Hirama v Minister for Home Affairs

In the matter of Hirama v Minister for Home Affairs, the applicant, a non-citizen who identifies as an Aboriginal Australian, sought a declaration that they were not an ‘alien’ within the meaning of section 51(xix) of the Australian Constitution. The applicant argued that this classification would exempt them from certain powers under the Migration Act 1958 (Cth), including visa cancellation and removal powers. The Minister for Home Affairs opposed the application, contending that the applicant was indeed an alien and thus subject to these powers. The case was before the Federal Court of Australia, which had to determine the legal status of the applicant concerning the tripartite test for identifying Aboriginal Australians as outlined in Mabo v Queensland (No 2).

The central legal issue was whether the applicant, as a non-citizen identifying as an Aboriginal Australian, could be classified as an ‘alien’ under section 51(xix) of the Constitution. This issue required the court to interpret the decision in Love/Thoms, where the High Court had determined that non-citizens who are Aboriginal Australians are not aliens for the purposes of the Migration Act. The court had to apply this principle to the specific circumstances of the applicant and decide if the tripartite test from Mabo (No 2) was sufficient to establish Aboriginal Australian identity, or if additional criteria were necessary.

The Federal Court found that the applicant, by agreeing to apply the native title approach as outlined by Nettle J in Love/Thoms, met the criteria for being considered an Aboriginal Australian. This approach, which the Minister had previously contested, was deemed appropriate in this case as it aligned with the Minister’s concession regarding the applicant’s circumstances. The court granted the declaration that the applicant was not an ‘alien’ under section 51(xix) of the Constitution, thereby exempting them from certain powers under the Migration Act. The court also noted that while the applicant could not be removed from Australia or detained under specific sections of the Act, other aspects of the Act might still apply, pending further clarification.

The court’s final order was a declaration that the applicant is not an ‘alien’ within the meaning of section 51(xix) of the Constitution, thereby exempting them from certain powers under the Migration Act. This outcome aligns with the High Court’s decision in Love/Thoms, which established that non-citizens identifying as Aboriginal Australians are not aliens for the purposes of the Act. The court emphasized that while the applicant could not be removed or detained under certain sections, other aspects of the Act might still apply, and further clarification was needed in this regard.