The estoppel argument
26 Presently left unresolved is whether Australian law has developed to the stage where an estoppel may operate in public law. Although unnecessary to resolve the argument, it may nevertheless be recognised that there are not inconsiderable difficulties in the path of such a doctrine being accepted: e.g., Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 221 per Gummow J. See also: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [71] to [77], [80], (2003) 214 CLR 1 at 23 to 25, 26 to 27 per McHugh and Gummow JJ.
27 It is sufficient for present purposes to accept the principles expressed by Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1. The Chief Justice there initially set forth the accepted starting point that the Executive cannot bind itself to not perform a duty or exercise a discretion. His Honour expressed this proposition as follows (at 17):
The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power …
So much was accepted by Counsel for the Applicant. But Counsel for the Applicant went on to place reliance upon the following observations of the Chief Justice (at 18) as to "the availability of estoppel against the Executive", namely:
What I have just said 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 a 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 …
28 Earlier, and in the context of considering the elements to be satisfied if an estoppel could arise in private law, Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 442 to 443 observed:
Instead, it adopted a deliberate policy of going slow to keep its options open but yet retained the executed copy of the lease which had been sent to it only as a step in the process of urgently finalizing a binding agreement. In that context, it is not surprising that the deliberate silence of Waltons caused Mr. Elvy and the Mahers to assume that a binding agreement had been made and that the executed lease, instead of being returned to Nowra, had been retained by Waltons' solicitor so that it could be lodged for stamping. …
It must have realised that the Mahers had been misled by its silence and inaction and that they believed that a binding agreement for lease had been made. Even then, it said nothing. It took no step to advise the Mahers that the deed of agreement for lease had never been executed by it with the consequence that no binding agreement had been made. Instead, it maintained its deliberate silence and thereby kept open for itself the option of moving into the building which was being constructed to its specification until, in its own good time, it decided that it did not wish to proceed with the lease. Then, and only then, it advised the Mahers that it would not be proceeding and sought to leave them to bear the resulting loss. That was on 19 January 1984, some sixteen days before the nominated date for completion of the building. In the meantime, the Mahers' belief that they had a binding agreement had led them to demolish a building which they otherwise would not have demolished, to borrow money from their bank on the basis that they had a binding agreement for lease with Waltons and to commence construction of a building which they would otherwise not have built.
These facts suffice to found an estoppel precluding Waltons from denying the existence of a binding agreement for lease. Indeed, these facts call into play the operation of perhaps the clearest emanation of estoppel by conduct, namely, the principle which precludes departure from a representation or an induced assumption (a "representation … by silence": Laws Holdings Pty Ltd v Short [(1972) 46 ALJR 563 at 571]) of existing fact in circumstances where the party estopped has knowingly and silently stood by and watched the other party act to his detriment.
29 Reliance upon the observations of Mason CJ and those of Deane J as to an "induced assumption", however, does not assist the Applicant for either of two reasons.
30 First, the "representation" or the "induced assumption" relied upon by the Applicant was that s 501 would not be relied upon when determining the application for the protection visa. In contrast to the earlier decisions that had been made to refuse the application for a business visa in 2008 and the application for a spouse visa in 2012 when reliance was quickly placed upon s 501 on both occasions, the application for a protection visa made in 2015 met with no like rejection at the outset in reliance upon s 501. Indeed, Counsel for the Applicant stressed that the application for a protection visa progressed through at least six stages, namely:
the application for the protection visa;
the initial decision of the delegate refusing the application;
the first decision of the Administrative Appeals Tribunal, with the recommendation then being made for Ministerial intervention pursuant to s 417 of the Migration Act;
the consideration given by the Minister as to an exercise of the power conferred by s 417;
the application for judicial review before the Federal Circuit Court; and
the second decision of the Administrative Appeals Tribunal.
When no reliance was placed at the outset upon s 501 when consideration was being given to the application for a protection visa, the Applicant - so the argument ran - was "induced" to assume that there would be no later reliance upon s 501. That state of assumption, it was further contended, was only reinforced by reference to ss 197C and 198 and the legislative objective of making decisions "as soon as reasonably practicable". Fragmented decision-making, with possible reliance being placed upon s 501 at the very end of decision-making, rather than at the beginning, was said to run counter to this objective.
31 Notwithstanding the apparent conviction with which the argument was advanced, there certainly remains no express representation that future reliance would not be placed upon s 501 and there remained no clearly expressed basis upon which the Applicant could "assume" that s 501 may not be relied upon at some stage in the future.
32 The "silence" of the Minister or his delegates in 2015 was, on the Applicant's approach, either transformed into a "representation" or an "inducement" to the Applicant to proceed upon an "assumption" the Applicant had made but not communicated to the Minister or his Department. Neither analysis, with respect, should be accepted. The facts certainly fall well short of establishing any "deliberate silence" as envisaged by Deane J in Waltons Stores.
33 Even if such an "induced assumption" could be distilled from the "silence" of the Minister or his failure to expressly state that he reserved the ability to invoke s 501 at some time in the future, the second difficulty confronting the Applicant is his inability to identify any prejudice arising from any such "induced assumption" or any manner in which he "acted on the representation".
34 To confront this difficulty, Counsel for the Applicant acknowledged the absence of any evidence from the Applicant as to how he would have acted had he been told at the outset that future consideration could be given to reliance being placed upon s 501. Indeed, there was no evidence that the Applicant had made any "assumption" as to the manner in which his application would be resolved, be it an assumption founded upon any "inducement" emanating from the Minister or his Department or otherwise. But Counsel for the Applicant insisted that there was no need for evidence. On his approach, if potential reliance upon s 501 was foreshadowed at the outset, there were only two available options, namely:
to abandon any application for a protection visa and to return to Bangladesh; or
to press on with his application and seek (if necessary) administrative and judicial review in full knowledge that s 501 remained a power which could be exercised at any point of time.
These were the options. The prejudice relied upon was the denial of an opportunity to make a choice as to how he should respond.
35 On the argument advanced on behalf of the Applicant, it was incumbent upon the Minister to either immediately foreshadow when an application is made for a protection visa that reliance may be placed upon s 501; or, on the facts of the present case (arising as they do in the context of (inter alia) the decisions in 2008 and 2012 when reliance was quickly placed upon s 501), it was incumbent upon the Minister to foreshadow as soon as the protection visa application was lodged in 2015 that reliance could be placed upon s 501. If such notice was not then given, the argument was that the Minister was thereafter precluded from placing reliance upon s 501.
36 But that denial of choice, it is respectfully considered, is neither any change of position nor any change of position in reliance upon any "induced assumption". There was, as accepted by Counsel on behalf of the Applicant, no express or implied limitation evidenced in the Migration Act as to the sequence in which one or other of the statutory powers could be exercised. For example, reliance could be placed on s 501 at the outset: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [43] per Bromberg and Mortimer JJ. But there was no legislative imperative to exercise one or other of the relevant powers in any particular order. Nor, on one view of the facts, was there any imperative for consideration to be given to possible reliance upon s 501 at any point of time prior to the second of the two Tribunal decisions. Indeed, after the first Tribunal decision when the Applicant had been found not to be a person to whom protection obligations were owed, that conclusion of itself - if not set aside - would have been sufficient to doom the application to failure. Reliance upon s 501 at that point of time would have been unnecessary. Why it was incumbent upon the Minister to foreshadow at the outset possible reliance upon s 501, either as a general proposition or by reference to the facts of the present case, was not adequately explained.
37 The estoppel argument fails. Edelman J, it may be noted, rejected the like argument at the interlocutory hearing: Plaintiff S111/2017 v Minister for Immigration and Border Protection (unreported, High Court of Australia, Edelman J, 9 May 2017).
38 Even assuming that there had been an "induced assumption" or a "representation" that had been made and "acted on" by the Applicant, left unexplained was how the Minister could grant a visa in circumstances where for the purposes of s 65 he was required "to refuse to grant" the visa. Even if there may be circumstances, as envisaged by Mason CJ in Quin, where what is in issue is "the exercise of the relevant discretion" and where it may be possible "to hold the Executive to a representation" so as to avoid "grave injustice to the individual", left unexplained is how the Minister may be held to his "representation" where he is simultaneously under a legislative command "to refuse to grant" the visa. Although the Applicant in his written Outline of Submissions contended that the present case was one in which there was "no question of an estoppel forcing the Respondent to act ultra vires", how that submission was consistent with the mandate imposed by s 65 "to refuse to grant" the visa was not further explained.