LIMITED DISTRIBUTION JUDGMENT No. 2062-S=—- IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VIC G90 of 1988 — Sew GENERAL DIVISION BETWEEN: HACOGLU_ TUNCAK Applicant AND: DEPARTMENT OF IMMIGRATION "AND ETHNIC AFFAIRS == Respondent CORAM: Davies, Neaves and Burchett JJ. [~ m™, <" DATE: 16 June 1988 2 PLACE: Melbourne a REASONS FOR JUDGMENT EX TEMPORE These are appeals from judgments of single judges of the court in respect of applications which were brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mr M. Wilks, the solicitor for the appellant, Hacoglu Tuncak, has applied for the adjournment of the appeals to a date later in these sittings of the Full Court or to the next sittings of the Court which commence on 14 November this year. Enquiries made by the Court indicate that it would be unlikely that a Full Court could be arranged to hear the appeals in Melbourne prior to the November sittings. 2. The application has been made on the basis that legal aid has been refused, counsel having advised that there were not reasonable prospects of success. The refusal has been reconsidered but to the same effect and Mr Wilks has now sought a review of the refusal. It does not appear, however, that Mr Wilks has materially different matters to put to the Legal Aid Commission on the review. The appellant is not an Australian citizen and has no permit to enter or to remain in Australia. On 25 July 1987 he arrived at Perth airport with a forged passport and without a visa or entry permit. After consideration of his position a decision was made that he not be permitted to enter Australia. A further decision was made under s.36A of the Migration Act 1958 (Cth) that the appellant be taken into custody. He was taken into custody and he has remained in custody since that time. Application was then made to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). On 1 September 1987, French J. dismissed the application delivering careful and comprehensive reasons for his judgment. In the meantime, formal application had been made by the appellant to the Department of Immigration and Ethnic Affairs for grant of refugee status and for an entry permit. Those applications were unsuccessful. The application for an entry permit was refused on 22 October 1987 and, thereafter, a further application was made to the Court under the 3. Administrative Decisions (Judicial Review) Act for an order of review with respect to that decision. That application was dismissed by Jenkinson J. on 5 February of this year. His Honour considered the case carefully and sympathetically. On appeal being brought from the judgment of French J., his Honour granted a stay of the decision to return the applicant. It does not appear that there is any present stay given by this Court but the fact is that the appellant has not been returned from Australia and is in custody under s.36A of the Migration Act. On the appeal being brought from the decision of Jenkinson J. it was arranged that the two appeals be heard together and they were fixed for this sitting of the Full Court in Melbourne. It is an important principle of administrative law that decisions such as those challenged in the present case, decisions as to entry to Australia, should be challenged promptly if at all. Administration should be fair but it must be effective. It leads to poor administration if decisions as to entry into Australia are not dealt with as promptly as the proper consideration of the matter will allow. In the present case, it is already unfortunate, by reason of the proceedings that have taken place, that the position of the applicant has not been finally determined and that he has been in custody for almost 12 months. [In the 4. opinion of the Court, it would be wrong to further delay the finalization of the issues which are before the Court in the absence of strong circumstances supporting a further adjournment. In the opinion of the Court, those circumstances are not present. The Court has considered the material in the appeal book respecting the appeal from the decision of French J. and his Honour's reasons for judgment. It has also considered the reasons for judgment of Jenkinson J. and the matters which have been presented by Mr Wilks this morning. These matters do not, in its opinion, raise circumstances which ought to overbear the principle I have already mentioned; namely, the principle that review of administrative decisions should be prompt. The Court has given very careful consideration to the matter raised by Mr Wilks, namely, that legal aid has been refused and that the appellant will not be legally represented on the appeal, at least not by counsel. However, the appeals have been on foot for a considerable time. There has been adequate time for the preparation of the matter. The appellant's case has been given careful consideration at trial level. The time which has elapsed from the decisions is, if anything, already too long. The decision given by French J. was given on 1 September 1987, that is 9 months ago. In these circumstances, it seems to the Court the matter ought not to be further adjourned because of the 5. possibility that, if the matter were reviewed by the legal aid authorities, legal aid might be granted. The Court has taken into account the very special circumstances of the appellant in this case, particularly his relationship to his three children in Australia. The Court is very concerned to ensure that the appellant has been given a fair opportunity to present his case. However, the Court has come to the view that that opportunity has been given to him and that it would be wrong now to delay this matter further. Those are the reasons of the Court for refusing the application for adjournment. Mr Justice Burchett would like to add a few words of his own. I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of the Court. Associate: e Vas 1§ Jun Date: 1988 LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VIC G.90 of 1988 wee ee ee GENERAL DIVISION BETWEEN: HACOGLU_ TUNCAK Applicant AND: DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: Davies, Neaves and Burchett JJ. DATE: 16 June 1988 PLACE: Melbourne REASONS FOR JUDGMENT EX-TEMPORE BURCHETT J. I agree that the adjournment sought should be refused, substantially for the reasons given by the Presiding Judge. I would like to add, for myself, that it seems that both appeals have been prosecuted up to this point on the basis that legal aid would be granted. However, it does not appear that any formal application for legal aid was made before 26 April. The application then made was refused on 2 June. We have been informed the legal aid administrators reconsidered the matter, but confirmed their refusal of aid only yesterday. The solicitor for the appellant now puts his application for adjournment substantially on the basis of those facts. Immigration appeals frequently involve urgency, and delay may be productive of substantial public expense. This is especially true of matters involving decisions taken under 56.36A of the Migration Act 1958 (Cth). It is the responsibility of those conducting such an appeal, usually with the benefit of injunctive relief or undertakings pending resolution of the appeal, to act promptly in the prosecution of the appeal and in the taking of all necessary steps, including applications for legal aid. It is also important that legal aid authorities have regard to the urgent nature of these matters. In the present appeals, it is not clear whether the delays which have occurred are simply the responsibility of the appellant and his own advisers, or are also in part the responsibility of the legal aid authorities. But those delays had their origin in the failure to prosecute the application for aid with sufficient diligence in the first place. For that, the appellant must bear responsibility. Furthermore, he and those advising him are not entitled to assume that any delay, however great, in finalizing an application for legal aid will lead to an adjournment. The Court must consider the effect upon the opposing party and upon the administration of justice. If, at the proper time, legal aid has not been obtained, a party may have to proceed without it, particularly if his delays are responsible or in part responsible for aid being then unavailable. Legal aid authorities should themselves always be conscious of these considerations, as I am confident they generally are, and particularly of the embarrassment to the due administration of justice, and the unfairness to other parties, which a failure to determine an application for legal aid with promptitude can cause. In the particular circumstances of the present appeals, I agree that the application for adjournment should be refused. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour My. Justice Burchett. Uidhacassociate Tune 192? Solicitor appearing for the Appellant: Mr M. Wilks Dated: | Solicitors for the Appellant: Messrs Sackville, Wilks & Counsel for the Respondent: Mr T.J. North Solicitors for the Respondent: Australian Government Solicitor Date of hearing: 16 June 1988