McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] FCA 416

FEDERAL COURT OF AUSTRALIA
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416

File number: VID 1121 of 2019

Judge: ANDERSON J

Date of judgment: 7 April 2020

Catchwords:
MIGRATION – applicant in immigration detention – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) decided not to revoke cancellation of applicant’s absorbed person visa – applicant born in Cook Islands – applicant claims he is an Aboriginal Australian – applicant claims he is an Australian citizen – application for relief in the nature of a writ of habeas corpus – whether applicant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – meaning of “an officer” – inference of officer’s suspicion – presumption of continuance – reasonableness of suspicion

HIGH COURT AND FEDERAL COURT – original jurisdiction of Federal Court of Australia – s 476A(1) of the Migration Act – whether exercise of power under s 189(1) of the Migration Act is a “decision” – original jurisdiction to review administrative action under s 189(1) – residual original jurisdiction to determine whether s 189(1) is capable of validly applying to the applicant

CONSTITUTIONAL LAW – powers of Commonwealth Parliament – power to make laws with respect to naturalisation and aliens – Love v Commonwealth of Australia [2020] HCA 3 – applicant self-identifies as Aboriginal – applicant recognised by elder as member of Aboriginal community – no evidence of biological descent – mode of proving biological descent – whether applicant satisfies tripartite test for Aboriginality in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1

CITIZENSHIP – applicant born in Cook Islands – applicant arrived in Australia at age 7 – applicant adopted in Queensland at age 8 – applicant’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” – applicant enrolled on Commonwealth electoral roll in 1986 – applicant voted in 1987 Australian federal election – applicant issued an Australian passport in 2017 – presumption of regularity – whether the applicant is an Australian citizen

STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – ordinary meaning of “birth” – reading of Act as a whole – reading statutory provision in harmony with other provisions

PRIVATE INTERNATIONAL LAW – domicile of origin – concept at common law – whether concept equates to place of birth – statutory modification to concept

FAMILY LAW AND CHILD WELFARE – adoption – policy underpinning adoption order – effect of adoption order – whether adoption order deems adopted child to have same citizenship status as adoptive parents

STATUTES – Commonwealth Electoral Act 1918 (Cth) – persons entitled to enrolment on Commonwealth electoral roll and to vote – Australian Passports Act 2005 (Cth) – entitlement to be issued an Australian passport

ADMINISTRATIVE LAW – habeas corpus – jurisdiction of Federal Court of Australia – history, nature and effect of remedy – proper respondent – onuses of proof – whether Minister presented prima facie justification for restraint – whether applicant satisfied initial evidential onus in relation to claim of Aboriginality – whether Minister proved lawfulness of applicant’s detention

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, this proceeding

PRACTICE AND PROCEDURE – Notices of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) – whether “reasonable time” elapsed since giving of notices for consideration by Attorneys-General

Held: Federal Court of Australia does not have original jurisdiction to directly review lawfulness of applicant’s detention – however, applicant is a person to whom s 189(1) of the Migration Act may validly apply – applicant is not an Australian citizen – applicant failed to prove that he is Aboriginal Australian under tripartite test in Mabo (No 2) – applicant is an alien for the purposes of s 51(xix) of the Constitution

Legislation:
Constitution ss 51(xix), 51(xxvi)

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4(1)

Australian Citizenship Act 1948 (Cth) (repealed) Pt II, ss 3(a), 5(1), 5A, 7(1), 7(2), 10, 10(1), 10A, 10B, 10C, 11, 11(1), 12, 13, 14, 15

Australian Citizenship Act 2007 (Cth) Div 1 of Pt 2, ss 4, 4(1)(b), 4(2), 12, 13, 21

Australian Citizenship Amendment Act 1984 (Cth) ss 2(1), 5, 7, 39(3)

Australian Citizenship Amendment Act 1991 (Cth) (repealed)

Australian Passports Act 2005 (Cth) ss 3, 7, 8, 8(a), 42, 43

Commonwealth Electoral Act 1918 (Cth) ss 93, 93(1)(b)(ii)

Evidence Act 1995 (Cth) ss 59, 69, 69(2), s 69(3), 155, 155A

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c), 78A, 78B, 78B(1)

Migration Act 1958 (Cth) ss 5(1), 34(2), 116(1)(d), 189, 189(1), 189(3), 196, 474, 474(2), 474(3), 474(3)(a)–(f), 474(3)(g), 476A, 476A(1), 476A(1)(a)-(d), 501(2), 501(3A), 501CA(4)

Migration Litigation Reform Act 2005 (Cth)

Nationality and Citizenship Act 1948 (Cth)

Adoption of Children Act 1964 (Qld) (repealed) ss 7, 7(1), 28, 31, 31(2), 55

British Nationality and New Zealand Citizenship Act 1948 (NZ) (repealed) s 6

Cases cited:
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Date of hearing: 11–12 March 2020

Date of last submissions: 31 March 2020 (Respondent)
2 April 2020 (Applicant)

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 377

Counsel for the Applicant: Mr M L L Albert

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr G Hill

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1121 of 2019

BETWEEN:
EDWARD MCHUGH

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:

ANDERSON J

DATE OF ORDER:

7 APRIL 2020

THE COURT ORDERS THAT:
1.The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Leave is granted for the applicant to rely on the “Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)” dated 11 March 2020 (Amended Application).
3.There be an extension of time for the filing of the Amended Application.
4.The applicant’s application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed.
5.The costs of the habeas corpus application be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS

I.   INTRODUCTION

[1]

Edward McHugh: Immigration, adoption, adulthood, detention

[3]

Detention and impending deportation

[8]

Legal challenge in this Court

[11]

Alleged unlawfulness of detention

[13]

Summary of my decision

[17]

II.   BACKGROUND TO THIS PROCEEDING

[24]

Cancellation of applicant’s visa

[25]

Minister’s decision

[42]

Proceeding in this Court

[44]

Section 78B notices

[51]

Hearing of the application

[59]

III.   MINISTER’S BASIS FOR RESTRAINT

[62]

IV.   JURISDICTIONAL LIMITATION

[65]

Limited original jurisdiction of the Federal Court

[66]

“Migration decision”

[70]

Application to the present case

[81]

Residual original jurisdiction

[88]

Consideration of alternative analyses

[90]

V.   DIRECT CHALLENGE TO DETENTION

[94]

Habeas corpus

[95]

Jurisdiction of this Court

[96]

History and nature of the remedy

[98]

Onus of proof

[101]

Prima facie justification for restraint

[106]

Proper respondent

[118]

Prima facie justification for applicant’s detention

[120]

Officer’s suspicion

[123]

“An officer”

[126]

Inference of a suspicion

[135]

Key authorities

[136]

Admissibility of evidence

[149]

Evidence supporting inference of a suspicion

[156]

Consideration

[170]

Conclusion on officer’s suspicion

[188]

VI.   APPLICANT’S ABORIGINALITY

[190]

Love v Commonwealth of Australia

[191]

Biological descent

[200]

Relevant authorities

[204]

Modes of proof

[227]

Applicant’s evidence

[230]

Consideration

[234]

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant

[237]

Alternative analysis: Direct challenge to lawfulness of applicant’s detention

[243]

Conclusion on Aboriginality

[246]

VII.   APPLICANT’S CITIZENSHIP

[248]

Applicant’s claim to citizenship

[250]

Historical legislative framework

[256]

New Zealand citizenship

[256]

1948 Citizenship Act

[257]

“British subject” status

[257]

Criteria for citizenship

[260]

1984 amendments

[265]

1991 amendments

[269]

2007 Citizenship Act

[270]

Enrolling to vote in Australia

[273]

Obtaining an Australian passport

[276]

Citizenship by birth?

[279]

Applicant’s adoption order and birth registration

[281]

“Born in Australia”

[286]

“Domicile of origin”

[301]

Common law position

[301]

Statutory modification to “domicile of origin”

[306]

Policy underpinning adoption order

[309]

Interpretation of the 1948 Citizenship Act

[316]

Presumption of citizenship?

[324]

Applicant’s evidence

[325]

Presumption of regularity

[329]

Consideration

[338]

Conclusion on citizenship

[351]

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant

[351]

Alternative analysis: Direct challenge to lawfulness of applicant’s detention

[352]

VIII.   CONCLUSION

[353]

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant

[354]

Alternative analysis: Direct challenge to lawfulness of applicant’s detention

[356]

Reasonableness of officer’s suspicion

[357]

Habeas corpus revisited

[370]

IX.   ORDERS

[375]

Costs

[375]

Pronouncement

[376]

REASONS FOR JUDGMENT
ANDERSON J:
I.   INTRODUCTION

The applicant, Edward McHugh, demands that the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), justify the lawfulness of the applicant’s custody in immigration detention. Subject to the outcome of this proceeding, the applicant is liable to be removed from Australia as an unlawful non-citizen. However, the applicant contends that he is not an unlawful non-citizen. The applicant seeks immediate release from detention.
The applicant argues that he cannot be lawfully deported, nor lawfully subject to immigration detention. This is because, according to the applicant, he is, first, an Aboriginal Australian and, second, an Australian citizen. The Minister rejects these claims. The Minister asserts that the applicant, who is a New Zealand citizen, is an “alien” to Australia for constitutional purposes, and is accordingly liable to lawful deportation.
Edward McHugh: Immigration, adoption, adulthood, detention

The applicant was born in 1968 in the Cook Islands. This, by operation of New Zealand law, made him a citizen of New Zealand. The applicant never knew his biological father and was abandoned by his biological mother shortly after birth. The applicant was initially raised by another Cook Islander woman until her passing in 1974. Thereafter, when the applicant was six years old, that woman’s daughter, Maryanne McHugh, and her husband, Kevin McHugh, cared for the applicant, but did not formally adopt him at that time. Kevin McHugh was born in Australia. However, Maryanne McHugh was born in the Cook Islands, and did not become an Australian citizen until 1997. Neither Maryanne McHugh, nor Kevin McHugh, are biological relatives of the applicant.
The applicant first arrived in Australia in 1975, when he was seven years old. His incoming passenger card recorded him as an Australian citizen. He was formally adopted by Maryanne and Kevin McHugh in 1976, almost 21 months after arriving in Australia. Two days after the making of the adoption order, the applicant’s birth was registered in Queensland. The registration identified Maryanne and Kevin McHugh as the applicant’s parents. It was not until 2013, when the applicant was 45 years old, that he learned that he had been adopted, rather than born to, his adoptive parents.
From about 1990 until 2001, the applicant lived with his first wife in the Ardyaloon or One Arm Point Community of the Bardi Jawi people (Ardyaloon Community), which is located on the Dampier Peninsula in Western Australia. The applicant has a traditional Bardi Jawi name, speaks some Bardi, and held a ceremonial role in the Ardyaloon Community during this period. The applicant had five children with his first wife. In 2001, the applicant moved out of the Ardyaloon Community after separating from his first wife. He later remarried, and, until 2008, lived with his second wife, a Bardi Jawi woman, in Derby, Western Australia, and also in the Mulan Aboriginal community in the east Kimberly region of Western Australia. The applicant had two children with his second wife. In 2015, the applicant met a Gidja woman, who was an aboriginal artist. During 2015 and 2016, the applicant travelled with her and painted, and sold, traditional Aboriginal paintings.
Critically for the purposes of the present case, the applicant self-identifies as being an Aboriginal Australian. He is also ostensibly recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of Aboriginal biological descent.
Other aspects of the applicant’s history are relevant to the dispute regarding the true status of his citizenship. In 1986, when the applicant was 18 years old, and still living with his adoptive parents in Queensland, he was informed by the electoral office that he was eligible to vote. The applicant subsequently voted in the 1987 Australian federal election. Two decades later, in 2017, the applicant applied for, and was issued, an Australian passport. The applicant contends that his entry on the Commonwealth electoral roll, and the issue of his Australian passport, could only lawfully occur upon satisfaction that he was an Australian citizen. The Department of Home Affairs (Department) claims that his passport was issued in error.
Detention and impending deportation
The applicant has an extensive criminal record. A National Criminal History Check records the commission of 106 offences between 1987 and 2018 across Queensland, Western Australian, South Australia and the Northern Territory. This record largely consists of low-level offences. However, in December 2005, the applicant was convicted and sentenced for 16 months for possessing a prohibited drug with intent. Subsequently, after regular offending, the applicant was, on 14 February 2018, convicted of various offences and sentenced to four months’ imprisonment. Where a non-citizen has been sentenced to a term of imprisonment of 12 months or more, and is currently serving a sentence of imprisonment (whether or not those terms of imprisonment are the same), his or her visa is mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act).
In February 2018, the Department formed the view that the applicant was not an Australian citizen. In the Department’s view, the applicant was merely the holder of an absorbed person visa, which is a class of permanent visa that gives lawful status to particular non-citizens who have been long-time residents in Australia. In April 2018, the applicant was notified that this visa had been cancelled by the Minister. The next day, the applicant submitted a request for revocation of the visa cancellation. After the completion of the applicant’s criminal detention, he was transferred to immigration detention on 11 May 2018, and has been there since (albeit in different locations). The Minister contends that he has lawful authority to detain the applicant under s 189(1) of the Migration Act, which relevantly provides that “[i]f an officer knows or reasonably suspects that a person … is an unlawful non-citizen, the officer must detain the person”.
On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant’s visa (Minister’s decision). This meant that, subject to any legal challenge, the applicant was liable to be deported from Australia.
Legal challenge in this Court
On 2 October 2019, the applicant, then without legal assistance, applied to this Court for judicial review of the Minister’s decision. Now, with the assistance of legal representation, the applicant does not simply seek to challenge the validity of the Minister’s decision. His primary contention is that his ongoing detention is unlawful, and that he should accordingly be immediately released from detention. The applicant seeks relief in the nature of a writ of habeas corpus, which, in broad terms, allows a court to examine the legality of a person’s restraint and, if the Court finds the restraint to be unlawful, to order that the restrained person be released. Unless otherwise expressed, this form of relief is, for simplicity, referred to below as “habeas corpus”.
For reasons explained below at [56]–[57], I directed that the applicant’s application for habeas corpus would be heard and determined separate from, and prior to, the applicant’s application for judicial review of the Minister’s decision (should that latter application be necessary to address). Therefore, these reasons only address the applicant’s habeas corpus application.
Alleged unlawfulness of detention
The applicant’s first basis for establishing the unlawfulness of his detention arises from the High Court of Australia’s recent decision of Love v Commonwealth of Australia [2020] HCA 3 (Love). In that case, a majority of the High Court held that the relevant provisions of the Migration Act for detaining and removing unlawful non-citizens (which are enacted under the “aliens” legislative power conferred by s 51(xix) of the Constitution) do not validly apply to Aboriginal Australians. Relying on this authority, the applicant argues that he must be released from immigration detention on the basis that he satisfies the tripartite test for Aboriginality expressed by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)).
The Minister has proceeded in the present case on the basis that two of the three elements of the tripartite test are satisfied by the applicant; namely, that the applicant self-identifies as an Aboriginal Australian, and that he is recognised as such by an elder of the Ardyaloon Community. However, the parties are in dispute about the remaining element of the tripartite test: that the applicant is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. Neither is there any evidence tending to disprove his biological Aboriginality. In these circumstances, the applicant and the Minister dispute which party bears the onus of proving (or disproving) the satisfaction of this element. The applicant submits that the Minister bears the onus of proving that he has the lawful authority to detain the applicant as an alien. The Minister conversely submits that the applicant bears the onus of proving that he is not an alien.
The applicant alternatively argues that he is an Australian citizen. First, the applicant contends that, because his birth was registered in Queensland in 1976, he was “born in Australia” within the meaning of the relevant citizenship legislation such that he qualified for automatic citizenship. Second, the applicant further argues that his entry onto the electoral roll, and the issue of his Australian passport, establishes that he is an Australian citizen. The applicant contends that the Minister has not adduced evidence to displace the presumption that those administrative actions were legally valid.
The Minister rejects the applicant’s contention that he was “born in Australia” for the purposes of the relevant citizenship legislation. That phrase, in the Minister’s submission, refers to the applicant’s physical place of birth, and it is not in dispute that the applicant was physically born in the Cook Islands. The Minister moreover rejects the applicant’s argument in relation to the effect of his entry onto the electoral roll, and the issue of his Australian passport. In the Minister’s submission, those events, while ordinarily indicative of Australian citizenship, do not, as a matter of law, confer citizenship on the applicant. According to the Minister, conferral of citizenship only validly occurs where a person satisfies the prescribed statutory criteria, which never occurred in the applicant’s case.
Summary of my decision
The issues raised in the present case require a detailed consideration of principles of constitutional law, administrative law, migration law and citizenship law, the interpretation of various Commonwealth and State statutes, and an enquiry into the manner in which the relevant onuses of proof in the present case are to be discharged. A summary of my reasoning and decision is as follows.
As a consequence of the jurisdictional limitation in s 476A of the Migration Act, the Federal Court of Australia does not have original jurisdiction to directly review the validity of any act under the Migration Act in relation to the applicant’s detention. This means that this Court does not have original jurisdiction to hear and determine the applicant’s application for habeas corpus, as this remedy directly questions the lawfulness of the applicant’s detention. However, this Court retains original jurisdiction in the present case to determine whether or not the power to detain under s 189(1) of the Migration Act is capable of validly applying to the applicant in light of his claims to Aboriginality and Australian citizenship.
In my view, s 189(1) of the Migration Act is capable of applying to the applicant. This is because, for the following reasons, he is an alien to Australia for the purposes of s 51(xix) of the Constitution.
First, the applicant has failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2). The Minister accepted for the purposes of this application that the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. The applicant has accordingly failed to satisfy his onus of proving the factual elements necessary to establish that he is not an alien on the basis of his Aboriginality.
Second, the applicant is not an Australian citizen. Conferral of Australian citizenship only occurs through the satisfaction of prescribed statutory criteria. From the time that the applicant was born until the date of this decision, the applicant has not satisfied the statutory criteria for Australian citizenship. In particular, he was not “born in Australia” within the meaning of the relevant citizenship legislation. Moreover, the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his Australian passport, occurred as a matter of accepted fact. However, those administrative actions did not confer Australian citizenship on the applicant as a matter of law.
If I am wrong, and this Court does possess original jurisdiction to directly review the validity of the applicant’s detention, my view is nevertheless that the applicant is today lawfully detained under s 189(1) of the Migration Act. Although the Minister in the present case did not adduce direct evidence that, as at the time of the hearing, an officer subjectively held a suspicion that the applicant is an unlawful non-citizen, it is open for this Court in the circumstances of the present case to infer the existence of such a suspicion from the admissible evidence. For the reasons summarised above, that suspicion is reasonable; the applicant is, as a matter of law, an unlawful non-citizen.
For these reasons, the applicant’s application for habeas corpus is dismissed.
II. BACKGROUND TO THIS PROCEEDING
The applicant’s personal background was summarised above. That background will be further detailed in the course of these reasons. The purpose of Part II of these reasons is to provide a summary of the legal and procedural background to this decision.
Cancellation of applicant’s visa
On 7 October 2013, about four and a half years prior to the cancellation of the applicant’s absorbed person visa, the Department (then the Department of Immigration and Border Protection) wrote to the applicant to notify him that his visa would be considered for cancellation under s 501(2) of the Migration Act on character grounds, although the letter did not specify which class of visa was held by the applicant.
On 20 January 2014, the Department wrote to the applicant notifying him that a delegate of the Minister for Immigration and Border Protection had decided not to cancel his visa. However, the applicant was issued with a formal warning that the visa cancellation may be reconsidered if the applicant continued to commit further offences.
The applicant says that he did not receive the letters sent by the Department in 2013 and 2014. He says that he was “living rough” at the time and did not receive mail.
After the applicant’s last criminal convictions on 14 February 2018, representatives of the Department conducted enquiries into the status of the applicant’s citizenship. On 23 February 2018, a member of the Department’s Character Liability Assessment Team emailed that Department’s Citizenship Helpdesk regarding the applicant. That email presented the conflicting evidence regarding the applicant’s citizenship (in particular that the applicant was an Australian passport holder and that he held an Australian birth certificate).
On 26 February 2018, in response to that email, the Department’s Citizenship Helpdesk determined that the applicant was not an Australian citizen. In particular, the email response expressed that “it appears … that [the applicant] may have been issued with an Australian passport in error”. On the same date, the applicant’s Australian passport, which had been issued on 25 October 2017, was made void.
On 23 April 2018, the Department informed the applicant by letter that his visa had been cancelled pursuant to s 501(3A) of the Migration Act. The letter referred to the fact that the application had held an absorbed person visa since 1 September 1994 by operation of law.
By way of context, an absorbed person visa is a class of permanent visa that gives lawful status to a particular class of non-citizens who have been long-time residents in Australia, but do not hold a visa and would otherwise be unlawful non-citizens. Such a visa is taken to have been granted on 1 September 1994 to a non-citizen in the migration zone who: (i) was in Australia on 2 April 1984; (ii) had before that date ceased to be an immigrant; (iii) had not left Australia after that date; and (iv) was not a person to whom s 20 of the Migration Act applied immediately before 1 September 1994: s 34(2) of the Migration Act. The holder of an absorbed person visa may remain in, but must not re-enter, Australia: ibid, s 34(1). See, generally, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 and Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [36]-[38] per Kiefel, Bell, Keane and Edelman JJ.
On 24 April 2018, the day after the Department informed the applicant of his visa cancellation, the applicant requested the revocation of that decision under s 501(3A) of the Migration Act. It is unnecessary to detail the content of the applicant’s request for the purposes of this decision. However, it is apparent from subsequent correspondence, as detailed below, that the applicant contacted the Department and contested the assertion that he was not an Australian citizen.
On 30 April 2018, the Department wrote to the applicant to provide evidence that the applicant held an absorbed person visa. It is clear from the letter that, by this time, the Department had been provided with a copy of the applicant’s Queensland birth certificate, and was at least informed that the applicant held an Australian passport. The letter from the Department relevantly advised the following:
Evidence that you hold an Absorbed Person Visa is included with this letter.
In regards to your citizenship status I can confirm that you are not an Australian Citizen by descent.
Your birth certificate states you were born in Atiu Cook Islands, a New Zealand dependant territory until 1965 at which time it became a self-governed territory.
Your Queensland birth certificate sets out that the date of registration is 4 November 1976. Automatic acquisition via adoption did not come into effect until 22 November 1984, therefore, you did not automatically become an Australian citizen via adoption.
An Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.
Australian citizenship by descent is not automatic, you must make an application and you do not become an Australian citizenship by descent until such time as the application is approved. A search of historical records shows there is nothing to indicate that you ever applied for and acquired Australian citizenship either by conferral or descent.
Therefore your Absorbed Person visa remains cancelled. …
On 10 May 2018, the Department wrote again to the applicant in response to his enquiries about the cancellation of his visa. The letter expressed the following:
Dear Mr McHugh
I refer to you enquiries where you wish to seek clarification as to why you are not an Australian citizen.
You were born in the Cook Islands and claim you were adopted at around age five by relatives in Australia. At that time, there was no provision under Australian citizenship legislation, which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship.
On 22 November 1984, provisions were included in the Citizenship Act 1948 where by a child, who was present in Australia as a permanent resident, automatically became a citizen upon their adoption in Australia by an Australian citizen. These provisions were not retrospective, so only apply to adoptions that took place after that date.
As a person born outside Australia, the only manner you could have become an Australian citizen is by application either by conferral (as a permanent resident) or by descent (if you had an Australian citizen parent at the time of your birth).
The Department has undertaken a search of departmental records and cannot find a record that you have ever acquired Australian citizenship.
I note you were issued with a Queensland birth certificate and your adopted parents registered your birth on 4 November 1976. It is quite possible that you had been issued with an Australian passport in the past on the basis of this birth certificate.
The Australian Passport Office routinely issued Australian passports to person who were not Australian citizens in error. Therefore, the Australian passport issued to you on 25 October 2017 was done so in error.
This passport is no longer valid and should be returned to the Department of Foreign Affairs and Trade or your nearest Australian Embassy or High Commission. International border authorities have been notified of the passport cancellation.
I trust this information assists clarify why you are not an Australian citizen.
The applicant says he did not see this letter until about August 2018.

On 11 May 2018, the applicant, after being released from criminal custody, was detained in immigration detention.
In June and July 2018, the applicant sought legal advice, and provided his lawyer with a copy of his Australian passport. The lawyer informed the applicant of the Department’s position that the applicant’s passport had been issued in error.
On 7 August 2018, the applicant emailed Mr Colin Rowell (Mr Rowell), Assistant Director of the Citizenship Operations Section at the Department. The applicant expressed the following:
I have received confirmation that my Australian passport has been cancelled due to something incorrect about my birth certificate, can you please confirm in detail the reason for this cancellation of my Australian passport, i look forward to hearing from you.
On 10 August 2018, Mr Rowell replied as follows:
The issue to a person of an Australian birth certificate or Australian passport does not make that person an Australian citizen. A person is only an Australian citizen if they meet the requirements for Australian citizenship under the Australian Citizenship Act 2007.
[Mr Rowell then referred back to the key aspects in the Department’s letter dated 10 May 2018, as extracted above at [34].]
As you are not an Australian citizen, you are not entitled to hold an Australian passport and consequently your Australian passport has been cancelled.
On 13 September 2018, further email correspondence ensued between the applicant and Mr Rowell. The applicant raised the registration of his birth in Queensland and contended that the has automatically acquired citizenship by adoption.
On 18 September 2018 and 20 September 2018 respectively, the Department wrote to the applicant to inform him of certain information that might be taken into account by the Minister in making his decision whether or not to revoke the cancellation of the applicant’s visa. That information included the applicant’s National Criminal History Check.
On 17 October 2018, the applicant emailed the Department to respond to the information raised by the Department. The email largely addressed the past offences committed by the applicant, and further detailed his history. The applicant also expressed the following:
I’m not sure if I should be asking for a visa I’ve never seen or signed or even been told about until now in my life as I am an Australian citizen as I do have an Australian passport and , I would like nccc [i.e. National Character Consideration Centre] to consider the seriousness and manner of the process against me as it would be disastifying evidence when my case is proven to be a citizen of Australia …
(Errors in original.)
Minister’s decision
On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant’s visa. As these reasons do not address the applicant’s application for judicial review of the Minister’s decision, it is unnecessary to consider the Minister’s statement of reasons (Minister’s Reasons) in detail.
The Minister’s Reasons did not include express reference to the applicant’s claims that he was an Australian citizen, or an Aboriginal Australian. However, it is clear that documentation of those claims were before the Minister. A submission from the Department to the Minister in advance of the Minister’s decision included the following passages:
Other Relevant Information
Citizenship status
57.      Mr MCHUGH submits that he is an Australian citizen due to his Queensland Birth Certificate and Australian passport, which states that his nationality is Australian …. In the Department’s responses to Mr MCHUGH’s Australian citizenship claims he has been informed that
·     .When Mr MCHUGH’s arrived in Australia (12 February 1975) there was no provision under the Australian citizenship legislation which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship. Mr MCHUGH did not automatically acquire citizenship and the Department has assessed he is not an Australian citizen.
·     An Australian passport is not evidence of a person’s citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.
·     The passport is no longer valid, has been cancelled and should be returned to the Department of Foreign Affairs and Trade or the nearest Australian Embassy or High Commission …
…
Sensitivities
63.      Mr MCHUGH, who was born in the Cook Islands, identifies as a member of the Aboriginal community, having lived in Australia since the age of seven and having grown up in and been accepted by the Darwin indigenous community. Furthermore he submits that he is an Australian citizen, on the basis of having an Australian birth certificate (as a result of having been adopted here) and an Australian passport. However his case has been assessed in detail by the Citizenship Helpdesk, which has advised that he is not an Australian citizen and his passport (which was issued prior to 2005, when changes were introduced which would now preclude such an issue) has been cancelled and should be returned.
Proceeding in this Court
On 2 October 2019, the applicant sought judicial review of the Minister’s decision. The applicant did not have legal assistance at the time.
On 12 December 2019, a case management hearing was held in the proceeding, at which the applicant appeared via video-link from the immigration detention centre at which he was then detained. The applicant informed me at the hearing that he was an Australian citizen and confirmed that he sought judicial review of the Minister’s decision. The matter was thereafter listed for hearing on 11 March 2020.
On 13 February 2020, Victoria Legal Aid (VLA) filed a notice on behalf of the applicant informing the Court that Mr Guy Coffey (Mr Coffey), a solicitor at VLA, had been appointed to represent the applicant in the proceeding.
On 28 February 2020, an affidavit of Mr Coffey was filed on the applicant’s behalf. The affidavit relevantly annexed a “Draft Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)”. A revised version of this document dated 11 March 2020, broadly in the same form as the original, was handed up at the start of the hearing on that date (applicant’s amended application). The Minister did not object, and leave was granted for the applicant to rely on the amended application.
The applicant’s amended application identified five grounds. The two grounds relevant to the application for habeas corpus are as follows:
Grounds of application for relief in the nature of the writ of habeas corpus
A.Edward McHugh is a citizen with the result that there was no power to grant, cancel, or revoke cancellation of any visa in his name, nor was or is he liable for detention under s 189 of the Migration Act 1958 (Cth).
B.Edward McHugh is not an alien for the purposes of the constitution and therefore cannot be detained as an ‘unlawful non-citizen’ under the Migration Act 1958 (Cth).
…
The applicant’s amended application sought various relief. The forms of relief relevant to the application for habeas corpus are as follows:
A.There be an extension of time for the filing of the originating application.
B.There be leave to amend the originating application in the present form.
C.Relief in the nature of a writ of habeas corpus issue.
D.Enjoin the Minister including by his officers or agents from treating the Applicant as a non-citizen.
E.If the Applicant is not detained at the date of judgment, a declaration that he is a citizen of Australia.
…
J.That the Respondent pay the Applicants costs.
As can be seen from the first form of relief sought, the applicant requires an extension of time to file his application. However, the Minister informed the Court in written submissions that he does not oppose the extension of time. I accordingly granted an order to that effect.
Section 78B notices
The respective Attorneys-General of the Commonwealth or a State are entitled to intervene in proceedings in this Court that relate to a matter arising under the Constitution or involving its interpretation: s 78A of the Judiciary Act 1903 (Cth) (Judiciary Act).
Section 78B of the Judiciary Act provides the mechanism by which the Attorneys-General are notified of proceedings that present this opportunity. That provision relevantly provides the following:
Notice to Attorneys-General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
…
(5)Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
On 2 March 2020, nine days before the hearing, a Notice of a Constitutional Matter was filed by the applicant under s 78B of the Judiciary Act (Applicant’s s 78B Notice). The constitutional issues addressed in that notice relate to a ground for judicial review of the Minister’s decision, and are unnecessary to detail for present purposes.
The next day, on 3 March 2020, eight days before the hearing, a separate Notice of a Constitutional Matter was filed by the Minister under s 78B of the Judiciary Act (Minister’s First s 78B Notice). That notice relevantly expressed the following:
In this matter, a question arises whether the Applicant is an Aboriginal Australian in the sense described in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [81] and in consequence (inter alia):
·is not an alien for the purposes of s 51(xix) of the Constitution; and
·cannot be detained under s 189 of the Migration Act 1958 (Cth) (the Act).
Once the filing of these notices had reached my attention, I listed a case management hearing in the proceeding on 6 March 2020 for the parties to address me on, amongst other issues, whether, in accordance with the terms of s 78B(1) of the Judiciary Act, a “reasonable time” would elapse between the giving of both the Applicant’s s 78B Notice and the Minister’s First s 78B Notice respectively and the hearing of the application. After hearing the parties at the case management hearing, I made a direction that each party, in respect of their own notice, contact the offices of the respective Attorneys-General prior to the hearing to confirm whether the Attorneys-General intended to intervene in the proceeding.
At the start of the first hearing day, on 11 March 2020, the parties provided an update as to the response of the Attorneys-General in relation to the Applicant’s s 78B Notice and the Minister’s First s 78B Notice respectively. In short, given the relative urgency of the applicant’s habeas corpus application, both the applicant and Minister agreed that, in respect of the Minister’s First s 78B Notice, a “reasonable time” had elapsed for the purposes of s 78B of the Judiciary Act. However, I agreed with the applicant’s submission (which was unopposed by the Minister) that a reasonable time had not yet elapsed in respect of the Applicant’s s 78B Notice.
On this basis, I agreed to hear the applicant’s application for habeas corpus (including the constitutional issues raised in the Minister’s First s 78B Notice) separate from, and prior to, the applicant’s application for judicial review of the Minister’s Decision (including the constitutional issues raised in the Applicant’s s 78 Notice). Apart from complying with s 78B(1) of the Judiciary Act, this sequence was logically sensible as, if the applicant succeeded in establishing that he was not an alien, and was therefore released for detention, his judicial review application would be rendered redundant.
For completeness, I also note that on 16 March 2020, four days after the hearing of the habeas corpus application was completed, the Minister filed a Further Notice of a Constitutional Matter (Minister’s Second s 78B Notice). The constitutional issues addressed in the Minister’s Second s 78 Notice relate to a ground for judicial review of the Minister’s decision, and are unnecessary to detail for present purposes.
Hearing of the application
The hearing of the applicant’s habeas corpus application took place on 11 and 12 March 2020. The applicant was represented by Mr Albert of counsel, and the Minister was represented by Mr Hill of counsel. I am grateful to both of them (and their instructing solicitors, VLA and the Australian Government Solicitor respectively) for their detailed written and oral submissions in relation to the complex issues raised in the present case.
The applicant was present in court during the hearing. At the pre-hearing case management hearing on 6 March 2020, I had, upon request by Mr Albert (and in the face of opposition from Mr Hill), directed that the Minister arrange for the applicant to be brought from the immigration detention centre to attend the hearing. My usual view is that this is unnecessary where a litigant in immigration detention has legal representation. However, my view was that the present case was of such a character that it warranted the attendance of the applicant in person so that he could view the hearing and also be in a position to provide instructions to his representatives.
The parties provided two sets of written submissions after the completion of the hearing. First, on 16 March 2020 (Minister) and 18 March 2020 (applicant), the parties filed supplementary written submissions in relation to a number of issues arising from the hearing, including the jurisdictional limitation in s 476A(1) of the Migration Act, and the entitlement of the Court to infer of the existence of a subjective suspicion of an officer for the purposes of s 189(1) of the Migration Act. Then, on 31 March 2020 (Minister) and 2 April 2020 (applicant), the parties filed further supplementary submissions in relation to the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (PDWL), which was delivered by Wigney J on 17 March 2020.
III. MINISTER’S BASIS FOR RESTRAINT
The Minister contends that the applicant’s initial, and continuing, custody in immigration detention in the present case is lawfully supported by s 189(1) of the Migration Act, which provides as follows:
Detention of unlawful non-citizens
(1)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.
…
This statutory provision should be read together with s 196 of the Migration Act, which relevantly provides as follows:
Duration of detention
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
…
The application of these statutory provisions is discussed further below. Before doing so, it is necessary to address a critical preliminary issue in relation to the scope of the Federal Court of Australia’s original jurisdiction in relation to administrative acts taken under the Migration Act.
IV. JURISDICTIONAL LIMITATION
The first duty of a court is to confirm that it has jurisdiction to hear and determine the issues raised by the parties: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 at 415 per Griffith CJ; Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 at 446 per Isaacs ACJ, with Gavan Duffy J agreeing; Re Nash (No 2) [2017] HCA 52; 263 CLR 443 at [16] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ; see also Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2^nd ed, The Federation Press, 2020) (Leeming’s Authority to Decide) pp 37–38.
Limited original jurisdiction of the Federal Court
Section 476A(1) of the Migration Act provides the following:
Limited jurisdiction of the Federal Court
(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a)the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(d)the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.
The practical effect of s 476A, with limited exceptions, is to exclude the matters that would otherwise be within the original jurisdiction of this Court in relation to “migration decisions” (in particular that jurisdiction conferred by s 39B of the Judiciary Act): see Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth), pp 12–13 and Mr Ruddock (Attorney-General), Migration Litigation Reform Bill 2005 Second Reading Speech, 10 March 2015, Australian Parliamentary Debates, House of Representatives, pp 2–3; Matete v Minister for Immigration and Citizenship [2009] FCA 187 at [11] per Stone J. Section 476A is therefore “an instance of indirect express amendment: whose effect is to alter the combined legal meaning of the general conferral of jurisdiction and the specific qualification of exclusion in the later law”: Leeming’s Authority to Decide at 142.

The reach of the jurisdictional limitation in s 476A(1) of the Migration Act is confined to applications for “public law remedies in the nature of judicial review” of migration decisions: DBE17 v Commonwealth [2019] HCA 47; 94 ALJR 41 (DBE17) at [15] per Nettle J; see also Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [9] per Rares, Perram and Wigney JJ. However, s 476A(1) does not oust this Court’s original jurisdiction to hear and determine proceedings that involve the ancillary or collateral consideration of “migration decisions”, such as claims in tort for false imprisonment, misfeasance in public office and negligence: DBE17 at [14], citing Okwume v Commonwealth of Australia [2016] FCA 1252 (Okwume (TJ)) at [28] per Charlesworth J; see also Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 (Fernando) per Siopis J.
As indicated above, the purported statutory authority relied upon by the Minister for the applicant’s current detention is s 189(1) of the Migration Act. As can be seen from the terms of s 476A(1), there is no express conferral of original jurisdiction upon this Court in relation to s 189(1). It was the Minister’s submission, therefore, that this Court does not have original jurisdiction to review any exercise of power under s 189(1). This submission rests on an exercise of power under s 189(1) being characterised as a “decision” (from which the definition of “migration decision” in s 476A(1) is derived: see the s 5(1) definition of “migration decision”, and the related definitions of “privative clause decision” and “purported privative clause decision”). The applicant conversely submits that an exercise of power under s 189(1), which is an act compelled by the Migration Act, is not properly characterised as a “decision”.
“Migration decision”
The fact that s 189(1) of the Migration Act imposes a “statutory command” on an officer to detain a person reasonably suspected of being an unlawful non-citizen (Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb) at [236] per Hayne J) does not preclude the act of detaining, or continuing to detain, that person under s 189(1) from being characterised as a “decision” for the purposes of the jurisdictional limitation in s 476A(1). This is clear from the statutory definitions underpinning s 476A(1).
A “migration decision”, as referred to in the chapeau to s 476A(1) of the Migration Act, is defined by s 5(1) of that Act as comprising, amongst other statutory concepts, a “privative clause decision”, which, in accordance with its own definition in s 5(1), has the meaning provided by s 474(2). That statutory provision, along with the related provision in s 474(3), provides as follows:
(2)       In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)       A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)       imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)       retaining, or refusing to deliver up, an article;
(g)       doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j)        a failure or refusal to make a decision.
Subsection (3) of s 474 of the Migration Act has the effect of expanding the ordinary meaning of a “decision”: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [65]–[66] and [68] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 (EFX17) at [37]–[40] per Greenwood J, [170] per Rares J and [216] per Logan J (dissenting, but not in relation to the question of the Federal Circuit Court of Australia’s jurisdiction). This effect is consistent with the legislative policy underpinning s 474: EFX17 at [59]–[61] per Greenwood J and [214] per Logan J.
The expanded definition of a “decision” notably includes, if the terms of ss 474(3)(a)–(f) are not satisfied, the “doing or refusing to do any other act or thing”: s 474(3)(g). Moreover, the definition of a “privative clause decision” under s 474(2) relevantly includes “a decision … required to be made” (emphasis added). Any action, or inaction, taken under the Migration Act needs to be viewed through this prism: see EFX17 at [216] per Logan J. The act of detaining, or continuing to detain, a person under s 189(1) is the doing of an act that the Migration Act requires the officer to do. Accordingly, based on the applicable statutory definitions, the act of detaining, or continuing to detain, a person under the Migration Act constitutes a “migration decision” for the purposes of the jurisdictional limitation in s 476A(1).
This view differs from that recently expressed by Wigney J in PDWL. In that case, his Honour, in response to an urgent application for relief in the nature of a writ of habeas corpus, ordered that the first respondent, a citizen of Afghanistan, be released forthwith from immigration detention. In the circumstances of that case, s 189(1) of the Migration Act provided no justification for the ongoing detention of the first respondent: PDWL at [87].
In relation to the question as to whether the detention of an unlawful non-citizen under the Migration Act constituted a “migration decision” for the purposes of s 476A of the Migration Act, Wigney J expressed the following in PDWL:
[61] The Minister sought to argue that the Court had no jurisdiction to entertain PDWL’s application by reason of s 476A of the Migration Act. …
[62]The Minister sought to characterise PDWL’s application for a writ in the nature of habeas corpus as an application “in relation to a migration decision”. That was said to be because some hypothetical officer somewhere in the Commonwealth must have made a decision to detain the first respondent under subs 189(1) of the Migration Act. …
[63] … [T]he Minister’s characterisation of PDWL’s application for habeas corpus as being a review of a hypothetical decision by the hypothetical officer to detain PDWL under subs 189(1) of the Migration Act has no merit and is rejected. The fact that PDWL has been detained does not mean that a decision was made, or must have been made, by an officer to detain him under subs 189(1) of the Migration Act. No decision under the Migration Act is required as a precondition to the power and duty to detain an unlawful non-citizen: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri(2003) 126 FCR 54; [2003] FCAFC 70 at [31]. …
(Emphasis added.)
Wigney J held that the first respondent’s application in that case—which his Honour characterised as one for relief against an officer of officers of the Commonwealth for lawful detention—fell within the Federal Court’s jurisdiction under the Judiciary Act: ibid at [64]. His Honour then concluded in respect of the jurisdictional issue as follows:
[77] The Minister’s contention that the Court does not have jurisdiction to entertain PDWL’s application has no merit and is rejected. That is so whether it be considered to be an application for a writ of habeas corpus, an action in the nature of habeas corpus, an action for injunctive relief against an officer of the Commonwealth, or an action in respect of a matter arising under the Migration Act. Either way, the Court has jurisdiction to entertain such an application under s 39B of the Judiciary Act and power to make an order releasing a person from detention under s 23 of the Federal Court Act. The Court’s jurisdiction to entertain such an action is not affected in any way by s 476A of the Migration Act because it is not an action in relation to a migration decision.
With the greatest of respect to Wigney J, some aspects of the reasoning in PDWL do not reflect the current position of the law. This follows from his Honour’s reliance (at [63] and [85] of PDWL) on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 (Al Masri) to support the conclusion that the detention of an unlawful non-citizen under Migration Act does not require a “decision”. In that case, the Full Court (constituted by Black CJ, Sundberg and Weinberg JJ) stated the following:
[30] The relationship between ss 189 and 196 was considered by this Full Court in another appeal: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at 275-277 [149]-[152]; 196 ALR 111 at 135-136 [149]-[152] (VFAD). We adopt what was said in that case and conclude that the sphere of operation of s 189 is complete once a person is detained in immigration detention and that thereafter continuing detention is provided for by s 196. We would not impute to the Parliament an intention such that if s 196 did not operate to render lawful the continued detention of an unlawful non-citizen, that consequence could be avoided by a succession of repeated actions to detain under s 189.
[31]The effect of ss 189 and 196 is that no decision under the Act is required as a precondition to the power and duty to detain an unlawful non-citizen. Detention depends upon the status of the person, and in that sense the detention regime is clearly administrative, mandatory, indefinite and, if the Solicitor-General’s submissions are accepted, possibly even permanent.
(Emphasis added.)
Some aspects of these passages in Al Masri, as published in 2003, do not accurately reflect the current position of the law. First, the remarks in Al Masri in relation to interrelationship between ss 189 and 196 of the Migration Act have been superseded by the High Court’s decision in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 (Ruddock v Taylor). That case involved consideration of the lawfulness of two periods of detention of the respondent; the first lasting 161 days and the second 155 days: ibid at [3]. The plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ expressed at [25] that “the lawfulness of the respondent’s detention turned upon whether there was statutory or other authority to detain him” and “[t]hat required consideration of s 189”. Implicit in this analysis is that s 189(1) empowers an officer not only to initially detain a relevant person, but also to continue to detain that person. This interpretation of Ruddock v Taylor, which I follow, was applied in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 at [34] per Crennan J and Guo v Commonwealth [2017] FCA 1355; 258 FCR 31 (Guo) per Jagot J (see in particular [69]–[70] and [83(3)]–[83(4)]); see also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 (Okwume (FC)) at [165] per Besanko J; although see, contra, Okwume (TJ) at [196] per Charlesworth J. In this regard, it is important, in my view, that the s 5(1) definition of “detain”, which is picked up by s 189(1), includes to “keep, or cause to be kept, in immigration detention” (emphasis added).
Second, and most importantly for immediate purposes, Al Masri was decided before the insertion of s 476A into the Migration Act in 2005 by the Migration Litigation Reform Act 2005 (Cth). There was accordingly no consideration in that case of the extended definition of a “decision” in s 474(3) that is applicable in the present case. Thus, in my view, Al Masri does not currently support the proposition that the act under the Migration Act of detaining, or continuing to detain, a person does not constitute a “migration decision” for the purposes of the jurisdictional limitation in s 476A(1).
In highlighting these deficiencies with the modern application of Al Masri, I am not expressing any criticism of Wigney J in PDWL. His Honour was delivering ex tempore reasons as duty judge in response to an urgent application involving the liberty of the respondent in that case. Moreover, importantly, it does not appear that counsel in that case brought his Honour’s attention to the extended definition of a “decision” in s 474(3) of the Migration Act, nor the dangers in relying on outdated remarks in Al Masri.
Application to the present case
For the reasons above, except where expressly permitted by s 476A(1)(a)-(d) of the Migration Act, this Court does not have original jurisdiction to directly review the validity of the “doing or refusing to do any … act or thing” under the Migration Act. Does the applicant’s application for habeas corpus engage this form of review?
There are accepted differences between a habeas corpus application at common law, which centre on the lawfulness of a physical restraint, and a judicial review application at common law, which centre on the jurisdictional validity of administrative action. In particular, although a habeas corpus application compels an enquiry into the lawfulness of administrative action at a particular point in time, they are not strictly a means of collaterally impeaching the jurisdictional validity of previous administrative decisions. This is apparently the basis upon which a series of recent Victorian decisions have expressed that “habeas corpus does not provide a remedy by way of judicial review”: PR v Department of Human Services [2007] VSC 338 at [6] per Osborn J, cited in Antunovic v Dawson [2010] VSC 377; 30 VR 355 at [126] (Antunovic) per Bell J and Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 at [540] per John Dixon J. (In relation to the distinction between a habeas corpus application and a judicial review application in the United Kingdom, see Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin); [2019] 4 WLR 95 at [45]–[67] per Singh LJ, with Dingemans J agreeing; but cf Wade HWR, “Habeas corpus and judicial review” (1997) 113 Law Quarterly Review 55.)
Notwithstanding any differences between these forms of application, for the purposes of the jurisdictional limitation in s 476A(1) of Migration Act, a habeas corpus application in the context of immigration detention under the Migration Act inherently engages the precise form of investigation that s 476A(1) (read with ss 474(2) and (3)) seeks to prohibit the Federal Court from undertaking in its original jurisdiction; namely (except where specifically permitted), the direct review into the lawfulness of administrative action taken pursuant to that Act. As expressed by Black CJ in Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 (Vardalis) at [71], “[h]abeas corpus is a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time”. This inherently compels the reviewing court to determine whether “liberty is lawfully restrained”: Ex parte Walsh; In re Yates [1925] HCA 53; 37 CLR 36 (Walsh) at 79 per Isaacs J. For this reason, my view is that the applicant’s application in the present case—for relief in the nature of habeas corpus—is, to paraphrase Rares, Perram and Wigney JJ in Tang and Nettle J in DBE17, an application for a public law remedy in the nature of direct judicial review of a migration decision.
As evident from decisions such as Fernando, Tang and DBE17, the phrase “in relation to” in s 476A of the Migration Act has not been interpreted with the full breadth that its ordinary meaning could potentially warrant. As explained in those decisions, this is due to the subject matter and legislative history underpinning Div 2 of Pt 8 (containing ss 474A–484) of the Migration Act. There is consequently a line drawn between proceedings of different character.
On one side of the line, the jurisdictional limitation in s 476A(1) does not apply to proceedings involving the ancillary or collateral attack on the lawfulness of a person’s detention under the Migration Act. As explained by McHugh J in Ousley v The Queen [1997] HCA 49; 192 CLR 69 (Ousley) at 98–99, “[a] collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision”. In the present statutory context, this has enabled litigants, in the Federal Court’s original jurisdiction, to collaterally challenge the lawfulness of their restraint in immigration detention through claims in tort for false imprisonment, misfeasance in public office or negligence.
On the other side of the line, however, the jurisdictional limitation in s 476A(1) applies to oust proceedings involving the direct attack on the lawfulness of a person’s detention under the Migration Act. This will clearly cover, for example, an application for judicial review of an administrative decision under the Migration Act to cancel a visa (that is not otherwise permitted under paragraphs 476A(1)(a)–(d)): Matete at [11]–[12]. In my view, an application for habeas corpus in the context of immigration detention under the Migration Act also falls on this side of the line. This is because, to apply McHugh J in Ousley, the primary object of such an application is to set aside the act of detention by, or on behalf of, the respondent to that application. Ultimately, it would be artificial not to describe such an application as one being in relation to a “migration decision” as defined.
The Federal Court of Australia is a creature of statute; and its creator, the Commonwealth Parliament, may giveth jurisdiction, and it may taketh jurisdiction away. For these reasons expressed above, s 476A(1) of the Migration Act removes this Court’s original jurisdiction to hear and determine the applicant’s application for habeas corpus.
Residual original jurisdiction
This, however, does not bring an end to the present case. To the extent that the jurisdictional limitation in s 476A(1) does not apply, this Court retains original jurisdiction in any matter arising under the Migration Act: s 39B(1A)(c) of the Judiciary Act. The Minister accepted in the present case that, even though this Court did not have original jurisdiction in relation to “migration decisions”, the Court nonetheless continued to possess the residual original jurisdiction to determine whether or not the applicant was a person to whom s 189(1) could validly apply. As explained in the written submissions filed on behalf of the Minister:
… s 476A only limits the jurisdiction of this Court in relation to decisions. Section 476A does not prevent this Court from determining, without challenging any actual decision made under s 189, the anterior legal question of whether the Applicant is a person to whom s 189 is capable of validly applying. That jurisdiction remains under s 39B of the Judiciary Act.
This restricted enquiry has fundamental implications for my consideration of the issues raised by the parties in their submissions. In particular, as the Court is confined to determining whether or not s 189(1) was capable of validly apply to the applicant, there is no need to consider the nature and operation of an application for habeas corpus. Additionally, as this Court does not have original jurisdiction to directly review the validity of the applicant’s detention, this Court cannot validly enquire into whether an officer currently holds a reasonable suspicion under s 189(1) in respect of the applicant.
Consideration of alternative analyses

Also in evidence was a photograph of the applicant’s passport displaying the applicant’s photograph and details (being part of annexure JMD-9 to Ms Duff’s affidavit). The details correctly match the applicant’s name, date of birth and the date of issue identified in the applicant’s affidavit: 25 October 2017.
The content of the applicant’s affidavit, and the documents annexed to the applicant’s affidavit, were not challenged by the Minister.
Presumption of regularity
The applicant relies on the “presumption of regularity” to support his argument that his enrolment on the Commonwealth electoral roll in 1986, and the issue of his Australian passport in 2017, demonstrate that the relevant decision-makers were satisfied, as at those points in time, that he was an Australian citizen.
The presumption of regularity is otherwise referred to by its Latin maxim, omnia praesumuntur rite esse acta, which broadly translates to “everything is presumed to be rightly and duly performed until the contrary is shown”: Kersley RH, Broom’s Legal Maxims (10^th ed, Sweet & Maxwell, 1939) p 642, quoted in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (NSW Aboriginal Land Council) at 164 per McHugh JA. The presumption is naturally rebuttable: Hardess v Beaumont [1953] VLR 315 at 320 per Dean J.
The concepts of the presumption of regularity and onus of proof are interrelated: Selby v Pennings (1998) 19 WAR 520 (Selby) at 532 per Ipp J. The presumption has a variety of applications (Morris v Kanssen [1946] AC 459 (Morris) at 475 per Lord Simonds, for the House of Lords), many of which are captured in Cross on Evidence at [1175]. The maxim is often applied to assist proof of the fact that a particular person of body (in either a private or public sphere) has been validly appointed: for example, see R v Brewer [1942] HCA 33; 66 CLR 535 (Brewer) at 548 per Latham CJ and McTiernan J and Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; 169 FCR 85 (Anti-Discrimination Tribunal (Tas)) at [51] per Goldberg J and [260]–[261] per Kenny J. In respect of the veracity of certain public records, the presumption has been codified in ss 155 and 155A of the Evidence Act.
There are two broad foundations for the presumption of regularity: see Best WM, The Principles of the Law of Evidence (9^th ed, Sweet & Maxwell, 1902) p 308, quoted in Selby at 528 per Ipp J. The first is public policy. This is reflected in the observation that “[t]he wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order”: Morris at 475. The Hon Dyson Heydon AC QC observes that “[m]uch trouble and expense is saved when the courts act on this assumption”: Cross on Evidence at [1175]. See also McGregor v Australian Mortgage, Land and Finance Co (1898) 15 WN (NSW) 128 at 129 per Darley CJ, with Owen and Walker JJ agreeing.
The second foundation is common experience. The tenability of the presumption relies on there being “previous experience of the connection between the known and inferred facts, of such a nature, that as soon as the existence of the one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject”: Starkie T, A Practical Treatise of the Law of Evidence (10^th American ed, T & JW Johnson & Co, 1876) p 741, quoted in McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 (McLean Bros) at 849 per Griffith CJ and GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; 72 NSWLR 647 (GPT) at [79] per Basten JA, with Bell JA and Young CJ in Eq agreeing. As such, in determining whether the presumption is rebutted, the ordinary course of human affairs carries some weight, which may vary depending on the circumstances: Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 (Hill) at [52] per Hodgson JA, with Ipp JA and Davies AJA.
The presumption of regularity has been considered or applied by Australian appellate courts on numerous occasions: for example, McLean Bros at 850 per Griffith CJ; Brewer at 548 per Latham CJ and McTiernan J; Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 at 47–48 per Moffitt JA, with Asprey JA and Taylor AJA agreeing; Watson v Lee [1979] HCA 53; 144 CLR 374 at 381–382 per Barwick CJ; NSW Aboriginal Land Council at 164 per McHugh JA and 169–170 per Clarke AJA; Selby at 528–529 per Ipp J; Cassell v The Queen [2000] HCA 8; 201 CLR 189 (Cassell) at [17] per Gleeson CJ, Gaudron, McHugh and Gummow JJ and [63]–[69] per Kirby J (dissenting); Guiseppe at [45] per Gyles and Edmonds JJ; Hill at [51]–[52]; Minister for Home Affairs v Tervonen [2008] FCAFC 24; 166 FCR 91 at [69] per Jacobson, Bennett and Buchanan JJ; Anti-Discrimination Tribunal (Tas) at [51] per Goldberg J and [260]–[261] per Kenny J; GPT at [80]; Dixon v Lekich [2010] QCA 213; 56 MVR 70 at [20] and [24] per Fraser JA, with McMurdo P and White JA agreeing; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; 188 LGERA 26 at [114]–[118] per McColl JA, with Macfarlan and Whealy JJA agreeing; Bhalsod v Perrie [2018] WASCA 108; 84 MVR 469 at [107]–[112] per Buss P, with Mazza and Beech JJA agreeing.
In NSW Aboriginal Land Council at 164, McHugh JA wrote that “[t]he natural home of the maxim is public law”. His Honour then defined the application of the maxim in that context as follows:
Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.
(Ibid. See also Cassell at [63] per Kirby J.)
This reflects the same principle expressed in greater breadth by Brewer J in delivering the opinion of the Supreme Court of the United States in Knox County v Ninth National Bank, 147 US 91 at 97 (1893) (as quoted by Griffiths CJ in Mclean Bros at 850):
It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.
The applicant highlights that the inference of regularity is “stronger in the case of a Minister of state”: Guiseppe at [45]. Upon this premise, the applicant argues that the Minister bears a heavy burden in the present case of proving that the applicant is not an Australian citizen. However, with respect, this submission misunderstands the proper operation of the presumption of regularity.
Consideration
Contrary to the applicant’s submission, the presumption of regularity does not operate in the present case to facilitate proof that the applicant is, as a matter of law, an Australian citizen. The effect of the maxim omnia praesumuntur rite esse acta does not extend that far.
The presumption of regularity is an evidential presumption. It is a judicial tool founded on common experience and pragmatic concerns to facilitate the proof of certain facts in appropriate circumstances. Where applicable in respect of a particular fact, a presumption will arise that the fact has occurred in the past, and it is up to the party against whom the presumption operates to present evidence to the contrary.
The true ambit of the presumption is evident from the passage of McHugh JA in NSW Aboriginal Land Council extracted above at [335]. That passage does not state that the purported exercise of power or the doing of an act by the public official or authority is presumed, as matter of law, to be valid. What the passage expresses is that a presumption arises that, as a matter of fact, all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.
The presumption of regularity does not facilitate proof of the lawfulness of an act that is, in reality, patently unlawful. This limitation was referred to by Lord Simonds, on behalf of the House of Lords, in Morris at 475 in the context of private law:
One of the fundamental maxims of the law is the maxim “omnia praesumuntur rite esse acta.” It has many applications. In the law of agency it is illustrated by the doctrine of ostensible authority. In the law relating to corporations its application is very similar. The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order. But the maxim has its proper limits. An ostensible agent cannot bind his principal to that which the principal cannot lawfully do. The directors or acting directors or other officers of a company cannot bind it to a transaction which is ultra vires. …
(Emphasis added.)
The application of this limitation in public law is illustrated by the decision of Southwell J in United Transport Services Pty Ltd v Evans [1992] 1 VR 240 (United Transport Services). The defendant in that case was charged with various offences in relation to a fire at a chemical factory. At the hearing, the defendant challenged the validity of the appointment of the informant as an inspector. Various documents were provided to support the authority of the informant to bring the proceedings. This included two pages from the Victorian Government Gazette that included a section entitled “Appointment of Inspectors under the Occupational Health and Safety Act 1985” that named the relevant informant, and was expressed to be authorised by the then Victorian Minister for Employment and Industrial Affairs (Victorian Minister): ibid at 244–245.
The parties agreed that the Victorian Governor, on the advice of the Executive Council, had the power to make the appointment in question: ibid at 246. However, there was no express statutory power for the Victorian Minister to do so. Indeed, the relevant legislation governing the offences was silent as to the manner of appointment, or the identity of the appointor: ibid at 245. Being unable to point to any authority or fact to explain the Victorian Minister’s authorisation of the appointment in the Gazette, the informant relied on the presumption of regularity.
It is convenient to set out Southwell J’s consideration of the presumption of regularity (at 247–248) in full:
As to the applicability of the presumption of regularity, a convenient starting point is the judgment of Dean J in Hardess v Beaumont [1953] VLR 315. There his Honour dealt with the question whether there had been proof of the due appointment of an analyst whose certificate had been tendered in a case concerning the sale of allegedly contaminated meat. His Honour there held, following R v Whitaker [1914] 3 KB 1283, that there was prima facie evidence of the due appointment of the analyst, since she was discharging a duty in which the public had an interest, and she was paid out of public funds. At 318, his Honour observed that “the matter must be determined in the absence of any special provision of the statute and in accordance with the general law of evidence”. In my opinion, that statement is here apt.
The learned judge went on to refer to a number of authorities, at 318-19, relating to the presumption that a person acting in a public office is presumed to be duly appointed, unless the contrary is shown. His Honour held that the analyst was a public officer (and in my opinion no legitimate distinction can be drawn in this regard between the analyst and the inspector).
It is not, I think, necessary to refer in detail to the reasons which led his Honour to hold that there was sufficient evidence that the analyst was “duly appointed as an analyst by the (Health) Commission". But there, s. 242(3) of the Health Act 1928 empowered the commission to "approve in writing as analysts persons possessing competent skill and experience...”.
However, there was no direct evidence that the commission had approved the analyst. The question [in Hardess v Beaumont] was whether the presumption applied so as to render direct proof unnecessary. It was not a case where, as here, a question arose as to the power to appoint. The question was whether there was proof that the proven power had been duly exercised.
It must steadily be borne in mind that the court is here dealing with an evidentiary issue, and the applicability of what is no more than a rebuttable presumption. As Dean J said, [1953] VLR, at 320, “It is always open to a defendant to rebut the presumption”. In that case, the defendant could have rebutted the presumption by calling the grantor or the grantee of the approval, in order to prove that the analyst had not been duly approved by the commission. The statute clearly identifies the commission as having the power to grant approval.
In the present case, how does the defendant go about rebutting the presumption? It does not know who purported to appoint the inspector, other than knowledge derived by the inference I have drawn that the minister probably purported to make the appointment. And so the defendant calls the minister to prove that he purported so to act. That would advance neither cause. That evidence would throw no light on the question whether the minister was lawfully empowered to appoint.
As it seems to me, the presumption may be applied so as to fill gaps in proof of the steps necessary to be proved in order to prove due appointment. But it is impermissible to apply it so as to bestow a power where the statute omits to do so.
In my opinion, the presumption of regularity cannot be relied upon in proof of the due appointment of the informant.
(Emphasis added.)
Returning to the present case, the applicant was enrolled to vote under s 93(1) of the Commonwealth Enrolment Act (extracted above at [274]), and was issued an Australian passport under s 7(1) of the Passports Act (extracted above at [277]). In accordance with the terms of those respective statutory provisions, both entitlements were only available to Australian citizens (putting aside the alternative under s 93(1)(b)(ii) of the Commonwealth Enrolment Act, which is inapplicable in the present case). In addition, the applicant was only entitled to be issued a passport where the Minister was satisfied that the applicant was an Australian citizen: s 8(a) of the Passports Act.
The applicant now presents his Australian passport, and the evidence of his enrolment, as substantiation of his Australian citizenship. The maxim omnia praesumuntur rite esse acta 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. However, that is not how the applicant seeks to apply the presumption of regularity in the present case. The applicant attempts to raise a presumption from the underlying evidence that the applicant is, as a matter of law, an Australian citizen. That attempt must be rejected. As explained above, citizenship is a statutory concept. It is an entitlement conferred only by statute. It cannot be conferred by mere administrative action, mistaken or otherwise.
The proposition that the issue of a passport does not, of itself, amount to a grant of citizenship is supported by the judgment of Burchett J in the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 (Petrovski). The facts of that case bear some resemblance to those in the present case. The opening words of Burchett J’s judgment described Petrovski as “an appeal in a case brought primarily to test the effect of the issue, by some extraordinary oversight, of an Australian passport to a Serbian citizen [Mr Petrovski], who, for his part, had applied for it honestly and without any attempt to conceal the facts”. Mr Petrovski had applied to sponsor his wife and her child for permanent resident status. He was then told for the first time that he was not, and never had been, an Australian citizen.
Each judge on the Full Court (constituted by Burchett, O’Louglin and Tamberlin JJ) wrote separate judgments. Key for present purposes is the clear statements by Burchett J (at 307 and 308) that the issue of a passport does not amount to a grant of citizenship. As expressed by his Honour, “a person who is not a citizen makes an application under the Australian Citizenship Act for a grant of citizenship, he [or she] must, of course, comply with the requirements of that Act”. See also VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [54] per Weinberg J. In my opinion, the same necessity to comply with statutory requirements also applies in relation to the applicant’s enrolment to vote.
In the present case, the applicant was, as a matter of fact, enrolled to vote and issued an Australian passport. But he was never, as a matter of law, a citizen of Australia. When we, in the style of an archaeologist, dig back into the history of the relevant legislation and the applicant’s circumstances, we cannot uncover a point in time at which the applicant satisfied the statutory criteria for Australian citizenship. The applicant was conferred New Zealand citizenship upon birth. Upon arrival in Australia, the applicant was considered a “British subject”, but not an Australian citizen, under the 1948 Citizenship Act. He was not “a person born in Australia”, and therefore was not entitled to citizenship by birth. There is no evidence of the registration of his birth for the purposes of obtaining citizenship by descent. He was adopted prior to the amendments in the 1984 Amending Act which introduced automatic citizenship by adoption. And there is no evidence of him otherwise applying for citizenship.
To conclude, the manner in which I have analysed the presumption of regularity is on the basis that the applicant’s submissions misunderstand the appropriate scope and effect of that presumption. This, in my view, is the correct manner of characterising the issues in question. However, if I’m wrong, and the presumption is operative, the same outcome is still reached. Even if the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his passport, create a presumption that the applicant is an Australian citizen, that presumption is rebutted by identifying the relevant statutory criteria for citizenship and then concluding, in accordance with the analysis above, that the applicant never satisfied that criteria.
Conclusion on citizenship
Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant
As explained above at [237]–[240], the applicant, on the primary analysis in the present case, bears the onus of proving each of the elements necessary to establish that he is a not a person to whom s 189(1) of the Migration Act is capable of applying. Given that the applicant was unsuccessful in proving that he was an Aboriginal Australian under the relevant test (see above at [242]), he was alternatively required to prove that he satisfied the statutory criteria for Australian citizenship. For the reasons expressed above, he has failed to do so.
Alternative analysis: Direct challenge to lawfulness of applicant’s detention
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.
VIII. CONCLUSION

Part VIII of these reasons details my conclusion to both the primary analysis and the alternative analysis in the present case.
Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant
As explained above at [88], this Court has original jurisdiction to determine whether or not the applicant is a person to whom s 189(1) of the Migration Act is capable of validly applying. The answer to that question can be briefly stated.
The applicant has failed to establish that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2) at 70 per Brennan J (see above at [242]). He has also failed to establish that he is an Australian citizen (see above at [351]). No other basis is advanced by the applicant to negate that he is an “alien” within the meaning of s 51(xix) of the Constitution. Accordingly, the applicant is a person to whom s 189(1) of the Migration Act is capable of validly applying.
Alternative analysis: Direct challenge to lawfulness of applicant’s detention
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) requires an additional phase of analysis.
Reasonableness of officer’s suspicion
As discussed above, there is, as at or around the date of this decision, an officer who subjectively suspects that the applicant is an unlawful non-citizen: see above at [188]. For the applicant’ detention to be lawfully supported by s 189(1) of the Migration Act, the suspicion must also be reasonable. The reasonableness of that state of mind is a matter for the Court to determine: George v Rockett at 112; Prior v Mole at [27] per Gageler J.
The objective circumstances by reference to which the officer now subjectively forms that suspicion have been discussed throughout in these reasons. They are primarily sourced from the admissible annexures to Ms Duff’s affidavit, including the May 2018 Detention Note, the May 2018 Detention Review, the Monthly Case Reviews and Ms Hatfull’s September 2018 Email. However, the information recorded in those documents is supplemented by knowledge of the context of the present application.
The relevant objective circumstances include the following:
(a)the applicant was born in the Cook Islands in 1968;
(b)the applicant arrived in Australia in 1975, when he was seven years old;
(c)the applicant was adopted in November 1976 at the age of eight by an Australian citizen father and a permanent resident mother (who later became an Australian citizen in 1997);
(d)there is no record that the applicant has ever applied for Australian citizenship;
(e)the applicant’s absorbed person visa was cancelled in April 2018 and the Minister decided not to revoke that cancellation in August 2019; and
(f)although the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community (in which the applicant resided from about 1990 to 2001), there is no evidence that tends to prove that the applicant is a biological descendent of the Aboriginal people.
In my view, these circumstances provide a sufficient foundation for a reasonable person in the position of the officer to suspect that the applicant is an unlawful non-citizen. As an elementary matter, it should be recalled that the suspicion of the existence of a fact does not require prima facie proof of that fact. “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking”: Hussein v Chong Fook Kam [1970] AC 942 per Lord Devlin, for the Privy Council, quoted in George v Rockett at 115; see also Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 (Goldie) at [4] per Gray and Lee JJ. In any event, my view, having undertaken an analysis in Parts VI and VII of these reasons of the applicant’s circumstances and the relevant legislation, is that the suspicion that the applicant is an unlawful non-citizen is reasonable.
The criticisms raised by the applicant regarding the content and quality of the reasoning expressed in the May 2018 Detention Note, the May 2018 Detention Review and the Monthly Case Reviews do not preclude this conclusion. First, although the fact that the “Client Details” section in each of these documents recorded the applicant’s citizenship as including Australia (in addition to Cook Islands and New Zealand) is odd, and is on its face inconsistent with the officers holding a suspicion that the applicant was an unlawful non-citizen, there is likely a simple explanation for this. The reference to “Australia” may, for instance, simply reflect that, as the applicant was once issued an Australian passport, the Department’s internal computer system recorded the applicant as an Australian citizen, and the “Client Details” attached to the applicant’s electronic file were not corrected upon cancellation of the applicant’s passport in February 2018. Regardless, these documents have to read as a whole. It is clear from the inherent nature of the documents, and the opinions recorded therein, that the applicant was suspected not to be an Australian citizen.
Second, the statement in the September 2018 Case Review that the applicant “has made no claims of being an Australian citizen or permanent resident” (see above at [166]) should not be read, as the applicant proposed, as expressing the (obviously incorrect) view that the applicant has made no assertion that he is an Australian citizen. “[N]o claims” is instead appropriately interpreted as the absence of any formal applications for citizenship. It is clear from the next paragraph of the September 2018 Case Review that Ms Hatfull, the author of that document, recognised that the applicant was continuing to assert his status as an Australian citizen.
Third, and finally, the applicant’s attacks on the extent and quality of reasoning in these documents are, at a more basal level, not to the point. In the applicant’s submission, the documents displayed “a breath-taking lack of engagement with the factual basis upon which [the applicant] is being deprived of his liberty”, did not “show any inquiry, let alone a reasonable inquiry, into some obvious reasons to conclude [the applicant] is not a non-citizen”, and did not “show any intellectual engagement with the conflicting facts that one officer gave [the applicant] a passport in 2017 on the basis that he was a citizen and a different person in 2018 formed the view that he should not have been given that passport”.
Admittedly, there is one clear example of reasoning expressed in these documents being based upon a false factual premise. The apparent source of this error (according to the admissible evidence) is the internal advice from the Department’s Citizenship Helpdesk on 26 February 2018, which found that the applicant was not an Australian citizen (see above at [29]). That advice included the following:
In regard to [the applicant] being an Australian passport holder, an Australian passport is not evidence of a person’s citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only. The issuing of the passport in this case, was most likely on presentation of the Australian birth certificate and the fact that prior to 2005 appropriate checks were not made as to whether the applicant was an Australian citizen.
This advice is based on the false premise that the applicant applied for, and obtained, his Australian passport prior to the commencement of the Passports Act in 2005. In fact, the applicant obtained his passport in 2017. This erroneous factual premise was used in the Citizen Helpdesk’s advice to explain away why the applicant, although a non-citizen, had been issued an Australian passport.
The erroneous factual premise, and the consequent reasoning, is replicated in subsequent documents authored by the Department. This includes the Department’s letter to the applicant on 30 April 2018 (see above at [33]) and the May 2018 Detention Review (see above at [162]). It also includes paras 57 and 63 of the Department’s submissions to the Minister in advance of the Minister’s decision (see above at [43]), however there was no reference to this fact in the Minister’s Reasons.
Notwithstanding this fallacy, caution is necessary in responding to the applicant’s submission in this respect, which is aimed at undermining the reasonableness of the requisite suspicion formed under s 189(1) of the Migration Act. The criticisms raised by the applicant invoke considerations akin to claims of legal unreasonableness in judicial review applications. However, in the present context, the reasonableness of the officer’s suspicion is determined by the Court. The enquiry into the reasonableness of the suspicion therefore differs from that natural to judicial review, where the merits (or subjective appropriateness) of the decision is solely within the province of the administrative decision-maker. Consequently, the internal records of the Department are not to be parsed as if they were formal published reasons for an administrative decision.
Moreover, I reject any suggestion that the relevant suspicion is unreasonable because a failure to conduct proper enquiries in relation to the conflicting facts regarding the applicant’s citizenship (in particular, the question as to why he was issued an Australian passport in October 2017). The present case is not akin to Goldie, where the relevant officer formed a suspicion based on incomplete and outdated information: ibid at [17] and [19] per Gray and Lee JJ. The suspicion held in the present case is evidently inconsistent with the issue of the applicant’s passport, but it is one based on a more recent (and, I suspect, more detailed) assessment of the applicant’s citizenship status.
Ultimately, the applicant’s criticisms of the extent and quality of reasoning expressed by the officers do not aid the applicant’s argument that the terms of s 189(1) of the Migration Act are not satisfied. For the reasons expressed above, my view, for the purposes of the alternative analysis in the present case, is that the requisite suspicion held by an officer as at or around the date of this decision—that the applicant is an unlawful non-citizen—is reasonable.
Habeas corpus revisited
The primary remedy sought in the applicant’s amending application for present purposes is “[r]elief in the nature of a writ of habeas corpus”. As explained above at [103], an application for such relief involves a series of shifting onuses between applicant and respondent. Having considered all of the issues raised by the parties relevant to the alternative analysis, the application of those onuses in the present case is as follows.
First, the applicant bore the onus of proving that he or she is actually restrained. That is clearly satisfied in the present case.
Second, the Minister next bore the onus of presenting a prima facie justification for restraining the applicant. In the present case, the invocation of the statutory authority under s 189(1) of the Migration Act, in conjunction with the surrounding facts, is sufficient to provide prima facie lawful authority for the applicant’s detention: see above at [120]–[121].
Third, the applicant next bore an initial evidential onus to raise a prima facie question as to the lawfulness of his restraint. In the present case, the applicant, in respect of his claims to be unlawfully detained on the basis of his Aboriginality, failed to satisfy this onus: see above at [245]. There was therefore no requirement for the Minister to justify the applicant’s detention in respect of that particular alleged basis of unlawfulness. However, in respect of the applicant’s claims to be unlawfully detained on the basis of his Australian citizenship, the applicant satisfied this initial onus by presenting evidence of his past enrolment on the Commonwealth electoral roll in 1986 and the issue of his Australian passport in 2017: see above at [352].
Fourth, and finally, the Minister bore the ultimate legal onus of proving the lawfulness of the applicant’s restraint under s 189(1) of the Migration Act. I am satisfied that, as at or around the date of this decision, there is an officer who subjectively suspects that the applicant is an unlawful non-citizen: see above at [188]. In my view, that suspicion is reasonable: see above at [360] and [369]. The terms of s 189(1) are accordingly satisfied as at the time of this decision. Thus, the applicant’s detention is lawful. Therefore, for the purposes of the alternative analysis, the Minister has satisfied his ultimate legal onus in the present case.
IX. ORDERS
Costs
Given the applicant’s application for judicial review of the Minister’s decision remains to be determined in this proceeding, I reserve the question as to the costs of the applicant’s habeas corpus application for future consideration.
Pronouncement
For the reasons expressed above, I make the following orders:
1.The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Leave is granted for the applicant to rely on the “Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)” dated 11 March 2020 (Amended Application).
3. There be an extension of time for the filing of the Amended Application.
4.The applicant’s application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed.
5.The costs of the habeas corpus application be reserved.
The Minister did not seek any further relief should he succeed in this decision. In any event, it should be clear from these reasons that the applicant is an “alien” to Australia for the purposes of s 51(xix) of the Constitution.

I certify that the preceding three hundred and seventy-seven (377) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.
Associate:
Dated: 7 April 2020

File number:	VID 1121 of 2019
Judge:	ANDERSON J
Date of judgment:	7 April 2020
Catchwords:	MIGRATION – applicant in immigration detention – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) decided not to revoke cancellation of applicant’s absorbed person visa – applicant born in Cook Islands – applicant claims he is an Aboriginal Australian – applicant claims he is an Australian citizen – application for relief in the nature of a writ of habeas corpus – whether applicant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (*Migration Act) – meaning of “an officer” – inference of officer’s suspicion – presumption of continuance – reasonableness of suspicion HIGH COURT AND FEDERAL COURT* – original jurisdiction of Federal Court of Australia – s 476A(1) of the Migration Act – whether exercise of power under s 189(1) of the Migration Act is a “decision” – original jurisdiction to review administrative action under s 189(1) – residual original jurisdiction to determine whether s 189(1) is capable of validly applying to the applicant CONSTITUTIONAL LAW – powers of Commonwealth Parliament – power to make laws with respect to naturalisation and aliens – Love v Commonwealth of Australia [2020] HCA 3 – applicant self-identifies as Aboriginal – applicant recognised by elder as member of Aboriginal community – no evidence of biological descent – mode of proving biological descent – whether applicant satisfies tripartite test for Aboriginality in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 CITIZENSHIP – applicant born in Cook Islands – applicant arrived in Australia at age 7 – applicant adopted in Queensland at age 8 – applicant’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” – applicant enrolled on Commonwealth electoral roll in 1986 – applicant voted in 1987 Australian federal election – applicant issued an Australian passport in 2017 – presumption of regularity – whether the applicant is an Australian citizen STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – ordinary meaning of “birth” – reading of Act as a whole – reading statutory provision in harmony with other provisions PRIVATE INTERNATIONAL LAW – domicile of origin – concept at common law – whether concept equates to place of birth – statutory modification to concept FAMILY LAW AND CHILD WELFARE – adoption – policy underpinning adoption order – effect of adoption order – whether adoption order deems adopted child to have same citizenship status as adoptive parents STATUTES – Commonwealth Electoral Act 1918 (Cth) – persons entitled to enrolment on Commonwealth electoral roll and to vote – Australian Passports Act 2005 (Cth) – entitlement to be issued an Australian passport ADMINISTRATIVE LAW – habeas corpus – jurisdiction of Federal Court of Australia – history, nature and effect of remedy – proper respondent – onuses of proof – whether Minister presented prima facie justification for restraint – whether applicant satisfied initial evidential onus in relation to claim of Aboriginality – whether Minister proved lawfulness of applicant’s detention 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, this proceeding PRACTICE AND PROCEDURE – Notices of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) – whether “reasonable time” elapsed since giving of notices for consideration by Attorneys-General Held: Federal Court of Australia does not have original jurisdiction to directly review lawfulness of applicant’s detention – however, applicant is a person to whom s 189(1) of the Migration Act may validly apply – applicant is not an Australian citizen – applicant failed to prove that he is Aboriginal Australian under tripartite test in Mabo (No 2) – applicant is an alien for the purposes of s 51(xix) of the Constitution
Legislation:	Constitution ss 51(xix), 51(xxvi) Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4(1) Australian Citizenship Act 1948 (Cth) (repealed) Pt II, ss 3(a), 5(1), 5A, 7(1), 7(2), 10, 10(1), 10A, 10B, 10C, 11, 11(1), 12, 13, 14, 15 Australian Citizenship Act 2007 (Cth) Div 1 of Pt 2, ss 4, 4(1)(b), 4(2), 12, 13, 21 Australian Citizenship Amendment Act 1984 (Cth) ss 2(1), 5, 7, 39(3) Australian Citizenship Amendment Act 1991 (Cth) (repealed) Australian Passports Act 2005 (Cth) ss 3, 7, 8, 8(a), 42, 43 Commonwealth Electoral Act 1918 (Cth) ss 93, 93(1)(b)(ii) Evidence Act 1995 (Cth) ss 59, 69, 69(2), s 69(3), 155, 155A Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c), 78A, 78B, 78B(1) Migration Act 1958 (Cth) ss 5(1), 34(2), 116(1)(d), 189, 189(1), 189(3), 196, 474, 474(2), 474(3), 474(3)(a)–(f), 474(3)(g), 476A, 476A(1), 476A(1)(a)-(d), 501(2), 501(3A), 501CA(4) Migration Litigation Reform Act 2005 (Cth) Nationality and Citizenship Act 1948 (Cth) Adoption of Children Act 1964 (Qld) (repealed) ss 7, 7(1), 28, 31, 31(2), 55 British Nationality and New Zealand Citizenship Act 1948 (NZ) (repealed) s 6
Cases cited:	Ainslie v Ainslie [1927] HCA 23; 39 CLR 381 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 Antunovic v Dawson [2010] VSC 377; 30 VR 355 Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 Attorney-General (Cth) v Queensland (1990) 25 FCR 125 Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305; 350 ALR 494 Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) [2003] FCA 1525; 137 FCR 317 Bae v The Queen [2020] SASCFC 7 Barnardo v Ford [1892] AC 236 BC v The Public Advocate & Ors [2018] SASC 193 Bhalsod v Perrie [2018] WASCA 108; 84 MVR 469 Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Cassell v The Queen [2000] HCA 8; 201 CLR 189 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Cody v J H Nelson Pty Ltd [1947] HCA 17; 74 CLR 629 Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; 169 FCR 85 Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237; 262 FCR 449 Currie v Dempsey [1967] 2 NSWR 532; (1967) 69 SR (NSW) 116 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; 188 LGERA 26 DBE17 v Commonwealth [2019] HCA 47; 94 ALJR 41 De Alwis v The State of Western Australia [2014] WASC 161 Dickinson v Minister of Pensions [1953] 1 QB 228 Dien v Manager of the Immigrant Detention Centre at Port Headland (1993) 115 FLR 416 Dillon v R [1982] AC 484 Dixon v Lekich [2010] QCA 213; 56 MVR 70 Eatock v Bolt [2011] FCA 1103; 197 FCR 261 EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 Ex parte Walsh; In re Yates [1925] HCA 53; 37 CLR 36 Ex parte Williams [1934] HCA 48; 51 CLR 545 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 Fremlin v Fremlin [1913] HCA 25; 16 CLR 212 Gargan v DPP [2004] NSWSC 10; 144 A Crim R 296 George v Rockett [1990] HCA 26; 170 CLR 104 Gibbs v Capewell (1995) 54 FCR 503 Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 Gore v Australian Securities and Investments Commission [2017] FCAFC 13; 249 FCR 167 GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; 72 NSWLR 647 Greene v Secretary of State for Home Affairs [1942] AC 284 Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; 160 FCR 465 Guo v Commonwealth [2017] FCA 1355; 258 FCR 31 Hardess v Beaumont [1953] VLR 315 Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 Hicks v Ruddock [2007] FCA 299; 156 FCR 574 Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCAFC 48 Hussein v Chong Fook Kam [1970] AC 942 In the Marriage of Ferrier-Watson and McElrath [2000] FamCA 219; 26 Fam LR 169 In the Matter of Marianne Watson (No 2) [2001] TASSC 105 Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin); [2019] 4 WLR 95 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 Knox County v Ninth National Bank, 147 US 91 (1893) Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 Liversidge v Anderson [1942] AC 206 Lloyd v Wallach [1915] HCA 60; 20 CLR 299 Love v Commonwealth of Australia [2020] HCA 3 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Mason v Tritton (1994) 34 NSWLR 572 Matete v Minister for Immigration and Citizenship [2009] FCA 187 McGregor v Australian Mortgage, Land and Finance Co (1898) 15 WN (NSW) 128 McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 Metropolitan Gas Go v Federated Gas Employers’ Industrial Union [1925] HCA 5; 35 CLR 449 Minister for Home Affairs v Tervonen [2008] FCAFC 24; 166 FCR 91 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 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 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Morris v Kanssen [1946] AC 459 Muramats v Commonwealth Electoral Officer (WA) [1923] HCA 41; 32 CLR 500 Murray v Director General, Health & Community Services Victoria (unreported, Eames J, 23 June 1995) Okwume v Commonwealth of Australia [2016] FCA 1252 Ousley v The Queen [1997] HCA 49; 192 CLR 69 Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 Patmore v Independent Indigenous Advisory Committee [2002] FCAFC 316; 122 FCR 559 Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 Plaintiff M47/2018 v Minister for Home Affairs & Anor [2019] HCATrans 9 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 93 ALJR 732; 367 ALR 711 PR v Department of Human Services [2007] VSC 338 Prior v Mole [2017] HCA 10; 261 CLR 265 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Brewer [1942] HCA 33; 66 CLR 535 R v Davey; Ex parte Freer [1936] HCA 58; 56 CLR 381 R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; 3 CLR 93 R v Noonan [2002] NSWCCA 46; 127 A Crim R 599 Radlich v Bank of New Zealand (1993) 45 FCR 101 Re Bryning, deceased [1976] VR 100 Re McKenzie (1951) 51 SR (NSW) 293 Re Nash (No 2) [2017] HCA 52; 263 CLR 443 Re Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; 68 ALJR 668; 123 ALR 478 Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 Sadiqi v Commonwealth (No 2) [2009] FCA 1117; 181 FCR 1 Schlieske v Federal Republic of Germany (1987) 14 FCR 424 Secretary of State for Home Affairs v O’Brien [1923] AC 603 Selby v Pennings (1998) 19 WAR 520 Shaw v Wolf (1998) 83 FCR 113 Singh v Commonwealth of Australia [2004] HCA 43; 222 CLR 322 Snedden, Minister for Immigration v Ng Chong Sun [1969] HCA 20; 121 CLR 413 SZRTN v Minister for Immigration and Border Protection [2015] FCA 305 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 Te v Minister for Immigration and Multicultural and Indigeneous Affairs [2004] FCAFC 15; 204 ALR 497 Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 Udny v Udny (1869) LR 1 Sc & Div 441 United Transport Services Pty Ltd v Evans [1992] 1 VR 240 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 Wall v The King; Ex parte King Won (No 1) [1927] HCA 4; 39 CLR 245 Warner v Hung (No 2) [2011] FCA 1123; 297 ALR 56 Watson v Lee [1979] HCA 53; 144 CLR 374 Western Australia v Manado [2020] HCA 9 Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 Williams v The Queen [1986] HCA 88; 161 CLR 278 Yoxon v Secretary to Department of Justice [2015] VSC 124; 50 VR 5
Date of hearing:	11–12 March 2020
Date of last submissions:	31 March 2020 (Respondent) 2 April 2020 (Applicant)
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	377
Counsel for the Applicant:	Mr M L L Albert
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor

I. INTRODUCTION	[1]
Edward McHugh: Immigration, adoption, adulthood, detention	[3]
*Detention and impending deportation*	[8]
*Legal challenge in this Court*	[11]
Alleged unlawfulness of detention	[13]
Summary of my decision	[17]
II. BACKGROUND TO THIS PROCEEDING	[24]
Cancellation of applicant’s visa	[25]
Minister’s decision	[42]
Proceeding in this Court	[44]
*Section 78B notices*	[51]
*Hearing of the application*	[59]
III. MINISTER’S BASIS FOR RESTRAINT	[62]
IV. JURISDICTIONAL LIMITATION	[65]
Limited original jurisdiction of the Federal Court	[66]
“Migration decision”	[70]
Application to the present case	[81]
*Residual original jurisdiction*	[88]
Consideration of alternative analyses	[90]
V. DIRECT CHALLENGE TO DETENTION	[94]
Habeas corpus	[95]
*Jurisdiction of this Court*	[96]
*History and nature of the remedy*	[98]
*Onus of proof*	[101]
*Prima facie justification for restraint*	[106]
*Proper respondent*	[118]
Prima facie justification for applicant’s detention	[120]
Officer’s suspicion	[123]
*“An officer”*	[126]
*Inference of a suspicion*	[135]
Key authorities	[136]
Admissibility of evidence	[149]
Evidence supporting inference of a suspicion	[156]
Consideration	[170]
*Conclusion on officer’s suspicion*	[188]
VI. APPLICANT’S ABORIGINALITY	[190]
Love v Commonwealth of Australia	[191]
Biological descent	[200]
*Relevant authorities*	[204]
*Modes of proof*	[227]
Applicant’s evidence	[230]
Consideration	[234]
*Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant*	[237]
*Alternative analysis: Direct challenge to lawfulness of applicant’s detention*	[243]
Conclusion on Aboriginality	[246]
VII. APPLICANT’S CITIZENSHIP	[248]
Applicant’s claim to citizenship	[250]
Historical legislative framework	[256]
*New Zealand citizenship*	[256]
*1948 Citizenship Act*	[257]
“British subject” status	[257]
Criteria for citizenship	[260]
1984 amendments	[265]
1991 amendments	[269]
*2007 Citizenship Act*	[270]
*Enrolling to vote in Australia*	[273]
*Obtaining an Australian passport*	[276]
Citizenship by birth?	[279]
*Applicant’s adoption order and birth registration*	[281]
*“Born in Australia”*	[286]
*“Domicile of origin”*	[301]
Common law position	[301]
Statutory modification to “domicile of origin”	[306]
*Policy underpinning adoption order*	[309]
*Interpretation of the 1948 Citizenship Act*	[316]
Presumption of citizenship?	[324]
*Applicant’s evidence*	[325]
*Presumption of regularity*	[329]
*Consideration*	[338]
Conclusion on citizenship	[351]
*Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant*	[351]
*Alternative analysis: Direct challenge to lawfulness of applicant’s detention*	[352]
VIII. CONCLUSION	[353]
*Primary analysis: Applicability of s 189(1) of the Migration Act* to the applicant**	[354]
Alternative analysis: Direct challenge to lawfulness of applicant’s detention	[356]
*Reasonableness of officer’s suspicion*	[357]
*Habeas corpus revisited*	[370]
IX. ORDERS	[375]
Costs	[375]
Pronouncement	[376]