Кіоа і Уэст ісі: Әкімшілік шешімдерде әділеттілік және процедуралық теңдік

Judgement of the High Court of Australia

Kioa v West, was a notable case decided in the High Court of Australia regarding the extent and requirements of natural justice and procedural fairness in administrative decision making. The case was also a significant factor in Australia's subsequently limiting what had previously been completely unrestricted jus soli now only to children born to an Australian citizen or permanent resident.

Mr and Mrs Kioa, who were both from Tonga, entered Australia on temporary entry permits in late 1981. When their permits expired they changed their address without informing authorities. Mr Kioa worked in Victoria until he was arrested as a prohibited immigrant in 1983. In the intervening period the Kioas had a daughter, who by virtue of her birth in Australia, was an Australian citizen. Mr Kioa explained that he overstayed his permit in order to earn money to send home to relatives who were suffering as a result of a cyclone in Tonga. In October 1983, a delegate of the Minister for Immigration and Ethnic Affairs made a decision that the Kioas should be deported. In arriving at that decision the delegate took into account a departmental submission which, inter alia, submitted that Mr Kioa had been actively involved with people who were seeking to circumvent Australia's immigration laws. The Kioas unsuccessfully appealed the decision to the Federal Court, and the Full Federal Court. They then appealed to the High Court.

The full court of the Federal Court held that the principles of natural justice did not apply to the decision to deport a person under the Migration Act and there was no evidence that the delegate had failed to take into account the interests of the Kioas' child. It was further held that the provisions of the Covenant and Declaration did not form part of Australian domestic law and were not required to be taken into account. Although the court did not accept the argument made in Kioa that, as an Australian citizen, the child was entitled to natural justice, the government nevertheless amended the Act to ensure that this line of argument was not used in future cases.