Federal Court (Full Court). Commonwealth made representations to Appellant that he was an Australian citizen by granting him a passport and enrolling him to vote. He reasonably relied on those representations to his detriment in that he never applied for citizenship and became liable to visa cancellation under s 501(3A). If Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and breached its duty to apply for citizenship for him, did the breach, coupled with the representations, render the Minister equitably estopped from treating him as a non-citizen?
The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), after which the Minister decided under s 501CA(4) not to revoke the cancellation. The Appellant applied to the Federal Court (FCA) for judicial review of the Minister's non-revocation decision, but that application was unsuccessful. The Appellant then successfully applied to the Full Court of the FCA (FCAFC) from the FCA's decision.
Before the Minister made a fresh decision on remitter, the Appellant unsuccessfully applied for judicial review to the FCA, seeking the following orders:
Enjoin the Minister including by his officers or agents from treating the Applicant as a non-citizen.
Declare that the Applicant did not apply nor did he have his application considered under the Australian Citizenship Act 1946 (Cth) by reason of the Minister’s failure to perform his obligations as his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth).
A declaration that for the purposes of s 195A of the Migration Act 1958 (Cth), it is in the public interest that the Applicant be granted a permanent visa.
The Appellant eventually appealed the latter FCA decision to the FCAFC, seeking the following orders:
1. The appeal be allowed.
2. The Minister, including by his officers or agents, be enjoined from treating [the Appellant] as a non-citizen, other than for the purpose of granting him a visa under the Migration Act 1958 (Cth).
3. A declaration that it is in the public interest that the Applicant be granted a permanent visa [for the purpose of s 195A of the Migration Act 1958 (Cth)].
4. The Respondent pay the Appellant’s costs of the appeal.
5. Such further or other order as the Court deems appropriate.
Some of the questions to the FCAFC were as follows:
Question 1: If the Commonwealth was his guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) and had a duty to apply for citizenship for him, did the breach of such duty, couple with the representations, render the Minister equitably estopped from treating him as a non-citizen?
Question 2: If the answer to Question 1 is "no", is that to say that "if there is some discretion to be exercised, the human aspects of the situation in which a person finds himself or herself, in part at least because of the mistaken conduct of officers of the Commonwealth, could not be taken into account"?
Question 3: Is it "correct to characterise what is being sought [by proposed order 2 of the appeal] as a quia timet injunction, which is generally issued on an interlocutory basis where there is a high degree of probability, or imminence, of serious injury from a threatened wrong or apprehended injury"?
Question 4: As the Appellant was not in immigration detention at the time of this FCAFC decision, can it be said that "the essential precondition to the exercise of the power in s 195A does not exist, and therefore any judicial consideration of the circumstances in which it might be exercised in relation to [the Appellant] is hypothetical"?
Question 5: Can it be said that "terms of the [proposed order 3] are inimical to the power in s 195A, which is a personal non-compellable power, and leaves the question of whether the grant of a visa to an individual is in the public interest to the opinion of the Minister"?
Question 6: In circumstances where the Minister has not yet made his further decision under s 501CA(4) and where "it may be that the Minister is persuaded that [the Appellant] is not an alien, given the High Court’s decision in Love/Thoms and the material presented to the Minister by [the Appellant]", is it premature to grant relief, with the consequence that the the FCAFC should exercise its discretion against the grant of any relief to the Appellant?
The FCAFC answered those questions as follows:
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