FEDERAL COURT OF AUSTRALIA

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 4 made by the Court on 7 April 2020 be set aside and in lieu thereof it be ordered that:

(a)    A writ of habeas corpus issue.

(b)    An order in the nature of habeas corpus be made.

(c)    The applicant be released from detention forthwith.

(d)    The respondent pay the applicant’s costs.

3.    The respondent pay the appellant’s costs of the appeal.

4.    The parties have leave to file and serve within seven days short submissions as to the need for any further order.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons of Mortimer J. Her Honour’s reasons make it unnecessary to deal with the background circumstances and nature and context of the appeal, including the reasoning and approach of the primary judge. These reasons should be read against a background of a familiarity with the reasons of Mortimer J.

2    I agree with Mortimer J: (1) that the Court has both jurisdiction and power to entertain and issue a writ of habeas corpus or make an order in the nature of habeas corpus; (2) that the primary judge erred in his expression of the operation of the onus of proof; (3) that the appellant, Mr McHugh, satisfied the initial onus upon him requiring the Minister to prove by clear evidence that an officer reasonably held the relevant suspicion at the relevant time; and (4) that the evidence adduced by the Minister failed to prove the relevant reasonable suspicion in any officer.

3    As to (1) in [2] above, I would prefer to express my own reasons as to the relationship of s 476A of the Migration Act 1958 (Cth) to the writ of habeas corpus or the application for an order in the nature of habeas corpus. The availability of the writ or an order in its nature as a remedy is to be derived not from any width being given to the words “in relation to” in the chapeau to s 476A, but rather as a remedial power appropriately available in the disposition of the matter before the Court in respect of which matter the Court has been conferred with jurisdiction. As to (2), (3) and (4) in [2] above, subject to the following I agree with the reasons of Mortimer J. In particular, my agreement with the reasons of Mortimer J should be read subject to my views as to the proper question to be asked as to the operation of s 189 of the Migration Act.

4    As to orders, I would allow the appeal (though, like Mortimer J and in agreement with her reasons in this respect, not on all grounds), set aside Order 4 of the Court made on 7 April 2020 and in lieu thereof order that a writ of habeas corpus issue and there be an order that the respondent Minister release forthwith the applicant, Mr Edward McHugh, from detention, the respondent pay the applicant’s costs, and the respondent pay the appellant’s costs of the appeal.

5    As a preliminary, but necessary comment, s 189 of the Migration Act and the other sections concerning detention confer power on the Executive over, and qualify the elementary and fundamentally important right of, any person in this country (whether citizen, non-citizen, alien or immigrant) to liberty and freedom from, Executive detention. Strictness of approach in remedy, onus of proof, and the nature of proof in respect of such questions is a reflection of the common law’s vigilance over that liberty. A detention centre, like a prison, is an institution or place of detention or incarceration. Those administering such places and directly responsible for the detention within them, and the Minister and Department ultimately responsible for the conduct of such places should be in a position to justify the lawful nature of a person’s detention, at any time. If that depends upon proof of someone’s state of mind and the reasonable foundation for it that proof should be readily available whether from the officers who are responsible for the detention, or otherwise by reference to clear records.

Jurisdiction and s 476A of the Migration Act 1958 (Cth)

6    The difficulties brought about in these proceedings stem in part from reconciling the jurisdiction and power of this Court (the difference between which is important to avoid confusion) and the re-organisation of jurisdiction of courts brought about by the Migration Litigation Reform Act 2005 (Cth) and relevantly found in Div 2 of Pt 8 of the Migration Act 1958 (Cth).

7    The original jurisdiction of this Court is the authority to decide a matter conferred on it by Parliament. The Court’s original jurisdiction in respect of the Migration Act is derived (at least in part) from s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), that is jurisdiction:

(1)     … with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)     … in any matter:

…

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

8    The jurisdiction under s 39B(1) mirrors the terms of the conferral of jurisdiction on the High Court by s 75(v) of the Constitution, and the terms of the conferral of jurisdiction on the Federal Circuit Court by s 476(1) and (2) of the Migration Act.

9    Section 39B(1A)(c) is a general conferral of civil (non-criminal) jurisdiction upon the Court according to its terms: Transport Workers’ Union of Australia v Lee [1998] FCA 756; 84 FCR 60 at 67; National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109; 165 ALR 595 at 601.

10    The width of the conception of “matter” must be borne in mind: CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at 352–353 [30]–[31]; Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at 583–584 [135], 585–586 [139]–[142]; Fencott v Muller [1983] HCA 12; 152 CLR 570 at 591–592 and 603–608; Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; 154 CLR 261 at 290–291 and 294; National Australia Bank v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 at 647–650 [78]–[85]; and Lindell G, Cowen and Zines’ Federal Jurisdiction in Australia (4th ed, Federation Press, 2016) at 10–29; as must the width of the phrase “arising under laws made by the Parliament”: Felton v Mulligan [1971] HCA 39; 124 CLR 367; LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575; Ruhani v Director of Police [2005] HCA 42; 222 CLR 489; Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at 5–6 [18]; National Australia Bank v Nautilus (No 2) 377 ALR at 650 [88]–[89] and the cases there referred to; and Lindell G op cit at 106–112.

11    Section 476A contains a limitation upon the jurisdiction of this Court in the necessary clarity: Shergold v Tanner [2002] HCA 19; 209 CLR 126 at 136 [34], by reference to the composite phrase “jurisdiction in relation to a migration decision”. That s 476A contains a limitation on the Court’s jurisdiction can be taken from the use of the phrase “if, and only if:”

12    By s 5, the phrase “migration decision” is defined as:

(a)    a privative clause decision; [see s 474(2)] or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; [see s 474(6)] or

(d)    an AAT Act migration decision [see s 474A]

13    Relevantly here, the migration decision is a privative clause decision and s 474(2) and (3) must be considered. A “decision” (subs (3)), and so a “privative clause decision” (subs (2)), and so a “migration decision” (s 5) for s 476A(1) includes “doing or refusing to do any other act or thing” (s 474(3)(g)).

14    This granularity of the concept of “decision” is the basis for the conclusion that the conduct of an officer in detaining the person upon the basis of knowledge or reasonable suspicion referred to in s 189(1) is a migration decision.

15    The phrase “in relation to” has a meaning derived from Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 at 662–663, esp [22] and [25]. Bodruddaza concerned s 486A (in Pt 8A), but the Full Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at 57–58, esp [8]–[9], applied it to s 476A. Tang has the support of Nettle J (sitting as a single Justice) in DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156 at 164 [14]–[15]. From these authorities, and having regard to the terms of the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) discussed in Tang at 217 FCR 58 [8], the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision. The phrase “in relation to” has no width or flexibility in this context beyond that. It does not include what might be called collateral attack upon a migration decision: Bodruddaza 228 CLR at 662 [22], such as a claim for false imprisonment available within jurisdiction under s 39B(1A)(c) and s 75(iii) of the Constitution by s 32(1) of the Federal Court of Australia Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520 at 523–526 [6]–[13]. See also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; and DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156.

16    In other contexts and in answering other questions habeas corpus can be properly described as a species of judicial review: see for example, R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 at 111 and see the valuable discussion in Farbey J, Sharpe RJ, Atrill S, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011) at 56–64. In the present statutory context involving the reordering of original and appellate jurisdiction between related courts, the notion of judicial review is to be more narrowly conceived. The writ is of great historical and contemporary importance, and calls upon the detainer (in effect the Minister) to justify the lawfulness of the detention, failing which justification being demonstrated, the person should be released. It does not involve direct judicial review of any decision.

17    The terms of s 476A(1)(c) mean that the Court has jurisdiction in direct judicial review proceedings concerning decisions of the Minister personally under ss 501, 501A, 501B, 501BA, 501C and 501CA, but not otherwise in direct judicial review. The decision relevant to Mr McHugh not to revoke his visa cancellation was under s 501CA.

18    The effect of s 476A(1) is that the Court has no jurisdiction in (that is, no authority to decide) direct judicial review of the decision to take Mr McHugh into detention under s 189 or any decision to continue or maintain his detention. The removal or carve out of jurisdiction by s 476A does not, however, go beyond such direct judicial review, and s 476A does not purport to restrict otherwise the width of the Court’s matter jurisdiction under s 39B(1) or (1A)(c) that it has or otherwise would have, such as where the removal or carve out does not apply because of s 476A(1)(c). Relevantly here, the jurisdiction to exercise judicial review of the Minister’s decision under s 501CA can be seen to be with respect to a matter in which a constitutional writ or an injunction is sought against the Minister (for s 39B(1)). This is confirmed by the terms of s 476A(2). The jurisdiction can also be seen as a matter arising under a law of the Parliament (for s 39B(1A)(c)).

19    Also, the Minister conceded (and it must be a correct concession) that the Court had jurisdiction under s 39B to determine whether s 189 can apply to Mr McHugh because either he was a citizen, or, if a non-citizen, was not an alien (being an Aboriginal Australian). Such relief was sought in the amended application by way of injunctive relief under s 39B(1) and declaratory relief under s 39B(1A)(c).

Habeas corpus

20    I agree with Mortimer J in her Honour’s analysis of habeas corpus as a remedial writ being available as a power or remedy under s 23 of the Federal Court of Australia Act.

21    Whilst the Court has necessary implied jurisdiction as an incident of the general grant to the Court as a superior court of law and equity to deal with matters before it: Jackson v Sterling Industries Limited [1987] HCA 23; 162 CLR 612, it does not have the broad scope of inherent jurisdiction of the sovereign’s superior courts in England. This fact helps one to recognise the inappropriateness of referring to jurisdiction to entertain habeas corpus. As a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court’s jurisdiction, otherwise conferred. On the other hand, a court that has jurisdiction to entertain any controversy about the liberty of a subject in any circumstances (public or private) may employ the writ, as a remedy, in that wide inherent jurisdiction, to vindicate the subject’s general right to be free of unlawful detention. This Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction. I respectfully agree with the analysis of Deane J in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; 123 ALR 478, and with what Mortimer J has written in her Honour’s reasons in this regard.

22    There can be no doubt from the Amended Originating Application filed with leave on 1 March 2020 that Mr McHugh was complaining of his detention, albeit not expressly seeking damages for false imprisonment. The amended application contained the claim (within jurisdiction by s 476A(1)(c)) to review the decision under s 501CA and the claim that he was a citizen and that he was not an alien.

23    If the writ of habeas corpus or an application for an order in the nature of habeas corpus can be entertained in this Court (which for the reasons expressed by Mortimer J, and with which I agree, it can be) it can be sought as a remedy within, or as an incident of, the matter that includes the judicial review of the decision under s 501CA and the claim under s 39B that s 189 does not apply to him, because he is a citizen or, if not, an Aboriginal Australian who is not an alien.

Habeas corpus, s 189 and the onus of proof

The correct question to ask

24    Before questions of onus are canvassed, it is necessary to appreciate the nature of the question for consideration in the application to which the question of onus is to be directed. The writ is directed to the justification for the detention of the subject. The freedom from unjustified detention lies at the heart of constitutional freedom: Secretary of State for Home Affairs v O’Brien [1923] AC 603 at 609; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.

25    The justification for detention here is and was at all times s 189(1) of the Migration Act:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.

26    The notions of lawful and unlawful non-citizens are described, on their face exhaustively, by ss 13 and 14 of the Migration Act:

13    Lawful non-citizens

(1)     A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.

(2)    An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non‑citizen.

14    Unlawful non-citizens

(1)    A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

(2)    To avoid doubt, a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen.

27    Mr McHugh is not a citizen. I agree with the reasons of Mortimer J in that regard. He has no visa by the operation of s 501(3A). The decision by the Minister not to revoke this cancellation made under s 501CA has now been set aside by the primary judge; but that still leaves Mr McHugh in the position that his visa has been cancelled. By ss 13 and 14, on the face of the statute, he must be an unlawful non-citizen, because he is not a citizen and does not hold a visa.

28    Sections 13 and 14 must, however, be read down and construed so as not to exceed legislative power: s 15A of the Acts Interpretation Act 1901 (Cth). In Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 a majority of the High Court (Bell, Nettle, Gordon and Edelman JJ) decided that an Aboriginal Australian is not an alien within the meaning of s 51(xix) and so is not within the reach of the aliens power. One consequence, as pointed out by Nettle J at 375 ALR 668 [285] is that it is beyond legislative competence to treat an Aboriginal Australian as an unlawful non-citizen and s 14(1) must be read down and construed accordingly. Justice Gordon read down ss 189 and 198 so as not to apply to an Aboriginal Australian at 375 ALR 689 [390], as did Edelman J at 375 ALR 692 [398].

29    Thus, s 14(1) (and indeed s 13(1)) must be taken to be construed as directed only to non-citizens who are not Aboriginal Australians. Whilst a non-citizen Aboriginal Australian who had a visa would be a lawful non-citizen because of the holding of a visa, a non-citizen Aboriginal Australian who does not hold a visa is not an unlawful non-citizen, because of his or her status as an Aboriginal Australian and thus not being an alien.

30    The difficulty arises with s 189. One way of expressing the matter is that s 189 is to be read down and construed as not directed to, and as not authorising detention of, an Aboriginal Australian. The difficulty is what that means in the context of detention expressed to be justified by reference (properly read down) only to a reasonable suspicion of non-Aboriginality.

31    The appellant argued that because s 189 did not reach Aboriginal Australians, the fact of Mr McHugh not being an Aboriginal Australian was a fact to be proved by any detainer seeking to rely on s 189, before any question of relevant suspicion arose. This fact was not, it was submitted, a matter of which the officer was only required to have a reasonable suspicion in the justification of the detention. Rather, the fact that Mr McHugh was not an Aboriginal Australian was the subject of necessary proof. Only if one concluded that Mr McHugh was not an Aboriginal Australian (as a fact) would one examine the state of knowledge or suspicion of the officer for the purposes of s 189.

32    The Minister, on the other hand, submitted that s 189 can be read down to accommodate Love and Thoms to authorise (indeed require) the detention of a person (even a citizen or a non-alien Aboriginal Australian non-citizen) if the officer reasonably suspects that the person is a non-citizen, non-Aboriginal Australian, not holding a visa. That is, the read down s 14(1) notion of unlawful non-citizen is read into s 189 as the whole subject matter for the reasonable suspicion and for the decision.

33    This latter submission of the Minister has the virtue of simplicity. Section 15A of the Acts Interpretation Act affects the reading or construing of the provision in question. Section 14(1) should be read as not reaching or dealing with non-citizens who are Aboriginal Australians. Thus s 14(1) can be understood as providing that a non-citizen, other than an Aboriginal Australian, who does not have a visa, is an unlawful non-citizen. Reading s 14 as read down into s 189, the officer referred to in s 189 must, in his or her consideration, know or reasonably suspect that the person is a non-citizen, does not have a visa, and is not an Aboriginal Australian.

34    The import of that construction must, however, be appreciated: It gives s 189 content as follows: Not only does s 189 authorise, but it requires, an officer to detain any person whether citizen, or non-alien Aboriginal Australian, whom the officer reasonably suspects to be a non-citizen or non-Aboriginal Australian alien without a visa. Such a section must be a law “with respect to aliens” for s 51(xix) or otherwise supported by s 51(xxxix).

35    The appellant did not fully develop the submission as to the correct question to be addressed by the party with the onus of proof (the Minister). In his written submissions, especially paras 25, 55–58 and 60–63, Mr Albert, who appeared for the appellant, largely addressed the question on the basis of the legitimacy of the detention by reference to a reasonable suspicion of non-Aboriginality. In oral address, however, Mr Albert submitted that the question to be addressed was whether Mr McHugh was an alien, not whether the officer had a reasonable suspicion that he was not. Mr Albert accepted that the detention could be lawful if there was a reasonable suspicion about Mr McHugh being a non-citizen, even if he were a citizen. (This is a concession that may not be justified by the authorities, though in this case, it does not matter because, as Mortimer J has concluded, Mr McHugh is not a citizen.) He submitted, however, that the section did not reach a non-alien because the person was an Aboriginal Australian, and that alien status was necessarily the subject of proof, as a fact.

36    Mr Lenehan SC, on behalf of the Minister, addressed the question in para 24 of his written submissions and also in oral address. He submitted that, as a matter of statutory construction, the power of detention was conditioned only upon the reasonable suspicion of non-citizenship, alienage and lack of a visa. This submission was said to be supported by the process of reading down through s 15A of the Acts Interpretation Act and Love and Thoms (especially Gordon J at 375 ALR 689 [390]), Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 and Ruddock v Taylor [2005] HCA 48; 222 CLR 612. In particular, it was submitted that Ruddock v Taylor stood for the proposition that reasonable suspicion of alienage was sufficient to engage s 189, “even though the decision in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 established that Mr Taylor was not an ‘alien’”.

37    In reply, Mr Albert submitted that Ruddock v Taylor dealt with the citizenship or non-citizenship dichotomy, not a lack of alien status by being Aboriginal Australian.

38    The resolution of this question requires attendance to the operation of s 15A of the Acts Interpretation Act, and to the reasoning and approach of the majorities in Re Patterson, Shaw and Ruddock v Taylor.

39    In Re Patterson 207 CLR 391, a majority of the Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) decided, for various reasons, that a Parliamentary Secretary had fallen into jurisdictional error in coming to a decision to cancel Mr Taylor’s visa. That was not, however, the presently relevant, nor contemporaneously controversial, question decided. Two of the majority (Gaudron J and Kirby J) as well as McHugh J and Callinan J also held (as stated in the headnote of the authorised report) that Mr Taylor was a British subject, was not an alien, but was a subject of the Queen of Australia; hence s 501(3) could not apply to him. That conclusion involved the over-ruling of Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178 in which Mason CJ and Wilson, Brennan, Deane, Dawson and Toohey JJ held that a non-citizen who is a British subject is an alien within s 51(xix) of the Constitution. Justice Gaudron dissented in Nolan.

40    In Re Patterson 207 CLR at 406–413 [30]–[54], Gaudron J discussed the validity of s 501(3) of the Migration Act in its application to Mr Taylor. Section 501(3) was concerned (as it is now) with cancellation of a visa on character grounds. It was not concerned with suspicion of alienage. It could only operate upon Mr Taylor if he was an alien: 207 CLR at 407 [32]. After setting out her reasons for disagreeing with the majority in Nolan, Gaudron J expressed views not only on visa cancellation, but detention and removal at 412–413 [52]:

A law providing for the detention otherwise than upon conviction for a criminal offence and for the compulsory removal from Australia of persons who have been integrated into the Australian community cannot be supported as a law with respect to immigration and emigration. Nor, in my view, can it be supported as a law with respect to external affairs. That is because the removal of a person from Australia, simpliciter, does not give rise to any external affair, as such. Such a law is valid only as a law with respect to aliens. It follows, therefore, that the provisions of the Act providing for the detention and removal of prohibited non-citizens from Australia are valid only in their application to non-citizens who are also aliens. Thus, they are not valid in their application to Mr Taylor.

(Footnote omitted and emphasis added.)

41    In reading this passage, it is to be recalled that the purpose of s 189 is not punitive, but is for the removal of aliens from Australia and their separation from the Australian community until that occurs: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; and see also Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. It will be necessary to return to the fundamental question of the purpose of detention set within the Constitutional framework. For now, it is necessary to consider the relevant approach of the other three justices in Re Patterson to the reach of the aliens power.

42    Justice McHugh restricted his conclusion at 207 CLR 437 [136] to the question of the power to deport:

The prosecutor migrated from the United Kingdom to Australia in 1966 and has lived here ever since. He is therefore a subject of the Queen of Australia, not an alien. Neither the Minister nor the Parliamentary Secretary had the power to deport him because s 501 of the Migration Act cannot constitutionally apply to him.

(Emphasis added.)

43    Justice Kirby directed his analysis on the alien question to the legitimacy of s 501 and his Honour concluded that Nolan was wrong and said at 207 CLR 494–495 [310]:

… Although s 501 of the Migration Act appears on its face to apply to “a person”, that is, any person, it must be read down to remain within the constitutional power of the Parliament. Such a course may be taken. Taking it preserves the validity of the Migration Act in respect of those “persons” to whom it may apply. Such persons will not include Australian citizens or other non-citizen British subjects in the same class as the prosecutor.

(Footnote omitted and emphasis added.)

44    Justice Callinan also directed himself to the power to cancel the visa and deport: see 207 CLR at 515–518 [367]–[378].

45    In Shaw 218 CLR 28, the Court examined the status of Re Patterson as authority. Earlier, in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 four members of the Court had analysed Re Patterson: see 212 CLR at 170 [17]–[19] (Gleeson CJ), 187–188 [86]–[88] (McHugh J), 200 [136] (Gummow J) and 220 [211] (Kirby J) and concluded that it was only authority on issues other than Mr Taylor’s alien status and did not decide that s 189 could have no valid application to him. In Shaw, Gleeson CJ, Gummow and Hayne JJ (with whose reasons Heydon J agreed) after referring to Te, held that Re Patterson did not overrule Nolan: 218 CLR at 44 [35]–[36] and 45 [39]:

35 In Re Minister for Immigration and Multicultural Affairs; Ex parte Te, four members of the Court agreed that there was no single strain of reasoning in the majority judgments in Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Patterson had no precedent value beyond its own facts.

36 Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan v Minister for Immigration and Ethnic Affairs. In our view, the court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach to the matter, and as Long indicates, the decision in Patterson plainly fails to pass muster.

…

39 The decision in Patterson does not rest upon a principle carefully worked out in a significant succession of decisions; the contrary, as we have indicated, is the case. Secondly, the treatment of the aliens power in Patterson was not necessary for the decision, because there was a clear alternative basis for the decision. Thirdly, the inconvenience flowing from the existence of Patterson is indicated by reference to Long. Finally, the Minister has moved as quickly as may be in this Court to obtain a reconsideration of Patterson. That case henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.

(Footnotes omitted.)

Justice McHugh repeated his view expressed in Te 212 CLR at 187 that Re Patterson had no ratio decidendi.

46    It is within this context of the destruction of the precedential value of Re Patterson that one comes to the decision of Ruddock v Taylor 222 CLR 612.

47    It should also be recalled that only seven months before argument in Ruddock v Taylor in March 2005, the Court had, in August 2004, handed down the decision in Al-Kateb 219 CLR 562, dealing with the reach of the power to detain and with the earlier decision of Chu Kheng Lim 176 CLR 1. The ratio of Chu Kheng Lim can be found in the reasons of Brennan, Deane and Dawson JJ at 32 (with the concurrences relevantly by Mason CJ at 10 and Gaudron J at 53):

It can therefore be said that the legislative power conferred by s. 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

(Footnote omitted and emphasis added.)

48    It is relevant to note that although reasonable suspicion of the relevant non-citizen status was on the face of the relevant provision sufficient to detain, it was part of a power linked to the act of removal of the alien from the country, which act could never be ultimately founded upon suspicion of alienage, but only upon alienage itself. This much must be immanent within the above authoritative expression of the power.

49    In Ruddock v Taylor 222 CLR 612 there were a number of arguments addressed. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) were at pains at 620 [16]–[17] and 624 [33] to state that Re Patterson did not establish that s 189 could have no valid application to Mr Taylor. It was noted that there was no contention that s 189 was invalid: 222 CLR 624 [35]. At 621–622 [22]–[28] and 625 [37] their Honours clearly stated that s 189 could apply based on reasonable suspicion, not the fact of the person being an unlawful non-citizen. Given the majority’s repetition of Shaw’s destruction of Re Patterson as authority for any proposition of Mr Taylor’s non-alien status, the reasonable suspicion of Mr Taylor being an unlawful non-citizen as the foundation for valid detention can be seen to be directed only to the question of the invalidity of the cancellation decision, and not to any mistaken view of his alien status: see in particular 222 CLR at 627 [37]. Thus, I do not consider that Ruddock v Taylor is authority for any proposition that a reasonable suspicion (contrary to what might be shown to be the fact) that someone is an alien (here that the person is an Aboriginal Australian if he or she is a non-citizen) founds a valid engagement of s 189.

50    The answer to the question as to the relationship between s 189, s 15A of the Acts Interpretation Act and the source of power for s 189 in s 51(xix) depends upon Constitutional considerations which were not fully explored in argument.

51    The law, s 189, to be supported by s 51(xix) must be “with respect to aliens” or incidental thereto under s 51(xxxix). The power is only for the purpose of, relevantly here, deportation. The lawful status of the non-citizen generally rested on the holding of a visa; now, after Love and Thoms, it can also rest on the non-alien status by being an Aboriginal Australian. No power of deportation exists over a citizen or a non-citizen, but non-alien, Aboriginal Australian. If ss 13, 14 and 189 have a valid operation after being read down by s 15A to require detention of a person reasonably suspected of being a non-citizen without a visa or a non-citizen who is an Aboriginal Australian, there must be demonstrated to be a relevance to or connection with aliens and their deportation: Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; 93 CLR 55 at 77; Plaintiff S156/2013 v Minister [2014] HCA 22; 254 CLR 28 at 42 [22]. There needs to be a sufficient connection between the law requiring someone to be detained (even if in fact, and later found to be, a citizen or a non-citizen Aboriginal Australian) and aliens and their deportation. If the Minister cannot deport a citizen or Aboriginal Australian, notwithstanding the reasonableness of any suspicion that he or she was neither, it may be difficult to understand how s 189 can be supported by the same necessary underlying constitutional aliens power to require his or her detention. That may mean that a precondition or requirement for the operation of s 189 is that the person not be a citizen or not be an Aboriginal Australian. Alternatively, s 189 may be read down or construed by s 15A, somewhat more messily, as requiring, or permitting detention upon a reasonable suspicion of non-citizenship or of alienage, subject to a requirement, when called upon, such as in answering a claim for the issue of a writ of habeas corpus, to demonstrate that the person is an alien and not an Aboriginal Australian or a non-citizen not holding a visa, such that he or she could be deported. Given the relationship between deportation and detention (which underpinned the reasons of the justices in Re Patterson, especially Gaudron J), as the time for execution of the deportation power and the physical act of deportation approaches, it is difficult not to see the justification for detention as converging with the justification for deportation: proof of the alien status of the person.

52    I do not think it appropriate to answer these questions in this appeal. There are three reasons for that position. First, on any view, including that most favourable to the Minister on the questions, the Minister failed to discharge the onus of proof that a relevant officer had a reasonable suspicion that Mr McHugh was not an Aboriginal Australian. Secondly, for that reason the Constitutional question need not be decided to resolve the appeal, and the usual unwisdom of deciding Constitutional issues when not necessary can be seen to be engaged. Thirdly, the Court has not been provided with full argument that will assist in the resolution of the questions. Such important questions should await such argument in a context when it is decisive.

Onus of proof

53    The relevant possible questions having been identified, it is necessary to turn to onus of proof. I agree with the reasons of Mortimer J that the primary judge’s staged approach was overly complex and wrong. There are many circumstances in the civil law where fine and nuanced issues for factual determination may give rise to complex and subtle interplay between the legal and evidential burdens of proof and the role of relevant presumptions: see Heydon JD, Cross on Evidence (12th ed, LexisNexis, 2019) at 365–383. The subject of proof and its legal context will be important. Here the subject and context is the liberty of the individual, a matter basal to the common law’s concern for individual freedom and liberty. There is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned: Dillon v The Queen [1982] AC 484 at 487 (Lord Fraser of Tullybelton speaking for the Privy Council), cited by the Full Court of this Court (Fox, Wilcox and Burchett JJ) in Schlieske v Federal Republic of Germany [1987] FCA 58; 71 ALR 215 at 223.

54    The nature of the writ is to be appreciated. Any modern deprecation of “romantic notions or purple prose” in the description of the historical importance of the writ: Rahmatullah v Secretary of State for Defence [2012] 1 WLR 1462 at 1487 [43] (per Lord Neuberger of Abbotsbury MR) cannot be seen, nor should be used, to dilute the importance of the writ or the liberty of the person which the writ and the common law protect. The writ’s operation is intended to be direct and speedy; and commence from the simple expression of right and of freedom from unlawful Executive detention given by Lord Atkin in Liversidge v Anderson [1942] AC 206 at 245: Every imprisonment (except that ordered by a judge) is prima facie unlawful and must be justified by the person directing it. The expression of the matter by Fullagar J in Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152 contained no romance or purple prose; rather in its sombre and grey prose (if analogical metaphor be permitted) it contained a recognition of the elementary and fundamental importance of the right that the writ protects.

55    These remarks and considerations are not gratuitous in the context of the Executive detention of a person suspected to be an unlawful non-citizen, being someone who has lived in Australia for 45 years since arriving at the age of 7, who was adopted by Australian citizens under Queensland law at the age of 8, who was (as it transpires, wrongly) designated a citizen in at least two official and important contexts by officers of the Commonwealth, who has made his life in Australia, who identifies as an Aboriginal Australian, who is recognised by the Aboriginal community in which he has lived for many years as Aboriginal and part of that community, but who is (at least presently) unable to bring positive proof of his biological Aboriginal descent (his young mother having given him up shortly after birth, and his father being unknown).

56    The task of the Commonwealth, through the person directing Mr McHugh’s detention (the Minister) is straightforward, at least in expression, and a simple reflex of Mr McHugh’s elementary and fundamentally important right to his liberty free from unlawful Executive detention: Prove the lawfulness of his detention. That task is framed by s 189 of the Migration Act, if it applies to him.

57    The importance of the issue of personal liberty also requires the proof to be clear and cogent: Ex parte Khawaja [1984] 1 AC at 112–114; Dien v Manager of Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 at 419 (per Malcolm CJ and Seaman J; also sub nom Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 at 731).

58    The writ (habeas corpus ad subjiciendum) required justification. It did not issue in the Court of King’s Bench as of course; it was a writ to be applied for by motion to the Court: Penrice and Wynn’s Case 2 Mod 306; 86 ER 1089, as Blackstone stated “as in the case of the prerogative writs … which do not issue as of mere course, without shewing some probable cause …”: Bk III Ch 8 at 132. Lord Chief Justice Vaughan described the need for satisfaction as “probable cause to be delivered” or a “reasonable ground for awarding it”: Bushell’s Case 2 Jon 13, also referred to by Blackstone in Bk III Ch 8 at 132–133; and see The Opinion on the Writ of Habeas Corpus (1758) Wilm 77 at 82–94; 97 ER 29 at 32–38.

59    That the ground for the making of the order nisi was not finely and abstractly defined beyond reasonable justification or probable cause, requiring the detainer to show cause is consistent with the writ’s utility and efficacy in the countless situations in which it might be sought to be employed (legitimately or illegitimately).

60    Modern cases have used the expression “prima facie” case: Dien at 418–419; Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at 512 [61] (French, Sackville and Hely JJ); and Yoxon v Secretary to the Department of Justice [2015] VSC 124; 50 VR 5 at 14–15 [38]. That expression of the matter should not, however, be seen to be a restriction or constriction upon the utility and efficacy of the remedy. It should be seen as another way of expressing the practical requirement for demonstrating reasonable justification or probable cause and for requiring the detainer to justify the detention by proving its lawful character. This can be seen by the way Kiefel CJ, Keane, Nettle and Edelman JJ put the matter in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39] (where Yoxon was approved), as the plaintiff carrying “at least an evidential burden of establishing that there is a reason to suppose that his detention has ceased to be lawful.” It can also be seen by the way the Full Court (Black CJ, Sundberg and Weinberg JJ) expressed the matter in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at 97 [176]: “... it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.” The unsatisfactory evidence of the applicants in R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 at 229–30 (noted in Yoxon at [39]) nevertheless raised the question of the lawfulness of the detention. Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja [1984] AC at 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.

61    Looking at the matter most favourably to the Minister, the question here is whether there was proved a reasonable suspicion that Mr McHugh was a non-citizen, that he did not hold a visa and that he was not an Aboriginal Australian. For the reasons given by Mortimer J the Minister failed to prove such matters, notwithstanding the conclusion of Mortimer J, with which I agree, that Mr McHugh was and is not a citizen. Further, if the correct subject of proof is as contended for by the appellant, the Minister did not prove that Mr McHugh was not an Aboriginal Australian.

62    Embedded within the conclusion of a failure to prove the lawfulness of the detention, is the assumption or proposition that Mr McHugh brought forward sufficient material for the Minister to be required to prove the lawfulness of the detention.

63    The proceeding before the primary judge and the appeal were conducted on the basis that the majority of the High Court in Love and Thoms rested their conception of Aboriginal Australian upon the tripartite test of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70: biological descent from Aboriginal people; personal identification as an Aboriginal person; and recognition as Aboriginal by other persons enjoying traditional authority amongst an Aboriginal society.

64    Mr McHugh is presently unaware of facts that would assist him prove biological descent. Does that mean he has failed to require the Minister to justify his detention by proof with clear and cogent evidence that the relevant person who detained Mr McHugh had a reasonable suspicion that Mr McHugh was an unlawful non-citizen, including that he was not an Aboriginal Australian, or that he is not an Aboriginal Australian? The answer in my view is, no.

65    This answer is appropriate for at least three reasons. First, the justification for his detention depends on proof of his detainer’s state of mind judged reasonably. Secondly, it is not clear that all avenues of exploration of the issue have been exhausted. Mr McHugh has suffered the disadvantage of being detained at all relevant times. At some point in the future, Mr McHugh may bear the onus of proving all these aspects of the test proposed by Brennan J in Mabo, though that is by no means clear. The time has not come for any such onus to be discharged by him, if it is for him to discharge. Mr McHugh has brought forward material that amounts to a case fit to be considered by the Court as to whether he should be detained. It is and was for the Minister to prove that his detention under s 189 is and was lawful. Thirdly, and related to the second point, it is far from clear, and not the subject of debate before us, by what relevant normative standard or standards the question of biological descent for the purposes of the tripartite test is to be assessed: Is it genealogical or biological descent strictly by blood, or does it include other features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law or custom? The question is to be posed and answered using the correct frame of reference or normative standard. The question is or may be more than one drawn from analytical jurisprudence or the principles of private international law as to the ascertainment of the proper law of a subject, once the subject is identified by a process of characterisation.

66    In any event, the Minister failed, at least for the reasons given by Mortimer J, to discharge the onus of proof assuming it to be directed to the question posited by the Minister: a reasonable suspicion of alien status by not being an Aboriginal Australian.

Orders

67    For the above reasons, Mr McHugh is entitled to the issue of the writ of habeas corpus and an order under the application for relief in the nature of a writ of habeas corpus that he be released from detention.

68    I would also make an order that the parties be at liberty to file short submissions as to any further order that need be made.

69    Mr McHugh’s future position may be affected by the issues raised but not argued, either fully or at all, of which there appear to be at least two: First, what is or are the correct question or questions to ask in addressing the justification of the detention of someone who claims to be a non-alien Aboriginal Australian? This involves the question of the proper Constitutional reach of s 189 as a law “with respect to” aliens. That question affects the nature and extent of the onus of proof upon the Minister: Does the Minister have to prove only a reasonable suspicion of alienage and non-Aboriginal Australian status or does the Minister have to prove that the person is not an Aboriginal Australian. The question may or may not be answered by reference to a rule referable to assertion or common sense as referred to in Plaintiff M47/2018 265 CLR at 299 [39]. If detention is linked (relevantly here) to deportation who bears the onus of showing the status of the person being put on the ship or aeroplane? If in the relevant legal and factual context the answer be: the Executive that is purporting to exercise the power, should it not likewise be the Executive when it detains the person (earlier) in aid of the power of deportation? Secondly, by reference to what facts will the reasonable suspicion or ultimate proof (whichever be the correct question) be judged? Relevantly here, by what normative standard or system of law (or custom) is the question of biological descent to be assessed?

70    These questions may arise in this, or another, form in any appeals brought by the Minister and Mr McHugh from the primary judge’s orders in respect of the Minister’s refusal to revoke the mandatory cancellation decision or in any fresh decision that the Minister may make. These questions appear to involve questions arising under or involving the interpretation of the Constitution.

71    I have referred on a number of occasions to issues not having been argued, either fully or at all. No criticism of counsel arguing the matter or their solicitors is thereby intended. The Court received careful and thoughtful assistance from counsel for both parties in a difficult matter raising important questions, for which assistance the Court is grateful. May I also say that though I disagree with the approach of the primary judge, his clear, thorough and prompt judgment assisted greatly the argument on appeal.

72    The orders that I would make are:

1.    The appeal be allowed.

2.    Order 4 made by the Court on 7 April 2020 be set aside and in lieu thereof it be ordered that:

(a)    A writ of habeas corpus issue.

(b)    An order in the nature of habeas corpus be made.

(c)    The applicant be released from detention forthwith.

(d)    The respondent pay the applicant’s costs.

3.    The respondent pay the appellant’s costs of the appeal.

4.    The parties have leave to file and serve within seven days short submissions as to the need for any further order.

Associate:

Dated:    11 December 2020

REASONS FOR JUDGMENT

BESANKO J:

73    I have had the advantage of reading the reasons for judgment of the Chief Justice and the reasons for judgment of Mortimer J. Mortimer J has summarised the relevant facts and the key conclusions of the primary judge and his Honour’s reasons for those conclusions. I gratefully adopt Mortimer J’s statement of those matters. I wish to make clear my reasons for joining in the orders proposed by the Chief Justice (at [72]).

74    I agree with what the Chief Justice has said about jurisdiction and s 476A of the Migration Act 1958 (Cth) (the Act) (at [6]–[19]). In particular, I agree that the authorities identified in his Honour’s reasons (at [15]) mean that the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision and, that the phrase “in relation to” has no width or flexibility in this context beyond that. I also agree with his Honour’s observation that the jurisdiction to exercise judicial review of the Minister’s decision under s 501CA can be seen to be a matter in which constitutional writs or an injunction is sought against the Minister (for s 39B(1)) or a matter arising under a law of the Parliament (at [18]).

75    I agree with what both the Chief Justice and Mortimer J have said about this Court’s power to issue a writ of habeas corpus or make an order in the nature of habeas corpus and there is nothing I wish to add to their Honour’s reasons in that respect (at [20]–[23] and [190]–[214]).

76    I agree with Mortimer J’s analysis of Grounds 5, 6 and 7 of the Notice of appeal (at [297]–[343]). I agree that Ground 5 fails. In circumstances where it is not necessary to address the Notice of contention, I refrain from doing so. I agree that Grounds 6 and 7 succeed. The appellant raised a sufficient case concerning the issue of citizenship and the issue of Australian Aboriginality to require an answer from the respondent in terms of the holding of a reasonable suspicion by the detaining officer or officers under s 189 of the Act. The fact that the relevant suspicion was held at the time of trial was simply not proved by the respondent. There is no direct evidence that an officer suspected that the appellant was an unlawful non-citizen at any time after September 2018 and it could not be presumed that the suspicion continued to the date of the Court’s decision for the reasons given by Mortimer J. I wish to make it clear that I am not to be taken as saying that the holding of the relevant suspicion cannot be proved by admissible written records or that the continuation of the relevant suspicion cannot be inferred from express evidence that the relevant suspicion was held at an earlier point in time (Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117; (2009) 181 FCR 1 at [140] per McKerracher J; Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 (Okwume) at [158] per Besanko J; Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 (Guo) at [83] per Jagot J). In other words, there is room for proof of the suspicion by admissible written records and for an inference to be drawn that an officer has continued to hold the relevant suspicion (Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (Ruddock v Taylor) at [51] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 378 ALR 501 at [69] per Besanko J). The proof required depends upon the circumstances of the case. The difficulty for the respondent in this case is the substantial lapse of time between the last piece of documentary evidence in September 2018 and the date of trial in March 2020 and the significance of the important decision in Love v Commonwealth [2020] HCA 3; (2020) 94 ALJR 198 (Love) which was handed down on 11 February 2020.

77    The conclusions to this point are sufficient to justify a writ of habeas corpus or an order in the nature of habeas corpus. The writ of habeas corpus is not a discretionary remedy. It is a writ of right, although not a writ of course. The difference between a writ of right and a writ of course is that in the case of the former, proper grounds for the issue of the writ must be shown. That does not mean, however, that in the case of the writ of habeas corpus, discretionary considerations are relevant. They are not. In Greene v Secretary of State for Home Affairs [1942] AC 284 (Greene), Lord Wright said the following as to the writ of habeas corpus (at 302):

It is clear that the writ of habeas corpus deals with the machinery of justice, not the substantive law, except in so far as it can be said that the right to have the writ is itself part of substantive law. It is essentially a procedural writ, the object of which is to enforce a legal right. The writ is described as being a writ of right, not a writ of course. The applicant must show a prima facie case that he is unlawfully detained. He cannot get it as he would get an original writ for initiating an action, but if he shows a prima facie case he is entitled to it as a right. The first question, therefore, in any habeas corpus proceeding is whether a prima facie case is shown by the applicant that his freedom is unlawfully interfered with, and the next step is to determine if the return is good and sufficient.

These observations are also relevant to the onus of proof which is discussed below.

(see also Farbey J and Sharp RJ, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2010) (Farbey and Sharp) at pp 52–53; Clark D and McCoy G, Habeas Corpus, Australia, New Zealand and The South Pacific, (2nd ed, Federation Press, 2018) (Clark and McCoy) at pp 251–254.)

78    The primary judge’s conclusions about the limitations on this Court’s jurisdiction (which this Court holds is erroneous) meant that he approached the issue of whether the appellant’s contention that he is an Australian citizen and therefore not within the terms of s 189(1) as if the appellant sought a declaration to that effect. The primary judge held that the appellant was not an Australian citizen. In essence, Ground 9 of the Notice of appeal is a challenge by the appellant to that conclusion. The facts relevant to the issue of citizenship are established and the issue is largely one of the proper construction of the relevant legislation. For the reasons given by Mortimer J and by the primary judge, the appellant has failed to prove that he is an Australian citizen. I agree with Mortimer J’s reasons and those of the primary judge with respect to that issue.

79    Ground 8 of the Notice of appeal is as follows:

Reasonableness of any suspicion for the purposes of s 189 and/or 196 of the Migration Act

8.    The primary judge was in error by concluding that an unidentified officer currently held a suspicion that was reasonable for the purposes of s 189 and/or s 196 of the Migration Act having regard to Mr McHugh’s entry on the Commonwealth electoral roll, understood in light of the presumption of regularity.

80    This ground relates to the reasonableness of any suspicion about citizenship held by an officer under s 189(1). Grounds 5, 6 and 7 address the issue of whether as a matter of fact a suspicion was held, and those grounds have already been dealt with. The suspicion under s 189(1) must be reasonable and that means a suspicion which could be held by a reasonable person in the circumstances (Ruddock v Taylor; Okwume at [134] per Besanko J). Ground 8 raises only the reasonableness of the suspicion as to citizenship. Whilst I largely agree with Mortimer J’s analysis with respect to this ground, I have difficulty in conceiving that Ground 8 could be upheld in light of the conclusion reached with respect to Ground 9.

81    I agree with Mortimer J’s disposition of Ground 2 of the Notice of appeal and there is nothing I wish to add.

82    That leads me to consideration of Grounds 3 and 4 of the Notice of appeal. They are in the following terms:

Burdens of proof in a detention challenge

2.    …

3.    The primary judge was in error by relying on the burden of proof in respect of an application for habeas corpus or relief in the nature of habeas corpus shifting three times in the ways described at [103] of his Honour’s reasons, when it shifts once.

Aboriginality and the Migration Act

4.    The primary judge was in error by relying on the notion that:

a.    the Minister's evidentiary burden to ‘present a prima facie justifiable basis for restraint’ was discharged by the ‘reasonable possibility of statutory power’;

b.    Alternatively to a, the Minister could discharge the burden by merely asserting constitutional alienage in respect of Mr McHugh’s Aboriginality;

c.    Alternatively to b, if Mr McHugh bears an initial burden of proof, its extent was as high as the primary judge held, namely requiring proof positive on each element of the tripartite test;

d.    Alternatively to c, Mr McHugh’s evidentiary burden was not met, by reason that there was prima facie evidence on each element of the tripartite test; or,

e.    Alternatively to d, the tripartite test requires independent, positive proof of each of the three element [sic] to meet a prima facie level of evidence.

83    There is no ground in the Notice of appeal which is equivalent to Ground 9 (which deals with the citizenship issue) where the appellant expressly claims that the primary judge erred in finding as part of his primary analysis that the appellant had not established that he is an Aboriginal Australian. The appellant claims that he is an Aboriginal Australian, but his arguments have been put to this Court in the context of a writ of habeas corpus and the reasonable suspicion required for his detention by s 189(1) of the Act. In this context, I should note that although counsel for the appellant alluded in a general way to the issues discussed by the Chief Justice in his reasons under the heading “The correct question to ask” (at [24]–[52]), he said that this Court did not need to decide those issues in this case. In other words, counsel for the appellant argued the case on the basis that, as far as the appellant’s claim that he is an Aboriginal Australian is concerned, he could be detained under s 189(1) if an officer reasonably suspected he was not an Aboriginal Australian. I respectfully agree with the Chief Justice’s discussion of the issues relating to the correct question to be asked as to the operation of s 189 of the Act and that it is not appropriate to answer the questions raised on this appeal.

84    With respect to the burden of proof, Mortimer J has summarised the primary judge’s analysis which involves four circumstances and a shifting of the onus on three occasions as follows (at [136]):

His Honour held (at [103]) that the onus shifts from one party to another in the following manner:

(a)    first, the applicant bears the onus of proof of showing that she or he is restrained;

(b)    second, the respondent bears the onus of showing “a prima facie justifiable basis for the restraint”;

(c)    third, the applicant bears an “initial evidential onus to raise a prima facie question as to the lawfulness of the restraint”;

(d)    fourth, the respondent bears “the ultimate legal onus of proving the lawfulness of the restraint”.

85    The primary judge’s analysis was informed to a large extent by the approach of T Forrest J in Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5 (Yoxon) and, in particular, his Honour’s observations as follows (at [35]–[40]):

35    Once the restraint is established the application shifts into a second phase and it falls to the respondent to justify the restraint by showing the legal authority which lies behind it. In this case, the justification offered for Mr Yoxon’s detention is that his parole order was purportedly cancelled, under s 77(1), with the purported consequence the original authority for his imprisonment, the sentence of 6 October 2010, was revived. Documentary evidence which supports this justification includes, but is not limited to, the record of orders made in the criminal jurisdiction of the County Court, on 6 October 2010, and the warrant for Mr Yoxon’s apprehension and return to prison, issued by the Board on 27 November 2014.

36    Where the fact of the restraint is proved, and the respondent offers no justification for that restraint, the application will succeed. The more complicated case is one in which the respondent produces some documentation to support the restraint but the applicant challenges the validity of the act or decision justifying it. Although it is still true to say that the respondent bears the legal onus of proof, the applicant will in such a case carry an initial, evidentiary, burden.

37    In Greene v Secretary of State for Home Affairs the applicant alleged that the Home Secretary had ordered his detention in bad faith, or without believing an allegation of ‘hostile relations’ which had been made against him and which provided the putative basis for his detention. The applicant failed to adduce any evidence which tended to prove either scenario. Lord Wright held, dismissing the application, that,

[The order for detention] is good on its face unless and until it is falsified… [The Home Secretary’s] statement would have been enough, at least in the first instance and until it appeared to the court that sufficient reason was shown to question it… Until there emerges a dispute of fact into which the court feels it should enquire, I think the defendant’s statement is enough.

38    Provided the applicant satisfies this initial evidentiary burden, the onus will, as I have said, shift absolutely to the respondent. As the Full Court of the Supreme Court of Western Australia observed in Dien v Manager of the Immigration Detention Centre,

The writ of habeas corpus will issue to determine whether statutory conditions which regulate or define the power to detain a person have been complied with: R v Governor of Brixton Prison, Ex parte Ahsan [1969] 2 QB 222.The applicant carries an initial burden of showing a prima facie case that the detention was unlawful. Upon this being shown the burden of proof is then cast on the authority detaining the applicant to prove any fact prescribed by the statute as a condition of the power of detention: R v Governor of Brixton Prison, Ex parte Ahsan, above; R v Home Secretary, Ex parte Khawaja [1984] AC 74 at 110-112 per Lord Scarman.

39    R v Governor of Brixton Prison; Ex Parte Ahsan is, as the Full Court observed, an earlier English authority for that principle. In that case, the applicants gave highly unreliable evidence that tended to prove the absence of an essential condition to the valid exercise of the relevant power of detention. Although the applicants were unable to prove that matter to the Court’s satisfaction, having raised it by their testimony it fell to the respondents to negative the applicants’ account. This was, the Court held, consistent with the notion that all detentions are prima facie illegal. The onus as stated is also consistent with the principle that, whilst there is ordinarily a presumption of the regularity of official acts, there ‘is no room for presumptions in favour of the executive where the liberty of the subject is concerned.’

40    Finally, the relevant standard of proof is the civil standard, although it ‘requires a degree of probability which is commensurate with the occasion.’ Because ‘the liberty of the applicant is at stake the issue is sufficiently grave to require strong, clear and cogent evidence.’

(Citations omitted, emphasis in original.)

86    These paragraphs were cited with apparent approval by Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 (M47/2018) at [39] and footnote 33. I will return to this point. The approach adopted by the primary judge which involved the shifting of the onus on three occasions was addressed in the closing submissions before him and each party was given the opportunity to formulate their respective cases by reference to this approach.

87    The history of the writ of habeas corpus and the extent to which the onus, legal or evidential, was affected by the procedure for the obtaining of the writ and, in particular, the rule nisi and rule absolute procedure, was not the subject of submissions by the parties. However, it would seem that the four circumstances and three changes in the onus identified by the primary judge reflects, or may well reflect, the nature of the procedure and the particular circumstances of a respondent’s return, for example, a return that there is a warrant of commitment. The differences in the older procedure for habeas corpus and the more modern procedure can be seen in a comparison of the High Court Rules 1952 (Cth) as to habeas corpus (O 55, r 38–46) and the High Court Rules 2004 (Cth) as amended in 2018 (Part 25, r 25.16).

88    With respect, the Court’s modern procedures and practices suggests to me that his Honour’s analysis is not the appropriate one in a case such as the present. The appellant issued an Originating application in which he claimed not only habeas corpus, but also judicial review of the respondent’s refusal to revoke the cancellation of his visa. Each party filed affidavits relevant to their case, including the appellant’s claim for habeas corpus, and the matter was then tried. In my respectful opinion, there is no second circumstance or onus as identified by the primary judge, or at least, there is none in the circumstances in which this case, having regard to the issues it raised, proceeded and was tried.

89    I would add that if I am wrong and there is a second circumstance or onus, I have difficulty in accepting the primary judge’s conclusion that it was satisfied by “a reasonable possibility that a statutory power, combined with the surrounding facts, will lawfully support the restraint” (at [117]). With respect, I do not consider that merely pointing to the reasonable possibility of a statutory power lawfully supporting the restraint satisfies any form of onus or burden.

90    In any event, there is no dispute in this case that the legal onus to prove detention was on the appellant and the legal onus to prove the lawfulness of the detention was on the respondent. The dispute relates to whether the appellant bore an initial evidential onus to raise a prima facie question as to the lawfulness of the restraint.

91    Counsel for the appellant submitted that while the appellant bore the onus of establishing that he has been detained, the Minister bore the onus of establishing the lawfulness of the detention. His primary submission was that the onus or burden of proof is not otherwise relevant and, in particular, he submitted that the appellant did not bear an evidential burden with respect to the lawfulness of his detention. In the alternative, he submitted that if the appellant had an evidential burden with respect to the lawfulness of his detention, it is “very, very low”. I reject the appellant’s primary submission. As to his alternative submission, I would not describe the evidential burden in that way.

92    In my opinion, there is ample authority for the proposition that a person detained has an evidential burden in relation to the lawfulness of the detention. In M47/2018, Kiefel CJ, Keane, Nettle and Edelman JJ said (at [39]):

… The plaintiff assumed, by his pleading, the burden of establishing those inferences as matters of fact (30). It is not only “an elementary rule of the law of evidence”, but “a rule of common sense” (31) that the burden of proof is upon the party who asserts a fact, not on the party who denies it. That is not to overlook that where, as here, the claim is one for habeas corpus, the onus is on the defendant Minister to justify the plaintiff’s detention (32). But where, as here, the plaintiff’s detention is apparently lawful – because it is admitted that the plaintiff is an unlawful non-citizen, and ss 189 and 196 of the Act are lawful authority to detain an unlawful non-citizen for the purpose of lawful removal from Australia as soon as that becomes practicable – the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia (33).

(33)    Greene v Secretary of State for Home Affairs [1942] AC 284 at 295, 306; cf R v Governor of Brixton Prison; Ex parte Ahsan [1963] 2 QB 222 at 231; Yoxon v Secretary to the Department of Justice (2015) 50 VR 5 at 14-15 [35]-[40]; and see Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, (2017) at [14-110].

(Footnotes omitted, other than (33))

93    I accept that the circumstances of M47/2018 were different from the circumstances in this case, but I do not think that their Honours were confining their comments to the particular circumstances of that case. In addition to Yoxon, their Honours referred to Greene and, in particular, the passages which suggest that there is in certain circumstances an onus on the applicant for the writ (at 295 and 306) and R v Governor of Brixton Prison; Ex parte Ahsan [1963] 2 QB 222 and, in particular, the observations of Lord Parker CJ (at 231). None of those cases suggest that their Honours were not identifying a general principle, the force or effect of which will depend on the particular circumstances of the case. The passage in Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability, (6th ed, Lawbook Co., Australia, 2017) at [14–110] is to similar effect and, in addition, reference may be made to Farbey and Sharp at pp 84–85, 232–234 and 236, and to Clark and McCoy at pp 236–238. Reference may also be made to R v Home Secretary; Ex parte Khawaja [1984] AC 74 (Khawaja) at 112 per Lord Scarman.

94    The statements in cases such as Okwume, Guo and Burgess about the onus of proof are not to the contrary. Those statements address the legal onus of proof. Whilst those cases do not refer to an evidential burden, that is because the satisfaction of such a burden was not an issue in dispute. A non-citizen’s visa is cancelled and he or she is taken into detention. Later the cancellation is set aside and, as a consequence, the person was, in fact, a lawful non-citizen throughout his or her detention. That is generally sufficient to satisfy any evidential burden and the issue does not arise in those circumstances or, at least, does not arise in a way which requires separate examination. I record the fact that those particular circumstances were not the case here because, although the primary judge quashed the respondent’s decision not to revoke the mandatory cancellation of the respondent’s visa, that decision was made after the decision which is the subject of this appeal (McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843).

95    The more difficult issue is to describe what the evidential burden requires. In M47/2018, Kiefel CJ, Keane, Nettle and Edelman JJ referred to “reasons to suppose” that the detention had ceased to be lawful. Lord Wright in Greene referred to a prima facie case that the person is unlawfully detained, as did Lord Scarman in Khawaja (at 112). Lord Scarman also referred to a case fit to be considered by the Court (at 111). Farbey and Sharp refer to “raising an issue as to the validity of the detention” (at 85), and Clark and McCoy refer to “the burden of establishing a prima facie case, or laying an evidential foundation” that the detention is unlawful (at 236). I will refer to a prima facie case that the detention is unlawful, but noting that the burden may be described in other ways. The burden is very fact sensitive and it may be decisive in one case and pass largely unnoticed in another.

96    The question then is whether the appellant discharged the evidential burden to show that he was an Aboriginal Australian. That is the only question. To repeat what I said earlier, the Court is not addressing the factual issues that might have arisen had the questions discussed by the Chief Justice (at [24]–[52]) been answered in a particular way. Nor is the Court considering a direct challenge to the primary judge’s conclusion (on his primary analysis) that the appellant had not satisfied the legal onus he bore to establish that s 189(1) of the Act did not apply to him because he is an Aboriginal Australian. As I have said, the appellant does not directly challenge that conclusion. His point is that this Court does have jurisdiction beyond merely determining whether s 189(1) applied to him (where he bore the legal onus), so as to include a claim for a writ of habeas corpus where, upon satisfaction of an evidential burden that he is an Aboriginal Australian, the legal onus is on the Minister to establish the lawfulness of his detention under s 189(1) of the Act.

97    Although Mortimer J has set out relevant parts of the appellant’s affidavit before the primary judge (at [286]), it is convenient to set out those parts again for the purposes of my analysis:

(a)    “The first I learned that I was not an Australian citizen was when I was put in immigration detention on 11 May 2018. Before that, no one had ever told me that I was either a lawful non-citizen or an unlawful non-citizen” (at [4]).

(b)    “I identify as and am recognised as being an Aboriginal Australian. I do not know if I am of Aboriginal biological descent” (at [6]).

(c)    “From about 1990, I lived with my wife in the Ardyaloon Aboriginal community of the Bardi Jawi people. We lived together there for twelve years then we separated” (at [7]).

(d)    “I have a traditional Bardi Jawi language name” (at [8]).

(e)    “The community spoke both English and Bardi. I know some Bardi” (at [9]).

(f)    “I had a ceremonial role in the community for the period that I lived within it. I put boys through the law to become men. I painted them, and sung and danced with them all night. I also participated in circumcision ceremonies. I had to carry them up a hill and if I stopped and dropped them I could be killed by the family. I had to prepare the place for ceremony. I had to collect the right wood and leaves for smoking the wound” (at [10]).

(g)    “I was initiated into the law of the men of the community. Out of respect for the law, I cannot say what the content of this is” (at [12]).

(h)    [after his separation] “I moved to Derby and married an Aboriginal woman there. I had two boys with her. She was a Bardi Jawi woman too and the children were raised in that tradition” (at [15]).

(i)    “I am recognized as Aboriginal by the Bardi Jawi people of the Ardyaloon One Arm Point Community, Dampier Peninsula, Western Australia, My seven children and their two mothers are of Bardi Jawi descent and all are born in the Kimberley region of Western Australia” (at [20]).

(j)    “I voted in a Commonwealth election in July 1987 for the first and only time” (at [26]).

(k)    [in 2017] “When I applied for a passport I provided my birth certificate, over 18 plus card, key card, Centrelink number and my granddaughter’s address. A passport was issued on 25 October 2017. I picked it up at a suburban post office in Darwin” (at [30]).

(l)    “If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen” (at [34]).

I would also add to this summary that the appellant’s evidence was that he does not know who his biological father was and he knows nothing about him. He does not believe that his mother was of Aboriginal descent, but he does not know much about her at all.

98    Counsel for the appellant (consistent with his primary submission and his alternative submission) submitted that the appellant had provided more information than he needed to in order to satisfy whatever evidential burden he had. It would have been sufficient, so the submission went, for him to assert that he is an Aboriginal Australian. I reject that submission. A mere assertion by the appellant to that effect would not establish a prima facie case that the appellant is an Aboriginal Australian.

99    In Love, the majority of Bell, Nettle, Gordon and Edelman JJ held that Aboriginal Australians were not aliens within s 51(xix) of the Constitution and that s 14 or s 189(1) of the Act, or both, had to be read down accordingly (Acts Interpretation Act 1901 (Cth) s 15A). An Aboriginal Australian was a person who satisfied the tripartite test. That test was described by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)) at 70 as follows:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

100    The starting point for determining whether the appellant satisfied the evidential burden to show that he is an Aboriginal Australian is the evidence he advanced. The appellant’s evidence is sufficient to satisfy the evidential burden with respect to the second and third elements of the tripartite test and I did not understand the respondent to contend to the contrary. In any event, I find that the appellant’s evidence is sufficient to satisfy the second and third elements of the tripartite test.

101    As to the first element of the tripartite test, the appellant’s evidence is that he does not know if he is of Aboriginal descent. His evidence is that he does not know who his biological father was and he knows nothing about him. He does not believe that his mother was of Aboriginal descent, but he does not know much about her at all. The respondent submitted, and I agree, that the tripartite test focuses on a particular Aboriginal community for each limb of the test and that it follows that the appellant would need to establish biological descent from the Bardi Jawi society.

102    The appellant’s counsel expressly accepted in the course of his submissions that the test of whether a person is an Aboriginal Australian is the tripartite test as stated in Love by reference to Mabo (No 2). That was the basis upon which the case was conducted before the primary judge (McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [198]).

103    Having said that, the appellant’s submissions at times suggested, or came close to suggesting, that satisfaction of two of the three elements, in this case self-identification and community recognition, is sufficient to establish that a person is an Aboriginal Australian. I reject any suggestion that satisfaction of anything less than the tripartite test is sufficient. Not only would that be inconsistent with the way in which this case was conducted, but more importantly, it would involve a modification or variation of the tripartite test laid down by the High Court in Love. In my respectful opinion, any modification or variation of the tripartite test is a matter for the High Court.

104    The appellant sought to overcome the submission that he had not satisfied the evidential burden with respect to the first element of the tripartite test by reference to the following arguments.

105    First, the appellant referred to cases in which it has been said that the use in statutory provisions or Letter Patent of words such as “European” and “native” (Ofu-Koloi v The Queen (1956) 96 CLR 172) or “Aboriginal” (Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 (A-G v Queensland)) or “Aborigine” (Stevenson v Yasso [2006] QCA 40; (2006) 2 Qd R 150) are to be interpreted having regard to broad and vernacular usage and not by reference to scientific or technical usage or the result of an ethnological inquiry of a scientific, historical or scholarly character. The difficulty with this approach is that it is not the tripartite test which is the approach to be applied in this case.

106    Secondly, the appellant referred to the decision of the New South Wales Court of Appeal in Hackett (a Pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; (2020) 379 ALR 248 (Hackett). In that case, the Court of Appeal addressed the construction and application of the test for “Aboriginal child” under s 4 of the Adoption Act 2000 (NSW). Leeming JA said that to be an Aboriginal child there was no need for the child to have a specified proportion of genetic inheritance (at [53]). That proposition, applied generally, was accepted by the respondent in this case. Basten JA (with whom McCallum JA agreed at [176]) discussed the difficulties of showing that a child is of Aboriginal descent (at [173]). The difficulties for the appellant in obtaining support for his arguments from this case were pointed out by the respondent. Hackett was a case which concerned the interpretation of a State Act that defined “Aboriginal child” either by reference to descent, or by reference to the three-part test that included membership of the “Aboriginal race”. As the respondent submitted, Hackett does not cast any doubt on the relevance of descent generally, let alone the relevance of descent for the meaning of Aboriginal person for constitutional purposes (see Basten JA at [153] and [154]).

107    Thirdly, the appellant raised the possibility of customary adoption and that this was sufficient to satisfy the first element of the tripartite test. The submissions about this possibility were limited. To the extent the possibility was raised, I think that it was sufficiently answered by the respondent’s submissions which were as follows: (1) cultural adoption does not demonstrate that a person is of “Aboriginal descent” for the purposes of s 51(xix); (2) the evidence of cultural recognition is too equivocal to support the inference that the appellant has been adopted in accordance with customary law; and (3) there is no evidence before the Court of customary law of the Bardi Jawi allowing for adoption or its terms.

108    Fourthly, the appellant submitted, correctly, that there is authority to the effect that if self-identification and community recognition are present, those matters can assist in establishing Aboriginal descent. In other words, self-identification and community recognition may logically be probative of descent (A-G v Queensland at 132–133 per Spender J; Gibbs v Capewell (1995) 54 FCR 503 at 510 per Drummond J; Shaw v Wolf (1998) 83 FCR 113 at 120 per Merkel J). Whether they are probative of descent, and the extent to which they are, depends on the circumstances of the case. I consider that this avenue of proof is open to the appellant in this case. I accept the respondent’s submission that this case is not strong on the evidence presently available. It is certainly not as strong as the case of a young child growing up in a community and being recognised by that community. In this case, the appellant was born in the Cook Islands in 1968 and thereby became a citizen of New Zealand. He came to Australia in February 1975 when he was seven years old. On the evidence, it was not until 1990 when he was 22 years old that he came to live with his wife in the Ardyaloon Aboriginal Community of the Bardi Jawi people. He lived with his wife in the community for 12 years and they then separated.

109    The respondent’s submissions have obvious force, but they do not persuade me that in this case self-identification and community recognition can be ruled out at this stage as an avenue of proof of descent.

110    Finally, the appellant referred to certain factual matters which are not a separate argument, but rather support his other arguments. First, he referred to the very limited opportunity he has had due to his detention to assemble evidence of his descent. Clearly, this cannot be a major matter, but I think some account may be taken of it in considering the evidential burden. Secondly, the appellant points to a Centrelink record before the primary judge showing that he claimed to be Aboriginal in 1990. The record does not show the basis of the claim at that time, but the fact of the claim does show that his claim is not a recent one.

111    Not without some hesitation, I have decided that the appellant did satisfy the evidential burden to show that he is an Aboriginal Australian. It must be remembered that the burden is an evidential one, not a legal one and it is a burden which has been described in a variety of ways in the authorities. In the context of an evidential burden, and I stress that, his case of self-identification and community recognition is clear and cogent and those matters can be logically probative of descent.

Associate:    

Dated:    11 December 2020

REASONS FOR JUDGMENT

MORTIMER J:

112    This appeal raises a number of jurisdictional and substantive questions, some of which flow from the High Court’s decision in Love v Commonwealth [2020] HCA 3; 94 ALJR 198, others of which concern the role of this Court in claims of unlawful executive detention, and the correct approach to such claims.

113    For the reasons set out below I would uphold several of the appellant’s grounds of appeal, and therefore allow the appeal in part. I agree with the orders proposed by the Chief Justice.

BACKGROUND

114    The factual background to this appeal is not in dispute and was summarised at [3]-[10] of the primary judge’s reasons:

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). …

115    An absorbed person visa is a statutory visa, for which there is no application, nor any notice to a person that she or he holds such a visa. Section 34 of the Migration Act 1958 (Cth) provides:

Absorbed person visas

(1)    There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.

(2)    A non‑citizen in the migration zone who:

(a)    on 2 April 1984 was in Australia; and

(b)    before that date, had ceased to be an immigrant; and

(c)    on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

(d)    immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.

(3)    Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to absorbed person visas.

116    There have been no changes to s 34 relevant to Mr McHugh’s circumstances since 1 September 1994, which is when the Minister contends the appellant was taken to have been granted this visa.

117    It was this visa which was cancelled by operation of law under the mandatory cancellation provisions in s 501(3A) of the Migration Act. When the appellant was informed of the cancellation, and of his entitlement to make representations as to reasons to revoke that cancellation, he did so. He contended that he thought he was an Australian citizen. In the alternative, he contended there were reasons the visa cancellation should be revoked as a matter of discretion.

118    It is worthwhile extracting from the evidence the way the appellant described himself to the Minister, both as an Australian citizen and in terms of his identification with the Aboriginal community at One Arm Point in the Kimberley in Western Australia, which is a Bardi Jarwi community. It should be noted that at this stage the appellant was not legally represented, and Love/Thoms had not been decided:

I arrived in Australia with my biological mothers cousin, Maryanne McHugh and husband Kevin McHugh at the age of 6, I was abandoned from birth, My Biological mother did not want me, she was 13 years old when giving birth to me and her mother and family didn’t want me and were shamed by the my birth because of the age of my biological mother, so i was given to my biological mothers cousins mother Te Ariki Turoa Simiona to raise me and so I was never in the care of my biological mother.

I grew up with whom I thought was my family until my adopted grandmother passed away in 1974, then Maryanne and Kevin McHugh came from Australia to get me in New Zealand and take me to Australia, me believing they were my parents as they cared for me before adopting me in 1976 I then became Edward Vainepoto McHugh, I did not know I was an adopted child until my dad Kevin McHugh told me 5 years ago. 2013.

I have 7 children in Australia and was in a defacto relationship with Kaylene Davey Hunter of which we have 5 children together Kaylene whom is of Aboriginal descent and I were together for 11 years, and we then both moved apart from each other, as I kept in touch with my children over the years helping when I could to raise my children,

…

All my children are of Aboriginal descent and from me as well.

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 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 Thank you.

(Errors in original.)

119    When describing (and seeking to explain) some of his offending:

W.A 30/10/2000 : I had 3 little packets of cannibis that I bought for myself and not for intent to sell I intended to smoke it, my family had just sold a bag of trocus shells as we do in one arm point and gave me 100 dollars for myself, the police found a smoking implement that didnt belong to anyone as everybody used it, my wife myself and my 4 of my sister inlaws and, my mother and father inlaw were all living in the same house as it was my mother and father inlaws house in One Arm Point an Aboriginal Community in the Kimberleys. …

W.A 28/04/2010 : I am now back with my first wife and taking my family to our fishing place near cape leveque and the police pulled me over and told me we are not aloud to drive on that road anymore, One Arm Point People have been using those roads for years before and now to go to there fishing or camping spots, I’m wondering why am I the only person ever to be pulled over for it with no license, I lived in One Arm Point for 11 to 12 years and have never before had to go through this problem in that community, as there were no bitumen roads.

(Errors in original.)

120    The Minister was informed, in the briefing note accompanying the revocation request, about Mr McHugh’s claims on these matters (at [63]):

Sensitivities

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.

121    On 23 August 2019, the Minister, exercising a personal power under s 501CA(4) of the Migration Act, decided not to revoke the visa cancellation. The appellant sought judicial review of that decision in this Court, still without legal representation. In the application he filed himself in this Court, under the heading “Details of relief sought”, the appellant stated:

 l.    That there is a serious question to be tried.

2.    It is within the court’s and applicant’s interest that applicant receive a fair hearing which has not been awarded to this case thus far.

 3.    Simple Ultra Vires.

 4.    Jurisdictional error at the threshold.

 5.    Quash decision.

 6.    Mandamus mandate decision maker does something.

 7.    Declare decision unlawful.

 8.    Grant injunction.

 9.    Compensation for unlawful detention from the period 11 May 2018.

122    The date of 11 May 2018 was the day on which the appellant was first placed in immigration detention. Thus, from the start of the proceeding in this Court, the appellant, at least in his own words as a layperson, was contending he had been unlawfully detained. When the passages above from his submissions to the Minister are taken into account, it is clear the appellant continued to contend he was an Australian citizen. At the time his application to this Court was filed, in October 2019, Love/Thoms had not been handed down.

123    The grounds of the application were listed as:

1.    Procedural unfairness.

2.    Ultra vires/jurisdictional error

124    The appellant secured legal representation prior to trial. On 11 March 2020, the first day of the trial, the primary judge granted leave for the appellant to rely on an amended originating application. It was in this amended originating application that the appellant sought (relevantly to this appeal):

(a)    “[r]elief in the nature of a writ of habeas corpus”;

(b)    an injunction restraining the Minister, including by his officers and agents, from “treating the Applicant as a non-citizen”; and

(c)    “[i]f the Applicant is not detained at the date of judgment, a declaration that he is a citizen of Australia.”

125    In the alternative, relief in respect of the Minister’s decision under s 501CA(4) was sought; namely, that the decision be quashed and the matter be remitted to the Minister for reconsideration according to law.

126    The grounds of the habeas corpus application were expressed as:

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).

127    The judicial review of the Minister’s decision was severed by the primary judge from the application for release from detention and habeas corpus. The primary judge rejected the appellant’s claims he was a citizen, and that he was not an alien, and his application for a writ of habeas corpus and associated relief was dismissed. This is an appeal from the orders in the proceeding reflecting those conclusions.

128    The appellant’s judicial review application of the Minister’s refusal to revoke the visa cancellation was heard and determined subsequently by the primary judge: see McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843. The Minister’s refusal to revoke the visa cancellation was set aside, and the matter remitted to the Minister to be determined according to law. The primary judge found (at [7]) that the Minister’s reasons

fail to consider the applicant’s clear and significant representations that he was an Australian citizen, and that he only learned about his visa after its cancellation.

129    Despite these orders, a notice of appeal was filed by the appellant. The notice of appeal contends the primary judge should have found the Minister was “equitably estopped from treating Mr McHugh as a non-citizen”. There has been no appeal filed by the Minister. The hearing of that appeal has been held in abeyance awaiting the outcome of the present appeal.

The primary judge’s reasons

130    The primary judge began by asking whether the Court had jurisdiction to hear the appellant’s application for a writ of habeas corpus (or, as his Honour described it, relief in the nature of a writ of habeas corpus). This question arose as a consequence of an objection taken by the Minister shortly prior to the hearing of the application. The focus of this part of his Honour’s reasons was s 476A(1) of the Migration Act, which provides:

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.

131    I return to the construction of s 476A(1) later in these reasons.

132    In short, and by reference to the provisions extracted at [178]-[180] below, his Honour concluded that detaining the appellant was a “migration decision” for the purposes of the broad definition of that term in the Act. Relying on the High Court’s decision in DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156 at [15], his Honour observed that s 476A(1) covers “public law remedies in the nature of judicial review”: at [68]. His Honour considered that the appellant’s application was in substance “an application for a public law remedy in the nature of direct judicial review of a migration decision”: at [83]. Consequently, his Honour held that the Court did not have jurisdiction to determine the appellant’s application for relief in the nature of habeas corpus.

133    Having reached that conclusion, the primary judge then proceeded to address the parties’ submissions on two alternative bases. First, that the Court did not have jurisdiction to determine the appellant’s application for relief in the nature of habeas corpus but did have jurisdiction to determine whether s 189(1) could validly apply to him, a matter conceded by the Minister. Second, and on the basis his jurisdictional finding was incorrect, whether the Court should grant relief in the nature of habeas corpus. His Honour referred to the first basis as the “primary analysis” and the second as the “alternative analysis”.

134    His Honour observed that two of the appellant’s arguments – whether the appellant is a non-alien either because he is an Aboriginal Australian or because he is an Australian citizen – were relevant to both analyses. There were, however, other issues arising only on the alternative analysis, which his Honour then dealt with first.

The primary judge’s reasoning on the “alternative analysis”

135    The first of these issues was where the onus of proof lies in an application for a writ of habeas corpus, or relief in the nature of habeas corpus. The primary judge did not distinguish between a “writ” of habeas corpus and “relief in the nature” of habeas corpus, and neither did the parties in their submissions on the appeal.

136    His Honour held (at [103]) that the onus shifts from one party to another in the following manner:

(a)    first, the applicant bears the onus of proof of showing that she or he is restrained;

(b)    second, the respondent bears the onus of showing “a prima facie justifiable basis for the restraint”;

(c)    third, the applicant bears an “initial evidential onus to raise a prima facie question as to the lawfulness of the restraint”;

(d)    fourth, the respondent bears “the ultimate legal onus of proving the lawfulness of the restraint”.

137    The primary judge adopted this “shifting burden” approach by reference to a large number of authorities set out at [103] of his reasons, including some of the authorities to which I refer below. The appellant challenges the primary judge’s approach in ground 2 of his appeal.

138    It was not in contention that the appellant was, and is, restrained, so the next question on his Honour’s approach was whether the respondent had shown a prima facie justifiable basis for the restraint. His Honour found that there was no direct evidence that an officer held the requisite suspicion for the purposes of s 189(1) of the Migration Act.

139    Section 189(1) 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.

140    But his Honour found the suspicion could be inferred on the basis of certain exhibits to an affidavit of Ms Jennifer Margaret Duff affirmed on 19 February 2020, including earlier “case reviews” of the appellant’s status. At trial, the appellant submitted that all such documents (and others the Minister ultimately did not rely on) were inadmissible hearsay, but the primary judge admitted them under the “business records” exception in s 69 of the Evidence Act 1995 (Cth). The most recent “case review” admitted into evidence was dated 20 September 2018: that is, approximately 18 months prior to the trial. However, relying on a “presumption of continuance”, his Honour inferred (at [181]) that an officer held the requisite suspicion as at the date of the Court’s orders. This finding, and the admission of evidence upon which it was based, is challenged in grounds 5-7 of the notice of appeal

141    His Honour then turned to the question whether this suspicion was reasonable, first addressing the appellant’s contention that he is an Aboriginal Australian and therefore not an alien. His Honour noted (at [198]) that the parties had proceeded on the basis that Love/Thoms identified the test to be applied in determining whether a person is an Aboriginal Australian was the tripartite test set out by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70, which requires that the person:

(a)    be a biological descendent of the Aboriginal people;

(b)    personally identify as an Aboriginal person; and

(c)    be recognised as Aboriginal by other persons enjoying traditional authority amongst an Aboriginal society.

142    The primary judge observed (at [196]-[197]) that there may be other approaches available, but none were urged on the Court in this matter. The appeal was conducted on the same basis.

143    His Honour found it was necessary for the appellant to prove each element of the test, as the third element of the “staged approach” he had found applied to a habeas corpus claim. After considering a number of authorities concerning the meaning and scope of Aboriginality, and the question of who bore the onus of proof on the appellant’s claim to be Aboriginal, the primary judge found (at [236]) that:

For the following reasons, the applicant’s submission regarding the onus of proof in relation to his claim to Aboriginality must be rejected for the purposes of both the primary analysis and alternative analysis in the present case.

144    From [237] the primary judge explained this conclusion under the primary analysis, where on his Honour’s reasoning the applicant bore the usual onus of proof, to the civil standard. He concluded (at [242]) that:

By not adducing any evidence as to his biological descent, the applicant has failed to prove that he [is a biological] descendent of the Aboriginal people. He has accordingly failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2).

145    The primary judge then turned (from [243]) to explain why, under the alternative analysis, the appellant could not succeed either.

146    At [245], the primary judge found that on the alternative analysis:

The problem for the applicant is that he has not identified any evidence capable of satisfying his initial evidential onus of proof in relation to his claim to Aboriginal descent. There is no evidence to prove that the applicant is Aboriginal. There is no evidence to disprove that he is Aboriginal. The scales of justice remain in equilibrium and, for present purposes, this spells the end of the applicant’s argument. For the purposes of the alternative analysis in the present case, the applicant, in respect of his claims to be unlawfully detained on the basis of his Aboriginality, has failed to satisfy this initial evidential onus. The result is that there is no requirement for the Minister to justify the applicant’s detention in respect of that particular alleged basis of unlawfulness.

(Bold emphasis added; italic emphasis in original.)

147    On the question whether the appellant was an Aboriginal Australian, the primary judge added at [246]-[247]:

Factual contests regarding the Aboriginality of non-citizens are an inevitable consequence of the High Court’s decision in Love. It may be difficult for a person to satisfy the relevant tripartite test to establish that they are an Aboriginal Australian. But, as Nettle J stated in Love at [281]:

… difficulty of proof … means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country.

It is worth returning to the maxim of Lord Mansfield in Blatch v Archer, as invoked by the plurality in Plaintiff M47/2018 (see above at [112]), that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. Where, such as in the present case, an issue as to the biological decent of a litigant is in issue, the primary power to prove that fact will, in most cases, be possessed by that litigant, and not an opposing party. I recognise that this principle may ring insincere in the circumstances of the applicant’s childhood in the present case, but in most cases the person whose descent is to be determined will be best placed to assemble any relevant evidence, testimonial or documentary, in relation to his or her line of ancestry.

148    From [248], the primary judge then addressed the appellant’s submission that he is an Australian citizen, which as his Honour noted (at [248]-[249]) was applicable to both the primary and alternative analyses. At [249]:

The enquiry into the applicant’s Australian citizenship is relevant to the primary analysis because the relevant detention and deportation provisions of the Migration Act, which are enacted under the “aliens” legislative power conferred by s 51(xix) of the Constitution, do not apply to Australian citizens. For the same reason, the enquiry into the applicant’s Australian citizenship is also relevant to the alternative analysis because, as noted above, the lawfulness of the applicant’s detention inherently informs the reasonableness of an officer’s suspicion under s 189(1) of the Migration Act that the applicant is an unlawful non-citizen.

149    The parties accepted, and the primary judge found (at [256]) that the appellant became, at the time of his birth, a New Zealand citizen:

The applicant was born in the Cook Islands in 1968. At that time, s 6 of the British Nationality and New Zealand Citizenship Act 1948 (NZ) relevantly provided that “every person born in New Zealand after the commencement of this Act shall be a New Zealand citizen by birth”. “New Zealand” was defined by s 2(1) of that Act as including the Cook Islands. For this reason, the applicant is a citizen of New Zealand.

150    In order to determine if the appellant was also an Australian citizen, the parties agreed the Court needed to look at the citizenship laws as they existed at and after the time the appellant arrived in Australia in 1975. It was common ground (and the Court found) that after his arrival in Australia the appellant acquired the status of a “British subject” under the Australian Citizenship Act 1948 (Cth).

151    In 1975, when the appellant arrived in Australia, the 1948 Citizenship Act provided for a person to acquire Australian citizenship by birth, by descent or by “grant” (which later became, in the subsequent legalisation, “conferral”). As the primary judge held at [264]:

It is accepted in the present case that:

(a)    there is no evidence that either of the applicant’s birth parents was an Australian citizen,

(b)    the applicant’s birth was not registered with an Australian consulate for the purposes of s 11(1) of the 1948 Citizenship Act; and

(c)    there is no evidence that any application was made by, or on behalf of, the applicant for a grant of citizenship under Div 2 of Pt III (comprising ss 12–15) of the 1948 Citizenship Act.

152    The applicant had put to the primary judge a complex argument about the construction of s 10 of the 1948 Citizenship Act, to the effect that the appellant should be understood to fall within the statutory phrase “born in Australia”, and so be an Australian citizen pursuant to s 10 of the 1948 Citizenship Act.

153    It was common ground that the appellant’s adoption in 1976 by an Australian citizen father could not bring him within the 1984 amendments extending Australian citizenship to persons adopted by an Australian citizen, because the provisions were not retrospective and only applied to persons adopted after 22 November 1984. However, the appellant put forward a different argument based on his adoption.

154    The appellant’s contention is summarised by the primary judge at [280]:

The applicant argues that he is “a person born in Australia” for the purposes of this statutory provision. Although the applicant accepts that he was physically born in the Cook Islands, he submits that this statutory phrase encapsulates the registration of his birth in Queensland after the making of an adoption order in that jurisdiction.

155    The appellant relied, as the primary judge explained at [284]-[285], on the registration of his birth in Queensland after he was adopted, which showed the ages of his adoptive father and mother as 15 and 19 years respectively: that is, the ages they would have been if the appellant had been born to them at the time he was, in fact, born. He contended that this form of birth certificate reflected the operation of s 31 of the Adoption of Children Act 1964 (Qld), which provided:

(1)    Subject to this section, upon the making of an adoption order, the adopted child acquires the domicile of the adopter or adopters at the date of the adoption order and the child’s domicile thereafter shall be determined as if the child had been born in lawful wedlock to that adopter or those adopters.

(2)    The domicile acquired, upon the making of the order, by the child under subsection (1) of this section shall be deemed to be also the child’s domicile of origin.

156    The appellant’s argument hinged on the particular meaning given to the phrase “domicile of origin” which he contended carried the same meaning and effect as “place of birth”. The primary judge carefully and thoroughly set out the appellant’s argument on this matter, the sources upon which the appellant relied, the legal arguments, and the policy said to be pursued by s 31 of the Queensland Adoption Act, at [288]-[315]. From [316], his Honour returned to the question of the proper construction of s 10(1) of the 1948 Citizenship Act, and at [321]-[322] rejected the appellant’s contentions:

The clear intention of s 11(1) is to permit a person born outside Australia after the prescribed date (being a person to whom s 10(1) inherently does not apply) to obtain citizenship where he or she possesses by descent a requisite connection to Australia (or another country under British subjection as defined). Were “born in Australia” in s 10(1) to be construed as including a person who was physically born outside of Australia, but then had their domicile of origin deemed by State law to be Australia, such an interpretation would have the effect of undermining the statutory design underlying s 11(1). That design notably includes the requirement for a relevant person’s birth to be registered at an Australian consulate within five years of the birth.

This alludes to the central flaw underlying the applicant’s claim to Australian citizenship. Citizenship is a statutory concept: Singh at [311] per Callinan J; Love at [244] and [280] per Nettle J. Until the enactment of the Nationality and Citizenship Act 1948 (Cth) (which then became the 1948 Citizenship Act), there was no concept in law of Australian citizenship: Love at [306] per Gordon J; Rubenstein’s Australian Citizenship Law at [1.40]. Upon enactment, s 10(1) was in the same terms as that in 1976 (as considered above), and granted citizenship to “a person born in Australia”. That is the particular concept of citizenship by birth defined by the Commonwealth Parliament. Why, I ask rhetorically, would a State law coming into existence about sixteen years later influence the construction of a pre-existing Commonwealth law enacted by a different legislature? There is no statutory indication that the phrase “born in Australia” under s 10(1) of the 1948 Citizenship Act was intended to “pick up” a person’s domicile of origin. This is unsurprising given the concepts of domicile of origin and place of birth are not interchangeable, as explained above. Moreover, in any event, strong and direct statutory language from the Commonwealth Parliament would surely be required to enable a person’s entitlement to citizenship under Commonwealth law to be influenced by future acts of State Parliaments. Certainly, no such language exists in the present case.

157    From [324], the primary judge explained and considered the appellant’s contentions that the Minister could not prove the appellant is not an Australian citizen, and that the evidence suggested he should be presumed to be one, by reason of his enrolment on the Commonwealth electoral roll, the fact that he voted at federal elections in 1987, and the fact that in 2017 he applied for and was granted an Australian passport. The appellant had deposed, and the Minister did not dispute, that he first learned that he was not an Australian citizen was when he was put in immigration detention on 11 May 2018. From [329]-[337] the primary judge discussed the principles he saw as applicable to explaining the content and operation of the presumption of regularity. From [338]-[350] the primary judge explained why he did not accept the appellant’s arguments, describing the presumption (at [339]) as no more than an evidential presumption and finding (at [341]) that it did not “facilitate proof of the lawfulness of an act that is, in reality, patently unlawful”. His Honour concluded at [349]:

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.

158    His Honour added at [350]:

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.

159    At [351]-[352], the primary judge summarised his findings on both analyses:

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.

160    These findings meant the primary judge rejected the appellant’s case of unlawful detention under s 189(1) in exercise of the jurisdiction his Honour agreed the Court had to examine that issue; namely, a jurisdiction in which the appellant bore the onus of proof: see [354]-[355].

161    His Honour then returned to the “alternative analysis”, the habeas corpus claim, and dealt with the question of the reasonableness of the officer’s suspicion under s 189. Based on the 2018 documents, the primary judge found (at [360]-[369]) there were sufficient objective circumstances to give rise to a reasonable suspicion in the present detaining officers (although the evidence did not specify who they were). His Honour found those circumstances to be (at [359]):

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.

162    At [371]-[374], the primary judge summarised his conclusions on the “alternative analysis”, taking into account the “shifting burden” approach he had determined to be applicable:

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.

163    The primary judge accordingly dismissed the application, and in [377] of his reasons, added for clarity that the Court found the appellant to be an alien for the purposes of s 51(xix) of the Constitution.

GROUNDS OF APPEAL

164    The appellant advanced nine grounds of appeal.

165    The appellant submitted that the primary judge had erred in finding that the Court did not have jurisdiction to hear his application for a writ of habeas corpus because of s 476A of the Migration Act. This was the subject of ground 1.

166    The appellant submitted that the primary judge had erred “by relying on the notion that a detained person bears the legal onus of proving the unlawfulness of his restraint on an application for habeas corpus” or by relying on the burden of proof shifting, as described by his Honour. This was the subject of grounds 2 and 3.

167    The appellant advanced five alternative submissions in relation to his Aboriginality and the burden of proof required to be discharged in relation to his detention; namely, that the primary judge had erred in finding that:

(a)    the Minister’s evidentiary burden to “present a prima facie justifiable basis for restraint” was discharged by the “reasonable possibility of statutory power”;

(b)    the Minister could discharge the burden by merely asserting constitutional alienage in respect of Mr McHugh’s Aboriginality;

(c)    if the appellant bore the initial onus of proof, it required positive proof of each element of the tripartite test;

(d)    if the appellant bore the initial onus of proof, it was not met by prima facie evidence that each element of the tripartite test was satisfied; or

(e)    the tripartite test requires independent, positive proof of each of the three elements to meet a prima facie level of evidence.

This was the subject of ground 4.

168    In relation to the question of whether an officer held a reasonable suspicion for the purposes of s 189 and/or s 196 of the Migration Act, the appellant submitted that the primary judge had erred by:

(a)    admitting hearsay evidence, being certain annexures to Ms Duff’s affidavit;

(b)    relying on a “presumption of continuance” in relation to a suspicion in September 2018;

(c)    inferring there was such a suspicion; or

(d)    holding that any suspicion was reasonable.

This was the subject of grounds 5 to 8. These grounds went only to the circumstance where this Court had jurisdiction to hear and determine the application for an order in the nature of habeas corpus.

169    Lastly, in ground 9, the appellant submitted that the primary judge erred in construing the phrase “born in Australia” in s 10 of the 1948 Citizenship Act as being limited to “physical birth … within the geographical territory of Australia”.

Post-hearing submissions

170    After the hearing of this appeal, on 5 August 2020, the High Court handed down its decision in Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740, which concerned the question of whether a person who was unlawfully detained, but who would have been detained anyway (lawfully), was entitled to more than nominal damages. In four separate judgments, the High Court held he was not. The parties were invited to make short submissions about the decision.

171    The appellant submits that the reasons of Gageler J support the arguments he advanced on this appeal. The appellant points to his Honour’s statement that, “where the plaintiff establishes the element of detention”, “the onus shift[s] to the defendant to negative the element of unlawfulness”: at [24]. The appellant submits that the fact that his Honour did not cite Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 also supports his submission that that case can be distinguished.

172    The Minister submits that Lewis does not bear on the central question with which this appeal is concerned; namely, whether there is lawful authority to detain the appellant. The Minister submits that, so far as the appellant relies on Gageler J’s judgment, his Honour’s reasons recite fundamental principles that are consistent with the primary judge’s decision.

RESOLUTION

Uncontested jurisdiction

173    The Minister conceded at trial, and on the appeal, that while in his submission s 476A prevents “direct review” of an exercise of power under s 189 (including by way of an application for habeas corpus), it does not prevent two other kinds of challenges.

174    First, it does not prevent a collateral challenge to the lawfulness of the appellant’s detention, as a step in the seeking of other relief, such as damages for false imprisonment. The Minister refers in this context to Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [7], referring to the rejection of such a proposition by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651; Okwume v Commonwealth [2016] FCA 1252 at [28] and DBE17 at [15].

175    Second, the Minister concedes this Court has original jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to determine whether s 189 is capable of applying to an individual, and here, to the appellant because he is not an alien. And, I would add, also because he claims he is an Australian citizen. These are jurisdictional preconditions to the executive detention power in s 189(1).

176    The appellant’s amended originating application did not seek damages for false imprisonment, although the appellant’s initial originating application, filed before he was legally represented, did seek “compensation for unlawful detention”. However, the amended originating application on which the trial was conducted made no claim in tort. In my opinion, the first of the Minister’s two concessions does not apply to the current proceeding, and the primary judge correctly did not proceed on this basis.

177    The second concession plainly does apply, and the primary judge accepted as much in his “primary analysis”. Therefore, one way in which this Court could have original jurisdiction, under s 39B(1A)(c) of the Judiciary Act, is if there is a “matter” arising between the parties whether the appellant is an alien, or an Australian citizen, for the purposes of the Migration Act, and the terms of s 189(1). The Court could determine the matter, however the appellant would have the burden of proving he is not an alien, either because he is an Australian citizen or because he is a non-citizen Aboriginal Australian. The primary judge found that s 189 was capable of applying to the appellant on the basis that the appellant had failed to establish that he is an Aboriginal Australian and had failed to establish that he is a citizen. On appeal, the appellant put in issue the second finding, but not the first. The question whether or not the appellant is an Aboriginal Australian only arose in the context of the appellant’s arguments about whether the conditions in s 189 were satisfied.

Ground 1: this Court’s jurisdiction to grant habeas corpus

The arguments

178    Section 5 of the Act defines “migration decision” to include, relevantly, “a privative clause decision”. That section provides that “privative clause decision” has the meaning given by s 474(2).

179    Section 474(2) provides:

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).

Subsections (4) and (5) are not presently relevant.

180    Section 474(3) provides an inclusive and broad definition of the term “decision” in s 475(2):

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.

181    The Minister contends the performance of the duty in s 189(1) is a “decision” which is “required to be made” for the purposes of s 474(2). The formation by an officer of the requisite state of mind for the purposes of s 189, and the taking of an action (detaining and keeping in detention) can readily be described as a “decision”, because it is “doing or refusing to do an act or thing”. The Minister calls in aid the reasons of Besanko J in Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 (Okwume (FC)) at [5], where his Honour said:

Two or possibly more decisions (and it will become clear what I mean by that later in these reasons) were made on 21 July 2005 which are critical to the issues raised on these appeals. They are a decision to cancel a visa held by Mr Okwume and a decision to detain him.

182    The appellant advances two arguments against the Minister’s objection to jurisdiction.

183    First, that the primary judge was correct to find that s 476A is limited to public law remedies in the nature of judicial review but wrong to find that habeas corpus is such a remedy. Instead, the appellant submits, habeas corpus is a common law remedy and is a form of relief available as against government officials and private citizens. It follows on this argument that s 476A is not engaged by the appellant’s application.

184    Second, and in the alternative, the appellant submits that no government official is required to make a “decision” under s 189; if the relevant condition is satisfied – namely, 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 person is detained as an “inevitable consequence” or “reflex”, not a “decision”.

185    Contained within the second submission is a direct challenge to the primary judge’s reasoning that detaining a person under s 189 falls within the meaning of s 474(2): “doing or refusing to do any other act or thing”. The error in this reasoning, the appellant submits, is that it fails to take into account s 474(1), which provides:

A privative clause decision:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

186    Detention under s 189 is said by the appellant not to be “final and conclusive”, and therefore not properly characterised as a “decision”.

187    As I will explain, I consider ground 1 should be upheld, on the basis that this Court has power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to issue a writ of habeas corpus, or an order in the nature of habeas corpus, and where the Court otherwise has jurisdiction under s 476A (which was the situation here before the primary judge). It has not been ousted or limited in any way by the terms of s 476A.

This Court’s jurisdiction and power

188    With respect to the primary judge, and despite the parties’ contentions, I do not consider the question in dispute is whether or not this Court, as a statutory court, has original jurisdiction to issue a writ of habeas corpus, or – to express it differently – to make an order in nature of habeas corpus. The correct question is, if it otherwise has jurisdiction “in relation to” a “migration decision”, whether the Court has power to grant such relief.

189    Habeas corpus has long been recognised in this country as an appropriate form of relief to be sought for unlawful executive detention. In Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 at 556, Latham CJ said:

The power to hold [a deportee] in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.

See also Dixon J at 581 and Williams J at 586.

190    Habeas corpus is no more than a form of order which could be granted in an appropriate case under s 23 of the Federal Court of Australia Act, which provides:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

(Emphasis added.)

191    There are numerous other references in the Federal Court of Australia Act to this Court issuing “writs”: see ss 18BAA(1)(b), 37(1), 40, 54(3) and 55.

192    In general terms, and without attempting a description to match many of the learned writing on the subject, a writ was (an originally executive) command to a person to do something or not do something, which also functioned as the method by which a legal proceeding would be commenced. In Professor Baker’s Introduction to English Legal History (5th ed) the document itself is described (at 64):

A writ (breve in Latin, brief in French) was a strip of parchment containing a letter in the name of the king, usually written (until 1731) in Latin, and sealed with the edge of the great seal. That is as much as can be said by way of generalization about the nature of writs, because their contents varied from one form of action to another.

(Footnote omitted.)

193    At pp 60-63, Professor Baker describes how the use of a writ came about:

In their earliest form, legal proceedings were commenced, or ‘originated’, when a plaintiff made his complaint or demand before a court in due form. At one time the plaint itself was enough to set the process of justice in motion, and it did not have to be written. In the early days of itinerant royal justice, when complaints were made orally before the justices in eyre, this was merely a continuation of existing procedure in the county. The use of bills of complaint gave written expression to the same process. Where, however, a plaintiff wished to originate a suit in the Common Pleas, or in the King’s Bench when sitting in a different county from that where the facts arose, he had to purchase a royal writ from the king’s Chancery to authorize it. The reason is that the two benches, though destined to become the ordinary and regular courts of law, were at first exceptional. In them the king was not merely taking over a traditional system, rooted in the county court, but was offering a new and separate form of justice. This alternative justice was a royal favour before it became a right, and those prepared to pay for the advantage of suing outside the regular system had to obtain a grant of that favour in the form of an ‘original writ’. The writ worked like a pass admitting a suitor to the court, and to the kind of justice for which he had paid, and there were different kinds of pass for different purposes. By 1200 many types of writ had become common form in the Chancery and were issued on payment of a regulated fee; whether standard or specially devised, the writ was increasingly commonplace, and in the course of the thirteenth century (as eyres declined) it would become the normal prerequisite to litigation in Westminster Hall.

…

The earliest kinds of writ to originate actions in the king’s court either ordered an enquiry into facts or combined an executive command with an option. Writs of the first type, known as the ‘petty assizes’, ordered the sheriff to summon men of the vicinity to answer a question framed in the writ, and to summon the defendant to be there to hear the answer. They were invented in the second half of the twelfth century … The second type of writ (called a praecipe) ordered the sheriff to convey a command to the defendant, coupled with the alternative of coming before the king’s court to explain why the command was not obeyed. This type was also introduced in the twelfth century.

…

These writs addressed to the sheriff did not, like an eyre or assize commission, confer jurisdiction on a court directly, but authorized the initiation of proceedings by the sheriff. An original writ was ‘returnable’ into a specified court: that is, the sheriff had to send the writ to the court, endorsed with a report (called the ‘return’) on the action he had taken. It was only on receipt of the returned writ that the justices acquired jurisdiction over the matter, and only to the extent mentioned in the writ; but they could themselves issue further returnable writs (called ‘judicial writs’) to secure the attendance of the defendant and continue the action through its further stages. Each returned writ was placed on file as the court’s warrant for the next step taken.

…

The choice of original writ governed the whole course of litigation from beginning to end, since the procedures and methods of trial available in an action commenced by one kind of writ were not necessarily available in another. The classification of writs was therefore more than just a convenient arrangement of precedent books for reference purposes; it was a classification of actions, and in course of time a map of the substantive outlines of the common law.

(Footnote omitted)

194    At 156-157, Professor Baker explains the origins of the writ of habeas corpus, in its several forms:

The words ‘habeas corpus’ (have the body) occurred in the common judicial writs of capias and latitat, in the Chancery subpoena, and in the habeas corpora juratorum to compel the attendance of jurors. Another use was in cases of privilege; an officer of a central court, or a litigant there, could be transferred from imprisonment in another court by writ of privilege in habeas corpus form, to prevent his being drawn away from attendance. The Court of Chancery at the same time developed the corpus cum causa for reviewing any cause of imprisonment by an inferior tribunal, and this became a common remedy against the misuse of borough jurisdiction in the fifteenth century. Both procedures suggested a means of challenging the causes of any imprisonment. The King’s Bench developed the more general writ of habeas corpus ad subjiciendum in the sixteenth century, and besides its more mundane uses it enabled subjects to challenge unconstitutional imprisonment by privy councillors and officers of state; it ordered the person detaining the prisoner to have his body before the court together with the reason for his detention. After reviewing the reason so returned, the court could release, bail, or remand the prisoner as appropriate. The procedure was resisted by some of Elizabeth I’s ministers but was firmly established after the judges submitted a memorial to the queen, complaining of interference with due process, in 1591.

(Footnotes omitted.)

195    As Clark and McCoy explain (Habeas Corpus, 2nd ed at 21), there are early common law decisions in Australia where the writ was issued, such as Ex p Susannah Nicholls (1845) Reserved & Equity Judgments of NSW 11 at 12, which was in fact an application to set aside an order for release of the complainant’s husband, where the husband had been imprisoned for failing to pay maintenance. The jurisdiction given to State Supreme Courts to issue habeas corpus, amongst other prerogative writs, has been described by the High Court as a “defining characteristic of those courts”: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [98].

196    In contrast, habeas corpus was not one of the prerogative writs included in s 75(v) of the Constitution. Clark and McCoy note (at 23) that during the Convention Debates in March 1898 Sir Edmund Barton asserted its inclusion was unnecessary because it “is one of the rights which the subject carries with him so long as he is within British territory”.

197    When in 1994 David Eastman made an ex parte application in the High Court for a writ of habeas corpus addressed to the “Police Officer in Charge of the Cells, ACT Supreme Court, Knowles Place, Canberra”, Deane J considered the “first question” of the Court’s jurisdiction to issue the writ: see Re Officer In Charge of the Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; 123 ALR 478. Noting the terms of s 75(v) and also s 33(1)(f) of the Judiciary Act, his Honour held (by reference to a number of authorities) that

the power to order the issue of such a writ under s 33(1)(f) can be exercised only as an incident of the exercise of the original or appellate jurisdiction of the court under other provisions.

(Footnote omitted.)

198    Deane J doubted the Court had any original or appellate jurisdiction to which the writ could attach. His Honour referred to Mr Eastman’s claim as being capable of being framed under s 75(iii) of the Constitution, although it currently was not. Deane J dismissed the application on its merits.

199    The position set out by Deane J is no doubt also the position in this Court: being a statutory court, and putting to one side any accrued jurisdiction, the Court’s primary jurisdiction in a matter must be identified by reference to statute. However, in my respectful opinion, if the Court otherwise has jurisdiction, then as Deane J explained by reference to s 33(1)(f) of the Judiciary Act in respect of the High Court, the power in s 23 of the Federal Court of Australia Act to issue a writ of habeas corpus can be exercised as an incident of the exercise of this Court’s original (or appellate) jurisdiction, where otherwise regularly invoked. I also respectfully agree with [21] of the Chief Justice’s reasons.

200    An early example in this Court is the decision of Sackville J in Guo v Minister of Immigration and Ethnic Affairs (1995) 38 ALD 38. That case was a precursor to the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559. It was a judicial review application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In other words, the AD(JR)Act was the source of the Court’s jurisdiction. Amongst the other relief sought, a writ of habeas corpus was sought in respect of the principal applicant’s two nieces, then aged 9 and 12, who had been in immigration detention by this stage for some 16 months. While Sackville J rejected the application (at 79) there is no suggestion that: first, the Commonwealth (represented by highly capable and experienced senior and junior counsel) challenged the Court’s jurisdiction to grant that remedy; and second, that Sackville J saw any jurisdictional (or power) issue with habeas corpus being sought.

201    The position has continued. In Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; 192 ALR 609; affd [2003] FCAFC 70; 126 FCR 54, the only relief sought was a writ of habeas corpus. At first instance, the Commonwealth did not object to the Court’s jurisdiction but rather contested the proceeding on its merits: at [7].

202    The same was true in Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; 110 FCR 452. At [55], North J said:

The respondents did not contest that this Court has jurisdiction in this case to make an order of such a nature. They were correct in this.

203    On appeal, Black CJ made the same observation: Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [66]. There was no ground of appeal on the question: see the grounds as set out in the reasons of French J at [159].

204    Nevertheless, Beaumont J (at [101] and plainly obiter) doubted this Court had power to issue a writ of habeas corpus:

No such power is expressly invested and, in my view, no such implication should be made.

205    However, at [106], his Honour accepted (it would appear with some misgivings) that if the Court’s jurisdiction is “properly invoked”, the Court could, relying in s 23 of the Federal Court of Australia Act,

entertain a claim for an order in the nature of a writ of habeas corpus.

206    At [164], French J said:

The powers of the Federal Court in aid of the exercise of its jurisdiction include those conferred by s 23 of the Federal Court of Australia Act:

“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”

There was no suggestion that the Court lacked jurisdiction to entertain the application for the writ of habeas corpus, it being directed to the lawfulness of action taken purportedly in reliance upon the Executive power of the Commonwealth under s 61 of the Constitution.

207    The distinction made by Beaumont J has been criticised: see Clarke D, “Jurisdiction and Power: Habeas Corpus and the Federal Court” (2006) 32 Monash University Law Review 275. At 288-289, Professor Clarke said:

The argument that unless the writ of habeas corpus is expressly mentioned it cannot be within the power of the Federal Court to award it is fallacious. In the first place if taken seriously it would also mean that other remedies also not expressly mentioned in the Federal Court Act are also not available to the court in an appropriate case. For example, certiorari, prohibition, injunctions and mandamus are not mentioned in s 23 or elsewhere in the Federal Court Act either but no one doubts that, despite the lack of an express reference to these remedies, they are available to the court. In other cases the courts have held that s 23 authorises the Federal Court to issue the equitable remedies of a Mareva injunction and an Anton Piller Order neither of which are explicitly mentioned in s 23 of the Federal Court Act. Similarly the court relied upon the wide powers in s 23 to forfeit recognisances and to make a Mareva order neither of which are specifically mentioned in s 23. In short the test for the remedial powers under s 23 is not whether a particular remedy is explicitly mentioned therein but whether there are indications elsewhere that the specific remedy in issue is excluded.

(Footnotes omitted.)

208    The same distinction was made by Selway J in Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352, 136 FCR 291 at [41]-[42]. Respectfully, his Honour adopted the reasoning of Beaumont J in Vadarlis without referring to the contrary positions by Black CJ and French J, forming the majority on this issue. At [42], Selway J also sought to distinguish Al Masri:

Having regard to the above I do not think that the holding by the Full Court in Al Masri that this Court can make orders “in the nature of habeas corpus” should be understood as suggesting that this Court has jurisdiction to issue a writ of habeas corpus. Rather, it seems to me that the correct understanding of the Full Court’s reasons and analysis is that this Court has jurisdiction to determine the legal validity of detention under the Act and that it has the power to order the release of the person detained if it finds that the detention is not lawful. Nor does it seem to me that the Full Court’s reasons should be understood as requiring this Court to comply with the historical procedural limitations applicable to the writ of habeas corpus.

209    This, I take it, includes the matter in issue before the primary judge in this proceeding, concerning the onus of proof: see [44]-[45].

210    However, Selway J accepted, as Beaumont J did, that the Court had power to grant relief directed at securing the release of a person detained without lawful authority under the Migration Act: Alsalih at [39]-[40] and [43]. Without deciding the question, Stone J took a similar approach in Matete v Minister for Immigration and Citizenship [2009] FCA 187 at [10].

211    Whatever other procedural requirements or limitations might attend the granting of a writ of habeas corpus, in my respectful opinion it is clear from both the joint reasons of the Full Court in Al Masri, and the reasons of Black CJ and French J in Vadarlis that the writ, as a writ, has been accepted as one which can be granted under s 23 of the Federal Court of Australia Act: see Al Masri (FC) at [135], [170]-[172] and the references to Vadarlis given in [203] and [206] above.

212    It is also the case that the terms of s 23 of the Federal Court of Australia Act, the history of the writ of habeas corpus as a remedy and not, at least since the sixteenth century, as a source of jurisdiction in itself, all combine to make it clear that it is a remedy this Court has power to grant, provided that this is done as an incident of one of the statutory jurisdictions of this Court.

213    In Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [24], Gleeson CJ did not see the difference in language as affecting the availability of the remedy:

The appellant sought a declaration that he was unlawfully detained and an order in the nature of habeas corpus directing his release from detention. The reference to ‘‘an order in the nature of habeas corpus’’ may reflect a division of opinion in the Full Federal Court in Ruddock v Vadarlis as to whether, under s 23 of the Federal Court of Australia Act 1976 (Cth), read with s 39B of the Judiciary Act 1903 (Cth), the Federal Court has power to issue a writ of habeas corpus or to make an order in the nature of habeas corpus. That question was not argued before this Court, and nothing turns on it in the present appeal. Even if the power is best described as a power to make an order in the nature of habeas corpus, that is what was sought. Furthermore, on the matter of making orders on conditions, s 22 of the Federal Court of Australia Act is to be noted.

(Footnote omitted.)

214    Recalling that this Court’s habeas corpus jurisdiction went un-challenged by the Commonwealth in both Al Masri and in Vadarlis, and bearing in mind what I have set out at [211], the present state of authority is that where this Court otherwise has original jurisdiction (whether under s 39B of the Judiciary Act or any other applicable statutory jurisdiction), it has the power to issue such a writ under s 23 of the Federal Court of Australia Act.

215    On this appeal we were not invited to find those cases were wrongly decided. Rather the Minister’s argument sought to circumvent them, by a particular approach to s 476A of the Migration Act, and by characterising what was occurring as a “judicial review” of a “decision” to detain the appellant. As I explain below, I reject that approach.

216    The Court is not engaging in “judicial review” of a “decision” for the purposes of determining whether that “decision” is lawful. The Court is determining an anterior question about the capacity in law of the executive detention power in s 189(1) applying to an individual, as an ancillary question in its judicial review (in this case, where the arguments on both aspects overlap) of a “migration decision” of the Minister, such jurisdiction regularly invoked under s 476A(1)(c).

217    This approach is also consistent with s 196(3) and (4) of the Migration Act, which provide:

(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.

218    Section 196(3) operates only on an individual who has the status of an “unlawful non-citizen”. If a person does not, according to law, have that status, s 196(3) cannot operate to prevent her or his release, including pursuant to a writ of habeas corpus.

219    I do not consider s 196(3) precludes the appellant’s release: see Al Masri (FC) at [33]:

Regarding the operation of s 196(3), we adopt what we said in NAMU, in which this Full Court upheld the constitutional validity of that subsection. We also adopt our observations in VFAD at 274 [142]; 133-134 [142], that consistently with Lim, s 196(3) presented no obstacle to the release of a person who is being detained unlawfully.

220    And see Gleeson CJ’s reasons in Al Kateb at [10]:

The word “detention” in sub-s (3) means “lawful detention”. If it were otherwise, the provision would constitute an unconstitutional interference with judicial power. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.

(Footnote omitted.)

221    Section 196(4) has the same effect by express reference to visa cancellation decisions but may well also contemplate other bases on which detention may be unlawful, for example because of jurisdictional error in the exercise of the cancellation power. As I note below, given the terms of the original jurisdiction conferred on this Court in relation to cancellation decisions by s 476A, the terms of s 196(4) support the construction I give to the phrase “in relation to” in s 476A: see [223]-[249] below.

222    Sub-sections 196(3) and (4) make general reference to a “court”. There is no basis to read that provision as confined to the High Court. If the writ of habeas corpus is an available remedy, there is also no basis to differentiate in terms of its availability between the Federal Circuit Court and this Court. The Minister appears to accept that such a remedy is available to the Federal Circuit Court, and that this Court can hear and determine an application for such relief, if a proceeding is transferred to it, that being another source of jurisdiction in s 476A: see eg AJL20 v Commonwealth [2020] FCA 1305 at [1] and [174].

Do the terms of s 476A(1) render habeas corpus unavailable?

223    The remaining question is whether the Court’s power to grant relief by way of habeas corpus is rendered unavailable by reason of the terms of s 476A(1), which confine the Court’s jurisdiction to the circumstances set out in paras (a)-(d).

224    In this respect it is relevant to observe that s 476A was introduced in 2005, after both Al Masri and Vadarlis.

225    For the reasons that follow, I do not consider s 476A(1) excludes or otherwise affect the Court’s power to grant a writ of habeas corpus. Section 476A(1) gives this Court jurisdiction “in relation to” a migration decision. By the use of this phrase Parliament locates the Court’s original jurisdiction with a “migration decision” at its centre, but does not narrowly confine what the Court has authority to decide in terms of appropriate relief.

226    In the present proceeding before the primary judge, the “migration decision” was not the detention of the appellant: it was the refusal by the Minister personally to restore his absorbed person visa, which had been cancelled by operation of law pursuant to s 501(3A). This was a “privative clause decision” or “purported privative clause decision” made personally by the Minister under s 501CA. This Court had jurisdiction under s 476A(1)(c) to review this refusal.

227    By s 476A(1)(c), it also had jurisdiction “in relation to” that refusal. The phrase “in relation to” is a connecting phrase, designed to indicate a relationship between one matter and another. However, the width to be attributed to the phrase depends on the context in which it is used: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45 at 47; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [24]. In Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; 241 CLR 510 at [25], French CJ and Hayne J said:

It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the enquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.

(Footnotes omitted.)

See also Minister for Home Affairs v DLZ18 [2020] HCA 43 at [43].

228    In construing the phrase in context, what the Court must assess is how direct or substantial Parliament intended the connection or relationship between the two matters would need to be: see Joye v Beach Petroleum NL [1996] FCA 502; 67 FCR 275 at 285.

229    In Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414 at [106], the Full Court said:

Acts of Parliament frequently use words of wide import which require courts to make constructional choices. They may be words capable of two or more meanings, each of which might make sense in the context in which it appears in the Act. Such a case is one of ambiguity and reference to extrinsic materials may point in the direction of one intended meaning rather than another. Alternatively, words may be used which have an ambulatory significance capable of a wide range of applications. Construction involves determining the limits of that range. Terms such as “in relation to”, or “in connection with” raise that kind of problem which, strictly speaking, is not a problem of ambiguity at all. The word “association” falls into this category. It may be read widely enough to pick up many completely innocent connections between people. On the other hand, it may be read narrowly to require some sort of positive involvement in criminal conduct with others.

230    In the present case, the context in which the phrase must be construed is a provision limiting the jurisdiction of this Court. Where “migration decisions” are concerned, Parliament intended to give the Federal Circuit Court the broader judicial review jurisdiction; and intended to give this Court a much more specific jurisdiction, in substance one confined to decisions involving deportation under s 200 (a now rarely used power) and visa refusal or cancellation on the basis of the “character” provisions in the Act. It has also recognised a discretionary power in the Federal Circuit Court to transfer cases (of some significance or public importance, I infer) to this Court. The confining purpose of s 476A is confirmed by the use of phrase “if and only if” in the chapeau.

231    However, having confined the subject matter of this Court’s judicial review jurisdiction in that way, Parliament has nevertheless chosen to use a phrase of “ambulatory significance”, as the Full Court described it in Haneef. The meaning of the phrase is intended to preserve the full suite of this Court’s available powers, where they may be appropriate to be exercised.

232    The context in which Parliament chose those words must be emphasised. By s 476A(2), Parliament has provided that this Court’s original jurisdiction is to be equivalent to that of the High Court under s 75(v) of the Constitution. Section 75(v) is on its face, of course, a jurisdiction granted by reference to the remedy sought, but its breadth and substance is well established and entrenched.

233    As Deane J made clear in Eastman, so long as the High Court has jurisdiction (including under s 75(v)), habeas corpus as a remedy is available as an incident of that jurisdiction. Other cases have emphasised that powers which are necessary or incidental to the exercise of the Court’s jurisdiction under s 75(v) – including the power to grant remedies not specified in the sub-section – is now well established: see DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [25]; Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57; 204 CLR 82 at [14]. In MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 at [32], Gleeson CJ, Gummow and Hayne JJ said:

The statement that “the High Court shall have original jurisdiction”, which is made in s 75 of the Constitution with respect to the matters listed in that section, brings with it such powers as are incidental and necessary to the exercise of the jurisdiction. The same result follows from the vesting by s 71 of the Constitution of “[t]he judicial power of the Commonwealth” in the High Court.

(Footnotes omitted.)

234    Indeed, the words of Sir Edmund Barton, describing the purpose of s 75(v), bear repeating in the present context:

This provision is applicable to those three special classes of cases in which public officers can be dealt with and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.

(Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1885.)

235    Where Parliament has conferred on this Court the same jurisdiction as the High Court under s 75(v), and in light of the authorities to which I have referred, clear words indeed would have been required for the Court’s power to grant relief by way of habeas corpus to be excluded. The remedy has been developed and maintained as the principal protection against unlawful deprivation of liberty, and where there is a constructional choice to be made about the scope of the remedies available to this Court “in relation to a migration decision” in my opinion Parliament should not be understood as having intended to make such a remedy unavailable without saying so unambiguously: Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 18; Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437; Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [3], and see also [313]-[314].

236    Thus, the “working hypothesis” (see Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 at [21]) should be that where Parliament confers on this Court jurisdiction expressed to be the same as s 75(v), in a context where s 196(3) and (4) are also present, Parliament did not intend to remove from this Court its powers to issue writs and grant remedies which enforce a right to freedom from executive detention not authorised by statute.

237    In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [42], French CJ said:

Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a “principle of legality” which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this court in Lacey v Attorney-General (Qld).

(Footnotes omitted.)

238    There are no such clear words in s 476A, and the contextual matters which do appear (eg s 196(3) and (4)) support the retention of the Court’s full suite of powers under s 23 when its jurisdiction in s 476A is involved.

239    Where the Court is seized of an application to review the cancellation or refusal of a visa (or indeed where a matter has been transferred to it from the Federal Circuit Court) then to read the terms of s 476A as intending to exclude the grant of relief by way of habeas corpus would be an unduly narrow and restrictive constructional choice. Especially so where, as the Minister accepts, the Court retains a jurisdiction outside and unaffected by s 476A to determine whether the legal preconditions to the power in s 189(1) of the Migration Act are applicable to an individual. That concession, properly made, recognises the well-established principles I have set out at [235] above.

240    Further, there is a direct and substantial connection between the subject matter of the Court’s jurisdiction conferred by s 476A – the refusal or cancellation of a visa – and relief by way of habeas corpus. It is the holding of a visa which removes a non-citizen from the reach of s 189: see s 13(1). In a case such as the appellant’s, the connection is even more direct because his contention is that the cancellation of his visa was incapable of rendering him amenable to detention under s 189, because he is not an alien; whereas the Minister contends the cancellation does have that effect.

241    This Court’s power to grant relief by way of habeas corpus is no more than an incident of its original jurisdiction, conferred by s 476A(1)(c), read with s 476A(2), to deal with a “matter” arising directly from the Minister’s decision to cancel the appellant’s visa.

242    Even putting to one side any claims that a visa holder was not an alien (or was a citizen), an application for relief by way of a writ of habeas corpus would not be inappropriate in circumstances of other personal powers mentioned in s 476A(1)(c) – for example, s 501(3), which is a personal power of either cancellation or refusal of a visa. If a visa holder has her or his visa personally cancelled by the Minister, but successfully contends the cancellation is affected by jurisdictional error, then she or he has a visa which is in force, and that would render any detention of that person unlawful and susceptible to a writ for habeas corpus. I refer to this example to illustrate that to give such an operation to the terms of s 476A is not only to cater for the somewhat rarer circumstances that a person who is a citizen, or who is not an alien, is subject to immigration detention. While other relief might also be available where jurisdictional error is identified in a visa cancellation decision, a writ of habeas corpus would also remain an available remedy, if for some reason it did not appear the executive would immediately release the individual.

243    To the extent that Wigney J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394; [2020] ALMD 1840 reached the same conclusion on this Court’s power to grant relief by way of a writ of habeas corpus, I respectfully agree. His Honour dealt with the question outside the terms of s 476A, on the authority of this Court’s decision in Tang: see PDWL at [69] and [77].

244    I do not consider Tang stands in the way of the construction I have adopted. In Tang the applicant sought relief in the High Court by way of constitutional writs against the Federal Circuit Court for its refusal to grant him an extension of time in which to file judicial review proceedings against the (then) Migration Review Tribunal. The High Court remitted the matter to this Court. Section 476B precluded the High Court from remitting

a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court.

245    On its own motion, the Full Court questioned whether the Court had jurisdiction to entertain the suit. Both Mr Tang and the Minister submitted that it did: at [3]. The Court found that the proceeding did not fall within s 476A(1), and further held that appellant’s proceeding to quash the orders made by the Federal Circuit Court was not “in relation to a migration decision”, so s 476A(1) of the Act did not limit or remove any other original jurisdiction the Federal Court otherwise had to hear his claim.

246    The Full Court referred to the High Court’s decision in Bodruddaza at [22], where the majority held that the expression “a remedy … in relation to a migration decision” in s 486A “should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions”. The Full Court held that Mr Tang was seeking a public law remedy, being writs of mandamus and certiorari against an officer of the Commonwealth. However, because Mr Tang sought judicial review not of a migration decision itself but of orders of the Federal Circuit Court in respect of such a decision, the Court’s jurisdiction which it otherwise possessed was not excluded by Div 2 of Pt 8 of the Migration Act.

247    Tang, read with Bodruduzza, suggests that the phrase “in relation to a migration decision” in s 476A should be confined: first, to public law remedies; and second, to “direct” judicial review. The construction I have adopted is compatible with both those propositions. A writ of habeas corpus, being a prerogative writ, is a public law remedy. Mr McHugh brought a “direct judicial review” of the Minister’s non-revocation decision, and the application for relief by way of habeas corpus was an incident of that application. As the briefing note confirms, Mr McHugh had put to the Minister that he was an Australian citizen, and also that he identified as Aboriginal. The fact that the primary judge severed the proceeding into two parts, and therefore the connection between the two may seem less direct, should not obscure the fact that the Court’s jurisdiction arises under s 476A(1)(c).

248    Therefore, in my respectful opinion the primary judge was incorrect to find, first, that the availability of a writ of habeas corpus involved a matter of jurisdiction, and second, that this Court could not grant relief by way of a writ of habeas corpus, or an order in the nature of habeas corpus, because of s 476A(1).

249    Ground 1 is upheld.

Grounds 2 and 3: burden of proof

250    By the second and third grounds of appeal, the appellant submits that the primary judge erred “by relying on the notion that a detained person bears the legal onus of proving the unlawfulness of his restraint on an application for habeas corpus or relief in the nature of habeas corpus” or “by relying on the burden of proof in respect of an application for habeas corpus or relief in the nature of habeas corpus shifting three times”. I have emphasised part of the way these grounds are described in the supplementary notice of appeal to make clear that they are engaged only in what the primary judge described as the “alternative analysis” – that is, they are engaged only if the Court did have jurisdiction to hear the appellant’s application for a writ of habeas corpus. I have found on ground 1 that the Court retains a power to grant relief in the way of habeas corpus in the exercise of jurisdiction under s 476A(1).

Ground 2

251    On ground 2, in his written submissions, the appellant relied on, and identified error in, [238]-[240] of the primary judge’s reasons. Those passages are contained in a section of his Honour’s reasons where his Honour is dealing with the “primary analysis”; that is, with the question whether s 189(1) is capable of applying to the applicant on the basis that the Court did not have jurisdiction to determine the appellant’s application for a writ of habeas corpus.

252    As I have explained, the Minister accepted this Court had authority to decide whether the appellant was amenable to the power in s 189, but contended that the usual burden of proof applied in that situation. This is all the primary judge was dealing with at [238]-[240], and there is no error in his analysis there.

253    Ground 2 fails.

Ground 3

254    The appellant submitted that, rather than shifting three times, the onus in an application for a writ of habeas corpus shifts only once: first, an applicant must prove that she or he is detained; and then the detainer must prove lawful justification for the detention. He also submitted that, for several reasons of principle, it is correct that an applicant bears the onus to prove detention and no more; namely:

(a)    a third party has standing to seek a writ of habeas corpus in relation to a detained person, but to require a third party to do more than prove detention would make this practically impossible;

(b)    questions of liberty must be heard and determined quickly, and they cannot be if an applicant for a writ of habeas corpus (now assuming the applicant is the detained person) is required to prove more than detention, because, while the person is in detention, it will be difficult if not impossible for the person to gather necessary evidence.

255    The Minister defended the primary judge’s “shifting onus” approach, even though before the primary judge the Minister did not contend for such a complex approach. Rather the Minister accepted (at [68] of his principal submissions before trial), by reference to Plaintiff M47 at [39], that

the Respondent bears the onus of establishing the lawfulness of detention …

256    Before the primary judge, the Minister then contended, also by reference to another passage in Plaintiff M47 at [39], that the appellant bore

at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful …

257    The authorities to which the plurality in Plaintiff M47 at [39] refer for the proposition that, in a claim for habeas corpus, the onus is on the detainer to justify the detention, include Liversidge v Anderson [1942] AC 206 at 245 and Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152.

258    Liversidge was of course a case that also concerned executive detention dependent on the existence of a state of mind – “reasonable cause to believe” – not about a status, but about a person’s “hostile associations” and the necessity to “control” the person. In dissent, at 245, after his now famous application of Lewis Carroll’s words in Alice in Wonderland, Lord Atkin said:

The appellant’s right to particulars, however, is based on a much broader ground, a principle which again is one of the pillars of liberty in that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act.

259    Yet even in Liversidge, Lord Atkin observed (at 246) that there was an evidentiary onus of some kind on an applicant for this kind of relief:

It may be that in an application for a writ of habeas corpus the applicant could rely on the presumption against imprisonment and seek to throw the onus without more on the defendant, but in practice he does not do so. He puts material before the court to lead to the conclusion that the imprisonment was unlawful, and that is what the applicant did here.

260    In Trobridge, after reciting what were on any view the egregious actions of Constable Hardy both during the arrest and then back at the police station, Fullagar J said at 152:

The plaintiff did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the defendant was “acting in his office as a member of the police force”. The mere interference with the plaintiff’s person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise.

261    Trobridge therefore is somewhat removed from the question of onus of proof in a proceeding seeking a writ of habeas corpus, but courts including the High Court in Plaintiff M47 have taken it as establishing where the onus lies, because of the interference with liberty.

262    The observations in Plaintiff M47 at [39] need to be seen in their context. The plurality emphasised that the fact that the matter proceeded by way of a special case meant that it was not necessary to resolve some of the arguments made in the matter about onus of proof as if the Court were conducting a trial: at [38]. Further, this was a proceeding involving a contention that the plaintiff’s detention had ceased to be lawful, although it was conceded his detention was initially lawful as he was an unlawful non-citizen: at [39], [43]. That is, the very fact in issue before the primary judge in this proceeding was conceded by the plaintiff in Plaintiff M47.

263    It would appear that the primary judge’s extensive analysis of what the parties have called the “shifting burdens” approach, by reference to a number of decisions outside executive detention, has been prompted by this passage in Plaintiff M47.

264    In my respectful opinion, the primary judge read too much into what the plurality was saying in Plaintiff M47. The complicated process set out in his Honour’s reasons is not what the law requires in respect of a dispute about a lawful justification for executive detention under s 189 of the Act. It lead his Honour, erroneously with respect, into a factually intensive and complicated analysis, which was also unnecessary.

265    In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 19, Brennan, Deane and Dawson JJ said:

Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law.

(Footnotes omitted.)

266    In the present legislative scheme of the Migration Act, mandatory executive detention depends on the formation of a state of mind by an officer (reasonable suspicion) that a person has a certain status (an unlawful non-citizen). That is the “positive authority”, and the only “positive authority”, provided by the Migration Act for an officer to deprive a person of her or his liberty.

267    Two Full Courts of this Court have accepted that, in this context, there is an evidentiary burden on a person who contends she or he is not amenable to s 189 (or s 196). In Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at [61]:

It is, however, the case that an applicant for habeas corpus carries the initial burden of showing a prima facie case that the detention complained of is unlawful. When such a case is shown, the burden of proof rests upon the detaining authority to prove any fact prescribed by statute as a condition of the power of detention – Truong v Manager, Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 (Malcolm CJ and Seaman J).

268    In Al Masri (FC) at [176]:

As the trial judge pointed out, it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.

269    That was the approach taken by T Forrest J in Yoxon v Secretary to Department of Justice [2015] VSC 124; 50 VR 5, another case of executive detention. At [38], his Honour said:

Provided the applicant satisfies this initial evidentiary burden, the onus will, as I have said, shift absolutely to the respondent. As the Full Court of the Supreme Court of Western Australia observed in Dien v Manager of the Immigration Detention Centre,

The writ of habeas corpus will issue to determine whether statutory conditions which regulate or define the power to detain a person have been complied with: R v Governor of Brixton Prison, Ex parte Ahsan [1969] 2 QB 222.The applicant carries an initial burden of showing a prima facie case that the detention was unlawful. Upon this being shown the burden of proof is then cast on the authority detaining the applicant to prove any fact prescribed by the statute as a condition of the power of detention: R v Governor of Brixton Prison, Ex parte Ahsan, above; R v Home Secretary, Ex parte Khawaja [1984] AC 74 at 110–12 per Lord Scarman.

(Footnotes omitted.)

270    It was also the approach taken by Besanko J in Burgess v Commonwealth [2020] FCA 670; 378 ALR 501 at [68], by reference to the decision of Jagot J in Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31. Besanko J endorsed the following propositions from Jagot J’s judgment (at [83] in Guo):

(1)    for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen;

(2)    for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person’s detention held a reasonable suspicion that the person was an unlawful non-citizen;

(3)    the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen;

(4)    as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen;

(5)    similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen;

(6)    whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct;

(7)    the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and

(8)    the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.

(Emphasis added.)

271    Guo and Burgess were both false imprisonment cases. Jagot J’s propositions in Guo were drawn from Ruddock v Taylor [2005] HCA 48; 222 CLR 612 and Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1, and in my respectful opinion, correctly so. No other approach would be consistent with what the High Court said in Lim.

272    I respectfully agree with both Jagot J and Besanko J.

273    Contrary to the Minister’s contentions on the appeal, there is nothing in [39] of Plaintiff M47, or in fn 33 to that paragraph and the authorities there referred to, which supports the primary judge’s approach. What those citations support is no more than what the Full Court has said in Te and Al Masri. One of the authorities referred to is Yoxon, where T Forrest J makes the same point as the two Full Courts in Te and Al-Masri. The content and nature of this evidentiary burden does not approach the level of detailed or comprehensive proof of unlawfulness – for that would be tantamount to reversing the legal burden. Rather, as the Chief Justice describes it at [60] of his Honour’s reasons, with which I respectfully agree, an applicant for the writ must adduce evidence demonstrating “probable cause”, or show a “case fit to be considered”. The contentions of the applicant for the writ must not be fanciful, or vexatious, and there must be some probative material adduced to justify the Court considering the allegations. However, executive detention under s 189 of the Migration Act involves no warrant of arrest or committal, and no order such as was involved in Yoxon, all circumstances where a substantial evidentiary case might more justifiably be required, the record of the authority for a person’s detention otherwise speaking for itself. In the present context of s 189, it is important that the evidentiary burden reflect the circumstances of the exercise of the statutory power, and its nature.

274    It is correct that there are more absolute statements, which tend in favour of the stricter position put by the appellant and tend against the respondent’s contentions supporting the primary judge’s approach. In Tanioria v Commonwealth [2016] FCA 1253 at [28(a)], Griffiths J said:

The relevant onus in a claim for habeas corpus is identical to the onus applicable to a claim for unlawful imprisonment – the applicant must prove the fact of detention, the respondents must prove the lawfulness of that detention: Hicks v Ruddock [2007] FCA 299; 156 FCR 574 at [53]-[56]; Commonwealth of Australia v Fernando [2012] FCAFC 18; 200 FCR 1 (Fernando) at [92] …

275    In Hicks v Ruddock [2007] FCA 299; 156 FCR 574, Tamberlin J did not refer to any evidentiary burden on an applicant in an application for relief by way of habeas corpus when he said at [52]-[55]:

Essentially, Mr Hicks’ contention is that the fact of his internment for five years — in the absence of any evidence before the Court which would justify this detention — is sufficient to establish that the detention is prima facie unlawful. Therefore, it is said, the matter should go to a hearing on this question so that the facts and circumstances surrounding any “authorisation” of his internment can be investigated with a view to establishing its legality or illegality.

There is a clear line of authority that Mr Hicks is at present entitled to the benefit of this conclusion: see, as discussed above, Abbasi v Secretary of State for Foreign and Commonwealth Offıce [2002] EWCA (Civ) 1598. Deprivation of liberty is prima facie unlawful, and until this is rebutted by evidence of lawful authority, the unlawfulness can be accepted. There is at present no such rebuttal evidence before me.

Authorities support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State for Foreign and Commonwealth Offıce [2002] EWCA (Civ) 1598 at [66] (and cases cited therein); R v Carter; Ex parte Kisch (1934) 52 CLR 221 at 227 per Evatt J; R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 at 233, 237, 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Secretary of State for Home Affairs [1942] AC 284. See also Aronson M, Dyer D and Groves G, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) pp 777-779.

Cases which impose the general onus upon a respondent as to the legality of detention include: R v Carter; Ex parte Kisch 52 CLR at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278; 41 ALR 635 at 644-645, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR at 62; and R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided.

276    These observations were made in the context of a strike-out application by the Commonwealth.

277    Fernando was a false imprisonment claim in relation to immigration detention. At [92] the Full Court expressed its conclusion that the Commonwealth had failed to prove its defence:

Despite the fact that the Acting Minister had cancelled Mr Fernando’s visa on 3 October 2003, the Commonwealth failed to prove its pleaded defence, and there was no evidence, that any officer detained Mr Fernando pursuant to s 189(1) on 5 October 2003 or at any time thereafter.

278    A similar approach was taken by Basten JA in State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 at [53]-[54]:

Putting to one side the question of the need for complete loss of freedom, which is not in issue in the present case, the point of distinction between the remedies is somewhat fragile. True it is that the procedural purpose of habeas corpus is to bring the person before the court, but the substantive issue on application for the writ concerns the lawfulness of the applicant’s detention. Nor is it entirely correct to say that the tort of false imprisonment involves fault or some other special element concerning attribution of liability. The tort is, as noted by Kirby J in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [140], one of strict liability. Kirby J continued: “the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant”.

There is no doubt about the complete deprivation of liberty; it follows that the State was required to justify the lawfulness of the respondent’s detention. It did so by reliance on the order made by Judge Woods. However, an order entitling the State to deprive a person of his or her liberty does not justify detention in any place the State, or its relevant officer, deems appropriate, desirable or convenient. The lawfulness of the detention depends upon compliance with the terms of the order.

279    And recently, in Lewis, Gageler J said at [24], citing amongst other decisions Ruddock v Taylor:

“To constitute the injury of false imprisonment”, as Sir William Blackstone put it, “there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention.” Despite the onus shifting to the defendant to negative the element of unlawfulness where the plaintiff establishes the element of detention, it is detention in combination with unlawfulness that constitutes the tort. Through the tort, the “right to personal liberty” is protected by the common law − not from all restraints, but from those restraints for which “lawful authority” cannot be shown.

(Footnotes omitted.)

280    The final proposition in this passage is cited as Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292, where there appears a passage from the judgment of Mason and Brennan JJ which bears repetition:

The right to personal liberty is, as Fullagar J. described it, “the most elementary and important of all common law rights”: Trobridge v. Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England “without sufficient cause”: Commentaries on the Laws of England (Oxford 1765), Bk. 1, pp. 120-121, 130-131). He warned:

“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities.”

That warning has been recently echoed. In Cleland v. The Queen, Deane J. said:

“It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.”

The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested.

(Footnotes omitted.)

281    These principles are repeatedly emphasised by the courts because they mark out a boundary that is not to be crossed. Part of that boundary involves the demonstration by admissible evidence of the “positive authority” or “lawful authority” for any deprivation of liberty, as a core aspect of the rule of law. I respectfully agree with the Chief Justice’s reasons in this respect at [5].

282    Thus, on the present state of authority there is no distinction to be drawn between the burden of proof in false imprisonment and any other claim for release based on unlawful detention, whether described as habeas corpus, or as orders in the nature of habeas corpus, or as mandatory injunctions. In terms of the burden of proof no distinction is maintained and in each situation the burden is seen as lying on the detainer. While not all judicial minds may have approached the matter seeing them as equivalent (eg see Black CJ’s reasons in Vadarlis at [70]), the present state of authority is clear, and is not consistent with the approach taken by the primary judge.

283    Whether there is any tension between the more absolute statements in some authorities and the decisions in Te and Al Masri need not be determined. For the purposes of ground 3, the short point is that even if there was an evidentiary onus on the appellant, it had been readily discharged by his own affidavit filed at trial: see [286] below.

284    Where, as with s 189(1), it is the status of a person which makes her or him amenable to executive detention, and the state of mind which must be formed by an officer concerns that status, the evidentiary burden is unlikely to be significant. As the Full Court in Al Masri described it, an applicant needs to adduce evidence which puts her or his executive detention “in issue”. For that to occur, the evidentiary case would need to be seen as capable of affecting the state of mind an officer is required to form, which means the evidentiary case must go to one or more of the migration status elements of s 14: that a person is a citizen, that a person has a visa, or (implicitly) that the person is Aboriginal.

285    In the context of s 189, and in the absence of a warrant of arrest or committal or some other statutory order or authorisation for detention, the purpose of the evidentiary burden is to ensure that those responsible for the detention or imprisonment of an individual are only called upon to justify her or his deprivation of liberty where there is at least some probative material suggesting objectively that they should have to do so.

286    In his affidavit affirmed 27 February 2020, the appellant deposed, amongst other matters, to the following:

(a)    “The first I learned that I was not an Australian citizen was when I was put in immigration detention on 11 May 2018. Before that, no one had ever told me that I was either a lawful non-citizen or an unlawful non-citizen” (at [4]).

(b)    “I identify as and am recognised as being an Aboriginal Australian. I do not know if I am of Aboriginal biological descent” (at [6]).

(c)    “From about 1990, I lived with my wife in the Ardyaloon Aboriginal community of the Bardi Jawi people. We lived together there for twelve years then we separated” (at [7]).

(d)    “I have a traditional Bardi Jawi language name” (at [8]).

(e)    “The community spoke both English and Bardi. I know some Bardi” (at [9]).

(f)    “I had a ceremonial role in the community for the period that I lived within it. I put boys through the law to become men. I painted them, and sung and danced with them all night. I also participated in circumcision ceremonies. I had to carry them up a hill and if I stopped and dropped them I could be killed by the family. I had to prepare the place for ceremony. I had to collect the right wood and leaves for smoking the wound” (at [10]).

(g)    “I was initiated into the law of the men of the community. Out of respect for the law, I cannot say what the content of this is” (at [12]).

(h)    [after his separation] “I moved to Derby and married an Aboriginal woman there. I had two boys with her. She was a Bardi Jawi woman too and the children were raised in that tradition” (at [15]).

(i)    “I am recognized as Aboriginal by the Bardi Jawi people of the Ardyaloon One Arm Point Community, Dampier Peninsula, Western Australia, My seven children and their two mothers are of Bardi Jawi descent and all are born in the Kimberley region of Western Australia” (at [20]).

(j)    “I voted in a Commonwealth election in July 1987 for the first and only time” (at [26]).

(k)    [in 2017] “When I applied for a passport I provided my birth certificate, over 18 plus card, key card, Centrelink number and my granddaughter’s address. A passport was issued on 25 October 2017. I picked it up at a suburban post office in Darwin” (at [30]).

(l)    “If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen” (at [34]).

287    Many of these points were made to the Minister in submissions in support of the revocation of the visa cancellation. This material was ample for the appellant to “put in issue” the lawfulness of, and justification for, his executive detention. The Minister’s submissions on this ground were not directed at the discharge of an evidentiary burden at all; rather, they were directed at satisfaction of each of the elements of the tripartite test as a final matter, and proof of Australian citizenship. That is far beyond putting lawfulness “in issue”.

288    Insofar as the primary judge held that at trial, after this affidavit had been read, for the purposes of the application for a writ of habeas corpus, the burden of proof lay anywhere other than on the respondent, or shifted between the appellant and the respondent, his Honour was, respectfully, in error. Either (on one view of the authorities to which I have referred), the fact of the appellant’s detention being accepted, the entire burden of proof lay on the Minister to show “positive authority” or “lawfully authority” at the time of trial for the appellant’s detention; or (on Te and Al Masri), the appellant having “put in issue” by his affidavit the absence of any lawful authority to detain him, the burden of proof lay on the Minister to show “positive authority” or “lawful authority” at the time of trial for the appellant’s detention. In either case, and on the way the matter was argued before the primary judge and on the appeal, the focus of the inquiry should have been whether there was an officer, at the time of trial, who held a reasonable suspicion for the purposes of s 189(1) that the appellant was, first, an unlawful non-citizen and second, was not an Aboriginal Australian.

289    Ground 3 should be upheld.

Grounds 4: burden and standard of proof about alienage

290    As I have noted, this ground has five parts; namely, that the primary judge erred “by relying on the notion that”:

a.    the Minister’s evidentiary burden to ‘present a prima facie justifiable basis for restraint’ was discharged by the ‘reasonable possibility of statutory power’;

b.    Alternatively to a, the Minister could discharge the burden by merely asserting constitutional alienage in respect of Mr McHugh’s Aboriginality;

c.    Alternatively to b, if Mr McHugh bears an initial burden of proof, its extent was as high as the primary judge held, namely requiring proof positive on each element of the tripartite test;

d.    Alternatively to c, Mr McHugh’s evidentiary burden was not met, by reason that there was prima facie evidence on each element of the tripartite test; or,

e.    Alternatively to d, the tripartite test requires independent, positive proof of each of the three element to meet a prima facie level of evidence.

291    It can be seen that these separate aspects of ground 4 are related, as were the appellant’s arguments on each of them. In oral argument, counsel contended that if the Court agreed with the arguments underling (a), then (b)-(e) need not be addressed. I accept that is the case.

292    The arguments in ground 4(a) address the primary judge’s finding at [117] of his reasons:

The crucial message is that the threshold for a respondent to present a prima facie justification for an applicant’s restraint is not high. Its purpose, at an elemental level, is to oblige the respondent to engage with the curial proceedings for habeas corpus in order to maintain the applicant’s restraint. Its further purpose is to compel the respondent to specify the purported legal basis for the restraint so as to provide the applicant with an informed opportunity to raise a prima facie question as to the lawfulness of his or her restraint. If there is a reasonable possibility that a statutory power, combined with the surrounding facts, will lawfully support the restraint, the respondent will satisfy its initial onus to present a prima facie justification for the restraint.

293    My finding on ground 3 about where the legal burden of proof lies disposes of many of the parties’ points made in submissions on ground 4, or renders them unnecessary to deal with. To reiterate, it is not the case that the respondent was required simply to establish a “reasonable possibility” that an officer reasonably suspected the appellant was (a) an unlawful non-citizen and (b) not an Aboriginal Australian.

294    The respondent was required to establish, by admissible evidence, each of those matters on the balance of probabilities, taking account, in accordance with s 140 of the Evidence Act, the seriousness of the subject matter of the claim; namely, deprivation of liberty by the executive. That is what is required where a legal burden of proof is imposed.

295    In my opinion much of the primary judge’s analysis miscarried because of his development, far beyond the submissions of the parties, of this argument of three-time shifting burdens of proof. That is what led his Honour into the kind of erroneous analysis set out in [117].

296    Ground 4(a) should be upheld. It is therefore not necessary to consider the remaining sub-grounds.

Grounds 5-8: reasonable suspicion under s 189 and evidentiary arguments

297    Before turning to these grounds, it is necessary to say something about what has become a much discussed issue: the proper relationship, in the scheme of the Act, between s 189 and s 196. This was not a topic which occupied much (if any) time on the appeal, but in order to explain and resolve some of the evidentiary issues, and the debate about onus of proof, it is appropriate to make a short reference to the topic. It was the subject of detailed analysis by Jagot J in Guo (at [63]-[77]), and also by Besanko J in Burgess.

298    Jagot J concluded at [79] in Guo:

Based on this analysis, I do not accept that Ruddock v Taylor, Fernando and Plaintiff M168/10 support the Commonwealth’s principal submission. To the contrary, they support the proposition that for a person to be taken into detention lawfully the detaining officer must hold the requisite reasonable suspicion and for a person to be kept in detention lawfully the detaining officer at that time must hold the requisite reasonable suspicion.

299    Besanko J reached the same conclusion in Burgess at [66], foreshadowing his Honour’s extensive consideration of the issues at [81]-[124] of Burgess:

As I will explain, for the purposes of s 189, an officer or officers must hold a reasonable suspicion throughout the detainee’s detention.

(Emphasis added)

300    I respectfully agree that for the purposes of this appeal, the salient point to be drawn from the authorities and the text, context and purpose of s 189 and s 196 is that expressed by Jagot and Besanko JJ.

301    Each of grounds 5 to 8 is ultimately concerned with what must be proven in order to establish that an officer knew or reasonably suspected that the appellant is an unlawful non-citizen, and further knew or reasonably suspected that the appellant is not an Aboriginal Australian. The core contention put by the appellant’s counsel orally in relation to these grounds was that no officer who was responsible for appellant’s detention at point of trial gave evidence, nor was any documentary evidence tendered that related to the state of mind of such an officer at point of trial. This, counsel submits, meant the respondent could not discharge his burden of proof to justify the detention and therefore the appellant should have been released.

302    However, the appellant’s three grounds were rather more particularly expressed than this general submission.

Ground 5

303    Ground 5 relates to annexures JMD-4 to JMD-12 to the affidavit of Jennifer Duff dated 19 February 2020, which were admitted into evidence by the primary judge. The appellant contends they were not admissible.

304    At the time of affirming her affidavit to which these documents were annexed, Ms Duff was the Director of the Status Resolution Capability Branch of the Department of Home Affairs. She described the function of that branch in following terms:

My section provides procedural guidance and advice to the Status Resolution Network. The section manages workforce capability, including development of tools and training, to support the Network. Additionally, the section is responsible for the management of Detention Review Managers and it provides an initial point of contact Status Resolution Helpdesk for enquiries about Bridging E Visas and possible jurisdictional errors that may affect suspected unlawful non-citizens.

305    She then deposed that the evidence in the affidavit arose from

my inspection of the Department’s records and my own knowledge and experience.

306    Ms Duff then described the records management systems within the Department as they were relevant to records in relation to people detained under s 189 of the Act. She described three kinds of records that were made by officers when a person was detained:

(a)    A “detention note”, made

as soon as operationally practicable. It is the Department’s general practice that MCP 4 includes a clear and detailed statement of reasons for detention, including consideration of a bridging visa grant, and the ongoing detention of a person including reasons for choice of detention placement.

(b)    A “phase 1 review” of a person’s detention undertaken some time after the initial detention, the purpose of the review being

to consider whether there was sufficient objective evidence to hold a reasonable suspicion that the applicant is an unlawful non-citizen.

(c)    “Monthly case reviews” conducted by a detainee’s “case manager”, as part of which the case manager is

required to turn their mind to whether detention is still appropriate.

307    The annexures which are the subject of this ground include all three kinds of records, together with some email correspondence and attachments to emails. It is not necessary to describe them in more detail. They ranged in terms of their dates of creation between 11 May 2018 and 20 September 2018.

308    I will take annexures JMD-4 and JMD-11 as examples. Annexure JMD-4 is an example of the “detention note”. The document records that it was generated by Ella Kelly on 11 February 2020. Clearly, as the appellant’s counsel submitted, this was not date on which the detention note was first created. Relevantly, under a heading “Reasoning Pursuant to s 189 Detention – Facts Evidence Reasons”, the document states:

I considered whether the client is suspected of being an unlawful non-citizen. In this consideration I took into account the facts and evidence provided in this report.

•    The client has been satisfactorily identified in accordance with departmental instructions.

As the client has been satisfactorily identified the basis of my reasonable suspicion that the client is an unlawful non-citizen is as follows:

•    The client’s statements at interview have substantially matched Departmental records.

•    The client has no substantive visa in effect and no bridging visa in effect.

•    The client is not affected by known case law.

Reasons for ongoing detention:

On 10/05/2018, Officer QUINN conducted a status assessment for Mr MCHUGH Edward Vainepoto (31/01/1968) turning his mind to potential visa’s held by operation of law, and potential Australian citizenship acquired by birth. Officer QUINN came to a reasonable suspicion that MCHUGH is an Unlawful Non-Citizen whose last visa held was an Absorbed Person (BF-C) visa which was cancelled on 23/04/2018 under s501. Officer QUINN took into consideration the following:

•    Citizenship Assessment – conducted by Visa and Citizenship Management Division on 26/02/2018 (CLD2018/11785178)

•    Absorbed Person Determination – conducted by Legal Advice & Operational Support Branch on 16/03/2018 (CLD2018/14223218)

•    Citizenship Assessment – verbally supported by Status Resolution Helpdesk on 10/50/2018

On 10/05/2018, Officer QUINN conducted a CAT and determined that MCHUGH is not affected by case law or notification defects.

On 08/05/2018, Officer QUINN conducted a CCI with MCHUGH and determined that he is not eligible for the grant of a Bridging Visa E.

Therefore MCHUGH must be detained under s189 of the MIGRATION ACT 1958.

Based on my consideration of this information, I have formed a reasonable suspicion that the client is an Unlawful Non-Citizen.

As a result of my conclusion in this regard I have found that the client is subject to the mandatory detention provisions in s189 of the Migration Act 1958.

309    Annexure JMD-11 is an example of a monthly “case review”. Again the document itself records it was generated Ella Kelly on 11 February 2020. The last page of the document, where the officer who conducted the review enters her name, is dated 20 September 2018. Yet the document also states that the review is “as at 11/02/2020”, which appears to be a result of the document itself being generated on that date. Some of the entries in the document appear to adjust automatically when the record is generated, including the number of days a person has spent in detention. On this document the number is 641 days, which reflects Mr McHugh’s incarceration from 11 May 2018 to 11 February 2020, not until 20 September 2018.

310    As the appellant’s counsel pointed out, the document has some startling entries. It lists the appellant’s citizenship as, first, Australia, then New Zealand, and then Cook Islands.

311    Under the heading “lawful detention”, the following text appears (with errors in the original):

Is detention still appropriate? Yes.

Justification of ongoing detention, including barriers to release from detention and actions taken to resolve them where possible.

On 23/04/2018 Mr MCHUGH’s BF-C was cancelled under s501(3A). Mr MCHUGH was released from Prison on 11/05/2018 and he was detained under s189(1) of the Act. Mr MCHUGH was transferred to Northwest Point IDC on 04/09/2018 and remains detained under s189(3) of the Act.

Under s196(1) of the Act, an unlawful non-citizen detained under s189 must remain in immigration detention until they depart Australia or are granted a visa. Ongoing detention remains lawful and appropriate

Referral to DFM

Not Required

Please justify your answer.

There has been no new information identified to raise concerns regarding Mr MCHUGH’s unlawful immigration status or the lawfulness of his detention. Mr MCHUGH has made no claims of being an Australian citizen or permanent resident, is not affected by any known case law and there are no indicators currently known to trigger a referral to DRM. Detention continues to be appropriate.

Mr MCHUGH has been advised by Citizenship that he is not an AU citizen - although he assumed he was. He has been given a letter to advise him of this and this issue is considered close bt the Dept; however, Mr McHugh is contiuing to try to establish his Australian Citizenship status.

312    This case review – of 20 September 2018 – was the last case review admitted into evidence before the primary judge. Documents of this kind annexed to Ms Duff’s affidavit which covered periods after this date were ruled inadmissible by the primary judge. That ruling is the subject of the Minister’s notice of contention.

313    The appellant contends not even these documents should have been admitted. He contends the primary judge erred in overruling his objection and admitting the documents pursuant to s 69 of the Evidence Act. He contends the documents were “prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian … proceeding” and were therefore inadmissible pursuant to s 69(2). The appellant also submits that Ms Duff obtained the representations in that she asked for them to be “generated … expressly for the purpose of the affidavit in this proceeding”. The second part of this argument relies on the features of the document to which I have referred above: that is, that they were generated solely for the purposes of the proceeding, and on their face aspects of them were updated automatically to reflect information current on the date they were generated for the purpose of being annexed to Ms Duff’s affidavit.

314    Section 69 provides:

Exception: business records

(1)    This section applies to a document that:

(a)    either:

(i)    is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii)    at any time was or formed part of such a record; and

(b)    contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2)    The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a)    by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b)    on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3)    Subsection (2) does not apply if the representation:

(a)    was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b)    was made in connection with an investigation relating or leading to a criminal proceeding.

(4)    If:

(a)    the occurrence of an event of a particular kind is in question; and

(b)    in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind;

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5)    For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

315    The same argument was advanced before the primary judge but was rejected, at [154] of his Honour’s reasons:

The annexures upon which the Minister sought to rely are each dated throughout 2018, and were therefore prepared prior to the Minister’s decision on 23 August 2019 and the commencement of this proceeding on 2 October 2019. As such, the representations in these documents were, as submitted by the Minister, not prepared “for the purpose of conducting, or for or in contemplation of or in connection with” this proceeding. Neither were they obtained by Ms Duff “for the purpose of, or in contemplation of or in connection with, this proceeding”. Although Ms Duff had obtained (in the sense of collated) the copies of the records in preparation for this proceeding, she had not “obtained” the representations expressed in those records. This is because she is not a person who sought those representations or procured them to be made: see Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 at [26]–[27] per Lindgren J, cited in Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305; 350 ALR 494 at [45] per Moshinsky J; see also Odgers S, Uniform Evidence Law (14th ed, Thomson Reuters, 2019) p 487. Section 69(3) therefore does not apply to those records.

316    Apparently in recognition of the operation of s 69(3), counsel for the Minister had not sought to tender those annexures which related to reviews, or other documents said to provide evidence of the state of mind of various officers, after the date on which the Minister made his decision; namely, 23 August 2019. The primary judge records this concession at [151]:

After a brief adjournment, counsel for the Minister reduced the scope of the material on which he sought to rely. The revised scope of material comprised paras 1–13, 20, 24, 25, 26 of the affidavit and annexures JMD-1 to JMD-12. He expressly stated that he did not need to rely on annexures JMD-13 to JMD-27.

317    There was no challenge to the last sentence on this appeal. To explain how this position came about, it is necessary to set out some of the background to these arguments from the trial. In his appeal submissions at [70] the Minister contends (and the appellant did not dispute) that the appellant

did not refer to s 189, and put in issue the absence of evidence of a subjective suspicion, until the submissions in reply, filed 2 days before the hearing.

318    It was in this context – arguments about the existence of a reasonable suspicion – that the admissibility debate arose. Of course, a premise of the Minister’s submission is that he did not bear the kind of onus I have found he did bear, and which the appellant contended he bore. In that situation, it was not a question of what the appellant “put in issue” or did not: as I have explained, once the appellant discharged his evidentiary burden, the legal burden to justify the lawfulness of the detention under s 189 fell to the Minister. It was for the forensic decision-making of the Minister whether or not to adduce evidence about reasonable suspicion. Without it, he would be unlikely to discharge his burden of proof, since it is a core element of s 189.

319    Thus, after his Honour’s ruling, the evidentiary position was that there was no direct evidence of the reasonable suspicion of any officer responsible for the detention of the appellant at the time of the Minister’s decision in 23 August 2019, nor at any time thereafter and nor (critically in my opinion), at the time of trial. The submission made by counsel for the Minister to the primary judge during argument was:

MR HILL: Your Honour, I’m content to work with it either way. This is the point that can be seen from that, which is – the monthly case reviews after the one I last took your Honour to – the one that, I think there’s agreement, is admissible – they say there’s no new information. The applicant says he’s an Australian citizen. The Department’s position is it’s closed.

HIS HONOUR: Yes.

MR HILL: All I would say is you see that repeated until the date of the latest document that’s in evidence.

320    In my opinion it is not strictly necessary to resolve ground 5, since it is common ground there was no evidence about the suspicion of any officer responsible for the appellant’s detention at the time of trial. Subject to the approach taken by the primary judge by reference to a “presumption of continuance”, the Minister could not discharge the burden of proof I have found he had to justify the detention of the appellant under s 189 and s 196 at the time of trial.

321    Nevertheless, since the matter was argued, it should be determined. I accept as the appellant contended (at [46] of his written submissions) that he “rigorously and repeatedly stated that he was a citizen” from shortly before he was detained. I do not accept the next proposition of the appellant that

[d]etaining a person who claims that he is a citizen when that status means that that person cannot be lawfully detained gives rise to a near inevitability of proceedings (although, at most, only a likelihood or reasonable probability of proceedings is required to meet the s 69(3) test).

322    That is not the approach required by s 69(3). The phrase “in contemplation of” in s 69(3) refers to the person who “prepared” the representation, or who “obtained” it. It is that person who must have “contemplated” legal proceedings. And the person must have contemplated that proceedings were likely to be reasonably probable, not simply possible: see Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; 147 FCR 235 at [43]; BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 1351; 348 ALR 227 at [351]. The purpose of the exception is to guard against the admission of hearsay statements which may have been prepared with a self-serving purpose in mind, to assist the proof of a fact relevant or apprehended to be relevant in a proceeding: see Vitali v Stachnik [2001] NSWSC 303 at [12].

323    The officers whose views are recorded in the documents, and who on the face of the documents were required to form those views for the purposes of s 189, were in my opinion unlikely to have contemplated that proceedings about the appellant’s detention were reasonably probable. After the Minister made an adverse decision to the appellant, including on the appellant’s belief he was a citizen, which he had been so clear in asserting, I accept that contemplation was more likely. However, the tender of the documents post-August 2019 was not pressed.

324    Ground 5 fails.

Grounds 6 and 7

325    Ground 6 relates to the primary judge’s finding that, although there was no direct evidence that an officer suspected that the appellant was an unlawful non-citizen at any time after September 2018, it could be presumed that the suspicion continued to the date of the Court’s decision. The appellant submits that his Honour erred in relying on this presumption largely on the basis that it is inconsistent with authority to the effect that cogent evidence is required to justify the deprivation of a person’s liberty.

326    Ground 7 covers the same ground in substance, in the sense of impugning the primary judge’s inferential fact-finding about the existence of a reasonable suspicion at the time of trial because the evidence was not “strong, clear and cogent”, which he contends it needed to be.

327    The primary judge held at [177]:

Although there is no admissible evidence in relation to case reviews conducted beyond September 2018, there is also nothing to suggest that there has been a change in the nature of the suspicion held towards the applicant

328    He then held (at [178]-[179]):

The drawing of an inference from the admissible evidence that an officer currently holds the requisite suspicion in respect of the applicant exhibits a common mode of judicial reasoning. To explain, the revised version of Wigmore on Evidence classifies circumstantial evidence into three classifications, one of which is “prospectant evidence”: Wigmore JH, Evidence in Trials at Common Law (rev ed, Tillers P, Little, Brown and Company, 1983), Vol IA, § 43. The Hon Dyson Heydon AC QC explains that “the argument for the reception of this kind of evidence [i.e. prospectant evidence] is that the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed, at the moment of time into which the court is inquiring”: Heydon JD, Cross on Evidence (12th ed, LexisNexis Butterworths, 2019) (Cross on Evidence) [1120].

This form of inferential reasoning has otherwise been described as the application of a “presumption of continuance”: Wigmore JH, Evidence in Trials at Common Law (rev ed, Chadbourn JH, Little, Brown and Company, 1979), Vol II (Wigmore on Evidence, Vol II), § 437; Wigmore JH, Evidence in Trials at Common Law (rev ed, Chadbourn JH, Little, Brown and Company, 1981), Vol IX, § 2530. Particular examples of this “presumption” are outlined in Cross on Evidence at [1125]. This includes the presumption that a person’s state of mind will continue until the contrary is shown: Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 at [66]–[68] per Edmonds J; Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; 160 FCR 465 (Guiseppe) at [45] per Gyles and Edmonds JJ. Although often described as a “presumption”, it is, in truth, “no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts”: Cross on Evidence at [1125], citing R v Noonan [2002] NSWCCA 46; 127 A Crim R 599 at [18] per Bell J; see also Mason v Tritton (1994) 34 NSWLR 572 (Mason) at 587 per Kirby P. The issue is, as stated in Cross on Evidence at [1125], “simply one of relevance, depending on common human experience”.

329    Applying that approach to the issue before him, the primary judge held at [181]:

Returning to the present case, my view is that, in circumstances where: (i) an officer in May 2018 clearly held a subjective suspicion that the applicant was an unlawful non-citizen; (ii) that view was repeated in subsequent monthly case reviews up to September 2018; (iii) an officer expressed in September 2018 that the issue regarding the applicant’s citizenship was considered “closed”; (iv) the Minister in August 2019 decided not to revoke the applicant’s visa cancellation; and (v) there exists in February 2020 a continuing protocol that the appropriateness of the applicant’s detention is reviewed monthly, an inference may reasonably be drawn that, as at or around the date of this decision, an officer subjectively holds a suspicion that the applicant is an unlawful non-citizen.

330    I note here his Honour speaks of the holding of a suspicion, not the question of its reasonableness. At [182] the primary judge found the handing down of Love/Thoms by the High Court was not “an intervening circumstance that undermines the validity of this inference”. His explanation for this opinion was that, in his view, at no time had the appellant claimed to be of “biological Aboriginal descent”, and therefore the inference he was otherwise prepared to draw about the suspicion continuing was not “negated”. The primary judge then went on (at [183]-[186]) to distinguish the circumstances in PDWL.

331    As I understand grounds 6 and 7, both impugn the primary judge’s inferential reasoning on the holding of any suspicion at the time of detention, rather than going further to impugn whether it was open to the primary judge to find such a suspicion, if he inferred it was held, to be reasonable.

332    The cases to which I have referred at [258]-[278] above all make it very clear that it is the detainer who bears the burden of proving there is a lawful justification for a deprivation of liberty. At trial, and despite some hesitations expressed by the primary judge (see [119]), the parties are recorded (at [118]) as agreeing the Minister was the appropriate respondent. That reflects the Court’s jurisdictional base in s 476A(1), and the incidental nature of this relief to that jurisdictional base, which may well be appropriate. Otherwise, the Commonwealth is more likely to be the appropriate respondent. The content of that burden will always depend on the terms of the statutory authorisation for the deprivation by the executive of the liberty of an individual. If, as here, the justification is said to be located within s 189, then the burden on the detainer is to prove that the conditions in s 189 have been, and continue to be, satisfied. As both Jagot and Besanko JJ have previously made clear, in order to continue to detain a person, an officer must continue to have a reasonable suspicion that the person is an unlawful non-citizen. And, it should now be added, is not an Aboriginal Australian.

333    The primary judge’s approach cut directly across these authorities. With respect, there is no room for broad presumptions, or inferences of the kind to which his Honour referred. For the executive to be authorised by s 189 to detain an individual, there must, at all times, be “an officer” who holds the requisite suspicion about the person’s status, and that officer must have, at all times, reasonable grounds to hold such a suspicion. Of course, it may well be that the identity of the individual officer who is responsible for a person’s detention changes from time to time. As Jagot J said in Guo, the Commonwealth is free to establish whatever systems it considers adequate and appropriate to ensure it prove compliance with s 189(1). At [81] her Honour said:

The power which is vested in an officer to detain a person under s 189(1) is confined. If an officer detains a person, in the sense of either takes or keeps a person in an immigration detention, that officer must hold the requisite state of mind. All else is an issue of fact or inference from fact in circumstances where the onus is on the Commonwealth, not the detained person, and the Commonwealth can establish whatever procedures it wishes to ensure it can prove that any detention under the Act is lawful.

334    The primary judge applied these presumptions and inferences over a period of approximately 18 months, where there was no evidence at all before him about the state of mind of the detaining officers. That approach essentially relieves the Commonwealth of the burden of proof that is clear on the authorities it has, and is an erroneous approach. While one might refer to s 140 of the Evidence Act in this context, there is no need because the common law speaks with one voice on the matter, and always has.

335    I accept that in Burgess at [79], Besanko J observed, by reference to Ruddock v Taylor at [51], that there was “some force” in the Commonwealth’s submissions that the Court should infer that the requirements of s 189 were met throughout the applicant’s detention because Mr Burgess’

initial detention was lawful and nothing appears to have changed during his detention.

336    However, his Honour went on to find (at [80]) that while some evidence of reasonable suspicion during the period of Mr Burgess’ detention was adduced, there were gaps in the evidence and there was no evidence that those who held a reasonable suspicion on the evidence which was adduced were the officers who detained Mr Burgess. In other words, his Honour required proof of reasonable suspicion throughout the period and was not prepared to rely on any general inferences. Respectfully, that was the correct approach. The nature of the evidence sufficient for the burden to be discharged is a question of fact in each case.

337    It may be accepted that the Commonwealth as the detainer may chose a documentary mode of proof and thus rely on the Court drawing inferences about an officer’s state of mind from the documents: see, eg, Okwume (FC) at [325]. It will always be a question of fact on the evidence whether there is a sufficient probative basis for such an inference to be drawn. This however is an example of a specific inference as to a specific officer’s state of mind at a relevant time. It is not any broad or general inference extending over months or years of detention by (it would appear) a number of different Commonwealth officers. That could not comply with proof of the justification for detention on the terms of s 189(1).

338    Further, the primary judge’s approach to the situation post Love/Thoms was also, with respect, erroneous. The High Court’s majority decision in Love/Thoms brought about a significant development in the meaning and operation of s 189 and s 196 of the Migration Act, as well as to other aspects of the scheme which need not be addressed here. A category of people, previously considered to have been amenable to mandatory detention (and potentially to the visa regime) were found not to be. That should have brought about a substantial reassessment by the Commonwealth of all individuals who claimed, or might reasonably be suspected to be, Aboriginal Australians. As Jagot J said in Guo at [65]-[66]:

It may be accepted that Ruddock v Taylor decided that an officer may hold the requisite reasonable suspicion under s 189(1) even if the person is not an unlawful non-citizen, the reasonable suspicion being based on an error of law or fact. On the facts in Ruddock it was proved that each detaining officer reasonably suspected that the respondent was an unlawful non-citizen on the basis of satisfying themselves that the respondent’s visa had been cancelled and the respondent held no other visa (at [49]-[50]). At [51] it was held that:

It also follows from that fact, and the reasons given earlier, that the respondent’s detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent’s visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.

The reasoning at [51] contemplates that the lawfulness of continued detention of a person reasonably suspected to be an unlawful non-citizen may change during the course of detention as a result of an event which could affect the state of mind of the detaining officer or officers.

(Emphasis added.)

339    None of the evidence on which the Minister relied before the primary judge tended to prove that any officer had turned her or his mind to whether the appellant was an Aboriginal Australian and therefore not an alien, and therefore whether s 189 and s 196 were constitutionally incapable of applying to him. That is hardly surprising since the evidence before the primary judge stopped at the end of 2018 and Love/Thoms was not decided until February 2020. The evidence as admitted was incapable of contributing to the Minister discharging his burden of proof on this issue. The primary judge erred in essentially taking findings from the trial about the tripartite test and retrospectively applying them to the discharge of the respondent’s burden of proof.

340    The appellant having adduced enough evidence to “put in issue” whether he was an Aboriginal Australian, the Minister bore the onus of proving that an officer held, at the time of trial, a reasonable suspicion that the appellant was not an Aboriginal Australian. No evidence at all about any detaining officer’s state of mind on this matter was adduced.

341    As Black CJ said in Vadarlis at [71]:

Habeas corpus is a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time.

(Emphasis added.)

342    I note that in Burgess, Besanko J observed that the Commonwealth made a formal submission that Fernando was wrongly decided. No such submission was made on this appeal.

343    Grounds 6 and 7 should be upheld. On this basis, I respectfully agree with the Chief Justice that a writ of habeas corpus, and an order in the nature of habeas corpus, should issue and the appellant should be released.

Ground 8

344    Lastly, under this heading, on ground 8, the appellant submits that any suspicion that was held that the appellant is an unlawful non-citizen was not reasonable, at least insofar as it related to the appellant’s status as a non-citizen. He contends that the information about “long-standing administrative decisions” (eg being placed on the electoral roll and issued an Australian passport) indicating that the appellant is an Australian citizen meant that a reasonable officer could not simply ignore or give no effect to these matters without further inquiry.

345    The appellant relied on a passage from Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 at [6], where Gray and Lee JJ said:

It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and to form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen. That, of course, is consonant with the serious act the officer is empowered to carry out.

346    The appellant also relied on a passage from the reasons of Besanko J in Okwume (FC) at [134]:

If he or she did have the suspicion, then the question is whether a reasonable person in the officer’s position would have entertained a suspicion that the person was an unlawful non-citizen. That will involve, in the first instance, an examination of the circumstances known to the person. If a reasonable person in the officer’s position would have desisted from forming the suspicion or awaited further information or made further inquiries before forming the relevant suspicion, then the actual officer’s suspicion is not reasonable in the circumstances. As I understand the phrase “reasonably capable of being known” as used in Ruddock v Taylor, it includes inquiries a reasonable person in the position of the officer would make before forming the relevant suspicion. The meaning of suspicion is as articulated in George v Rockett (see above at [92]).

347    The primary judge spent a considerable amount of time in his reasons discussing the presumption of regularity (see [329]-[344]), concluding that it was an evidentiary presumption: at [339]. At [346], he held that the presumption

may aid the applicant to raise an evidential presumption that, as a matter of fact, the Minister formed a state of satisfaction for the purposes of the Passports Act that the applicant was an Australian citizen. That is because the formation by the Minister of that state of mind was a condition necessary to the issue of the applicant’s passport.

348    But then held that, as a matter of law, it could not assist the appellant because

citizenship is a statutory concept. It is an entitlement conferred only by statute. It cannot be conferred by mere administrative action, mistaken or otherwise.

349    There is no conclusion expressed by his Honour about the reasonableness of the suspicion of the detaining officers on the question whether the appellant was not an Australian citizen. However, at [352] the primary judge found

As for the alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant’s detention), the applicant has satisfied his initial evidential onus to raise a prima facie question as to the lawfulness of his restraint in respect of his claims to be unlawfully detained on the basis of his Australian citizenship. He did so by presenting evidence of his past enrolment on the Commonwealth electoral roll in 1986 and the issue of his Australian passport in 2017. However, the Minister has satisfied his ultimate legal onus to establish the lawfulness of the applicant’s detention by demonstrating that the applicant has never satisfied the statutory criteria for Australian citizenship.

(Bold emphasis added; italic emphasis in original.)

350    This finding appears under the heading “Alternative analysis: Direct challenge to lawfulness of applicant’s detention”. As expressed, the paragraph suggests the primary judge is dealing with the habeas corpus argument, although the finding is not expressed in terms of any detaining officer’s reasonable suspicion, but at a more absolute level, which perhaps can be seen as incorporating the lesser finding that the suspicion held by the detaining officers (on the primary judge’s approach to this issue, which I have found erroneous) was reasonably held.

351    The Minister submitted that the matters identified by the primary judge at [359], extracted at [161] above, were sufficient to establish the reasonableness of the suspicion, assuming it existed.

352    The difficulty with this ground is that it is premised on an approach by the primary judge which I have held to be erroneous; namely, his Honour’s approach to the evidence necessary to determine a claim for relief by way of habeas corpus.

353    There was no evidence of any suspicion held at the time of trial, let alone evidence as to its reasonableness. If there had been such evidence, then I accept, consistently with the authorities to which the appellant referred, the detaining officer would have been required to look at all the facts and circumstances before her or him, and so would any reviewing court. That exercise simply was not undertaken, and now cannot be undertaken. The argument about presumptions of regularity is not consistent with the authorities and in this context it is a distraction from the real issues, as it was before the primary judge.

354    The primary judge’s approach was so different that it would not be appropriate to uphold this ground. The primary judge’s approach has been identified as erroneous for other reasons. The better view is to find that, in light of my findings on the grounds of appeal to this point, this ground of appeal does not arise for determination.

Ground 9: whether the appellant is an Australian citizen

355    Section 10(1) of the 1948 Citizenship Act relevantly provided:

Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

356    It was common ground that this was the applicable provision by reason of s 4(2) of the Australian Citizenship Act 2007 (Cth). Section 4 of that Act provides:

(1)    For the purposes of this Act, Australian citizen means a person who:

(a)    is an Australian citizen under Division 1 or 2 of Part 2; or

(b)    satisfies both of the following:

(i)    the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

(ii)    the person has not ceased to be an Australian citizen under this Act.

Citizenship under the old Act

(2)    If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

357    The appellant relied on the 1948 Citizenship Act at November 1976 (when the appellant was formally adopted under the Queensland Adoption Act). The respondent relied on the 1948 Citizenship Act at February 1975 (when the appellant arrived in Australia). The difference between the parties is not material because the 1948 Citizenship Act was not relevantly amended between those dates.

358    The appellant’s submission is that the phrase “born in Australia” in s 10(1) should not be construed as limited to those whose physical birth occurred within the geographical territory of Australia. In other words, that the provision should be construed as if the words “by reason of fact or law” are inserted after “born in Australia”, such that a person “deemed” to have been born in Australia, by an Australian law, falls within the section. He contends this “explains” the identification of the appellant as an Australian citizen over the years by various Commonwealth officers. That submission can be immediately rejected, on the basis there is no evidence of any link between the appellant’s contentions in this proceeding and the reasons why the appellant has, erroneously, been treated and identified as an Australian citizen in the past.

359    This ground of appeal does not concern whether the suspicion of any detaining officer was reasonable. It is an argument directed at the appellant’s status as a non-citizen, as found by the primary judge, with his Honour’s conclusion being expressed at [322] of his reasons. The appellant did not pursue any argument before this Court (aside from ground 8, to the extent this issue is related) that the administrative acts involved in granting the appellant a passport, enrolling him to vote and otherwise identifying him as an Australian citizen in (for example) social security documentation and indeed in immigration detention records) had any legal effect on his status, if according to law he is a non-citizen.

360    The appellant submits that, by reason of s 31 of the Queensland Adoption Act and his adoption under that Act, he is deemed to have been born in Australia. As I have noted, that section provides:

(1)    Subject to this section, upon the making of an adoption order, the adopted child acquires the domicile of the adopter or adopters at the date of the adoption order and the child’s domicile thereafter shall be determined as if the child had been born in lawful wedlock to that adopter or those adopters.

(2)    The domicile acquired, upon the making of the order, by the child under subsection (1) of this section shall be deemed to be also the child’s domicile of origin.

361    The appellant submits that “domicile of origin” is “interchangeable at law with ‘born in Australia’”; accordingly, by reason of his adoption under the Queensland Adoption Act, the appellant was “born in Australia” for the purposes of s 10 of the 1948 Citizenship Act. He contends the historical context of the introduction of s 31 of the Queensland Adoption Act, and the way other States dealt with the domicile of adopted children, supports this proposition.

362    In support of this approach, the appellant refers s 5(3)(a) of the 1948 Citizenship Act, by which persons born on a registered ship or aircraft are deemed to have been born at the place at which the ship or aircraft was registered. That illustrates, he contends, that s 10(1) is not intended to be limited to physical birth in Australian territory and that Parliament contemplated the acquisition of citizenship by operation of law, and through a deeming mechanism.

363    The difficulty for the appellant is there is no basis in the text, context or purpose of s 10(1) of the 1948 Citizenship Act to construe the phrase “born in Australia” as intended to extend to persons who, by reason of a State statute, had been deemed upon their adoption to have a “domicile of origin” in that State. Instead, there is a basis to find no such intention.

364    The first and obvious point to be made, as the primary judge stated, is that citizenship is a statutory concept: see Love/Thoms at [98] (Gageler J); [172] (Keane J) (both in dissent on the result, but this point is uncontroversial); [236] (Nettle J); [299] and [305]-[306] (Gordon J); [415] (Edelman J). However, after Love/Thoms, citizenship is no longer the “obverse” of the status of alienage: cf Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 at [2].

365    The 1948 Citizenship Act as in force when the appellant entered Australia, and when he was adopted in Queensland in 1976, dealt with citizenship conferred by operation of law on persons “born in Australia” and “born outside Australia”. Those two statutory phrases were used in contrast to each other in the scheme. There is no basis to read the deliberate use of “in” and “outside” in the contrasting provisions to refer to anything but the geographical location of a person’s birth. Where Parliament sought to provide an exception to this binary treatment, it did so. An example is s 5(3).

366    The terms of s 5(3)(a) and (aa) were the only provisions which extended the meaning of “born in Australia” by a deeming device:

For the purposes of this Act—

(a)    a person born on a registered ship or aircraft shall be deemed to have been born at the place at which the ship or aircraft was registered and a person born on an unregistered ship or aircraft belonging to the government of a country shall be deemed to have been born in that country;

(aa)    a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed to have been born in Australia and, if born on or after 26th January, 1949, to be a person to whom sub-sections (2) and (3) of section 10 of this Act do not apply …