Kioa v West
159 CLR 550(Judgment by: GIBBS CJ)
Between: KIOA
And: WEST
Judges:
Gibbs C.J.Mason J.
Wilson J.
Brennan J.
Deane J.
Subject References:
Immigration and Aliens
Administrative Law
Judgment date: 18 December 1985
Judgment by:
GIBBS CJ
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 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 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.
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.
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."
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 affiliatedwith the Uniting Church. He was elected as a representativeon 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 expiredaround the time of the Tongan cyclone no attempt was madeto 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 conditionsof 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 inimicalto 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 Isileliand 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.
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 cycloneon 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."
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.
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.
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 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.
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(2A) (inserted in 1980), 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.
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 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.
The amendments on which counsel for the appellants placed particular reliance were those to 16 (all of which have already been mentioned), 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 48 (the last of which deals with migration agents). Such an application in relation to a decision under 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.
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 NSW 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.
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 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 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.
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 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.
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 18.
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 Migration Act are decisions to which ss 5 and 13 of the AD(JR) Act apply.
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.
However, the provisions of s 13, which require reasons to be given for a decision under 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 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 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.
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.
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) - responsiblefor 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.
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.
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.
For these reasons I would dismiss the appeal.