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 possbility of error in principle - stay extended to enable hearing of review application. Migration Act 1958 s.36A Administrative Decisions (Judicial Review) Act 1977 Faingold v Zammit (1984) 1 FCR 87 HACOGLU TUNCAK V THE HONOURABLE MICHAEL J. YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS No. VG 195 of 1987 FRENCH J. 29 JULY 1987 PERTH ' Ow py Sceaamarert awe we. aires ihe i es me nN fi te IN THE FEDERAL COURT ) OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) ) GENERAL DIVISION NO. VG 195 OF 1987 BETWEEN: HACOGLU TUNCAK Applicant and THE HONOURABLE MICHAEL J. YOUNG MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 29 JULY 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. 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. 2. Costs of the motion in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. i - wae ier raletiieattet seated ~ A i Be rn en ees aes - IN THE FEDERAL COURT } OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) ) GENERAL DIVISION NO. VG 195 of 1987 BETWEE N: HACOGLU TUNCAK Applicant AND THE HONOURABLE MICHAEL J. YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: FRENCH J. 29 July 1987 REASONS FOR JUDGMENT 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. 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. He escaped detection and remained in Australia as a prohibited immigrant. ore oon oo pe pee a re ' are ep or are 2. 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. In 1983 he says he married Seniz Obturk-Tunca, a British citizen and a permanent resident of Australia living in Melbourne. According to Tuncak the couple have had 3 children, Omar born in 1984, Hasan born in 1985 and Hizir born in 1986. He claims to have applied for permanent resident status in 1984 after the birth of his first child. However he left Australia prior to any decusion being made on that application. In 1985 he re-entered Australia on a three month visa, issued in Bangkok. He claims to have again applied for permanent resident status. 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. 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. Ineo pee Bt tae se -* 3. He was held in prison in Malaysia until 279 June 1987 when he was released following the dismissal of the extradition proceedings for lack of evidence. 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. He told the Commission that he wanted to come to Australia to join his wife, children and brother. 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. 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. Using this passport and authority he travelled on Tha1 Airlines to Perth where he arrived on 25 July. The false passport was detected by immigration officials at Perth airport. er tyne conor t peecee cee a0 ee me ne ees i Pyrees cane ae * er 4. Tuncak was inlerviewed and after an unsuccessful attempt to deceive the immigration inspector, gave the account of his movements outlined above. His wife, he said, was currently living in a flat in Melbourne, although he did not know the address. 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. 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. 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. He told the inspector that he wished to enter Australia. 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 availabie Thai Airlines flight. ee ee eee f a te ren Ves 5. Arrangements were made for him to depart from Australia on 26 July. However on 26 July his family 1n Melbourne brought an application under the Administrative Decisions (Judicial Review) Act in his name, seeking to review the decision refusing entry. 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." 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. 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. " ' ot re mre Rr af Slot cod tet eel terion we ' waa forgo ae ow op nee ween ee alee ey rege eee ee = ar a . a Pee a es yt 6. 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." 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. The information he presented was given orally from the bar table without any affidavit material to support 1t. 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. 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. oot Sled > 2. St eunrinaieadie aatentateeiieeeeniieate > ae ae ree ares ee Ce ~— = ST TT These facts have nu bearing upon the guestion whether a stay order should be granted. The grant of such an order under cy 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. The exercise of the discretion to make such an order must also recognise what the Full Court said of s.36A in Faingold v Zammzut (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." Notwithstanding that policy, the section does give rise to a discretion and a decision made under it 1s reviewable under the Judicial Review Act. - an ae = ; spree amas ee Sweet wrens ne oe Sena B we on er tt eg ee cre 8. In the course of his argument Mr Stokes submitted a number of bases upon which the decision might be reviewed. These comprised in large part relevant considerations which it was said, the officer making the decision had failed to take into account. 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. That 1S 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. It 2s not possible to conclude from anything un the immigration inspector's report that any relevant consideration was overlooked. 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. 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 ae , ere wo ay 9. 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. On this basis I am prepared to extend the interlocutory stay to enable the application to be heard and disposed of. I should observe that Mr Stokes yesterday made much of the danger to the applicant that 1f 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. 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. 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. Soceer coo cope oe who 10. I certify that the preceding nine (9) pages are a true and correct copy of the Reasons for Judgment of His Honour Mr Justice French. . . Associate: "Deere UWE pate: AA1 3? Counsel: - for the Applicant: Mr B.F. Stokes instructed by B.F. Stokes & Associates - for the Respondent: Ms. C. Francas instructed by the Australian Government Solicitor Date of Hearing: 28 July 1987 Date of Judgment: 29 July 1987 reser a eal voor Gene wee oe,