Kioa v West

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.[2] 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,[3] and the Full Federal Court.[4] They then appealed to the High Court.

The Kioas' principal argument was that the decision maker had failed to afford them procedural fairness in not disclosing and allowing an opportunity to respond to the adverse allegations made in the departmental submission.

They further argued that the delegate had wrongly failed to take into account:

• the detrimental effect the decision may have on their child; and
• the provisions of the International Covenant on Civil and Political Rights and the Declaration of the Rights of the Child.

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.[4]

The decision in Kioa marked a watershed in Australian administrative law. It radically increased the number of decisions to which natural justice and procedural fairness applied such that, today, the question is often not whether procedural fairness should be afforded but to what extent it should be afforded.

The Australia Citizenship Act 1948 was amended in 1986, heavily limiting jus soli and replacing it with jus sanguinis. After this change, birthright citizenship was available only if at least one parent was an Australian citizen or permanent resident; or else after living the first ten years of their life in Australia, regardless of their parent's citizenship status. This amendment was in part influenced by Kioa v West, and the perception that jus soli was being abused.[5] 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.[6]