Kioa v West - [1985] HCA 81

No judgment structure available for this case.

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan and Deane JJ.

KIOA v. WEST

(1985) 159 CLR 550

18 December 1985

Immigration and Aliens—Administrative Law

Immigration and Aliens—Deportation—Power of Minister—Principles of natural justice—Whether applicable—Standing as Australian citizen of infant daughter of aliens—Intended deportation order—Whether notice required—Migration Act 1958 (Cth), ss. 6, 6A, 7, 18. Administrative Law—Decision—Natural justice—Procedural fairness—Order for deportation of aliens—Review of decision—Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 13.

Decisions

GIBBS C.J.: The appellants are Mr and Mrs Kioa, who are not Australian citizens, and their daughter Elvina, who was born in Australia and is accordingly an Australian citizen. By an amended application made under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended ("the AD(JR) Act") on 29 October 1983 the appellants sought an order to review a decision made on 6 October 1983 by a delegate of the respondent, the Minister for Immigration and Ethnic Affairs, to order the deportation of Mr and Mrs Kioa under s.18 of the Migration Act 1958 (Cth), as amended ("the Migration Act"). Involved in that decision, and logically anterior to it, were two further decisions - to refuse to issue to Mr and Mrs Kioa further entry permits under s.7 of the Migration Act and to refuse thereafter to issue them a (permanent) entry permit under s.6A(1)(e). The application was refused by Keely J., whose decision was affirmed by the Full Court of the Federal Court.

2. Mr Kioa, a Tongan citizen, arrived in Australia early in September 1981 with a student visa in order to attend a three months training course and was granted a temporary entry permit valid for a period of three months. Mrs Kioa, and her daughter Elitisi, arrived in Australia on 7 November 1981 and were granted temporary entry permits valid until 31 March 1982. Mr Kioa's permit expired on 8 December 1981 and on 15 December 1981 he approached the Melbourne office of the Department of Immigration and Ethnic Affairs ("the Department") and applied for an extension of his permit to enable him to have a holiday before returning to Tonga. He then produced airline tickets which showed that he was booked to depart from Australia on 31 March 1982 en route to Tonga. His application was not dealt with at that time because some further information had to be obtained but he was told that he would be given an extended visitor's temporary entry permit if his application was approved and the necessary fee paid. After some delay an officer of the Department tried to communicate with Mr Kioa in April 1982 at the address which he had given but was unable to do so and formed the belief that he had returned to Tonga. In fact, in March 1982 he had left the address which he had given the Department, without informing his cousin, with whom he had been staying there, of his new address (and indeed allowing his cousin to believe that he was returning to Tonga) and had commenced employment in Victoria; he remained in that employment until he was arrested on 25 July 1983, and at no time got in touch with the Department or informed it of his new address. Mrs Kioa's permit expired on 31 March 1982 and she sought no further permit. Elvina, the second child of Mr and Mrs Kioa, was born on 14 November 1982 in Australia. Mr Kioa said, in an interview with an officer of the Department on 27 July 1983 after his arrest, that he had remained in Australia after the expiry of his permit because Cyclone Isaac had devastated parts of Tonga in March 1982 and as a consequence his family had advised him to remain in Australia so that he might earn money and send it home for their support.

3. The Legal Aid Commission of Victoria has been acting for Mr Kioa since his arrest, and on 26 July 1983 the Director of Legal Aid wrote to the Minister urging him to exercise his discretion by allowing Mr Kioa and his family to remain in Australia and giving reasons why that should be permitted. The letter contained the following paragraphs:

"Mr. Kioa has been on the Executive Committee of the Tongan Christian Fellowship and has done much in this regard. The President of the Fellowship, Mr. Ifalemi Naitoko speaks highly of him. He is also a member of the Immigration and Ethnic Committee for the United Church and only recently was in discussion with your own department concerning the difficulties of illegal immigrants from Tonga.

...

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."

4. On 12 September 1983 an officer of the Department wrote to Mr Kioa formally refusing the application which he had made on 15 December 1981 for an extension of his temporary entry permit and requiring him to make immediate arrangements to leave Australia with his family. Mr Kioa failed to do so and on 6 October 1983 a written submission by an officer of the Department was put before the Minister's delegate, who had been appointed under s.66D of the Migration Act. This submission contained a full recital of the facts, and included the following paragraphs which it is necessary to quote.

"16 While in Australia Mr Kioa has become active on the council of the Tongan Christian Fellowship, a group affiliated with the Uniting Church. He was elected as a representative on the Executive of this Council with responsibility generally for Tongan youth and the plight of other illegal immigrants. His interest extended to the situation of Tongan persons awaiting deportation.

...

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 3 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 regularise 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.

POSSIBILITY OF REGULARISATION OF STATUS

23 Mr and Mrs Kioa could apply for a further TEP but having regard to the applicable policy, such an application is unlikely to be approved. They do not fulfil the conditions of section 6A of the Migration Act 1958 for the grant of permanent residence in Australia.

SUMMARY OF POLICY OF DEPORTATION OF PROHIBITED IMMIGRANTS

24 Persons who enter as students, or their dependents, are expected to honour the undertakings contained in visa applications signed overseas. 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. Presence of such queue-jumpers is inimical to the Government control of Migration programs as well as impacting upon job availability for legal residents. Illegals who do not leave voluntarily should expect to face the prospect of deportation when located.

ASSESSMENT

25 Mr and Mrs Kioa and their daughter Elitisi are prohibited immigrants. They have committed an offence in becoming prohibited immigrants. Despite their attempts to adapt to life in Australia they cannot be said as prohibited immigrants to have been absorbed into the Australian community. Although it remains possible for their status to be regularised (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of this family as related above, you may decide to order their deportation.

RECOMMENDATION

26 If you accept the above assessment, it is recommended that you sign the attached orders for the deportation of Isileli and Fheodolena Kioa. Their children are to accompany them at Commonwealth expense. The attached responses to representations are for your signature if the terms are suitable."

The delegate accepted the recommendation in the submission and signed the deportation orders.

5. On 11 November 1983, in response to a request made under s.13 of the AD(JR) Act, the delegate furnished a written statement setting out his findings on material questions of fact, the evidence on which the findings were based (which included notes of the interview with Mr Kioa on 27 July 1983, and a number of letters written on the appellants' behalf) and the reasons for the decision. The findings include the statement that Elvina is an Australian citizen. The statement of the reasons for the decision referred to the fact that the appellants are prohibited immigrants, and continued:

"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.

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."

No reference is made anywhere in the statement to Mr Kioa's alleged "active involvement with other persons who are seeking to circumvent Australia's immigration laws". The "stated policy set out in paragraph 22(b)" is the policy referred to in par.24 of the submission of 6 October 1983 which has already been quoted.

6. On behalf of the appellants two main arguments were advanced before us. First, it was submitted that the delegate was required to observe the rules of natural justice and that he failed to do so, in that he did not give the appellants a fair opportunity to answer prejudicial statements affecting them. Secondly, it was submitted that the delegate wrongly failed to take into account the detrimental effect which the order would have on the privileges and benefits which Elvina, as an Australian citizen, was entitled to enjoy, and the provisions of Arts.23 and 24 of the International Convenant on Civil and Political Rights and Principles 1-7 of the Declaration of the Rights of the Child, which appear in scheds.1 and 2 respectively to the Human Rights Commission Act 1981 (Cth), and which it was said required the delegate to take into account the possibility that the family of which Elvina was a member would be broken up by the deportation order.

7. The power to make a deportation order is conferred by s.18 of the Migration Act, which at all material times was in the following terms:

"The Minister may order the deportation of a person who is a prohibited immigrant under any
provision of this Act."

It was held in Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461, applying Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, that the power conferred by s.18 of the Migration Act, as in force at the times material to those decisions, was not subject to any general duty to observe the principles of natural justice. On behalf of the appellants it was however submitted that the amendments made to the Migration Act since that date, and the coming into operation of the AD(JR) Act, have rendered those decisions distinguishable and inapplicable.

8. It is now necessary for me to refer to the relevant sections of the Migration Act as in force at the material time and to show in what respects they differed from the provisions in force when Salemi and Ratu were decided in 1977. Further amendments to the Migration Act have been made by the Migration Amendment Act 1983 (Cth), which was assented to on 13 December 1983, and by subsequent legislation, but we are concerned with the duty of the delegate at the time when he made his decision, and those amendments have no bearing on the case. It will be convenient to refer to the provisions in force in October 1983 as though they were still in force, although in truth many of them have since been amended. By s.7(3), upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a "prohibited immigrant" unless a further entry permit applicable to him comes into force upon that expiration or cancellation. Clearly Mr and Mrs Kioa became prohibited immigrants upon the expiration of their temporary entry permits. However, s.7(2) provides inter alia that after the expiration of a temporary entry permit a further entry permit may, at the request of the holder, be granted to the holder. By sub-s.(1) of s.6A (a section which was inserted in the Migration Act in 1980) an entry permit (that is to say, an entry permit other than a temporary entry permit: s.6A(8)) shall not be granted to a prohibited immigrant after his entry into Australia unless one or more of the conditions set out in the section is fulfilled in respect of him. One of those conditions is the following:

"(e) he is the holder of a temporary entry permit which is in force and there are strong
compassionate or humanitarian grounds for the grant of an entry permit to him."

There was accordingly power first to issue a further temporary entry permit to Mr and Mrs Kioa under s.7(2) and then, that having been done, to grant them permanent entry permits under s.6A(1)(e) if there were strong compassionate or humanitarian grounds for the grant. The combined effect of s.6(2), s.6(2A) (inserted in 1980), s.6(5) (amended in 1980), s.6A(3) and s.66D (inserted in 1979) was that in the circumstances the further entry permits might have been granted by, amongst others, the Minister or his delegate. If a further entry permit had been granted to Mr and Mrs Kioa, they would have ceased to be prohibited immigrants: s.10. It was therefore right to regard the delegate's decision as involving, not only a decision to make a deportation order, but also the decision to refuse to grant a further temporary entry permit. The decision whether or not a permanent entry permit should be granted under s.6A(1)(e) would have arisen only if the temporary entry permit had been issued.

9. Section 18 is not the only section of the Migration Act which gives the Minister a power to order deportation. The Minister has power to order the deportation of an alien convicted of certain crimes (s.12), an immigrant who has been convicted of certain offences committed within five years of entry into Australia or an inmate of a mental hospital or public charitable institution within that time (s.13), an alien if it appears to the Minister that his conduct is such that he should not be allowed to remain in Australia (s.14(1)), and an immigrant who has entered Australia not more than five years previously if it appears to the Minister that his conduct is such that he ought not to be allowed to remain in Australia or that he is (inter alia) a person who advocates the overthrow by force or violence of the established government of the Commonwealth (s.14(2)). Before ordering the deportation of a person under s.14 the Minister is required to serve on that person a notice informing him that he proposes to order the deportation on the ground specified in the notice unless that person requests that his case be considered by a Commissioner appointed under the section; if the person on whom the notice is served makes such a request he may not be deported unless the Commissioner reports that he considers that the ground specified in the notice has been established: s.14(3)-(8). By s.16 (whose scope was expanded by amendments in 1979 and later) a person who enters or has entered Australia as an immigrant may in certain circumstances (connected with the conduct or condition of that person at or before the time of entry or at or before the grant of a further entry permit) notwithstanding s.10 be deemed to be a prohibited immigrant unless he holds an entry permit appropriately endorsed; a person so deemed would of course be liable to deportation under s.18.

10. The amendments on which counsel for the appellants placed particular reliance were those to ss.6(5), 6A, 16 (all of which have already been mentioned), 21A, 27(1)(ab), 27(2A) and 66E. At the time of the decision in Ratu, the Act provided for the arrest and custody (s.39) and deportation (s.20) of a person against whom a deportation order was made. By ss.27(1)(ab), 27(2A) and 31A (all inserted in 1979) a prohibited immigrant has become liable, in addition, to criminal sanctions. By s.27(1)(ab), an immigrant who becomes a prohibited immigrant upon the expiration of a temporary entry permit is deemed to be guilty of an offence punishable by a fine not exceeding $1,000 or imprisonment for a period not exceeding six months, but under s.27(2A) it is a defence to a prosecution for such an offence if the immigrant satisfies the court that, after he became a prohibited immigrant, a further entry permit applicable to him had come into force or he had ceased to be a prohibited immigrant by virtue of s.7(4). (That sub-section provides that, notwithstanding s.10, a person who has become a prohibited immigrant by virtue of s.7(3) ceases to be a prohibited immigrant at the expiration of five years, unless a deportation order was in force at the expiration of that period.) By s.31A (also inserted in 1979) the Minister or an authorized officer is given power to require a prohibited immigrant to leave Australia within a specified time and a failure to comply with that requirement is an offence also punishable by a fine of $1,000 or imprisonment for six months. Further, by s.21A (another section inserted in 1979) a person subject to a deportation order is rendered liable in certain circumstances to pay to the Commonwealth an amount equal to the passage money and other charges payable in respect of his conveyance from Australia to a place outside Australia. Section 66E was inserted by the Statute Law Revision Act 1981 (Cth) but it merely took the place of the provisions of cl.22 of Pt.XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 (Cth). It provides that applications might be made to the Administrative Appeals Tribunal for a review of decisions of the Minister under ss.12, 13 or 48 (the last of which deals with migration agents). Such an application in relation to a decision under s.12 or s.13 can be made only by a person who is an Australian citizen or whose continued presence in Australia is not subject to a limitation as to time imposed by law and the power of the Tribunal is limited either to affirming the decision or to remitting the matter for reconsideration in accordance with any recommendations it might make: sub-ss.(2) and (3) of s.66E.

11. I have referred at some length to the amendments which have been made to the Migration Act since Salemi and Ratu, but in my respectful opinion the alterations which they have made to the statutory scheme are not such as to lead to any result different from that which was arrived at in those cases. The principles which guide the Court in deciding whether the rules of natural justice must be applied by an authority exercising a particular statutory power have been discussed frequently in this Court and it is unnecessary to engage again in a full discussion of the subject. In F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342, Mason J. said, at p 360:

"The fundamental rule is that a statutory

authority having power to affect the rights of a person is bound to hear him before exercising the power (Twist v. Randwick Municipal Council ((1976) 136 CLR 106, at p 109); Heatley v. Tasmanian Racing and Gaming Commission ((1977) 137 CLR 487, at p 499)). The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege (Banks v. Transport Regulation Board (Vict.) ((1968) 119 CLR 222)) or which deprives a person of a 'legitimate expectation', to borrow the expression of Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs ((1969) 2 Ch 149, at p 170), in circumstances where it would not be fair to deprive him of that expectation without a hearing (Salemi v. MacKellar (No. 2) ((1977) 137 CLR 396, at p 419))."

The expression "legitimate expectation" means "reasonable expectation"; I respectfully prefer the opinion of the Judicial Committee in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629, at p 636 to that expressed by Barwick C.J. in Salemi, at p 404. But as I have already said (in Salemi, at p.419) it would be wrong to attempt to give an exhaustive classification of the cases to which the rules should be applied. The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at pp 94, 101; 38 ALR 93, at pp 102, 117; National Companies and Securities Commission v. The News Corporation Ltd. (1984) 58 ALJR 308, at pp 314, 318; 52 ALR 417, at pp 427-428, 434.

12. There were a number of reasons why the Court in Salemi and Ratu held that the Minister is not generally bound to afford a hearing to a prohibited immigrant before ordering his deportation under s.18, notwithstanding the very serious consequences that deportation may in many cases entail. The Court of course recognized the fundamental principle that anyone within the territory of Australia - including an alien who is a prohibited immigrant - is entitled to the protection of the laws, including, in appropriate cases, the application of the principles of natural justice (see Salemi, at p.420). The main considerations which led the Court to the conclusion that the rules of natural justice have in general no application to the making of an order under s.18 were the following. First, there is the nature of the power which s.18 confers. Under that section the Minister is not required to find any fact or form any opinion before he exercises the power: Salemi, at pp.420, 452-453; Ratu, at p.478. If the Minister makes an order against a person who is not a prohibited immigrant, relief appropriate to the circumstances (such as habeas corpus, a declaration or an injunction) will be available, even if the rules of natural justice do not apply. If he makes an order against a person who is a prohibited immigrant, no other reason than the fact that the person is a prohibited immigrant is necessary to justify the order; his power is in that case unfettered: Ratu, at p.469. Secondly, an order under s.18 does not ordinarily deprive a prohibited immigrant of any right or interest or of the legitimate expectation of any benefit. As Mason J. said in Ratu, at pp.478-479:

"The making of a deportation order under s.18

therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain."

Thirdly, there is the marked contrast between, on the one hand, the provisions of s.18 and, on the other hand, the other provisions of the Migration Act which authorize the making of deportation orders and particularly s.14, which in certain circumstances gives the person threatened with deportation a right to have his case considered by an independent Commissioner: Salemi, at p.402; Ratu, at pp.464-465. Finally, there is the fact that the Minister is not obliged to give reasons: Salemi, at p.421, and see at pp.443-444; Ratu, at pp.467, 478-479.

13. Similar reasoning leads to the conclusion that a prohibited immigrant who seeks the grant of a further temporary entry permit does not necessarily have any right to be afforded an opportunity to be heard by the Minister or officer considering the application. In the nature of things, if the prohibited immigrant makes an application for the grant of a further permit he will be likely to support it with a statement of the reasons why his application should be granted, and those reasons are likely to be considered. However in such a case the Minister is entitled to regard the fact that the applicant is a prohibited immigrant as sufficient to justify refusal of the application for the grant of a further permit and the making instead of a deportation order. The fact that the Minister has an "absolute discretion" to cancel a temporary entry permit (s.7(1) of the Migration Act) strengthens this view. A prohibited immigrant who seeks a permanent entry permit under s.6A asks for the exercise of two discretions in his favour - first under s.7(2) and then under s.6A. It is to be noted that the conditions stated in s.6A(1) restrict the power to grant a permit but not the power to refuse one. Only if a condition is fulfilled may an entry permit be granted, but the fulfilment of a condition does not oblige the Minister or other authorized person to grant an entry permit.

14. Some of the amendments made to the Migration Act since 1977 are quite irrelevant to the present question. Those that are relevant reveal an intention to strengthen the provisions of the statute - to give increased powers to deal with prohibited immigrants. The fact that it has been made an offence for a person to become a prohibited immigrant upon the expiry of a temporary entry permit or for a prohibited immigrant to fail to leave Australia when required does not mean either that the Minister is obliged to prosecute the prohibited immigrant rather than to deport him or that the consequences of becoming a prohibited immigrant can be said to be so significantly more serious as to require reconsideration of Salemi and Ratu. In many cases, viewed realistically, the consequences of arrest and deportation will be just as serious as the liability to be fined $1,000 or to be imprisoned for six months. The additional liability on a deportee to pay the costs of his removal is surely a comparatively insignificant addition to the liability to be deported. In any case, these provisions do not affect any of the four reasons which supported the decisions in Salemi and Ratu. Finally, s.66E affords no assistance to the appellants' argument, since it effected no change in the substance of the existing law. On the other hand, s.66E and the provisions which it replaced, heighten the contrast between s.18, which provides a person threatened with deportation no opportunity to have his case considered before the deportation order is made effective, and other sections under which deportation may be effected; a review procedure is available when the order is made under s.12, s.13 or s.14, but not under s.18.

15. A stronger argument that Salemi and Ratu should be reconsidered is based on the enactment of the AD(JR) Act which was assented to in 1977 but which was not in force at the times material to the decision in those two cases. Section 5(1) of that Act entitles a person who is aggrieved by a decision to which the Act applies to apply to the court for an order of review in respect of the decision on a number of specified grounds, including the following:

"(a) that a breach of the rules of natural justice occurred in connexion with the making of the decision."

Section 13(1) provides that where a person makes a decision to which that section applies, any person who is entitled to make an application to the court under s.5 in respect of the decision may request the decision maker to furnish a written statement of, amongst other things, the reasons for the decision. There is no doubt - indeed it is conceded - that decisions made under ss.6A, 7(2) and 18 of the Migration Act are decisions to which ss.5 and 13 of the AD(JR) Act apply.

16. It was submitted on behalf of the appellants that s.5(1)(a) itself requires the rules of natural justice to be observed in connexion with the making of any decision to which the Act applies; in other words, that the provision itself renders the rules of natural justice applicable. Arguments of this kind have, rightly in my opinion, been consistently rejected by the Federal Court: see Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341, at p 347 and Smith v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551, at p 555. The plain intention of s.5(1)(a) is to give the court power, when it finds that the rules of natural justice did apply to the making of a particular decision, and that there was a failure to observe those rules, to grant the relief for which the Act provides; it does not render the rules of natural justice applicable in a case to which they would not otherwise apply. The object of s.5 was to reform procedure. The extrinsic material to which we were referred provides no support for any different view.

17. However, the provisions of s.13, which require reasons to be given for a decision under s.18 of the Migration Act, thus render one of the grounds for the decisions in Salemi and Ratu no longer applicable, and require a reconsideration of Salemi and Ratu. Notwithstanding the fact that one of the four principal reasons given in support of the conclusion reached in those cases is no longer applicable, there still remain three substantial reasons for holding that in general the rules of natural justice do not apply to an exercise of power under s.18 and those reasons, which I have already discussed, remain sufficient to support that conclusion. The provisions of s.13 of the AD(JR) Act do not deal with the question whether the rules of natural justice apply to the making of any particular decision of an administrative nature. Reasons must be given for a decision to which that section applies, whether the person making the decision was bound to observe the rules of natural justice or not. Although the duty to give reasons now applies when a decision is made under s.18 of the Migration Act, it remains true to say that it will be a sufficient reason that the person proposed to be deported is a prohibited immigrant. This does not mean that the reasons supplied under s.13 will be useless even when the power given by s.18 has been exercised in the case of a person who is admittedly a prohibited immigrant. For example, the Minister or his delegate may have considered something completely extraneous, such as the political affiliations of the person against whom the order was made. Or, if the Minister had given an undertaking similar to that considered in Attorney-General of Hong Kong v. Ng Yuen Shiu, he might have failed to consider his obligation to adhere to his undertaking. The reasons might reveal grounds of that kind for challenging the exercise of the statutory power. Where, however, the power given by s.18 is exercised simply because the person to be deported is a prohibited immigrant the fact that the Minister is obliged to give reasons does not in my opinion indicate that he is bound as a matter of law to give the person concerned an opportunity to be heard in relation to matters which are legally irrelevant to the exercise of the discretion conferred by the section.

18. For these reasons I would hold that in the present case the Minister's delegate was not obliged to give the appellants any further opportunity to put before him their case against deportation. Since in the circumstances the delegate was entitled entirely to disregard arguments based on personal considerations, and to apply inflexibly the policy that illegal immigrants shall be deported, there was no legal reason why he should be bound to give the appellants an opportunity to be heard in relation to matters which he was not bound to consider.

19. However, if a contrary view be taken, and the rules of natural justice were applicable, I am satisfied that there was no breach of those rules in the present case. The Minister's delegate did, of course, have before him, and considered, the submissions made by the Director of Legal Aid which were accompanied by supporting documents. The appellants' argument is that they were entitled to respond to the statements in pars.20-26 of the submission made to the delegate on 6 October. Those statements comprise comments on the material put before the Department on behalf of the appellants and references to the policy of the Department. With two possible exceptions there was nothing in any of those paragraphs which was new and which could not have been dealt with in the material submitted on behalf of the appellants. Paragraph 20, if literally construed, is quite accurate but it is said that it is unfair. The observation that the cyclone in Tonga occurred three months after Mr Kioa's temporary entry permit had expired seems to have been intended to cast doubt on his statement that the cyclone was the reason why he remained in Australia, whereas in fact Mr Kioa had applied for an extension of his temporary entry permit until the end of March. This fact had however already been clearly brought out in the submission. Counsel for the appellants particularly relied on par.22, especially on the reference to Mr Kioa's "active involvement with other persons who are seeking to circumvent Australia's immigration laws". The fact that Mr Kioa had been involved with illegal immigrants had been brought out in the interview which Mr Kioa had with an officer of the Department on 27 July 1983. The record of that interview contains the following passage:

"Elected married man representative on Executive Council of Tongan Christian Fellowship (Uniting Church) - responsible for Tongan youth - illegal immigrants - went to meetings of Uniting Church Ethnic Affairs Committee - concerned at situation of Tongan deportees following apprehension of Tongans at Bayswater."

The letter from the Director of Legal Aid also referred to this matter, in the paragraph which has already been quoted. Paragraph 22 of the submission was the officer's comment on material put before the Department by Mr Kioa and his solicitor, and summarized in par.16 of the submission. That material showed that Mr Kioa was actively involved with persons who were illegal immigrants. The comment that those persons were seeking to circumvent Australia's migration laws reflects the departmental policy that illegal immigrants should be deported and should not be allowed to "jump the queue". However, it is not to the point to consider whether the comment was fair and accurate. If the rules of natural justice were applicable, the appellants were entitled to a fair opportunity to correct or contradict any relevant material prejudicial to them: National Companies and Securities Commission v. The News Corporation Ltd., at p 316; p 431 of ALR That does not mean that the Minister or the delegate, having received material which the appellants wished to put before him, was required to let them see, and comment on, the Department's adverse comments on that material. This case in my opinion bears no analogy to a case in which misconduct is alleged against a person who has no knowledge of the allegation. The officer who made the submission indicated his not unnatural disapproval of the conduct of the illegal immigrants with whom Mr Kioa had admittedly been involved. I find it impossible to agree that fairness required that Mr Kioa should have been allowed to show that the word "circumvent" was too strong in the circumstances. Moreover, the statement of reasons given by the delegate, although a very full one, makes no reference to the matters stated in par.22 of the submission. No attempt was made to put before the Court evidence that the delegate had in fact considered matters other than those which he mentioned in his reasons. It should in my opinion be accepted that in fact the matters referred to in par.22 did not affect the delegate's decision: see Ratu, at p.474, per Stephen J. Indeed counsel for the appellants very properly said that there was no reason to doubt the veracity of the delegate or to attribute to him undisclosed reasons, but submitted that there was nevertheless a risk of prejudice. Reliance was placed on Kanda v. Government of Malaya (1962) AC 322. In that case an officer conducting disciplinary proceedings had read a report which contained allegations of serious misconduct against the person accused in the proceedings, and the accused had not had any opportunity to correct or contradict the report. The courts in Malaysia had thought that the question was whether there was any real likelihood of bias, but the Judicial Committee held that the complaint of the accused was not that the tribunal was biased, but that he had not been given a reasonable opportunity to be heard. Lord Denning said, at p.337:

"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. ... 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."

Even if (contrary to my opinion) the nature of the contents of par.22 was such that the appellants should have been given an opportunity to answer them, it cannot be said that there was a risk of prejudice once it is accepted that the comment in par.22 did not in fact form one of the reasons for the delegate's decision.

20. The submission that the delegate failed to consider the position of Elvina may be very shortly dealt with. It appears quite clearly from the statement of reasons furnished by the delegate that he was aware that Elvina was an Australian citizen. It was perfectly obvious that if her parents were deported the likelihood was that she would accompany them, although because she was an Australian citizen no deportation order could be made against her. Indeed this was brought to the notice of the delegate by the statement that if the appellants were deported their children would accompany them at Commonwealth expense. Assuming that the delegate was bound to consider Elvina's position, it has not been shown that he failed to do so. I need not consider the decision of the New Zealand Court of Appeal in Daganayasi v. Minister of Immigration (1980) 2 NZLR 130, whose facts are materially different from those of the present case.

21. The argument that the delegate should in some way have considered the provisions of the International Covenant on Civil and Political Rights and of the Declaration of the Rights of the Child is based on the fact that the preamble to the Human Rights Commission Act recites that "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 ... and other international instruments relating to human rights and freedoms". It is trite to say that treaties do not have the force of law unless they are given that effect by statute: Simsek v. Macphee (1982) 148 CLR 636. The words of the preamble to the Human Rights Commission Act did not have the effect of making the Covenant and the Declaration part of Australian municipal law. There was no legal obligation on the Minister's delegate to ensure that his decision conformed with the Covenant or the Declaration. However, this argument is quite academic, for in any case the only relevant provisions of the Covenant and the Declaration are those which declare that the family is entitled to protection by society and the state and that this protection should inure for the benefit of a child who is a member of the family. To deport the parents of a child with the natural expectation that the child will accompany them is not in any way depriving the family or the child of the protection to which the Covenant refers. Nothing that the delegate did failed to conform with the provisions of the Covenant or those of the Declaration.

22. For these reasons I would dismiss the appeal.

MASON J.: This is an appeal by Mr and Mrs Kioa (who are citizens of Tonga) and their infant daughter Elvina (who is an Australian citizen) against the dismissal by the Full Court of the Federal Court of their appeal against the dismissal of an application for judicial review under s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of: (1) deportation orders made against Mr and Mrs Kioa by the delegate of the Minister for Immigration and Ethnic Affairs on 6 October 1983; (2) refusal of their applications for further temporary entry permits; and (3) refusal of their applications for permanent entry permits.

2. The circumstances in which the appeal arises are set out in the reasons for judgment of Northrop and Wilcox JJ. in the Full Court of the Federal Court which I now restate. Mr Kioa entered Australia on 8 September 1981 in order to attend a three month training course at the International Training Institute in Sydney. 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.

3. 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.

4. 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. Having decided to spend that leave in Australia, he made application on 15 December 1981 for an extension of his temporary entry permit until 31 March 1982, when the family was due to leave Australia to return to Tonga. In the event, and due to the necessity to obtain certain information, the application for an extension of the temporary entry permit was not determined prior to 31 March 1982.

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

6. Because officers of the Department of Immigration and Ethnic Affairs believed that the Kioa family had returned to Tonga at the end of March they took no further action 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.

7. 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 stated that he wished to remain in Australia because he had a good job with an employer who wished him to continue and because he and his family had established a life for themselves here and that they wished to remain.

8. On 26 July 1983 the Director of Legal Aid, 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."

The Director's letter was supported by letters from Mr Kioa's employer and from his fellow employees. Although the letter did not specifically request that further entry permits be granted to Mr and Mrs Kioa, the letter was treated by the Department and the Minister's delegate as involving a request for permanent entry permits.

9. 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. 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 (Cth). That submission recited the facts and made reference to Elvina's Australian citizenship. The submission included the following paragraphs:

"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 3 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 regularise 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.

POSSIBILITY OF REGULARISATION OF STATUS

23 Mr and Mrs Kioa could apply for a further TEP but having regard to the applicable policy, such an application is unlikely to be approved. They do not fulfil the conditions of section 6A of the Migration Act 1958 for the grant of permanent residence in Australia.

SUMMARY OF POLICY OF DEPORTATION OF PROHIBITED IMMIGRANTS

24 Persons who enter as students, or their dependants, are expected to honour the undertakings contained in visa applications signed overseas. 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. Presence of such queue-jumpers is inimical to the Government control of Migration programs as well as impacting upon job availability for legal residents. Illegals who do not leave voluntarily should expect to face the prospect of deportation when located.

ASSESSMENT

25 Mr and Mrs Kioa and their daughter Elitisi are prohibited immigrants. They have committed an offence in becoming prohibited immigrants. Despite their attempts to adapt to life in Australia they cannot be said as prohibited immigrants to have been absorbed into the Australian community. Although it remains possible for their status to be regularised (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of this family as related above, you may decide to order their deportation.

RECOMMENDATION

26 If you accept the above assessment, it is recommended that you sign the attached orders for the deportation of Isileli and Fheodolina Kioa. Their children are to accompany them at Commonwealth expense. The attached responses to representations are for your signature if the terms are suitable."

No recommendation was made in relation to the deportation of Elitisi or, of course, Elvina, but the submission envisaged that they would depart with their parents. On the same day, 6 October 1983, the delegate signed deportation orders against Mr and Mrs Kioa.

10. Pursuant to a request under s.13 of the ADJR Act 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 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.

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."

11. By an application made on 18 October 1983 which was subsequently amended, the appellants applied for a review under the ADJR Act of the deportation orders, the refusal of their application for further temporary entry permits and the refusal to grant permanent entry permits to them. The application for review was dismissed with costs by Keely J. An appeal from his decision was dismissed with costs by the Full Court of the Federal Court and it is from that decision that the present appeal is brought.

12. The case presented for the appellants is that the relevant decisions of the Minister's delegate were vitiated by failure to abide by the rules of natural justice and by a failure to have regard to relevant considerations. The appellants' case necessarily involves discussion of the judgments in Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 and Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 which examined the provisions of the Migration Act, especially s.18, as they stood at that time, although we are not requested to reconsider the correctness of the decisions. It is submitted that legislative developments since 1977, consisting of amendments to the Migration Act and the ADJR Act, have substantially altered the basis on which in those cases the Court considered the application of the rules of natural justice.

13. The appellants' first submission is that the effect of s.5(1)(a) of the ADJR Act is to impose an obligation that the rules of natural justice be observed in relation to every decision to which the Act applies. Section 5(1) provides that a person who is aggrieved by a decision to which the Act applies may apply to the Federal Court for an order of review in respect of the decision on any one or more of the grounds which it sets out. Paragraph (a) provides as a ground:

"(a) that a breach of the rules of natural justice occurred in connection with the making of the decision".

The manner in which par.(a) is expressed is to be contrasted with par.(b) of the same section. That paragraph is in these terms:

"(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed".

This contrast, according to the appellants, suggests that par.(a) proceeds on the footing that the rules of natural justice necessarily apply to the making of every decision to which the ADJR Act applies. If it were otherwise, par.(a) would be expressed in much the same way as par.(b). And, with the exception of s.5(1)(b) and of s.5(1)(h), which is expressly qualified by s.5(3), all the grounds in s.5 including s.5(1)(a) are expressed without qualification.

14. The statutory grounds of review enumerated in s.5(1) are not new - they are a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law. The section is therefore to be read in the light of the common law and it should not be understood as working a challenge to common law grounds of review, except in so far as the language of the section requires it - see, for example, s.5(1)(f). It is in this respect that s.5(1) makes every decision to which it applies subject to review on the grounds stated and in so doing it may give a number of grounds a wider reach than they would have at common law. But it is not the primary object of the section to amend or alter the common law content of the various grounds.

15. Viewed in this light, par.(a) does not impose an obligation to apply the rules of natural justice where, apart from s.5, there is no obligation on a person making a decision to comply with those rules or any of them. When the paragraph prescribes a breach of the rules as a ground of review it makes no assumption that the rules apply to every decision to which the subsection relates. Under the general law it is always a question whether the rules apply and, if so, what rule or rules apply to the making of the particular decision. The language of the paragraph according to its natural and ordinary meaning is apt to import this concept of natural justice as a ground for review. The language does not manifest an intention to work a radical substantive change in the law by attaching to every decision to which s.5 applies an obligation to comply with the rules of natural justice. Accordingly, I agree with the interpretation given to s.5(1)(a) by Bowen C.J. and Franki J. in Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341, at p 347.

16. The appellants rely on extrinsic materials in the form of the Minister's Second Reading Speech, the Report of the Commonwealth Administrative Review Committee (Parliamentary Paper No. 144 of 1971) and the Report of the Committee of Review of Prerogative Writ Procedures (Parliamentary Paper No. 56 of 1973) - see the Acts Interpretation Act 1901 (Cth) s.15AB. These materials do not support the appellants' submission. Instead they reinforce the view that the primary object of the ADJR Act was to achieve procedural reform and not to work a radical substantive change in the grounds on which administrative decisions are susceptible to challenge at common law.

17. The appellants' next submission is that in any event the rules of natural justice apply to the making of the decisions which are challenged in the present case. The appellants contend that the making of the relevant decisions involved a departure from the rules of natural justice in that they were given no opportunity of replying to the matters stated in the Director's submission to the delegate, especially in pars.20, 21, 22, 24, 25 and 26. This submission calls for some examination of Salemi (No. 2) and Ratu. In the first of these cases, which was decided by a statutory majority, Barwick C.J., Gibbs and Aickin JJ. considered that the power of deportation conferred by s.18 was not limited by a requirement to observe the rules of natural justice and that the announcement by the Minister of an "amnesty" for prohibited immigrants did not give the plaintiff an independent entitlement to a hearing before a deportation order was made against him. Stephen J. doubted that there was no obligation to accord natural justice in making a deportation order and concluded that the amnesty gave rise to a legitimate expectation requiring the observance of natural justice. Jacobs J. thought that there was no legislative intention wholly to exclude the principles of natural justice, although those principles would not apply in the ordinary case where the deportee's status as a prohibited immigrant was the reason, as well as the occasion, for the exercise of the power (pp.452-453). However, in his view the "amnesty" attracted the application of the principles. Murphy J. considered that, quite apart from the "amnesty", the power was conditioned by an obligation to accord natural justice.

18. Unlike Salemi (No. 2), Ratu was a unanimous decision, though the members of the Court differed as to the grounds for refusing relief. A majority (Barwick C.J., Gibbs, Mason, Jacobs and Aickin JJ., Murphy J. dissenting, and Stephen J. not deciding) held that the exercise in that case by the Minister of the power conferred by s.18 was not subject to an obligation to observe the rules of natural justice. Barwick C.J., Gibbs, Mason and Aickin JJ. considered that the statute displaced, or left no room for, the general obligation that the common law might otherwise impose in relation to natural justice. Jacobs J., having referred to the view which he had expressed in Salemi (No. 2) about s.18, went on to hold that this was a case where an order for deportation was made against the prosecutors because they were prohibited immigrants. Barwick C.J., Stephen and Murphy JJ. held that there was no denial of natural justice in any event.

19. The legislative amendments which have been made since Salemi (No. 2) and Ratu were decided in 1977 are of such significance that we should not regard those decisions as foreclosing the answers to the questions that the appellant's argument now raises. The most important change is that brought about by s.13 of the ADJR Act. The making of a deportation order and the other decisions now complained of are decisions to which the section applies with the consequence that there is an obligation under s.13(2) upon the person making a decision, following receipt of a notice under sub-s.(1), to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. The existence of this obligation is to be seen in association with the right conferred by s.5(1) of the ADJR Act on a person affected by a decision to apply to the Federal Court for an order of review. The absence of any obligation to give reasons was a factor relevant to the conclusion which I reached in Ratu (at p.479) though it was not expressed to be a decisive factor and it was a matter which was discussed in the judgment of Stephen J. in Salemi (No. 2), at pp.443-444. His Honour concluded by noting that Lord Reid in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, at p 1582; (1971) 2 All ER 1278, at p 1282, had observed that the absence of an obligation to give reasons did not necessarily predicate absence of an obligation to afford a hearing. Acceptance of this view does not deny that the existence of an obligation to give reasons, especially in association with a right in the person affected to apply for an order of review by a court of the decision, strengthens the case for saying that there is an obligation to comply with the rules of natural justice.

20. Then there are the amendments of the provisions of s.6(5) and s.6A(1) of the Migration Act. Section 6A(1) now prescribes specifically the only grounds on which entry permits may be granted to an immigrant after his entry into Australia. These provisions replaced the general discretion to grant an entry permit for which s.6(5) had earlier provided. In Salemi (No. 2) and Ratu some significance attached to the circumstance that s.18 left the making of a deportation order entirely to the discretion of the Minister (see Salemi (No. 2), at p.420; Ratu, at p.479). This was because an unconditional power, involving an unregulated discretion, to make a deportation order indicated that the Minister was not required to determine any question or form any judgment or opinion on any particular matter before making the order. The new provisions to be found in s.6(5) and s.6A(1) do not, of course, touch s.18 itself, although the refusal of further entry permits under these sections leaves the Minister free to make a deportation order under s.18.

21. Section 27(1)(ab) now makes it an offence for a person to become a prohibited immigrant upon the expiration of a temporary entry permit that is applicable to him. This was not an offence under s.27 as it stood at the time of Salemi (No. 2) and Ratu. Associated with this amendment is the defence for which sub-s.(2A) now provides. This defence recognizes that the defendant's status as a prohibited immigrant may be terminated by the grant to him of a further entry permit or by the expiration under s.7(4) of a period of five years after he became a prohibited immigrant without any deportation order against him being in force. Section 27(1)(ab) attaches a criminal sanction to a person becoming a prohibited immigrant by reason of his overstaying his entry permit. And the existence of the defence under sub-s.(2A) enhances the importance of the grant or refusal of a further entry permit. The consequence of the grant of such a permit is that the immigrant is no longer in breach of s.27(1)(ab) (see s.10). The consequence of refusal is that the immigrant continues to be, or becomes, a prohibited immigrant.

22. In place of the old s.7(5), s.31A now confers a general power on the Minister or an authorized officer to require a person who is a prohibited immigrant to leave Australia within a time specified and the section imposes an obligation on the immigrant to comply with that requirement. The penalty prescribed is $1,000 or imprisonment for six months. This power is an alternative to the deportation power. If exercised, it enables the immigrant to make his own arrangements for deportation from Australia. Unlike deportation, it does not expose him to arrest, detention in custody and liability under s.21A (a section introduced in 1979) for the costs of his conveyance from a place in Australia to a place outside Australia.

23. The general scheme of Pt II of the Migration Act dealing with "IMMIGRATION AND DEPORTATION" is that an immigrant's authority to enter and to remain in Australia depends on his having a current entry permit applicable to him, that he becomes a prohibited immigrant if he enters Australia without a permit or over-stays his entry permit or further entry permit (ss.6(1), 7(3)), that he thereby commits a criminal offence unless his presence in Australia is regularized by the grant of a further entry permit (s.27) and may be required to leave (s.31A) or may be deported (s.18) with the consequences which I have already mentioned. Apart from the general power which s.18 confers on the Minister to "order the deportation of a person who is a prohibited immigrant under any provision of this Act" Pt II contains other deportation powers directed to specific situations. Although they have no direct relevance to this case I should briefly mention them. The Minister may deport an alien convicted of certain crimes (s.12). The Minister may deport immigrants who have been convicted of certain offences within five years of entry or who become inmates of a mental hospital or public charitable institution within that period (s.13). And there is provision for the deportation of an alien whose conduct appears to the Minister to have been such that he should not be allowed to remain in Australia (s.14(1)). Similar but more limited provision is made for the deportation of prohibited immigrants by s.14(2). The exercise of the power is conditioned by procedural requirements which are designed to ensure that the person proposed to be deported will have an opportunity of participating in an inquiry conducted by a Commissioner appointed for the purposes of the section to consider the ground specified by the Minister. Where an inquiry is held the power may not be exercised unless the Commissioner reports that the ground specified by the Minister has been established.

24. For the purposes of the present case the statutory provisions relating to the issue of entry permits and the status of a person as a prohibited immigrant are of critical importance. Although the Act is by no means consistent in the references which it makes to them, it distinguishes between a temporary entry permit and an entry permit that is not temporary (which I have termed for the sake of convenience a "permanent entry permit"), the former being one which is expressed to be for a specified period only (s.6(6)). An entry permit may be granted to an immigrant upon his arrival in Australia or, subject to s.6A, after he has entered Australia (s.6(5)). Section 6(5) evidently refers to entry permits generally, that is temporary entry permits as well as permanent entry permits. On the other hand s.6A relates to permanent entry permits only (see s.6A(8)). I shall return to it shortly.

25. Subject to the reference in sub-s.(2) to "a further entry permit" which may include a permanent entry permit, s.7 deals with temporary entry permits. The Minister may in his absolute discretion cancel such a permit by writing under his hand (s.7(1)). A further entry permit may be granted, at the request of the holder, to a person who holds or has held a temporary entry permit. Upon the expiration or cancellation of a temporary entry permit, the holder becomes a prohibited immigrant unless a further entry permit comes into force (s.7(3)). But a person who is a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him and not otherwise (s.10). And, notwithstanding s.10, a person who becomes a prohibited immigrant by virtue of s.7(3) ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the end of that period, a deportation order in relation to him is in force (s.7(4)).

26. Section 6A(1) prohibits the grant of a permanent entry permit to an immigrant after his entry into Australia unless one or more of certain conditions are fulfilled in relation to him. Of the conditions set out, one only is relevant to the present case. It is par.(e) which is in these terms:

"(e) he is the holder of a temporary entry permit which is in force and there are strong
compassionate or humanitarian grounds for the grant of an entry permit to him."

Because they did not hold temporary entry permits at the relevant time, s.6A(1) precluded the issue to Mr and Mrs Kioa of permanent entry permits on the footing that they satisfied the condition in par.(e). However, the delegate and, it seems, the Department correctly recognized that, if they were first granted further temporary entry permits, they would have been eligible for the grant of permanent entry permits provided that "strong compassionate or humanitarian grounds" for the grant of such permits existed. Paragraph 23 of the submission to the delegate states that "having regard to the applicable policy" an application for further temporary permits would be unlikely to succeed. Paragraph 26 of the delegate's statement of reasons sets out the grounds why he considered such permits would be refused and par.28 states his conclusion that there were "no strong humanitarian or compassionate grounds" for the grant of permanent entry permits.

27. In passing I note that s.6A(1) refers to the objective existence of the conditions which it enumerates, rather than to the opinion or satisfaction of some authority that the conditions or any of them are fulfilled. No doubt the existence or non-existence of many of the matters mentioned in pars.(a) to (e) inclusive may be readily established. However, "strong compassionate or humanitarian grounds" stand in a different position and may be very much a matter of opinion.

28. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Twist v. Randwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No. 2), at p 419; Ratu, at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

29. The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi (No. 2) Barwick C.J. (at p.404) expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based (Heatley, at pp.508-509; FAI, at pp.348, 351-352, 369, 412; Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629, at p 636). The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi (No. 2) the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI, or from the existence of a regular practice which the person affected can reasonably expect to continue (Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374, at p 401). The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.

30. It has been said on many occasions that natural justice and fairness are to be equated - see, for example, Wiseman v. Borneman (1971) AC 297, at pp 308, 309, 320; Bushell v. Secretary of State for the Environment (1981) AC 75. And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression "natural justice" has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making. The effect of Atkin L.J.'s influential observations in R v. Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd. (1924) 1 KB 171, at p 205, was to focus attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply in a particular case. The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model. See Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1978) 88 DLR(3d) 671, at pp.680-682.

31. The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything" (Board of Education v. Rice (1911) AC 179, at p 182). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision -
" ... which directly affects the person (or
corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review." (Salemi (No. 2), at p.452, per Jacobs J.).

32. Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. (1984) 58 ALJR 308, at pp 314, 318; 52 ALR 417, at pp 427-428, 434).

33. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).

34. When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

31. Moreover, a person who becomes a prohibited immigrant upon the expiration of a temporary entry permit is entitled to escape conviction as for an offence under s.27(1)(ab) if a further entry permit comes into force (s.27(2A)). Neither the offence nor the means of exculpation were in the Act as it stood in 1977. Again, the power to relieve from conviction for a criminal offence requires the interests of the person otherwise liable to conviction to be taken into account. It follows that the nature of the power to be exercised is now somewhat different from what it was in 1977. As the complex of powers conferred by ss.6, 6A, 7 and 18 taken in conjunction with s.27(2A), now require the interests of the prohibited immigrant and his family to be taken into account, there is a substantial ground of distinction between the Act as it stood when it was construed in Salemi (No.2) and Ex parte Ratu and the Act as it stood when the deportation orders in this case were made. The significance of the Minister's power to cancel a temporary entry permit is less in the 1983 context than it was in the Act as it stood in 1977. In my opinion, the Act as it stood at the time when the deportation orders were made did not displace the presumption that Parliament intended that an exercise of the complex of powers conferred by ss.6, 6A, 7 and 18 should be conditioned on observance of the principles of natural justice.

32. The enactment of the the ADJR Act is, in my opinion, an entirely neutral factor. Section 5(1)(a) does not impose a condition on the exercise of every statutory power although the Parliament, in creating some of those powers, intended that no condition should govern their exercise. The chief purpose of the ADJR Act is to confer on the Federal Court a jurisdiction judicially to review administrative action taken under laws of the Commonwealth and there is no reason to construe in a novel manner provisions which state in familiar terms the well-known grounds of judicial review. I do not say that the grounds of judicial review remain wholly unchanged by the Act, but the ground stated in s.5(1)(a) does not impose procedural qualifications on powers conferred by other specific enactments. I respectfully agree with the view expressed by Bowen C.J. and Franki J. in Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341, at p 347:

" We consider s 5(1)(a) means that relief may be sought where rules of natural justice are applicable in the exercise of a power and effect has not been given to them."

Nor, in my opinion, ought s.13 of the ADJR Act make any material difference. Prior to the enactment of s.13 it was difficult, if not impossible, for a party who sought to challenge the validity of many administrative decisions to ascertain the reasons of the decision-maker. The absence of reasons, often irremediable by discovery, immured many administrative decisions from judicial review. Section 13 provides the means by which the reasons for making an administrative decision can be ascertained, but it does not require the adoption of a different procedure from the procedure which would have to be followed if s.13 of the ADJR Act had not been enacted. Nevertheless, some of the judgments in Salemi (No.2) and Ex parte Ratu pointed to the absence of a requirement to state reasons as an indicium that observance of the principles of natural justice did not govern the exercise of the power conferred by s.18 of the Act (see Salemi (No.2), at pp 421,443-444; Ex parte Ratu, at pp 478,479). Although I would not have regarded the absence of a requirement to state reasons as such an indicium, the introduction of s.13 of the ADJR Act establishes a point of distinction between those cases and the present case and deprives those cases of their earlier authority.

33. Although the amendments since 1977 are sufficient, in my opinion, to warrant the conclusion that the exercise of the powers conferred by ss.6,6A,7 and 18 are conditioned on the observance of the principles of natural justice, it does not follow that the Minister or his delegate is bound in every case to give the prohibited immigrant a hearing before ordering his deportation. When the purpose for which the power is conferred - control of the membership of the Australian people and their visitors - would be frustrated by giving a hearing, the principles of natural justice do not require that a hearing be given. But there is no reason to think that giving a hearing to Mr Kioa would impair the Minister's control over the disposition of the Kioa family. Mr and Mrs Kioa and Elitisi had entered Australia lawfully, Elvina had been born here and is an Australian citizen. Mr Kioa had applied for and may have qualified for the grant of an entry permit under s.6A. The family was living here openly. They had not sought to evade officers of the department. It is clear that the purpose for which the power was conferred on the Minister was not frustrated by the hearing which was given to Mr Kioa and would not have been frustrated by giving him any further hearing.

34. The final and most difficult question on this aspect of the case is whether there has been a failure to observe what the principles of natural justice required in the circumstances. Once the threshold question is resolved and it is established that the exercise of a power is conditioned on the observance of the principles of natural justice, the content of the principles to be observed is determined in the light of the particular circumstances. At least the notion of "legitimate expectation" connotes a circumstance of the case in hand, so the use of that notion to determine the content of the principles of natural justice is not open to the same reproach as its use in construing the statute. If the particular circumstances of the case show that the repository of a power has made an express promise to a person or has adopted an administrative practice which that person can reasonably expect to continue and has thereby induced the person to expect that the power will be exercised in his favour or that it will not be exercised against him without a hearing, it may be unfair to exercise the power against the person without giving him a hearing. But the unfairness consists in a departure from the course which the repository of the power expressly or impliedly promised to follow without giving the person whose interests are affectged an opportunity to be heard. The unfairness is not the disappointment of the expectation which the promise induced. The relevant circumstance in Salemi (No.2) was surely the announcement of the amnesty for prohibited immigrants, not the expectation which it induced in Mr Salemi. Perhaps legitimate expectation in this context means an expectation imputed to the person whose interests are affected. If that be so, it is best to focus on what warrants the imputation rather than on a fictional mental state.

35. I confess I am unable to find in the notion of legitimate expectation either a criterion or an indication to assist in determining what is procedurally reasonable and fair in particular circumstances. If "legitimate expectation" is treated as a criterion or indication, the notion may divert enquiry from what is procedurally reasonable and fair into an examination of the merits of an applicant's case as it is presented in court. The facts which are known to an applicant and which he proves in evidence may show that he had an "expectation" and that it was "legitimate" or "reasonable", but those facts may have been unknown to the repository of the power. What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair. A different approach is called for when the question is whether a jurisdictional fact existed at the relevant time: jurisdiction may depend not on the circumstances perceived by the repository of the power but on the objective existence of the fact at the relevant time. In my opinion, none of the questions arising in this case is illuminated much less resolved by reference to the notion of legitimate expectation.

36. In this case, the letter sent by the Director of the Legal Aid Commission on Mr Kioa's behalf was considered by the Minister's delegate. He did not conduct an oral hearing, but a repository of a power who is bound to hear an individual before exercising a power is not necessarily bound to hear him orally (Local Government Board v. Arlidge (1915) AC 120, at pp 132-133, 137-138; Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551, at pp 566-567,568-569). The repository must adopt a fair procedure having regard to the matters he is bound to take into account (Attorney-General v. Ryan (1980) AC 718, at p 727) and, I would add, the matters he proposes to take into account. Subject to one qualification the Minister's delegate gave Mr Kioa the fair hearing the delegate was bound to give him. In the circumstances, as Mr Kioa represented the interests of Mrs Kioa and the children as well as himself, it was not necessary to give the other members of the family a separate hearing.

37. However, there was one allegation - that contained in par.22 of the department's submission - which was damaging to the prospects of Mr and Mrs Kioa being allowed to stay in Australia. That information was never put to Mr and Mrs Kioa for their comments. Evidently the delegate did not rely on this allegation in making his decision, for his statement of the reasons for his decision provided under s.13 of the ADJR Act did not refer to it. That statement should be taken to be a true and complete statement of the delegate's reasons unless there is evidence to the contrary (see per Stephen J. in Ex parte Ratu, at p 474). Although it is right to conclude that the allegation in par.22 formed no part of the delegate's reasons, it was contained in the material before him which he proposed to consider in coming to a decision.

38. A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise (Kanda v. Government of Malaya (1962) AC 322, at p 337; Ridge v. Baldwin, per Lord Morris at pp 113-114; De Verteuil v. Knaggs, at pp 560,561). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary, at p 97:

" To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair."

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par.22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside. If the Minister chooses to do so, a fresh decision may be made. There is nothing in these reasons which affects the merits of the decision made or of any decision which may be made in the future.

39. As the matter must be reconsidered by the Minister or his delegate, I should refer to two subsidiary matters raised by the appellants. The first matter is a submission that the delegate was bound to consider the effect of the deportation orders on Elvina, an Australian citizen, and to give her a hearing before exercising the power to deport her parents. For reasons I have earlier stated, I would agree with that submission. But, in my view, the delegate did consider the effect of the deportation orders on Elvina, assuming (and the assumption was reasonable) that she would accompany her parents. There was no need to give her a special hearing in addition to receiving the representations made on behalf of Mr Kioa which contained representations on behalf of the Kioa family. It would over-judicialize administration to regard each matter for decision as giving rise to as many lites as there are individuals whose interests are likely to be affected. Sometimes each individual should be given a hearing, sometimes a representative, sometimes a group. There is no reason to think that Elvina's interests were not reasonably and fairly protected by the procedure adopted by the delegate.

40. The second matter relates to the delegate's alleged failure to take account of certain international conventions which are scheduled to the Human Rights Commission Act 1981 (Cth), the preamble to which states that "it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with" the scheduled conventions. The Human Rights Commission Act does not provide that the repositories of statutory power are bound to take the conventions into account; the preamble does no more than state what, apart from the preamble, the repositories of power were generally entitled to do, that is, to take the conventions into account. The exercise of a statutory power is not liable to be set aside merely because the repository of the power does not take into account a matter which he was entitled, but not bound, to take into account: see Sean Investments v. MacKellar (1981) 38 ALR 363, at p 375; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at p 225. Without suggesting that there was any relevant provision in the scheduled conventions which the delegate might have taken into account, there is no legal foundation for this basis of attack on the orders made.

41. I would allow the appeal, set aside the judgment of the Federal Court and in lieu thereof order that the deportation orders against Mr and Mrs Kioa made by the delegate of the Minister on 6 October 1983 be set aside.

DEANE J: The facts, statutory provisions and issues involved in this appeal are set out in the judgments of Mason J. and Wilson J. I agree with their Honours that, for the reasons which they give: (i) the appellants' submission that the effect of s.5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "A.D.J.R. Act") is to impose an obligation that the rules of natural justice be observed in relation to every decision to which that Act applies must be rejected; and (ii) that the decisions of this Court in Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 and Reg. v. Mackellar; Ex parte Ratu (1977) 137 CLR 461 in relation to the Migration Act 1958 (Cth) (the "Migration Act") in its 1977 form should not, in the light of subsequent amendments made in the context of the A.D.J.R. Act, be accepted in this Court as direct authority for the general proposition that the requirements of natural justice or procedural fairness do not need to be observed in relation to the making of a deportation order under the Migration Act in its present form. I turn to consider the applicability and content of those requirements of natural justice or procedural fairness with respect to the making of the deportation orders against Mr. and Mrs. Kioa.

2. An alien who is unlawfully within this country is not an outlaw. Neither public officer nor private person can physically detain or deal with his person or property without his consent except under and in accordance with the positive authority of the law. Nor is such an alien without status or standing in the land. He can invoke the protection of the law, including the protection of the writ of habeas corpus, against any government official or private citizen who acts unlawfully against him or his property. He can look to, and demand the observance of, the ordinary restraints which control the exercise of administrative power including, unless they be excluded by reason of statutory provision or the special nature of the case, the standards of procedural fairness which are recognized as fundamental by the common law.

3. Each of Mr. and Mrs. Kioa, having lawfully entered Australia, became what the Migration Act calls a "prohibited immigrant" at the time when his or her respective temporary entry permit expired and was not renewed. An incident of his or her status as a "prohibited immigrant" was that he or she could be disadvantaged or advantaged by the exercise of the particular powers which the Act confers upon the respondent Minister and his authorized officers in relation to such persons. The nature and the content of those powers vary, to some extent, according to whether or not the prohibited immigrant has previously held a temporary entry permit (see, e.g., Migration Act, ss.7(1) and 27(1)(ab) and (2A)). More importantly for present purposes, the nature and content of those powers vary most significantly according to whether or not the prohibited immigrant is a deportee, that is to say, "a person in respect of whom a deportation order is in force" (s.5(1)).

4. A prohibited immigrant who is within Australia may be required to leave within a specified time (s.31A) or, subject to specific safeguards, may be arrested and held in custody (s.38). Unless the prohibited immigrant be also a "deportee" however, the Minister and his officers are as powerless as was the "owner" of the "black" in Somerset v. Stewart (1772) Lofft, 1 (98 ER 499) to place or have him placed upon a ship or aircraft and transported to some country to which he does not wish to go and in which he may face hardship, imprisonment or, conceivably, even death. If a person who is not a deportee has become a prohibited immigrant by reason of the expiration or cancellation of a temporary entry permit, he ceases to be a prohibited immigrant after the expiration of five years from the date he became a prohibited immigrant (s.7(4)).

5. The making of a deportation order against a prohibited immigrant drastically and adversely changes his rights and, to some extent, dehumanises his status. A deportee may, by administrative decision, be transported against his will to any country in the world which will receive him. Somerset's Case notwithstanding and regardless of what hardship or oppression may lie in wait, the master, owner, agent or charterer of a ship or aircraft bound for the specified country shall, on being duly required in writing by "an authorized officer" so to do, receive the deportee on board for conveyance thereto (s.22). The deportee is liable to pay to the Commonwealth an amount equal to the cost of his detention plus the passage money and other charges payable in respect of his transportation (s.21A). If he somehow remains within Australia, the mere existence of the deportation order will preclude him from ceasing to be a prohibited immigrant on the expiration of the five year period mentioned previously (s.7(4)).

6. In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness. The making of the deportation orders in respect of Mr. and Mrs. Kioa plainly involved the exercise of a statutory power to make such an administrative decision. Each deportation order directly affected the rights, interests and status of the person (Mr. or Mrs. Kioa) in respect of whom it was made and against whom as an individual it was directed. In the context of the A.D.J.R. Act and of the amendments made to the Migration Act after the decisions in Salemi and Ratu, it is no longer possible - if it ever was - to discern in the provisions and scheme of the Migration Act a clear legislative intent excluding the applicability of the ordinary principles of procedural fairness in respect of the making of such an order. That being so, it was incumbent upon the delegate of the Minister to observe those requirements in the making of the deportation order against each of Mr. and Mrs. Kioa.

7. The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case. Circumstances could arise in which it was impracticable to extend to a prohibited immigrant an opportunity of being heard before a deportation order was made in respect of him and in which the overall requirements of procedural fairness may, by reason of overriding necessity, be (at least arguably) satisfied notwithstanding the absence in fact of any prior opportunity of being heard. The case where the prohibited immigrant has gone into hiding and has thereby precluded any possibility of an effective hearing is an arguable example. Putting to one side cases of necessity however and in the absence of any clear legislative intent excluding or modifying the requirement of procedural fairness, it is difficult to envisage a case in which the particular circumstances would either exclude those requirements completely in relation to the making of a deportation order or so modify them that the person affected was not entitled to an adequate opportunity of being heard before he was subjected to the adverse effects of such an order. Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious. Thus, the fact that the basis of a deportation order is merely that the person in question is a prohibited immigrant will not deprive the potential deportee of his ordinary right to a prior and adequate opportunity of being heard and of seeking to answer or avoid the reasons which appear to favour his deportation: he might wish to dispute his status as a prohibited immigrant; he might wish to raise particular matters which might arguably warrant the exercise of some special discretion in his favour or rebut particular matters which might be taken into account as weighing against the exercise of such a discretion; he might wish to challenge the wisdom or justice of the administrative policy in pursuance of which it is proposed to order that he be deported.

8. There is nothing in the circumstances of the present case which could properly be seen as excluding or qualifying the ordinary rules of procedural fairness to the extent that either Mr. or Mrs. Kioa was not entitled to be afforded an adequate opportunity of being heard before a deportation order was made in respect of him or her. Such an opportunity of being heard included, in the circumstances of the present case, the opportunity of dealing with any matters raised against them including the particular matters raised in each of paras.21, 22 and 26 of the submission of 6 October 1983 which was placed before the delegate of the Minister. On the facts, there was a failure to extend to Mr. or Mrs. Kioa the opportunity of dealing with the matters raised by those particular paragraphs. The result was that the deportation order in respect of each of them was made in breach of applicable requirements of procedural fairness and was and is invalid. It follows that their appeals must be allowed.

9. There remains for consideration the appeal on behalf of Mr. and Mrs. Kioa's infant daughter, Elvina. It is contended that deportation orders against her parents would deprive her of a legitimate expectation and, that being so, she was entitled to be heard before they were made. I do not accept that contention. The effects of any deportation order against Mr. and Mrs. Kioa would, in so far as Elvina is concerned, be but indirect and consequential (cf., e.g., Re Ludeke; Ex parte Customs Officers Association of Australia (1985) 59 ALJR 483, (1985) 59 ALR 417). She had no separate entitlement to be heard in relation to any such orders. It is true that the consequential effects which deportation orders against Mr. and Mrs. Kioa would be likely to have upon Elvina as an Australian citizen constituted a relevant consideration militating against the making of deportation orders to which the delegate of the Minister should have paid regard. The evidence indicates, however, that regard was in fact paid to that consideration.

Orders

Appeal allowed with costs.

Order that the judgment and order of the Full Court of the Federal Court be set aside. In lieu thereof order that the appeal to the Full Court of the Federal Court be allowed with costs, and that the judgment and order of Keely J. be set aside. Further order that the deportation order made by the delegate of the Minister on 6 October 1983 be set aside and that the appellants' application to review the decision of the respondents be referred back to the first-named respondent to be considered according to law.

Order that the respondents pay the costs of proceedings before Keely J.

Citations

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