Tuncak, H. v The Honourable Young, M.J - [1987] FCA 404

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

#DATE 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.

JUDGE1

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.
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 decision 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Tuncak, H. v The Honourable Young, M.J and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1987] FCA 404
Decision Date: 29 JULY 1987

CaseChat Overview and Summary

The case of Tuncak v Young involved a Turkish national, previously prohibited from immigrating to and entering Australia, who attempted to re-enter the country using a false passport. He was detained at the airport and a decision was made to remove him from Australia under section 36A of the Migration Act. Tuncak, who is married to a British citizen and permanent resident of Australia and has three children under the age of four, challenged the decision on the grounds that no reasons were provided for it and that the decision was excessively harsh, potentially indicating an error in principle. The Federal Court was asked to review the decision and consider whether the removal order should be stayed pending the hearing of the review application.

The central legal issues before the court were whether the decision to remove Tuncak was lawful and whether the lack of reasons provided constituted a breach of natural justice. The court had to determine whether the decision was so harsh as to suggest an error in principle, and if so, whether the removal order should be stayed pending a full review. The court also needed to consider the impact of the removal on Tuncak’s family, particularly his young children.

The court found that the decision to remove Tuncak was indeed harsh and lacked sufficient reasons, which could indicate an error in principle. The absence of reasons for the decision was a significant procedural defect. Given the potential impact of the removal on Tuncak’s family, the court granted the stay of removal to allow for a full review of the decision. The court emphasised the importance of procedural fairness and the need for reasons in such significant decisions. As a result, the court restrained the respondent from taking any steps to remove Tuncak from Australia until the review application was heard and determined.

The court also ordered that the costs of the motion be borne by the respondent. The final orders included a stay on the removal of Tuncak from Australia pending the hearing and determination of the review application, and an order for the respondent to pay the costs of the motion. These orders were made to ensure that Tuncak’s rights were protected and that the decision-making process was fair and transparent.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.