Federal Court of Australia

Taylor v Minister for Home Affairs [2022] FCA 309

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Within seven days, each party file and serve a written submission (of no more than two pages) on the issue of costs.

3.    Within 14 days, each party file and serve any responding written submission (of no more than two pages) on the issue of costs.

4.    Subject to further order, the issue of costs be determined on the papers.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant was born in the United Kingdom. He arrived in Australia in 1969, and became an Australian citizen by conferral in 1988. In 1995, the applicant renounced his Australian citizenship. It is common ground that he is not presently an Australian citizen.

2    In 2013, the applicant was granted a resident return visa. The applicant subsequently lived in Australia. In 2018, he was found guilty of various offences and sentenced to 2 years and 11 months’ imprisonment.

3    On 21 December 2018, the applicant’s resident return visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). There is no issue in the present case that the criteria for mandatory cancellation of a visa under that provision were satisfied.

4    The applicant made a request for revocation of the cancellation decision. On 26 October 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation decision. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. On 14 January 2021, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation decision: Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19.

5    Upon completion of the applicant’s term of imprisonment, he was taken into immigration detention. He remains in immigration detention.

6    On 25 January 2021, the applicant filed an originating application for review of a migration decision by which he commenced the present proceeding. On 2 June 2021, the applicant filed an amended originating application for review of a migration decision. By the amended originating application, the applicant seeks the following relief:

[1.]    A writ of habeas corpus issue.

[2.]    An order in the nature of habeas corpus be made.

[3.]    The Applicant be released from detention forthwith.

[4.]    A declaration that the Applicant is a non-alien.

[5.]    The decision of the Administrative Appeals Tribunal dated 14th January 2021 be quashed and/or set aside.

[6.]    The First Respondent pay the Applicant’s costs.

7    After setting out these details, under the heading “Grounds of application”, the amended originating application states that all of the previous grounds have been abandoned, and sets out the following two new grounds:

1.    In respect of the application under s 39B of the Judiciary Act 1903 (Cth), the Applicant’s detention purportedly under s 189 of the Migration Act 1958 (Cth) is unlawful by reason that [he] is a non-alien for the purposes of s 51(19) of the Commonwealth Constitution.

2.    In respect of the application under s 476A of the Migration Act, the Tribunal’s decision was without or beyond authority because the Tribunal only relevantly has jurisdiction in respect of aliens.

8    At the hearing of the application, the applicant essentially advanced three contentions in support of the relief sought in the amended originating application. These were, in summary:

(a)    By virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an “alien” (as that expression is used in s 51(xix) of the Constitution). The fact that he renounced that citizenship in 1995 does not change his non-alien status. As a non-alien, he is not subject to the provisions of the Migration Act, which relevantly applies only to aliens. It follows that his detention under s 189(1) of the Migration Act is unlawful.

(b)    Further or alternatively, the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances. As a non-alien, he is not subject to the provisions of the Migration Act. It follows that his detention under s 189(1) of the Migration Act is unlawful.

(c)    Further or alternatively, the applicant’s detention is unlawful because the first respondent, the Minister for Home Affairs (the Minister), has not established that an officer “knows or reasonably suspects that [the applicant] … is an unlawful non-citizen” (see s 189(1) of the Migration Act).

9    The third contention is made in circumstances where it is common ground that the applicant is a non-citizen. Nevertheless, the applicant submits that the relevant officer of the Department of Home Affairs (Joshua Smith) does not have the requisite state of mind because: (a) Mr Smith’s suspicion is merely that the applicant may be (rather than is) a non-citizen; and (b) further or alternatively, Mr Smith has not taken sufficient steps to ascertain the applicant’s citizenship status, and therefore his suspicion is not based on reasonable grounds.

10    There is no suggestion that the applicant is an Aboriginal Australian or a Torres Strait Islander.

11    The applicant’s contentions do not involve any consideration of the Tribunal’s decision referred to above. It can, therefore, be put to one side.

12    For the reasons that follow, I consider that each of the applicant’s three contentions should be rejected. Accordingly, the application is to be dismissed.

The hearing and the evidence

13    The applicant relies on four affidavits of the applicant, dated 21 January 2021 (unsworn), 22 June 2021 (affirmed on 8 July 2021), 28 July 2021 (affirmed on 2 August 2021) and 11 August 2021 (unsworn – relating to service of notices pursuant to s 78B of the Judiciary Act 1903 (Cth)). There was no cross-examination of the applicant.

14    The Minister relies on an affidavit of Mr Smith dated 12 August 2021. Mr Smith was cross-examined during the hearing (which took place by video-conference using Microsoft Teams, due to restrictions in place because of the COVID-19 pandemic). The Minister also relies on the following affidavits: an affidavit of Irene Inocencio (an officer of the Department) dated 17 June 2021; and an affidavit of Edward Rogers (a solicitor at Australian Government Solicitor) dated 18 June 2021.

15    In addition to the above, an Application Book containing other relevant documents was admitted into evidence.

Key legislative provisions

16    Section 189(1) of the Migration Act provides:

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

17    The expression “non-citizen” is defined in s 5 as meaning a person who is not an Australian citizen.

18    Section 196 relevantly provides:

Duration of detention

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

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

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

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

(c)    he or she is granted a visa.

…

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

Factual findings

General matters

19    The applicant was born in the United Kingdom, under the name Steven Barr. He has changed his name several times. His current name is Julian Taylor.

20    In 1969, the applicant arrived in Australia at the age of four years. Apart from the period December 2012 until April 2015, he has lived only in Australia since then.

21    In 1983 or 1984, the applicant was entered on the Electoral Roll. The applicant has voted in federal elections and in constitutional referenda.

22    On 5 May 1988, the applicant became an Australian citizen by conferral.

23    On 22 May 1990, the applicant obtained an Australian passport. He no longer has physical possession of that passport, but he has not been told that that passport has been cancelled.

24    On 19 April 1995, the applicant renounced his Australian citizenship, pursuant to s 18 of the Australian Citizenship Act 1948 (Cth). The documents relating to the renunciation are annexed to Mr Rogers’s affidavit. Section 18 of the Australian Citizenship Act 1948 relevantly provided:

Renunciation of citizenship

18.    (1)    Where a person is an Australian citizen and:

(a)    has attained the age of 18 years and is a national or citizen of a foreign country; or

(b)    was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen;

the person may lodge with the Minister a declaration in the prescribed form renouncing the person’s Australian citizenship.

(4)    Subject to subsections (5), (5A) and (6), the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.

(5)    Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.

(5A)    The Minister shall not register a declaration made under this section if the Minister considers that it would not be in the interests of Australia to do so.

(6)    The Minister shall not register a declaration made under this section unless the Minister is satisfied that the person who made the declaration:

(a)    is a national or citizen of a foreign country; or

(b)    will, if the declaration is registered, become a national or citizen of such a country immediately after the registration.

25    In 2013, the applicant was granted a resident return visa.

26    In 2018, the applicant was found guilty of various offences and sentenced to 2 years and 11 months’ imprisonment.

27    On 21 December 2018, the applicant’s resident return visa was cancelled pursuant to s 501(3A) of the Migration Act. The applicant made a request for revocation of the cancellation decision.

28    On 16 October 2019, the applicant was released from a correctional facility. He has been detained by the Commonwealth at the Melbourne Immigration Transit Accommodation detention facility since that time.

29    On 26 October 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation decision.

30    On 14 January 2021, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation decision.

31    The applicant has a daughter who is an Australian citizen.

32    The applicant states in his affidavit affirmed on 2 August 2021, and I accept, that his enrolment on the Electoral Roll remains current.

Findings in relation to Mr Smith’s evidence

33    Under the administrative procedures established by the Department of Home Affairs, officers of the Department known as Detention Status Resolution Officers (DSROs) are responsible for considering the immigration status of people in immigration detention.

34    During the period 18 October 2019 to 17 July 2020, the DSRO responsible for the applicant was Mr Smith. Subsequently, the DSRO responsible for the applicant was Ms Inocencio. Since 2 August 2021, the DSRO responsible for considering the applicant’s immigration status has again been Mr Smith.

35    On 6 August 2021, Ms Inocencio completed a “case review” in relation to the applicant, which reflected information relevant to the applicant up to 2 August 2021. A “case review” is a document that contains a summary of information relating to a person’s immigration status.

36    On the same day, 6 August 2021, Mr Smith reviewed the case review prepared by Ms Inocencio, and added information relevant to the applicant for the period 2 to 6 August 2021. A copy of the case review with these additions is annexed as “JS-1” to Mr Smith’s affidavit (the Case Review). The Case Review is a seven-page document. On the first page, under the heading “Client Details”, the document sets out the applicant’s birth name, his date of birth, and then the following citizenship details:

Citizenship:    UNITED KINGDOM BRITAIN

37    On the same page, there is a column headed “Client Flags”, which includes the following:

Australian Citizen:    N

38    On page 4 of the Case Review, a list of “Relevant Recent Activities” is set out. This includes:

05/05/1988    Acquired Australian Citizenship

19/04/1995    Renounced Australian Citizenship[.] Granted ex-citizen visa by operation of law under s35

22/10/2007    Refused Australian Citizenship s21 (did not provide required documentation)

39    Mr Smith gives the following evidence in his affidavit:

8.    Based on my knowledge of the Migration Act 1958 (Act) and my experience, it is my understanding that a person who is in the migration zone, and who is not an Australian citizen or an Aboriginal or Torres Strait Islander, and does not hold a visa, is an unlawful non-citizen. It is also my understanding that, under section 189(1) of the Act, if an officer knows or reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person and cause him to be detained until the happening of one of the events listed in section 196(1) of the Act.

Not an Australian citizen, in the migration zone, not a visa-holder

9.    At all times since I became the applicant’s DSRO on 2 August 2021, I have reasonably suspected that the applicant:

9.1.    is not an Australian citizen;

9.2.    is in the migration zone other than an excised offshore place;

9.3.    did not hold, and currently does not hold, a visa; and

9.4.    is not an Aboriginal or Torres Strait Islander.

10.    My reasonable suspicion of the matters set out in paragraphs 9.1 to 9.3 above based on my review of the information on the Integrated Client Services Environment (ICSE) and TRIM which are both record-keeping systems. ICSE enables notes to be recorded by Departmental officers in relation to key events relevant to non-citizens, such as decision-making dates (for example, visa cancellation or Tribunal decision) and court outcomes. TRIM is a records management system. ICSE and TRIM record the following information in relation to the applicant:

10.1.    the applicant arrived in Australia on 15 September 1969

10.2.    the applicant acquired Australian citizenship on 5 May 1988. He renounced and subsequently lost his Australian citizenship on 19 April 1995, pursuant to s 18 of the Australian Citizenship Act 1948

10.3.    the applicant applied for Australian citizenship on 1 June 2006. The application was refused on 22 October 2007

10.4.    the applicant (whilst offshore) was granted a Five Year Resident Return visa (Class BB) (the Resident Return visa) on 5 September 2013

10.5.    the applicant’s Resident Return visa was cancelled under section 501(3A) of the Act by a delegate of the first respondent on 21 December 2018

10.6.    the applicant sought revocation of the decision to cancel and on 22 October 2020 a delegate of the first respondent decided under section 501CA(4) of the Act not to revoke the cancellation of the applicant’s Resident Return visa

10.7.    the applicant sought review of the decision not to revoke and on 14 January 2021 the Administrative Appeals Tribunal affirmed the decision not to revoke the cancellation of the applicant’s Resident Return visa

10.8.    on 16 October 2019 the applicant was released from a correctional facility and has been detained at MITA since that time.

11.    When a person is granted a visa, the decision-maker notifies the DSRO of the grant. The decision-maker records the visa grant in ICSE. ICSE records that, since 21 December 2018, the applicant has not held, and he currently does not hold, a visa.

40    Mr Smith was cross-examined by counsel for the applicant on the first hearing day (25 August 2021).

41    Mr Smith gave evidence that he had not yet spoken with the applicant about the “transfer process”, being the transfer of the applicant’s case to Mr Smith as the relevant officer (despite having been the relevant officer for some 22 days). Mr Smith was asked questions about his training and experience. Mr Smith gave evidence that he did not tell the applicant about the substance of ss 195 and 196 of the Migration Act.

42    Mr Smith was asked what documents would satisfy him that a person is a citizen. He answered that a number of factors would need to be taken into account, such as a citizenship certificate and an Australian passport. Mr Smith was later asked what he had done to inform himself about the legal basis upon which the applicant gained his passport. He answered that he had not taken any such steps.

43    It was put to Mr Smith that a person on the Electoral Roll could not be suspected of not being a citizen, and he responded “Not necessarily”. Mr Smith gave evidence that he had not undertaken any investigations about the applicant being on the Electoral Roll. Mr Smith was later asked what steps he had taken to inform himself of the legal basis upon which the applicant was enrolled on the Electoral Roll and remains on the Electoral Roll. He answered that he had not taken any such steps.

44    Mr Smith was asked questions about the significance of holding an Australian passport, and responded that “a situation could arise that a person has been issued a passport, being an Australian citizen at the time and since that time circumstances have changed the holding of that citizenship”. Mr Smith stated that he had seen copies of the Australian passport that had been issued to the applicant at a certain point in time.

45    During cross-examination, Mr Smith gave evidence that he reviewed the Case Review and that he was satisfied that it was accurate in terms of what he knew and understood. Mr Smith was taken to the field in the Case Review that stated that the applicant’s relationship status was “Married”. Mr Smith gave evidence that this information came from the ICSE system. Mr Smith accepted that in this respect the ICSE records were inaccurate. Mr Smith said he was not aware of any other inaccuracies. Mr Smith said that he otherwise trusted the information in the ICSE system, notwithstanding the inaccuracy that had been identified.

46    Mr Smith accepted that he did not speak regularly with the applicant during the earlier period that he was the applicant’s DSRO. Mr Smith gave evidence that he could not recall the last time he spoke with the applicant, and that he could not remember when he last asked the applicant about his history and current legal status. Following that evidence, the following exchange took place:

[Counsel for the applicant:] So at the end of these questions, is it really your evidence that you suspect Mr Taylor may be a non-citizen?---It is.

47    The applicant relies on the exchange set out above in support of a submission that Mr Smith’s suspicion was merely that the applicant “may be” a non-citizen, as distinct from a suspicion that the applicant “is” a non-citizen (being the state of mind referred to in s 189(1)). I do not accept this submission. The exchange took place after Mr Smith had been asked a series of question about the steps he had (or had not) taken to investigate the applicant’s status. In that context, in substance, the question was a challenge (“is it really your evidence”) to Mr Smith’s evidence in paragraph 9 of his affidavit that he suspected that the applicant was a non-citizen. Mr Smith was being challenged on whether he held the suspicion that he said he held. His attention was not directed to the level of suspicion, namely whether his suspicion was merely that the applicant “may be” a non-citizen, as distinct from a suspicion that the applicant “is” a non-citizen. If the applicant wanted to pursue a submission that Mr Smith’s suspicion was merely that the applicant “may be” a non-citizen, rather than a suspicion that the applicant “is” a non-citizen, then this needed to be squarely raised with Mr Smith. It was not. Accordingly, I do not accept the submission that the above exchange establishes that Mr Smith’s suspicion was merely that the applicant “may be” a non-citizen.

48    Mr Smith gave evidence in a clear and straightforward manner. Subject to the matters discussed below, which are more matters of admissibility that non-acceptance of evidence, I accept his evidence.

49    In paragraph 9 of Mr Smith’s affidavit he states that at all relevant times since 2 August 2021 (when he became the applicant’s DSRO) he has “reasonably suspected” that the applicant:

(a)    is not an Australian citizen;

(b)    is in the migration zone other than an excised offshore place;

(c)    did not hold, and currently does not hold, a visa; and

(d)    is not an Aboriginal or Torres Strait Islander.

50    I consider that whether Mr Smith’s suspicion was reasonable is a matter to be determined by the Court, based on all the relevant evidence. Apart from the word “reasonably”, I accept Mr Smith’s evidence in paragraph 9 of his affidavit. That is, I accept that Mr Smith holds the suspicion there described, in particular, that he suspects that the applicant is not an Australian citizen.

51    Further, I find that Mr Smith’s suspicion is based on his review of the material referred to in paragraph 10 of his affidavit, namely the information on ICSE and TRIM there set out. Mr Smith was not challenged on the correctness of paragraph 10 of his affidavit during cross-examination. Indeed, in the course of asking a question, counsel for the applicant put to Mr Smith that his evidence in that paragraph was “clear” and that he had “relied on the TRIM records and the ICSE departmental records in this case”.

The first contention

52    The applicant’s first contention can be summarised as follows: by virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an alien; the fact that he renounced that citizenship in 1995 does not change his non-alien status; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful.

53    The applicant submits that, while a person who is currently a citizen is not an alien, alienage and citizenship are not “co-terminous”: Love v Commonwealth (2020) 270 CLR 152 (Love) at [466] per Edelman J and at [304]-[305] per Gordon J; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 (Ex parte Te) at [53] per Gaudron J; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw) at [79] per Kirby J.

54    The applicant relies heavily on the following passage in the judgment of Gleeson CJ, Gummow and Hayne JJ (with whom Heydon J agreed) in Shaw. Gleeson CJ, Gummow and Hayne JJ said at [32]:

This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.

(Emphasis added.)

55    The applicant notes that the above passage from Shaw was approved in Chetcuti v Commonwealth (2021) 392 ALR 371 (Chetcuti) at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The applicant’s submission is that, in circumstances where he was naturalised, he is not an alien within the above description of an alien. In oral submissions, counsel for the applicant submitted that what was said in Shaw at [32], and then endorsed in Chetcuti at [15], “exhaustively qualifies” who is an alien and the obverse, that is, who is not an alien (T70).

56    The applicant submits that his renunciation of his Australian citizenship does not alter the fact of his naturalisation, nor does it alter his constitutional status as a non-alien. The applicant refers to the following passage from the judgment of Toohey J in Cunliffe v Commonwealth (1994) 182 CLR 272 at 374-375:

In Nolan v Minister for Immigration and Ethnic Affairs the Court held that an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law or a person who has ceased to be a citizen by an act or process of denaturalization.

(Footnote omitted; emphasis added.)

57    This passage reflects the judgment of Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ in Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) at 183, where their Honours said:

As a matter of etymology, “alien”, from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person’s lack of relationship with a country, the word means, as a matter of ordinary language, “nothing more than a citizen or subject of a foreign state”: Milne v Huber. Thus, an “alien” has been said to be, for the purposes of United States law, “one born out of the United States, who has not since been naturalized under the constitution and laws”. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word “alien” when that word is used with respect to an independent country with its own distinct citizenship.

(Footnotes omitted; emphasis added.)

58    The applicant submits that even applying these descriptions, the applicant is not an alien, because he ceased to be an Australian citizen by renunciation rather than denaturalisation. The applicant submits that denaturalisation is an act or process by which the body politic rejects or revokes membership by way of citizenship. The applicant submits that denaturalisation is not the same as, but is a subset of, the more general concept of cessation of citizenship. It is submitted that the applicant has been the subject of no such process – he is, rather, a voluntary renouncer. The applicant submits that: the distinction between these two processes has been made clear by Parliament; renunciation is the only means of ceasing citizenship without initiation by the Minister (i.e. on behalf of the body politic or Australian community); denaturalisation occurs in response to unusual, prescribed crimes, including terrorism; those who are denaturalised cannot apply to resume their Australian citizenship; those who renounced their citizenship may, at any time, apply to ‘resume’ it.

59    The applicant submits that: the plainest indication that the applicant has been accepted (and never rejected) as a member of the Australian community which constitutes the body politic is the grant of citizenship to him, coupled with his loss of citizenship status arising from his voluntary renunciation of his citizenship; at the time of renunciation, no assessment of him was made by the Australian polity that he was unfit to be a citizen, or that he was no longer a “belonger” to the political community: see Love at [394], [437]-[438] per Edelman J; see also at [32]-[33] per Kiefel CJ.

60    In my view, the applicant’s first contention should be rejected.

61    First, insofar as the applicant relies on the passage from Shaw at [32], I do not accept the proposition that that is an exhaustive statement of who is an alien and who is not. The High Court in that case was not considering the position of a person, such as the applicant, who became an Australian citizen by conferral and who subsequently renounced their citizenship. Thus, in describing an alien as a person who (among other things) “had not been naturalised”, their Honours were not saying that a person who had been naturalised will always be (no matter what the facts) a non-alien. Their Honours were not addressing the situation of a person who had been naturalised but later ceased to be a citizen.

62    Secondly, insofar as the applicant submits that he is outside the description of an “alien” in Nolan at 183, I am not persuaded by that submission. In my view, in referring to “an act or process of denaturalization”, the joint judgment in Nolan was using that expression broadly and in a way that encompassed various different ways by which a person may cease to be a citizen. I am not persuaded that there is a relevant distinction between, on the one hand, ceasing to be a citizen by renunciation pursuant to s 18 of the Australian Citizenship Act 1948 and, on the other hand, ceasing to be a citizen by deprivation of citizenship under s 21 of that Act. Both provisions fall within Div 4 of Pt III, dealing with loss of citizenship. Section 18 required an act by the Minister, namely registration of the declaration; thus renunciation under this provision was not able to be effected by a unilateral act by the applicant. This is demonstrated by the documents in evidence relating to the renunciation of the applicant’s citizenship, which include a registration document: see annexure “ER-1” to Mr Rogers’s affidavit.

63    Thirdly, apart from Aboriginal Australians and possibly Torres Strait Islanders (see Love) and exceptional cases (see Pochi v Macphee (1982) 151 CLR 101 at 109 per Gibbs CJ), it is open to Parliament to determine who is, and who is not, to be treated an “alien”, and Parliament has determined that all non-citizens are to be treated as aliens. This position was recently affirmed by a majority of the High Court in Chetcuti. In that case, Kiefel CJ, Gageler, Keane and Gleeson JJ stated at [11]-[12]:

11    Since 2 April 1984, the Commonwealth Parliament has relied on the legislative power with respect to aliens to sustain the Migration Act. Subject to providing through s 15A of the Acts Interpretation Act 1901 (Cth) for the Migration Act to have a distributive and severable operation to the extent of any constitutional overreach, the Parliament has done so treating all non-citizens as aliens. And since 1 September 1994, it has done so creating a clear-cut distinction between lawful non-citizens, being non-citizens who hold visas permitting them to enter and remain in Australia, and unlawful non-citizens, being non-citizens who do not hold visas and who are in consequence liable to detention and to removal from Australia.

12    In challenging his detention on the ground that he is not within the reach of the aliens power, the appellant does not seek to disturb the settled understanding that the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status. Nor does the appellant seek to disturb the settled understanding that, in determining who is and who is not to have the legal status of an alien, it is in general open to the Parliament to “treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian”.

(Footnotes omitted; emphasis added.)

See also at [14]-[16] per Kiefel CJ, Gageler, Keane and Gleeson JJ; cf at [37]-[38] per Gordon J, at [60], [65] per Edelman J, at [105] per Steward J. See also Ex parte Te at [21]-[26] per Gleeson CJ, at [209]-[210] per Hayne J; Shaw at [2] per Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing).

64    In the present case, although the applicant was naturalised as an Australian, he subsequently renounced his citizenship and ceased to hold Australian citizenship. As set out in Chetcuti at [11], the Parliament has determined to “treat[] all non-citizens as aliens”. The applicant is a non-citizen. He is, therefore, at least prima facie, an alien.

65    Fourthly, it is not suggested that the applicant is an Aboriginal Australian or Torres Strait Islander, and (subject to consideration of the applicant’s second contention) there is nothing about the applicant’s case to suggest that he is within the exceptional class of case referred to by Gibbs CJ in Pochi v Macphee at 109.

66    For these reasons, I reject the applicant’s first contention.

The second contention

67    The applicant’s second contention is expressed to be further or in the alternative to his first contention. The applicant contends, in summary, that: the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful.

68    The applicant submits that: alienage has a series of essential characteristics which may or may not coincide with statutory citizenship; it is a holistic assessment of the person’s connections to Australia and the Australian community, which are determinative of whether a person is an alien; for that reason, the High Court has recognised that persons can be non-citizen non-aliens (see Love) and, it must follow, that there can also be citizen aliens.

69    The applicant submits that, viewed holistically, the following facts and matters demonstrate that the applicant lacks the essential characteristics of an alien (arranged in chronological order):

(a)    The applicant has been a British subject at all times.

(b)    The applicant, who is 56 years old, has lived in Australia for almost 50 years.

(c)    The applicant was invited to become, and became, one of “the people” under ss 7 and 24 of the Constitution. He lawfully voted at elections. This constitutional status was given to him and was exercised by him absent Australian citizenship.

(d)    The applicant was invited to become, and became, one of “the people” under s 128 of the Constitution. He voted at referenda concerning amendments to the Constitution. This constitutional status was also given to him and was exercised by him absent Australian citizenship.

(e)    The applicant met all the criteria for Australian citizenship and was, in fact, granted it. The applicant has never been denaturalised, as discussed in the submissions in support of the first contention.

(f)    The applicants applied for and was granted an Australian passport. That passport contained the standard representation to the world from the Governor-General that the applicant was an Australian citizen. That passport continued to be valid after the applicant renounced his Australian citizenship.

(g)    The applicant has an enduring connection to Australia including because his daughter, who is a child, is an Australian citizen.

70    The applicant submits that: it follows from the above that the applicant is a non-alien and is therefore not capable of being subject to detention or removal under ss 189 or 198 of the Migration Act respectively, even though he is an unlawful non-citizen.

71    Insofar as the applicant relies on his Australian passport, I assume that this is no longer in force. The fact that he held a passport would seem to have been a consequence of his (then) Australian citizenship.

72    In my view, the applicant’s second contention should be rejected.

73    First, the principal difficulty with the contention is that, as discussed above in the context of the first contention, the Parliament has determined to treat all non-citizens as aliens. The applicant is a non-citizen. He is therefore, at least prima facie, an alien. The various facts and matters relied on by the applicant do not gainsay this proposition.

74    Secondly, the matters relied on by the applicant, whether considered individually or cumulatively, do not put the applicant into that exceptional class of case referred to by Gibbs CJ in Pochi v Macphee at 109, namely a person who “could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”. Even having regard to all of the matters relied on by the applicant, in circumstances where he is a non-citizen, he is not a person who could not possibly answer the description of an “alien” in the ordinary understanding of the word. In particular, assuming that the applicant is entitled to vote (by virtue of being on the Electoral Roll), I do not consider this matter to be of such significance that the applicant cannot be treated as an alien.

75    I therefore reject the applicant’s second contention.

The third contention

76    The applicant’s third contention is that the applicant’s detention is unlawful because the Minister has not established that an officer “knows or reasonably suspects that [the applicant] … is an unlawful non-citizen” (see s 189(1) of the Migration Act).

77    The applicant submits that the relevant officer of the Department of Home Affairs (Mr Smith) does not have the requisite state of mind because:

(a)    Mr Smith’s suspicion is merely that the applicant may be (rather than is) a non-citizen (see Goldie v Commonwealth (2002) 117 FCR 566 at [6] per Gray and Lee JJ; Commonwealth v Okwume (2018) 263 FCR 604 at [134] per Besanko J); and

(b)    further or alternatively, Mr Smith has not taken sufficient steps to ascertain the applicant’s citizenship status, and therefore his suspicion is not based on reasonable grounds (see McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 (McHugh)).

78    In circumstances where the applicant is being detained by the Commonwealth, the burden is on the Minister to prove the lawfulness of the detention: see McHugh at [56] per Allsop CJ; at [270]-[272] per Mortimer J. This requires clear and cogent proof: McHugh at [57].

79    Insofar as the applicant submits that Mr Smith’s suspicion is merely that the applicant may be (rather than is) a non-citizen, I do not accept that submission. That submission relies on the exchange at the end of cross-examination set out at [46] above. However, for the reasons set out at [47] above, I do not accept the submission that the exchange establishes that Mr Smith’s suspicion is merely that the applicant may be a non-citizen. I am satisfied that Mr Smith’s suspicion is that the applicant is a non-citizen. Further, in the circumstances of this case, I consider it appropriate to presume that Mr Smith’s suspicion (expressed in his affidavit at paragraph 9 and in his oral evidence at T13, T34, T43) continues to the date of the Court’s decision.

80    Insofar as the applicant submits that Mr Smith’s suspicion (that the applicant is a non-citizen) is not based on reasonable grounds, I do not accept that submission. It should be noted that it is common ground that the applicant is a non-citizen. Further, there has never been any issue about this (cf  McHugh at [76]). In these circumstances, it is sufficient for Mr Smith to rely on the information about the applicant’s citizenship in the Case Review, which is sourced from the ICSE database. This information makes clear that the applicant is not an Australian citizen. It was not necessary in the circumstances for Mr Smith to make the further enquiries that were raised with him during cross-examination. The fact that the information sourced from ICSE was incorrect in another respect (relating to relationship status) did not require Mr Smith to undertake further enquiries as to the applicant’s citizenship status in the absence of any issue having been raised, or arising, in relation to that status. Insofar as the applicant submits that Mr Smith’s suspicion needed to be based on a correct understanding of the law, I find that Mr Smith did have a correct understanding of the relevant law: see paragraph 8 of his affidavit, which was not challenged during cross-examination.

81    Accordingly, I am satisfied that Mr Smith has reasonable grounds for his suspicion that the applicant is a non-citizen. It is established that, in terms of s 189(1), an officer (Mr Smith) “reasonably suspects that [the applicant] … is an unlawful non-citizen”.

82    For these reasons, the applicant’s third contention is not made out.

Conclusion

83    It follows from the above that the application is to be dismissed. As requested at the hearing, I will give the parties the opportunity to make submissions about costs.

Associate:

Dated:    30 March 2022