Lesa v Attorney-General of New Zealand

Federal Court of Australia|1997-03-12|Before: Tamberlin JJ, Burchett J

Background The relevant facts are not in dispute. Mr Petrovski was born at Waverley in New South Wales on 12 November 1969 at a time when his father was Consul-General in Australia for the former Republic of Yugoslavia. In 1971 Mr Petrovski and his mother returned to Yugoslavia. His father remained in Australia until his term of office ended in 1972. At about the age of fourteen years Mr Petrovski formed the intention to return to live in Australia. From the age of fifteen he assumed that he was an Australian citizen. On this basis he made an application for an Australian passport at the Australian Embassy in Belgrade, supported by a copy of his birth certificate, two photographs and the prescribed fee. An Australian passport (the "first passport"), was issued in his name on 20 September 1984 to expire on 20 September 1989, at which time Mr Petrovski was serving in the Yugoslav army. Upon release from the army he obtained a new Australian passport (the "second passport"). There was no suggestion of any fraud or misrepresentation in relation to the obtaining of these passports. On 21 September 1991, Mr Petrovski arrived in Australia and was admitted upon production of the second passport. Soon after his arrival he enrolled in an English course. He claimed that his return to Australia and decision to improve his English supported his stated intention to make Australia his permanent home. In May 1992 he met a lady who was a Thai national. She returned to Thailand upon the expiry of her visitor's visa and Mr Petrovski followed her, travelling to Bangkok on the second passport. They were married in Bangkok in October 1992 and Mr Petrovski returned to Australia on 7 November 1992 with the second passport. He later applied to sponsor his wife and her daughter for permanent residence in Australia. On 21 July 1993 the Department of Immigration, Local Government and Ethnic Affairs informed Mr Petrovski that: " .... you are not, and never have been an Australian citizen. The Australian passport issued at the Australian Embassy, Belgrade was issued in error, and should be surrendered." The basis for the decision was that at the time of Mr Petrovski's birth, his father was the Consul-General for Yugoslavia. This was the first notice he received of the Embassy "errors". Section 10(2) of the Australian Citizenship Act 1948 (the "Citizenship Act"), as in force at the date of Mr Petrovski's birth, provided :

"10(2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father - (a) was not an Australian citizen; (b) was not ordinarily resident in Australia; and (c) was - ... (ii)a consular officer of a foreign sovereign power" (Emphasis added) It is clear that the Australian Embassy officials in Belgrade overlooked the fact that Mr Petrovski's birth certificate recorded his father's occupation as being Consul-General for Yugoslavia at the time when the decision was made to issue the two Australian passports to Mr Petrovski. The second passport was then cancelled. On 1 February 1994 Mr Petrovski applied for a grant of Australian citizenship. This application was refused by the Acting-Secretary in April 1994 on the basis that he was not a permanent resident and therefore the Minister could not be satisfied as to that prerequisite prescribed by s13(1)(a) of the Citizenship Act. The AAT confirmed the refusal. Mr Petrovski then appealed to this Court.

Section 13(1) specifies the matters in respect of which the Minister must be satisfied before he can exercise the discretion to grant citizenship. That provision relevantly reads: "13(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that: (a) the person is a permanent resident; ......" (Emphasis added) Although s7 of the Passports Act 1938 enables the Minister to issue Australian passports to Australian citizens, there is no provision that the grant of a passport confers citizenship upon the holder. There is no right to the grant of an Australian passport and the Minister as a matter of discretion may decline to issue a passport to certain persons specified in ss7A-7E of the Act such as unmarried minors and those in debt to the Commonwealth. Section 8(1) of that Act provides:

"8(1) An Australian passport, whether in the possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an approved representative or the approved senior officer, and a passport on being cancelled under this sub-section becomes void.

Australian passports always remain the property of the Commonwealth by virtue of s6A. The issue raised on this appeal is whether the provisions of the Citizenship Act operate as a bar to the grant of Australian citizenship to Mr Petrovski on the basis that he is not a permanent resident. Section 5A(1) of the Citizenship Act provides: "5A. (1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act: ... (ba)in relation to a period on or after the prescribed date during which the person was present in Australia (other than prescribed Territory), if: (i) .... (ii)the person was not, during that period, an illegal entrant, ..." "Illegal entrant" is defined in s5 of the Citizenship Act by reference to s14 of the Migration Act 1958 which provides: "14(1) On entering Australia, a non-citizen becomes an illegal entrant unless: (a) he or she is the holder of a valid entry permit; or (b) the entry was authorised by section 17.

(2) Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she: (a) remains in Australia; (b) is not a citizen; and (c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa." "Valid entry permit" is defined in s4 of the Migration Act as being an entry permit that: "(a)was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989; (b) has not been cancelled under this Act; and (c) has not expired, or otherwise stopped being in force, under this Act or the regulations; and includes a visa that has effect as if it were an entry permit because of section 18, but does not include a visa or similar notation, or a form of provisional authority to enter Australia, issued before 1 November 1979 on behalf of the Commonwealth."

Mr Petrovski's second passport issued on 31 May 1990 was expressed to be valid until 31 May 2000. It bears the following endorsement:

"The Governor-General of the Commonwealth of Australia being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need." This request by the Governor-General is located immediately under the Australian governmental crest on the passport. The passport bears stamps dated 21 September 1991 and 7 November 1992, which were affixed at Sydney airport at the time of Mr Petrovski's entry after production of his passport. Those two stamps are set out below:

Reasoning below His Honour accepted that the holding of an Australian passport does not have the legal effect of conferring on the holder, Australian citizenship or permission to enter Australia. He pointed to the practical difficulty in requiring immigration officials, at the point of entry into Australia, to evaluate the validity of Australian passports presented to them before allowing entry. He considered that a requirement that holders of Australian passports must prove their citizenship by means other than their passport was in conflict with the High Court decision in Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 470. He made the observation that as a matter of practical reality an Australia citizen may enter Australia upon presentation of a duly issued Australian passport which is taken as being sufficient evidence of a right to enter. His Honour also referred to the liability to deportation under s200 of the Migration Act which would be attracted if Mr Petrovski was an illegal entrant. It was pointed out that neither the Migration Act nor the regulations made pursuant thereto required that an entrant's passport be stamped. The requirement is that permission to enter must be given, but there is no necessity for a stamp or for specific words to be used. The stamp on the second passport in November 1992 upon Mr Petrovski's return from Bangkok, in his Honour's view, was an official stamp of the Australian Government which in the circumstances permitted the passport holder to enter the country. His Honour considered in effect that the circumstances of Mr Petrovski's arrival at Sydney airport, taken with the presentation of the Australian passport, and his subsequent physical admission, albeit he was not then a citizen, constituted a lawful entry into Australia. In other words Mr Petrovski was given due permission in consequence of which he entered the country. These events and circumstances, in his Honour's view, were quite inconsistent with an assertion that Mr Petrovski entered Australia illegally. After citing authorities to the effect that the Migration Act must be administered in the best interest of Australia, his Honour reached the view that the stamps, in the second passport, made in 1991 and 1992, and the consequential fact of entry into Australia without objection, amounted to valid entry visas or permits. The subsequent cancellation of the passports did not have the effect of avoiding those permits. They must be considered as at the time entries were made. His Honour concluded that having been granted entry in the above circumstances, Mr Petrovski was not an illegal immigrant. After finding that Mr Petrovski was not an illegal entrant his Honour referred to the provision of s13(4)(b)(iv) of the Citizenship Act which read as follows:

"(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship: (a) .... (b) subject to paragraph (a), the Minister may, in the Minister's discretion: ..... (iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant - treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident;" His Honour considered that it was arguable that the time spent by Mr Petrovski in Australia as a young child was a period in which he was present in Australia as a permanent resident. He considered that the position was clearer in respect of the period from September 1991 to the date of his judgment. To be eligible for citizenship Mr Petrovski would need to show that he would suffer hardship or disadvantage if a certificate of Australian citizenship were not granted to him. His Honour considered that in the present case Mr Petrovski would suffer sufficient hardship related to the refusal of his application for citizenship. This arose from his inability to visit his wife and her daughter as he has been unable to travel outside Australia. Moreover, he appeared to have found it difficult to obtain work due to his uncertain citizenship status. His Honour also adverted to s13(4)(b)(v) of the Act which allows for the correction of administrative errors. It provides that the Minister may: "(v)... if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia - treat the period as a period during which the applicant was present in Australia as a permanent resident." His Honour considered that in the present case there was more than a mere processing delay. The grant of two Australian passports and the fact of entry into Australia on two occasions amounted to significant maladministration which he considered was able to be remedied by an exercise of the Minister's discretion. If this were so then his Honour could see no reason why it should not be exercised in favour of Mr Petrovski and he considered that it should be so exercised. His conclusion on this matter was that the permitted stay was unlimited thus enabling Mr Petrovski be considered as a permanent resident eligible for citizenship. Accordingly, his Honour allowed the appeal, set aside the determination of the AAT and found that Mr Petrovski was not an illegal entrant. Having made Australia his home he was entitled to remain here. He remitted the matter to the AAT and ordered that the Minister pay Mr Petrovski's costs. The principal issues on this appeal are: (a) Were the passport stamps valid entry visas or entry permits? (b) What is the effect of the passport? (c) Are the circumstances of the case such that the Minister is estopped from acting on the basis that Mr Petrovski is an illegal entrant? Were the passport stamps valid entry visas or entry permits? The primary judge summarised his reasoning on this aspect in these terms: "My view is that the stamps in the second passport in 1991 and 1992 and the consequential permissions to enter amounted to, or should be deemed to have been, approved and valid entry visas or entry permits to Australia at those times, and that the subsequent cancellation of the passport did not have the effect of cancelling or voiding those visas/entry permits. In my opinion, the applicant is not an illegal entrant."

The High Court, in Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 470 considered the administrative process which applied in Australia after arrival. The Court observed that: "... a citizen had, under the law, the right to re-enter the country, without the need of any Executive fiat or 'clearance', for so long as he retained his citizenship. The subjection of such a citizen to administrative procedures at the point of entry ... may be necessary, in the public interest, to enable the entry of non-citizens to be prevented or controlled and to enable proper administrative records and procedures to be kept or followed in relation to the arrival and departure of citizens and non-citizens alike. A requirement that a returning citizen submit, in the public interest, to the inconvenience of such administrative procedures at the end of a journey cannot, however, properly be seen as the provisional rendering of 'services' to, or at the request or direction of, the citizen concerned." In my view, the affixing of the stamps in the present case is properly characterised as an administrative record, made in relation to the arrival. The stamps are not expressed to be a grant of permission, nor are they expressed to confer any leave, right or entitlement with respect to entry or residence. On their face the stamps do not purport to have any legal effect. They simply record that the bearer has "arrived" at Sydney airport on the date recorded by the stamps. The stamps must of course be considered along with the fact that upon production of the passport no objection was raised by immigration officials to entry into Australia. Moreover, Mr Petrovski produced what, on its face, was a current valid Australian passport. In my opinion, the relevant legislative provisions which apply are so clear and specific, that I do not consider that it is open to the Court to rely on acts or omissions which "amount to" or should be "deemed" to be a grant of permission. There are several difficulties in the way of such a conclusion. The first arises in this way. The expression "valid entry permit" referred to in the above conclusion is defined in the Citizenship Act s5(1) to have the same meaning as in the Migration Act (s4), namely an entry permit that was granted under the Migration Act and has not been cancelled or expired. In turn, "entry permit" is defined in s4 of the Migration Act to mean permission to enter or remain in Australia. The effect of s14 of that Act is that on entering Australia a non-citizen becomes an illegal entrant unless he or she is the holder of a valid entry permit or is the holder of an entry visa. The reference to "holder" as a matter of plain English denotes a documentary permission. A second difficulty is that the definition of "a valid visa" refers to a document, notation or visa, that has not been cancelled or otherwise stopped being in force. Even if the stamps are treated as a notation it is difficult to see how they could be "cancelled" or "otherwise stopped". There is nothing to cancel or stop. They do not purport to have any operation but simply record the fact of arrival. A record of an event cannot, as a matter of the normal use of language, be cancelled or stopped being in force. A third consideration is the effect of s34 of the Migration Act which provides: "s34(1) This section applies where, and only where: (a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and (b) any fee payable in respect of the application is paid. (1A) If: (a) the applicant is a non-citizen; and (b) the regulations provide for the approval of a form for the purposes of applications under subsection (1); the form approved must: (c) require the applicant to make a declaration about his or her character or conduct, or both; or (d) if the form so requires - require another person to make a declaration about the applicant's character or conduct, or both. (2) Unless this section applies, the Minister: (a) is not required to consider an application at all; and (b) shall not in any circumstances grant an entry permit. ..... (4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit." (Emphasis added). The above section is cast in compelling terms. In this case there is no evidence that any application has been made for an entry permit in accordance with the regulations. See rr22-24, 26 and 29 of the Migration Regulations. Corresponding provisions apply with respect to visa applications. See Migration Act s24 and rr11-15, 17-18. Having regard to the comprehensive nature and specificity of these requirements, it is not open, in my view, to describe the arrival stamps, taken together with the fact of entry and the production of an Australian passport as amounting to or being deemed to constitute a grant of an entry permit or visa. A further matter is that it is not clear whether the airport officials who affixed the stamp and "did not object to entry into Australia" had any authority, actual or ostensible, to grant an entry visa or permit to Mr Petrovski. The expression "not clear" is used because in his written submissions to this Court, counsel for the Minister said in relation to the entry permit argument: "In the present case counsel for the Minister consented to the point being raised, and did not seek an adjournment, upon the condition that it be accepted that the officers in the primary line who placed the stamps in the respondent's passport did not have a delegation under the Migration Act or regulations to grant an entry permit other than to a holder of properly-granted visa (transcript, p 23, lines 17-33). It is not clear from the transcript that the factual matters posited were accepted by the respondent, although the absence of disagreement suggests they were." (Emphasis added)

As is pointed out in submissions a purported exercise of ostensible authority cannot extend the authority of the airport officials beyond that conferred by the statute: Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 695 per Davies and Gummow JJ. A submission was made on behalf of the Minister that the passenger cards submitted by Mr Petrovski at the time of entry into Australia, were false and misleading, because they were incorrect insofar as they asserted citizenship of Australia. Accordingly, ss14(2) of the Migration Act would operate so that he continued to have the status of an illegal entrant. It is not contended that Mr Petrovski had any intention to mislead or deceive. It is said however, that his belief as to whether the information was correct is irrelevant and reference is made to Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348. The Minister sought to tender in this appeal the passenger cards submitted by Mr Petrovski to the airport officials on entry but they were not admitted into evidence. These cards were not before the AAT nor were they referred to by the AAT. The Court is concerned in this appeal with an error of law by the AAT. I do not consider that the additional evidence should be admitted. It is not "new evidence" in the sense it came into existence or became known after the AAT heard the matter and the facts and circumstances surrounding it could have been the subject of evidence, cross-examination and argument before the Tribunal. Moreover, because I have reached the conclusion that the stamps on the passport do not constitute a valid entry permit or entry, it is not necessary to consider this argument further. The Passport For Mr Petrovski it is submitted that when he entered Australia in 1991 and 1992, he did so as "a citizen" by using an Australian passport albeit he was not a citizen. It is said that he entered with "official" knowledge without fraud or bad faith. It is said that s14 of the Migration Act does not apply where a non-citizen enters Australia in these circumstances unless they contravene the Passports Act. Emphasis is placed on the dire potential consequences which could flow from classification as an "illegal entrant" which include arrest, deportation and criminal punishment. Section 14(1) is in plain direct language. The relevant question raised in this submission is whether Mr Petrovski, at the time of entry, was a non-citizen. It is conceded that he was not a citizen but that he should in effect, be treated as if he were a citizen. The basis for preferring this interpretation is said to flow from the possible consequences outlined above. In my view, this approach should not be taken. The language is clear. There is no need to resort to any argument based on consequences to construe any ambiguity. Mr Petrovski plainly satisfies the criteria factored into s14. At the time of his entries he was a non-citizen by reason of s10(2) of the Citizenship Act 1948 as in force at the time of his birth. The date of birth of Mr Petrovski is the relevant date for determining his citizenship status under the Act. When in 1991 and 1992 he entered Australia he did not therefore have a valid entry permit or visa. Estoppel The representations by the Department in this matter are both specific in nature and solemn in form. They include: • the issue by the Department on two occasions to Mr Petrovski of Australian Passports after he had fully and frankly furnished all necessary details; • the failure to correct the position over many years; • the admittance of Mr Petrovski into Australia; • the failure to alert Mr Petrovski as to his non-citizenship. These matters make out a clear case of misrepresentation. These misrepresentations arose as the result of a combination of serious administrative errors. The inevitable grave hardship and disruption which must be occasioned to the life of Mr Petrovski constitutes a serious case of detriment. In the area of private law these considerations would make out a powerful case for estoppel so as to prevent reliance on an assertion that Mr Petrovski has entered Australia without permission. However, this case arises in the area of public administrative law, where well settled principles apply. These are to the effect that a Minister cannot be prevented by conduct or representation from performing a statutory duty or exercising a statutory discretion. In the present case, the estoppel claimed is substantive in nature in that it is alleged to operate so as to require the Minister to be satisfied that Mr Petrovski was a permanent resident. It is not simply a holding out that a certain procedure will be followed which will afford natural justice or procedural fairness to Mr Petrovski. The effect of the estoppel claimed must be that the Minister is prevented from reaching a conclusion on this matter contrary to prior representations and conduct. The Act requires the Minister to decide whether he is satisfied. This means that to properly reach a conclusion the decision must not be limited by prior representations or conduct, otherwise it would prevent the Minister from fulfilling his statutory duty. The effect of the claimed estoppel is that the Minister should not be permitted to act on the basis that Mr Petrovski was an illegal entrant and did not hold a valid entry permit or visa. It is further said that when considering this citizenship application, the Minister was entitled to treat Mr Petrovski as holding a valid entry permit and to regard him as an "exempt non-citizen". Relevantly, an "exempt non-citizen" is defined in s4 of the Migration Act to include a non-citizen who is a person exempted from the operation of s14(1). The exemption referred to is provided for s106(2) of the Migration Act, which reads: "106(2) The Minister may, by instrument published in the Gazette, exempt: (a) a person; or (b) a class of persons; from the operation of subsection 14(1)." This section has now been repealed but it was in force up to 1 September 1994. Mr Petrovski's application for citizenship was refused on 18 April 1994 and therefore the availability of the s106 dispensing power should be taken into account. Reliance is placed, in support of the estoppel, on the remarks of Mason CJ in Attorney-General v Quin (1991) 170 CLR 1 at 18, where it is said; "[It] does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v Department of Trade [1977] QB 643 at p. 707; but see also the criticism of this approach by Gummow J in Kurtovic (1990) 92 ALR at pp.121-122." (Emphasis added). Quin's case was concerned with the natural justice question whether the circumstances gave rise to a legitimate expectation that the plaintiff magistrate would be afforded procedural fairness. It did not concern the question whether there was a substantive entitlement to a particular result. The remarks of the Chief Justice must be seen in that specific limited context. The right claimed in that case was procedural in nature. At 170 CLR 17, Mason CJ referred to the well settled principle that the Executive cannot disable itself from exercising a statutory discretion to be performed in the public interest. Shortly after the paragraph quoted his Honour referred to the important difference between representations as to an entitlement to a substantive right as opposed to a representation as to the adoption of a certain procedure. At 22-23 he made this clear when he said:

"However, it has been suggested that legitimate expectations are entitled to substantive protection: ... The argument is that, when the expectation created is not that a proper hearing will be given but that the decision-maker will decide the case favourably or grant a benefit, the courts should by order ensure that the expectation is fulfilled.... However, the view that legitimate expectation may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances. It is possible perhaps that there may be some cases in which substantive protection can be afforded and ordered by the court, without detriment to the public interest intended to be served by the exercise of the relevant statutory or prerogative power. Granted this possibility, the grant of substantive relief in the present case would nonetheless effectively prevent the Executive from giving effect to the new policy which it wishes to pursue in relation to the appointment of magistrates." (Emphasis added) In my view, the substance of the last sentence is pertinent to the present case. The submission of Mr Petrovski would, in substance, require the Minister to be satisfied that Mr Petrovski is a permanent resident. This would effectively prevent the Minister by reason of earlier representations, acts and omissions, from performing the statutory duty to decide whether he or she is satisfied. This duty is assigned to the Minister by s13 of the Citizenship Act. In Roberts v The Repatriation Commission (1992) 39 FCR 420 at 425, the Full Federal Court pointed out that: "It is not open to this Court to erect, on the foundations suggested by counsel for the applicant, a general principle, of uncertain application based upon a balancing of elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by the Parliament ..." It was submitted for Mr Petrovski that the case for the application of estoppel principles is enhanced by the availability to the Minister of the power in s106(2) of the Migration Act whereby the Minister had power to exempt a non-citizen from the provisions of s14(1). As I understand the submission, it is that because of the existence of such a power (up to September 1994) a decision that the Minister was estopped would not have been inconsistent with the due performance of the statutory duty at the time when the Minister made the decision. This was because the Minister had a wide discretionary power to produce a result consistent with the prior representations and course of conduct by the Department without breaching his statutory duty. Accordingly, the important public interest in ensuring the unrestrained exercise of statutory discretion and performance of statutory duties would not necessarily be impeded. One difficulty with this argument is that it assumes that the Minister would have exercised the wide s106 discretion in favour of Mr Petrovski. This argument does not, in my view, take the matter any further, because the effect of upholding it would mean that the Minister was estopped from exercising a discretion under s106 as he saw fit having regard to the advice received and the circumstances applicable at the time when the Minister came to consider the application. Such an approach is contrary to the well settled line of authority which underlies the broad principle that the Minister should exercise his or her powers and discretion in an unfettered manner. This argument, in my view, does not advance the case of Mr Petrovski but rather results in a situation where another statutory discretion, apart from s14, is sought to be fettered by estoppel contrary to the public administrative law principles referred to earlier. It is further urged that the Full Federal Court decisions in Formosa (supra) and Roberts (supra) were distinguishable or wrong. I am not persuaded that they are either wrong or distinguishable in principle. Formosa was of course applied by the Full Court in Roberts. Formosa has been followed and applied in numerous subsequent decisions. An instance is the decision of the Full Court in Minister for Immigration v Polat (1995) 57 FCR 98 at 105. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-219, (to which Mason J adverted in Quin), Gummow J conducted a comprehensive survey of the authorities relating to estoppel by representation in administrative law. In relation to estoppel, with respect to the exercise of statutory discretion, Gummow J said at 210: "However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in the case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised ... to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding:..." (Emphasis added) His Honour went on to quote Sir Alexander Turner, "The Law Relating to Estoppel by Representation" (3rd ed. 1977), p150, where it was said:

"If a public authority cannot by contract fetter the exercise of its discretion, it can hardly by the invocation of the doctrine of estoppel be brought to the same position. But it must appear that frustration of its duty or of its discretion will be the result of allowing the estoppel; anything less than this will be insufficient as an affirmative answer." In this case to hold that the Minister is precluded from deciding that he is not satisfied, because of prior representations and conduct, that Mr Petrovski must be treated as if he were a permanent resident, would frustrate the performance of the Minister's duty under s13 of the Citizenship Act. In relation to the application of estoppel in public law, based on principles of ostensible authority, Gummow J said at 213: "Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law". This statement in Kurtovic assumes that no estoppel doctrine has yet emerged in Australian public law. Kurtovic has been extensively cited and applied in a number of subsequent decisions including the recent Full Federal Court decision in Polat (supra). Mason CJ in Quin, like the US Supreme Court in Heckler v Community Health Services of Crawford County Inc. (1984) 467 US 51 (quoted by Gummow J in Kurtovic), was not prepared to close the door on estoppel in public law but neither judgment attempts to formulate with any precision the principles by reference to which particular cases are to be decided when such an estoppel is asserted. There is, of course, much to be said for the observation of the majority in Heckler at 60-61 that:

"... Though the arguments the Government advances for the rule [against estoppel] 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, honour, and reliability in their dealings with their Government." It must be borne in mind, however, that the Chief Justice and Rehnquist J in that case expressly disassociated themselves from the above remarks and that neither the High Court nor any other Australian court has to date accepted such a statement of principle. For these reasons I do not accept that Mr Petrovski has made out a case in estoppel. Jurisdiction The Minister raises an objection as to jurisdiction on the basis that the determination that stamps placed in the passport by the Clearing Officers at Sydney Airport in 1991 and 1992 amounted to "valid entry permits", raised quite different issues to the question whether the grant of the passport in 1984 and its renewal in 1990, upon a mistaken belief, estopped the Minister from denying status as an Australian citizen. The former contention was not raised before the AAT. Therefore, it is said that the AAT could not err in law in respect of matters that did not arise before it. It was conceded before the primary judge that the argument of Mr Petrovski, was essentially that the stamps in the passport should be treated as valid entry permits. It is said that this was a legal argument not dependent on evidence and it is acknowledged that the argument was different in approach from the argument advanced before the AAT. However, it is said that both arguments went to the same issue, that is, whether Mr Petrovski should be considered to be an illegal entrant. It is said that the additional argument is one which was not dependent on evidence. Cf Suttor v Gundowda Pty Limited (1950) 81 CLR 418; Louinder v Leis (1982) 149 CLR 509 at 519. In my view, his Honour did have jurisdiction. The question of law was whether Mr Petrovski was an illegal entrant having regard to the issue and effect of the passports and the entry permits, coupled with the surrounding circumstances, and the fact of entry into Australia on two occasions. These matters, in my opinion, are not so different from the estoppel argument as to travel beyond the jurisdiction of the Court under s44 of the Administrative Appeals Tribunal Act 1975. Migration Act ss166 and 172 These provisions were adverted to in the decision of the primary judge. However, in my view they do not advance the case of Mr Petrovski because he was not at the time of entry a citizen, nor did he produce a visa of any kind. In particular, the requirement in s166(1)(a)(i) that a person who enters Australia, must show an Australian passport or prescribed other evidence of the person's identity and Australian citizenship, does not upon the entry of that person, mean that he or she is not an illegal entrant. Conclusion I have read the reasons for decision by Burchett J and I express my complete agreement with the remarks made by his Honour in the penultimate paragraph of his decision. In my opinion, the appeal to this Court should be allowed. The orders made by the primary judge should be set aside. There should be no order as to costs because this litigation arose due to some admitted errors by the Department.

I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 12 March 1997 Counsel for Appellant: Mr Neil Williams Solicitor for Appellant: Australian Government Solicitor Counsel for Respondent: Mr Paul Roberts Solicitor for Respondent: Stewart Levitt & Company Date of Hearing: 28 November 1996 Date Judgment Delivered: 12 March 1997

Nationality and Citizenship Act 1948(Cth)

Nationality and Citizenship Act 1966(Cth)

Australian Citizenship Amendment Act 1984(Cth)

Australian Citizenship Amendment Act 1986(Cth)

(Section 17 was irrelevant to the present case.) Mr Petrovski sought review by the Administrative Appeals Tribunal of the decision that these provisions required the rejection of his application. Before the Tribunal (which affirmed the decision), and then on appeal to a judge of the Court (who declared that he was not an illegal entrant and remitted the matter for further consideration), Mr Petrovski contended that the issue of the two passports to him constituted a representation as to his status which estopped the Australian Government from relying on the application of s 14 of the Migration Act. Reference was made to the dictum of Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18. On the Minister's appeal to this Court, the question whether Mr Petrovski was an "illegal entrant" remains, in my opinion, at the heart of the case. I have had the opportunity to consider the reasons to be delivered by O'Loughlin J, but I cannot myself regard the amendments to which his Honour refers as operative in respect of Mr Petrovski, who was born before they were enacted. The suggested construction would disturb settled rights in other cases. At common law, the issue of a passport is an exercise of the royal prerogative by which the protection of the Crown is extended to the citizen who travels abroad: Halsbury's Laws of England 4th ed. vol. 18, para. 1412. Lord Alverstone CJ described a passport in R v Brailsford [1905] 2 KB 730 at 745 as "a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries." In Australia, the issue of passports is regulated by the Passports Act 1938, but their nature remains unchanged. Section 7 provides that Australian passports "shall be issued in the name of the Governor-General". The issue of a passport is not a grant of citizenship. This was accepted as beyond question in Joyce v Director of Public Prosecutions [1946] AC 347, where the effect of the issue of a British passport to a person who was not a British citizen was minutely examined. In the statement of the facts by Lord Jowitt LC and Lord Porter, which is reproduced at 348 et seq, it is made clear that the assumption that William Joyce "was at all material times a British subject" was proved to be incorrect; and it was not suggested that the assumption had been raised to a reality from 1933 when he was granted a British passport. William Joyce (the infamous "Lord Haw-Haw", who broadcast Nazi propaganda during World War II) was not hanged for treason committed as a British subject, but as "an alien ordinarily resident within the realm", to use the language of Lord Jowitt LC at 367. While he was such an alien, he applied for and obtained a British passport, and his fatal possession of that passport continued his allegiance to the British Crown even in Germany. Lord Jowitt LC said (at 369-370): "The material facts are these, that being for long resident here and owing allegiance he applied for and obtained a passport and, leaving the realm, adhered to the King's enemies. ... [T]he possession of a passport by one who is not a British subject gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed. It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession of that document he is enabled to obtain in a foreign country the protection extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound him to his sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King for himself while abroad." While Joyce v Director of Public Prosecutions is thus authority for the ineffectiveness of a passport to confer citizenship, it is equally authority that the issue of a passport to one who is in law an alien is not a nullity. Until revoked, the passport is an operative document. Lord Jowitt LC says that it "gives ... rights and imposes upon the sovereign obligations which would otherwise not be given or imposed". Lord Porter, who dissented from the dismissal of the appeal, nevertheless regarded the appellant (as he made clear at 374-375) as an alien who, while he held a British passport, would have been entitled to the protection of the Crown. In my opinion, it is wrong to say that when Mr Petrovski entered Australia, or when he re-entered Australia after visiting Bangkok, he did so illegally. On the contrary, he did so by virtue of a passport issued in the name of the Governor-General, which remained valid and effective unless and until lawfully cancelled. Provision is made in s 8 of the Passports Act for the cancellation of an Australian passport by the Minister or by an authorized officer, so that the passport then "becomes void". Nothing in that Act suggests that a passport can be retrospectively cancelled. I do not think the Migration Act should be read in isolation and so as to ignore the Passports Act. The Passports Act assumes the normal operation of a passport in the approved form, for which provision is made by s 7(2). In accordance with that form, Mr Petrovski's passport contained the following general request: "The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need." I do not think anything in the Migration Act should be read as countermanding the authority of such a request made by the Governor-General pursuant to statute. However, as I have said, the passport does not confer a grant of citizenship. And if a person who is not a citizen makes an application under the Australian Citizenship Act for a grant of citizenship, he must, of course, comply with the requirements of that Act. Mr Petrovski did not enter Australia illegally, but he was nevertheless at the time he made his application for Australian citizenship an "illegal entrant" within the special meaning of those words which the legislation made relevant to the ascertainment of whether or not he was "a permanent resident" for the purposes of s 13 of the Australian Citizenship Act. On that basis, his application was bound to fail. Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold for an estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142, per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration 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. Although an estoppel will not be enforced in these circumstances, there is no doubt about the duty of administrators to take account of the unfairness, and even misery, that serious mistakes in the actions of government may cause. In the present case, some years of Mr Petrovski's life may have been wasted, and he may have contracted a marriage involving grave, possibly even insoluble, problems for the establishment of a marital home. It is accepted that at all times he acted in good faith. It may well be that if he had not been misled at the age of fifteen by what appears to have been nothing less than administrative incompetence on the part of an Australian official, he would long ago have been received as a migrant into Australia in the normal course. In those circumstances, it is to be hoped that it will be found possible to take urgent steps to find a remedy for Mr Petrovski's plight. In the absence of any public interest consideration adverse to him (and none was suggested at any stage of this case), it is plainly in the public interest that a person who has acted on the faith of an instrument as serious as a passport issued by the Australian Government should not find his faith misplaced: cf. Gowa v Attorney-General (1985) 1 WLR 1003 at 1011; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at 638. The attention of the Minister should be drawn to this matter. In my opinion, the appeal should be allowed, but in the special circumstances it would not be right to order the respondent to pay the costs of a clarification of the law required as a result of the mistaken issue to him of an

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