Case name: Kioa v West
Full title: Kioa and Others v Minister for Immigration and Ethnic Affairs and Another Citation: (1985) 159 CLR 550; [1985] HCA 81 Court: High Court of Australia
Decided: 18 December 1985
Bench: Gibbs CJ, Mason, Wilson, Brennan and Deane JJ
AustLII link: http://www.austlii.edu.au/au/cases/cth/HCA/1985/81.html
Area of law: Administrative law, natural justice and procedural fairness, deportation decisions.
Facts
Mr and Mrs Kioa, citizens of Tonga, entered Australia in 1981 on temporary entry permits, together with their daughter. Their permits expired during their stay. Mr Kioa moved to Victoria to support relatives affected by a natural disaster back in Tonga, and the Department of Immigration and Ethnic Affairs lost contact with the family, eventually assuming they had left Australia. In fact they had remained, Mr Kioa had continued working, and the couple had a second child, an Australian citizen by birth. Around fifteen months after their permits expired, Mr Kioa was arrested as a prohibited immigrant. Before a decision was made on whether to order the family’s deportation, a departmental officer prepared a submission for the Minister’s delegate containing an allegation about Mr Kioa’s alleged involvement with other people seeking to circumvent immigration law. That allegation was never disclosed to the Kioas, and they were not given a chance to respond to it before the delegate decided to order their deportation.
Procedural history
The matter had earlier been before the Federal Court, reported as Kioa v West (1984) 6 ALN N21, before reaching the High Court. The High Court’s 1985 decision is final; there was no further appeal, the High Court being Australia’s apex court and this being the end of that litigation.
Issues
- Whether the Administrative Decisions (Judicial Review) Act 1977 (Cth) itself imposed an obligation to observe natural justice in exercising a statutory power.
- Whether the general law of natural justice applied to the delegate’s decision to deport the Kioas.
- Whether failing to disclose the adverse departmental allegation, and failing to give the Kioas an opportunity to respond to it, amounted to a denial of procedural fairness.
Holding
- Unanimously (5:0), the Court held the ADJR Act does not itself oblige a decision-maker to observe natural justice; that obligation, where it exists, arises from the general law.
- By majority (Mason, Wilson, Brennan and Deane JJ; Gibbs CJ dissenting on this point), the Court held the rules of natural justice did apply to the decision to deport a prohibited immigrant.
- By the same majority, the Court held the failure to disclose the adverse allegation and give the Kioas a chance to answer it was a failure to afford procedural fairness. The deportation order was set aside.
- On a separate question, three justices (Gibbs CJ, Wilson and Brennan JJ) considered whether international instruments, the Covenant on Civil and Political Rights and a related Declaration, created binding obligations, and held they did not, though there was an obligation to have regard to general humanitarian principles.
The key formulation (Mason J)
Mason J’s judgment supplied the test most often cited since. He held that natural justice, or procedural fairness, is required where a decision affects rights, interests or legitimate expectations, in a direct and immediate way. Where it applies, someone likely to be adversely affected must be told the substance of adverse information that is credible, relevant and significant to the decision, and given a genuine chance to respond before the decision is made.
Standing today
Kioa v West remains good law and is still taught and cited as foundational in Australian administrative law. Its core holding, that procedural fairness attaches to administrative decisions directly and immediately affecting rights or interests, has not been overturned. One part of it has been refined by later authority: the “legitimate expectation” limb has been treated more cautiously since Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, where the High Court questioned how much independent work that category does, tending to fold it back into the more direct question of whether rights or interests are affected. The core disclosure-and-opportunity-to-respond principle from Kioa, however, remains standing and is routinely applied.
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