Atta v Minister for Immigration
[2018] FCCA 2651
•28 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2651 |
| Catchwords: MIGRATION – Estoppel – statutory estoppel – estoppel in public law –diplomatic visa – whether applicant is entitled to rely on VEVO status – extension of time – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.12, 65, 82, 417, 477, 501 Migration Regulations 1944 (Cth) sch.2 cls.572, 995 |
| Cases cited: Atta v Minister for Immigration [2018] FCA 145 Attorney General (New South Wales) v Quin (1990) 170 CLR 1 |
| Applicant: | SELIM MOHAMED MAGDY MAHM ATTA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2878 of 2017 |
| Judgment of: | Judge Baird |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin on a direct access basis |
| Counsel for the Respondent: | Mr R Reilly |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The application seeking an extension of time be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2878 of 2017
| SELIM MOHAMED MAGDY MAHM ATTA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEAL TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.477 of the Migration Act 1958 (Cth) seeking an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal made on 5 April 2017. That decision affirmed a decision of the Delegate of the First Respondent, now named the Minister for Home Affairs, made on 8 January 2016 to refuse to grant the Applicant, Mr Selim Atta, a Student (Temporary) (Class TU) Visa under s.65 of the Act.
Together with his sister, Mr Atta applied for the Visa on 8 January 2016. Mr Atta did not hold a current substantive visa at the time of the application, and had not done so since 2012.
The final day for filing the application to this Court for judicial review of the Tribunal’s decision was 10 May 2017. The application was filed on 15 September 2017, some 108 days outside the 35 day period prescribed by s.477(1) of the Act.
Mr Atta’s case, in substance, is that he relied on express representations of the Department of Immigration and Citizenship’s computerised record Visa Entitlement Verification Online (VEVO) check results that he was the holder of a substantive visa, and the Mister is estopped from denying him the Visa. As for his delay in filing the application in this Court, he relied on the expression of sympathy by the tribunal about the Department’s errors, and that it said it was going to refer his case to the Minister, which it did.
The hearing before me proceeded on the basis that I would hear the application for an extension of time and the substantive application together. The parties’ submissions addressed both applications.
Background
Mr Atta was born in 1995. He is a citizen of Egypt. He arrived in Australia on 15 January 2009 with his family, on a diplomatic (temporary) (sub-class 995) visa, as a secondary visa holder. His father, Mr Mohamed Atta, was the primary visa holder of the diplomatic visa granted on 18 November 2008. That visa ceased in February 2012. However, the Department’s VEVO check results did not show that the visa had ceased until 2016 after Mr Atta applied for the Visa. Until then it stated his visa status as “In Effect” and the period of stay as “Diplomatic”.
The diplomatic visa ceased by operation of s.82 of the Act and cl.995 of schedule 2 of the Migration Regulations1994 (Cth) upon Mr Mohamed Atta ceasing to hold status as a diplomatic representative. Specifically, cl.995.511(b)(i)(A) and (b)(ii)(A) have the effect that the temporary visa permits the holder to remain in Australia for the duration of the time the holder is a diplomatic or consular representative in Australia of a country other than Australia. I attach cl.995.511 as a schedule to these reasons.
Mr Atta’s last substantive visa thus ceased to have effect when his father, Mr Mohamed Atta, ceased to satisfy the primary criteria as a diplomatic or consular representative in Australia of a country other than Australia, namely Egypt.
In separate proceedings brought by Mr Atta’s parents, Atta v Minister for Immigration & Border Protection [2018] FCA 145, Bromberg J considered the operation of s.82 of the Act and cl.995.511 of Sch 2 of the Regulations, set out relevant aspects of Mr and Mrs Atta’s circumstances and made findings as follows:
[4] Mr Atta came to Australia with his wife and children from Egypt in 2009. Mr and Mrs Atta arrived on a Diplomatic (Temp) (Subclass 995) Visa (“Diplomatic Visa”). Mr Atta provided diplomatic duties to the Consulate‑General of Egypt in Sydney. It was uncontroversial before the primary judge that Mr Atta ceased his diplomatic duties in 2012. The best evidence seems to indicate that the employment with the Consulate‑General in Sydney ceased in February 2012. Despite that, Mr Atta and his family continued to stay in Australia.
[5] It seems that contrary to a protocol issued by the Department of Foreign Affairs and Trade (“DFAT”), the Egyptian Embassy in Australia did not advise DFAT that Mr Atta ceased his diplomatic duties in 2012. DFAT appears to have first become aware of that matter on 12 January 2016. DFAT then advised the Department of Immigration and Border Protection (“Department”). …
[14] By operation of s 82 of the Act and cl 995 of Sch 2 of the Regulations, Mr and Mrs Atta’s Diplomatic Visas ceased to have effect upon Mr Atta ceasing to hold status as a diplomatic representative, which for reasons earlier indicated, appears to have occurred in February of 2012. …
[15] The validity of an application for a visa is an objective question to be determined by the Court dealing with an application for judicial review. …
[16] It follows that insofar as the validity of the applications made by Mr and Mrs Atta for the visas depended upon the existence of particular facts, it was for the primary judge to determine objectively whether or not those facts existed. …
[22] … In my view, his Honour was correct to conclude that the diplomatic visas ceased in 2012 by operation of cl 995.511 of Sch 2 of the Regulations together with ss 82(7) and (10) of the Act. …
[28] One may be sympathetic to Mr and Mrs Atta’s plight and that of their children. Departmental records showed that Mr and Mrs Atta held a diplomatic visa through to 27 January 2016. Those records were incorrect and caused confusion. It may well be that the Department was not at fault and the real cause for the confusion and uncertainty falls at the foot of the Egyptian Embassy who, it appears, failed to inform DFAT that Mr Atta’s diplomatic duties had ceased in 2012. In that context, I have some reservation about the primary judge’s conclusion that Mr Atta had no proper basis for believing that his diplomatic visa had ceased in 2012. However, whether or not Mr Atta had a proper basis for that belief is, at the end of the day, irrelevant. Whether or not a valid application for the visas was made by Mr and Mrs Atta fell to be determined by reference to the statutory and regulatory provisions to which I have referred.
Since arriving in Australia in 2009, Mr Atta has attended school, and obtained a number of diplomas and certificates in IT and marketing. He applied for the Visa nominating an intended course “Cert 1V/DIP/Adv Dip of Management” with an education provider or training body “Grand Academy”, which course was to commence on 8 February 2016 and finish on 3 February 2019. His application did not indicate any schooling, education or training in the period from September 2014 to February 2016.
Delegate’s decision
The Delegate refused to grant the Visa for the following reasons:
Your last substantive visa TF-995 ceased on 15/02/2012.
You lodged your Student visa application on 08/01/2016.
Since you are not a holder of a substantive visa and your application was lodged more than 28 days after the day your last substantive visa ceased to be in effect, you do not satisfy regulation 572.211(3).
Regulation 572.211
The Delegate attached the criteria in the sub-class 572 visa regulations that Mr Atta did not satisfy. Relevantly, regulation 572.211 is in the following terms:
572.211
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2)An applicant meets the requirements of this subclause if the applicant is:
(a)the holder of a visa of one of the following classes or subclasses: … or
(b)the holder, as the spouse, de facto partner, or a dependent relative of a diplomatic or consular representative of a foreign country, of a diplomatic (Temporary) (Class TF) visa; or
(3) An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b)the last substantive visa held by the applicant was:
...
(iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner, or a dependent relative, of a diplomatic or consular representative of a foreign country; or ...
and
(c)the application is made within 28 days (or within such period specified in the legislative instrument made by the Minister) after:
(i)the day when that last substantive visa ceased to be in effect; ...
The Department notified Mr Atta of the Delegate’s refusal on 27 January 2016 and enclosed a copy of the Delegate’s decision of 8 January 2016.
Proceeding before the Tribunal
On 11 February 2018 Mr Atta applied to the Tribunal seeking review of the Delegate’s decision. His sister applied for review of the Delegate’s decision relevant to her visa application at the same time. The siblings asked that their applications for review be considered together. The Tribunal acceded to their request.
Mr Atta attached to his application for review a letter which is undated, but noted in the Tribunal records as having been received by 12 February 2016. The letter purports to be from Mr Atta but it is clear from its content that it is written by his sister. It asserts conduct by the sister. The letter states, inter alia:
Dear Case officer …
The case officer has refused my application on grounds that I find completely unreasonable and unfair. The decision record states that my last substantive visa had ceased on 15/02/2012, implying that I was in Australia unlawfully ever since and up till the lodgement date of my student visa application on 08/01/2016. This is extremely odd as I was constantly keen on ensuring I was on a valid visa in Australia, I used to visit the Visa Entitlement Verification Online (VEVO) facility offered by Immigration on a regular basis and it always clearly indicated that my Diplomatic visa was "in effect".
In the uploaded documents attached with this application, there is a VEVO dated 14/01/2016 which is well after I have applied for a student visa meaning that I was indeed on a substantial visa. Given that my Diplomatic visa is considered to have ceased when my father and former diplomat/ Mohamed Magdy Atta has officially terminated his duty as a diplomat in Sydney, why was the visa never cancelled and why was I never notified of a visa cancellation notice?
How am I not to rely on it [VEVO] as a reliable & an official reference to check my visa status?
I assert that before lodging the student visa, [the Department] ensured that I was in Australia lawfully through VEVO. I also assert that I had called multiple times and waited long queues on the phone prior to me commencing any new job merely to ensure I am not breaching my visa condition and that I am here lawfully as I am a daughter of a Diplomat and breaching a visa condition is something that I do not accept by any means nor do my morals or ethics allow me to do. This is in addition to my father's visit to the Department in the past - and after his official completion of his duty as a diplomat - when he took his passport and went out of his way to the Department in 26 Lee street to ensure that he and his family are here lawfully and if not he was ready to do something about it. Staff there checked their system and after a few minutes they advised him that "his diplomatic visa is still I effect and that it has no expiry date" and he asked them if he should worry and they implied that everything seemed fine and let him go.
The Tribunal invited Mr Atta and his sister to appear before it. Mr Atta was unable to appear in person at the first scheduled hearing, but appeared via a conference call from Kuala Lumpur. The hearing was adjourned. At the rescheduled hearing before the Tribunal on 5 April 2017, Mr Atta and his sister appeared to give evidence and make submissions, and were represented by a migration agent.
Mr Atta (and his sister’s) case was that he was under the impression that he was still the holder of the diplomatic visa as part of his father’s family unit. His sister checked the VEVO records. The Tribunal in its decision at [12] sets out their evidence as follows:
[12] At the Tribunal hearing the applicant and his sister advised that they were unaware that their father's visa had ceased to be valid and they continued to study in Australia, obtaining VEVO reports to submit to service providers. He and his sister were unaware that the information was wrong. The applicant intends to continue his studies should a visa be eventually granted to him. At present he does not hold a Confirmation of Enrolment. His parents remain in Australia, as the holders of bridging visas.
The Tribunal described the VEVO tool as follows at [21]:
[21] Visa Entitlement Verification Online (VEVO) is a Department online tool for visa holders to check their current visa details and conditions and to provide registered organisations with a limited amount of relevant information on a visa holders' visa conditions. Organisations can use this information to check if a visa holder is able to work or undertake other activities in Australia, such as study.
The Tribunal stated that it was satisfied the Department provided incorrect information to Mr Atta via the VEVO online tool (at [22]), but found that the last substantive visa Mr Atta held ceased to be in effect on 15 February 2012 (at [23]), the application was not made within the 28 day period, and thereafter Mr Atta did not satisfy cl.572.211(3)(c) and did not meet the requirements of cl.572.211 of sch.2 of the Regulations (at [25]).
The Tribunal continued (at [26]):
[26] The Tribunal does not have any discretion to waive the requirements of cl.572.211 despite errors made by the Department. This is an extremely unusual situation and the Tribunal has great sympathy for the applicant. In light of the obvious failings of the Department, to provide correct information, the Tribunal will refer this application to the Minister.
The Tribunal affirmed the Delegate’s decision.
Proceeding in this Court
Mr Atta seeks to explain the delay in filing in this Court in his affidavit affirmed on 15 September 2017 (September 2017 affidavit):
6. The Tribunal affirmed the decision of the delegate as it had no discretion to extend the 28 day time limit. In its reasons the Tribunal expressed great sympathy for my situation which had been caused by errors of the Department.
7. The Tribunal said it was going to refer my case to the Minister. Dina [his sister] told me that she thought that this would mean that the Minister would intervene to grant me the visa. For this reason I gave no thought at all to making an application to the Court to set aside the decision of the Tribunal.
8. The department sent me requests for further information to enable the Minister to consider my case. Dina along with my then Migration agent supplied this information as requested.
9. On 31 August 2017, the Assistant Minister for Immigration made a decision not to exercise the power in s.351 of the Migration Act to grant me a Visa. As the decision was sent by post I did not receive it until September 2017 …
10. On 12 September 2017 Dina obtained legal advice for the first time in the matter for a Student Visa Application.
11. The explanation for my delay in commencing these proceedings is that I had the impression that the referral of my case to the Minister by the AAT meant that he would grant me a visa. Had I not had this impression I would have sought advice on what I should do, including the option of seeking to review the decision of the Tribunal.
Mr Atta also relies on an affidavit affirmed 12 January 2018, which annexes 2 letters from the Department, the first dated 11 January 2016 and the second dated 13 September 2016. Each letter informed Mr Atta he had been granted a Bridging visa permitting him to remain in Australia whilst his application for the Visa was processed.
The first letter attached a bridging visa grant notice in which the Department stated:
About your bridging visa
This bridging visa is not in effect because your Diplomatic (Temporary) visa is currently in effect.
If your Diplomatic (Temporary) visa is cancelled, you should contact the department immediately. Your Bridging visa may not come into effect and will not allow you to remain lawfully in Australia.
The bridging visa grant notice attached to the subsequent letter did not contain that statement.
Mr Atta relies on the Department’s letter dated 11 January 2016 (and enclosed notice) to support his claim that the Department should be bound by its representations through the VEVO check results record, which, he submits through his counsel, are that he at all times had a valid Diplomatic (Temporary) visa from 2009 until at least after his application for the Visa was made on 8 January 2016.
I note however that the second sentence of the notice set out above (at [24]) places an obligation on Mr Atta to contact the Department if the diplomatic visa is cancelled.
The VEVO check result record (as at 2 May 2013) of Mr Atta’s visa status in evidence shows the “Visa description” field as “DIPLOMATIC/OFFICIAL”, the visa status as “In Effect”, and the “Period of stay” as “Diplomatic”. The result record, however, then states that the “Visa condition(s)” are that the visa applicant must maintain eligibility as follows:
Must Maintain eligibility: The visa holder must continue to satisfy the criteria for grant of their visa.
It is apparent from the VEVO check result record that it is for the visa holder to continue to satisfy the criteria for grant of their visa. The criteria are set out in cl.995.511.
Legal Principles
Section 477(2) of the Act provides that the Federal Circuit Court may, by order, extend the 35 day period in which an application for judicial review may be made as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors that the Court will take into account when considering whether an extension of time should be granted include:
(a)the extent of the delay and the explanation for the delay;
(b)any prejudice the Minister might suffer because of the delay; and
(c)the merits of the proposed application or, as it may otherwise be put, the prospects of success on the substantive application.
The principles were considered by Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585. At [62]‑[63] her Honour adverts to the interests of the administration of justice, and cautions that it is not for the Court, when exercising its discretion in an extension of time application, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic” level into a full consideration of the arguments for and against each ground of review. At [63] her Honour said:
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”… Whichever description is chosen, the approach taken under s.477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s.477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
Her Honour’s consideration at [58]-[63] in MZABP was approved by the Full Court of the Federal Court in MZABP v Minister for Immigration (No 2) [2016] FCAFC 138; see also SZSZW v Minister for Immigration [2017] FCCA 1710.
I am mindful of Mortimer J’s caution not to transform the hearing of the application for an extension of time into a “defacto full hearing”, notwithstanding that the matter has been fully argued before me, thereby enabling the matter efficiently to be heard in one hearing. My consideration below thus addresses the matter at a “reasonably impressionistic level”.
Parties’ appearances and submissions on extension of time
Before me, Mr Atta was represented by Mr Godwin of counsel. Mr Reilly of counsel appeared for the Minister.
Mr Godwin submitted that the fact that the Tribunal referred the matter to the Minister is a cogent explanation for the delay. Mr Godwin seeks to distinguish Mr Atta’s circumstances from the case where an election has been made by an applicant to apply to the Minister to use his dispensing powers, rather than to seek judicial review in this Court. He refers to the decision of Rares J in DKX17 v Federal Court of Australia [2018] FCA 515 at [30]-[31], in which his Honour considered circumstances where the Tribunal sought Ministerial intervention in the applicants’ favour and concluded (at [31]) that the applicants did not choose to make the reference to the Minister, rather that the Tribunal “… told them as lay people, that the reference that it made was, in their circumstances, the appropriate way to deal with their application for a visa”.
His Honour formed the view that the applicants there had explained their delay and that it was necessary for the primary judge to consider the merits of the application for judicial review.
Mr Reilly, for the Minister, submits that the length of Mr Atta’s delay in filing the present application (108 days) is extensive. He refers to Mr Atta’s assertion that he “believed” the Minister would grant him a Visa because of the Tribunal’s intervention. Mr Reilly submits that there is nothing to prevent an applicant from applying for judicial review at the same time as seeking the Minister’s intervention, and thus this does not constitute an adequate explanation for delay.
The Minister accepts that he suffers no prejudice by the grant of an extension of time (other than costs), but that the mere absence of prejudice to the Minister is not enough to justify an order to extend time. Mr Reilly refers to the public interest that there be an end to litigation, and that the Minister should not be put to the burden and cost of additional litigation where the delay remains unsatisfactorily explained, and where there is a lack of merit in the proposed grounds of review.
Consideration of extension of time – explanation for delay
Whilst Mr Atta has given reasons for his delay in filing the application in this Court, and a substantial amount of the delay period falls within the period before the Assistant Minister’s refusal to exercise discretion, and the extent of the delay thereafter is short, I am not convinced that Mr Atta’s optimistic belief that the Minister would grant him a Visa because the Tribunal had referred his case for Ministerial intervention is sufficient reason to explain why he did not also file an application for judicial review in this Court.
Mr Atta was represented at all relevant times before the Tribunal, including when the decision was communicated to him. The Tribunal decision was provided to Mr Atta’s representative when it was delivered. Mr Atta’s statement at [11] of his September 2017 affidavit is not supported by [26] of the Tribunal’s decision. Mr Atta has engaged in magical thinking: that what he wished would happen in fact would happen. Wishing does not provide an adequate explanation for the delay or failure to apply to the Court for judicial review within time.
A fair reading of the Tribunal’s indication that it would refer the application to the Minister does not induce any reasonable belief that the Minister would grant Mr Atta the Visa. Rather, the Tribunal’s indication that it would refer the application would lead a reasonably‑minded reader to understand that the applicants need not themselves seek Ministerial Intervention, not that they should not or need not seek judicial review by the Court, or that the Visa would be granted.
Counsel for both parties focused their submissions on the merits of the underlying application. Although I am not convinced that the explanation for delay is good reason for Mr Atta’s inaction, in the circumstances, I consider that whether it is necessary in the interests of the administration of justice to order that time be extended under s.477(2) of the Act turns on the merits of the application for substantive relief.
Ground of review and merits
The Amended Application specified 4 grounds of review. Following the decision of Bromberg J in Atta (see above at [9]), Mr Godwin appearing for Mr Atta pressed only ground 4. It is:
4. The Tribunal should have remitted the decision with a direction that the first respondent is estopped from denying the applicant a student visa (class TU) on the basis that he did not satisfy clause 573.211 [572.211] (l) and (3) as the applicant had materially altered his position based on representations made to him by the first respondent that he was the holder of a substantive Diplomatic class 995 visa on and before 8 January 2016.
Applicant’s submissions
Mr Godwin’s written submissions at [10] concisely encapsulates the basis of Mr Atta’s case founding estoppel:
[10] The applicant's case is that he relied upon the express representations of the department through the VEVO online system, and through verbal statements to his father and sister that his visa remained in force (brought to his attention through his sister and father). This reliance was to his detriment as he became disqualified from meeting the conditions of a student visa application which required that he make an application for the visa within 28 days of the expiry of his diplomatic (temporary) visa. He did not make an application within that timeframe as he relied on the representation that the diplomatic visa remained in force.
Mr Godwin refers to two recent decisions of the Federal Court of Australia concerning the law of administrative estoppel, the decision of Flick J in Plaintiff S111/2017 v Minister for Immigration [2017] FCA 813, and on appeal Plaintiff S111/2017 v the Minister for Immigration [2018] FCAFC 92, per Perry J (with whom McKerracher and Charlesworth JJ agreed). At first instance, and on appeal the Court held that no representation was made, and that no estoppel could arise.
The applicant in Plaintiff S111 was appealing a visa refusal under s.501 of the Act on character grounds. The Minister had previously refused visas for the applicant on character grounds, but this time the Minister had started processing the visa application without reference to character. The applicant alleged that this was a representation by silence that his visa would not be refused on character grounds. The Court disagreed.
At first instance Flick J observed (at [26]-[28]) that it was presently unresolved whether Australian law has developed to the stage where an estoppel may operate in public law. Although it was not necessary to resolve the argument his Honour nonetheless recognised that “there are not inconsiderable difficulties in the path of such a doctrine being accepted.” It was sufficient for present purposes to accept the principles expressed by Mason CJ in Attorney General (New South Wales) v Quin (1990) 170 CLR 1, at 17 that:
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.
His Honour noted, however, that whilst counsel for the applicant accepted the proposition, he placed reliance on the obiter observations of Mason CJ in Quin (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.
Flick J concluded that reliance upon the observations of Mason CJ in Quin, and those of Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 as to “an induced assumption” (on which counsel also relied), did not assist the applicant in Plaintiff S111 because (1) there was no express representation and the facts fell short of establishing a deliberate silence, and the applicant was unable to identify any prejudice arising or any manner in which he acted on the representation; and (2) because there was no legislative or factual imperative to exercise one or other of the relevant powers (s.501 being one power), at the outset or at any particular point of time relevant to the matter. Further, at [38] his Honour observed (against the applicant in that case, and applicable to Mr Atta’s case) that the applicant left unexplained how the Minister could be held to his “representation” where he is simultaneously under a legislative command “to refuse to grant” the visa, as mandated by s.65 of the Act.
On appeal, in Plaintiff S111/2017, Perry J at [74] held that the primary judge had correctly held that no estoppel could arise. Her Honour discussed the decision of the Full Court in Minister for Immigration v Kurtovic(1990) 21 FCR 193, a case concerning s.12 of the Act, which, at that time, conferred a discretion on the Minister. The Full Court in Kurtovic held that there was no sufficiently clear and unambiguous representation made in the letter in issue which was capable of giving rise to the alleged estoppel. Perry J at [84]-[85] observed that the estoppel alleged would equally fetter the Minister’s discretion under s.501 of the Act, and would also as a consequence fetter the Minister’s duty not to grant the visa under s.65 of the Act where the criteria for the grant of a protection visa, including Public Interest Criterion 4001, were not met. Her Honour approved Flick J’s holding at [38].
Both Plaintiff S111 and Kurtovic were decisions concerned with representations in relation to statutory provisions which, in each case, conferred a discretion on the Minister. Mr Godwin submits that Mr Atta’s case is distinguishable from Plaintiff S111 and Kurtovic for two reasons. First, the representation that Mr Atta continued to hold a diplomatic visa was clear and unequivocal, and, secondly, given that the issue in Mr Atta’s case is whether a criterion that an application be made within 28 days of the expiration of the last substantive visa held has been met, there was no issue of fettering discretion (which was the other basis on which the Full Court in Kurtovic held that there could be no estoppel). Thus, in substance his submission is that Plaintiff S111 and Kurtovic are distinguishable because those decisions were concerned with the exercise of a Ministerial discretion, which cannot be fettered by a representation, whilst the present case is not concerned with any element of discretion, and therefore the operation of estoppel in public law is not precluded.
It does not follow however, that because the Full Court in Plaintiff S111 and Kurtovic were concerned with whether an estoppel might operate in the case of a representation concerning the exercise of a statutory discretion, that an estoppel is not precluded where the representation concerns the performance of a statutory duty or the existence or non‑existence of a particular legal or factual state of affairs. The principles expressed in Quin at [17] do not so provide.
Mr Godwin submitted that the present case raises an important issue of administrative law, and that Departmental officers and systems can be held to positive statements made as to the visa status of individuals is clearly in the public interest. He submits that the public clearly has the perception that the Department is authoritative when it comes to visa status, and that, further, there is a clear representation that the VEVO database is authoritative as to visa status.
Mr Godwin cautions this Court to be especially careful not to regard the present argument as unarguable and dismiss it on an interlocutory basis. On the extension of time application, Mr Godwin referred additionally to the decision of the High Court in Brickworks Limited v Shire of Warringah (1963) 108 CLR 568, and the observations of Windeyer J at 577. Shortly put, Brickworks had applied to the Warringah Shire Council for council consent to the use of certain land for the purpose of extracting clay and shale. Brickworks received in reply a document headed “Land Use Consent”, which stated that the Council, as a responsible authority, thereby consented to the application subject to certain conditions. Later letters written by the Council proceeded on the assumption that there had been consent.
Subsequently, on the grounds of non-compliance with terms of the consent, the Council gave notice and purported to regard the consent as null and void. The Council sought to restrain the company from shale and clay extraction. In its statement of claim, the Council alleged for the first time that its consent had not been given and that the “Land Use Consent” document was unauthorised, apparently on the basis that there was no record of a minute granting consent in the Council’s minute book. At 577, Windeyer J said:
The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the Company. In effect it repeated it. And the Company relied upon these purported consents. Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case.
His Honour referred to and distinguished the decision of the UK Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 Q.B 416. There, the corporation had, by its engineer, mistakenly said that its permission for the use of the land as a builders’ yard was not, in fact, or in law required. The Court held that what the engineer had said could not create an estoppel preventing the corporation from exercising its statutory discretion to forbid the land being used as a builders’ yard. Windeyer J distinguished the case as follows:
That is to say, the Corporation had in effect said to the respondent company there, "you do not need our permission; we have no discretion to prevent your action". In the present case, on the other hand, the Council said in effect, "you do need our permission; we have a discretion which we have exercised in your favour ".
His Honour concluded:
It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn.
I note that as was the case in Plaintiff S111/2017 and Kurtovic, Brickworks was concerned with the exercise of a statutory discretion.
Consideration
I have concluded that Mr Atta has no reasonable prospects. The ground of review is not arguable, despite the best efforts of Mr Godwin.
The ground pressed by the Applicant is that the Tribunal should have remitted the matter with the direction that the Minister was “estopped from denying the Applicant a student Visa” as Mr Atta had “materially altered his position” based on representations made to him prior to and as at the date he applied for the Visa.
The Tribunal’s task, however, was to review the decision of the Delegate to refuse to grant Mr Atta the Visa under s.65 of the Act.
Under s.65 of the Act the Minister (and thus his delegate) has a duty (a) to grant the visa applied for if the criteria are satisfied, and a duty (b) to refuse to grant the visa if the criteria are not satisfied. The provisions of s.65 of the Act require that the criteria are either made out, or they are not.
The criteria for Mr Atta’s application for Visa included as primary criteria that Mr Atta be the holder of a valid substantive visa, or that he apply for the Visa within 28 days after the day when the last substantive visa ceased to be in effect. Those criteria, relevant to Mr Atta, were not dependent on any discretion nor any representation. Mr Atta either was the holder of a substantive visa or he was not.
He was not the holder of a substantive visa. It followed he was required to apply for the Visa the subject of this application within the prescribed 28 day period. He did not do so.
The Tribunal had no discretion, nor did the Delegate. As the Tribunal member said at [23]‑[26], Mr Atta did not satisfy cl.572.211(3)(c), and therefore does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations. The Tribunal does not have any discretion to waive the requirements of cl.572.211 despite the errors made by the Department.
The discretion that Mr Atta seeks is contrary to the statutory duty specified by s.65 of the Act. As the Full Court of the Federal Court of Australia held in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 per Davies and Gummow JJ at 125, referring first to Brickworks and Windeyer J’s statements at 577 (see above at [56]-[57]:
Where the issue is one of statutory discretion, the operation of an estoppel may cut across the proper exercise of the discretion reposed by legislation in a specified decision maker and thus be at odds with what is mandated by the legislation. …
The present is a case of right and obligation rather than discretion. If a claimant to an age pension satisfies the criteria specified in s.25 of the Social Security Act for qualification and if a claim is made in accordance with s.159, then, in the ordinary course, the claim should be determined in favour of the claimant and, subject to the determination of the rate of the pension (ss.33-36), there is no area for the exercise of discretion by the decision maker. But if there has been no claim for that pension which complied with s.159, then the grant or payment of the pension shall not be made: sub-s.158(1). The effect of the estoppel sought to be established in the present case would be, as we have said, to lift the prohibition imposed by sub-s.158(1) and extend the authority of the decision maker beyond that given by the statute. This cannot be achieved by an estoppel. (citations omitted)
In the Full Court of the Federal Court decision of Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; (2015) 231 FCR 539 Greenwood and Logan JJ at [50] put the position thus:
[50] This threshold difficulty apart, an estoppel cannot confer upon a person a right which statute or subordinate legislation denies that person. Especially that is so where, as here, by virtue of its impact upon the lawfulness of an exemption, the claimed estoppel would result in the payment of public monies contrary to the terms on which it was appropriated by Parliament.
Their Honours’ statements in Formosa and Minister for Health v Nicholl Holdings are applicable to the present case. Further, I am bound to follow them, and abide by the principle stated by Mason CJ in Quin at [17]. If the criteria are not made out, s.65 prohibits the grant of a visa, in the present case the Visa. The criteria for the grant of visa are specified. The criteria not being met, s.65 denies an applicant the entitlement to a visa. The statutory criteria do not admit of a discretion. The effect of what Mr Atta seeks is to extend the authority of the decision maker beyond that given by the statute under s.65 of the Act.
The validity of an application for a visa is an objective question: see Atta, Bromberg J at [15] (above at [9]). Clause 995.211 of the Regulations sets out the period in which Mr Atta’s last substantive visa was in effect. Whatever the Department VEVO records said, the term of Mr Atta’s diplomatic visa was that it continued only for so long as his father, Mr Mohamed Atta, held his diplomatic posting. It is uncontroversial that that posting ceased at least by February 2012. As Bromberg J set out in Atta at [12] and [14], by operation of s.82 of the Act and cl.995 of schedule 2 of the Regulations, Mr Mohamed Atta’s visa ceased to have effect upon him ceasing to hold status as a diplomatic representative. It follows that Mr Atta’s visa similarly ceased to have effect.
Mr Atta did not, thereafter, hold a substantive visa. Whether or not the VEVO record represented otherwise, does not change that legal status. Mr Atta’s application for judicial review is not made out. The Tribunal did not err. The ground of review does not have reasonable prospects of succeeding.
Conclusion
For the above reasons, I conclude that there is no arguable case for an extension of time.
The application for an extension of time should be dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 28 September 2018
SCHEDULE 1
995.5 — When visa is in effect
995.511
Temporary visa permitting the holder:
(a) to travel to and enter Australia until a date specified by the Minister for the purpose; and
(b) to remain in Australia:
(i) if the visa was issued on the basis of the holder satisfying the primary criteria for the grant of the visa—for the duration of the holder’s status as:
(A) a diplomatic or consular representative in Australia of a country other than Australia; or
(B) an international representative; or
(ii) if the visa was issued on the basis of the holder satisfying the secondary criteria for the grant of the visa—for the duration of the status of the person who satisfied the primary criteria as:
(A) a diplomatic or consular representative in Australia of a country other than Australia; or
(B) an international representative; or
(iii) in any case—until an earlier date specified by the Minister.
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