Case: Minister for Immigration &amp; Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Outcome: cited
In Minister for Immigration &amp; 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.' 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 &amp; Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government &amp; Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration &amp; Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.' See also Tamberlin J at 325 et seq.