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Sidhu v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 69 (9 February 2007)

Last Updated: 13 February 2007

FEDERAL COURT OF AUSTRALIA

Sidhu v Minister for Immigration & Multicultural & Indigenous Affairs

[2007] FCA 69

MIGRATION – Application for writ of mandamus or injunction requiring respondents to evidence Transitional (Permanent) visa into applicant’s passport – applicant held a Return Endorsement – consideration of Transitional (Permanent) visa – Return Endorsement ceased to have effect before date of introduction of Transitional (Permanent) visa therefore applicant never held such a visa – waiver of conditions attaching to return endorsement not made out where respondents’ conduct was not deliberate – respondents cannot be estopped from denying the existence of a visa the applicant never held – application dismissed.

Migration Act 1958 (Cth) s 70, s 475A
Migration Amendment Act 1979 (Cth)
Statute Law (Miscellaneous Provisions) Act 1987 (Cth) s 5(14)
Migration Reform (Transitional) Regulations 1994 (Cth) reg 9
Migration Regulations 1994 (Cth) reg 2.18

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2001) 209 CLR 597 cited
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 204 ALR 55 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 cited
Rush v Commissioner of Police [2006] FCA 12 cited
The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394 cited
Smyth & Co v Bailey & Co [1940] 3 All ER 60 cited
Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 cited
Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 cited
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 cited
Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303 cited

SHARON SIDHU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA

SAD 329 OF 2005

LANDER J
9 FEBRUARY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 329 OF 2005

BETWEEN:	SHARON SIDHU Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	9 FEBRUARY 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 329 OF 2005

BETWEEN:	SHARON SIDHU Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA Second Respondent

JUDGE:	LANDER J
DATE:	9 FEBRUARY 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application for judicial review of a decision of a delegate of the second respondent under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth). The applicant challenges a decision of the second respondent in the Australian High Commission in Malaysia made on or before 12 November 2003 refusing to re-evidence a Return Endorsement or Transitional (Permanent) visa into her newly issued Malaysian passport.

2 On 28 June 2006 the applicant filed an amended application pursuant to leave granted on 31 May 2006. The applicant claims:

‘1. An order in the nature of a writ of mandamus and/or an injunction requiring the Second Respondent to give, pursuant to section 70 of the Migration Act 1958 (Cth), the Applicant evidence of her Transitional (Permanent) Visa.

2. Alternatively, an order in the nature of a writ of mandamus and/or an injunction requiring the First Respondent to give, pursuant to reg 2.18 of the Migration Regulations 1994 (Cth), the Applicant evidence of her Transitional (Permanent) Visa.

3. An order that the First Respondent pay the Applicant’s costs of the application.

4. Such further or other orders as this Honourable Court deems fit.’

3 The amended application provides two grounds in support of the application. They are:

‘1. The applicant is the holder of a Transitional (Permanent) Visa and the Second Respondent has refused to give, pursuant to section 70 of the Migration Act 1958 (Cth), the Applicant evidence of her visa.

2. The respondents are estopped, or otherwise prohibited by operation of law, from denying that the Applicant is the holder of a Transitional (Permanent) Visa.

4 The applicant is a Malaysian citizen. She is a solicitor. She has lived in Australia for long periods of time both as a child and an adult. This proceeding is brought to determine whether she is entitled to evidence of her holding a Transitional (Permanent) visa.

5 A non-citizen who immediately before 1 September 2004 held an old visa of the kind known as ‘(a) an Authority to Return or (b) a Return Endorsement’ is taken, on 1 September 2004 to have been granted a Transitional (Permanent) visa: reg 9 Migration Reform (Transitional) Regulations (Cth) 1994 (the Transitional Regulations). The regulation provides that a Transitional (Permanent) visa permits the visa holder to enter Australia within three years after each departure from Australia and remain indefinitely in Australia. She would be entitled to evidence of a Transitional (Permanent) visa if immediately before 1 September 1994 she held an Authority to Return or a Return Endorsement.

6 Before dealing with the facts, it is necessary to identify the relevant legislation relating to evidence of visas and the relevant legislation relating to a Transitional (Permanent) visa.

The relevant legislation on evidencing a visa

7 The applicant contends that the respondent failed when requested by the applicant in 2003 to evidence a visa as required by s 70 of the Migration Act, which provides:

‘70 Evidence of visa

Subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa.’

8 Division 2.4 of the Migration Regulations 1994 (the Migration Regulations) governs the evidencing of visas. Relevantly, reg 2.18 provides:

‘2.18 Re-evidencing of resident return visas

(1) If:

(a) evidence of a resident return visa has been given in a passport; and

(b) either:

(i) the evidence, or the passport, has been damaged, defaced, lost, stolen or destroyed, or otherwise cannot, for good reason, be presented for travel purposes; or

(ii) the passport has expired, or has been cancelled, or is no longer applicable to that person;

the person to whom the visa was granted may apply to the Minister for evidence of the visa to be given to the person in a passport of that person.

(2) ...

(2A) ...

(3) If the application is not an Internet application, and the applicant is not in Australia at the time of making the application:

(a) the application must be in accordance with approved form 1085; and

(b) the fee payable on application is $70.

(4) In this regulation, resident return visa means:

...

(e) a transitional (permanent) visa that is taken to have been granted under regulation 9 of the Migration Reform (Transitional Provisions) Regulations; ...’

The relevant legislation

9 In 1976 s 6 of the Migration Act authorised an officer of the Department ... to grant an immigrant an ‘entry permit ...’. The applicant was granted an Authority to Return on 18 November 1976. The grant of an Authority to Return was by administrative action in placing a stamp in an eligible person’s passport.

10 The Migration Act was amended in 1979 by the Migration Amendment Act 1979 (the Amending Act), which came into force on 1 November 1979. The Amending Act inserted ss 11A and 11B into the Migration Act. Section 11A relevantly provided:

‘11A (1) An authorized officer may, in accordance with this section –

(a) ...

(b) upon request by a person who is residing in Australia, or has resided in Australia and wishes to return to Australia, grant to that person a return endorsement with respect to travel to Australia by that person ... on any number of occasions while it remains in force.

(2) A visa or return endorsement--

(a) ...

(b) ...

(c) shall be expressed to continue in force until the expiration of a date specified in it, or of a period specified or otherwise described in it; and

(d) shall, notwithstanding that it is so expressed to continue in force cease to be in force upon cancellation under section 11B.’

11 A ‘return endorsement’ was defined to mean a Return Endorsement in force under s 11A: s 3 of the Amending Act and s 5 of the Migration Act.

12 Section 9(3) of the Amending Act provided:

‘(3) A document or notation issued before the date fixed under sub-section 2(2) in respect of the return of a person to Australia, being a document or notation that had not expired or been cancelled before that date, has effect, on and after that date, according to its tenor, for all the purposes of the Principal Act as amended by the Act, as if it were a return endorsement duly granted under section 11A of the Principal Act as so amended.’

13 Section 11B provided:

‘11B The Minister or an authorized officer may, in his absolute discretion, cancel a visa or return endorsement at any time by writing under his hand.’

14 It follows that as at 1 November 1979 the holder of an Authority to Return was deemed to be the holder of a Return Endorsement issued pursuant to s 11A of the Migration Act by the operation of s 9(3) of the Amending Act.

15 Authority to Return stamps were withdrawn from use in Australia on 2 July 1979 and were replaced by Return Endorsement stamps.

16 The Statute Law (Miscellaneous Provisions) Act 1987 (the Miscellaneous Provisions Act) came into effect on 1 January 1988. Section 3 of the Miscellaneous Provisions Act had the effect of amending all the acts in Schedule 1 of the Miscellaneous Provisions Act. Section 11A of the Migration Act was amended to delete all reference to ‘a return endorsement’.

17 Section 5(14) of the Miscellaneous Provisions Act provided:

‘Notwithstanding the amendments of the Migration Act 1958 made by this Act, the first-mentioned Act, as in force immediately before the commencement of this section, continues to apply in relation to return endorsements issued under the first-mentioned Act before the commencement of this section.’

18 The effect of that transitional provision was to preserve any Return Endorsement already issued.

19 The respondent tendered an affidavit of Christine Sawa who has been an officer of the Department of Immigration and Multicultural Affairs (DIMA) since 1979, who gave evidence of the history relating to Authorities to Return and Return Endorsements. She deposed:

‘5. From January 1987, ATRs and REs were replaced by a system of Resident Return Visas ("RRV"). During a 3-year "transitional period" between 1 January 1987 and 31 December 1989, holders of existing ATRs and REs were encouraged to apply for RRV. In many cases the evidence of the ATR or RE in the holder’s passport would be stamped as "cancelled" when a replacement RRV was issued.’

20 That evidence is consistent with the legislative history.

21 Section 11A of the Migration Act was repealed by the Migration Legislation Amendment Act 1989 (Cth) which came into effect on 19 December 1989. Section 5(14), however, of the Miscellaneous Provisions Act has not been repealed.

22 On 1 September 1994 reg 9 of the Migration Reform (Transitional) Regulations came into effect. It provided:

‘9. A non-citizen who, immediately before 1 September 1994, held an old visa of the kind known as:

(a) an Authority to Return; or
(b) a Return Endorsement;

is taken, on 1 September 1994, to have been granted a Transitional (Permanent) Visa permitting the holder:

(c) to travel to and enter Australia within 3 years after each departure from Australia; and
(d) to remain indefinitely in Australia.’

23 The effect of that regulation is to deem a holder of an Authority to Return or a Return Endorsement as at 1 September 1994 to be the holder of a Transitional (Permanent) visa with the rights attaching to that visa in pars (c) and (d) of reg 9.

Factual history of the applicant’s immigration status

24 The applicant tendered an affidavit in which she deposed to the endorsements and visas which had been granted her over a long period of time. That evidence was not challenged. The respondents tendered an affidavit of their solicitor, Mr Kennedy, who exhibited the Department of Immigration and Multicultural Affairs (DIMA) computerised records of visas granted to the applicant. That evidence was also not challenged.

25 The applicant, Ms Sidhu, was born in Malaysia on 2 February 1967. On 30 May 1975 she was issued a Malaysian passport which was valid until 30 May 1980 (the 1975 passport). On 29 July 1975 she was granted an Australian Migrant visa and emigrated to Australia with her parents on the same day. On 18 November 1976 the applicant was granted an Authority to Return to travel to Australia. It was evidenced by a stamp placed on page 10 of her 1975 passport. The stamp reads:

‘COMMONWEALTH OF AUSTRALIA
RESIDENT OF AUSTRALIA
AUTHORITY TO RETURN
No. 005Z02.629
Valid for travel to Australia
within three years from date
of last departure.’

26 The 1975 passport was due to expire on 30 May 1980. On 7 April 1980 the passport was extended until 30 May 1985.

27 On 10 December 1984 the applicant was granted a new Malaysian passport (the 1984 passport) to replace the 1975 passport. On 10 January 1985 the applicant was provided with a Return Endorsement in the 1984 passport. It appears on page 11 of the 1984 passport. It reads:

‘AUSTRALIA No. [Illegible]
RETURN ENDORSEMENT
Valid for return travel to Australia by
the holder within three years from
the date of last departure from Australia
ENTRY to Australia is subject to the
grant of an Entry Permit on arrival’

28 From July 1975 the applicant resided with her family in Australia. She attended school and then university, completing her degrees in 1989.

29 Between 1984 and 1989 the applicant departed Australia on many occasions and was granted re-entry upon her return.

30 On 8 July 1989 the applicant departed Australia. She returned to Sydney through Kingsford Smith Airport on 31 July 1989. When she gave her 1984 passport to the immigration officer at the airport it was taken for processing and returned to her. The applicant’s evidence was that she did not notice at this time the Return Endorsement on page 11 of the 1984 passport was stamped ‘CANCELLED’. She said that she also did not notice that a new document had been pasted into page 18 of the 1984 passport. That document read:

‘AUSTRALIAN VISA SYDNEY CBD RESIDENT RETURN
WORK

NAME
-------

1. SIDHU<SHARON R
------------------------------------------

ISSUED ON 31 JUL 89 FOR MULTIPLE TRAVEL BEFORE
31 JUL 94 FOR STAY INDEFINITE SUBJECT TO
GRANT OF ENTRY PERMIT ON ARRIVAL’

31 The document at page 18 was a Return Resident visa which was valid for a period of five years to 31 July 1994.

32 The applicant deposed that the immigration officer did not explain why the Return Endorsement had been cancelled nor did he seek her approval or consent before stamping the Return Endorsement as cancelled.

33 The applicant deposed that she did not become aware that the Return Endorsement was purportedly cancelled on 31 July 1989 until mid to late 1997. I will address her evidence in that regard later in these reasons.

34 It was the applicant’s evidence that as at 31 July 1989 she did not understand that the Return Endorsement had been purportedly cancelled. She understood the visa on page 18 of the 1984 passport meant ‘that as long as I entered Australia on or before 31 July 1994, the document would be automatically renewed or replaced if I sought to enter Australia subsequently’. The applicant assumed ‘that there was no longer any 3 year requirement from the date of the last departure’.

35 The applicant travelled to London in 1990 to attend university. She entered and left Australia on a number of occasions between 1990 and 1991.

36 On 20 May 1993 the visa granted on 31 July 1989 was cancelled. The applicant is now unable to recall the circumstances in which it was cancelled. Page 35 of the 1984 passport exhibits a new visa which was issued on 21 May 1993. It provides:

‘AUSTRALIAN ENTRY VISA CLASS 155 RESIDENT RETURN
KUALA LUMPUR CONDITIONS

1. SIDHU SHARON
-------------------------------

ISSUED 21 MAY 93 VALID UNTIL 20 MAY 98 MULTIPLE TRAVEL
---------------------------------------

SUBJECT TO MIGRATION LAW THIS DOCUMENT WILL OPERATE
AS A PERMANENT ENTRY PERMIT ON EACH ENTRY TO AUSTRALIA.’

37 This was also a Return Resident visa (Class 155) which was valid until 20 May 1998. Importantly, that Return Resident visa was granted in Kuala Lumpur where the applicant was then residing.

38 There are three classes of Return Resident visas; Subclass 155 a five year Resident Return; Subclass 157 a three month Resident Return; and Subclass 159 a Provisional Resident Return visa.

39 On 8 November 1994 the applicant sought and was granted a new Malaysian passport (the 1994 passport). On her return to Australia on 16 October 1996 she presented both her 1984 passport (containing evidence of permission to enter Australia) and her 1994 passport. She presented both passports again on her departure from Australia on 26 October 1996.

40 On 9 September 1997 the applicant applied to the Australian High Commission in Kuala Lumpur for evidence that she was the holder of a Return Endorsement and that it be placed in her 1994 passport. She completed an application form entitled ‘Application for a resident return visa (RRV) or replacement evidence of a RRV – 1085’. She also submitted her 1984 and 1994 passports to the Australian High Commission in Kuala Lumpur.

41 She said in support of her application:

‘Upon my arrival at Kingsford Smith Airport, Sydney on 31/07/89 my Return Endorsement No. 37983967E was cancelled by the Immigration Officer on the spot and without my consent and the cancellation was not explained to me at all. The Return Endorsement was replaced on the spot by visa No. E144983 (please see attached page for a copy of the same). I now seek reinstatement of the Return Endorsement which was not duly cancelled nor properly cancelled. I shall be greatly obliged if your goodselves would kindly reinstate my Return Endorsement.’

42 In the same application, she stated that the Return Endorsement expired within three years of the date of the last departure.

43 On 12 September 1997 a senior migration officer in the Australian High Commission in Kuala Lumpur, Ms Pereira, sent a facsimile message to the Entry Operations Section (EOS) of the then Department of Immigration and Ethnic Affairs in Canberra giving details of manually re-evidenced Authority to Return for inclusion on the visa database. The reason given for the issue was to reinstate the Authority to Return.

44 The Australian High Commission returned the 1994 passport to the applicant. It included a document labelled ‘Australia Visa’ which appeared on page 23 of the 1994 passport. At the top of the page there is handwriting which reads ‘Re-evidenced in New Passport No A9778262’. The endorsement in the 1994 passport reads:

‘AUSTRALIA VISA CLASS BF RESIDENT RETURN
AUTHORITY TO RETURN/RETURN ENDORSEMENT SUB CLASS 111
CONDITIONS MIG. REGS. SCHED 8

KUALA LUMPUR

1. SIDHU, SHARON
------------------------------------

MUST ARRIVE IN AUSTRALIA WITHIN THREE YEARS FROM DATE OF
LAST DEPARTURE. MULTIPLE TRAVEL
HOLDER PERMITTED TO REMAIN IN AUSTRALIA INDEFINITELY.’

45 The BF111 Label entered in the applicant’s 1994 passport was evidence of a Transitional (Permanent) visa granted pursuant to reg 9 of the Transitional provisions which had come into force on 1 September 1994. The code ‘BF’ indicates that the class of visa is a Transitional (Permanent) visa: reg 1.06(b)(i) of the Migration Regulations.

46 Subclass 111 is a ‘dummy’ subclass which was created by the Department to evidence/re-evidence visas granted pursuant to reg 9 of the Transitional Regulations derived from an Authority to Return or Return Endorsement held on 1 September 1994.

47 The BF155 visa (the Return Resident visa) on page 35 of the 1984 passport, which had been granted on 20 May 1993, had been stamped ‘LABEL INOPERATIVE’.

48 The applicant sought and was granted a further new Malaysian passport on 10 June 1999 (the 1999 passport). The applicant again sought to have her right of entry into Australia evidenced in her new passport. On 14 September 1999 evidence was placed in the applicant’s 1999 passport. The document reads:

‘AUSTRALIA VISA CLASS BF RESIDENT RETURN
AUTHORITY TO RETURN/RETURN ENDORSEMENT SUB CLASS 111
CONDITIONS MIG. REGS. SCHED 8

KUALA LUMPUR

1. SIDHU SHARON
------------------------------------

MUST ARRIVE IN AUSTRALIA WITHIN THREE YEARS FROM DATE OF
LAST DEPARTURE. MULTIPLE TRAVEL
HOLDER PERMITTED TO REMAIN IN AUSTRALIA INDEFINITELY.’

49 This is the same visa as had been evidenced in the 1994 passport.

50 The applicant travelled to Australia in September 1999 and June 2002 under her 1999 passport using this endorsement as her permission to enter Australia.

51 Her Malaysian passport was due to expire in June 2004. She sought and obtained a new passport in September 2003 (the 2003 passport).

52 On 25 September 2003 the applicant lodged a further Form 1085 application to have her right of entry to Australia evidenced in her 2003 passport and, on 26 September 2003, a delegate of the Minister placed a further BF111 Label in her passport. Apparently, the delegate had only checked the computerised movement records from 1996 onwards.

53 Later, on 26 September 2003, EOS telephoned the delegate and advised that the applicant was not entitled to a BF111 visa because she had been absent from Australia for more than three years between April 1991 and October 1996.

54 When the applicant went to collect her passport on 7 November 2003 the visa in the 1999 passport had been stamped ‘LABEL INOPERATIVE’. The 2003 passport included a document entitled ‘Australian Visa’ which was also stamped ‘LABEL INOPERATIVE’.

55 On 12 November 2003 an officer of the Australian High Commission in Malaysia wrote to the applicant advising of her correct immigration status. The officer wrote:

‘On 25 September 2003 you applied to have your Authority to Return [ATR] reevidenced into your new passport. Departmental records indicate that you were absent from Australia for more than three years between 1991 and 1996.

Under Regulation 9 of the Migration Reform (Transitional Provisions) Regulations your ATR permitted you:

● travel to and enter Australia within three years after each departure from Australia; and to remain indefinitely in Australia.

As the holder of an ATR your right to indefinite permanent residence in Australia was dependent on your return to Australia at least once every three years. Your failure to do so caused your ATR to cease on 7 April 1994 and it is not possible to reevidence an ATR that you do not hold.

The earlier reevidence of your ATR in 1997 was an administrative error on the department’s part.

Should you wish to regain Australian permanent residence you may apply for a Resident Return Visa or re-apply for migration.

Should you wish to travel to Australia on a temporary basis you may apply for a visa appropriate to the purpose of your trip.’

56 The applicant engaged solicitors who wrote on her behalf to the Director, Department of Immigration and Multicultural and Indigenous Affairs on 25 May 2004. Her solicitors wrote:

‘We are the solicitors for Ms Sharon Sidhu

2. We refer to your letter dated 12.11.2003, the photocopy of which we enclose herewith for your easy reference.

3. We have studied your said letter in detail and shall be greatly obliged if you could kindly consider the following facts and review your decision:

3.1 Between 1991 and 1996 her passport shows that she held a Resident Return Visa (RRV) which was valid for 5 years, and did not contain any stipulation that she had to enter within 3 years from date of last departure.

By entering Australia in 1991 and then in 1996 (ie within the 5 year period) she fully complied with the terms of the RRV.

Any administrative error on the part of your department is not the fault of Ms. Sharon Sidhu, who merely complied with the stipulation stated on the label of her visa which was affixed to her passport.

3.2 Subsequently, on 12.9.1997 the RRV was converted to an Authority to Return (ATR) in accordance with the policy at that time.

The history of the case will show that the ATR which was granted to her originally was incorrectly cancelled and replaced by a RRV without her informed consent.

On 12.9.1997 the mistake was corrected and the ATR was reinstated in place of the RRV.

3.3 The ATR stipulates that she had to enter within 3 years from date of last departure, which she did until the ATR was cancelled vide your letter dated 12.11.2003.

3.4 The ATR was subsequently re-evidenced in 1999 by the Australian High Commission in Kuala Lumpur after she was issued with a new Malaysian passport.

3.5 At all times she fully complied with all the conditions of her permanent residence visa which she has held for almost 30 years.

4. We are making a representation to you to reinstate the Authority to Return (ATR) to Ms. Sharon Sidhu, so that her right to indefinite permanent residence in Australia is dependent on her return at least once every three years, with the time period to commence from the date of notification of the reinstatement of her ATR.’

57 The applicant has not received a reply to the matters raised by her solicitors in this letter.

58 Between 1991 and November 2003 the applicant has been absent from Australia for the following periods:

(1) Between 3 January 1991 and 23 March 1991

(2) Between 7 April 1991 and 16 October 1996

(3) Between 25 October 1996 and 17 September 1999

(4) Between 23 September 1999 and 6 June 2002

(5) Between 14 June 2002 and 15 November 2003.

59 Importantly, the applicant was absent from Australia for a period of five years between 7 April 1991 and 16 October 1996. In that regard the officer’s letter of 12 November 2003 that the applicant was absent from Australia for more than three years in those years is correct.

60 The applicant contended that, because there was no evidence from Ms Pereira to the contrary, I should infer that when on 12 September 1997 Ms Pereira evidenced the Authority to Return in the applicant’s 1994 passport she did so with full knowledge of the fact that the applicant had not entered Australia between April 1991 and October 1996.

61 I am not prepared to draw that inference. There was no evidence adduced by the applicant that on 12 September 1997 the Authority to Return was evidenced with knowledge of the fact that the applicant had not entered Australia for more than five years between 1991 and 1996. Indeed, there is evidence to the contrary. There is the letter of 12 November 2003 from the officer of the Australian High Commission who wrote that the ‘earlier re-evidence of your Authority to Return in 1997 was an administrative error on the department’s part’. There is also an internal file note of Florence Leong of 7 November 2003 which indicates that, as soon as she became aware that the applicant was not eligible for an Authority to Return as she had been absent from Australia for more than three years in the period between 1991 and 1996, she took steps to obtain the applicant’s passport for the purpose of expunging the Authority to Return. She also checked movement records to satisfy herself that the applicant had been absent from Australia for more than three years in the relevant period.

62 In my opinion, there is simply no evidence that on 12 September 1997 Ms Pereira evidenced the Authority to Return with knowledge of the fact that the applicant had been absent from Australia for a period of more than three years between 1991 and 1996. The absence of evidence from Ms Pereira to the contrary cannot be used to fill that vacuum.

63 If there had been some evidence to the effect contended for by the applicant, then the absence of evidence from Ms Pereira might more readily lead to the inference for which the applicant contended. However, the omission to call evidence from Ms Pereira could ‘not properly be treated as supplying any gap which the evidence adduced for the (plaintiff) left untouched’: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 per Kitto J at 308.

64 I am also not satisfied that the respondents were on notice that evidence should be led from Ms Pereira on that issue. The applicant’s application sought evidence that she held a Transitional (Permanent) visa. She could only be entitled to a Transitional (Permanent) visa if she held at Authority to Return or a Return Endorsement as at 1 September 1994. It is not clear then, in those circumstances, why, on the application as it was framed, the respondents needed to adduce evidence from Ms Pereira.

65 There was nothing in the applicant’s case to put the respondents on notice that the applicant asserted that the action taken on 12 September 1997 by Ms Pereira was taken deliberately and with knowledge that the applicant had not entered Australia between April 1991 and October 1996. It was not raised in correspondence with the respondents or DIMA. It was not referred to in the application or affidavits. It was not raised in the applicant’s written submissions. The respondents were never put on notice that it was a live issue that needed to be addressed. The applicant did not, at any time prior to the hearing, take issue with the respondents’ assertion in 2003 that the action of 12 September 1997 was due to administrative error. For those further reasons, it would be inappropriate to raise an inference of the kind contended by the applicant due to a failure to call Ms Pereira.

66 In my opinion, the proper inference to be drawn from the evidence which has been adduced is that the action of the Department on 12 September 1997 was, as has been claimed by the Department, an administrative error. The subsequent evidencing of a Return Endorsement on 14 September 1999 was also, in my opinion, an administrative error. So also was the placing of a further BF111 Label in her 2003 passport on 26 September 2003 an administrative error.

67 I decline to find that any officer at any time ignored a condition of a Return Endorsement or a condition of a Transitional (Permanent) visa which required the applicant, if the Return Endorsement was to remain in force or the visa was to remain in force, to enter Australia within three years of her last leaving Australia.

68 After the applicant had closed her case and during counsel’s address, counsel sought to read a further affidavit of the applicant which was directed to the question of detriment. There was no evidence in her earlier affidavit which was directed to that question.

69 I allowed the applicant to read that further affidavit. In that affidavit she said that, because of the grant of her application on 12 September 1997, she believed she held a valid Return Endorsement and therefore she did not make any application for a Subclass 155 visa. Nor did she take any action to move to Australia in order to fulfil any residential requirement for obtaining a Subclass 155 visa.

70 She deposed to other things that she would have done so as to strengthen her eligibility for such a visa. The applicant was cross-examined by the respondent’s counsel. The applicant made the mistake many witnesses make in trying to argue her case through her evidence. She was very wary of any question asked of her. She did not respond directly to the cross-examiner. She made every attempt to avoid questions asked of her. Her evidence is not very satisfactory.

71 In cross-examination she said that she believed after 12 September 1997 that she held a valid Return Endorsement because of the grant of the application at that time.

72 She said that some time after 1989 she believed that a mistake had been made cancelling the Return Endorsement and issuing the Resident Return visa and that is why she made the application to the Australian High Commission in Kuala Lumpur to evidence that Return Endorsement in her passport.

73 It was put to her in cross-examination that, if she was right to say that she did not become aware the Return Endorsement was purportedly cancelled until mid to late 1997, her action in applying for a further Residential Return visa on 20 May 1993 was inconsistent.

74 She would not admit that she had made an application for a further visa in 1993. She did admit that she must have presented her passport to enable her to obtain a further visa.

75 As already observed, the Resident Return visa granted on 20 May 1993 was issued by the Australian High Commission in Kuala Lumpur where the applicant was then residing.

76 Notwithstanding the applicant’s evidence that she has no recollection of making an application, I find that she must have made such an application and presented her passport for the purpose of having the Return Resident visa evidenced in her passport.

77 It was put to her that, in those circumstances, she must have understood that the Return Endorsement was no longer valid. Otherwise she would not have applied for a further Return Resident visa. She made every attempt to avoid answering that proposition.

78 I am satisfied that she must have known at least as early as 1993 that the Return Endorsement had been cancelled and that the Return Resident visa had been granted. Indeed, that is consistent with her evidence contained in her affidavit of 19 July 2006. She said in par 12 of that affidavit when addressing the question of the Return Endorsement being cancelled on 31 July 1989:

‘12. At that time, I did not understand that the Return Endorsement had purportedly been cancelled. I subsequently read the new document on page 18 of the 1984 Passport. It stated that it was valid from 31 July 1989 to 31 July 1994. I took it to mean that as long as I entered Australia on or before 31 July 1994, the document would be automatically renewed or replaced if I sought to enter Australia subsequently. I assumed that there was no longer any 3 year requirement from the date of the last departure.’

79 Consistently with that, the applicant applied again in May 1993 for a further Resident Return visa. That does not make the cancellation on 31 July 1989 valid.

80 The applicant applied for the second Return Resident visa in May 1993 because she must have recognised that the Return Resident visa which had been granted on 31 July 1989 would expire within the year. Clearly, she was not intending to travel to Australia at that time because she did not travel to Australia again until October 1996. Therefore, she made application for a Return Resident visa to protect her position.

81 If, on the other hand, as she asserted in her affidavit, she did not become aware that the Return Endorsement had been cancelled until 1997 then she must have known that the Return Endorsement had ceased to be in force by the time of her application in May 1993, because she had not travelled to Australia within three years of her last departure from Australia.

82 The findings which I have made are inconsistent with the broad sweep of her evidence and mean that her evidence must be treated with some caution.

83 In summary, therefore, I find that at some time prior to May 1993 the applicant was aware that the Return Endorsement had been cancelled on 31 July 1989. She was aware that she had in fact been granted a Return Resident visa which would expire on 31 July 1994.

84 She applied for a further Return Resident visa in May 1993 because she appreciated, as I have just said, that her Return Resident visa would otherwise expire.

85 It follows, therefore, that when she applied in September 1997 for evidence of her Return Endorsement she must have known that it had been cancelled on 31 July 1989.

86 That does not mean that she knew she was not entitled to the Return Endorsement. There is no evidence to that effect and I do not make a finding of that kind. The only evidence is that she applied for the reinstatement of the Return Endorsement because she believed it should not have been cancelled. I accept that evidence.

87 I also accept that she believed after 12 September 1997 that she was entitled to a Return Endorsement because a Return Endorsement had been evidenced in her passport on that day.

88 I also accept her evidence that, as a consequence, and until 12 November 2003, she did not apply for a Return Resident visa because she believed that she was entitled to enter Australia on the evidence of the Return Endorsement included in her passport.

89 It was put to her in cross-examination that she has still not applied for a Return Resident visa, notwithstanding the Department’s assertion that she is not entitled to a Return Endorsement.

90 I can understand that she would not have applied for a Return Resident visa after she commenced these proceedings in case it was thought by the Department, or, indeed, by the Court, that such an application was an acknowledgement that she knew she was not entitled to a Return Endorsement.

91 Because there is no evidence, I cannot make any finding as to why she did not make an application for a Return Endorsement after 12 November 2003 and before commencing these proceedings on 29 November 2005.

92 I am not able to find that the applicant has been disadvantaged in any application she might make for a Resident Return visa by not having applied for one in 1997. The best from the applicant’s point of view that I can find is that she has perhaps lost the chance of having applied for a Return Resident visa between 1997 and 12 November 2003.

93 For reasons which follow, in my opinion, the Department was right to advise her that she was not entitled to a Return Endorsement as from that date.

The applicant’s status

94 The respondents tendered an affidavit of their solicitor who exhibited a copy of the print-outs of the Department’s computerised records of visas granted to the applicant.

95 I have relied on the evidence which I have already referred and the contents of Mr Kennedy’s affidavit for determining the applicant’s status at various points of time.

96 Before 1 November 1979 the applicant held a statutory permission to return to Australia known as an ‘Authority to Return’, which appeared in her 1975 passport. The Authority to Return allowed entry into Australia for an indefinite period of time subject to the condition that it was valid for three years from the date of last departure from Australia.

97 On 10 January 1985 the Authority to Return in the 1975 passport was replaced by a Return Endorsement in the 1984 passport. The Return Endorsement was expressed to be valid for return travel to Australia by the holder within three years from the date of last departure from Australia. The applicant remained in Australia and complied with the conditions of the Return Endorsement from the time of its issue in 1985 until 1989.

98 On 31 July 1989 when the applicant returned to Australia from an overseas holiday the Return Endorsement in her 1984 passport was purportedly cancelled by an officer who was purportedly acting in accordance with the then existing Departmental policy. That officer issued the applicant with a Return Resident visa that was valid for a period of five years until 31 July 1994.

99 The applicant tendered Migrant Series Instruction (MSI392: Resident Return visas), which was a Departmental instruction issued on 10 May 2004.

100 The Departmental instruction says:

‘11.1.1 When the current resident return visa system was introduced in January 1987, it was announced that old-style return visas such as ATRs and REs would be phased out during a three-year "transitional period", ending in December 1989. Accordingly:

● Holders of ATRs and REs were encouraged to exchange their ATR or RE, without charge, for either a five-year RRV or an RRV valid for the life of their passport (whichever period was less). The old ATR or RE stamps were to be stamped as "cancelled" at the time of issuing the replacement RRV.

● The intention was that any remaining ATRs and REs would be cancelled by instrument in December 1989.

● The above information was widely publicised throughout the transitional period and in subsequent client information.

11.1.2 Cancellation by instrument at the end of the transitional period did not occur as intended. However, some offices (sic) continued to cancel ATRs and REs after the transitional period ended in December 1989.’

101 For the purpose of these proceedings, the respondents accepted that the cancellation of the Return Endorsement in July 1989 was ineffective. That concession would appear to be consistent again with the contents of MSI392:

‘11.2.1 Some cancellations of ATRs and REs were considered to have been unlawful as they were not done with the client’s informed consent. Many of those cancellation decisions have been "set aside" or "voided", having the effect of reinstating the ATR or RE.

11.2.2 This administrative action is based on what has become known as the "Kawasaki principle" which resulted from a Full Federal Court decision in 1991 in which the judges found that a legally flawed decision could, with the agreement of the client, be administratively "set aside" or "voided" to avoid wasting the time and resources of the courts.

11.2.3 We expect that most unlawfully cancelled ATRs and REs have now been reinstated. Nevertheless, there may still be instances where a client will request the reinstatement of their cancelled ATR or RE.’

102 The applicant argued that the cancellation was void ‘ab initio’. She argued that an administrative decision involving jurisdictional error lacks legal foundation and can be regarded as no decision at all. In that regard, the applicant’s counsel relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2001) 209 CLR 597 (‘Bhardwaj’). The effect of the High Court decision in Bhardwaj was explained by the Full Court of this Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 204 ALR 55. In that case, Gray and Downes JJ addressed the reasoning of the members of the High Court and said at [40]:

‘This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaundron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.’

103 They concluded at [42]:

‘In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-9; [1998] HCA 28; 153 ALR 490 at 515:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’

104 Kenny J said at [64]:

‘For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117 (Bhardwaj) is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant’s submissions in so far as they are to the contrary effect.’

105 The applicant did not identify those provisions of the Act which would make the decision void ab initio. However, in view of the respondents’ concession, which was rightly made, I need not further explore that matter. Whether the decision was ineffective or void ab initio, the Return Endorsement was not cancelled on 31 July 1989. So much is agreed by the parties.

106 The applicant argued that the issue of the Return Resident visa on 31 July 1989 was also invalid. I am not sure that necessarily follows but I think, in the end, nothing turns on that because the Return Resident visa would have expired, in relation to the first one issued, in 1994 and, in relation to the second, on 21 May 1998.

107 As at 31 July 1989 the applicant continued to hold a Return Endorsement permitting multiple entry into Australia and the statutory permission to remain in Australia indefinitely, subject to the condition that the visa remained valid only for three years from the applicant’s last departure from Australia.

108 The applicant next entered Australia on 23 March 1991 and departed on 7 April 1991.

109 If the cancellation of the Return Endorsement was ineffective or void ab initio, the departure on 7 April 1991 meant that she needed to re-enter Australia within three years of the date of her last departure. She therefore needed to re-enter Australia by 7 April 1994 otherwise the Return Endorsement ceased to be valid. As has already been observed, the applicant did not enter Australia again until 16 October 1996. It follows that unless there was some supervening event, the Return Endorsement ceased to be valid on 7 April 1994.

110 As has already been noticed, on 1 September 1994 the Transitional Regulations deemed a non-citizen who held a Return Endorsement to have been granted a Transitional (Permanent) visa.

111 The applicant recognised that she had not entered Australia within the three years as required by the condition of the Return Endorsement and, as such, was not able to return to Australia after 7 April 1994 relying upon that Return Endorsement. However, she argued that she still held a Return Endorsement because, pursuant to the provisions of s 11A, the Return Endorsement itself had not otherwise ceased to be in effect or had been validly cancelled. It was submitted that whilst the Return Endorsement was of no utility after 7 April 1994, it still existed. It was submitted that, therefore, as at 1 September 1994 when reg 9 of the Transitional Regulations took effect, immediately before that date, the applicant held a Return Endorsement, because reg 9 did not require that a person hold an Authority to Return or a Return Endorsement that was ‘in effect’.

112 In my opinion, that argument must be rejected. Section 11A of the Migration Act authorises an officer to grant to a person a Return Endorsement which would allow a person to enter Australia ‘on any number of occasions while it remains in force’. Section 11A(2) speaks of the visa continuing in force in the period specified. It follows that, where the period specified has expired, in this case three years after the applicant’s last departure, on 7 April 1994, the Return Endorsement is no longer in force. Because the Return Endorsement was no longer in force the applicant did not after 7 April 1994 hold a Return Endorsement.

113 It is explicit in reg 9 that the non-citizen must hold an Authority to Return or a Return Endorsement for reg 9 to operate. It is implicit in reg 9 that the visa referred to in reg 9(b) is valid and in force as at 1 September 1994. If it were otherwise, any Return Endorsement that had expired at any time prior to 1 September 1994 would qualify to provide ‘the holder of the Return Endorsement’ with a Transitional (Permanent) visa. Indeed, the applicant was forced to contend that reg 9(b) applied to all Authorities to Return and Return Endorsements which were granted prior to 1 September 1994 including all Authorities to Return and Return Endorsements that might have ceased to be in force more than 15 years before.

114 There are two other provisions of the Migration Act which are inconsistent with the applicant’s contentions in this regard. The Amending Act also provided for the inclusion of s 11B in the Migration Act. Section 11B of the Migration Act provided that a Return Endorsement could be cancelled at any time by the Minister or an authorised officer.

115 If the applicant’s argument were correct it would mean that, notwithstanding a person’s Return Endorsement had been cancelled by the Minister or an authorised officer, the Return Endorsement would by force of reg 9 of the Transitional Regulations become a Transitional (Permanent) visa.

116 The applicant’s contention is also inconsistent with s 82(5) of the Migration Act. That subsection provides:

‘(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:

(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.’

117 The visa ceases to be in effect at the end of the period. A ‘visa’ is defined in s 5 to include an old visa. An ‘old visa’ is defined in s 5:

‘old visa means a visa, document, or notation, that:

(a) permits a person to travel to Australia; and
(b) was issued before 1 September 1994; and
(c) has not been cancelled or otherwise stopped being in effect.’

118 In my opinion, an old visa which has ceased to be in effect is not a visa to which reg 9 of the Transitional Regulations could relate. A person cannot, in my opinion, hold a visa which has ceased to have effect. Section 77 of the Migration Act provides that ‘a non-citizen holds a visa at all times during the visa period for the visa’. It would follow that a person does not hold a visa after the period has expired.

119 In my opinion, the applicant’s argument that the applicant’s Return Endorsement became a Transitional (Permanent) visa by operation of reg 9 of the Transitional Regulations must be rejected.

120 That really is an end to the matter. The application before the Court was for the issue of the constitutional writs to evidence the applicant’s Transitional (Permanent) visa.

121 On the applicant’s own case she was never entitled to a Transitional (Permanent) visa because she did not hold a Return Endorsement as at 1 September 2004. She lost her entitlement to her Return Endorsement on 7 April 1994 and therefore never became entitled to a Transitional (Permanent) visa on 1 September 2004.

122 However, the applicant argues that what was done on 12 September 1997, when she was given evidence of a Return Endorsement to which she was not entitled, in some way gives her an entitlement to that Return Endorsement.

123 It was put that because Ms Pereira did what she did on 12 September 1997 the first respondent has waived or is otherwise estopped from denying that the applicant is entitled to a Transitional (Permanent) visa.

124 If that is the case, then the respondents must have done two things. First, the respondents must have waived the condition in the Return Endorsement that the applicant must return to Australia within three years of her last departure, namely, 7 April 1994. Secondly, the first respondent must have waived the condition precedent in reg 9 of the Transitional Regulations that a Transitional (Permanent) visa only issue to those who are entitled to an Authority to Return or Return Endorsement as at 1 September 2004.

125 Two grounds are put forward. The applicant contends that the respondents have waived the three year requirement. Alternatively, it is contended that the respondents are estopped or otherwise restrained from denying the validity of the Return Endorsement. The appellant contended that another way of putting the second argument is that ‘the respondents are bound to satisfy a substantive legitimate expectation held on behalf of the Applicant that she is the holder of a Transitional (Permanent) visa on conditions set out in her earlier label’. However, in respect of that alternative submission, the applicant ‘conceded ... that this latter format of the ground of review is not yet part of Australian law’.

126 That concession, I think, also has been rightly made. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, McHugh and Gummow JJ said at [67] that McHugh J’s dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, in which he said that administrative decision makers must accord parties procedural fairness including bringing to that party’s attention the issue on which the decision is likely to turn so as to allow the party to deal with it, meant that there was no need for any doctrine of legitimate expectation and should be accepted as representing the law of Australia. See also Hayne J at [121] and Callinan J at [148]. For the reasons given by Finn J in Rush v Commissioner of Police [2006] FCA 12, the doctrine of substantive legitimate expectation is not presently part of Australian law. I need, therefore, say no more about the ‘other way’ of putting the estoppel argument.

Waiver

127 The applicant contends that there are four circumstances which gave rise to a waiver. In her counsel’s written outline it was contended:

‘The combined effect of:

(1) the applicant’s entry into Australia on 16 October 1996;

(2) the setting aside of the 1989 cancellation in September 1997;

(3) the placement of evidence of her Return Endorsement in her relevant passports in September 1997 and 1999; and

(4) her subsequent entries to Australia pursuant to that Return Endorsement

amount to a "waiver" (in a lay person’s sense) by the Respondents of the requirement that the applicant enter Australia within three years of her departure on 7 April 1991.’

128 I am not sure what is meant by ‘waiver (in a lay person’s sense)’. Nor was it explained. The applicant’s submission was that the condition that the applicant return to Australia within three years of her departure on 7 April 1991 was waived by the four circumstances mentioned above.

129 ‘Waiver’ is an imprecise term: The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (‘Verwayen’) per Mason CJ at 406 and Dawson J at 451-452. It has been described as a vague term used in many senses: Smyth & Co v Bailey & Co [1940] 3 All ER 60 per Lord Wright at 70. It may be that the term is now used only to describe two legal concepts; election and estoppel, although there is support for a broader scope: see Toohey J in Verwayen at 468 and McHugh J at 491.

130 It was not made clear in this case how it is said that waiver applies separate to the argument that an estoppel arose.

131 It was, however, conceded that if waiver was to apply at all it could only apply where there had been a deliberate decision by the decision maker to ignore the condition attaching to the Return Endorsement. Whatever the concept of waiver, that concession was rightly made: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305; Verwayen at 406, 473, 485 and 498.

132 The four circumstances relied upon by the applicant do not, in my opinion, support a finding, either individually or collectively, that any officer of DIMA deliberately waived the condition that the applicant enter Australia within three years of her departure on 7 April 1991.

133 I think the first circumstance should be understood as the act by an officer of DIMA permitting the applicant to enter Australia. The applicant’s own conduct could not amount to a waiver.

134 The applicant entered Australia on 16 October 1996 using a passport which had included in it a Return Resident visa (Class 155) which was issued on 21 May 1993. That Return Resident visa entitled the applicant, on the face of it, to multiple travel to Australia until 20 May 1998. When that passport was presented to an officer in Australia on 16 October 1996, any officer reading that endorsement would understand that the applicant was entering Australia under the permission of that visa. No officer would have assumed that she was travelling under the Return Endorsement marked on page 11 of the 1984 passport because that had been stamped ‘CANCELLED’.

135 As I have said, the 1989 cancellation was set aside on 12 September 1997. For the reasons I have already given, that was due to administrative error and was not a deliberate act on the part of that officer to waive the condition that the applicant must enter Australia within three years of her departure on 7 April 1991.

136 It follows that the placement of evidence of her Return Endorsement in the relevant passport in September 1997 and 1999 were also not deliberate acts on the part of any officer to waive that same condition.

137 The applicant’s subsequent entries to Australia were under the permission of that Return Endorsement but that takes the matter nowhere. The evidence of those Return Endorsements had been made in error. The fact that she relied upon that error does not constitute any evidence of waiver on the part of any officer of the Department.

138 The circumstances relied on by the applicant occurred more than three years after the Return Endorsement ceased to be in force. Those circumstances could never retrospectively waive the condition attaching to the Return Endorsement in 1994. In particular, the circumstances could not reverse a Return Endorsement which ceased to be in force on 7 April 1994.

139 In my opinion, the applicant’s claim, insofar as it is based on waiver, must fail.

Estoppel

140 The grounds of the application in the amended application are:

‘2. The Respondents are estopped, or otherwise prohibited by operation of law, from denying that the Applicant is the holder of a Transitional (Permanent) Visa.

Particulars

2.1 The Applicant repeats the particulars in paragraphs 1.1 to 1.6 above.

1.1 On 1 November 1979, the Applicant was deemed to be the holder of a "Return Endorsement" duly granted under paragraph 11A(1)(b) of the Migration Act 1958-1979 (Cth) and subsection 9(3) of the Migration Amendment Act 1979 (Cth).

1.2 The Return Endorsement was expressed to continue in force until the expiration of 3 years from the date of the last departure from Australia.

1.3 On 7 April 1994, a period of three years from the date of the Applicant’s last departure from Australia elapsed.

1.4 On 16 October 1996, the Applicant entered Australia and departed on 25 October 1996.

1.5 On 12 September 1997, the Senior Migration Officer, Australian High Commission, Kuala Lumpur placed evidence of the Applicant’s Return Endorsement in her then current passport.

1.6 Between 17 September 1999 and 23 September 1999, and 6 June 2002 and 14 June 2002, the Applicant entered, remained and subsequently departed Australia.

2.2 In the premises:

(a) the Respondents are estopped from denying that, immediately before 1 September 1994, the Applicant was the holder of a Return Endorsement; or

(b) alternatively, the Applicant held a substantive legitimate expectation that she was, immediately before 1 September 1994, the holder of a Return Endorsement and it would be abuse of power for the Respondent to not be bound to fulfil that expectation.

2.3 The Applicant repeats paragraphs 1.8 and 1.9 above.

1.8 By operation of law, the Applicant is taken to have been granted a Transitional (Permanent) Visa on 1 September 1994, pursuant to reg 9 of the Migration Reform (Transitional Provisions) Regulations.

1.9 On 12 November 2003, the Second Secretary (Immigration), Australian High Commission, Kuala Lumpur, wrongfully refused to give the Applicant evidence of her visa in her then current passport.’

141 I have already dealt with the argument in 2.2(b) which leaves me to consider the argument in 2.2(a).

142 In the applicant’s outline, it was contended:

‘27. The Applicant assumed that she would be entitled to re-enter Australia as long as she did so within three years of her previous visit, and be entitled to stay indefinitely. In the circumstances, it is reasonable to infer that the Applicant held such an assumption: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 30-32 [90]- [92], 47 [145].

28. This assumed state of affairs was based upon the conduct or representation of the First Respondent (or her agents) in 1997 and onwards. If the assumption is not fulfilled, the Applicant will suffer detriment.’

143 The argument needs to be considered at two snapshots in time. If the applicant assumed that she would be entitled to re-enter Australia, as long as she did so within three years of her previous visit and be entitled to stay indefinitely, as at 7 April 1994 she must have known that that entitlement would cease on that day. It follows that she must have known prior to 1 September 1994 that she was no longer entitled to a Return Endorsement as at 1 September 1994.

144 The estoppel which is sought to be erected by the applicant is an estoppel that did not arise until 12 September 1997, after she had lost an entitlement to a Return Endorsement and therefore a Transitional (Permanent) visa.

145 It follows, therefore, that if at any time between 7 April 1994 and 12 September 1997 the applicant entered Australia she could not have entered Australia on the authority of the Return Endorsement.

146 She seeks to erect an estoppel by a representation that she is entitled to a Return Endorsement which, on her assumption, would have ceased to be effective on 7 April 1994. For reasons I have given, the Return Endorsement had ceased to be effective before 12 September 1997.

147 The applicant’s argument is that the act of the officer on 12 September 1997 in evidencing the Return Endorsement in her passport revived an entitlement to a status which had ceased on 7 April 1994.

148 The estoppel which is contended for has the purport of granting to her a Return Endorsement in circumstances not permitted by reg 9 of the Transitional Regulations. There is no discretion reposing in any officer of the Department to grant the applicant a Return Endorsement or a Transitional (Permanent) visa. No act was done prior to 1 September 1994 that would have permitted her to claim the benefit of the Transitional (Permanent) visa under reg 9 of the Transitional Regulations. It must follow that what then is sought by the applicant is an estoppel contrary to the provisions of reg 9. That, in my opinion, is impermissible because it would create a power in the Minister or an officer to do an act which is ultra vires the Migration Act and the Transitional Regulations. It would have the effect of contradicting the Transitional Regulations.

149 In Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98, Davies and Branson JJ said at 107:

‘Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute.’

150 In Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J at 208 said:

‘As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter’s power which would have the effect of altering the previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.’

151 He later approved what he described as a generally accepted proposition in Halsbury’s Laws of England (4^th ed), Volume 44 ‘Statutes’, par 949:

‘Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.’

152 In Minister for Immigration & Ethnic Affairs v Petrovski (1997) 73 FCR 303, the respondent was born in Australia to a father who was then a consular officer in Australia of the Republic of Yugoslavia. He was born in 1969. In 1971 he returned to Yugoslavia.

153 In 1984 he was issued with an Australian passport by the Australian Embassy in Belgrade and in 1990 he was issued with a second Australian passport by the same Embassy. He entered Australia twice in 1991 and 1992 on that second passport. On each occasion his passport was stamped with an arrival stamp. When he later applied to sponsor his Thai born wife and her child for permanent resident status when he was told that he was not, and never had been, an Australian citizen. He argued that he was entitled to the issue of an Australian passport and that the Minister was estopped so as to compel the Minister to grant him Australian citizenship. Burchett J said at 308-309:

‘Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold from estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration & Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.’

Counsel for the Applicant:	Mr S D Ower

Solicitor for the Applicant:	McDonald Steed McGrath

Counsel for the Respondents:	Mr C Horan

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	3 and 4 October 2006

Date of Judgment:	9 February 2007