O'Donoghue v Minister for Immigration & Anor (No.4)
[2010] FMCA 513
•27 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'DONOGHUE v MINISTER FOR IMMIGRATION & ANOR (No.4) | [2010] FMCA 513 |
| MIGRATION – Review of MRT decision – applicant a solicitor from Ireland who came to Australia with his family in 2002 and applied for an Employer Nomination (Residence) visa in 2003 – where applicant initially satisfied visa requirements save for matters including character check – where Department notified of criminal charges pending against him in the Republic of Ireland and processing of application placed on hold while extradition proceedings were on foot – where decision of delegate was affirmed by Tribunal before applicant had exhausted his appeal rights in the extradition proceedings – reason for adverse decision based on the fact that original offer of employment no longer available – whether the applicant was at any time entitled to the visa – whether Department and Tribunal were estopped from reaching decision before the extradition proceedings were exhausted on account of undertakings to that effect by the Department – whether Department’s statements constituted a clear and unambiguous promise – whether detrimental reliance on promise – estoppel in administrative matters considered – whether Tribunal fulfilled its disclosure obligations – whether decision affected by bias. |
| Migration Act 1958 (Cth), ss.65, 476 Migration Regulations 1994 (Cth) Extradition Act 1988 (Cth) |
| O’Donoghue v Minister for Immigration [2010] FMCA 345 Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) |
| Applicant: | VINCENT THOMAS O'DONOGHUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 3 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 July 2010 |
| Date of Last Submission: | 5 July 2010 |
| Delivered at: | Perth |
| Delivered on: | 27 July 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 3 of 2010
| O'DONOGHUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr O’Donoghue is an Irish solicitor who came to this country in 2002 on a visitor’s visa and, on 15 November 2002, was granted a Temporary Business Entry (Class VC) (Subclass 457) visa. On 14 November 2003 he applied for an Employer Nomination (Residence) (Class BW) (Subclass 856) visa. There was included on his application, his wife and children. In these reasons I shall refer only to Mr O’Donoghue as the applicant. The application for the subclass 856 visa was not dealt with immediately by the Department for reasons which will become clear during the course of this decision.
The grant or refusal of a visa under the Migration Act 1958 (Cth) (the “Act”) is governed by the provisions of s.65 of the Act and the Regulations applying to the particular class of visa sought. Section 65 is in the following form:
“Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
The relevant regulations for assessing an applicant for the type of visa applied for are those found at reg.856.213-222 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). They are found at [CB 349]:
“856.213 The applicant:
(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer;
and
(b) is a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment; and
(c) unless the appointment is exceptional:
(i) has not turned 45; and
(ii) has vocational English.
856.214If the appointment is an approved appointment, the period that has elapsed since it became an approved appointment does not exceed 6 months.
856.22Criteria to be satisfied at time of decision.
856.221The appointment mentioned in paragraph 856.213(a) is an approved appointment.
856.222The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.”
Mr O’Donoghue had obtained an offer of employment from a firm of solicitors known as Hope Lawyers which had been approved on 16 December 2003 [CB 205-206] as a nomination for a subclass 856 visa.
Whilst Mr O’Donoghue’s application for the subclass 856 visa was being considered by the Department, it came to the Department’s attention that Mr O’Donoghue had been the subject of certain criminal investigations in Northern Ireland. On Mr O’Donoghue’s behalf, his advisors submitted to the Department documents from the police service of Northern Ireland confirming that Mr O’Donoghue was not currently under investigation by the Department as at 21 June 2002 [CB 219]. It appeared that these charges were not the only ones concerning the Department. It was being suggested that there were some further charges pending in the Republic of Ireland. On 22 January 2004 Mr O’Donoghue’s advisors wrote to the Department, advising it that their client was not aware of any new charges being brought against him. Whilst these investigations were continuing, Mr O’Donoghue was granted a bridging visa A. At some stage, Mr O’Donoghue and his family moved to Perth. On 21 December 2004 Mr O’Donoghue was arrested in Perth on provisional warrants issued under the authority of the Extradition Act 1988 (Cth) in relation to offences alleged to have been committed in the Republic of Ireland and in respect of which Irish warrants were issued on 24 March 2004. Mr O’Donoghue contested his extradition in a series of proceedings before the Federal Court and finally before the High Court when his final application for special leave was refused on 17 June 2010. Nothing appears to have happened in relation to the processing of his visa application which, according to an email dated 11 January 2008 to Mr O’Donoghue from Steven MacLean, the Brisbane Branch Manager of DIAC, was “currently on hold while you have matters before the Court.” The email went on to say:
“other matters that are outstanding before your application can be finalised are:
updated character and health checks for you and your family.
any updated documents required (e.g. passports, CV, qualifications and confirmation that the position that was approved for the nominating company (legal consultant) remains available.” [emphasis added]
This email appears to be the first written intimation that Mr O’Donoghue had of what was happening at the Department but he has obtained through an FOI request a copy of an email dated 27 July 2006 from Sacha Marin to Kendall Crow which states:
“Hi Kendall,
Ok this is issue. Client lodged for ENS, however, has an extradition order to Ireland. Allegations that he embezzled money/property. However, he has challenged the extradition in the Federal Court. Processing of application therefore on hold until issue regarding the Court and extradition order have been finalised…” [emphasis added]
Following his failed constitutional challenge, Mr O’Donoghue’s extradition proceedings finally came on for hearing before Magistrate G N Coulder in the Western Australian Magistrate’s Court in Perth. On 3 April 2009 he found that Mr O’Donoghue was an eligible person for surrender for extradition to Ireland in relation to the extradition offences the subject of the warrants. On 22 April 2009 the Department wrote to Mr O’Donoghue stating relevantly:
“You will recall that in previous correspondence and discussions I had advised that your application was on hold while you had matters before the Courts. Please advise me of the current state of your legal matters.
In addition, please provide written confirmation from the nominator, Hope Lawyers, that the nominated position remains available. Regulation 856.222 states that:
“The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.”
Please provide the information requested above within 7 working days and 28 calendar days of the date of this letter. If you do not do so, your application may be decided without the information requested being taken into account. If you cannot provide this information within 7 working days and 28 calendar days, you should contact this office immediately and explain why you are unable to do so.” [CB 344]
This letter was followed up by an email on 6 May. In the meantime, Mr O’Donoghue sought review of the Magistrate’s decision from the Federal Court. On 9 June 2009 Barker J dismissed the application for review. On 11 June a further email was sent from Mr MacLean to Mr O’Donoghue referring to that decision and stating:
“As this will have an impact on your application for permanent residence under the employer nomination scheme, I will be grateful if you could advise your intention in regard to your application, including that for your family.”
Mrs O’Donoghue responded on behalf of Mr O’Donoghue advising that the matter was under appeal to the Full Federal Court and noting that any final decision under the Extradition Act 1988 (Cth) rested with the Attorney General. On 20 August 2009 Mr MacLean sent a further email to Mr O’Donoghue attaching the letter of 22 April and stating:
“while you did provide an update concerning your matters before the Court, you did not respond to my request in relation to your nomination. Specifically, I requested [information requested].
I once again ask that you provide this information. Please provide this information within 7 days of the date of this email. If you do not do so within 7 days, your application may be decided without the information requested being taken into account. If you cannot provide this information within 7 days you should contact this office immediately and explain why you are unable to do so.” [CB 341]
That email was responded to by Mr O’Donoghue on 23 September 2009 by letter dated 23 August 2009 [CB 345].
“Dear Stephen,
Re our Case – Permanent Residency
We refer to the above and earlier correspondence and your email dated the 20th inst for which we thank you.
In answer to your query in regards to regulation 856.222 & Paragraph 856.213, the bilateral contractual obligations and duties binding the parties still prevail and therefore the position is still available.
However, as a consequence of current Court proceeding Vincent is temporarily on remand in Hakea Prison in Western Australia despite the fact that he has been on Bail for some 5 years without breach. Such are the anomalies of Australian Law.
As a consequence, we as a family are bound by Court Order to reside in Western Australia until these matters have been resolved fully or that order is varied. However, we would draw your attention to the fact that we have complied with all our obligations since 2004 when we first applied for Permanent Residency. In this regard your files will show that we are duly qualified having furnished up to date Medical Reports and Police Clearance Certificates from Ireland, Northern Ireland and the Federal Police of Australia.
You will also note that your predecessor approved us for Permanent Residency subject to clarification that any alleged charges in Northern Ireland had been dismissed. This was in fact done.
The problem arose when the Gardai in Southern Ireland took a sympathetic approach towards their colleagues in Northern Ireland. This has arisen because of an ongoing Civil Action by Vincent in the High Court in Belfast seeking substantial damages for wrongful arrest and false imprisonment. This action is still ongoing. In all the circumstances, we would be very grateful if you will now issue our certificate of Permanent Residency and resolve all of these grave difficulties which we as a family are currently experiencing and are causing great suffering.
Kind regards,
Vincent & Anne-Marie O’Donoghue”
This letter is disingenuous. It does not respond to the Department’s request for information about the current status of the employment offer. It merely informs it of Mr O’Donoghue’s assertion of his legal rights against the nominator. It is also incorrect to say that Mr O’Donoghue and his family were approved for permanent residency. That assertion comes from Mr O’Donoghue’s reading of an email from Fairlie Williams of the Department to Rob Blount of Interpol Canberra dated 6 January 2004 in which Ms Williams says:
“In regards to previous correspondence concerning the above named a/n, please be advised that Mr O’Donoghue has applied for permanent residence through the employee’s nomination scheme unless any adverse information comes to light and pending medical and character checks, including police clearances from the UK, it is likely that Mr O’Donoghue’s application will be approved in a few weeks.”
It was following the correspondence of April and May 2009 discussed above that Mr MacLean (the delegate) decided on 26 August that he was not satisfied that Mr O’Donoghue had met condition 856.222 of subclass 856, being a criteria that was required to be satisfied at the time of the decision.
On 21 September 2009 Mr O’Donoghue applied for review of the delegate’s decision from the Migration Review Tribunal. The Tribunal held a hearing attended by Mr O’Donoghue on 9 December 2009. It received post hearing submissions on 10 and 11 December 2009. On 15 December 2009 it determined to affirm the decision under review.
When the delegate’s decision came to be reviewed by the Tribunal, the Tribunal asked whether the nomination had been withdrawn or lapsed. At [38] [CB 514]:
“The Tribunal conducted its own enquiries and is satisfied that the instrument of approval made up under regulation 5.19[D1-f.4.3] does not specify a time limit by which the position is to be filled and the nomination has not been withdrawn by the nominating employer [39]. In these circumstances, the Tribunal finds that the applicant meets clause 856.221.”
In regard to clause 856.222, the Tribunal states:
“40. The delegate found that the visa applicant did not satisfy clause 856.222, which is to be assessed at the time of decision, because he was not satisfied that the appointment mentioned would provide the visa applicant with the required employment.
856.222 The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.
41. The employment referred to in the relevant employer nomination is that the nominator, Hope Lawyers, would employ the visa applicant in the position of Legal Consultant, ASCO Code 2521-79.
42. There is no probative evidence before the Tribunal that the appointment referred to in paragraph 856.213(a) will provide employment to the visa applicant at the time of decision. The only copy of an employment contract before the Tribunal is one provided at the time of application on 14 November 2003 which was not dated or signed by either party. Evidence of an employment contract or that the position remained available was requested by the delegate on 22 April 2009 and 20 August 2009. The visa applicant responded to the effect that ‘bilateral contractual obligations’ exist and bind the parties, but no written confirmation or version of any contractual arrangement was provided. The matter was again put to the visa applicant in the Tribunal’s letter of 15 October 2009, to which the visa applicant did not give a satisfactory response. In his review application the visa applicant stated: “Accordingly, my visa application should have been granted within 12 months of 16 December 2003. The delay in granting a visa meant I could not continue with Hope Lawyers”.
43. At the hearing the visa applicant gave evidence that he travelled from Brisbane (where the nominator’s business is located) to Perth in December 2004 and subsequently remained there because he was arrested two days after arrival. He was granted bail but required to reside in Perth. He gave evidence that between 2004 and 2008 he worked in Perth for two different businesses, during which time he had no working or other relationship with Hope Lawyers. He was subsequently detained in Hakea Prison, where he is at present. When asked if Hope Lawyers still existed as a business he said he had “No idea”. He stated to the effect that it would be unreasonable to expect the nominator to keep open the position for such a long time. He has “no evidence that the position exists”.
44. The visa applicant said the job position [at Hope Lawyers] was bona fide at the time of his nomination in 2003 and “Is it reasonable to expect that it continues to 2009?. To find against me on that basis is for your [the Member’s] discretion”. He reiterated the point and gave further evidence in a post-hearing letter dated 10 December 2009, about the ‘bona fides’ of the position in 2003. The Tribunal accepts that the position was bona fide at the time of application, which coincides with the time that the nominator applied for and was granted approval under the Employer nomination scheme. The Tribunal does not accept that it has discretion to waive the requirement that the visa applicant meet the requirements of clause 856.222 at the time of decision.
45. On the basis of the evidence discussed, the Tribunal is not satisfied that the position at Hope Lawyers is available to the visa applicant, or that the visa applicant would be able to take up the position if it were available. The Tribunal is not satisfied that the ‘appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination’. Accordingly, the Tribunal finds that the visa applicant does not meet the requirements of clause 856.222.”
The Tribunal also dealt with what it described as “other matters – the wider issue”. These matters included the applicant’s complaint that not all departmental documents had been provided to him and that the review case involved a wider issue about the Department acting wrongly in not granting the visa and that he was entitled to a visa because the Department had placed the application on hold but apart from that he had met all the requirements for a grant of a visa. In this regard, the Tribunal opined:
“52. In the Tribunal’s view, the Department’s letter(s) stating that the application is on hold until the matters before the court are settled was not unconditional. At a minimum, they requested further information about a relevant question, and do not, of themselves, imply that the application will necessarily be approved when the court matters are themselves resolved. More importantly, it cannot preclude the possibility that if the visa applicant is found not to meet one of the mandatory criteria for the grant of the visa the delegate may refuse the grant of the visa on that basis. This arises because the delegate (or the Tribunal) does not have the legal capacity to waive mandatory criteria for this class of visa.
Following from the previous claims, it might be thought that the delay between the visa application on 14 November 2003 and the decision on 26 August 2009 is excessive. It appears that the delegate intended to reserve a decision until after the court matters were settled, subject to other criteria being met. However, the visa applicant has given the Tribunal a copy of a letter dated 3 January 2006 which indicates that the visa applicant commenced a Constitutional challenge in the Federal Courts around that time. It appears that the extended delay is to a substantial extent of the visa applicant’s own making.”
On 11 January 2010 Mr O’Donoghue applied to this Court under s.476 of the Act for a review of the Tribunal’s decision. That application was sought to be amended by Mr O’Donoghue who took out an application before this Court which was heard on 19 March 2010. The application was heard by Lucev FM, who handed down a lengthy and reasoned decision on 21 May 2010, the effect of which was to allow certain amendments to the application and to make other consequential orders including that the matter be referred to my docket; O’Donoghue v Minister for Immigration [2010] FMCA 345. The matter then came on before Registrar Segal for directions. It was set down for hearing on 5 July 2010. Mr O’Donoghue then took out another application seeking review of the decision of Registrar Segal for the purposes of obtaining an adjournment. That matter was heard before me on 23 June 2010 when I published two judgments: O’Donoghue v Minister for Immigration (No 2) [2010] FMCA 463 and O’Donoghue v Minister for Immigration (No 3) [2010] FMCA 464. I made orders for the filing of an amended application and submissions which were complied with by Mr O’Donoghue. In his amended application, Mr O’Donoghue raised four grounds of review. I shall deal with each in turn.
The first ground of review was:
“The second respondent erred in law in finding, in effect, that it was irrelevant that the applicant had satisfied all the requirements for the grant of an employer nomination (residence) (class BW) visa and had been approved on 16 December 2003 and that the visa should have been granted then.”
This ground proceeds on the erroneous basis that the approval of the nominator was an approval of the visa applicant. It is not. It is a condition precedent to the grant of a visa that there is an approved nominator but the visa applicant must still satisfy the Minister of the criteria found in reg.856.213, .214.22, .221 and .222. The applicant must also satisfy the character and health checks. The character checks were in progress and revealed matters of concern which the Department was entitled to investigate. Those investigations had not concluded when the applicant was arrested. This ground cannot be sustained.
The second ground was:
“The second respondent failed to take into account a relevant matter, namely, that the applicant had satisfied all the requirements of the grant of an employer nomination (Residence) (Class BW) visa and had been approved on 16 December 2003.”
For the reasons given above, this ground must also fail.
The third ground was:
“The respondents and each of them were estopped from proceeding to consider the applicant’s visa application by reason of undertakings given by the first respondent that it would not deal with the application pending the final outcome of extradition proceedings against the applicant brought by Ireland.”
In respect of this ground the applicant submitted that the undertakings, were those contained in the emails and letters from the Department to Mr O’Donoghue and corroborated by the inter-departmental emails which have already been extracted. He claimed that he had relied on the promises, assurances and undertakings in good faith and that the Department had reneged on those assurances without just cause. As a result, he has suffered grave consequences. He stated that the decision to revoke his visa was made as a consequence of him writing directly to the Prime Minister and the Minister for Immigration & Citizenship and that the Department acquiesced in the situation without protest and did nothing for six years. He argued that the Department had acted ultra vires and with mala fides in that it knew that he was incarcerated when it set out to cancel his visa and that it was impossible for him to comply with the conditions set out in the bridging visa, although I think the applicant really meant that it was impossible for him to comply with the conditions in the Regulations.
The applicant also argued that the Department failed to exercise its discretion in a just and lawful manner that would have been favourable to him and his family. In regard to this claim it should immediately be said that compliance with the Regulations is mandatory and not a matter of discretion. The applicant claimed that the Department had made several attempts to cancel his visa without due process and without affording him natural justice. In this regard the applicant has not pointed to any occasions upon which an attempt was made to cancel the visa other than by the delegate and by the Tribunal. I am satisfied that the applicant was provided with natural justice in accordance with the provisions of the Act in both of those decisions.
The applicant stated that it was always open to him to seek a substitute employer instead of Hope Lawyers, withdraw his current application and start the process again. This is correct, if he had obtained a substitute employer and that employer had been approved for nomination and that employer’s position remained open, the decision may have gone another way. But these things did not happen. It cannot be said, as argued by the applicant, that the Department acted unreasonably in not affording him an opportunity to seek other employment because, as he said, the application was in abeyance for six years. He was on bail in Western Australia for most of that time whilst the first of his challenges to the extradition took place. The applicant then makes a series of allegations of unlawful collusion between various government ministers of this and the previous government. He makes similar allegations of collusion between the Department and the Irish Embassy, the AFP and Interpol and claims that these allegations of collusion demonstrate bias on the part of the Attorney-General’s Department and other ministers. None of these allegations is substantiated. The applicant provided the Court with a voluminous bundle of correspondence, some of which included internal emails between the departments mentioned, Interpol and the AFP and some documents arising out of attempts by Mr O’Donoghue to seek political assistance in relation to his position, in particular, the bringing of charges against him by Ireland. These documents are on the Court record. They do not to my mind constitute even prima facie evidence of any of the matters the subject of those submissions. The applicant made other submissions relating to the Irish arrest warrants and the actions of the Irish police, which really go more to the question of the validity of the extradition proceedings than these proceedings before me. In my view, the only matter which requires proper consideration by this Court is the allegation of estoppel.
The content and operation of the general doctrine of estoppel by conduct was considered by Deane J in Commonwealth v Verwayen (1990) 95 ALR 321 at 356:
“The central principle of the doctrine is that the law will not` permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.”
The nature of the estoppel argued by the applicant is promissory in that the alleged undertaking related to future conduct.
In order for the applicant to succeed on this ground, there are a number of significant hurdles he must overcome. First, he must establish that the Department’s statements constitute a sufficiently clear and unambiguous promise that it would not deal with the visa application until the extradition proceedings had been exhausted; cf. Legione v Hately (1983) 152 CLR 406 at 435 – 437. Second, the applicant must show that he suffered detriment in reliance on the promise. Finally, the applicant must demonstrate how the law of estoppel might be used to preclude or fetter the exercise of the statutory duty under s.65 of the Act.
The Department’s statement in the letter of 11 January 2008 that the applicant’s application “is currently on hold while you have matters before the court” cannot be said to constitute a clear and unambiguous promise that it would not deal with the visa application until the extradition proceedings had been exhausted. It is at best a statement as to the status of the application at a time when, but for the character clearances, the application was likely to be accepted. The Department’s actions in requesting confirmation that the position with Hope Lawyers was still open should have put the applicant on notice that the status of his application could change. Although an estoppel by representation may be founded upon an implication drawn from an express statement; Minister for Immigration v Kurtovic (1990) 21 FCR 193 (“Kurtovic”) at 207, I do not believe there are any grounds for such an implication to be drawn in this case.
However, even if the statement did bear the implication contended for, Mr O’Donoghue has not satisfied the Court that he suffered any detriment in reliance on it. The Tribunal’s reason for affirming the decision of the delegate was that it could not be satisfied that Hope Lawyers would employ Mr O’Donoghue. Even if the Tribunal had waited until after the extradition proceedings had been finalised, the applicant would not have been in any different position to that which existed on 15 December 2009. He has not received any renewed offer of employment. Furthermore, Mr O’Donoghue has not suggested that he acted or omitted to act in reliance on the undertaking that was in some way detrimental to his case. For these reasons, it cannot be said that the applicant suffered any detriment in reliance on the alleged undertaking.
In Kurtovic supra, a Full Bench of the Federal Court considered the issue of estoppel in administrative matters and at 208 Gummow J (as he then was) noted:
“[t]he principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:
“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.”
(Halsbury's Laws of England (4th ed), Vol 44, "Statutes" para.949.)”
Gummow J went on to consider the basis for this proposition and whether there are any exceptions or qualifications to it. The general position was explained in a decision of the United States Supreme Court Heckler v Community Health Services of Crawford County Inc [1984] USSC 103; 467 US 51 at 60;
"When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant. Petitioner urges us to expand this principle into a flat rule that estoppel may not in any circumstances run against the Government. We have left the issue open in the past, and do so again today. Though the arguments the Government advances for the rule are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government. But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present.”
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, though perhaps not lawful, authority to make the decision, and cases, such as Wells v Minister of Housing and Local Government [1967] 1 WLR 1000; [1967] 2 All ER 1041, where technical procedural requirements have been waived or overlooked. Many of these latter cases can be explained by the distinction between mandatory and directory requirements or by the doctrine of substantial compliance. In Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 at 221 and in Brooks and Burton Ltd v Secretary of State for the Environment [1977] 1 WLR 1294; [1978] 1 All ER 733, the Court of Appeal deprecated attempts to expand the exceptions beyond these two categories. Of course, there will always be occasional cases where the hardship of the case persuades the Court to make an order in reliance upon the principle of estoppel. Wade on Administrative Law (6th ed, 1988), pp 381-385 mentions some such cases and, at p 382, states, "In endeavouring to protect the citizen against such hardships the courts have strained the law and given doubtful decisions”.”
In the instant case, the estoppel sought would have the effect of indefinitely postponing the exercise of the Minister’s discretion under s.65. Aronson, Dyer and Groves have noted that, since Kurtovic, most decisions have done little more than note the debate, and perhaps the theoretical possibility of estoppel having some scope when it comes to procedural (as opposed to substantive) representations; cf Judicial Review of Administrative Action, 3rd ed (2004), 363. Although the alleged undertaking in the instant case is perhaps not the same as undertaking not to exercise a discretion which is mandated by the Act or to exercise it in a particular way, in my view, there is no substantive difference. Such an undertaking is still a significant fetter on the exercise of discretion. Whilst there may yet be cause to qualify the prohibition of estoppel in administrative actions, I am satisfied that this is not such a case, not least because the traditional elements of estoppel are not present.
The fourth and final ground of application was:
“The Second Respondent’s decision was affected by bias manifested by the decisions of the Second Respondent:
(a) to deliberate and decide upon the review application without full disclosure to the Applicant of documents sought by the Applicant pursuant to a Freedom of Information Act request;
(b) to find that the Applicant’s job application lacked bona fides when it knew, or ought to have known, that such findings were erroneous and not supported by evidence.”
In its decision the Tribunal notes at [CB 509] that, on 12 November 2009, it provided the visa applicant with all disclosable folios from the two departmental files and a complete copy of the Tribunal file. When the matter came before Lucev FM on 19 March 2010, his Honour found that Mr O’Donoghue had been provided with all relevantly disclosable documents.
“The evidence establishes that Mr O’Donoghue has been provided with:
a) all documents that were:
(i) before the Tribunal for the purposes of the making of the Tribunal Decision; and
(ii) on the Department’s files, save for ten excluded folios from the Department’s files;
b) a Court Book containing documents from the Department and Tribunal relevant to the hearing of the review application before the Tribunal.
On the evidence, Mr O’Donoghue has therefore received all the documents requested by him, except those the subject of a certificate under s.375A of the Migration Act and those exempted under the provisions of ss.33(b) and 37(2)(b) of the FOI Act. These ten excluded folios deal with:
a) information communicated in confidence to the Commonwealth by a foreign government or Minister; and
b) matters affecting prejudice to law enforcement methods and procedures.
…
There is no obvious, rational or other apparent connection between matters relating to an in-confidence communication to the Commonwealth by a foreign government and law enforcement methods and procedures, and the relevant subject matter of cl.856.222 of Schedule 2 of the Migration Regulations in this case, namely, the availability of the employment at Hope Lawyers for Mr O’Donoghue.”
I have read the documents and there is nothing to suggest that his Honour’s finding was incorrect. I would therefore reject this submission.
The second particular of this ground is based on a misunderstanding of the Tribunal’s reasons for affirming the delegate’s decision. The Tribunal accepted that Hope Lawyers had made a bona fide job offer. The Tribunal was not satisfied, however, that Hope Lawyers would employ Mr O’Donoghue as required by clause 856.222 at the time it made its decision. It was for the applicant to satisfy the Tribunal of this fact and yet his own evidence indicated that he could not say whether the firm still existed. This ground of application also fails.
I have found that the conduct of the Tribunal which is alleged to demonstrate bias was merely the Tribunal carrying out its obligations under the Act. Therefore, I do not accept that the Tribunal’s decision was affected in this way. I dismiss the application. The applicant is to pay the costs of the first respondent which I assess in the sum of $5,800.00.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 27 July 2010
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