Yeoh, Wai Yee v Minister for Immigration & Multicultural Affairs [1997] FCA 1316

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Writ of Habeus Corpus - Reasonableness of suspicion - Principles to be applied - Dispute as to identity of person Migration Act 1958 (Cth) ss 186, 188, 189,196

George v Rocket (1990) 170 CLR 104, refd. Hussien v Chong Fook Kam [1970] AC 942, refd. Liversidge v Anderson [1942] AC 206, refd. WAI YEE YEOH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 888 OF 1997 EMMETT J SYDNEY 31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 888 of 1997

BETWEEN: WAI YEE YEOH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 31 OCTOBER 1997

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: There is before the court an application for a writ of habeas corpus brought on behalf of a young woman to whom I shall refer as the applicant because one of the questions before the Court is her identity. The applicant has been detained under section 189 of the Migration Act 1958 (Cth) ("the Act"). Under section 13 of the Act a non-citizen who holds a visa that is in effect is a lawful non-citizen and under section 14 a non-citizen who is not a lawful non-citizen is an unlawful non-citizen. Section 188(1) provides that an officer may require a person who the officer knows or reasonably suspects is a non-citizen to show the officer evidence of being a lawful non-citizen. Section 189(1) then provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person. Under Division 8 provision is made for removal in certain circumstances of an unlawful non-citizen. However, under section 186, an unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is removed or deported or granted a visa. Section 186(3) prevents the release, even by a court, of an unlawful non-citizen from detention unless a visa has been granted. However, section 196(2) makes clear that section 196(1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. Two questions arise in the proceedings before me. The first is whether the detention of the applicant was in accordance with section 189. In other words, should I conclude that an officer reasonably suspected that the applicant was an unlawful non-citizen? Second, even if I am satisfied that the detention was in accordance with section 189, should I be satisfied that the applicant is, in fact, not an unlawful non-citizen, but a lawful non-citizen. If I am, the applicant should be released. The applicant came to Australia on 16 September 1997. It appears that she was admitted into Australia under a visa granted to a Malaysian passport No A8674180. The person to whom that visa was granted, according to the records of the Department of Immigration, was named Wai Yee Yeoh and was born on 22 June 1979. On 18 October 1997, an immigration inspector, Mr Brad Morgan White, was on duty at Kingsford Smith Airport. At about 8.50 pm he was requested by officers of the Australian Customs Service to attend the immigration and customs clearance hall. There he was introduced to a party of three Malaysian passengers who became known to him as Mr Khay Leong Lim, Ms Gaikwah Low and Ms Yeanlin Tay. As a result of information obtained in the course of interviews of those three passengers, Mr White formed the view that the passengers intended to work whilst in Australia. The three were refused immigration clearance and were removed from Australia on 19 October 1997. However, during the course of his interview with Mr Lim, Mr White obtained information that a person identifying herself as Mr Lim's fiancee was waiting for him in the arrivals area. That person was identified as the applicant who was invited into the immigration interviewing area by Mr White. Mr White said that, following his interview with Mr Lim and the information which had been obtained as a result of the interview with Ms Low and Ms Tay, he had a suspicion that the applicant may also have been working in Australia and that if so, that would have been in breach of visa conditions, should she be the holder of a tourist visa. With that suspicion, he then embarked on an interview with the applicant. Having inquired of her, he arranged for an interpreter to be made available by means of telephone communication. I have had evidence from Mr White and from the interpreter as to their recollections of the interview which then proceeded. There is some discrepancy between those two versions. Notwithstanding the discrepancy, I accept that both witnesses were honest witnesses and that, to the extent to which there were discrepancies, that may well have been the result of mistaken recollection or misunderstanding because of language differences. The interpreter, Winifred Tze-Wing Lee, was not a native English speaker but is qualified in both Cantonese and Mandarin. Mr White's recollection of the interview is that he asked the question "What is your real name?" A response was given with a spelling via the interpreter. The spelling that was given by the interpreter was "Yang, Pei Yu", Yang being the family or surname and the other two names apparently being given names. Ms Lee's recollection was that the first question was "What is your name?" Ms Lee says that the response that was given, although it is not clear whether the question was translated or not, was "Yeung, Pui Yu". Ms Lee says that Mr White then asked her to spell that name. She started to do so using the Cantonese spelling, namely, "Yeung Pui Yu". Ms Lee said, however, that the applicant interrupted her and said "Mandarin" and spelt her name as "Yang Pei Yu" which the interpreter then interpreted for Mr White. Thus the two versions are much the same although one contains more information than the other. One distinction is the omission in Ms Lee's version of the word "real." There is then a further discrepancy as to the order in which the next two questions were put. Mr White says he asked the question "What is your real date of birth?" and received the response "22 June 1979." Ms Lee says that that question was asked but it was the third question. Her version of it was "What is your true date of birth?" the response being "22 June 1979." Ms Lee, however, says that the second question which was asked by Mr White was, "What is your full name?" She said that she received the response from the applicant "Yeoh Wai Yi" which she spelt out. Mr White said that the third question which he put was "What is the alias you used to travel to and enter Australia?" and received the response "Yeoh Wai Yee" the spelling being given to him by the applicant via the interpreter. There is thus a significant discrepancy between the two versions as to the question which was actually put. Mr White was fairly adamant that he used the word "alias" because it is a question which he says he normally uses in such circumstances. Ms Lee, on the other hand, did not have any recollection of the word "alias" being used in the question. As I have said, I accept that both witnesses were honest and it may be that there was simply a misunderstanding or a poor recollection one way or the other. The critical question which arises in relation to the answer is whether the applicant, in referring both to the name "Yang Pei Yu" and the name "Yeoh Wai Yee", was in effect acknowledging the use of two names or whether those two spellings are simply different means of transliteration of the name by which the applicant is known. The evidence as to this question was left in what I regard as an unfortunately unsatisfactory state. The applicant gave evidence before me through an interpreter, Mr John Tang. Mr Tang was subsequently called to give expert evidence on the question and swore an affidavit. In that affidavit he said that in Cantonese the name of the applicant is written as "Yeung" and that in Mandarin the name is written "Yang". However, he said that in the Chinese community in Malaysia the same name is written as "Yeoh." In a subsequent affidavit he elaborated on that evidence by saying that the Malaysian spelling of "Yeoh" does not mean that the name is pronounced differently by Chinese speakers in Malaysia. "Yeoh" is the way the name is spelt in Malaya (sic). Mr Tang said that Chinese people from mainland China and Hong Kong spell Chinese names differently in "Latin script", (meaning I assume Roman script), the way in which Chinese people in Malaysia spell the same name. He says that the name "Yeoh" is also spelt "Yeo" in Malaysia. He went on to say that it is possible that the given names "Pui Yu" in Cantonese and "Pei Yu" in Mandarin may be written as "Wai Yee" but said he would need to see the relevant Chinese characters. He asked the applicant if she can write her name in Chinese characters but she has not been able to do so. Ms Lee in her affidavit said that when the applicant spelt out "Yeoh Wai Yee", she, Ms Lee thought: ...this spelling of Yeoh must be a Malay spelling. She did not elaborate on that and was not asked any questions about it. It is a somewhat delphic observation but I took it, insofar as it says anything, as meaning that she understood that the spelling of the applicant's name as "Yeoh" must be a Malay spelling. She did not express any doubt as to whether that was a possibility although she made no observation one way or the other. It is significant that she thought that that might be a possibility. That is what Mr Tang says was the fact, namely, that the Chinese characters which would be pronounced "Yeung" in Mandarin or "Yang" in Cantonese may be written by a Cantonese speaking Malaysian as "Yeoh." As I have said, I do not regard the evidence before me as satisfactory but I am prepared to accept that it is probably more likely than not that the Chinese name which in Cantonese is pronounced and, when transliterated, spelt "Yeung" and which in Mandarin is pronounced and spelt "Yang" is in Malaysia sometimes written as "Yeoh." I shall come back to the significance of that conclusion shortly. Mr White said that he formed a suspicion that the applicant was an unlawful non citizen on the evening of 18 October having regard to several circumstances. The first was the fact that the applicant appeared to have an association with three persons who he concluded were endeavouring to enter Australia under what may well have been false pretences, namely, under a visa which did not authorise work in circumstances where he concluded that the two women were intending to work as prostitutes. Secondly, he concluded from his understanding of the responses which he received from the applicant that she was acknowledging that her real name was Yang but that she had sought entry into Australia under a different name, namely, Yeoh. Mr White said that he made inquiries of a computer data base maintained by the Department of Immigration which indicated that no visa had been granted for a person with the date of birth, 22 June, 1979 in the name of Yang. He did find, however, that there had been a visa granted in the name of Wai Yee Yeoh for a person having a date of birth of 22 June 1979. His conclusion therefore was that no visa had been granted to the applicant and that she had gained entry into Australia using false identity documents. The applicant was unable to produce any passport or other identification. She said in her affidavit that on 3 October 1997 when visiting Paddys Markets in the city between 2.00 and 3.00 pm she was carrying a handbag with a shoulder strap and that inside her handbag she had a purse which contained amongst other things her passport and return flight ticket to Malaysia. She says that some time after 3.00 pm she discovered that her purse was no longer in her handbag and immediately attended the City of Sydney Patrol police station and reported the loss of her purse. She says that she then attended the Malaysian Consulate to apply for the renewal of her passport and to remedy the situation. I have no evidence before me as to what the outcome of any such application was but the applicant was unable to produce any evidence of identification. In the course of her interview by Mr White the applicant said that she had been working in a brothel at a place called Culture City. Mr White says that she told him in answers to questions that since her arrival in Australia she had worked as a prostitute in Sydney. There was produced to Mr White a bundle of documents which had apparently been in the custody of Mr Lim on his arrival at the airport. Those documents included two documents which were also in evidence before me. One was a document which has been shown by translation to be a birth certificate in respect of a female named Yeoh Wai Yee. It is not possible from the information on that document or in the translation to determine whether the applicant is the person shown in that birth certificate. The second document is a document entitled "Receipt of reported loss of identity card" having validity until 18 December, 1996. The document itself is dated 18 December, 1995. It contains a photograph of a young woman and what appears to be two fingerprints. Mr White said that when he looked at the photograph he was not satisfied that the photograph was a photograph of the applicant. The name contained in the document is Yeoh Wai Yee. I should interpolate that I was unable by looking at the photograph to form any conclusion as to whether it was or was not a photograph of the applicant. The applicant has been in court during the course of the hearing. Neither counsel suggested that any conclusion should be drawn one way or the other as to whether or not the photograph shown in the document was a photograph of the applicant. The applicant's case in relation to the first question was based on two matters as I understand counsel's submissions. The first is that some procedural unfairness could be gleaned from the way in which the interview was conducted and the applicant was treated. It was said that it was unfair for the applicant to be interviewed in a room at the airport late on a Saturday night in circumstances where the only other person present was Mr White. However, no evidence was led as to what alternative was open to an officer in Mr White's position. His evidence was that although the interview took place in an interview room the door was open and in the neighbouring office there were several other officers and Federal Police. While one might conclude that it might be disconcerting for a young woman to be interviewed in those circumstances I do not consider there is any basis for criticism of the way in which the interview was conducted. Second: it is said that the conclusion which Mr White drew was unreasonable and that he should have investigated further the concern about whether or not the applicant was the person who was the subject of the visa. It was suggested that he should not have concluded so readily that the names Yang and Yeoh were different, however there was no suggestion that Mr White was aware of the sort of evidence which Mr Tang gave. His understanding of the responses which he received was an acknowledgment of the use of an alias in connection with entry into the country. I was referred to the observations of the High Court in George v Rocket (1990) 170 CLR 104 at 115 concerning what must be established for there to be a reasonable suspicion. The joint judgment of the court contains references to the observations of Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948 to the effect that "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" Reference was also made to the observations made by Lord Atkin in Liversidge v Anderson [1942] AC 206 to the effect that suspicion and belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. In other words it may in the event turn out that suspicion turns out to be incorrect but that does not mean that it was not reasonable. I consider that there were grounds before Mr White on the evening of 18 October from which a reasonable person could surmise that the applicant was an unlawful non-citizen. The first ground upon which release from detention is sought must therefore fail. The second ground causes me considerable difficulty. I do not regard the applicant's evidence as reliable. The version of the interview which she gives in her affidavit does not accord at all with the version given by Mr White and Ms Lee. For example, she says that to the best of her recollection the interview took place at about midnight on 18 October although she conceded that she had a watch. Mr White and Ms Lee both indicate that the interview took place shortly after 9.30 pm. A contemporaneous note made by Ms Lee records the translation exercise as having occurred between 9.35 pm and 9.57 pm. The applicant also said that Mr White said to her, "If you deny that you are working as a prostitute in Australia we will send you somewhere "...if you say yes you will be free to go". The applicant says and I quote from the affidavit: The Immigration said words too similar to the above numerous times. That seems to be a fabrication in the light of the evidence of Mr White and Ms Lee. In cross-examination the applicant was asked with whom she was staying in Australia. She took a very considerable period of time to give the name Stanley Ching. She said that she had met Mr Ching very shortly before she came to Australia at the airport in Kuala Lumpur. She said that he gave her an airline ticket, some Australian currency and arranged for her visa. In her affidavit she had said that after completing her schooling "this year" she decided to come to Australia on holidays. She said that before coming to Australia she applied for a passport in Malaysia and obtained a three months tourist visa to Australia. In cross-examination she appeared to me to be evasive when asked about her schooling. She finally conceded that she completed her schooling last year. It may be that much is lost in translation from a Cantonese speaker to English. However, I consider that the answers she gave in some instances were inherently unlikely and I formed the view that I could not rely on her evidence where it was uncorroborated or was adverse to her own interest. The question, therefore, is whether I am now satisfied as to whether or not the applicant is an unlawful non-citizen. That question depends upon whether I am satisfied that she is the person who is the subject of the visa in the name of Wai Yee Yeoh recorded in the Department's data base. It was not suggested that the onus was any greater than the ordinary civil onus. That is, I should be satisfied on the balance of probabilities. As I understand the Minister's contention, it would be accepted that if I were satisfied on the balance of probabilities then I should order the release of the applicant. There were, it seems to me, means whereby further light could have been thrown on the identity of the applicant. Her evidence was that she was living with Stanley Ching at an address in Pyrmont and, so far as she was aware, Mr Ching was in Sydney. The precise relationship between the applicant and Mr Ching is by no means clear but if, as she said, Mr Ching had arranged for her visa and arranged her ticket, he may well have been able to throw some light on her identity. Mr Ching was not called to give evidence. In addition, the document identified as a receipt for a lost identity document, also contains a representation of fingerprints. It would have been possible, I would have thought, for some comparison to be made between those fingerprints and those of the applicant. There is, however, no evidence of that before me. While I am disposed to conclude that, on the balance of probabilities, there could well be confusion concerning the name which might be represented either as Yang, Yeung or Yeoh, I am not satisfied, on the balance of probabilities, that the applicant is the person who is identified in the data base as being the subject of a visa. In those circumstances I would conclude that I am not satisfied on the evidence before me at present that the applicant should be released. However, I am very much mindful of the urgent circumstances in which this case has been brought before me and of the difficulties in obtaining evidence of the nature to which I have referred. I does appear to me, however, that there ought to be available to the applicant some evidence which is capable of identifying her as the person shown in the data base as Wai Yee Yeoh. For that reason I have indicated to counsel for the applicant that if he wished to seek leave to re-open then I would be disposed to entertain such an application subject, of course, to anything which counsel for the Minister might say about that matter. At the moment I propose to do nothing other than, having expressed these reasons, to stand the matter over to enable the parties to take instructions and to see whether they wish to take the opportunity of obtaining further evidence one way or the other which might enable me to form a view as to whether the applicant is indeed the person who is the subject of the visa. As I have said, I have certainly not concluded that she is not but I do not at the moment consider that I can conclude that she is. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett