Kioa v West

159 CLR 550

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(Judgment by: WILSON J)

Between: KIOA
And: WEST

Court:

Judges: Gibbs C.J.
Mason J.

Wilson J.Brennan J.
Deane J.

Subject References:
Immigration and Aliens
Administrative Law

Judgment date: 18 December 1985

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Judgment by:
WILSON J

The appellants are Mr and Mrs Kioa and their younger daughter Elvina. Mr and Mrs Kioa are citizens of the Kingdom of Tonga; Elvina was born in Australia in November 1982 and by virtue of Australian Citizenship Act 1948 (Cth) as amended is an Australian citizen. Mr Kioa last arrived in Australia in September 1981 on a student visa to attend a three month course at the International Training Institute in Sydney under the auspices of the Australian Development Assistance Bureau. He was granted a temporary entry permit, in accordance with the provisions of the Migration Act 1958 (Cth) as then amended ("the Migration Act"), expiring on 8 December 1981. At the time he was employed by the Tongan Tourist Office. Mrs Kioa and their daughter Elitisi arrived in Australia in November 1981 and were granted temporary entry permits expiring on 31 March 1982. It was planned that, following the completion of Mr Kioa's course, the family would holiday in Australia, utilising a period of four months' leave granted to him by his employer. On completion of the course the family moved to Melbourne from where on 15 December 1981 Mr Kioa applied for a further temporary entry permit until 31 March 1982. In support of that application he produced fully-paid airline tickets for the family's departure from Australia on that date. As it happened, no decision was made on that application before the end of March and thereafter action by the department lapsed, it being believed that the family had returned to Tonga.

However, the family had not returned to Tonga. Mr Kioa later described the course of events. During March 1982 a hurricane devastated his parents' property in Tonga, leading to a cry for financial help from him in Australia. He thereupon decided not to return to Tonga. He resigned his position with the Tourist Office and secured steady employment in Melbourne. He made no attempt to contact the immigration authorities. Over the following fifteen months he made significant progress towards integration into Australian society: he achieved a position of some responsibility in his employment, was well regarded by his fellow workers, occupied a flat in the same building for over twelve months, acquired a motor vehicle on hire purchase and assumed a leadership role in the Tongan Christian Fellowship.

On 25 July 1983 Mr Kioa was taken into custody as a prohibited immigrant. The following day an application was made to the Minister on behalf of Mr and Mrs Kioa for a change of status to enable the family to remain in Australia. That application was made by the Legal Aid Commission of Victoria and included a detailed description of the circumstances surrounding the family's stay in Australia. In addition Mr Kioa was interviewed on 27 July 1983 by an officer of the Minister's department ("the department") and an exhaustive statement of his circumstances was obtained. Written support for the application for change of status was provided by a letter from his employer, a petition signed by twenty-seven fellow employees and a letter from the Tongan Christian Fellowship.

On 6 October 1983 the Director of the Enforcement Section of the department addressed a submission to Mr Woodward, the Deputy Secretary and a delegate of the Minister under Migration Act, the purpose of which was

"to recommend that you sign deportation orders in respect of Mr and Mrs Kioa and to answer representations made on their behalf by the Legal Aid Commission of Victoria."

The deportation orders, made pursuant to the authority conferred on the Minister by Migration Act, were signed by Mr Woodward on the same day.

Thereafter, in response to a request under Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended, ("the Judicial Review Act") Mr Woodward on 11 November 1983 furnished a statement in writing setting out his findings on material questions of fact, referring to the material on which those findings were based and giving the reasons for the decision. The history as I have already detailed it sufficiently records the substance of Mr Woodward's findings of fact and the material to which he had access save for one item of that material which appears as par.23(h) and reads as follows:

"(h) a summary of policy of deportation of prohibited immigrants as set out in Chapter 3 of the Residence Control Manual which included inter alia:

a)

persons who enter as students, or their dependents, are expected to honour the undertakings contained in visa applications signed overseas;

b)

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;

c)

presence of such queue-jumpers is inimical to the Government control of migration programs as well as impacting upon job availability for legal residents;

d)

prohibited immigrants who do not leave voluntarily should expect to face the prospect of deportation when located."

The statement then concludes with a section headed "The Reasons for the Decision" which I set out in full:

"C THE REASONS FOR THE DECISION

24 By virtue of section 7(3) of the Act the applicants became prohibited immigrants following the expiration of their temporary entry permits on 8 December 1981 (Mr Kioa), and 31 March 1982 (Mrs Kioa), and both have maintained that status from these respective dates as no further temporary entry permits applicable to them have come into force.

25 The applicants do not fulfil one or more of the conditions of section 6A(1) of the Act necessary for consideration for grant of a (permanent) entry permit.

26 While I accepted that it remains possible to regularize the applicants continued presence in Australia, for a limited period if they so requested, by directing the grant to them of a further temporary entry permit I was satisfied that such a grant would have been inappropriate in the circumstances by reason of the applicable policy, their breach of the undertakings made by them in connection with their visitor visa applications, their deliberate remaining in Australia as prohibited immigrants, Mr Kioa's illegal working without written permission in Australia, and their length of stay in Australia which was well beyond that normally allowed students in similar circumstances as set down in policy guidelines.

27 While a permanent entry permit may not be granted to the applicants after their entry to Australia by reason of section 6A(1) of the Act, I accepted that it was possible to direct the grant of a further temporary entry permit to them for the purpose of allowing consideration of an application for grant of (permanent) entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly I considered whether, apart from the fact that the applicants do not hold temporary entry permits in force, there are strong compassionate or humanitarian grounds for the grant of (permanent) entry permits to them.

28 Based upon my findings and the representations made on their behalf I considered and gave weight to the circumstances of the applicants' case and in particular to the fact that the tragedy of the March 1982 cyclone in Tonga necessitated Mr Kioa giving financial assistance to his family in Tonga (which I accept he was better able to do from Australia). However I was of the view that in all the circumstances there were no strong humanitarian or compassionate grounds for the grant to them of (permanent) entry permits.

29 In the particular case of the applicants:

(a)

Mr Kioa, knowing that an application for further temporary permit had not been finalized and that, in any event, the period of extension sought had expired, deliberately chose to remain in Australia, to work without written permission contrary to s 31B(2) of the Act, and to resign his position in Tonga with the Tourist Office.

(b)

The applicants made no attempt to communicate with the Department after 15 December 1981 nor advised of any change of address to enable the Department to communicate with them. In particular they made no attempt to enquire of their earlier application or to further regularize their status following receipt of news of the cyclone on March 1982.

(c)

Mr Kioa failed to honour his obligation as a student visitor to return home at the completion of his studies or permitted stay.

30 I considered that these actions constituted a blatant disregard for the normal migration selection procedures and the migration law. I considered nonetheless the circumstances of their case, in particular as set out in paragraphs 17 and 28 above, but decided that their expulsion from Australia was appropriate. I considered that the application of the stated policy set out in paragraph 22(b) supra was appropriate and just. In all the circumstances I decided to order their deportation."

An application by the appellants to the Federal Court for an order of review in respect of Mr Woodward's decision was dismissed by Keely J. and on appeal by the Full Court (Northrop, Jenkinson and Wilcox JJ.). The decisions have been reported: (1984) 53 ALR 658 and 55 ALR 669 respectively. The appellants now appeal by special leave to this Court.

The point of substance argued on the appeal is whether, in considering whether to grant further entry permits to the first and second appellants or to order their deportation the Minister was under an obligation to comply with the rules of natural justice. That issue had been resolved against the appellants in the Federal Court by reason of the authority of the decisions of this Court in Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 and Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 .

In Salemi the Court composed of six members considered the question whether, construing the Migration Act as it then stood, the Minister could issue a deportation order under s 18 without first giving the person affected an opportunity to be heard. Three members of the Court (Barwick C.J., Gibbs and Aickin JJ.) answered the question in the affirmative. Of the other members of the Court, Jacobs and Murphy JJ. would have given a negative answer to the question while Stephen J., although inclined to give a negative answer to the question, found it unnecessary to express a concluded view because of the effect of the amnesty around which the argument in the case revolved.

In Ratu, the Minister made deportation orders under Migration Act in respect of two Fijian women whose temporary entry permits had expired. It was argued for the prosecutors that they were entitled to be told the Minister's grounds for deporting them in order that they may have the opportunity to challenge them. In fact, the Minister received detailed submissions on behalf of the deportees and made lengthy replies outlining the reasons for his decision and rejecting the submissions that had been made. It was held by Barwick C.J., Gibbs, Mason and Aickin JJ. that the Minister was not obliged to observe the principles of natural justice. Jacobs J. found no such similarity with the facts of Salemi as would lead him to the same conclusions as he expressed in the latter case. The deportation orders having been made on the sole ground that the women were prohibited immigrants the Minister was not bound to state his reasons or to give an opportunity to make submissions. Murphy J. held the rules of natural justice to be applicable but, with Barwick C.J., Stephen and Jacobs JJ., found that in any event they had been observed.

The appellants do not argue that these two cases of Salemi and Ratu were wrongly decided. Their counsel, Mr Merkel, argues that the statutory context has now changed to such an extent that the exercise of the deportation power in Migration Act is now subject to the rules of natural justice. The reason for that is that while in 1977 it was open for the Court to construe the section in its then context as reflecting a legislative intent that the power be exercised without giving the person affected an opportunity to be heard, the effect of later legislation is that such an intent can no longer be discerned. It is not necessary for the appellants to do more than demonstrate the absence of a clear intent to exclude the operation of the rules, because as Byles J. said in Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180, at p 194 (143 ER 414, at p 420), "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". But clearly, good grounds must be shown for dislodging the authority of the decisions in Salemi and Ratu.

The first of the legislative changes upon which the appellants rely is found in the Judicial Review Act, which commenced to operate on 1 October 1980. Section 5(1)(a) reads as follows:

"5.(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)

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

Mr Merkel argues that this provision affords direct authority for the present application. It is common ground that the decision under s 18 of the Migration Act to deport Mr and Mrs Kioa is "a decision to which this Act applies" and that the appellants are persons who are capable of being aggrieved by that decision. It is then said that par.(a) has the effect of rendering all administrative decisions to which the Judicial Review Act applies subject to observance of the rules of natural justice notwithstanding that before the Judicial Review Act came into operation such observance, on the proper construction of the enactment under which the decision is made, may have been excluded. I am unable to accept the argument. Broadly speaking, the purpose of the Judicial Review Act is to simplify the procedure of judicial review of administrative decisions made under Commonwealth Acts. The statutory context in which such decisions are made are many and diverse and it cannot be supposed that the simple formulation contained in s 5(1)(a) of the Judicial Review Act was intended to effect a substantive change to any context which prior to that time revealed a legislative intent to exclude the operation of the rules. Furthermore, the construction contended for is demonstrably untenable. As Stephen J. remarked in Salemi (at p 444) it is now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. They will depend upon what Kitto J. described, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) the particular statutory framework" within which they are to apply. His Honour continued:

"By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin (1963) 2 W.L.R. 935 , at p 947. As Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All ER 109 (at p 118), in a passage approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 All ER 631 , at p 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth'."

See also, National Companies and Securities Commission v. News Corporation Ltd. (1984) 58 ALJR 308 at p 318; 52 ALR 417 at p 434. If the statute in question reflects a clear legislative intent to exclude the rules of natural justice it must be sheer speculation to extract from it any conclusion as to the procedural consequences that might have been intended if the rules had not been excluded. The very exclusion must extend not only to the fact of their application but also to their content. The Judicial Review Act does not invest the rules of natural justice with any particular content capable of arbitrary application to any decision made under any Commonwealth enactment. Unless the statute under which the decision is made requires observance of the rules of natural justice there cannot be any relevant breach of those rules to support an application for an order of review in accordance with s 5(1)(a). With respect I agree with the view consistently expressed by judges of the Federal Court in this regard (see, for example, Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341 , at p 347; Smith v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 , at pp 54-555) and repeated in the present case.

The next submission for the appellants is based on s 13 of the Judicial Review Act. That section obliges the decision-maker on the request of any person who is entitled to make an application to the Federal Court under s 5 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 second schedule lists the classes of decisions that are not decisions to which s 13 applies and included therein are certain decisions under Migration Act, namely,

"(i) decisions under section 6, other than -

(A)

a decision relating to a person who, at the time of the decision, was a person in respect of whom there was in force a visa or return endorsement under that Act; or

(B)

a decision relating to a person who, having entered Australia within the meaning of that Act, was in Australia at the time of the decision."

It follows, I think, that the submission gains strength from the fact that the reference to the Migration Act in the second schedule shows that the attention of the legislature was specifically directed to the question of whether any, and if so what, decisions made under that Act should be exempted from the obligation to give reasons pursuant to s 13 of the Judicial Review Act. It is noteworthy that the legislature apparently saw no reason why the Minister should not be obliged to furnish his reasons for, inter alia, cancelling in his absolute discretion a temporary entry permit at any time (Migration Act, s 7(1)) or ordering the deportation of a person who is a prohibited immigrant (Migration Act, s 18). It may be observed that ss 13A and 14 of the Judicial Review Act ensure that s 13 may be complied with in a manner which will protect confidentiality and safeguard the national interest and Crown privilege.

I turn now to consider whether the impact of the Judicial Review Act affects the continued relevance of the reasoning of members of the Court in Salemi and Ratu. In Salemi, at p 402, Barwick C.J. said:

"The matter committed to the Minister by s 18 is the deportation of a prohibited immigrant. The Parliament, by its legislation, has determined who shall fill that description. The Parliament in this legislation is dealing with a national interest of paramount importance, namely, the composition of the nation, determining who shall enter and who shall stay. The decision of those questions is not hedged, nor can it be hedged, around with principles of the kind that the judiciary are wont to consider: nor is it necessary, or convenient, or indeed desirable, that reasons be assigned for the determination of those questions."

At p 421, Gibbs J. said:

"The very security of the nation may require that the executive should have the power to decide what aliens shall be permitted to enter and remain in Australia, and to expel those who have no right to be in the country. Reasons of security may make it impossible to disclose the grounds on which the executive proposes to act. If the Minister cannot reveal why he intends to make a deportation order, it will be difficult to afford the prohibited immigrant a full opportunity to state his case, for he may not know what it is that he has to answer. This is not to say that it might not be practicable for the Parliament to provide a procedure for the review of deportation orders made under s 18, but the Parliament has not done so."

See also per Stephen J. at pp 443-444; per Aickin J. at p 460.

In Ratu, at p 466, Barwick C.J. said:

"Section 7(1) gives to the Minister an absolute discretion at any time to cancel the temporary entry permit. It would be odd in the extreme if, none the less, before an order for deportation could be made of an immigrant whose entry permit has been cancelled, that the prohibited immigrant could insist on being informed of the reasons why it was contemplated that the order should be made and have an opportunity to contest those reasons, apparently both in relation to the facts and their sufficiency to warrant a deportation order being made."

Odd though it be, that is precisely the effect of the Judicial Review Act provided it be understood that the contest is confined to the matters set out in s 5(1) of that Act. Gibbs J., at p 470, referred to his judgment in Salemi and continued:

"In that case I reached the conclusion that the power given by s 18 of the Act is not subject to an obligation to observe the principles of natural justice, and in particular that the Minister is not bound to disclose the grounds on which he proposes to act in making a deportation order, or to afford a hearing to a prohibited immigrant before ordering his deportation. Having considered the arguments advanced in the present case I see no reason to depart from that conclusion."

At pp 479-480, Mason J. said:

"Another factor suggesting that the Minister is not under an absolute or universal obligation to give advance notice is to be found in the width of the discretion conferred by the section and in the absence of any obligation to give reasons. The discretion is unlimited in scope except in so far as the nature and purpose of the Act may possibly suggest some confinement ...

... The Minister's reasons for making the order may, and very likely will, include considerations of government policy which, whether they lend themselves to disclosure or not, the statute does not oblige him to disclose. When the statute imposes no such obligation the court is not justified in creating indirectly a like obligation by holding that the Minister is under a duty of the kind suggested."

Finally, at p 482, Jacobs J. said:

"Since the Minister made the orders because the applicants were prohibited immigrants he was not bound to state his reason or to give an opportunity to make submissions."

In my respectful opinion, these citations make it evident that the obligation now resting on the Minister by virtue of s 13 of the Judicial Review Act to furnish a statement in writing setting out the material on which his decision to order a deportation under Migration Act was based and the reasons for the decision introduces a new factor of some importance to be considered along with the other factors canvassed in Salemi and Ratu. Before taking this aspect of the matter any further it is convenient to examine a further related submission advanced for the appellants, namely, that legislative amendments since 1977 to the Migration Act itself now create a relevantly different statutory context in which the issue is to be considered. In the first place, reference is made to amending Act No 117 of 1979 by which the following changes, inter alia, were made to the Migration Act:

(a)

a new s 21A was inserted, under which a deportee is made liable for the cost to the Commonwealth of keeping and maintaining him during his detention awaiting deportation and for the costs incurred by the Commonwealth, including those incurred pursuant to s 22, for the conveyance of the deportee to a place outside Australia;

(b)

s 27(1) was amended to create the offence of becoming a prohibited immigrant upon the expiration of a temporary entry permit (s 27(1)(ab)). Section 27(2A) was inserted to provide:

"(2A) It is a defence to a prosecution of an immigrant for an offence against paragraph (ab) of sub-section (1) 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 sub-section (4) of ..."

(Under s 7(4) a prohibited immigrant may cease to be such by reason of the expiration of a period of five years from the time at which he became a prohibited immigrant, there being in force no deportation order in relation to him).

(c)

The provisions of s 7(5), which empowered an authorized officer to require a person who is a prohibited immigrant by reason of the expiry or cancellation of a temporary entry permit to leave Australia within the time specified, were repealed and re-enacted as s 31A in a broader context. The Minister himself was given the power in addition to an authorized officer and it could be exercised in respect of any prohibited immigrant.

(d)

A new section 31B was inserted dealing with offences by immigrants in relation to work. It created, inter alia, an offence for a prohibited immigrant to perform any work in Australia without the permission, in writing, of an authorized officer.

Mr Merkel draws attention also to the insertion of 66E in the Act. The first of these sections was inserted by amending Act No 175 of 1980 with the object of restricting by law the categories of immigrants eligible to be granted permanent residence subsequent to their arrival in Australia (see Hansard, House of Representatives, Vol 120 at p 151). The second was inserted by amending Act No 61 of 1981. It enables decisions of the Minister to order the deportation of a person under s 12 or s 13 of the Act to be reviewed on their merits by the Administrative Appeals Tribunal constituted under the Administrative Appeals Tribunal Act 1975 (Cth) provided that the applicant is either an Australian citizen or a person whose continued presence in Australia is not subject to any limitation as to time imposed by law (s 66E(2)). Section 12 empowers the Minister to order the deportation of any alien convicted in Australia of certain crimes, while s 13 applies to the deportation of immigrants in respect of matters occurring within five years of entry. In each case, after reviewing the decision, the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal (s 66E(3)).

I have reviewed in detail the legislative changes to the Migration Act since the decisions in Salemi and Ratu upon which the appellants rely to establish a statutory framework so significantly different as to render those decisions no longer applicable. It is true that the reasons for decision of some of the members of the Court who formed the majority in those cases reflect a view of the statute in which deportation was seen as a natural consequence of a person acquiring the status of a prohibited immigrant. As Barwick C.J. observed in Salemi, at p 406, "Deportation is the consequence prescribed" for the presence in Australia of a prohibited immigrant. In Ratu, at p 466, his Honour affirmed the view that the Minister had no discretion not to order deportation of a prohibited immigrant, given that he was not disposed to grant a further entry permit. See also, per Gibbs J. in Salemi at pp 420-421 and in Ratu at pp 468-469; per Aickin J. in Salemi at p 460 and in Ratu at pp 485-486; per Jacobs J. in Ratu at p 481. Mason J., in Ratu at p 479, acknowledged that in the case of an overstayed entrant there was no occasion in the first place to resort to s 18 because of the power then available in s 7(5) for an authorized officer to require a prohibited immigrant to leave Australia.

One effect of the legislative changes to which I have referred is to emphasize the discretionary nature of the power to deport a prohibited immigrant which s 18 vests in the Minister. Quite apart from the power to change the status of such a person by the grant of a further entry permit, the statutory controls over prohibited immigrants have been tightened considerably. It is now an offence for an immigrant to become a prohibited immigrant upon the expiration of a temporary entry permit, with the sanction of a substantial fine or imprisonment (s 27(1)(ab)). A prohibited immigrant commits an offence if he performs any work in Australia unless (extraordinary though it may seem) with the permission in writing of an authorized officer (s 31B(2)). More importantly, the power to require a prohibited immigrant to leave Australia within a specified time under penalty of fine or imprisonment has been re -enacted and widened in scope (s 31A). The power to order the deportation of prohibited immigrants may now be seen as a weapon of last resort. Such an order now has added significance to the deportee because not only is he subjected to custody and a form of travel and a destination not of his own choosing, all of which formerly applied, but he is now liable to the Commonwealth for the cost of his maintenance while in custody and the passage money and other charges payable in respect of his conveyance away from Australia (s 21A).

It is not easy to derive any support for the appellants' argument from the insertion of s 6A, a provision the purpose and effect of which is to make it more difficult for immigrants to gain permanent resident status after they have entered Australia. While clearly relevant to the merits of the Minister's decision to order the deportation of Mr and Mrs Kioa, it would not seem to provide any direct support for a legislative intent that the decision itself should be attended with procedural fairness. As I understand the argument it is that the Minister had it within his power to grant Mr and Mrs Kioa further temporary entry permits pursuant to s 7(2), and then to consider their claims to permanent resident status on the basis of strong compassionate or humanitarian grounds as envisaged by s 6A(1)(e). The argument encounters the difficulty that one aspect of the Migration Act which has not changed since Salemi and Ratu is that the Minister's discretion to cancel a temporary entry permit at any time and, conversely, to grant a further temporary entry permit, is absolutely unfettered. Nevertheless, it is possible to discern a relevance, albeit attenuated, of strong compassionate or humanitarian grounds to the exercise of the Minister's discretion to order deportation under s 18, and this may strengthen the claim to an expectation to be heard in relation to such a decision.

In the end, I do not have to decide whether of themselves the legislative changes to the Migration Act since the cases of Salemi and Ratu were decided render those decisions no longer determinative of a case such as the present. When taken with s 13 of the Judicial Review Act, I have no doubt that there is no longer a relevant statutory framework which evinces the intention of the legislature that in ordering the deportation of a prohibited immigrant the Minister is not obliged to observe the dictates of procedural fairness. It is therefore open to the appellants to seek a review of the deportation orders on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision.

It is necessary now to consider what the rules of natural justice require of a decision made under Migration Act. I have spoken of the dictates of procedural fairness because in the context of administrative decisions I think that such a phrase is an apt description of what natural justice requires. What is fair will depend, as I have already indicated by referring to the statement of Kitto J. in Mobil Oil and to News Corporation, on the particular statutory framework within which the decision is taken. Even within the same statutory framework differing circumstances may call for a different response (cf. Stephen J. in Salemi at p 444).

When regard is had to the circumstances of the present case, it is immediately clear that save in one respect there can be no room for complaint of unfairness in the procedures followed by the Minister. The salient aspects of those circumstances are these: prior to his coming to Australia as a sponsored student for the course at the International Training Institute Mr Kioa acknowledged in his application for a visa an obligation to return to Tonga at the completion of the course; when seeking a further temporary entry permit for himself Mr Kioa produced for inspection fully paid airline tickets and represented to immigration officers in Australia that he and his wife and daughter would leave Australia on 31 March 1982; following news of the hurricane in Tonga he did not seek further entry permits but without reference to the department he resigned his position with the Tongan Tourist Office, changed his address and secured employment in contravention of the Migration Act; he knowingly accepted the status of prohibited immigrant from 31 March 1982 until his arrest on 25 July 1983; he took the opportunity of an interview on 27 July 1983 with an immigration officer to explain fully the circumstances of the extended stay in Australia of himself, his wife and Elitisi and of the birth in Australia of Elvina; at the same time the Legal Aid Commission of Victoria on his behalf made an appeal in writing to the Minister seeking permission for Mr Kioa and his family to stay in Australia and that appeal was supported by submissions in writing from both his employment and church connections. When the delegate of the Minister came to make his decision with respect to deportation on 6 October 1983 he was thus fully apprized of all the relevant circumstances and, in particular, of the grounds upon which Mr and Mrs Kioa sought the exercise of his discretion to secure their permanent residence in Australia. Thus far, as I have said, there is no room for any complaint of unfairness. However, the delegate was also furnished with a submission from the department which recommended deportation and included statements in pars.20 and 22 reading as follows:

"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 (temporary entry permit) had expired."

"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."

Mr Merkel argues that the comment in par.20 was unjust because it was known that Mrs Kioa and Elitisi had been granted permits expiring on 31 March 1982 and there was no reason to doubt that Mr Kioa's then pending application for a further permit expiring on the same date would be approved. This may be so but I cannot attach any importance to that paragraph. In terms par.20 is strictly accurate but in any event the circumstances surrounding Mr Kioa's application in December 1981 for an extension of his entry permit is described elsewhere in the submission and the delegate's findings on material questions of fact show that he was not misled. The complaint touching par.22 is more substantial. It is argued that the reference to "his active involvement with other persons who are seeking to circumvent Australia's immigration laws" implies that Mr Kioa was not merely concerned over the plight of Tongan illegal immigrants in Australia but was actively assisting them to evade those laws as distinct from assisting them to regularize their position in accordance with those laws. The source of the allegation does not appear in the submission and there is nothing in the material submitted to the delegate on behalf of Mr and Mrs Kioa which would justify or support it. The allegation was clearly prejudicial to the application to be allowed to stay in Australia. Ordinarily, procedural fairness would require that such an allegation be put to them and they be given an an opportunity to answer it before a decision was made. Unfortunately, that course was not followed. The learned Solicitor-General for the Commonwealth argues that because there is no mention of par.22 in the delegate's reasons for his decision the failure to provide Mr Kioa with an opportunity to be heard in respect of it cannot be material. But the situation must be judged in terms of the procedure followed before the decision was made. The delegate received a submission recommending that he sign orders for deportation and it cannot be denied that the concern expressed in par.22 was a factor which contributed to and supported the recommendation. The paragraph appears as the final item in a section in the submission headed "Representations and Letters of Support" and if left uncontradicted would be calculated to discount the apparently significant body of community support for the Kioa family. In any event, it is not necessary to show that the allegation contained in par.22 did work to the prejudice of Mr and Mrs Kioa. It is enough to show that the way was open for it to do so. See Kanda v. Government of Malaya [1962] AC 322 , at pp 337-338. In this regard, I agree with respect with the conclusion of Northrop and Wilcox JJ. in the Full Court.

For these reasons I conclude that the exercise by the delegate of the power conferred by Migration Act to order the deportation of Mr and Mrs Kioa must be set aside for want of procedural fairness. I must add that I come to this result with some reluctance because at most it awards a very slender technical victory to the appellants. Given the immigration policy outlined by the delegate in his reasons for the decision and his assessment of the case advanced for Mr and Mrs Kioa it is difficult to see how even an emphatic reversal of the imputation contained in par.22 could affect the result. However, having decided that decisions under s 18 must be attended with procedural fairness, it would frustrate the purpose of the Judicial Review Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred by s 16, merely because the breach was not shown to have affected the decision. The contrary has not been contended, the case having been argued on the basis that if the rules of natural justice apply and are shown to have been breached then the decision must be set aside.

It is unnecessary to deal with an alternative submission that even if Mr and Mrs Kioa were not entitled to the observance of procedural fairness in relation to the deportation orders their daughter Elvina, as an Australian citizen, was so entitled.

A further ground for voiding the decision to order deportation is argued for the appellants. A brief reference will suffice. Mr Merkel submits that the delegate improperly exercised the power (cf. s 5(1)(e) of the Judicial Review Act) for the reason that he failed to take a relevant consideration into account, namely, the impact of the deportation upon Elvina. It is said that as a young Australian citizen Elvina is entitled, consistently with the United Nations' Declaration of the Rights of the Child (exhibited as Schedule 2 to the Human Rights Commission Act 1981 (Cth)), to the concurrent enjoyment of the care of her parents and of the fruits of her citizenship in Australia. A short answer to the submission is that I am not persuaded that the delegate failed to have proper regard to Elvina's place in the family and to her status as an Australian citizen. In his findings on material questions of fact, the delegate expressly acknowledged Elvina's citizenship when he says, in par.4: "The applicants have a second daughter born 14 November 1982 in Australia and who is thus an Australian citizen." Although he does not thereafter in his reasons make any specific reference to Elvina's interests the evaluation of competing considerations takes place against the background of that early description of the family unit. The weight to be given to the presence in an immigrant family of an infant born in Australia is a matter for the decision-maker, not the courts. It is not suggested, nor could it be suggested, that the mere fact that prohibited immigrants have a child born to them in Australia entitles them to permanent residence in Australia. What is required is that the decision-maker, in considering all the relevant material placed before him, give proper consideration to the effect that a deportation order if made would have on the members of the family. See, for example, Tabag v. Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 . In the present case, the delegate was informed that if orders were made for the deportation of Mr and Mrs Kioa both their children would accompany them at Commonwealth expense. There was no question of the family unit being broken up. Although Mr Merkel sought to strengthen his submission in relation to Elvina by reference to the Declaration of the Rights of the Child, I do not think that the provisions of that Declaration take the matter any further. Even if the Declaration had the force of municipal law in Australia, which it does not, no conflict has been shown between its provisions and the decision. I agree with what is said on this subject by Northrop and Wilcox JJ. in the decision under appeal.

In the result I would allow the appeal.