Taylor v Minister for Home Affairs

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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

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602

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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Details
Case
[2022] FCA 309
Decision Date

CaseChat Overview and Summary

Julian Taylor, born in the United Kingdom, arrived in Australia in 1969. He became an Australian citizen in 1988 but renounced this citizenship in 1995. He was later granted a resident return visa, which was subsequently cancelled, leading to his detention under the Migration Act 1958 (Cth). Taylor challenged the legality of his detention, arguing that he was not an "alien" as defined in section 51(xix) of the Constitution, and hence not subject to the Migration Act. This case reached the Federal Court, where Taylor sought a writ of habeas corpus and a declaration that he was not an alien.

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

For the reasons that follow, I consider that each of the applicant’s three contentions should be rejected. Accordingly, the application is to be dismissed.The hearing and the evidence The applicant relies on four affidavits of the applicant, dated 21 January 2021 (unsworn), 22 June 2021 (affirmed on 8 July 2021), 28 July 2021 (affirmed on 2 August 2021) and 11 August 2021 (unsworn – relating to service of notices pursuant to s 78B of the Judiciary Act 1903 (Cth)). There was no cross-examination of the applicant. The Minister relies on an affidavit of Mr Smith dated 12 August 2021. Mr Smith was cross-examined during the hearing (which took place by video-conference using Microsoft Teams, due to restrictions in place because of the COVID-19 pandemic). The Minister also relies on the following affidavits: an affidavit of Irene Inocencio (an officer of the Department) dated 17 June 2021; and an affidavit of Edward Rogers (a solicitor at Australian Government Solicitor) dated 18 June 2021. In addition to the above, an Application Book containing other relevant documents was admitted into evidence.Key legislative provisions Section 189(1) of the Migration Act provides:If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. The expression “non-citizen” is defined in s 5 as meaning a person who is not an Australian citizen. 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.

Decision

Reasons for decision

On 21 December 2018, the applicant’s resident return visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). There is no issue in the present case that the criteria for mandatory cancellation of a visa under that provision were satisfied. The applicant made a request for revocation of the cancellation decision. On 26 October 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation decision. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. On 14 January 2021, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation decision: Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19. Upon completion of the applicant’s term of imprisonment, he was taken into immigration detention. He remains in immigration detention. On 25 January 2021, the applicant filed an originating application for review of a migration decision by which he commenced the present proceeding. On 2 June 2021, the applicant filed an amended originating application for review of a migration decision. By the amended originating application, the applicant seeks the following relief:[1.]A writ of habeas corpus issue.[2.]An order in the nature of habeas corpus be made.[3.]The Applicant be released from detention forthwith.[4.]A declaration that the Applicant is a non-alien.[5.]The decision of the Administrative Appeals Tribunal dated 14th January 2021 be quashed and/or set aside.[6.]The First Respondent pay the Applicant’s costs. After setting out these details, under the heading “Grounds of application”, the amended originating application states that all of the previous grounds have been abandoned, and sets out the following two new grounds:1.In respect of the application under s 39B of the Judiciary Act 1903 (Cth), the Applicant’s detention purportedly under s 189 of the Migration Act 1958 (Cth) is unlawful by reason that [he] is a non-alien for the purposes of s 51(19) of the Commonwealth Constitution.2.In respect of the application under s 476A of the Migration Act, the Tribunal’s decision was without or beyond authority because the Tribunal only relevantly has jurisdiction in respect of aliens. At the hearing of the application, the applicant essentially advanced three contentions in support of the relief sought in the amended originating application. These were, in summary:(a)By virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an “alien” (as that expression is used in s 51(xix) of the Constitution). The fact that he renounced that citizenship in 1995 does not change his non-alien status. As a non-alien, he is not subject to the provisions of the Migration Act, which relevantly applies only to aliens. It follows that his detention under s 189(1) of the Migration Act is unlawful.(b)Further or alternatively, the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances. As a non-alien, he is not subject to the provisions of the Migration Act. It follows that his detention under s 189(1) of the Migration Act is unlawful.(c)Further or alternatively, the applicant’s detention is unlawful because the first respondent, the Minister for Home Affairs (the Minister), has not established that an officer “knows or reasonably suspects that [the applicant] … is an unlawful non-citizen” (see s 189(1) of the Migration Act).

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.