FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    Leave is granted for the applicant to rely on the “Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)” dated 11 March 2020 (Amended Application).

3.    There be an extension of time for the filing of the Amended Application.

4.    The applicant’s application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed.

5.    The costs of the habeas corpus application be reserved.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

ANDERSON J:

i. INTRODUCTION

1    The applicant, Edward McHugh, demands that the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), justify the lawfulness of the applicant’s custody in immigration detention. Subject to the outcome of this proceeding, the applicant is liable to be removed from Australia as an unlawful non-citizen. However, the applicant contends that he is not an unlawful non-citizen. The applicant seeks immediate release from detention.

2    The applicant argues that he cannot be lawfully deported, nor lawfully subject to immigration detention. This is because, according to the applicant, he is, first, an Aboriginal Australian and, second, an Australian citizen. The Minister rejects these claims. The Minister asserts that the applicant, who is a New Zealand citizen, is an “alien” to Australia for constitutional purposes, and is accordingly liable to lawful deportation.

Edward McHugh: Immigration, adoption, adulthood, detention

3    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.

4    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.

5    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.

6    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.

7    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

8    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).

9    In February 2018, the Department formed the view that the applicant was not an Australian citizen. In the Department’s view, the applicant was merely the holder of an absorbed person visa, which is a class of permanent visa that gives lawful status to particular non-citizens who have been long-time residents in Australia. In April 2018, the applicant was notified that this visa had been cancelled by the Minister. The next day, the applicant submitted a request for revocation of the visa cancellation. After the completion of the applicant’s criminal detention, he was transferred to immigration detention on 11 May 2018, and has been there since (albeit in different locations). The Minister contends that he has lawful authority to detain the applicant under s 189(1) of the Migration Act, which relevantly provides that “[i]f an officer knows or reasonably suspects that a person … is an unlawful non-citizen, the officer must detain the person”.

10    On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant’s visa (Minister’s decision). This meant that, subject to any legal challenge, the applicant was liable to be deported from Australia.

Legal challenge in this Court

11    On 2 October 2019, the applicant, then without legal assistance, applied to this Court for judicial review of the Minister’s decision. Now, with the assistance of legal representation, the applicant does not simply seek to challenge the validity of the Minister’s decision. His primary contention is that his ongoing detention is unlawful, and that he should accordingly be immediately released from detention. The applicant seeks relief in the nature of a writ of habeas corpus, which, in broad terms, allows a court to examine the legality of a person’s restraint and, if the Court finds the restraint to be unlawful, to order that the restrained person be released. Unless otherwise expressed, this form of relief is, for simplicity, referred to below as “habeas corpus”.

12    For reasons explained below at [56]–[57], I directed that the applicant’s application for habeas corpus would be heard and determined separate from, and prior to, the applicant’s application for judicial review of the Minister’s decision (should that latter application be necessary to address). Therefore, these reasons only address the applicant’s habeas corpus application.

Alleged unlawfulness of detention

13    The applicant’s first basis for establishing the unlawfulness of his detention arises from the High Court of Australia’s recent decision of Love v Commonwealth of Australia [2020] HCA 3 (Love). In that case, a majority of the High Court held that the relevant provisions of the Migration Act for detaining and removing unlawful non-citizens (which are enacted under the “aliens” legislative power conferred by s 51(xix) of the Constitution) do not validly apply to Aboriginal Australians. Relying on this authority, the applicant argues that he must be released from immigration detention on the basis that he satisfies the tripartite test for Aboriginality expressed by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)).

14    The Minister has proceeded in the present case on the basis that two of the three elements of the tripartite test are satisfied by the applicant; namely, that the applicant self-identifies as an Aboriginal Australian, and that he is recognised as such by an elder of the Ardyaloon Community. However, the parties are in dispute about the remaining element of the tripartite test: that the applicant is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. Neither is there any evidence tending to disprove his biological Aboriginality. In these circumstances, the applicant and the Minister dispute which party bears the onus of proving (or disproving) the satisfaction of this element. The applicant submits that the Minister bears the onus of proving that he has the lawful authority to detain the applicant as an alien. The Minister conversely submits that the applicant bears the onus of proving that he is not an alien.

15    The applicant alternatively argues that he is an Australian citizen. First, the applicant contends that, because his birth was registered in Queensland in 1976, he was “born in Australia” within the meaning of the relevant citizenship legislation such that he qualified for automatic citizenship. Second, the applicant further argues that his entry onto the electoral roll, and the issue of his Australian passport, establishes that he is an Australian citizen. The applicant contends that the Minister has not adduced evidence to displace the presumption that those administrative actions were legally valid.

16    The Minister rejects the applicant’s contention that he was “born in Australia” for the purposes of the relevant citizenship legislation. That phrase, in the Minister’s submission, refers to the applicant’s physical place of birth, and it is not in dispute that the applicant was physically born in the Cook Islands. The Minister moreover rejects the applicant’s argument in relation to the effect of his entry onto the electoral roll, and the issue of his Australian passport. In the Minister’s submission, those events, while ordinarily indicative of Australian citizenship, do not, as a matter of law, confer citizenship on the applicant. According to the Minister, conferral of citizenship only validly occurs where a person satisfies the prescribed statutory criteria, which never occurred in the applicant’s case.

Summary of my decision

17    The issues raised in the present case require a detailed consideration of principles of constitutional law, administrative law, migration law and citizenship law, the interpretation of various Commonwealth and State statutes, and an enquiry into the manner in which the relevant onuses of proof in the present case are to be discharged. A summary of my reasoning and decision is as follows.

18    As a consequence of the jurisdictional limitation in s 476A of the Migration Act, the Federal Court of Australia does not have original jurisdiction to directly review the validity of any act under the Migration Act in relation to the applicant’s detention. This means that this Court does not have original jurisdiction to hear and determine the applicant’s application for habeas corpus, as this remedy directly questions the lawfulness of the applicant’s detention. However, this Court retains original jurisdiction in the present case to determine whether or not the power to detain under s 189(1) of the Migration Act is capable of validly applying to the applicant in light of his claims to Aboriginality and Australian citizenship.

19    In my view, s 189(1) of the Migration Act is capable of applying to the applicant. This is because, for the following reasons, he is an alien to Australia for the purposes of s 51(xix) of the Constitution.

20    First, the applicant has failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2). The Minister accepted for the purposes of this application that the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. The applicant has accordingly failed to satisfy his onus of proving the factual elements necessary to establish that he is not an alien on the basis of his Aboriginality.

21    Second, the applicant is not an Australian citizen. Conferral of Australian citizenship only occurs through the satisfaction of prescribed statutory criteria. From the time that the applicant was born until the date of this decision, the applicant has not satisfied the statutory criteria for Australian citizenship. In particular, he was not “born in Australia” within the meaning of the relevant citizenship legislation. Moreover, the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his Australian passport, occurred as a matter of accepted fact. However, those administrative actions did not confer Australian citizenship on the applicant as a matter of law.

22    If I am wrong, and this Court does possess original jurisdiction to directly review the validity of the applicant’s detention, my view is nevertheless that the applicant is today lawfully detained under s 189(1) of the Migration Act. Although the Minister in the present case did not adduce direct evidence that, as at the time of the hearing, an officer subjectively held a suspicion that the applicant is an unlawful non-citizen, it is open for this Court in the circumstances of the present case to infer the existence of such a suspicion from the admissible evidence. For the reasons summarised above, that suspicion is reasonable; the applicant is, as a matter of law, an unlawful non-citizen.

23    For these reasons, the applicant’s application for habeas corpus is dismissed.

ii. Background to this proceeding

24    The applicant’s personal background was summarised above. That background will be further detailed in the course of these reasons. The purpose of Part II of these reasons is to provide a summary of the legal and procedural background to this decision.

Cancellation of applicant’s visa

25    On 7 October 2013, about four and a half years prior to the cancellation of the applicant’s absorbed person visa, the Department (then the Department of Immigration and Border Protection) wrote to the applicant to notify him that his visa would be considered for cancellation under s 501(2) of the Migration Act on character grounds, although the letter did not specify which class of visa was held by the applicant.

26    On 20 January 2014, the Department wrote to the applicant notifying him that a delegate of the Minister for Immigration and Border Protection had decided not to cancel his visa. However, the applicant was issued with a formal warning that the visa cancellation may be reconsidered if the applicant continued to commit further offences.

27    The applicant says that he did not receive the letters sent by the Department in 2013 and 2014. He says that he was “living rough” at the time and did not receive mail.

28    After the applicant’s last criminal convictions on 14 February 2018, representatives of the Department conducted enquiries into the status of the applicant’s citizenship. On 23 February 2018, a member of the Department’s Character Liability Assessment Team emailed that Department’s Citizenship Helpdesk regarding the applicant. That email presented the conflicting evidence regarding the applicant’s citizenship (in particular that the applicant was an Australian passport holder and that he held an Australian birth certificate).

29    On 26 February 2018, in response to that email, the Department’s Citizenship Helpdesk determined that the applicant was not an Australian citizen. In particular, the email response expressed that “it appears … that [the applicant] may have been issued with an Australian passport in error”. On the same date, the applicant’s Australian passport, which had been issued on 25 October 2017, was made void.

30    On 23 April 2018, the Department informed the applicant by letter that his visa had been cancelled pursuant to s 501(3A) of the Migration Act. The letter referred to the fact that the application had held an absorbed person visa since 1 September 1994 by operation of law.

31    By way of context, an absorbed person visa is a class of permanent visa that gives lawful status to a particular class of non-citizens who have been long-time residents in Australia, but do not hold a visa and would otherwise be unlawful non-citizens. Such a visa is taken to have been granted on 1 September 1994 to a non-citizen in the migration zone who: (i) was in Australia on 2 April 1984; (ii) had before that date ceased to be an immigrant; (iii) had not left Australia after that date; and (iv) was not a person to whom s 20 of the Migration Act applied immediately before 1 September 1994: s 34(2) of the Migration Act. The holder of an absorbed person visa may remain in, but must not re-enter, Australia: ibid, s 34(1). See, generally, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 and Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [36]-[38] per Kiefel, Bell, Keane and Edelman JJ.

32    On 24 April 2018, the day after the Department informed the applicant of his visa cancellation, the applicant requested the revocation of that decision under s 501(3A) of the Migration Act. It is unnecessary to detail the content of the applicant’s request for the purposes of this decision. However, it is apparent from subsequent correspondence, as detailed below, that the applicant contacted the Department and contested the assertion that he was not an Australian citizen.

33    On 30 April 2018, the Department wrote to the applicant to provide evidence that the applicant held an absorbed person visa. It is clear from the letter that, by this time, the Department had been provided with a copy of the applicant’s Queensland birth certificate, and was at least informed that the applicant held an Australian passport. The letter from the Department relevantly advised the following:

Evidence that you hold an Absorbed Person Visa is included with this letter.

In regards to your citizenship status I can confirm that you are not an Australian Citizen by descent.

Your birth certificate states you were born in Atiu Cook Islands, a New Zealand dependant territory until 1965 at which time it became a self-governed territory.

Your Queensland birth certificate sets out that the date of registration is 4 November 1976. Automatic acquisition via adoption did not come into effect until 22 November 1984, therefore, you did not automatically become an Australian citizen via adoption.

An Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.

Australian citizenship by descent is not automatic, you must make an application and you do not become an Australian citizenship by descent until such time as the application is approved. A search of historical records shows there is nothing to indicate that you ever applied for and acquired Australian citizenship either by conferral or descent.

Therefore your Absorbed Person visa remains cancelled. …

34    On 10 May 2018, the Department wrote again to the applicant in response to his enquiries about the cancellation of his visa. The letter expressed the following:

Dear Mr McHugh

I refer to you enquiries where you wish to seek clarification as to why you are not an Australian citizen.

You were born in the Cook Islands and claim you were adopted at around age five by relatives in Australia. At that time, there was no provision under Australian citizenship legislation, which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship.

On 22 November 1984, provisions were included in the Citizenship Act 1948 where by a child, who was present in Australia as a permanent resident, automatically became a citizen upon their adoption in Australia by an Australian citizen. These provisions were not retrospective, so only apply to adoptions that took place after that date.

As a person born outside Australia, the only manner you could have become an Australian citizen is by application either by conferral (as a permanent resident) or by descent (if you had an Australian citizen parent at the time of your birth).

The Department has undertaken a search of departmental records and cannot find a record that you have ever acquired Australian citizenship.

I note you were issued with a Queensland birth certificate and your adopted parents registered your birth on 4 November 1976. It is quite possible that you had been issued with an Australian passport in the past on the basis of this birth certificate.

The Australian Passport Office routinely issued Australian passports to person who were not Australian citizens in error. Therefore, the Australian passport issued to you on 25 October 2017 was done so in error.

This passport is no longer valid and should be returned to the Department of Foreign Affairs and Trade or your nearest Australian Embassy or High Commission. International border authorities have been notified of the passport cancellation.

I trust this information assists clarify why you are not an Australian citizen.

The applicant says he did not see this letter until about August 2018.

35    On 11 May 2018, the applicant, after being released from criminal custody, was detained in immigration detention.

36    In June and July 2018, the applicant sought legal advice, and provided his lawyer with a copy of his Australian passport. The lawyer informed the applicant of the Department’s position that the applicant’s passport had been issued in error.

37    On 7 August 2018, the applicant emailed Mr Colin Rowell (Mr Rowell), Assistant Director of the Citizenship Operations Section at the Department. The applicant expressed the following:

I have received confirmation that my Australian passport has been cancelled due to something incorrect about my birth certificate, can you please confirm in detail the reason for this cancellation of my Australian passport, i look forward to hearing from you.

38    On 10 August 2018, Mr Rowell replied as follows:

The issue to a person of an Australian birth certificate or Australian passport does not make that person an Australian citizen. A person is only an Australian citizen if they meet the requirements for Australian citizenship under the Australian Citizenship Act 2007.

[Mr Rowell then referred back to the key aspects in the Department’s letter dated 10 May 2018, as extracted above at [34].]

As you are not an Australian citizen, you are not entitled to hold an Australian passport and consequently your Australian passport has been cancelled.

39    On 13 September 2018, further email correspondence ensued between the applicant and Mr Rowell. The applicant raised the registration of his birth in Queensland and contended that the has automatically acquired citizenship by adoption.

40    On 18 September 2018 and 20 September 2018 respectively, the Department wrote to the applicant to inform him of certain information that might be taken into account by the Minister in making his decision whether or not to revoke the cancellation of the applicant’s visa. That information included the applicant’s National Criminal History Check.

41    On 17 October 2018, the applicant emailed the Department to respond to the information raised by the Department. The email largely addressed the past offences committed by the applicant, and further detailed his history. The applicant also expressed the following:

I’m not sure if I should be asking for a visa I’ve never seen or signed or even been told about until now in my life as I am an Australian citizen as I do have an Australian passport and , I would like nccc [i.e. National Character Consideration Centre] to consider the seriousness and manner of the process against me as it would be disastifying evidence when my case is proven to be a citizen of Australia …

(Errors in original.)

Minister’s decision

42    On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant’s visa. As these reasons do not address the applicant’s application for judicial review of the Minister’s decision, it is unnecessary to consider the Minister’s statement of reasons (Minister’s Reasons) in detail.

43    The Minister’s Reasons did not include express reference to the applicant’s claims that he was an Australian citizen, or an Aboriginal Australian. However, it is clear that documentation of those claims were before the Minister. A submission from the Department to the Minister in advance of the Minister’s decision included the following passages:

Other Relevant Information

Citizenship status

57.     Mr MCHUGH submits that he is an Australian citizen due to his Queensland Birth Certificate and Australian passport, which states that his nationality is Australian …. In the Department’s responses to Mr MCHUGH’s Australian citizenship claims he has been informed that

•    .When Mr MCHUGH’s arrived in Australia (12 February 1975) there was no provision under the Australian citizenship legislation which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship. Mr MCHUGH did not automatically acquire citizenship and the Department has assessed he is not an Australian citizen.

•    An Australian passport is not evidence of a person’s citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only.

•    The passport is no longer valid, has been cancelled and should be returned to the Department of Foreign Affairs and Trade or the nearest Australian Embassy or High Commission …

…

Sensitivities

63.     Mr MCHUGH, who was born in the Cook Islands, identifies as a member of the Aboriginal community, having lived in Australia since the age of seven and having grown up in and been accepted by the Darwin indigenous community. Furthermore he submits that he is an Australian citizen, on the basis of having an Australian birth certificate (as a result of having been adopted here) and an Australian passport. However his case has been assessed in detail by the Citizenship Helpdesk, which has advised that he is not an Australian citizen and his passport (which was issued prior to 2005, when changes were introduced which would now preclude such an issue) has been cancelled and should be returned.

Proceeding in this Court

44    On 2 October 2019, the applicant sought judicial review of the Minister’s decision. The applicant did not have legal assistance at the time.

45    On 12 December 2019, a case management hearing was held in the proceeding, at which the applicant appeared via video-link from the immigration detention centre at which he was then detained. The applicant informed me at the hearing that he was an Australian citizen and confirmed that he sought judicial review of the Minister’s decision. The matter was thereafter listed for hearing on 11 March 2020.

46    On 13 February 2020, Victoria Legal Aid (VLA) filed a notice on behalf of the applicant informing the Court that Mr Guy Coffey (Mr Coffey), a solicitor at VLA, had been appointed to represent the applicant in the proceeding.

47    On 28 February 2020, an affidavit of Mr Coffey was filed on the applicant’s behalf. The affidavit relevantly annexed a “Draft Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)”. A revised version of this document dated 11 March 2020, broadly in the same form as the original, was handed up at the start of the hearing on that date (applicant’s amended application). The Minister did not object, and leave was granted for the applicant to rely on the amended application.

48    The applicant’s amended application identified five grounds. The two grounds relevant to the application for habeas corpus are as follows:

Grounds of application for relief in the nature of the writ of habeas corpus

A.    Edward McHugh is a citizen with the result that there was no power to grant, cancel, or revoke cancellation of any visa in his name, nor was or is he liable for detention under s 189 of the Migration Act 1958 (Cth).

B.    Edward McHugh is not an alien for the purposes of the constitution and therefore cannot be detained as an ‘unlawful non-citizen’ under the Migration Act 1958 (Cth).

…

49    The applicant’s amended application sought various relief. The forms of relief relevant to the application for habeas corpus are as follows:

A.    There be an extension of time for the filing of the originating application.

B.    There be leave to amend the originating application in the present form.

C.    Relief in the nature of a writ of habeas corpus issue.

D.    Enjoin the Minister including by his officers or agents from treating the Applicant as a non-citizen.

E.    If the Applicant is not detained at the date of judgment, a declaration that he is a citizen of Australia.

…

J.    That the Respondent pay the Applicants costs.

50    As can be seen from the first form of relief sought, the applicant requires an extension of time to file his application. However, the Minister informed the Court in written submissions that he does not oppose the extension of time. I accordingly granted an order to that effect.

Section 78B notices

51    The respective Attorneys-General of the Commonwealth or a State are entitled to intervene in proceedings in this Court that relate to a matter arising under the Constitution or involving its interpretation: s 78A of the Judiciary Act 1903 (Cth) (Judiciary Act).

52    Section 78B of the Judiciary Act provides the mechanism by which the Attorneys-General are notified of proceedings that present this opportunity. That provision relevantly provides the following:

Notice to Attorneys-General

(1)     Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2)     For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a)     may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b)     may direct a party to give notice in accordance with that subsection; and

(c)     may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

…

(5)     Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

53    On 2 March 2020, nine days before the hearing, a Notice of a Constitutional Matter was filed by the applicant under s 78B of the Judiciary Act (Applicant’s s 78B Notice). The constitutional issues addressed in that notice relate to a ground for judicial review of the Minister’s decision, and are unnecessary to detail for present purposes.

54    The next day, on 3 March 2020, eight days before the hearing, a separate Notice of a Constitutional Matter was filed by the Minister under s 78B of the Judiciary Act (Minister’s First s 78B Notice). That notice relevantly expressed the following:

In this matter, a question arises whether the Applicant is an Aboriginal Australian in the sense described in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [81] and in consequence (inter alia):

•    is not an alien for the purposes of s 51(xix) of the Constitution; and

•    cannot be detained under s 189 of the Migration Act 1958 (Cth) (the Act).

55    Once the filing of these notices had reached my attention, I listed a case management hearing in the proceeding on 6 March 2020 for the parties to address me on, amongst other issues, whether, in accordance with the terms of s 78B(1) of the Judiciary Act, a “reasonable time” would elapse between the giving of both the Applicant’s s 78B Notice and the Minister’s First s 78B Notice respectively and the hearing of the application. After hearing the parties at the case management hearing, I made a direction that each party, in respect of their own notice, contact the offices of the respective Attorneys-General prior to the hearing to confirm whether the Attorneys-General intended to intervene in the proceeding.

56    At the start of the first hearing day, on 11 March 2020, the parties provided an update as to the response of the Attorneys-General in relation to the Applicant’s s 78B Notice and the Minister’s First s 78B Notice respectively. In short, given the relative urgency of the applicant’s habeas corpus application, both the applicant and Minister agreed that, in respect of the Minister’s First s 78B Notice, a “reasonable time” had elapsed for the purposes of s 78B of the Judiciary Act. However, I agreed with the applicant’s submission (which was unopposed by the Minister) that a reasonable time had not yet elapsed in respect of the Applicant’s s 78B Notice.

57    On this basis, I agreed to hear the applicant’s application for habeas corpus (including the constitutional issues raised in the Minister’s First s 78B Notice) separate from, and prior to, the applicant’s application for judicial review of the Minister’s Decision (including the constitutional issues raised in the Applicant’s s 78 Notice). Apart from complying with s 78B(1) of the Judiciary Act, this sequence was logically sensible as, if the applicant succeeded in establishing that he was not an alien, and was therefore released for detention, his judicial review application would be rendered redundant.

58    For completeness, I also note that on 16 March 2020, four days after the hearing of the habeas corpus application was completed, the Minister filed a Further Notice of a Constitutional Matter (Minister’s Second s 78B Notice). The constitutional issues addressed in the Minister’s Second s 78 Notice relate to a ground for judicial review of the Minister’s decision, and are unnecessary to detail for present purposes.

Hearing of the application

59    The hearing of the applicant’s habeas corpus application took place on 11 and 12 March 2020. The applicant was represented by Mr Albert of counsel, and the Minister was represented by Mr Hill of counsel. I am grateful to both of them (and their instructing solicitors, VLA and the Australian Government Solicitor respectively) for their detailed written and oral submissions in relation to the complex issues raised in the present case.

60    The applicant was present in court during the hearing. At the pre-hearing case management hearing on 6 March 2020, I had, upon request by Mr Albert (and in the face of opposition from Mr Hill), directed that the Minister arrange for the applicant to be brought from the immigration detention centre to attend the hearing. My usual view is that this is unnecessary where a litigant in immigration detention has legal representation. However, my view was that the present case was of such a character that it warranted the attendance of the applicant in person so that he could view the hearing and also be in a position to provide instructions to his representatives.

61    The parties provided two sets of written submissions after the completion of the hearing. First, on 16 March 2020 (Minister) and 18 March 2020 (applicant), the parties filed supplementary written submissions in relation to a number of issues arising from the hearing, including the jurisdictional limitation in s 476A(1) of the Migration Act, and the entitlement of the Court to infer of the existence of a subjective suspicion of an officer for the purposes of s 189(1) of the Migration Act. Then, on 31 March 2020 (Minister) and 2 April 2020 (applicant), the parties filed further supplementary submissions in relation to the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (PDWL), which was delivered by Wigney J on 17 March 2020.

III. Minister’s basis for restraint

62    The Minister contends that the applicant’s initial, and continuing, custody in immigration detention in the present case is lawfully supported by s 189(1) of the Migration Act, which provides as follows:

Detention of unlawful non-citizens

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

…

63    This statutory provision should be read together with s 196 of the Migration Act, which relevantly provides as follows:

Duration of detention

(1)     An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

   (a)     he or she is removed from Australia under section 198 or 199; or

(aa)     an officer begins to deal with the non-citizen under subsection 198AD(3); or

   (b)     he or she is deported under section 200; or

   (c)     he or she is granted a visa.

(2)     To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)     To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)     Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

…

64    The application of these statutory provisions is discussed further below. Before doing so, it is necessary to address a critical preliminary issue in relation to the scope of the Federal Court of Australia’s original jurisdiction in relation to administrative acts taken under the Migration Act.

IV. Jurisdictional limitation

65    The first duty of a court is to confirm that it has jurisdiction to hear and determine the issues raised by the parties: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 at 415 per Griffith CJ; Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 at 446 per Isaacs ACJ, with Gavan Duffy J agreeing; Re Nash (No 2) [2017] HCA 52; 263 CLR 443 at [16] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ; see also Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, The Federation Press, 2020) (Leeming’s Authority to Decide) pp 37–38.

Limited original jurisdiction of the Federal Court

66    Section 476A(1) of the Migration Act provides the following:

Limited jurisdiction of the Federal Court

(1)     Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)     the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)     the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)     the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d)     the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

67    The practical effect of s 476A, with limited exceptions, is to exclude the matters that would otherwise be within the original jurisdiction of this Court in relation to “migration decisions” (in particular that jurisdiction conferred by s 39B of the Judiciary Act): see Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth), pp 12–13 and Mr Ruddock (Attorney-General), Migration Litigation Reform Bill 2005 Second Reading Speech, 10 March 2015, Australian Parliamentary Debates, House of Representatives, pp 2–3; Matete v Minister for Immigration and Citizenship [2009] FCA 187 at [11] per Stone J. Section 476A is therefore “an instance of indirect express amendment: whose effect is to alter the combined legal meaning of the general conferral of jurisdiction and the specific qualification of exclusion in the later law”: Leeming’s Authority to Decide at 142.

68    The reach of the jurisdictional limitation in s 476A(1) of the Migration Act is confined to applications for “public law remedies in the nature of judicial review” of migration decisions: DBE17 v Commonwealth [2019] HCA 47; 94 ALJR 41 (DBE17) at [15] per Nettle J; see also Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [9] per Rares, Perram and Wigney JJ. However, s 476A(1) does not oust this Court’s original jurisdiction to hear and determine proceedings that involve the ancillary or collateral consideration of “migration decisions”, such as claims in tort for false imprisonment, misfeasance in public office and negligence: DBE17 at [14], citing Okwume v Commonwealth of Australia [2016] FCA 1252 (Okwume (TJ)) at [28] per Charlesworth J; see also Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 (Fernando) per Siopis J.

69    As indicated above, the purported statutory authority relied upon by the Minister for the applicant’s current detention is s 189(1) of the Migration Act. As can be seen from the terms of s 476A(1), there is no express conferral of original jurisdiction upon this Court in relation to s 189(1). It was the Minister’s submission, therefore, that this Court does not have original jurisdiction to review any exercise of power under s 189(1). This submission rests on an exercise of power under s 189(1) being characterised as a “decision” (from which the definition of “migration decision” in s 476A(1) is derived: see the s 5(1) definition of “migration decision”, and the related definitions of “privative clause decision” and “purported privative clause decision”). The applicant conversely submits that an exercise of power under s 189(1), which is an act compelled by the Migration Act, is not properly characterised as a “decision”.

“Migration decision”

70    The fact that s 189(1) of the Migration Act imposes a “statutory command” on an officer to detain a person reasonably suspected of being an unlawful non-citizen (Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb) at [236] per Hayne J) does not preclude the act of detaining, or continuing to detain, that person under s 189(1) from being characterised as a “decision” for the purposes of the jurisdictional limitation in s 476A(1). This is clear from the statutory definitions underpinning s 476A(1).

71    A “migration decision”, as referred to in the chapeau to s 476A(1) of the Migration Act, is defined by s 5(1) of that Act as comprising, amongst other statutory concepts, a “privative clause decision”, which, in accordance with its own definition in s 5(1), has the meaning provided by s 474(2). That statutory provision, along with the related provision in s 474(3), provides as follows:

(2)     In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)     A reference in this section to a decision includes a reference to the following:

(a)     granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)     granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)     granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

  (d)     imposing, or refusing to remove, a condition or restriction;

(e)     making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

  (f)     retaining, or refusing to deliver up, an article;

  (g)     doing or refusing to do any other act or thing;

(h)     conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)     a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

  (j)     a failure or refusal to make a decision.

72    Subsection (3) of s 474 of the Migration Act has the effect of expanding the ordinary meaning of a “decision”: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [65]–[66] and [68] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 (EFX17) at [37]–[40] per Greenwood J, [170] per Rares J and [216] per Logan J (dissenting, but not in relation to the question of the Federal Circuit Court of Australia’s jurisdiction). This effect is consistent with the legislative policy underpinning s 474: EFX17 at [59]–[61] per Greenwood J and [214] per Logan J.

73    The expanded definition of a “decision” notably includes, if the terms of ss 474(3)(a)–(f) are not satisfied, the “doing or refusing to do any other act or thing”: s 474(3)(g). Moreover, the definition of a “privative clause decision” under s 474(2) relevantly includes “a decision … required to be made” (emphasis added). Any action, or inaction, taken under the Migration Act needs to be viewed through this prism: see EFX17 at [216] per Logan J. The act of detaining, or continuing to detain, a person under s 189(1) is the doing of an act that the Migration Act requires the officer to do. Accordingly, based on the applicable statutory definitions, the act of detaining, or continuing to detain, a person under the Migration Act constitutes a “migration decision” for the purposes of the jurisdictional limitation in s 476A(1).

74    This view differs from that recently expressed by Wigney J in PDWL. In that case, his Honour, in response to an urgent application for relief in the nature of a writ of habeas corpus, ordered that the first respondent, a citizen of Afghanistan, be released forthwith from immigration detention. In the circumstances of that case, s 189(1) of the Migration Act provided no justification for the ongoing detention of the first respondent: PDWL at [87].

75    In relation to the question as to whether the detention of an unlawful non-citizen under the Migration Act constituted a “migration decision” for the purposes of s 476A of the Migration Act, Wigney J expressed the following in PDWL:

[61]     The Minister sought to argue that the Court had no jurisdiction to entertain PDWL’s application by reason of s 476A of the Migration Act. …

[62]    The Minister sought to characterise PDWL’s application for a writ in the nature of habeas corpus as an application “in relation to a migration decision”. That was said to be because some hypothetical officer somewhere in the Commonwealth must have made a decision to detain the first respondent under subs 189(1) of the Migration Act. …

[63]     … [T]he Minister’s characterisation of PDWL’s application for habeas corpus as being a review of a hypothetical decision by the hypothetical officer to detain PDWL under subs 189(1) of the Migration Act has no merit and is rejected. The fact that PDWL has been detained does not mean that a decision was made, or must have been made, by an officer to detain him under subs 189(1) of the Migration Act. No decision under the Migration Act is required as a precondition to the power and duty to detain an unlawful non-citizen: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70 at [31]. …

(Emphasis added.)

76    Wigney J held that the first respondent’s application in that case—which his Honour characterised as one for relief against an officer of officers of the Commonwealth for lawful detention—fell within the Federal Court’s jurisdiction under the Judiciary Act: ibid at [64]. His Honour then concluded in respect of the jurisdictional issue as follows:

[77]     The Minister’s contention that the Court does not have jurisdiction to entertain PDWL’s application has no merit and is rejected. That is so whether it be considered to be an application for a writ of habeas corpus, an action in the nature of habeas corpus, an action for injunctive relief against an officer of the Commonwealth, or an action in respect of a matter arising under the Migration Act. Either way, the Court has jurisdiction to entertain such an application under s 39B of the Judiciary Act and power to make an order releasing a person from detention under s 23 of the Federal Court Act. The Court’s jurisdiction to entertain such an action is not affected in any way by s 476A of the Migration Act because it is not an action in relation to a migration decision.

77    With the greatest of respect to Wigney J, some aspects of the reasoning in PDWL do not reflect the current position of the law. This follows from his Honour’s reliance (at [63] and [85] of PDWL) on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 (Al Masri) to support the conclusion that the detention of an unlawful non-citizen under Migration Act does not require a “decision”. In that case, the Full Court (constituted by Black CJ, Sundberg and Weinberg JJ) stated the following:

[30]     The relationship between ss 189 and 196 was considered by this Full Court in another appeal: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at 275-277 [149]-[152]; 196 ALR 111 at 135-136 [149]-[152] (VFAD). We adopt what was said in that case and conclude that the sphere of operation of s 189 is complete once a person is detained in immigration detention and that thereafter continuing detention is provided for by s 196. We would not impute to the Parliament an intention such that if s 196 did not operate to render lawful the continued detention of an unlawful non-citizen, that consequence could be avoided by a succession of repeated actions to detain under s 189.

[31]    The effect of ss 189 and 196 is that no decision under the Act is required as a precondition to the power and duty to detain an unlawful non-citizen. Detention depends upon the status of the person, and in that sense the detention regime is clearly administrative, mandatory, indefinite and, if the Solicitor-General’s submissions are accepted, possibly even permanent.

(Emphasis added.)

78    Some aspects of these passages in Al Masri, as published in 2003, do not accurately reflect the current position of the law. First, the remarks in Al Masri in relation to interrelationship between ss 189 and 196 of the Migration Act have been superseded by the High Court’s decision in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 (Ruddock v Taylor). That case involved consideration of the lawfulness of two periods of detention of the respondent; the first lasting 161 days and the second 155 days: ibid at [3]. The plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ expressed at [25] that “the lawfulness of the respondent’s detention turned upon whether there was statutory or other authority to detain him” and “[t]hat required consideration of s 189”. Implicit in this analysis is that s 189(1) empowers an officer not only to initially detain a relevant person, but also to continue to detain that person. This interpretation of Ruddock v Taylor, which I follow, was applied in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 at [34] per Crennan J and Guo v Commonwealth [2017] FCA 1355; 258 FCR 31 (Guo) per Jagot J (see in particular [69]–[70] and [83(3)]–[83(4)]); see also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 (Okwume (FC)) at [165] per Besanko J; although see, contra, Okwume (TJ) at [196] per Charlesworth J. In this regard, it is important, in my view, that the s 5(1) definition of “detain”, which is picked up by s 189(1), includes to “keep, or cause to be kept, in immigration detention” (emphasis added).

79    Second, and most importantly for immediate purposes, Al Masri was decided before the insertion of s 476A into the Migration Act in 2005 by the Migration Litigation Reform Act 2005 (Cth). There was accordingly no consideration in that case of the extended definition of a “decision” in s 474(3) that is applicable in the present case. Thus, in my view, Al Masri does not currently support the proposition that the act under the Migration Act of detaining, or continuing to detain, a person does not constitute a “migration decision” for the purposes of the jurisdictional limitation in s 476A(1).

80    In highlighting these deficiencies with the modern application of Al Masri, I am not expressing any criticism of Wigney J in PDWL. His Honour was delivering ex tempore reasons as duty judge in response to an urgent application involving the liberty of the respondent in that case. Moreover, importantly, it does not appear that counsel in that case brought his Honour’s attention to the extended definition of a “decision” in s 474(3) of the Migration Act, nor the dangers in relying on outdated remarks in Al Masri.

Application to the present case

81    For the reasons above, except where expressly permitted by s 476A(1)(a)-(d) of the Migration Act, this Court does not have original jurisdiction to directly review the validity of the “doing or refusing to do any … act or thing” under the Migration Act. Does the applicant’s application for habeas corpus engage this form of review?

82    There are accepted differences between a habeas corpus application at common law, which centre on the lawfulness of a physical restraint, and a judicial review application at common law, which centre on the jurisdictional validity of administrative action. In particular, although a habeas corpus application compels an enquiry into the lawfulness of administrative action at a particular point in time, they are not strictly a means of collaterally impeaching the jurisdictional validity of previous administrative decisions. This is apparently the basis upon which a series of recent Victorian decisions have expressed that “habeas corpus does not provide a remedy by way of judicial review”: PR v Department of Human Services [2007] VSC 338 at [6] per Osborn J, cited in Antunovic v Dawson [2010] VSC 377; 30 VR 355 at [126] (Antunovic) per Bell J and Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 at [540] per John Dixon J. (In relation to the distinction between a habeas corpus application and a judicial review application in the United Kingdom, see Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin); [2019] 4 WLR 95 at [45]–[67] per Singh LJ, with Dingemans J agreeing; but cf Wade HWR, “Habeas corpus and judicial review” (1997) 113 Law Quarterly Review 55.)

83    Notwithstanding any differences between these forms of application, for the purposes of the jurisdictional limitation in s 476A(1) of Migration Act, a habeas corpus application in the context of immigration detention under the Migration Act inherently engages the precise form of investigation that s 476A(1) (read with ss 474(2) and (3)) seeks to prohibit the Federal Court from undertaking in its original jurisdiction; namely (except where specifically permitted), the direct review into the lawfulness of administrative action taken pursuant to that Act. As expressed by Black CJ in Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 (Vardalis) at [71], “[h]abeas corpus is a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time”. This inherently compels the reviewing court to determine whether “liberty is lawfully restrained”: Ex parte Walsh; In re Yates [1925] HCA 53; 37 CLR 36 (Walsh) at 79 per Isaacs J. For this reason, my view is that the applicant’s application in the present case—for relief in the nature of habeas corpus—is, to paraphrase Rares, Perram and Wigney JJ in Tang and Nettle J in DBE17, an application for a public law remedy in the nature of direct judicial review of a migration decision.

84    As evident from decisions such as Fernando, Tang and DBE17, the phrase “in relation to” in s 476A of the Migration Act has not been interpreted with the full breadth that its ordinary meaning could potentially warrant. As explained in those decisions, this is due to the subject matter and legislative history underpinning Div 2 of Pt 8 (containing ss 474A–484) of the Migration Act. There is consequently a line drawn between proceedings of different character.

85    On one side of the line, the jurisdictional limitation in s 476A(1) does not apply to proceedings involving the ancillary or collateral attack on the lawfulness of a person’s detention under the Migration Act. As explained by McHugh J in Ousley v The Queen [1997] HCA 49; 192 CLR 69 (Ousley) at 98–99, “[a] collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision”. In the present statutory context, this has enabled litigants, in the Federal Court’s original jurisdiction, to collaterally challenge the lawfulness of their restraint in immigration detention through claims in tort for false imprisonment, misfeasance in public office or negligence.

86    On the other side of the line, however, the jurisdictional limitation in s 476A(1) applies to oust proceedings involving the direct attack on the lawfulness of a person’s detention under the Migration Act. This will clearly cover, for example, an application for judicial review of an administrative decision under the Migration Act to cancel a visa (that is not otherwise permitted under paragraphs 476A(1)(a)–(d)): Matete at [11]–[12]. In my view, an application for habeas corpus in the context of immigration detention under the Migration Act also falls on this side of the line. This is because, to apply McHugh J in Ousley, the primary object of such an application is to set aside the act of detention by, or on behalf of, the respondent to that application. Ultimately, it would be artificial not to describe such an application as one being in relation to a “migration decision” as defined.

87    The Federal Court of Australia is a creature of statute; and its creator, the Commonwealth Parliament, may giveth jurisdiction, and it may taketh jurisdiction away. For these reasons expressed above, s 476A(1) of the Migration Act removes this Court’s original jurisdiction to hear and determine the applicant’s application for habeas corpus.

Residual original jurisdiction

88    This, however, does not bring an end to the present case. To the extent that the jurisdictional limitation in s 476A(1) does not apply, this Court retains original jurisdiction in any matter arising under the Migration Act: s 39B(1A)(c) of the Judiciary Act. The Minister accepted in the present case that, even though this Court did not have original jurisdiction in relation to “migration decisions”, the Court nonetheless continued to possess the residual original jurisdiction to determine whether or not the applicant was a person to whom s 189(1) could validly apply. As explained in the written submissions filed on behalf of the Minister:

… s 476A only limits the jurisdiction of this Court in relation to decisions. Section 476A does not prevent this Court from determining, without challenging any actual decision made under s 189, the anterior legal question of whether the Applicant is a person to whom s 189 is capable of validly applying. That jurisdiction remains under s 39B of the Judiciary Act.

89    This restricted enquiry has fundamental implications for my consideration of the issues raised by the parties in their submissions. In particular, as the Court is confined to determining whether or not s 189(1) was capable of validly apply to the applicant, there is no need to consider the nature and operation of an application for habeas corpus. Additionally, as this Court does not have original jurisdiction to directly review the validity of the applicant’s detention, this Court cannot validly enquire into whether an officer currently holds a reasonable suspicion under s 189(1) in respect of the applicant.

Consideration of alternative analyses

90    The present case involved extensive argument from counsel, both in written and oral form, in relation to a range of complex issues. This included issues in relation to the nature of an application for habeas corpus and the application of the terms of s 189(1) of the Migration Act to the applicant.

91    In deference to counsel, and for the purposes of addressing all the questions raised at trial should any party wish to appeal from this decision (see Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 at [154] per McLeish JA), these reasons will proceed to analyse the parties’ submissions on the following two alternative bases:

(a)    on the basis that this Court does not have original jurisdiction to directly review the validity of the applicant’s detention (as I have determined above) (primary analysis); and

(b)    on the assumption that I am wrong on the jurisdictional question, on the basis that this Court does have original jurisdiction to directly review the validity of the applicant’s detention (alternative analysis).

92    The primary analysis constitutes the ultimate reasoning underpinning the outcome of this decision. However, as will be explained, my view is that the choice between the two forms of analysis makes no difference to the ultimate practical outcome in the present case.

93    The balance of these reasons is structured as follows:

(a)    Part V (Direct challenge to detention), which starts from the next paragraph, involves the consideration of issues uniquely relevant to the alternative analysis; namely (and broadly), the nature of an application for habeas corpus and the identification of an officer’s reasonable suspicion in respect of the applicant for the purposes of s 189(1) of the Migration Act;

(b)    Part VI (Applicant’s Aboriginality), which starts below at [190], addresses the applicant’s claims that he is an Aboriginal Australian. This part is relevant to both the primary analysis and the alternative analysis, although the nature of the onus to prove the applicant’s Aboriginality differs between those analyses;

(c)    Part VII (Applicant’s citizenship), which starts below at [248], addresses the applicant’s claims that he is an Australian citizen. This part is relevant to both the primary analysis and the alternative analysis; and

(d)    Part VIII (Conclusion), which starts below at [353], reconciles the consideration in Parts V–VII and explains why the applicant does not succeed on either the primary analysis or the alternative analysis; and

(e)    Part IX (Orders), which starts below at [375], sets out my orders resulting from the analysis in these reasons.

v. Direct CHALLENGE to detention

94    Part V of these reasons relates solely to 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). It is convenient to address these issues first because the alternative analysis requires an additional layer of inquiry into the nature of an application for habeas corpus and the satisfaction of the terms of s 189(1) of the Migration Act in the present case.

Habeas corpus

95    The first two grounds of the applicant’s amended application sought to establish a basis for this Court to grant relief in the nature of a writ of habeas corpus. It is necessary for the purposes of the alternative analysis to introduce the nature, effect and availability of such relief.

Jurisdiction of this Court

96    The Federal Court of Australia’s jurisdiction to grant “relief in the nature of a writ of habeas corpus”, as sought by the applicant, was not a topic of detailed submissions in the present case. The applicant’s opening written submissions expressed that such a remedy could be issued pursuant to this Court’s power under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which, for reference, provides that this 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”. No objection to this proposition was raised by the Minister.

97    Although doubts remain as to whether the Federal Court has the authority to award a writ of habeas corpus per se (see, for example, Clark D and McCoy G, Habeas Corpus: Australia, New Zealand and the South Pacific (2nd ed, The Federation Press, 2018) (Clark and McCoy’s Habeas Corpus) pp 26–28 and Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 (Alsalih) at [41]; but cf Clark D, “Jurisdiction and Power: Habeas Corpus and the Federal Court” (2006) 32(2) Monash University Law Review 275), it appears accepted that this Court has power, pursuant to s 23 of the FCA Act, to make an order in the nature of a writ of habeas corpus: Vadarlis at [106] per Beaumont J; Al Masri at [170]; Alsalih at [41]; Al-Kateb at [24] per Gleeson CJ; Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 at [19] per Logan J, with Reeves and Markovic JJ agreeing; PDWL at [70]–[76].

History and nature of the remedy

98    The history and nature of the writ of habeas corpus has been detailed elsewhere: see, for example, Clark and McCoy’s Habeas Corpus at 19–22 and Antunovic per Bell J. Historically, there were various forms of the writ that served different purposes: see Secretary of State for Home Affairs v O’Brien [1923] AC 603 (O’Brien) at 609 per Earl of Birkenhead and Clark and McCoy’s Habeas Corpus at 33–36. The relevant form of the writ (or at least relief in its nature) that is applicable on the alternative analysis in the present case is habeas corpus ad subjiciendum, which, in broad terms, allows a court to examine the legality of a person’s restraint and, if the Court finds the restraint to be unlawful, to order that the restrained person be released: see Clark and McCoy’s Habeas Corpus at 37 and Antonovic at [16], citing Blackstone W, Commentary on the Laws of England (1768), Vol 3, p 131.

99    It is unnecessary to further detail the scope and grounds of review in an application for habeas corpus. In relation to habeas corpus in Australia, see generally Clark and McCoy’s Habeas Corpus and Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) (Aronson, Groves and Weeks’ Judicial Review of Administrative Action) Ch 14. In relation to habeas corpus in the United Kingdom, see Farbey J, Sharpe RJ and Atrill S, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011).

100    The locus of the onus of proof in respect of various issues for determination in the present case was a key point of dispute between the parties. For the purposes of the alternative analysis, it is convenient to outline the basis for granting habeas corpus by reference to the legal and evidential onuses operating in an application for such relief.

Onus of proof

101    It is well-accepted that, in an application for habeas corpus, the respondent bears the ultimate legal onus of proving that the restraint of the applicant is legally justified: R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; 3 CLR 93 (Lindbergh) at 95 per Griffith CJ, Barton and O’Connor JJ; R v Davey; Ex parte Freer [1936] HCA 58; 56 CLR 381 at 385 per Evatt J; Liversidge v Anderson [1942] AC 206 at 245 per Lord Atkin; Trobridge v Hardy [1955] HCA 68; 94 CLR 147 (Trobridge) at 152 per Fullagar J; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Scholl J; R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 (Khawaja) at 110 and 112–114 per Lord Scarman; Vardalis at [73] per Black CJ; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 93 ALJR 732; 367 ALR 711 (Plaintiff M47/2018) at [39] per Kiefel CJ, Keane, Nettle and Edelman JJ; Antunovic at [118] and [120]. This follows from the fundamentality at common law of the right to personal liberty: see Trobridge at 152; Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan J; Al Masri at [86]–[93] and Antunovic at [6] and [9]. As expressed by Isaacs J in Walsh at 79, “there is always an initial presumption in favour of liberty … [s]o that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law”. However, notwithstanding this foundational principle, it is not correct to state that, in an application for habeas corpus, the respondent bears the exclusive onus of proof. The true position is more complex.

102    An application for habeas corpus instead involves a series of shifting onuses between applicant and respondent: Yoxon v Secretary to Department of Justice [2015] VSC 124; 50 VR 5 (Yoxon) at [33] per T Forrest J. In many cases, it will be unnecessary for the parties, and the Court, to overtly trace the distinct steps from one onus to the next. Often, practicalities of the case will be such that the spotlight is instantly trained on the respondent to establish the lawfulness of the applicant’s restraint. However, in certain cases, the proper analysis will be that the applicant has not done enough to put the respondent to proof.

103    In my view, having read the authorities, the shifting onuses of proof in an application for habeas corpus may be reduced to the following four steps (each of which are to be assessed as at the time the Court is considering the matter: Murray v Director General, Health & Community Services Victoria at 32 (unreported, Eames J, 23 June 1995), quoting Sharpe RJ, The Law of Habeas Corpus (2nd ed, Oxford University Press, 1989) pp 186–187):

(1)    first, the applicant bears the initial onus of proving that he or she is actually restrained: Yoxon at [34] per T Forrest J. For the scope of what constitutes “restraint”, see generally Aronson, Groves and Weeks’ Judicial Review of Administrative Action at 911–924 and Clark and McCoy’s Habeas Corpus at 66–69. Habeas corpus will not issue where an applicant has already been released (Barnardo v Ford [1892] AC 236 (Barnardo)), or on the basis of threatened restraint (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 at [298]–[299] per Garde J).

This first step also requires the applicant to prove that the named respondent or respondents have “the ability to secure the applicant’s release” (Aronson, Groves and Weeks’ Judicial Review of Administrative Action at 929), although there is a degree of leniency as to how the respondent may be named: see, for example, Dien v Manager of the Immigrant Detention Centre at Port Headland (1993) 115 FLR 416 (Dien). The named respondents should normally include the immediate custodian with direct physical control over the liberty of the applicant. However, it is common for other parties, such as Ministers of Parliament, to be named as a respondent where they have the power to secure the applicant’s release (even though they do not themselves have direct custody of the applicant). (But cf Alsalih at [3].) The applicable enquiry appears to be whether the respondent has power, custody or control of the applicant: Barnardo at 338 per Lord Herschell; Gargan v DPP [2004] NSWSC 10; 144 A Crim R 296 at [24]–[25] per O’Keefe J; Hicks v Ruddock [2007] FCA 299; 156 FCR 574 (Hicks) at [36]–[50] per Tamberlin J; Antunovic at [90]–[113]. For commentary in relation to the identification of the proper respondent (or respondents), see Aronson, Groves and Weeks’ Judicial Review of Administrative Action at 929–936 and Clark and McCoy’s Habeas Corpus at 226–228;

(2)    second, if the applicant establishes that he or she is restrained, the respondent next bears the onus of presenting a prima facie justifiable basis for the restraint. That basis may, for example, come in the form of a court order (see, for example, Ex parte Williams [1934] HCA 48; 51 CLR 545 at 548 per Starke J; Re Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; 68 ALJR 668; 123 ALR 478 per Deane J; Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292 (Hooker) at [9]–[11] per Le Miere J), a warrant (Yoxon at [10] and [35]) or a Ministerial order (Greene v Secretary of State for Home Affairs [1942] AC 284 (Greene) at 296 per Viscount Maugham, 297 per Lord Macmillan and 306 per Lord Wright). In the absence of official documentation, a “narrative of facts” may otherwise be sufficient to form the requisite prima facie basis for the restraint: ibid at 306 per Lord Wright. If, however, the respondent fails to offer a justification for the restraint, the applicant is entitled to be released: Lindbergh at 95; Greene at 290 per Viscount Maugham; Yoxon at [36];

(3)    third, if the respondent presents a prima facie justification for the restraint, the applicant next bears an initial evidential onus to raise a prima facie question as to the lawfulness of the restraint: Lloyd v Wallach [1915] HCA 60; 20 CLR 299 at 313 per Isaacs J; Green at 306 per Lord Wright; Khawaja at 112 per Lord Scarman; Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 (Truong) at 731 per Malcolm CJ and Seaman J and 737 per Ipp J; Dien at 418 per Malcolm CJ, with Seaman J agreeing; Al Masri at [15] and [176]; Te v Minister for Immigration and Multicultural and Indigeneous Affairs [2004] FCAFC 15; 204 ALR 497 (Te) at [61] per French, Sackville and Hely JJ; Hooker at [7]; De Alwis v The State of Western Australia [2014] WASC 161 (De Alwis) at [4] per Martin CJ; Yoxon at [36]–[37]; Plaintiff M47/2018 at [39]. This is consistent with the remarks of Isaacs J in Wall v The King; Ex parte King Won (No 1) [1927] HCA 4; 39 CLR 245 at 256 that the writ of habeas corpus is “not a writ of course, though a writ of right. It had to be moved for, and a proper case had to be shown”; and

(4)    fourth, if the applicant satisfies the initial evidential onus, the respondent finally bears the ultimate legal onus of proving the lawfulness of the restraint: Dien at 418–9; Hicks at [54]; De Alwis at [4]; Yoxon at [38]. This requires the respondent to prove any fact presented by the relevant statute as a condition of the power to restraint: Truong at 731, citing R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 (see 233 per Lord Parker CJ and 248 per Blain J); see also Khawaja at 110–112; Te at [61]. This ultimate onus is not easily discharged: De Alwis at [4]. The relevant standard of proof is the balance of probabilities, although, given the liberty of the applicant is at stake, this requires strong, clear and cogent evidence: Khawaja at 110–112, Truong at 731 and 737; Dien at 419; De Alwis at [4]; Antunovic at [121]–[123]; Yoxon at [40]. Moreover, in this context, there is no presumption that acts of the respondent were legally regular: Dillon v R [1982] AC 484 (Dillon) at 487 per Lord Fraser of Tullybelton, for the Privy Council; Schlieske v Federal Republic of Germany (1987) 14 FCR 424 at 432 per Fox, Wilcox and Burchett JJ; Antunovic at [119].

104    If, upon engagement of the fourth step outlined above, the lawfulness of the applicant’s restraint is proven by the respondent, habeas corpus will not issue. However, if the lawfulness is not proven, then habeas corpus will issue of right, and the applicant must be released. There is no discretion to refuse to grant the remedy: Walsh at 76 per Isaacs J; Vardalis at [91] per Black CJ; Antunovic at [131]; BC v The Public Advocate & Ors [2018] SASC 193 at [18] per Stanley J.

105    It is important for the purposes of the alternative analysis in the present case to expand on the second step outlined above, being the requirement for the respondent to present a prima facie justification for an established restraint.

Prima facie justification for restraint

106    Although the importance of the locus of the onus of proof in the present case was evident from the parties’ opening written submissions, it only became a matter of sharp focus on the second hearing day. On that morning, I brought the parties’ attention to a section of Clark and McCoy’s Habeas Corpus (at 236–238) that addresses the “Burden of proof” for a habeas corpus application. One of the cases cited therein (at 236, fn 219) is the decision of T Forrest J in Yoxon. It is necessary to briefly address the applicant’ submissions in relation to the principles presented in that case.

107    In Yoxon, T Forrest J summarised the principles in relation to the onus of proof for a habeas corpus application. His Honour acknowledged at [33] that “the issue of burden is a complicated one because it shifts between the parties as the application proceeds”. His Honour then continued to explain those shifts at [34]–[39]. The applicant submitted that these passages in Yoxon exhibited a five stage approach. Without extracting the relevant passages, it is sufficient to state that applicant described the five stages as follows:

(1)    first, the applicant bears the burden of establishing the fact of restraint: ibid at [34];

(2)    second, the respondent has to justify the restraint by showing the legal authority which lies behind it: ibid at [35];

(3)    third, the respondent has to produce some documentation to support the restraint: ibid at [35]–[36];

(4)    fourth, the applicant has an initial evidential burden to raise a sufficient reason to question the legal authority of the restraint: ibid at [37]; and

(5)    fifth, the respondent finally has the absolute burden of proving that the statutory conditions underpinning the restraint have been complied with: ibid at [38].

108    As can be seen, this five stage approach proposed by the applicant is, in many respects, similar to the four step approach (as outlined above at [103]) that I discern from a broader reading of the authorities. The applicant’s proposed approach instead splits my second step (above at [103(2)]) into two separate stages (the applicant’s second and third stages), which includes, in particular, the requirement for the respondent to provide “some documentation” to support the restraint.

109    The applicability of the third stage presented by the applicant is crucial to the alternative analysis in in the present case. To foreshadow the discussion below, the applicant argues that, in respect of his claims to Aboriginality (and therefore non-alienage), the Minister has failed to provide any documentation to support the lawfulness of the applicant’s restraint. However, this approach must be rejected. When it is stated, as part of the second step (above at [103(2)] above), that the respondent bears the onus of presenting a prima facie justification for the restraint, this does not necessarily require the respondent to produce documentary evidence to establish the prima facie lawfulness of the restraint (although the respondent may do so). All that the second step requires is for the respondent to provide a prima facie lawful basis for the restraint. Depending on the circumstances, that may come in the form of official documentation that, on its face, carries the requisite authority, such as an order or a warrant. However, the form of prima facie justification is not limited to such forms of substantiation. It may also come in the form of a statutory power to restrain the applicant. This is illustrated by the High Court of Australia’s 2019 decision in Plaintiff M47/2018.

110    The plaintiff in Plaintiff M47/2018 was a non-citizen who destroyed his foreign passport before presenting himself to immigration officials. He was taken into immigration detention as an unlawful non-citizen pursuant to ss 189 and 196 of the Migration Act. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking declaratory relief that his detention was unlawful, together with writs of mandamus and habeas corpus to compel his release. The parties subsequently filed a special case, which was referred to the Full Court of the High Court for determination. The special case did not contain any agreement between the parties in relation to there being no prospect that the plaintiff would be able to be removed from Australia in the reasonably foreseeable future (which was the basis for the plaintiff’s argument that the powers conferred under the Migration Act had been spent). Instead, the plaintiff invited the Court to draw certain inferences as to the prospects of his removal.

111    The questions presented in the special case ultimately did not arise because the factual inferences upon which the applicant’s case relied were untenable on the agreed facts. Consequently, no question arose as to the lawfulness of the plaintiff’s detention: Plaintiff M47/2018 at [12] and [41]–[42] per Kiefel CJ, Keane, Nettle and Edelman JJ and [49] per Bell, Gageler and Gordon JJ. The significance of the High Court’s decision for present purposes is set out in the plurality’s judgment.

112    In oral submissions to the High Court, senior counsel for the plaintiff relied on the Privy Council’s decision in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 in support of the submission that the defendants in Plaintiff M47/2018 (the Minister for Home Affairs and the Commonwealth of Australia) bore the onus of proving the facts concerning the identity of the plaintiff’s parents and his place of birth (in order to show that there was a real prospect of removing the plaintiff to his country of origin within a reasonable time): Plaintiff M47/2018 v Minister for Home Affairs & Anor [2019] HCATrans 9 at 72–73. To this, the plurality of Kiefel CJ, Keane, Nettle and Edelman JJ responded as follows in Plaintiff M47/2018:

[38]     Tan affords the plaintiff no assistance. In that decision, the applicants’ claims for habeas corpus were determined upon evidence adduced at trial by the parties and findings made upon that evidence, rather than upon facts stated in a special case agreed between the parties. Thus, in relation to the issue as to whether the detention of some applicants could be justified as detention “pending removal”, it was held that because the evidence was that the Vietnamese government had unequivocally refused to accept the return of the applicants, the continuing detention of the applicants could not be said, on the evidence, to be “pending removal”. Whatever may be the position in a trial on evidence, the special case procedure adopted by the parties in the present case was adopted as an alternative to such a trial. The special case contains no agreed fact of the kind that was of crucial importance in Tan. The questions presented to the Court upon the facts agreed between the parties do not fall to be resolved by the application of the onus of proof as if this Court were conducting a trial. The questions stated by the parties must be resolved in accordance with r 27.08 of the High Court Rules on the agreed facts and documents and the inferences that may properly be drawn from those facts and documents.

[39]    The plaintiff assumed, by his pleading, the burden of establishing those inferences as matters of fact. It is not only “an elementary rule of the law of evidence”, but “a rule of common sense” 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. 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 [Migration 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.

[40]     This consideration is compelling in this case: it is the plaintiff, not the defendants, who could reasonably be expected to provide information on the facts relating to the identity of his parents and their place of birth and residence. Insofar as the special case is deficient by reason of the absence of this information, that deficit does not provide a basis for drawing any one of the inferences urged by the plaintiff. In that regard, the present case brings to mind the considerations of common sense underlying the maxim stated by Lord Mansfield in Blatch v Archer [(1774) 1 Cowp 63 at 65; 98 ER 969 at 970] 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”.

(Citations omitted.)

113    Three relevant observations emerge from this passage. First, [39] of Plaintiff M47/2018 confirms the position, as outlined above, that, in a habeas corpus application, the ultimate legal onus rests on the respondent to justify the applicant’s restraint, but that the applicant nonetheless carries an initial evidential onus to question the lawfulness of the applicant’s restraint.

114    Second, [39] of Plaintiff M47/2018 also illustrates how the prima facie justification for the applicant’s restraint (being the second step outlined above at [103(2)]) may be satisfied by the respondent in a manner other than presenting official documentation. As the plurality indicated, ss 189 and 196 of the Migration Act provided prima facie lawful authority for the plaintiff’s detention. The presentation by the defendants of that prima facie statutory authority triggered the requirement for the plaintiff to satisfy his initial evidential onus.

115    Third, the plurality highlighted the general principle pronounced by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 (Blatch v Archer) that an onus of proof ought to rest on the party that is best placed to discharge it. This principle is returned to later in these reasons.

116    Contrary to the applicant’s submission, the factual and procedural differences between Plaintiff M47/2018 and the present case do not undermine the cogency of these three observations. It is correct that differences exist between the two cases. As counsel for the applicant highlighted, the plaintiff in Plaintiff M47/2018, unlike the applicant in the present case, assumed the onus of establishing factual inferences by pleading those facts in his statement of claim: see ibid at [39]. Moreover, the nature of the dispute in Plaintiff M47/2018 was such that it was accepted between the parties that the plaintiff in that case was an unlawful non-citizen: see ibid at [2]. That is not applicable in the present case, where the applicant directly confronts the assertion that he is an unlawful non-citizen. However, notwithstanding all of this, the differences between the cases do not undermine the validity of the broader principles highlighted in the preceding paragraphs. The first observation (above at [113]) is established across various authorities, as cited above at [103(3)]–[103(4)]. The second observation (above at [114])—that statutory authority may found a prima facie justification for an applicant’s restraint—is a principle of broad application, and is not contingent on an applicant being an “unlawful non-citizen” (although that happened to be the case in Plaintiff M47/2018). And the third observation (above at [115]) is simply a general maxim.

117    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.

Proper respondent

118    As indicated above at [103(1)], a proper respondent to an application for habeas corpus is one that has power, custody or control of the applicant. The Court has not been expressly informed in the present case of the identity of the person, or persons, who currently have power, custody or control of the applicant, although the applicant’s amended application identifies the immigration detention centre at which was detained at the time that the application was filed on 11 March 2020. Clearly, the Minister himself does not have physical custody of the applicant. Nonetheless, the parties agreed that the Minister was an appropriate respondent for all forms of relief sought by the applicant.

119    Although it is ultimately unnecessary for me to decide, I express hesitancy as to whether the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs was the appropriate respondent to the applicant’s application for habeas corpus in the present case. Although the answer may be simple, there was no evidence or submissions before me as to the power, custody or control that the Minister has over the applicant’s detention. In particular, I note that the Migration Act is listed in the most recent Administrative Arrangements Order (made on 5 December 2019 and commencing on 1 February 2020) as being administered by the Minister for Home Affairs (and there is no reference at all to the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs). And, finally, the present case appears to be distinguishable from cases such as Snedden, Minister for Immigration v Ng Chong Sun [1969] HCA 20; 121 CLR 413 (the Rt Hon Sir Billy Snedden then being the Minister for Immigration), where the catalyst for the habeas corpus application was an order for deportation made by the Minister himself.