Minister for Immigration & Ethnic Affairs v Marjan Petrovski [1997] FCA 154 (12 March 1997)

CATCHWORDS

ADMINISTRATIVE LAW )

MIGRATION ) - Whether a person wrongly issued an Australian passport who came to Australia on the faith of it and married could claim an estoppel against the Australian Government in an application for Australian citizenship - unavailability of estoppel against a statute or to control the performance of a statutory discretion - effect of a passport - whether stamps in passport amounted to a valid entry permit - effect of birth in Australia of son of a diplomat of a foreign power - whether amendments to Australian Citizenship Act 1901 were retrospective in effect.

Acts Interpretation Act, s 8

Australian Citizenship Act 1948 , ss 5(3)(e), 5A, 10, 13

Migration Act 1958 , s 14, 34

Passports Act 1938 , s 7, 7A, 8

Lesa v Attorney-General of New Zealand [1983] 2 AC 20

Attorney-General (NSW) v Quin (1990) 170 CLR 1

R v Brailsford [1905] 2 KB 730

Joyce v Director of Public Prosecutions [1946] AC 347

Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114

Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416

Rubrico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 23 FCR 208

Roberts v Repatriation Commission [1992] FCA 642; (1992) 39 FCR 420

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98

Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117

Gowa v Attorney-General (1985) 1 WLR 1003

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629

Air Caledonie International v The Commonwealth (1988) 165 CLR 462

Heckler v Community Health Services of Crawford County Inc. [1984] USSC 103; (1984) 467 US 51

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188

Rodway v The Qeen [1990] HCA 19; (1990) 169 CLR 515

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS -V- MARJAN PETROVSKI

NG 618 of 1996

Burchett, O'Loughlin and Tamberlin JJ

Sydney

12 March 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 618 of 1996

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Appellant

AND: MARJAN PETROVSKI

Respondent

CORAM: BURCHETT, O'LOUGHLIN and TAMBERLIN JJ

PLACE: SYDNEY

DATED: 12 MARCH 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of the primary judge are set aside.

3. The decision of the Administrative Appeals Tribunal is confirmed.

There will be no orders as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 618 of 1996

)

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Appellant

AND: MARJAN PETROVSKI

Respondent

CORAM: Burchett, O'Loughlin and Tamberlin JJ.

PLACE: Sydney

DATE: 12 March 1997

REASONS FOR JUDGMENT

BURCHETT J.:

This is an appeal in a case brought primarily to test the effect of the issue, by some extraordinary oversight, of an Australian passport to a Serbian citizen, who, for his part, had applied for it honestly and without any attempt to conceal the facts.

Mr Petrovski was born in Australia on 12 November 1969, during the brief term of four years which his father served as Yugoslav Consul- General in this country. In 1971, he returned with his mother to the then Yugoslavia, where he grew up. Because of his birth here, he assumed that he was an Australian citizen. Accordingly, when he was fifteen years of age, he produced his birth certificate at the Australian Embassy in Belgrade, together with the appropriate photographs and fee, requesting the issue of an Australian passport. There were at least two difficulties about this request. One was the minority of the person making it, which should have raised questions under s 7A of the Passports Act 1938 . The other was the clear disclosure, on the face of the birth certificate, of his father's position as Consul-General for Yugoslavia at the date of his birth, which should have led to the refusal of the application on the ground that Mr Petrovski was not an Australian citizen. For s 10 of the Australian Citizenship Act 1948 , as it stood at that date, contained the following provisions:

"(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

(2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father -

(a) was not an Australian citizen;

(b) was not ordinarily resident in Australia; and

(c) was -

(i) a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen's dominions or with international organizations); or

(ii) a consular officer of a foreign sovereign power."

The phrase "not ordinarily resident in Australia" clearly caught a diplomatic officer of a foreign power, save in very unusual circumstances, because s 5(3)(e) of the same Act provided that a person "shall be deemed not to be so resident if he resides in [Australia] for a special or temporary purpose only".

The acquisition of citizenship by birth in Australia gives statutory recognition to ancient principle: Blackstone, Commentaries on the Laws of England, vol. I, chap. 10; Holdsworth, History of English Law (3rd ed., 1966), vol. IX, p. 75; article by John W. Salmond, Citizenship and Allegiance, (1902) 18 LQR 49. But, equally, it has long been recognized that a child of a diplomatic representative of a foreign state does not acquire citizenship by birth in the realm to which his father has been accredited: Lesa v Attorney-General of New Zealand [1983] 2 AC 20 at 31.

Just over five years after the issue of the passport, which had then expired, Mr Petrovski sought its renewal, again at the Australian Embassy in Belgrade. A new passport was issued, on which he travelled to Australia, arriving here on 21 September 1991 after having spent some time in London learning English. Entry into Australia presented no problems, his passport being accepted in the normal way and duly stamped with a record of his entry.

In Australia, Mr Petrovski met a Thai citizen, whom he married on a subsequent visit to Bangkok in October 1992. Returning to Australia on 7 November 1992, without any question being raised when he presented his Australian passport yet again, Mr Petrovski made application to sponsor his wife and her daughter for permanent residence in Australia. He was then, for the first time, informed that his Australian citizenship was not accepted.

After seeking legal advice, Mr Petrovski made application under the Australian Citizenship Act 1958 for a grant of Australian citizenship pursuant to s 13. His application was refused. It is common ground that the only difficulty about it lay in the requirement of s 13(1)(a) and (d) of permanent residence. But this was said to raise an insuperable obstacle, since s 5A of the Australian Citizenship Act excluded from the definition of a permanent resident a person who was during any relevant period "an illegal entrant" as defined in s 14 of the Migration Act. By that s 14, it was at the relevant time provided:

"(1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorised by section 17."

(Section 17 was irrelevant to the present case.)

Mr Petrovski sought review by the Administrative Appeals Tribunal of the decision that these provisions required the rejection of his application. Before the Tribunal (which affirmed the decision), and then on appeal to a judge of the Court (who declared that he was not an illegal entrant and remitted the matter for further consideration), Mr Petrovski contended that the issue of the two passports to him constituted a representation as to his status which estopped the Australian Government from relying on the application of s 14 of the Migration Act 1938 . Reference was made to the dictum of Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18.

On the Minister's appeal to this Court, the question whether Mr Petrovski was an "illegal entrant" remains, in my opinion, at the heart of the case. I have had the opportunity to consider the reasons to be delivered by O'Loughlin J, but I cannot myself regard the amendments to which his Honour refers as operative in respect of Mr Petrovski, who was born before they were enacted. The suggested construction would disturb settled rights in other cases.

At common law, the issue of a passport is an exercise of the royal prerogative by which the protection of the Crown is extended to the citizen who travels abroad: Halsbury's Laws of England 4th ed. vol. 18, para. 1412. Lord Alverstone CJ described a passport in R v Brailsford [1905] 2 KB 730 at 745 as "a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries." In Australia, the issue of passports is regulated by the Passports Act, but their nature remains unchanged. Section 7 provides that Australian passports "shall be issued in the name of the Governor-General".

The issue of a passport is not a grant of citizenship. This was accepted as beyond question in Joyce v Director of Public Prosecutions [1946] AC 347, where the effect of the issue of a British passport to a person who was not a British citizen was minutely examined. In the statement of the facts by Lord Jowitt LC and Lord Porter, which is reproduced at 348 et seq, it is made clear that the assumption that William Joyce "was at all material times a British subject" was proved to be incorrect; and it was not suggested that the assumption had been raised to a reality from 1933 when he was granted a British passport. William Joyce (the infamous "Lord Haw-Haw", who broadcast Nazi propaganda during World War II) was not hanged for treason committed as a British subject, but as "an alien ordinarily resident within the realm", to use the language of Lord Jowitt LC at 367. While he was such an alien, he applied for and obtained a British passport, and his fatal possession of that passport continued his allegiance to the British Crown even in Germany. Lord Jowitt LC said (at 369-370):

"The material facts are these, that being for long resident here and owing allegiance he applied for and obtained a passport and, leaving the realm, adhered to the King's enemies. ... [T]he possession of a passport by one who is not a British subject gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed. It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession of that document he is enabled to obtain in a foreign country the protection extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound him to his sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King for himself while abroad."

While Joyce v Director of Public Prosecutions is thus authority for the ineffectiveness of a passport to confer citizenship, it is equally authority that the issue of a passport to one who is in law an alien is not a nullity. Until revoked, the passport is an operative document. Lord Jowitt LC says that it "gives ... rights and imposes upon the sovereign obligations which would otherwise not be given or imposed". Lord Porter, who dissented from the dismissal of the appeal, nevertheless regarded the appellant (as he made clear at 374-375) as an alien who, while he held a British passport, would have been entitled to the protection of the Crown.

In my opinion, it is wrong to say that when Mr Petrovski entered Australia, or when he re-entered Australia after visiting Bangkok, he did so illegally. On the contrary, he did so by virtue of a passport issued in the name of the Governor-General, which remained valid and effective unless and until lawfully cancelled. Provision is made in s 8 of the Passports Act 1948 for the cancellation of an Australian passport by the Minister or by an authorized officer, so that the passport then "becomes void". Nothing in that Act suggests that a passport can be retrospectively cancelled.

I do not think the Migration Act should be read in isolation and so as to ignore the Passports Act. The Passports Act assumes the normal operation of a passport in the approved form, for which provision is made by s 7(2). In accordance with that form, Mr Petrovski's passport contained the following general request:

"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 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."

I do not think anything in the Migration Act should be read as countermanding the authority of such a request made by the Governor- General pursuant to statute. However, as I have said, the passport does not confer a grant of citizenship. And if a person who is not a citizen makes an application under the Australian Citizenship Act for a grant of citizenship, he must, of course, comply with the requirements of that Act. Mr Petrovski did not enter Australia illegally, but he was nevertheless at the time he made his application for Australian citizenship an "illegal entrant" within the special meaning of those words which the legislation made relevant to the ascertainment of whether or not he was "a permanent resident" for the purposes of s 13 of the Australian Citizenship Act. On that basis, his application was bound to fail.

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 for an 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 and Ethnic Affairs [1989] FCA 90; (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission [1992] FCA 642; (1992) 39 FCR 420 at 425; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117.

Although an estoppel will not be enforced in these circumstances, there is no doubt about the duty of administrators to take account of the unfairness, and even misery, that serious mistakes in the actions of government may cause. In the present case, some years of Mr Petrovski's life may have been wasted, and he may have contracted a marriage involving grave, possibly even insoluble, problems for the establishment of a marital home. It is accepted that at all times he acted in good faith. It may well be that if he had not been misled at the age of fifteen by what appears to have been nothing less than administrative incompetence on the part of an Australian official, he would long ago have been received as a migrant into Australia in the normal course. In those circumstances, it is to be hoped that it will be found possible to take urgent steps to find a remedy for Mr Petrovski's plight. In the absence of any public interest consideration adverse to him (and none was suggested at any stage of this case), it is plainly in the public interest that a person who has acted on the faith of an instrument as serious as a passport issued by the Australian Government should not find his faith misplaced: cf. Gowa v Attorney-General (1985) 1 WLR 1003 at 1011; Attorney- General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 638. The attention of the Minister should be drawn to this matter.

In my opinion, the appeal should be allowed, but in the special circumstances it would not be right to order the respondent to pay the costs of a clarification of the law required as a result of the mistaken issue to him of an

Australian passport. There should be no order as to the costs of the appeal.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 12 March 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 618 of 1996

)

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

B E T W E E N:

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Applicant

- and -

MARJAN PETROVSKI

Respondent

REASONS FOR JUDGMENT

Coram: Burchett, O'Loughlin, Tamberlin JJ

Place: Sydney

Date : 12 March 1997

O'LOUGHLIN J: The applicant, the Minister for Immigration and Ethnic Affairs has appealed from a judgment of a single judge of this Court. In the Court below, it had been decided that the respondent, Marjan Petrovski, should be deemed, in September 1991 and November 1992, to have been the holder of valid entry permits to enter Australia. That decision meant that Mr Petrovski had not been an illegal entrant at the time of those entries and that he was thereby eligible to apply for Australian citizenship.

Mr Petrovski was born in Sydney on 12 November, 1969 when his father was the Yugoslav Consul-General. He left Australia for Yugoslavia with his mother in 1971 and his father followed a year later when his tour of duty had finished. In 1984, when he was fifteen, Mr Petrovski applied for and obtained an Australian Passport. It expired in 1989 but in 1990 he applied for and obtained a second passport. Both passports were issued by the Australian Embassy in Belgrade. Since leaving Australia in 1971 and until the time of his acquisition of his second passport Mr Petrovski had continuously resided in Yugoslavia.

On 21 September 1991, using his second Australian passport, Mr Petrovski arrived in Australia. In May 1992 he met his future wife, a Thai national, who was visiting Australia. In October of that year he followed her to Bangkok where they were married. He returned to Australia on 7 November 1992, once again using his Australian passport. Shortly thereafter, he applied to sponsor his wife and her daughter for permanent residence in Australia. The response from the Department of Immigration, Local Government and Ethnic Affairs by letter dated 21 July 1993 included the following statements:-

"Dear Mr Petrovski

It has come to the notice of this Department that at the time of your birth in Australia on 12 November 1969, your father was a Consular officer at the Yugoslav Consulate in Sydney. Section 10(2)(c) of the Australian Citizenship Act 1948 provided at that time:

"a person shall not be an Australian by virtue of this section if, at the time of his birth, his father was -

(i) a person who was entitled in Australia to any immunity from suit or legal process by virtue of any law relating to diplomatic privileges and immunities; or

(ii) a consular officer of a foreign power."

I must therefore advise that you are not, and never have been an Australian citizen. The Australian passport issued at the Australian Embassy, Belgrade was issued in error, and should be surrendered."

Mr Petrovski and his legal advisers accepted the assertion in the Department's letter that he was not an Australian citizen. He therefore proceeded to lodge an application for citizenship on the grounds (inter alia) that he was a permanent resident who had been present in Australia for a period of not less than one year during the period of two years immediately preceding the date of his application. In that application he gave as his citizenship the answer "Serb". The Department wrote him on 18 April 1994 saying:-

"I am writing to advise you that your application for Australian citizenship has not been approved.

Section 13(1)(a) of the Australian Citizenship Act 1948 provides that applicants for the grant of Australian citizenship must satisfy the Minister that they are a permanent resident in Australia.

An officer of this Department delegated by the Minister has carefully assessed your application but has determined that you do not satisfy this requirement. Your application has therefore been refused."

Later, in response to a request for a "Statement of Reasons", the Minister's delegate wrote:-

"At the time he lodged his application for Australian citizenship, Mr Petrovski had the status of illegal entrant. As such he does not meet the requirement of Section 13 (1) (a) of the Australian Citizenship Act 1948 that requires he satisfies [sic] the Minister he is a permanent resident of Australia."

An application to the Administrative Appeals Tribunal ("the Tribunal") to review the delegate's decision was unsuccessful. The proceedings before the Tribunal, as well as in the Court below, were conducted upon the premise that Mr Petrovski was not an Australian citizen but was a person seeking Australian citizenship. The Tribunal's finding was as follows:-

"When Mr Petrovski entered Australia on 7 November 1992 he was not a citizen, he did not hold a "valid entry permit" being a permit that was granted under the Migration Act and he did not hold a visa. He was therefore an illegal entrant as defined in s 14 of the Migration Act. It was conceded by counsel for the applicant that a person may not be a permanent resident if he was an illegal entrant."

On appeal, Mr Petrovski was successful, his Honour holding that he was entitled to be recognised as a permanent resident. His Honour said:-

"My view is that the stamps in the second passport in 1991 and 1992 and the consequential permissions to enter amounted to, or should be deemed to have been, approved and valid entry visas or entry permits to Australia..."

In my opinion these proceedings have been misconceived. They were commenced, prosecuted and decided upon the assumption that the status of Mr Petrovski's citizenship was decided irreversibly by the legislation as it existed at the time of his birth. The matter seems to have proceeded upon the premise that subsequent amendments to the legislation are of no consequence and have no effect upon Mr Petrovski's original status.

To understand the evolution of this problem it is necessary to trace through the legislation. The commencing point is s 10 of the Nationality and Citizenship Act (Cth) ("the 1948 Act"). It provided as follows:-

"10. (1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

(2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth -

(a) his father was not an Australian citizen and possessed the immunity from suit and legal process which is accorded to an envoy of a foreign country accredited to His Majesty; or

(b) his father was an enemy alien and the birth occurred in a place then under occupation by the enemy."

In summary terms it can be seen that, prima facie, birth in Australia gave a person citizenship. However, that prima facie proposition did not extend to those whose father was a diplomat or an enemy alien.

Section 10 of the 1948 Act was amended by the Nationality and Citizenship Act 1966 (Cth) ("the 1966 amending Act"). Sub- section 4(1) of the 1966 amending Act omitted sub-s 10(2) of the 1948 Act and replaced it with sub-ss (2) and (3). Those sub-sections provided as follows:-

"(2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father -

(a) was not an Australian citizen;

(b) was not ordinarily resident in Australia; and

(c) was -

(i) a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen's dominions or with international organizations); or

(ii) a consular officer of a foreign sovereign power.

(3) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father was an enemy alien and the birth occurred in a place then under occupation by the enemy."

The 1966 amendments extended the excluded class but nevertheless retained the broad-based concept of excluding from citizenship those persons whose fathers enjoyed diplomatic immunity or were enemy aliens. Nevertheless, as the class of person who had been excluded from citizenship notwithstanding birth had been broadened, it was necessary to protect those who had been born before the 1966 amendment commenced: 6 May 1966. It was necessary, in other words, to ensure that the 1966 amending Act did not have retrospective effect. Accordingly sub-s 4(2) of the 1966 amending Act contained this provision:-

"(2) The amendment made by the last preceding sub-section does not apply in relation to a person born before the commencement of this section."

Thus those who were entitled to citizenship under the law as it stood prior to the commencement of the 1966 amending Act retained that entitlement even though the qualifications of some of them would not give citizenship after that date.

The next change occurred in 1984. Amendments were made by the Australian Citizenship Amendment Act 1984 (Cth) ("the 1984 amending Act") to s 10 of the 1948 Act (as amended by the 1966 amending Act). The reference to "father" was removed and replaced by a reference to a "parent of the person". Next, entitlement to citizenship was expressed to be related to a person who was the child of an Australian citizen or permanent resident even though that child's other parent enjoyed diplomatic status or was an enemy alien.

Once again, as was the case with the 1966 amending Act, there was legislative provision ensuring that the amending legislation did not affect pre-existing rights. Sub-section 39(2) of the 1984 amending Act stated that the amendments to s 10 "apply to a person born after the commencing day". The commencing day was 22 November 1984. If, therefore, a person who was born before 22 November 1984 was not entitled to Australian citizenship under the 1948 Act as amended by the 1966 amending Act, he or she could not gain citizenship as a result of the 1984 amending Act - that last mentioned Act only applied to persons who were born after 22 November 1984. Section 10, following upon the amendments that were made by the 1984 amending Act then read as follows:-

"10(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian Citizen.

(2) Subject to sub-section (4), a person shall not be an Australian Citizen by virtue of this section if, at the time of his birth, a parent of the person -

(a) was not an Australian citizen;

(b) was not a permanent resident; and

(c) was

(i) a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen's dominions or with international orgainzations); or

(ii) a consular officer of a foreign sovereign power.

(3) Subject to sub-section (5), a person shall not be an Australian citizen by virtue of this section if, at any time of his birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.

(4) Sub-section (2) does not apply in relation to a person if, at the time of his birth, a parent of the person was an Australian citizen or a permanent resident.

(5) Sub-section (3) does not apply in relation to a person if, at the time of his birth, a parent of the person -

(a) was an Australian citizen or a permanent resident; and

(b) was not an enemy alien."

The final piece of legislation to consider is the Australian Citizenship Amendment Act 1986 (Cth) ("the 1986 Amendment Act"). It made wholesale changes to s 10. The nature of those changes, and the reasons for them, are disclosed in the Explanatory Memorandum that was circulated by authority of the Minister. It said:-

"Section 10 of the Act presently provides that persons born in Australia (other than children of diplomats, consular officials and enemy aliens) automatically become Australian citizens. This clause amends section 10 so that a person born in Australia after the amendment comes into effect will be an Australian citizen only if at the time of birth, at least one of the parents of the person is either an Australian citizen or a permanent resident. The effect of this is that children of visitors, temporary entrants and prohibited non- citizens will no longer automatically acquire Australian citizenship simply by reason of their birth in Australia. Clause 4 also provides for acquisition of citizenship by such persons born in Australia where they have been ordinarily resident in Australia for a period of 10 years from date of birth."

It is apparent from a perusal of the debate following the second reading speech (House of Representatives 13 March 1986 p1267 ff) that the amendment was designed to remove automatic citizenship for children born in Australia by visitors, temporary entrants and prohibited non-citizens; that removal was aimed at closing a loophole that allowed such children to sponsor their parents in applying for Australian citizenship.

However, an additional change that is of great importance to this case was the removal of any reference to a child of a diplomat. Sub- section (1) of s 10 remained unaltered: prima facie, a person born in Australia after the commencement of the 1948 Act was an Australian citizen. Sub-section (2) was omitted and the following sub-section was substituted:-

"(2) Subject to sub-section (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if -

(a) a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or

(b) the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia."

Rather than excluding a child of a diplomat, there was a positive identification of the inclusion of a child if one of his or her parents was, at the time of birth, either an Australian citizen or a permanent resident. However, the new sub-section (2) only related to "a person born in Australia after the commencement of" the 1986 amending Act - i.e. 20 August 1986. It does not purport to affect the status of persons born before that date. Their status is to be determined otherwise than by reference to sub-s 10(2) as enacted by the 1986 amending Act.

The disqualifying factor that originally deprived Mr Petrovski of Australian citizenship was his father's diplomatic status. But that disqualifying factor disappeared with the introduction of the amendments that were made by the 1986 amending Act. As from 20 August 1986 the effect of s 10 of the Act can be summarised as follows:-

- Subject to the remaining provisions of the section, a person born in Australia is an Australian citizen.

- Subject to sub-section (3) a person born in Australia after 20 August 1986 shall be an Australian citizen by virtue of that birth if a parent of the person was, at the time of birth an Australian citizen or a permanent resident.

- Sub-section (3) deprives a person who might otherwise be eligible for citizenship if at the time of birth, his or her father was an enemy alien and the birth occurred in a place then under occupation by the enemy.

- A person may be an Australian citizen if he or she has been ordinarily resident in Australia for ten years since birth.

At common law a person's nationality or citizenship is determined at the date of birth. The test has been set out by Lord Diplock in Lesa v Attorney General of New Zealand (1983) 2 AC 20 at 30- 31:-

"... it is hornbook law, or any rate well-established as long ago as Calvin's Case [1572] EngR 64; (1608) 7 Co Rep 1 that a person born within His Majesty's dominions did by virtue of his birth there of itself owe natural allegiance to His Majesty, unless he was born there either (a) as a child to the diplomatic representative of a foreign state ... who at common law (which in this respect followed the law of nations) owed no allegiance, even local, to the sovereign to whom he was accredited ... ; or (b) was born as a child or a member of an invading force of an enemy power or of an alien in an enemy-occupied part of His Majesty's dominions."

It is apparent, from a consideration of his Lordship's speech that, in its original form, the 1948 Act was merely a statutory reenactment of the common law position; it emphasised first, the place of birth and then the twin disqualifying features of a parent being either a diplomatic representative or an enemy alien. (see also Pryles: Australian Citizen Law: Law Book Company Ltd 1981 p 14). But in 1986, the legislature saw fit to remove all reference to the disqualifying feature occasioned by a parent's diplomatic status. Does that mean that the common law situation as represented by the state of the legislation on 12 November 1969 (the date of Mr Petrovski's birth) revived or does it mean that Mr Petrovski's status is now to be assessed in accordance with the provisions of the statute as a consequence of the changes wrought by the 1986 amending Act? If it is the latter, Mr Petrovski might be entitled to recognition as an Australian citizen since 1986. He is a person who was born in Australia and suffers none of the disqualifying features that are presently in the legislation.

The former view is that taken by the authors in Butterworth's Australian Immigration Law Vol 1 par 3025. It is there stated that persons born in Australia between 26 January 1949 and 19 August 1986 who are not Australian citizens, include the following:-

". those whose non-Australian citizen fathers were representatives of foreign countries or enemy aliens (this criteria applies to persons born here before 6 May 1966);

. those whose non-Australian citizen fathers, not ordinarily resident in Australia were entitled to diplomatic privileges or immunities, including as members of an international organisation, or were consular officers, or were enemy aliens and the child's birth occurred at a place then under enemy occupation (this criteria applies to persons born here between 6 May 1966 and 21 November 1984)"

Mr Petrovski would come within the second of those categories if that passage correctly states the legal position. There would have been no doubt about the matter if the legislature, when making the changes in 1986 had seen fit to include a provision that the amendments did not affect the prior status of persons with respect to the subject of citizenship. It would have been a small matter for the legislature to have made it clear that a person who was disqualified from citizenship prior to 1986, did not, as a result of the 1986 amendments, thereby acquire citizenship.

The first question that must be addressed is whether the 1986 amending Act has (or was intended to have) retrospective effect. The well known authority on this subject is Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ:-

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events."

These views were echoed a few years later by Fullaghar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194 where his Honour said:-

"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement."

More recently, the rule was expressed in the joint judgment of the High Court in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518 as follows:-

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction."

The provisions of par 8(c) of the Acts Interpretation Act 1901 (Cth) are to the like effect:-

"8 Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:-

...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed;

..."

In a subject that is as important as a person's status or citizenship, there are obvious and pressing arguments that favour the preservation of the status quo. It is common ground that at the time of his birth, Mr Petrovski was not entitled to Australian citizenship because of his father's diplomatic status. Why should the 1986 amending Act be construed as changing that position and conferring upon him (and perhaps others in a like situation) the status of Australian citizens? It would seem reasonably clear that if sub-s (2) of s 10, as enacted in 1986, had not contained the provision that limited its operation to persons born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 the common law and statutory rules against retrospectivity would probably have applied. If this proposition be correct, it would have meant that the amendment would have had only prospective effect and the status of persons born in Australia prior to the amendment (such as Mr Petrovski) would not have been affected by the amendment. But, in my opinion a contrary view is arguable. It would seem that the legislature, in an attempt to put the matter beyond doubt, determined that it was appropriate to spell out that the amendment was intended to have effect only with respect to persons born after a certain date. Those persons were to be Australian citizens by virtue of birth "if and only if" they or one of their parents met the conditions laid down in the sub-section.

The disqualifying feature based upon a parent being an enemy alien was retained (see sub-s 10(3)) but the former disqualifying feature based upon a parent's diplomatic status was abolished. It would have been simple for the legislature to have added a provision that made it clear that not only did the amendment merely have prospective effect by its application to persons born after the amendment, but also it did not have retrospective effect and so did not interfere with the pre-existing status of any person. The presence of the prospective element coupled with the absence of the anti- retrospective element and the abolition of a parent's diplomatic status as a disqualifying event point to the conclusion that this might be one of those cases where it would be appropriate to give retrospective effect to the 1986 amending Act. Sub-section (1) of s 10 of the Australian Citizenship Act 1948 (as amended) now reads that:-

"Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen."

However, it seems to me that in the end, a more appropriate conclusion would be to deny any retrospective effect to the legislation, to recognise it as prospective only but to acknowledge that in terms of sub-s 10(1) Mr Petrovski is an Australian citizen now and has been since 1986 because none of the disqualifying events that are now found in the legislation take away that status. In other words, the 1986 amending legislation has granted a status to Mr Petrovski as from, and only from 1986.

Since preparing these reasons, I have had the opportunity of perusing a draft of the reasons of Burchett J. I share his concluding views; I would hope that the administration will be able to remedy the wrong that has been done to the appellant.

In my view this appeal must be allowed because the whole proceedings have proceeded on a false base. The orders of the Court below and in the Tribunal should be set aside.

I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.

Associate:

Dated:

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 618 of 1996 GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Appellant

AND: MARJAN PETROVSKI

Respondent

CORAM: BURCHETT, O'LOUGHLIN and TAMBERLIN JJ

PLACE: SYDNEY

DATED: 12 MARCH 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

Introduction

This is an appeal from a decision of a judge of this Court which set aside a decision of the Administrative Appeals Tribunal ("the AAT") given on 9 February 1995. His Honour's decision was that the respondent ("Mr Petrovski") was not an "illegal entrant" within the Migration Act 1958. The consequence of this was that it was open to the Minister to be satisfied that he was a "permanent resident" under s13(1)(a) of the Australian Citizenship Act 1948 and could be granted citizenship if the Minister was satisfied as to the other matters in that section.

Background

The relevant facts are not in dispute.

Mr Petrovski was born at Waverley in New South Wales on 12 November 1969 at a time when his father was Consul-General in Australia for the former Republic of Yugoslavia. In 1971 Mr Petrovski and his mother returned to Yugoslavia. His father remained in Australia until his term of office ended in 1972.

At about the age of fourteen years Mr Petrovski formed the intention to return to live in Australia. From the age of fifteen he assumed that he was an Australian citizen. On this basis he made an application for an Australian passport at the Australian Embassy in Belgrade, supported by a copy of his birth certificate, two photographs and the prescribed fee. An Australian passport (the "first passport"), was issued in his name on 20 September 1984 to expire on 20 September 1989, at which time Mr Petrovski was serving in the Yugoslav army. Upon release from the army he obtained a new Australian passport (the "second passport"). There was no suggestion of any fraud or misrepresentation in relation to the obtaining of these passports.

On 21 September 1991, Mr Petrovski arrived in Australia and was admitted upon production of the second passport. Soon after his arrival he enrolled in an English course. He claimed that his return to Australia and decision to improve his English supported his stated intention to make Australia his permanent home. In May 1992 he met a lady who was a Thai national. She returned to Thailand upon the expiry of her visitor's visa and Mr Petrovski followed her, travelling to Bangkok on the second passport. They were married in Bangkok in October 1992 and Mr Petrovski returned to Australia on 7 November 1992 with the second passport.

He later applied to sponsor his wife and her daughter for permanent residence in Australia. On 21 July 1993 the Department of Immigration, Local Government and Ethnic Affairs informed Mr Petrovski that:

" .... you are not, and never have been an Australian citizen. The Australian passport issued at the Australian Embassy, Belgrade was issued in error, and should be surrendered."

The basis for the decision was that at the time of Mr Petrovski's birth, his father was the Consul-General for Yugoslavia. This was the first notice he received of the Embassy "errors".

Section 10(2) of the Australian Citizenship Act 1948 (the "Citizenship Act"), as in force at the date of Mr Petrovski's birth, provided :

"10(2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father -

(a) was not an Australian citizen;

(b) was not ordinarily resident in Australia; and

(c) was -

...

(ii) a consular officer of a foreign sovereign power" (Emphasis added)

It is clear that the Australian Embassy officials in Belgrade overlooked the fact that Mr Petrovski's birth certificate recorded his father's occupation as being Consul-General for Yugoslavia at the time when the decision was made to issue the two Australian passports to Mr Petrovski. The second passport was then cancelled.

On 1 February 1994 Mr Petrovski applied for a grant of Australian citizenship. This application was refused by the Acting-Secretary in April 1994 on the basis that he was not a permanent resident and therefore the Minister could not be satisfied as to that prerequisite prescribed by s13(1)(a) of the Citizenship Act 1938 . The AAT confirmed the refusal. Mr Petrovski then appealed to this Court.

Section 13(1) specifies the matters in respect of which the Minister must be satisfied before he can exercise the discretion to grant citizenship. That provision relevantly reads:

"13(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;

......" (Emphasis added)

Although s7 of the Passports Act enables the Minister to issue Australian passports to Australian citizens, there is no provision that the grant of a passport confers citizenship upon the holder. There is no right to the grant of an Australian passport and the Minister as a matter of discretion may decline to issue a passport to certain persons specified in ss7A-7E of the Act such as unmarried minors and those in debt to the Commonwealth.

Section 8(1) of that Act provides:

"8(1) An Australian passport, whether in the possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an approved representative or the approved senior officer, and a passport on being cancelled under this sub- section becomes void.

Australian passports always remain the property of the Commonwealth by virtue of s6A.

The issue raised on this appeal is whether the provisions of the Citizenship Act 1958 operate as a bar to the grant of Australian citizenship to Mr Petrovski on the basis that he is not a permanent resident.

Section 5A(1) of the Citizenship Act provides:

"5A. (1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act:

...

(ba) in relation to a period on or after the prescribed date during which the person was present in Australia (other than prescribed Territory), if:

(i) ....

(ii) the person was not, during that period, an illegal entrant, ..."

"Illegal entrant" is defined in s5 of the Citizenship Act by reference to s14 of the Migration Act which provides:

"14(1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorised by section 17.

(2) Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(a) remains in Australia;

(b) is not a citizen; and

(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa."

"Valid entry permit" is defined in s4 of the Migration Act 1948 as being an entry permit that:

"(a) was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989;

(b) has not been cancelled under this Act; and

(c) has not expired, or otherwise stopped being in force, under this Act or the regulations;

and includes a visa that has effect as if it were an entry permit because of section 18, but does not include a visa or similar notation, or a form of provisional authority to enter Australia, issued before 1 November 1979 on behalf of the Commonwealth."

Mr Petrovski's second passport issued on 31 May 1990 was expressed to be valid until 31 May 2000. It bears the following endorsement:

"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 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."

This request by the Governor-General is located immediately under the Australian governmental crest on the passport. The passport bears stamps dated 21 September 1991 and 7 November 1992, which were affixed at Sydney airport at the time of Mr Petrovski's entry after production of his passport. Those two stamps are set out below:

Reasoning below

His Honour accepted that the holding of an Australian passport does not have the legal effect of conferring on the holder, Australian citizenship or permission to enter Australia. He pointed to the practical difficulty in requiring immigration officials, at the point of entry into Australia, to evaluate the validity of Australian passports presented to them before allowing entry. He considered that a requirement that holders of Australian passports must prove their citizenship by means other than their passport was in conflict with the High Court decision in Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 470. He made the observation that as a matter of practical reality an Australia citizen may enter Australia upon presentation of a duly issued Australian passport which is taken as being sufficient evidence of a right to enter. His Honour also referred to the liability to deportation under s200 of the Migration Act which would be attracted if Mr Petrovski was an illegal entrant.

It was pointed out that neither the Migration Act nor the regulations made pursuant thereto required that an entrant's passport be stamped. The requirement is that permission to enter must be given, but there is no necessity for a stamp or for specific words to be used. The stamp on the second passport in November 1992 upon Mr Petrovski's return from Bangkok, in his Honour's view, was an official stamp of the Australian Government which in the circumstances permitted the passport holder to enter the country.

His Honour considered in effect that the circumstances of Mr Petrovski's arrival at Sydney airport, taken with the presentation of the Australian passport, and his subsequent physical admission, albeit he was not then a citizen, constituted a lawful entry into Australia. In other words Mr Petrovski was given due permission in consequence of which he entered the country. These events and circumstances, in his Honour's view, were quite inconsistent with an assertion that Mr Petrovski entered Australia illegally.

After citing authorities to the effect that the Migration Act must be administered in the best interest of Australia, his Honour reached the view that the stamps, in the second passport, made in 1991 and 1992, and the consequential fact of entry into Australia without objection, amounted to valid entry visas or permits. The subsequent cancellation of the passports did not have the effect of avoiding those permits. They must be considered as at the time entries were made. His Honour concluded that having been granted entry in the above circumstances, Mr Petrovski was not an illegal immigrant.

After finding that Mr Petrovski was not an illegal entrant his Honour referred to the provision of s13(4)(b)(iv) of the Citizenship Act which read as follows:

"(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

(a) ....

(b) subject to paragraph (a), the Minister may, in the Minister's discretion:

.....

(iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant - treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident;"

His Honour considered that it was arguable that the time spent by Mr Petrovski in Australia as a young child was a period in which he was present in Australia as a permanent resident. He considered that the position was clearer in respect of the period from September 1991 to the date of his judgment. To be eligible for citizenship Mr Petrovski would need to show that he would suffer hardship or disadvantage if a certificate of Australian citizenship were not granted to him. His Honour considered that in the present case Mr Petrovski would suffer sufficient hardship related to the refusal of his application for citizenship. This arose from his inability to visit his wife and her daughter as he has been unable to travel outside Australia. Moreover, he appeared to have found it difficult to obtain work due to his uncertain citizenship status.

His Honour also adverted to s13(4)(b)(v) of the Act which allows for the correction of administrative errors. It provides that the Minister may:

"(v) ... if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia - treat the period as a period during which the applicant was present in Australia as a permanent resident."

His Honour considered that in the present case there was more than a mere processing delay. The grant of two Australian passports and the fact of entry into Australia on two occasions amounted to significant maladministration which he considered was able to be remedied by an exercise of the Minister's discretion. If this were so then his Honour could see no reason why it should not be exercised in favour of Mr Petrovski and he considered that it should be so exercised. His conclusion on this matter was that the permitted stay was unlimited thus enabling Mr Petrovski be considered as a permanent resident eligible for citizenship.

Accordingly, his Honour allowed the appeal, set aside the determination of the AAT and found that Mr Petrovski was not an illegal entrant. Having made Australia his home he was entitled to remain here. He remitted the matter to the AAT and ordered that the Minister pay Mr Petrovski's costs.

The principal issues on this appeal are:

(a) Were the passport stamps valid entry visas or entry permits?

(b) What is the effect of the passport?

(c) Are the circumstances of the case such that the Minister is estopped from acting on the basis that Mr Petrovski is an illegal entrant?

Were the passport stamps valid entry visas or entry permits?

The primary judge summarised his reasoning on this aspect in these terms:

"My view is that the stamps in the second passport in 1991 and 1992 and the consequential permissions to enter amounted to, or should be deemed to have been, approved and valid entry visas or entry permits to Australia at those times, and that the subsequent cancellation of the passport did not have the effect of cancelling or voiding those visas/entry permits. In my opinion, the applicant is not an illegal entrant."

The High Court, in Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 470 considered the administrative process which applied in Australia after arrival. The Court observed that:

"... a citizen had, under the law, the right to re-enter the country, without the need of any Executive fiat or 'clearance', for so long as he retained his citizenship. The subjection of such a citizen to administrative procedures at the point of entry ... may be necessary, in the public interest, to enable the entry of non-citizens to be prevented or controlled and to enable proper administrative records and procedures to be kept or followed in relation to the arrival and departure of citizens and non-citizens alike. A requirement that a returning citizen submit, in the public interest, to the inconvenience of such administrative procedures at the end of a journey cannot, however, properly be seen as the provisional rendering of 'services' to, or at the request or direction of, the citizen concerned."

In my view, the affixing of the stamps in the present case is properly characterised as an administrative record, made in relation to the arrival. The stamps are not expressed to be a grant of permission, nor are they expressed to confer any leave, right or entitlement with respect to entry or residence.

On their face the stamps do not purport to have any legal effect. They simply record that the bearer has "arrived" at Sydney airport on the date recorded by the stamps.

The stamps must of course be considered along with the fact that upon production of the passport no objection was raised by immigration officials to entry into Australia. Moreover, Mr Petrovski produced what, on its face, was a current valid Australian passport.

In my opinion, the relevant legislative provisions which apply are so clear and specific, that I do not consider that it is open to the Court to rely on acts or omissions which "amount to" or should be "deemed" to be a grant of permission. There are several difficulties in the way of such a conclusion.

The first arises in this way. The expression "valid entry permit" referred to in the above conclusion is defined in the Citizenship Act s5(1) to have the same meaning as in the Migration Act (s4), namely an entry permit that was granted under the Migration Act and has not been cancelled or expired.

In turn, "entry permit" is defined in s4 of the Migration Act to mean permission to enter or remain in Australia. The effect of s14 of that Act is that on entering Australia a non-citizen becomes an illegal entrant unless he or she is the holder of a valid entry permit or is the holder of an entry visa. The reference to "holder" as a matter of plain English denotes a documentary permission.

A second difficulty is that the definition of "a valid visa" refers to a document, notation or visa, that has not been cancelled or otherwise stopped being in force. Even if the stamps are treated as a notation it is difficult to see how they could be "cancelled" or "otherwise stopped". There is nothing to cancel or stop. They do not purport to have any operation but simply record the fact of arrival. A record of an event cannot, as a matter of the normal use of language, be cancelled or stopped being in force.

A third consideration is the effect of s34 of the Migration Act which provides:

"s34(1) This section applies where, and only where:

(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b) any fee payable in respect of the application is paid.

(1A) If:

(a) the applicant is a non-citizen; and

(b) the regulations provide for the approval of a form for the purposes of applications under subsection (1);

the form approved must:

(c) require the applicant to make a declaration about his or her character or conduct, or both; or

(d) if the form so requires - require another person to make a declaration about the applicant's character or conduct, or both.

(2) Unless this section applies, the Minister:

(a) is not required to consider an application at all; and

(b) shall not in any circumstances grant an entry permit.

.....

(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit." (Emphasis added).

The above section is cast in compelling terms. In this case there is no evidence that any application has been made for an entry permit in accordance with the regulations. See rr22-24, 26 and 29 of the Migration Regulations.

Corresponding provisions apply with respect to visa applications. See Migration Act s24 and rr11-15, 17-18.

Having regard to the comprehensive nature and specificity of these requirements, it is not open, in my view, to describe the arrival stamps, taken together with the fact of entry and the production of an Australian passport as amounting to or being deemed to constitute a grant of an entry permit or visa.

A further matter is that it is not clear whether the airport officials who affixed the stamp and "did not object to entry into Australia" had any authority, actual or ostensible, to grant an entry visa or permit to Mr Petrovski.

The expression "not clear" is used because in his written submissions to this Court, counsel for the Minister said in relation to the entry permit argument:

"In the present case counsel for the Minister consented to the point being raised, and did not seek an adjournment, upon the condition that it be accepted that the officers in the primary line who placed the stamps in the respondent's passport did not have a delegation under the Migration Act or regulations to grant an entry permit other than to a holder of properly-granted visa (transcript, p 23, lines 17-33). It is not clear from the transcript that the factual matters posited were accepted by the respondent, although the absence of disagreement suggests they were." (Emphasis added)

As is pointed out in submissions a purported exercise of ostensible authority cannot extend the authority of the airport officials beyond that conferred by the statute: Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 695 per Davies and Gummow JJ.

A submission was made on behalf of the Minister that the passenger cards submitted by Mr Petrovski at the time of entry into Australia, were false and misleading, because they were incorrect insofar as they asserted citizenship of Australia. Accordingly, ss14(2) of the Migration Act would operate so that he continued to have the status of an illegal entrant. It is not contended that Mr Petrovski had any intention to mislead or deceive. It is said however, that his belief as to whether the information was correct is irrelevant and reference is made to Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348.

The Minister sought to tender in this appeal the passenger cards submitted by Mr Petrovski to the airport officials on entry but they were not admitted into evidence. These cards were not before the AAT nor were they referred to by the AAT. The Court is concerned in this appeal with an error of law by the AAT.

I do not consider that the additional evidence should be admitted. It is not "new evidence" in the sense it came into existence or became known after the AAT heard the matter and the facts and circumstances surrounding it could have been the subject of evidence, cross- examination and argument before the Tribunal. Moreover, because I have reached the conclusion that the stamps on the passport do not constitute a valid entry permit or entry, it is not necessary to consider this argument further.

The Passport

For Mr Petrovski it is submitted that when he entered Australia in 1991 and 1992, he did so as "a citizen" by using an Australian passport albeit he was not a citizen.

It is said that he entered with "official" knowledge without fraud or bad faith. It is said that s14 of the Migration Act does not apply where a non-citizen enters Australia in these circumstances unless they contravene the Passports Act.

Emphasis is placed on the dire potential consequences which could flow from classification as an "illegal entrant" which include arrest, deportation and criminal punishment.

Section 14(1) is in plain direct language. The relevant question raised in this submission is whether Mr Petrovski, at the time of entry, was a non-citizen. It is conceded that he was not a citizen but that he should in effect, be treated as if he were a citizen. The basis for preferring this interpretation is said to flow from the possible consequences outlined above.

In my view, this approach should not be taken. The language is clear. There is no need to resort to any argument based on consequences to construe any ambiguity. Mr Petrovski plainly satisfies the criteria factored into s14. At the time of his entries he was a non-citizen by reason of s10(2) of the Citizenship Act as in force at the time of his birth. The date of birth of Mr Petrovski is the relevant date for determining his citizenship status under the Act. When in 1991 and 1992 he entered Australia he did not therefore have a valid entry permit or visa.

Estoppel

The representations by the Department in this matter are both specific in nature and solemn in form. They include:

* the issue by the Department on two occasions to Mr Petrovski of Australian Passports after he had fully and frankly furnished all necessary details;

* the failure to correct the position over many years;

* the admittance of Mr Petrovski into Australia;

* the failure to alert Mr Petrovski as to his non-citizenship.

These matters make out a clear case of misrepresentation.

These misrepresentations arose as the result of a combination of serious administrative errors. The inevitable grave hardship and disruption which must be occasioned to the life of Mr Petrovski constitutes a serious case of detriment.

In the area of private law these considerations would make out a powerful case for estoppel so as to prevent reliance on an assertion that Mr Petrovski has entered Australia without permission.

However, this case arises in the area of public administrative law, where well settled principles apply. These are to the effect that a Minister cannot be prevented by conduct or representation from performing a statutory duty or exercising a statutory discretion. In the present case, the estoppel claimed is substantive in nature in that it is alleged to operate so as to require the Minister to be satisfied that Mr Petrovski was a permanent resident. It is not simply a holding out that a certain procedure will be followed which will afford natural justice or procedural fairness to Mr Petrovski.

The effect of the estoppel claimed must be that the Minister is prevented from reaching a conclusion on this matter contrary to prior representations and conduct. The Act requires the Minister to decide whether he is satisfied. This means that to properly reach a conclusion the decision must not be limited by prior representations or conduct, otherwise it would prevent the Minister from fulfilling his statutory duty.

The effect of the claimed estoppel is that the Minister should not be permitted to act on the basis that Mr Petrovski was an illegal entrant and did not hold a valid entry permit or visa.

It is further said that when considering this citizenship application, the Minister was entitled to treat Mr Petrovski as holding a valid entry permit and to regard him as an "exempt non- citizen".

Relevantly, an "exempt non-citizen" is defined in s4 of the Migration Act 1975 to include a non-citizen who is a person exempted from the operation of s14(1). The exemption referred to is provided for s106(2) of the Migration Act, which reads:

"106(2) The Minister may, by instrument published in the Gazette, exempt:

(a) a person; or

(b) a class of persons;

from the operation of subsection 14(1)."

This section has now been repealed but it was in force up to 1 September 1994. Mr Petrovski's application for citizenship was refused on 18 April 1994 and therefore the availability of the s106 dispensing power should be taken into account.

Reliance is placed, in support of the estoppel, on the remarks of Mason CJ in Attorney-General v Quin (1991) 170 CLR 1 at 18, where it is said;

"[It] does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v Department of Trade [1977] QB 643 at p. 707; but see also the criticism of this approach by Gummow J in Kurtovic (1990) 92 ALR at pp.121-122." (Emphasis added).

Quin's case was concerned with the natural justice question whether the circumstances gave rise to a legitimate expectation that the plaintiff magistrate would be afforded procedural fairness. It did not concern the question whether there was a substantive entitlement to a particular result. The remarks of the Chief Justice must be seen in that specific limited context. The right claimed in that case was procedural in nature.

At 170 CLR 17, Mason CJ referred to the well settled principle that the Executive cannot disable itself from exercising a statutory discretion to be performed in the public interest.

Shortly after the paragraph quoted his Honour referred to the important difference between representations as to an entitlement to a substantive right as opposed to a representation as to the adoption of a certain procedure. At 22-23 he made this clear when he said:

"However, it has been suggested that legitimate expectations are entitled to substantive protection: ... The argument is that, when the expectation created is not that a proper hearing will be given but that the decision-maker will decide the case favourably or grant a benefit, the courts should by order ensure that the expectation is fulfilled....

However, the view that legitimate expectation may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances. It is possible perhaps that there may be some cases in which substantive protection can be afforded and ordered by the court, without detriment to the public interest intended to be served by the exercise of the relevant statutory or prerogative power. Granted this possibility, the grant of substantive relief in the present case would nonetheless effectively prevent the Executive from giving effect to the new policy which it wishes to pursue in relation to the appointment of magistrates." (Emphasis added)

In my view, the substance of the last sentence is pertinent to the present case. The submission of Mr Petrovski would, in substance, require the Minister to be satisfied that Mr Petrovski is a permanent resident. This would effectively prevent the Minister by reason of earlier representations, acts and omissions, from performing the statutory duty to decide whether he or she is satisfied. This duty is assigned to the Minister by s13 of the Citizenship Act.

In Roberts v The Repatriation Commission [1992] FCA 642; (1992) 39 FCR 420 at 425, the Full Federal Court pointed out that:

"It is not open to this Court to erect, on the foundations suggested by counsel for the applicant, a general principle, of uncertain application based upon a balancing of elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by the Parliament ..."

It was submitted for Mr Petrovski that the case for the application of estoppel principles is enhanced by the availability to the Minister of the power in s106(2) of the Migration Act whereby the Minister had power to exempt a non-citizen from the provisions of s14(1). As I understand the submission, it is that because of the existence of such a power (up to September 1994) a decision that the Minister was estopped would not have been inconsistent with the due performance of the statutory duty at the time when the Minister made the decision. This was because the Minister had a wide discretionary power to produce a result consistent with the prior representations and course of conduct by the Department without breaching his statutory duty. Accordingly, the important public interest in ensuring the unrestrained exercise of statutory discretion and performance of statutory duties would not necessarily be impeded.

One difficulty with this argument is that it assumes that the Minister would have exercised the wide s106 discretion in favour of Mr Petrovski. This argument does not, in my view, take the matter any further, because the effect of upholding it would mean that the Minister was estopped from exercising a discretion under s106 as he saw fit having regard to the advice received and the circumstances applicable at the time when the Minister came to consider the application. Such an approach is contrary to the well settled line of authority which underlies the broad principle that the Minister should exercise his or her powers and discretion in an unfettered manner. This argument, in my view, does not advance the case of Mr Petrovski but rather results in a situation where another statutory discretion, apart from s14, is sought to be fettered by estoppel contrary to the public administrative law principles referred to earlier.

It is further urged that the Full Federal Court decisions in Formosa (supra) and Roberts (supra) were distinguishable or wrong. I am not persuaded that they are either wrong or distinguishable in principle. Formosa was of course applied by the Full Court in Roberts. Formosa has been followed and applied in numerous subsequent decisions. An instance is the decision of the Full Court in Minister for Immigration v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105.

In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-219, (to which Mason J adverted in Quin), Gummow J conducted a comprehensive survey of the authorities relating to estoppel by representation in administrative law. In relation to estoppel, with respect to the exercise of statutory discretion, Gummow J said at 210:

"However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in the case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised ... to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding:..." (Emphasis added)

His Honour went on to quote Sir Alexander Turner, "The Law Relating to Estoppel by Representation" (3rd ed. 1977), p150, where it was said:

"If a public authority cannot by contract fetter the exercise of its discretion, it can hardly by the invocation of the doctrine of estoppel be brought to the same position. But it must appear that frustration of its duty or of its discretion will be the result of allowing the estoppel; anything less than this will be insufficient as an affirmative answer."

In this case to hold that the Minister is precluded from deciding that he is not satisfied, because of prior representations and conduct, that Mr Petrovski must be treated as if he were a permanent resident, would frustrate the performance of the Minister's duty under s13 of the Citizenship Act.

In relation to the application of estoppel in public law, based on principles of ostensible authority, Gummow J said at 213:

"Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law".

This statement in Kurtovic assumes that no estoppel doctrine has yet emerged in Australian public law. Kurtovic has been extensively cited and applied in a number of subsequent decisions including the recent Full Federal Court decision in Polat (supra).

Mason CJ in Quin, like the US Supreme Court in Heckler v Community Health Services of Crawford County Inc. [1984] USSC 103; (1984) 467 US 51 (quoted by Gummow J in Kurtovic), was not prepared to close the door on estoppel in public law but neither judgment attempts to formulate with any precision the principles by reference to which particular cases are to be decided when such an estoppel is asserted. There is, of course, much to be said for the observation of the majority in Heckler at 60-61 that:

"... Though the arguments the Government advances for the rule [against estoppel] are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honour, and reliability in their dealings with their Government."

It must be borne in mind, however, that the Chief Justice and Rehnquist J in that case expressly disassociated themselves from the above remarks and that neither the High Court nor any other Australian court has to date accepted such a statement of principle.

For these reasons I do not accept that Mr Petrovski has made out a case in estoppel.

Jurisdiction

The Minister raises an objection as to jurisdiction on the basis that the determination that stamps placed in the passport by the Clearing Officers at Sydney Airport in 1991 and 1992 amounted to "valid entry permits", raised quite different issues to the question whether the grant of the passport in 1984 and its renewal in 1990, upon a mistaken belief, estopped the Minister from denying status as an Australian citizen. The former contention was not raised before the AAT. Therefore, it is said that the AAT could not err in law in respect of matters that did not arise before it.

It was conceded before the primary judge that the argument of Mr Petrovski, was essentially that the stamps in the passport should be treated as valid entry permits. It is said that this was a legal argument not dependent on evidence and it is acknowledged that the argument was different in approach from the argument advanced before the AAT. However, it is said that both arguments went to the same issue, that is, whether Mr Petrovski should be considered to be an illegal entrant. It is said that the additional argument is one which was not dependent on evidence. Cf Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418; Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509 at 519.

In my view, his Honour did have jurisdiction. The question of law was whether Mr Petrovski was an illegal entrant having regard to the issue and effect of the passports and the entry permits, coupled with the surrounding circumstances, and the fact of entry into Australia on two occasions. These matters, in my opinion, are not so different from the estoppel argument as to travel beyond the jurisdiction of the Court under s44 of the Administrative Appeals Tribunal Act.

Migration Act ss166 and 172

These provisions were adverted to in the decision of the primary judge. However, in my view they do not advance the case of Mr Petrovski because he was not at the time of entry a citizen, nor did he produce a visa of any kind. In particular, the requirement in s166(1)(a)(i) that a person who enters Australia, must show an Australian passport or prescribed other evidence of the person's identity and Australian citizenship, does not upon the entry of that person, mean that he or she is not an illegal entrant.

Conclusion

I have read the reasons for decision by Burchett J and I express my complete agreement with the remarks made by his Honour in the penultimate paragraph of his decision.

In my opinion, the appeal to this Court should be allowed. The orders made by the primary judge should be set aside. There should be no order as to costs because this litigation arose due to some admitted errors by the Department.

I certify that this and

the preceding thirty-one (31)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 12 March 1997

Counsel for Appellant: Mr Neil Williams

Solicitor for Appellant: Australian Government Solicitor

Counsel for Respondent: Mr Paul Roberts

Solicitor for Respondent: Stewart Levitt & Company

Date of Hearing: 28 November 1996

Date Judgment Delivered: 12 March 1997