McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152

Federal Court of Australia

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152 Appeal from: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843

File number: VID 464 of 2020

Judgment of: ALLSOP CJ, BESANKO AND MORTIMER JJ

Date of judgment: 23 August 2021

Catchwords: MIGRATION – cancellation of visa and refusal to revoke cancellation of the appellant's visa – where appellant resided in Australia for the majority of his life – where appellant issued a passport and entered onto the electoral roll – whether Commonwealth executive represented to the appellant that he was accepted as an Australian citizen – whether Minister estopped from treating the appellant as a non-citizen – principles relating to the availability of equitable estoppel in public law – whether appellant fell within the terms of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) – whether Minister breached any obligation owed to the appellant under the IGOC Act PRACTICE AND PROCEDURE – nature of the relief sought against the Minister – appropriate relief – whether quia timet injunction lay against the Minister preventing him from treating the appellant as a non-citizen – whether a writ ne exeat regno, or ne exeat colonia open to be issued to prevent Minister's removal of the appellant

Legislation: Australian Citizenship Act 1948 (Cth) Australian Citizenship Act 2007 (Cth) Australian Passports Act 2005 (Cth) s 8 Commonwealth Electoral Act 1918 (Cth) s 93 Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) s 22, s 23 Immigration (Guardianship of Children) Act 1946 (Cth) ss 4, 4AAA, 6 Migration Act 1958 (Cth) ss 13, 14, 189, 195A, 196, 198, 501, 501CA Immigration (Guardianship of Children) Bill 1946 (Cth)