Kioa v Minister for Immigration and Ethnic Affairs

[1984] FCA 489

Re: JASON KIOA; FHEODOLINA HYAWITH KIOA AND ELVINA KIOA (an infant who brings
this claim through her next friend and mother FHEODOLINA HYAWITH KIOA)
And: THE HONOURABLE STEWART JOHN WEST MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS AND COMMONWEALTH OF AUSTRALIA
No. VG151 of 1984
Administrative Law
4 FCR 40

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Jenkinson(2) and Wilcox(1) JJ.

CATCHWORDS

ADMINISTRATIVE LAW - Judicial Review - Migration control - Deportation orders - prohibited non-citizens - child of prohibited non-citizens born in Australia and Australian citizen - whether delegate of Minister failed to take into account consequences to the child of deportation of parents - Relevance of Human Rights Commission Act 1981 - Whether there was a breach of the requirements of natural justice - Whether the delegate was under a duty to afford natural justice to the non-citizens or to the child.

Migration Act 1958 ss. 6, 6A, 7, 8, 18

Human Rights Commission Act 1981

Administrative Law - Judicial review - Deportation orders - Whether rules of natural justice applicable - Migration Act 1958 (Cth), ss 6, 6A, 7, 8, 18.

HEADNOTE

Held: (1) (per Northrop and Wilcox JJ.) The enactment of the Human Rights Commission Act 1981 (Cth) does not require a delegate of the Minister contemplating making a deportation order to specifically turn his attention to the various rights and principles enunciated in the international agreements referred to in the schedule of the Act.

(2) A delegate is not bound to observe the rules of natural justice in ordering the deportation of a non-citizen, even if that deportation affects a citizen child of the persons to be deported.

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461; Minister for Immigration and Ethnic Affairs v. Haj Ismail (1982) 57 FLR 133; Minister for Immigration and Ethnic Affairs v. Gaillard (1983) 49 ALR 277, followed.

Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Pochi v. Minister for Immigration and Ethnic Affairs (1982) 43 ALR 261; Tabag v. Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705; Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 566; Smith v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551; Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (No. 2) (1983) 51 ALR 575; Ashby v. Minister for Immigration (1981) 1 NZLR 222; Simsek v. MacPhee (1982) 148 CLR 636; R. v. Chief Immigration Officer; Ex parte Bibi (1976) 1 WLR 979; Kaur v. Lord Advocate (1981) SLT 322; Ahmed v. Inner London Education Authority (1978) QB 36; Wacando v. The Commonwealth (1981) 148 CLR 1; Powell v. Kempton Park Racecourse Co. (1899) AC 143; A.-G. v. Prince Ernest Augustus of Hanover (1957) AC 436; Bread Manufacturers (N.S.W.) v. Evans (1981) 56 ALJR 89; Kanda v. Government of Malaya (1962) AC 322; R. v. Conciliation and Arbitration Commission (Cth); Ex parte Angliss Group (1969) 122 CLR 546; National Companies and Securities Commission v. News Corporation Ltd (1984) 58 ALJR 308; Freedman v. Petty (1981) VR 1001; A.-G. (Hong Kong) v. Ng Yen Shiu (1983) 2 AC 629; Durayappah v. Fernando (1967) 2 AC 337; Smith v. Minister of State for Immigration and Ethnic Affairs (1984) 53 ALR 551, referred to.

HEARING

1984, June 25-28; October 3. #DATE 3:10:1984

APPEAL.

Appeal from judgment and orders of Keely J.

R. Merkel Q.C. and P. Rose, for the applicants.

The deportation orders in the present case necessarily operate also as a deportation of the child born in Australia. There is no warrant in the Act for the deportation of an Australian citizen. The conflict inherent between the right of the child to remain in Australia and the deleterious effect on her rights, if either her mother or father are taken from her, or if she is the subject of a de facto deportation, called for the most anxious consideration by the delegate. From the delegate's reasons it cannot be inferred that consideration was given to these matters. The delegate was bound to take into account and have regard to the policy of the Commonwealth as enacted by the Human Rights Commission Act 1981 (Cth), by which it is incumbent upon persons exercising discretionary powers under Commonwealth enactments to endeavour to do so in a manner consistent with the principles of human rights. A case involving deportation of parents of an infant Australian child is an exceptional case and attracts the rules of natural justice to the extent that the delegate was under a duty to act fairly and enable the parents and the child to respond to the submission of the Department. The failure to bring that submission to the attention of the applicants or their representatives constituted a violation of the duties owed and vitiated the decision.

He referred to: Simsek v. MacPhee (1982) 148 CLR 636; Kaur v. Lord Advocate (1981) SLT 322; R. v. Chief Immigration Officer; Ex parte Bibi (1976) 1 WLR 979; Wacando v. The Commonwealth (1982) 148 CLR 1; Powell v. Kempton Park Racecourse (1899) AC 143; Re Toohey (1981) 56 ALJR 164; Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (No. 2) (1983) 51 ALR 575; Ashby v. Minister for Immigration (1981) 1 NZLR 222; Sean Investments v. MacKellar (1981) 38 ALR 363; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461; Ashby v. Minister for Immigration (1981) 1 NZLR 222; Minister for Immigration v. Tagle (1983) 48 ALR 566; Smith v. West unreported (Federal Court of Australia, Full Court, 4 April 1984); Durayappah v. Fernando (1967) 2 AC 337; McInnez v. Onslow-Fane (1978) 1 WLR 1520; A.-G. v. N'jie (1961) AC 617; Egerton v. Middleton (1953) VLR 191; Re E and L Homes (1974) Qd R 102; A.-G. v. Brewery Employees' Union (1909) 6 CLR 469; Mutton v. Ku-ring-gai M.C. (1973) 1 NSWLR 233; Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625; Ricegrowers Co-Operative Mills Ltd v. Bannerman (1981) 56 FLR 443; Toohey v. Minister for Business and Consumer Affairs (1981) 36 ALR 64

A.G. Uren Q.C. and C. Gunst, for the respondents.

The Human Rights Commission Act 1981 (Cth) does not create any rights or impose any duties on persons in Australia and no Australian municipal law enacts the provisions of the Covenant and Declarations. The Minister's delegate was not entitled to take into account the provisions of the Covenant and Declarations except to such extent as the matter referred to therein were otherwise obliged to be taken into account. Even if the delegate might have taken the Covenant and Declarations into account he was not bound to do so and his decisions cannot be reviewed for failure to do so. All that he was bound to take into account was that the first and second appellants were prohibited immigrants, the policy of the Migration Act 1958 (Cth) and the policy of the Government. The only relevant policy in that regard is that applicants for parent residence in Australia apply in an orderly way from overseas except in the class of case falling within s. 6A(1)(e). In any event the Minister did take into account the fact that the third appellant, the infant Australian citizen would leave Australia with her parents and live in Tonga. The weight which he gave to those matters was a matter for him. The appellants were not entitled to the benefit of the rules of natural justice because the Migration Act 1958 did not require natural justice to be accorded to any persons before a decision to deport or not to grant an entry permit to a prohibited immigrant or to refuse an application for an entry permit could be made and secondly, the deportation order did not operate upon the infant Australian child or deprive her or the other appellants of any right or legitimate expectation. In any event the appellants were accorded natural justice before the decisions were made. The Australian infant child is not a person aggrieved within the meaning of the Act.

Cur. adv. vult.

Solicitors for the applicants: J.R. Gardner.

Solicitor for the respondents: Australian Government Solicitor.

G.F.V.

ORDER

Appeal dismissed with costs.

JUDGE1

The appellants, Jason Kioa and Fheodolina Hyawith Kioa, husband and wife, are citizens of the Kingdom of Tonga. Mr. Kioa entered Australia on 8 September 1981 in order to attend a three month training course at the International Training Institute in Melbourne. This course was related to his then employment by the Tongan Tourist Office. Mr Kioa entered Australia upon a student visa and was granted a temporary entry permit valid for a period of three months.

Mrs Kioa arrived in Australia on 7 November 1981 with her daughter Elitisi, who was born on 31 July 1979. They were granted temporary entry permits valid until 31 March 1982.

At some stage Mr Kioa was granted four months leave by his employer so that he was not expected to resume duties in Tonga until early April 1982. He decided to spend that leave in Australia and on 15 December 1981 he made application for an extension of his temporary entry permit until 31 March 1982, upon which day the family was due to leave Australia to return to Tonga. In the event, and because of the necessity to obtain certain information, the application for an extension of the temporary entry permit was not determined prior to 31 March 1982.

In March 1982 Mr Kioa resigned his position in Tonga and commenced employment as a machine operator in Melbourne. Mr Kioa subsequently stated that the reason for his decision to remain in Australia was that parts of Tonga had been devastated by cyclone Isaac and, as a consequence, his family had advised him to remain in Australia for the purpose of sending money home to them.

As a result of telephone calls made in April 1982 officers of the Department of Immigration and Ethnic Affairs believed that the Kioa family had returned to Tonga at the end of March. Consequently no further action was taken until July 1983 in relation either to the application for an extension of the temporary entry permit or to the continued presence of the Kioa family in Australia. In the meantime, on 14 November 1982 a second daughter, the appellant Elvina Kioa, was born.

Mr Kioa was apprehended at his place of work on 25 July 1983. He was released from custody on 5 August 1983, subject to daily reporting conditions. Mrs Kioa was interviewed on 26 July. She stated that she had not worked in Australia and that she wished to leave all decisions to her husband. Mr Kioa was interviewed on the following day. He explained the reason for his decision to remain in Australia, that he had a good job with an employer who wished him to continue, that he and his family had established a life for themselves here and that they wished to remain.

On 28 July 1982, Mr J R Gardner, Director of Legal Aid in the Legal Aid Commission of Victoria, wrote to the respondent Minister on behalf of Mr Kioa. The letter referred in some detail to the circumstances of the family and made express reference to the birth of Elvina and the fact that, having been born in Australia, she was an Australian citizen. The letter included this passage:

"Naturally, Mr Kioa would like to remain in Australia and we would hope that you will exercise your discretion to allow him and his family to do so. 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".

Mr Gardner's letter was supported by letters from Mr Kioa's employer and from his fellow employees.

On 12 September 1983 the Department wrote to Mr Kioa formally refusing his application of 15 December 1981 to extend his temporary entry permit and requiring him to make immediate arrangements to leave Australia with his family. He failed to do so and on 6 October 1983 a submission, prepared by the Director, Enforcement Section, of the Department was put before the Deputy Secretary, the delegate of the Minister appointed under s. 66D of the Migration Act 1958. That submission recited the facts and include two references to Elvina's Australian citizenship. It included three paragraphs which, in view of submissions put to us, should be quoted:

"20. Mr Kioa claims that the catalyst for his staying in Australia was the devastating cyclone which hit Tonga in March 1982. Yet it should be noted that this occurred at least three months after his TEP had expired.

"21. If Mr Kioa had been genuine in his desire (in Dec 1981) to seek a legitimate extension of his stay, it would have appeared likely that he might have sought a decision on his application rather than change his address without apparently notifying the Department. Then when his wife's TEP expired around the time of the Tongan cyclone no attempt was made to lodge a formal application to regularize their status.

"22. Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern".

The submission went on to refer to the possibility of the regularization of the status of Mr & Mrs Kioa, 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" and concluded with a recommendation to the delegate that he sign orders for the deportation of Mr & Mrs Kioa. No recommendation was made in relation to the deportation of Elitisa or, of course, of Elvina, but the submission envisaged that they would depart with their parents. It included the statement: "Their children are to accompany them at Commonwealth expense".

On the same day, 6 October 1983, the delegate signed deportation orders against Mr & Mrs Kioa. Pursuant to a request under s.13 of the Administrative Decisions (Judicial Review) Act 1977 the Delegate made a Statement of Reasons for his decisions on 11 November 1983. That Statement, which included findings on material questions of fact, made reference to Elvina's status as an Australian citizen. The document stated the following reasons for the decision:

"24. 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.

"25. 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.

"26. 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.

"27. 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.

"28. 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.

"29. 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 on 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.

"30. 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 28 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".

On 18 October 1983 an Application for judicial review was filed on behalf of Mr Kioa. An amended application on behalf of Mr & Mrs Kioa and their daughter Elvina was subsequently filed. That amended application was dismissed by Keely J and the applicants appealed to this Full Court against such dismissal. They advanced two major grounds for their submission that the decision of the delegate was erroneous in law: the failure of the delegate to take into account the effect upon Elvina of the making of an order for the deportation of her parents, especially having regard to the provisions of the Human Rights Commission Act 1981 and, secondly, the failure of the delegate to act in accordance with the principles of natural justice.

As Keely J pointed out, the decision of the delegate, in relation to each of Mr & Mrs Kioa, really involved three separate decisions, namely, the decision to deport, the decision to refuse a temporary entry permit and the decision to refuse a (permanent) entry permit. In order to put those decisions in context, it is convenient to refer to the provisions of the Migration Act, as it was at the time of the delegate's decision.

Section 6(1) made a non-citizen who enters Australia without a current entry permit a "prohibited non-citizen". However, he might be granted a (permanent) entry permit, and thus cease to be a prohibited non-citizen (s.10), in one of two ways. First, he could be granted an entry permit by an authorised "officer" (s.6(2)) but, if the non-citizen had already entered Australia, only where he was able to fulfil the criteria of one of the paragraphs in s.6A(1). Except in the case of a person granted territorial asylum in Australia by the Minister or a person who was a "spouse, child or aged parent of an Australian citizen or of the holder of an entry permit" each of the relevant paragraphs included as an ingredient that the person be the holder of a temporary entry permit. Generally speaking, therefore, a (permanent) entry permit could not be obtained by a non-citizen already in Australia and not holding a current temporary entry permit.

At the date of the delegate's decision - although the provision has since been repealed - s.6(2A) empowered the Minister "in accordance with this section and at the request or with the consent of an immigrant who has entered Australia" to grant a (permanent) entry permit. However, sub-s.(5) subjected this power also to the limitations contained in s.6A. In the result, therefore, for practical purposes a (permanent) entry permit could only be granted to a non-citizen already in Australia if he held a current temporary entry permit.

Section 7(2) provided that at any time while a temporary entry permit is in force, or after the expiration or cancellation of a temporary entry permit, a further entry permit might, at the request of the holder, be granted to the holder. Upon the expiration or cancellation of a temporary entry permit the person who was the holder of that permit became a prohibited non-citizen unless a further entry permit applicable to him came into force (s.7(3)).

As there was no limit, in s.7(2), upon the time within which application must be made for a further temporary entry permit, it was open to Mr & Mrs Kioa to seek the issue to them of new temporary entry permits in July 1983, and notwithstanding the lapse of time since the expiration of their earlier entry permits in December 1981 and March 1982 respectively. If, but only if, a temporary entry permit was procured then the holder would be in a position to seek a (permanent) entry permit on the ground that "there are strong compassionate or humanitarian grounds for the grant of an entry permit to him": see s.6A(1)(e). It was because of the requirement of a temporary entry permit as a pre-condition to obtaining a (permanent) entry permit that Keely J took the view that the application before the delegate, constituted by the letter from Mr Gardner of 28 July 1983, should be read as an application both for a temporary entry permit under s.7(2) and a (permanent) entry permit under s.6(2) of the Act.

Section 18 of the Act provides:

'18. The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act'.

The delegate, in making the deportation order against each of Mr & Mrs Kioa, purported to exercise this power.

The delegate, in his Reasons, disclosed that he was conscious of the fact that it would be necessary for him to grant a temporary entry permit prior to exercising any power to grant a (permanent) entry permit. We agree with Keely J that, in making his decision, he was in reality making three decisions, temporary entry permit, (permanent) entry permit and deportation order, in relation to each applicant. His reasons disclose that he was aware of that position.

Section 10 of the Australian Citizenship Act 1948 provides that, with presently immaterial exceptions, a person born in Australia after the commencement of the Act 'shall be an Australian citizen by birth'. Having been born in Australia, Elvina was, and is, therefore immune from the exercise of the various deportation powers given to the Minister by the Migration Act. Those powers, given by ss. 12, 14 and 18, apply only to a 'non-citizen', a term defined to mean a person who is not an Australian citizen. Elvina had, and has, not only a legal right to remain in Australia but an expectation of enjoying the usual physical, social, educational, and economic benefits of being an Australian citizen residing in Australia. Counsel for the appellants argue that, under those circumstances, there was a special responsibility upon the delegate in considering what course he should take. A decision to deport Mr & Mrs Kioa would mean either the loss by Elvina of that expectation, at least temporarily - she could, of course, return to Australia at any time - or alternatively, a forced separation at the age of one year from the parents upon whom she was dependent. In either event, the decision to deport would cause her serious disadvantage. Failure to take into account such a disadvantage would, they contend, constitute an imroper exercise of power and vitiate the decision which, they say, is therefore reviewable under s.5(2)(b) of the Administrative Decisions (Judicial Review) Act.

Both in aid of, and alternatively to, that submission the applicants rely upon the enactment of the Human Rights Commission Act 1981.

As its name suggests the purpose of this enactment was to constitute a body corporate, to be known as the Human Rights Commission. The Commission has functions, inter alia, to examine enactments and proposed enactments for the purpose of ascertaining whether they are, or would be, inconsistent with or contrary to any human rights and to report to the Minister the results of any such examination; to inquire into any Act or practice that may be inconsistent with or contrary to any human right and, where appropriate, to endeavour to effect a settlement of the matters that gave rise to the inquiry and, where it is of the opinion that the Act or practice is inconsistent with or contrary to any human right and the matter has not been settled, to report to the Minister the results of its inquiry; to report to the Minister as to the laws which should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights; upon request by the Minister to report as to the action that needs to be taken by Australia in order to comply with the provisions of relevant international instruments including the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons; to promote an understanding and acceptance, and the public discussion, of human rights in Australia and to undertake research and educational programs on behalf of the Commonwealth for the purpose of promoting human rights.

The Human Rights Commission Act does not, in terms, impose any obligation on Commonwealth officers as to their future conduct. It makes no express reference to the Migration Act or the making of decisions thereunder. However, counsel for the appellants draw attention to the Preamble and Schedules to the Act in support of their submission that the Commonwealth Parliament has, by the enactment of this legislation, adopted a policy which the delegate was bound but failed, to take into account when making the decisions of 6 October 1983. The Preamble, they say, expresses a policy of the Parliament that all persons administering Commonwealth laws should so administer them as to conform with the agreements included in the Schedules; thus adding to the matters relevant for consideration in this case. The position, they claim, is analogous to that arising in relation to s.12 deportations, in which the Ministerial policy on the deportation of non-citizens, who have been convicted of criminal offences, is a relevant matter for consideration: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at pp 598-591.

The Preamble reads:

"Whereas it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons and other international instruments relating to human rights and freedoms".

The term "human rights" is defined in s.3(1) as meaning:

"the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument".

Section 3(2) provides that in this definition:

"The reference to the rights and freedoms recognised in the Covenant shall be construed as a reference to the rights and freedoms recognised in the Covenant as it applies to Australia".

Schedule 1 to the Act contains the Covenant. Counsel referred to Article 23.1:

"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State".

and Article 24.1:

"Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State".

Schedule 2 contains the Declaration of the Rights of the Child. Counsel referred to Principles 1, 2, 4, 6, 7 and 8, which read as follows:

"Principle 1

"The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status, whether of himself or of his family.

"Principle 2

"The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

. . . .

"Principle 4

"The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services.

. . . .

"Principle 6

"The child, for the full and harmonious development of his personality, needs love and understanding. He shall, whereever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorites shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.

"Principle 7

"The child is entitled to receive education, which should be free and compulsory, at least in the elementary stages. It shall be given an education which will promote his general culture and enable him, on the basis of equal opportunity, to develop his abilities, his individual judgement, and his sense of moral and social responsibility, and to become a useful member of society.

"The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.

"The child shall have full opportunity for play and recreation, which should be directed to the same purposes as education; society and the public authorities shall endeavour to promote the enjoyment of this right.

"Principle 8

"The child shall in all circumstances be among the first to receive protection and relief".

Counsel argue that notwithstanding its limited substantive content, the Act disclosed a legislative intention that both the laws of the Commonwealth and the conduct of persons exercising functions under those laws should conform with the relevant provisions of the Covenant and the Declarations. The Covenant emphasised the importance of the family unit and the entitlement of every child to appropriate protection on the part, inter alia, of the State. The Declaration on the Rights of the Child included reference to his entitlement to special protection in his development (Principle 2), his entitlement to social security including health care (Principle 4), his need for love and understanding, growing up preferably in the care and under the responsibility of his parents (Principle 6) and entitlement of the child to education (Principle 7). They particularly emphasise the words in Principle 6 "a child of tender years shall not, save in exceptional circumstances, be separated from his mother".

We do not doubt that it was encumbent upon the delegate, in making his decisions, to give proper consideration to such material as was before him as related to the effect upon other members of their family of the denial of permits to, or the deportation of, Mr & Mrs Kioa. There is abundant authority for that proposition (see, for example, Pochi v Minister for Immigration and Ethnic Affairs (1982) 43 ALK 261 at pp 270-272, Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 at pp 708-710, 711-712, 717, 731, Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 at pp 571-575 and the earlier cases cited therein). Counsel for the respondent Minister do not suggest otherwise. Their response is to assert that there is nothing to indicate that the delegate overlooked these considerations, that, on the contrary, he was clearly informed by the departmental submission that Elvina was an Australian citizen and that it was expected by the Department that she would leave Australia with her parents in the event of a deportation order being made. They say that the delegate must be taken as having understood that the consequence of a decision that Mr & Mrs Kioa, or either or them, should be deported would be to create the dilemma of disadvantage referred to by the appellants. We accept that submission. The reasons given by the delegate (para 23) indicate that in making his findings he had before him not only the departmental submission referring to Elvina's status but also the notes of the interview with Mr Kioa on 27 July 1983 and the letter of Mr Gardner to the Minister of 26 July 1983. In both the notes of interview and the letter the advantages to the family of remaining in Australia are set out and, as mentioned, the letter from Mr Gardner specifically drew attention to the special issue which arises where a child of a prospective deportee is an Australian citizen. In his reasons the delegate made specific mention of the fact that Elvina was an Australian citizen (para 4). He said (para 30) that he had considered the circumstances of the case of Mr & Mrs Kioa and in particular the matter's stated by Mr Kioa in his interview. There is no reason for us to conclude otherwise. It is inconceivable that the delegate failed to appreciate that the effect of a deportation order against the parents would be that, in all probability, Elvina would be taken away from the country of which she was a citizen and deprived, at least during her childhood years, of such advantages as go with being an Australian citizen in Australia. It is equally unlikely that the delegate failed to appreciate that the only alternative to that fate would be the separation of the child from the parents upon whom she was dependent.

In Smith v Minister for Immigration and Ethnic Affairs (14 March 1984, unreported) Morling J dealt with the case of the deportation of two United States citizens, the parents of a baby girl born in Australia. In that case the recommendation to the delegate referred to the fact of the child's birth in Australia but it failed to state that she was an Australian citizen or to spell out the consequences for her of the deportation of her parents. Morling J proceeded on the basis that the delegate must have realised both the status of the child and the problems as to her future welfare. That approach was approved on appeal to a Full Court: see Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551. Lockhart J, with whom the other members of the Court (Bowen CJ and Sheppard J) agreed, referred at p 554 to the necessity to study decisions of government officers "carefully but sensibly, and not zealously in the pursuit of error". For us to attribute to the delegate, a senior officer of the Department, a failure to appreciate the disadvantageous dilemma which would be faced by Elvina if her parents were deported would be to depart from this precept.

The relevance to the making of a deportation order of the Human Rights Commission Act has been considered in two cases in this Court. In Tabag counsel for the appellant referred to the Human Rights Commission Act and the Covenant in support of an argument that family disintegration is such an evil that it must prevail to prevent deportation in all but the worst of cases. Woodward J, at p 710, after referring to the relevant provisions of the Covenant commented:

"Such provisions would act as a reminder, if one were needed, of the importance of the family and of the protection of children in our society.

"However, I do not believe that such reminders are needed. Of the judicial statements on these matters referred to above, that of Lockhart J in Nevistic's case will suffice to illustrate my point. His Honour (34 ALR at 652) said: 'one matter that caused me special concern was whether the Tribunal sufficiently recognised that the effect of the deportation order would be that four young Australian children must either leave Australian soil and live in Yugoslavia - a land with a culture and language unknown to them - or remain here with their mother but without their father. However I am not satisfied that the Tribunal failed to take this important consideration into account'. I take this to mean that, in the opinion of Lockhart J, the Tribunal in that case had both taken the consideration into account and recognised its importance".

Jenkinson J, at p 732, commented that the material before the Court did not justify a conclusion that the Tribunal failed to have regard to the Act or to the Covenant and that nothing in the proceedings before the Tribunal or in its decision or its reasons for the decision was in contravention of any provisions of the Act or of the Covenant. His Honour's approach was that, if the Covenant were relevant (a matter not decided) it was enough to check whether the course taken by the delegate was inconsistent with it; the delegate was under no obligation to make any express reference to the Covenant.

In Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (No. 2) (1983) 51 ALR 575 a submission was made on behalf of the applicant to the effect that, Australia having acceded to the Covenant, the provisions of the Covenant were binding on the acting Minister so as to restrain him from making an order for deportation which would invade, or fail to protect, the family situation. Smithers J did not exclude the possibility that the Minister should take into account the principles expressed in the international agreements referred to in the Human Rights Commission Act and he did refer to the recital in the Preamble to that Act but, at p 577, he said:

"But of course such a recital stops short of enacting that the provisions of the Covenant are part of the law of Australia, and in fact those provisions are not part of the law of Australia.

"The Migration Act 1958 is law in Australia on the subject of immigration. In that Act Parliament lays down, inter alia, the conditions according to which persons may be admitted to Australia and may be deported therefrom. It is to those provisions that regard must be had".

Turning to the facts of the case before him, Smithers J noted that the Minister had "in an indirect way" taken into consideration the provisions of the Covenant in giving consideration to the effect of a deportation upon the de facto wife of the applicant, an Australian citizen, and their unborn child.

At p 578 Smithers J summarized his view:

"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. The only way in which the Act is relevant is that it makes clear that is it 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".

In Ashby v Minister of Immigration (1981) 1 NZLR 222 the New Zealand Court of Appeal rejected an argument that the International Covenant affected the exercise of the powers given to the Minister to issue temporary entry permits to members of the Springbok Rugby team. Cooke J commented:

"It is elementary that international treaty obligations are not binding in domestic law until they have become incorporated in that way".

ie by Act of Parliament. See also Simsek v Macphee (1982) 148 CLR 636 at pp 641-642, R v Chief Immigration Officer: ex parte Bibi (1936) 3 All E.R. 843 at p 847, Kaur v Lord Advocate (1981) S.L.I. 322 at p 329.

Even if it be correct to say, as did Scarman L.J. in Ahmed v Inner London Education Authority (1978) 1 QB 36 at p 48, that the Courts may have regard to international treaty obligations not yet adopted into domestic law in interpreting statutory language and applying common law principles - though we share the puzzlement of Lord Ross in Kaur as to how this is logically possible - that would not assist the appellants in relation to the range of matters relevant for consideration under the Migration Act. There is not there any ambiguity to be resolved by reference to an international agreement. To make good their argument the appellants need to find a legislative adoption of the treaty provisions. In that connection it is significant that, as a result, no doubt, of a deliberate decision to that effect, the Australian Parliament, in enacting the Human Rights Commission Act, refrained from providing, in the operative provisions of the Act, that the various international agreements which were included in the Schedule to the Act should have effect as part of Australian domestic law. It would be surprising if, under those circumstances, Parliament had intended the Preamble to have the effect of altering Commonwealth domestic law so as to widen the range of matters relevant for consideration by persons making decisions under that law. The function of a preamble is to indicate the purpose of a statute. It may afford guidance as to the meaning to be attributed to an operative provision in a statute: see Macando v The Commonwealth (1981) 148 CLR 1 at p 23, Powell v Kempton Park Racecourse Company (1899) AC 143 at p 185 but there must first be some question about the meaning of the operative provisions. In Attorney-General v Prince Ernest Augustus of Hanover (1957) AC 436 at 463, Viscount Simonds said:

". . . the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying . . . that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt".

The converse must also be true, that a compelling reason is not to be found merely in the fact that the enacting words go less far than the preamble has indicated.

In this case the appellants do not contend that the Preamble casts light upon ambiguous operative provisions. They concede that the operative provisions of the Human Rights Commission Act fall short of the result they need but they contend that this omission is supplied by the width of the Preamble. We know of no authority to support that approach, which we regard as being wrong in principle. We add that, in any event, we cannot construe the Preamble, even read alone as evincing an intention to impose an immediate, general rule that administrative conduct shall conform with the provisions of the scheduled international agreements. The recital merely says that it is 'desirable' that there should be conformity. Moreover, administrative conduct is referred to after, but in conjunction with, "the laws of the Commonwealth". If in truth there were laws that did not comply, then Parliament not having taken the course of enacting operative provisions to amend those laws, the desirable situation would not immediately obtain. Similarly, we think where conduct does not, for legal reasons, conform with the terms of the relevant agreements. The main purpose of the Act was to establish a Commission to work, on a case by case basis, on the task of bringing non-conforming laws and conduct into conformity with the agreements. It did not, through the Preamble, establish an immediate obligation to conform.

It follows that we agree with Smithers J that the enactment of the Human Rights Commission Act could not, and did not, give rise to any new legal rights or derogate from any existing legal powers. In particular, the powers of the Minister and his various delegates under ss.6, 7 and 18 of the Migration Act were left unaffected. We would differ from Smithers J only to the extent that his Honour conceded any relevance at all to the terms of the Human Rights Commission Act, as such and divorced from the general humanitarian principles to which it refers and which are relevant in their own right.

We see no basis in law for the conclusion that, by reason of the Human Rights Commission Act, the delegate was obliged specifically to turn his attention to the various rights and principles enunciated in the relevant international agreements. He did have an obligation to consider the effect of the proposed deportations on the family. That subject matter happens to be similar to that of the relevant articles and principles in the agreements referred to in the Human Rights Commission Act. As we have already said, he did consider these matters by referring to the material before him which related to the effect upon the family of a deportation of Mr & Mrs Kioa. As Woodward J observed in Tabaq, the provisions of the Covenant (and we would add the Declaration of the Rights of the Child) really only 'act as a reminder, if one were needed, of the importance of the family and of the protection of children in our society".

The second challenge to the delegate's decision is made on the basis that the delegate was obliged, in reaching his decision, to accord with the requirements of natural justice and, in particular, the principle that an affected person is entitled to know the substance of the case made against him.

The appellants contend that there was a failure by the delegate to comply with that obligation in that he made his decisions without informing the appellants of the content of the departmental submission and without giving them an opportunity to respond to it. They refer in particular to paras 20, 21 and 22 of the submission.

There is no general rule that the requirements of natural justice require the decision maker to place before an affected person the whole of the material which is before him and to give to that person an opportunity to reply before the decision is made. In many cases the material submitted to the decision maker will be in the nature of a reply to, or comment upon, representations made to him by the person affected. To require an opportunity for response to such material would be to encumber the decision making process with undesirable delay; it would be difficult to know at what point the process of reply and rebuttal should stop. It appears to us that the matters stated in paras 20 and 21 fall into this category. They constitute departmental comment on aspects of Mr Kioa's representations. They raise no new issues and state no new facts.

Paragraph 22 is in a different category. The genesis of the paragraph was, apparently, a statement made in Mr Gardner's letter to the Minister - written in the context that Mr Kioa had not attempted to conceal his whereabouts - that Mr Kioa "is also a member of the Immigration and Ethnic Committee for the United (sic) Church and only recently was in discussion with your department concerning the difficulties of illegal immigrants from Tonga". However, the paragraph went much further than to comment upon that matter. It referred not only to Mr Kioa's "alleged" concern for other Tongan illegal immigrants but also "his active involvement with other persons who are seeking to circumvent Australia's immigration laws". This reference suggests two things: first, that Mr Kioa's concern extended more widely than assistance to Tongan illegal immigrants and, secondly, that the purpose of his activity was to assist them to "circumvent" the Australian immigration laws, as distinct from assisting them to regularise their position in accordance with those laws. The second allegation was particularly serious, addressed as it was to a decision maker responsible for the proper administration of those laws within the State within which Mr Kioa was active. Those allegations did not arise out of the material submitted by or on behalf of Mr Kioa. They were allegations never put to him or drawn to his attention, matters in relation to which he was given no opportunity to be heard. Natural justice would require that these matters, in contrast to the matters of comment in paras 20 and 21 (cf Bread Manufacturers of New South Wales v Evans (1981) 38 ALR 93 at p 101), be put to Mr Kioa before any decision was made.

It is true that the delegate's stated reasons for decision do not include any reference to the content of para 22. There is no reason to doubt the veracity of the delegate or to attribute to him undisclosed reasons. We may, therefore, properly conclude that the allegations did not in fact influence the delegate's decisions, unfavourable to Mr & Mrs Kioa. It is also true, as the respondent pointed out, that the allegations were not relevant to the question whether there were "strong compassionate and humanitarian grounds" for the grant to the appellants of (permanent) entry permit; an issue which, in practical terms, would need to be decided in their favour if they were to be allowed to stay. But those matters are not material.

In Kanda v Government of Malaya (1962) AC 322 the Judicial Committee of the Privy Council dealt with disciplinary proceedings against a police inspector who had been dismissed after an inquiry by an adjudicating officer appointed for that purpose. Prior to undertaking the inquiry the adjudicating officer had received and read a report of a board of inquiry dealing with the conduct of the appellant, which report was not made available to the appellant at any time prior to his dismissal. It was not shown that the adjudicating officer had been influenced by the content of the report. Notwithstanding, the Judicial Committee held that the appellant had been deprived of his right to be heard. At pp 337-338 the Committee said:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgement of Lord Loreburn LC in Board of Education v Rice (1911) AC 179 at p 182 down to the decision of their Lordships' Board in Ceylon University v Fernando (1960) 1 WLR 223. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing".

The principles of natural justice are not a fixed body of rules applicable inflexibly at all times and in all circumstances; their application must depend upon the circumstances of the case including the nature of the inquiry, the rules under which the relevant tribunal is acting, the subject matter under consideration and so on: see The Queen v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at pp 552-553, National Companies and Securities Commission v News Corporation Limited (1984) 52 ALR 417 at pp 427-428, 434. However those requirements, at least generally, involve the giving to an affected person information as to the allegations made against him which will be put before the decision maker so as to afford to him an opportunity of reply. As Marks J pointed out in Freedman v Petty (1981) VR 1001 at p1021 it will normally not be enough even to ask the affected person questions relative to the allegations. In order to deal adequately with allegations he needs to know their actual content.

It seems to us that, in proceeding to decide the matters before him without calling to the attention of the applicants the allegations made in para 22 of the departmental submission and without giving to the applicants an opportunity to respond, the delegate acted in breach of the requirements of natural justice. If, therefore, in making his decisions, or any of them, the delegate was bound to comply with the requirements of natural justice the relevant decisions would be void.

This conclusion leads to the question whether there was any requirement upon the delegate to comply with the rules of natural justice. That requirement must be obtained from common law principle, subject to any implication of exclusion by the Migration Act. The jurisdiction given to the Court to review upon the ground that a breach of the rules of natural justice occurred in connection with the making of the decision (see s.5(1)(a) of the Administrative Decisions (Judicial Review Act) does not itself confer an obligation to accord natural justice: see Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 at p 347.

In 1977 the High Court held, in two cases, that the Minister for Immigration and Ethnic Affairs, in considering the question whether he should make a deportation order under s.18 of the Migration Act, was not bound by the dictates of natural justice: see Sajemi v MacKellar (No 2) (1977) 137 CLR 396 and The Queen v MacKellar; Ex Parte Ratu (1977) 137 CLR 461. In the present matter before Keely J counsel for the appellants accepted that these decisions precluded any reliance on the principles of natural justice by Mr & Mrs Kioa, who were prohibited non-citizens. He contended, however, that the situation in relation to the third appellant, their Australian citizen daughter Elvina, was different. Before us counsel for the appellants submit that, even in relation to Mr & Mrs Kioa, the rules of natural justice were applicable. They say that there had, since 1977, been such legislative changes as to require this Court to distinquish Salemi and Ratu. Counsel refer to the insertion into the Act in 1979 of s.27(1)(ab), creating for the first time the offence of becoming a prohibited non-citizen upon the expiration of a temporary entry permit. This meant that a non-citizen became not merely liable to deportation upon refusal of a further entry permit but also liable to punishment by a fine not exceeding $1,000 or imprisonment for a period not exceeding six months. They also refer to the addition in 1980 of s6A limiting the circumstances in which an entry permit may be granted to a non-citizen after his entry into Australia. We would add a reference to the commencement of the operation of the Administrative Decisions (Judicial Review) Act 1977 which requires the Minister or his delegate, upon the request of the person affected, to give a statement of the reasons for the decision to refuse the grant of an entry permit under s.6 or a temporary entry permit under s.7 or the making of a deportation order: see s.13 and para (d) of Schedule 2 to that Act.

There is no doubt that the legislative changes which have occurred since 1977 impinge, to some extent, upon the reasons underlying Salemi and Ratu. Thus Stephen J, in Salemi at p 431, noted that, as the law then stood, no offence was committed by a person who overstayed the expiration of a temporary entry permit. However Stephen J did not find it necessary, either in Salemi or Ratu, to come to a firm conclusion as to whether the principles of natural justice usually applied to decisions under s.18. Much more significantly, each of the four justices who expressed the view that s.18 does not normally attract the rules of natural justice cited as one reason for that view the fact that the legislation did not compel the Minister to disclose his reasons: see Barwick CJ in Salemi at p 402 and in Ratu at p 466, Gibbs J in Salemi at p 421, noting that Aickin J at p 460 agreed with Gibbs J and that each of those justices reaffirmed his view in Ratu, and Mason J in Ratu at pp 479-180. However, the absence of reasons was not the only foundation for the view that the rules of natural justice did not apply to s.18 orders. Each of the four justices emphasised the contrast between the procedural limitations imposed upon the exercise by the Minister of his power under s.14 of the Act to deport a non-citizen who constitutes a security risk and the untrammelled power given under s.18: see Barwick CJ in Salemi at p 402 and in Ratu at p 465, Gibbs J in Salemi at p 421 and Mason J in Ratu at pp 478 and 480. That contrast remains unchanged.

It is possible that the High Court would today depart from the view taken by the majority in each of Salemi and Ratu. The commencement of the operation of the Administrative Decisions (Judicial Review) Act does more than remove one of the two major reasons for that view. It means that the Parliament has chosen, despite the policy matters referred to by some members of the Court in Salemi and Ratu, to subject the Minister's decision to open scrutiny and the supervision of the Courts. It is not easy to see what legislative policy would remain to be served by insisting that the same decision should be free from supervision in respect of compliance with the rules of natural justice. It is not as if there was something inherently inconsistent between immigration control and conformity with the rules of natural justice. As the majority of the justices who heard Salemi and Ratu have indicated, there are, at least, exceptional cases in the immigration area in respect of which the rules of natural justice should be applied. See also the decision of the Judicial Committee in Attorney-General (Hong Kong) v Ng Yen Shiu (1983) 2 All E.R. 346.

Be those matters as they may, it is not for this Court to say that Salemi and Ratu should not now be followed. These decisions are each directly in point and bind us. In Minister for Immigration and Ethnic Affairs v Haj Ismail (1982) 40 ALR 341 a Full Bench of this Court (Bowen CJ, Franki and Davies JJ) confirmed the continued authority of Salemi and Ratu, notwithstanding the legislative changes which we have noted. We are of the opinion that we should follow that decision and reject the submission that, in relation to Mr & Mrs Kioa, the delegate was under a duty to accord natural justice.

Counsel for the applicants submitted that a distinction should be drawn between the situation in Salemi and Ratu, where the court was concerned solely with the Minister's deportation order under s.18, and the present case where the delegate was concerned also with applications for permits under ss.6 and 7. A similar submission was rejected by a Full Bench of this Court (Sweeney, Sheppard and Neaves JJ) in Minister for Immigration v Gaillard (1983) 49 ALR 277; we think rightly. This is not a proper distinction to be made. It is clear that, in each case, the High Court appreciated that the substance of the matter was that the Minister was being asked, in effect if not in form, simultaneously to address himself to the question whether it was appropriate that further permits be granted: see Barwick CJ in Salemi at p 406 and in Ratu at p 465.

Counsel for the appellants put an alternative submission, based upon Elvina's status as an Australian citizen. They argue that, whether or not there is a duty to accord natural justice to her parents, there was a duty to abide by the rules of natural justice in considering the making of orders which would inevitably adversely affect the interests of Elvina. She was not a prohibited non-citizen like her parents. They point out that the fact that the person affected had the status, as it was then called, of "prohibited immigrant" was an element in the conclusion in Salemi that s.18 did not attract the rules of natural justice: see Barwick CJ at p 402 and Gibbs J at p 420.

It is doubtful that Elvina herself was an applicant to the delegate, or to the Minister, in relation to the exercise of any discretion under the Migration Act. The application, such as it was, arose out of the request made by Mr Kioa at his interview on 27 July 1983 when he indicated that he and his family desired to remain in Australia and the letter from Mr Gardner of 26 July 1983 which is said to have been written on behalf of Mr Kioa. However, it would be inappropriate to make the fate of this submission dependent upon that circumstance. Mr Kioa's intention, no doubt, was to put before the Minister the position of all members of his family. The letter was effective to make known to the Minister, and consequently to the delegate, the status and interest of Elvina. If, in law, that status and interest created an obligation to abide by the rules of natural justice in considering the application by Mr Kioa then nothing should be made to turn upon the fact that Elvina was not nominated as an applicant for his consideration.

The question of substance is whether, in considering a proposed order against a prohibited immigrant, to whom no duty to accord natural justice is owed, such duty may arise in favour of a third party; even a third party who is an applicant for consideration and who will be affected indirectly by that order. In a case where there is no duty to the person principally concerned may there nonetheless be a duty to a person, having a more favoured status, who is concerned only in an indirect manner? Counsel for the appellants emphasise the factual matters supporting the argument that the status of, and effect upon, Elvina constituted this an exceptional case but they have referred to no authority which would justify an affirmative answer to this question. Our own researches have not yielded any such case.

There appears to be a problem of principle about such a conclusion. The underlying theory is that, in determining whether or not the requirements of natural justice apply to a particular decision, the Courts do no more than interpret the legislative will. As Barwick CJ said in Salemi at p 408 they "make express what is implicit in it". Of course, Parliament may fail to give any positive indication, in relation to legislation potentially affecting individual rights. In such a case the real exercise is to determine whether there is any evidence of an intent to exclude the duty: see per Gibbs J in Salemi at p419. But, with or without a positive indication, the question is one of statutory construction.

It is conceivable that a statute may be enacted which indicates a legislative intention that the rules of natural justice should not apply to a person primarily affected but that natural justice must be done if the decision will affect a person of particular qualifications, even indirectly. In such a case that will be the end of the question. However, in the usual case - in which guidance is meagre - the Courts will have to determine, as a matter of construction of the statute, whether or not it was intended that natural justice procedures would be followed in the making of a particular decision. In the typical case this question will have to be answered generally, one way or the other. Unless the legislature has required the making of a distinction, dependent upon the identity of affected persons, the courts have no rational basis to do so.

This conclusion perhaps gains some support from Durayappah v Fernando (1967) 2 AC 337. In that case the Judicial Committee of the Privy Council held that the decision of the respondent Minister to dissolve the Jaffna Municipal Council without according to it a hearing amounted to a breach of the rules of natural justice, rendering the decision voidable "at the instance of the person against whom the order was made, that is the Council" (p 355). But the Council took no legal action to challenge the decision. The plaintiff, in proceedings for prerogative and injunctive relief, was the person who held the office of mayor at the time of the order for dissolution. The effect of the order was to deprive him of his office but the Committee held that this gave him no right to complain independently of council. His only right of action would have been in a representative capacity, on behalf of the council. It is inherent in that conclusion that the duty to abide by the rules of natural justice is a duty owed only to the person principally and directly affected. If, in a case where the rules do apply, there is no obligation enforceable by a person indirectly affected then a fortiori there will be no such obligation in a case which there is no primary duty.

We have reached the conclusion that the effect of the exclusion of the rules of natural justice to decisions under ss.6, 7 and 18 of the Migration Act, in the absence of relevant special circumstances affecting the prohibited non-citizen such as the creation of a legitimate expectation of being afforded natural justice, is to exclude those rules even in cases where some other person, even an Australian citizen dependent upon the prohibited non-citizen, is likely to be adversely affected by the decision. It follows that the second ground of attack upon the decision of the delegate fails. The decision of Keely J dismissing the application for review was correct. Each of the appeals should be dismissed. The respondent's costs of each of the appeals of the first and second appellant should be paid by each of such appellants respectively. The respondent's costs of the appeal of the third appellant, Elvina Kioa, should be paid by Fheodolina Hyawith Kioa, the next friend of that appellant.

JUDGE2

Appeals from an order dismissing the appellants' applications for orders of review of administrative decisions.

The administrative decisions were made by a delegate of the first respondent. The document which is designated by the Rules of this Court an application identified, after amendment, a number of decisions in respect of which orders of review under the Administrative Decisions (Judicial Review) Act 1977 were sought. But it is unnecessary to consider more than four of them : a decision to order, in exercise of the power conferred on the first respondent by s.18 of the Migration Act 1958, and by him delegated to the person who made the decision, the deportation of the first appellant, a decision by that delegate to order, in exercise of power similarly derived, the deportation of the second appellant, that delegate's decision not to grant the first appellant an entry permit under the same Act, and his decision not to grant the second appellant an entry permit. All four decisions were made on 6 October 1983.

Each of the three appellants made application for an order of review of each decision, by causing to be filed in the names of all three a single document called, in compliance with this Court's Rules, an "application". The order of Keely J. disposing of all the applications which the appellants had made was that the "Application be dismissed". All three appellants have appealed from that order.

The circumstances under which the jurisdiction conferred by Division 2 of Part III of the Federal Court of Australia Act 1976 has been thus invoked are explained in the reasons for judgment of the other two members of the Court.

There can be no doubt that each of the first and second appellants is "a person who is aggrieved", within the meaning of that phrase in s.5 of the Administrative Decisions (Judicial Review) Act 1977, by each of the two decisions with respect to him and her respectively. They being husband and wife and the third appellant being their infant child, the interest which each appellant has in being able to enjoy the society of each of the other two within Australia is probably sufficient to justify the conclusion that that appellant is "a person who is aggrieved by" each of the decisions which does not have that appellant for its subject.

It was submitted that there had been a failure by the delegate, in reasoning to his decisions, to accord the circumstance that the child was an Australian citizen the significance which the law attributed to that circumstance.

Section 19 of the Migration Act 1958 provides:

"19. Where the Minister makes or has made an order for the deportation of a person, the Minister may, in his discretion, at the request of a spouse of that person, order the deportation of the spouse, or of the spouse and a dependent child or children, of that person."

No submission was addressed to the Court concerning that section, attention to which had been directed by Keely J.. The parties seemed to assume, tacitly, that the section would not authorise an order for the deportation of a dependent child who was an Australian citizen. No party to the appeals questioned the assumption that the third appellant had, in virtue of her citizenship, "a right" to remain in this country, in the sense that no organ of an executive government in this country had a power to direct that she be removed from Australia. The parental jurisdiction of a Supreme Court was not the subject of submission. (See, for example, McM. v. C. (No. 2) (1980) 1 N.S.W.L.R.27.)

If the "right" be assumed, the next steps in the argument advanced on behalf of the appellants may be considered. They were that a deprivation of the enjoyment of that right would result from the making of the impugned administrative decisions, because the only sensible course, in the face of those decisions, was for the child's parents to take her with them to Tonga; and that the loss of the enjoyment of that right during the child's infancy would be harmful to the welfare of the child, in the sense that her welfare would be better served if she spent her infancy with her parents here than if she spent her infancy with her parents in Tonga; and that, whether or not the correctness of the last assertion - of the relative advantage to the child of residence in this country - was demonstrable from the material before the delegate, or by reference to facts so notorious that the delegate must be taken to have been aware of them, the "right" was of such importance, and the question as to whether the child should be reared in Australia or in Tonga so germane to her welfare, that any failure by the delegate to give consideration to the precedent steps in the argument, or to the circumstances relevant to evaluation of those precedent steps, in reasoning to his decisions would constitute a ground of review of those decisions, by virtue of s.5(1)(e) and s.5(2)(a) of the Administrative Decisions (Judicial Review) Act 1977. The last step in the argument was that the statement of reasons furnished by the delegate, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, for his decisions revealed his failure to give consideration to the matters propounded in the argument or to the circumstances relevant to an evaluation of the argument.

It is a not unreasonable inference from the delegate's statement of reasons for his decisions that he attributed, in reaching those decisions, little relative weight to the considerations which the argument on behalf of the appellants advances in favour of the grant of entry permits to the first and second appellants. But the relative weight of those considerations was a matter for the judgment of the person in whom the discretionary power to grant or refuse the permits resided. It is not in my opinion an inference which the stated reasons or other material before this Court justifies, that the delegate failed to take any of those considerations into account. They are considerations obvious enough to any mind familiar with public attitudes to the advancement of the welfare of infants and with the general law relating to Australian citizenship, and aware that the third appellant was an Australian citizen. It is not to be supposed that the mind of the delegate was not so furnished.

It was further submitted that, in consequence of the enactment of the Human Rights Commission Act 1981, the exercise of statutory powers which resulted from these four decisions would not be in conformity with law unless the person exercising the powers had endeavoured to ensure that their exercise was in conformity with the provisions of the international instruments set forth in the schedules to that Act. And, according to the further submission of the appellants, the delegate's statement of his reasons for the decisions demonstrated that no such an endeavour had been made by him.

The preamble to the Human Rights Commission Act 1981 is in these terms:

"WHEREAS it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons and other international instruments relating to human rights and freedoms:"

The named documents to which the preamble refers are the international instruments set forth in the schedules to the Act. It was upon the preamble that the submission on behalf of the appellants principally rested.

In determining what considerations are to be regarded as relevant to the exercise of a power to order deportation or of a power to grant an entry permit, a court would, I should think, be influenced, by the opinion expressed in the preamble that "it is desirable that . . . . the conduct of persons administering" the laws of the Commonwealth "should conform with the provisions of" the instruments specified in the preamble, to hold that a person exercising such a power should consider whether a contemplated exercise of the power was in conformity with those provisions and should, other things being equal, prefer an exercise of the power in conformity with those provisions to an exercise of the power at variance with those provisions. If those two imperatives were characterised by a court as considerations relevant to the exercise of such a power, that might be thought tantamount to acceptance of the major premise of the appellants' submission. But other things may not - perhaps will not often - be equal. The generality of the imperatives in which the provisions of the instruments find expression must admit of exceptions and qualifications. And persons exercising discretionary administrative powers conferred by Part II of the Migration Act 1958 are not in my opinion freed by the Human Rights Commission Act 1981 - whether preamble, enactment or scheduled instruments - of their responsibility to determine, as a step in the process of deciding how such a power should be exercised in a particular case or class of cases, what relative weight should be accorded the propositions asserted in the instruments, and what relative weight should be accorded the circumstance that a proposition is contained in a instrument which has been included in a schedule to that Act.

Neither the delegate's statement of his reasons for the decisions nor the material before this Court justifies an inference, in my opinion, that he failed to have regard to the contents of the Human Rights Commission Act 1981. Reports of recent judgments in this Court could be confidently expected to have brought the Act to his attention. His failure to refer to the Act suggests no more than that in this particular case he did not find any consideration deriving from contemplation of the Act of much weight in reaching his decisions. If he did not, that does not in my opinion demonstrate error in the exercise of his functions. Considerations unrelated to the welfare of the adult appellants' children were regarded by the delegate, not in my opinion unreasonably, as of substantial weight; and the material before the delegate might reasonably have been regarded by him as not justifying a conclusion that the welfare of either child would be threatened by decisions in consequence of which the children would be reared in Tonga rather than in Australia, in my opinion.

It was submitted that a breach of the rules of natural justice had occurred in connection with the making of each of the four decisions. The delegate was under an obligation, it was submitted, to apprise each of the adult appellants of the matters which had been submitted to the delegate's consideration and which might be regarded as tending to influence the delegate to refuse that appellant an entry permit, and to take into consideration whatever the appellant might say, or write, in response. That obligation derived, it was submitted, from the legal duty under which it was said that the delegate lay to accord to each adult appellant natural justice in respect of the exercise of the powers invoked against that appellant. In my opinion that submission could be accepted only if this Court were to refuse to follow the decision of the Full Federal Court in Smith & Ors. v. Minister of State for Immigration and Ethnic Affairs & Anor. (1984) 53 A.L.R. 551, by which the same submission had been rejected, upon facts indistinguishable from those of this case. Not being convinced that the decision was wrong, I would reject the submission.

It was further submitted that, in connection with the exercise of the power to refuse or to grant an entry permit to each of her parents, and in connection with the exercise of the power to deport each of them, the delegate was under a duty to accord natural justice to the infant appellant. The obligation which derived in each case from the duty was said to be an obligation to apprise the lawful custodians of the infant appellant, the other two appellants, of the matters which had been submitted to the delegate's consideration and which might be regarded as tending to influence the delegate to refuse the infant appellant's mother and father respectively an entry permit and to order deportation of that parent in each case, and to take into consideration whatever those custodians might say, or write, in response on the infant appellant's behalf.

It was a ground of the application for orders of review in which the infant daughter of the other two applicants joined in Smith & Ors. v. Minister of State for Immigration and Ethnic Affairs, supra that the respondent Minister's delegate had been "under a duty to act fairly to the Applicants and to observe the principals (sic) of natural justice" in connection with the exercise of powers to grant or to refuse an entry permit to the infant's mother and father and to order their deportation, and had failed to observe those principles. The word "Applicants" in the phrase I have just quoted from the document by which application for the orders of review was instituted in this Court comprehends all three applicants : mother and father, who were citizens of the United States of America and husband and wife, and their infant daughter, who was by reason of her recent birth in this country an Australian citizen. It was submitted that, because neither the judge who heard and dismissed the applications nor the members of the Full Court which dismissed appeals by the three applicants against the order of dismissal had made reference to a claim on behalf of the infant that to her, considered separately from her parents, a duty was owed by the respondent Minister's delegate to accord her natural justice in respect of the exercise of his powers to refuse entry permits to her parents, and to order their deportation, the decision of the Full Court was not to be taken as denying that claim.

I think that the members of the Full Court in Smith's Case must be taken to have adverted to the claim - a claim concerning the interest of an infant party to the proceeding - and to have comprehended it in their decision that "the rules of natural justice were not required to be observed in relation to the deportation orders made by the Minister's Delegate against Mr. and Mrs Smith under s.18" : per Lockhart J., 53 A.L.R. at 553, with whose reasons for judgment Bowen C.J. and Sheppard J. agreed. Not being convinced that the decision was wrong, I reject the submissions on behalf of the infant appellant concerning natural justice.

I agree in the orders disposing of the appeals.