Kioa v West

159 CLR 550

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(Judgment by: DEANE 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:
DEANE J

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

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

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

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

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

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

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

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

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