FEDERAL COURT OF AUSTRALIA
Taylor v Minister for Home Affairs [2022] FCA 309
Appeal from: Application for judicial review of Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19 File number: VID 27 of 2021 Judgment of: MOSHINSKY J Date of judgment: 30 March 2022 Catchwords: MIGRATION – habeas corpus – application for issue of writ of habeas corpus – where the applicant was born in the United Kingdom – where the applicant became an Australian citizen by conferral in 1988 – where the applicant renounced his Australian citizenship in 1995 – where the applicant was later granted a resident return visa – where the applicant was convicted of serious offences and sentenced to imprisonment for more than 12 months – where the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) – where the applicant’s application for revocation of the cancellation decision was refused by a delegate and that decision was affirmed by the Administrative Appeals Tribunal – whether the applicant was an “alien” in the constitutional sense and hence subject to the provisions of the Migration Act – whether the applicant’s detention was unlawful – application dismissed
CONSTITUTIONAL LAW – aliens – where the applicant was born in the United Kingdom – where the applicant became an Australian citizen by conferral in 1988 – where the applicant renounced his Australian citizenship in 1995 – where the applicant was later granted a resident return visa – whether the applicant was an “alien” in the constitutional sense and hence subject to the provisions of the Migration Act – where the applicant contended that he was not alien on the basis that he had been an Australian citizen, and his status as a non-alien continued notwithstanding his renunciation of his citizenship – where the applicant contended that he was not an alien on the basis that he had the essential characteristics of a non-alien – held: the applicant is an “alien”
Legislation: Australian Citizenship Act 1948 (Cth), ss 18, 21
Constitution, ss 7, 24, 51(xix), 128
Judiciary Act 1903 (Cth), s 78B
Migration Act 1958 (Cth), ss 189, 195, 196, 198, 501
Cases cited: Chetcuti v Commonwealth (2021) 392 ALR 371
Commonwealth v Okwume (2018) 263 FCR 604
Cunliffe v Commonwealth (1994) 182 CLR 272
Goldie v Commonwealth (2002) 117 FCR 566
Love v Commonwealth (2020) 270 CLR 152
Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178
Pochi v Macphee (1982) 151 CLR 101
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 83 Date of hearing: 25 August 2021 and 1 September 2021 Counsel for the Applicant: Mr M Albert with Mr C…
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- Case
- [2022] FCA 309
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Taylor was an "alien" under the Constitution, which would make him subject to the Migration Act. This involved examining whether Taylor’s status as a former Australian citizen meant he was no longer considered an alien despite renouncing his citizenship. Additionally, the court needed to assess if Taylor's extensive ties to Australia, including voting rights and residency, negated his alien status.
The court rejected Taylor's arguments, concluding that he remained an "alien" under the Constitution. The court held that his status as a former Australian citizen did not preclude him from being classified as an alien. Furthermore, the court found that Taylor’s personal and historical ties to Australia did not alter his legal status as an alien under the Migration Act. Consequently, the court found that Taylor’s detention was lawful and dismissed his application for habeas corpus.
The Federal Court dismissed Taylor's application for a writ of habeas corpus and any other relief sought. The court ordered that the matter of costs be determined on the papers, with each party to file written submissions within specified timelines. This decision confirmed that Taylor remained subject to the provisions of the Migration Act and that his detention was lawful.
Orders
Orders of the court
1. The application be dismissed.
2. Within seven days, each party file and serve a written submission (of no more than two pages) on the issue of costs.
3. Within 14 days, each party file and serve any responding written submission (of no more than two pages) on the issue of costs.
4. Subject to further order, the issue of costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Section 196 relevantly provides: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.…(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.Factual findingsGeneral matters The applicant was born in the United Kingdom, under the name Steven Barr. He has changed his name several times. His current name is Julian Taylor. In 1969, the applicant arrived in Australia at the age of four years. Apart from the period December 2012 until April 2015, he has lived only in Australia since then. In 1983 or 1984, the applicant was entered on the Electoral Roll. The applicant has voted in federal elections and in constitutional referenda. On 5 May 1988, the applicant became an Australian citizen by conferral. On 22 May 1990, the applicant obtained an Australian passport. He no longer has physical possession of that passport, but he has not been told that that passport has been cancelled. On 19 April 1995, the applicant renounced his Australian citizenship, pursuant to s 18 of the Australian Citizenship Act 1948 (Cth). The documents relating to the renunciation are annexed to Mr Rogers’s affidavit. Section 18 of the Australian Citizenship Act 1948 relevantly provided:Renunciation of citizenship18. (1) Where a person is an Australian citizen and:(a)has attained the age of 18 years and is a national or citizen of a foreign country; or(b)was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen;the person may lodge with the Minister a declaration in the prescribed form renouncing the person’s Australian citizenship.(4)Subject to subsections (5), (5A) and (6), the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.(5)Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.(5A)The Minister shall not register a declaration made under this section if the Minister considers that it would not be in the interests of Australia to do so.(6)The Minister shall not register a declaration made under this section unless the Minister is satisfied that the person who made the declaration:(a)is a national or citizen of a foreign country; or(b)will, if the declaration is registered, become a national or citizen of such a country immediately after the registration.