1s before me, may be relied upon with greater confidence, in accordance with that principle, than would otherwise be the case. The inference seems to arise, from an unexplained delay of more than three months in carrying out the deportation orders, that there must have been some further administrative decision, either to revoke or to defer the carrying 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 prima facie ground to infer 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 either reinstated or carried out. In that respect, the principles in Kioa's case (1985) 62 A.L.R. 321 at 345 and in Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629 would seem to me to be relevant. The applicants' evidence is that, having received no answers to their communications, and their incarceration having continued for such a lengthy period, they complained to the Ombudsman and were interviewed by the Ombudsman on 24 November 1986 at Villawood. Still without any reply being given to their letters or any opportunity being afforded them to make representations as to why such action should not be taken, they were then notified of the intended deportations which, in the case of at least three of them, are to be carried out (unless the Court intervenes) at 8 o'clock tonight (26 November 1986). The applicants claim that the inference should be drawn that the carrying out of the deportation orders 1s intended to stifle the Ombudsman's investigation. But more importantly, for present purposes, they claim that they have been denied natural justice in the failure to give them an opportunity to make representations as to why the investigation should be permitted 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 notified that charges would be made for their support at Villawood, notwithstanding that they had remained originally in response to the request, to which I have already referred, to co-operate in the prosecutions. They have been given no opportunity to debate the rights and wrongs of that matter, since, as I have said, the evidence 1s 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 within 5 years, and a further alleged policy that charges made, of the nature of the charges I have referred to, 5. are required to be paid before persons subject to such charges are permitted to re-enter Australia. A number of other issues have been raised by the affidavit on which 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 raised would require an amendment, or perhaps a number of amendments, including, at least, the seeking of extensions of time by application to enable the applicants to challenge, not merely the decisions to carry out the deportations, but also the initial decisions to refuse entry permits; the decisions to make the deportation orders; and, possibly, 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 applicants are within 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 said enough to indicate that, 1f 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 in these reasons upon the application as 1t stands, and, for the reasons that I have given, I think there 1s 6. a serious question to be tried within the principle of the Coarse Grain case (1982) 57 A.L.J.R. 425. So far as the balance of convenience 1S concerned, I think this clearly favours the applicants, and accordingly, unless appropriate undertakings are given, I would propose to grant relief. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Hern Hehe Associate Dated: 26 November, 1986.