Tuncak, H. v Minister for Immigration & Ethnic Affairs
[1987] FCA 489
•01 SEPTEMBER 1987
Re: HACOGLU TUNCAK; SENIZ OZTURK-TUNCAK; OMAR, HASSAN and HIZIR OZTURK-TUNCAK
And: THE HONOURABLE MICHAEL J. YOUNG MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS
No. VG195 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 under s.36A Migration Act - application under Administrative Decisions (Judicial Review) Act 1977 for review of decision on grounds of failure to take into account relevant considerations, placing departmental policy ahead of individual circumstances, and unreasonable exercise of discretion - limited role of reviewing court - principles governing grounds of review - no obligation on Department to make extensive enquiries into Applicant's claims - decision not able to be set aside for error of law or procedure.
Migration Act 1958 s.6, s.36A
Administrative Decisions (Judicial Review) Act 1977
Gunaleela v. The Minister for Immigration and Ethnic Affairs (unrep. 21/8/87 Full Court)
Faingold v. Zammitt (1984) 1 FCR 87
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299
Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Topuz v. Minister for Immigration and Ethnic Affairs (unrep. 18/2/86 Keely J.)
Osman-Lloyd v. Minister for Immigration and Ethnic Affairs (unrep. 5/6/87 French J.)
HEARING
PERTH
#DATE 1:9:1987
Counsel for the First Applicant: Mr B. Stokes
Solicitors for the First Applicant: B.F. Stokes & Associates
Counsel for the Respondent: Ms. C. Francas
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The application is dismissed.
The applicants are to pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
In the early evening of 25 July 1987 Hacoglu Tuncak, a Turkish national, arrived at Perth International Airport from Bangkok on Thai Airlines Flight TG989.
He was travelling under a false name, Zulfukar Aslan,and using a forged passport which he had purchased in Bangkok. The passport contained a false "Authority to Return to Australia" purportedly issued in Melbourne.
The forgery was detected by officers of the Department upon his arrival at the airport.
Tuncak initially tried to deceive the immigration inspector on duty, Glen Dival, with a false account of himself. The attempt failed and he then gave a history which he now says is correct.
Having taken that history, Dival rang Alan James Hodder, the Director of the Migrant and Visitor Entry Branch of the Department of Immigration and Ethnic Affairs in Perth.
He gave the substance of Tuncak's history and recommended to Hodder that he not be permitted entry into Australia. Hodder accepted that recommendation and decided accordingly. Tuncak was then taken into custody under s.36A of the Migration Act 1958 and arrangements made for his return to Bangkok on the next available Thai Airlines flight out of Perth on 26 July.
On that day his family instituted an application in the Federal Court, Melbourne registry, for judicial review of the decision to refuse entry. The application was brought under the Administrative Decisions (Judicial Review) Act 1977 and included a claim for interlocutory relief.
Ryan J. made an order on the same day staying the operation of the decision until 4.15 pm on Tuesday, 28 July and transferring the matter to the Perth Registry of the Court.
That injunction was extended on 28 July until the hearing and determination of the application or further order.
History Given to Immigration OfficialsTuncak's personal history, as he gave it to Dival, disclosed that he was born at Ankara in Turkey on 19 March 1958.
He came to Australia as an illegal immigrant in 1981 and stayed in this country until 1984. On 23 December 1983 he married Seniz Ozturk-Tuncak, a British citizen who had permanent resident status in Australia. They had 3 children, Omar born 1984, Hassan born 1985 and Hizir born in 1986.
After the birth of their first child Tuncak applied in Melbourne for permanent resident status.
However before any decision was taken on that application he left Australia for a short time and travelled to Singapore, Malaysia and Hong Kong. He re-entered in 1985 on a 3 month visa issued in Bangkok. Again he applied for permanent resident status but after some 8 months no decision had been made. He left Australia again to go to England. This trip was made for a purpose which he did not explain, connected with the PKKO, a Kurdish "freedom fighters" association opposed to the Turkish government.
Tuncak was a member of that organisation. His wife and their 3 children accompanied him on the trip.
He went to England for 10 days and then travelled to Malaysia. After 1 week in that country he was arrested and taken into custody at the request of the Turkish government on charges of murder, escaping legal custody and "being anti-Turkish government". It was also alleged that he was a terrorist.
He was held in a Malaysian prison for some 14 months while extradition proceedings were pending. He was released on 29 June 1987 following the failure of the Turkish government to produce sufficient evidence of his guilt of the alleged offences.
On the day he was released Tuncak approached the office of the Australian High Commission in Kuala Lumpur and told officials at the Commission that he was only permitted by the Malaysian government to stay in the country for 6 days. He sought a "quick visa" so that he could go to Australia to join his wife and children and also his brother, Omer Serif.
The Australian High Commission wrote to Tuncak on three occasions and sent the letters to him by messenger. The letters urged him to apply for migrant entry to Australia.
In the meantime he obtained a three day extension from the Malaysian government.
However, by the tenth day after his release he still had no answer from the Commission.
He decided to leave Malaysia and travel to Brunei and on to Bangkok.
In Bangkok he bought a forged passport for $500.00. It was this passport that he relied upon to enter Australia.
He told Dival that he had last been in Turkey in 1976. He had no criminal convictions. He had not committed any acts of terrorism although he could not answer for his organisation.
It had been his intention to travel from Perth to Melbourne and there to give himself up to the Department.
He told Dival that his wife had, some ten days previously, left their three children in their home unattended. Neighbours had called the police, who had taken the children to a police station and subsequently handed them over to Tuncak's brother, Omer Serif, who was caring for them at his home. He gave Dival an address and telephone number in Melbourne for his brother.
This was the history substantially as recorded by Dival and passed on by him to Hodder.
The Grounds of the ApplicationThe decision which it is sought to review, is the decision made by Hodder, evidently acting as delegate for the respondent, to refuse entry to Tuncak.
The decision was a decision to refuse the grant of an entry permit under s.6 of the Migration Act 1958.
In the amended application for review the applicants rely upon three broad grounds.
The first is that the power to refuse the grant of entry permit was exercised improperly by reason of a failure by the decision maker to take into account relevant considerations.
The second is that the decision maker in exercising his discretion "placed the policy of orderly overseas migration ahead of the first applicant's particular case".
The third is that the decision maker exercised his discretion unreasonably.
The relevant considerations which it was said were not taken into account are set out in ground 2(b) of the application as follows:-
(i) The First Applicant only had until the 9 July 1987 to obtain a visa to enter Australia.
(ii) The First Applicant's country of origin was Turkey and he was a Turkish citizen.
(iii)The Turkish government had made strenuous efforts to extradite the First Applicant to Turkey on an alleged conviction for murder which attracted the death penalty.
(iv) The First Applicant was most anxious not to be refouled to Turkey.
(v) If no other country would grant entry to the First Applicant he would be refouled to Turkey.
(vi) The First Applicant had resided in Australia between 1981 and 1986.
(vii)The First and Second Applicants were married, the Second Applicant was a permanent resident and the Third Applicants were Australian citizens.
(viii) Once legally in Australia the First Applicant would be eligible to apply for permanent residency under sub-s.6A(1)(b) and (e) of the Migration Act.
(ix) The effect of the refusal would break up the First Applicant's family unit.
(x) The effect of the refusal would deprive the Third Applicants, then all under 4 years of age, of a breadwinner and father figure, reduce their education opportunities and leave them emotionally and psychologically deprived.
In the course of argument a further paragraph (xi) was added by leave in the following terms:-
(xi) If refouled to Turkey the First Applicant would be denied a fair trial and would be executed as a self-confessed Kurdish freedom fighter and alleged murderer.
The Reasons for the Decision
In his evidence Hodder told the Court that he had been contacted by Dival on at least three occasions on the evening of 25 July.
It appeared from his evidence and that of Dival that the substance of the history as given by Tuncak was passed on to him, although he could not now recall all of it.
In explaining his decision Hodder said, as set out in his affidavit sworn on 21 August:-
"8. I decided that the Applicant should be refused entry to Australia. The passport was false on presentation and on admission by the Applicant. There was no reliable evidence of the Applicant's true identity. There was no objective supportive evidence that he had a wife and children in Australia. What weighed on my mind was if it was true that he had not got a visa, there might well be a reason for it. If there was a wife and children in Australia there existed a proper means to enter Australia which could have been expedited.
9. I refer to the Amended Application filed on behalf of the Applicant on 12 August 1987 and say:-
(a) I took into account the matter set out in ground (b)(i) but decided that it was not sufficient to outweigh the matters set out in paragraph 8 above. From my experience in the Department I am aware that although a migrant visa normally takes several months to be granted the time can be brought down to weeks if there are compelling reasons. The Australian High Commission in Kuala Lumpur can provide documentation to the Malaysian authorities to show that processing of an application is taking place which would extend an applicant's stay in Malaysia.
(b) to the extent that the facts set out in grounds (b)(ii) to (v) inclusive were made known by the Applicant I took them into account.
(c) I took into account the Applicant's claim that he had a wife and children in Australia. I felt this factor of itself did not warrant the grant of an entry permit. I gave considerable weight to the fact that the Applicant was travelling on a false passport and that there was no objective evidence as to his true identity. If his claim was true, there existed a proper means for him to enter Australia. Any applicant for a visa has to satisfy the normal migrant requirements.
(d) I did not make the decision to refuse entry in accordance simply with Departmental policy as alleged in paragraph (c). I took into account all the matters put forward by the Applicant in support of his application for an entry permit but felt these were not sufficient to outweigh his attempts to enter Australia with a false passport and lack of evidence as to identity."
The affidavit does not make clear the way in which Hodder viewed Tuncak's claim to be married to an Australian resident and to be the father of three children who are Australian citizens.
As it emerged in his oral evidence however, it appears and I accept, that he formed no concluded view of Tuncak's claims as to his identity or his family situation.
Rather, he took the approach that these were questions to be resolved upon a proper application for migrant entry from outside Australia.
He also took into account the claim by Tuncak to be a Kurdish freedom fighter and the fact that he had been the subject of extradition proceedings in Malaysia.
It would be necessary, said Hodder, that Tuncak on an application for migrant entry establish his good character. That was, generally speaking, a threshold requirement for entry into Australia. Verification would involve enquiries being made with appropriate authorities.
The processing of an application for migrant entry from outside Australia would normally take from 5 to 6 months, although in the case of compelling compassionate grounds the time could be shortened to a few weeks. It was possible that such grounds might exist in this case.
Where there were what Hodder described as overwhelming compassionate considerations, an applicant for migrant entry might be allowed provisional entry into Australia on a temporary entry permit while his substantive application was considered. However he was not satisfied that such reasons existed in the present case.
While Hodder made it clear that his decision was to refuse entry, he accepted that return to Bangkok on Thai Airlines might involve Tuncak in an ultimate involuntary return to Turkey.
He believed it would be possible for Tuncak to make application for migrant entry from Thailand. However, accepting that he would be returned to that country with a forged passport, he did not know sufficient of its policies or practices to say whether Tuncak would be allowed to pursue his application for migrant entry from there.
He assumed that, if returned to Turkey, Tuncak would be dealt with fairly, according to law. He had no basis for that assumption beyond the fact that he was not aware of any steps taken by the Australian government to censure or criticise Turkey on its civil rights record in the same way that it had done with respect to South Africa. Nor was there, he said, any special humanitarian programme in place with respect to persons of Kurdish origin wishing to enter Australia analogous to the programme applicable to Sri Lankan migrants.
There is plainly an element of speculation in Hodder's assessment of Tuncak's prospects of pursuing a migrant entry application from outside Australia.
It is clear from his evidence and that of Dival, that no independent enquiry was undertaken in respect of Tuncak's claims save for a direction that Hodder gave to Dival to ring Mr John Mahoney, the head of the department's Compliance Branch in Canberra. He said he felt that "if the applicant was a freedom fighter, Mr Mahoney ought to be alerted to that fact". He also wanted to know if Mahoney was aware of any information which might be relevant to his decision.
Mahoney told Dival that he was aware that someone who had been released from prison was trying to get back into Australia. He knew nothing more than that and agreed with the decision to refuse entry, notwithstanding that Tuncak had a wife and children in Australia.
The Statutory FrameworkThe decision in question was made under s.6 of the Migration Act 1958. The cognate decisions to take Tuncak into custody and to require his removal from Australia by the airline which brought him here were taken under s.36A of the Act.
Section 6 provides, in the material parts:-
"6(1)A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.
(2)An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.
(3)An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both. .
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(5)An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).
(6)An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions."
Section 36A relevantly provides:-
36A.(1) A person who is on board an aircraft at the time of the arrival of the aircraft at a proclaimed airport, whether or not that airport is the first port of call of the aircraft in Australia, being a stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia in circumstances in which he would become a prohibited non-citizen, may -
(a) if an authorized officer so directs; or
(b) if the master of the aircraft so requests and an authorized officer approves,
be taken off the aircraft by an officer and kept in such custody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.
(2) A person who disembarks from an aircraft at a proclaimed airport whether or not that airport is the first port of call of the aircraft in Australia, being a stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia in circumstances in which he would become a prohibited non-citizen, may, at any time before he leaves the airport-
(a) if an authorized officer so directs; or
(b) if the master of the aircraft so requests and an authorized officer approves, be taken into custody by an officer and kept in such custody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.
(3) Where a person, not being a person excempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.
(4) Where a person is taken into custody under sub-section (1), (2) or (3), an authorized officer may, at any time within 48 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charterer of the aircraft on which he travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.
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(8)A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of sub-section (1), (2) or (3)."
The Full Court of the Federal Court in Gunaleela v. The Minister for Immigration and Ethnic Affairs (unreported 21 August 1987) has said of these provisions and like provisions under the Immigration Act 1971 (UK) that:-
"Such provisions may be read as reflecting the concern of sovereign states to exercise control over entry of non-citizens into their territory and to avoid any detraction from that authority which otherwise might follow from administrative procedures for dealing with applications for entry." (p26)
At page 31 of the judgment, in considering the nature and content of the discretion to issue entry permits to persons who have not entered Australia, their Honours said:-
"An important consideration is that these provisions of the Migration Act give effect in Australian municipal law to the accepted principle of international law that every sovereign state has the power, as inherent in the nature of sovereignty, to forbid the entry of aliens into its territory and to admit them in such cases and upon such conditions as it may see fit to prescribe."
And at 32 the Court spoke of the scheme of the legislation highlighted by the provisions of s.36A which favours the taking of steps prior to arrival to have entry permits ready for issue. The urgency which attends the disposition of applications for entry permits first made on arrival at a proclaimed airport in Australia is emphasised by the time constraints imposed by s.36A - see also Faingold v. Zammitt (1984) 1 FCR 87 at 93-94.
It is against the background of that legislative scheme and its evident scope and purpose that the grounds upon which review is sought must be considered.
The Validity of the DecisionsThe principal basis upon which the decision to refuse entry was attacked, was the alleged failure on the part of the decision-maker to take into account the various matters which are set out in paragraphs (b)(i) to (xi) of the amended application for review.
A recent authoritative statement of the principles governing the application of this ground for review is to be found in the judgment of Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299 at 308.
In summary the principles, relevant for present purposes, as enunciated by His Honour, with whom Gibbs CJ and Dawson J. agreed, were:-
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the Act. If a ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
(e) The principles stated above apply to an administrative decision made by a Minister of the Crown.
At the time he made his decision, Hodder had before him all that Tuncak had told Dival. He also had before him and evidently adverted to the possibility that Tuncak who claimed to be a Kurdish freedom fighter could end up being returned to Turkey. While it might be thought that his consideration of that possibility was somewhat sanguine, it cannot be said that he failed to have regard to it.
It was obvious that if Tuncak's claim were true, then his return to another country would separate him from his family in Australia at least to the extent that his family were unable or unwilling to leave Australia to visit him.
It might also place him at risk ultimately of subjection to Turkish law.
Hodder's decision, while it may well have been harsh in its impact upon Tuncak and those close to him, cannot in my opinion be invalidated for failure to take into account any consideration that he was bound to take into account.
The decision was made against the background of a statutory scheme which requires that decisions on entry be taken as a matter of urgency. That scheme does not contemplate or impose any obligation on the part of the officers of the Department to make any extensive enquiry into the claims made by the applicant for entry. In that regard I refer to the dictum of Wilcox J. in Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169:-
"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."
See also Topuz v. Minister for Immigration and Ethnic Affairs (Unrep. 18/2/86 Keely J. at 13) and Osman-Lloyd v. Minister for Immigration and Ethnic Affairs (Unrep. 5/6/87 French J. at 34).
It is not apparent to me that any circumstance arose in this case that would render the decision unreasonable by virtue of the failure to enquire further into Tuncak's claims. I say this having regard to the circumstances of the decision and the statutory policy evident from s.36A of the Act.
As to the second ground upon which review is sought, this is no doubt designed to reflect the ground set out in s.5(2)(f) of the Judicial Review Act which refers to:-
"an exercise of a discretionary power in accordance with a rule of policy without regard to the merits of the particular case".
All that I need say of it, is that the ground as formulated in the application does not disclose a ground for review under the provisions of the Act. There was in any event no evidence that any rule of policy has been applied to the exclusion of the consideration of the merits beyond the policy that is apparent from the provisions of the legislation itself.
The final ground upon which review was sought, was that the decision was unreasonable in that:-
(i) The First Applicant would be required to obtain temporary entry for short periods to countries he wished to enter, would always be on the move and would never be able to settle permanently outside Turkey.
(ii) The Second and Third Applicants would be deprived of the love, financial and emotional support of the First Applicant permanently.
(iii)The Second and Third Applicants would be a long term burden on the Australian Social Services as a result.
(iv) The First Applicant had no other option but to attempt to enter Australia illegally.
The evidence does not support the factual assertions in any of these particulars.
In any event, none of them, either singly or collectively, indicates, in my opinion, any basis upon which the decision could be said in a relevant sense to be so unreasonable that no reasonable person could have made it.
The sense in which that term is used was explained by Mason J. in Re: Peko-Wallsend (supra) at 310 where his Honour said:-
"...both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation, at pp230, 233-4, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England...However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ...But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. .... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors,lest it exceed its supervisory role by reviewing the decision on its merits."
In the result the application must be dismissed. That I may say may appear to some to be a harsh result. It is however the product of the policy of the legislation and the limited role proper to this court in reviewing decisions made under it.
The outcome does not constitute the expression by the court of any view as to whether the decision taken was the right decision in the circumstances. It amounts to no more than a finding that the decision to refuse entry was not able to be set aside for error of law or procedure.
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