McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843

FEDERAL COURT OF AUSTRALIA

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843 File number: VID 1121 of 2019

Judge: ANDERSON J

Date of judgment: 18 June 2020

Catchwords: MIGRATION – application for judicial review of decision by Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke cancellation of applicant's visa – Ground C: whether historical breaches of Minister's guardianship obligations to the applicant, if established, influence the scope of the Minister's power under s 501CA(4) – indivisibility and continuity of Minister's office – whether discretion under s 501CA(4) is to be construed consistently with maxims of equity – Ground D: applicant's birth registered in Queensland – applicant enrolled on Commonwealth electoral roll in 1986 – applicant issued an Australian passport in 2017 – Department did not notify applicant of investigation into citizenship status in 2018 – whether representations by the Minister that applicant is an Australian citizen, if established, could give rise to an equitable estoppel – whether applicant is entitled to declaration that the grant of a permanent visa is in the public interest – Ground E: whether Minister's decision was legally unreasonable because of its unfairness – whether Minister's decision was legally unreasonable because of the failure to consider "another reason" for revocation STATUTORY INTERPRETATION – principle of legality – construction of legislation consistent with principles of equity EQUITY – maxims – equity considers done what ought to be done – no man can take advantage of his own wrong – equitable estoppel – whether representations by the Minister, if established, could give rise to an equitable estoppel that would fetter or prevent the exercise of a statutory discretion Held: application for judicial review allowed – Minister acted with legal unreasonableness by failing to consider clear and significant representations regarding applicant's claim to be an Australian citizen, and the applicant's representation that he only learned he was on a visa after its cancellation