mother FHEODOLINA HYAWITH KIOA) v MINISTER OF STATE FOR

Federal Court of Australia|1984-07-01|Before: Keely J

ee ele ne en a ee ert ee Lite nme Carne Nee aml Nae et es eee in ete NR Ais nie Ek ee ee ee et er Nm nema mm Rls RNY ete hr AN HF re a

Administrative Law ~- Judicial Review - refusal of temporary and permanent entry permits - deportation of prohibited immigrants - child an Australian citizen - whether child "a person aggrieved" - whether child entitled to natural justice before decisions to deport her parents - whether their

deporation contrary to provisions of Human Rights Commission

into account any relevant matter - relevance of the Human

Rights Commission Act and its schedules to delegate's

decisions - whether duty on delegate to seek information

JASON KIOA, FHEODOLINA HYAWITH KIOA and ELVINA KIOA (as infant who brings this claim through her next friend and

mother FHEODOLINA HYAWITH KIOA) v MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS and the COMMONWEALTH OF

Administrative Decisions (Judicial Review) Act 1977 - ss. 3(4) Ca) Cid; SCi)Ca), Ce), thy, (2) Tb), (3)

CORAM : KEELY J. DATE : 15 MAY, 1984 PLACE : MELBOURNE

Ae Ret eet gy Re ST nr en a i bee ee aren ne caren mo _ -

ELVINA KIOA (an infant who brings this claim through her next friend and mother FHEODOLINA H¥YAWITH KIOA)

AND: MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS and the COMMONWEALTH OF AUSTRALIA

Decisions (Judicial Review) Act (the Judicial Review Act) to

review "a decision" of the firstnamed respondent (the respondent Minister), made on 6 October, 1983 by Mr. L.B. Woodward (the delegate) as a delegate of the respondent Minister. The power of delegation is conferred by s. 66D of

the Migration Act 1958 which provides that "a power so

ce a ee nt es ee at laa ne te ne edn ol acetate hi teat mat nein le eR ete NN Ske it nn ee te

delegated, when exercised by the Gelegate, shal], ..... be deemed to have been exercised by the Minister". The firstnamed applicant's correct name is Isileli Kioa but he gave evidence that in Sydney in October or November 1981 he decided to call himself Jason Kioa to make it easier for

Mr. Gunst, of counsel, appeared for both respondents but

stated that it was not conceded that the secondnamed respondent, Commonwealth of Australia, had correctly been made a respondent to the application. There have been no subinissions on that question and it is not necessary for the

The application, as amended at the hearing without objection, seeks to review "a" decision but then recites in eight paragraphs a number of matters which, as a matter of analysis, identify more than one decision. In my opinion it is clear that the application seeks to review more than one

decision and that those decisions may be summarized as

(a) deport the firstnamed and secondnamed applicants (paras.

TOM puerepernaen enimreenmemegenin mee mete eee Re Ane nan eae me manera ren creer eR RAR, IS IT A HE

(b) refuse to grant to them and their children (presumably

other than the thirdnamed applicant) further temporary

(ca) refuse to grant the firstnamed and secondnamed applicants

(a) refuse to give the firstnamed and secondnamed applicants

(e) refuse to permit the thirdnamed applicant to remain in

was no decision by the Minister or his delegate refusing to permit the thirdnamed applicant to remain in Australia with her parents - although that result would necessarily follow

As to (d), the alleged "decision" to refuse permission to Mr. and Mrs. Kioga to work in Australia was not identified by Mr. Rose who simply stated that there was a complaint, "ancillary" to the complaint regarding the "refusal to extend the visas" of Mr. and Mrs. Kioa, that Mr. Kioa, since his release from detention shortly after his arrest on 25 July, 1983, was not. allowed to undertake work. It was stated in paragraphs 21 and 28(a) of the statement of reasons (set out later) that Mr. Kioa had committed an offence under s. 31B(2) of the Migration Act by taking up

employment after his temporary entry permit had expired.

There was neither evidence nor any submission as to any refusal to permit Mrs. Kioa to work in Australia. In view of the conclusions reached in regard to the other decisions sought to be reviewed by this application it is not necessary to give further consideration to the alleged decision by the

Minister's delegate to refuse to give permission to the

As to the remaining "decisions" ({a), (b) and (c)) the statement of reasons, sought and furnished under s. 13 of

the Judicial Review Act, upon which this case proceeded and

upon which the applicants relied, was furnished in respect of Gecision (a) above i.e. the decision on 6 October, 1983, under s. 18 of the Migration Act to deport the firstnamed and

secondnamed applicants. However, paragraphs 23 to 26 of that

statement of reasons (set out later) show that, in the course of considering whether to order the deportation of the firstnamed and secondnamed applicants, the delegate had considered whether to issue further temporary entry permits to them and decided not to do so (decision (b) above) and that he also decided to refuse to grant permanent entry permits (decision (c) above). Although that latter decision was based upon the fact that Mr.. and Mrs. Kioa were not the holders of temporary entry permits (cf. s. 6A(1){e) of the Migration Act), in the course of his consideration of the

overall matter the delegate also considered whether there

were "strong compassionate or humanitarian grounds for the

grant of" such (permanent) entry permits existed and

In view of the foregoing I consider that there are before the Court three decisions, namely, the decision to Geport Mr. and Mrs. Kioa, the decision to refuse temporary entry permits and the decision to refuse (permanent) entry

1 The applicants are citizens of the Kingdom of Tonga. 2 Isileli Kioa (Mr Kioa) last arrived in

visa as an initial entry student under the auspices of the Australian Development

Assistant Bureau (ADAB). He was granted a temporary entry permit valid for 3 months only.

3 Fheodolina Kioa (Mrs Kioa) arrived in Australia on 7 November 1981 with her daughter Elitisi as the spouse and child of a student (Mr Kioa). They were granted temporary entry permits valid until 31 March 1982.

4 The applicants have a second daughter born 14 November 1982 in Australia and who is thus an Australian citizen. Mr. Kioa's parents and 5 siblings reside in Tonga. Mrs. Kioa's father resides in the U.S.A.

5 Mr Kioa was accepted into and attended a 3 month training course at the International Training Institute (ITI) under the auspices of ADAB from 3 September 1981 until 7 December

ne er nl Re cane we Levee ete et eee te ae Rr A ae ee ema

He took up this award on 8 September
At the time he was formally engaged as a

Public Relations and Information Officer with the Tongan Tourist Office (1978-1981).

Tongan employer and was not expected to resume duties until early April 1982. He decided to spend that extra time in Australia. He was

booked to return home with his family on 31 March 1982.

On 8 December 1981 Mr. Kioa's temporary entry permit expired and no further entry permit has been issued to him since.

On 15 December 1981 Mr. Kioa approached the Melbourne Regional Office of the Department with a view to applying for an extension of his temporary entry permit. He exhibited departure tickets as follows :

a) Melbourne-Auckland Qf£71 on 31 March 1982 b) Auckland-Tonga TEO72 on 1 April 1982.

The application for further temporary entry permit was not processed at the time as ;

a) no record of his particulars were held in the Melbourne Regional Office;

b) it was necessary for the Department to liaise with Sydney Regional Office and Tonga to obtain particulars and visa details;

c) no evidence was provided at that time by Mr Kioa that he had satisfactory funds to tide him over.

Mr Kioa was informed at the time that the Department would communicate with him once particulars were to hand and that he would be given an extended visitor's temporary entry permit if application was approved and fee of $30 paid. Mr Kioa informed the Department that he intended to reside with his sister and brother-in-law in Box Hill, Melbourne and had no plans to return to Sydney. He left a contact address and telephone number.

No action was taken by the Department to communicate with Mr Kioa until 14 April 1982 when a telephone call to his last known address elicited the response (twice) that he had returned to Tonga. The delay was caused by the

Oe et ered tet ee ee Nees eR nt A tee A A LN Te ae NR ee

need to obtain all the necessary documents, including the views of his training authority (ITI) and his employer. As the Department was aware of a return booking for 31 March 1982, given this information of Mr Kioa's return to Tonga there was no apparent need to formally respond to the application for further temporary permit.

No approach was made by Mr Kioa to the Department following 15 December 1981.

Mr Kioa commenced employment with Heslop Diecasters of Bulleen, Victoria as a machine operator in March 1982.

At about this time he formally resigned from his position in Tonga.

On 31 March 1982 Mrs. Kioa's temporary entry permit expired and no further entry permit has been granted to her since.

Mr Kioa had made several earlier visits to Australia from 1975 onwards whilst working with the Tongan Tourist Office.

Mr. Kioa was apprehended at his place of work on 25 July 1983 and was subsequently released from custody on 5 August 1983. He was placed on daily reporting conditions.

Mr. Kioa was interviewed on 27 July 1983 and stated that inter alia :

a) he had undertaken a management course (public relations) at ITI in Australia in 1979; _

Tonga in March 1982; as a consequence his family had advised that he remain in

Australia for the purpose of sending money home to them;

representative on the executive council of the Tongan Christian Fellowship (Uniting Church) with particular responsibilities towards Tongan youth and illegal immigrants in Australia;

e) he and his immediate family have established a life for themselves here,

and desire to remain; their daughter attends Kindergarten and speaks English;

£) he has lost his chance of obtaining employment in Tonga;

g) he has a good job and his employer (Heslop Diecasters) want him to continue;

h) he is able to assist his family in Tonga financially if he remains;

i) he has cash assets of $500 and a car bought for $2700 8 months previously

17 (sic) Mrs Kioa was interviewed 26 July 1983 and Stated that she was a secretary for 1 year in Tonga,

had not worked in Australia and wished to leave all decisions to her husband.

18 In the absence of any contrary information provided by the Department I accepted these assertions of both applicants, except those contained in paragraph 16(£), as valid for the purpose of my decision. In the absence of any reliable and balanced information, particularly from Tongan sources, I was unable to make a specific

finding on the assertion in paragraph 16(f£). In any event even if it were true it, per se, would not be accorded. much weight. (Note : It was common

ground before the Court that the two references in this paragraph to paragraph 16(f) were intended to refer to paragraph 17(f))._

19 Mr Kioa was formally advised in writing on 12 September 1983 of the refusal to grant a further

temporary entry permit applied for on 15 December 1981.

20 I made a finding that as Mr Kioa had in fact remained in Australia for the extended period applied for, albeit without permit, the inability of the Department to formally process and decide the application during the relevant period is not a

relevant matter for consideration in the applicant's case at this time.

21 Mr Kioa committed an offence pursuant to section 31B(2) of the Act by engaging in employment without written permission.

Le eel a trl Sl He aan etal athe Sree et ieee hehe seer tee!

B The evidence or other material on which my findings are based

22 In making the above findings the material before me was as follows:

a) a departmental submission under signature of A.E. Faubel, Director, Enforcement Section, dated 6 October 1983;

b) letter from Students Section, Melbourne Regional Office to applicant dated 12 September 1983;

c) notes of interview report with Mr Kioa on 27 July 1983;

Minister for Immigration and Ethnic Affairs (the Minister) from Ian J. Heslop;

e) letter from Legal Aid Commission of Victoria dated 26 July 1983 addressed to the Minister;

£) letter from Tongan Christian Fellowship dated 26 July 1983;

g) letter of support from fellow employees of Mr Kioa containing 27 signatories dated 25 July

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

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.

23 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.

24 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.

25 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.

26 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.

27 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 ain all the circumstances there were no strong humanitarian or compassionate grounds for the grant to them of (permanent) entry permits.

(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.

student visitor to return home at the completion of his studies or permitted stay.

29 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 27 above, but decided that their expuision 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

out in that statement of reasons except for that part of the first sentence of paragraph 11 which stated that "... a telephone call to his (Mr. Kioa'ts) last known address elicited the response (twice) that he had returned to Tonga". Mr. Rose pointed out that that was a misstatement. On 15 December, 1981, Mr. Kioa had shown to Departmental officers in Melbourne airline tickets for him to fly from Australia to Tonga. The departmental "recommendation" to the delegate stated that on 14 April, 1982 the Departmental officer who made the telephone call to Mr. Kioa's last known address was told by "the occupant that he (Mr. Kioa) was believed to have returned to Tonga". The response to a telephone call in October 1982 was that Mr. Kioa had returned to Sydney and it was not known whether he had returned to Tonga. Having regard to its immediate context and to the fact that it is not referred to expressly or by implication in Part "C. The reasons for the decision" of the statement of reasons, I do

not regard the misstatement in paragraph 11 as affording any

It was common ground that Mr. and Mrs. Kioa were each "aggrieved by" the decision within the meaning of s. 5(1) of the Judicial Review Act but it was submitted by Mr. Gunst that the thirdnamed applicant was not "a person ..

Section 3(4)(a)(i) of that Act provides that "a person aggrieved" includes a reference "to a person whose interests "are adversely affected by the decision". The thirdnamed applicant was born on 14 November, 1982 in

Australia and it was common ground that she thereby became an

Australian citizen by virtue of s. 10 of the Australian

Court in Attorney General for New South Wales v Brewery

Employees Union (1908) 6 C.L.R. 469, and to passages in

decisions of the Victorian Supreme Court, being those of

Fullagar J. in Denby v Stott [1947] V.L.R. 462, Lowe J. in

Johnston v Hicks [1948] V.L.R. 213, and Dean J. in Edgerton v

Middleton [1953] V.L.R. 191. On the basis of the statements in those cases he submitted that the thirdnamed applicant had no right or interest which was adversely affected by the

deportation order. He submitted that the deportation of her parents, per se, did not deprive the child of her rights as an Australian citizen: those rights would subsist

irrespective of whether she left Australia with her parents.

However, the thirdnamed applicant was less than one

year old on 6 October, 1983 when the deportation order was

made and Mr. Gunst accepted that "as a matter of practice,

eee She probably will leave the country ... it would be in

her best interests to do so rather than remain here in the

ire on eee tt ap per ee ee Se er ne cert ee ee = a tee ene me

custody of the Statc". In addition the departmental "recommendation" to the delegate said "Their children are to accompany them at Commonwealth expense". During the present hearing it was common ground not only that the delegate assumed that the thirdnamed applicant would accompany her parents if they were deported from Australia but also that he

applicant was a "person aggrieved", Mr. Rose relied upon the

judgment of Ellicott J. in Tooheys Ltd. v Minister for

Business and Consumer Affairs [1981) 36 ALR 64 at 79 where

"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are Clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained ef beyond that which he or-she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct."

He submitted that the thirdnamed applicant's rights were adversely affected by the deportation order signed in respect

of her parents in that she would be thereby deprived of her right to enjoy at the same time both an upbringing by her parents and all her rights incidental to Australian

In response to that submission, Mr. Gunst conceded that the analysis by Ellicott J. in Tooheys case (supra) gave a very wide meaning to the expression "a person aggrieved". However, he pointed out the difficulties involved in drawing

a line between those persons who are aggrieved and those who

are not, referrring to various relationships which might exist between deportees and potential applicants claiming to be "aggrieved". He invited the Court to consider various hypothetical cases including the question whether a person "who drew psychological and perhaps financial support from a deportee who was his cousin" would be a person aggrieved by the deportation order. However, I agree with the statement by Ellicott J. in the above passage that "It is unnecessary and undesirable to discuss the full import of the phrase".

I adopt, with respect, the analysis of the expression "a person aggrieved" made by Ellicott J. in Tooheys case (supra)

which has been accepted by Franki J. in Safadi v Minister for

Immigration and Ethnic Affairs (1981) 38 ALR 399 at p. 403

and by Bowen C.J. and Franki J. in Rice-Growers Co-operative

Mills Ltd. v Bannerman (1981) 38 ALR 535 at 539-540.

ep mee ee Pe nee ee Rr Yt ec a - w - - ea eee ee me ee

rare rr penernerrerrnnrren nian RP RS ear a So en eo RE tr nearer et oh ma eg

In her affidavit Mrs. Kioa stated that she believed that "it would be in the thirdnamed applicant's interests to remain in Australia of which country she is a citizen and that she would be economically, socially and educationally disadvantaged if she was forced to return to Tonga". That evidence was not challenged in cross-examination although Mr. Gunst pointed out in his final address that the statement was

only evidence of Mrs. Kioa's belief and not evidence of the

view of the parties that the thirdnamed applicant would leave

Australia with her parents if they were deported, in my

opinion the thirdnamed applicant is "a person whose interests

are adversely affected by the decision" (s. 3(4)(a)(i)) and,

therefore, is "a person aggrieved" within the meaning of the

The application as amended contains 17 grounds but they represent three main submissions. Firstly, it was submitted that the respondent Minister had failed to observe the principles of natural justice in making the decisions. This submission was not pressed in so far as it related to the firstnamed and secondnamed applicants, Mr. Rose referring to the decision of the Full High Court in Salemi v Mackelliar

obliged to accord natural justice to the thirdnamed applicant either before making the decision to sign the order for the deportation of her parents "or, alternatively, once a decision was made he should have reconsidered his decision een The duty to accord natural justice is a duty which arises before the decision sought to be reviewed is made; the alternative submission that a duty arose after the decision appears to confuse the concept of the duty to accord natural justice with the concept of the standing required of an

applicant under the Judicial Review Act, embodied in the

1983, from the Legal Aid Commission of Victoria had been sent to the respondent Minister and it referred expressly to the

"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."

However, Mr. Rose pointed out that the letter had not been sent on behalf of the thirdnamed applicant ~- who was then

eight months old. He submitted that the Minister had a duty

AO arte rent mere ewe en ee ee ares ee Se en nt ee ee ope Pe ? *

in law "to allow the child (i.e. as distinct from the Legal

Aid Commission) to have the opportunity to have representations made on its behalf" - at least by letter and

that it might be necessary for the Minister "to make further

enquiries or allow the child a further right to be heard".

The basis of this submission on behalf of the thirdnamed applicant was that she had a special interest and was in a position different from her parents in that she was an Australian citizen who had a right to remain in Australia and an expectation that she would enjoy the benefits incidental to her citizenship, which right and expectation she 'would lose if her parents were deported from Australia - because of the practical necessity for her to accompany them. It was said that the decision adversely affected both her right to remain in Australia and her expectations as to incidental benefits and therefore she was entitled to be

As to the contention that the thirdnamed applicant possesses, as a citizen of Australia by birth, "a right to remain in Australia", presumably in the sense of being immune from deportation under immigration laws (cp. the terms of s. 19 of the Migration Act which was not the subject of any submissions), it should be noted that the delegate in exercising the power under s. 18 was not purporting to

deprive the thirdnamed applicant of any such right. If the

thirdnamed applicant leaves this country with her parents it

will not be by reason of the legal effect of the deportation order made under s. 18; rather it will be as a result of her dependency upon her parents. Had they voluntarily returned to Tonga, whether taking her with them or not, that action

would not constitute an interference with her rights as an Australian citizen. Similarly, the enforcement of the deportation order against her parents, if it leads to her departure from Australia, will not constitute an interference

with any right she possesses as an Australian citizen.

to remairi in Australia and an "expectation" that she would enjoy the benefits incidental to living in Australia - and even if one adds "with her parents" - in my opinion the delegate would not be required, in relation to the proposed exercise of the power under s. 18 to deport her parents, to hear the thirdnamed applicant,~-as she, unlike her parents, is not a person subject to the proposed order. Io am not persuaded that any basis exists in law for a departure from the conclusion expressed by the High Court in Salemi (supra)

and later affirmed in R. v Mackellar; ex Parte Ratu (1977)

137 C.L.R. 461 as to the absence of an obligation upon the

Minister to accord natural justice when exercising the power

re een tree ere ten eee I ay eee 8 ere ten ee ee Re mere en ee toe nn er eee

FN rt Re een nin aoe eee ene em se. -- wee pene ne Rare een nnememann marmnenes Sey

The second major submission on behalf of the applicant was a contention that the decision "was contrary to the provisions of the Human Rights Commission Act 1981 and more particularly the rights of the child specified in Schedule 2 of that Act". Under this ground it was submitted that the schedules to the Human Rights Commission Act were and are part of the municipal law of Australia, Mr. Rose saying that "the only way that this Act can have any meaning

and can get to its intent as expressed in the preamble is if

they (the schedules) are taken as being part of municipal

That submission cannot be upheld having regard to the wording of the Act itself and to the authorities. The Act itself, in my opinion, plainly contemplates that from time to time there will be in existence Acts of the Commonwealth Parliament which fail to conform with the

principles enunciated in Schedules 2, 3 and 4 to the Human

Rights Commission Act which set out the English text of

certain Declarations, proclaimed by the General Assembly of the United Nations, including "the Declaration of the Rights of the Child". Section 16 refers to an examination by the Human Rights Commission of both existing and proposed legislation. Where it does so the Commission is under a duty to "include in its report to the Minister relating to the results of the examination any recommendations by the

At a glance

Court

Decision date

Before

Source

Judgment (291 paragraphs)

Parties

Cases Cited (5)