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Kioa v West (1985) 159 CLR 550

Brennan J, Deane J, Gibbs J, Mason J, Wilson J


Administrative Law - Procedural fairness - Opportunity to respond - Ministerial powers - Deportation


Facts: The facts of the case of Kioa v West (1985) 159 CLR 550 is a case that concerns a Tongan family who arrived in Australia. More specifically, two parents alongside their young daughter. The parents entered Australia on two temporary entry permits. Unfortunately, their visas expired during their stay, and the father moved to Victoria - to support his relatives impacted by a natural disaster. Whilst Mr Kioa resumed work in Victoria, he and his wife applied to renew their visa status. Despite his daughter attaining Australian citizenship, Mr Kioa was unexpectedly arrested due to allegations that he was deliberately evading Australian Immigration laws. The arrest was facilitated by the Minister's delegate concerning the deportation of Mr Kioa and his spouse. Since Mr Kioa and his wife were not aware of this allegation and didn't have time to contest the allegation that they breached Australian Immigration laws, they fought the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to the Federal Court and sequentially, the High Court of Australia.


Law: “The fundamental rule is that a statutory authority having the power to affect the rights of a person is bound to hear him before exercising the power (Twist v. Randwick Municipal Council ; Heatley v. Tasmanian Racing and Gaming Commission. The application of the rules is not limited to cases where the exercise of [the] power affects rights in the strict sense. It extends to the exercise of a power that affects an interest or a privilege (Banks v. Transport Regulation Board) or [which] deprives a person of a ‘legitimate expectation,' to borrow the expression of Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs, in circumstances where it would not be fair to deprive him of that expectation without a hearing (Salemi v MacKellar [No. 2]).”


Furthermore, '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; Salemi [No. 2]; Ratu; Heatley v Tasmanian Racing and Gaming Commission; F.A.I. Insurances Ltd. v Winneke; Annamunthodo v Oilfields Workers' Trade Union.


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.


Holding: The High Court held since the delegate did not inform Mr Kioa of the allegations against him prior to his arrest, it was a violation of procedural fairness. To make matters worse, it was also held to be a breach of natural justice.



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