Federal Court of Australia

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, to be fixed by way of an agreed lump sum.

3.    If the parties fail to agree a lump sum for the purposes of Order 2 by 6 September 2021, the matter be referred to a Registrar for determination of an appropriate lump sum.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons to be published of Mortimer J. I agree with those reasons and I concur in the conclusions and findings made in them. I agree with the orders proposed by her Honour.

2    The history of Mr McHugh’s place in the society and community of the Australian Commonwealth is described in the Court’s earlier reasons in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 and in the reasons of Mortimer J. Those latter reasons capture clearly, though in understatement, what must be felt by Mr McHugh in the apparent rejection by government decision-making of him and of his place in, and as part of, Australian society, community and the Commonwealth, which place for most of his life was part of his conscious and unconscious being. The encouragement of that consciousness of being Australian, of being a part of the fabric of a society, community and polity by the Commonwealth itself was mistaken, but doubtless not malign. The clarity of principle referred to by Mortimer J makes recourse to the judicial power in the circumstances unavailable to vindicate Mr McHugh’s concerns and hopes. The answers to the questions of his status and future life lie, in significant part, in the reasonable and lawful exercise of discretionary power. Part of such exercise is the recognition of the human consequences of exercise of power, not in some mechanical way, but as an incident of Commonwealth authority and power being applied fairly, justly and proportionately, here with due regard to the dignity of an individual accepted for almost all of his life by his parents, his community and his national government as part of the Australian community and Commonwealth, in the fulfilment and vindication of the high public policy involved in the administration of the Migration Act 1958 (Cth).

Associate:

Dated:    23 August 2021

REASONS FOR JUDGMENT

BESANKO J:

3    I have had the advantage of reading in draft the reasons for judgment of Mortimer J. I agree that the appeal should be dismissed with costs. I agree with her Honour’s reasons with respect to the relevance of the Immigration (Guardianship of Children) Act 1946 (Cth) and her Honour’s detailed analysis and conclusions with respect to the effect of the authorities in this Court and the High Court concerning equitable estoppel and the exercise of a statutory power. I also agree with her Honour’s observations about the difficulties attending the relief sought by the applicant.

Associate:    

Dated:    23 August 2021

REASONS FOR JUDGMENT

MORTIMER J:

4    The appellant’s visa was cancelled by operation of s 501(3A) of the Migration Act 1958 (Cth) on 23 April 2018. On 23 August 2019, exercising the power in s 501CA(4) of the Migration Act, the Minister refused to revoke the cancellation. The appellant sought judicial review of that decision. At the same time, he sought relief in relation to his continuing immigration detention, including a writ of habeas corpus. The primary judge divided the proceeding into two parts, and dealt first with the appellant’s claims in relation to his detention. The primary judge refused relief in relation to those claims, and the appellant appealed. See McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416.

5    On appeal, the Court made orders allowing the appeal, and setting aside one of the primary judge’s orders: see McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 (McHugh FC). When judgment was handed down, on 11 December 2020, the Court ordered that a writ of habeas corpus issue; that an order in the nature of habeas corpus be made; and that the applicant be released from detention forthwith.

6    On 16 February 2021, after submissions from the parties, the Court also granted declaratory relief in the following terms:

The appellant, Edward McHugh, was not an Australian citizen under the Australian Citizenship Act 1948 (Cth) and is not at the date of this declaration an Australian citizen under the Australian Citizenship Act 2007 (Cth).

7    The factual background to the cancellation of Mr McHugh’s visa, and to his claims to Australian citizenship and to be an Aboriginal Australian, are all set out in the Court’s reasons for judgment in McHugh FC. These reasons should be read together with McHugh FC, and I adopt the factual background set out at [114] to [129] as part of my reasons on this appeal.

8    The second and subsequently decided part of the proceeding before the primary judge was the judicial review of the Minister’s decision under s 501CA(4) of the Migration Act. The appellant succeeded in securing some of the relief he sought in his amended originating application, but not all of it. On 18 June 2020, the primary judge set aside the Minister’s revocation refusal and remitted the matter to the Minister for determination according to law. See McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843 (McHugh (No 2)).

9    At the time of the hearing of this appeal, the Minister had not made a fresh decision under s 501CA(4). There was evidence before the Court that by a letter dated 22 February 2021, an officer from the Department of Home Affairs had written to Mr McHugh, through his solicitors, stating

the Department is currently considering the revocation request.

10    That letter invited Mr McHugh to provide any additional information or documentary evidence that he might wish be taken into account in the Department’s assessment of his revocation request, and directed his attention to a number of specific matters and questions, most of which concerned Mr McHugh’s contention that he is an Aboriginal Australian and not an alien, within the terms of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 (Love/Thoms).

11    It was agreed for the purposes of this appeal that the primary judge’s orders made on 18 June 2020 ought be read as if they included an order otherwise dismissing the amended originating application on which Mr McHugh had relied at trial. Relevantly to this appeal, in his amended originating application and aside from orders quashing the s 501CA(4) decision, Mr McHugh had also sought the following relief:

Enjoin the Minister including by his officers or agents from treating the Applicant as a non-citizen.

Declare that the Applicant did not apply nor did he have his application considered under the Australian Citizenship Act 1946 (Cth) by reason of the Minister’s failure to perform his obligations as his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth).

A declaration that for the purposes of s 195A of the Migration Act 1958 (Cth), it is in the public interest that the Applicant be granted a permanent visa.

12    These orders and declarations were based on contentions by Mr McHugh that the Minister is estopped from treating Mr McHugh as a non-citizen, at least for certain purposes relating to him holding a visa. The primary judge refused to make any such orders and declarations, and explained in detail in his reasons why this was so. It is from his Honour’s refusal to make any such orders, or grant any such declaratory relief that this appeal is brought.

13    In the amended notice of appeal on which he sought to rely, Mr McHugh sought the following relief:

1.    The appeal be allowed.

2.    The Minister, including by his officers or agents, be enjoined from treating Edward McHugh as a non-citizen, other than for the purpose of granting him a visa under the Migration Act 1958 (Cth).

3.    A declaration that it is in the public interest that the Applicant be granted a permanent visa.

4.    The Respondent pay the Appellant’s costs of the appeal.

5.    Such further or other order as the Court deems appropriate.

14    In oral argument, and in the face of the fact that he had succeeded on his judicial review and the Minister’s non-revocation decision had been set aside, counsel for Mr McHugh explained the reason for the appeal, and for the orders sought in the appeal. He submitted it was necessary to “immunise” Mr McHugh from what he described as a real risk of detention under s 189 of the Migration Act, and of removal from Australia. He emphasised that Mr McHugh did not seek any relief that recognised him as a citizen, accepting the Court’s declaration made on 16 February 2021. However, he contended the relief sought was necessary to avoid deprivation of liberty and to ensure Mr McHugh could remain in Australia.

15    Mr McHugh was entitled to relief of this kind, counsel submitted, because the executive had represented to him, at various points over a period of 31 years, that he was an Australian citizen, and Mr McHugh had relied on that representation to his detriment. In those circumstances, and despite the unusual nature of the relief sought, it was in the interests of justice that the Minister be estopped in any future exercise of power from treating Mr McHugh as if he was a non-citizen. Alternatively, and more narrowly, it was contended that in refusing to revoke the visa cancellation under s 501CA(4), the Minister had acted “contrary to the principles of equity, including having regard to the [Minister’s] equitable obligations to the Appellant”. Counsel submitted the primary judge should have upheld both these arguments and granted appropriate relief.

16    In support of the contended need for the intervention of equity, counsel for Mr McHugh also relied upon what was said to have been the obligations of the responsible Minister at the time while Mr McHugh was a minor, under the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act).

17    For the reasons set out below, all of the arguments put on behalf of Mr McHugh must be rejected. The primary judge did not err, and the appeal must be dismissed.

Summary of The primary judge’s reasons on the estoppel arguments

18    It is not necessary to rehearse in detail the primary judge’s extensive reasons and a brief summary will suffice.

The guardianship contentions

19    In McHugh at [59], the primary judge summarised, with respect correctly, the effect of the arguments on behalf of Mr McHugh, finding that they had

a common premise—that the Minister was the cause of the applicant not being an Australian citizen such that the applicant was on a visa liable to mandatory cancellation.

20    At [104], and favourably to Mr McHugh, the primary judge assumed without deciding that the current Minister “held an indivisible and continuing legal office for the purposes of the IGOC Act”.

21    After setting out the parties’ arguments, from [90] the primary judge explained why, even if the IGOC Act applied to Mr McHugh at the relevant time and even if the guardianship obligations were breached, these matters were of no legal relevance to the judicial review of the Minister’s cancellation decision. His Honour found (at [96]):

[A] historical breach by the Minister of his guardianship obligations to the applicant, if established, would not influence the determination of that question in the manner contended by the applicant under ground C of his amended application.

22    The primary judge’s conclusion included a finding, adverse to Mr McHugh, that the “equitable principles” identified in submissions (and summarised at [107]-[108] of his Honour’s reasons) did not control or condition the exercise of power under s 501CA(4) of the Migration Act: see [116]-[122]. This was especially so given the exercise of the power centred on a consideration of the representations made to the Minister about whether there was “another reason” the cancellation should be revoked. At [122]:

In the present case, it was open to the applicant to make representations to the Minister that the Minister’s own failures had caused the applicant’s non-citizenship, and that the visa cancellation decision should be revoked on that basis. The applicant did not do so. Although the applicant only had limited legal representation prior to the Minister’s decision, it is not open for the applicant to now raise additional bases to support his revocation request. The Court’s current task is limited to determining the legality of the Minister’s decision in light of the representations made to him.

The equitable estoppel contentions

23    These are dealt with at [125]-[181] of the primary judge’s reasons. The primary judge characterised the applicant’s argument in the following way at [126]:

He argues that the Court should, by the doctrine of equitable estoppel, restore the applicant’s position in respect of the Minister to that which the applicant would have been in but for, in the applicant’s characterisation, “clear, repeated, express misrepresentations” by the Minister upon which the applicant relied.

24    At [128], the primary judge described the hurdles facing the applicant, correctly in my respectful opinion as

considerable, if not insurmountable, opposition from established precedent in advancing this ground.

25    At [151], and after summarising the applicant’s arguments on each of the elements of equitable estoppel, and the general principles, the primary judge concluded it was unnecessary to decide whether the factors relied upon were sufficient to establish such an estoppel because there was a “more fundamental obstacle” for the applicant. The obstacle was that Australian law did not presently recognise the doctrine of equitable estoppel as capable of operating to constrain, prevent or hinder the exercise of a statutory discretion in accordance with the statutory duties and functions of an administrative decision-maker. His Honour concluded (at [167], [168] and [169]):

To prohibit the Minister, and his officers and agents, from treating the applicant as a non-citizen is, inherently, to compel the Minister to treat the applicant as an Australian citizen. There are no degrees of Australian citizenship.

….

If the Minister was truly to treat the applicant as an Australian citizen in the present case, as the proposed injunctive relief requires, then there would be no legitimate opportunity for the Minister to exercise his power under s 501CA(4) in respect of the applicant. In that scenario, the Minister’s exercise of that power in respect of the applicant would infringe the terms of the injunctive relief.

The injunctive relief sought by the applicant accordingly runs headlong into the established limitations on the raising of an equitable estoppel. Such relief would, in contravention of the principles discussed by Gummow J in Kurtovic and Mason CJ in Quin, prevent or hinder the exercise of the Minister’s statutory discretion under s 501CA(4).

26    The primary judge found (from [173]) that there was no basis on which to distinguish the application of established principles, in particular the application of the principles set out in the Full Court decision of Minister for Immigration and Ethnic Affairs v Petrovski [1997] FCA 154; 73 FCR 303.

27    From [179], the primary judge also rejected the argument that the Court could grant declaratory relief of the kind sought by the applicant, and rejected reliance on Burchett J’s observations in Petrovski as supporting the grant of such relief.

The legal unreasonableness arguments

28    However, on ground E (the legal unreasonableness ground in relation to the s 501CA(4) power), the primary judge held at [217] that the Minister’s reasons

do not include any reference to the applicant’s belief that he was an Australian citizen, nor any reference to the fact that the applicant held an Australian passport, nor any reference to the fact the applicant said that he had only just learned that he was on a visa. The Minister’s failure to refer to these central matters is stark.

29    This led the primary judge to conclude (at [221]) that the Minister failed to give any degree of consideration to the applicant’s representation that he was an Australian citizen – or, to the applicant’s subjective belief that he was an Australian citizen. This, the primary judge held, was a jurisdictional error which rendered the exercise of power by the Minister legally unreasonable. This was the basis for the primary judge’s order setting aside the Minister’s decision and remitting the revocation request for consideration according to law.

30    It is in these unusual circumstances, where the then applicant succeeded in impugning the Minister’s exercise of power under s 501CA(4), that the appellant nevertheless appeals from the refusal of the primary judge to grant the other relief he sought.

Resolution of the appeal

31    The appeal thus concerns only the estoppel arguments put to the primary judge, supported (in the appellant’s submission) by contentions about the operation of the IGOC Act.

32    It is appropriate first to set out the facts on which the appellant relies for his estoppel arguments. I consider it is appropriate to make findings about the central factual elements of the estoppel arguments, albeit that I consider the arguments must ultimately fail. It is then appropriate to explain why I reject the appellant’s attempted use of the IGOC Act. Finally, I then explain why the tide of authority in Australia is so strong that on the law as it stands, whatever the factual findings, existing authority requires this Court to refuse relief which is directed to affecting future exercises of statutory power under the Migration Act, or future exercises of executive power, by the Minister, his officers or agents.

The facts on which the appellant relies for his estoppel arguments

33    As I have noted, the primary judge did not make specific findings of fact on the elements of representation, reliance and detriment. His Honour found at [151]:

As noted above, it is unnecessary to decide whether the “factors” outlined above are sufficient to establish each element to raise an equitable estoppel. There is a more fundamental obstacle to the applicant’s estoppel argument.

34    The following facts may be accepted. None of them were disputed by the Minister, although the inferences that could be drawn from these facts were in issue.

35    Born in the Cook Islands, the appellant was not raised by his birth mother or father. He was initially raised and cared for by a woman in the Cook Islands, who passed away when the appellant was 6 years old. The carer’s daughter and son-in-law were Maryanne and Kevin McHugh. Maryanne McHugh was also a Cook Islander, and therefore a citizen of New Zealand. Kevin McHugh was an Australian citizen. The appellant was brought to Australia in 1975 by Maryanne and Kevin McHugh, who were shortly thereafter to become his adoptive parents. When the appellant first arrived in Australia with his adoptive parents, a passenger card was filled out for him. At the time he was 7 years old. The passenger card identified his country of birth as “Rarotonga”. It identified his country of citizenship as “Australia”. This is the earliest record of an assertion of Australian citizenship in relation to Mr McHugh.

36    Mr McHugh was formally adopted under Queensland law by Kevin and Maryanne McHugh on 2 November 1976. A new birth certificate was issued two days later, showing his adoptive parents as if they had been his parents since his birth, with their ages entered to reflect their ages at the time of his birth, rather than at the date of his adoption in 1976. That meant his adoptive mother was shown as being 19 years old at the time of his birth and his adoptive father as being 15 years old. In fact when they adopted Mr McHugh they were 28 and 23 years old respectively. In this way, Mr McHugh’s birth certificate issued after his adoption was evidence of the legal fiction that they were entitled to be treated as if they had always been his parents, and he had always been their child.

37    Mr McHugh thereafter resided in Australia. In 1986, when Mr McHugh had turned 18, he deposes in his affidavit read in the proceeding before the primary judge, that

the electoral office wrote to me and told me I was eligible to vote.

38    He deposed, and I accept, that he voted in the federal election in July 1987, when he was living with his aunt and uncle in Toowoomba. That was the only time he has voted. He explained not voting again in the following way:

I did not vote again because I moved around the country working and living rough and in remote Aboriginal communities a lot.

39    The appellant’s solicitor searched the records of the Australian Electoral Commission for Queensland and found on the roll the names of Mr McHugh and his adoptive parents. He deposed that their names appeared for the electorate of Maranoa, with Mr McHugh being recorded as living in Brookstead. The extract from the roll is in evidence and I accept it does contain these details.

40    Mr McHugh deposed, and I accept, that in October 2017 he applied for a passport. He did so because he needed more identification to live in a hotel. In his passport application, he nominated his Australian birth certificate, with its number and date. He stated that he had been born at Atiu in the Cook Islands. He left blank the parts of the form dealing with production of an Australian citizenship certificate. He indicated he had not been issued with an Australian passport before. He also attached his Medicare Card and bank statement. He had a guarantor for the application (as required), who had filled out the relevant parts of the form. An officer checked the boxes indicating the officer had sighted Mr McHugh’s current address and photo identification.

41    The passport issued to Mr McHugh is in evidence. It was issued on 25 October 2017. Counsel for the appellant placed some reliance on what the appellant’s solicitor described in his affidavit as the “safe passage” indorsement on every Australian passport. That indorsement is annexed to the affidavit of the appellant’s solicitor, Mr Coffey. The indorsement states:

The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer, an Australian Citizen, to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need.

Appropriate to make findings on the elements of estoppel and the IGOC Act

42    The appellant submits the Court should make findings on the elements of equitable estoppel and application of the IGOC Act to him, even though the primary judge did not. I accept that for the purposes of the appeal that is appropriate. At both trial and appellate level the appellant has sought to prove these matters, and to make submissions on the legal aspects of these matters, for the purpose of the Court making findings. With so many factual and legal issues facing him at first instance, there can be no criticism of the approach taken by the primary judge in focussing on what his Honour saw as the key issues which defeated the appellant’s contentions. However, it would not be appropriate for these matters again to be assumed, one way or the other, or avoided, at appellate level where not decided at first instance. The appellant has no further right of appeal, and in those circumstances, having put these matters in issue, they should be determined.

Findings on the elements of estoppel

43    For the purposes of the appellant’s estoppel arguments, I accept the following propositions are made out on the evidence.

(a)    The grant and issuing of a passport to Mr McHugh was a representation on behalf of the Commonwealth to Mr McHugh that he was accepted as an Australian citizen. In order to grant an Australian passport, the responsible Minister had to be satisfied that the applicant was an Australian citizen: see Australian Passports Act 2005 (Cth), s 8.

(b)    Further, the indorsement on Mr McHugh’s passport was, I accept, a representation to other sovereign states by the Commonwealth of Australia that Mr McHugh was an Australian citizen and was entitled to the protection of the Commonwealth.

(c)    The invitation to Mr McHugh to enrol as an elector, and his entry onto the electoral roll were also representations to Mr McHugh on behalf of the Commonwealth that he was accepted by the Commonwealth as an Australian citizen. I accept the submission that under the Commonwealth Electoral Act 1918 (Cth) as it then stood, in order to be eligible to enrol and to vote, a person had to be an Australian citizen over the age of 18 years: s 93(a) and (b)(i). Although at the time electoral enrolment and voting were also open to certain British subjects, this entitlement only applied to those British subjects already enrolled immediately before 26 January 1984: see s 93(b)(ii). The primary judge accepted this was the case in McHugh at [273]-[275].

(d)    Mr McHugh relied on these representations, as his unchallenged affidavit evidence demonstrates. He deposed that he had always understood his nationality was Australian. It would appear from what was on his entry card in 1975 that his adoptive parents also believed he was an Australian citizen. Mr McHugh had only learned he was adopted in 2013. The first time he learned he was not an Australian citizen was when he was detained on 11 May 2018. Before that, no one had ever told him that he was a non-citizen. I infer he did not realise he even held a visa because the visa he held was granted by operation of law, rather than by application. He had not received the notices of intention to cancel his visa in 2013 and 2014 because he was “living rough” at the time and did not receive mail. He deposed (at [34] of his affidavit):

If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen.

(e)    Mr McHugh’s reliance on the representations made to him was reasonable in the circumstances. I find he genuinely believed he was an Australian citizen until 2018. The representations on behalf of the Commonwealth occurred through formal government action, taken under federal legislation. Like any other person in the Australian community Mr McHugh was entitled to rely on his applications for electoral enrolment, and for an Australian passport, being assessed according to law, and he was entitled to see the outcome of both processes as a recognition and confirmation of the status in the Australian community he thought he had.

(f)    On his own evidence, Mr McHugh relied on those representations to his detriment because he did not take any action to apply for citizenship, as he already thought he had it.

44    Notwithstanding those findings, as I explain below, the tide of authority is firmly against the proposition that those facts, and the Court’s findings about them, are capable of giving rise to an equitable estoppel in favour of Mr McHugh that is enforceable against the Minister in relation to Mr McHugh being treated as a non-citizen for the purposes of the Migration Act.

The relevance of the IGOC Act

45    In my opinion, Mr McHugh never fell within the terms of the IGOC Act and the then responsible Minister was never his guardian under that Act. If, contrary to my conclusion, Mr McHugh did fall within the terms of that Act and the then responsible Minister was his guardian, it is my opinion there was no breach of any obligation under that Act to Mr McHugh. Reliance on the IGOC Act does not assist the case put on behalf of Mr McHugh.

46    The first question is whether, at any material time, the appellant fell within the terms of the IGOC Act. Section 6 of the IGOC Act relevantly provided:

The Minister shall be the guardian of the person, and of the estate in Australia, of every immigrant child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as a guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty-one years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.

47    The phrase “immigrant child” was defined in s 4 to mean:

a person under the age of 21 years who enters Australia as an immigrant, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of that person, or a relative of that person not less than 21 years of age.

48    When Mr McHugh entered Australia aged around 7 years, with the couple who would adopt him about a year later, was he entering Australia either “in the charge of…a parent” or for the purpose of “living in Australia under the care of a parent”? If he was, then the IGOC Act did not apply to him.

49    While it is true that subsequent amendments to the IGOC Act have expressly picked up children who enter Australia with people who intend to adopt them, and have also picked up the definition of “parent” in the Family Law Act 1975 (Cth) (see ss 4 and 4AAA of the current IGOC Act), there is no basis to confine the meaning of “parent” in s 6 as it stood in 1975 to a biological parent, nor to a person with a formal adoption order in place.

50    As the Full Court later found in relation to the definition of “parent” in the Australian Citizenship Act 2007 (Cth), the ordinary meaning of the word “parent” is a question of fact, and

[b]eing a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological….parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own….

See H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [129].

51    I accept the Minister’s submissions that the purpose of the IGOC Act is to provide for the care of unaccompanied minors who enter Australia: see Moore v Minister for Immigration [2007] FCAFC 134; 161 FCR 236 at [52]; and see also the Second Reading Speech to the Immigration (Guardianship of Children) Bill 1946 (Cth), 31 July 1946, House of Representatives Hansard at 3369. This passage was extracted by the primary judge in his reasons in McHugh (No 2) at [63], but should be set out again:

The bill also covers children who will be brought to Australia under the auspices of any governmental or non-governmental migration organizations when migration is resumed. The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children. It is believed that the Commonwealth Government, in encouraging and financially assisting child migration by way of contributions towards passage money and payment of child endowment to organizations caring for the children, accepts a responsibility which does not end with the children’s arrival in Australia. It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for until they reach 21 years of age. The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children.

52    See also the Full Court’s similar opinion in Odhiambo v Minister for Immigration and Multicultural Affairs [2020] FCAFC 194; 122 FCR 29 at [87]:

Although it is clear that the legislation was conceived as a way of ensuring adequate oversight of the welfare of children who had been, or would be, brought to Australia under voluntary migration schemes sponsored by social welfare organisations and church bodies, it was drafted in wide terms. As counsel for the Minister acknowledged, the enacted legislation extends also to children who come to Australia as asylum-seekers.

53    The text of s 6 and the definition of “immigrant child” conforms to this purpose. In the present circumstances, as I describe them in the next paragraph, it would be irrational to construe s 6 and the IGOC Act as a whole as intended to reach a person in the circumstances of the appellant, so that the Minister would become his guardian “to the exclusion of” Mr and Mrs McHugh.

54    Maryanne and Kevin McHugh were, on the evidence before the Court, already in a parental relationship with the appellant before they entered Australia. They took over his care in 1974 when his former caregiver, Mrs McHugh’s mother, passed away. He was then only 6 years old. Mrs McHugh’s mother had cared for the appellant since birth. In that sense, Maryanne McHugh was very much part of the appellant’s family. The appellant entered Australia, with Kevin McHugh’s surname, when he was 7 years old. The couple brought him to Australia, to start a life with him here. He was formally adopted just over 18 months later, although no doubt the adoption process commenced some considerable time prior to the order being made on 2 November 1976. At the time of bringing the appellant into Australia, Maryanne and Kevin McHugh were on the evidence people who had acknowledged the appellant as their own, and treated him as such. In my opinion these circumstances fell within either or both limbs of the exclusion from the definition of “immigrant child” extracted at [47] above.

55    I also accept the Minister’s submission that there was, at the time Mr McHugh entered Australia with Kevin and Maryanne McHugh, nothing to put the responsible Department on notice that the appellant could fall within the terms of s 6 of the IGOC Act. As the Minister submits, the appellant’s name on the incoming passenger card carried the surname of the couple who brought him to Australia and who would shortly thereafter commence the process to adopt him; he was listed as an Australian citizen and an intended place of residence was nominated – Southbrook Queensland. There would have been no reason for any officer to suppose the IGOC Act could or would apply to the appellant.

56    Second, even if contrary to my conclusions above, Mr McHugh fell within the terms of the IGOC Act on his entry to Australia, the duties of the responsible Minister under the IGOC Act were not relevantly breached. The core of the appellant’s contentions about breach of duty under the IGOC Act centres on the failure of the responsible Minister to secure Australian citizenship for Mr McHugh. Each of the courses of conduct the appellant suggested the Minister should have taken (see [16] of the appellant’s written submissions) involves, with respect, an artificial reconstruction of the circumstances, and the imposition of duties and functions on the Minister which are inconsistent with undisputed facts.

57    It appears to be common ground, although at times counsel for the appellant strayed beyond this proposition, that there was a period of about 21 months between the appellant’s arrival in Australia and his formal adoption by the McHughs. If the IGOC Act had an operation, it could only be during this period. It was not seriously suggested by counsel that once the appellant was legally adopted under Australian law by the McHughs, he somehow remained under the Minister’s guardianship under the IGOC Act.

58    It was during this 21 month period that the appellant’s counsel submitted there was a breach of the Minister’s guardianship obligations. It was submitted the Minister should have either applied for Australian citizenship for Mr McHugh, or secured him advice on how to apply for citizenship. It should be recalled at this stage Mr McHugh was 7 years old and living in Queensland with the McHughs, who may have also thought he was an Australian citizen, given how the passenger card was filled out.

59    The authorities relied on by the appellant are Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 and Odhiambo. Bennett was a negligence case brought by a ward of the State of Western Australia, in relation to the failure of the Director of Community Welfare (WA) to obtain legal advice for the ward following an accident while he was in a detention centre and was aged 16, where he lost four fingers using a circular saw. It was accepted that the Director was the plaintiff’s guardian at the relevant time. Any cause of action became statute barred. The High Court held that the Director breached his duty of care to the plaintiff by failing to obtain legal advice before the limitation period expired.

60    Ohdiambo concerned two children who arrived in Australia as unaccompanied minors and who plainly fell within the terms of s 6 of the IGOC Act. They were provided with the assistance of a migration agent and applied for protection visas, but their claims were rejected. In challenging those rejections the appellants relied on the fact that the Minister, as their guardian, had not actively assisted them in making their cases to the (then) Refugee Review Tribunal. Applying X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524, the Full Court held that the incidents of guardianship under the IGOC Act involve provision for the “basic needs” of a child, and this may include legal advice and assistance. However, the Full Court determined that given the appellants had been provided with independent legal assistance and representations, and taking into account the inquisitorial nature of the Tribunal, as well as characteristics of their own circumstances, they were not disadvantaged during the process. The Full Court further held that the “bare fact that each applicant was apparently a minor” was not sufficient to justify a finding that the Tribunal erred in proceeding with the hearings in the absence of a guardian actively representing the applicants’ interests. At [104], the Full Court made the following observation:

Those who have argued in support of the appellants’ case on this issue have assumed that the active involvement of a guardian, before the Tribunal, would have been a benefit, rather than a detriment, to the appellants’ cases. In the overwhelming majority of cases, the assumption is no doubt justified. However, it will not always be the case. The incidents of guardianship include powers as well as duties. A person having the status of a guardian is entitled to make decisions on behalf of his or her ward, including decisions contrary to the wishes of the ward. It would be a serious situation indeed if, say, a 17 year old with normal intelligence and understanding was precluded from pursuing a course offered by the Migration Act because of a decision made by a guardian, or a delegate of a guardian, appointed by the Minister.

61    Neither of these decisions assist the appellant’s arguments about what should have occurred during that brief 21 month period when the appellant was 7 and 8 years old. Even if the Minister was, contrary to my conclusions, Mr McHugh’s guardian during this period, the indisputable facts are that he was living with the McHughs in Southbrook in Queensland, where they were tending to his daily and longer term needs, and intending to formally adopt him. He had suffered no personal injuries, he was not in any danger in terms of his care – he was, at least on the evidence before the Court, being brought up like any other young child in the Australian community. For that period of 21 months even if the Minister were in law his guardian it would have been entirely reasonable for the Minister to have seen the question of any future Australian citizenship as a matter between Mr McHugh and the two people who had brought him to Australia and were taking care of him.

62    Of course, with the benefit of hindsight, it would appear the McHughs, just like the appellant, laboured under a misapprehension about the appellant’s citizenship, and that misapprehension has had severe consequences for Mr McHugh. However, this aspect of the appellant’s argument requires the question to be asked: what, in the circumstances as they then appeared, would a reasonable Minister, as a guardian, have done in 1975 and 1976 about Mr McHugh not having been granted Australian citizenship before Mr McHugh was formally adopted? The answer is: nothing. Even if that were the position, it could not reasonably have been in the contemplation of the legal guardian under the IGOC Act that any steps needed to be taken.

63    In this aspect of the appellant’s arguments there were also some contentions, made only orally and apparently not before the primary judge, about Mr McHugh’s adoption being legally ineffective. They were not developed, have no foundation in fact or law and are directly inconsistent with the contentions put in McHugh where the appellant’s adoption was relied upon as one of the bases on which it was said he was an Australian citizen. They do not require further discussion.

Conclusion on the IGOC Act

64    While as I have found above, Mr McHugh genuinely believed he was a citizen, and at least two significant mistakes were made by Australian officials in treating him as an Australian citizen, and representing to him that he was able to be treated as one, nothing in the IGOC Act exacerbated or aggravated those circumstances, because it never applied to Mr McHugh. Even if, contrary to my conclusion, the IGOC Act did apply, the appellant’s contentions about the Minister breaching obligations under it by not securing citizenship for Mr McHugh have no merit. No additional equity arises which contributes to the strength of the circumstances suggesting an estoppel should be found to operate in relation to the Minister’s exercise of statutory power under s 501CA(4) more than 40 years after the IGOC Act is asserted to have been engaged in respect of Mr McHugh.

The tide of authority

65    The primary judge undertook a comprehensive survey of the relevant authorities from [152]-[164] of his reasons. While the appellant sought to distinguish some of the authorities on their facts, his counsel did not in substance shy away from the proposition that what this Court was being invited to do would represent a significant development in Australian law. If that development is to occur, given the tide of authority against it, that would be a matter for the High Court and not this Court.

66    It has been repeatedly held that the manner in which a repository of a statutory discretionary power exercises that power cannot be affected by principles of equitable estoppel because to do so would be to hinder or interfere with the exercise of that power in the way Parliament intended.

67    Relevant authorities include: Formosa v Secretary, Department of Social Security [1988] FCA 291; 46 FCR 117; Kurtovic v Minister for Immigration [1990] FCA 19; 21 FCR 193 at 196 (Neaves J), 210 (Gummow J); Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 17 (Mason CJ); Minister for Immigration v Polat [1995] FCA 268; 57 FCR 98 at 107 (Davies and Branson JJ); Plaintiff S111/2017 v Minister for Immigration [2018] FCAFC 92; 263 FCR 310 at [82] (Perry J); Roberts v Repatriation Commission [1992] FCA 981; 39 FCR 420 at 425; Asaad v Minister for Home Affairs (No 2) [2019] FCAFC 214 at [35]-[36]; Minister for Immigration v McDade [2001] FCA 457; 109 FCR 137 at [29]. Rejection of the creation of constraints on the exercise of power which are external to the express and implied constraints imposed by the statute (or by the Constitution) also explains the rejection in Australian law of the concept of a constraint on statutory power because of the “legitimate expectation” of a person affected by the exercise of that power: see Re Minister for Immigration; Ex parte Lam [2003] HCA 6; 214 CLR 1.

68    The only authority it is necessary to address in a little more detail is Petrovski. That is because of its factual similarity to aspects of the appellant’s circumstances and arguments, and – in that context – the Court’s rejection of the kind of arguments put by the appellant in this appeal.

69    Mr Petrovski was born in Australia in 1969, while his father was a consular official in Australia for the Republic of Yugoslavia. A few years after his birth he returned with his family to Yugoslavia. However, because he was born in Australia, he assumed he was an Australian citizen and when he was only 15 years old, he went to the Australian Embassy in Belgrade, produced his birth certificate and other necessary items and asked to be issued with an Australian passport. Despite being a minor and despite the provisions of the then Australian Citizenship Act 1948 (Cth), which expressly excluded the children of consular officials from acquisition of citizenship by birth, the embassy issued Mr Petrovski a passport. This passport expired after five years, and was renewed by the same embassy in Belgrade. On this second passport Mr Petrovski travelled to Australia, via London. He entered, and left, without any difficulties. He left and returned to Australia during 1992, again without any difficulties. It was only when he made an application to sponsor his wife and daughter for permanent residence that he was informed he was not, insofar as the Department was concerned, an Australian citizen, but indeed had entered Australia on more than one occasion as an “illegal entrant”, which excluded him from being considered a permanent resident and therefore precluded him from being granted Australian citizenship when he applied for it (as he did).

70    In the Administrative Appeals Tribunal and in this Court Mr Petrovski contended he was not an “illegal entrant” within s 14 of the Migration Act, and that if he otherwise might be considered to have that status, the issue of the two passports to him constituted a representation as to his status which estopped the Australian Government from relying on s 14 in considering his citizenship application. The Tribunal affirmed the departmental decision but at first instance in this Court Mr Petrovksi succeeded. On appeal, the majority (Burchett and Tamberlin JJ) rejected the estoppel argument. O’Loughlin J took a different approach which is not relevant to the present issues.

71    Burchett and Tamberlin JJ both concluded Mr Petrovski did not enter Australia illegally, but did fall within the definition of “illegal entrant” in the then s 14 of the Migration Act, which meant his citizenship application was bound to fail. Their Honours found the grant of a passport did not confer citizenship. On the question of whether the Minister was estopped from treating Mr Petrovski as if he were an illegal entrant for the purposes of considering his citizenship application, Burchett J said (at 308-309):

Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold for an estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.

72    Despite the attempts of counsel for the appellant to distinguish Petrovski, in my respectful opinion it is very much on point. Indeed, if there ever was a case for equitable estoppel on the facts, the facts of Mr Petrovski’s case – especially the way he was permitted to enter and leave Australia on a passport to which he was never in law entitled – were very strong. Yet the tide of authority against allowing an equitable estoppel to affect or influence the boundaries drawn by Parliament around the exercise of a statutory power precluded effect being given to such an argument in Petrovski. The same answer must be given to Mr McHugh’s circumstances.

73    The appellant’s counsel relied on a passage at the end of Burchett J’s reasons:

In the absence of any public interest consideration adverse to him (and none was suggested at any stage of this case), it is plainly in the public interest that a person who has acted on the faith of an instrument as serious as a passport issued by the Australian Government should not find his faith misplaced: cf Gowa v Attorney-General (1985) I WLR 1003 at 1011; Attorney-General D (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 638. The attention of the Minister should be drawn to this matter.

74    Contrary to the appellant’s submissions, this was not the statement of a legal principle. It was an observation about the apparent injustice of the operation of the law towards Mr Petrovski, and the demonstration of judicial concern that his case was sufficiently unusual to be drawn to the attention of the Minister. It is no more than that. Tamberlin J expressed his “complete agreement” with this statement at 329.

75    As this Court has found in McHugh FC at [383], and declared, the appellant is not an Australian citizen. He is a non-citizen, and he held an absorbed persons visa which was amenable to cancellation under s 501(3A). The appellant’s estoppel argument would effectively dictate to the Minister how the power in s 501CA(4) is to be excercised upon the remitter made by the primary judge. If the appellant is correct, the power could only be exercised one way, which is by treating Mr McHugh as if he is not a non-citizen and therefore by the Minister finding Mr McHugh does not need a visa to remain lawfully in Australia, which in turn would mean there was no utility in the exercise of the revocation power in s 501CA(4). That sequence of events flies in the face of the scheme established by Part 9 of Division 2, and indeed the fundamental distinction in the Act between citizens and non-citizens. While that formerly binary distinction, expressed in s 13 and s 14, may have been made less clear by the High Court’s decision in Love/Thoms, for the purposes of the appellant’s arguments on this appeal, the binary distinction in s 13 and s 14 remains.

76    In my respectful opinion the now well-established principles apply to provide that the factual circumstances of Mr McHugh’s case cannot hold the Minister as the repository of the power in s 501CA(4) to an exercise of that power otherwise than on the basis of a proper understanding of what the Migration Act requires. That is so even where there have been representations on behalf of the Commonwealth, on which Mr McHugh relied to his detriment, to the effect that he was an Australian citizen, which representations might in equity be seen as sufficient to give rise to an estoppel against those who made them (or on whose behalf they were made). First and foremost, what the Migration Act requires is that Mr McHugh be treated as a non-citizen. The Minister must approach the exercise of his statutory discretion in s 501CA(4) on that basis. That is not to say (as Burchett J observed in Petrovski) that if there is some discretion to be exercised, the human aspects of the situation in which a person finds himself or herself, in part at least because of the mistaken conduct of officers of the Commonwealth, could not be taken into account. That is quite a different proposition from positively precluding a repository from exercising a statutory power by reference to all the matters Parliament intended the repository to be able to take into account.

77    The Minister must exercise the power in s 501CA(4) by taking into account the representations made to him concerning revocation. Since a representation about Mr McHugh’s mistaken treatment as an Australian citizen has been made, the Minister’s obligation is to consider and engage in an active intellectual sense with that representation. The Minister is not obliged to treat that factor as overwhelming all other considerations, or as dictating a particular outcome for the exercise of power. Yet that is what the appellant submits should occur.

78    The appellant’s submissions must therefore be rejected on established principle.

79    The appellant relied on developments in equitable estoppel in public law in other jurisdictions, notably the United Kingdom and the United States. In particular, counsel directed the Court to a recent decision of the US Court of Appeals, Second Circuit. The decision is reported as Schwebel v Crandall (2020) 967 F.3d 96, and concerned a German citizen who had resided in the United States since she was 8 years old. She had been denied adjustment of her status to lawful permanent residence. The conduct said to give rise to estoppel occurred in the context of an announcement by the US Department of State about a limited time period to apply for certain visas and the submission of a visa application by Ms Schwebel a few days before the application period ended. The conduct was described by the Court in the following way:

The United States Citizenship and Immigration Services (‘‘USCIS’’) received the application four days early, but, in violation of its internal procedures, it failed to advise Schwebel of any issue with or defect in her application. Instead, despite inquiries from Schwebel’s lawyer, USCIS did not respond for several years, at which point it advised Schwebel that she was required to submit a new application. By then, circumstances had changed such that Schwebel was no longer statutorily eligible to adjust status under the CSPA and USCIS denied her application.

80    The Court stated (at 103) that equitable estoppel was available in the United States against government in the “most serious of circumstances”, and required “a showing of affirmative misconduct by the government”, and that it had been applied in the immigration context to remedy “unintentional injustices”. The Court found the elements of estoppel to be proven: see 106. It held that:

Permitting the government to initiate rescission proceedings and subject Schwebel to removal would ‘‘sanction a manifest injustice occasioned by the [g]overnment’s own failures.’’

81    It is apparent that, at least to some extent, courts in the United States have accepted equitable estoppel can operate against an exercise of statutory public power. The US Court of Appeals is the final appellate court as of right in the US federal judicial system, and it sits below the Supreme Court in the US federal judicial hierarchy. It is not a trial court, and decisions such as Schwebel are entitled to careful consideration. However as the Minister points out, the US Supreme Court decision of Office of Personnel Management v Richmond 496 US 414 (1990) suggests estoppel against the exercise of a public power is generally still not available, although Kennedy J (giving the lead judgment) cautioned against ruling it out altogether:

But it remains true that we need not embrace a rule that no estoppel will lie against the Government in any case in order to decide this case. We leave for another day whether an estoppel claim could ever succeed against the Government.

82    See also the comments on Richmond in Polat at 106-107, where after citing some extracts from Richmond, Davies and Branson JJ concluded:

The view taken in Richmond is similar to that expressed in this country in the cases to which reference has been made. Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute. Nor may a court make an order for payment of money from the public treasury contrary to a statutory appropriation. Even when the power to act is a discretionary one, it has been said that, when there is a duty under statute to exercise a free and unhindered discretion, no estoppel can be raised to prevent or hinder the proper exercise of the discretion.

83    Australian law has not embraced the approach revealed by Schwebel. In Lam at [69], McHugh and Gummow JJ also examined the law in the US but concluded the US Supreme Court had not embraced the doctrine as much as some of the lower courts. Even if Schwebel reflects an increasing readiness at intermediate appellate court level to apply the doctrine, including in the immigration area, in the face of the tide of present Australian authorities, whether or not Australian law should adopt such an approach is a matter for the High Court.

The difficulty in framing relief reveals the fundamental problem

84    Some considerable time was spent in argument on the question of what the appellant submitted was the appropriate relief, if the Court was persuaded the primary judge had erred in not finding the Minister was estopped from treating the appellant as a non-citizen. This aspect of the argument illuminated the difficulties in the appellant’s underlying contentions. Ultimately counsel was driven to a submission that the Court could fashion whatever relief it considered appropriate, relying on the generality of [5] in the relief in the amended notice of appeal sought.

85    While it is true in terms of general principle, and expressly recognised by s 22 and s 23 of the Federal Court of Australia Act 1976 (Cth), that the Court has wide powers to grant relief so as to determine all matters in controversy between the parties in the way the Court considers most appropriate, it is not the Court’s role to make a party’s case, and that is what the appellant’s counsel was in reality inviting the Court to do. The Court’s consideration should be confined to the proposals for relief put forward by the appellant.

Difficulties with proposed order 2

86    To recap, proposed order 2 is an injunction, said by the appellant to be a quia timet injunction, against the Minister preventing him from

treating Edward McHugh as a non-citizen, other than for the purpose of granting him a visa under the Migration Act 1958 (Cth).

87    I doubt it is correct to characterise what is being sought as a quia timet injunction, which is generally issued on an interlocutory basis where there is a high degree of probability, or imminence, of serious injury from a threatened wrong or apprehended injury: see R v McFarlane; Ex parte O’Flannagan and O’Kelly [1923] HCA 39; 32 CLR 518 at 538.

88    In the present circumstances, the Minister has not yet re-exercised the power in s 501CA(4), nor have the appellant’s claims to be an Aboriginal Australian been determined. However, even assuming an injunction might be available, the form of the proposed injunction reveals a fundamental problem. The appellant’s arguments seek to move in and out of the application of the Migration Act. On the one hand, previous conduct is said to give rise to an equity the Court should enforce that the appellant not be treated as a non-citizen. On the other hand, he is to be treated as a non-citizen for the purpose of being granted a visa, which he only requires if he is, in law and fact, a non-citizen.

89    Subject to the question of alienage arising from Love/Thoms, the terms of the Migration Act involve a binary distinction between citizens and non-citizens. As well as illustrating two problems in formulating relief, the appellant’s proposed relief confirms the difficulties in applying an estoppel to the exercise of powers under this legislative scheme. It would require the Minister to act contrary to the premise on which the Migration Act is constructed in s 13 and s 14.

Difficulties with proposed order 3

90    To recap, by this proposed order the appellant seeks a declaration designed to address the precondition to the exercise of the power under s 195A of the Migration Act. He asks the Court to declare that it is “in the public interest that the [appellant] be granted a permanent visa”.

91    Section 195A provides:

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

Tabling of information relating to the granting of visas

(6)    If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

(a)    states that the Minister has granted a visa under this section; and

(b)    sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

(7)    A statement under subsection (6) in relation to a decision to grant a visa is not to include:

(a)    the name of the person to whom the visa is granted; or

(b)    any information that may identify the person to whom the visa is granted; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.

(8)    A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

92    Three immediate reasons can be given for the inappropriateness of this relief.

93    First, as I have explained, Petrovski provides no support to the appellant for the grant of a declaration of this kind. The passages relied on in that decision were no more than judicial observations.

94    Second, the appellant is not in immigration detention. The essential precondition to the exercise of the power in s 195A does not exist, and therefore any judicial consideration of the circumstances in which it might be exercised in relation to Mr McHugh is hypothetical.

95    Third, and centrally, the terms of the proposed declaration are inimical to the power in s 195A, which is a personal non-compellable power, and leaves the question of whether the grant of a visa to an individual is in the public interest to the opinion of the Minister. It is the kind of power where the Minister has

a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.

See (O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216, Mason CJ, Brennan, Dawson and Gaudron JJ.)

96    Farrer was applied directly to s 195A of the Migration Act in Plaintiff M79/2012 v Minister for Immigration [2013] HCA 24; 252 CLR 336 at [39] (French CJ, Crennan and Bell JJ). See also Plaintiff M79 at [127] (Gageler J); see also [62] (Hayne J); and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at 648-649 [30], French CJ and Kiefel J.

97    Aside from the clear inappropriateness of the proposed relief, what the proposal highlights is the substantive difficulty facing the appellant’s arguments. In substance, the appellant seeks to have the Court substitute its own opinion of what is a just outcome for Mr McHugh in any future exercise of power by the Minister.

A further proposed form of relief

98    In his reply submissions, the appellant made a further proposal. He submitted the Court could issue a writ of ne exeat regno, or ne exeat colonia. That is a writ historically used to prevent a debtor from leaving the jurisdiction, or to prevent a debtor leaving without giving security for the debts claimed, so as to prevent a defendant avoiding the Court’s jurisdiction: see Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [39]-[40].

99    The appellant submitted the writ has been adapted beyond the original circumstances in which it was granted, relying on R v Secretary of State for the Home Department, Ex parte Muboyayi [1992] 1 QB 244 at 258, Donaldson MR; Taylor LJ agreeing at 269. Muboyayi concerned an asylum claim which was refused without consideration by the Secretary of State, who then sought to remove the respondent to France, because he had travelled through France to the United Kingdom and the Immigration Act 1971 (UK) was said to authorise his return there for his asylum claim to be assessed by France. The respondent issued proceedings seeking a writ of habeas corpus. An undertaking of non-removal was sought from but not given by the Secretary of State, and therefore a writ of habeas corpus was granted. The Secretary of State appealed. In allowing the appeal on the basis the respondent was not in reality challenging the legality of his detention but an administrative act refusing to consider his asylum claim, the Court did make some observations about the need for some kind of interim remedy to prevent removal of a person in the respondent’s situation while his judicial review claims were before a Court. At 258 Lord Donaldson MR said:

Since any compulsory removal from this country necessarily involves some deprivation of the liberty of the person concerned, a writ of habeas corpus is an obvious alternative remedy. The effect of service of such a writ is to make the “gaoler” responsible to the court in place of the authority which ordered the detention, leaving it to the court to determine on the return of the writ whether the detention should or should not continue. If it be objected, and shown, that the use of a writ of habeas corpus quia timet is a novelty, so be it. This, the greatest and oldest of all the prerogative writs, is quite capable of adapting itself to the circumstances of the times. An alternative might be to adapt the writ of ne exeat regno, which was designed to prevent debtors fleeing the country, to suit a situation in which far from wishing to leave the jurisdiction someone is being compulsorily removed therefrom.

100    It is unclear why injunctive relief was not referred to. On any view, the Court of Appeal in Muboyayi was concerned with interim relief for the purpose of making effective the jurisdiction of the UK Courts to consider judicial review claims against the Secretary of State. That is far removed from the way the appellant’s counsel has sought to employ the writ of ne exeat regno in this proceeding. This writ is not a proposed form of relief which in any way overcomes the difficulties associated with the other forms of relief. Instead, it is another way of seeking to prevent, permanently, the adverse operation of the Migration Act in respect of Mr McHugh – in relation to this writ, to prevent the operation of ss 189, 196 and 198 of the Act to detain and remove Mr McHugh.

Other difficulties in terms of relief

101    Other important discretionary considerations should be noted. The primary judge set aside the previous exercise of power by the Minister and remitted the matter for further consideration according to law. That process is not yet complete, and there has been no further exercise of power by the Minister. It may be that the Minister decides to revoke the visa cancellation. Or it may be that the Minister is persuaded that Mr McHugh is not an alien, given the High Court’s decision in Love/Thoms and the material presented to the Minister by Mr McHugh. In those circumstances it is premature to consider any relief. The grant of any substantive relief is likely to interfere with, and cut across, the Minister’s reconsideration.

Conclusion

102    The primary judge did not err in his consideration of the appellant’s contentions about equitable estoppel, and was correct to refuse to grant any relief in respect of these claims. The appeal must be dismissed. There is no basis for anything but the usual order as to costs.

Associate:    

Dated:    23 August 2021