Kurtovic, v Minister for Immigration, Local Government and Ethnic Affairs

[1989] FCA 61

Re: VESELKO KURTOVIC
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G1105 of 1988
FED No. 61
Deportation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Deportation - judicial review - decision to deport permanent resident on the same grounds on which an earlier deportation order had been made and revoked - jurisdiction - estoppel - whether the doctrine of estoppel applies to the exercise of statutory powers - denial of natural justice - effect of published policy - improper exercise of power.

Migration Act 1958 (Cth) - ss 12, 14A, 20

Administrative Decisions (Judicial Review) Act 1977 (Cth) - ss 5(1)(a), (c), (d), (e)

Acts Interpretation Act 1901 (Cth) - s33(1)

HEARING

SYDNEY

#DATE 2:3:1989

Counsel and Solicitors for Mr C. Waterstreet
the applicant instructed by Legal Aid Commission

Counsel and Solicitors for Mr R. Greig
the respondent instructed by the Australian

Government Solicitor

ORDER

The deportation order of 28 January 1988 against the applicant is quashed and set aside.

The Minister is estopped from signing another deportation order on the grounds relied on in making the deportation order of 28 January 1988.

Liberty is reserved to either party to apply for further orders in the event that they become necessary.

The Minister is to pay the applicant's costs of the proceedings including reserved costs or costs of previous proceedings where no costs were ordered.

Orders 1 and 4 are to be stayed until any appeal process is completed but I order that until further order, the Minister be restrained from deporting the applicant from Australia.

The applicant's reporting condition 10 ordered on 2 December 1988 is deleted and in lieu thereof the applicant is ordered to report to the Regional Director of Immigration at Chatswood by telephone once a week in business hours.
NOTE: Settlement and entry of orders are dealt with in accordance with order 36 of the Federal Court Rules.

JUDGE1

This is an application for judicial review of the decision of 28 January 1988 of the Minister for Immigration, Local Government and Ethnic Affairs (the respondent) to deport Veselko Kurtovic (the applicant) from Australia. The applicant is seeking orders quashing or setting aside the decision, staying any other action under the decision, and restraining the respondent from proceeding with the deportation.

1. In the course of the hearing, an order was made by consent extending the time for the application for order of review. An order of the Court directing the respondent to release the applicant from custody pending this judgment was made on 2 December 1988, exercising jurisdiction by consent under section 23 of the Federal Court Act 1976 as an adjunct to this application for order of review.
   FACTS

2. The sequence of events surrounding the making of the deportation order in question is as follows:
   

(1) 7 July 1979: The applicant became a lawful permanent resident of Australia

(2) 16 December 1982: The applicant shot and killed his parents-in-law

(the relevant offence)

(3) 16 June 1983: The applicant was convicted of manslaughter after a plea of diminished responsibility was accepted

(4) 28 July 1983: The applicant was sentenced to 10 years penal servitude to commence from the date of the relevant offence

(5) 23 July 1984: The respondent signed a deportation order under section 12 of the Act relying on the relevant offence

(6) 6 September 1985: The Administrative Appeals Tribunal (AAT) recommended that the deportation order be revoked

(7) 21 November 1985: The respondent revoked the deportation order

(8) 17 December 1985: The applicant received a letter from the New South Wales Regional Director of the respondent's department informing him of the decision which stated: Dear Mr Kurtovic,

I am writing to confirm that the Minister for Immigration and Ethnic Affairs has decided to revoke the deportation order signed against you.

This letter is to confirm the oral warning administered to you today in relation to your conviction for Manslaughter at Sydney District Court on 28/7/83 which rendered you liable to deportation from Australia pursuant to Section 12 of the Migration Act 1958.

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. I enclose relevant extracts from the Migration Act on deportation liability and a copy of the Government's Criminal Deportation Policy. I suggest that in your own interest, you study these papers fully.

(9) 24 January 1986: The Parole Board refused to parole the applicant

(10) 18 July 1986: The New South Wales Court of Criminal Appeal considered an application to review the decision of the Parole Board. In the course of its judgment, the court stated the following:

It seems to us that the matter is one in which the Minister might well wish to reconsider his decision revoking the deportation order, in the light of the whole of the material in this file. There is a compelling case for concluding, pursuant to S. 8 (sic) of the Migration Act, that deportation would be appropriate and for concluding that, in the entirety of the circumstances, the acceptability of the recommendation of the Administrative Appeals Tribunal should be reconsidered by the Minister. Until that has taken place it would seem to be preferable that the matter be adjourned. It appears that the application for parole was not further pursued.

(11) 6 November 1986: The then respondent (who was a different person) decided not to sign a fresh deportation order

(12) 28 January 1988: The then respondent (another person again) signed a fresh deportation order which relied on the same offence and was in the following terms: WHEREAS VESELKO KURTOVIC is a non-citizen AND WHEREAS the said VESELKO KURTOVIC was convicted at the Sydney Supreme Court on the twenty eighth day of July 1983 of two offences namely, manslaughter for which he was sentenced to ten years imprisonment and which offences he committed on the sixteenth day of December 1982 AND WHEREAS at the time of the commission of the said offences the said VESELKO KURTOVIC was not an Australian citizen and had been present in Australia as a permanent resident for less than ten years

NOW I, MICHAEL JEROME YOUNG, Minister of State for Immigration, Local Government and Ethnic Affairs, DO HEREBY ORDER, in pursuance of the power conferred upon me by section 12 of the Migration Act 1958 that the said VESELKO KURTOVIC be deported from Australia

Dated this 28th day of January 1988

(13) 9 February 1988: An application for review by the AAT of the respondent's decision was lodged

(14) 22 February 1988: The applicant's sentence ended after remissions and time afforded for good conduct

(15) Upon his release the applicant was immediately re-arrested and was held in custody at the Metropolitan Remand Centre until 2 December 1988 pursuant to a direction under section 39(6) of the Migration Act (1958) (the Act)

(16) 11 July 1988: The AAT case was adjourned by consent, the Tribunal expressing the view that the question of the Minister's powers should be decided by the Federal Court

THE ISSUES

1. The applicant said that the respondent's decision to deport the applicant was one which
   

(a) the respondent did not have the jurisdiction to make

(b) was an improper exercise of his powers under the Act

(c) involved an error of law

(d) breached the rules of natural justice

(e) was otherwise contrary to law

THE LEGISLATION

1. The deportation order in question was made under section 12 of the Act. This provides:
   

12. Where -

(a) a person who is a non-citizen has, either before orafter the commencement of this section, been convicted in Australia of an offence;

(b) at the time of the commission of the offence the person -

(i) was not an Australian citizen; and

(ii)had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year, the Minister may order the deportation of the person.

Section 12 must be read in conjunction with section 14A which defines a "permanent resident". It provides:

14A.(1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 12 and sub-section 14(1), the length of time that that person has been present in Australia as a permanent resident.

(2) In section 12 and sub-section 14(1), "permanent resident" means a person (including an Australian citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law, but does not include -

(a) in relation to any period before the commencement of this sub-section - a person who was, during that period, a prohibited immigrant within the meaning of this Act as in force at that time; or

(b) in relation to any period after the commencement of this sub-section - a person who is, during that period, a prohibited non-citizen.

(3) For the purposes of this section -

(a) a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him by reason of that conviction; and

(b) a reference to a period during which a person was confined in a prison includes a reference to a period -

(i) during which the person was an escapee from a prison; or

(ii) during which the person was undergoing a sentence of periodic detention in a prison.

1. There was some argument about whether the fact that "permanent resident" is defined to include an Australian citizen, means that section 12 would, oddly enough, appear to allow the deportation of an Australian citizen. It is not necessary to decide that question here as the applicant has never been an Australian citizen.

2. Section 20 is also relevant as it allows the Minister to revoke a deportation order. It provides:
   

20.(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.

LACK OF JURISDICTION - Section 5(1)(c) ADJR Act

1. The applicant does not dispute that the respondent had the power to make the initial deportation order. However, he argues that it is the second deportation order which is invalid as section 12 does not allow the respondent to order the deportation of a permanent resident on the same grounds on which he has earlier made a deportation order which was revoked.

2. This submission as to lack of jurisdiction or power is two-pronged. It is firstly submitted that it would be contrary to Parliament's intention to allow the Minister to reconsider a deportation at any time in the absence of new evidence. The second argument is that the respondent was estopped from making the second deportation order.

3. The applicant argues that there were no new facts on which the Minister relied. At most there were further letters from and on behalf of the family of the victims putting the same point of view as had been put before - that they were fearful of the harm he might do them. This is said to be made clear in the reasons for the first deportation order set out in a section 37 statement provided to the AAT as follows:
   

C THE REASONS FOR MY DECISION

3 The policy with respect to the exercise of my discretion pursuant to section 12 of the Migration Act 1958 has been announced publicly in a News Release on 4 May 1983, a copy of which is attached. The policy has the support of the Australian Government and was tabled in Parliament on the same day.

4 I reached my decision by applying that policy and having regard to the findings on material questions of fact referred to above. All policy considerations which I thought to be pertinent to this case are set out in the attached policy statement.

5 In deciding whether in all the circumstances it is in the best interests of Australia that the applicant be deported, I have taken into account the following matters:

(a) Factors against deportation

(i) the applicant had no previous convictions and had been a hard-working family man of good character before the offence was committed

(ii) the offence was committed at a time when the applicant was severely depressed as a result of domestic disagreements. At the trial the Crown accepted a plea of guilty of manslaughter, rather than the more serious murder charge, on the grounds of diminished responsibility

(iii) the applicant's prospects for rehabilitation appear to be reasonable and he now has no overt symptoms of any mental illness. I regarded the risk of recidivism as low

(iv) a close friend of the applicant has strongly supported the applicant's being allowed to remain in Australia

(v) the applicant wishes to maintain contact with his daughter (aged 4)

(b) Factors in favour of deportation

(i) the applicant has been convicted of a very serious offence (manslaughter of his parents in law)

(ii) the applicant has minimal family ties in Australia; his wife has no desire to resume a relationship with him and wishes to divorce him and to withold access to their child. His wife has expressly supported his deportation, while there are no family members in Australia who would be adversely affected by his deportation

1. The respondent disputes the assertion that the factual basis for the Minister's decision was identical. However, assuming that there were no new factors to ground a decision to deport, the applicant submits that at the time the second deportation order was made, the respondent's power under section 12 was exhausted. The legislature would not have intended that the Minister could, after a full hearing without any alleged misrepresentation or mistake, make one decision, convey it to the applicant and thereafter revoke the decision without fresh grounds.

2. The applicant cites in this regard In Re 56 Denton Road Twickenham (1953) 1 Ch 51 at 56-57 where Vaisey J. stated:
   

On the second point the plaintiff's counsel offered for my acceptance the following propositions: that where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. I accept that proposition as well-founded, and applicable to the present case.

1. The applicant argues that a power to issue a fresh order in the absence of new facts would lead to uncertainty and unfairness. It would also lead to the result that a person who was prima facie within the conditions of section 12 of the Act would face an indefinite continuing threat of deportation even though, as in this case, the Minister had made a decision to revoke a deportation order and conveyed this to the person affected: cf Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 and Re Chan and Minister for Immigration and Ethnic Affairs (1975) 17 ALR 432 which the applicant submits were obiter as to the point in issue. I doubt that they dispose of the issue here.

2. Chan concerned the now repealed section 13 of the Act. That provided that where an immigrant has been convicted in Australia of an offence punishable by imprisonment for one year or longer, being an offence committed within 5 years after entry by him into Australia, the Minister may order the deportation of the immigrant from Australia. The AAT held that there was a power to order deportation even after a deportation order had been made and revoked. Smithers J stated at 442:
   

Clearly the Migration Act authorizes the Minister to revoke a deportation order which has been made. As a matter of English, to revoke something is to call it back. As a matter of substance, to revoke an order is to call it back ab initio.

On this basis, if an order is made and revoked and it is sought to exercise the power under s13 to make another order then it may be said that as a matter of substance the power to order the deportation of the immigrant has not previously been exercised. In my view this is a permissible construction of the statute. It is supported by reference to the subject matter with which the Act is concerned and the objectives of the statute. The subject matter is of national significance going, as it does, to the composition of the Australian population. The Minister is given wide powers and it is manifest that to administer the Act humanely the power to act flexibly is important. There may well be cases where in response to representations on behalf of an immigrant it is proper on humane reasons to revoke an order. It is not likely that the legislature had in mind that if in such a case the representations turned out to be misrepresentations, the Minister was powerless to act under the section. The power given in s13 being a power to prevent the pollution of the population, and it being a permissible construction of the Act that the power to order deportation may be exercised after an order has been made and revoked, I am of opinion that the views submitted to me by the applicant and the respondent are sound.

1. I would not characterise the purpose of section 13 in quite the same words as his Honour, but it is difficult to argue with the point of statutory construction and intention which he makes. It is also clear that the point being made here was conceded in Chan. This is also seen at 441:
   

By memorandum counsel for the respondent has advised that he is instructed to submit, inter alia, that notwithstanding the making and revocation of a deportation order, another deportation order may subsequently be made pursuant to s 13 in reliance upon the same facts, namely the relevant convictions, as those upon which the earlier order was based, provided the applicant has not ceased to be an immigrant by reason of absorption into the Australian community. In this counsel for the applicant concurred.

1. Similarly in Dallikavak, Northrop and Pincus JJ. stated at 476:
   

We would add that if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J. in Re Chan and Minister for Immigration and Ethnic Affairs

(1977) 17 ALR 432 at 441-2: see also s 33(1) of the Acts Interpretation Act 1901 (Cth).

1. In addition to the point being obiter, the case concerned the right to control prohibited non-citizens. It may well be a different matter in relation to a permanent resident.

2. Finally the applicant referred to section 33(1) of the Acts Interpretation Act 1901. It states:
   

33. (1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.

1. The applicant submitted that this section does not extend to a case where the language of the statute conferring the power points to its being exercised once and for all. The decision of Hardie J in Reynolds v Wingecarribee Shire Council (1964) 82 WN (Pt 1) (NSW) 243 at 249 was cited:
   

Section 32 of the Interpretation Act provides that, subject to any contrary intention appearing in the particular statute a statutory power may be exercised from time to time as occasion requires. This section, however, does not extend to a case such as the present where the language of the statute conferring the primary power points reasonably clearly to its being exercised once and for all.

1. Further, in Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 at 278, a decision of a Full Court of this Court, Bowen C.J., Woodward and Fisher JJ. stated:
   

Reference was made to the Acts Interpretation Act 1901, s 33(1), which provides that where an Act confers a power or imposes a duty, then, unless a contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. The suggestion appears to be that the Board may exercise the power to make a determination of incentive grant entitlement under s 11(1) as often as occasion may require. Just whether a perceived error in a past determination presents the Board with an occasion requiring another exercise of its power under s 11(1) may be left on one side. It is plain that the structure of the Act is inconsistent with the existence of such a general power to reassess. In our opinion, a contrary intention appears in the Act.

1. The respondent submitted that the inference to be drawn from these decisions is that the Minister's powers under section 12 are not extinguished by the making of a deportation order and its subsequent revocation.

2. Except on the status of the facts, it does not seem that the submissions of the applicant and respondent on this matter actually conflict. The applicant submitted that there are no new factors and therefore no power to make a second order. The respondent argued that there are new factors and the power to make a subsequent order as a result, although the respondent might be taken as having also argued for the broadest interpretation of his rights so as to embrace an entitlement to make a new decision without additional facts. Alternatively the respondent argued that in any event there has been no exercise of the power to deport. He said the power is of actual deportation, not of decision-making. This argument seems to accord with the earlier quoted comments of Smithers J. in Chan.

3. I have carefully reviewed the facts put forward to found the two deportation orders and the revocation of the first order. My clear impression is that although the views put forward to support the second order are expressed with increased fervour, especially by the members of Parliament enlisted to support the case for deportation, they are not in substance materially different. It is important that Ministers exercising powers of this nature remain aloof from political rhetoric and seek out the basic facts alleged. Whether that occurred here is questionable but it seems to me that this was not a case of new facts and that the Minister did not treat it as such. On the other hand, I am of opinion that whilst a deportation order made on the same facts as a revocation of a previous order may be reviewable under the ADJR Act on that ground, there is no statutory bar to its making.

4. The second line of the applicant's argument was that even if the respondent does have the power to issue a subsequent deportation order, the revocation and the letter sent to the applicant on behalf of the Minister to announce it created an estoppel. The applicant relies particularly on the fact that the letter stated: "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" (my underlining). It is submitted that this amounted to a representation that the applicant would only be liable to deportation in the event of further offences.

5. A threshold issue which arises is whether a government authority operating under a statute which permits the action in question can be estopped. In this regard the applicant referred to In Re Preston (1985) 1 AC 835 at 852 where Lord Scarman stated:
   

. . . judicial review should in principle be available where the conduct of the Commissioners in initiating such action would have been equivalent, had they not been a public authority, to a breach of contract or a breach of a representation giving rise to an estoppel.

His Lordship continued at 865, citing Lord Denning M.R. in H.T.V. Ltd v Price Commission (1976) ICR 170 at 185:

So when an army officer was told that his disability was accepted as attributable to war service, and he acted on it by not getting his own medical opinion, the Minister was not allowed to go back on it: see Robertson v Minister of Pensions (1949) 1 QB 227.

1. The applicant concedes that there is authority to say that the exercise of statutory powers cannot be the subject matter of estoppel, but he argues that the courts would intervene where there is an unfair circumstance despite the statutory power.

2. There is a mass of diverse judicial and academic opinion on this subject: see and compare (English cases) Robertson v Minister for Pensions (1949) 1 KB 227; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1962) 1 QB 416; Wells v Minister of Housing and Local Government (1967) 1 WLR 1000; Lever Finance Ltd v Westminster (City) London Borough Council (1971) 1 QB 222; Norfolk County Council v Secretary of State for the Environment (1973) 1 WLR 1400; Laker Airways Ltd v Department of Trade (1977) 1 QB 643; (Australian cases) Rocca v Ryde Municipal Council (1962) 7 LGRA 1; Maurice v Bankstown Municipal Council (1962) 8 LGRA 172; Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568; Boyce v Burwood Municipal Council (1964) 10 LGRA 280; Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 25 LGRA 305; J M Watson & Associates v Auburn Municipal Council (1972) 1 NSWLR 84; Drummoyne Municipal Council v Page (1973) 2 NSWLR 566; Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279; Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70; Auburn Municipal Council v F N Eckold Pty Ltd (1974) 34 LGRA 101. See also De Smith on Judicial Review of Administrative Action (3rd edn) pp 88-91; Wade on Administrative Law (4th edn) p 220; Garner on Administrative Law (4th edn) pp293-4; Whitmore and Aronson on Review of Administrative Action p 244; and an article by P.P. Craig: "Representations by Public Bodies" in (1977) 93 LQR 398.

3. In Lever Finance Lord Denning held that the doctrine of estoppel did apply in these circumstances, and in some of the decisions of the New South Wales Supreme Court listed above, especially Page, Lever Finance is quoted with approval. In both Duffy Bros and F N Eckold, both coming after Page, Mahoney J.A. expressly left open the availability of estoppel against local councils. In Duffy Bros at 286, his Honour said:
   

The extent to which a statutory body such as the plaintiff may be estopped from contending that a relevant town planning consent has not been given has not yet been finally and authoritatively determined and counsel have referred me to several differing views which have been expressed upon the matter. However, for present purposes, I shall assume (without deciding) that the plaintiff is subject to the principles of estoppel in the manner contended for by the defendant.

See also F N Eckold at 111.

1. In Laker Airways Lord Denning MR stated at 707:
   

The remaining issue is whether the executive is estopped from withdrawing the designation - a point raised by the judge himself. The Attorney-General concedes that estoppel could in suitable circumstances be raised against the Crown: but he contends this was not a case for it. The law on this subject has developed a good deal lately. The underlying principle is that the Crown cannot be estopped from exercising its powers, whether given in a statute or by common law, when it is doing so in the proper exercise of its duty to act for the public good, even though this may work some injustice or unfairness to a private individual: see Maritime Electric Co Ltd v General Dairies Ltd (1937) AC 610, where the Privy Council, unfortunately, I think, reversed the Supreme Court of Canada (1935) SCR 519. It can, however, be estopped when it is not properly exercising its powers, but is misusing them; and it does misuse them if it exercises them in circumstances which work injustice or unfairness to the individual without any countervailing benefit for the public: see Robertson v Minister of Pensions (1949) 1 KB 227; Reg. v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299 and H.T.V. Ltd v Price Commission (1976) ICR 170, 185-186.

In the present case, if the Secretary of State did have a prerogative to withdraw the designation, and properly exercised the prerogative, then there would be no case for estoppel. He would be exercising the prerogative for the public good and would be entitled to do it, even though it did work injustice to some individuals. I would not, therefore, put the case upon estoppel.

1. Estoppel in relation to statutory authorities was recently considered by a Full Court of this Court in Formosa v Secretary to the Department of Social Security (unreported, 17 August 1988). Davies and Gummow JJ. stated at pages 16-18 of the printed judgment:
   

Estoppel

Counsel for the applicants also relied on estoppel. He submitted that by submitting her documents for identification, attending an interview for the purposes of ascertaining her entitlements, signing a form in the course of that interview to support her claim and receiving information from the officer of the Department that she had no entitlements, Mrs Formosa was led to believe that she had made a claim and that her claim was unsuccessful; it was then submitted that Mrs Formosa had acted to her detriment on those assumptions by failing to apply for an age pension before November 1986, and that the Department had fostered her mistaken belief by giving her incorrect information, acting as if she had made a claim and repeating the incorrect information in January 1986. Counsel agreed that he had to say, to make the submissions good, that the respondent was estopped from denying that in December 1985 or January 1986 Mrs Formosa had lodged with the office at Mt Druitt a claim in writing in accordance with a form approved by the Secretary, for an age pension to commence 25 February 1986. Thus the result of that estoppel would be to lift the prohibition placed by s.158(1) upon the payment of the age pension to Mrs Formosa, except upon the making of a claim in the manner described in sub-s. 159(1). A collection of the authorities revealing the somewhat uncertain state of the law as to the fettering by estoppels of the proper exercise of statutory discretions may be found in Re Bundy (1980) 2 ALD 735 at 750. However, in Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 577, Windeyer J said that there was no doubt about the principle that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion.

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. Hence, the observation by Professor David Williams ((1981) CLJ 198), in commenting upon Rootkin v Kent County Council (1981) 1 WLR 1186, that estoppel appears to operate only at the periphery of judicial review of administration, and, more recently, the view that the foundation for the protection of "legitimate expectations" lies elsewhere than in estoppel (Forsyth, "The Provenance and Protection of Legitimate Expectations" (1988) CLJ 238 at 257-258).

1. No doubt because it was not necessary to do so or not relevant to the issues for decision in the case, a complete review of the plethora of discussions of this subject was not undertaken in that judgment. It seems to me that Formosa does not require me to deny the proposition to emerge from the cases and writings that estoppel is available in principle against a Minister exercising statutory authority although it will not operate if the actions which would otherwise be estopped can be shown to be for the public good.

2. The next question is the scope and effect of estoppel in these circumstances, sometimes called equitable or promissory estoppel. The major recent English cases include Amalgamated Property Co v Texas Bank (1982) QB 84 - Court of Appeal - and Attorney General of Hong Kong v Humphreys Estate Ltd (1987) 1 AC 114 - Privy Council.

3. However, in Waltons Stores (Interstate) Ltd v Maher (1988) 62 ALJ R 110, the High Court substantially reviewed the law of promissory estoppel in Australia, especially its relationship to and interaction with the traditional contractual concepts of offer and acceptance, and consideration. Mason C.J. and Wilson J. said at 115 that generally a voluntary promise will not be enforced because "the promisee may reasonably be expected to appreciate that, to render it binding, it must form part of a binding contract". However, reviewing recent developments in English case law, their Honours discerned a common link
   

. . . . that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it'.

In other words, equity in the form of an estoppel will be available to enforce an unfulfilled voluntary promise because departing from the "basic assumptions" of the transaction is unconscionable. However, Mason C.J. and Wilson J point out that the failure to carry out a promise is not itself unconscionable; it must be supplemented by the existence of an assumption that the promise will be performed, and a reliance on the assumption by the promisee to his detriment and with the knowledge of the promisor.

1. Brennan J put the principle at 121:
   

Equitable estoppel . . . . is to be satisfied by (the party estopped) doing or abstaining from doing something in order to prevent detriment to the party raising the estoppel which that party would otherwise suffer by having acted or abstained from acting in reliance on the assumption or expectation which he has been induced to adopt.

Both Brennan J. and Deane J. appear to put paid to the old concept that the doctrine of estoppel is a rule of evidence and not a cause of action. Brennan J says that an equitable estoppel is "a source of legal obligation" (121). Deane J says that in our fused system of law and equity, there is no reason to treat estoppel as exclusively equitable and every justification for treating it as a doctrine of substantive law and equity (136). Deane J. says that once recognised as such, the doctrine should be "applied as effectively in relation to a representation or assumption of a future state of affairs as to one of an existing state of affairs" (137). See also Commonwealth of Australia v Sciacca (1988) 78 ALR 279.

1. Gaudron J. said at 140:
   

The expressions "common law estoppel" or "evidentiary estoppel", on the one hand, and "equitable estoppel", on the other hand, serve to distinguish estoppels which operate by reference to an assumption of fact and those which operate by reference to an assumption as to rights. Common law or evidentiary estoppel compels adherence to an assumption of fact by denying the person estopped the right to assert a contrary matter of fact. By so doing, it may operate to fashion a set of facts by reference to which is imposed a liability which otherwise does not exist. . . . . . . . . . . . . . .

Equitable estoppel operates so as to compel adherence to an assumption as to rights. Sometimes that adherence can only be compelled by the recognition of an equitable entitlement to a positive right in the person claiming the benefit of estoppel and the enforcement of correlative duties on the part of the person against whom the estoppel is successfully raised.

Her Honour was of the view that an assumption as to a future right may provide the basis for the operation of an equitable estoppel.

1. Although all this seems a long way from deportation orders and judicial review, it seems to follow that a Minister of the Crown may be estopped from exercising a statutory discretion in a way which will break or not fulfil a voluntary promise. The question then arises as to whether there is evidence which fits the criteria laid down in these judgments for the application of estoppel in this case. There seems little doubt here that a voluntary promise was made by the Minister and that it created or encouraged an assumption in the applicant that it would be kept. The two remaining questions are whether the applicant acted to his detriment as a result of the assumption and if so, whether there is a public benefit which outweighs and supplants the unfairness to the applicant thereby caused.

2. The detriment requirement is not easy to fit into the circumstances of this case. It is true, as the respondent argued, that the promise not to deport without a further conviction had, in the ordinary sense, no effect on the applicant at all because he was in gaol at all relevant times. On the other hand counsel for the applicant submitted that Mr Kurtovic acted to his detriment by not pursuing his application for parole after the Court of Criminal Appeal raised the question of his deportation. This is one way to approach this difficult aspect of the inquiry, but it is not the only or in my opinion the correct way.

3. When the applicant was told that he was not to be deported, he undoubtedly assumed that, subject to lawful behaviour, he would be entitled to live the rest of his life in Australia. He would also have assumed the contrary, viz. that he would not be required to return to Yugoslavia. He would no doubt have made his personal plans accordingly, embracing such matters as his approach to the parole application, the gathering of support outside gaol for his future life such as job opportunities, and the undoubtedly none too insignificant problem for a person in gaol of mental stability and sense of security. He was obviously encouraged to forgo further psychiatric examinations designed to support any further resistance to deportation and application for citizenship.

4. The psychiatric and other expert evidence tendered overwhelmingly supports the conclusion that the applicant's crime was one of emotion and passion; that he has learned the significance of its horror; that he is remorseful for what he did; that the rest of his former family are not in danger; that other recidivism is unlikely; and that he wants to make a good and lawful Australian resident or citizen. It seems to me reasonable to assume that some or all of these very important developments were caused or contributed to by the revocation of the deportation order and the maintenance of that revocation after the extraordinary intervention of the Court of Criminal Appeal. Although these matters are not "detrimental" in the usual sense, I think that they are relevant to and should be considered in this context, as well as in the assessment of the extent of unfairness of the deportation order in issue here. I therefore conclude that this element of the requirements for the operation of an estoppel is present in this case.

1. On the issue of the public good, the respondent said, rightly enough, that the power to deport convicted criminals is in this category. However, as I understand the principle, the question is not whether the respondent is estopped from deporting convicted felons but whether equity should come to the aid of this applicant because to deport him now on the same facts on which it was previously decided not to deport him, would be unfair and unjust without countervailing benefit to the public at large.

2. To make sense of this principle, this benefit must in my opinion be one that has arisen or changed, adversely to the public, since the act which would otherwise have created the estoppel - in this case, the revocation and the letter advising it. In other words, the question is whether in 1988 it was for the public good that this applicant be ordered to leave for reasons which did not apply in 1985 or which have deteriorated his position in comparison with the public welfare since 1985. I can find no evidence to support such a finding. I can see no public benefit to outweigh the manifest unfairness of this deportation order. I therefore uphold this argument. In my opinion, the respondent is estopped from signing and executing the 1988 deportation order as being an unconscionable withdrawal from the voluntary promise in 1985 not to deport him unless a new stated event took place which has never happened.

3. The applicant also submitted that there was another estoppel in that the AAT has already decided the same issues between the same parties and that estoppel can apply to AAT proceedings. In Sciacca this issue was apparently raised but not fully argued. It does not appear to have been decided. A Full Court of this Court (Bowen C.J., Sheppard and Morling JJ.) stated at 283-4:
   

Counsel for the respondent submitted that there is no room for the application of the principle of issue estoppel in proceedings before the Administrative Appeals Tribunal because the principle is a rule of evidence and the Tribunal is not bound by the rules of evidence: s33 of the Administrative Appeals Tribunal Act. It is true that estoppel is referred to as a rule of evidence in some of the decided cases: see, for example, Low v Bouverie (1891) 3 CH 82 at 105, per Bowen L.J.; Humphries v Humphries (1910) 2 KB 531 at 536, per Farwell L.J.; Marginson v Blackburn Borough Council (1939) 2 KB 426 at 436, per Slesser L.J. and Discount & Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR(NSW) 598 at 603, per Jordan C.J. Certainly, it operates to prevent evidence from being tendered. However, other authority describes estoppel as a rule of law: see Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamship Ltd (1947) AC 46 at 56, per Lord Wright; Mills v Cooper (1967) 2 QB 459 at 468-9, per Diplock L.J. (as he then was); Moorgate Mercantile Co Ltd v Twitchings (1976) QB 225 at 241, per Lord Denning MR and Queensland v Commonwealth

(1977) 139 CLR 585 at 614-15; 16 ALR 487 at 509-10, per Aickin J. The problem was adverted to by this court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 where Fisher and Lockhart JJ. said (at 654): "Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s33 of the Administrative Appeals Tribunal Act. Section 33(1)(b) directing that proceedings should be conducted as far as possible with little formality and technicality and s 33(1)(c) to the effect that the tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine."

If the view is taken that issue estoppel is a rule of law (which may now be the more acceptable view), that would not conclude the matter, as is apparent from what was said by their Honours, because of the administrative nature of the tribunal and the provisions of s33(1)(b) of the Administrative Appeals Tribunal Act which directs the tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel.

In W J & F Barnes Pty Ltd v F.C.T. (1957) 96 CLR 294, Kitto J. said (at 315) that a taxation board of review's decision was not an adjudication; it was administrative in character and could not create an issue estoppel.

The question is not a straightforward one and it was not fully argued before us. Because of our view that the judgment of Gallop J did not give rise to any relevant issue estoppel, it is unnecessary to decide the point and accordingly, we express no view upon it.

1. Again in Bogaards v Mcmahon and the Commonwealth (1988) 8 AAR 556 where the issue was also left open, Pincus J said at 564-5 that decisions of statutory tribunals may create estoppels but that whether an issue estoppel may arise from such a decision is an open if doubtful question.

2. I do not think this matter needs to be decided here either. This case is now in this Court for limited purposes which do not require a resolution of this issue. I pass no opinion on it.
   DENIAL OF NATURAL JUSTICE - Section 5(1)(a) ADJR Act

3. The applicant claimed that the requirements of the rules of natural justice were breached in that
   

(1) the respondent departed from his earlier decision to revoke the order without giving the applicant an opportunity to be heard on the matter;

(2) the respondent made a fresh decision on material questions of fact or inferences drawn from those facts without giving the applicant an opportunity to address them;

(3) the respondent departed from the procedures outlined in the Australian Government's Criminal Deportation Policy (4 May 1983) and what is known as "the Transitional Policy" (28 March 1984) without giving the applicant an opportunity to consider them and put submissions. The Transitional Policy was established to deal with non-citizens with criminal convictions prior to 2 April 1984. It thus applied to the applicant.

1. It is further submitted that the letter confirming the revocation created a legitimate expectation that the applicant would not be dealt with by the Minister unless afforded a hearing.

2. As authority for the proposition that a Minister may not depart from a previous order without giving the person concerned an opportunity to be heard, the applicant cited the decisions of Barbaro v Minister for Immigration & Ethnic Affairs (1982) 46 ALR 123 and Majed Mahmoud Haoucher v Minister of State for Immigration and Ethnic Affairs, Full Court of the Federal Court, unreported, 29 September 1988.

3. Both these cases raised a different issue to that presently being considered, viz. the natural justice entitlements of non-citizens whose deportation has been before the AAT where the Minister seeks to draw different factual conclusions. Barbaro was a case where the Tribunal recommended that the deportation order should be reconsidered and revoked. The question was whether in those circumstances there is a requirement to extend natural justice before the Ministerial discretion is exercised against revocation. Smithers J stated at pp 131-132:
   

In these circumstances it is reasonable to consider whether, in the exercise of his duty of reconsideration under s 12 of the Migration Act, where he proceeds by reference to findings of fact in conflict with findings of the Tribunal, or where considerations thought important by the Tribunal have not been so regarded by the Minister and contrary considerations have been adopted by him, or where questions of credibility are involved, the rules of natural justice apply, so that the applicant may have an opportunity to urge his case in relation to such departures. What has happened is something of a fundamental character. What was formerly a secret exercise of authority, has become an authority required to be based upon stated reasons. The effect may well be that the identification of facts and matters said to be relevant to the exercise of the discretion must be openly made, thereafter the Minister's overall discretion applying in the light of such facts and matters. There is thus a strong indication of Parliament's intention that the facts on which the discretion is exercised should be known to those concerned. The statute implies a change in the nature of the decision-making function of the Minister. As indicated above the AAT Act creates a legitimate expectation that the recommendations of the Tribunal will be implemented, at any rate where considerations of national security do not obtrude. As to the significance of such a legitimate expectation, as supportive of the application of the principles of natural justice, I turn to the judgment of Stephen J, as he then was in Salemi v Minister for Immigration & Ethnic Affairs (No 2) (1977) 137 CLR 396 at 423; 14 ALR 1. I extract from it the proposition, which does not appear to be in conflict with anything said by the majority of the court in that case, that whatever may be the position where, as in relation to prohibited immigrants, a deportation provision confers upon the Minister an absolute discretion, so that it is difficult to imply a provision that he should observe the procedures of natural justice, nevertheless, where a provision for deportation is of such a nature that considerations of reasonableness and fairness have been injected into it by the legislature, then the situation is different. It is then that the observations to be found in the speech of Lord Denning in R v Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 at 298, and in the judgment of Widgery J in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149, and of Russell L.J. in that case, apply with considerable strength. It would seem that circumstances have arisen where the observations of the Judicial Committee of the Privy Council in Durayappah v Fernando (1967) 2 AC 337 at 349 are in point. It was there observed that the matters to be taken into account when considering whether there is an implied duty to observe the requirements of natural justice are, first the nature of the complainant's interests; secondly, the conditions under which the administrative authority is entitled to encroach on those interests; and thirdly, the severity of the sanction it can impose. In a matter of deportation, rights in property and personal liberty are relevant interests, the sanction which may be imposed is most severe and the observance of natural justice is compatible with the purpose and powers of the Minister particularly in the light of the statutory provisions which result in the disclosure by the Minister of the facts and matters regarded by him as relevant to the exercise to his discretion. I would refer also to the comment of Mason J in Re Aboriginal Land Commissioner; Ex parte Northern Land Council 24 December 1984, as yet unreported, that: ". . . the doctrine of ministerial responsibility is not in itself an adequate safeguard for the citizen whose rights are affected. This is now generally accepted and its acceptance underlies the comprehensive system of judicial review of administrative action which now prevails in Australia." In this case for the purpose of the exercise of his discretion, the Minister departed from the findings of the Tribunal and made inferences in conflict with those made by the Tribunal. I conclude therefore, that in this case, before the order for deportation was affirmed there was a duty to extend natural justice to the applicant and those immediately affected by that decision. If this looks like piling Pelion upon Ossa the answer is that deportation is a sanction of supreme severity and Parliament intends that it be imposed only where the Minister's discretion is exercised by reference to the real facts and the proper considerations.

1. In Haoucher the majority decided that there was no requirement of natural justice where the Minister accepted the facts found by the Tribunal but, without new facts, drew different inferences to the Tribunal. It is not clear whether the majority supported Barbaro. Northrop J. did not refer to it. Lee J referred to the applicant's submission that as a matter of procedural fairness he should have been given the opportunity to be heard, if the Minister departed from inferences of fact found by the Tribunal, and quoted Smithers J's definitive dictum without demur:
   

In respect to the first point, the appellant relied upon the following comments by Smithers J. in Barbaro v Minister for Immigration & Ethnic Affairs (1982) 46 ALR 123 at p 130: "The Minister is not bound to adopt all the findings of fact of the Tribunal or to give to inferences of fact the same weight and direction as was given to them by the Tribunal. But if the recommendation is to be meaningful then it would seem that the least that can be said is that where those findings of fact and inferences are to be departed from, the person concerned should be given the opportunity to make representations."

1. However, Lee J thought that the relevant differences between the views of the Minister and the Tribunal were matters of opinion and not findings of fact.

2. Sheppard J. (dissenting) expressly approved Barbaro. His Honour stated at page 34 of his judgment:
   

Barbaro's case, which, in my respectful opinion, was correctly decided, established that, if the Minister intended to depart from the facts found by the Tribunal, to draw inferences of fact different from those drawn by it, or to rely on further matters not adverted to by the Tribunal, he was bound to inform the person concerned of what he proposed to do and give him an opportunity of making further submissions.

1. The applicant submitted that, on any view, the finding in Haoucher was that such circumstances give rise at least to a legitimate expectation that the applicant would not be adversely dealt with by the Minister unless afforded a hearing. Especially is it the case that if, as the Minister contends, there is fresh material, the decision in Haoucher would require the Minister to put that fresh material to the applicant before a decision was made. It is difficult to say if the first of these two propositions flows from Haoucher but I am of opinion that the second does. I do not read Haoucher as deciding that in an appropriate case, a right to make submissions is not available before there is a departure from an earlier decision, including on the question as to whether there are new facts in truth.

2. Haoucher also considered whether natural justice is required when a published Government policy is departed from. The majority held that no legitimate expectation was created by the existence of the Criminal Deportation Policy. Lee J. stated at page 9 of the printed judgment:
   

In regard to the appellant's contention that he had a legitimate expectation that the Minister would only fail to accept the Tribunal's recommendation if exceptional circumstances existed and that he would be given the opportunity to be heard in that regard, it is necessary to look at the statement of policy to determine the nature and extent of the expectation. Although the statement of policy may have given rise to an expectation that the recommendation of the Tribunal would normally be accepted, the actual terms of the policy could not have grounded an expectation of a right to be heard. Unlike The Attorney General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 629 where the stated policy promised an opportunity to make representations, the Criminal Deportation Policy merely indicated the guidelines the Minister said he would follow.

Similarly, Northrop J. stated at 4:

At the hearing of the appeal, counsel relied strongly upon the terms of the Criminal Deportation Policy. It must be remembered that that Policy does not constitute a law. It does not have the effect of a law. Once the conditions prescribed in s.12 of the Migration Act have been established, the Minister "may order the deportation" of the person coming within those conditions. The discretion conferred upon the Minister by the section is unfettered but it must be exercised according to law.

1. I agree with respect with Sheppard J, who also dissented on this point, that this Policy did give rise to a legitimate expectation that before it was not followed, an opportunity to make submissions would be given. Although the facts of this case are distinguishable from Haoucher, I am constrained by that decision to preclude the applicant from relying on any departures from the Criminal Deportation Policy and the Transitional Policy.

2. I am, however, of the opinion that the other submissions of the applicant should both be upheld. If a decision once made and revoked, is to be re-made on the same facts after the person concerned has been told in effect that new facts would need to exist before the same decision would again be considered, it seems to me that there is an obligation to permit further submissions to be put. The fact that such a statement is proffered raises a legitimate expectation that the decision will not be re-made without the opportunity of submissions on the new facts relied on including whether these facts are in truth new. Further, although as I have earlier said, I have not been able to find any new facts to ground the 1988 order, the respondent's allegation that there were obliges him to make them available to the applicant to address.
   THAT THE MAKING OF THE DECISION WAS NOT AUTHORIZED BY THE MIGRATION ACT - Section 5(1)(d) ADJR Act

3. This argument centred on the existence of the Criminal Deportation Policy and the Transitional Policy. Paragraph 4 of the Criminal Deportation Policy provides:
   

It is the policy of the Australian Government that recommendations of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify his decision. Furthermore, it is the policy of the Government that, when the Minister decides to deport a person contrary to a recommendation of the Tribunal, the Minister will table in the Parliament at the first opportunity a statement of his/her reasons for doing so.

1. The Transitional Policy was:
   

Non-citizens convicted of offences committed prior to the date of proclamation of the amended Act and who, although liable for deportation under the amended Act are not liable under present legislation (should not be deported); but excluding cases which come to notice involving very serious crimes and/or where special circumstances exist which warrant (the Minister's) personal consideration.

1. The "special circumstances" calling for the personal attention of the Minister were said to include "a persistent serious offender who represents a real threat to the community".

2. It was submitted that:
   

(i) the respondent was required to find that there were "exceptional circumstances" and "strong evidence" within the meaning of paragraph 4 of the Criminal Deportation Policy

(ii) if he did so, the findings were wrong and without evidence

(iii) the respondent was required to find that the applicant was a "persistent serious offender who represents a real threat to the community" within the meaning of the Transitional Policy, but did not so find because he could not on the facts do so.

1. The legal effect of policy statements of this kind has already been referred to. Despite my agreement with the dissenting judgment of Sheppard J in Haoucher, the majority judgment means that the applicant's argument must also fail under this heading. Whether departures from policies can be relied on under other provisions of the ADJR Act is not necessary for me to resolve here.
   THAT THE MAKING OF THE DECISION WAS AN IMPROPER EXERCISE OF POWER - Section 5(1)(e) ADJR Act

2. Neither party addressed specific argument on this claim, which was not clearly particularised, possibly because it would have been merely repetitive of the other claims. There was no evidence or no new evidence, lay or expert, which made possible any conclusion that recidivism was likely, or that there were mental or other health reasons for deportation. It seems to me that these matters, amongst others, were relevant considerations to be considered if rational and not impulsive or politically motivated conclusions were to be drawn. They do not appear to have been considered, certainly not in relation to the position as it was in 1988 when the relevant decision was made. The inference I draw is that relevant considerations were omitted and that irrelevant considerations were relied on.

3. For all these reasons, I think that judicial review should be ordered and the matter remitted for further consideration according to law. However, my determination that the respondent is estopped from exercising the power to deport in the absence of the conditions of the promise not to do so seems to make findings and orders to this effect unnecessary and inappropriate. I shall hear the parties on the orders I should now make to give effect to these findings and opinions.