Where appellant was issued a passport, entered onto the electoral roll & represented by the Commonwealth executive that he was accepted as a citizen,is the Minister estopped from treating the appellant as a non-citizen under the Migration Act, 1958 (Cth)?

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152 (23 August 2021)

Intro:-

The appellant’s visa was cancelled by operation of s 501(3A) of the Migration Act 1958 (Cth) on 23 April 2018. On 23 August 2019, exercising the power in s 501CA(4) of the Migration Act, the Minister refused to revoke the cancellation. The appellant sought judicial review of that decision.

Facts:-

Born in the Cook Islands, the appellant was not raised by his birth mother or father. He was initially raised and cared for by a woman in the Cook Islands, who passed away when the appellant was 6 years old. The carer’s daughter and son-in-law were Maryanne and Kevin McHugh. Maryanne McHugh was also a Cook Islander, and therefore a citizen of New Zealand. Kevin McHugh was an Australian citizen. The appellant was brought to Australia in 1975 by Maryanne and Kevin McHugh, who were shortly thereafter to become his adoptive parents. When the appellant first arrived in Australia with his adoptive parents, a passenger card was filled out for him. At the time he was 7 years old. The passenger card identified his country of birth as “Rarotonga”. It identified his country of citizenship as “Australia”. This is the earliest record of an assertion of Australian citizenship in relation to Mr McHugh.

Mr McHugh was formally adopted under Queensland law by Kevin and Maryanne McHugh on 2 November 1976. A new birth certificate was issued two days later, showing his adoptive parents as if they had been his parents since his birth, with their ages entered to reflect their ages at the time of his birth, rather than at the date of his adoption in 1976. That meant his adoptive mother was shown as being 19 years old at the time of his birth and his adoptive father as being 15 years old. In fact when they adopted Mr McHugh they were 28 and 23 years old respectively. In this way, Mr McHugh’s birth certificate issued after his adoption was evidence of the legal fiction that they were entitled to be treated as if they had always been his parents, and he had always been their child.

Mr McHugh thereafter resided in Australia. In 1986, when Mr McHugh had turned 18, he deposes in his affidavit read in the proceeding before the primary judge, that:-

"the electoral office wrote to me and told me I was eligible to vote."

He deposed, and I accept, that he voted in the federal election in July 1987, when he was living with his aunt and uncle in Toowoomba. That was the only time he has voted. He explained not voting again in the following way:

"I did not vote again because I moved around the country working and living rough and in remote Aboriginal communities a lot."

The appellant’s solicitor searched the records of the Australian Electoral Commission for Queensland and found on the roll the names of Mr McHugh and his adoptive parents. He deposed that their names appeared for the electorate of Maranoa, with Mr McHugh being recorded as living in Brookstead. The extract from the roll is in evidence and I accept it does contain these details.

Mr McHugh deposed, and I accept, that in October 2017 he applied for a passport. He did so because he needed more identification to live in a hotel. In his passport application, he nominated his Australian birth certificate, with its number and date. He stated that he had been born at Atiu in the Cook Islands. He left blank the parts of the form dealing with production of an Australian citizenship certificate. He indicated he had not been issued with an Australian passport before. He also attached his Medicare Card and bank statement. He had a guarantor for the application (as required), who had filled out the relevant parts of the form. An officer checked the boxes indicating the officer had sighted Mr McHugh’s current address and photo identification.

The passport issued to Mr McHugh is in evidence. It was issued on 25 October 2017. Counsel for the appellant placed some reliance on what the appellant’s solicitor described in his affidavit as the “safe passage” indorsement on every Australian passport. That indorsement is annexed to the affidavit of the appellant’s solicitor, Mr Coffey. The indorsement states:

"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, an Australian Citizen, 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."

Mr McHugh was entitled to relief of this kind, counsel submitted, because the executive had represented to him, at various points over a period of 31 years, that he was an Australian citizen, and Mr McHugh had relied on that representation to his detriment. In those circumstances, and despite the unusual nature of the relief sought, it was in the interests of justice that the Minister be estopped in any future exercise of power from treating Mr McHugh as if he was a non-citizen. Alternatively, and more narrowly, it was contended that in refusing to revoke the visa cancellation under s 501CA(4), the Minister had acted “contrary to the principles of equity, including having regard to the [Minister’s] equitable obligations to the Appellant”. Counsel submitted the primary judge should have upheld both these arguments and granted appropriate relief.

In support of the contended need for the intervention of equity, counsel for Mr McHugh also relied upon what was said to have been the obligations of the responsible Minister at the time while Mr McHugh was a minor, under the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act).

Issues:-

a) did the Australian officials' conduct in treating the appellant as an Australian citizen, and representing to him that he was able to be treated as one give rise to an equitable estoppel in favour of the appellant that is enforceable against the Minister in relation to appellant being treated as a non-citizen for the purposes of the Migration Act, 1959 (Cth).

b) did the appellant fall within the terms of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) and did the Minister breach any  obligation owed to the appellant under the IGOC Act?

Analysis:-

Findings on the elements of estoppel

For the purposes of the appellant’s estoppel arguments, I accept the following propositions are made out on the evidence.

(a) The grant and issuing of a passport to Mr McHugh was a representation on behalf of the Commonwealth to Mr McHugh that he was accepted as an Australian citizen: see Australian Passports Act 2005 (Cth), s 8.

(b) Further, the indorsement on Mr McHugh’s passport was, I accept, a representation to other sovereign states by the Commonwealth of Australia that Mr McHugh was an Australian citizen

(c) The invitation to Mr McHugh to enrol as an elector, and his entry onto the electoral roll were also representations to Mr McHugh on behalf of the Commonwealth that he was accepted by the Commonwealth as an Australian citizen: See Commonwealth Electoral Act 1918 (Cth)

(d) Mr McHugh relied on these representations, as his unchallenged affidavit evidence demonstrates.

"If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen."

(e) Mr McHugh’s reliance on the representations made to him was reasonable in the circumstances. I find he genuinely believed he was an Australian citizen until 2018.

(f) On his own evidence, Mr McHugh relied on those representations to his detriment because he did not take any action to apply for citizenship, as he already thought he had it.

Notwithstanding those findings, as I explain below, the tide of authority is firmly against the proposition that those facts, and the Court’s findings about them, are capable of giving rise to an equitable estoppel in favour of Mr McHugh that is enforceable against the Minister in relation to Mr McHugh being treated as a non-citizen for the purposes of the Migration Act.

The Tide Of Authority

The primary judge undertook a comprehensive survey of the relevant authorities from [152]-[164] of his reasons. While the appellant sought to distinguish some of the authorities on their facts, his counsel did not in substance shy away from the proposition that what this Court was being invited to do would represent a significant development in Australian law. If that development is to occur, given the tide of authority against it, that would be a matter for the High Court and not this Court.

It has been repeatedly held that the manner in which a repository of a statutory discretionary power exercises that power cannot be affected by principles of equitable estoppel because to do so would be to hinder or interfere with the exercise of that power in the way Parliament intended.

Rejection of the creation of constraints on the exercise of power which are external to the express and implied constraints imposed by the statute (or by the Constitution) also explains the rejection in Australian law of the concept of a constraint on statutory power because of the “legitimate expectation” of a person affected by the exercise of that power: see Re Minister for Immigration; Ex parte Lam [2003] HCA 6; 214 CLR 1.

The Minister must exercise the power in s 501CA(4) by taking into account the representations made to him concerning revocation. Since a representation about Mr McHugh’s mistaken treatment as an Australian citizen has been made, the Minister’s obligation is to consider and engage in an active intellectual sense with that representation. The Minister is not obliged to treat that factor as overwhelming all other considerations, or as dictating a particular outcome for the exercise of power. Yet that is what the appellant submits should occur.

The appellant’s submissions must therefore be rejected on established principle.

The appellant relied on developments in equitable estoppel in public law in other jurisdictions, notably the United Kingdom and the United States. In particular, counsel directed the Court to a recent decision of the US Court of Appeals, Second Circuit. The decision is reported as Schwebel v Crandall (2020) 967 F.3d 96, and concerned a German citizen who had resided in the United States since she was 8 years old. She had been denied adjustment of her status to lawful permanent residence. The conduct said to give rise to estoppel occurred in the context of an announcement by the US Department of State about a limited time period to apply for certain visas and the submission of a visa application by Ms Schwebel a few days before the application period ended. The conduct was described by the Court in the following way:

"The United States Citizenship and Immigration Services (‘‘USCIS’’) received the application four days early, but, in violation of its internal procedures, it failed to advise Schwebel of any issue with or defect in her application. Instead, despite inquiries from Schwebel’s lawyer, USCIS did not respond for several years, at which point it advised Schwebel that she was required to submit a new application. By then, circumstances had changed such that Schwebel was no longer statutorily eligible to adjust status under the CSPA and USCIS denied her application."

The Court stated (at 103) that equitable estoppel was available in the United States against government in the “most serious of circumstances”, and required “a showing of affirmative misconduct by the government”, and that it had been applied in the immigration context to remedy “unintentional injustices”. The Court found the elements of estoppel to be proven: see 106. It held that:

Permitting the government to initiate rescission proceedings and subject Schwebel to removal would ‘‘sanction a manifest injustice occasioned by the [g]overnment’s own failures.’’

Australian law has not embraced the approach revealed by Schwebel. In Lam at [69], McHugh and Gummow JJ also examined the law in the US but concluded the US Supreme Court had not embraced the doctrine as much as some of the lower courts. Even if Schwebel reflects an increasing readiness at intermediate appellate court level to apply the doctrine, including in the immigration area, in the face of the tide of present Australian authorities, whether or not Australian law should adopt such an approach is a matter for the High Court.

The relevance of the IGOC Act

In my opinion, Mr McHugh never fell within the terms of the IGOC Act and the then responsible Minister was never his guardian under that Act. If, contrary to my conclusion, Mr McHugh did fall within the terms of that Act and the then responsible Minister was his guardian, it is my opinion there was no breach of any obligation under that Act to Mr McHugh. Reliance on the IGOC Act does not assist the case put on behalf of Mr McHugh.

The first question is whether, at any material time, the appellant fell within the terms of the IGOC Act. Section 6 of the IGOC Act relevantly provided:

"The Minister shall be the guardian of the person, and of the estate in Australia, of every immigrant child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as a guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty-one years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens."

The phrase “immigrant child” was defined in s 4 to mean:

"a person under the age of 21 years who enters Australia as an immigrant, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of that person, or a relative of that person not less than 21 years of age."

When Mr McHugh entered Australia aged around 7 years, with the couple who would adopt him about a year later, was he entering Australia either “in the charge of...a parent” or for the purpose of “living in Australia under the care of a parent”? If he was, then the IGOC Act did not apply to him.

While it is true that subsequent amendments to the IGOC Act have expressly picked up children who enter Australia with people who intend to adopt them, and have also picked up the definition of “parent” in the Family Law Act 1975 (Cth) (see ss 4 and 4AAA of the current IGOC Act), there is no basis to confine the meaning of “parent” in s 6 as it stood in 1975 to a biological parent, nor to a person with a formal adoption order in place.

As the Full Court later found in relation to the definition of “parent” in the Australian Citizenship Act 2007 (Cth), the ordinary meaning of the word “parent” is a question of fact, and

"[b]eing a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological....parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own....

See H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [129].

I accept the Minister’s submissions that the purpose of the IGOC Act is to provide for the care of unaccompanied minors who enter Australia: see Moore v Minister for Immigration [2007] FCAFC 134 at [52]; and see also the Second Reading Speech to the Immigration (Guardianship of Children) Bill 1946 (Cth), 31 July 1946, House of Representatives Hansard at 3369. This passage was extracted by the primary judge in his reasons in McHugh (No 2) at [63], but should be set out again:

"The bill also covers children who will be brought to Australia under the auspices of any governmental or non-governmental migration organizations when migration is resumed. The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children. It is believed that the Commonwealth Government, in encouraging and financially assisting child migration by way of contributions towards passage money and payment of child endowment to organizations caring for the children, accepts a responsibility which does not end with the children’s arrival in Australia. It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for until they reach 21 years of age. The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children."

The text of s 6 and the definition of “immigrant child” conforms to this purpose. In the present circumstances, as I describe them in the next paragraph, it would be irrational to construe s 6 and the IGOC Act as a whole as intended to reach a person in the circumstances of the appellant, so that the Minister would become his guardian “to the exclusion of” Mr and Mrs McHugh.

Maryanne and Kevin McHugh were, on the evidence before the Court, already in a parental relationship with the appellant before they entered Australia. They took over his care in 1974 when his former caregiver, Mrs McHugh’s mother, passed away. He was then only 6 years old. Mrs McHugh’s mother had cared for the appellant since birth. In that sense, Maryanne McHugh was very much part of the appellant’s family. The appellant entered Australia, with Kevin McHugh’s surname, when he was 7 years old. The couple brought him to Australia, to start a life with him here. He was formally adopted just over 18 months later, although no doubt the adoption process commenced some considerable time prior to the order being made on 2 November 1976. At the time of bringing the appellant into Australia, Maryanne and Kevin McHugh were on the evidence people who had acknowledged the appellant as their own, and treated him as such. In my opinion these circumstances fell within either or both limbs of the exclusion from the definition of “immigrant child” extracted at [44] above.

I also accept the Minister’s submission that there was, at the time Mr McHugh entered Australia with Kevin and Maryanne McHugh, nothing to put the responsible Department on notice that the appellant could fall within the terms of s 6 of the IGOC Act. As the Minister submits, the appellant’s name on the incoming passenger card carried the surname of the couple who brought him to Australia and who would shortly thereafter commence the process to adopt him; he was listed as an Australian citizen and an intended place of residence was nominated – Southbrook Queensland. There would have been no reason for any officer to suppose the IGOC Act could or would apply to the appellant.

Second, even if contrary to my conclusions above, Mr McHugh fell within the terms of the IGOC Act on his entry to Australia, the duties of the responsible Minister under the IGOC Act were not relevantly breached. The core of the appellant’s contentions about breach of duty under the IGOC Act centres on the failure of the responsible Minister to secure Australian citizenship for Mr McHugh. Each of the courses of conduct the appellant suggested the Minister should have taken (see [16] of the appellant’s written submissions) involves, with respect, an artificial reconstruction of the circumstances, and the imposition of duties and functions on the Minister which are inconsistent with undisputed facts.

It appears to be common ground, although at times counsel for the appellant strayed beyond this proposition, that there was a period of about 21 months between the appellant’s arrival in Australia and his formal adoption by the McHughs. If the IGOC Act had an operation, it could only be during this period. It was not seriously suggested by counsel that once the appellant was legally adopted under Australian law by the McHughs, he somehow remained under the Minister’s guardianship under the IGOC Act.

It was during this 21 month period that the appellant’s counsel submitted there was a breach of the Minister’s guardianship obligations. It was submitted the Minister should have either applied for Australian citizenship for Mr McHugh, or secured him advice on how to apply for citizenship. It should be recalled at this stage Mr McHugh was 7 years old and living in Queensland with the McHughs, who may have also thought he was an Australian citizen, given how the passenger card was filled out.

Even if the Minister was, contrary to my conclusions, Mr McHugh’s guardian during this period, the indisputable facts are that he was living with the McHughs in Southbrook in Queensland, where they were tending to his daily and longer term needs, and intending to formally adopt him. He had suffered no personal injuries, he was not in any danger in terms of his care – he was, at least on the evidence before the Court, being brought up like any other young child in the Australian community. For that period of 21 months even if the Minister were in law his guardian it would have been entirely reasonable for the Minister to have seen the question of any future Australian citizenship as a matter between Mr McHugh and the two people who had brought him to Australia and were taking care of him.

Of course, with the benefit of hindsight, it would appear the McHughs, just like the appellant, laboured under a misapprehension about the appellant’s citizenship, and that misapprehension has had severe consequences for Mr McHugh. However, this aspect of the appellant’s argument requires the question to be asked: what, in the circumstances as they then appeared, would a reasonable Minister, as a guardian, have done in 1975 and 1976 about Mr McHugh not having been granted Australian citizenship before Mr McHugh was formally adopted? The answer is: nothing. Even if that were the position, it could not reasonably have been in the contemplation of the legal guardian under the IGOC Act that any steps needed to be taken.

In this aspect of the appellant’s arguments there were also some contentions, made only orally and apparently not before the primary judge, about Mr McHugh’s adoption being legally ineffective. They were not developed, have no foundation in fact or law and are directly inconsistent with the contentions put in McHugh where the appellant’s adoption was relied upon as one of the bases on which it was said he was an Australian citizen. They do not require further discussion.

Conclusion on the IGOC Act

While as I have found above, Mr McHugh genuinely believed he was a citizen, and at least two significant mistakes were made by Australian officials in treating him as an Australian citizen, and representing to him that he was able to be treated as one, nothing in the IGOC Act exacerbated or aggravated those circumstances, because it never applied to Mr McHugh. Even if, contrary to my conclusion, the IGOC Act did apply, the appellant’s contentions about the Minister breaching obligations under it by not securing citizenship for Mr McHugh have no merit. No additional equity arises which contributes to the strength of the circumstances suggesting an estoppel should be found to operate in relation to the Minister’s exercise of statutory power under s 501CA(4) more than 40 years after the IGOC Act is asserted to have been engaged in respect of Mr McHugh.

Conclusion:-

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be fixed by way of an agreed lump sum.