FEDERAL COURT OF AUSTRALIA

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 23 August 2019 is set aside.

2.    The applicant’s application for revocation of a decision made on 23 April 2018 to cancel the applicant’s Absorbed Person Visa under s 501(3A) of the Migration Act 1958 (Cth) is remitted to the respondent to be determined according to law.

3.    Costs are reserved.

4.    Within 14 days, if no agreement is reached, each party file and serve written submissions (of no more than five pages) on the costs of the proceeding (including in respect of the orders made on 7 April 2020).

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

ANDERSON J:

I. Introduction

1    The applicant, a citizen of New Zealand, is in immigration detention. In my previous decision, the applicant’s application for relief in the nature of a writ of habeas corpus was dismissed: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 (McHugh (No 1)). The applicant now seeks judicial review of the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) not to revoke the mandatory cancellation of the applicant’s absorbed person visa (Minister’s decision).

2    As detailed in McHugh (No 1), the applicant’s life has followed a remarkable path. He was born in the Cook Islands in 1968, which made him a New Zealand citizen. The applicant never knew his biological father and was abandoned by his biological mother shortly after birth. From the age of six, the applicant was cared for by Maryanne and Kevin McHugh, who brought the applicant to Australia in 1975. The applicant was formally adopted by the McHughs in 1976, almost 21 months after arriving in Australia. Two days later, the applicant’s birth was registered in Queensland. However, it was not until 2013, when the applicant was 45 years old, that he learned that he had been adopted, rather than born to, his adoptive parents.

3    The applicant always thought of himself as Australian. In addition to the registration of his birth in Queensland, certain events in the applicant’s adulthood (that were known to the Minister prior to his decision) are consistent with that belief. For long periods of his adulthood, the applicant lived in Aboriginal communities, where he held a ceremonial role, and had seven children of Aboriginal descent. Then, in 2017, the applicant applied for, and was issued, an Australian passport. It came as a surprise to the applicant, therefore, when he was told, after his visa was cancelled, and shortly prior to being placed in immigration detention, that he was not an Australian citizen.

4    The Department of Home Affairs (Department) viewed that the applicant’s passport was issued in error, and cancelled the passport in February 2018. In McHugh (No 1), after reviewing historical citizenship legislation, I determined that, although the applicant was issued an Australian passport, he never satisfied the legislative criteria to become an Australian citizen. I also concluded in that decision that the applicant had failed to establish that he was of biological Aboriginal descent. The result is that the relevant detention and deportation provisions of the Migration Act are capable of validly applying to the applicant.

5    The events of the applicant’s life, in particular the issue of his Australian passport, nevertheless formed central context for the Minister’s decision. When the applicant sought revocation of his visa cancellation, he represented to the Minister that he had only recently learned, at or around the time of being placed in immigration detention, that he held a visa. The applicant represented that he was an Australian citizen due to his Queensland birth certificate and his Australian passport. The applicant moreover made representations about his connections with the Aboriginal Australian people, and the detrimental impact of the potential separation from his family, all of whom reside in Australia.

6    The applicant seeks judicial review of the Minister’s decision on three grounds, the first two of will be dismissed. My view, in summary, is that it is unnecessary to determine whether, as the applicant contends, the Minister breached guardianship obligations owed to the applicant before the applicant turned 21 years old. This is because, even if those breaches were established, they would not result in the Minister having acted outside the scope of his statutory power in exercising his discretion under s 501CA(4) of the Migration Act. Moreover, the applicant’s contention that the Minister ought be estopped from treating the applicant as a non-citizen must also be rejected. Consistent with established authority, an equitable estoppel cannot be raised that has the effect of fettering or preventing the exercise of the Minister’s statutory discretion under s 501CA(4).

7    The applicant succeeds, however, on his final ground of review. Despite the extraordinary circumstances faced by the applicant, the reasons provided by the Minister for his decision fail to consider the applicant’s clear and significant representations that he was an Australian citizen, and that he only learned about his visa after its cancellation. Although the Minister’s reasons acknowledge that the applicant had contributed to the Australian community over 43 years, the Minister failed to acknowledge the registration of the applicant’s birth in Queensland or the issue of the applicant’s Australian passport, and otherwise failed to engage with the circumstances underpinning the applicant’s belief in his Australian citizenship. These failures led to the Minister making a decision that was, in a legal sense, unreasonable.

8    For these reasons, as explained in detail below, the Minister’s decision is set aside. The matter will be remitted to the Minister to re-determine the applicant’s application for revocation of the cancellation of his visa in accordance with law.

ii. Background

9    The applicant’s personal background was introduced above. The purpose of Part II of these reasons is to provide a summary of the background to the Minister’s decision.

10    For reasons that will become clear, the background outlined below extends beyond the representations expressly made by the applicant in support of his revocation request. The surrounding context of the applicant’s detention is relevant to the circumstances in which the Minister came to make his decision under s 501CA(4) of the Migration Act.

Background to the Minister’s decision

11    On 7 October 2013, about four and a half years prior to the cancellation of the applicant’s visa, the Department (then the Department of Immigration and Border Protection) wrote to the applicant to notify him that his visa would be considered for cancellation under s 501(2) of the Migration Act on character grounds, although the letter did not specify which class of visa was held by the applicant.

12    On 20 January 2014, the Department wrote to the applicant notifying him that a delegate of the Minister for Immigration and Border Protection had decided not to cancel his visa. However, the applicant was issued with a formal warning that the visa cancellation may be reconsidered if the applicant continued to commit further offences.

13    The applicant says that he did not receive the letters sent by the Department in 2013 and 2014. He says that he was “living rough” at the time and did not receive mail.

14    After the applicant’s last criminal convictions on 14 February 2018, representatives of the Department conducted enquiries into the status of the applicant’s citizenship. On 23 February 2018, a member of the Department’s Character Liability Assessment Team emailed that Department’s Citizenship Helpdesk regarding the applicant. That email presented the conflicting evidence regarding the applicant’s citizenship (in particular that the applicant was an Australian passport holder and that he held an Australian birth certificate).

15    On 26 February 2018, in response to that email, the Department’s Citizenship Helpdesk determined that the applicant was not an Australian citizen. In particular, the email response expressed that “it appears … that [the applicant] may have been issued with an Australian passport in error”. On the same date, the applicant’s Australian passport, which had been issued on 25 October 2017, was made void.

16    On 23 April 2018, the Department informed the applicant by letter that his visa had been mandatorily cancelled pursuant to s 501(3A) of the Migration Act. The letter referred to the fact that the applicant had held an absorbed person visa since 1 September 1994 by operation of law: for context on this form of visa, see McHugh (No 1) at [31].

Revocation request

17    The applicant’s response to the cancellation of his visa was swift. On 24 April 2018, the day after the Department informed the applicant of his visa cancellation, the applicant requested the revocation of that decision under s 501(3A) of the Migration Act. The applicant completed a form entitled “Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)” (revocation request form), in which he addressed topics such as his family, criminal history and connections with Australia. Notably, in the course of explaining his relationships with his children, the applicant noted that “[i]f my visa (that I have only just found out I am on) is cancelled and this means I have to leave Australia, this would be devastating to my children” (emphasis added).

18    It is apparent from subsequent correspondence, as detailed below, that the applicant separately contacted the Department and contested the assertion that he was not an Australian citizen.

Further correspondence

19    On 30 April 2018, the Department wrote to the applicant to provide evidence that the applicant held an absorbed person visa. It is clear from the letter that, by this time, the Department had been provided with a copy of the applicant’s Queensland birth certificate, and was at least informed that the applicant held an Australian passport. The letter from the Department relevantly advised the following:

Evidence that you hold an Absorbed Person Visa is included with this letter.

In regards to your citizenship status I can confirm that you are not an Australian Citizen by descent.

Your birth certificate states you were born in Atiu Cook Islands, a New Zealand dependant territory until 1965 at which time it became a self-governed territory.

Your Queensland birth certificate sets out that the date of registration is 4 November 1976. Automatic acquisition via adoption did not come into effect until 22 November 1984, therefore, you did not automatically become an Australian citizen via adoption.

An Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.

Australian citizenship by descent is not automatic, you must make an application and you do not become an Australian citizenship by descent until such time as the application is approved. A search of historical records shows there is nothing to indicate that you ever applied for and acquired Australian citizenship either by conferral or descent.

Therefore your Absorbed Person visa remains cancelled. …

20    On 10 May 2018, the Department wrote again to the applicant in response to his enquiries about the cancellation of his visa. The letter expressed the following:

Dear Mr McHugh

I refer to you enquiries where you wish to seek clarification as to why you are not an Australian citizen.

You were born in the Cook Islands and claim you were adopted at around age five by relatives in Australia. At that time, there was no provision under Australian citizenship legislation, which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship.

On 22 November 1984, provisions were included in the Citizenship Act 1948 where by a child, who was present in Australia as a permanent resident, automatically became a citizen upon their adoption in Australia by an Australian citizen. These provisions were not retrospective, so only apply to adoptions that took place after that date.

As a person born outside Australia, the only manner you could have become an Australian citizen is by application either by conferral (as a permanent resident) or by descent (if you had an Australian citizen parent at the time of your birth).

The Department has undertaken a search of departmental records and cannot find a record that you have ever acquired Australian citizenship.

I note you were issued with a Queensland birth certificate and your adopted parents registered your birth on 4 November 1976. It is quite possible that you had been issued with an Australian passport in the past on the basis of this birth certificate.

The Australian Passport Office routinely issued Australian passports to person who were not Australian citizens in error. Therefore, the Australian passport issued to you on 25 October 2017 was done so in error.

This passport is no longer valid and should be returned to the Department of Foreign Affairs and Trade or your nearest Australian Embassy or High Commission. International border authorities have been notified of the passport cancellation.

I trust this information assists clarify why you are not an Australian citizen.

The applicant says he did not see this letter until about August 2018.

21    On 11 May 2018, the applicant, after being released from criminal custody, was detained in immigration detention.

22    On 7 August 2018, the applicant emailed Mr Colin Rowell (Mr Rowell), Assistant Director of the Citizenship Operations Section at the Department. The applicant expressed the following:

I have received confirmation that my Australian passport has been cancelled due to something incorrect about my birth certificate, can you please confirm in detail the reason for this cancellation of my Australian passport, i look forward to hearing from you.

23    On 10 August 2018, Mr Rowell replied as follows:

The issue to a person of an Australian birth certificate or Australian passport does not make that person an Australian citizen. A person is only an Australian citizen if they meet the requirements for Australian citizenship under the Australian Citizenship Act 2007.

[Mr Rowell then referred back to the key aspects in the Department’s letter dated 10 May 2018, as extracted above at [20].]

As you are not an Australian citizen, you are not entitled to hold an Australian passport and consequently your Australian passport has been cancelled.

24    On 21 August 2018, the applicant’s then solicitor and migration agent, Gregory Rohan of the Immigration Advice and Rights Centre, wrote a letter to Assistant Commissioner Vanessa Holben of the Australian Border Force. Mr Rohan’s letter relevantly expressed the following:

On 25 October 2017, Mr McHugh was issued an Australian passport with [document number specified]. That document notes that Mr McHugh's nationality is Australian. I draw your attention to section 3 of the Australian Passports Act 2005 (Cth) (Passports Act) which provides that:

The principal object of this Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally (emphasis added).

As the Department notes in its letter to Mr McHugh on 30 April 2018, Australian passports may only be issued to Australian citizens. Specifically, section 8 of the Passports Act provides that prior to issuing an Australian passport, the Minister for Foreign Affairs must be satisfied that the person is an Australian citizen. It follows that on or before 25 October 2017, the Minister for Foreign Affairs was satisfied that Mr McHugh was an Australian citizen.

It is Mr McHugh’s position that he is an Australian citizen and as such, his detention by the Department Home Affairs is unlawful. Arrangements should be made for his immediate release.

25    Within two hours, the National Character Consideration Centre at the Department responded by email that departmental records indicated that the applicant was an unlawful non-citizen, and that Mr McHugh’s revocation request was progressing.

26    On 13 September 2018, further email correspondence ensued between the applicant and Mr Rowell. The applicant raised the registration of his birth in Queensland and contended that he had automatically acquired citizenship by adoption.

27    On 18 September 2018 and 20 September 2018 respectively, the Department wrote to the applicant to inform him of certain information that might be taken into account by the Minister in making his decision whether or not to revoke the cancellation of the applicant’s visa. That information included the applicant’s National Criminal History Check.

Applicant’s further submissions

28    On 17 October 2018, the applicant emailed the Department to respond to the information raised by the Department in its previous correspondence. The applicant’s email largely addressed the past offences committed by the applicant, and further detailed his history. In the course of recounting that history, the applicant made numerous references to having lived in the Ardyaloon or One Arm Point Community of the Bardi Jawi people (Ardyaloon Community), which is located on the Dampier Peninsula in Western Australia. The applicant also expressed the following:

I’m not sure if I should be asking for a visa I’ve never seen or signed or even been told about until now in my life as I am an Australian citizen as I do have an Australian passport and , I would like nccc [i.e. National Character Consideration Centre] to consider the seriousness and manner of the process against me as it would be disastifying evidence when my case is proven to be a citizen of Australia …

29    On 8 March 2019, the applicant provided a further handwritten letter in support of his revocation request. The letter first detailed the key events of the applicant’s life. In particular, the applicant recounted that he had been raised by the McHughs in a “caring loving respected family”. The applicant then presented submissions as to why he should be permitted to remain in Australia. His letter particularly focussed on his family, and noted that he had 7 children and 10 grandchildren in Australia, all of whom were of Aboriginal Australian descent. His letter then expressed the following:

I HAVE LIVED IN AUSTRALIA FOR 45 YEARS AND [] HAVE ALWAYS KNOWN AUSTRALIA AS MY HOME MY COUNTRY AND NEVER KNOWING THAT I COME FROM ANYWHERE ELSE, I HAVE SCHOOLED HERE, LEARNED ENGLISH HERE, WORKED AND PAYED TAX HERE, STARTED AND MY FAMILY HERE, ALL OF MY FAMILY ARE HERE IN AUSTRALIA. I HAVE TIES WITH THE FIRST PEOPLE OF THIS LAND AUSTRALIA AND NO OTHER COUNTRY.

Departmental submission

30    A submission from the Department to the Minister in advance of the Minister’s decision (Departmental submission) collated all of the relevant background and the applicant’s representations. It relevantly included the following passages:

Other Relevant Information

Citizenship status

57.     Mr MCHUGH submits that he is an Australian citizen due to his Queensland Birth Certificate and Australian passport, which states that his nationality is Australian …. In the Department’s responses to Mr MCHUGH’s Australian citizenship claims he has been informed that

•    .When Mr MCHUGH’s arrived in Australia (12 February 1975) there was no provision under the Australian citizenship legislation which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship. Mr MCHUGH did not automatically acquire citizenship and the Department has assessed he is not an Australian citizen.

•    An Australian passport is not evidence of a person’s citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.

•    The passport is no longer valid, has been cancelled and should be returned to the Department of Foreign Affairs and Trade or the nearest Australian Embassy or High Commission …

…

Sensitivities

63.     Mr MCHUGH, who was born in the Cook Islands, identifies as a member of the Aboriginal community, having lived in Australia since the age of seven and having grown up in and been accepted by the Darwin indigenous community. Furthermore he submits that he is an Australian citizen, on the basis of having an Australian birth certificate (as a result of having been adopted here) and an Australian passport. However his case has been assessed in detail by the Citizenship Helpdesk, which has advised that he is not an Australian citizen and his passport (which was issued prior to 2005, when changes were introduced which would now preclude such an issue) has been cancelled and should be returned.

Minister’s decision

31    On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of the applicant’s visa. The Minister provided a statement of reasons for his decision (Minister’s Reasons).

32    The Minister acknowledged that the applicant had made representations in relation to the revocation of his visa cancellation and summarised the “articulated reasons why the original decision should be revoked” as follows at [13] of the Minister’s Reasons:

•     Most of his offending is minor and due to poor decision making and unfortunate circumstances.

•     In relation to his most recent assault and threats to kill offences in 2018, his wife hurt his feelings causing aggravation, it was never his intention to hurt anyone, and he is disappointed with himself for getting into trouble with the law and letting down his family and community.

•     He states he has learnt that swearing and using threatening language is not acceptable, he is too old and has no desire to return to prison, and that he has found his talent in painting which he wishes to pursue as a career.

•     He has enrolled in a family violence course while at Darwin Correctional Centre to learn different strategies to manage anger and how to speak respectfully.

•     He states that he is changing his ways - he has not consumed alcohol or drugs for over three yearsintends to obtain his driver’s licence in 2018-19, and wants to be a good citizen.

•     He has adapted fairly well to the standards expected at Darwin Correctional Centre within a short period of time, has completed a prison art program, works as a block cleaner and keeps himself busy.

•     He is teaching the study of law at Brisbane Immigration Detention Centre.

•     He has two minor sons – [name redacted] and [name redacted] who are Australian citizens and cared for by their Aboriginal mother [name redacted].

•     He loves [name redacted] and [name redacted], regularly speaks with them on the phone, wants them to live with him if the opportunity arose, and they both wish to live with their father.

•     He has ten minor grandchildren whom he has had varying degrees of involvement with, however he loves them and wishes to remain in their lives.

•     He loves his five adult children with his former partner [name redacted] who he was in a relationship with for eleven years, and who is of Aboriginal descent.

•     Letters of support from his adult children state that they love their father and wish to have their father live alongside them to remain close in their lives and guide them through life.

•    His adopted father Mr Kevin McHugh, and two brothers ([names redacted]) continue to reside in Australia and are Australian citizens.

•    He states that he is close to four aunties and three cousins who are Australian citizens.

•    Personal Circumstances Form lists a further six aunties, five nephews, two nieces, and greater than 20 cousins who reside in Australia.

•    His removal from Australia would make keeping in touch with all of his children, grandchildren and other family members more difficult, he does not know how he could support them from another country, and would never get the opportunity to see them again.

•    He was raised and attended school in the Toowoomba Region of Southbrook, assisted with the chores on the farm, and looked after his younger siblings and cousins while growing up.

•     He has been employed in various occupations from 2001 to 2013 as a labourer, machine operator and self-employed shelling, later travelling around Australia with his ex-partner painting and selling artworks.

•     He states that he does not know any family members in New Zealand and that he fears homelessness, isolation, unemployment, depression and financial hardship if he were to return.

33    The consideration in the Minister’s Reasons as to whether there was “another reason” for revocation was addressed under four primary headings: “Best interests of minor children”, “Strength, nature and duration of ties”, “Extent of impediments if removed” and “Protecting the Australian Community”.

34    The Minister found that it was in the best interests of the applicant’s two minor children, and eight of his grandchildren, for the mandatory visa cancellation to be revoked: Minister Reasons at [14]–[28]. The Minister also found that the applicant would face difficulty adjusting to life in New Zealand, and that this difficulty would be exacerbated by the emotional hardship of being separated from his family in Australia: ibid at [40]–[46]. However, the Minister found that the applicant’s extensive criminal history was serious (ibid at [48]–[59]) and that there was a high risk that the applicant would re-offend, which could result in significant psychological and physical harm to members of the Australian community (ibid at [60]–[76]).

35    In relation to the “strength, nature and duration” of the applicant’s ties to Australia, the Minister stated the following:

Strength, nature and duration of ties

29.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr MCHUGH's ties to Australia.

30.     Mr MCHUGH has resided in Australia for 43 years, having arrived as a child of seven years. Given Mr MCHUGH has lived in Australia for most of his life from a young age I hold the view that the Australian community may afford a higher tolerance of his criminal conduct.

31.     I accept that Mr MCHUGH has family and social ties to Australia in addition to the minor children discussed above. Mr MCHUGH travelled to Australia with Maryanne and Kevin McHugh, and they officially adopted him on 2 November 1976. Mr MCHUGH grew up thinking that Maryanne (now deceased) and Kevin McHugh were his parents until being advised otherwise in 2013. Personal Circumstances Form states that Mr MCHUGH continues to have a close relationship with his adopted father and two brothers ([names redacted]) who are Australian citizens.

32.     I note that Mr MCHUGH has five adult children with his former partner [name redacted] with whom he was in a relationship with for eleven years, and who is of Aboriginal descent. Mr MCHUGH had provided for his children while they were growing up by being present, making sure that they had a good childhood. Despite moving apart from [name redacted], I acknowledge that Mr MCHUGH has maintained contact with, and continues to play a part of the lives of his adult children - [names redacted] who have written letters of support which outline that they love their father and wish him to live alongside them to remain close in their lives and guide them through life.

33.     I also note that Mr MCHUGH was in a relationship with [name redacted] with whom he has two sons who are minors. Despite no longer living with [name redacted], He continues to keep in contact.

34.     I note that Mr MCHUGH states that he has a wife [name redacted] who is an aboriginal artist. The Department has not received any letters of support from [her].

35.     I have considered the effect of non-revocation upon Mr MCHUGH's immediate family in Australia and accept that those persons would experience emotional hardship.

36.     Personal Circumstances Form also outlines other close family members which include four aunties and three cousins who are Australian citizens and continue to reside in Australia. Additionally, there are a further six aunties, five nephews, two nieces, and greater than 20 cousins who reside in Australia.

37.     I have considered the effect of non-revocation upon Mr MCHUGH's other family members in Australia and accept that those persons would also experience emotional hardship.

38.     I note that Mr MCHUGH grew up on the family farm and attended school in the Toowoomba Region of Southbrook. I also note that Mr MCHUGH has been employed in various occupations from 2001 to 2013 as a labourer, machine operator and self-employed shelling. Between 2013 and 2017 Mr MCHUGH travelled around Australia with his ex-partner painting and selling artworks.

39.     Mr MCHUGH has spent 16 years contributing to the community through his employment ventures. I find that Mr MCHUGH has been making a positive contribution for 16 years to the community and I have taken this into account.

36    Then, after considering all of the broad topics identified by the Minister, the Minister’s Reasons concluded as follows:

CONCLUSION

…

80.     In considering, in light of Mr MCHUGH's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr MCHUGH's children [name redacted] and [name redacted]. I found that their best interests would be served by the revocation of the original decision.

81.     In addition, I have considered the length of time Mr MCHUGH has made a positive contribution to the Australian community of over 43 years and the consequences of non-revocation of the original decision for his other family members.

82.     On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr MCHUGH, which are of a violent nature.

83.     Further, I find that the Australian community could be exposed to significant harm should Mr MCHUGH re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MCHUGH.

84.     I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr MCHUGH, than I otherwise would, because he has lived in Australia for most of his life, from a young age.

85.     In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MCHUGH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, employment, volunteer and familial to Australia, and the hardship Mr MCHUGH, his family and social networks will endure in the event the original decision is not revoked.

86.     Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr MCHUGH’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr MCHUGH’s Absorbed Person visa remains cancelled.

37    To interpolate briefly, the Minister’s Reasons contain no reference to the facts that:

(a)    applicant’s birth was registered in Queensland on 4 November 1976;

(b)    the applicant held an Australian passport between 25 October 2017 and 26 February 2018;

(c)    the applicant represented that he was an Australian citizen; or

(d)    the applicant represented that he only learned about his visa after its cancellation.

iiI. APPLICATION TO THIS COURT

38    The applicant sought judicial review of the Minister’s decision on 2 October 2019. The applicant did not have legal assistance at the time.

39    On 12 December 2019, a case management hearing was held in the proceeding, at which the applicant appeared via video-link from the immigration detention centre at which he was then detained. The applicant informed me at that hearing that he was an Australian citizen and confirmed that he sought judicial review of the Minister’s decision. The matter was thereafter listed for hearing on 11 March 2020.

40    On 13 February 2020, Victoria Legal Aid (VLA) filed a notice on behalf of the applicant informing the Court that Mr Guy Coffey (Mr Coffey), a solicitor at VLA, had been appointed to represent the applicant in the proceeding.

41    On 28 February 2020, an affidavit of Mr Coffey was filed on the applicant’s behalf. The affidavit relevantly annexed a “Draft Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)”. A revised version of this document dated 11 March 2020, broadly in the same form as the original, was handed up at the start of the hearing on that date (applicant’s amended application). The Minister did not object, and leave was granted for the applicant to rely on the amended application.

42    As explained in McHugh (No 1) at [11], the applicant’s primary contention under the applicant’s amended application was that his ongoing restraint in immigration detention was unlawful, and that he should immediately be released from detention. For this purpose, the applicant sought relief in the nature of a writ of habeas corpus. I directed that the applicant’s habeas corpus application would be heard and determined separate from, and prior to, the applicant’s application for judicial review of the Minister’s decision (should that latter application be necessary to address): ibid at [12] and [56]–[57].

Habeas corpus application

43    The hearing of the applicant’s habeas corpus application took place on 11 and 12 March 2020. The applicant argued that he could not be lawfully deported, nor lawfully subject to immigration detention, because he was, first, an Aboriginal Australian and, second, an Australian citizen. The Minister rejected these claims and asserted that the applicant is an “alien” to Australia for constitutional purposes, and was accordingly liable to lawful deportation.

44    On 7 April 2020, I delivered my reasons in McHugh (No 1) explaining my decision to dismiss the applicant’s habeas corpus application. A summary of my decision was set out in those reasons as follows:

[18]    As a consequence of the jurisdictional limitation in s 476A of the Migration Act, the Federal Court of Australia does not have original jurisdiction to directly review the validity of any act under the Migration Act in relation to the applicant’s detention. This means that this Court does not have original jurisdiction to hear and determine the applicant’s application for habeas corpus, as this remedy directly questions the lawfulness of the applicant’s detention. However, this Court retains original jurisdiction in the present case to determine whether or not the power to detain under s 189(1) of the Migration Act is capable of validly applying to the applicant in light of his claims to Aboriginality and Australian citizenship.

[19]    In my view, s 189(1) of the Migration Act is capable of applying to the applicant. This is because, for the following reasons, he is an alien to Australia for the purposes of s 51(xix) of the Constitution.

[20]    First, the applicant has failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2). The Minister accepted for the purposes of this application that the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. The applicant has accordingly failed to satisfy his onus of proving the factual elements necessary to establish that he is not an alien on the basis of his Aboriginality.

[21]    Second, the applicant is not an Australian citizen. Conferral of Australian citizenship only occurs through the satisfaction of prescribed statutory criteria. From the time that the applicant was born until the date of this decision, the applicant has not satisfied the statutory criteria for Australian citizenship. In particular, he was not “born in Australia” within the meaning of the relevant citizenship legislation. Moreover, the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his Australian passport, occurred as a matter of accepted fact. However, those administrative actions did not confer Australian citizenship on the applicant as a matter of law.

[22]    If I am wrong, and this Court does possess original jurisdiction to directly review the validity of the applicant’s detention, my view is nevertheless that the applicant is today lawfully detained under s 189(1) of the Migration Act. Although the Minister in the present case did not adduce direct evidence that, as at the time of the hearing, an officer subjectively held a suspicion that the applicant is an unlawful non-citizen, it is open for this Court in the circumstances of the present case to infer the existence of such a suspicion from the admissible evidence. For the reasons summarised above, that suspicion is reasonable; the applicant is, as a matter of law, an unlawful non-citizen.

45    As a result, I made the following orders on 7 April 2020 in the proceeding:

1.    The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    Leave is granted for the applicant to rely on the “Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)” dated 11 March 2020 (Amended Application).

 3.    There be an extension of time for the filing of the Amended Application.

4.    The applicant’s application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed.

5.    The costs of the habeas corpus application be reserved.

46    As at the time of publication of these reasons, my judgment in McHugh (No 1) is subject to an appeal by the applicant, and is listed to be heard by the Full Court on 17 July 2020.

Section 78B notices

47    Before turning to the merits of the applicant’s judicial review application, it is necessary to briefly note that two notices of constitutional matters were filed by the parties under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) in relation to the judicial review application. (The Minister had filed another notice in relation to the applicant’s habeas corpus application, as outlined in McHugh (No 1) at [54].)

48    On 2 March 2020, the applicant filed a Notice of a Constitutional Matter, which expressed that the following constitutional issues arise in relation to the judicial review application:

Whether terms of s 6 of the Immigration (Guardianship of Children) Act 1946 (IGOC Act), as it was between 1975 and 1989, by operation of s 109 of the Commonwealth Constitution, is inconsistent with the following provisions of the, now repealed, Adoption of Children Act 1964 (Qld) (Adoption Act):

a.    s 27, namely the part of that section which purported to assign guardianship of an ‘immigrant child’ to the Director prior to an ‘adoption order’ under s 7;

b.    s 19, namely the part of that section which purported to allow parents of an ‘immigrant child’ to consent to the adoption; and

c.    s 28(1)(d), namely the part of that section which purported to make any other guardianship cease when a child is adopted.

49    Then, on 16 March 2020, the Minister filed a Further Notice of a Constitutional Matter, which relevantly expressed that “a question may arise as to whether the Immigration (Guardianship of Children) Act 1946 (IGOC Act) was enacted pursuant, in part, to the aliens power in s 51(xix) of the Constitution”.

50    The majority of Attorneys-General indicated that they would not intervene in the proceeding. I am otherwise satisfied that a reasonable time has elapsed since the giving of these notices for the purposes of s 78B(1) of the Judiciary Act.

Judicial review application

51    The applicant’s amended application identified five grounds. The three grounds relevant to the application for judicial review are as follows:

C.    By refusing to revoke the cancellation of the visas of the Applicant, the Respondent:

a.    acted beyond power because

b.    erred by failing to consider that

the cause of the Applicant not being a citizen, and being on a visa liable for cancellation, was the Minister.

D.    The Respondent erred in law by acting contrary to the principles of equity in the exercise of his power under s 501CA of the Migration Act 1958 (Cth).

E.    Alternatively to all of the above, the Respondent’s decision should be quashed because it was legally unreasonable for the Minister not to revoke the cancellation of Mr McHugh’s visas.

52    The applicant’s amended application sought various relief. The forms of relief relevant to the applicant’s judicial review application:

…

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

F.    Declare that the Applicant did not apply nor did he have his application considered under the Australian Citizenship Act 1948 (Cth) by reason of the Minister’s failure to perform his obligations as his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth).

G.    Order that the Minister consider any application for citizenship by the Applicant, and only against information concerning Mr McHugh as he was in 1986.

H.    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.

I.    Alternatively to all of the above, that the decision of the Respondent be quashed and the matter be remitted to the Minister for reconsideration according to law, including the principles of equity.

J.    That the Respondent pay the Applicants costs.

Hearing of the applicant’s judicial review application

53    The applicant’s judicial review application was originally listed to be heard by telephone on 23 April 2020. Upon request by the applicant, the hearing was adjourned to the following week, on 27 April 2020, when the application could be heard by videoconference.

54    Despite the adjournment, the parties addressed me on 23 April 2020 on the admissibility of the affidavit of Ian Malcolm Macphee dated 20 April 2020 (Macphee affidavit), as filed by the applicant. For the reasons explained below at [77]–[80], I ruled the Macphee affidavit wholly inadmissible.

55    The applicant’s judicial review application was heard via videoconference on 27 April 2020. The applicant listened to the hearing via telephone. The applicant was represented by Mr Albert of counsel, and the Minister was represented by Mr Hill of counsel. Both had filed detailed written submissions in support of their cases.

Structure of these reasons

56    Each of the applicant’s three grounds of judicial review are now considered in turn:

(a)    Part IV (Guardianship Obligations), which starts from the next paragraph, addresses ground C;

(b)    Part V (Estoppel), which starts below at [125], addresses ground D; and

(c)    Part VI (Legal Unreasonableness), which starts below at [182], addresses ground E.

iV. GUARDIANSHIP OBLIGATIONS

57    Part IV of these reasons addresses ground C of the applicant’s amended application, which contends the following:

C.    By refusing to revoke the cancellation of the visas of the Applicant, the Respondent:

a.    acted beyond power because

b.    erred by failing to consider that

the cause of the Applicant not being a citizen, and being on a visa liable for cancellation, was the Minister.

58    Should the applicant successfully establish this ground, he seeks, in addition to an order that the Minister’s decision be quashed and remitted for reconsideration, the following orders:

…

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

F.    Declare that the Applicant did not apply nor did he have his application considered under the Australian Citizenship Act 1948 (Cth) by reason of the Minister’s failure to perform his obligations as his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth).

G.    Order that the Minister consider any application for citizenship by the Applicant, and only against information concerning Mr McHugh as he was in 1986.

59    As can be seen from the terms of ground C, the applicant alleges two alternative forms of error: first, that the Minister acted beyond his power under s 501CA(4) of the Migration Act and, second, that the Minister erred (jurisdictionally) by failing to take a matter into consideration. Both of these alleged errors derive from 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. Although the ground does not state so, the particular foundation for this allegation, as discussed below, is that the Minister breached his guardianship obligations owed to the applicant under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act).

60    The Court is accordingly required to analyse this ground of review in three stages. The first stage is to determine the extent to which the premise of the ground—that the Minister caused the applicant’s non-citizenship status by breaching his guardianship obligations—is correct. If the premise is correct (either partly or wholly), the second stage is to characterise how, if at all, that influenced the nature and scope of the Minister’s decision-making power under s 501CA(4). Based on this characterisation, the third stage is to determine whether the Minister committed a jurisdictional error as contended by the applicant.

61    For the reasons explained below, it is unnecessary for me to ultimately determine the first stage of this analysis. The reason for this is that the second stage of the analysis is determinative. In summary, even if it is assumed that the Minister breached his guardianship obligations to the applicant, that fact does not influence the nature or scope of the Minister’s decision-making power under s 501CA(4) in the manner contended by the applicant.

62    Prior to explaining why this is so (starting below from [90]), it is convenient to outline the parties’ submissions in relation to the first stage of analysis, and in particular the applicant’s argument that the Minister breached his guardianship obligations owed to the applicant.

Alleged breaches of guardianship obligations

Minister’s obligations under the IGOC Act

63    The IGOC Act was enacted in 1946. A chief purpose of the Act was described as follows by the then Minister for Immigration in his second reading speech for the Bill for the IGOC Act:

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.

(Mr Calwell (Minister for Immigration), Immigration (Guardianship of Children) Bill 1946 Second Reading Speech, 31 July 1946, Commonwealth Parliamentary Debates, House of Representatives (IGOC Bill Second Reading Speech), p 3369. See also, generally, Crock M, Seeking Asylum Alone (Australian Report): A Study of Australian Law, Policy and Practice Regarding Unaccompanied and Separated Children (Themis Press, 2006) (Crock’s Seeking Asylum Alone) p 36.)

64    As Black CJ, Wilcox and Moore JJ observed in Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; 122 FCR 29 (Odhiambo) at [87], although the IGOC Act 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 terms of wider application.

65    The critical obligation under the IGOC Act for present purposes is found in s 6. After further amendments by the Immigration (Guardianship of Children) Act 1948 (Cth) and the Statute Law Revision Act 1973 (Cth), s 6, as at the time of the applicant’s arrival in Australia in 1975, provided as follows:

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 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.

66    The current form of s 6 of the IGOC Act is in materially similar terms, although the phrase “immigrant child” has been replaced with “non-citizen child”, the phrase “father and mother” have been replaced with “the parents”, and the duration of the Minister’s obligation now only operates until the child is 18 years old.

67    Section 6 of the IGOC Act, where applicable, “confers on the Minister a set of rights and responsibilities analogous to those of a parent”: Sadiqi v Commonwealth (No 2) [2009] FCA 1117; 181 FCR 1 (Sadiqi (No 2)) at [299] per McKerracher J. The incidents of this form of guardianship extend to provision of the basic needs of the child: X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524 (X) at [33]–[34] per North J; “X” v Minister for Immigration and Multicultural Affairs [2000] FCA 704 at [13] per North J (reversed on another ground in Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858 per Black CJ, Lee and Merkel JJ); Odhiambo at [86]; AZAEF v Minister for Immigration and Border Protection [2016] FCAFC 3; 240 FCR 198 (AZAEF) at [48(1)] per Besanko J; see also Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1 at [209] per Kirby J. These needs may include the obtaining of legal advice and assistance: Odhiambo at [88], citing Bennett v Minister for Community Welfare [1992] HCA 27; 176 CLR 408 (Bennett (HCA)) at 412 per Mason CJ, Deane and Toohey JJ; see also Bennett v Minister for Community Welfare (1988) Aust Torts Reports 80-210 (Bennett (WASC)) at 68,090 per Nicholson J and AZAEF at [48(2)] per Besanko J. However, the extent of the Minister’s obligations under s 6 of the IGOC Act may be limited by the Minister’s other statutory functions: see WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94 (WACB) at [42] per Gleeson CJ, McHugh, Gummow and Heydon JJ and [106] per Kirby J, Sadiqi (No 2) at [242]–[243] and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] FCA 32; 244 CLR 144 at [195] per Heydon J (dissenting, but not on this point).

68    Although the terms of s 6 of the IGOC Act confer guardianship obligations directly on the Minister, those obligations were capable of delegation (ibid, s 5(1)), and customarily were delegated by the Minister: see, for example, IGOC Bill Second Reading Speech at p 3369 and, on 9 August 1946, p 4090; Crock’s Seeking Asylum Alone at 105–106; X at [14]–[15] and Secretary, Department of Family and Community Services v Waldron [2007] FCAFC 131; 160 FCR 580 at [60] per Besanko J.

Submissions regarding duty and breach

Existence of duty to the applicant

69    As can be seen from the terms of s 6 of the IGOC Act, the Minister’s guardianship obligations only operated in respect of an “immigrant child”. At that time, that concept was then defined in s 4 of the IGOC Act, which provided that, unless the contrary intention appeared,

“immigrant child” means 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.

70    The applicant argues that he met this definition. The applicant was under the age of 21 years old when he entered Australia as an immigrant. Additionally, although the applicant was brought to Australia by Maryanne and Kevin McHugh, they had not yet formally adopted the applicant. (In this regard, the IGOC Act, at the time, did not include an exception to the definition of “immigrant child” (or, later, “non-citizen child”) where the child entered Australia under the care of “an intending adoptive parent”: see s 4AAA(2)(c) of the current IGOC Act, as introduced by the Immigration (Guardianship of Children) Amendment Act 1994 (Cth).) Thus, in the applicant’s submission, he did not enter Australia “in the charge of, or for the purpose of living in Australia under the care of, a parent of [his], or a relative of [his] not less than 21 years of age”.

71    The Minister rejects that the applicant was an “immigrant child” as defined. In the Minister’s submission, the purpose of the IGOC Act was to provide for the care of unaccompanied minors. Given that the word “parents” under statute need not be confined to biological parents, the Minister submits that the applicant, who arrived in Australia with his intending adoptive parents, entered Australia in the charge of a parent for the purposes of the s 4 definition of “immigrant child”. Furthermore, given Maryanne McHugh was the daughter of the woman who had raised the applicant from birth (see McHugh (No 1) at [3]), the Minister alternatively submits that she was a “relative” of the applicant for these purposes.

72    The Minister alternatively submits that, even if the applicant was an “immigrant child” as defined as at the time of arrival in Australia, once the applicant was absorbed into the Australian community, he was no longer an immigrant, and the IGOC Act accordingly no longer applied to him. For this proposition, the Minister cited R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; 133 CLR 369 (Henry), where the High Court held by majority that s 6 of the IGOC Act does not apply to children who, by absorption into the Australian community, have ceased to be immigrants: see ibid at 372 per Barwick CJ, 374 per Gibbs J and 382 per Mason J, as each quoted in Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; 161 FCR 236 at [52] per Gyles, Graham and Tracey JJ. The Minister submits that the applicant had ceased to be an immigrant well before 2 April 1984, being a significant date for the possession of an absorbed person visa: see s 34(2)(a)–(b) of the Migration Act. This was so, according to the Minister, because the applicant entered Australia in 1975 as a 7 year old, had been adopted by an Australian citizen in 1976, and had lived and been educated in Australia.

73    The applicant’s retort is that Henry only addressed the limited question as to whether s 6 of the IGOC Act was validly acted under s 51(xxvii) of the Constitution—the “immigration and emigration” legislative power: see Henry at 372 per Barwick CJ. The applicant, citing the principles of constitutional interpretation summarised in Leask v Commonwealth [1996] HCA 29; 187 CLR 579 at 602 per Dawson J, submits that, to the extent that this constitutional power was not engaged, the aliens legislative power under s 51(xix) of the Constitution would be engaged, and there accordingly would not be any temporal limitation on the IGOC Act applying to the applicant. (This issue—the engagement of the aliens power to support the validity of the IGOC Act—has previously been raised, but not decided, by the High Court: see WACB at [42] per Gleeson CJ, McHugh, Gummow and Heydon JJ and [105] per Kirby J.)

Alleged breaches by the Minister

74    The applicant alleges that the Minister breached his duty under s 6 of the IGOC Act by failing to take steps to protect the applicant’s long-term legal interests by either conferring Australian citizenship on the applicant, or otherwise assisting the applicant to obtain citizenship. In the applicant’s submission, the Minister had three alternative options that he failed to take.

75    According to the applicant, the first option was open to the Minister at any point from the applicant’s arrival in Australia (on 12 February 1975) until the applicant turned 21 years old (on 31 January 1989). In the applicant’s submission, the Minister should have exercised his power under s 32(1) of the Australian Citizenship Act 1948 (Cth) (1948 Citizenship Act) to confer citizenship on the applicant. For reference, s 32 of that Act provided as follows during that period:

32.     (1)    Notwithstanding anything contained in this Act, the Minister may, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person with respect to whose status as an Australian citizen a doubt exists.

(2)    Before granting the certificate, the Minister may require that person to comply with such provisions of this Act as the Minister specifies.

(3)    A certificate granted under this section shall, unless it is proved that it was obtained by means of fraud, a false representation or the concealment of some material fact, be conclusive evidence that the person was an Australian citizen on the date of the certificate but without prejudice to any evidence that he was an Australian citizen at an earlier date.

76    For the purposes of s 32(1), the applicant submits that the relevant “doubt” during this time as to the status of the applicant’s citizenship was whether the applicant’s formal adoption on 2 November 1976 automatically conferred Australian citizenship on the applicant. In McHugh (No 1), I rejected the applicant’s contention that, by operation of s 31(2) of the Adoption of Children Act 1964 (Qld) (1964 Qld Adoption Act), the applicant became “a person born in Australia” for the purposes of s 10(1) of the 1948 Citizenship Act, and was therefore automatically conferred Australian citizenship: McHugh (No 1) at [279]–[323]. However, the applicant highlights that there exists commentary that tends to support the opposing conclusion (see McHugh (No 1) at [312]–[314]), which, in the applicant’s submission, raises the existence of doubt for the purposes of s 32(1) of the 1948 Citizenship Act.

77    For this purpose, the applicant filed the Macphee affidavit, in which the Hon Ian Macphee AO relevantly deposed to the following:

1.     I was the Minister of State responsible for the Australian Citizenship Act 1948 (Cth) from 8 December 1979 until 7 May 1982.

 2.     I was a member of the House of Representatives from 1974 until 1990.

3.     I have read the reasons of this Court in this proceeding dated 7 April 2020, paying particular attention to the Court’s analysis at [250]-[369] concerning the citizenship of Edward McHugh.

4.     Had I received that information when I was Minister, and assuming that those reasons are legally correct, I would have considered that the question of Mr McHugh’s citizenship was attended with sufficient doubt to have exercised my personal power under s 32 of the Australian Citizenship Act 1948 (Cth) as at that time. That is, I would have granted Mr McHugh a certificate of Australian citizenship.

5.     I knew my predecessor in that office, Michael MacKellar, well. He was the relevant Minister from 1975 until 1979. He and I were members of the Liberal Party and of the House of Representatives for all of the 16 years I was in Parliament.

 6.     Mr MacKeller passed away in 2015.

 7.     Based on what I knew of Mr MacKeller, I am confident he would have reached the same conclusion at the relevant time and would have similarly issued the certificate to Mr McHugh.

 8.     I do not recall whether I was ever told that I was Mr McHugh’s legal guardian.

78    The applicant’s attempted reliance on the Macphee affidavit was evidently intended to support the applicant’s argument that, at some time during the relevant period outlined above, the Minister, if he had been informed of the relevant circumstances, would have exercised his power under s 32(1) of the 1948 Citizenship Act to provide conclusive evidence that the applicant was an Australian citizen. However, on 23 April 2020 (being the original hearing date for the judicial review application), after hearing the parties, I ruled that the Macphee affidavit was wholly inadmissible. This resulted from the following analysis of paras 4 and 7 of the affidavit.

79    To start with para 7 of the Macphee affidavit, Mr Macphee does not depose in that paragraph to having held a discussion with the Hon Michael MacKellar AM, either specifically about the applicant or generally about persons in similar positions to the applicant. Instead, Mr Macphee expresses his confidence about what would have been done by Mr MacKellar, who passed away in 2015. My view is that Mr Macphee’s unsubstantiated subjective belief in 2020 about what Mr MacKellar would have done in a hypothetical scenario between 1975 and 1979 is of so little probative value to the facts presently in issue such that it ought be excluded.

80    In para 4 of the Macphee affidavit, Mr Macphee deposes that, if he had been aware of the “information” set out in McHugh (No 1) (in particular at [250]–[369]), then he would have granted the applicant a certificate of Australian citizenship under s 32 of the 1948 Citizenship Act. However, the Macphee affidavit is ambiguous, and does not refer to the specific information that Mr Macphee would have considered. In this regard, the “information” set out in McHugh (No 1) at [250]–[369] includes the fact that the applicant was entered onto the Commonwealth electoral roll in 1986 and was issued an Australian passport in 2017, both events of which occurred after Mr Macphee’s tenure as the Minister for Immigration and Ethnic Affairs between December 1979 and May 1982, and therefore could not have influenced his decision-making during that period. As such, my view, with respect, is that Mr Macphee’s opinion in 2020 about what he would have done between 1979 and 1982, relying on an uncertain knowledge base, is, again, of so little probative value to the facts presently in issue such that it ought be excluded.

81    In relation to the first option raised by the applicant, the Minister submits, in summary, that the then power under 32(1) of the 1948 Citizenship Act was discretionary, and a court accordingly would not have compelled the Minister to exercise it in favour of an applicant for citizenship. Thus, in the Minister’s submission, this Court cannot conclude that the Minister was a cause of the applicant’s non-citizenship by not exercising that statutory discretion.

82    The second option raised by the applicant was open to the Minister between 22 November 1984 (when the applicant was aged 16 years old) and the date on which the applicant turned 18 years old (being 31 January 1986). The former date—22 November 1984—is significant because that is the date upon which s 10A of the 1948 Citizenship Act prospectively took effect. That provision conferred automatic citizenship upon a person, being a permanent resident, who was adopted by two persons, at least one of whom is an Australian citizen: see McHugh (No 1) at [265]–[267]. The significance of the latter date—the applicant’s 18th birthday—is that the applicant could not be adopted after this date: see the definition of “child” in s 6 of the 1964 Qld Adoption Act, as amended by s 8(1) of the Age of Majority Act 1974 (Qld).

83    The applicant submits that, as at 22 November 1984, the Minister knew, or ought to have known, that the applicant was not an Australian citizen. In these circumstances, and for the protection of the applicant’s long-term interests, the Minister, in compliance with his obligations under the IGOC Act, should have ensured that the applicant was re-adopted by his adoptive parents under the 1964 Qld Adoption Act. To support the existence of a statutory power to re-adopt, the applicant highlighted, in particular, that ss 19(4) and 28(1)(e) of the 1964 Qld Adoption Act both contemplated the making of a second adoption order in respect of the same child. Alternatively, s 16 of that Act empowered the Supreme Court of Queensland, upon an application by the Director of the Department of Children’s Services, to discharge an adoption order if “there is some… exceptional reason why, subject to the welfare and interests of the child, the adoption order should be discharged”.

84    In relation to the second option raised by the applicant, the Minister submits that there was no power to re-adopt the same child available under 1964 Qld Adoption Act. Rather, in the Minister’s submission, s 19(4) of that Act contemplated that a second adoption order could only be made with the consent of previous adopted parents (implying that such an order could only be in respect of an adoption by different parents). In any event, the Minister observed that the 1964 Qld Adoption Act was, evidently, a State Act, and it was never incumbent upon a Commonwealth Minister to take steps to ask a State Minister to exercise a statutory power.

85    The third option raised by the applicant was open to the Minister at any time during which the applicant was aged between 18 and 21 years old (that is, between 31 January 1986 and 31 January 1989). The applicant submits that, during this time, the applicant met all the non-procedural criteria for a grant of citizenship under s 13 of the 1948 Citizenship Act (as introduced by s 11 of the Australian Citizenship Amendment Act 1984 (Cth)). In the applicant’s submission, all that was in his way of making a successful application was the applicant’s lack of knowledge that he was not an Australian citizen. Thus, according to the applicant, the Minister ought to have informed the applicant that he was not a citizen in order to enable the applicant to apply for citizenship.

86    The Minister’s primary response in this regard is that, even if the applicant met all of the procedural requirements to apply for citizenship, the Minister retained a residual discretion to determine whether or not to grant citizenship. Like s 32(1) of the 1948 Citizenship Act considered above, the Minister submits that a court would not have compelled the Minister to exercise his power to grant citizenship to the applicant and, accordingly, this Court cannot conclude that the Minister was a cause of the applicant’s non-citizenship by not exercising that statutory discretion.

87    Finally, in relation to each of the three options raised by the applicant, the Minister, relying on the affidavit evidence of Ms Debra Irwin (a contractor who provides document management and data processing services to the Department), submits that there is nothing in the Department’s records to suggest that there was any consideration of the applicant as an immigrant child. In this regard, the Minister points to the applicant’s incoming passenger card upon entry to Australia on 12 February 1975, which specified the applicant’s citizenship as Australian, and otherwise indicated that the applicant was a resident returning to Australia. As a result, the Minister says that he cannot be the cause of the applicant’s lack of Australian citizenship, as alleged under this ground of review, if the Minister never knew that the applicant came to Australia as an immigrant child.

Relevance of the applicant’s adoptive parents

88    The applicant submits that the Minister possessed a continuing role in relation to the welfare of the applicant pursuant to his obligations under the IGOC Act despite the presence of the applicant’s adoptive parents, even after they formally adopted the applicant in November 1976. This follows, in the applicant’s submission, from an ordinary reading of s 6 of the IGOC Act, which confers responsibilities on the Minister “to the exclusion of the father and mother and every other guardian of the child”. (In this regard, although it was not raised by the applicant, see Trevorrow v South Australia (No 5) [2007] SASC 285; 98 SASR 136 (Trevorrow (No 5)) at [477] fn 82 per Gray J.) Although the applicant’s adoptive parents may have looked after the applicant’s day to day needs as a child, they did not have any legal training, and the Minister, with the aid of his department, continued to owe obligations to the applicant until he turned 21 years old. Thus, according to the applicant, the fact that his adoptive parents also were capable of looking after his long-term legal interests did not affect the scope of the Minister’s obligations.

89    The Minister conversely argues that, even if the applicant met the definition of an “immigrant child” under the IGOC Act, the presence of Maryanne and Kevin McHugh, acting as de facto guardians of the applicant prior to the applicant’s adoption, and formal adoptive parents afterwards, is relevant to whether the Minister discharged his guardianship duties. The Minister submits that this proposition is supported, by way of analogy, by certain remarks of Besanko J in AZAEF at [49] and [53], which are unnecessary to detail for present purposes.

Redress for breaches of guardianship obligations

90    As noted above, it is unnecessary to determine whether the Minister breached any guardianship obligations to the applicant under the IGOC Act. To explain why this is so, I commence with a general question. If we assume for present purposes that the Minister owed the applicant obligations under s 6 of the IGOC Act, and subsequently breached those obligations in the manner contended by the applicant, how could such a breach be redressed?

91    As a first step, a person in the position of the applicant could seek declaratory relief that they are a person to whom the Minister owes guardianship obligations: see, for example, DKB18 v Minister for Home Affairs [2018] FCA 1465 per Griffiths J. Furthermore, in X, North J stated that the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act extends to the supervision of the Minister’s guardianship role conferred by the IGOC Act. His Honour expressed the following at [79]:

I accept the applicants’ argument that s 6 of the Act and s 39B(1A)(c) of the Judiciary Act confer on the Court a jurisdiction to supervise the Minister’s function as guardian of non-citizen children. The fact that the guardian referred to in s 6 is the Minister or a delegate of the Minister does not mean that the role as guardian involves decisions of an administrative nature. This Court’s jurisdiction to supervise is analogous to the parens patriae jurisdiction exercised by courts of unlimited jurisdiction. The Court must therefore determine for itself whether it is in the best interests of the applicants that the respondents be restrained from claiming costs in the event that Mr Kijagulu acts as tutor and the applications are unsuccessful.

(Note, however, Odhiambo at [89] per Black CJ, Wilcox and Moore J, where the Full Court, after referring to North J’s judgment in X, expressed that there was no argument in Odhiambo “as to whether the Court has jurisdiction, pursuant to s 39B(1A)(c) of the Judiciary Act, in respect of the Minister's powers and obligations as guardian”, and that it was unnecessary for the Full Court to express a view about that issue.)

92    Additionally, although a breach of s 6 of the IGOC Act does not, by itself, give rise to a free-standing cause of action, that breach may be relevant to other causes of action: Sadiqi (No 2) at [302]; Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596 at [11]–[12] per McKerracher J; see also Trevorrow (No 5) at [965] (in relation to guardianship obligations under, in particular, the former Aborigines Act 1934-1939 (SA), for which see Trevorrow (No 5) at [388]). As demonstrated in Trevorrow (No 5) (albeit in a different statutory context), those causes of action may include claims for relief arising from misfeasance in public office (ibid at [976]–[981]), false imprisonment (ibid at [982]–[993]), breaches of fiduciary duties (ibid at [994]–[1011]) and negligence (ibid at [1012]–[1140]; see also, in relation to guardianship obligations under the former Child Welfare Act 1947 (WA), Bennett (WASC) and Bennett (HCA)).

93    Where the Minister’s obligations under the IGOC Act are raised in a proceeding, it is important to characterise the purposes for which the obligations are raised, and to determine how those obligations relate to the underlying claim or action. For example, in Odhiambo, the appellant raised the Minister’s obligations under s 6 of the IGOC Act (and in particular the obligation to provide legal representation) in support of his argument that the Refugee Review Tribunal had erred by failing to adjourn a hearing until the appellant obtained the necessary guardianship assistance. Although the Full Court in Odiambo acknowledged (at [86] and [88]) that the Minister owed all the usual incidents of guardianship (which may include obtaining the provision of legal advice and assistance), their Honours explained that the focus of that case, which involved judicial review of the Refugee Review Tribunal’s decision, was on the “conduct and decision of the Tribunal, not the position or conduct of the Minister”: ibid at [93]; see also [101]. This compelled consideration of the procedures under the Migration Act governing the Refugee Review Tribunal’s decision-making. (For a similar example, see Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516; 113 FCR 524 at [35]–[41] per French J.)

94    Turning to the present case, this Court’s original jurisdiction was invoked by the applicant in filing his original originating application in October 2019. The Court is conferred jurisdiction to review the Minister’s decision under s 39B(1A)(c) of the Judiciary Act, and otherwise permitted to exercise that jurisdiction in respect of a “migration decision” by s 476A(1)(c) of the Migration Act. Thus, notwithstanding the subsequent addition of the applicant’s habeas corpus application, the initial focus of the proceeding was the judicial review of the Minister’s decision. Relevantly, the applicant’s amending application does not raise the forms of collateral claims considered, for example, by Gray J in Trevorrow (No 5).

95    One form of declaratory relief sought in the applicant’s amended application attempts, on its face, to invoke the supervisory jurisdiction referred to by North J in X. The applicant seeks a declaration he did not apply, nor did he have his application considered, under the 1948 Citizenship Act by reason of the Minister’s failure to perform his obligations as his guardian under the IGOC Act (see relief “F”, as extracted above at [52]). However, my view is that it is inappropriate in the present case to consider making such a declaration to the extent that an enquiry into the making of such a declaration is irrelevant to the applicant’s application for judicial review of the Minister’s decision. And, as now explained, the making of the declaration is so irrelevant.

96    The central question in the present case is whether the Minister committed a jurisdictional error in exercising his power under s 501CA(4) of the Migration Act. For the reasons explained below, 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.

Failure to consider

97    It is convenient to start with para (b) of ground C, which alleges that the Minister erred by failing to consider that the Minister caused the applicant’s non-citizenship (by breaching the Minister’s guardianship obligations owed to the applicant). The answer to this is simple: no representation to this effect was made to the Minister.

98    The representations made by a non-citizen play a central role in the statutory scheme (Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 (Omar) at [34(g)] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ; GBV18 v Minister for Home Affairs [2020] FCAFC 17 (GBV18) at [31(c)] per Flick, Griffiths and Moshinsky JJ). Accordingly, the representations made on behalf of a non-citizen in response to the invitation under s 501CA(3) of the Migration Act are, viewed as a whole, a mandatory relevant consideration: Omar at [34(e)]; see also Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 (Viane) at [67]–[68] per Colvin J. However, the Minister, in making a decision under s 501CA(4), is not required to consider a reason in favour of revocation not advanced by the non-citizen: Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [88] per Middleton, Moshinsky and Anderson JJ.

99    Although acknowledging that the applicant was without legal representation at the time, he did not represent to the Minister, either expressly or implicitly, that a reason why the cancellation of his visa should be revoked was a failure of the Minister’s predecessors to comply with their guardianship obligations to the applicant. At most, the applicant provided details of the factual background that could underpin such a claim. But the provision of potentially relevant factual material does not amount to presenting a “clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked”: Viane at [30] per Rangiah J; see also [77] per Colvin J and Omar at [34(h)].

100    The applicant submits for present purposes that the Minister, in exercising a statutory power, is not entitled to ignore part of the law (such as the Minister’s guardianship obligations under the IGOC Act) simply because a person has not made representations to the Minister about the existence or effect of that law. That, as a broad proposition, is correct, but para (b) of ground C, which is the immediate focus, raises a discrete allegation that the Minister failed to consider a particular matter in exercising his discretion under s 501CA(4). For that discrete purpose, the Court’s attention is focussed on the degree to which the Minister considered the representations actually made by, or on behalf of, the applicant, rather than the Minister’s historical compliance with his legal obligations. There is accordingly no merit to para (b) of ground C of the applicant’s amended application.

Acting beyond power

101    Paragraph (a) of ground C of the applicant’s amended application alleges that the Minister acted beyond his power under s 501CA(4) of the Migration Act because the Minister caused the applicant’s non-citizenship (by breaching the Minister’s guardianship obligations owed to the applicant). The means by which the applicant contends that the Minister’s alleged historical breaches affected the exercise of the Minister’s statutory power in August 2019 was succinctly explained in the applicant’s written submissions as follows:

When exercising his discretionary power to revoke cancellation under s 501CA of the Migration Act, the Minister sought to, in effect, make use of his own dereliction of statutory obligations to Mr McHugh in a way which was, for a second time, significantly detrimental to Mr McHugh’s interests. ‘[A] statute should be interpreted so that it is consonant with the principles of equity’. It would be contrary to principle and against conscience for the power in s 501CA to be used to exploit a legal predicament of the Minister’s own making.

(Citations omitted.)

102    The current Minister—the Hon David Coleman MP—obviously did not hold office when the applicant alleges the guardianship obligations breaches occurred (between February 1975 and January 1989). As such, in order for the applicant to attribute past wrongs to the current Minister, the applicant necessarily premised this submission upon the principle that the Minister holds an indivisible and continuing legal office with his predecessors.

103    In support of this premise, the applicant cited Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287; 139 ALD 536 at [93], where Marshall J held (following GG v Australian Crime Commission [2010] FCAFC 15; 182 FCR 513 at [12] per Jessup and Tracey JJ) that s 20 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) aided the construction that Ministerial directions made under s 499 of the Migration Act “continue to have effect as being made by a person who occupied the office of minister at the time of giving a direction”. For reference, s 20 of the Acts Interpretation Act provides as follows:

20 References to holders of appointments, offices and positions in Acts and Commonwealth agreements

In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:

(a)     hold or occupy the office, appointment or position; or

(b)     perform the duties of the office, appointment or position.

See also, for example, Attorney-General v Chan [2011] NSWSC 1315 at [12]–[13] per Adamson J, cited in Pearce D, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) [7.20].

104    As counsel for the Minister did not object to the premise that the current Minister held an indivisible and continuing legal office for the purposes of the IGOC Act, I accept that proposition for present purposes.

Equitable principles and the Minister’s statutory discretion

105    The applicant concedes that there are no authorities that support the proposition that there are equitable qualifications on the exercise of the Minister’s power under s 501CA(4) of the Migration Act. However, according to the applicant, neither are there authorities against that proposition and, in his submission, it is necessary to look to first principles.

106    As the applicant submits, an established aspect of the principle of legality is that legislation is to be construed consistently with the principles of equity, unless there is a requisite contrary intention: Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 (McPherson) at 700 per Kirby P (with Meagher JA agreeing) and 713 per Mahoney JA; Page v Manningham City Council [2010] VSC 265; 27 VR 643 at [61] per Warren CJ; Binetter v BCI Finances Pty Ltd (in liq) [2015] FCAFC 122; 235 FCR 410 (Binetter) at [32] per Besanko, McKerracher and Pagone JJ; Registrar of Titles v Mrsa [2015] WASCA 204 at [32] per Martin CJ, with Newnes and Murphy JJA agreeing; Commissioner of State Revenue v Can Barz Pty Ltd [2016] QCA 23; [2017] 2 Qd R 537 at [17] per Philippides JA; Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) (Pearce’s Statutory Interpretation in Australia) [5.36].

107    To this end, the applicant raises two equitable maxims to demonstrate that the Minister, by deciding not to revoke the mandatory cancellation of the applicant’s visa, acted beyond his power under s 501CA(4) in the circumstances of the present case. The first maxim is that “equity considers done what ought to be done”: see Byrne v Transport Accident Commissioner [2008] VSC 92; 50 MVR 37 (Byrne) at [54] per Cavanough J. (In relation to that maxim generally, see Symons SW (ed), Pomeroy JN, A Treatise on Equity Jurisprudence (5th ed, 1994) Vol 2, §365 and Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2015) (Equity: Doctrines & Remedies) [3-185]–[33-240].)

108    The second maxim is that “no man can take advantage of his own wrong” (or variations to that effect): see, for example, Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [107] per Beaumont J; Health Insurance Commission v Grey [2002] FCAFC 130; 120 FCR 470 at [186] per Beaumont, Sundberg and Allsop JJ; Thompson v Groote Eylandt Mining Co Ltd [2003] NTCA 5; 173 FLR 72 (Thompson) at [31]–[34] per Mildren J, with Martin CJ and Thomas J agreeing; Ruthol Pty Ltd v Tricon (Aust) Pty Ltd [2005] NSWCA 443; 12 BPR 23,923; [2006] ANZ ConvR 173 (Ruthol) at [19]–[24] per Giles JA, with Santow JA and Hunt AJA agreeing; De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86; 83 NSWLR 445 (De Marco) at [32]–[36] and [39]–[41] per McColl JA; Byrne at [53]–[54]; Pearce’s Statutory Interpretation in Australia at [2.61]; Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) [9.720].

109    There are difficulties with the argument that these maxims constrain the Minister’s decision-making power under s 501CA(4). First, in relation to the second maxim outlined above, it is questionable whether that maxim, as practically applied, is truly applicable in the present case, even if we accept the premise that breaches of the Minister’s guardianship obligations caused the applicant’s non-citizenship. On its face, of course, the broad adage that “no man can take advantage of his own wrong” aids the applicant’s argument that the Minister should not be entitlement to exercise his statutory powers to, in the submission of the applicant, “exploit a legal predicament of the Minister’s own making”. However, sweeping equitable maxims, while powerful on their face, may have a more targeted application in practice. In this regard, McColl JA in DeMarco highlighted the following restrictions on the maxim’s application:

[40]     … as Giles JA observed ([Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; (2005) 12 BPR 23,923] at [21]) in Hooper v Lane (1859) 6 HL Cas 443 at 460–461; 10 ER 1368 at 1375–1376, Lord Bramwell explained the proper application of the maxim, saying:

“… that rule only applies to the extent of undoing the advantage gained [by the wrongdoer], where that can be done, and not to the extent of taking away a right previously possessed … [the maxim] means that no one shall gain a right by his own wrong; and not that if he has a right, he shall lose it, or the power of exercising it, by a wrong done in connection with it.”

[41]     The operation of the maxim was also explained in Re London Celluloid Company (1888) 39 Ch D 190 at 206 where Bowen LJ said:

“The maxim that no man can take advantage of his own wrong must be carefully considered, and expressed in more precise terms, before it can be safely applied. It means that a man cannot enforce against another a right arising from his own breach of contract or breach of duty. The observations of Baron Bramwell in Hooper v Lane on this subject are very instructive … To return to the maxim that a man cannot take advantage of his own wrong, we can see the point where it ceases to be applicable. Construing the maxim as I have said, the first question is, has the right to demand payment in cash been acquired through the breach of contract in question? Was it through non-registration of the contract that the liability to pay in cash arose? In my opinion it was not: the liability arose from taking the shares, although such liability might have been avoided in the one way pointed out by the section.”

110    In any event, there are more fundamental obstacles to the applicant’s resort to equitable principles. The principle of legality (from which the applicant’s argument derives) is not a free-standing limitation on the administrative exercise of a statutory discretion. The principle is instead an assumption, or presumption, in aid of the interpretation of a statute, and, importantly, only applies “where constructional choices are open”: Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43] per French CJ.

111    This latter limitation is demonstrated by reference to the decision of Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33 (Hopkins), where the Full Court (constituted by Logan, Wigney and Gleeson JJ) rejected the appellants’ argument that the term “person” in s 501CA of the Migration Act ought be read down so as to exclude a person attracting Art 12(4) of the International Covenant of Civil and Political Rights or an amplified common law right. Although the Full Court in Hopkins, unlike the present case, was interpreting the meaning of a particular word, the Full Court’s reasoning serves a reminder as to limited circumstances in which the principle of legality operates. The Full Court relevantly expressed the following:

[26]     The task of statutory construction must begin and end with consideration of the text read in context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; at [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22].

[27]     In these cases, the issue of construction focuses upon the meaning to be attributed to the word “person” in ss 501 and 501CA respectively.

…

[30]     The meaning of “person” in ss 501(3A) and 501CA(4) must be read to include all natural persons for the reasons given in [Steve v Minister for Immigration and Border Protection [2018] FCA 311] and [Azar v Minister for Immigration and Border Protection [2018] FCA 1175; 261 FCR 1]. As the Minister submitted, there is no relevant ambiguity in the text of either provision. The class of persons to whom a visa to travel to and enter Australia or to remain in Australia may be issued is limited to “non-citizens”: s 29 of the Act. A “non-citizen” is defined to mean a person who is not an Australian citizen: s 5 of the Act. In relation to non-citizens, the Act distinguishes between lawful non-citizens and unlawful non-citizens: ss 13 and 14. As is apparent from s 13(1) of the Act, the distinguishing feature is the holding of a visa which is in effect. Subject to satisfaction that a person meets the applicable criteria and to presently immaterial conditions, upon the receipt of a valid application, the Minister is obliged to grant that person a visa and, if not so satisfied not to grant that person a visa: s 65(1) of the Act. In turn, the cancellation power in s 501(3A) and the power in s 501CA(4) to revoke cancellation each unambiguously apply on the face of the text of these provisions to all persons who hold a visa or, as the case may be, held a visa until its cancellation. There is no area of “constructional choice” in ss 501(3A) and 501CA(4) to which the principle of legality could operate to produce a different outcome. To construe “person” as offering any such choice would be completely antithetical to the generality of application of the visa scheme in the Act to “non-citizens”, as defined.

(Emphasis added.)

112    Turning to further obstacles to the applicant’s resort to equitable principles, the applicant is not seeking in the present case to invoke the principle of legality to support the construction of a particular statutory word or phrase in order to avoid interference with a particular “valuable right”: Tabcorp Holdings Ltd v Victoria [2016] HCA 4; 90 ALJR 376; 328 ALR 375 at [68] per French CJ, Kiefel, Bell, Keane and Gordon JJ; see also, generally, Pearce’s Statutory Interpretation in Australia at [5.43]. Neither is the applicant contending that there was a statutory alteration by s 501CA of the Migration Act of established equitable rules in the sense that occurred in the New South Wales Court of Appeal’s 1991 decision in McPherson.

113    The issue in McPherson was whether the Western Lands Act 1991 (NSW) precluded the Supreme Court of New South Wales from exercising its equitable jurisdiction to provide relief against forfeiture of an interest in a Crown lease created under that Act. The appellants argued that the legislation created, shaped and stated the characteristics of the lease in question and, accordingly, any relief against forfeiture in respect of that lease was to be found within the four corners of the legislation, and not by the application of principles of equity: McPherson at 695 and 698. However, the New South Wales Court of Appeal (constituted by Kirby P, Mahoney and Meagher JJA) held that the Court’s equitable jurisdiction was not precluded.

114    In support of this conclusion, Kirby P (with Meagher JA agreeing) raised (at 698–699) the recognised principle that “[w]here … a statute is silent as to procedures which are to be followed or basic rights observed, the assumption is made, and enforced by the courts, that the statute was intended to operate alongside and in harmony with the common law”. His Honour then considered (at 700) the applicability of such a principle beyond common law rights:

Does a similar principle apply in relation to basic principles of equity, where those principles have been developed over the centuries to safeguard the achievement of justice in particular cases where the assertion of legal rights, according to their letter, would be unconscionable?

In principle, there would seem to be no reason why a similar approach should not be taken to basic rules of equity. The justice of equity may equally supply the omission of the legislature, filling the silences of the statute.

(This passage was cited by Besanko, McKerracher and Pagone JJ in Binetter at [32], where their Honours stated that “[t]he principle which [Kirby P] applied is that the rules of … common law and equity continue to apply in a field where there are also statutory provisions unless those statutory provisions, by express language or by inference which is unambiguously clear, excludes them”.)

115    Then, after turning to the coincidence between the legislation in McPherson and the equitable relief, Kirby P concluded as follows (at 703):

I see no mischief in the simultaneous existence of a statutory and equitable procedure for relief against forfeiture of the interests in leases under the Act. The very fact that equitable relief is confined to most exceptional cases demonstrates the rare circumstances in which such relief would be afforded: see, eg, Gustin v Taajamba Pty Ltd (1988) 4 BPR 9373 at 9381f and Shiloh Spinners [v Harding [1973] AC 691] (at 725). For such exceptional circumstances it is desirable to keep the remedies of equity available. It should be imputed to Parliament that this was its intention.

See also Mahoney JA at 713. (For further commentary on McPherson, see Leeming M, “Equity: Ageless in the ‘Age of Statutes’” (2015) 9 Journal of Equity 108 at 125–126.)

116    The circumstances of the present case, and manner in which the applicant seeks to invoke the principle of legality, differ from the circumstances in McPherson. Clearly, the New South Wales Court of Appeal was not construing the scope of a statutory discretion. The Court of Appeal was instead navigating an absence of legislative expression as to the circumstances in which there was a power to relieve a party from an inequitable forfeiture of an interest in a statutory lease. In those circumstances, the Court of Appeal held, to quote Kirby P at 700, that “[t]he justice of equity” supplied “the omission of the legislature, filling the silences of the statute”. However, in the present case, which involves determining the bounds of a statutory discretion, there are no relevant statutory silences for equity to fill. The power of the Minister under s 501CA(4) of the Migration Act is clearly, and deliberately, broad.

117    The applicant’s visa was mandatorily cancelled in April 2018 by a delegate of the Minister under s 501(3A) of the Migration Act because, at that time, the applicant had a “substantial criminal record” and was serving a relevant sentence of imprisonment. Unless further action was taken by the applicant, he was liable to be removed from Australia. In contemplation of this type of scenario, the Commonwealth Parliament conferred upon the Minister the ability to revoke the visa cancellation should, for example, the cancellation be considered unduly harsh in the circumstances: see Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207 (Ketjan) at [63]–[66] per Middleton, Reeves and Anderson JJ.

118    The Minister is conferred a wide discretion under s 501CA(4) (and in particular s 501CA(4)(b)(ii)) to revoke a mandatory visa cancellation: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [24] per Bromberg and Mortimer JJ. Of course, the discretion is not totally unfettered, and must be exercised consistently with the scope, subject-matter and purpose of that power, and the Migration Act as a whole: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [23] per French CJ, [67] per Hayne, Kiefel and Bell JJ and [90] per Gageler J, and the authorities cited therein. The Minister must also exercise the discretion in accordance with law, in particular by engaging in “an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request”: Omar at [37]. However, there is no legitimate warrant for the scope of the Minister’s power to be further confined by reference to the equitable maxims raised by the applicant.

119    The blunt response to the first maxim—that “equity considers done what ought to be done”—is that, in the context of s 501CA(4), it is the Minister, and no one else, who is empowered to decide “what ought to be done” in the applicant’s circumstances. In particular, although it has been observed that the powers of public officials are considered to be held on trust for the public, this is merely a metaphor (Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [135] fn 109 per Kirby J), and one which should not be stretched too far: Pitt v Holt [2013] UKSC 26; [2013] 2 AC 108 at [11] per Lord Walker, for the Supreme Court of the United Kingdom. Indeed, if the Minister was constrained by broad equitable values in the exercise of his discretion, this would invite opportunity for the guardians of those values—in the present context, the federal judiciary—to impose their own preferences as to “what ought to be done” in the circumstances of a non-citizen’s revocation request. This is, of course, repugnant to the fundamental rule that “[t]he merits of administrative action … are for the repository of the relevant power and, subject to political control, for the repository alone”: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 (Quin) at 35-36 per Brennan J. As such, as Gageler J warned (albeit in dissent) in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at [88], the “[u]nfocussed invocation of the common law principle of construction sometimes now labelled the “principle of legality” can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy’”. See, likewise, McLeish S and Ciolek O, “The Principle of Legality and “The General System of Law”” in Meagher D and Groves M (eds), The Principle of Legality in Australia and New Zealand (The Federation Press, 2017) p 24.

120    Turning to the application of the second equitable maxim raised by the applicant, even assuming the Minister’s predecessors breached their guardianship obligations to the applicant, I am not comfortable with the applicant’s characterisation of the Minister’s decision as exploiting a legal predicament or taking advantage of his own wrong. That form of language can, on one interpretation, attribute an element of malice, or at least deliberate opportunism. Given the applicant did not allege any bad faith or improper purpose on the part of the Minister, references in the applicant’s submissions to exploitation or taking advantage by the Minister should instead be construed in a more neutral sense to simply reference the allegation that the Minister was only in a position to make a decision under s 501CA(4) in respect of the applicant because of the Minister’s previous breaches of guardianship obligations owed to the applicant.

121    Even so, the mere fact that previous actions or omissions of the Minister have wholly or partly caused the applicant to be in a position where he is not an Australian citizen, if proven, does not limit the scope of the Minister’s decision-making power under s 501CA(4). That power is discretionary, and is only limited in the manner discussed above. Indeed, the breadth of that discretion is, from one perspective, advantageous to revocation requests as it permits the Minister to consider the “infinite variety of facts” that may have led to the mandatory cancellation of the non-citizen’s visa: see Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757 per Dixon J. However, in the context of the present statutory scheme, this is dependent on those facts being raised with the Minister in the representations made by, or on behalf of, the non-citizen.

122    Accordingly, to the extent that the applicant pursues a mechanism in the statutory scheme to render the Minister accountable for any past wrongs of the Ministers’ predecessors, it is found in the entitlement of the non-citizen under s 501CA to make representations to the Minister as to why his or her visa cancellation should be revoked. 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.

123    Thus, even assuming that the Minister’s predecessors breached their guardianship obligations to the applicant, and the applicant’s present “legal predicament” is therefore of the Minister’s own making, this could not, and did not, lead to the Minister acting in excess of his statutory power under s 501CA(4) of the Migration Act when he decided not to revoke the cancellation of the applicant’s visa.

Conclusion to ground C

124    For the reasons expressed above, ground C of the applicant’s amending application is dismissed.

v. EQUITABLE Estoppel

125    Part V of these reasons addresses ground D of the applicant’s amended application, which contends the following:

D.    The Minister erred in law by acting contrary to the principles of equity in the exercise of his power under s 501CA of the Migration Act 1958 (Cth).

126    On its face, ground D, which refers broadly to “principles of equity”, appears to traverse matters considered above for the purposes of ground C. However, the applicant’s particular focus under this ground is clear from his written and oral submissions. 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.

127    For the purposes of this judicial review application, the applicant accepts he is not an Australian citizen. He additionally emphasises that he is not seeking any form of equitable citizenship. Instead, if his estoppel argument succeeds, the applicant seeks, in addition to an order that the Minister’s decision be quashed and remitted for reconsideration, the following orders:

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

…

H.    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.

128    As explained below, given the nature of the discretionary power conferred on the Minister under s 501CA(4) of the Migration Act, the applicant faces considerable, if not insurmountable, opposition from established precedent in advancing this ground. Before explaining why that is so, it is necessary to outline how the applicant contends that he is entitled to the relief above.

General principles

129    The accepted formulation as to equitable estoppel in Australia is set out by Brennan J in Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 (Walton Stores) at 428–429. However, for present purposes, a simpler statement of the elements of equitable estoppel is stated in Greenwood v Martins Bank Ltd [1933] AC 51 at 57, where Lord Tomlin expressed that the essential factors giving rise to an estoppel are:

(1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made.

(2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.

(3.) Detriment to such person as a consequence of the act or omission.

(For commentary on equitable estoppel generally, see Equity: Doctrines & Remedies, Ch 17 and G E Dal Pont, Equity and Trusts in Australia (7th ed, Thomson Reuters, 2019) (Dal Pont’s Equity and Trusts in Australia) Ch 10.)

130    In fashioning the appropriate relief in response to an equitable estoppel, the object of such relief is not to compel the party who made the representation to fulfil the expectation of the party induced by that representation, but rather to prevent the detriment that would be suffered by the latter party should its expectation go unfulfilled: Walton Stores at 423 per Brennan J; Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 (Verwayen) at 412 per Mason CJ, 429 per Brennan J, 475 per Toohey J and 501 per McHugh J. The relief may not necessarily entitle the party raising the estoppel to gain the full benefit of the expectation upon which it relied. That is “merely one way of doing justice between the parties”: Walton Stores at 405 per Mason CJ and Wilson J.

Alleged estoppel

Representations

131    The applicant raises five different “factors” that found his claim to equitable estoppel. The applicant says that any two or more of those factors amount to a representation by the Minister that the applicant is an Australian citizen. The five factors are as follows.

132    The first factor is the registration of the applicant’s birth in Queensland on 4 November 1976. Although the position is unclear, I infer that the registration occurred on the “Adopted Children Register” kept by the Registrar-General pursuant to s 55 of the 1964 Qld Adoption Act. The applicant’s birth certificate in evidence in the present case (birth certificate) was certified by the Registrar-General of Queensland on 12 July 2017 as a true copy of the particulars recorded in the relevant register. The birth certificate is extracted in McHugh (No 1) at [284]. The birth certificate relevantly states that the applicant was born in the Cook Islands on 31 January 1968, and that his parents are Maryanne and Kevin McHugh.

133    The Minister’s response to the second factor, in short, is that the registration of the applicant’s birth upon the signature of the Registrar-General of Queensland cannot amount to a representation by, or on behalf of, the Commonwealth Minister.

134    The second factor raised by the applicant is his enrolment on the Commonwealth electoral roll in 1986. The applicant’s evidence (which is unchallenged by the Minister) is that in 1986, when the applicant was 18 years and living with his adoptive parents, the electoral office wrote to him and said that he was eligible to vote. The applicant says he subsequently voted in the Australian federal election in July 1987. (In accordance with s 93(1) of the Commonwealth Enrolment Act 1918 (Cth), as in force at that time, the applicant was only entitled to be enrolled to vote if he was an Australian citizen: McHugh (No 1) at [274] and [345]. However, I found in McHugh (No 1) that enrolment onto the Commonwealth electoral roll did not make the applicant an Australian citizen: ibid at [349]–[351].)

135    The third factor raised by the applicant is that he did not know that he was adopted by Maryanne and Kevin McHugh until 2013, when the applicant was 45 years old. As recounted in McHugh (No 1) at [3]–[4], the applicant, who was born in the Cook Islands in 1968, never knew his biological father and was abandoned by his biological mother shortly after birth. The applicant was initially raised by another Cook Islander woman until her passing in 1974. Thereafter, when the applicant was six years old, that woman’s daughter, Maryanne McHugh, and her husband, Kevin McHugh, cared for the applicant. In relation to the applicant’s later discovery regarding his adoption, the applicant’s affidavit sworn on 27 February 2020 (applicant’s affidavit) relevantly states the following:

My adoption papers

…

36.    I first learned that I was adopted in 2013. Before that, my parents had mislead me extensively. I have tried to piece together since 2013 what happened to me before I was seven. For example, I thought that I was related to my adopted mother. I now understand that she was not, as the adoption application I retrieved in October 2019 records.

37.    My adopted mother died in 2010.

136    The Minister’s response to the third factor, in brief, is that the applicant’s subjective knowledge, although potentially relevant to the applicant’s reliance on a representation, does not amount to a representation by the Minister.

137    The fourth factor raised by the applicant is that he applied for, and obtained, an Australian passport in October 2017: McHugh (No 1) at [7] and [325]–[327]. (In accordance with s 7(1) of the Passports Act 2005 (Cth) (Passports Act), only an Australian citizen is entitled to be issued with an Australian passport and, in accordance with s 8(a) of that Act, the Minister had to be satisfied that a person is an Australian citizen before issuing him or her an Australian passport. See McHugh (No 1) at [276]–[278] and [345]. However, I found in McHugh (No 1) that the issue of an Australian passport to the applicant did not make him an Australian citizen: ibid at [349]–[351].)

138    In addition to the statutory criteria in the Passports Act, the applicant highlights that passports issued in 2017 included the following “safe passage request”:

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 of hindrance and to afford him or her every assistance and protection of which he or she may stand in need.

139    The fifth factor raised by the applicant is that, in his submission, the Minister withheld certain information from the applicant prior to cancelling the applicant’s visa on 23 April 2018. To explain this submission, it is necessary to revisit certain aspects of the procedural chronology detailed in McHugh (No 1) and these reasons.

140    On 14 February 2018, the applicant was convicted of various offences and sentenced to four months’ imprisonment. As explained in McHugh (No 1) at [8], this event was the ultimate catalyst for the mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act. However, the formal cancellation decision was not made until later.

141    After the applicant’s sentencing, representatives of the Department conducted enquiries into the status of the applicant’s citizenship. On 23 February 2018, a member of the Department’s Character Liability Assessment Team emailed that Department’s Citizenship Helpdesk regarding the applicant. That email presented the conflicting evidence regarding the applicant’s citizenship (in particular that the applicant was an Australian passport holder and that he held an Australian birth certificate).

142    On 26 February 2018, in response to that email, the Department’s Citizenship Helpdesk determined that the applicant was not an Australian citizen. In particular, the email response expressed that “it appears … that [the applicant] may have been issued with an Australian passport in error”. On the same date, the applicant’s Australian passport, which had been issued on 25 October 2017, was made void.

143    Then, on 23 April 2018, the Department informed the applicant by letter that his visa had been cancelled pursuant to s 501(3A) of the Migration Act.

144    According to the applicant’s evidence, which is undisputed by the Minister, the applicant was not informed about the Department’s investigations in February 2018 into the status of the applicant’s citizenship. He was also not informed when his Australian passport was made void. Instead, the applicant deposes to the following in his affidavit:

4.    The first I learned that I was not an Australian citizen was when I was put in immigration detention on 11 May 2018. Before that, no one had ever told me that I was either a lawful non-citizen or an unlawful non-citizen.

145    The applicant’s deposition to the fact he first learned he was not an Australian citizen on 11 May 2018 may not be precisely correct. Unless the applicant did not appreciate the significance of the cancellation of his visa, the applicant would have known this fact at least by 24 April 2018, when he requested the revocation of his visa cancellation (see above at [17]). Nevertheless, the position remains that the applicant was not aware that he was a non-citizen, or that the Department was investigating the status of his citizenship, until after his visa was cancelled on 23 April 2018. Although unnecessary to establish an estoppel, the applicant, citing R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659; [2007] 3 All ER 451 at [54] per Lord Phillips CJ (for the Court of Appeal of England and Wales), submits that, in these circumstances, the Minister’s refusal to revoke the cancellation of the applicant’s visa approaches an abuse of statutory power.

146    The Minister’s response to the fifth factor raised by the applicant is that there is nothing in the evidence from which any inference of concealment by the Department could possibly be drawn. Moreover, even if the applicant had the opportunity to make a citizenship application prior to his visa cancellation, there remained considerable statutory obstacles to him being granted citizenship. In the Minister’s submission, these events accordingly do not result in any relevant inequity to the applicant.

Reliance and detriment

147    As noted above, the applicant did not know he was adopted until 2013, when he was 45 years old. The applicant’s evidence is that he “always understood that [his] nationality was Australian” and that, when he applied for a passport in October 2017, he accordingly thought it “would be a formality”. The applicant further deposed to the following uncontested evidence in his affidavit:

34.    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.

148    The applicant particularly submits that, had the applicant, once discovering in 2013 that he was adopted, looked up the relevant citizenship law, the applicant would have, as a lay person, concluded that he was an Australian citizen, since s 13 of the Australian Citizenship Act 2007 (Cth) (2007 Citizenship Act) provides citizenship by adoption. (Counsel for the applicant accepts, however, that s 13 (or an equivalent provision) did not exist at the time that the applicant was adopted in 1976, and therefore did not actually confer citizenship on the applicant. See McHugh (No 1) at [266]–[267] and [270]–[271].)

149    The applicant also highlights the period of approximately two months between February to April 2018 during which the fact that the Department had concluded that the applicant was not an Australian citizen was withheld from the applicant. The applicant notes that, for most of this period, the applicant was the holder of a permanent visa, which is a criterion for an application for Australian citizenship: ss 5 and 21(2)(b) of the 2007 Citizenship Act. In the applicant’s submission, by failing to inform him of the Department’s investigations and conclusion, the Minister deprived the applicant of an opportunity to apply for citizenship.

150    The applicant ultimately alleges that the Minister’s representation—that the applicant was an Australian citizen—resulted in the applicant not applying for citizenship, which meant that the relevant detention and deportation provisions of the Migration Act were capable of applying to the applicant. The applicant contends that, but for the Minister’s representation, he would not be in the “legal predicament” he is in today.

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.

Equitable estoppel and statutory discretions

152    There is no obstacle per se with equity raising an estoppel to create a cause of action against a public authority: Weeks G, “Estoppel and public authorities: Examining the case for an equitable remedy” (2010) 4 Journal of Equity 247 (Weeks’ Estoppel and public authorities) at 247 and 249. This is best exemplified by Verwayen, where Deane and Dawson JJ, writing separately in the majority of the High Court, held that the Commonwealth was estopped from disputing its liability to the respondent. That said, there are established limitations on the ability of equity to enforce an estoppel against public authorities.

153    The first limitation is that an estoppel cannot be raised against a public authority where it would have the effect of compelling the authority to act beyond its statutory power: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Kurtovic) at 208 and 211–216 per Gummow J; see also Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; 231 FCR 539 at [50] per Greenwood and Logan JJ. This includes where an estoppel would have the effect of compelling a public authority to exercise a statutory power that is non-compellable (although a representation by a public authority that it will consider exercising such a power may give rise to procedural fairness considerations: see Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 99 (Offshore Processing Case)). The second limitation is that an estoppel cannot be raised against a public authority to prevent the exercise of a statutory duty or power: Commissioner of Taxation (Cth) v Wade [1951] HCA 66; 84 CLR 105 at 117 per Kitto J, cited in Federal Commissioner of Taxation v Ryan [2000] HCA 4; 201 CLR 109 at [22] per Gleeson CJ, Gummow and Hayne JJ. The third limitation, which is pertinent to the present case, is that an estoppel cannot be raised that has the effect of fettering the exercise of a public authority’s statutory discretion. This is clearly established by Kurtovic, and a subsequent stream of authority, which I am bound to follow.

154    In Kurtovic, the respondent, in respect of whom a deportation order under the Migration Act had been revoked, received a departmental letter that relevantly advised the respondent the following:

You are warned 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.

155    After certain intervening events (but no further criminal convictions incurred by the respondent), the respondent was interviewed by the Department, and invited to make submissions, about the prospect of deportation. The Minister for Immigration and Ethnic Affairs subsequently ordered the deportation of the respondent, who sought judicial review of that decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Justice Einfield, at first instance, quashed the deportation order on grounds including estoppel and denial of nature justice. The Full Court, constituted by Neaves, Ryan and Gummow JJ, dismissed the appeal on the basis that there had been a denial of natural justice, but overturned Enfield J’s conclusion that the letter grounded an estoppel.

156    Each judge on the Full Court, writing separately, either held that, or expressed doubts as to whether, the letter contained a requisite representation of fact or promise by the Minister to found an estoppel: Kurtovic at 196 per Neaves J, 200 per Ryan J and 207 per Gummow J. Neaves J moreover held that there was insufficient evidence to establish that the respondent relied on the letter to his detriment: ibid at 196. Relevantly for the present case, each judge also held that no estoppel could be raised because, if Mr Kurtovic’s argument were accepted, it would amount to a fetter on the Minister’s power then under s 12 of the Migration Act: Kurtovic at 196 per Neaves J, 200–201 per Ryan J and 208–211 per Gummow J. The most extensive analysis of this principle is found in the judgment of Gummow J, where his Honour, after reviewing the authorities, expressed (at 210) 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 understanding …

157    The same issue arose, albeit only incidentally, in Quin, where the respondent, a former stipendiary magistrate in the Court of Petty Sessions, unsuccessfully applied for an appointment as a magistrate after those Courts were abolished by the Local Courts Act 1982 (NSW) and replaced by Local Courts. At the time of the enactment of these reforms, the NSW Government’s policy was that all former stipendiary magistrates would be appointed as magistrates of the new court unless they were unfit for that office. However, the Government later changed its policy such that the respondent’s application, and the applications of four other former stipendiary magistrates who were not reappointed to the new court, would be considered for vacant positions alongside other applications from persons who were not former stipendiary magistrates. The respondent sought a declaration that he was entitled to have his application considered according to the NSW Government’s original policy. The New South Wales Court of Appeal granted that declaration, but was overturned by a majority of the High Court. Relevantly, the power to appoint magistrates under s 12 of the Local Courts Act 1982 (NSW) was widely discretionary, and provided that “[t]he Governor may, by commission under the public seal of the State, appoint any qualified person to be a Magistrate”.

158    The only justice in Quin to expressly consider equitable estoppel was Mason CJ, who acknowledged (at 16) that the NSW Government’s revised policy (to consider applications by former magistrates in competition with applications by other persons) was in conformity with the Governor’s statutory discretion. His Honour then continued as follows (at 17):

Once this is accepted, I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy, or acting in accordance with such a policy, in relation to the appointment of magistrates, so long as the new policy is one that falls within the ambit of the relevant duty or discretion, as in this case the new policy unquestionably does. The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power. Accordingly, it has been said that “a public authority ... cannot be estopped from doing its public duty” …

(Citations omitted and emphasis added.)

159    Mason CJ quoted (at 17) the remarks of Gummow J in Kurtovic with approval. However, before turning to the facts of that case (and rejecting the relief sought by the respondent), Mason CJ expressed the following (at 18):

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 …

160    Mason CJ, and the other justices of the High Court in Quin, also considered the respondent’s claim for relief under the rubric of legitimate expectations (see, in particular, 19–24 per Mason CJ, 34–41 per Brennan J, 52–60 per Dawson J and 64–67 per Toohey J), a concept which is now unnecessary to consider: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [65] per Gummow, Hayne, Crennan and Bell JJ. In this regard, I observe in passing that the doctrine of legitimate expectations, when previously operative, was conceptually distinct from, but shared some common limitations with, equitable estoppel in the context of statutory discretions. In this regard, Dawson J expressed the following in Quin (at 59–60) for dismissing the respondent’s claim for relief based on his alleged expectation:

… the [Local Courts Act] clearly contemplates that some former stipendiary magistrates will not be appointed as magistrates under its provisions and it has been and is a matter for the Attorney-General in the first instance to determine those who are to be appointed and to determine the method by which he will assess their applications.

It is at this point that procedure may run into policy, for the procedure which the respondent seeks may, if it is adopted, result in the appointment as a magistrate of a person who is not the best person for the position. The discretion to select persons for the position of magistrate under the Local Courts Act is unfettered. The respondent had no entitlement to the adoption of a particular procedure in the consideration of his application when it was originally considered, save perhaps that he was entitled to an opportunity to reply to the allegations made against him. He had no right to appointment nor any legitimate expectation of it which would give rise to any such entitlement.

(Emphasis added.)

161    No doctrine of equitable estoppel in the context of statutory duties and powers has emerged since Kurtovic and Quin: Annetts v McCann [1990] HCA 57; 170 CLR 596 at 605 per Brennan J, quoted in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam) at [69] per McHugh and Gummow JJ.

162    The limitations on the application of equitable estoppel in the present context were reiterated by the Full Court (constituted by Rares, Katzmann and Markovic JJ) in Asaad v Minister for Home Affairs (No 2) [2019] FCAFC 214 (Asaad (No 2)). In that case, the appellant argued that the Minister for Home Affairs was estopped from cancelling the appellant’s visa under s 501(2) of the Migration Act because of a previous decision made by a delegate of the Minister’s predecessor not to exercise the discretion under s 501(1) of that Act to refuse the appellant’s application for a bridging visa: Asaad (No 2) at [4] and [28]–[29].

163    The Full Court held that no estoppel arose: ibid at [30]–[38]. Their Honours recited the relevant principles as follows:

[35]     … the delegate’s representation in the 2012 non-cancellation decision could not in any event operate as an estoppel as a matter of law. As Mason CJ said in Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 17:

The Executive cannot, by representation or promise, disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power…

[36]     That is because an estoppel cannot be raised to prevent or hinder the exercise of a statutory discretion in accordance with the statutory duties and functions of the decision-maker: Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111 per Gummow J; cf [Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500] at 513 [44]–[45] per Griffiths and Perry JJ.

164    For further post-Quin recognition of these principles in the Full Court of this Court, see, for example, Roberts v Repatriation Commission (1992) 39 FCR 420 at 423–426 per Black CJ, Gray and Ryan JJ; Minister for Immigration and Ethnic Affairs, v Polat (1995) 57 FCR 98 at 104–107 per Davies and Branson JJ; Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 (Petrovski) at 307–309 per Burchett J and 324–328 per Tamberlin J; Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457; 109 FCR 137 at [29] per Carr, Lindgren and Katz JJ; Theo v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCAFC 72; 45 AAR 403 at [29] per Kiefel, Sundberg and Gyles JJ and Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92; 263 FCR 310 at [74]–[86] per Perry J, with McKerracher and Charlesworth JJ agreeing. For commentary generally, see Mason A, “The Place of Estoppel in Public Law” in Groves M (ed), Law and Government in Australia (The Federation Press, 2005) pp 160–183 (Mason’s The Place of Estoppel in Public Law), Weeks’ Estoppel and public authorities, Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) [6.6.30] and Dal Pont’s Equity and Trusts in Australia at [10.395].

Minister’s statutory discretion in the present case

Impermissibility of injunctive relief

165    As outlined above at [127], the applicant, should his estoppel argument succeed, seeks, amongst other forms of relief, an injunction that prevents the Minister, and his officers and agents, from treating the applicant as if he was a non-citizen. The applicant submits that this form of relief is “carefully tailored” to avoid infringing the established principles set out above. In the applicant’s submission, the relief does not render the applicant a citizen, nor compel the Minister to exercise any power or discretion.

166    It is plainly correct that the injunction sought by the applicant would not confer Australian citizenship on the applicant. Citizenship is a statutory concept, as explained in McHugh (No 1) at [322]. Furthermore, as the injunction sought does not refer to the exercise of any power by the Minister, it is correct, as the applicant submits, that the injunction itself would not compel the exercise of any statutory power by the Minister. However, given the applicant also seeks an order that the Minister’s decision be quashed and remitted for reconsideration, the practical effect of the injunction would be to prevent, or at least fetter, the subsequent exercise of the Minister’s discretion under s 501CA(4) of the Migration Act.

167    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. As the Minister submits, a person is either a citizen, or he or she is not. For instance, for the purposes of the Migration Act, a “non-citizen” is defined by s 5 of that Act as meaning “a person who is not an Australian citizen”.

168    The practical treatment of the applicant as an Australian citizen, in accordance with the terms of the injunctive relief proposed by the applicant, is not to be characterised as merely one constituent fact that feeds into the exercise of the Minister’s discretion under s 501CA(4) of the Migration Act. Rather, the citizenship status of the person seeking revocation, even if that status practically derives from an equitable estoppel rather than statute, goes to the heart of the existence of the Minister’s power to revoke the visa cancellation decision. That is, of course, because s 501CA only operates in respect of a person who previously held a visa, who, by definition, must be a non-citizen of Australia: see ibid, s 29(1). 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.

169    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).

Basis to distinguish or develop established principle?

170    Even if the raising of an estoppel, and the grant of associated relief, sought by the applicant faced obstacles in light of established principles, the applicant contends that there is a basis for the Court to distinguish those principles, or otherwise develop those principles, to provide relief in the circumstances of the present case.

171    For this purpose, the applicant focusses on the Full Court’s decision in Petrovski. That case was considered in McHugh (No 1) at [347]–[348], where I referred to Burchett J’s judgment in support of the proposition that the issue of a passport does not, of itself, amount to a grant of citizenship. The Full Court in Petrovski also considered a claim of estoppel, after the respondent—Mr Petrovski—was erroneously issued an Australian passport. Consistent with the principles outlined above, the Minister in Petrovski was not estopped from exercising the relevant statutory discretion adversely to the respondent: ibid at 308–309 per Burchett J and 328 per Tamberlin J. Burchett J expressed (at 308) that the argument that an estoppel was established was “met by a phalanx of cases that cannot be breached” (including Kurtovic).

172    The applicant first argues that Petrovski is distinguishable on the basis Mr Petrovski, unlike the applicant in the present case, was seeking a form of “equitable citizenship”. The applicant submits that Mr Petrovski was seeking to utilise an estoppel argument in order to, in effect, compel the Minister to grant him Australian citizenship (see ibid at 308G per Burchett J and 327F per Tamberlin J), whereas the applicant in the present case is not seeking any such conferral, but is only seeking to injunct the Minister from treating the applicant as if he was a non-citizen.

173    Contrary to the applicant’s submission in this regard, there is no relevant distinction between Petrovski and the present case. The established principles outlined above regarding the limitations of equitable estoppel are not confined to circumstances in which the proponent of an estoppel is seeking to obtain some right or status, such as “equitable citizenship” (assuming this accurately characterises what Mr Petrovski was seeking). The heart of the principles outlined above is that an estoppel cannot be raised to fetter the exercise of a “free and unhindered discretion” that the legislature has intentionally reposed in a particular decision-maker: Kurtovic at 210 per Gummow J. The effect of the applicant’s argument in the present case is, contrary to that principle, impermissibly seeking to constrain the Minister’s exercise of his statutory discretion under s 501CA(4) of the Migration Act. In this regard, although the applicant may not formally seek any status of quasi-citizenship, counsel for the applicant accepts the practical result of the injunction sought is that the applicant would have to be released from immigration detention.

174    The applicant further and alternatively submits that the facts of the present case are ripe for the development of the principles of equitable estoppel in public law. To this end, the applicant highlights the following remarks of Tamberlin J in Petrovski (at 327–328):

In relation to the application of estoppel in public law, based on principles of ostensible authority, Gummow J [in Petrovski] said (at 213):

“Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law”.

This statement in Kurtovic assumes that no estoppel doctrine has yet emerged in Australian public law. Kurtovic has been extensively cited and applied in a number of subsequent decisions including the recent Full Federal Court decision in [Minister for Immigration and Ethnic Affairs, v Polat (1995) 57 FCR 98].

Mason CJ in Quin, like the US Supreme Court in Heckler v Community Health Services of Crawford County Inc (1984) 467 US 51 (quoted by Gummow J in Kurtovic), was not prepared to close the door on estoppel in public law but neither judgment attempts to formulate with any precision the principles by reference to which particular cases are to be decided when such an estoppel is asserted. There is, of course, much to be said for the observation of the majority in Heckler at 60-61 that:

“... Though the arguments the Government advances for the rule [against estoppel] are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honour, and reliability in their dealings with their Government.” (Emphasis added.)

175    The applicant relies on these remarks, and the authorities cited therein, to demonstrate that, even if the weight of authority is against him, there is no absolute prohibition on an estoppel arising to influence the exercise of a statutory discretion. In oral submissions, counsel for the applicant submits that the present case is the exception to the general rule:

[COUNSEL FOR THE APPLICANT]: … let me make it perfectly clear that we are inviting – we are encouraging your Honour to develop the law. There is no authority fixed against us. The door has been left open. There is, equally – being candid – no authority, clearly, in favour of us. In our submission, Mr McHugh’s history presents an extraordinary set of facts, an extraordinary series of interactions with the Government involving extraordinary conduct by the Government when set against your Honour’s conclusions as to Mr McHugh’s citizenship. Let me be clear that we are seeking from your Honour an expansion of the law accommodated by authority, because, in our submission, this is the appropriate vehicle for the law to be so expanded. We own fully the ambition of this ground, your Honour.

HIS HONOUR: Yes.

[COUNSEL FOR THE APPLICANT]: In short, we say if these are not the facts where equitable estoppel has a role to play, what will they be?

176    The facts of the present case are, indeed, beyond the ordinary. However, for the applicant’s argument to succeed (and for the relevant conduct and representations to fetter the Minister’ statutory discretion) would require a radical shift in Australian public law. The established position in Australia is, as remarked extra-judicially by Sir Anthony Mason, that “Governments, public authorities and administrative decision-makers are not immune from the doctrine of estoppel, but the role of estoppel in public law is necessarily circumscribed by statute law”: Mason’s The Place of Estoppel in Public Law at 182. I am accordingly bound to follow the principle, as recited last year by the Full Court in Asaad (No 2) at [36], that “an estoppel cannot be raised to prevent or hinder the exercise of a statutory discretion in accordance with the statutory duties and functions of the decision-maker”.

Declaration as to public interest

177    Before turning to the applicant’s final ground of review, it is convenient to briefly address another form of relief sought by the applicant under the present ground, namely declaratory relief that, for the purposes of s 195A of the Migration Act, it is in the public interest that the applicant be granted a permanent visa. For reference, subsection (2) of s 195A provides that “[i]f 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)”. (Subsection (1) of s 195A provides that the section applies to a person detained pursuant to s 189, such as the applicant.) For the reasons explained below, the applicant’s claim for declaratory relief in this form is untenable.

178    In support of his claim to the declaratory relief, the applicant highlights the remark of Burchett J in Petrovski (at 309) that “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”. As Tamberlin J expressed (at 329) his “complete agreement” with this remark, the applicant submits that in the present case I am bound by a majority of the Full Court to find, and formally declare, in the present case that, for the purposes of s 195A of the Migration Act, it is in the public interest that the applicant be granted a permanent visa. This submission must be rejected.

179    To start, the broad remark of Burchett J—that it is in the public interest that a person who acted on the faith of a passport should not have that faith misplaced—does not, even with the concurrence of Tamberlin J, constitute binding precedent. That remark did not comprise an aspect of “the general rule of law that the court [in Petrovski] propounded as its reason for the decision” (Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2014] HCA 16; 216 CLR 515 at [59] per McHugh J), and was only included at the end of Burchett J’s judgment by way of “judicial admonishment to executives”, to quote counsel for the Minister in oral submissions.

180    Furthermore, even if Burchett J’s remarks was considered persuasive, it requires a further leap for the Court to grant a declaration that has the effect of compelling a Minister to exercise a statutory discretion in a particular way. In this regard, the declaration sought by the applicant specifically states that it is “for the purposes of s 195A of the Migration Act 1958 (Cth)”. Even if the applicant succeeds in every other aspect in the present case, it is impermissible for the Court to make a declaration in this form because, at a fundamental level, it is contrary to the text and design of s 195A. First, the Minister does not have a duty to consider whether or not to exercise his discretion under s 195A(2) in any circumstance: s 195A(4). Second, a visa may only be granted pursuant to that discretion “[i]f the Minister thinks that it is in the public interest to do so”. Thus, the criterion of the public interest is a matter for the Minister, not the Court, to judge: Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 at [32], [39], [40] and [42] per French CJ, Crennan and Bell JJ; see also ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019] FCAFC 35; 269 FCR 112 at [62] per Flick, Rangiah and Bromwich JJ, and the cases cited therein. Finally, contrary to the applicant’s submission, the declaration granted by the High Court in the Offshore Processing Case (see [101]–[105] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) does not support the applicant’s claim for declaratory relief in the present case. The declaration granted in that case pertained to procedures preliminary to the potential exercise of s 195A (see ibid at [77]–[78]), and did not target the satisfaction of criteria contained within the text of s 195A itself.

Conclusion to ground D

181    For the reasons expressed above, ground D of the applicant’s amending application is dismissed.

vi. Legal reasonableness

182    Part VI of these reasons addresses ground E of the applicant’s amended application, which contends the following:

E.    … the Respondent’s decision should be quashed because it was legally unreasonable for the Minister not to revoke the cancellation of Mr McHugh’s visas.

183    The sole form of relief sought by the applicant under this final ground of review is that the Minister’s decision be quashed, and the matter be remitted to the Minister for reconsideration according to law.

184    The applicant bases his allegation of legal unreasonableness on a range of factual circumstances that have been considered in McHugh (No 1) and these reasons. The written submissions of the applicant on this ground were succinct, and relevantly submits the following:

62.     In this case, the facts should lead the Court to conclude that the Minister’s decision was legally unreasonable. This combination of facts makes the Minister’s decision so unfair as to be unconscionable. It requires a conclusion that the Minister’s decision was infected by jurisdictional error in the form of being legally unreasonable.

63.     Alternatively, all of the above was ‘another reason’, or set of reasons, for the Minister to exercise his power under s 501CA(4) to revoke the cancellation of Mr McHugh’s visa and thereby to allow him to apply for the citizenship that the Minister led him to believe he had as recently as May 2018.

(Citations omitted.)

185    These submissions were developed orally, where counsel for the applicant confirmed that, in his submission, a determination of legal unreasonableness could be reached in one of two ways. The first (as addressed in para 62 of his written submissions) is the alleged “fundamental unfairness” of the Minister’s decision in light of the matrix of underlying facts, in particular the applicant’s claim to Aboriginality, and the manner in which the applicant was, in his submission, misled to believe he was an Australian citizen. The second way in which legal unreasonableness is demonstrated (as addressed in para 63 of his written submissions) is, according to the applicant, through an “orthodox” failure by the Minister to consider the applicant’s claim to Aboriginality and citizenship.

General principles

186    The ground of judicial review known as “legal reasonableness” derives from a statutory implication. The implication that a statutory power be exercised within the bounds of (legal) reasonableness arises through a common law presumption: Li at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler JJ; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh (2014)) at [43] per Allsop CJ, Robertson and Mortimer JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [53] per Gageler J, [80] per Nettle and Gordon JJ and [131] per Edelman J. Where the exercise of a statutory power is exercised in a manner that is legally unreasonable, the exercise of the power is beyond the jurisdiction conferred upon the repository of that power; that is, the repository committed a jurisdictional error: SZVFW at [51] per Gageler J and [80] per Nettle and Gordon JJ.

187    In assessing whether or not an exercise of statutory power is legally reasonable, there is no legitimate basis for a supervising court to determine that the exercise of power was unreasonable in this sense on the basis that the court disagrees with the substantive outcome of the exercise of that power: Li at [30] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Singh (2014) at [45] and [48]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) at [8] and [12] per Allsop CJ; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (Eden) at [59] per Allsop CJ, Griffiths and Wigney JJ; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 (BHL19) at [330] per Bromwich J, with White J agreeing. Instead, “[t]he question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is … a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository”: SZVFW at [54] per Gageler J; see also Eden at [58]. In other words, it is a question of legality, not merits.

188    In BMV16 v Minister for Home Affairs [2018] FCAFC 90; 261 FCR 476 (BMV16) at [80], the Full Court (constituted by Mortimer, Moshinsky and Thawley JJ) explained that, in determining whether an administrative decision was legally unreasonable, it is necessary to:

(1)    identify precisely the decision complained of;

(2)    examine the terms, scope and purpose of the statutory power under which the decision was made; and

(3)    evaluate the decision made to see “whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense”.

(See, likewise, CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] per Thawley J, quoted in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 (DPI17) at [38] per Griffiths and Steward JJ.)

189    The preceding quotation (at [188(3)] above) is from the judgment of Allsop CJ in Stretton at [11]. After exploring the nature and boundaries of a statutory authority’s decisional freedom, the Chief Justice expressed the following (at ibid):

The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

190    This passage reveals the heavy conceptual burden carried by the ground of legal reasonableness. Although not expressly evident from this passage, the designation of an exercise of power as legally unreasonable may follow from the identification of an established species of jurisdictional error: Li at [27] per French CJ and [72] per Hayne, Kiefel and Bell JJ; Singh (2014) at [44]; Stretton at [6] per Allsop CJ. This may occur, for instance, where a decision is “illogical”: Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh (2019)) at [61(1)] per Reeves, O’Callaghan and Thawley JJ. In this sense, the ground of legal unreasonableness forms an “umbrella standard” of review: see Gleeson J, “Taking Stock after Li” in Mortimer D (ed), Administrative Justice and its Availability (The Federation Press, 2015) pp 36–37. However, a determination as to legal unreasonableness may also be outcome-focussed, and reached without identifying specific jurisdictional error: Li at [28] per French CJ; Singh (2014) at [44]; Stretton at [6] per Allsop CJ; Eden at [64]; SZVFW at [82] per Nettle and Gordon JJ. In this regard, the Full Court in Eden explained the relevance of administrative reasons as follows (at [64]):

… where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: [Singh (2014)] at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: [Singh (2014)] at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

191    Further aspects of the ground of legal reasonableness are discussed below. For additional discussion on this ground of review in the Full Court, see Eden at [55]–[65] and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 (Muggeridge) at [35] per Charlesworth J, with Flick and Perry JJ agreeing, and, more recently, Singh (2019) at [61]; DPI17 at [37] per Griffiths and Steward JJ; Vo v Minister for Home Affairs [2019] FCAFC 108 at [42]–[44] per Derrington, Banks-Smith and Colvin JJ; Narayan v Minister for Home Affairs [2019] FCAFC 143 at [2] per Flick, Bromwich and Burley JJ; Minister for Home Affairs v Brown [2020] FCAFC 21; 376 ALR 133 at [188] per Bromwich J; Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [67]–[69] per Perram, Markovic and Charlesworth JJ and BHL19 at [129]–[138] per Wigney J and [329]–[331] per Bromwich J.

“Unfairness” of the Minister’s decision

192    The applicant first alleges that the Minister’s decision was legally unreasonable on the basis that it was “unusually and fundamentally unfair” in light of all the facts that have been explored in McHugh (No 1) and these reasons. In the applicant’s submission, the chief factors giving rise to that unfairness (to be considered cumulatively) are broadly the same factors that the applicant contended gave rise to a representation by the Minister that the applicant was an Australian citizen (as outlined above at [132]–[145]). In addition to those factors, the applicant emphasises that he always thought of himself as Australian. The majority of his childhood was spent in Queensland. For a large period of his adulthood, the applicant lived in Aboriginal communities. This included living in the Ardyaloon Community, and then later in the Mulan Aboriginal community in the east Kimberly region. His seven children are of Aboriginal descent. He self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community. (As discussed below, however, not all of these matters were before the Minister prior to his decision.)

193    As a broad proposition, the task of determining whether an administrative decision is legally unreasonable does involve, as the applicant submits, an evaluative process of assessing or characterising the quality of the decision: see Stretton at [11] per Allsop CJ (quoted in BMV16 at [79]); SZVFW at [79] per Nettle and Gordon JJ and Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465 at [85] per Besanko, Banks-Smith and Colvin JJ. However, that proposition must be read and understood in conformity with the established boundaries of a supervising court’s role upon judicial review: Quin at 35–36 per Brennan J; see also Stretton at [8] per Allsop CJ, [76] per Griffiths J and [92] per Wigney J and Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [81] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.