Kioa, Jason v Minister for Immigration & Ethnic Affairs
[1984] FCA 126
•15 MAY 1984
Re: JASON KIOA; FHEODOLINA HYAWITH KIOA and ELVINA KIOA (as infant who brings
this claim through her next friend and mother FHEODOLINA HYAWITH KIOA)
And: MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS and the COMMONWEALTH
OF AUSTRALIA
No. VG182 of 1983
53 ALR 658
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
CATCHWORDS
Administrative Law - Judicial Review - refusal of temporary and permanent entry permits - deportation of prohibited immigrants - child an Australian citizen - whether child "a person aggrieved" - whether child entitled to natural justice before decisions to deport her parents - whether their deporation contrary to provisions of Human Rights Commission Act 1981 or its schedules - whether schedules part of municipal law of Australia - whether delegate failed to take into account any relevant matter - relevance of the Human Rights Commission Act and its schedules to delegate's decisions - whether duty on delegate to seek information beyond that put before him.
Administrative Decisions (Judicial Review) Act 1977 - ss. 3(4)(a)(i); 5(1)(a), (c), (h), (2)(b), (3)
Human Rights Commission Act 1981 - passim
Migration Act 1958 - ss. 18, 66D
Australian Citizenship Act - s. 10
HEARING
MELBOURNE
#DATE 15:5:1984
JUDGE1
This is an application under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) to review "a decision" of the firstnamed respondent (the respondent Minister), made on 6 October, 1983 by Mr. L.B. Woodward (the delegate) as a delegate of the respondent Minister. The power of delegation is conferred by s. 66D of the Migration Act 1958 which provides that "a power so delegated, when exercised by the delegate, shall, ..... be deemed to have been exercised by the Minister". The firstnamed applicant's correct name is Isileli Kioa but he gave evidence that in Sydney in October or November 1981 he decided to call himself Jason Kioa to make it easier for Australians to use his name.
Mr. Rose, of counsel, appeared for the applicants. Mr. Gunst, of counsel, appeared for both respondents but stated that it was not conceded that the secondnamed respondent, Commonwealth of Australia, had correctly been made a respondent to the application. There have been no submissions on that question and it is not necessary for the Court to determine it.
The application, as amended at the hearing without objection, seeks to review "a" decision but then recites in eight paragraphs a number of matters which, as a matter of analysis, identify more than one decision. In my opinion it is clear that the application seeks to review more than one decision and that those decisions may be summarized as decisions to:-
(a) deport the firstnamed and secondnamed applicants (paras.
1 and 2 of the amended application);
(b) refuse to grant to them and their children (presumably
other than the thirdnamed applicant) further temporary entry permits (paras. 3 and 4);
(c) refuse to grant the firstnamed and secondnamed applicants
permanent entry permits (paras. 7 and 8);
(d) refuse to give the firstnamed and secondnamed applicants
permission to work in Australia (paras. 5 and 6);
(e) refuse to permit the thirdnamed applicant to remain in
Australia with her parents (para. 8).
As to (e), it may be said immediately that there was no decision by the Minister or his delegate refusing to permit the thirdnamed applicant to remain in Australia with her parents - although that result would necessarily follow if her parents were deported.
As to (d), the alleged "decision" to refuse permission to Mr. and Mrs. Kioa to work in Australia was not identified by Mr. Rose who simply stated that there was a complaint, "ancillary" to the complaint regarding the "refusal to extend the visas" of Mr. and Mrs. Kioa, that Mr. Kioa, since his release from detention shortly after his arrest on 25 July, 1983, was not allowed to undertake work. It was stated in paragraphs 21 and 28(a) of the statement of reasons (set out later) that Mr. Kioa had committed an offence under s. 31B(2) of the Migration Act by taking up employment after his temporary entry permit had expired. There was neither evidence nor any submission as to any refusal to permit Mrs. Kioa to work in Australia. In view of the conclusions reached in regard to the other decisions sought to be reviewed by this application it is not necessary to give further consideration to the alleged decision by the Minister's delegate to refuse to give permission to the firstnamed and secondnamed applicants to work.
As to the remaining "decisions" ((a), (b) and (c)) the statement of reasons, sought and furnished under s. 13 of the Judicial Review Act, upon which this case proceeded and upon which the applicants relied, was furnished in respect of decision (a) above i.e. the decision on 6 October, 1983, under s. 18 of the Migration Act to deport the firstnamed and secondnamed applicants. However, paragraphs 23 to 26 of that statement of reasons (set out later) show that, in the course of considering whether to order the deportation of the firstnamed and secondnamed applicants, the delegate had considered whether to issue further temporary entry permits to them and decided not to do so (decision (b) above) and that he also decided to refuse to grant permanent entry permits (decision (c) above). Although that latter decision was based upon the fact that Mr. and Mrs. Kioa were not the holders of temporary entry permits (cf. s. 6A(1)(e) of the Migration Act), in the course of his consideration of the overall matter the delegate also considered whether there were "strong compassionate or humanitarian grounds for the grant of" such (permanent) entry permits existed and concluded that there were no such grounds.
In view of the foregoing I consider that there are before the Court three decisions, namely, the decision to deport Mr. and Mrs. Kioa, the decision to refuse temporary entry permits and the decision to refuse (permanent) entry permits.
The statement of reasons, dated 11 November, 1983, was in the following terms:-
"A. My findings on material questions of fact
1 The applicants are citizens of the Kingdom of Tonga.
2 Isileli Kioa (Mr Kioa) last arrived in Australia on 8 September 1981 with a student visa as an initial entry student under the auspices of the Australian Development Assistant Bureau (ADAB). He was granted a temporary entry permit valid for 3 months only.
3 Fheodolina Kioa (Mrs Kioa) arrived in Australia on 7 November 1981 with her daughter Elitisi as the spouse and child of a student (Mr Kioa). They were granted temporary entry permits valid until 31 March 1982.
4 The applicants have a second daughter born 14 November 1982 in Australia and who is thus an Australian citizen. Mr. Kioa's parents and 5 siblings reside in Tonga. Mrs. Kioa's father resides in the U.S.A.
5 Mr Kioa was accepted into and attended a 3 month training course at the International Training Institute (ITI) under the auspices of ADAB from 3 September 1981 until 7 December
1981. He took up this award on 8 September
1981. At the time he was formally engaged as a Public Relations and Information Officer with the Tongan Tourist Office (1978-1981).
6 Mr Kioa was given four months leave by his Tongan employer and was not expected to resume duties until early April 1982. He decided to spend that extra time in Australia. He was booked to return home with his family on 31 March 1982.
7 On 8 December 1981 Mr. Kioa's temporary entry permit expired and no further entry permit has been issued to him since.
8 On 15 December 1981 Mr. Kioa approached the Melbourne Regional Office of the Department with a view to applying for an extension of his temporary entry permit. He exhibited departure tickets as follows:
a) Melbourne-Auckland Qf71 on 31 March 1982
b) Auckland-Tonga TE072 on 1 April 1982.
9 The application for further temporary entry permit was not processed at the time as :
a) no record of his particulars were held in the Melbourne Regional Office;
b) it was necessary for the Department to liaise with Sydney Regional Office and Tonga to obtain particulars and visa details;
c) no evidence was provided at that time by Mr Kioa that he had satisfactory funds to tide him over.
10 Mr Kioa was informed at the time that the Department would communicate with him once particulars were to hand and that he would be given an extended visitor's temporary entry permit if application was approved and fee of $30 paid. Mr Kioa informed the Department that he intended to reside with his sister and brother-in-law in Box Hill, Melbourne and had no plans to return to Sydney. He left a contact address and telephone number.
11 No action was taken by the Department to communicate with Mr Kioa until 14 April 1982 when a telephone call to his last known address elicited the response (twice) that he had returned to Tonga. The delay was caused by the need to obtain all the necessary documents, including the views of his training authority (ITI) and his employer. As the Department was aware of a return booking for 31 March 1982, given this information of Mr Kioa's return to Tonga there was no apparent need to formally respond to the application for further temporary permit.
12 No approach was made by Mr Kioa to the Department following 15 December 1981.
13 Mr Kioa commenced employment with Heslop Diecasters of Bulleen, Victoria as a machine operator in March 1982. At about this time he formally resigned from his position in Tonga.
14 On 31 March 1982 Mrs. Kioa's temporary entry permit expired and no further entry permit has been granted to her since.
15 Mr Kioa had made several earlier visits to Australia from 1975 onwards whilst working with the Tongan Tourist Office.
16 Mr. Kioa was apprehended at his place of work on 25 July 1983 and was subsequently released from custody on 5 August 1983. He was placed on daily reporting conditions.
17 Mr. Kioa was interviewed on 27 July 1983 and stated that inter alia:
a) he had undertaken a management course (public relations) at ITI in Australia in 1979;
b) he had been a teacher at secondary school in Tonga for 7 months;
c) cyclone Isaac had devastated parts of Tonga in March 1982; as a consequence his family had advised that he remain in Australia for the purpose of sending money home to them;
d) he has been elected as married man representative on the executive council of the Tongan Christian Fellowship (Uniting Church) with particular responsibilities towards Tongan youth and illegal immigrants in Australia;
e) he and his immediate family have established a life for themselves here, and desire to remain; their daughter attends Kindergarten and speaks English;
f) he has lost his chance of obtaining employment in Tonga;
g) he has a good job and his employer (Heslop Diecasters) want him to continue;
h) he is able to assist his family in Tonga financially if he remains;
i) he has cash assets of $500 and a car bought for $2700 8 months previously incurring a $182 pm repayment liability.
17 (sic) Mrs Kioa was interviewed 26 July 1983 and stated that she was a secretary for 1 year in Tonga, had not worked in Australia and wished to leave all decisions to her husband.
18 In the absence of any contrary information provided by the Department I accepted these assertions of both applicants, except those contained in paragraph 16(f), as valid for the purpose of my decision. In the absence of any reliable and balanced information, particularly from Tongan sources, I was unable to make a specific finding on the assertion in paragraph 16(f). In any event even if it were true it, per se, would not be accorded much weight. (Note : It was common ground before the Court that the two references in this paragraph to paragraph 16(f) were intended to refer to paragraph 17(f)).
19 Mr Kioa was formally advised in writing on 12 September 1983 of the refusal to grant a further temporary entry permit applied for on 15 December 1981.
20 I made a finding that as Mr Kioa had in fact remained in Australia for the extended period applied for, albeit without permit, the inability of the Department to formally process and decide the application during the relevant period is not a relevant matter for consideration in the applicant's case at this time.
21 Mr Kioa committed an offence pursuant to section 31B(2) of the Act by engaging in employment without written permission.
B The evidence or other material on which my findings are based
22 In making the above findings the material before me was as follows:
a) a departmental submission under signature of A.E. Faubel, Director, Enforcement Section, dated 6 October 1983;
b) letter from Students Section, Melbourne Regional Office to applicant dated 12 September 1983;
c) notes of interview report with Mr Kioa on 27 July 1983;
d) letter dated 27 July 1983 addressed to the Minister for Immigration and Ethnic Affairs (the Minister) from Ian J. Heslop;
e) letter from Legal Aid Commission of Victoria dated 26 July 1983 addressed to the Minister;
f) letter from Tongan Christian Fellowship dated 26 July 1983;
g) letter of support from fellow employees of Mr Kioa containing 27 signatories dated 25 July 1983;
h) a summary of policy of deportation of prohibited immigrants as set out in Chapter 3 of the Residence Control Manual which included inter alia:
a) persons who enter as students, or their dependents, are expected to honour the undertakings contained in visa applications signed overseas;
b) it is in the public interest to ensure that persons abide by normal immigration selection procedures and do not queue-jump by remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures;
c) presence of such queue-jumpers is inimical to the Government control of migration programs as well as impacting upon job availability for legal residents;
d) prohibited immigrants who do not leave voluntarily should expect to face the prospect of deportation when located.
C The reasons for the decision
23 By virtue of section 7(3) of the Act the applicants became prohibited immigrants following the expiration of their temporary entry permits on 8 December 1981 (Mr Kioa), and 31 March 1982 (Mrs Kioa), and both have maintained that status from these respective dates as no further temporary entry permits applicable to them have come into force.
24 The applicants do not fulfil one or more of the conditions of section 6A(1) of the Act necessary for consideration for grant of a (permanent) entry permit.
25 While I accepted that it remains possible to regularize the applicants continued presence in Australia, for a limited period if they so requested, by directing the grant to them of a further temporary entry permit I was satisfied that such a grant would have been inappropriate in the circumstances by reason of the applicable policy, their breach of the undertakings made by them in connection with their visitor visa applications, their deliberate remaining in Australia as prohibited immigrants, Mr Kioa's illegal working without written permission in Australia, and their length of stay in Australia which was well beyond that normally allowed students in similar circumstances as set down in policy guidelines.
26 While a permanent entry permit may not be granted to the applicants after their entry to Australia by reason of section 6A(1) of the Act, I accepted that it was possible to direct the grant of a further temporary entry permit to them for the purpose of allowing consideration of an application for grant of (permanent) entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly I considered whether, apart from the fact that the applicants do not hold temporary entry permits in force, there are strong compassionate or humanitarian grounds for the grant of (permanent) entry permits to them.
27 Based upon my findings and the representations made on their behalf I considered and gave weight to the circumstances of the applicants' case and in particular to the fact that the tragedy of the March 1982 cyclone in Tonga necessitated Mr Kioa giving financial assistance to his family in Tonga (which I accept he was better able to do from Australia). However I was of the view that in all the circumstances there were no strong humanitarian or compassionate grounds for the grant to them of
(permanent) entry permits.
28 In the particular case of the applicants:
(a) Mr Kioa, knowing that an application for further temporary permit had not been finalized and that, in any event, the period of extension sought had expired, deliberately chose to remain in Australia, to work without written permission contrary to s.31B(2) of the Act, and to resign his position in Tonga with the Tourist Office.
(b) The applicants made no attempt to communicate with the Department after 15 December 1981 nor advised of any change of address to enable the Department to communicate with them. In particular they made no attempt to enquire of their earlier application or to further regularize their status following receipt of news of the cyclone in March 1982.
(c) Mr Kioa failed to honour his obligation as a student visitor to return home at the completion of his studies or permitted stay.
29 I considered that these actions constituted a blatant disregard for the normal migration selection procedures and the migration law. I considered nonetheless the circumstances of their case, in particular as set out in paragraphs 17 and 27 above, but decided that their expulsion from Australia was appropriate. I considered that the application of the stated policy set out in paragraph 22(b) supra was appropriate and just. In all the circumstances I decided to order their deportation.
Lionel Barrie Woodward
Deputy Secretary
11 November 1983"
Mr. Rose did not challenge the factual matters set out in that statement of reasons except for that part of the first sentence of paragraph 11 which stated that "... a telephone call to his (Mr. Kioa's) last known address elicited the response (twice) that he had returned to Tonga". Mr. Rose pointed out that that was a misstatement. On 15 December, 1981, Mr. Kioa had shown to Departmental officers in Melbourne airline tickets for him to fly from Australia to Tonga. The departmental "recommendation" to the delegate stated that on 14 April, 1982 the Departmental officer who made the telephone call to Mr. Kioa's last known address was told by "the occupant that he (Mr. Kioa) was believed to have returned to Tonga". The response to a telephone call in October 1982 was that Mr. Kioa had returned to Sydney and it was not known whether he had returned to Tonga. Having regard to its immediate context and to the fact that it is not referred to expressly or by implication in Part "C. The reasons for the decision" of the statement of reasons, I do not regard the misstatement in paragraph 11 as affording any support to the present application.
It was common ground that Mr. and Mrs. Kioa were each "aggrieved by" the decision within the meaning of s. 5(1) of the Judicial Review Act butit was submitted by Mr. Gunst that the thirdnamed applicant was not "a person .. aggrieved."
Section 3(4)(a)(i) of that Act provides that "a person aggrieved" includes a reference "to a person whose interests are adversely affected by the decision". The thirdnamed applicant was born on 14 November, 1982 in Australia and it was common ground that she thereby became an Australian citizen by virtue of s. 10 of the Australian Citizenship Act.
Mr. Gunst referred to a decision of the Full High Court in Attorney General for New South Wales v Brewery Employees Union (1908) 6 C.L.R. 469, and to passages in decisions of the Victorian Supreme Court, being those of Fullagar J. in Denby v Stott (1947) V.L.R. 462, Lowe J. in Johnston v Hicks (1948) V.L.R. 213, and Dean J. in Edgerton v Middleton (1953) V.L.R. 191. On the basis of the statements in those cases he submitted that the thirdnamed applicant had no right or interest which was adversely affected by the deportation order. He submitted that the deportation of her parents, per se, did not deprive the child of her rights as an Australian citizen: those rights would subsist irrespective of whether she left Australia with her parents.
However, the thirdnamed applicant was less than one year old on 6 October, 1983 when the deportation order was made and Mr. Gunst accepted that "as a matter of practice, ... she probably will leave the country ... it would be in her best interests to do so rather than remain here in the custody of the State". In addition the departmental "recommendation" to the delegate said "Their children are to accompany them at Commonwealth expense". During the present hearing it was common ground not only that the delegate assumed that the thirdnamed applicant would accompany her parents if they were deported from Australia but also that he was correct in that assumption.
In support of his submission that the thirdnamed applicant was a "person aggrieved",Mr. Rose relied upon the judgment of Ellicott J. in Tooheys Ltd. v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79 where his Honour said:-
"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct."
He submitted that the thirdnamed applicant's rights were adversely affected by the deportation order signed in respect of her parents in that she would be thereby deprived of her right to enjoy at the same time both an upbringing by her parents and all her rights incidental to Australian citizenship.
In response to that submission, Mr. Gunst conceded that the analysis by Ellicott J. in Tooheys case (supra) gave a very wide meaning to the expression "a person aggrieved". However, he pointed out the difficulties involved in drawing a line between those persons who are aggrieved and those who are not, referring to various relationships which might exist between deportees and potential applicants claiming to be "aggrieved". He invited the Court to consider various hypothetical cases including the question whether a person "who drew psychological and perhaps financial support from a deportee who was his cousin" would be a person aggrieved by the deportation order. However, I agree with the statement by Ellicott J. in the above passage that "It is unnecessary and undesirable to discuss the full import of the phrase". I adopt, with respect, the analysis of the expression "a person aggrieved" made by Ellicott J. in Tooheys case (supra) which has been accepted by Franki J. in Safadi v Minister for Immigration and Ethnic Affairs (1981) 38 ALR 399 at p. 403 and by Bowen C.J. and Franki J. in Rice-Growers Co-operative Mills Ltd. v Bannerman (1981) 38 ALR 535 at 539-540.
In her affidavit Mrs. Kioa stated that she believed that "it would be in the thirdnamed applicant's interests to remain in Australia of which country she is a citizen and that she would be economically, socially and educationally disadvantaged if she was forced to return to Tonga". That evidence was not challenged in cross-examination although Mr. Gunst pointed out in his final address that the statement was only evidence of Mrs. Kioa's belief and not evidence of the facts.
Having regard to that evidence and to the common view of the parties that the thirdnamed applicant would leave Australia with her parents if they were deported, in my opinion the thirdnamed applicant is "a person whose interests are adversely affected by the decision" (s. 3(4)(a)(i)) and, therefore, is "a person aggrieved" within the meaning of the Judicial Review Act.
The application as amended contains 17 grounds but they represent three main submissions. Firstly, it was submitted that the respondent Minister had failed to observe the principles of natural justice in making the decisions. This submission was not pressed in so far as it related to the firstnamed and secondnamed applicants, Mr. Rose referring to the decision of the Full High Court in Salemi v Mackellar (1977) 137 C.L.R. 396.
However, it was submitted that the Minister was obliged to accord natural justice to the thirdnamed applicant either before making the decision to sign the order for the deportation of her parents "or, alternatively, once a decision was made he should have reconsidered his decision ..". The duty to accord natural justice is a duty which arises before the decision sought to be reviewed is made; the alternative submission that a duty arose after the decision appears to confuse the concept of the duty to accord natural justice with the concept of the standing required of an applicant under the Judicial Review Act, embodied in the expression "a person aggrieved".
Mr. Rose accepted that a letter, dated 26 July, 1983, from the Legal Aid Commission of Victoria had been sent to the respondent Minister and it referred expressly to the position of the thirdnamed applicant, saying:-
"As you know, the question of deportation in circumstances where one of the children is an Australian citizen has received a great deal of attention recently by numerous groups interested in immigration matters and I will not labour the point."
However, Mr. Rose pointed out that the letter had not been sent on behalf of the thirdnamed applicant - who was then eight months old. He submitted that the Minister had a duty in law "to allow the child (i.e. as distinct from the Legal Aid Commission) to have the opportunity to have representations made on its behalf" - at least by letter and that it might be necessary for the Minister "to make further enquiries or allow the child a further right to be heard".
The basis of this submission on behalf of the thirdnamed applicant was that she had a special interest and was in a position different from her parents in that she was an Australian citizen who had a right to remain in Australia and an expectation that she would enjoy the benefits incidental to her citizenship, which right and expectation she would lose if her parents were deported from Australia - because of the practical necessity for her to accompany them. It was said that the decision adversely affected both her right to remain in Australia and her expectations as to incidental benefits and therefore she was entitled to be heard before a decision was made.
As to the contention that the thirdnamed applicant possesses, as a citizen of Australia by birth, "a right to remain in Australia", presumably in the sense of being immune from deportation under immigration laws (cp. the terms of s. 19 of the Migration Act which was not the subject of any submissions), it should be noted that the delegate in exercising the power under s. 18 was not purporting to deprive the thirdnamed applicant of any such right. If the thirdnamed applicant leaves this country with her parents it will not be by reason of the legal effect of the deportation order made under s. 18; rather it will be as a result of her dependency upon her parents. Had they voluntarily returned to Tonga, whether taking her with them or not, that action would not constitute an interference with her rights as an Australian citizen. Similarly, the enforcement of the deportation order against her parents, if it leads to her departure from Australia, will not constitute an interference with any right she possesses as an Australian citizen.
Assuming that the thirdnamed applicant had a right to remain in Australia and an "expectation" that she would enjoy the benefits incidental to living in Australia - and even if one adds "with her parents" - in my opinion the delegate would not be required, in relation to the proposed exercise of the power under s. 18 to deport her parents, to hear the thirdnamed applicant, as she, unlike her parents, is not a person subject to the proposed order. I am not persuaded that any basis exists in law for a departure from the conclusion expressed by the High Court in Salemi (supra) and later affirmed in R. v Mackellar; ex Parte Ratu (1977) 137 C.L.R. 461 as to the absence of an obligation upon the Minister to accord natural justice when exercising the power under s. 18 to make a deportation order.
The second major submission on behalf of the applicant was a contention that the decision "was contrary to the provisions of the Human Rights Commission Act 1981 and more particularly the rights of the child specified in Schedule 2 of that Act". Under this ground it was submitted that the schedules to the Human Rights Commission Act were and are part of the municipal law of Australia, Mr. Rose saying that "the only way that this Act can have any meaning and can get to its intent as expressed in the preamble is if they (the schedules) are taken as being part of municipal law".
That submission cannot be upheld having regard to the wording of the Act itself and to the authorities. The Act itself, in my opinion, plainly contemplates that from time to time there will be in existence Acts of the Commonwealth Parliament which fail to conform with the principles enunciated in Schedules 2, 3 and 4 to the Human Rights Commission Act which set out the English text of certain Declarations, proclaimed by the General Assembly of the United Nations, including "the Declaration of the Rights of the Child". Section 16 refers to an examination by the Human Rights Commission of both existing and proposed legislation. Where it does so the Commission is under a duty to "include in its report to the Minister relating to the results of the examination any recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that the enactment is not, or the proposed enactment would not be, inconsistent with or contrary to any human right."
Stephen J. dealt with the effect of obligations expressed in a treaty in Simsek v Minister for Immigration and Ethnic Affairs and Another (1982) 40 ALR 61 at 66:-
"... in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive, to make or alter municipal law: Wade & Phillips; Constitutional Law (8th ed.) p. 277. Were it otherwise 'the Crown would have the power of legislation': Mann, Studies in International Law (1973) p. 328. In Attorney- General for Canada v Attorney-General for Ontario
(1937) A.C. 326, Lord Atkin, speaking for the Judicial Committee, said (at 347) that: 'Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.' To a similar effect is what was said by the several members of the Court of Appeal in Blackburn v Attorney-General (1971) 1 W.L.R. 1037; (1971) 2 All E.R. 1380.
This principle has quite recently been applied to the case of an individual seeking to enforce against the Crown a right said to be conferred only by a treaty and not by municipal law. In Laker Airways Ltd. v Department of Trade (1977) 1 Q.B. 643; (1977) 2 All E.R. 182, Mocatta J. (Q.B. at 674) described as 'commonplace law' the proposition that 'a treaty, unless given effect to by Act of Parliament, forms no part of the law of England' and on appeal (at 718) Roskill L.J. expressed 'unhesitating agreement' with the submission to which he refers at p. 717, namely that 'when the Crown in the exercise of these prerogative powers concludes a treaty, the subject gains no personal rights under that treaty enforceable in our courts, unless the treaty becomes part of the municipal law of this country'."
The Human Rights Commission Act 1981 was considered by Smithers J. in Sezdirmezoglu v The Acting Minister for Immigration & Ethnic Affairs (unreported decision - delivered 21 October, 1983). I adopt, with respect, the following passage from that judgment:-
"The principle that the law of the land as made by the law-making bodies of Australia shall operate notwithstanding any general provisions which appear in the covenant seems to be supported by a number of decisions ... and I refer in particular to R v Home Secretary ex parte Bhajar Singh (1976) 1 Q.B. 198; R v Home Secretary ex parte Phan Sopkar
(1976) 1 QB 606; R v The Chief Immigration officer ex parte Salamat Bibi (1976) 1 W.L.R. 979. Reference may also be made to In re Simsek
(1981-1982) 40 ALR 61.
To my mind it is perfectly clear that nothing in the Human Rights Commission Act 1981 or the covenant, so far as it is called in aid in that Act, is effective to modify in any way the powers of the Minister under ss. 16 and 18 of the Migration Act."
Accordingly the second major submission on behalf of the applicants must also fail.
The third major submission, encompassing a number of grounds, was that the deportation order was an improper exercise of the power pursuant to the Migration Act in that the delegate failed to take into account relevant considerations in exercising the power. (See s. 5(1)(e) and s. 5(2)(b) of the Judicial Review Act). The main matters which it was said had not been taken into account may be broadly stated as:-
(i) The position of the thirdnamed applicant as an
Australian citizen, her rights under the Human Rights Commission Act (including its Second Schedule), the effect upon her development if her parents were deported and the rights of the family unit in relation to the effects upon both the thirdnamed applicant and the family unit;
(ii) the effects of the cyclone in Tonga including the need
for Mr. Kioa to give financial assistance to his family in Tonga, which he was better able to do from Australia (cf. para. 17(c) and para. 27 of the delegate's statement of reasons (supra)).
Before dealing with those two matters it is necessary to refer to the applicants' submission that there was a duty on the Minister to take into account not only the factual matters which were before him - whether put before him by the applicants or by the Department - but also to make enquiries with a view to eliciting any other facts which might support the claim advanced by the applicant. I reject that submission and accept Mr. Gunst's submission that there is nothing in the Judicial Review Act or in the Migration Act which required the respondent Minister to make such enquiries. In Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 Toohey J. said:-
"... I do not think, at least in the present case where the applicant had the benefit of family and legal advisers in making submissions to the Minister, that it was the Minister's obligation to go beyond that material."
In Cole v Minister for Immigration and Ethnic Affairs (unreported - delivered 12 December, 1983) Sweeney J. said at pp. 12-13:-
"It cannot be held that there was any procedure required by law to be so observed, which called upon the delegate of the Minister to take steps to obtain a submission from the applicant's solicitor, who had attended upon the applicant ... and who had not made or foreshadowed any representations to the Department. It was for the solicitor to make a submission, if he wished to do so, not for the delegate to take steps to obtain one from him."
Sweeney and Woodward JJ. in Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 at p. 571, referring to the findings in the judgment under appeal, said:-
"They should not be taken as a finding that all the personal circumstances of a prohibited immigrant have to be considered in all cases. They mean no more than that, in the circumstances of this case, where the Minister's delegate had material available to him from the Department and the prohibited immigrant, he should have looked at it (which he did), identified the circumstances (if any) in favour of the prohibited immigrant's case to stay in Australia, and given them such weight as he saw fit."
In my opinion there was no legal duty upon the delegate to make any further enquiries having regard to the material before him and the fact that a letter had been received from the Legal Aid Commission.
As to the contention that the delegate failed to take into account the rights of the thirdnamed applicant under the Human Rights Commission Act and the effect upon her development if her parents were deported, I accept Mr. Gunst's submissions that it was not necessary that the statement of reasons given by the delegate refer expressly to the Human Rights Commission Act or its schedules. He contended that the statement of reasons, properly construed, made it clear that the delegate had in fact taken into account as a relevant consideration the relevant general principles set out in the Human Rights Commission Act and its schedules. As to the relevance of the Act and its schedules, he cited the dictum of Smithers J. in Sezdirmezoglu (supra) that:-
"The only way in which the Act is relevant is that it makes clear that it is the desire of Parliament that the conduct of the Minister in performing his duties shall conform with the provisions of the covenant, and the fact that the covenant refers to the entitlement of the family to be protected, but it is a right for the family to be protected in the context of the law of the country concerned and, of course, subject to those qualifications which are to be found in the covenant itself."
Although the statement of reasons furnished by the delegate did not expressly refer to the Human Rights Commission Act or its schedules it did state (para. 4) that the "applicants have a second daughter, born 14 November, 1982 in Australia and who is thus an Australian citizen". That passage must be read in the light of the representations made to the Minister by the Legal Aid Commission of Victoria in the passage previously cited, which read as follows:-
"As you know, the question of deportation in circumstances where one of the children is an Australian citizen has received a great deal of attention recently by numerous groups interested in immigration matters and I will not labour the point."
In my opinion it has not been shown that the delegate in making his decision failed to "conform with the provisions of the covenant" (per Smithers J. in Sezdirmezoglu (supra)). On the contrary I am satisfied that the delegate took into account as a relevant consideration the position of the thirdnamed applicant, as an Australian citizen, and the effect upon her development if her parents were deported.
As to the contention that the delegate, in October, 1983, had failed to take into account as a relevant consideration the cyclone which in March 1982 had devastated parts of Tonga, the statement of reasons sets out (para. 17) that at his interview Mr. Kioa had stated that:
"(c) cyclone Isaac had devastated parts of Tonga in March 1982; as a consequence his family had advised that he remain in Australia for the purpose of sending money home to them;
...
(h) he is able to assist his family in Tonga financially if he remains;
..."
Further the statement of reasons goes on to say (para. 18) that :-
"In the absence of any contrary information provided by the Department I accepted these assertions of both applicants, except those contained in paragraph 16(f), as valid for the purpose of my decision."
(As noted earlier it was common ground that the two references in paragraph 18 to "paragraph 16(f)" of the statement of reasons were intended to be references to paragraph 17(f)). The matter which the delegate did not accept (in paragraph 17(f)) was a claim by Mr. Kioa at his interview that he had "lost his chance of obtaining employment in Tonga"; the delegate did not find that statement to be untrue but said that, "in the absence of any reliable and balanced information, particularly from Tongan sources, (he) was unable to make a specific finding on the assertion" by Mr. Kioa and added that "in any event even if it were true, it, per se, would not be accorded much weight". In my opinion it has not been shown that the delegate failed to take into account any relevant consideration relating to the cyclone and its effects.
Allied to these latter matters was the ninth ground of the amended application which stated that the delegate "exercised a discretionary power in accordance with the rule or policy without regards (sic) to the merits of the applicants' cases in arriving at the decision to deport the firstnamed and secondnamed applicants and their children". There is no substance in that ground. The merits of the applicants' cases were taken into account by the delegate - see, for example, paragraphs 17(c), (d), (e), (g), (h); paragraph 22(d), (e), (f), (g) and paragraph 27 of the statement of reasons. The delegate expressly considered whether in all the circumstances there were strong humanitarian or compassionate grounds for the grant of permanent entry permits (paragraph 27). There was nothing to suggest that the discretionary power was exercised in accordance with a rule or policy without regard to the merits of the applicants' cases (cp. judgment of Sweeney and Woodward JJ. in Tagle's case (supra at pp. 573-574)).
Perhaps it should be added that one of the grounds was that "there was no evidence or other material to justify the making of the decision to deport the firstnamed and secondnamed applicants". That ground relies upon s. 5(1)(h) of the Judicial Review Act. However, having regard to the terms of s. 5(3) of that Act, there is no substance in that ground.
The applicant has failed to show that any ground exists for granting the relief sought. The application is dismissed with costs.
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