Equitable principles and the Minister's statutory discretion
105 The applicant concedes that there are no authorities that support the proposition that there are equitable qualifications on the exercise of the Minister's power under s 501CA(4) of the Migration Act. However, according to the applicant, neither are there authorities against that proposition and, in his submission, it is necessary to look to first principles.
106 As the applicant submits, an established aspect of the principle of legality is that legislation is to be construed consistently with the principles of equity, unless there is a requisite contrary intention: Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 (McPherson) at 700 per Kirby P (with Meagher JA agreeing) and 713 per Mahoney JA; Page v Manningham City Council [2010] VSC 265; 27 VR 643 at [61] per Warren CJ; Binetter v BCI Finances Pty Ltd (in liq) [2015] FCAFC 122; 235 FCR 410 (Binetter) at [32] per Besanko, McKerracher and Pagone JJ; Registrar of Titles v Mrsa [2015] WASCA 204 at [32] per Martin CJ, with Newnes and Murphy JJA agreeing; Commissioner of State Revenue v Can Barz Pty Ltd [2016] QCA 23; [2017] 2 Qd R 537 at [17] per Philippides JA; Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) (Pearce's Statutory Interpretation in Australia) [5.36].
107 To this end, the applicant raises two equitable maxims to demonstrate that the Minister, by deciding not to revoke the mandatory cancellation of the applicant's visa, acted beyond his power under s 501CA(4) in the circumstances of the present case. The first maxim is that "equity considers done what ought to be done": see Byrne v Transport Accident Commissioner [2008] VSC 92; 50 MVR 37 (Byrne) at [54] per Cavanough J. (In relation to that maxim generally, see Symons SW (ed), Pomeroy JN, A Treatise on Equity Jurisprudence (5th ed, 1994) Vol 2, s365 and Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2015) (Equity: Doctrines & Remedies) [3-185]-[33-240].)
108 The second maxim is that "no man can take advantage of his own wrong" (or variations to that effect): see, for example, Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [107] per Beaumont J; Health Insurance Commission v Grey [2002] FCAFC 130; 120 FCR 470 at [186] per Beaumont, Sundberg and Allsop JJ; Thompson v Groote Eylandt Mining Co Ltd [2003] NTCA 5; 173 FLR 72 (Thompson) at [31]-[34] per Mildren J, with Martin CJ and Thomas J agreeing; Ruthol Pty Ltd v Tricon (Aust) Pty Ltd [2005] NSWCA 443; 12 BPR 23,923; [2006] ANZ ConvR 173 (Ruthol) at [19]-[24] per Giles JA, with Santow JA and Hunt AJA agreeing; De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86; 83 NSWLR 445 (De Marco) at [32]-[36] and [39]-[41] per McColl JA; Byrne at [53]-[54]; Pearce's Statutory Interpretation in Australia at [2.61]; Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) [9.720].
109 There are difficulties with the argument that these maxims constrain the Minister's decision-making power under s 501CA(4). First, in relation to the second maxim outlined above, it is questionable whether that maxim, as practically applied, is truly applicable in the present case, even if we accept the premise that breaches of the Minister's guardianship obligations caused the applicant's non-citizenship. On its face, of course, the broad adage that "no man can take advantage of his own wrong" aids the applicant's argument that the Minister should not be entitlement to exercise his statutory powers to, in the submission of the applicant, "exploit a legal predicament of the Minister's own making". However, sweeping equitable maxims, while powerful on their face, may have a more targeted application in practice. In this regard, McColl JA in DeMarco highlighted the following restrictions on the maxim's application:
[40] … as Giles JA observed ([Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; (2005) 12 BPR 23,923] at [21]) in Hooper v Lane (1859) 6 HL Cas 443 at 460-461; 10 ER 1368 at 1375-1376, Lord Bramwell explained the proper application of the maxim, saying:
"… that rule only applies to the extent of undoing the advantage gained [by the wrongdoer], where that can be done, and not to the extent of taking away a right previously possessed … [the maxim] means that no one shall gain a right by his own wrong; and not that if he has a right, he shall lose it, or the power of exercising it, by a wrong done in connection with it."
[41] The operation of the maxim was also explained in Re London Celluloid Company (1888) 39 Ch D 190 at 206 where Bowen LJ said:
"The maxim that no man can take advantage of his own wrong must be carefully considered, and expressed in more precise terms, before it can be safely applied. It means that a man cannot enforce against another a right arising from his own breach of contract or breach of duty. The observations of Baron Bramwell in Hooper v Lane on this subject are very instructive … To return to the maxim that a man cannot take advantage of his own wrong, we can see the point where it ceases to be applicable. Construing the maxim as I have said, the first question is, has the right to demand payment in cash been acquired through the breach of contract in question? Was it through non-registration of the contract that the liability to pay in cash arose? In my opinion it was not: the liability arose from taking the shares, although such liability might have been avoided in the one way pointed out by the section."
110 In any event, there are more fundamental obstacles to the applicant's resort to equitable principles. The principle of legality (from which the applicant's argument derives) is not a free-standing limitation on the administrative exercise of a statutory discretion. The principle is instead an assumption, or presumption, in aid of the interpretation of a statute, and, importantly, only applies "where constructional choices are open": Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43] per French CJ.
111 This latter limitation is demonstrated by reference to the decision of Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33 (Hopkins), where the Full Court (constituted by Logan, Wigney and Gleeson JJ) rejected the appellants' argument that the term "person" in s 501CA of the Migration Act ought be read down so as to exclude a person attracting Art 12(4) of the International Covenant of Civil and Political Rights or an amplified common law right. Although the Full Court in Hopkins, unlike the present case, was interpreting the meaning of a particular word, the Full Court's reasoning serves a reminder as to limited circumstances in which the principle of legality operates. The Full Court relevantly expressed the following:
[26] The task of statutory construction must begin and end with consideration of the text read in context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; at [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22].
[27] In these cases, the issue of construction focuses upon the meaning to be attributed to the word "person" in ss 501 and 501CA respectively.
…
[30] The meaning of "person" in ss 501(3A) and 501CA(4) must be read to include all natural persons for the reasons given in [Steve v Minister for Immigration and Border Protection [2018] FCA 311] and [Azar v Minister for Immigration and Border Protection [2018] FCA 1175; 261 FCR 1]. As the Minister submitted, there is no relevant ambiguity in the text of either provision. The class of persons to whom a visa to travel to and enter Australia or to remain in Australia may be issued is limited to "non-citizens": s 29 of the Act. A "non-citizen" is defined to mean a person who is not an Australian citizen: s 5 of the Act. In relation to non-citizens, the Act distinguishes between lawful non-citizens and unlawful non-citizens: ss 13 and 14. As is apparent from s 13(1) of the Act, the distinguishing feature is the holding of a visa which is in effect. Subject to satisfaction that a person meets the applicable criteria and to presently immaterial conditions, upon the receipt of a valid application, the Minister is obliged to grant that person a visa and, if not so satisfied not to grant that person a visa: s 65(1) of the Act. In turn, the cancellation power in s 501(3A) and the power in s 501CA(4) to revoke cancellation each unambiguously apply on the face of the text of these provisions to all persons who hold a visa or, as the case may be, held a visa until its cancellation. There is no area of "constructional choice" in ss 501(3A) and 501CA(4) to which the principle of legality could operate to produce a different outcome. To construe "person" as offering any such choice would be completely antithetical to the generality of application of the visa scheme in the Act to "non-citizens", as defined.
(Emphasis added.)
112 Turning to further obstacles to the applicant's resort to equitable principles, the applicant is not seeking in the present case to invoke the principle of legality to support the construction of a particular statutory word or phrase in order to avoid interference with a particular "valuable right": Tabcorp Holdings Ltd v Victoria [2016] HCA 4; 90 ALJR 376; 328 ALR 375 at [68] per French CJ, Kiefel, Bell, Keane and Gordon JJ; see also, generally, Pearce's Statutory Interpretation in Australia at [5.43]. Neither is the applicant contending that there was a statutory alteration by s 501CA of the Migration Act of established equitable rules in the sense that occurred in the New South Wales Court of Appeal's 1991 decision in McPherson.
113 The issue in McPherson was whether the Western Lands Act 1991 (NSW) precluded the Supreme Court of New South Wales from exercising its equitable jurisdiction to provide relief against forfeiture of an interest in a Crown lease created under that Act. The appellants argued that the legislation created, shaped and stated the characteristics of the lease in question and, accordingly, any relief against forfeiture in respect of that lease was to be found within the four corners of the legislation, and not by the application of principles of equity: McPherson at 695 and 698. However, the New South Wales Court of Appeal (constituted by Kirby P, Mahoney and Meagher JJA) held that the Court's equitable jurisdiction was not precluded.
114 In support of this conclusion, Kirby P (with Meagher JA agreeing) raised (at 698-699) the recognised principle that "[w]here … a statute is silent as to procedures which are to be followed or basic rights observed, the assumption is made, and enforced by the courts, that the statute was intended to operate alongside and in harmony with the common law". His Honour then considered (at 700) the applicability of such a principle beyond common law rights:
Does a similar principle apply in relation to basic principles of equity, where those principles have been developed over the centuries to safeguard the achievement of justice in particular cases where the assertion of legal rights, according to their letter, would be unconscionable?
In principle, there would seem to be no reason why a similar approach should not be taken to basic rules of equity. The justice of equity may equally supply the omission of the legislature, filling the silences of the statute.
(This passage was cited by Besanko, McKerracher and Pagone JJ in Binetter at [32], where their Honours stated that "[t]he principle which [Kirby P] applied is that the rules of … common law and equity continue to apply in a field where there are also statutory provisions unless those statutory provisions, by express language or by inference which is unambiguously clear, excludes them".)
115 Then, after turning to the coincidence between the legislation in McPherson and the equitable relief, Kirby P concluded as follows (at 703):
I see no mischief in the simultaneous existence of a statutory and equitable procedure for relief against forfeiture of the interests in leases under the Act. The very fact that equitable relief is confined to most exceptional cases demonstrates the rare circumstances in which such relief would be afforded: see, eg, Gustin v Taajamba Pty Ltd (1988) 4 BPR 9373 at 9381f and Shiloh Spinners [v Harding [1973] AC 691] (at 725). For such exceptional circumstances it is desirable to keep the remedies of equity available. It should be imputed to Parliament that this was its intention.
See also Mahoney JA at 713. (For further commentary on McPherson, see Leeming M, "Equity: Ageless in the 'Age of Statutes'" (2015) 9 Journal of Equity 108 at 125-126.)
116 The circumstances of the present case, and manner in which the applicant seeks to invoke the principle of legality, differ from the circumstances in McPherson. Clearly, the New South Wales Court of Appeal was not construing the scope of a statutory discretion. The Court of Appeal was instead navigating an absence of legislative expression as to the circumstances in which there was a power to relieve a party from an inequitable forfeiture of an interest in a statutory lease. In those circumstances, the Court of Appeal held, to quote Kirby P at 700, that "[t]he justice of equity" supplied "the omission of the legislature, filling the silences of the statute". However, in the present case, which involves determining the bounds of a statutory discretion, there are no relevant statutory silences for equity to fill. The power of the Minister under s 501CA(4) of the Migration Act is clearly, and deliberately, broad.
117 The applicant's visa was mandatorily cancelled in April 2018 by a delegate of the Minister under s 501(3A) of the Migration Act because, at that time, the applicant had a "substantial criminal record" and was serving a relevant sentence of imprisonment. Unless further action was taken by the applicant, he was liable to be removed from Australia. In contemplation of this type of scenario, the Commonwealth Parliament conferred upon the Minister the ability to revoke the visa cancellation should, for example, the cancellation be considered unduly harsh in the circumstances: see Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207 (Ketjan) at [63]-[66] per Middleton, Reeves and Anderson JJ.
118 The Minister is conferred a wide discretion under s 501CA(4) (and in particular s 501CA(4)(b)(ii)) to revoke a mandatory visa cancellation: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [24] per Bromberg and Mortimer JJ. Of course, the discretion is not totally unfettered, and must be exercised consistently with the scope, subject-matter and purpose of that power, and the Migration Act as a whole: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [23] per French CJ, [67] per Hayne, Kiefel and Bell JJ and [90] per Gageler J, and the authorities cited therein. The Minister must also exercise the discretion in accordance with law, in particular by engaging in "an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request": Omar at [37]. However, there is no legitimate warrant for the scope of the Minister's power to be further confined by reference to the equitable maxims raised by the applicant.
119 The blunt response to the first maxim - that "equity considers done what ought to be done" - is that, in the context of s 501CA(4), it is the Minister, and no one else, who is empowered to decide "what ought to be done" in the applicant's circumstances. In particular, although it has been observed that the powers of public officials are considered to be held on trust for the public, this is merely a metaphor (Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [135] fn 109 per Kirby J), and one which should not be stretched too far: Pitt v Holt [2013] UKSC 26; [2013] 2 AC 108 at [11] per Lord Walker, for the Supreme Court of the United Kingdom. Indeed, if the Minister was constrained by broad equitable values in the exercise of his discretion, this would invite opportunity for the guardians of those values - in the present context, the federal judiciary - to impose their own preferences as to "what ought to be done" in the circumstances of a non-citizen's revocation request. This is, of course, repugnant to the fundamental rule that "[t]he merits of administrative action … are for the repository of the relevant power and, subject to political control, for the repository alone": Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 (Quin) at 35-36 per Brennan J. As such, as Gageler J warned (albeit in dissent) in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at [88], the "[u]nfocussed invocation of the common law principle of construction sometimes now labelled the "principle of legality" can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy'". See, likewise, McLeish S and Ciolek O, "The Principle of Legality and "The General System of Law"" in Meagher D and Groves M (eds), The Principle of Legality in Australia and New Zealand (The Federation Press, 2017) p 24.
120 Turning to the application of the second equitable maxim raised by the applicant, even assuming the Minister's predecessors breached their guardianship obligations to the applicant, I am not comfortable with the applicant's characterisation of the Minister's decision as exploiting a legal predicament or taking advantage of his own wrong. That form of language can, on one interpretation, attribute an element of malice, or at least deliberate opportunism. Given the applicant did not allege any bad faith or improper purpose on the part of the Minister, references in the applicant's submissions to exploitation or taking advantage by the Minister should instead be construed in a more neutral sense to simply reference the allegation that the Minister was only in a position to make a decision under s 501CA(4) in respect of the applicant because of the Minister's previous breaches of guardianship obligations owed to the applicant.
121 Even so, the mere fact that previous actions or omissions of the Minister have wholly or partly caused the applicant to be in a position where he is not an Australian citizen, if proven, does not limit the scope of the Minister's decision-making power under s 501CA(4). That power is discretionary, and is only limited in the manner discussed above. Indeed, the breadth of that discretion is, from one perspective, advantageous to revocation requests as it permits the Minister to consider the "infinite variety of facts" that may have led to the mandatory cancellation of the non-citizen's visa: see Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757 per Dixon J. However, in the context of the present statutory scheme, this is dependent on those facts being raised with the Minister in the representations made by, or on behalf of, the non-citizen.
122 Accordingly, to the extent that the applicant pursues a mechanism in the statutory scheme to render the Minister accountable for any past wrongs of the Ministers' predecessors, it is found in the entitlement of the non-citizen under s 501CA to make representations to the Minister as to why his or her visa cancellation should be revoked. In the present case, it was open to the applicant to make representations to the Minister that the Minister's own failures had caused the applicant's non-citizenship, and that the visa cancellation decision should be revoked on that basis. The applicant did not do so. Although the applicant only had limited legal representation prior to the Minister's decision, it is not open for the applicant to now raise additional bases to support his revocation request. The Court's current task is limited to determining the legality of the Minister's decision in light of the representations made to him.
123 Thus, even assuming that the Minister's predecessors breached their guardianship obligations to the applicant, and the applicant's present "legal predicament" is therefore of the Minister's own making, this could not, and did not, lead to the Minister acting in excess of his statutory power under s 501CA(4) of the Migration Act when he decided not to revoke the cancellation of the applicant's visa.