Kapeli v Secretary, Department of Home Affairs
[2024] FCA 1246
•29 October 2024
FEDERAL COURT OF AUSTRALIA
Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246
File number(s): VID 777 of 2024 Judgment of: O'BRYAN J Date of judgment: 29 October 2024 Catchwords: MIGRATION – application for a writ of habeas corpus to release applicant from immigration detention – where applicant claims his detention pursuant to s 189(1) of the Migration Act 1958 (Cth) is beyond the Constitutional limits of that power because he is an Aboriginal Australian within the principles stated in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 – where applicant was born in Tonga, is a Tongan citizen, does not claim to be of Aboriginal descent and there is no evidence to suggest that he is of Australian Aboriginal descent – where applicant claims to be of Aboriginal descent by virtue of adoption into an Aboriginal community – where applicant claims that s 189 does not authorise his continued detention having regard to NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 – whether applicant being detained for the purposes of removal – whether there is no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian – writ of habeas corpus refused
STATUTORY INTERPRETATION – construction of s 196(4) of the Migration Act 1958 (Cth) – whether in an application for a writ of habeas corpus the effect of s 196(4) is that the Minister must prove on the balance of probabilities that applicant is not an Aboriginal Australian – construction of s 198 of the Migration Act 1958 (Cth) – interrelationship of ss 198(2B) and 198(5) – whether applicant subject to an extant duty of removal from Australia notwithstanding that the applicant’s visa was cancelled under s 501(3A), the applicant has made representations under s 501CA seeking the revocation of the cancellation and the Minister is yet to make a decision with respect to revocation
ADMINISTRATIVE LAW – application for a writ of habeas corpus – applicable principles
Legislation: Constitution s 51(xix)
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Acts Interpretation Act 1901 (Cth) s 15A
Evidence Act 1995 (Cth) ss 27, 48(1)(b), 59, 60, 63, 64, 69, 76, 77, 136, 140, 156(1)
Evidence Amendment Act 2008 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Federal Court Rules 2011 (Cth) rr 21.01, 29.09, 40.03
Judiciary Act 1903 (Cth) ss39B, 78B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5
Migration Act 1958 (Cth) ss 5(1), 180, 189(1), 196, 196(4), 198(1), 198(2A) 198(2B), 198(5), 198(6), 501(3A), 501CA
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Duration of Detention) Act 2003 (Cth)
Migration Legislation Amendment Act (No 1) 2014 (Cth)
Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
Native Title Act 1993 (Cth)
Aboriginal Lands Act 1995 (Tas) s 3
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(7)
Fisheries Act 1994 (Qld) s 14
Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5
Cases cited: Akiba v Queensland (No 3) (2010) 204 FCR 1
Alexander v Jansson [2010] NSWCA 176
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43
Bodney v Bennell (2008) 167 FCR 84
Briginshaw v Briginshaw (1938) 60 CLR 336
Burgess v Commonwealth (2020) 276 FCR 548
Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commonwealth v AJL20 (2021) 273 CLR 43
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Fejo v Northern Territory (1998) 195 CLR 96
George v Rockett (1990) 170 CLR 104
Gibbs v Capewell (1995) 54 FCR 503
Goldie v The Commonwealth (2002) 117 FCR 566
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2021) 287 FCR 109
Hirama v Minister for Home Affairs [2021] FCA 648
Hobson v Commonwealth of Australia [2022] FCA 418
In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105
Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200
Khim v Minister for Immigration (1993) 39 FCR 535
Le as next friend for Lin Yan v Minister for Immigration and Ethnic Affairs [1994] FCA 66
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 521
Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
Mabo v Queensland (No 2) (1992) 175 CLR 1
Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854
Mann v Carnell (1999) 201 CLR 1
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602
McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54
Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442
Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Ofu-Koloi v The Queen (1956) 96 CLR 172
Osland v Secretary, Dept of Justice (2008) 234 CLR 275
Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285
Pochi v Macphee (1982) 151 CLR 101
Quick v Stoland Pty Ltd (1998) 87 FCR 371
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162
Roach v Page (No 11) [2003] NSWSC 907
Ruddock v Taylor (2005) 222 CLR 612
Save the Children Australia v Minister for Home Affairs (2024) 304 FCR 262
Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Shaw v Wolf (1998) 83 FCR 113
SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116
Stevenson v Yasso [2006] 2 Qd R 150
Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582
Thoms v Commonwealth (2022) 276 CLR 466
Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 38
Western Australia v Ward (2000) 99 FCR 316
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 348 Date of hearing: 23 September and 8-10 October 2024 Date of last submissions: 24 October 2024 Counsel for the Applicant: M Albert and N Boyd-Caine Solicitor for the Applicant:
Gadens
Counsel for the Respondents: J Watson, M Jackson and L Chircop Solicitor for the Respondents:
Australian Government Solicitor
ORDERS
VID 777 of 2024 BETWEEN: SAMIUELA KAPELI
Applicant
AND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application for a writ of habeas corpus, constituted by summons dated 8 August 2024, be dismissed.
2.Subject to order 3, the applicant pay the respondents’ costs of the proceeding.
3.Within 21 days of the date of this order, the applicant may apply to vary order 2 by filing and serving a submission of no more than 3 pages and, if required, any evidence in support.
4.If the applicant files and serves a submission pursuant to order 3, within a further 21 days the respondents may file and serve a submission in response of no more than 3 pages and, if required, any evidence in support.
5.Any application to vary order 2 will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
A. INTRODUCTION
This is an application made under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking the issue of a writ of habeas corpus under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) requiring the respondents, the Secretary of the Department of Home Affairs (Department) and the Minister for Home Affairs (Minister), to release the applicant, Samiuela Latu Kapeli, from immigration detention. Mr Kapeli is detained pursuant to ss 189 and 196 of the Migration Act 1958 (Cth) (Migration Act).
Mr Kapeli’s application for a writ of habeas corpus is made on two bases. The first is that Mr Kapeli is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian as that expression is used in the majority judgments of the High Court in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love/Thoms). As such, Mr Kapeli is not a person to whom the power of detention in s 189 of the Migration Act is capable of application. The second is that there is no real prospect of the removal of Mr Kapeli from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. In those circumstances, s 189 does not authorise the continued detention of Mr Kapeli, having regard to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ).
In these reasons, the expression “Aboriginal Australian” will be used to refer to the category of persons who are described as Aboriginal Australian in the majority judgments of the High Court in Love/Thoms and who cannot be regarded as aliens within the meaning of s 51(xix) of the Constitution. In that sense, the expression is used to invoke a constitutional meaning and not a vernacular meaning. In using the expression “Aboriginal Australian”, I echo the comment made by Mortimer J (as her Honour then was) in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2021) 287 FCR 109 (Helmbright) at [9]:
In these reasons, I have used the term “Aboriginal Australian” and “Indigenous” because they are terms used by members of the Court in Love/Thoms. I accept these terms may not be considered appropriate by all, especially by some people who identify as Aboriginal or Torres Strait Islander.
Mr Kapeli was born in Tonga on 20 June 1982 and is a citizen of Tonga. He arrived in Australia on 14 May 2003 as the holder of a special purpose visa. He has resided in Australia since that time. On 6 December 2003, Mr Kapeli married Sarina Kapeli (nee Lever). Sarina Kapeli describes herself as “an Aboriginal woman from the Kuku Yalanji Tribe which is from Far North Queensland, which was also my birth mother’s Tribe”. On 16 December 2014, Mr Kapeli was granted a permanent Partner (Class BS) (Subclass 801) visa.
On 18 February 2020, following convictions for assault occasioning actual bodily harm, Mr Kapeli’s partner visa was mandatorily cancelled under s 501(3A) of the Migration Act (prior cancellation decision). On 29 July 2020, Mr Kapeli was detained in immigration detention. Mr Kapeli made representations in support of the revocation of the prior cancellation decision, including on the basis that he is an Aboriginal person. On 10 August 2022, the Minister decided to revoke the prior cancellation decision and Mr Kapeli was thereupon released from immigration detention.
On 13 May 2024, following a further conviction for assault occasioning actual bodily harm, Mr Kapeli's visa was again mandatorily cancelled under s 501(3A) of the Migration Act (current cancellation decision). On 6 June 2024, Mr Kapeli made representations to the Minister in support of the revocation of the current cancellation decision. However, as at the date of the hearing, no decision had been made on the request for revocation. On 25 June 2024, Mr Kapeli was granted bail from the Cessnock Correctional Centre. On 26 June 2024, Mr Kapeli was detained upon his release from the Cessnock Correctional Centre and was taken into immigration detention at Villawood Immigration Detention Centre.
It is uncontroversial that Mr Kapeli is not an Australian citizen and does not hold a visa and is therefore an unlawful non-citizen within the meaning of the Migration Act.
Mr Kapeli claims to be an Aboriginal Australian because, in his words, he identifies as an Aboriginal man, he has been initiated into the Worimi tribe of the Forster/Tuncurry region of New South Wales, and he is recognised and accepted as Aboriginal by the Worimi tribe, including its elders. It should be noted that Mr Kapeli and each of the Worimi people who gave evidence on behalf of Mr Kapeli in this proceeding refer to themselves as members of the Worimi “tribe”.
Angela Wang is the officer of the Department responsible for the decision to detain Mr Kapeli in the purported exercise of the power under s 189(1) of the Migration Act. Ms Wang has given evidence in the proceeding that she is satisfied, on the basis of legal advice received from the Australian Government Solicitor (AGS), that Mr Kapeli does not satisfy the first limb of the “tripartite test” for membership of an Aboriginal group of people stated by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), requiring biological descent from an Aboriginal member of the group, and so is not an Aboriginal Australian. Ms Wang has also given evidence, on the basis of legal advice received from the AGS, that:
(a)she is satisfied that Mr Kapeli meets the second limb of the tripartite test in Mabo (No 2) in that Mr Kapeli identifies as a member of the Worimi tribe in the Forster region of New South Wales; and
(b)although a court may find, on the balance of probabilities, that Mr Kapeli does not meet the third limb of the tripartite test in Mabo (No 2) – recognition of Mr Kapeli’s membership of the Worimi tribe by the elders or other persons enjoying traditional authority among those people – it is not open to Ms Wang to reasonably suspect that Mr Kapeli does not meet the third limb.
In the course of oral closing submissions, lead counsel for Mr Kapeli, Mr Albert, expanded the issues for determination in this proceeding. Mr Albert submitted that there were six bases on which the Court should conclude that Mr Kapeli’s detention is unlawful. Many of the contentions advanced by Mr Albert in closing submissions had not been clearly raised in written submissions filed before the commencement of the hearing. Both the Court and the respondents heard the contentions for the first time in closing submissions. The approach taken by Mr Albert was procedurally unfair to the respondents and was unhelpful to the Court. The approach should not be repeated. In future cases of this kind, it may be necessary to require the parties to file points of claim so that the issues for determination are clearly defined prior to the commencement of the hearing.
As a result of the large number of issues and arguments raised by Mr Albert on behalf of Mr Kapeli, these reasons are lengthier than might have been expected for a case of this nature. Despite that, I have endeavoured to express these reasons with economy, conscious that an application for habeas corpus should be determined promptly.
For the reasons that follow, I conclude that Mr Kapeli’s application must be dismissed. Mr Kapeli has never claimed to be biologically descended from Aboriginal people, and there is no evidence before the Court raising any prospect that any of Mr Kapeli’s forebears were biologically descended from Aboriginal people. I find Ms Wang’s belief that Mr Kapeli is not biologically descended from Aboriginal people to be objectively reasonable. Indeed, I would go further and conclude on the balance of probabilities that Mr Kapeli is not biologically descended from Aboriginal people. In my view, the decision of the High Court in Love/Thoms only excludes from the head of power with respect to aliens in s 51(xix) of the Constitution Aboriginal persons who satisfy the tripartite test in Mabo (No 2), understood as requiring biological descent from Aboriginal people. The reasons of the majority in Love/Thoms do not support a conclusion that persons having the characteristics possessed by Mr Kapeli, being persons who have been welcomed into membership of an Aboriginal community, but who are not biologically descended from Aboriginal people, are thereby outside the meaning of the expression “alien” in s 51(xix) of the Constitution. With respect to NZYQ, the Minister is yet to determine whether to revoke the current cancellation decision. In those circumstances, Mr Kapeli is lawfully detained while his future immigration status is investigated and determined and NZYQ has no application.
In using the expression “Aboriginal” as a proper noun, the Court is conscious that it is an expression that has come to be used to refer to all of the indigenous peoples of the continent of Australia without differentiating between the numerous tribal or clan groups that exist. The use of the expression “Aboriginal” as a proper noun began in the course of European settlement of Australia, but the expression is now used in that sense in many Australian laws that apply generally to the indigenous peoples of Australia, such as the Native Title Act 1993 (Cth) (NTA) (along with the expression Torres Strait Islanders). It is both respectful and relevant to acknowledge, however, that each of the tribal or clan groups of indigenous peoples of Australia had and continue to have their own individual tribal or clan names, and had and frequently continue to have their own individual laws and customs including decision-making processes. As discussed further below, what is now referred to as the “tripartite test” for membership of an Aboriginal group of people stated by Brennan J in Mabo (No 2) recognises that membership relates to individual tribal or clan groups and each limb of the tripartite test references the individual tribal or clan group concerned.
As a final introductory point, it is important to emphasise what this judgment determines and what it does not determine. The judgment concerns the meaning that has been given to the expression “alien” in s 51(xix) of the Constitution by the High Court in Love/Thoms. The judgment does not concern, and accordingly does not determine, the meaning of the expression “Aboriginal” under other Australian laws. Nor does this judgment concern the meaning of the expressions “Aboriginal” or “Aboriginal person” in everyday parlance in Australia. The judgment should not be understood as a criticism or rejection of the evidence given by members of the Worimi people to the effect that they consider Mr Kapeli to be a Worimi man. The judgment reflects a conclusion that the Commonwealth has constitutional power to detain Mr Kapeli under s 189(1) of the Migration Act as an unlawful non-citizen, notwithstanding that members of the Worimi people have formed a close relationship with Mr Kapeli and have accepted him into their community.
B. PROCEDURAL HISTORY
The proceeding has had a difficult procedural history. The following matters are noted as they record certain interlocutory rulings that have been made in the proceeding and they also bear upon the order to be made with respect to the costs of the proceeding.
Understandably, Mr Kapeli requested that his application be dealt with speedily by the Court. In that regard, Mr Kapeli also relied on s 21(7) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (which applies to this Court in the determination of this proceeding – see Hobson v Commonwealth of Australia [2022] FCA 418 (Hobson) at [9]). Section 21(7) stipulates that:
Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must —
(a) make a decision without delay; and
(b) order the release of the person if it finds that the detention is unlawful.
It should be recorded that, despite the efforts of the Court to list the proceeding at the earliest date suitable to the parties, the conduct of the proceeding by Mr Kapeli has caused delay in its resolution. As discussed below, the listing of the hearing was adjourned on the application of Mr Kapeli. The duration of the hearing was extended, largely due to the expansion of issues by Mr Kapeli and the lengthy oral submissions that were required to address the expanded issues. Written submissions were also required after the conclusion of the hearing by reason of a new issue raised by Mr Kapeli during closing submissions.
Commencement of the proceeding
On 19 July 2024, Mr Kapeli filed an application for a writ of habeas corpus in this Court (which was given the proceeding number VID709/2024). The application was served on the respondents. On 2 August 2024, the Court notified the parties that the proceeding was listed for case management and sought proposed timetabling orders from the parties. However, on 6 August 2024, Mr Kapeli filed a notice of discontinuance of the proceeding.
By summons filed on 8 August 2024, Mr Kapeli commenced a proceeding in the Supreme Court of Victoria again seeking a writ of habeas corpus. A directions hearing was conducted by Justice Quigley on 9 August 2024. At that directions hearing, her Honour ordered that the proceeding be transferred to this Court pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), and ordered Mr Kapeli to pay the respondents’ costs.
Following the transfer of the proceeding to this Court, the proceeding was given a new proceeding number VID777/2024.
Initial timetabling orders
The proceeding was listed for case management on 16 August 2024. At that hearing, Mr Kapeli emphasised his desire to have the application heard at the earliest possible time. Initial timetabling orders were made for (amongst other things):
(a)the filing and service of notices under s 78B of the Judiciary Act;
(b)the sequential filing of affidavit evidence and outline submissions; and
(c)the listing of the proceeding for hearing on 23 September 2024 on an estimate of one day.
A second case management hearing was held on 10 September 2024 at which adjustments were made to the pre-trial timetable. The parties confirmed that they wished to maintain the hearing date of 23 September 2024, but the Court invited the parties to consider whether they required a second hearing day (or later hearing dates).
On 18 September 2024, the parties requested that the proceeding be listed for a second hearing day on 24 September 2024. On 19 September 2024, the Court informed the parties that the proceeding would be listed for the second hearing day. It was understood at that time that lead counsel for Mr Kapeli, Mr Albert, was unavailable on 24 September 2024 but that junior counsel, Mr Boyd-Caine, was available.
Urgent applications on 20 September 2024
On the evening of 19 September 2023, Mr Kapeli sought an urgent case management hearing for the following day in order to resolve a number of issues that had arisen between the parties. A case management hearing was listed for the following morning.
The first issue was an application by Mr Kapeli for an order requiring the respondents to transport him from the Villawood Detention Centre to Melbourne so that he could be present during the hearing. The application was made partly on the basis that the respondents wished to cross-examine Mr Kapeli, but was also more broadly based on Mr Kapeli’s wish to be present in court during the hearing. In so far as the application was made on that broader basis, it was unreasonably delayed by Mr Kapeli. It should have been made at a much earlier point in time. Despite that, at the case management hearing on 20 September 2024, the respondents consented to an order that Mr Kapeli be transferred from Villawood Immigration Detention Centre in order to facilitate his attendance at the final hearing in person on 23 and 24 September 2024.
The second issue was an application by Mr Kapeli for the Court to permit the affidavit evidence of Sarina Kapeli to be adduced in evidence notwithstanding that the respondents required her attendance at the hearing for cross-examination but Sarina Kapeli was unavailable to attend the hearing by reason of a medical procedure scheduled for 24 September 2024. The usual rule of practice and procedure, reflected in r 29.09 of the Federal Court Rules 2011 (Cth) (Rules), is that an affidavit of a witness may not be adduced in evidence in those circumstances. The rule is supported by s 27 of the Evidence Act 1995 (Cth) (Evidence Act) which states that a party may question any witness (except as provided by that Act). The Court may grant dispensation from the rule, but does not do so lightly. As observed by Katzmann J in Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582; 126 ALD 290 (at [35]):
… if a party wishes to cross-examine a witness on matters in dispute in the proceeding and gives reasonable notice of its intention to do so, it is an incident of the court’s duty to provide a fair trial that, in general, that wish be respected. The right to cross-examine a witness has been described as “a fundamental element of litigation when conducted on affidavits or witness statements, not lightly to be set aside”, all the more so when the witness is a party: Alexander v Jansson [2010] NSWCA 176 at [11].
The respondents opposed Mr Kapeli’s application but, acting reasonably, proposed a compromise whereby the affidavit would be read subject to the removal of certain controversial paragraphs (those paragraphs would not be read). Mr Kapeli refused the compromise proposed by the respondents. I also gave Mr Kapeli the option of adjourning the hearing, or reconvening the hearing on another day, to enable Sarina Kapeli to attend for cross-examination. Mr Kapeli declined those options. The reason given for that position was that Mr Kapeli is in immigration detention and wished to complete the hearing and obtain the judgment of the Court as soon as possible. Whilst Mr Kapeli’s desire for an early hearing was understandable, it was procedurally unfair to the respondents to admit Sarina Kapeli’s affidavit in evidence without affording the respondents an opportunity to cross-examine her. The decision for the Court in those circumstances was either to refuse to admit Sarina Kapeli’s affidavit into evidence, or to do so subject to argument about the weight that should be given to the evidence. At the case management hearing on 20 September 2024, I made a ruling that Sarina Kapeli’s affidavit would be admitted into evidence subject to arguments about weight. I indicated to the parties that the respondents’ inability to cross-examine would materially affect the weight that the Court gives to controversial evidence.
The third issue was an application by Mr Kapeli for an order that the respondents produce any notes of a conference attended by Angela Wang with counsel for the respondents on 13 September 2024. I refused to make that order at the case management hearing on 20 September 2024. The reason for refusing the application can be briefly stated as follows.
Ms Wang is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189 of the Migration Act. In her second affidavit affirmed on 13 September 2024, Ms Wang referred to additional information she had received since her first affidavit, including an updated legal advice from the AGS with respect to the application of the decision in Love/Thoms to Mr Kapeli’s circumstances. Ms Wang stated that, in forming an opinion for the purposes of s 189 of the Migration Act, she had relied on the additional information and the AGS advice. A copy of the AGS advice was annexed to the affidavit and legal professional privilege in the advice was necessarily waived.
In addition to the AGS advice, Ms Wang’s affidavit also annexed an email dated 12 September 2024 by which she received that advice and an email dated 13 September 2024 that she sent in response. Each of those emails made passing reference to a conference that was scheduled to be held on 13 September 2024 between Ms Wang and counsel for the respondents. Mr Kapeli sought production of any notes of that conference.
The respondents informed Mr Kapeli and the Court that the respondents held a single document recording notes of the conference, but the respondents refused production on the basis of legal professional privilege. Mr Kapeli did not contest that the notes of the conference were privileged, but argued that privilege in the notes of the conference had been (impliedly) waived by Ms Wang having produced the AGS advice.
The test for implied waiver of privilege is well known. A court will impute an intention to waive privilege where the actions of a party are inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: see Mann v Carnell (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [45] (Gleeson CJ, Gummow, Heydon and Kiefel JJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
In her affidavit, Ms Wang does not refer to the conference she attended with counsel on 13 September 2024, beyond the passing reference described above. Ms Wang deposed that, in forming her opinion with respect to the detention of Mr Kapeli under s 189, she relied on the AGS advice. Ms Wang does not state, and there is nothing in her evidence to suggest, that she relied on information or advice received at the conference with counsel on 13 September 2024. In the circumstances, Mr Kapeli’s submission that Ms Wang had waived privilege in the note of the conference with counsel had no basis whatsoever.
Adjournment of the hearing listed for 23 and 24 September 2024
On the evening of Friday 20 September 2024, the solicitors for the respondents informed the solicitors for Mr Kapeli that the respondents believed that Mr Kapeli had an “infectious ailment” preventing him from being cleared to travel to Melbourne in compliance with the Court’s order made earlier that day. In correspondence, it was explained that Mr Kapeli was under investigation for a diagnosis of active tuberculosis. Further correspondence between the solicitors occurred over the weekend. The parties ultimately sought an order by consent vacating the Court’s earlier order requiring Mr Kapeli to be transported to Melbourne, and that order was made on the morning of 23 September 2024.
At the commencement of the hearing on 23 September 2024, lead counsel for Mr Kapeli, Mr Albert, informed the Court that there was uncertainty with respect to Mr Kapeli’s medical condition, resulting in uncertainty with respect to future travel arrangements for Mr Kapeli. Mr Albert submitted that he was ready to proceed with the hearing, but he wished to seek instructions from Mr Kapeli about an application for an adjournment of the hearing. However, Mr Albert considered that he could not advise Mr Kapeli, and obtain instructions, until Mr Kapeli’s ability to travel in the coming days or weeks was known. The basis of any application for an adjournment would be that, first, Mr Kapeli wished to give his evidence, by way of cross-examination and re-examination, in person, and Mr Kapeli considered that the presentation of his case would be prejudiced if he were required to give his evidence by means of audio-visual facilities, and second, that Mr Kapeli wished to be present during the hearing of his case. However, if the medical diagnosis was such that Mr Kapeli could not travel for many weeks, the application for an adjournment would likely not be pressed.
To that end, Mr Kapeli made an application for an order under r 21.01 of the Rules that the respondents provide written answers to the following interrogatories:
(a)When is the final result from the culture samples for tuberculosis in relation to the applicant, taken on 3 August 2024, expected by the respondents to be provided to the applicant?
(b)If a negative result is returned, how long after this do the respondents expect the applicant will be deemed to be fit to travel?
(c)If a positive result is returned, how long after this do the respondents expect it will take for the applicant to be fit to travel?
Mr Kapeli submitted that the order for interrogatories was also sought on the basis that the answers were relevant to his application based on the principles stated in NZYQ because Mr Kapeli’s medical condition may reveal that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
The respondents opposed the application for interrogatories, submitting that they would endeavour to provide updated information to Mr Kapeli’s lawyers as soon as possible. The respondents also submitted that, in so far as Mr Kapeli’s application for interrogatories was based on NZYQ, the application was misconceived. The Minister had not yet made a decision with respect to Mr Kapeli’s request for the cancellation of his visa to be revoked and, accordingly, Mr Kapeli was not being detained for the purpose of removal from Australia but was being detained for the purpose of his visa status being considered. The respondents also informed the Court that they had offered to Mr Kapeli that they would not oppose an application for an adjournment on account of Mr Kapeli’s medical condition, but otherwise the respondents were ready to proceed.
I refused the application for interrogatories for the reason that I was not satisfied that there was a sufficient basis for such an order. The proceeding was adjourned until 2.15pm, however, to provide the respondents with further time to obtain updated information about Mr Kapeli’s medical condition and provide that information to Mr Kapeli.
At the resumption of the hearing at 2.15pm, the Court was informed that the medical test results had come back showing that Mr Kapeli did not have active tuberculosis. In those circumstances, Mr Kapeli sought an adjournment of the hearing until 8 and 9 October 2024, being dates available to the Court and both parties. The basis of the application for an adjournment was that both Mr Kapeli and Sarina Kapeli would then be available to attend Court to give evidence by way of cross-examination and re-examination. Lead counsel for Mr Kapeli, Mr Albert, also placed reliance on the fact that he was unavailable the following day (24 September 2024), although that was known at the time the matter was listed for hearing.
The respondents opposed the adjournment, indicating that Mr Kapeli could be transported to Court for cross-examination on 24 September 2024 and, during the balance of 23 September 2024, cross-examination could proceed with respect to the respondents’ witnesses. Counsel for the respondents accepted, however, that the only prejudice to the respondents from an adjournment was costs.
Not without hesitation, I granted the application for an adjournment. The principal reason for granting the adjournment was to enable Mr Kapeli to be present in Court throughout the hearing and to give evidence in person by way of cross-examination and re-examination, and to enable Sarina Kapeli also to attend Court to give evidence in person in the same manner. Those considerations assumed more significance in this proceeding than they might otherwise have by reason of the nature of the proceeding, being an application for a writ of habeas corpus requiring the respondents to release Mr Kapeli from immigration detention. I reserved the costs occasioned by the adjournment. The effect of that order is that, if no further order is made, costs follow the event (see r 40.03 of the Rules).
Section 78B notices
By an affidavit affirmed on 20 September 2024, the solicitor for Mr Kapeli, James Clarke of Gadens, deposed that notices under s 78B of the Judiciary Act had been given to the Commonwealth Attorney-General and each State and Territory Attorney-General. None of the Attorneys-General sought to intervene in the proceeding.
Duration of the hearing and written submissions after the conclusion of the hearing
The hearing was listed for two days commencing 8 October 2024. The length of the closing submissions made on behalf of Mr Kapeli necessitated the continuation of the hearing on a third day.
During closing submissions, Mr Kapeli advanced a submission concerning the proper construction of s 198 of the Migration Act that had not been previously foreshadowed. The submission was that, by virtue of s 198(5), the Department was under an immediate obligation to remove Mr Kapeli from Australia as soon as possible, notwithstanding that:
(a)Mr Kapeli’s visa was cancelled under s 501(3A);
(b)Mr Kapeli had been invited, in accordance with s 501CA, to make representations to the Minister about revocation of the decision to cancel his visa; and
(c)Mr Kapeli had made representations in accordance with the invitation but the Minister had not yet decided whether to revoke the cancellation of his visa.
The submission was advanced in aid of Mr Kapeli’s arguments concerning the application of the principles in NZYQ to the facts of this case.
The respondents sought an opportunity to file written submissions in response following the close of the hearing. Mr Kapeli did not oppose that application and I gave leave for the sequential filing of further submissions limited to the issue of construction.
C. RELEVANT PRINCIPLES GOVERNING THE WRIT OF HABEAS CORPUS AND IMMIGRATION DETENTION
General principles
This Court has jurisdiction under s 39B of the Judiciary Act to determine whether Mr Kapeli is lawfully detained under the Migration Act: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 (McHugh) at [18] - [19] (Allsop CJ) and [74] (Besanko J). The Court has power under s 23 of the FCA Act to issue a writ of habeas corpus and to make an order requiring Mr Kapeli to be released from detention if his detention is unlawful: McHugh at [20] (Allsop CJ), [75] (Besanko J) and [190] (Mortimer J); Save the Children Australia v Minister for Home Affairs (2024) 304 FCR 262 at [33].
An application for habeas corpus is directed to the lawfulness of the detention of the applicant at the time of the hearing of the application for the writ: McHugh at [288] per Mortimer J, Allsop CJ and Besanko J agreeing at [2] and [76] respectively.
An applicant seeking a writ of habeas corpus has an initial evidentiary burden of establishing that there is a reason to suppose that their detention is unlawful: Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ); McHugh at [60] (Allsop CJ), [92] (Besanko J) and [273] (Mortimer J). Once the applicant’s initial evidentiary burden has been met, the burden then shifts to the detaining party to show that, on the balance of probabilities, the applicant’s detention is lawful: McHugh at [56], [61] (Allsop CJ), [90], [96] (Besanko J) and [294] (Mortimer J).
In accordance with s 140 of the Evidence Act, the Court is required to take into account the nature and gravity of the subject-matter of the proceeding (the deprivation of the applicant’s liberty by the Executive) in deciding whether it is satisfied on the balance of probabilities that the detention is lawful: McHugh at [294] (Mortimer J). It has often been said in this context that the evidence should be clear and cogent: McHugh at [57] (Allsop CJ). That is not, however, to introduce some intermediate burden of proof between balance of probabilities and beyond reasonable doubt. It is only to require that the nature and quality of the evidence adduced in proof of particular facts be weighed having regard to the seriousness of the subject-matter of the proceeding: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 at 450 (Mason CJ, Brennan, Deane and Gaudron JJ).
Mr Kapeli has been detained pursuant to the purported exercise of power under s 189(1) of the Migration Act. The principal question that arises in this proceeding is whether Mr Kapeli’s detention under s 189(1) is lawful. Section 189(1) provides as follows:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
It can be seen that s 189(1) is directed not only to cases where an officer knows that a person is an unlawful non-citizen, but extends to cases where the officer reasonably suspects that a person has that status: Ruddock v Taylor (2005) 222 CLR 612 (Ruddock) at [27] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms v Commonwealth (2022) 276 CLR 466 (Thoms No 2) at [29] (Kiefel CJ, Keane and Gleeson JJ). A reasonable suspicion is something substantially less than certainty: Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie v The Commonwealth (2002) 117 FCR 566 (Goldie) at [4]-[5] (Gray and Lee JJ). It requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112. The reasonableness of the officer’s suspicion is assessed objectively, in the sense that the officer’s suspicion must be “justifiable upon objective examination of relevant material”: Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie at [4]-[5] (Gray and Lee JJ). The reasonableness of the officer’s suspicion is assessed by reference to what is known, or reasonably capable of being known, at the time of detention: Ruddock at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms No 2 at [41] (Kiefel CJ, Keane and Gleeson JJ) and [49] (Gordon and Edelman JJ).
What is capable of being known at the time of detention includes the state of the law: Thoms No 2 at [44] (Kiefel CJ, Keane and Gleeson JJ), [82]-[83] (Gordon and Edelman JJ). In reaching an understanding of what the law is, the officer may receive legal advice. In such a case, the officer is not required to question or second guess the advice given to them unless “it is clear the advice is objectively and obviously defective, such that a non-legally trained person such as a detaining officer could reasonably be expected to see the fault in the advice”: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 at [59] (Mortimer J) (an appeal against that decision, on different grounds, was dismissed: (2023) 300 FCR 106). A subsequent change in the law will not affect the reasonableness of the suspicion prior to the change in the law: Thoms No 2 at [43] (Kiefel CJ, Keane and Gleeson JJ) and [58] and [83] (Gordon and Edelman JJ).
An “unlawful non-citizen” is defined in s 5(1) of the Migration Act to mean a person who is not an Australian citizen and does not hold a visa. In the present case, it is not in dispute that Mr Kapeli is not an Australian citizen and does not hold a visa. As identified earlier in these reasons, Mr Kapeli claims that his detention is unlawful, first, on the basis of the principles stated by the High Court in Love/Thoms and, second, on the basis of the principles stated by the High Court in NZYQ. Those principles, and their interaction with the power of detention in s 189(1), are explained in the following paragraphs.
The principles stated by the High Court in Love/Thoms
Section 189 of the Migration Act was enacted by the Federal Parliament pursuant to the power conferred by s 51(xix) of the Constitution to make laws with respect to “aliens”. The decision in Love/Thoms concerns the limits of that power, and specifically whether that power applies to Aboriginal persons who are not Australian citizens, were born overseas and are citizens of a foreign country (those being the characteristics of the plaintiffs in that case): Kiefel CJ at [1] and [4], Bell J at [49], Gageler J (as his Honour then was) at [112] and [126], Keane J at [142]-[145], Nettle J at [241], Gordon J at [294] and [331] and Edelman J at [391]. The majority (Bell, Nettle, Gordon and Edelman JJ) found, in four separate judgments with differing reasons, that Aboriginal Australians, understood according to the tripartite test stated in Mabo (No 2), are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution: Bell J at [81], speaking on behalf of the majority.
The tripartite test stated in Mabo (No 2) is a reference to that part of the judgment of Brennan J in which his Honour summarised the common law of Australia with respect to native title, including the identification of persons entitled to native title. His Honour stated (at 70, emphasis added):
6. Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
Unless the context indicates to the contrary, references in these reasons to the “tripartite test” are a reference to the above bolded passage from the judgement of Brennan J in Mabo (No 2).
The principal point of controversy in the present case is the application of the first limb of the tripartite test, biological descent from indigenous people, to Mr Kapeli.
Applying s 15A of the Acts Interpretation Act 1901 (Cth), the effect of the decision in Love/Thoms is that the Migration Act generally, and s 189 specifically, must be read and construed subject to that constitutional limit. In other words, s 189 must be disapplied in so far as it purports to apply to Aboriginal people (understood according to the tripartite test): Love/Thoms at [285] (Nettle J), [293] (Gordon J) and [398] (Edelman J).
The manner and extent of the disapplication of s 189 to Aboriginal people was subsequently considered in Thoms No 2. There, the High Court unanimously concluded that s 189(1) validly empowered an officer to detain a person in immigration detention where the officer reasonably suspects that the person is an unlawful non-citizen and is not an Aboriginal person, even if the true facts are that they are an Aboriginal person within the tripartite test. The High Court concluded that, providing the requisite suspicion is held by the officer, s 189(1) can validly apply because, in those circumstances, there will be a sufficient connection with the aliens power in s 51(xix) of the Constitution: Thoms No 2 at [31] and [37] (Kiefel CJ, Keane and Gleeson JJ, Gageler and Steward JJ agreeing) and [64] and [67] (Gordon and Edelman JJ). Conversely, where circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that a person is not an alien (relevantly here, because they are an Aboriginal person within the tripartite test), s 189(1) would not validly empower the officer to detain the person: at [74] and [77] (Gordon and Edelman JJ).
Thus, the principal question that arises in this proceeding is whether circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that Mr Kapeli is not an alien within the principles stated in Love/Thoms.
The principles stated by the High Court in NZYQ
The duration of a person’s detention under s 189 is governed by s 196. Relevantly, s 196(1) stipulates that an unlawful non‑citizen detained under s 189 must be kept in immigration detention until, amongst other things, he or she is removed from Australia under s 198 or s 199, is deported under s 200, or is granted a visa.
Section 198 concerns the removal from Australia of unlawful non-citizens. Relevantly with respect to the facts in NZYQ, s 198(1) stipulates that an officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed. Section 198(6) provides as follows:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
In NZYQ, the High Court unanimously re-affirmed the following constitutional principle stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 33 concerning the validity, under Ch III of the Constitution, of a law authorising the detention of an alien:
In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.
The High Court in NZYQ framed the principle in Lim in the following manner (at [39]):
Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. In other words, detention is penal or punitive unless justified as otherwise.
The High Court concluded that the continuing detention under ss 189 and 196 of the Migration Act of an alien who is required to be removed from Australia under s 198 is contrary to Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future: at [44]-[45] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) and [54] (Edelman J).
The High Court decision in NZYQ concerned a person (the plaintiff) in immigration detention whose visa application had been finally determined such that a duty was imposed on officers of the Department by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable (at [4]). Additionally, the plaintiff wrote to the Minister requesting his removal, which engaged another duty imposed on officers by s 198(1) to remove the plaintiff from Australia. The plaintiff was a stateless Rohingya Muslim who was born in Myanmar. A delegate had determined that the plaintiff had a well-founded fear of persecution in Myanmar (at [3]), with the result that the Migration Act did not authorise his removal to Myanmar and there was no real prospect of him being provided with a right to enter or reside in another country (at [5]).
The purpose for which an alien may be detained under ss 189 and 196 is not limited to the removal of the person from Australia. It is also a legitimate and non-punitive purpose of detention to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined: NZYQ at [48]; see also Commonwealth v AJL20 (2021) 273 CLR 43 at [24]-[28] (Kiefel CJ, Gageler, Keane and Steward JJ) and Thoms No 2 at [39] (Kiefel CJ, Keane and Gleeson JJ) and [57] (Gordon and Edelman JJ).
D. THE EVIDENCE
Affidavits relied upon
Mr Kapeli’s summons dated 8 August 2024 was supported by an affidavit affirmed by James Clarke on 7 August 2024. As noted earlier, Mr Clarke is a solicitor employed by Gadens, the solicitors for Mr Kapeli in this proceeding.
On 16 August 2024, I made timetabling orders for the filing of evidence in the form of affidavits. Recognising that Mr Kapeli bears an initial evidentiary burden of establishing that there is a reason to suppose that his detention is unlawful, the orders required Mr Kapeli to file evidence first. The orders then provided for the filing of evidence in chief by the respondents, for the filing of responsive evidence by Mr Kapeli, and for the filing of reply evidence by the respondents.
Mr Kapeli initially filed the following two affidavits:
(a)An affidavit affirmed by Mr Kapeli on 20 August 2024, to which was annexed an earlier affidavit of Mr Kapeli affirmed on 2 August 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Mr Kapeli’s affidavit dated 2 August 2022 annexed a statement dated 13 April 2022.
(b)An affidavit affirmed by Michelle Donnelly on 20 August 2024, to which was annexed an affidavit of Michelle Donnelly affirmed on 1 August 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Michelle Donnelly is 62 years old and has lived in Forster, New South Wales, for over 40 years. She describes herself as a Bundjalung-Worimi Aboriginal woman and a Worimi elder. Michelle Donnelly’s father was Bundjalung and her mother was Worimi.
The respondents filed the following two affidavits being their proposed evidence in chief:
(a)An affidavit affirmed by Angela Wang on 27 August 2024. Ms Wang is an employee of the Department and is currently employed as a Status Resolution Officer (SRO) within the Department’s Status Resolution and Visa Cancellation Division. Ms Wang is the SRO assigned responsibility for Mr Kapeli, and is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189. Ms Wang deposed that she is satisfied that Mr Kapeli is not an Australian citizen, does not hold a visa, and is therefore an unlawful non-citizen and that Mr Kapeli does not satisfy the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court’s decision in Love/Thoms. In reaching that view, Ms Wang relied on legal advice provided to her by the AGS dated 19 August 2024.
(b)An affidavit affirmed by Christopher James Montgomery on 27 August 2024. Mr Montgomery is currently employed as a Senior Legal Officer within the Department’s Migration and Citizenship Litigation Branch.
Mr Kapeli filed the following further affidavits by way of responsive evidence:
(a)A further affidavit sworn by Mr Kapeli on 2 September 2024.
(b)A further affidavit affirmed by Michelle Donnelly on 2 September 2024.
(c)An affidavit sworn by Sarina Kapeli on 2 September 2024. Sarina Kapeli has been married to Mr Kapeli for 21 years. She describes herself as an Aboriginal woman from the Kuku Yalanji tribe which is from Far-North Queensland, and which was also her birth mother’s tribe.
(d)An affidavit affirmed by Desmond Donnelly on 3 September 2024. Mr Donnelly is the son of Michelle Donnelly. He is 43 years old and lives in Forster, New South Wales. He describes himself as an Aboriginal man of the Worimi tribe from the Forster-Tuncurry region.
(e)An affidavit sworn by Percy Simon on 2 September 2024. Percy Simon is 76 years old and lives in Forster, New South Wales. His mother was Worimi but he is not sure if his father was Worimi. He describes himself as a Worimi elder and deposed that he has traditional authority to make decisions about “our people” which authority has been passed down to him and others (including Michelle Donnelly) through elders now gone and that he is the oldest elder in Forster.
(f)An affidavit affirmed by Desmond Simon on 2 September 2024, to which was annexed an earlier affidavit of Mr Simon affirmed on 29 July 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Desmond Simon is 70 years old and has lived in Forster, New South Wales, most of his life. Both his father and mother were Worimi. He deposed that he is accepted as an elder in the Worimi community and that he has traditional knowledge and authority to make decisions for “my people”.
(g)An affidavit affirmed by James Clarke on 3 September 2024. By his affidavit, Mr Clarke sought to adduce in evidence a number of publications containing historical and ethnographic descriptions of the Aboriginal people in the Port Stephens and Hunter Valley areas in New South Wales and of the “Worimi Tribe”.
The respondents filed the following two affidavits by way of reply to Mr Kapeli’s responsive evidence:
(a)An affidavit affirmed by Mary Margaret Baras-Miller on 12 September 2024. Ms Baras-Miller is a lawyer at the AGS. Ms Baras-Miller deposed to information she obtained from the Services Australia Medicare Branch.
(b)A further affidavit affirmed by Angela Wang on 13 September 2024. In that affidavit, Ms Wang deposed to receiving and considering the seven further affidavits filed by Mr Kapeli in the proceeding, the affidavit of Ms Baras-Miller and further advice provided by the AGS dated 12 September 2024. Ms Wang deposed that she continues to be satisfied that Mr Kapeli does not meet the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court’s decision in Love/Thoms.
Mr Kapeli filed two further affidavits on 20 September 2024, outside the timetable set by the Court. The first was the affidavit of James Clarke affirmed that day which was referred to earlier in these reasons. That affidavit concerned the s 78B notices that had been given to the Attorneys-General and was uncontroversial. The second was a further affidavit of Mr Kapeli sworn that day. That affidavit concerned a medical episode experienced by Mr Kapeli on the evening of 26 June 2024 which resulted in him being taken to hospital in an ambulance. The respondents took no objection to the late filing of the further affidavit from Mr Kapeli.
Evidentiary objections
Each of the affidavits was read subject to rulings I made on evidentiary objections. In accordance with the orders of the Court, the parties conferred with respect to objections and reached a largely agreed position which was recorded in a document provided to the Court and marked for identification.
Objections to Mr Kapeli’s evidence
The respondents objected to a relatively small number of passages in Mr Kapeli’s evidence largely on the grounds of hearsay (under s 59 of the Evidence Act) and opinion (under s 76 of the Evidence Act). Ultimately, Mr Kapeli did not dispute that the passages were inadmissible under those exclusionary rules. However, Mr Kapeli submitted, and the respondents agreed, that the objectionable passages were admissible under ss 60 and 77 of the Evidence Act because they were relevant for a purpose other than proof of the facts asserted or expressed in the evidence. The relevance of the evidence lay in the fact that Ms Wang had taken into account Mr Kapeli’s evidence (including the objectionable passages) in making her decision about the ongoing detention of Mr Kapeli under s 189 of the Migration Act. I accepted that the evidence is relevant to the Court’s assessment of whether Ms Wang’s suspicion that Mr Kapeli was an unlawful non-citizen and was an alien (not being an Aboriginal Australian) was reasonable and is therefore admissible under ss 60 and 77 of the Evidence Act.
The effect of admitting evidence under ss 60 and 77 of the Evidence Act is that the evidence is admitted for all purposes, including as proof of the facts asserted or expressed in the evidence. The respondents sought a ruling from the Court under s 136 of the Evidence Act limiting the use to be made of the objectionable passages on the ground that there is a danger that using the evidence in proof of the facts asserted or expressed in the objectionable passages might be unfairly prejudicial to the respondents or be misleading or confusing. Mr Kapeli resisted that ruling. In my view, the present case is an exemplar of the circumstances in which it is appropriate to make a ruling under s 136 of the Evidence Act. I ruled that the use to be made of all of the objectional passages is limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act. The reasons for that ruling are as follows.
Sections 60 and 77 were enacted in their present form by the Evidence Amendment Act 2008 (Cth), implementing recommendations made in the Report on the Uniform Evidence Law published by the Australian Law Reform Commission, the NSW Law Reform Commission and the Victorian Law Reform Commission in December 2005 (ALRC 102). ALRC 102 recognised that evidence admitted under s 60 (and s 77) would remain subject to discretionary exclusion under ss 135 and 136, stating (at [7.65]):
The intention of s 60 was to enable evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the facts asserted in the representation, and to do so whether or not the evidence is first-hand or more remote hearsay, subject to the controls provided by ss 135–137.
The discretionary power to limit the use of admissible evidence in s 136 is stated as follows:
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
In Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; 224 ALR 317 (Seven Network No 8), Sackville J observed (at [16]) that, under s 136, the Court does not have to be satisfied that a particular use of evidence will be unfairly prejudicial; the court need only be satisfied that there is a danger that a particular use of evidence might be unfairly prejudicial.
In Quick v Stoland Pty Ltd (1998) 87 FCR 371, the Full Federal Court considered whether a use limitation should be made under s 136 in respect of hearsay material that formed a basis for expert opinion. Branson J observed (at 377–8) that, in cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 by exercising the discretion in s 136. Finkelstein J said (at 382) that, where the hearsay involves facts that are in conflict or facts that are unreliable, it is quite unsatisfactory for those facts to be proved by the operation of s 60, and that one way in which this problem can be overcome is by an order under s 136.
In a passage that has been referred to and applied on many occasions, Sperling J in Roach v Page (No 11) [2003] NSWSC 907 listed a number of considerations that are relevant to an assessment of the danger that a particular use of evidence might be unfairly prejudicial to a party (at [74]):
Having regard to the terms and context of ss 135, 136 and 137 and the case law to which I have referred, I set out my view of considerations relevant to “unfair prejudice” as follows.
(a) To say that any prejudice must be unfair prejudice is to state the obvious.
(b) The phrase “unfair prejudice” is not defined. The legislature imposed no restriction on the criteria for unfairness.
(c) The exceptions to the hearsay rule evince a legislative intention to allow evidence notwithstanding its hearsay character. But ss 135, 136 and 137 evince a legislative intention to allow any evidence, otherwise admissible, to be rejected or its use to be limited if the conditions specified in those sections are met.
(d) Where hearsay evidence is made admissible by an exception to the hearsay rule it would be wrong to exclude it or to limit its use merely because it is hearsay and therefore of inherently less reliable quality. That would be to frustrate the intention of the legislature in making hearsay evidence admissible where it is covered by an exception to the hearsay rule. But that is not the same as saying that there is scope for the application of ss 135, 136 and 137 in relation to hearsay evidence which is covered by such a statutory exception but where there is some additional factor, for example, where the maker of the representation is not to be called.
(e) Inability to test the truth of the representation is a legitimate ground for rejecting or limiting the use of evidence which is covered by an exception to the hearsay rule. Thus, whether the maker of the representation will be called as a witness is a relevant consideration.
(f) However, where hearsay evidence is admissible under an exception to the hearsay rule because of the unavailability of the maker of the representation, there is a special reason for not disallowing the evidence or limiting its use on the ground that the evidence cannot be tested by cross-examination. That is because the legislature has made the evidence admissible notwithstanding that consideration.
(g) Conversely, where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice.
(h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party’s case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness.
(i) Where ss 60 or 77 operate and the author of the document is not called, the truth of facts stated or the efficacy of the opinion expressed cannot be tested by cross-examination. The consequence of the operation of ss 60 or 77 is then potentially the more unfair on that account.
(j) The operation of s60 on assumption evidence which is given as the basis for an expert opinion is also a special case. Where such evidence is in the form of a bare statement of facts or where facts are stated as having been provided by some other person or persons, s60 operates to make the account evidence of the truth of the facts so stated. That is not so if the expert says that certain facts are assumed for the purpose of providing the opinion. A disadvantage should not be incurred in legal proceedings by happenstance. If the facts stated are contentious, it will ordinarily be unfair that the opposite party is fixed with assumption evidence as evidence of the truth of the facts stated by reason of those facts having been stated in one form rather than the other.
The passages of Mr Kapeli’s evidence to which objection was taken by the respondents frequently involved conclusory assertions containing a mixture of hearsay and opinion. By way of illustration, Mr Kapeli deposed that: “My Elders say I am Aboriginal and that they have culturally accepted me”. That evidence is hearsay because it concerns the statements and opinions of others. It also suffers from being a vague conclusory statement that unidentified “Elders” have “culturally accepted” Mr Kapeli.
As another illustration, Michelle Donnelly deposed that:
In around 2008, Samiuela was initiated into and accepted by our Aboriginal Worimi community during a ceremony. In our culture this ceremony is men’s business so I wasn’t there, but I was told about it.
Again, the evidence is inadmissible hearsay. Michelle Donnelly did not identify who told her that information, and no application was made to adduce the hearsay evidence under ss 63 or 64 of the Evidence Act.
In his affidavit affirmed 3 September 2024, Mr Clarke annexed the following extracts from the following publications:
(a)pages 2-13 and 24-29 of The Port Stephens Blacks: Recollections of William Scott by Gordon Bennett;
(b)pages 12-21 of The Earliest Inhabitants: Aboriginal Tribes of Dungog, Port Stephens and Gresford by Gordon Bennett;
(c)an article titled Further Notes on the Worimi by W.J. Enright from the August 1933 edition of the publication Mankind;
(d)an article titled The Worimi Tribe by W.J. Enright, published in a 1936 edition of the Newcastle and Hunter District Historical Society Journal and Proceedings;
(e)a chapter of Dr Helen Brayshaw’s thesis, titled Some Aspects of the Material Culture of the Aborigines of the Hunter Valley at the Time of First White Settlement in the Area;
(f)an article titled The Keeparra Ceremony of Initiation by R.H. Mathews from an 1896 edition of the Journal of the Anthropological Institute through the University of Newcastle’s Living Histories page;
(g)pages 1-23 of The Rainbow Beach Man: The Life and Times of Les Ridgeway, Worimi Elder by John Ramsland.
Mr Clarke deposed that he had observed that the authors of those publications had made comments in relation to initiation ceremonies of the Worimi people and Mr Clarke then reproduced passages from the above publications reflecting his “observations”. As noted above, Mr Clarke is Mr Kapeli’s solicitor. He does not depose that he has any qualifications as an anthropologist or has any specialised knowledge based on his training, study or experience that would qualify him to express any opinion about the initiation ceremonies of the Worimi people either historically or in current times. Accordingly, Mr Clarke’s “observations” are inadmissible opinion. It also follows that the publications annexed to his affidavit, which are hearsay documents, are not admissible as basis material for an admissible opinion pursuant to s 60 of the Evidence Act: see Bodney v Bennell (2008) 167 FCR 84 at [92]-[93] and the authorities referred to in Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 at [37]-[41]. No application was made to adduce the publications under s 63 of the Evidence Act.
Although the objectionable passages of Mr Kapeli’s evidence are inadmissible hearsay or opinion in this proceeding, they are nevertheless relevant material to be considered by the detaining officer, Ms Wang, in forming or maintaining the required suspicion under s 189 of the Migration Act. The objectionable passages were therefore necessarily considered by Ms Wang and, in her affidavits, Ms Wang deposed that she had taken all of Mr Kapeli’s evidence into account in forming her opinion for the purposes of s 189 of the Migration Act. It necessarily follows that all of Mr Kapeli’s evidence, including the objectionable passages, is relevant to a consideration of the basis on which Ms Wang formed her opinion and whether the suspicion held by Ms Wang was objectively reasonable. All of the evidence is therefore admissible under ss 60 or 77 for that non-hearsay purpose – not to prove (in this proceeding) the truth of the facts asserted or expressed in the evidence.
It is a circumstance of proceedings of this nature that all of the evidence adduced on behalf of an applicant – including evidence that is inadmissible because it is hearsay, or unqualified opinion, or vague and conclusory in form – must be considered by a detaining officer and therefore becomes admissible under ss 60 and 77 of the Evidence Act. In my view, it is unfairly prejudicial to the respondent if the applicant is permitted to use such evidence as proof of the facts asserted or expressed in the evidence. By definition, hearsay evidence cannot be tested because the person who made the previous representation is unavailable to be cross-examined. It is also unfair to a party to require them to cross-examine a deponent in respect of unqualified opinions and vague and conclusory evidence.
In a number of cases, courts have observed that the danger that a particular use of evidence might be unfairly prejudicial to a party is less acute in a trial before a judge rather than a jury, because a judge can address the unfair prejudice by giving the objectionable evidence little weight. In Seven Network (No 8), Sackville J stated (at [21]):
I agree … that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the court to make a direction limiting the use of otherwise admissible evidence.
In the present case, I consider that the threshold requirements for limiting the use of the objectionable passages from Mr Kapeli’s evidence are satisfied in that there is a danger that using the evidence in proof of the facts asserted or expressed in those passages might be unfairly prejudicial to the respondents. I accept that the unfair prejudice might be ameliorated by assigning the evidence little (if any) weight having regard to its character. It might be questioned whether the practical result of either approach differs (that is, limiting the use to be made of the evidence or assigning it little weight). In my view, having regard to the character of the evidence and the circumstances in which it is being admitted, this is an appropriate case in which the use of the objectionable passages should be limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act.
Objections to the respondents’ evidence
Mr Kapeli objected to a relatively small number of passages in Ms Wang’s evidence, largely on the grounds of hearsay (under s 59 of the Evidence Act). I overruled certain of the objections on the basis that the evidence was a business record within s 69 of the Evidence Act. In respect of the other objections, the parties agreed that, as the evidence had been considered by Ms Wang in forming her opinion under s 189 of the Migration Act, the evidence was relevant to the Court’s assessment of whether Ms Wang’s suspicion that Mr Kapeli was an unlawful non-citizen and was an alien (not being an Aboriginal person) was reasonable and was therefore admissible under s 60 of the Evidence Act.
Mr Kapeli sought a ruling from the Court under s 136 of the Evidence Act limiting the use to be made of the objectionable passages on the ground that there is a danger that using the evidence in proof of the facts asserted or expressed in the objectionable passages might be unfairly prejudicial to him. I made that ruling for the same reasons as given in respect of Mr Kapeli’s evidence.
Credibility and reliability of the witness evidence
As noted earlier, the respondents cross-examined two witnesses, Mr Kapeli and Sarina Kapeli. The respondents challenged Mr Kapeli’s credit, but there was no challenge to Sarina Kapeli’s credit.
Mr Kapeli cross-examined Ms Wang, but there was no challenge to Ms Wang’s credit.
Samiuela Kapeli
The respondents submitted that Mr Kapeli gave untruthful answers to certain questions and was evasive in answering certain questions. I accept that submission. I formed the impression from the answers given by Mr Kapeli, and the manner in which he gave the answers, that Mr Kapeli wished to avoid providing information about his Tongan ancestry because he believed that such information would be harmful to his claim that he is an Aboriginal Australian. Mr Kapeli did not claim to have Aboriginal biological ancestry, but frequently asserted that he does not know his ancestry and therefore does not know whether he has Aboriginal biological ancestry.
As discussed further below, it is uncontroversial that Mr Kapeli was born in Tonga and was adopted and raised from infancy by his great aunt (the sister of his grandfather on his father’s side), Pisila Taulupe, and her husband, Tangaki Taulupe Latu. He deposed that he did not know his biological parents and was not challenged on that evidence. At the beginning of his cross-examination, however, Mr Kapeli was asked whether he knew the names of his biological mother and father and the country in which each of them were born. He answered “no” to each of those questions. A little later, he was pressed further and the following exchange occurred:
And sitting there as you are now, you've got no recollection of your parents' names?
This is the hardest part of my life. I've never been told, I've never been asked. With all my life - I'm 41 years old. I would love to know, but the hardest part is they abandoned me, for two weeks old. It has broken my heart. Okay. No.
And have you ever tried to find out their names?
No.
I find that those answers were untruthful. The names of Mr Kapeli’s biological parents and the country and town in which they were born are recorded in a number of documents associated with Mr Kapeli’s migration to Australia and which originate from Mr Kapeli.
Mr Kapeli contends that the AGS legal advice, on which the detaining officer relied, was not a reasonable advice because it did not consider whether the first limb of the tripartite test can be met by way of adoption into an Aboriginal society.
I reject that submission. I consider that the AGS legal advice given to the detaining officer was correct. The advice was to the effect that a non-citizen, who has no Aboriginal ancestry, is not an Aboriginal Australian within the meaning of that expression in the majority judgments in Love/Thoms, and is thereby a person who is within the reach of the aliens power conferred by s 51(xix) of the Constitution. The detaining officer acted reasonably in relying upon that advice.
I also reject Mr Kapeli’s submission that, even if the Court concludes that the ultimate opinion expressed in the AGS legal advice is correct, the advice is unreasonable because it failed to give express consideration to adoption as a means of satisfying the first limb of the tripartite test. The submission is factually incorrect. The AGS legal advice dated 12 September 2024 considered the statements in McHugh (by Allsop CJ and Mortimer J) and in Helmbright (by Mortimer J) with respect to biological descent and adoption, but concluded that biological descent is a necessary requirement of being an Aboriginal Australian within the meaning of the majority judgments in Love/Thoms. In my view, that conclusion is correct and, by definition, reasonable. Even if an appellate court determines in the future that that conclusion is incorrect, I would still find that, on the current state of the authorities, the conclusion is reasonable and that the detaining officer is acting reasonably in relying on that advice.
Is Mr Kapeli’s detention lawful having regard to the principles in NZYQ?
As set out earlier, the sixth basis on which Mr Kapeli submitted that the writ of habeas corpus should be granted relies upon the application of the principles in NZYQ. Mr Kapeli’s contentions involve two steps. The first step is that Mr Kapeli’s current detention is not for the purpose of investigating and determining his immigration status, because Mr Kapeli is the subject of an extant duty of removal under s 198(5) of the Migration Act. The second step is that there is no real prospect of the removal of Mr Kapeli from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether Mr Kapeli is an Aboriginal Australian. Each step will be considered in turn.
The purpose of Mr Kapeli’s immigration detention
As noted earlier in these reasons, the purpose for which an alien may be detained under ss 189 and 196 of the Migration Act is not limited to the removal of the person from Australia. It is also a legitimate and non-punitive purpose of detention to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined.
In the present case, it is uncontroversial that: Mr Kapeli’s visa was cancelled under s 501(3A); Mr Kapeli has been invited, in accordance with s 501CA, to make representations to the Minister about revocation of the decision to cancel his visa; and Mr Kapeli has made representations in accordance with the invitation but the Minister has not yet decided whether to revoke the cancellation of his visa.
On the basis of the foregoing facts, the short answer to Mr Kapeli’s contention that his detention is unlawful having regard to the principles in NZYQ is that he is not being detained for the purpose of removal from Australia because his immigration status is being investigated and determined. A possible outcome of Mr Kapeli’s representations under s 501CA is that the Minister decides to revoke the cancellation of his visa.
To meet that answer, Mr Kapeli submitted that he is the subject of an extant duty of removal under s 198(5) of the Migration Act. That submission, raised for the first time in closing submissions, necessitated the filing of written submissions by the parties on the question of the proper construction of s 198. Having considered those written submissions, I conclude that Mr Kapeli’s submission should be rejected. My reasons for that conclusion follow.
Section 198 of the Migration Act
Section 198 is a lengthy and complex provision which defines the circumstances in which an officer must remove an unlawful non-citizen from Australia. There are many such circumstances which are separately defined in subss (1), (1A), (1C), (2), (2A), (2B), (5), (6), (7) and (8). Each of those subsections states that an “officer must remove as soon as reasonably practicable an unlawful non-citizen” who meets the specific circumstances defined in the subsection. The parties’ arguments focus on subss (1), (2A), (2B) and (5). It is convenient to reproduce those subsections, without losing sight of the overall structure of the section:
198Removal from Australia of unlawful non‑citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
…
Removal of unlawful non‑citizens in other circumstances
…
(2A) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is covered by subparagraph 193(1)(a)(iv); and
(b) since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c) in a case where the non‑citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision—either:
(i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
(2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
…
(5) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:
(a) is a detainee; and
(b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non‑citizen has made a valid application for a bridging visa.
Mr Kapeli’s oral submissions at the hearing
Mr Kapeli submitted that s 198(5) applies to his circumstances because he is a detainee and he has not applied for a substantive visa in accordance with s 195(1) nor applied under s 137K for revocation of the cancellation of a substantive visa. As a result, Mr Kapeli is subject to immediate removal from Australia. Mr Kapeli acknowledged that s 198(2B) would also be applicable to his circumstances, save that the Minister has not yet made a decision whether to revoke the cancellation of his visa in response to Mr Kapeli’s representations. Mr Kapeli submitted that there is no warrant for reading down the language of s 198(5) by reason of any implication arising from s 198(2B). Mr Kapeli submitted that each subsection of s 198 creates a stand-alone duty to remove an unlawful non-citizen. In that respect, Mr Kapeli pointed to s 198(1) which creates an immediate duty to remove an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
The respondents’ written submissions post-hearing
The respondents submitted that, properly construed, s 198(5) has no application to a person who falls within the scope of s 198(2B), save that no decision has yet been made by the Minister whether to revoke the cancellation of the relevant visa under s 501CA. In other words, s 198 should be construed such that, where a person satisfies the conditions in s 198(2B)(a) and (b), and has made representations under s 501CA, but in respect of which no decision has yet been made under s 501CA, that person is not subject to a removal duty under s 198(5). The respondents submitted that to construe s 198(5) as applying to such a person would be to cut across the intended operation of s 198(2B) and would cause substantial injustice to affected persons. The respondents submitted that this construction is supported by both purposive and contextual considerations, including the legislative history, and by authority.
The respondents submitted that it is clear from the terms of s 198(2B) that Parliament’s intention is that a person whose visa has been cancelled by the Minister’s delegate under s 501(3A), who has not since applied for a substantive visa, and who has made representations seeking revocation of that cancellation decision, is not to be removed until a decision is made by the Minister in response to those representations under s 501CA of the Act. However, if Mr Kapeli’s construction of s 198 is accepted, such a person could be removed under s 198(5) before the Minister makes a decision under s 501CA. The respondents submitted that such a construction would therefore conflict with the apparent purpose of s 198(2B), and would render the requirement in s 198(2B)(c) otiose. The respondents also submitted that Mr Kapeli’s construction would also give rise to unfair and perverse results. It would deprive persons of the benefit of the scheme for revocation of cancellation, because it would expose them to removal before their request for revocation had been determined.
The respondents referred to three authorities that support the respondents’ submission concerning the purpose of s 198(2B) (albeit that those cases did not consider the interaction between ss 198(2B) and (5) and the issue that arises in this case):
(a)In BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43 (BDS20), the Full Court was concerned with the question whether the Minister could invite a person to make representations under s 501CA(3) more than once. As a contextual matter bearing upon that question, Banks-Smith and Jackson JJ observed (at [112]) that: “Section 198(2B)(c) is describing the way that the obligation to remove the non-citizen can be deferred pending the outcome of a process to determine whether to revoke the cancellation of the visa”. The respondents noted that BDS20 was overturned on appeal by the High Court in accordance with consent orders, but on the unrelated basis that the purported invitation to the appellant under s 501CA(3) was invalid (see [2022] HCATrans 41). The respondents submitted that the reasoning in BSD20 remains persuasive, and was adopted by Allsop CJ in Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 521 at [9].
(b)In McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258, the principal issue was whether the Minister’s decision not to revoke the cancellation of a visa under s 501CA was invalid. Justice Colvin found that it was invalid and quashed the purported decision. That raised the question of whether mandamus should issue, and on what terms. In the course of his Honour’s reasons, Colvin J concluded that there is an obligation for the Minister to undertake the statutory task as required by s 501CA within a reasonable period of any representations being made (at [114]). His Honour observed that, if that were not the case:
It would also mean that a person could be held in immigration detention indefinitely. That is because the Migration Act qualifies the statutory obligation to remove an ‘unlawful non-citizen’ (a non-citizen in Australia who does not hold a visa: see s 13 and s 14) in cases where the procedure in s 501CA must be followed. Section 193(1), s 198(2A) and s 198(2B) provide that where s 501CA applies and a person has made representations about revocation, the obligation to remove does not arise until a decision has been made not to revoke the cancellation. If there is no statutory obligation for the decision to be made within a reasonable period then there could be indefinite detention of a person who seeks revocation of a decision to cancel their visa.
(c)In Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653, Middleton J observed (at [105]):
… as a consequence of s 198(2A), no immediate obligation to remove the Applicant as soon as reasonably practicable arose at the point of cancellation. The obligation to remove would only arise upon the happening of certain further contingencies, including that the Applicant either not make representations for revocation within the period for doing so, or that he make representations and the Minister makes a subsequent and separate decision not to revoke the cancellation decision.
The respondents submitted that the relationship between ss 198(2B) and (5) is readily explained on the basis of the interpretive principle stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 and Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678. Parliament has by ss 198(2B) and (5) conferred the “same power” (removal as soon as reasonably practicable) and there is substantial overlap between the conditions for the enlivenment of the power. However, by s 198(2B)(c), Parliament has prescribed an additional restriction on the power, which should be construed as excluding the operation of the general provision in s 198(5) that would otherwise apply.
The respondents observed that the same interpretative difficulty does not arise with respect to s 198(1) because the duty to remove an unlawful non-citizen arises from entirely different circumstances: viz, a written request for removal from the person being detained.
The respondents further submitted that their preferred construction of s 198 is supported by the legislative history.
Before 1 June 1999, a person whose visa was cancelled, and who was consequently detained under s 189 of the Migration Act, was required to be told about the consequences of cancellation under s 194 (including the right to apply for a visa under s 195 or for revocation of cancellation under s 137K) and could relevantly apply for a visa under s 195. Section 137K is part of the scheme for the automatic cancellation of student visas inserted by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) which is not presently relevant. The only removal duty in respect of such a person was contained in s 198(5), which then provided:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
(a) is a detainee; and
(b) was entitled to apply for a visa in accordance with section 195 but did not do so.
On 1 June 1999, the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (1998 Amendment Act) inserted s 193(1)(a)(iv) into the Migration Act. One effect of that insertion was to disapply ss 194 and 195 to persons detained under s 189 because of a personal decision of the Minister to refuse or cancel their visa under ss 501, 501A or 501B. By extension, that insertion had the further effect that the removal duty under s 198(5) could no longer apply in respect of such persons (as such persons were not entitled to apply for a visa in accordance with s 195). The 1998 Amendment Act also inserted s 198(2A), which created a new removal duty for persons detained because of a personal decision of the Minister. Accordingly, at this time, a person who satisfied the conditions in s 198(2A) could only be removed from Australia under that subsection. The person could not be removed under s 198(5). It was only if, and when, the Minister made an adverse revocation decision that the removal duty under s 198(2A) was engaged.
The Migration Legislation Amendment Act (No 1) 2014 (Cth) repealed and substituted s 198(5)(b), so that it thereafter provided (emphasis added):
(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
(a) is a detainee; and
(b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen has made a valid application for a bridging visa.
The respondents submitted that s 198(5)(b) was re-expressed as applying to persons who had not, as a matter of fact, applied for a visa under s 195. The respondents acknowledged that the change in language in s 198(5)(b) opened up a possible argument that a person who hitherto could only have been removed under 198(2A) and not (5) (because they were not “entitled” to make an application under s 195) could now also be removed under s 198(5). The respondents submitted that there is no indication in the extrinsic materials that there was any intention to change s 198(5) insofar as it applied to persons detained because of a personal decision of the Minister.
I interpolate at this point that the respondents’ submissions did not expressly refer to the possibility that, despite the change in the language of s 198(5)(b), the section should be construed as containing an implicit condition that the detainee is entitled to apply for a substantive visa in accordance with s 195(1) or to apply under s 137K for revocation of the cancellation of a substantive visa. It would be non-sensical for the duty of removal to arise because the detainee has not applied for a visa under s 195 or the revocation of the cancellation of a visa under s 137K, but where the detainee has no legal right to make those applications.
The final steps in the legislative history are that, on 11 December 2014, the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) inserted into the Migration Act the scheme of mandatory cancellation in s 501(3A), and revocation of the cancellation in s 501C. Then, on 23 February 2017, the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) inserted s 198(2B) into the Migration Act. That provision replicates s 198(2A) but applies only to cancellation decisions made by delegates of the Minister under s 501(3A) and corresponding revocation processes under s 501CA.
The respondents submitted that the legislative history indicates that:
(a)the clear intent when s 198(2A) was first enacted was that the subsection would confer the only power to remove persons whose visas had been cancelled by the Minister personally under s 501, and there has never been any intention to depart from this; and
(b)the apparent purpose of inserting s 198(2B) into the Migration Act was to align the removal regime applicable to persons whose visas were cancelled by delegates with the regime in s 198(2A) (which is applicable to persons whose visas were cancelled by the Minister personally).
Mr Kapeli’s written submissions in reply post-hearing
Mr Kapeli’s written submissions in reply post-hearing were unpersuasive. The submissions were based on mischaracterisations and, on occasion, misstatements of authority and a perverse argument that the purpose of the power of removal in s 198 of the Migration Act was the “restoration of liberty” and the “protection of liberty”. The submissions were replete with quotations of phrases or sentences from other decisions of this Court – what might be described as “snippets” – where the snippet was taken entirely out of context and where the ratio of the decision is either irrelevant to Mr Kapeli’s contention or, worse, contrary to Mr Kapeli’s contention.
Mr Kapeli’s submissions commenced by citing SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 (SPKB) at [101]-[103] as support for the proposition that “each sub-section of s 198 operates in its terms as soon as the conditions within the subsection have been satisfied”. That submission involves a mischaracterisation, if not a misstatement, of the reasons of Lander J. His Honour stated (at [103]) that: “Section 198(6) operates in its terms as soon as the conditions within the subsection have been satisfied”. His Honour’s statement was only concerned with s 198(6), and his Honour was not addressing the circumstance, which arises in this case, about the potential overlap and conflict between two subsections of s 198.
Next, Mr Kapeli’s submissions propounded that the removal power in s 198 has a “focus on the restoration of liberty”, that the statutory purpose is “to compel removing officers to restore a person’s liberty with maximum haste”, and that this purpose “is consistent with the prime importance given by the law generally to the protection of liberty”. The submission inverts the statutory purpose of detention and removal under the Migration Act. The purpose of the removal power is to expel or deport from Australia an alien who has no legal right to remain, and the purpose of detention is in aid of the purpose of expulsion or deportation: Lim at 32 and 33 (Brennan, Deane and Dawson JJ). As Nettle J observed in Falzon (at [92], citations omitted):
… As a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country. Consequently, as was decided in Robtelmes v Brenan and has ever since been regarded as settled law, Parliament has power under s 51(xix) of the Constitution to make laws for the deportation of non-citizens for whatever reason Parliament thinks fit. And, as Gibbs CJ observed in Pochi v Macphee, it is only to be expected that it should be so; for such a power is essential to national security.
It can be accepted that s 198 requires removal as soon as reasonably practicable and there is a legitimate concern with respect to lengthy and indefinite detention. As affirmed by the High Court in NZYQ, continuing detention is unlawful if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. But Mr Kapeli’s submission that the purpose of removal is the “restoration of liberty” ignores a fundamental countervailing consideration: the entitlement of an unlawful non-citizen to pursue lawful means under the Migration Act to remain in Australia rather than be expelled or deported. Section 198 balances those countervailing considerations by, on the one hand, empowering a detainee under s 198(1) to request their removal from Australia and, on the other hand, conditioning the power of removal on the finalisation of available avenues to obtain a visa to remain in Australia (and be released from detention).
It is in that context that Mr Kapeli’s submissions misapply snippets from numerous authorities. It is unnecessary to refer to every snippet quoted by Mr Kapeli. The following examples illustrate the flaws in Mr Kapeli’s submissions.
First, Mr Kapeli cited Le as next friend for Lin Yan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 388 in support of the proposition that the removal powers in the Migration Act have long been recognised as “directed to the prevention of unjustified detention”. The report of the judgment in the Administrative Law Decisions (cited by Mr Kapeli) is only a headnote. The head note states that Gallop J decided (amongst other things) that s 54P of the Migration Act (the predecessor to s 198) is directed to the prevention of unjustified detention and not to the frustration of the capacity of the designated person to seek review from the courts. The statement in the headnote is somewhat obscure, but indicates a concern that the removal power is not to be used to prevent a detainee from having a relevant migration decision challenged in Australian courts. The unreported judgment (number 669 of 1994, 1 September 1994) reveals that Gallop J adopted a submission made by the applicant to the effect stated in the headnote, set out above. However, the unreported judgment clarifies that the applicant’s submission in that case was made in reliance on the decision of Burchett J in Khim v Minister for Immigration (1993) 39 FCR 535 where his Honour observed (at 536) that precipitate action (ie, deportation pursuant to s 54P), if taken in cases involving refugee claims, might lead not merely to denials of justice but to underserved imprisonment or execution of the deportee (in both cases, in the receiving country). Read in context, the decision of Gallop J stands for the opposite principle than the one asserted by Mr Kapeli; it stands for the principle that s 54P is not intended to frustrate the entitlement of a detainee to remain in Australia while seeking lawful review of the relevant migration decision that renders them an unlawful non-citizen.
Second, Mr Kapeli cited the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 (Al Masri) at [122] in support of the proposition that Parliament was working on the assumption that s 196 and s 198 would together operate to bring detention to an end. That statement appears in the judgment of the Full Court, but the passage in which it appears is directed to the issue of indefinite detention and the ability of the detainee to bring their detention to an end by requesting removal under s 198(1). The Full Court observed (at [122]):
Although the expression “reasonably practicable” in s 198 does not imply immediacy, the conferral upon a person detained of the power to enliven the mechanism for removal, and the duty to engage that mechanism, suggests again that Parliament was working on the assumption that ss 196 and 198 would together operate to bring detention to an end, and that it was not acting upon the very different understanding that they would operate together even where there was no real prospect of removal and thus no real prospect of detention coming to an end within any reasonably foreseeable timeframe.
The Full Court concluded in that case that the power to detain under s 196(1)(a) of the Migration Act is subject to an implied limitation that the period of mandatory detention does not extend to a time where there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention, a principle in accordance with the High Court’s decision in Lim and that has now been affirmed by the High Court in NZYQ. Thus, properly understood, the decision in Al Masri provides no support for Mr Kapeli’s contention. Section 198 does not operate to restore a person’s liberty; rather, to the extent that s 196 operates to detain a person indefinitely, it is beyond power and the person must be released from detention.
Third, Mr Kapeli cited Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483 at [143] in support of the proposition that the intended effect of s 198(5) and other sub-sections of s 198 is to restore the detainee’s liberty by removing the person from Australia and immigration detention. Again, that statement appears in the reasons of Feutrill J (in so far as it refers to s 198(5)), but the passage in which it appears is to a different effect. At that point of the reasons, his Honour was considering whether to continue an interlocutory injunction preventing the Minister from removing the detainee from Australia. In that context, his Honour observed (at [143]):
There is an evident tension between the intended effect of s 198(5), which is to restore the detainee’s liberty by removing the person from Australia and immigration detention, and the appellant’s desire to remain in Australia pending his appeal and the potential reconsideration of his application for the grant of a visa, which will result in the appellant remaining in immigration detention until a visa is granted or he is removed from Australia. As a consequence, if the appeal were to fail (as it has), the appellant would remain in detention for a longer period of time than would otherwise have been the case. Against that, I have taken into account that it is the appellant’s desire to remain in Australia and that he must be taken to understand the consequence of the grant of the injunction.
As can be seen from the above passage, his Honour appreciated that the effect of an injunction would prolong detention, but the appellant chose that option in order to pursue legal avenues to remain in Australia.
Fourth, Mr Kapeli cited M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at [54]-[55] in support of the proposition that no sub-section of s 198 gives an officer a choice – he or she is obliged to remove a person from Australia if the conditions set out in the provision are satisfied. The submission is a misstatement of the reasons of the Court. In a joint judgment, Goldberg, Weinberg and Kenny JJ stated that s 198(6) does not give an officer a choice, explaining that the subsection imposes a duty and does not merely confer a power. However, like SPKB, their Honours’ statement was only concerned with s 198(6), and their Honours were not addressing the circumstance, which arises in this case, about the potential overlap and conflict between two subsections of s 198.
Fifth, Mr Kapeli cited BDS20 at [110] in support of the proposition that the detention of the person which is mandatory under s 189 causes suffering to the detainee and cost to the Commonwealth and it should not be permitted to continue longer than necessary. Again, that statement appears in the joint reasons of Banks-Smith and Jackson JJ, but the statement is not concerned with the power of removal under s 198 and provides no support for Mr Kapeli’s contention that the purpose of the power of removal is the restoration of liberty. The statement concerned the proper construction of s 501CA(3)(b) and whether the Minister was legally entitled to invite representations with respect to the revocation of the cancellation of a visa on more than one occasion. In that context, Banks-Smith and Jackson JJ said (at [110]):
Our construction of the power conferred by s 501CA(3) is also consistent with other aspects of the Migration Act. The detention of the person which is mandatory under s 189 causes suffering to the detainee and cost to the Commonwealth. It should not be permitted to continue longer than necessary. This supports a view of s 501CA(3) that it provides a limited window of time within which the possibility of revocation, which will necessarily extend any immigration detention, is to be invoked.
Two matters can be observed from the quoted paragraph. First, it says nothing about the purpose of s 198 and provides no support for Mr Kapeli’s contention. Second, it highlights the importance of the procedure under s 501CA by which a person whose visa has been mandatorily cancelled under s 501(3A) can seek revocation of that cancellation. Subsections 198(2A) and (2B) address those procedures and impose a duty of removal only after those procedures have been followed.
Mr Kapeli submitted that the contention that multiple removal obligations under s 198 can persist and co-exist is recognised by the following passage in the joint judgment of Gageler and Gordon JJ in Falzon (at [86], with whom Nettle J agreed at [92]):
At all times while the plaintiff has been detained, the Act has imposed a duty on an officer to remove the plaintiff as soon as reasonably practicable. When the plaintiff was first taken into immigration detention on 14 March 2016, the obligation to remove him was to be found in s 198(5) of the Act, because he had not applied for a visa under s 195(1). In addition, the effect of s 198(2B) is that it applies "in relation to" both the decision to cancel the plaintiff's visa and the invitation issued to the plaintiff to make representations about revocation. Since its commencement, that sub-section has imposed an obligation on an officer to remove the plaintiff as soon as reasonably practicable following the decision not to revoke the cancellation of his visa.
Two observations can be made about that passage. First, the issue raised in this proceeding was not before the High Court in Falzon. Second, the above passage might be understood as conveying the opposite meaning to that submitted by Mr Kapeli. It is apparent from the passage that Gageler and Gordon JJ were conscious of the legislative history of s 198. That explains their Honours’ statement that, when the plaintiff was first taken into immigration detention on 14 March 2016, the obligation to remove him was to be found in s 198(5) of the Act. That statement recognises that s 198(2B) was not introduced until 23 February 2017. Their Honours then address s 198(2B) separately and in a manner that suggests their Honours perceived that s 198(2B) was the provision that applied to the plaintiff’s circumstances.
Conclusion with respect to s 198(5)
I accept the submissions of the respondents that, on the proper construction of s 198, Mr Kapeli is not the subject of an extant duty of removal under s 198(5).
In my view, it is clear from the terms of s 198(2B) that Parliament’s intention is that a person whose visa has been cancelled by the Minister’s delegate under s 501(3A), who has not since applied for a substantive visa, and who has made representations seeking revocation of that cancellation decision, is not to be removed until a decision is made by the Minister in response to those representations under s 501CA of the Act. That construction of s 198 is supported by application of the Anthony Horden principle of construction, and recognises that Parliament has legislated specifically for the circumstances referred to in s 198(2B).
As acknowledged by the respondents, the language of s 198(5) is inapt. Read literally, it undermines the clear purpose of s 198(2B) stated above: that a person is not to be removed until a decision is made by the Minister with respect to revocation under s 501CA of the Act. As submitted by the respondents, reading s 198(5) literally would render s 198(2B)(c) otiose. Such a construction is to be avoided. It is to be hoped that Parliament gives attention to the inapt language with which s 198(5) is framed.
It follows that Mr Kapeli’s current detention is not for the purpose of removal under s 198. The purpose of his detention is to investigate and determine his immigration status. A possible outcome of Mr Kapeli’s representations under s 501CA is that the Minister decides to revoke the cancellation of his visa. The principles stated in NZYQ therefore have no application to Mr Kapeli’s circumstances and Mr Kapeli’s contention that his detention is unlawful on the basis of those principles must be rejected.
The prospect of Mr Kapeli’s removal from Australia
I record for completeness that, even if Mr Kapeli were the subject of an extant duty of removal under s 198(5) of the Migration Act, I am not persuaded that the principles in NZYQ are engaged on the facts of this case.
Mr Kapeli’s contention is that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. I have earlier found that, on the balance of probabilities, Mr Kapeli is a person of Tongan descent. As such, he is not an Aboriginal Australian within the meaning of that expression in the majority judgments in Love/Thoms, and is thereby a person who is within the reach of the aliens power conferred by s 51(xix) of the Constitution. In my view, there is no impediment to Mr Kapeli’s removal from Australia arising from a need for continued investigations as to whether Mr Kapeli is an Aboriginal Australian.
H. CONCLUSION
In conclusion, Mr Kapeli’s application for a writ of habeas corpus is dismissed. I reject Mr Kapeli’s contention that he is an Aboriginal Australian within the principles stated by the High Court in Love/Thoms and therefore is not an alien to whom the power of detention and removal under the Migration Act are applicable. I also reject Mr Kapeli’s contention that s 189 does not authorise his continued detention having regard to the decision of the High Court in NZYQ.
Mr Kapeli’s application has failed and Mr Kapeli has also been unsuccessful on every issue advanced by him. In those circumstances, there is no apparent reason why the usual order as to costs should not be made. At the conclusion of the hearing, however, Mr Kapeli sought an opportunity to make submissions about the costs of the proceeding following the determination of the application. I will therefore make orders that Mr Kapeli pay the respondents’ costs of the proceeding, but provide Mr Kapeli with an opportunity to apply to vary that order.
I certify that the preceding three hundred and forty-eight (348) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 29 October 2024
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