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Mulvaney v Wintulich

Mulvaney v Wintulich

Case [1995] FCA 1204 29 September 1995

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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204
Case: [1995] FCA 1204
Decision Date: 29 Sep 1995

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Citations

50

AGLC Citation

Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204

Most Recent Citation

Coinvest Limited v Bestaff Australasia Pty Ltd [2012] VCC 1474

Cases citing this decision · 50 of 50 shown

Nguyen v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1575 Para 29

…slation (or principles emerging from case law) did not constitute information (citing Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204 at [401] and Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]-[48]) and the Tribunal put to the applicant information obtained from t…
Palmer v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCAFC 154 Para 26

…e can be no estoppel against a statute: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. … See also Federal Commissioner of Taxation v Wade (1951) 84 CLR 105, 116.…
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 340 Para 22

…ere can be no estoppel against a statute: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55. In a…
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCAFC 152 Para 15

…; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.…
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2020] FCA 843

…rs 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…
Slattery v Fordyce; Fordyce v Slattery
[2019] NSWSC 173

…f Bitar Pty Ltd [2015] NSWSC 2158 Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 Neil v Legal Profession Complaints Committee [2011] WASCA 48 O’Connor v Soul [2015] NSWDC 294 Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18 Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSW…
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2)
[2018] NSWLEC 153

…1987) 9 NSWLR 154 Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 Mollica v Shire of Bulla (1992) 9 AATR 157 Mosman Municipal Council…
Verma & Anor v Reynolds
[2018] ACAT 89

…The Matter Of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105-107 Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra v Kenn…
Den Hertog (Migration)
[2017] AATA 2447 Para 37

…] Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22 at [12]; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 (Davies, Whitlam and Branson JJ); Haque v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 55; Wang v Minister for Immigra…
Reid (Migration)
[2017] AATA 753 Para 39

…16] Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22 at [12]; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 (Davies, Whitlam and Branson JJ); Haque v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 55; Wang v Minister for Immig…
Wagner and Migration Agents Registration Authority
[2016] AATA 957 Para 28

…lat [28] at [22] – “ … a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied ”. [28] [1995] FCA 1204.…
Wagner and Migration Agents Registration Authority
[1986] AATA 287 Para 28

…lat [28] at [22] – “ … a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied ”. [28] [1995] FCA 1204.…
Sheth v Minister for Immigration
[2015] FCCA 3172 Para 4

…re can be no estoppel against a statute : Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55…” [Em…
Studio Fashion (Australia) Pty Ltd and Chief Executive Officer of Customs
[2015] AATA 366 Para 1

…R 117 at 124-5; 15 ALD 657; 81 ALR 687 per Davies and Gummow JJ and Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7; 37 ALD 394 per Davies and Branson JJ and at FCR 111 per Whitlam J. In any event estoppel cannot operate, directly or indirectly, to confer any jurisdiction or power on a…
Patel v Minister For Immigration & Anor
[2014] FCCA 2000 Para 7

…JJ. [103] (1990) 170 CLR 1 (“ Quin ”). [104] Quin CLR at 17 per Mason CJ. See also: Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105 per Davies, Whitlam and Branson JJ. [105] Singh FCR at 566 per Keane CJ, Collier and Logan JJ; FCAFC at para.48 per Keane CJ, Collier and Logan JJ; Jihui Chen…
Diamant & Ors v Minister for Immigration & Anor
[2014] FCCA 21 Para 1

…Affidavit, para.9. [50] First Applicant’s Affidavit, para.10. [51] Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105 per Davies and Branson JJ (“ Polat ”).…
City of Swan v LWP Property Group Pty Ltd
[2013] WASCA 90

…SCA 117; [1999] 3 VR 331 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007)…
Coinvest Limited v Bestaff Australasia Pty Ltd
[2012] VCC 1474

…210; Attorney -General for the State of New South Wales v Quinn (1989-1990) 170 CLR 1, 17-19, 40; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105, 107; Downward Bricklaying Pty Ltd v Goulburn-Murray Rural Water Authority (2003) 8 VR 61, 90-91 ; Chamberlain v Deputy Commissioner of Taxation…
Singh v Minister for Immigration & Anor
[2012] FMCA 821 Para 1

…h a requirement which a statute intends shall be satisfied. See generally the discussion in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-106. Here the statutory scheme is patent. Once a certificate issues, and non-compliance was not due to exceptional circumstances, the condition is n…
Obeid v Victorian Urban Development Authority
[2012] VSC 251 Para 1

…rit. [138] Minister for Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105.…
Queensland Harness Racing Limited v Racing Queensland Limited
[2012] QSC 34 Para 1

…[7]Relying on Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208, 210; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105, 107; see also Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, 74-76; Attorney-General (NSW) v Quin (1990) 17…
SINGH v Minister for Immigration
[2011] FMCA 832 Para 4

…t to an assumption on which he acted and as such there is no foundation for estoppel; see Minister for Immigration and Ethnic Affairs v Sabri Polat (1995) 57 FCR 98 at [105].…
Mann v Minister for Immigration
[2011] FMCA 667 Para 9

…ation”. The application was not “made” until 17 March on which day she did not hold a valid student visa. In Minister for Immigration v Polat (1995) 57 FCR 98 Mr Polat was required to have a valid entry permit at the time he lodged an application under s.47(1) of the Act. He did not have such a permit because he de…
KELLY v Minister for Immigration
[2011] FMCA 557 Para 2

…Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 111. To the same effect, in Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204 (1995) 37 ALD at [401], Davies and Branson JJ said: The view taken in Richmond is similar to that expressed in this country in the cases to which referen…
O'Donoghue v Minister for Immigration and Citizenship (No 3)
[2011] FCA 668 Para 1

…blic law (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (at 207-208) and Minister for Immigration v Polat (1995) 57 FCR 98 per Davies and Branson JJ (at 105)).…
O'Donoghue v Minister for Immigration & Anor (No.4)
[2010] FMCA 513 Para 12

…In Minister for Immigration v Polat (1995) 57 FCR 98 at 105 Davies and Branson JJ considered the exceptions to the general rule: The exceptions appear to be cases, such as Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, where decisions have been taken by officers having ostensible, th…
Gabor v Secretary, Department of Education, Employment and Workplace Relations
[2010] FCA 706 Para 14

…dict a statute or to extend the authority of a decision-maker beyond that given by the statute: Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105-107 per Davies and Branson JJ; Australian Education Union v Lawler (2008) 169 FCR 327 at [185] per Jessup J (Lander J agreeing).…
JOHN PATRICK ETTRIDGE and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 415

…cial Security (1988) 46 FCR 117 at 125.7; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 107; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17.2.” [9] [9] At [27]…
Air Tahiti Nui Pty Ltd v McKenzie
[2009] NSWCA 429

…es v Commissioner of State Taxation (WA) [1975] HCA 55; 133 CLR 125 Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; 57 FCR 98 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Protean (Holdings) Ltd v American Home Assurance Co (1985) 4 ANZ Insurance Cases 60-683 Sarat Chunder Dey…
Vukovic v Transport Accident Commission
[2009] VSC 497 Para 1

…e plaintiff did duly “apply” to the TAC for a determination of his degree of impairment. [53] Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-107 (Davies and Branson JJ). [54]See and compare Ansett v Taylor [2006] VSCA 171, esp at [39] (Ashley JA); Husson v Keppel Prince Engineering Pty…
Sidhu v Minister for Immigration and Multicultural and Indigenous Affairs
[2007] FCA 69 Para 9

…In Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98, Davies and Branson JJ said at 107: ‘Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute.’…
Rajcinoski v Secretary, Department of Employment and Workplace Relations
[2006] FCA 1396 Para 14

…Family and Community Services [2005] FCAFC 239 at [20] per Kiefel, Jacobson and Greenwood JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7 per Davies and Branson JJ ( ‘Polat’) ; and Formosa v Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ).…
CHEN v Minister for Immigration
[2006] FMCA 304 Para 18

…te so as to override the express provisions of a statute. As the Full Court of the Federal Court in Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 107: Estoppel will not operate so as to contradict the statute or to extend the authority of a decision-maker beyond that given by the statute…… E…
HAQUE v Minister for Immigration
[2006] FMCA 55 Para 15

…ster for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 392, Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 at 104-107 and B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 at 131-132.”…
Butcher v Minister for Immigration
[2005] FMCA 880 Para 9

…ternative construction” (at [33]). It was also acknowledged (at [33]) that as was emphasised by a Full Court of the Federal Court in MIEA v Polat (1995) 57 FCR 98, the court cannot make an order so as to contradict the provisions of a statute by way of relieving “against non-compliance with a requirement which the…
Re Jebb and Repatriation Commission
[2005] AATA 470

…Australia (3 rd Ed) Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Bramwell v Repatriation Commission (1998) 51 ALD 56 Repatriation Commission v Keeley (2000) 98 FCR 108 Repatri…
Shaukat v Minister for Immigration
[2004] FMCA 510 Para 15

…on Commission (1992) 39 FCR 420 at 425; Minister for Immigration and Ethnic Affairs v Kurtovic; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary Department of Social Security (1988) 46 FCR 117. … 87. The Department and its officers must act according to statutory…
Jaswal v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 787 Para 9

…observe moreover that it was emphasised by a Full Court (Davies, Whitlam and Branson JJ) in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 that the Court cannot make an order so as to contradict the provisions of a statute by way of relieving against non-compliance with a requirement which the…
FANG v Minister for Immigration
[2004] FMCA 280 Para 5

…tion Commission (1992) 39 FCR 420 at 425; Minister for Immigration and Ethnic Affairs v Kurtovic; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary Department of Social Security (1988) 46 FCR 117.…
Applicant VFAD of 2002 v Minister for Immigration and Multicultural Affairs
[2002] FCA 1062 Para 14

…doubt that estoppel, waiver or acquiescence can operate to contradict a statute: see Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 107. If that is the correct view then, if the applicant has been granted a visa under the Act he is a lawful, rather than an unlawful, non-citizen. However, i…
Salehi v Minister for Immigration and Multicultural Affairs
[2001] FCA 995 Para 21

…otherwise have. Again, there is clear authority to that effect: Wang per Merkel J at 392; Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 per Davies and Branson JJ at 104 - 107 and per Whitlam J at 111; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 per Davies and…
Latitude Fisheries Pty Ltd and Anor and Australian Fisheries Management Authority
[2000] AATA 1025 Para 2

…The general principles of estoppel must be, in public law, limited by the ultra vires doctrine (see Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105-7 per Davies and Branson JJ) and if the effect of creating an estoppel would contradict a statute and extend the duty and authority of a decis…
Plug; Department of Social Security
[2000] AATA 744 Para 10

…The general principles of estoppel must be, in public law, limited by the ultra vires doctrine (see Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105-7 per Davies and Branson JJ) and if the effect of creating an estoppel would contradict a statute and extend the duty and authority of a decis…
Al Chaar v Minister for Immigration and Multicultural Affairs
[2000] FCA 941 Para 6

…see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 392, Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 at 104-107 and B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 at 131-132.…
Adams v Executive Director, Fisheries WA
[2000] WASC 34

…Police (1995) 37 NSWLR 320 Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303 Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 Moses (alias Moss) v Parker & Ors; Ex parte Moses [1896] AC 245 Parramatta City Council v Palmyra Freeholds Pty Ltd & Anor [1974] 2 NSWLR 83 Peacock…
Ghomrawi v Minister for Immigration and Multicultural Affairs
[1999] FCA 1454 Para 2

…nciple of estoppel can excuse an administrator from performing his or her statutory obligations – Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. Even when a power to act is a discretionary one, where there is a duty under statute to exercise a free and unhindered discretion, no estoppel…
Wasfi, Mokhtar Abdel Gawad v The Commonwealth of Australia
[1998] FCA 639

…airs (1992) 176 CLR 1 cited Pyrenees Shire Council v Day (1998) 72 ALJR 152 discussed and applied Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 applied Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 cited Grech v Featherstone (1991) 33 FCR 63 c…
Butler, Dr Bernard Stewart v Fourth Medical Services Review Tribunal
[1997] FCA 773

…nald v Director-General of Social Security (1984) 1 FCR 354 Taylor v Minister of State for Health (1989) 23 FCR 53 Minister for Immigration v Polat (1995) 57 FCR 98…
Yong Jun Qin v Minister for Immigration and Multicultural Affairs
[1997] FCA 495

…“mistake” (see Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 and Brickworks Ltd v The Council of the Shire of Warringah (1963) 108 CLR 568 at 577). In contending that O 13 r 2 could have no application here, the respondent…
Minister for Immigration and Ethnic Affairs v Petrovski
[1997] FCA 154

…ission (1992) 39 FCR 420 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98…

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