Kioa v West
159 CLR 550(Judgment by: MASON J)
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:
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.
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.
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.
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 .
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.
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.
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.
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.
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 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.
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."
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.
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) 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.
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.
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 .
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.
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.
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.
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.
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.
Then there are the amendments of the provisions of 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 18 itself, although the refusal of further entry permits under these sections leaves the Minister free to make a deportation order under s 18.
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.
In place of the old 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.
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.
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.
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)).
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.
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.
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) 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.
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.
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.
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.).
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).
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.).
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.
Notwithstanding the characteristics of the power and the elements in the statutory framework which were thought in Salemi (No. 2) and Ratu to indicate an intention to displace the principles of natural justice in relation to s 18, I do not think that it can now be said that the Migration Act as it has been amended wholly displaces the duty to act fairly in accordance with the doctrine of natural justice. In one very important respect there has been a radical legislative change. The exercise of the power is susceptible of judicial review and an element in that review is the obligation, on request, to furnish a statement setting out material findings of fact, referring to the evidence and other materials, and giving the reasons for the decision. In the light of this it can scarcely be suggested now that the existence of an obligation to comply with the requirements of procedural fairness is inconsistent with the statutory framework or that it will entail administrative inconvenience which is destructive of the statutory objects. In this new setting the remaining considerations which influenced the Court in the two earlier decisions are not sufficient to displace the obligation to follow fair procedures.
I do not agree with the view expressed by Barwick C.J. in Ratu (at p 466) that the Minister has no discretion under s 18 not to order the deportation of a prohibited immigrant. The Minister may decide not to make such an order for a variety of reasons. He may do so pending consideration of an application for a further entry permit or because he considers that the prohibited immigrant will in due course make his own arrangements to leave Australia or because the case is one calling for a s 31A notice rather than a deportation order.
But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s 18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so. He may even be a person who has been required under s 31A to leave, but has declined to do so. To insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order (Salemi (No. 2), at pp 452-453, and Ratu, at p 480).
But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them.
However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion (s 7(1)). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter (In re H.K. (An Infant) [1967] 2 QB 617 ). If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger.
In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham (1983) 49 ALR 123 , is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417 , at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130.
Of the paragraphs in the submission to the delegate of which the appellants complain, it seems to me that there are two matters only in respect of which fairness demands that the applicant should have the chance of replying. The first is the comment in par.21 that had Mr Kioa been genuine in his desire to seek a legitimate extension of his stay in Australia he might have sought a decision on his application "rather than change his address without apparently notifying the Department". The second matter is that contained in par.22, namely, the statement that Mr Kioa's concern for other Tongan illegal immigrants and his active involvement with other persons who were seeking to circumvent Australia's immigration laws "must be a source of concern". Although the statement of reasons makes no reference to the contents of par.22, it does not disavow them. As the paragraph was extremely prejudicial, the appellants should have had the opportunity of replying to it. The other material of which the appellants complain consists of policy, comment and undisputed statements of fact. It does not call for a chance to reply.
A separate submission is made on behalf of Elvina Kioa. It is contended that she had a legitimate expectation as an Australian citizen that she would not be deprived of, or impeded, in her enjoyment of the day to day benefits and privileges of Australian citizenship and a legitimate expectation of continued residence in her country of citizenship with her family. The suggestion is that before a deportation order was made against her parents she should have been given an opportunity of presenting a case against the making of such an order. In my opinion the duty to act fairly does not extend so far. Certainly the making of a deportation order had consequences for her, but it would be quite unreal to suggest that as an infant ten months old she should have been given an opportunity of presenting a case beyond the case presented on behalf of her parents for an extension of their stay in Australia.
The appellant's final submission is that the delegate failed to have regard to a relevant consideration, namely that she was an Australian citizen and that deportation of her parents would have necessarily entailed her deportation from Australia. The short answer to this submission is that the statement under s 13 made reference to Elvina's status as an Australian citizen. It is obvious that the delegate proceeded on the footing that Elvina would accompany her parents to Fiji and that this would inevitably deprive her of the privilege of residing in Australia during her infancy.
In the result I would allow the appeal and quash the deportation order on the ground that a breach of the rules of natural justice occurred in connexion with the making of the decision .