Tuncak, H. v Dept of Immigration & Ethnic Affairs

[1988] FCA 306

LIMITED DISTRIBUTION

IN THE FEDERAL COURT	OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	)	No. VIC G90 of 1988
1
GENERAL DIVISION	1

BETWEEN :  HACOGLU TUNCAK

Applicant

AND :	-	AND ETHNIC AFFAIRS
DEPARTMENT OF IMMIGRATION

Respondent

CORAM :  Davies, Neaves and Burchett JJ. /.'X'- % b..-*

- DATE : 16 June 1988 . _ :\ 1

r 7

I t

PLACE:  Melbourne ,-

REASONS FOR JUDGMENT

EX TEHPORE

Th are appeals from judgments of sing 'le judges of

the court in rerpect	of applications which were brought under
the Adrinirtrative Decisions (Judicial Review) Act	1977 (Cth).

Hr M. wilkr, the solicitor for the appellant, Hacoglu

Tuncak, ha.	applied for the adjournment of the appeals to a
date later in these rittings of the Full Court	or to the next
rittingr of the Court which commence on 14 November this	year.
Enquiries made by the Court indicate that	i would be unlikely

that a Full Court could be arranged to hear the appeals in

Melbourne prior to tho November sittings.

The application has been made on the basis that legal

aid ha8 been refused, counsel having advised that there were
not reasonable prospects of success. The refusal has been

reconsidered but to the same effect and M C 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 decirion 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 war then made to thin Court under the

Administrative Decirions (Judicial Review) Act 1977 (Cth). On
1 Soptombor 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 wero 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

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 f

Jenkinoon J. it was arranged that the two appeals	be heard
together and they were fixed	for this sitting of the Full
Court in Nelbourne.

It is an important principle of administrative law

th8t 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 lead6 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 procaedings 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

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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 fir 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
oh the appoal, at least not by counsel.	However, the appeals

have beon on foot for a conriderable time. There has been

adequate tiro 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 there circumBtances, it seems to the Court the

natter ought not to be further adjourned because of the

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possibility that, if the matter were reviewed by the legal aid

authoritier, legal aid might be granted.

The Court has taken into account the very special

circumstance# 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 wordr of his	own.
I certify that thir and the	4

preceding pager are a true copy of the Rearonr for Judgment herein of

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA 1

1

VICTORIA DISTRICT REGISTRY	1	No. VIC G.90 of 1988
1
GENERAL DIVISION	1

BETWEEN:

HACOGLU TUNCAK

Applicant

- AND :

DEPARTMENT OF IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

C O W :	Davies, Neaves and Burchett JJ.
16 June 1988
-E:	Melbourne

REASONS FOR JUDGMENT

EX-TEMPORE

BURCEETT 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 mymelf, that it seems that both appeals havo boon promecuted up to this point on the basis that legal aid

would b. 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	yeaterday.

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 s.36A of the Higration 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
appeala, it is not	clear whether the delays which have occurred

are aimply the responribility of the appellant and his own

adviaers, or are alro in part the responsibility of the legal aid

authoritier.	But thoro delays had their origin in the failure	to
prosecute the application	for aid with sufficient diligence	in

the firrt place. ?or that, the appellant must bear

rerponribility.

?urthermore, he and thoro advising him are not entitled

to asrume 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 opporing party and upon the

administration of jurtice. If, at the proper time, legal aid has

not been obtained, a party may have to proceed without it,

particularly if his delays are reaponaible or in part responsible

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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 partie6, 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

Justice Burchett.

Associate

Solicitor appearing for the Appellant: Mr M. Wilks

Solicitors for the Appellant: Messrs Sackville, Wilks 6 Co.

Counsel f o r the Respondent:  MC T.J. North

Solicitors	for	the	Respondent:	Australian	Government
Solicitor

Date of hearing:  1988 16 June