Vincent Thomas O'Donoghue v Minister for Immigration and Citizenship

[2011] HCASL 158

VINCENT THOMAS O'DONOGHUE
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 158
P27/2011

1. The applicant seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (McKerracher J) dismissing the applicant's appeal against orders made by the Federal Magistrates Court.  The Federal Magistrate (Raphael FM) had dismissed the applicant's application for judicial review of the decision of the Migration Review Tribunal to affirm the decision of a delegate of the Minister to refuse to grant the applicant (and members of his family) Employer Nomination (Residence) (Class BW) visas.  One of the grounds on which the applicant sought relief in the Federal Magistrates Court was that the Minister and the Tribunal "were estopped from proceeding to consider the applicant's visa application by reason of undertakings given by [the Minister] that [he] would not deal with the application pending the final outcome of extradition proceedings against the applicant brought by Ireland".

2. In the Federal Court, McKerracher J concluded that the course of communications relied on by the applicant contained no sufficiently clear and unambiguous statement by or on behalf of the Minister to provide a factual foundation for an estoppel of the kind alleged or for any allegation of denial of procedural fairness.

3. The applicant would not enjoy sufficient prospects of succeeding in disturbing this conclusion of McKerracher J to warrant a grant of special leave to appeal.  The wider questions about the availability of estoppel in public law which the applicant seeks to agitate would not fall for consideration if special leave to appeal were granted.

4. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
6 October 2011 S.M. Crennan