In the hearing of this appeal, counsel for both parties have accepted the position that the refusal decision of 8 July 1991 was not in fact vacated and that Mr Polat's solicitors did not withdraw Mr Polat's application for a confirmatory entry permit. Having regard to the confusion which the Department's letter of 11 November 1992 engendered, we consider that concession to be proper. We would merely observe that we would not agree with the view taken by the trial Judge that an applicant may not withdraw an application. It is not necessary to discuss the issue but we would refer to the examination undertaken by the Administrative Appeals Tribunal constituted by Justice Gray, Deputy President Breen and Member E.K. Christie in Re Queensland Nickel Management Pty Ltd v Great Barrier Reef Marine Park Authority (1992) 28 ALD 368. We also have reservations about her Honour's observation that there was no power to vacate the decision of 8 July 1991, notwithstanding that all persons affected thereby were agreed that it was void. However, we need not consider that point.
Section 34 of the Migration Act and Regulation 22 of the Migration Regulations require that an application for an entry permit be in writing in the form approved by the Minister. In Formosa v Secretary, Department of Social Security (1988) 81 ALR 687, it was held by Davies & Gummow JJ, Burchett J dissenting, that under an analogous provision, s.159(1) of the Social Security Act 1947 (Cth), a claim for pension was not sufficiently made if made orally at an office of the Department of Social Security. More recently, in Hamilton v Minister for Immigration & Ethnic Affairs (Davies, Sheppard & Burchett JJ, 26 October 1994), it was held that, when the issue is whether there has been compliance with the Migration Regulations, the issue
should be determined having regard to the intent of the regulatory provisions, the words used and the significance of non-compliance. Reference was made to Hunter Resources Ltd v Melville (1988) 164 CLR 234, where Mason CJ and Gaudron J referred, at 241, to "construing the relevant provisions of the Act in their context which of course includes the scope and purpose of the statute" and, at 244, to the practical difficulties involved in complying with the statute and the consequences of non-compliance. It was held in Hamilton that substantial compliance with the procedural requirements there in issue was sufficient.
In the present case, when Mr Polat lodged his application for the confirmatory entry permit on 18 February 1991, he was an illegal entrant. He therefore did not satisfy the criteria specified in s.47(1) of the Act and in reg. 142. He failed to meet the substantive requirements of the Act and the Regulations.
Counsel for Mr Polat, Mr C.R. de Robillard, submitted that, in January 1991, an officer of the Wollongong office of the Department wrongfully, indeed unlawfully to use counsel's expression, refused to accept the lodgment of Mr Polat's application for a confirmatory entry permit, and took the attitude that the application could not be lodged without the marriage certificate. Mr de Robillard submitted that the Court should review the action taken at the counter in the Wollongong office and should make an order that put Mr Polat into the position he would have been in but for the unlawful conduct of the officer of the Department. Mr de Robillard submitted, alternatively, that the Minister was estopped by reason of what had occurred from
denying that Mr Polat had lodged his application for the confirmatory entry permit during the three months period whilst he was the holder of a temporary entry permit.
These submissions fail both on the facts and the law. In the first instance, Mr Polat did not attend the Wollongong office in January 1991 with a written application which he wished to lodge, nor did he request a form which he could then fill out. The officer in the Wollongong office asked that the marriage certificate or a certified copy thereof be obtained before any further step was taken.
That was not an unreasonable approach for an administrator to take in the middle of January 1991, when Mr Polat had still more than a month in which to lodge his application. Although it may not be mandatory to lodge the marriage certificate with the application for a confirmatory entry permit - and the trial Judge held that it was not mandatory - nevertheless, the application form for the confirmatory entry permit itself contains no paragraph dealing with the name of the spouse or of the date and place of marriage but requests "please provide the original marriage certificate." The marriage certificate was necessary to complete the information which would have to be considered before the application could be determined.
We find nothing in what occurred on or about 11 January 1991 constituted wrongful or unlawful action on behalf of an officer of the Department or founded an estoppel. What the officer said was not incorrect and his course of requesting that the marriage certificate be obtained before Mr Polat was assisted to fill out a form of application was a reasonable and efficient administrative act.
The principle of estoppel relied upon by counsel may be taken to be that stated by Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 at 413, where his Honour said:-
"The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid."
However, in the present case, Mr Polat is not seeking to give effect to an assumption on which he acted. He did not assume that he had lodged an application on or before 15 February 1991. There is no foundation for an estoppel.
An even more important point is that a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied. In Formosa, Davies & Gummow JJ said at 694:-
"In our view, the requirement in s159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the sub-section cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department. The requirement that claims shall be made in writing is not to be characterised as a `mere matter of machinery for carrying out the undoubted purposes of the Act': cf Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 at 690."
At 695, their Honours said:-
"The effect of the estoppel sought to be established in the present case would be, as we have said, to lift the prohibition imposed by s158(1) and extend the authority of the decision-maker beyond that given by the statute. This cannot be achieved by an estoppel: Sutherland Shire Council v James (1962) 63 SR (NSW) 273 at 278-9, per Sugerman, Manning JJ; Re Callaghan (1978) 1 ALD 227 at 230-1."
This principle was further considered and elaborated on in Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93 in the judgments of Neaves, Ryan & Gummow JJ, particularly that of Gummow J at 108-118. Other decisions to the same effect are Glass v Defence Force Retirement & Death Benefits Authority (1992) 38 FCR 534; Roberts v Repatriation Commission (1992) 39 FCR 420; Chand v Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 777 and Brewer v Minister for Immigration, Local Government & Ethnic Affairs (1993) 46 FCR 84.
In the United Kingdom, the general principle is that there can be no acquisition of power through estoppel and that no estoppel will prevent the exercise of a statutory duty. This has been well established in cases such as Maritime Electric Co Ltd v General Dairies Ltd (1937) AC 610; Minister of Agriculture and Fisheries v Matthews (1950) 1 KB 148; Howell v Falmouth Boat Construction Co Ltd [1951] AC 837; Commissioners of Customs and Excise v Hebson Ltd (1953) 2 Ll Rep 382; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1962) 1 QB 416; Cambridgeshire and Isle of Ely County Council v Rust (1972) 2 QB 426. It is because the general principles of estoppel are limited, in public law, by the ultra vires doctrine. No principle of estoppel can excuse an administrator from performing his or her statutory obligations or permit the administrator to act ulta vires.
There are few cases in which courts have relaxed this approach. 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 & Local Government [1967] 1 WLR 1000, 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 [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. at 381-5 mentions some such cases and, at 382, states, "In endeavouring to protect the citizen against such hardships the courts have strained the law and given doubtful decisions." At 385-6, Wade suggests that the remedy for misleading advice should be compensation, not estoppel.
The view taken in Australia and in the United Kingdom also prevails in the United States of America. In that country, although there have been cases in the lower courts where estoppel has been applied in favour of a citizen, the ground of estoppel in the administrative law context has not found favour in the higher courts.
The authorities were reviewed at length in Office of Personnel Management v Richmond 496 US 414 (1990). In delivering the opinion of the Court, Justice Kennedy said at 419-23:-