FEDERAL COURT OF AUSTRALIA
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843
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File number: |
VID 1121 of 2019 |
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Judge: |
ANDERSON J |
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Date of judgment: |
18 June 2020 |
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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 |
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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) |
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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 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 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 ... |
