FEDERAL COURT OF AUSTRALIA

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs as agreed or assessed.

3.    The parties are to advise within seven days of any further orders necessary to give effect to these reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

McKERRACHER J:

1    I have had the considerable benefit of reading Justice Perry’s draft reasons for judgment. I agree with her Honour’s reasons and proposed orders.

Associate:

Dated:    21 June 2018

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

2    This is an appeal from a single judge of this Court on remittal from the High Court under s 44 of the Judiciary Act 1903 (Cth) (Judiciary Act): Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] HCATrans 98 (S111/2017 (HCA)); Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813 (S111/2017 (FCA)). The primary judge rejected the appellant’s application for relief to prohibit the respondent, the Minister for Immigration and Border Protection (the Minister), from exercising his discretion to refuse the appellant a protection visa on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act) or Public Interest Criterion 4001 (PIC4001) of Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations).

3    The appeal alleges that the primary judge erred in answering the following questions adversely to the appellant.

(1)    Was there a denial of procedural fairness in the Minister’s alleged failure to inform the appellant when he applied for a protection visa what he might expect by way of an assessment process and, as an aspect of this, was the Minister required to afford the appellant the opportunity to be heard on those matters at that time?

(2)    Was the Minister’s decision not to exercise his discretion under s 501(1) of the Act or PIC4001 at the outset of considering the appellant’s application legally unreasonable?

(3)    Is the Minister estopped from exercising his discretion under s 501(1) of the Act and PIC4001 to refuse to grant the appellant a protection visa?

4    While the grounds refer to PIC4001, for reasons I later explain this Court does not have jurisdiction to make orders relating to the Minister’s possible (future) consideration of PIC4001. I also note that ground 4 of the notice of appeal which raised a constitutional challenge to the exercise of discretion under s 501(1) of the Act was abandoned by the appellant before the hearing but after written submissions in chief by both parties had been filed and served.

5    Finally, the question was raised in arguendo at the hearing as to the Court’s jurisdiction to entertain the matter. In submissions filed pursuant to leave granted at the hearing of the appeal, the appellant alleged for the first time that no court other than the Federal Circuit Court of Australia has jurisdiction to hear the appellant’s claims and that the remittal of the proceedings by the High Court of Australia was a “nullity”. This amounts to an impermissible collateral attack on the High Court’s order remitting the matter to the Federal Court and is, in any event, without merit.

6    For the reasons set out below, the appeal must be dismissed.

2.    STATUTORY REGIME

7    The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4(1)). It is not in dispute that the appellant is a non-citizen. The object in s 4(1) is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia.

8    A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, absent which the non-citizen is an unlawful non-citizen (s 13(1) and s 14(1) of the Act). Subject to the Act, the Minister may grant a non-citizen a visa under s 29(1). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Minister must grant a visa if satisfied that the criteria are met including, relevantly, in the case of a protection visa, that:

(1)    the health criteria have been satisfied (s 65(1)(a)(i));

(2)    the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee or a person to whom Australia owes complementary protection obligations (ss 36(2)(a) and (aa), and s 65(1)(a)(ii));

(3)    the applicant has satisfied any other relevant criteria prescribed by the Act or by regulation for the purposes of s 31 (s 35A(6) and s 65(1)(a)(ii)); and

(4)    the grant of the visa is not prevented relevantly by s 501 of the Act (s 65(1)(iii)).

9    If the Minister is not satisfied that any one of these criteria are met, the Minister must refuse to grant the visa by virtue of s 65(1)(a) and (b) of the Act. It follows that a finding that an applicant is a refugee within s 36(2)(a) or satisfies s 36(2)(aa) does not automatically entitle the applicant to a protection visa.

10    Turning then to the last of the criteria identified above, s 501(1) of the Act provides that:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

11    Section 501(6)(a) of the Act provides that a person does not pass the character test if that person has a substantial criminal record as defined by subs (7) including, relevantly, where the person has been sentenced to a term of imprisonment of 12 months or more.

12    The Minister may exercise the discretion conferred by s 501(1) personally, or by her or his delegate.

13    In addition, regulations prescribing health criteria to be satisfied at the time of the decision are contained in cl 866.22 of Sch 2 to the Regulations. Furthermore, PIC4001(a) and (d) in Sch 4 to the Regulations require that the person satisfy the Minister that she or he passes the character test or the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test. As such, while conceptually untidy, PIC4001(a) “expresses no more than the requirements of s 501(1) of the Act”: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [431]. Logically, however, where an issue arises as to whether a visa should be refused under s 501, a decision to grant a protection visa can be made under s 65 only after a decision has been made not to refuse the visa under s 501(1). This does not, of course, mean that the Minister or his Department might not undertake conduct preparatory to making a decision under s 65 before a decision is made under s 501. Nor does it mean that the Minister might not refuse to grant a visa under s 65 in cases where s 501 is potentially an issue without it being necessary ultimately to make a decision under s 501. In other words, the visa application might be refused on other grounds.

14    Finally, s 198(6) of the Act imposes an obligation on an officer to remove as soon as reasonably practicable, an unlawful non-citizen:

(1)    who is a detainee;

(2)    who has made a valid application for a visa that can be granted while the applicant is in the migration zone;

(3)    where the visa cannot be granted; and

(4)    where another valid application for a visa that can be granted has not been made.

15    Section 197C of the Act provides that:

(1)      For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)      An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

16    The appellant contends that he falls within the combined effect of these provisions, namely, that:

(1)    he is an unlawful non-citizen in detention;

(2)    he does not pass the character test;

(3)    he has been assessed according to law to be a refugee;

(4)    however, if the Minister is permitted to exercise his discretion under s 501(1) of the Act adversely to the appellant by refusing him a protection visa, then the appellant falls within s 198(6) and s 197C(1) and must be removed from Australia.

3.    BACKGROUND

3.1    The application for a protection visa

17    The background facts are not in issue. The following summary is taken from the reasons in S111/2017 (HCA) and of the primary judge in S111/2017 (FCA). I note that the appellant relied upon, and did not supplement, the evidence on which he had relied in the High Court: S111/2017 (FCA) at [8]. I also note that in summarising the appellant’s claims, I have been mindful of the need to avoid details by reference to which his identity might inadvertently be disclosed. For this reason, his claims are summarised at a general level only.

18    The appellant was born in Bangladesh in the mid-1980’s and arrived in Australia a few years later with his father. He married his Australian wife in 2012 and has a young child.

19    In 2005 and 2008 the appellant was convicted of aggravated robbery and sentenced to imprisonment for terms of four and five years respectively. The appellant conceded that as a result, he has a substantial criminal record within the meaning of s 501(7) of the Act and therefore by virtue of s 501(6)(a) does not pass the character test: S111/2017 (FCA) at [20]. The appellant was also convicted in 2012 of a variety of driving offences, including drink driving and obstructing and/or resisting a public official.

20    In 2008 the appellant applied for a business visa. That application was rejected on the basis that he did not pass the character test in s 501 of the Act. An application by the appellant for a spouse visa in 2012 was also refused under s 501.

21    Finally, in September 2015 the appellant applied for a protection visa. The primary judge found that “[t]he sequence of decision-making, both by the delegate and thereafter by the Administrative Appeals Tribunal, remains a little uncertain”: S111/2017 (FCA) at [13]. His Honour also referred to the lack of evidence on the steps taken with respect to that application before the appellant received notification of the intention to consider refusal of the visa under s 501(1):

14    A copy of the application [for a protection visa] made in September 2015, together with any materials or submissions which may have been forwarded with that application, were not before this Court. There was, accordingly, no evidence as to whether or not the Applicant then expressly addressed his prior criminal history and put forward that issue as an issue in need of resolution. Certainly, no reliance was placed before this Court upon any part of the documents that may have formed part of that application as a basis upon which the Minister or his officers were then called upon to address and resolve the potential application of s 501 of the Migration Act. Nor were a copy of the Tribunal’s reasons for decision on either the first or second occasion made available to the Court.

22    However, the primary judge found that it would appear that a delegate of the Minister refused the application on the basis that the appellant was not a refugee under s 36(2)(a) of the Act. While that decision was affirmed by the Administrative Appeals Tribunal (the Tribunal), the Tribunal’s decision was quashed by the Federal Circuit Court and the matter was then remitted to the Tribunal for reconsideration. The reconstituted Tribunal was satisfied that the appellant was a refugee and remitted the application to the Minister for consideration with a direction that the criterion for the grant of a visa under s 36(2)(a) of the Act had been satisfied. It was only at this stage that the Minister notified the appellant of his intention to consider refusal of the protection visa application under s 501(1) by letter dated 4 April 2017 (the s 501(1) letter). That letter enclosed documents held by the Department of Immigration and Border Protection (the Department). The letter also explained that the decision-maker may rely upon those documents to determine whether or not the appellant passed the character test and if not, whether the application for a protection visa should be refused. The letter invited the appellant to comment or provide information on both of these issues.

23    Following receipt of the s 501(1) letter, the appellant applied for relief in the original jurisdiction of the High Court.

3.2    Dismissal of the application for interlocutory relief in the High Court

24    On 9 May 2017, Edelman J dismissed the appellant’s application for an interlocutory injunction and a writ of habeas corpus in S111/2017 (HCA). The appellant sought to restrain the Minister “from exercising his discretion pursuant to s 501(1) of the Migration Act 1958 (Cth) to refuse the [Applicant’s] application for a protection visa, pending the hearing and final determination of the principal proceedings”. The appellant submitted that his application for interlocutory relief was urgent “because of the applicant’s fear that he would be returned to his country of origin following the exercise of discretion by the Minister prior to the determination of his originating proceeding”: S111/2017 (HCA) at p. 1.

25    Edelman J (at p. 6) considered that the application for interlocutory relief was “premature”, holding that:

…The appropriate time for any application for interlocutory relief to prevent the applicant from being returned to Bangladesh would be after a decision of the Minister were made under s 501(1) if there were a threat that the applicant might be returned prior to the hearing of the matters raised by the applicant. Further, a decision under s 501(1) to refuse to grant a visa might be the subject of review by the Administrative Appeals Tribunal under s 500(1)(b). In those circumstances, the basis for the Minister’s decision would also be assessed in light of the submissions by the applicant to the Administrative Appeals Tribunal.

The premature nature of the application for an interlocutory injunction in this case also means that if it were concluded that there were a serious issue to be tried about the validity of the exercise of the Minister’s discretion then any final assessment of validity would need to take place in circumstances in which the discretion had not been exercised. In contrast, as the applicant’s originating application is currently formulated, and based on counsel’s current submissions, each of the three grounds upon which the applicant relies [i.e., estoppel, legal unreasonableness, and constitutional incompatibility] can at best be described as weak.

26    His Honour refused the application for interim relief and remitted the proceeding to the Federal Court pursuant to s 44 of the Judiciary Act.

3.3    Reasons of the primary judge

27    It was not in issue that the arguments sought to be advanced by the appellant before the primary judge were “much the same as the arguments previously advanced to the High Court”: S111/2017 (FCA) at [23]. Nor, the primary judge found, had the facts changed in any significant way since that time, noting that the Minister had not, as yet, made any decision pursuant to s 501 of the Act: S111/2017 (FCA) at [5]. His Honour found as a consequence that Edelman J’s characterisation of the case sought to be advanced as “weak” remained accurate and that “[t]he present application for final relief is to be dismissed and dismissed for the same reasons as those given by Edelman J”: S111/2017 (FCA) at [5]-[6].

28    First, the appellant contended that by the unconscionable way in which the Minister sought to consider the exercise of his discretion under s 501(1), his conduct induced the appellant to make an assumption to his detriment and that of the Australian taxpayer such that the Minister is estopped from exercising the discretion adversely to the appellant. The primary judge rejected that argument, finding that, even leaving aside the difficulties in the past of accepting that estoppel may operate in public law, no basis for any estoppel had been demonstrated. In particular, there was no express representation that future reliance would not be placed upon s 501 and no clearly expressed basis upon which the appellant could “assume” that the provision may not be relied upon at some future stage (S111/2017 (FCA) at [31]; see also S111/2017 (HCA) at p. 8-9). His Honour also held that the facts fell well short of establishing any deliberate silence, as envisaged by Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (Waltons Stores) at 442-443 (S111/2017 (FCA) at [32]; S111/2017 (HCA) at p. 8). Furthermore, there was no legislative or factual imperative to place reliance upon s 501(1) at the outset or at any particular point in time (S111/2017 (FCA) at [36]; S111/2017 (HCA) at p. 9). The appellant also did not explain how the Minister could simultaneously be held to the alleged representation and subject to the duty to refuse to grant the visa (S111/2017 (FCA) at [38]).

29    Secondly, the appellant alleged that the Minister acted in breach of the requirements of procedural fairness in failing to advise the appellant at the outset of considering his visa application that he may rely in the future upon s 501 and affording the appellant an opportunity to respond. Counsel for the appellant acknowledged below that the three arguments on which he relied “‘all meld in together’ and so could – and should – be cumulatively considered” (S111/2017 (FCA) at [40]). The appellant contended that the obligation of procedural fairness arose especially by reason of the 2008 and 2012 visa application decisions and by reason of s 197C and s 198 of the Act (S111/2017 (FCA) at [41]). The primary judge also rejected that argument holding that:

42.    … The opportunity to be heard in respect to any exercise of power under s 501 arises when consideration is being given to the exercise of that power. And such an opportunity is presently being extended to the Applicant. The letter dated 4 April 2017 expressly stated that the Applicant was being given “an opportunity to comment or provide information on whether you pass the character test”. And there is no reason why all of the arguments now being relied upon by the Applicant cannot be made to the Minister – including, should the Applicant see fit, a submission as to the “unfairness” of now relying upon s 501 where no earlier notice of such an intention has been foreshadowed.

30    Nor did the primary judge accept that the facts constituted legal unreasonableness, holding that:

45.     Although it may readily be accepted that the Minister could have foreshadowed possible reliance upon s 501 at a far earlier stage in the decision-making process, the mere prospect of a different sequence in the administrative decision making process is not sufficient to render the present process of consideration “unreasonable”. And that is so irrespective of whether or not reliance had more expeditiously been placed upon s 501 in 2008 and 2012. Why consideration was then placed upon s 501 at the outset when making decisions in 2008 and 2012 may, perhaps, be more readily understood if the facts of each decision-making process then undertaken had been exposed to scrutiny in the present proceeding. But there was no attempt to expose the decision-making processes in 2008 and 2012 to any degree of scrutiny; the sole fact relied upon by Counsel for the Applicant was that reliance had then been placed upon s 501 at the outset rather than – as in the present case – consideration being given to s 501 at a far later stage in the decision-making process…

31    Finally, the primary judge rejected the argument that there had been a “judicial usurpation by the Executive of the judicial power of the Commonwealth”: S111/2017 (FCA) at [47]-[48]. The challenge to this part of his Honour’s judgment was ultimately not pressed on the appeal.

4.    THE THRESHOLD JURISDICTIONAL ISSUE

4.1    The issue

32    As earlier mentioned, the appellant alleged for the first time in submissions filed after the hearing of the appeal that the remittal of the matter by the High Court to the Federal Court was a “nullity” and that only the High Court and the Federal Circuit Court have jurisdiction to hear his claims. The appellant’s submission is based on the proposition that the matter relates to a decision or purported decision, or conduct preparatory to the making of such a decision, by a delegate of the Minister, whereas the Federal Court has jurisdiction relevantly only if the matter relates to a decision or purported decision, or conduct preparatory to the making of such a decision, by the Minister personally under s 501(1) of the Act. The respondent filed detailed submissions contending that the Court plainly had jurisdiction and that the remittal order was valid.

33    The respondent also submitted that the Federal Court lacked jurisdiction with respect to certain aspects of the appellant’s claim raised by amendments after the matter was remitted to this Court, and lacked power to make an order releasing the appellant from detention as sought in paragraph 2(d) of the orders sought in the amended notice of appeal.

4.2    Alleged lack of jurisdiction with respect to the matter

4.2.1    Collateral attack on High Court order

34    The short answer to the appellant’s submission that the Federal Court lacks jurisdiction to entertain the matter is that the High Court’s order remitting the matter to the Federal Court is not a nullity but is valid and binding unless and until it is set aside: Re Macks; ex parte Saint (2000) 204 CLR 158 at [22]-[23] (Gleeson CJ), [52]-[53] (Gaudron J), [151]-[152] (McHugh J), [215] (Gummow J), [255]-[257] (Kirby J) and [343]-[344] (Hayne and Callinan JJ). As such, this Court is bound by the remittal order and it is not for this Court to determine in effect a collateral attack on the order by the High Court. However, as the matter was fully argued and I consider the argument to be without merit, I would respectfully explain why I hold that view in the interests of promoting the efficient resolution of the matter.

4.2.2    Relevant statutory provisions

35    It was not in issue that the High Court cannot “confer” jurisdiction on the Federal Court through the exercise of a power to remit. Only a law of the Commonwealth Parliament may invest a court with federal jurisdiction. As for example, Heydon, Crennan, and Kiefel JJ held in MZXOT v Minister for Immigration and Citizenship (The Remitter Case) [2008] HCA 28; (2008) 233 CLR 601 at [194], “[a] power to remit must be conditioned upon the basis that a receiving court has jurisdiction in respect of at least the subject matter”: see also The Remitter Case at [41]-[42], [48] and [54] (Gleeson CJ, Gummow and Hayne JJ). As such, it is necessary first to consider the relevant provisions of the Act conferring the power of remittal and jurisdiction on the Federal Court.

36    Section 476B of the Act provides that, subject to subs (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court. Subsection 476B(3) provides that the High Court may remit to the Federal Court a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction relevantly under s 476A(1)(c) of the Act. In turn, s 476(1)(c) provides that:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and Section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

…

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;

…

37    The term “migration decision” is defined in s 5 of the Act to mean:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

38    Subject to exceptions not presently relevant, s 474(2) defines a “privative clause decision” to mean “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act… (whether in the exercise of a discretion or not)”. Such decisions also extend to “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an enquiry or investigation” (s 474(3)(h). In turn, a “purported privative clause decision” is defined in s 5E(1) to mean:

… a decision purportedly made, proposed to be made, or required to be made, under this Act … (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

39    Subs 5E(2) expressly provides that a “decision” includes anything listed in s 474(3) and therefore also conduct preparatory to a decision.

40    It follows that this Court has jurisdiction in the matter under s 476A(1)(c) to the extent to which it relates to a decision or purported decision made personally by the Minister under s 501 of the Act or to conduct preparatory to the making of such a decision.

4.2.3    The matter falls within the jurisdiction conferred on the Federal Court by s 476A(1)(c) of the Act

41    The appellant contends that the Federal Court lacks jurisdiction because the relevant decision was a decision of a delegate of the Minister by an alleged “notice” dated 4 April 2017 to consider refusal of the appellant’s visa application under s 501(1) of the Act. Alternatively, the appellant submits that the relevant decision is the issue by the delegate of the alleged “notice” preparatory to the making of a decision on whether or not to refuse the appellant’s visa application under s 501(1) of the Act. In either case, the appellant submits that the “migration decision” is a decision made by a delegate of the Minister and not a decision made by the Minister personally so as to attract the jurisdiction of the Federal Court under s 476A(1)(c). Accordingly, in the appellant’s submission, the only court to which the High Court could have remitted the matter was the Federal Circuit Court. This is because the Federal Circuit Court is vested by s 476(1) of the Act with the same jurisdiction as the High Court under s 75(v) of the Constitution, subject (relevantly) to an exclusion in s 476(2)(c) of jurisdiction with respect to a privative clause decision or a purported privative clause decision made personally by the Minister under s 501.

42    As I have earlier indicated, I consider those submissions to be without merit.

43    First, from the outset, the appellant has sought relief in respect of the future exercise of the discretion conferred by s 501(1) upon a specified repository, namely, the Minister. As such, the matter is properly characterised as a claim “in relation to” a “migration decision” in respect of which the Federal Court has jurisdiction under s 476A(1)(c).

44    Secondly, as the Minister submits, this is not only “the inevitable consequence of the terms of the statute, [but] is also the manner in which the appellant in fact framed his case”. The application for an order to show cause filed in the High Court on 26 April 2017, the amended pleadings following the remittal, and the notice of appeal have consistently referred to the way in which the Minister, as the sole respondent, has sought to consider the exercise of his discretion under s 501(1) and have relied upon the Minister’s alleged conduct. That focus is also evident in the appellant’s submissions on the substantive issues in the appeal: see below at [50].

45    Thirdly, the appellant’s submission on the jurisdictional issue that the decision he seeks to challenge is an alleged decision by the Minister’s delegate constituted by the s 501(1) letter, is an entirely different claim which is not available on the appellant’s case as it has been pleaded and argued.

46    Finally, while ultimately the Minister may not exercise the power in s 501(1) personally, in my view that cannot affect the characterisation of the claims. In this regard, the appellant has not identified any provision in the Act which confers a separate power on a delegate of the Minister to consider the exercise of the power under s 501(1). Nor is it alleged that a decision has been made that the Minister will not exercise the power under s 501(1) personally such that the Department’s conduct in sending the s 501(1) letter might arguably take its character from that decision: see by analogy Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [54].

4.3    Jurisdiction with respect to the claims raising PIC4001

47    The position with respect to the relief claimed in relation to PIC4001 by the amended application following remittal of the matter to the Federal Court raises different issues. A consideration of whether PIC4001 is satisfied is made only in the context of a decision on whether or not to grant the visa under s 65 of the Act. However, a decision under s 65 of the Act is not one of the decisions in respect of which original jurisdiction is vested in the Federal Court by s 476A(1). As such, neither the primary judge nor the Full Court on appeal has jurisdiction to make the orders sought prohibiting the Minister from exercising his discretion under PIC4001 or quashing a decision to do so.

4.4    No power to order the appellant’s release from immigration detention without a visa

48    Finally, proposed order 2(d) of the notice of appeal seeks an order for the appellant’s release from immigration detention. That issue did not arise below for the reason that the appellant had expressly abandoned his prayer for habeas corpus in his amended application. Further and in any event, no such relief could be granted in the circumstances of this case for the reasons given by Edelman J in S111/2017 (HCA). Ultimately, however, the issue is moot for the reason that none of the grounds of appeal have been established.

5.    CONSIDERATION OF THE SUBSTANTIVE ISSUES ON THE APPEAL

5.1    Did the primary judge err in failing to find a breach of procedural fairness (Ground 1)?

5.1.1    The appellant’s submissions

49    It is not in issue that a failure to comply with the requirements of procedural fairness, where not abrogated by statute, will sound in jurisdictional error: Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [41] (Gaudron and Gummow JJ (Gleeson CJ agreeing)). The appellant contends that the primary judge erred in failing to find that the Minister denied him procedural fairness in that the Minister failed to:

(1)    inform the appellant as to the nature of the assessment process at the time of his application for a protection visa;

(2)    inform the appellant as to why the process would differ from that adopted in relation to other visa applications made by him; and

(3)    afford the appellant an opportunity be heard on those matters.

50    The appellant’s submission as it evolved during the course of the hearing may be summarised as follows.

(1)    When the appellant applied for the protection visa, the Minister decided that he would not consider the exercise of the power under s 501 of the Act until he was satisfied that the appellant was a refugee or entitled to complementary protection and therefore a person to whom Australia owed non-refoulement obligations, and the appellant had satisfied all other criteria for the visa including those relating to health (the “alleged first decision”).

(2)    The Minister was aware, as the person administering the Act, of the various options available to him, including that he might wait until a number of processes were completed and the appellant had established refugee status before considering the exercise of the discretion under s 501 of the Act.

(3)    The Minister knew that to assess first whether protection obligations were owed may require the appellant to go through multiple processes, even though the appellant accepted that the Minister could not have known that there would in fact be five stages (i.e. the decisions by the delegate, the Tribunal, the Federal Circuit Court, the decision on remittal of the Tribunal, and only then, the (as yet unmade) decision on whether to refuse the grant of the visa under s 501).

(4)    If the Minister had disclosed the options to the appellant before making the alleged first decision, the appellant may have been able to make submissions against the Minister adopting the course in fact followed and in favour of an immediate consideration of whether to exercise the power under s 501.

(5)    If successful in those submissions, the appellant would have been able to avoid the time, cost, and anxiety involved in the processes considering his claim to be a refugee, and to avoid 18 further months in detention. If unsuccessful, the appellant would still have proceeded with knowledge of what was ahead or he could have chosen to abandon his claim for a protection visa. As such, the failure to accord the appellant an opportunity to be heard on this issue had adverse consequences for him.

(6)    The obligation upon the Minister to inform the appellant of the different “options” arose given the different approach adopted with respect to his earlier applications for a business visa in 2008 and for a spouse visa in 2012, and by reason of s 197C and s 198 of the Act (see also S111/2017 (FCA) at [41]).

51    In support of the proposition at (1) above, the appellant sought to rely upon paragraph 3.3.2 (character test visa refusal and cancellation) of the Procedures Advice Manual 3 (PAM3) which was received as Exhibit A-1. Paragraph 3.3.2 appeared on the first page of Exhibit A-1. This was, however, an extract from PAM3 in its current form, and not as at the time that the appellant applied for a protection visa. That notwithstanding, it was accepted that the second page of Exhibit A-1 was in the correct form as at the date of the application for a protection visa. Under the heading “Non-refoulement”, PAM3 then recommended that:

If the person is a protection visa applicant who has been referred for possible refusal under s 501, Australia’s non-refoulement obligations will have been assessed as part of the protection visa process and this should have occurred prior to a referral for consideration under s 501.

5.1.2    No breach of procedural fairness has been established

52    No error has been demonstrated in the primary judge’s rejection of the alleged breach of procedural fairness.

53    First, as the Minister submits, this ground rests on the assumption that the Minister knew at the time that the appellant applied for a protection visa, the likely future trajectory of his consideration of the appellant’s application so that he was in a position to inform the appellant of that matter. However, no documents that may have comprised part of his visa application were relied upon by the appellant as a basis on which he alleged that the Minister or his officers were called upon to address and resolve the potential application of s 501: S111/2017 (FCA) at [14]. There was therefore no evidence as to whether or not the appellant addressed his prior criminal history upfront and put that issue forward as requiring resolution (ibid). Nor was there any evidence to suggest that any “decision” had been made by the Minister regarding the possible exercise of the power conferred by s 501 when the appellant applied for a protection visa, including whether that power would be exercised, and if so, at what stage. In this regard, it must be borne in mind that at the start of the visa application assessment, the possibility existed that the question of whether the visa should be refused under s 501 might never be reached because the Minister might decide that the visa had to be refused on other grounds. In other words, it was not inevitable that the Minister would have to consider whether to refuse the visa under s 501. That being so, there was no evidence on the basis of which the primary judge could infer that the Minister had made any decision regarding the possible exercise of the power conferred by s 501 before the s 501(1) letter. This lacuna in the evidence was fatal to the appellant’s case given that the burden lay upon him to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

54    Nor does the appellant’s reliance upon the second page of PAM3 advance his case. While the appellant submitted that it established that the Minister knew the likely trajectory of decision-making, PAM3 does not assist the appellant in establishing that any consideration was given to the possible exercise of power under s 501(1) before the s 501(1) letter was sent. Specifically, PAM3 did not require that a decision-maker assessing a protection visa application consider whether the power under s 501(1) should be exercised before embarking upon a consideration of whether Australia’s non-refoulement obligations are engaged.

55    In these circumstances, as the primary judge held, the duty to afford procedural fairness arose only when, by the s 501(1) letter the Minister gave notice that he was considering an exercise of the power to refuse the visa under s 501. That duty was complied with by reason of the fact that the letter afforded the appellant a reasonable opportunity to answer material or information which might suggest that he should not be granted the visa on character grounds and to present an affirmative case as to why the discretion under s 501 should not be exercised. No more is required in order to comply with procedural fairness, as Gageler and Gordon JJ held by analogy in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [52]. In short, as the primary judge held:

42.     …. The opportunity to be heard in respect to any exercise of power under s 501 arises when consideration is being given to the exercise of that power. And such an opportunity is presently being extended to the Applicant. The letter dated 4 April 2017 expressly stated that the Applicant was being given “an opportunity to comment or provide information on whether you pass the character test”.

56    Moreover, as the primary judge also observed, “there is no reason why all of the arguments now being relied upon by the Applicant cannot be made to the Minister – including, should the Applicant see fit, a submission as to the “unfairness’ of now relying upon s 501 where no earlier notice of such an intention had been foreshadowed.” (at [42]).

57    Secondly, the appellant’s reliance on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) is misplaced. In that case, the High Court held that the Criminal Justice Commission had acted in breach of procedural fairness in tabling in Parliament its report containing adverse recommendations about the appellants. That breach lay in the failure to give any notice to the appellants of the report’s existence and contents, despite the adverse impact upon their reputations. In so holding, Mason CJ, Dawson, Toohey and Gaudron JJ rejected an argument by the Commission that the appellants had not been deprived of procedural fairness because the entitlement arose in the context of an entire process that included public hearings of the Parliamentary Committee which may yet be satisfied. Rather, their Honours held (at 578) that:

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”. The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines.

(Footnote omitted)

58    As the Minister submitted, the present case is distinguishable. At issue here is a single, possible future exercise of power under s 501 to refuse to grant a visa, in respect of which the appellant has in fact been afforded an opportunity to be heard.

5.2    Did the primary judge err in not finding that the Minister’s “decision” was legally unreasonable (Ground 2)?

5.2.1    The appellant’s submissions

59    The appellant submitted that the Minister’s decision “not to deal with, and/or not to give the Appellant the opportunity to deal with, the s 501 issue early, and to allow the Appellant to go through five processes and remain in detention for a further 18 months before dealing with it, lacks and [sic] evident and intelligible justification and thus constitutes legal unreasonableness.” The appellant also argued that that decision was legally unreasonable on the ground that it was a “disproportionate exercise of an administrative discretion” – an argument which the appellant submitted had not been identified or considered by the primary judge. In his submission, there were three possible procedures open to the Minister:

(1)    to have utilised his powers under s 501 immediately after the application for a protection visa was made, as the Minister was entitled to do under s 198(6) and s 197 (the first option); or

(2)    to have deferred utilising his powers under s 501, explained the options to the appellant, explained that the policy position under PAM3 was that an assessment of Australia’s non-refoulement obligations would have occurred as part of the protection visa process before a referral under s 501, and allowed the appellant to be heard in relation to the options (the second option); or

(3)    to “have done what [the Minister] has done. Tell the Appellant nothing about his situation, his risks or his options. Tell him nothing about why this situation was to be different from the situation with the previous visas”, and advise him that s 501 was being considered only after four administrative process, one judicial process, and 18 months in detention (the third option).

60    In the appellant’s submission, the respondent had “nothing to lose” by choosing options 1 or 2, and by option 2, the Minister could decide prima facie to proceed in accordance with the PAM3 policy subject to hearing from the appellant. However, the appellant submitted that the apparent choice of option 3 by the Minister lacked an evident and intelligible basis and was disproportionate to achieving administrative justice. The unreasonableness, in other words, was said to lie in the failure to give the appellant an opportunity to be involved in determining the order in which matters were addressed. As is apparent from the appellant’s second option, there is a considerable overlap between the appellant’s unreasonableness submissions and the appellant’s submissions as to a breach of procedural fairness.

5.2.2    No legal unreasonableness is established

61    In my view, no error is demonstrated in the primary judge’s decision that the Minister’s decision was not legally unreasonable.

62    First, the appellant’s argument is put at an essentially abstract level, divorced from the statutory context in which decisions as to whether or not to grant a protection visa are made. However, the starting point for a consideration of whether an administrative decision is legally unreasonable, and therefore outside the range of possible lawful outcomes, is the construction of the relevant statute. As the Full Court held in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [63], “the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making…”: see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])).

63    In this regard, s 501(1) of the Migration Act both confers a power to refuse to grant a visa and is also a criterion for the grant of a visa under s 65(1)(a)(iii) and s 65(1)(a)(ii) together with PIC4001(a). There is no express or implied limitation under the Act about the sequence in which the statutory powers could be exercised, as the appellant accepted below (S111/2017 (FCA) at [36]); see also BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [42]-[46] (Mortimer and Bromberg JJ). Indeed, as I have earlier explained, it was possible that the question of whether the visa should be refused under s 501 might never be reached if, for example, the Minister found that the appellant did not satisfy the health criteria. Furthermore as the Minister submits, the power conferred by s 501 has been construed as “broad”: Stretton at [70] (Griffiths J (Wigney J agreeing at [90])); Eden at [19] (the Court). This also tends against a restrictive construction of s 501.

64    Notwithstanding these matters, in the context of an application for a protection visa, there is a compelling and obvious reason why PAM3 (as at the relevant time) envisaged that Australia’s non-refoulement obligations would have been assessed before any referral for consideration under s 501, namely: if Australia owes such obligations to a person, the existence of those obligations may be a compelling reason not to exercise the discretion under s 501 of the Act to refuse to grant the visa. This consideration is particularly important given that s 197C provides that Australia’s non-refoulement obligations are irrelevant to the duty to remove an unlawful non-citizen under s 198 of the Act. Furthermore, in determining whether to exercise the powers in s 501(1) and (2), the decision-maker must take into account the legal consequences of the decision including, where applicable, the real possibility that the person may be indefinitely detained because of Australia’s protection obligations where there is no other country to which she or he could be removed consistently with Australia’s non-refoulement obligations: Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [61] (the Court). Given these matters, it cannot be said in my view that any decision to consider whether Australia owed the appellant non-refoulement obligations before referring him for possible refusal under s 501 in line with PAM3 was arbitrary, illogical, irrational, unreasonable, or otherwise outside the range of decisional freedom. Furthermore, s 189(1) of the Act envisages and requires that a person will be in immigration detention while that person’s eligibility for the grant of a visa is assessed where the person is reasonably suspected of being an unlawful non-citizen, subject to that person being removed, deported or granted a visa under s 196(1). As such, the fact of continued detention while a person’s visa application is assessed cannot, under the statutory scheme, demonstrate that a “decision” as to the order in which the visa application assessment process is undertaken is disproportionate or unreasonable.

65    Secondly, the Court in Eden also stressed at [65] that “[t]he evaluation is also likely to be fact dependant and to require careful attention to the evidence”. Again, with respect, that close attention to the evidence is lacking in the appellant’s submissions. As the primary judge held at [45], “there was no attempt to expose the decision-making processes in 2008 and 2012 to any degree of scrutiny”. The appellant relies only upon the personal and other costs which he has borne as a consequence of the three administrative proceedings and the judicial review proceeding to date, compounded by the uncertainty and time which he has spent in immigration detention. It is understandable that those factors have caused the appellant distress and that he may regard the process which allowed those things to happen as unreasonable or disproportionate. However, that does not mean that the process is unreasonable at law. As the Full Court also held in Eden:

62.     … it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…

66    Equally, it is not sufficient that within the statutory framework, different processes may have been available to be followed and reasonable minds might have differed as to which process was correct or preferable. Rather, as the primary judge held, “[j]ust as a decision once reached cannot be characterised as unreasonable where reasonable minds may have reached different conclusions, it is even more difficult to characterise a decision-making process as unreasonable where reasonable minds may well differ as to the administrative sequence in which particular matter should be considered” (Plaintiff S111/2017 (FCA) at [45]).

67    Moreover, insofar as the several proceedings are relied upon by the appellant, they could not have been foreseen at the time that the alleged “choice” was made other than as mechanisms for merits and judicial review potentially available to the appellant under the Act in common with any other unsuccessful visa applicant. As such, those subsequent facts do not point to any unreasonableness as at the time that the alleged “decision” was made. The fact that legal unreasonableness can be outcome focused does not mean that events occurring after the alleged “decision” can be taken into account in assessing the reasonableness of the “decision” at the time that it was allegedly made. To hold otherwise would be to require legal reasonableness to be assessed by reference to unknown and unknowable matters at the time of the alleged decision or “choice”.

68    Thirdly, the appellant submits that:

In [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332], the relevant decision maker had a discretion to adjourn or not adjourn a hearing. He chose not to adjourn, and the question was whether that exercise of discretion was, in all the circumstances, reasonable. It was held not to be, as per Hayne Kiefel and Bell JJ, because it lacked an evident and intelligible basis, and per French CJ because it was a decision disproportionate to what was required of the decision maker.

69    The appellant then seeks to draw an analogy between the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and the three options said to be available to the Minister in this case. However, the submission overlooks the close attention by the High Court in Li to the statutory context in which the issue arose, together with the particular circumstances of the appellant in that case, in holding that the decision not to adjourn was legally unreasonable. For example, Hayne, Kiefel and Bell JJ held that it was not apparent why the Tribunal had decided, abruptly, to conclude the review and refuse the adjournment in circumstances where: it was obliged under s 360(1) of the Act to provide the applicant for review with a real chance to present her or his case; the question of whether the visa criterion had been satisfied was still in issue when the Tribunal made its decision; and the only significant delay to the matter was attributable to the Tribunal (Li at [61], [80]-[83]).

5.3    Did the primary judge err in holding that the Minister was not estopped from rejecting his protection visa application under s 501(1) (Ground 3)?

5.3.1    The appellant’s submissions

70    The appellant posed a two-part question with respect to the third ground of appeal, namely:

(1)    is there an exception to the general rule that an estoppel may not be raised against the exercise of discretion by a public official; and

(2)    if so, is this case an appropriate case for such an exception to be allowed?

71    The appellant submitted that the first question was an open one, relying upon extrajudicial writings that the application of estoppel on public law is not foreclosed by the current state of authority in Australia. The appellant also submitted that the views expressed in the authorities that no doctrine of administrative estoppel has emerged in Australia nonetheless left the issue open. The appellant relied in particular upon obiter of Mason CJ in Attorney General (NSW) v Quinn (1990) 170 CLR 1 (Quinn) at 18 where, after acknowledging the existence of the general rule that no estoppel can arise, his Honour continued:

What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations, grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion.

(Emphasis added)

72    On the other hand, the appellant submitted that Gummow J’s observations in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Kurtovic) that the general rule against estoppel in the public law arena was an absolute one, are open to criticism and that the majority of opinion, judicial and extrajudicial, favours the view expressed by Mason CJ in obiter. The appellant also argued that the primary judge fell into error insofar as his Honour imported elements of private law estoppel into his reasoning by requiring that the representee be induced to act to her or his personal detriment. Rather, based upon Mason CJ’s observations, the appellant submitted that the relevant detriment is to the public interest.

73    Applying Mason CJ’s formulation of the doctrine, the appellant submitted that this was an appropriate case in which to hold that exceptionally an estoppel did arise which precluded the Minister from placing reliance upon s 501 of the Act as a ground for refusing the visa. First, the appellant submitted that, in the context among other things, of the 2008 and 2012 visa application decisions, the respondent made a representation by silence by not exercising s 501 immediately, or by not foreshadowing when the protection visa application was lodged, that reliance could be placed upon s 501. That “representation” in turn, is said to have induced an assumption in the appellant who acted on that assumption by proceeding through four stages of merits and judicial review on the question of whether the appellant was a refugee under s 36(2)(a) of the Act.

5.3.2    No error is shown in the primary judge’s reasons for rejecting the estoppel argument

74    In my view, the primary judge correctly held that no estoppel could arise. The issue may be dealt with shortly, given that it was (rightly) not argued that the decision of the Full Court in Kurtovic was clearly and plainly wrong.

75    In Kurtovic, the Full Court held that the primary judge had erred in holding that the Minister was estopped from re-exercising his discretion to deport Mr Kurtovic absent further offending by him, based on a representation in a letter to him from the Department. The letter in question confirmed that the Minister had revoked the deportation order, and confirmed the oral warning given in relation to the conviction which rendered him liable to deportation under s 12 of the Act (as it then stood) that:

…any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister. Consequently, if you again become liable to deportation, you should expect that disregard of this warning will weigh heavily against you when the Minister reconsiders your case.

(Kurtovic at 198)

76    Section 12 of the Act at that time conferred a discretion on the Minister to deport certain non-citizens who had been sentenced to imprisonment for one year or more.

77    The Full Court held first that there was no sufficiently clear and unambiguous representation made in the letter which was capable of giving rise to the alleged estoppel. Thus, Neaves J held at 196 that:

In my opinion the letter provides no sufficient foundation for a plea of estoppel. It contains no representation of fact and no promise by the Minister that the power under s 12 of the Migration Act would not be exercised unless the respondent was convicted of another offence, or other offences, of the kind, and in the circumstances, referred to in that section. The letter, on its proper reading, amounts, in my opinion, to no more than what it purports to be, namely a warning as to the likely consequences of the commission of a further offence.

78    Similarly, Gummow J held at 207 that:

It may be conceded that an estoppel by representation may be founded upon an implication drawn from an express statement. But in this case, I find it difficult to see any grounds for such an implication as that drawn by his Honour. The statement made by the Departmental officer does not purport to state exhaustively the grounds on which reconsideration of the respondent’s deportation would be made. It merely warns the respondent that a subsequent incident of a similar kind to that which had occurred in the instant case would lead to a reconsideration, and would be a strong factor against him. Thus, any argument that the Minister was estopped from exercising his discretion again must fail at the threshold for want of a sufficiently clear and unambiguous representation to the effect contended for: cf Legione v Hateley (1983) 152 CLR 406 at 435-437.

79    In turn in Legione v Hateley (1983) 152 CLR 406 at 435-437, Mason and Deane JJ held that it has long been recognised that a representation must be clear before it can found an estoppel, citing with approval authorities describing the requirement variously as “certaine to every intent”, “precise and unambiguous”, and “clear and unequivocal”, in contrast, for example, to a statement that could give rise to a “genuine misunderstanding”.

80    Equally, the estoppel argument here must fail at the outset given that even the comparatively strong statements in the letter considered in Kurtovic did not suffice. It is plain that no representation was made here by the Minister or the Department that s 501(1) would not be relied upon in assessing the appellant’s application for a visa. That assumption was, at best, a misunderstanding by the appellant based upon inferences drawn by him from the fact that his 2008 and 2012 applications for a business and spouse visa respectively had been refused under s 501, and the fact that the Minister did not immediately warn him that his application for a protection visa might also be refused under s 501 after an assessment was made of other criteria. Yet, quite apart from other difficulties with the appellant’s alleged representation, the application for a protection visa was of its nature different from the previous applications. As I have earlier said, it sought to engage Australia’s non-refoulement obligations and thereby raised a consideration not obviously relevant to the earlier visa applications which might reasonably be assessed first: see above at [64]. The clarity therefore which the Full Court held was necessary in Kurtovic was manifestly lacking in this case.

81    Nor was there any deliberate silence of the kind envisaged by Deane J in Waltons Stores at 442-443 on which the appellant sought to rely. In that case, the silence followed an express statement that Waltons Stores’ solicitors would inform the solicitors for the owner of the land if they did not agree with any of the owner’s proposed amendments to the lease agreement, in the context of the urgent making of a binding agreement (Waltons Stores at 441-442). However, as the primary judge held below in this case:

32    The “silence” of the Minister or his delegates in 2015 was, on the Applicant’s approach, either transformed into a “representation” or an “inducement” to the Applicant to proceed upon an “assumption” the Applicant had made but not communicated to the Minister or his Department. Neither analysis, with respect, should be accepted. The facts certainly fall well short of establishing any “deliberate silence” as envisaged by Deane J in Waltons Stores.

82    Secondly and in any event, the Full Court in Kurtovic held that the estoppel alleged in that case would impermissibly fetter the exercise of the statutory discretion in s 12 of the Act. Thus, Neaves J at 196 held that “to construe the letter as amounting to a promise such as that relied upon by the respondent would, in my opinion, amount to an impermissible fetter upon the future exercise of the discretion conferred by s 12: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54.” Similarly, Gummow J (with whose reasons Ryan J relevantly agreed at 201) held at 208 that “… to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.” After a discussion of the authorities in different jurisdictions, his Honour held at 210 that:

… it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by higher authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that possibility: see New South Wales Trotting Club Ltd v Municipality of Glebe (1937) 37 SR (NSW) 288; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423-425.

83    His Honour concluded that at 211 that “[t]he present primarily is a case of an alleged estoppel which would prevent the exercise of a discretion reposed in the appellant by the Migration Act.”

84    It was rightly not argued by the appellant that the Full Court’s decision in Kurtovic was relevantly distinguishable in this respect. Nor, as I have said, did he argue that the decision was clearly and plainly wrong: AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131; (2016) 244 FCR 328 at [27] (the Court). Indeed, Mason CJ in Quinn in the obiter passage which is the high point of the appellant’s argument, leaves open the possibility of an estoppel in public law subject also (among other caveats) to the same requirement that the representation may not significantly hinder the exercise of the relevant discretion.

85    That being so, the appellant’s argument must also fail on this ground. The estoppel which he asserts would equally fetter the Minister’s discretion under s 501 of the Act. The alleged estoppel would also as a consequence fetter the Minister’s duty not to grant the visa under s 65 where the criteria for the grant of a protection visa, including PIC4001, were not met. To put it simply, as the primary judge held, the appellant “left unexplained… how the Minister may be held to his ‘representation’ where he is simultaneously under a legislative command ‘to refuse to grant’ the visa” (S111/2017 (FCA) at [38]).

86    Each of these grounds suffices to dispose of this ground of appeal. I would indicate, however, that I do not consider that error was otherwise demonstrated in the primary judge’s consideration of the appellant’s estoppel arguments.

5.4    Were the primary judge’s reasons inadequate (Ground 5)?

87    Finally, the notice of appeal alleges that the primary judge erred in failing to provide adequate reasons. The ground was but faintly pressed and should be rejected. No particulars were given of the ground and it was barely touched upon in oral argument save for the submission that the appellant, as the losing litigant, “needs to know that his or her arguments have been given full consideration, and therefore so that justice can be seen to be done.” That is not the test. Rather, as the Full Court recently held in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2:

47.     The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

88    In this regard, the primary judge’s reasons began by noting that, as the appellant was in detention, it was desirable to publish reasons and make orders as soon as practicable. As a consequence, the primary judge observed that “[a]lthough the care with which Counsel for the Applicant developed his arguments would in different circumstances have warranted a lengthier exploration of the principles he sought to develop, each of his arguments fail at the outset. It is desirable to address those fundamental deficiencies in his argument sooner rather than later”: S111/2017 (FCA) at [7]. Notwithstanding that explanation, the primary judge’s reasons plainly addressed the appellant’s primary arguments and provided a careful and clear explanation for his decision.

6.    CONCLUSION

89    For these reasons, the appeal should be dismissed with costs. The orders also allow the parties the opportunity to advise as to whether they consider that any further orders are necessary to give effect to these reasons for judgment in light of the findings at [47] above.

Associate:

Dated:    21 June 2018

REASONS FOR JUDGMENT

CHARLESWORTH J:

90    I agree with the reasons for judgment and the orders proposed by Perry J.

Associate:

Dated:    21 June 2018