McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2020] FCA 843

FEDERAL COURT OF AUSTRALIA

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

File number:

VID 1121 of 2019

Judge:

ANDERSON J

Date of judgment:

18 June 2020

Catchwords:

MIGRATION – application for judicial review of decision by Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke cancellation of applicant’s visa – Ground C: whether historical breaches of Minister’s guardianship obligations to the applicant, if established, influence the scope of the Minister’s power under s 501CA(4) – indivisibility and continuity of Minister’s office – whether discretion under s 501CA(4) is to be construed consistently with maxims of equity – Ground D: applicant’s birth registered in Queensland – applicant enrolled on Commonwealth electoral roll in 1986 – applicant issued an Australian passport in 2017 – Department did not notify applicant of investigation into citizenship status in 2018 – whether representations by the Minister that applicant is an Australian citizen, if established, could give rise to an equitable estoppel – whether applicant is entitled to declaration that the grant of a permanent visa is in the public interest – Ground E: whether Minister’s decision was legally unreasonable because of its unfairness – whether Minister’s decision was legally unreasonable because of the failure to consider “another reason” for revocation

STATUTORY INTERPRETATION – principle of legality – construction of legislation consistent with principles of equity

EQUITY – maxims – equity considers done what ought to be done – no man can take advantage of his own wrong – equitable estoppel – whether representations by the Minister, if established, could give rise to an equitable estoppel that would fetter or prevent the exercise of a statutory discretion

Held: application for judicial review allowed – Minister acted with legal unreasonableness by failing to consider clear and significant representations regarding applicant’s claim to be an Australian citizen, and the applicant’s representation that he only learned he was on a visa after its cancellation

Legislation:

Constitution ss 51(xix), s 51(xxvii)

Acts Interpretation Act 1901 (Cth) s 20

Australian Citizenship Act 1948 (Cth) ss 10(1), 10A, 13, 32, 32(1)

Australian Citizenship Act 2007 (Cth) ss 5, 13, 21(2)(b)

Australian Citizenship Amendment Act 1984 (Cth) s 11

Commonwealth Enrolment Act 1918 (Cth) s 93(1)

Immigration (Guardianship of Children) Act 1946 (Cth) ss 4, 4AAA(2)(c), 6

Immigration (Guardianship of Children) Amendment Act 1994 (Cth)

Judiciary Act 1903 (Cth) ss 39B(1A)(c), 78B, 78B(1), 476A(1)(c)

Migration Act 1958 (Cth) ss 29(1), 34(2)(a), 34(2)(b), 189, 195A, 195A(1), 195A(2), 195A(4), 476A(1)(c), 501(2), 501(3A), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(ii)

Passports Act 2005 (Cth) ss 7(1), 8(a)

Statute Law Revision Act 1973 (Cth) (repealed)

Adoption of Children Act 1964 (Qld) (repealed) ss 6, 16, 19(4), 28(1)(e), 31(2)

Age of Majority Act 1974 (Qld) s 8(1)

Cases cited:

ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019] FCAFC 35; 269 FCR 112

Annetts v McCann [1990] HCA 57; 170 CLR 596

Asaad v Minister for Home Affairs (No 2) [2019] FCAFC 214

Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1

Attorney-General v Chan [2011] NSWSC 1315

AXT19 v Minister for Home Affairs [2020] FCAFC 32

AZAEF v Minister for Immigration and Border Protection [2016] FCAFC 3; 240 FCR 198

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

Bennett v Minister for Community Welfare (1988) Aust Torts Reports 80-210

Bennett v Minister for Community Welfare [1992] HCA 27; 176 CLR 408

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

Binetter v BCI Finances Pty Ltd (in liq) [2015] FCAFC 122; 235 FCR 410

BMV16 v Minister for Home Affairs [2018] FCAFC 90; 261 FCR 476

Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598

Byrne v Transport Accident Commissioner [2008] VSC 92; 50 MVR 37

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65

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Commissioner of State Revenue v Can Barz Pty Ltd [2016] QCA 23; [2017] 2 Qd R 537

Commissioner of Taxation (Cth) v Wade [1951] HCA 66; 84 CLR 105

Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394

De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86; 83 NSWLR 445

DKB18 v Minister for Home Affairs [2018] FCA 1465

DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134

Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1 SCR 190

EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272; 167 ALD 225

Federal Commissioner of Taxation v Ryan [2000] HCA 4; 201 CLR 109

GBV18 v Minister for Home Affairs [2020] FCAFC 17

GG v Australian Crime Commission [2010] FCAFC 15; 182 FCR 513

Greenwood v Martins Bank Ltd [1933] AC 51

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423

Health Insurance Commission v Grey [2002] FCAFC 130; 120 FCR 470

Hooper v Lane (1859) 6 HL Cas 443; 10 ER 1368

Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33

Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438

Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1

Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516; 113 FCR 524

Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287; 139 ALD 536

Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44

Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207

Leask v Commonwealth [1996] HCA 29; 187 CLR 579

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416

Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; 231 FCR 539

Minister for Home Affairs v Brown [2020] FCAFC 21; 376 ALR 133

Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569

Minister for Home Affairs v Smith [2019] FCAFC 137

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303

Minister for Immigration and Ethnic Affairs, v Polat (1995) 57 FCR 98

Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858

Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457; 109 FCR 137

Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687

Momcilovic v The Queen [2011] HCA 34; 245 CLR 1

Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; 161 FCR 236

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81

Narayan v Minister for Home Affairs [2019] FCAFC 143

Navoto v Minister for Home Affairs [2019] FCAFC 135

Ninsiri v Minister for Home Affairs [2019] FCA 363

Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; 122 FCR 29

Page v Manningham City Council [2010] VSC 265; 27 VR 643

Pitt v Holt [2013] UKSC 26; [2013] 2 AC 108

Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 99

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] FCA 32; 244 CLR 144

Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92; 263 FCR 310

R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659; [2007] 3 All ER 451

R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; 133 CLR 369

Raibevu v Minister for Home Affairs [2020] FCAFC 35

Re London Celluloid Company (1888) 39 Ch D 190

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1

Registrar of Titles v Mrsa [2015] WASCA 204

Roberts v Repatriation Commission (1992) 39 FCR 420

Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491

Ruthol Pty Ltd v Tricon (Aust) Pty Ltd [2005] NSWCA 443; 12 BPR 23,923; [2006] ANZ ConvR 173

Sadiqi v Commonwealth (No 2) [2009] FCA 1117; 181 FCR 1

Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Secretary, Department of Family and Community Services v Waldron [2007] FCAFC 131; 160 FCR 580

Singh v Minister for Home Affairs [2019] FCAFC 3

Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Tabcorp Holdings Ltd v Victoria [2016] HCA 4; 90 ALJR 376; 328 ALR 375

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Thompson v Groote Eylandt Mining Co Ltd [2003] NTCA 5; 173 FLR 72

Tickner v Chapman (1995) 57 FCR 451

Trevorrow v South Australia (No 5) [2007] SASC 285; 98 SASR 136

Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561

Vo v Minister for Home Affairs [2019] FCAFC 108

WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94

Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2014] HCA 16; 216 CLR 515

X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; 92 FCR 524

“X” v Minister for Immigration and Multicultural Affairs [2000] FCA 704

Date of hearing:

23 and 27 April 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

225

Counsel for the Applicant:

Mr M L L Albert

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr G Hill

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

VID 1121 of 2019

BETWEEN:

EDWARD MCHUGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	ANDERSON J
DATE OF ORDER:	18 JUNE 2020

THE COURT ORDERS THAT:

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

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

3.Costs are reserved.

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

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

TABLE OF CONTENTS

I.   INTRODUCTION	[1]
II.   BACKGROUND	[9]
Background to the Minister’s decision	[11]
Revocation request	[17]
Further correspondence	[19]
Applicant’s further submissions	[28]
Departmental submission	[30]
Minister’s decision	[31]
III.   APPLICATION TO THIS COURT	[38]
Habeas corpus application	[43]
Section 78B notices	[47]
Judicial review application	[51]
Hearing of the applicant’s judicial review application	[53]
Structure of these reasons	[56]
IV.   GUARDIANSHIP OBLIGATIONS	[57]
Alleged breaches of guardianship obligations	[63]
Minister’s obligations under the IGOC Act	[63]
Submissions regarding duty and breach	[69]
Existence of duty to the applicant	[69]
Alleged breaches by the Minister	[74]
Relevance of the applicant’s adoptive parents	[88]
Redress for breaches of guardianship obligations	[90]
Failure to consider	[97]
Acting beyond power	[101]
Equitable principles and the Minister’s statutory discretion	[105]
Conclusion to ground C	[124]
V.   EQUITABLE ESTOPPEL	[125]
General principles	[129]
Alleged estoppel	[131]
Representations	[131]
Reliance and detriment	[147]
Equitable estoppel and statutory discretions	[152]
Minister’s statutory discretion in the present case	[165]
Impermissibility of injunctive relief	[165]
Basis to distinguish or develop established principle?	[170]
Declaration as to public interest	[177]
Conclusion to ground D	[181]
VI.   LEGAL REASONABLENESS	[182]
General principles	[186]
“Unfairness” of the Minister’s decision	[192]
Failure to inform applicant of investigation into citizenship status	[196]
Outcome of the Minister’s decision	[199]
Failure to consider claim of “another reason”	[200]
Key representations by the applicant	[202]
Minister’s consideration	[210]
Applicant’s connection with Aboriginal communities	[210]
Applicant’s belief as to Australian citizenship	[215]
VII.   CONCLUSION	[224]

REASONS FOR JUDGMENT

ANDERSON J:

I.   INTRODUCTION

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

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

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

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

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

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

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

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

   II.   BACKGROUND

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

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

    Background to the Minister’s decision

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

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

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

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

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

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

   Revocation request

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

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

   Further correspondence

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

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

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

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

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

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

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

   Therefore your Absorbed Person visa remains cancelled. …

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

    Dear Mr McHugh

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

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

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

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

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

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

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

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

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

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

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

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

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

13. On 10 August 2018, Mr Rowell replied as follows:

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

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

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

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

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

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

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

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

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

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

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

    Applicant’s further submissions

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

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

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

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

    Departmental submission

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

    Other Relevant Information

    Citizenship status

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

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

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

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

    …

    Sensitivities

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

    Minister’s decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Strength, nature and duration of ties

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

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

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

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

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

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

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

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

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

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

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

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

   CONCLUSION

   …

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

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

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

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

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

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

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

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

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

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

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

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

   III.   APPLICATION TO THIS COURT

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

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

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

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

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

   Habeas corpus application

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Section 78B notices

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

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

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

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

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

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

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

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

    Judicial review application

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

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

    a.        acted beyond power because

    b.        erred by failing to consider that

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

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

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

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

    …

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

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

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

    H.A declaration that, for the purposes of s 195A of the Migration Act 1958 (Cth), it is in the public interest that the Applicant be granted a permanent visa.

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

    J.That the Respondent pay the Applicants costs.

    Hearing of the applicant’s judicial review application

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

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

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

    Structure of these reasons

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

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

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

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

    IV.   GUARDIANSHIP OBLIGATIONS

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

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

    a.        acted beyond power because

    b.        erred by failing to consider that

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

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

    …

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

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

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

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

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

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

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

    Alleged breaches of guardianship obligations

    Minister’s obligations under the IGOC Act

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

    The bill also covers children who will be brought to Australia under the auspices of any governmental or non-governmental migration organizations when migration is resumed. The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children. It is believed that the Commonwealth Government, in encouraging and financially assisting child migration by way of contributions towards passage money and payment of child endowment to organizations caring for the children, accepts a responsibility which does not end with the children's arrival in Australia. It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for until they reach 21 years of age. The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children.

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

29. As Black CJ, Wilcox and Moore JJ observed in Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; 122 FCR 29 (Odhiambo) at [87], although the IGOC Act was “conceived as a way of ensuring adequate oversight of the welfare of children who had been, or would be, brought to Australia under voluntary migration schemes sponsored by social welfare organisations and church bodies”, it was drafted in terms of wider application.

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

   The Minister shall be the guardian of the person, and of the estate in Australia, of every immigrant child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty-one years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.

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

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

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

   Submissions regarding duty and breach

   Existence of duty to the applicant

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

   “immigrant child” means a person under the age of 21 years who enters Australia as an immigrant, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of that person, or a relative of that person not less than 21 years of age.

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

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

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

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

   Alleged breaches by the Minister

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

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

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

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

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

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

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

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

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

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

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

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

    6.        Mr MacKeller passed away in 2015.

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

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

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

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

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

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

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

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

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

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

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

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

    Relevance of the applicant’s adoptive parents

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

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

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

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

   “Unfairness” of the Minister’s decision

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

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

5. Fairness, of course, is a concept familiar to judicial review.  For instance, where a public authority makes a promise in respect of procedural matters, fairness may require that the authority is held to its promise: see, for example, Lam at [33]–[37] per Gleeson CJ. However, “[a]t a substantive level, fairness has no place in Australian public law”: Weeks’ Estoppel and public authorities at 258 (emphasis added).  Although decisions that are, in a legal sense, “plainly unjust, arbitrary, capricious, or lacking common sense” may equally be described, in a broader sense, as “unfair”, the substantive fairness of an administrative decision is not, per se, a legitimate concern of a supervising court upon judicial review.  As Brennan J recognised in Quin at 36, if, in the course of reviewing an administrative decision, “the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error”. Or, as Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ similarly expressed (in the context of a decision-maker’s obligation to accord procedural fairness) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25], “what is required by procedural fairness is a fair hearing, not a fair outcome”.

6. For the purpose of accentuating the need for fairness in the present case, the applicant cited the statement of Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 (SZRMQ) at [7] (as quoted by Jagot, Perry and Markovic JJ in Minister for Home Affairs v Smith [2019] FCAFC 137 at [32]) that “fairness is an inhering requirement of the exercise of state power”. However, that statement, read in context, remains consistent with the dichotomy drawn between procedure and substance, as discussed above. First, the Chief Justice’s comments in SZRMQ prefaced any requirement of fairness as “subject to any clear contrary statutory intention”. And, in the present case, the statutory intention, by conferring a broad discretion on the Minister under s 501CA(4) of the Migration Act, was that the substantive fairness of the exercise of that power would be at the Minister’s prerogative (subject, of course, to the scope, subject-matter and purpose of the legislation).  Second, the passages cited by the Chief Justice in support of that statement—Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at [26] per Gleeson CJ and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [5] per Allsop CJ—centered on procedural requirements of fairness, and nothing more.

   Failure to inform applicant of investigation into citizenship status

7. One alleged aspect of procedural unfairness in the sequence of events leading up to the Minister’s decision relates to the failure of the Minister, or his Department, to inform the applicant of the Department’s investigations into the applicant’s citizenship status prior to the voiding of the applicant’s Australian passport on 26 February 2018 and the cancellation of the applicant’s visa on 23 April 2018.  The broad chronology of those events were detailed above at [140]–[143].

8. Even if the Minister’s actions or omissions during this period were perceived as procedurally problematic, they cannot infect the decision now under review—the Minister’s decision under s 501CA(4) of the Migration Act on 23 August 2019—with legal unreasonableness. Any procedural unfairness displayed by these events would not undermine the validity of the cancellation of the applicant’s visa by the Minister’s delegate under s 501(3A) because, first, the cancellation decision is, regardless of any surrounding unfairness, mandated upon the existence of specified statutory criteria and, second, the rules of natural justice do not apply to such a decision: ibid, s 501(5); see, for example, Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598 at [18] per Kerr J and [119] per White and Charlesworth JJ; see also EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272; 167 ALD 225 at [78] per Greenwood J. (It should also be noted in passing that this Court does not have original jurisdiction to review decisions under s 501(3A) not made by the Minister personally: s 476A(1)(c) of the Migration Act; Ninsiri v Minister for Home Affairs [2019] FCA 363 per Gleeson J.) Additionally, even disregarding these obstacles, it remains questionable whether any procedural defect leading to the cancellation decision under s 501(3A) could then infect the jurisdictional validity of the subsequent non-revocation decision under s 501CA(4): see Ketjan at [68]–[71], where this issue was raised, but not decided, by the Full Court.

9. The standard of reasonableness for a statutory decision is derived primarily from the applicable statute: Li at [67] per Hayne, Kiefel and Bell JJ; Stretton at [9] per Allsop CJ; SZVFW at [53] per Gageler J, [88] per Nettle and Gordon J and [134] per Edelman J. Thus, given the statutory features outlined in the preceding paragraph, the failure of the Minister, or his Department, to inform the applicant of the investigation into the applicant’s citizenship status in early 2018 could not, and does not, influence the characterisation of the degree of legal reasonableness of the Minister’s decision under s 501CA(4) in August 2019.

   Outcome of the Minister’s decision

10. In respect of the outcome of the Minister’s decision—non-revocation of the cancellation of the applicant’s visa—the analysis above should convey my strong doubts as to whether the “profound unfairness” alleged by the applicant leads to a conclusion, by reference to the outcome of the decision alone, that the decision was legally unreasonable.  In this regard, it should be recalled that, even assuming the Minister’s historical guardianship failures were a cause of the applicant being in immigration detention, another substantial and operating cause of that state of affairs was the applicant’s own criminal record.  Regardless, it is unnecessary, and indeed inappropriate, to express a view on whether or not the outcome itself of the Minister’s decision fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Li at [105] per Gageler J, quoting Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1 SCR 190 (Dunsmuir) at [47] per Bastarache and LeBel JJ (delivering the judgment of McLachlin CJ, Bastarache, LeBel, Fish and Abella JJ). This is so because it is possible to identify a specific form of error committed by the Minister.

    Failure to consider claim of “another reason”

11. The second basis of legal unreasonableness alleged by the applicant is that the Minister, by failing to have proper regard to all of the matters raised by the applicant, failed to consider “another reason” advanced by the applicant for revocation of his visa cancellation.  Although it may have been optimally clearer for the applicant to advance this allegation as a separate ground of review, so long as the applicant adequately particularised the nature of the alleged unreasonableness, there was no need for him to do so.  This is because, as noted above, legal unreasonableness encapsulates recognised species of jurisdictional error in the decision-making process.

12. Although this claim to legal unreasonableness was framed exceptionally broadly in the applicant’s written submissions (see para 63, extracted above at [184]), the oral submissions advanced by counsel for the applicant sufficiently identified the range of matters that the Minister allegedly failed to consider.  From this, it is sufficient to focus on three prominent aspects of the applicant’s representations: first, the applicant’s connection with Aboriginal communities; second, the applicant’s belief that he was an Australian citizen; and third (and relatedly), the point of time at which the applicant first learned he held a visa.

    Key representations by the applicant

13. The relevant representations made by the applicant, and the correspondence between the applicant and the Department, were outlined earlier in these reasons.  The following representations are key.

14. In his revocation request form dated 24 April 2018, the applicant, in the course of detailing his relationships with his children, noted that he had only just found out that he was on a visa (see above at [17]). (I take from this comment that the applicant was saying that he only first learned about his visa from the Department’s letter the previous day: see also my comments above at [145].)

15. The Minister had before him the letter from the applicant’s solicitor and migration agent to Assistant Commissioner Vanessa Holben dated 21 August 2018.  As extracted above at [24], that letter notes that the applicant had been issued an Australian passport in October 2017, and that such a document could only be issued to the applicant if the Minister was satisfied that the applicant was an Australian citizen.  The letter expresses the applicant’s position that he is an Australian citizen, and that his detention is accordingly unlawful.

16. The Minister additionally received a series of supporting letters from the applicant’s family.  In a letter dated 10 October 2018, the applicant’s adoptive father, Kevin McHugh, relevantly expressed that the applicant “does not have any discrimination within him as he has been brought up alongside multi-cultural communities including indigenous and to also have children with indigenous blood in them”.

17. The Minister also had a copy of the applicant’s email to the Department dated 17 October 2018. In that email, the applicant, in the course of recounting his criminal history, made numerous references to having lived in the Ardyaloon Community.  Moreover, as extracted above at [28], the applicant stated in that email that he was an Australian citizen (because of his passport), and that he had never been told about his visa.  The applicant asked the Department to “consider the seriousness and manner of the process” against him.

18. The applicant’s further handwritten letter dated 8 March 2019 detailed the key events of the applicant’s life.  As extracted above at [29], the letter relevantly expressed that the applicant had always known Australia as his home country, and that he never knew that he came from anywhere else.  The letter also included references to the communities in which the applicant lived in Western Australia, that the applicant was now an aboriginal artist, and that the applicant held ties with the first people of Australia.

19. In addition, the Minister was provided a copy of the applicant’s birth certificate, which recorded the applicant’s birth as having been registered in Queensland on 4 November 1976. The Minister was also provided an image of the applicant’s passport, which stated that it had been issued on 25 October 2017, and that the applicant’s nationality was Australian. (For completeness, however, I note that the applicant did not make any representation to the Minister regarding the applicant’s enrolment on the Commonwealth electoral roll, as discussed above at [134]. That evidence was only provided by the applicant after the Minister’s decision in support of his habeas corpus application.)

20. Each of the documents above were referred to or cited in the Departmental submission to the Minister.  As extracted above at [30], the submission (at para 57) expressly raised the applicant’s submission that he was an Australian citizen due to his birth certificate and Australian passport.  The submission also noted that the applicant identified as a member of the Aboriginal community.

    Minister’s consideration

    Applicant’s connection with Aboriginal communities

21. The first relevant aspect of the applicant’s representations relates to his connection with Aboriginal communities.  The information before the Minister in this regard was sparse.  It was only after the Minister’s decision, when the applicant filed further material in support of his habeas corpus application, that the applicant provided express evidence that he self-identified as an Aboriginal Australian (as opposed to merely having lived amongst Aboriginal communities), provided specific details of his previous ceremonial role in the Ardyaloon Community, and provided supporting evidence of his recognition as an Aboriginal Australian by an elder in the community.  For reference, see the evidence extracted in McHugh (No 1) at [230]–[231].  This material was not before the Minister prior to making his decision.

22. The materials and submissions provided by, and in support of, the applicant did, however, clearly record that the applicant’s seven children, and the mothers of those children, were of Aboriginal descent.  The Minister duly acknowledged this in his reasons (Minister’s Reasons at [13], [15] and [32]), and likewise noted the applicant’s claim that his wife at the time of the Minister’s decision was “an aboriginal artist”: ibid at [34].

23. The applicant highlights that the Departmental submission recorded (at para 63, extracted above at [30]) that the applicant identified as a member of the Aboriginal community, and had been accepted by the Darwin indigenous community.  However, that paragraph does not contain any citations to the underlying material before the Minister, and I cannot identify or infer from the relevant correspondence, materials and submissions any sufficiently clear claim by the applicant that his visa cancellation should be revoked on the basis of his ties with Aboriginal communities. 

24. I accept that the applicant expressed in his handwritten letter dated 8 March 2019 that he held ties with “the first people” of Australia.  However, this was only one sentence amongst lengthy submissions provided by the applicant and, in my view, is more appropriately construed, in the context of those submissions, as referring to the fact his children, and the mothers of those children, are of Aboriginal descent (which was acknowledged in the Minister’s Reasons).  In this respect, in determining whether this reference in the applicant’s handwritten letter constitutes a separate claim for revocation of the cancellation decision, it is important to heed the warning given by Flick, Griffiths and Moshinsky JJ in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]:

    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal.  The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms.  Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim.  The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review.  The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution.  For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

1. My view is that the applicant’s reference to his ties with the first people of Australia did not constitute a distinct “clearly articulated claim in need of resolution” for the purposes of the exercise of the Minister’s power under s 501CA(4) of the Migration Act.  Accordingly, confining my attention to the material before the Minister that referred to the applicant’s connections with Aboriginal communities (either expressly or implicitly), my view is that the Minister did not fail to consider any clear and significant representations advanced by the applicant.  My analysis differs, however, in relation to the applicant’s representations in relation to his citizenship.

   Applicant’s belief as to Australian citizenship

2. The second and third relevant aspects of the applicant’s representations are the applicant’s belief that he was an Australian citizen, and the point of time at which the applicant first learned he held a visa.  These aspects are related, and may be addressed collectively.

3. Although the applicant did not have succinctly characterise the precise reasons advanced for revocation of his visa cancellation, it should be recalled that the applicant was unrepresented in making representations to the Minister (with the exception of the discrete assistance provided by the Immigration Advice and Rights Centre: see above at [24]).  Acknowledging this, the collection of relevant correspondence, materials and submissions outlined above, properly and fairly construed, establish that the applicant was representing to the Minister that his visa cancellation ought to be revoked on the basis that the applicant was an Australian citizen, or at least that the applicant believed that he was an Australian citizen, and that he did not know that he was on a visa until after it was cancelled, and shortly prior to being placed in immigration detention.  According to the applicant, this belief primarily derived from the following facts: that he only discovered that he was adopted at the age of 45; that he never knew that he came from another country; that his birth was registered in Queensland; and that he had been issued an Australian passport.  Additionally, the day after the Department notified the applicant of the cancellation of his visa, the applicant expressed in response that he had only just discovered that he was on a visa.  In my view, these matters were, collectively, clearly expressed, and they were undoubtedly significant.

4. Although the Minister’s Reasons refer to the applicant’s long presence in Australia (Minister’s Reasons at [30] and [81]), and to the fact that the applicant only realised that he was adopted when he was 45 years old (ibid at [31]), the reasons do not include any reference to the applicant’s belief that he was an Australian citizen, nor any reference to the fact that the applicant held an Australian passport, nor any reference to the fact the applicant said that he had only just learned that he was on a visa.  The Minister’s failure to refer to these central matters is stark.

5. The Minister submits that he was not required to refer to the applicant’s belief as to his Australian citizenship, nor the applicant’s Australian passport, because these matters pertained only to the threshold issue as to whether the Minister had jurisdiction to exercise his power under s 501CA(4) of the Migration Act in respect of the applicant. In this regard, it appears that the Minister followed his Department’s advice that, although the applicant was issued an Australian passport, this did not confer citizenship upon the applicant, and that the applicant had not otherwise acquired citizenship: see para 57 of the Departmental submission, as extracted above at [30]. Of course, this advice was, in my view, correct: see McHugh (No 1) at [248]–[351].  However, it was insufficient for the Minister’s consideration to stop there.

6. As a general matter, where a discretionary power such as s 501CA(4) is involved, and a supervising court is seeking to discern the reasons behind the exercise, or non-exercise, of that power, the “intelligible justification” for which the decision-maker is responsible (Li at [76] per Hayne, Kiefel and Bell JJ) ought to lie within the reasons of the decision-maker given for the exercise of the power, and not outside of those reasons: Singh (2014) at [47]. As such, to the extent that the Minister rationalised that the applicant’s representations regarding his citizenship only concerned matters of only jurisdiction, the Minister’s Reasons ought to have exposed that reasoning.

7. In any event, and most fundamentally, verification of the existence of jurisdiction in respect of the applicant was only the first step for the Minister.  The Minister was then required to consider all of the applicant’s clearly expressed and significant representations as to why the visa cancellation decision should be revoked.  In the present case, this particularly required the Minister to engage in an “active intellectual process” by reference to the applicant’s representation that he was Australian citizen: Omar at [34(d)]; see also Tickner v Chapman (1995) 57 FCR 451 at 495 per Kiefel J; Navoto at [87] and GBV18 at [32(a)].

8. Based on the Minister’s Reasons, however, the Minister failed to give any degree of consideration to the applicant’s representation that he was an Australian citizen (or, at least, to the applicant’s subjective belief that he was an Australian citizen).  By failing to give consideration to this clearly expressed and significant representation (and the bases for that representation), the Minister committed a recognised species of jurisdictional error: Omar at [45], citing Viane at [75] per Colvin J; see also GBV18 at [32(f)]. Accordingly, the exercise of the Minister’s power under s 501CA(4) was, by definition, legally unreasonable.

9. To return to first principles, as Gageler J explained in Li at [105] (quoting Dunsmuir at [47]), “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’” (emphasis added).  The consequence of the Minister’s error in the present case, although orthodox in nature, is that, given the circumstances raised in the applicant’s representations, there is, with respect, a distinct deficiency of justificatory force in the reasons provided by the Minister: see, generally, McDonald L, “Reasons, Reasonableness and Intelligible Justification in Judicial Review (2015) 37(4) Sydney Law Review 467 at 482–488 and Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at [15] and [95]–[96] per Wagner CJ, Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.

10. As the outcome of the Minister’s decision in the present case was not reached according to law, the matter will be remitted to the Minister to reconsider the applicant’s revocation request.  This will require the Minister to genuinely confront the circumstances raised by the applicant’s representations: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] per Allsop CJ (with Markovic and Steward JJ agreeing), quoted in Omar at [37] and GBV18 at [32(d)].

    VII.   CONCLUSION

11. For the reasons expressed above, the Minister’s decision, by failing to have regard to clearly expressed and significant representations advanced by the applicant, was legally unreasonable, and therefore infected by jurisdictional error.  The result is that the Minister’s decision is quashed, and the matter is remitted to the Minister to be determined according to law. 

12. I make the following orders:

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

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

    3.        Costs are reserved.

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

I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.

Associate:       

Dated:            18 June 2020