Kioa v Minister for Immigration & Ethnic Affairs [1984] FCA 489

Kioa v Minister for Immigration & Ethnic Affairs [1984] FCA 489

The delegate considered all material circumstances, including the Australian citizenship of the child. The Human Rights Commission Act 1981 does not alter the operation or powers conferred by the Migration Act 1958 or require explicit reference to the international instruments listed therein. The rules of natural justice do not apply to decisions under ss.6, 7, and 18 of the Migration Act (other than in exceptional cases, which did not arise). The appeal is dismissed.

Parties
First Appellant: Jason Kioa; Second Appellant: Theodolina Hyawith Kioa; Third Appellant: Elvina Kioa (an infant, by her next friend and mother Theodolina Hyawith Kioa); First Respondent: The Honourable Stewart John West, Minister of State for Immigration and Ethnic Affairs; Second Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
03 October 1984
Procedural Posture
Judicial Review / Appeal From Single Judge to Full Court of the Federal Court of Australia
Outcome
Appeals dismissed
Legal Topics
Deportation of Non Citizens, Principles of Natural Justice, Consideration of Best Interests of Child, Relevance of International Human Rights Instruments, Administrative Review
Migration Law Administrative Law Deportation of Non Citizens Principles of Natural Justice Consideration of Best Interests of Child Relevance of International Human Rights Instruments Administrative Review

Case Brief

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Parties

Jason Kioa

First Appellant

Theodolina Hyawith Kioa

Second Appellant

Elvina Kioa (an infant, by her next friend and mother Theodolina Hyawith Kioa)

Third Appellant

The Honourable Stewart John West, Minister of State for Immigration and Ethnic Affairs

First Respondent

Commonwealth of Australia

Second Respondent

Procedural Posture

Judicial Review / Appeal From Single Judge to Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether the delegate failed to consider the effect on an Australian citizen child of deporting her non-citizen parents
  2. 2 Whether the Human Rights Commission Act 1981 required the delegate to conform to international human rights instruments when making migration decisions
  3. 3 Whether the rules of natural justice applied and were breached by failure to put adverse material to the applicants

Ratio Decidendi

The delegate considered all material circumstances, including the Australian citizenship of the child. The Human Rights Commission Act 1981 does not alter the operation or powers conferred by the Migration Act 1958 or require explicit reference to the international instruments listed therein. The rules of natural justice do not apply to decisions under ss.6, 7, and 18 of the Migration Act (other than in exceptional cases, which did not arise). The appeal is dismissed.

Court Disposition

Appeals dismissed

Orders

  • Each appeal is dismissed.
  • The first and second appellants to pay the respondent's costs of their respective appeals.