FEDERAL COURT OF AUSTRALIA

O’Donoghue v Minister for Immigration and Citizenship (No 3) [2011] FCA 668

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant (Mr O’Donoghue) appeals from a judgment of the Federal Magistrates Court of Australia given on 27 July 2010 at Perth. He contends that the learned Federal Magistrate erred in law in holding that the first respondent (the Minister) was not estopped from determining Mr O’Donoghue’s application for an Employer Nomination (Residence Class BW) (Subclass 856) visa adversely to Mr O’Donoghue before the final determination of Mr O’Donoghue’s challenge to his extradition.

2    For the reasons which follow, the appeal will be dismissed.

BACKGROUND

3    Prior to the hearing of this appeal, Mr O’Donoghue sought an adjournment of the appeal in order to pursue various new procedural steps (O'Donoghue v Minister for Immigration and Citizenship (No 2) [2011] FCA 118 (O’Donoghue No 2)). The adjournment application was refused. Mr O’Donoghue also sought bail from his present incarceration and that application was also refused (O’Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 (O’Donoghue No 1)).

4    To some extent the relevant background to the hearing of this appeal was set out in O’Donoghue No 2 (at [5]-[19]). In order to place this appeal in context, it is necessary to partially repeat that background.

5    Mr O’Donoghue, an Irish citizen, arrived in Australia in July 2002 holding an ETA (Business Entrant) (Subclass 956) visa. In November of that year, he was granted a Business (Long Stay) (Subclass 457) visa (subclass 457 visa). A year later, he applied for an Employer Nomination (Residence) (Class BW) (Subclass 856) visa (subclass 856 visa) on the basis that he would be employed as a legal consultant by a legal firm in Queensland. The legal firm (Hope Lawyers) lodged an application for approval of a nominated position pursuant to the relevant Migration Regulations. That application was approved by a delegate of the Minister on 16 December 2003. From this approval, it followed that Mr O’Donoghue was granted a Bridging A visa permitting him to remain in Australia until 28 days after notification of the decision in respect of an application for merits review of any refusal to grant him a subclass 856 visa. The Bridging A visa contained a work limitation condition.

6    In 2004, Mr O’Donoghue moved with his family to Perth. At the end of 2004 he was arrested in Perth on provisional warrants issued pursuant to the Extradition Act 1988 (Cth) (the Extradition Act) in relation to offences alleged to have been committed in the Republic of Ireland in respect of which Irish warrants were issued on 24 March 2004.

7    Mr O’Donoghue strenuously contested his extradition in a series of proceedings in various courts including the High Court of Australia. His final application for special leave to appeal to that Court was refused in June 2010.

8    In the meantime, while the extradition proceedings ensued, Mr O’Donoghue’s migration agent made a request (in August 2006) that the conditions on his Bridging A visa be changed so that he would be permitted to work. An officer within the Department of Immigration and Multicultural Affairs considered the application and granted him a new Bridging A visa without a work limitation.

9    On 11 January 2008, Mr O’Donoghue was informed that his application was ‘on hold’ while he had matters in court dealing with the extradition. He was also told that there were other matters which needed to be finalised before his application could be completed. They included ‘confirmation that the position that was approved for the nominating company (Legal Consultant) remained available’. That is the communication to which this appeal is addressed. It will be considered in more detail below.

10    The need for Mr O’Donoghue to provide the further information was repeated in a further letter of 22 April 2009. He was reminded that written confirmation from the nominator, Hope Lawyers, was required in order to confirm that the nominated position remained available. A further reminder was sent on 6 May 2009 with a request for a response. No confirmation that the position was available was forthcoming.

11    In August 2009, following completion of the extradition challenges, a decision was made refusing to grant Mr O’Donoghue a subclass 856 visa due to the absence of the requested written confirmation that the employment position remained available from the nominating company.

12    In the following month, Mr O’Donoghue applied to the Migration Review Tribunal (the MRT) for review of the Department’s decision. On 15 December 2009, the MRT affirmed the Department’s decision to refuse Mr O’Donoghue a subclass 856 visa, due to the absence of confirmation from Hope Lawyers.

13    In January 2010, in the Federal Magistrates Court Mr O’Donoghue sought review of the decision of the MRT.

14    The application was heard on 5 July 2010 and dismissed on 27 July 2010.

15    Mr O’Donoghue then lodged a notice of appeal in this Court appealing from the whole of the judgment of the Federal Magistrate. Again, the ground of appeal was that the learned Federal Magistrate erred in law in holding that the Minister was not estopped from determining Mr O’Donoghue’s application for a visa adversely before the final determination in the extradition proceedings.

STATUTORY FRAMEWORK

16    The grant or refusal of a visa under the Migration Act 1958 (Cth) (the Act) is governed by the provisions of s 65 of the Act and the Regulations applying to the particular class of visa sought. Relevantly, s 65 provides:

(1)    After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

…

17    Regulations 856.213-222 in Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations) relevantly provides as follows:

856.213    The applicant:

(a)    has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and

(b)    is a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment; and

(c)    unless the appointment is exceptional:

(i)    has not turned 45; and

(ii)    has vocational English.

856.214    If the appointment is an approved appointment, the period that has elapsed since it became an approved appointment does not exceed 6 months.

856.22        Criteria to be satisfied at time of decision.

856.221    The appointment mentioned in paragraph 856.213(a) is an approved appointment.

856.222    The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination. (emphasis added)

BEFORE THE FEDERAL MAGISTRATES COURT

18    The Federal Magistrate noted that the key communications on which Mr O’Donoghue relied were emails indicating that his visa application would be ‘on hold’. The email of 11 January 2008 to Mr O’Donoghue from Mr Steven MacLean, the Brisbane Branch Manager of the Department, advised Mr O’Donoghue that his application was ‘currently on hold while you have matters before the court’ (emphasis added).

19    However, that email went on to say:

Other matters that are outstanding before your application can be finalised are:

Updated character and health checks for your family.

Any updated documents required (eg passports, CV, qualifications and confirmation that the position that was approved for the nominating company (Legal Consultant) remains available. (emphasis added)

20    The Federal Magistrate noted that while Mr O’Donoghue was pursuing his extradition challenges (including a failed constitutional challenge), he received a further email on 22 April 2009 when the Department wrote to him saying:

You will recall that in previous correspondence and discussions, I had advised that your application was on hold while you had matters before the courts. Please advise me of the current state of your legal matters.

In addition, please provide written confirmation from the nominator Hope Lawyers that the nominated position remains available. Regulation 856.222 states that:

The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.

Please provide the information requested above within 7 working days and 28 calendar days of the date of this letter. If you do not do so, your application may be decided without the information requested being taken into account. If you cannot provide this information with 7 working days and 28 calendar days, you should contact this office immediately and explain why you are unable to do so. (emphasis added)

21    In dealing with the estoppel ground, the learned Federal Magistrate recorded that Mr O’Donoghue had argued that it was always open to him to seek a substitute employer instead of Hope Lawyers, to withdraw his application and start the process again.

22    The learned Federal Magistrate concluded that the Department cannot be regarded as having acted unreasonably in not affording him an opportunity to seek other employment. His Honour discussed the content and operation of the general doctrine of estoppel as considered by Deane J in Commonwealth v Verwayen (1990) 170 CLR 394 (at 444). His Honour held that the Department’s statements did not constitute a sufficiently clear and unambiguous promise that it would not deal with the visa application until the extradition proceedings had been exhausted. His Honour also rejected any claim of reliance or detriment. On the merits review by the MRT, its reason for affirming the decision of the delegate was that it could not be satisfied that Hope Lawyers would employ Mr O’Donoghue. As his Honour noted (at [19]) even if the MRT had waited until after the extradition proceedings had been finalised, Mr O’Donoghue would not have been in any different position to that which existed on 15 December 2009. He had not received any renewed offer of employment. Furthermore, he had not suggested that he acted or omitted to act in reliance on the undertaking that was in some way detrimental to his case.

23    His Honour went on to consider the difficulties of applying the doctrine of promissory estoppel in administrative decisions and concluded that the doctrine of estoppel should not apply to fetter the exercise of the statutory duty under s 65 of the Act.

24    His Honour’s view was that, in any event, the statement in the 11 January 2009 letter was at best a statement as to the status of the application at a time when, but for the character clearances, Mr O’Donoghue was likely to be accepted. The Department’s actions in requesting confirmation that the position with Hope Lawyers was still open should have put Mr O’Donoghue on notice that the status of his application could change.

ARGUMENT ON APPEAL

25    The argument on appeal as reflected in the written submissions on the estoppel point was the same as the argument advanced before the learned Federal Magistrate without success.

26    On the hearing of the appeal, Mr O’Donoghue was represented by senior and junior counsel who assisted him in the argument on the case and assisted the Court by narrowing the arguable points.

27    In oral argument, senior counsel for Mr O’Donoghue indicated that in light of the difficulty in contending for an estoppel against the Minister in an administrative law framework, the same facts and similar arguments would be relied upon to assert that there had been a failure to afford Mr O’Donoghue procedural fairness. Representations had been made to him concerning the deferring of his visa application consideration. He had relied upon those representations. In light of the assurances that his visa application would not be considered prior to the determination of the extradition proceedings, he had taken no steps to explore other employment possibilities. Having lost the opportunity to explore those possibilities, he had suffered an adverse outcome to his visa application in reliance upon the representation made to him.

28    Central to this argument, either on the basis of an estoppel or on procedural fairness, was the contention that the Minister (through the Department) had made a representation or given an assurance to Mr O’Donoghue on which he had relied.

CONSIDERATION

29    The Federal Magistrate noted that Mr O’Donoghue placed particular emphasis on the assurance given in the first email (on 11 January 2008) that his application was ‘on hold’. However, it is clear in that email that he was also requested to provide confirmation that the position that was approved for the nominating company (Legal Consultant) remained available.

30    If there was any doubt at all about the effect of this, such doubt was dispelled by the clear terms of the 22 April 2009 email which reminded him that he had failed to provide that confirmation and that if he failed to provide it, at the latest, within 28 days from receipt of the Department’s letter, the application may be decided without the information requested being taken into account. He had also been informed clearly that if the information was not provided, the Minister may not be satisfied. Those words are perfectly clear. Even if the application remained ‘on hold’, there was an outer time limit for providing the confirmation sought, failing which, when the matter was ultimately decided, it may be without receipt of such confirmation. Not only was that process consistent with the statutory regime, but there would be no reason to doubt that Mr O’Donoghue, as an experienced solicitor (in Ireland), would understand that provision of the confirmation within the time limit was crucial to his application.

31    Indeed, the 22 April 2009 letter was also followed up by an email of 6 May 2009. Yet a further email was sent on 11 June 2009 advising him that he had not responded to the crucial query. That email said:

As this will have an impact on your application for permanent residence under the Employer Nomination Scheme, I will be grateful if you could advise your intentions in regards to your application including that for your family.

32    Responses were received from Mrs O’Donoghue on behalf of each of them (as the visa application was in respect of the family). The response from Mrs O’Donoghue, however, only indicated that the litigation regarding the extradition was continuing and that the matter was under appeal to the Full Federal Court.

33    Yet again, the Department, through Mr MacLean, sent a further email (on 20 August 2009) to Mr O’Donoghue attaching the 22 April 2009 letter saying:

While you did provide an update concerning your matters before the court, you did not respond to my request in relation to your nomination. Specifically, I requested … (the request was repeated).

I once again ask that you provide this information.

Please provide this information within 7 days of the date of this email. If you do not do so within 7 days your application may be decided without the information requested being taken into account. If you cannot provide this information within 7 days you should contact this office immediately and explain why you are unable to do so. (emphasis added)

34    At no time was the confirmation sought by the Department, which had been clearly indicated to be critical to the determination of the application, provided by Mr O’Donoghue. The obvious inference is that it could not be provided but what was provided, very belatedly, was a communication on 23 August 2009 pointing out that ‘the bilateral contractual obligations and duties binding the parties still prevail and therefore the position is still available’.

35    It went on to point out that Mr O’Donoghue was temporarily on remand in Hakea Prison in Western Australia and made various other submissions.

36    The learned Federal Magistrate concluded (at [5]) that this letter was disingenuous saying:

It does not respond to the Department’s request for information about the current status of the employment offer. It merely informs it of Mr O’Donoghue’s assertion of his legal rights against the nominator.

37    After the earlier requests for provision of confirmation that the specified employment was still available (in January, April and May 2009), on 26 August 2009, the delegate, Mr MacLean, determined that he was not satisfied that Mr O’Donoghue had met condition 856.222 of subclass 856, being a criterion that was required to be satisfied at the time of the decision.

38    It is unnecessary, therefore in the absence of any clear and unambiguous promise, to enter into the difficult area of whether or not estoppel can operate in the field of public law (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (at 207-208) and Minister for Immigration v Polat (1995) 57 FCR 98 per Davies and Branson JJ (at 105)).

39    As to the alternative argument, the question of whether or not there was a relevant duty to afford procedural fairness was not developed in argument. Assuming for present purposes that a duty of procedural fairness was owed to Mr O’Donoghue in the circumstances, the fundamental question remains whether he was, by representations made by the Department, assured that no visa decision by the Minister would be made until completion of the Court proceedings.

40    That conclusion cannot be reached. Although it was clear that Mr O’Donoghue was told that his application was ‘on hold’ until completion of the court proceedings, he was also told that if he failed to provide, within seven to 28 days, the necessary confirmation as to the ongoing availability of the nominated employment, the application may be determined adversely to him.

41    Mr O’Donoghue was given a number of reminders as to the need to provide this information and the consequences of failing to do so were clearly spelt out. It may well be that a determination of his application, had he provided the requested materials within the time limit, would still have been deferred until the outcome of the litigation but he was also clearly told that failure to provide the materials within the time limit would expose him to a risk that the application would be refused. The failure to provide the confirmation within the designated timeframe (or to seek an extension) was to have the consequence that the Minister may refuse his application, whether that be at the end of the litigation which was on foot or before that time. What was clearly conveyed to him was that a failure to conform with the requirements within the timeframe would have that consequence.

42    Insofar as the argument that Mr O’Donoghue relied upon the ‘representation’ to his ‘detriment’, this also is problematic. The entire thrust of the argument is that Mr O’Donoghue would have, had he known that the decision was going to be made prior to the completion of the litigation in the courts, pursued other inquiries to find another employer who could be identified in the application. Putting aside the question of whether such an employer might be found, to do so would not satisfy the terms of the visa application as the effect of the legal requirements necessitated that the Minister be satisfied that the employer nominated in the application, not some other employer, would still be willing and able to employ Mr O’Donoghue.

43    Additionally, it is a limb of Mr O’Donoghue’s argument that at all relevant times he was incarcerated and ‘it was impossible for me to obtain a substitute employer when I was in prison following notification that the Department intended to proceed to determine my Visa application’. This submission made by Mr O’Donoghue tends to support the suggestion that even if it were permissible to nominate a substitute employer, it would not be possible while Mr O’Donoghue was incarcerated to find such employer. While this submission may be correct, it also illustrates that the detriment suffered was not by reason of any ‘representation’ but by reason of the fact that Mr O’Donoghue was (as has been clearly upheld in several decisions) lawfully detained for extradition.

CONCLUSION

44    For these reasons, the appeal will be dismissed. The appellant is to pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    13 June 2011