KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
BRENDAN CRAIG THOMS APPLICANT
AND
COMMONWEALTH OF AUSTRALIA RESPONDENT
Thoms v Commonwealth of Australia
[2022] HCA 20
Date of Hearing: 9 March 2022 Date of Judgment: 8 June 2022
B56/2021
ORDER
The question ordered to be heard and determined separately and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) be answered as follows:
Question: Was the detention of Brendan Craig Thoms between 28 September 2018 and 11 February 2020 unlawful?
Answer: No.
Representation
S J Keim SC with K E Slack and A J Hartnett for the applicant (instructed by Maurice Blackburn Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with S B Lloyd SC and C J Tran for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Thoms v Commonwealth of Australia
Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Detention of unlawful non‑citizens – Where applicant "unlawful non-citizen" within meaning of s 14(1) of Migration Act 1958 (Cth) – Where applicant detained by officers in purported exercise of s 189(1) of Migration Act – Where majority of High Court of Australia determined applicant not "alien" within meaning of s 51(xix) of Constitution in Love v The Commonwealth (2020) 270 CLR 152 ("Love") – Where applicant released from detention after delivery of judgment in Love – Where detaining officers held reasonable suspicion that applicant was "unlawful non-citizen" to whom s 189(1) of Migration Act applied until delivery of judgment in Love – Whether detention lawful under s 189(1) of Migration Act – Whether s 51(xix) of Constitution supported valid application of s 189(1) of Migration Act to applicant during time of detention.
Words and phrases – "alien", "aliens power", "detention", "non-citizen, non‑alien", "partially disapply", "reasonable suspicion", "so insubstantial, tenuous or distant", "sufficient connection", "unlawful non-citizen".
KIEFEL CJ, KEANE AND GLEESON JJ. The applicant was born in New Zealand in 1988 and is a citizen of that country. He first arrived in Australia in 1988 and began residing in Australia in 1994 pursuant to a Subclass 444 Special Category (temporary) visa granted to him on his date of entry. On his most recent entry into Australia on 8 January 2003, he was again granted a Subclass 444 Special Category (temporary) visa which permitted him to reside temporarily in Australia. That visa was cancelled on 27 September 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act"). The applicant did not hold any other visa.
Section 189(1) of the Act provides:
"If an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non‑citizen[[1]]
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Thoms v Commonwealth of Australia [2022] HCA 20
Case
[2022] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a question concerning the lawfulness of the detention of Brendan Craig Thoms. The dispute arose because Mr. Thoms was detained as an "unlawful non-citizen" under section 189(1) of the *Migration Act 1958* (Cth) based on the reasonable suspicion of immigration officers that he did not hold a valid visa and was not an Australian citizen. This detention continued until the High Court's decision in *Love v The Commonwealth* (2020) 270 CLR 152, which determined that Mr. Thoms was not an "alien" for the purposes of section 51(xix) of the Constitution.
The legal issues before the Court were whether Mr. Thoms' detention between 28 September 2018 and 11 February 2020 was lawful under section 189(1) of the *Migration Act*, and whether section 51(xix) of the Constitution supported the valid application of section 189(1) to Mr. Thoms during that period. The Court was required to reconcile the operation of the *Migration Act*, which treats "non-citizens" as synonymous with "aliens" for the purposes of its constitutional foundation in the aliens power, with the subsequent determination in *Love* that Mr. Thoms was not an alien.
The Court reasoned that the *Migration Act* has been enacted and administered on the premise that the Parliament's power under section 51(xix) of the Constitution to make laws with respect to "aliens" supports the Act's provisions concerning "unlawful non-citizens". The Court noted that since 1984, the Commonwealth Parliament has relied on the aliens power to sustain the *Migration Act*, and the term "non-citizen" within the Act has been understood as synonymous with "alien". Crucially, the Court held that the detention of Mr. Thoms was lawful at the time it occurred because the detaining officers held a reasonable suspicion that he was an unlawful non-citizen, and this suspicion was sufficient to engage section 189(1) of the *Migration Act*. The subsequent finding in *Love* that Mr. Thoms was not an alien did not render his prior detention unlawful, as the lawfulness of detention is assessed based on the circumstances and the law as it stood at the time of detention.
The Court answered the separate question removed into the Court by stating: "No." This signifies that the detention of Brendan Craig Thoms between 28 September 2018 and 11 February 2020 was not unlawful. No question as to costs arose.
Orders
Orders of the court
The question ordered to be heard and determined separately and removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) be answered as follows:
Question: Was the detention of Brendan Craig Thoms between 28 September 2018 and 11 February 2020 unlawful?
Answer: No.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND GLEESON JJ
GAGELER J
GORDON AND EDELMAN JJ
STEWARD J
On 11 October 2021, following an application by the Attorney‑General of the Commonwealth, Keane J ordered, pursuant to s 40(1) of the Judiciary Act 1903 (Cth), that that question be removed into this Court.The decisions to detain The applicant was initially detained and then continued to be detained as a result of the decisions of three officers of the Department of Home Affairs (respectively officers "A", "B" and "C"). At some time on 27 or 28 September 2018, officer A reviewed departmental records relating to the applicant. They included the notice of his visa cancellation. Those records indicated that the applicant was not an Australian citizen and that he did not hold any visa that was in effect. On 28 September 2018, officer A interviewed the applicant and confirmed his identity, his New Zealand citizenship and the fact that he did not hold a valid Australian visa. On the basis of her review of the departmental records and the interview, officer A suspected that the applicant was an unlawful non‑citizen. The applicant was detained pursuant to s 189(1) on the basis of that suspicion. Between 29 September 2018 and 3 October 2018, officer B, a Detention Review Manager, reviewed the lawfulness of the applicant's detention. As a result of that review, which included inquiries about the applicant's citizenship status, officer B suspected that the applicant was an unlawful non‑citizen and therefore considered that s 189(1) of the Act required him to continue to be held in immigration detention. On 1 November 2018, the applicant's case was referred to officer C. On the basis of a review of the departmental records, officer C suspected that the applicant was an unlawful non‑citizen and determined that he was required to be detained pursuant to s 189(1) of the Act. On 5 November 2018, officer C received copies of a certificate of Aboriginality and a family tree which had been provided by the applicant, and an opinion from another officer within the Department of Home Affairs to the effect that the applicant's claim to be of Aboriginal descent was not a relevant matter when determining whether he was an Australian citizen. The information provided by the applicant did not alter officer C's suspicion that the applicant was an unlawful non‑citizen. On 6 November 2018, officer C interviewed the applicant. During the interview, the applicant informed officer C that he identified as an Aboriginal Australian and his mother was an Australian citizen of Aboriginal descent. Later that day, the applicant sent officer C an email attaching a family tree, which the officer observed contained similar information as that already received. On 7 November 2018, officer C informed the applicant by email that there was no record of him having applied for Australian citizenship or having acquired Australian citizenship by operation of law. The officer also informed the applicant that his claim to be of Aboriginal descent was not a relevant matter in determining whether he was an Australian citizen. On the same day, the applicant sent officer C a document titled "Confirmation of Aboriginality" in which he made a declaration under the Statutory Declarations Act 1959 (Cth) that he is of Aboriginal descent and identifies as an Aboriginal person.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND GLEESON JJ,
GAGELER J,
GORDON AND EDELMAN JJ,
STEWARD J
The separate question removed should be answered "No". No question as to costs arises.The language of the Migration Act It has been observed[7] that, since 2 April 1984, the Commonwealth Parliament has relied on the aliens power to sustain the Act. Apart from the reference to "aliens" in the long title of the Act[8], the Act employs the term "unlawful non‑citizen" throughout. The term "non‑citizen" as used in the Act has been understood by this Court to be synonymous with "alien"[9]. Section 189(1) is to be read consistently with that understanding.[7]Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 710 [11] per Kiefel CJ, Gageler, Keane and Gleeson JJ; 392 ALR 371 at 374.[8]"An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons".[9]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 25, referring to Nolanv Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183-184. In Chetcuti v The Commonwealth[10], it was explained that: "[s]ubject to providing through s 15A of the Acts Interpretation Act 1901 (Cth) for the Migration Act to have a distributive and severable operation to the extent of any constitutional overreach[[11]], the Parliament has done so treating all non‑citizens as aliens. And since 1 September 1994, it has done so creating a clear-cut distinction between lawful non‑citizens, being non‑citizens who hold visas permitting them to enter and remain in Australia[[12]], and unlawful non‑citizens, being non‑citizens who do not hold visas[[13]] and who are in consequence liable to detention and to removal from Australia[[14]]."[10](2021) 95 ALJR 704 at 710 [11] per Kiefel CJ, Gageler, Keane and Gleeson JJ (footnotes omitted); 392 ALR 371 at 374.[11]See also Migration Act, s 3A.[12]Migration Act, s 13.[13]Migration Act, ss 14 and 15.[14]Migration Act, ss 189, 196 and 198. The detention of a person reasonably suspected of being an unlawful non‑citizen may occur at the point of entry into Australia (immigration clearance[15]) or when a person is present in Australia. In both cases the evident purpose of s 189(1) and the detention it authorises is to separate a person from the community until their status and the lawfulness of their presence is investigated and determined. In connection with immigration clearance, the Act provides[16] that a person who enters Australia must present evidence of their identity and immigration status. If the person is a citizen, they must present their passport or other evidence of their identity and Australian citizenship. If the person is a non‑citizen, they must present evidence of their identity and of a visa that is in effect and is held by that person. An Australian citizen who does not produce the necessary evidence is liable to detention under s 189(1)[17]. But on the applicant's case, a non‑citizen who does not have a visa that is in effect is not so liable so long as they are not an alien.[15]See also Migration Act, ss 190 and 191.[16]Migration Act, s 166.[17]See Migration Act, s 190.Ruddock v Taylor