Re Hacoglu Tuncak v the Honourable Michael J Young, Minister of Immigration and Ethnic Affairs [1987] FCA 249 (29 July 1987)

FEDERAL COURT OF AUSTRALIA

Re: HACOGLU TUNCAK
And: THE HONOURABLE MICHAEL J. YOUNG, MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS
No. VG 195 of 1987
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Immigration - Turkish national- previously prohibited immigrant and prohibited non-citizen in Australia - attempt to re-enter on false passport - stopped at airport - decision to remove from Australia - order made under s.36A Migration Act - married to British citizen permanent resident of Australia - 3 Australian children under age of 4 - no reason given for decision - decision harsh - so harsh as to give rise to possibility of error in principle - stay extended to enable hearing of review application.

Migration Act 1958 s.36A

Administrative Decisions (Judicial Review) Act 1977

HEARING

PERTH
29:7:1987

Counsel for the Applicant: Mr B.F. Stokes instructed by B.F. Stokes & Associates.

Counsel for the Respondent: Ms. C. Fancas instructed by the Australian Government Solicitor.

ORDER

That the Respondent be restrained until the hearing and determination of this application or until further order from taking any steps to have the applicant removed from Australia.

Costs of the motion in the cause.

Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

DECISION

Hacoglu Tuncak is a citizen of Turkey. He is 29 years of age. He describes himself as a Kurdish freedom fighter and is a member of an organisation known by the initials PKKO. That organisation is opposed to the Turkish government.

2. Tuncak was last in Turkey, it is said, in 1976. Between 1976 and 1981, so his counsel informed me, he travelled in other parts of the world. In 1981 he stowed away on board a ship called the Kopa and travelled to Sydney where he entered Australia illegally.

3. He escaped detection and remained in Australia as a prohibited immigrant.

4. Changes in the law effected by the Migration Amendment Act 1983 mean that since that year he would have been classed as a prohibited non citizen.

5. In 1983 he says he married Seniz Obturk-Tunca, a British citizen and a permanent resident of Australia living in Melbourne.

6. According to Tuncak the couple have had 3 children, Omar born in 1984, Hasan born in 1985 and Hizir born in 1986.

7. He claims to have applied for permanent resident status in 1984 after the birth of his first child.

8. However he left Australia prior to any decision being made on that application.

9. In 1985 he re-entered Australia on a three month visa, issued in Bangkok. He claims to have again applied for permanent resident status.

10. However after 8 months no decision had been made and in 1986 he had to go to England "for the organisation", evidently a reference to the PKKO. His wife and children accompanied him.

11. He went to England for 10 days and then to Malaysia where after 1 week he was arrested and held in custody pending extradition proceedings by the Turkish government on charges of murder and escaping legal custody.

12. He was held in prison in Malaysia until 29 June 1987 when he was released following the dismissal of the extradition proceedings for lack of evidence.

13. He says that on the day he was released he approached the Australian High Commission in Kuala Lumpa and applied for a visa to re-enter Australia. He was only given 6 days by the Malaysian authorities before he had to leave that country.

14. He told the Commission that he wanted to come to Australia to join his wife, children and brother.

15. He was given a further 3 day extension from the Malaysian government, but after 10 days he still had no answer from the Australian High Commission, so he left Malaysia for Brunei and then Bangkok.

16. In Bangkok he obtained a false Turkish passport in the name Zulfukar Aslan. The passport contained a false "authority to return to Australia" purportedly issued in Melbourne.

17. Using this passport and authority he travelled on Thai Airlines to Perth where he arrived on 25 July.

18. The false passport was detected by immigration officials at Perth airport.

19. Tuncak was interviewed and after an unsuccessful attempt to deceive the immigration inspector, gave the account of his movements outlined above.

20. His wife, he said, was currently living in a flat in Melbourne, although he did not know the address.

21. She had allegedly left their 3 children to their own devices. The children he said, were now being cared for by his brother who also lives in Melbourne.

22. He told the immigration inspector that he had no criminal convictions and denied any suggestions that he had been involved in acts of terrorism. He could not however answer for his organisation.

23. His plan had been to travel on to Melbourne and give himself up to the Department of Immigration and Ethnic Affairs there and apply for permanent resident status.

24. He told the inspector that he wished to enter Australia.

25. The inspector discussed the position with senior officers of the Department in Perth and Canberra. A decision was then made to refuse entry and to arrange under s.36A of the Migration Act for his departure on the first available Thai Airlines flight.

26. Arrangements were made for him to depart from Australia on 26 July.

27. However on 26 July his family in Melbourne brought an application under the Administrative Decisions (Judicial Review) Act in his name, seeking to review the decision refusing entry.

28. The application was expressed to be on the following grounds:-

"(a) That in all the circumstances the Order of refusal
of entry should not have been made;

(b) that the said Minister did not have the power to
make the Order;

(c) that the applicant was not allowed or permitted to
make submissions to the Minister;

(d) that the Minister did not give due weight to the
Applicant's circumstances."

29. Application for interlocutory relief was brought before Ryan J. on the same day and was supported by a short affidavit sworn by a Melbourne solicitor.

30. On the application for interim relief Ryan J. made the following orders:-

"1. The execution of the Respondent's decision that the
Applicant be returned to Malaysia be stayed until
4.15 pm (Perth time) on Tuesday the 28th day of
July 1987 or further order.

2. That a copy of the application, affidavit in
support and of this order be served on the
Respondent by 1 pm on the 27th day of July 1987.

3. That subject to any further or other order of the
Court, the first directions hearing in the
application and the Applicant's claim for
interlocutory relief be heard in Perth at 10 am on
28 July 1987."

31. The matter came on before me yesterday when Mr Stokes appeared for Tuncak. He had only that morning obtained instructions from his client presently being held in Fremantle Prison.

32. The information he presented was given orally from the bar table without any affidavit material to support it.

33. It accorded substantially however with the information presented by Tuncak to the immigration inspector at Perth airport, as evidenced by that inspector's report. The report was exhibited to an affidavit of Alan James Hodder, the Assistant Director, Migrant and Visitor Entry Branch of the Department of Immigration and Ethnic Affairs, Perth Regional Office.

34. In support his application for an extension of the stay order Mr Stokes informed me that he had prepared an application for his client to be given refugee status and for an entry permit under s.6A of the Migration Act.

35. These facts have no bearing upon the question whether a stay order should be granted. The grant of such an order under s.15 of the Administrative Decisions (Judicial Review) Act must be based at least upon some perceptible ground for review of the decision impugned and a finding that the balance of convenience favours the applicant.

36. The exercise of the discretion to make such an order must also recognise what the Full Court said of s.36A in Faingold v Zammit (1984) 1 FCR 87 at 93:-

"We emphasise that the timetable provided by the section
requires action of the most expeditious kind. Notice
must be served on the airline within 24 hours after the
person is taken into custody (sub-s.(4)) and the airline
is required to comply with the notice within seventy-two
hours from the time of service of the requirement on it
(sub-s.(5)). The airline is liable to pay the
Commonwealth a fair sum for the cost of keeping and
maintaining a person while he is in custody in
compliance with sub-ss.(1), (2) or (3) (sub-s. (7)). If
one were to allow a request for reasons (assuming the
respondents be obliged to give them) to delay matters,
the intended operation of section 36A would be
frustrated. In the absence of there being demonstrated
some basis upon which it might reasonably be considered
that the conduct of the Minister or one of his officers
under the section was unlawful, it seemed to us that one
ought not to allow a request for reasons to prevent the
operation which the section was intended to have."

37. Notwithstanding that policy, the section does give rise to a discretion and a decision made under it is reviewable under the Judicial Review Act.

38. In the course of his argument Mr Stokes submitted a number of bases upon which the decision might be reviewed.

39. These comprised in large part relevant considerations which it was said, the officer making the decision had failed to take into account.

40. The applicant is not assisted in that exercise by the absence of any evidence of the basis upon which the decision in question was made.

41. That is not to say that there was any obligation to give such reasons. The policy of s.36A as indicated in Faingold v. Zammit certainly does not give rise to any suggestion that the applicant is entitled to them.

42. It is not possible to conclude from anything in the immigration inspector's report that any relevant consideration was overlooked.

43. The decision taken however is on the face of it a harsh one, having regard to the applicant's claim to have a wife who is a permanent resident and three children under the age of 4, each of whom is an Australian citizen, living in Australia.

44. Even in the absence of reasons the decision is on the face of it so harsh that it gives rise to the possibility of an error in principle arising out of a failure to give any weight to the position of the wife and children. Alternatively it gives rise to the possibility that the decision was made unreasonably in the sense contemplated by s.5 of the Judicial Review Act.

45. On this basis I am prepared to extend the interlocutory stay to enable the application to be heard and disposed of.

46. I should observe that Mr Stokes yesterday made much of the danger to the applicant that if he were returned to Malaysia he might be from there repatriated to Turkey where it is said he could be liable to be executed for alleged anti-Turkish activities.

47. While such considerations may go to the balance of convenience they have little to do with the question whether there is a case for judicial review.

48. In particular and having regard to the absence of any claim of danger made on the part of the applicant, I cannot see that the immigration authorities were to be fixed with constructive notice of such considerations.