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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kioa v West

Details

AGLC: Kioa v West [1985] HCA 81
Case: [1985] HCA 81
Decision Date: 18 December 1985

CaseChat Overview and Summary

The High Court of Australia considered the case of *Kioa v West*. The applicants, Mr. and Mrs. Kioa, were Tongan citizens who had entered Australia as visitors and subsequently overstayed their visas. The respondent, Mr. West, was the Secretary of the Department of Immigration and Ethnic Affairs. The dispute concerned the lawfulness of the decision to deport the Kioas, which was based on their unlawful presence in Australia.

The central legal issue before the High Court was whether the Kioas were entitled to procedural fairness before the decision to deport them was made. Specifically, the court had to determine the scope of the duty to afford natural justice or procedural fairness in the context of administrative decisions affecting a person's rights, interests, or legitimate expectations. The court also considered whether the Kioas had a legitimate expectation of remaining in Australia that would attract procedural fairness.

The majority of the High Court, comprising Mason, Wilson, Brennan, and Deane JJ, held that the duty to afford procedural fairness arises in relation to decisions that affect rights, interests, or legitimate expectations. They found that the Kioas had a legitimate expectation of remaining in Australia, which was sufficient to attract the procedural fairness requirements. This meant that they were entitled to be informed of the case against them and to have an opportunity to respond before the decision to deport them was made. Gibbs C.J. dissented, holding that the Kioas did not have a legitimate expectation that would attract procedural fairness.

The High Court allowed the appeal, quashed the deportation orders, and remitted the matter to the Secretary of the Department of Immigration and Ethnic Affairs to be determined according to law, with the Kioas to be afforded procedural fairness.

Orders