McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCAFC 223
•11 December 2020
FEDERAL COURT OF AUSTRALIA
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223
Appeal from: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 File number: VID 270 of 2020 Judges: ALLSOP CJ, BESANKO AND MORTIMER JJ Date of judgment: 11 December 2020 Catchwords: MIGRATION – appeal from decision of single judge of the Federal Court of Australia – judicial review of Minister’s decision not to revoke cancellation of appellant’s absorbed person visa – appellant in immigration detention – appellant born in Cook Islands – appellant claims he is an Aboriginal Australian – appellant claims he is an Australian citizen – application for a writ of habeas corpus – whether appellant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – whether an officer held a reasonable suspicion that the appellant was an unlawful non-citizen at the time of trial – where no officer responsible for appellant’s detention at point of trial gave evidence – where no documentary evidence tendered that related to the state of mind of any detaining officer at point of trial – where no evidence tended to prove that any detaining officer had turned his or her mind to whether the appellant was an Aboriginal Australian – whether officer’s suspicion could be inferred – whether presumption of continuance applied – appeal allowed
HIGH COURT AND FEDERAL COURT – original jurisdiction of Federal Court of Australia – whether Federal Court has authority and power to issue a writ of habeas corpus – s 23 of the Federal Court of Australia Act 1976 (Cth) – application of s 476A of the Migration Act – meaning of “jurisdiction in relation to a migration decision” – Federal Court has power to issue a writ of habeas corpus and such power has not been ousted or limited in any way by s 476A(1) of the Migration Act – appeal allowed
ADMINISTRATIVE LAW – habeas corpus – history, nature and effect of remedy – onus of proof – whether legal onus of proving the unlawfulness of the appellant’s restraint borne by appellant – where primary judge applied a “shifting” onus of proof – whether appellant required to satisfy initial evidential onus in relation to claim of Aboriginality – Minister bears onus of proving the lawfulness of detention and must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers at the time of trial – appeal allowed
CITIZENSHIP – appellant born in Cook Islands – appellant arrived in Australia at age 7 – appellant adopted in Queensland at age 8 – appellant’s birth registered in Queensland at the same time – s 31(2) of the Adoption of Children Act 1964 (Qld) deemed applicant’s “domicile of origin” to be domicile of adopters at time of adoption – whether applicant was “born in Australia” – appellant enrolled on Commonwealth electoral roll in 1986 – appellant voted in 1987 Australian federal election – appellant issued an Australian passport in 2017 – whether the appellant is an Australian citizen
STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – whether phrase “born in Australia” is limited to physical birth within the geographical territory of Australia
EVIDENCE – hearsay – business records – s 69(3) of the Evidence Act 1995 (Cth) – whether records of Department of Home Affairs were prepared or obtained for the purpose of conducting, or in contemplation of, an Australian proceeding – phrase “in contemplation of” refers to the person who prepared the representation or who obtained it – the officers whose views are recorded in the documents were unlikely to have contemplated that proceedings about the appellant’s detention were reasonably probable
Legislation: Constitution ss 51(xix), 51(xxxix), 75(iii), 75(v)
Acts Interpretation Act 1901 (Cth) s 15A
Australian Citizenship Act 1948 (Cth) ss 5, 10, 10A, 11, 39
Australian Citizenship Act 2007 (Cth) s 4
Evidence Act 1995 (Cth) ss 60, 66A, 69
Federal Court of Australia Act 1976 (Cth) ss 18BAA, 23, 32, 37, 40, 54, 55
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5, 13, 14, 34, 189, 196, 200, 474, 475, 476A, 501, 501A, 501B, 501BA, 501C, 501CA
Migration Litigation Reform Act 2005 (Cth)
Native Title Act 1993 (Cth)
High Court Rules 1952 (Cth)
High Court Rules 2004 (Cth)
Adoption Act 1931 (Qld)
Adoption Act 2000 (NSW) s 4
Adoption of Children Act 1964 (Qld) ss 28, 31
Cases cited: AJL20 v Commonwealth [2020] FCA 1305
Akiba v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1
Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; 192 ALR 609
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352, 136 FCR 291
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1
Attorney-General of the Commonwealth v Queensland [1990] FCA 358; 25 FCR 125
Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; 147 FCR 235
BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 351; 348 ALR 227
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
Burgess v Commonwealth of Australia [2020] FCA 670; 378 ALR 501
Bushell’s Case 2 Jon 13
CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1
Coco v The Queen [1994] HCA 15; 179 CLR 427
Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1
Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604
DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156
Dien v Manager of Immigration Detention Centre at Port Hedland (1993) 115 FLR 416; sub nom Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729
Dillon v The Queen [1982] AC 484
DJL v Central Authority [2000] HCA 17; 201 CLR 226
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309
Ex p Susannah Nicholls (1845) Reserved & Equity Judgments of NSW 11
Felton v Mulligan [1971] HCA 39; 124 CLR 367
Fencott v Muller [1983] HCA 12; 152 CLR 570
FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 251
Gibbs v Capewell [1995] FCA 25; 54 FCR 503
Goldie v Commonwealth [2002] FCA 433; 117 FCR 566
Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; 93 CLR 55
Greene v Secretary of State for Home Affairs [1942] AC 284
Guo v Commonwealth of Australia [2017] FCA 355; 258 FCR 31
Guo v Minister of Immigration and Ethnic Affairs [1995] FCA 29; 38 ALD 38
Hackett (a Pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248
Hicks v Ruddock [2007] FCA 299; 156 FCR 574
Jackson v Sterling Industries Limited [1987] HCA 23; 162 CLR 612
Joye v Beach Petroleum NL [1996] FCA 502; 67 FCR 275
Kirk v Industrial Court of New SouthWales [2010] HCA 1; 239 CLR 531
Koon Wing Lau v Calwell [1949] FCA 65; 80 CLR 533
Koroitamana v Commonwealth [2006] HCA 28; 227 CLR 31
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Lee v Australian Crime Commission [2013] HCA 39; 251 CLR 196
Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740
Liversidge v Anderson [1942] AC 206
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575
Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
Matete v Minister for Immigration and Citizenship [2009] FCA 187
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843
Minister for Home Affairs v DLZ18 [2020] HCA 43
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394; [2020] ALMD 1840
MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601
National Australia Bank v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627
National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109; 165 ALR 595
Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442
Ofu-Koloi v The Queen [1956] HCA 64; 96 CLR 172
Okwume v Commonwealth [2016] FCA 1252
PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520
Penrice and Wynn’s Case 2 Mod 306; 86 ER 1089
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285
Plaintiff S156/2013 v Minister [2014] HCA 22; 254 CLR 28
R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222
R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74
Rahmatullah v Secretary of State for Defence [2012] 1 WLR 1462
Rana v Google Inc [2017] FCAFC 156; 254 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162
Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; 123 ALR 478
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57; 204 CLR 82
Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511
Ruddock v Taylor [2005] HCA 48; 222 CLR 612
Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491
Ruhani v Director of Police [2005] HCA 42; 222 CLR 489
Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117; 181 FCR 1
Schlieske v Federal Republic of Germany [1987] FCA 58; 71 ALR 215
Secretary of State for Home Affairs v O’Brien [1923] AC 603
Seymour v Commissioner of Taxation [2016] FCAFC 18; 241 FCR 361
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28
Shaw v Wolf [1998] FCA 389; 83 FCR 113
Shergold v Tanner [2002] HCA 19; 209 CLR 126
Singh v Commonwealth [2004] HCA 43; 222 CLR 322
Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; 154 CLR 261
State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566
Stevenson v Yasso [2006] QCA 40; 2 Qd R 150
Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55
Tanioria v Commonwealth [2016] FCA 1253
Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15; 204 ALR 497
Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45
Transport Workers’ Union of Australia v Lee [1998] FCA 756; 84 FCR 60
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; 241 CLR 510
Trobridge v Hardy [1955] HCA 68; 94 CLR 147
Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; 110 FCR 452
Vitali v Stachnik [2001] NSWSC 303
Yoxon v Secretary to the Department of Justice [2015] VSC 124; 50 VR 5
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Category
Catchwords
Number of paragraphs: 396 Dates of hearing: 17 July 2020 and 24 July 2020 Date of last submissions:
17 August 2020
Counsel for the Appellant: Mr M Albert Solicitor for the Appellant: Victoria Legal Aid Counsel for the Respondent: Mr C Lenehan SC with Mr G Hill Solicitor for the Respondent: Australian Government Solicitor Table of Corrections 14 December 2020 In paragraphs 59 and 60, “efficiency” has been replaced with “efficacy”. ORDERS
VID 270 of 2020 BETWEEN: EDWARD MCHUGH
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
JUDGES:
ALLSOP CJ, BESANKO AND MORTIMER JJ
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 4 made by the Court on 7 April 2020 be set aside and in lieu thereof it be ordered that:
(a)A writ of habeas corpus issue.
(b)An order in the nature of habeas corpus be made.
(c)The applicant be released from detention forthwith.
(d)The respondent pay the applicant’s costs.
3.The respondent pay the appellant’s costs of the appeal.
4.The parties have leave to file and serve within seven days short submissions as to the need for any further order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
I have read the reasons of Mortimer J. Her Honour’s reasons make it unnecessary to deal with the background circumstances and nature and context of the appeal, including the reasoning and approach of the primary judge. These reasons should be read against a background of a familiarity with the reasons of Mortimer J.
I agree with Mortimer J: (1) that the Court has both jurisdiction and power to entertain and issue a writ of habeas corpus or make an order in the nature of habeas corpus; (2) that the primary judge erred in his expression of the operation of the onus of proof; (3) that the appellant, Mr McHugh, satisfied the initial onus upon him requiring the Minister to prove by clear evidence that an officer reasonably held the relevant suspicion at the relevant time; and (4) that the evidence adduced by the Minister failed to prove the relevant reasonable suspicion in any officer.
As to (1) in [2] above, I would prefer to express my own reasons as to the relationship of s 476A of the Migration Act 1958 (Cth) to the writ of habeas corpus or the application for an order in the nature of habeas corpus. The availability of the writ or an order in its nature as a remedy is to be derived not from any width being given to the words “in relation to” in the chapeau to s 476A, but rather as a remedial power appropriately available in the disposition of the matter before the Court in respect of which matter the Court has been conferred with jurisdiction. As to (2), (3) and (4) in [2] above, subject to the following I agree with the reasons of Mortimer J. In particular, my agreement with the reasons of Mortimer J should be read subject to my views as to the proper question to be asked as to the operation of s 189 of the Migration Act.
As to orders, I would allow the appeal (though, like Mortimer J and in agreement with her reasons in this respect, not on all grounds), set aside Order 4 of the Court made on 7 April 2020 and in lieu thereof order that a writ of habeas corpus issue and there be an order that the respondent Minister release forthwith the applicant, Mr Edward McHugh, from detention, the respondent pay the applicant’s costs, and the respondent pay the appellant’s costs of the appeal.
As a preliminary, but necessary comment, s 189 of the Migration Act and the other sections concerning detention confer power on the Executive over, and qualify the elementary and fundamentally important right of, any person in this country (whether citizen, non-citizen, alien or immigrant) to liberty and freedom from, Executive detention. Strictness of approach in remedy, onus of proof, and the nature of proof in respect of such questions is a reflection of the common law’s vigilance over that liberty. A detention centre, like a prison, is an institution or place of detention or incarceration. Those administering such places and directly responsible for the detention within them, and the Minister and Department ultimately responsible for the conduct of such places should be in a position to justify the lawful nature of a person’s detention, at any time. If that depends upon proof of someone’s state of mind and the reasonable foundation for it that proof should be readily available whether from the officers who are responsible for the detention, or otherwise by reference to clear records.
Jurisdiction and s 476A of the Migration Act 1958 (Cth)
The difficulties brought about in these proceedings stem in part from reconciling the jurisdiction and power of this Court (the difference between which is important to avoid confusion) and the re-organisation of jurisdiction of courts brought about by the Migration Litigation Reform Act 2005 (Cth) and relevantly found in Div 2 of Pt 8 of the Migration Act 1958 (Cth).
The original jurisdiction of this Court is the authority to decide a matter conferred on it by Parliament. The Court’s original jurisdiction in respect of the Migration Act is derived (at least in part) from s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), that is jurisdiction:
(1) … with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A) … in any matter:
…
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
The jurisdiction under s 39B(1) mirrors the terms of the conferral of jurisdiction on the High Court by s 75(v) of the Constitution, and the terms of the conferral of jurisdiction on the Federal Circuit Court by s 476(1) and (2) of the Migration Act.
Section 39B(1A)(c) is a general conferral of civil (non-criminal) jurisdiction upon the Court according to its terms: Transport Workers’ Union of Australia v Lee [1998] FCA 756; 84 FCR 60 at 67; National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109; 165 ALR 595 at 601.
The width of the conception of “matter” must be borne in mind: CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at 352–353 [30]–[31]; Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at 583–584 [135], 585–586 [139]–[142]; Fencott v Muller [1983] HCA 12; 152 CLR 570 at 591–592 and 603–608; Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; 154 CLR 261 at 290–291 and 294; National Australia Bank v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 at 647–650 [78]–[85]; and Lindell G, Cowen and Zines’ Federal Jurisdiction in Australia (4th ed, Federation Press, 2016) at 10–29; as must the width of the phrase “arising under laws made by the Parliament”: Felton v Mulligan [1971] HCA 39; 124 CLR 367; LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575; Ruhani v Director of Police [2005] HCA 42; 222 CLR 489; Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at 5–6 [18]; National Australia Bank v Nautilus (No 2) 377 ALR at 650 [88]–[89] and the cases there referred to; and Lindell G op cit at 106–112.
Section 476A contains a limitation upon the jurisdiction of this Court in the necessary clarity: Shergold v Tanner [2002] HCA 19; 209 CLR 126 at 136 [34], by reference to the composite phrase “jurisdiction in relation to a migration decision”. That s 476A contains a limitation on the Court’s jurisdiction can be taken from the use of the phrase “if, and only if:”
By s 5, the phrase “migration decision” is defined as:
(a) a privative clause decision; [see s 474(2)] or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; [see s 474(6)] or
(d) an AAT Act migration decision [see s 474A]
Relevantly here, the migration decision is a privative clause decision and s 474(2) and (3) must be considered. A “decision” (subs (3)), and so a “privative clause decision” (subs (2)), and so a “migration decision” (s 5) for s 476A(1) includes “doing or refusing to do any other act or thing” (s 474(3)(g)).
This granularity of the concept of “decision” is the basis for the conclusion that the conduct of an officer in detaining the person upon the basis of knowledge or reasonable suspicion referred to in s 189(1) is a migration decision.
The phrase “in relation to” has a meaning derived from Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 at 662–663, esp [22] and [25]. Bodruddaza concerned s 486A (in Pt 8A), but the Full Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at 57–58, esp [8]–[9], applied it to s 476A. Tang has the support of Nettle J (sitting as a single Justice) in DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156 at 164 [14]–[15]. From these authorities, and having regard to the terms of the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) discussed in Tang at 217 FCR 58 [8], the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision. The phrase “in relation to” has no width or flexibility in this context beyond that. It does not include what might be called collateral attack upon a migration decision: Bodruddaza 228 CLR at 662 [22], such as a claim for false imprisonment available within jurisdiction under s 39B(1A)(c) and s 75(iii) of the Constitution by s 32(1) of the Federal Court of Australia Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520 at 523–526 [6]–[13]. See also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; and DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156.
In other contexts and in answering other questions habeas corpus can be properly described as a species of judicial review: see for example, R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 at 111 and see the valuable discussion in Farbey J, Sharpe RJ, Atrill S, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011) at 56–64. In the present statutory context involving the reordering of original and appellate jurisdiction between related courts, the notion of judicial review is to be more narrowly conceived. The writ is of great historical and contemporary importance, and calls upon the detainer (in effect the Minister) to justify the lawfulness of the detention, failing which justification being demonstrated, the person should be released. It does not involve direct judicial review of any decision.
The terms of s 476A(1)(c) mean that the Court has jurisdiction in direct judicial review proceedings concerning decisions of the Minister personally under ss 501, 501A, 501B, 501BA, 501C and 501CA, but not otherwise in direct judicial review. The decision relevant to Mr McHugh not to revoke his visa cancellation was under s 501CA.
The effect of s 476A(1) is that the Court has no jurisdiction in (that is, no authority to decide) direct judicial review of the decision to take Mr McHugh into detention under s 189 or any decision to continue or maintain his detention. The removal or carve out of jurisdiction by s 476A does not, however, go beyond such direct judicial review, and s 476A does not purport to restrict otherwise the width of the Court’s matter jurisdiction under s 39B(1) or (1A)(c) that it has or otherwise would have, such as where the removal or carve out does not apply because of s 476A(1)(c). Relevantly here, the jurisdiction to exercise judicial review of the Minister’s decision under s 501CA can be seen to be with respect to a matter in which a constitutional writ or an injunction is sought against the Minister (for s 39B(1)). This is confirmed by the terms of s 476A(2). The jurisdiction can also be seen as a matter arising under a law of the Parliament (for s 39B(1A)(c)).
Also, the Minister conceded (and it must be a correct concession) that the Court had jurisdiction under s 39B to determine whether s 189 can apply to Mr McHugh because either he was a citizen, or, if a non-citizen, was not an alien (being an Aboriginal Australian). Such relief was sought in the amended application by way of injunctive relief under s 39B(1) and declaratory relief under s 39B(1A)(c).
Habeas corpus
I agree with Mortimer J in her Honour’s analysis of habeas corpus as a remedial writ being available as a power or remedy under s 23 of the Federal Court of Australia Act.
Whilst the Court has necessary implied jurisdiction as an incident of the general grant to the Court as a superior court of law and equity to deal with matters before it: Jackson v Sterling Industries Limited [1987] HCA 23; 162 CLR 612, it does not have the broad scope of inherent jurisdiction of the sovereign’s superior courts in England. This fact helps one to recognise the inappropriateness of referring to jurisdiction to entertain habeas corpus. As a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court’s jurisdiction, otherwise conferred. On the other hand, a court that has jurisdiction to entertain any controversy about the liberty of a subject in any circumstances (public or private) may employ the writ, as a remedy, in that wide inherent jurisdiction, to vindicate the subject’s general right to be free of unlawful detention. This Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction. I respectfully agree with the analysis of Deane J in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; 123 ALR 478, and with what Mortimer J has written in her Honour’s reasons in this regard.
There can be no doubt from the Amended Originating Application filed with leave on 1 March 2020 that Mr McHugh was complaining of his detention, albeit not expressly seeking damages for false imprisonment. The amended application contained the claim (within jurisdiction by s 476A(1)(c)) to review the decision under s 501CA and the claim that he was a citizen and that he was not an alien.
If the writ of habeas corpus or an application for an order in the nature of habeas corpus can be entertained in this Court (which for the reasons expressed by Mortimer J, and with which I agree, it can be) it can be sought as a remedy within, or as an incident of, the matter that includes the judicial review of the decision under s 501CA and the claim under s 39B that s 189 does not apply to him, because he is a citizen or, if not, an Aboriginal Australian who is not an alien.
Habeas corpus, s 189 and the onus of proof
The correct question to ask
Before questions of onus are canvassed, it is necessary to appreciate the nature of the question for consideration in the application to which the question of onus is to be directed. The writ is directed to the justification for the detention of the subject. The freedom from unjustified detention lies at the heart of constitutional freedom: Secretary of State for Home Affairs v O’Brien [1923] AC 603 at 609; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.
The justification for detention here is and was at all times s 189(1) of the Migration Act:
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.
The notions of lawful and unlawful non-citizens are described, on their face exhaustively, by ss 13 and 14 of the Migration Act:
13 Lawful non-citizens
(1) A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.
(2)An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non‑citizen.
14 Unlawful non-citizens
(1)A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.
(2)To avoid doubt, a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen.
Mr McHugh is not a citizen. I agree with the reasons of Mortimer J in that regard. He has no visa by the operation of s 501(3A). The decision by the Minister not to revoke this cancellation made under s 501CA has now been set aside by the primary judge; but that still leaves Mr McHugh in the position that his visa has been cancelled. By ss 13 and 14, on the face of the statute, he must be an unlawful non-citizen, because he is not a citizen and does not hold a visa.
Sections 13 and 14 must, however, be read down and construed so as not to exceed legislative power: s 15A of the Acts Interpretation Act 1901 (Cth). In Love v Commonwealth; Thoms vCommonwealth [2020] HCA 3; 375 ALR 597 a majority of the High Court (Bell, Nettle, Gordon and Edelman JJ) decided that an Aboriginal Australian is not an alien within the meaning of s 51(xix) and so is not within the reach of the aliens power. One consequence, as pointed out by Nettle J at 375 ALR 668 [285] is that it is beyond legislative competence to treat an Aboriginal Australian as an unlawful non-citizen and s 14(1) must be read down and construed accordingly. Justice Gordon read down ss 189 and 198 so as not to apply to an Aboriginal Australian at 375 ALR 689 [390], as did Edelman J at 375 ALR 692 [398].
Thus, s 14(1) (and indeed s 13(1)) must be taken to be construed as directed only to non-citizens who are not Aboriginal Australians. Whilst a non-citizen Aboriginal Australian who had a visa would be a lawful non-citizen because of the holding of a visa, a non-citizen Aboriginal Australian who does not hold a visa is not an unlawful non-citizen, because of his or her status as an Aboriginal Australian and thus not being an alien.
The difficulty arises with s 189. One way of expressing the matter is that s 189 is to be read down and construed as not directed to, and as not authorising detention of, an Aboriginal Australian. The difficulty is what that means in the context of detention expressed to be justified by reference (properly read down) only to a reasonable suspicion of non-Aboriginality.
The appellant argued that because s 189 did not reach Aboriginal Australians, the fact of Mr McHugh not being an Aboriginal Australian was a fact to be proved by any detainer seeking to rely on s 189, before any question of relevant suspicion arose. This fact was not, it was submitted, a matter of which the officer was only required to have a reasonable suspicion in the justification of the detention. Rather, the fact that Mr McHugh was not an Aboriginal Australian was the subject of necessary proof. Only if one concluded that Mr McHugh was not an Aboriginal Australian (as a fact) would one examine the state of knowledge or suspicion of the officer for the purposes of s 189.
The Minister, on the other hand, submitted that s 189 can be read down to accommodate Love and Thoms to authorise (indeed require) the detention of a person (even a citizen or a non-alien Aboriginal Australian non-citizen) if the officer reasonably suspects that the person is a non-citizen, non-Aboriginal Australian, not holding a visa. That is, the read down s 14(1) notion of unlawful non-citizen is read into s 189 as the whole subject matter for the reasonable suspicion and for the decision.
This latter submission of the Minister has the virtue of simplicity. Section 15A of the Acts Interpretation Act affects the reading or construing of the provision in question. Section 14(1) should be read as not reaching or dealing with non-citizens who are Aboriginal Australians. Thus s 14(1) can be understood as providing that a non-citizen, other than an Aboriginal Australian, who does not have a visa, is an unlawful non-citizen. Reading s 14 as read down into s 189, the officer referred to in s 189 must, in his or her consideration, know or reasonably suspect that the person is a non-citizen, does not have a visa, and is not an Aboriginal Australian.
The import of that construction must, however, be appreciated: It gives s 189 content as follows: Not only does s 189 authorise, but it requires, an officer to detain any person whether citizen, or non-alien Aboriginal Australian, whom the officer reasonably suspects to be a non-citizen or non-Aboriginal Australian alien without a visa. Such a section must be a law “with respect to aliens” for s 51(xix) or otherwise supported by s 51(xxxix).
The appellant did not fully develop the submission as to the correct question to be addressed by the party with the onus of proof (the Minister). In his written submissions, especially paras 25, 55–58 and 60–63, Mr Albert, who appeared for the appellant, largely addressed the question on the basis of the legitimacy of the detention by reference to a reasonable suspicion of non-Aboriginality. In oral address, however, Mr Albert submitted that the question to be addressed was whether Mr McHugh was an alien, not whether the officer had a reasonable suspicion that he was not. Mr Albert accepted that the detention could be lawful if there was a reasonable suspicion about Mr McHugh being a non-citizen, even if he were a citizen. (This is a concession that may not be justified by the authorities, though in this case, it does not matter because, as Mortimer J has concluded, Mr McHugh is not a citizen.) He submitted, however, that the section did not reach a non-alien because the person was an Aboriginal Australian, and that alien status was necessarily the subject of proof, as a fact.
Mr Lenehan SC, on behalf of the Minister, addressed the question in para 24 of his written submissions and also in oral address. He submitted that, as a matter of statutory construction, the power of detention was conditioned only upon the reasonable suspicion of non-citizenship, alienage and lack of a visa. This submission was said to be supported by the process of reading down through s 15A of the Acts Interpretation Act and Love and Thoms (especially Gordon J at 375 ALR 689 [390]), Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 and Ruddock v Taylor [2005] HCA 48; 222 CLR 612. In particular, it was submitted that Ruddock v Taylor stood for the proposition that reasonable suspicion of alienage was sufficient to engage s 189, “even though the decision in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 established that Mr Taylor was not an ‘alien’”.
In reply, Mr Albert submitted that Ruddock v Taylor dealt with the citizenship or non-citizenship dichotomy, not a lack of alien status by being Aboriginal Australian.
The resolution of this question requires attendance to the operation of s 15A of the Acts Interpretation Act, and to the reasoning and approach of the majorities in Re Patterson, Shaw and Ruddock v Taylor.
In Re Patterson 207 CLR 391, a majority of the Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) decided, for various reasons, that a Parliamentary Secretary had fallen into jurisdictional error in coming to a decision to cancel Mr Taylor’s visa. That was not, however, the presently relevant, nor contemporaneously controversial, question decided. Two of the majority (Gaudron J and Kirby J) as well as McHugh J and Callinan J also held (as stated in the headnote of the authorised report) that Mr Taylor was a British subject, was not an alien, but was a subject of the Queen of Australia; hence s 501(3) could not apply to him. That conclusion involved the over-ruling of Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178 in which Mason CJ and Wilson, Brennan, Deane, Dawson and Toohey JJ held that a non-citizen who is a British subject is an alien within s 51(xix) of the Constitution. Justice Gaudron dissented in Nolan.
In Re Patterson 207 CLR at 406–413 [30]–[54], Gaudron J discussed the validity of s 501(3) of the Migration Act in its application to Mr Taylor. Section 501(3) was concerned (as it is now) with cancellation of a visa on character grounds. It was not concerned with suspicion of alienage. It could only operate upon Mr Taylor if he was an alien: 207 CLR at 407 [32]. After setting out her reasons for disagreeing with the majority in Nolan, Gaudron J expressed views not only on visa cancellation, but detention and removal at 412–413 [52]:
A law providing for the detention otherwise than upon conviction for a criminal offence and for the compulsory removal from Australia of persons who have been integrated into the Australian community cannot be supported as a law with respect to immigration and emigration. Nor, in my view, can it be supported as a law with respect to external affairs. That is because the removal of a person from Australia, simpliciter, does not give rise to any external affair, as such. Such a law is valid only as a law with respect to aliens. It follows, therefore, that the provisions of the Act providing for the detention and removal of prohibited non-citizens from Australia are valid only in their application to non-citizens who are also aliens. Thus, they are not valid in their application to Mr Taylor.
(Footnote omitted and emphasis added.)
In reading this passage, it is to be recalled that the purpose of s 189 is not punitive, but is for the removal of aliens from Australia and their separation from the Australian community until that occurs: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; and see also Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. It will be necessary to return to the fundamental question of the purpose of detention set within the Constitutional framework. For now, it is necessary to consider the relevant approach of the other three justices in Re Patterson to the reach of the aliens power.
Justice McHugh restricted his conclusion at 207 CLR 437 [136] to the question of the power to deport:
The prosecutor migrated from the United Kingdom to Australia in 1966 and has lived here ever since. He is therefore a subject of the Queen of Australia, not an alien. Neither the Minister nor the Parliamentary Secretary had the power to deport him because s 501 of the Migration Act cannot constitutionally apply to him.
(Emphasis added.)
Justice Kirby directed his analysis on the alien question to the legitimacy of s 501 and his Honour concluded that Nolan was wrong and said at 207 CLR 494–495 [310]:
… Although s 501 of the Migration Act appears on its face to apply to “a person”, that is, any person, it must be read down to remain within the constitutional power of the Parliament. Such a course may be taken. Taking it preserves the validity of the Migration Act in respect of those “persons” to whom it may apply. Such persons will not include Australian citizens or other non-citizen British subjects in the same class as the prosecutor.
(Footnote omitted and emphasis added.)
Justice Callinan also directed himself to the power to cancel the visa and deport: see 207 CLR at 515–518 [367]–[378].
In Shaw 218 CLR 28, the Court examined the status of Re Patterson as authority. Earlier, in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 four members of the Court had analysed Re Patterson: see 212 CLR at 170 [17]–[19] (Gleeson CJ), 187–188 [86]–[88] (McHugh J), 200 [136] (Gummow J) and 220 [211] (Kirby J) and concluded that it was only authority on issues other than Mr Taylor’s alien status and did not decide that s 189 could have no valid application to him. In Shaw, Gleeson CJ, Gummow and Hayne JJ (with whose reasons Heydon J agreed) after referring to Te, held that Re Patterson did not overrule Nolan: 218 CLR at 44 [35]–[36] and 45 [39]:
35 In Re Minister for Immigration and Multicultural Affairs; Ex parte Te, four members of the Court agreed that there was no single strain of reasoning in the majority judgments in Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Patterson had no precedent value beyond its own facts.
36 Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan v Minister for Immigration and Ethnic Affairs. In our view, the court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach to the matter, and as Long indicates, the decision in Patterson plainly fails to pass muster.
…
39 The decision in Patterson does not rest upon a principle carefully worked out in a significant succession of decisions; the contrary, as we have indicated, is the case. Secondly, the treatment of the aliens power in Patterson was not necessary for the decision, because there was a clear alternative basis for the decision. Thirdly, the inconvenience flowing from the existence of Patterson is indicated by reference to Long. Finally, the Minister has moved as quickly as may be in this Court to obtain a reconsideration of Patterson. That case henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.
(Footnotes omitted.)
Justice McHugh repeated his view expressed in Te 212 CLR at 187 that Re Patterson had no ratio decidendi.
It is within this context of the destruction of the precedential value of Re Patterson that one comes to the decision of Ruddock v Taylor 222 CLR 612.
It should also be recalled that only seven months before argument in Ruddock v Taylor in March 2005, the Court had, in August 2004, handed down the decision in Al-Kateb 219 CLR 562, dealing with the reach of the power to detain and with the earlier decision of Chu Kheng Lim 176 CLR 1. The ratio of Chu Kheng Lim can be found in the reasons of Brennan, Deane and Dawson JJ at 32 (with the concurrences relevantly by Mason CJ at 10 and Gaudron J at 53):
It can therefore be said that the legislative power conferred by s. 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.
(Footnote omitted and emphasis added.)
It is relevant to note that although reasonable suspicion of the relevant non-citizen status was on the face of the relevant provision sufficient to detain, it was part of a power linked to the act of removal of the alien from the country, which act could never be ultimately founded upon suspicion of alienage, but only upon alienage itself. This much must be immanent within the above authoritative expression of the power.
In Ruddock v Taylor 222 CLR 612 there were a number of arguments addressed. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) were at pains at 620 [16]–[17] and 624 [33] to state that Re Patterson did not establish that s 189 could have no valid application to Mr Taylor. It was noted that there was no contention that s 189 was invalid: 222 CLR 624 [35]. At 621–622 [22]–[28] and 625 [37] their Honours clearly stated that s 189 could apply based on reasonable suspicion, not the fact of the person being an unlawful non-citizen. Given the majority’s repetition of Shaw’s destruction of Re Patterson as authority for any proposition of Mr Taylor’s non-alien status, the reasonable suspicion of Mr Taylor being an unlawful non-citizen as the foundation for valid detention can be seen to be directed only to the question of the invalidity of the cancellation decision, and not to any mistaken view of his alien status: see in particular 222 CLR at 627 [37]. Thus, I do not consider that Ruddock v Taylor is authority for any proposition that a reasonable suspicion (contrary to what might be shown to be the fact) that someone is an alien (here that the person is an Aboriginal Australian if he or she is a non-citizen) founds a valid engagement of s 189.
The answer to the question as to the relationship between s 189, s 15A of the Acts Interpretation Act and the source of power for s 189 in s 51(xix) depends upon Constitutional considerations which were not fully explored in argument.
The law, s 189, to be supported by s 51(xix) must be “with respect to aliens” or incidental thereto under s 51(xxxix). The power is only for the purpose of, relevantly here, deportation. The lawful status of the non-citizen generally rested on the holding of a visa; now, after Love and Thoms, it can also rest on the non-alien status by being an Aboriginal Australian. No power of deportation exists over a citizen or a non-citizen, but non-alien, Aboriginal Australian. If ss 13, 14 and 189 have a valid operation after being read down by s 15A to require detention of a person reasonably suspected of being a non-citizen without a visa or a non-citizen who is an Aboriginal Australian, there must be demonstrated to be a relevance to or connection with aliens and their deportation: Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; 93 CLR 55 at 77; Plaintiff S156/2013 v Minister [2014] HCA 22; 254 CLR 28 at 42 [22]. There needs to be a sufficient connection between the law requiring someone to be detained (even if in fact, and later found to be, a citizen or a non-citizen Aboriginal Australian) and aliens and their deportation. If the Minister cannot deport a citizen or Aboriginal Australian, notwithstanding the reasonableness of any suspicion that he or she was neither, it may be difficult to understand how s 189 can be supported by the same necessary underlying constitutional aliens power to require his or her detention. That may mean that a precondition or requirement for the operation of s 189 is that the person not be a citizen or not be an Aboriginal Australian. Alternatively, s 189 may be read down or construed by s 15A, somewhat more messily, as requiring, or permitting detention upon a reasonable suspicion of non-citizenship or of alienage, subject to a requirement, when called upon, such as in answering a claim for the issue of a writ of habeas corpus, to demonstrate that the person is an alien and not an Aboriginal Australian or a non-citizen not holding a visa, such that he or she could be deported. Given the relationship between deportation and detention (which underpinned the reasons of the justices in Re Patterson, especially Gaudron J), as the time for execution of the deportation power and the physical act of deportation approaches, it is difficult not to see the justification for detention as converging with the justification for deportation: proof of the alien status of the person.
I do not think it appropriate to answer these questions in this appeal. There are three reasons for that position. First, on any view, including that most favourable to the Minister on the questions, the Minister failed to discharge the onus of proof that a relevant officer had a reasonable suspicion that Mr McHugh was not an Aboriginal Australian. Secondly, for that reason the Constitutional question need not be decided to resolve the appeal, and the usual unwisdom of deciding Constitutional issues when not necessary can be seen to be engaged. Thirdly, the Court has not been provided with full argument that will assist in the resolution of the questions. Such important questions should await such argument in a context when it is decisive.
Onus of proof
The relevant possible questions having been identified, it is necessary to turn to onus of proof. I agree with the reasons of Mortimer J that the primary judge’s staged approach was overly complex and wrong. There are many circumstances in the civil law where fine and nuanced issues for factual determination may give rise to complex and subtle interplay between the legal and evidential burdens of proof and the role of relevant presumptions: see Heydon JD, Cross on Evidence (12th ed, LexisNexis, 2019) at 365–383. The subject of proof and its legal context will be important. Here the subject and context is the liberty of the individual, a matter basal to the common law’s concern for individual freedom and liberty. There is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned: Dillon v The Queen [1982] AC 484 at 487 (Lord Fraser of Tullybelton speaking for the Privy Council), cited by the Full Court of this Court (Fox, Wilcox and Burchett JJ) in Schlieske v Federal Republic of Germany [1987] FCA 58; 71 ALR 215 at 223.
The nature of the writ is to be appreciated. Any modern deprecation of “romantic notions or purple prose” in the description of the historical importance of the writ: Rahmatullah v Secretary of State for Defence [2012] 1 WLR 1462 at 1487 [43] (per Lord Neuberger of Abbotsbury MR) cannot be seen, nor should be used, to dilute the importance of the writ or the liberty of the person which the writ and the common law protect. The writ’s operation is intended to be direct and speedy; and commence from the simple expression of right and of freedom from unlawful Executive detention given by Lord Atkin in Liversidge v Anderson [1942] AC 206 at 245: Every imprisonment (except that ordered by a judge) is prima facie unlawful and must be justified by the person directing it. The expression of the matter by Fullagar J in Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152 contained no romance or purple prose; rather in its sombre and grey prose (if analogical metaphor be permitted) it contained a recognition of the elementary and fundamental importance of the right that the writ protects.
These remarks and considerations are not gratuitous in the context of the Executive detention of a person suspected to be an unlawful non-citizen, being someone who has lived in Australia for 45 years since arriving at the age of 7, who was adopted by Australian citizens under Queensland law at the age of 8, who was (as it transpires, wrongly) designated a citizen in at least two official and important contexts by officers of the Commonwealth, who has made his life in Australia, who identifies as an Aboriginal Australian, who is recognised by the Aboriginal community in which he has lived for many years as Aboriginal and part of that community, but who is (at least presently) unable to bring positive proof of his biological Aboriginal descent (his young mother having given him up shortly after birth, and his father being unknown).
The task of the Commonwealth, through the person directing Mr McHugh’s detention (the Minister) is straightforward, at least in expression, and a simple reflex of Mr McHugh’s elementary and fundamentally important right to his liberty free from unlawful Executive detention: Prove the lawfulness of his detention. That task is framed by s 189 of the Migration Act, if it applies to him.
The importance of the issue of personal liberty also requires the proof to be clear and cogent: Ex parte Khawaja [1984] 1 AC at 112–114; Dien v Manager of Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 at 419 (per Malcolm CJ and Seaman J; also sub nomTruong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 at 731).
The writ (habeas corpus ad subjiciendum) required justification. It did not issue in the Court of King’s Bench as of course; it was a writ to be applied for by motion to the Court: Penrice and Wynn’s Case 2 Mod 306; 86 ER 1089, as Blackstone stated “as in the case of the prerogative writs … which do not issue as of mere course, without shewing some probable cause …”: Bk III Ch 8 at 132. Lord Chief Justice Vaughan described the need for satisfaction as “probable cause to be delivered” or a “reasonable ground for awarding it”: Bushell’s Case 2 Jon 13, also referred to by Blackstone in Bk III Ch 8 at 132–133; and see The Opinion on the Writ of Habeas Corpus (1758) Wilm 77 at 82–94; 97 ER 29 at 32–38.
That the ground for the making of the order nisi was not finely and abstractly defined beyond reasonable justification or probable cause, requiring the detainer to show cause is consistent with the writ’s utility and efficacy in the countless situations in which it might be sought to be employed (legitimately or illegitimately).
Modern cases have used the expression “prima facie” case: Dien at 418–419; Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at 512 [61] (French, Sackville and Hely JJ); and Yoxon v Secretary to the Department of Justice [2015] VSC 124; 50 VR 5 at 14–15 [38]. That expression of the matter should not, however, be seen to be a restriction or constriction upon the utility and efficacy of the remedy. It should be seen as another way of expressing the practical requirement for demonstrating reasonable justification or probable cause and for requiring the detainer to justify the detention by proving its lawful character. This can be seen by the way Kiefel CJ, Keane, Nettle and Edelman JJ put the matter in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39] (where Yoxon was approved), as the plaintiff carrying “at least an evidential burden of establishing that there is a reason to suppose that his detention has ceased to be lawful.” It can also be seen by the way the Full Court (Black CJ, Sundberg and Weinberg JJ) expressed the matter in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at 97 [176]: “... it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.” The unsatisfactory evidence of the applicants in R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 at 229–30 (noted in Yoxon at [39]) nevertheless raised the question of the lawfulness of the detention. Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja [1984] AC at 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.
Looking at the matter most favourably to the Minister, the question here is whether there was proved a reasonable suspicion that Mr McHugh was a non-citizen, that he did not hold a visa and that he was not an Aboriginal Australian. For the reasons given by Mortimer J the Minister failed to prove such matters, notwithstanding the conclusion of Mortimer J, with which I agree, that Mr McHugh was and is not a citizen. Further, if the correct subject of proof is as contended for by the appellant, the Minister did not prove that Mr McHugh was not an Aboriginal Australian.
Embedded within the conclusion of a failure to prove the lawfulness of the detention, is the assumption or proposition that Mr McHugh brought forward sufficient material for the Minister to be required to prove the lawfulness of the detention.
The proceeding before the primary judge and the appeal were conducted on the basis that the majority of the High Court in Love and Thoms rested their conception of Aboriginal Australian upon the tripartite test of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70: biological descent from Aboriginal people; personal identification as an Aboriginal person; and recognition as Aboriginal by other persons enjoying traditional authority amongst an Aboriginal society.
Mr McHugh is presently unaware of facts that would assist him prove biological descent. Does that mean he has failed to require the Minister to justify his detention by proof with clear and cogent evidence that the relevant person who detained Mr McHugh had a reasonable suspicion that Mr McHugh was an unlawful non-citizen, including that he was not an Aboriginal Australian, or that he is not an Aboriginal Australian? The answer in my view is, no.
This answer is appropriate for at least three reasons. First, the justification for his detention depends on proof of his detainer’s state of mind judged reasonably. Secondly, it is not clear that all avenues of exploration of the issue have been exhausted. Mr McHugh has suffered the disadvantage of being detained at all relevant times. At some point in the future, Mr McHugh may bear the onus of proving all these aspects of the test proposed by Brennan J in Mabo, though that is by no means clear. The time has not come for any such onus to be discharged by him, if it is for him to discharge. Mr McHugh has brought forward material that amounts to a case fit to be considered by the Court as to whether he should be detained. It is and was for the Minister to prove that his detention under s 189 is and was lawful. Thirdly, and related to the second point, it is far from clear, and not the subject of debate before us, by what relevant normative standard or standards the question of biological descent for the purposes of the tripartite test is to be assessed: Is it genealogical or biological descent strictly by blood, or does it include other features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law or custom? The question is to be posed and answered using the correct frame of reference or normative standard. The question is or may be more than one drawn from analytical jurisprudence or the principles of private international law as to the ascertainment of the proper law of a subject, once the subject is identified by a process of characterisation.
In any event, the Minister failed, at least for the reasons given by Mortimer J, to discharge the onus of proof assuming it to be directed to the question posited by the Minister: a reasonable suspicion of alien status by not being an Aboriginal Australian.
Orders
For the above reasons, Mr McHugh is entitled to the issue of the writ of habeas corpus and an order under the application for relief in the nature of a writ of habeas corpus that he be released from detention.
I would also make an order that the parties be at liberty to file short submissions as to any further order that need be made.
Mr McHugh’s future position may be affected by the issues raised but not argued, either fully or at all, of which there appear to be at least two: First, what is or are the correct question or questions to ask in addressing the justification of the detention of someone who claims to be a non-alien Aboriginal Australian? This involves the question of the proper Constitutional reach of s 189 as a law “with respect to” aliens. That question affects the nature and extent of the onus of proof upon the Minister: Does the Minister have to prove only a reasonable suspicion of alienage and non-Aboriginal Australian status or does the Minister have to prove that the person is not an Aboriginal Australian. The question may or may not be answered by reference to a rule referable to assertion or common sense as referred to in Plaintiff M47/2018 265 CLR at 299 [39]. If detention is linked (relevantly here) to deportation who bears the onus of showing the status of the person being put on the ship or aeroplane? If in the relevant legal and factual context the answer be: the Executive that is purporting to exercise the power, should it not likewise be the Executive when it detains the person (earlier) in aid of the power of deportation? Secondly, by reference to what facts will the reasonable suspicion or ultimate proof (whichever be the correct question) be judged? Relevantly here, by what normative standard or system of law (or custom) is the question of biological descent to be assessed?
These questions may arise in this, or another, form in any appeals brought by the Minister and Mr McHugh from the primary judge’s orders in respect of the Minister’s refusal to revoke the mandatory cancellation decision or in any fresh decision that the Minister may make. These questions appear to involve questions arising under or involving the interpretation of the Constitution.
I have referred on a number of occasions to issues not having been argued, either fully or at all. No criticism of counsel arguing the matter or their solicitors is thereby intended. The Court received careful and thoughtful assistance from counsel for both parties in a difficult matter raising important questions, for which assistance the Court is grateful. May I also say that though I disagree with the approach of the primary judge, his clear, thorough and prompt judgment assisted greatly the argument on appeal.
The orders that I would make are:
1.The appeal be allowed.
2.Order 4 made by the Court on 7 April 2020 be set aside and in lieu thereof it be ordered that:
(a)A writ of habeas corpus issue.
(b)An order in the nature of habeas corpus be made.
(c)The applicant be released from detention forthwith.
(d)The respondent pay the applicant’s costs.
3.The respondent pay the appellant’s costs of the appeal.
4.The parties have leave to file and serve within seven days short submissions as to the need for any further order.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate:
Dated: 11 December 2020
REASONS FOR JUDGMENT
BESANKO J:
I have had the advantage of reading the reasons for judgment of the Chief Justice and the reasons for judgment of Mortimer J. Mortimer J has summarised the relevant facts and the key conclusions of the primary judge and his Honour’s reasons for those conclusions. I gratefully adopt Mortimer J’s statement of those matters. I wish to make clear my reasons for joining in the orders proposed by the Chief Justice (at [72]).
I agree with what the Chief Justice has said about jurisdiction and s 476A of the Migration Act 1958 (Cth) (the Act) (at [6]–[19]). In particular, I agree that the authorities identified in his Honour’s reasons (at [15]) mean that the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision and, that the phrase “in relation to” has no width or flexibility in this context beyond that. I also agree with his Honour’s observation that the jurisdiction to exercise judicial review of the Minister’s decision under s 501CA can be seen to be a matter in which constitutional writs or an injunction is sought against the Minister (for s 39B(1)) or a matter arising under a law of the Parliament (at [18]).
I agree with what both the Chief Justice and Mortimer J have said about this Court’s power to issue a writ of habeas corpus or make an order in the nature of habeas corpus and there is nothing I wish to add to their Honour’s reasons in that respect (at [20]–[23] and [190]–[214]).
I agree with Mortimer J’s analysis of Grounds 5, 6 and 7 of the Notice of appeal (at [297]–[343]). I agree that Ground 5 fails. In circumstances where it is not necessary to address the Notice of contention, I refrain from doing so. I agree that Grounds 6 and 7 succeed. The appellant raised a sufficient case concerning the issue of citizenship and the issue of Australian Aboriginality to require an answer from the respondent in terms of the holding of a reasonable suspicion by the detaining officer or officers under s 189 of the Act. The fact that the relevant suspicion was held at the time of trial was simply not proved by the respondent. There is no direct evidence that an officer suspected that the appellant was an unlawful non-citizen at any time after September 2018 and it could not be presumed that the suspicion continued to the date of the Court’s decision for the reasons given by Mortimer J. I wish to make it clear that I am not to be taken as saying that the holding of the relevant suspicion cannot be proved by admissible written records or that the continuation of the relevant suspicion cannot be inferred from express evidence that the relevant suspicion was held at an earlier point in time (Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117; (2009) 181 FCR 1 at [140] per McKerracher J; Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 (Okwume) at [158] per Besanko J; Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 (Guo) at [83] per Jagot J). In other words, there is room for proof of the suspicion by admissible written records and for an inference to be drawn that an officer has continued to hold the relevant suspicion (Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (Ruddock v Taylor) at [51] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 378 ALR 501 at [69] per Besanko J). The proof required depends upon the circumstances of the case. The difficulty for the respondent in this case is the substantial lapse of time between the last piece of documentary evidence in September 2018 and the date of trial in March 2020 and the significance of the important decision in Love v Commonwealth [2020] HCA 3; (2020) 94 ALJR 198 (Love) which was handed down on 11 February 2020.
The conclusions to this point are sufficient to justify a writ of habeas corpus or an order in the nature of habeas corpus. The writ of habeas corpus is not a discretionary remedy. It is a writ of right, although not a writ of course. The difference between a writ of right and a writ of course is that in the case of the former, proper grounds for the issue of the writ must be shown. That does not mean, however, that in the case of the writ of habeas corpus, discretionary considerations are relevant. They are not. In Greene v Secretary of State for Home Affairs [1942] AC 284 (Greene), Lord Wright said the following as to the writ of habeas corpus (at 302):
It is clear that the writ of habeas corpus deals with the machinery of justice, not the substantive law, except in so far as it can be said that the right to have the writ is itself part of substantive law. It is essentially a procedural writ, the object of which is to enforce a legal right. The writ is described as being a writ of right, not a writ of course. The applicant must show a prima facie case that he is unlawfully detained. He cannot get it as he would get an original writ for initiating an action, but if he shows a prima facie case he is entitled to it as a right. The first question, therefore, in any habeas corpus proceeding is whether a prima facie case is shown by the applicant that his freedom is unlawfully interfered with, and the next step is to determine if the return is good and sufficient.
These observations are also relevant to the onus of proof which is discussed below.
(see also Farbey J and Sharp RJ, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2010) (Farbey and Sharp) at pp 52–53; Clark D and McCoy G, Habeas Corpus, Australia, New Zealand and The South Pacific, (2nd ed, Federation Press, 2018) (Clark and McCoy) at pp 251–254.)The primary judge’s conclusions about the limitations on this Court’s jurisdiction (which this Court holds is erroneous) meant that he approached the issue of whether the appellant’s contention that he is an Australian citizen and therefore not within the terms of s 189(1) as if the appellant sought a declaration to that effect. The primary judge held that the appellant was not an Australian citizen. In essence, Ground 9 of the Notice of appeal is a challenge by the appellant to that conclusion. The facts relevant to the issue of citizenship are established and the issue is largely one of the proper construction of the relevant legislation. For the reasons given by Mortimer J and by the primary judge, the appellant has failed to prove that he is an Australian citizen. I agree with Mortimer J’s reasons and those of the primary judge with respect to that issue.
Ground 8 of the Notice of appeal is as follows:
Reasonableness of any suspicion for the purposes of s 189 and/or 196 of the Migration Act
8.The primary judge was in error by concluding that an unidentified officer currently held a suspicion that was reasonable for the purposes of s 189 and/or s 196 of the Migration Act having regard to Mr McHugh’s entry on the Commonwealth electoral roll, understood in light of the presumption of regularity.
This ground relates to the reasonableness of any suspicion about citizenship held by an officer under s 189(1). Grounds 5, 6 and 7 address the issue of whether as a matter of fact a suspicion was held, and those grounds have already been dealt with. The suspicion under s 189(1) must be reasonable and that means a suspicion which could be held by a reasonable person in the circumstances (Ruddock v Taylor; Okwume at [134] per Besanko J). Ground 8 raises only the reasonableness of the suspicion as to citizenship. Whilst I largely agree with Mortimer J’s analysis with respect to this ground, I have difficulty in conceiving that Ground 8 could be upheld in light of the conclusion reached with respect to Ground 9.
I agree with Mortimer J’s disposition of Ground 2 of the Notice of appeal and there is nothing I wish to add.
That leads me to consideration of Grounds 3 and 4 of the Notice of appeal. They are in the following terms:
Burdens of proof in a detention challenge
2.…
3.The primary judge was in error by relying on the burden of proof in respect of an application for habeas corpus or relief in the nature of habeas corpus shifting three times in the ways described at [103] of his Honour’s reasons, when it shifts once.
Aboriginality and the Migration Act
4.The primary judge was in error by relying on the notion that:
a.the Minister's evidentiary burden to ‘present a prima facie justifiable basis for restraint’ was discharged by the ‘reasonable possibility of statutory power’;
b.Alternatively to a, the Minister could discharge the burden by merely asserting constitutional alienage in respect of Mr McHugh’s Aboriginality;
c.Alternatively to b, if Mr McHugh bears an initial burden of proof, its extent was as high as the primary judge held, namely requiring proof positive on each element of the tripartite test;
d.Alternatively to c, Mr McHugh’s evidentiary burden was not met, by reason that there was prima facie evidence on each element of the tripartite test; or,
e.Alternatively to d, the tripartite test requires independent, positive proof of each of the three element [sic] to meet a prima facie level of evidence.
There is no ground in the Notice of appeal which is equivalent to Ground 9 (which deals with the citizenship issue) where the appellant expressly claims that the primary judge erred in finding as part of his primary analysis that the appellant had not established that he is an Aboriginal Australian. The appellant claims that he is an Aboriginal Australian, but his arguments have been put to this Court in the context of a writ of habeas corpus and the reasonable suspicion required for his detention by s 189(1) of the Act. In this context, I should note that although counsel for the appellant alluded in a general way to the issues discussed by the Chief Justice in his reasons under the heading “The correct question to ask” (at [24]–[52]), he said that this Court did not need to decide those issues in this case. In other words, counsel for the appellant argued the case on the basis that, as far as the appellant’s claim that he is an Aboriginal Australian is concerned, he could be detained under s 189(1) if an officer reasonably suspected he was not an Aboriginal Australian. I respectfully agree with the Chief Justice’s discussion of the issues relating to the correct question to be asked as to the operation of s 189 of the Act and that it is not appropriate to answer the questions raised on this appeal.
With respect to the burden of proof, Mortimer J has summarised the primary judge’s analysis which involves four circumstances and a shifting of the onus on three occasions as follows (at [136]):
His Honour held (at [103]) that the onus shifts from one party to another in the following manner:
(a)first, the applicant bears the onus of proof of showing that she or he is restrained;
(b)second, the respondent bears the onus of showing “a prima facie justifiable basis for the restraint”;
(c)third, the applicant bears an “initial evidential onus to raise a prima facie question as to the lawfulness of the restraint”;
(d)fourth, the respondent bears “the ultimate legal onus of proving the lawfulness of the restraint”.
The primary judge’s analysis was informed to a large extent by the approach of T Forrest J in Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5 (Yoxon) and, in particular, his Honour’s observations as follows (at [35]–[40]):
35Once the restraint is established the application shifts into a second phase and it falls to the respondent to justify the restraint by showing the legal authority which lies behind it. In this case, the justification offered for Mr Yoxon’s detention is that his parole order was purportedly cancelled, under s 77(1), with the purported consequence the original authority for his imprisonment, the sentence of 6 October 2010, was revived. Documentary evidence which supports this justification includes, but is not limited to, the record of orders made in the criminal jurisdiction of the County Court, on 6 October 2010, and the warrant for Mr Yoxon’s apprehension and return to prison, issued by the Board on 27 November 2014.
36Where the fact of the restraint is proved, and the respondent offers no justification for that restraint, the application will succeed. The more complicated case is one in which the respondent produces some documentation to support the restraint but the applicant challenges the validity of the act or decision justifying it. Although it is still true to say that the respondent bears the legal onus of proof, the applicant will in such a case carry an initial, evidentiary, burden.
37In Greene v Secretary of State for Home Affairs the applicant alleged that the Home Secretary had ordered his detention in bad faith, or without believing an allegation of ‘hostile relations’ which had been made against him and which provided the putative basis for his detention. The applicant failed to adduce any evidence which tended to prove either scenario. Lord Wright held, dismissing the application, that,
[The order for detention] is good on its face unless and until it is falsified… [The Home Secretary’s] statement would have been enough, at least in the first instance and until it appeared to the court that sufficient reason was shown to question it… Until there emerges a dispute of fact into which the court feels it should enquire, I think the defendant’s statement is enough.
38Provided the applicant satisfies this initial evidentiary burden, the onus will, as I have said, shift absolutely to the respondent. As the Full Court of the Supreme Court of Western Australia observed in Dien v Manager of the Immigration Detention Centre,
The writ of habeas corpus will issue to determine whether statutory conditions which regulate or define the power to detain a person have been complied with: R v Governor of Brixton Prison, Ex parte Ahsan [1969] 2 QB 222.The applicant carries an initial burden of showing a prima facie case that the detention was unlawful. Upon this being shown the burden of proof is then cast on the authority detaining the applicant to prove any fact prescribed by the statute as a condition of the power of detention: R v Governor of Brixton Prison, Ex parte Ahsan, above; R v Home Secretary, Ex parte Khawaja [1984] AC 74 at 110-112 per Lord Scarman.
39R v Governor of Brixton Prison; Ex Parte Ahsan is, as the Full Court observed, an earlier English authority for that principle. In that case, the applicants gave highly unreliable evidence that tended to prove the absence of an essential condition to the valid exercise of the relevant power of detention. Although the applicants were unable to prove that matter to the Court’s satisfaction, having raised it by their testimony it fell to the respondents to negative the applicants’ account. This was, the Court held, consistent with the notion that all detentions are prima facie illegal. The onus as stated is also consistent with the principle that, whilst there is ordinarily a presumption of the regularity of official acts, there ‘is no room for presumptions in favour of the executive where the liberty of the subject is concerned.’
40Finally, the relevant standard of proof is the civil standard, although it ‘requires a degree of probability which is commensurate with the occasion.’ Because ‘the liberty of the applicant is at stake the issue is sufficiently grave to require strong, clear and cogent evidence.’
(Citations omitted, emphasis in original.)
These paragraphs were cited with apparent approval by Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 (M47/2018) at [39] and footnote 33. I will return to this point. The approach adopted by the primary judge which involved the shifting of the onus on three occasions was addressed in the closing submissions before him and each party was given the opportunity to formulate their respective cases by reference to this approach.
The history of the writ of habeas corpus and the extent to which the onus, legal or evidential, was affected by the procedure for the obtaining of the writ and, in particular, the rule nisi and rule absolute procedure, was not the subject of submissions by the parties. However, it would seem that the four circumstances and three changes in the onus identified by the primary judge reflects, or may well reflect, the nature of the procedure and the particular circumstances of a respondent’s return, for example, a return that there is a warrant of commitment. The differences in the older procedure for habeas corpus and the more modern procedure can be seen in a comparison of the High Court Rules 1952 (Cth) as to habeas corpus (O 55, r 38–46) and the High Court Rules 2004 (Cth) as amended in 2018 (Part 25, r 25.16).
With respect, the Court’s modern procedures and practices suggests to me that his Honour’s analysis is not the appropriate one in a case such as the present. The appellant issued an Originating application in which he claimed not only habeas corpus, but also judicial review of the respondent’s refusal to revoke the cancellation of his visa. Each party filed affidavits relevant to their case, including the appellant’s claim for habeas corpus, and the matter was then tried. In my respectful opinion, there is no second circumstance or onus as identified by the primary judge, or at least, there is none in the circumstances in which this case, having regard to the issues it raised, proceeded and was tried.
I would add that if I am wrong and there is a second circumstance or onus, I have difficulty in accepting the primary judge’s conclusion that it was satisfied by “a reasonable possibility that a statutory power, combined with the surrounding facts, will lawfully support the restraint” (at [117]). With respect, I do not consider that merely pointing to the reasonable possibility of a statutory power lawfully supporting the restraint satisfies any form of onus or burden.
In any event, there is no dispute in this case that the legal onus to prove detention was on the appellant and the legal onus to prove the lawfulness of the detention was on the respondent. The dispute relates to whether the appellant bore an initial evidential onus to raise a prima facie question as to the lawfulness of the restraint.
I accept that in Burgess at [79], Besanko J observed, by reference to Ruddock v Taylor at [51], that there was “some force” in the Commonwealth’s submissions that the Court should infer that the requirements of s 189 were met throughout the applicant’s detention because Mr Burgess’
initial detention was lawful and nothing appears to have changed during his detention.
However, his Honour went on to find (at [80]) that while some evidence of reasonable suspicion during the period of Mr Burgess’ detention was adduced, there were gaps in the evidence and there was no evidence that those who held a reasonable suspicion on the evidence which was adduced were the officers who detained Mr Burgess. In other words, his Honour required proof of reasonable suspicion throughout the period and was not prepared to rely on any general inferences. Respectfully, that was the correct approach. The nature of the evidence sufficient for the burden to be discharged is a question of fact in each case.
It may be accepted that the Commonwealth as the detainer may chose a documentary mode of proof and thus rely on the Court drawing inferences about an officer’s state of mind from the documents: see, eg, Okwume (FC) at [325]. It will always be a question of fact on the evidence whether there is a sufficient probative basis for such an inference to be drawn. This however is an example of a specific inference as to a specific officer’s state of mind at a relevant time. It is not any broad or general inference extending over months or years of detention by (it would appear) a number of different Commonwealth officers. That could not comply with proof of the justification for detention on the terms of s 189(1).
Further, the primary judge’s approach to the situation post Love/Thoms was also, with respect, erroneous. The High Court’s majority decision in Love/Thoms brought about a significant development in the meaning and operation of s 189 and s 196 of the Migration Act, as well as to other aspects of the scheme which need not be addressed here. A category of people, previously considered to have been amenable to mandatory detention (and potentially to the visa regime) were found not to be. That should have brought about a substantial reassessment by the Commonwealth of all individuals who claimed, or might reasonably be suspected to be, Aboriginal Australians. As Jagot J said in Guo at [65]-[66]:
It may be accepted that Ruddock v Taylor decided that an officer may hold the requisite reasonable suspicion under s 189(1) even if the person is not an unlawful non-citizen, the reasonable suspicion being based on an error of law or fact. On the facts in Ruddock it was proved that each detaining officer reasonably suspected that the respondent was an unlawful non-citizen on the basis of satisfying themselves that the respondent’s visa had been cancelled and the respondent held no other visa (at [49]-[50]). At [51] it was held that:
It also follows from that fact, and the reasons given earlier, that the respondent’s detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent’s visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
The reasoning at [51] contemplates that the lawfulness of continued detention of a person reasonably suspected to be an unlawful non-citizen may change during the course of detention as a result of an event which could affect the state of mind of the detaining officer or officers.
(Emphasis added.)
None of the evidence on which the Minister relied before the primary judge tended to prove that any officer had turned her or his mind to whether the appellant was an Aboriginal Australian and therefore not an alien, and therefore whether s 189 and s 196 were constitutionally incapable of applying to him. That is hardly surprising since the evidence before the primary judge stopped at the end of 2018 and Love/Thoms was not decided until February 2020. The evidence as admitted was incapable of contributing to the Minister discharging his burden of proof on this issue. The primary judge erred in essentially taking findings from the trial about the tripartite test and retrospectively applying them to the discharge of the respondent’s burden of proof.
The appellant having adduced enough evidence to “put in issue” whether he was an Aboriginal Australian, the Minister bore the onus of proving that an officer held, at the time of trial, a reasonable suspicion that the appellant was not an Aboriginal Australian. No evidence at all about any detaining officer’s state of mind on this matter was adduced.
As Black CJ said in Vadarlis at [71]:
Habeas corpus is a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time.
(Emphasis added.)
I note that in Burgess, Besanko J observed that the Commonwealth made a formal submission that Fernando was wrongly decided. No such submission was made on this appeal.
Grounds 6 and 7 should be upheld. On this basis, I respectfully agree with the Chief Justice that a writ of habeas corpus, and an order in the nature of habeas corpus, should issue and the appellant should be released.
Ground 8
Lastly, under this heading, on ground 8, the appellant submits that any suspicion that was held that the appellant is an unlawful non-citizen was not reasonable, at least insofar as it related to the appellant’s status as a non-citizen. He contends that the information about “long-standing administrative decisions” (eg being placed on the electoral roll and issued an Australian passport) indicating that the appellant is an Australian citizen meant that a reasonable officer could not simply ignore or give no effect to these matters without further inquiry.
The appellant relied on a passage from Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 at [6], where Gray and Lee JJ said:
It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and to form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen. That, of course, is consonant with the serious act the officer is empowered to carry out.
The appellant also relied on a passage from the reasons of Besanko J in Okwume (FC) at [134]:
If he or she did have the suspicion, then the question is whether a reasonable person in the officer’s position would have entertained a suspicion that the person was an unlawful non-citizen. That will involve, in the first instance, an examination of the circumstances known to the person. If a reasonable person in the officer’s position would have desisted from forming the suspicion or awaited further information or made further inquiries before forming the relevant suspicion, then the actual officer’s suspicion is not reasonable in the circumstances. As I understand the phrase “reasonably capable of being known” as used in Ruddock v Taylor, it includes inquiries a reasonable person in the position of the officer would make before forming the relevant suspicion. The meaning of suspicion is as articulated in George v Rockett (see above at [92]).
The primary judge spent a considerable amount of time in his reasons discussing the presumption of regularity (see [329]-[344]), concluding that it was an evidentiary presumption: at [339]. At [346], he held that the presumption
may aid the applicant to raise an evidential presumption that, as a matter of fact, the Minister formed a state of satisfaction for the purposes of the Passports Act that the applicant was an Australian citizen. That is because the formation by the Minister of that state of mind was a condition necessary to the issue of the applicant’s passport.
But then held that, as a matter of law, it could not assist the appellant because
citizenship is a statutory concept. It is an entitlement conferred only by statute. It cannot be conferred by mere administrative action, mistaken or otherwise.
There is no conclusion expressed by his Honour about the reasonableness of the suspicion of the detaining officers on the question whether the appellant was not an Australian citizen. However, at [352] the primary judge found
As for the alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant’s detention), the applicant has satisfied his initial evidential onus to raise a prima facie question as to the lawfulness of his restraint in respect of his claims to be unlawfully detained on the basis of his Australian citizenship. He did so by presenting evidence of his past enrolment on the Commonwealth electoral roll in 1986 and the issue of his Australian passport in 2017. However, the Minister has satisfied his ultimate legal onus to establish the lawfulness of the applicant’s detention by demonstrating that the applicant has never satisfied the statutory criteria for Australian citizenship.
(Bold emphasis added; italic emphasis in original.)
This finding appears under the heading “Alternative analysis: Direct challenge to lawfulness of applicant’s detention”. As expressed, the paragraph suggests the primary judge is dealing with the habeas corpus argument, although the finding is not expressed in terms of any detaining officer’s reasonable suspicion, but at a more absolute level, which perhaps can be seen as incorporating the lesser finding that the suspicion held by the detaining officers (on the primary judge’s approach to this issue, which I have found erroneous) was reasonably held.
The Minister submitted that the matters identified by the primary judge at [359], extracted at [161] above, were sufficient to establish the reasonableness of the suspicion, assuming it existed.
The difficulty with this ground is that it is premised on an approach by the primary judge which I have held to be erroneous; namely, his Honour’s approach to the evidence necessary to determine a claim for relief by way of habeas corpus.
There was no evidence of any suspicion held at the time of trial, let alone evidence as to its reasonableness. If there had been such evidence, then I accept, consistently with the authorities to which the appellant referred, the detaining officer would have been required to look at all the facts and circumstances before her or him, and so would any reviewing court. That exercise simply was not undertaken, and now cannot be undertaken. The argument about presumptions of regularity is not consistent with the authorities and in this context it is a distraction from the real issues, as it was before the primary judge.
The primary judge’s approach was so different that it would not be appropriate to uphold this ground. The primary judge’s approach has been identified as erroneous for other reasons. The better view is to find that, in light of my findings on the grounds of appeal to this point, this ground of appeal does not arise for determination.
Ground 9: whether the appellant is an Australian citizen
Section 10(1) of the 1948 Citizenship Act relevantly provided:
Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.
It was common ground that this was the applicable provision by reason of s 4(2) of the Australian Citizenship Act 2007 (Cth). Section 4 of that Act provides:
(1) For the purposes of this Act, Australian citizen means a person who:
(a)is an Australian citizen under Division 1 or 2 of Part 2; or
(b)satisfies both of the following:
(i)the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;
(ii)the person has not ceased to be an Australian citizen under this Act.
Citizenship under the old Act
(2)If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.
The appellant relied on the 1948 Citizenship Act at November 1976 (when the appellant was formally adopted under the Queensland Adoption Act). The respondent relied on the 1948 Citizenship Act at February 1975 (when the appellant arrived in Australia). The difference between the parties is not material because the 1948 Citizenship Act was not relevantly amended between those dates.
The appellant’s submission is that the phrase “born in Australia” in s 10(1) should not be construed as limited to those whose physical birth occurred within the geographical territory of Australia. In other words, that the provision should be construed as if the words “by reason of fact or law” are inserted after “born in Australia”, such that a person “deemed” to have been born in Australia, by an Australian law, falls within the section. He contends this “explains” the identification of the appellant as an Australian citizen over the years by various Commonwealth officers. That submission can be immediately rejected, on the basis there is no evidence of any link between the appellant’s contentions in this proceeding and the reasons why the appellant has, erroneously, been treated and identified as an Australian citizen in the past.
This ground of appeal does not concern whether the suspicion of any detaining officer was reasonable. It is an argument directed at the appellant’s status as a non-citizen, as found by the primary judge, with his Honour’s conclusion being expressed at [322] of his reasons. The appellant did not pursue any argument before this Court (aside from ground 8, to the extent this issue is related) that the administrative acts involved in granting the appellant a passport, enrolling him to vote and otherwise identifying him as an Australian citizen in (for example) social security documentation and indeed in immigration detention records) had any legal effect on his status, if according to law he is a non-citizen.
The appellant submits that, by reason of s 31 of the Queensland Adoption Act and his adoption under that Act, he is deemed to have been born in Australia. As I have noted, that section provides:
(1)Subject to this section, upon the making of an adoption order, the adopted child acquires the domicile of the adopter or adopters at the date of the adoption order and the child’s domicile thereafter shall be determined as if the child had been born in lawful wedlock to that adopter or those adopters.
(2)The domicile acquired, upon the making of the order, by the child under subsection (1) of this section shall be deemed to be also the child’s domicile of origin.
The appellant submits that “domicile of origin” is “interchangeable at law with ‘born in Australia’”; accordingly, by reason of his adoption under the Queensland Adoption Act, the appellant was “born in Australia” for the purposes of s 10 of the 1948 Citizenship Act. He contends the historical context of the introduction of s 31 of the Queensland Adoption Act, and the way other States dealt with the domicile of adopted children, supports this proposition.
In support of this approach, the appellant refers s 5(3)(a) of the 1948 Citizenship Act, by which persons born on a registered ship or aircraft are deemed to have been born at the place at which the ship or aircraft was registered. That illustrates, he contends, that s 10(1) is not intended to be limited to physical birth in Australian territory and that Parliament contemplated the acquisition of citizenship by operation of law, and through a deeming mechanism.
The difficulty for the appellant is there is no basis in the text, context or purpose of s 10(1) of the 1948 Citizenship Act to construe the phrase “born in Australia” as intended to extend to persons who, by reason of a State statute, had been deemed upon their adoption to have a “domicile of origin” in that State. Instead, there is a basis to find no such intention.
The first and obvious point to be made, as the primary judge stated, is that citizenship is a statutory concept: see Love/Thoms at [98] (Gageler J); [172] (Keane J) (both in dissent on the result, but this point is uncontroversial); [236] (Nettle J); [299] and [305]-[306] (Gordon J); [415] (Edelman J). However, after Love/Thoms, citizenship is no longer the “obverse” of the status of alienage: cf Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 at [2].
The 1948 Citizenship Act as in force when the appellant entered Australia, and when he was adopted in Queensland in 1976, dealt with citizenship conferred by operation of law on persons “born in Australia” and “born outside Australia”. Those two statutory phrases were used in contrast to each other in the scheme. There is no basis to read the deliberate use of “in” and “outside” in the contrasting provisions to refer to anything but the geographical location of a person’s birth. Where Parliament sought to provide an exception to this binary treatment, it did so. An example is s 5(3).
The terms of s 5(3)(a) and (aa) were the only provisions which extended the meaning of “born in Australia” by a deeming device:
For the purposes of this Act—
(a)a person born on a registered ship or aircraft shall be deemed to have been born at the place at which the ship or aircraft was registered and a person born on an unregistered ship or aircraft belonging to the government of a country shall be deemed to have been born in that country;
(aa)a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed to have been born in Australia and, if born on or after 26th January, 1949, to be a person to whom sub-sections (2) and (3) of section 10 of this Act do not apply …
“Australia” is also defined geographically in s 5:
“Australia” includes the Territories that are not trust territories …
The 1948 Citizenship Act did not exclude adopted children; rather, Parliament acknowledged the status of an adopted child for specific reasons, when using the term “child” in the Act. Section 5 provided:
“child” includes an adopted child, a step-child and a child born out of wedlock …
The operative citizenship provisions of the Act do not use the word “child”; rather, they use the word “person”. However, the extension of the definition of “child” to adopted children is another contextual indication that s 10(1) was not directed at any particular status of the person concerned, simply at her or his location when born.
Section 11(1) of the 1948 Citizenship Act, as in force in 1975 and 1976, is an important contextual feature of the scheme, as the primary judge found at [321]. It provides:
A person born outside Australia on or after 26th January, 1949, is an Australian citizen by descent if—
(a)in the case of a person born in wedlock—at the time of the birth his father or mother was an Australian citizen; or
(b)in the case of a person born out of wedlock—at the time of the birth his mother—
(i)was an Australian citizen; or
(ii)was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea,
and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows.
By this provision, certain people born outside Australia acquire citizenship by operation of law. It is common ground none of these circumstances applied to the appellant. Yet, as the primary judge found, the appellant’s argument would provide another basis on which a person born outside Australia could secure citizenship by operation of law, and that would not be consistent with Parliament’s intention at the time, as evinced in s 11(1).
There is no textual or contextual support for the proposition that “born in Australia” should be construed as extending to “adopted in Australia”.
Subsequently, the federal Parliament did see fit expressly to treat children lawfully adopted by Australian citizen parents as Australian citizens by operation of law, no matter where they were born. Section 10A of the 1948 Citizenship Act was added by s 10 of the 1984 Amendment Act. It provided:
Citizenship by adoption
A person, not being an Australia citizen, who—
(a)under a law in force in a State or Territory, is adopted by an Australian citizen or jointly by 2 persons at least one of whom is an Australian citizen; and
(b)at the time of his adoption is present in Australia as a permanent resident,
shall be an Australian citizen.
In contrast to s 10(1), s 10A thus turns on the fact of adoption only. But for the operation of the transitional provisions, it would have applied to the appellant. However, it is common ground between the parties that s 10A applied to a relevant person adopted after 22 November 1984. Section s 39(3) provides:
Section 10A of the amended Act applies to a person adopted after the commencing day.
Section 39(1) defines “commencing day” as the 28th day after the day on which the Act receives Royal Assent. The Act received Royal Assent on 25 October 1984, therefore s 10A only applies to persons adopted after 22 November 1984. The appellant was adopted in 1976.
Insofar as the appellant’s detailed argument about the effect of the s 31 of Queensland Adoption Act emphasised the common law meaning of the phrase “domicile of origin” as not synonymous with the geographical location of a person at birth, that can be accepted. The primary judge explained this in detail at [301] to [305], and then at [306]-[308] accepted, also correctly, that statute may modify the operation of the common law concept of domicile of origin, and that s 31 had this effect. However, the criterion selected by the Parliament in s 10(1) is simply one of the fundamental criteria for nationality – geographical location of birth. Parliament has selected a criterion which is a question of fact, not law.
It is true also that s 28 of the Queensland Adoption Act provides:
General effect of adoption orders. (1) For the purposes of the laws of Queensland but subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order—
(a)the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock; …
Two observations should be made about this provision. First and obviously, its effect is limited to other Queensland laws. Second, its focus is on the relationship between parent and child under the law.
The focus of s 10(1) of the 1948 Citizenship Act is not on the relationship of parent and child. Although s 10(2) and (3) expressly exclude some people from citizenship by reference to their “father”, the sole focus of s 10(1) is on the location where a person is born. By s 10(1), the legislative scheme looked to what was accepted by the common law as indicative of nationality (and non-alienage); namely, place of birth. In Singh v Commonwealth [2004] HCA 43; 222 CLR 322 at [172], the plurality said:
There is no doubt that after Calvin’s Case, at common law, subject to exceptions for children of foreign diplomats and children of occupying armies, any person born within the British Dominions (whatever the nationality of that person’s parents) was a natural-born British subject. And at common law the allegiance of a natural-born British subject was regarded as permanent or “indelible”.
(Footnote omitted.)
See also Love/Thoms at [167].
In Koroitamana v Commonwealth [2006] HCA 28; 227 CLR 31 at [9], describing the outcome in Singh, Gleeson CJ and Heydon J said:
all the Justices who were in the majority in Singh rejected the proposition that, at the time of federation, the concept of alienage had an established and immutable legal meaning that deprived Parliament of any substantial room for legislative choice in the matter. On the contrary, “questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary resolution”. Internationally, two theories, one of which attached controlling importance to descent, and one of which attached controlling importance to place of birth, competed for acceptance. The Constitution did not commit Australia to uncompromising adherence to either theory.
(Footnotes omitted.)
The primary judge was correct to reject the appellant’s creative, and well-researched, argument based on s 31 of the Queensland Adoption Act.
The appellant highlighted at least one factual discrepancy which he contended suggested his adoption was treated in Queensland as if he was the natural child of his adoptive parents, including his Australian citizen father. This was the fact that his adoptive parents’ ages are recorded on his birth certificate issued after his adoption as the ages they would have been at the time of the appellant’s birth; namely 15 and 19 years: see [284] of the primary judge’s reasons where the birth certificate is reproduced. However, it is also true that the birth certificate records the fact of the appellant’s birth in the Cook Islands. That is the critical fact for the purposes of s 10(1).
Ground 9 must be rejected.
THE NOTICE OF CONTENTION
The Minister sought to rely on a notice of contention relating to the admissibility of exhibits JMD-4 to JMD-7 and JMD-10 to JMD-12, in response to ground 5 of the notice of appeal. In other words, if the Court accepts ground 5, the documents at JMD-4 to JMD-7 and JMD-10 to JMD-12 were nevertheless admissible on two other bases.
In oral argument, senior counsel for the Minister properly accepted that the application of r 36.24 of the Federal Court Rules meant he needed leave to rely on the notice of contention. The notice was filed some seven weeks out of time. The matter of leave was not raised by the counsel for the appellant until his oral reply submissions. It was only then that counsel for the appellant informed both the Minister and the Court that the appellant opposed leave being granted. It was not appropriate for such a point to be raised that late, and without notice.
The substance of the notice of contention is that the documents in those exhibits were adduced to prove the state(s) of mind of the makers of the representations at the time the representations were made, and were admissible expressly under s 66A of the Evidence Act, but also by reason of the limits on the hearsay rule as recognised by s 60(1).
Counsel for the appellant raised a number of arguments against leave being granted and also against the contention being upheld. He submitted:
(a)The Minister did not rely on s 66A or s 60(1) before the primary judge;
(b)If he had, the appellant may have opposed the tender and sought exclusion under s 135, or a ruling under s 136, based on the appellant’s inability to cross-examine the makers of the representations as to their state of mind, and especially as to reasonableness;
(c)Relying on Seymour v Federal Commissioner of Taxation [2016] FCAFC 18; 241 FCR 361 at [33], [86]-[95] and [112], there was no evidence the case reviews and other documents were recorded contemporaneously with the formation of the reasonable suspicion (being the representation); and
(d)Section 66A only applies to first-hand hearsay and Ms Duff’s affidavit was at least second-hand hearsay, because she relied on a representation from Ms Kelly that these were the records Ms Kelly generated on request, and the records were representations from a person or persons other than Ms Kelly.
The Minister replied that the documents contained first-hand hearsay; namely, a representation made by a relevant officer who had knowledge of the relevant facts within the terms of s 60(3) of the Evidence Act. He contended the representation was “contemporaneous on the face of the documents”. If that is not accepted, the Minister pressed reliance on s 60(1).
There is no reason to refuse leave to the Minister to rely on the notice of contention. Had the Minister been made aware earlier that leave was opposed, an affidavit explaining the delay is likely to have been filed. However, even without such evidence, there is no apparent prejudice to the appellant in leave being granted. The appellant’s counsel was ready to deal with the issue.
I accept the representations in the documents are “contemporaneous on the[ir] face”. To take JMD-4 as an example, the officer entered a date of “11/05/2018” as the date to be attached to the formation of his reasonable suspicion. In the paragraphs above he refers to checks done on 8 May 2018 with the appellant; on 10 May 2018 with what I infer to be an internal system called “CAT” about whether the appellant was “affected by case law”; on 10 May 2018 in relation to a “verbal support” from the Status Resolution Helpdesk about the appellant; and on citizenship status, together with some older assessments to which he referred. I also accept the representations are first-hand hearsay. That the document itself (rather than the representation) was generated by another person and given to Ms Duff does not alter the character of the representation as first-hand hearsay.
However, I do not consider the contention should be upheld because to do so would cause substantive unfairness to the appellant. It is correct that neither s 66A nor s 60(1) were raised or relied upon by the Minister before the primary judge. It is correct that an argument could well have been made concerning the exercise of discretion under s 135.
While it is true the same argument could have been made in relation to the s 69 exception, the point is somewhat more acute when the basis for admissibility is said to be the state of mind of the maker of the representation. There was an argument to be had under s 135 and the election of the Minister to raise this contention for the first time on appeal deprived the appellant of the opportunity to make that argument, which, given the Minister’s burden of proof in the application for relief by way of habeas corpus, was an important matter.
The second reason the contention should not be upheld is because, as I have explained earlier, these exhibits were essentially irrelevant to the Minister’s burden of proof on the application for relief by way of habeas corpus: they were of historical relevance only, and said nothing about the state of mind of the officer detaining the appellant at the time of trial.
CONCLUSION
On the grounds of appeal as framed, the appeal should be allowed in part, as to grounds 1, 3, 4(a), 6 and 7.
On the basis of my reasoning on those grounds, I agree with the Chief Justice at [67] and [72] as to the appropriate orders.
While those orders resolve the appellant’s immediate entitlement to liberty, they do not resolve the question of his status for the purposes of the operation of the Migration Act, which is whether he is an Aboriginal Australian. The Court has rejected his arguments to be an Australian citizen by reason of his adoption, and, subject to the issues he seeks to raise on his appeal about equitable estoppel, there are no other arguments advanced that he has that status. The question whether or not he has the status of an alien because of his claims to be an Aboriginal Australian was not directly confronted on the appeal, because of the way the grounds of appeal were framed. I respectfully agree with the Chief Justice’s reasons at [65] that the question of how the descent aspect of the tripartite test is to be determined was not the subject of detailed submissions before this Court, and is a question of some complexity. Indeed, putting to one side the prospect that the tripartite test may not be the only approach (see Love/Thoms at [80]), the relationship between on the one hand what has been said in Love/Thoms about “Aboriginality” by reference to the High Court’s decision in Mabo (No 2) on the common law’s recognition of native title, and on the other hand the operation of the statutory scheme of native title in the Native Title Act 1993 (Cth), is in my respectful opinion yet to be worked through in detail. Relevantly to Mr McHugh that includes how connection to land through descent is treated. As no more than two examples, one (like Mabo (No 2) itself) from the Torres Strait, see: Akiba v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1 at [196]-[294]; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 at [9] and [114]-[116]. As the Chief Justice has observed, there may be other, complex questions, including about the proper construction and operation of s 189 of the Migration Act in respect of Aboriginal Australians who are not citizens.
I certify that the preceding two hundred and eighty-five (285) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 11 December 2020
63
47
15