Park Oh Ho and Others and The Minister of State for Immigration and Ethnic Affairs [1989] HCA 54

High Court of Australia Mason C.J. Deane, Toohey, Gaudron and McHugh JJ. Park Oh Ho and Others and The Minister of State for Immigration and Ethnic Affairs [1989] HCA 54

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Federal Court dismissing the appeals to that Court and in lieu thereof order that the appeals to that Court be allowed with costs and that the orders of Davies J. be varied by adding thereto a declaration that the detention in custody of the appellants during the period from 20 August 1986 to 2 December 1986 was unlawful.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 21 Mason C.J., Deane, Toohey, Gaudron and McHugh JJ.

The seven appellants are citizens of South Korea. They entered Australia illegally: one in December 1985; one in February 1986; and the other five on 26 July 1986. They claim that they were innocently involved in a migration racket organized by a South Korean (Mr. Choi) with the assistance of at least one other South Korean (Mr. Kang) and certain corrupt Australian Customs officers. Regardless of whether the appellants' assertions of their lack of knowledge are genuine, it is clear that, on entry, each of them became a prohibited non-citizen for the purposes of the Migration Act 1958 Cth ("the Act"). On 26 July 1986, the appellants were all arrested and taken into custody pursuant to s. 38 of the Act which, subject to certain safeguards, authorizes the arrest and detention in custody of a person reasonably suspected of being a prohibited non-citizen. It is now common ground that both the original arrest of each appellant and his subsequent detention (from time to time authorized under s. 38(3) by order of a local magistrate acting as a "prescribed authority") at a "Detention Centre" in the Sydney suburb of Villawood was lawful up until 20 August 1986. On that day, Mr. Tuchin, a senior officer of the Department of Immigration and Ethnic Affairs ("the Department"), ordered that each of the appellants be deported from Australia. In so ordering, Mr. Tuchin was acting as a delegate of the respondent Minister of State for Immigration and Ethnic Affairs ("the Minister").