Federal Court of Australia

Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for a writ of habeas corpus, constituted by summons dated 8 August 2024, be dismissed.

2.    Subject to order 3, the applicant pay the respondents’ costs of the proceeding.

3.    Within 21 days of the date of this order, the applicant may apply to vary order 2 by filing and serving a submission of no more than 3 pages and, if required, any evidence in support.

4.    If the applicant files and serves a submission pursuant to order 3, within a further 21 days the respondents may file and serve a submission in response of no more than 3 pages and, if required, any evidence in support.

5.    Any application to vary order 2 will 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

O’BRYAN J:

A.    Introduction

1    This is an application made under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking the issue of a writ of habeas corpus under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) requiring the respondents, the Secretary of the Department of Home Affairs (Department) and the Minister for Home Affairs (Minister), to release the applicant, Samiuela Latu Kapeli, from immigration detention. Mr Kapeli is detained pursuant to ss 189 and 196 of the Migration Act 1958 (Cth) (Migration Act).

2    Mr Kapeli’s application for a writ of habeas corpus is made on two bases. The first is that Mr Kapeli is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian as that expression is used in the majority judgments of the High Court in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love/Thoms). As such, Mr Kapeli is not a person to whom the power of detention in s 189 of the Migration Act is capable of application. The second is that there is no real prospect of the removal of Mr Kapeli from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. In those circumstances, s 189 does not authorise the continued detention of Mr Kapeli, having regard to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ).

3    In these reasons, the expression “Aboriginal Australian” will be used to refer to the category of persons who are described as Aboriginal Australian in the majority judgments of the High Court in Love/Thoms and who cannot be regarded as aliens within the meaning of s 51(xix) of the Constitution. In that sense, the expression is used to invoke a constitutional meaning and not a vernacular meaning. In using the expression “Aboriginal Australian”, I echo the comment made by Mortimer J (as her Honour then was) in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2021) 287 FCR 109 (Helmbright) at [9]:

In these reasons, I have used the term “Aboriginal Australian” and “Indigenous” because they are terms used by members of the Court in Love/Thoms. I accept these terms may not be considered appropriate by all, especially by some people who identify as Aboriginal or Torres Strait Islander.

4    Mr Kapeli was born in Tonga on 20 June 1982 and is a citizen of Tonga. He arrived in Australia on 14 May 2003 as the holder of a special purpose visa. He has resided in Australia since that time. On 6 December 2003, Mr Kapeli married Sarina Kapeli (nee Lever). Sarina Kapeli describes herself as “an Aboriginal woman from the Kuku Yalanji Tribe which is from Far North Queensland, which was also my birth mother’s Tribe”. On 16 December 2014, Mr Kapeli was granted a permanent Partner (Class BS) (Subclass 801) visa.

5    On 18 February 2020, following convictions for assault occasioning actual bodily harm, Mr Kapeli’s partner visa was mandatorily cancelled under s 501(3A) of the Migration Act (prior cancellation decision). On 29 July 2020, Mr Kapeli was detained in immigration detention. Mr Kapeli made representations in support of the revocation of the prior cancellation decision, including on the basis that he is an Aboriginal person. On 10 August 2022, the Minister decided to revoke the prior cancellation decision and Mr Kapeli was thereupon released from immigration detention.

6    On 13 May 2024, following a further conviction for assault occasioning actual bodily harm, Mr Kapeli's visa was again mandatorily cancelled under s 501(3A) of the Migration Act (current cancellation decision). On 6 June 2024, Mr Kapeli made representations to the Minister in support of the revocation of the current cancellation decision. However, as at the date of the hearing, no decision had been made on the request for revocation. On 25 June 2024, Mr Kapeli was granted bail from the Cessnock Correctional Centre. On 26 June 2024, Mr Kapeli was detained upon his release from the Cessnock Correctional Centre and was taken into immigration detention at Villawood Immigration Detention Centre.

7    It is uncontroversial that Mr Kapeli is not an Australian citizen and does not hold a visa and is therefore an unlawful non-citizen within the meaning of the Migration Act.

8    Mr Kapeli claims to be an Aboriginal Australian because, in his words, he identifies as an Aboriginal man, he has been initiated into the Worimi tribe of the Forster/Tuncurry region of New South Wales, and he is recognised and accepted as Aboriginal by the Worimi tribe, including its elders. It should be noted that Mr Kapeli and each of the Worimi people who gave evidence on behalf of Mr Kapeli in this proceeding refer to themselves as members of the Worimi “tribe”.

9    Angela Wang is the officer of the Department responsible for the decision to detain Mr Kapeli in the purported exercise of the power under s 189(1) of the Migration Act. Ms Wang has given evidence in the proceeding that she is satisfied, on the basis of legal advice received from the Australian Government Solicitor (AGS), that Mr Kapeli does not satisfy the first limb of the “tripartite test” for membership of an Aboriginal group of people stated by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), requiring biological descent from an Aboriginal member of the group, and so is not an Aboriginal Australian. Ms Wang has also given evidence, on the basis of legal advice received from the AGS, that:

(a)    she is satisfied that Mr Kapeli meets the second limb of the tripartite test in Mabo (No 2) in that Mr Kapeli identifies as a member of the Worimi tribe in the Forster region of New South Wales; and

(b)    although a court may find, on the balance of probabilities, that Mr Kapeli does not meet the third limb of the tripartite test in Mabo (No 2) – recognition of Mr Kapeli’s membership of the Worimi tribe by the elders or other persons enjoying traditional authority among those people – it is not open to Ms Wang to reasonably suspect that Mr Kapeli does not meet the third limb.

10    In the course of oral closing submissions, lead counsel for Mr Kapeli, Mr Albert, expanded the issues for determination in this proceeding. Mr Albert submitted that there were six bases on which the Court should conclude that Mr Kapeli’s detention is unlawful. Many of the contentions advanced by Mr Albert in closing submissions had not been clearly raised in written submissions filed before the commencement of the hearing. Both the Court and the respondents heard the contentions for the first time in closing submissions. The approach taken by Mr Albert was procedurally unfair to the respondents and was unhelpful to the Court. The approach should not be repeated. In future cases of this kind, it may be necessary to require the parties to file points of claim so that the issues for determination are clearly defined prior to the commencement of the hearing.

11    As a result of the large number of issues and arguments raised by Mr Albert on behalf of Mr Kapeli, these reasons are lengthier than might have been expected for a case of this nature. Despite that, I have endeavoured to express these reasons with economy, conscious that an application for habeas corpus should be determined promptly.

12    For the reasons that follow, I conclude that Mr Kapeli’s application must be dismissed. Mr Kapeli has never claimed to be biologically descended from Aboriginal people, and there is no evidence before the Court raising any prospect that any of Mr Kapeli’s forebears were biologically descended from Aboriginal people. I find Ms Wang’s belief that Mr Kapeli is not biologically descended from Aboriginal people to be objectively reasonable. Indeed, I would go further and conclude on the balance of probabilities that Mr Kapeli is not biologically descended from Aboriginal people. In my view, the decision of the High Court in Love/Thoms only excludes from the head of power with respect to aliens in s 51(xix) of the Constitution Aboriginal persons who satisfy the tripartite test in Mabo (No 2), understood as requiring biological descent from Aboriginal people. The reasons of the majority in Love/Thoms do not support a conclusion that persons having the characteristics possessed by Mr Kapeli, being persons who have been welcomed into membership of an Aboriginal community, but who are not biologically descended from Aboriginal people, are thereby outside the meaning of the expression “alien” in s 51(xix) of the Constitution. With respect to NZYQ, the Minister is yet to determine whether to revoke the current cancellation decision. In those circumstances, Mr Kapeli is lawfully detained while his future immigration status is investigated and determined and NZYQ has no application.

13    In using the expression “Aboriginal” as a proper noun, the Court is conscious that it is an expression that has come to be used to refer to all of the indigenous peoples of the continent of Australia without differentiating between the numerous tribal or clan groups that exist. The use of the expression “Aboriginal” as a proper noun began in the course of European settlement of Australia, but the expression is now used in that sense in many Australian laws that apply generally to the indigenous peoples of Australia, such as the Native Title Act 1993 (Cth) (NTA) (along with the expression Torres Strait Islanders). It is both respectful and relevant to acknowledge, however, that each of the tribal or clan groups of indigenous peoples of Australia had and continue to have their own individual tribal or clan names, and had and frequently continue to have their own individual laws and customs including decision-making processes. As discussed further below, what is now referred to as the “tripartite test” for membership of an Aboriginal group of people stated by Brennan J in Mabo (No 2) recognises that membership relates to individual tribal or clan groups and each limb of the tripartite test references the individual tribal or clan group concerned.

14    As a final introductory point, it is important to emphasise what this judgment determines and what it does not determine. The judgment concerns the meaning that has been given to the expression “alien” in s 51(xix) of the Constitution by the High Court in Love/Thoms. The judgment does not concern, and accordingly does not determine, the meaning of the expression “Aboriginal” under other Australian laws. Nor does this judgment concern the meaning of the expressions “Aboriginal” or “Aboriginal person” in everyday parlance in Australia. The judgment should not be understood as a criticism or rejection of the evidence given by members of the Worimi people to the effect that they consider Mr Kapeli to be a Worimi man. The judgment reflects a conclusion that the Commonwealth has constitutional power to detain Mr Kapeli under s 189(1) of the Migration Act as an unlawful non-citizen, notwithstanding that members of the Worimi people have formed a close relationship with Mr Kapeli and have accepted him into their community.

B.    Procedural history

15    The proceeding has had a difficult procedural history. The following matters are noted as they record certain interlocutory rulings that have been made in the proceeding and they also bear upon the order to be made with respect to the costs of the proceeding.

16    Understandably, Mr Kapeli requested that his application be dealt with speedily by the Court. In that regard, Mr Kapeli also relied on s 21(7) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (which applies to this Court in the determination of this proceeding – see Hobson v Commonwealth of Australia [2022] FCA 418 (Hobson) at [9]). Section 21(7) stipulates that:

Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must —

(a)    make a decision without delay; and

(b)    order the release of the person if it finds that the detention is unlawful.

17    It should be recorded that, despite the efforts of the Court to list the proceeding at the earliest date suitable to the parties, the conduct of the proceeding by Mr Kapeli has caused delay in its resolution. As discussed below, the listing of the hearing was adjourned on the application of Mr Kapeli. The duration of the hearing was extended, largely due to the expansion of issues by Mr Kapeli and the lengthy oral submissions that were required to address the expanded issues. Written submissions were also required after the conclusion of the hearing by reason of a new issue raised by Mr Kapeli during closing submissions.

Commencement of the proceeding

18    On 19 July 2024, Mr Kapeli filed an application for a writ of habeas corpus in this Court (which was given the proceeding number VID709/2024). The application was served on the respondents. On 2 August 2024, the Court notified the parties that the proceeding was listed for case management and sought proposed timetabling orders from the parties. However, on 6 August 2024, Mr Kapeli filed a notice of discontinuance of the proceeding.

19    By summons filed on 8 August 2024, Mr Kapeli commenced a proceeding in the Supreme Court of Victoria again seeking a writ of habeas corpus. A directions hearing was conducted by Justice Quigley on 9 August 2024. At that directions hearing, her Honour ordered that the proceeding be transferred to this Court pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), and ordered Mr Kapeli to pay the respondents’ costs.

20    Following the transfer of the proceeding to this Court, the proceeding was given a new proceeding number VID777/2024.

Initial timetabling orders

21    The proceeding was listed for case management on 16 August 2024. At that hearing, Mr Kapeli emphasised his desire to have the application heard at the earliest possible time. Initial timetabling orders were made for (amongst other things):

(a)    the filing and service of notices under s 78B of the Judiciary Act;

(b)    the sequential filing of affidavit evidence and outline submissions; and

(c)    the listing of the proceeding for hearing on 23 September 2024 on an estimate of one day.

22    A second case management hearing was held on 10 September 2024 at which adjustments were made to the pre-trial timetable. The parties confirmed that they wished to maintain the hearing date of 23 September 2024, but the Court invited the parties to consider whether they required a second hearing day (or later hearing dates).

23    On 18 September 2024, the parties requested that the proceeding be listed for a second hearing day on 24 September 2024. On 19 September 2024, the Court informed the parties that the proceeding would be listed for the second hearing day. It was understood at that time that lead counsel for Mr Kapeli, Mr Albert, was unavailable on 24 September 2024 but that junior counsel, Mr Boyd-Caine, was available.

Urgent applications on 20 September 2024

24    On the evening of 19 September 2023, Mr Kapeli sought an urgent case management hearing for the following day in order to resolve a number of issues that had arisen between the parties. A case management hearing was listed for the following morning.

25    The first issue was an application by Mr Kapeli for an order requiring the respondents to transport him from the Villawood Detention Centre to Melbourne so that he could be present during the hearing. The application was made partly on the basis that the respondents wished to cross-examine Mr Kapeli, but was also more broadly based on Mr Kapeli’s wish to be present in court during the hearing. In so far as the application was made on that broader basis, it was unreasonably delayed by Mr Kapeli. It should have been made at a much earlier point in time. Despite that, at the case management hearing on 20 September 2024, the respondents consented to an order that Mr Kapeli be transferred from Villawood Immigration Detention Centre in order to facilitate his attendance at the final hearing in person on 23 and 24 September 2024.

26    The second issue was an application by Mr Kapeli for the Court to permit the affidavit evidence of Sarina Kapeli to be adduced in evidence notwithstanding that the respondents required her attendance at the hearing for cross-examination but Sarina Kapeli was unavailable to attend the hearing by reason of a medical procedure scheduled for 24 September 2024. The usual rule of practice and procedure, reflected in r 29.09 of the Federal Court Rules 2011 (Cth) (Rules), is that an affidavit of a witness may not be adduced in evidence in those circumstances. The rule is supported by s 27 of the Evidence Act 1995 (Cth) (Evidence Act) which states that a party may question any witness (except as provided by that Act). The Court may grant dispensation from the rule, but does not do so lightly. As observed by Katzmann J in Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582; 126 ALD 290 (at [35]):

… if a party wishes to cross-examine a witness on matters in dispute in the proceeding and gives reasonable notice of its intention to do so, it is an incident of the court’s duty to provide a fair trial that, in general, that wish be respected. The right to cross-examine a witness has been described as “a fundamental element of litigation when conducted on affidavits or witness statements, not lightly to be set aside”, all the more so when the witness is a party: Alexander v Jansson [2010] NSWCA 176 at [11].

27    The respondents opposed Mr Kapeli’s application but, acting reasonably, proposed a compromise whereby the affidavit would be read subject to the removal of certain controversial paragraphs (those paragraphs would not be read). Mr Kapeli refused the compromise proposed by the respondents. I also gave Mr Kapeli the option of adjourning the hearing, or reconvening the hearing on another day, to enable Sarina Kapeli to attend for cross-examination. Mr Kapeli declined those options. The reason given for that position was that Mr Kapeli is in immigration detention and wished to complete the hearing and obtain the judgment of the Court as soon as possible. Whilst Mr Kapeli’s desire for an early hearing was understandable, it was procedurally unfair to the respondents to admit Sarina Kapeli’s affidavit in evidence without affording the respondents an opportunity to cross-examine her. The decision for the Court in those circumstances was either to refuse to admit Sarina Kapeli’s affidavit into evidence, or to do so subject to argument about the weight that should be given to the evidence. At the case management hearing on 20 September 2024, I made a ruling that Sarina Kapeli’s affidavit would be admitted into evidence subject to arguments about weight. I indicated to the parties that the respondents’ inability to cross-examine would materially affect the weight that the Court gives to controversial evidence.

28    The third issue was an application by Mr Kapeli for an order that the respondents produce any notes of a conference attended by Angela Wang with counsel for the respondents on 13 September 2024. I refused to make that order at the case management hearing on 20 September 2024. The reason for refusing the application can be briefly stated as follows.

29    Ms Wang is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189 of the Migration Act. In her second affidavit affirmed on 13 September 2024, Ms Wang referred to additional information she had received since her first affidavit, including an updated legal advice from the AGS with respect to the application of the decision in Love/Thoms to Mr Kapeli’s circumstances. Ms Wang stated that, in forming an opinion for the purposes of s 189 of the Migration Act, she had relied on the additional information and the AGS advice. A copy of the AGS advice was annexed to the affidavit and legal professional privilege in the advice was necessarily waived.

30    In addition to the AGS advice, Ms Wang’s affidavit also annexed an email dated 12 September 2024 by which she received that advice and an email dated 13 September 2024 that she sent in response. Each of those emails made passing reference to a conference that was scheduled to be held on 13 September 2024 between Ms Wang and counsel for the respondents. Mr Kapeli sought production of any notes of that conference.

31    The respondents informed Mr Kapeli and the Court that the respondents held a single document recording notes of the conference, but the respondents refused production on the basis of legal professional privilege. Mr Kapeli did not contest that the notes of the conference were privileged, but argued that privilege in the notes of the conference had been (impliedly) waived by Ms Wang having produced the AGS advice.

32    The test for implied waiver of privilege is well known. A court will impute an intention to waive privilege where the actions of a party are inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: see Mann v Carnell (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [45] (Gleeson CJ, Gummow, Heydon and Kiefel JJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

33    In her affidavit, Ms Wang does not refer to the conference she attended with counsel on 13 September 2024, beyond the passing reference described above. Ms Wang deposed that, in forming her opinion with respect to the detention of Mr Kapeli under s 189, she relied on the AGS advice. Ms Wang does not state, and there is nothing in her evidence to suggest, that she relied on information or advice received at the conference with counsel on 13 September 2024. In the circumstances, Mr Kapeli’s submission that Ms Wang had waived privilege in the note of the conference with counsel had no basis whatsoever.

Adjournment of the hearing listed for 23 and 24 September 2024

34    On the evening of Friday 20 September 2024, the solicitors for the respondents informed the solicitors for Mr Kapeli that the respondents believed that Mr Kapeli had an “infectious ailment” preventing him from being cleared to travel to Melbourne in compliance with the Court’s order made earlier that day. In correspondence, it was explained that Mr Kapeli was under investigation for a diagnosis of active tuberculosis. Further correspondence between the solicitors occurred over the weekend. The parties ultimately sought an order by consent vacating the Court’s earlier order requiring Mr Kapeli to be transported to Melbourne, and that order was made on the morning of 23 September 2024.

35    At the commencement of the hearing on 23 September 2024, lead counsel for Mr Kapeli, Mr Albert, informed the Court that there was uncertainty with respect to Mr Kapeli’s medical condition, resulting in uncertainty with respect to future travel arrangements for Mr Kapeli. Mr Albert submitted that he was ready to proceed with the hearing, but he wished to seek instructions from Mr Kapeli about an application for an adjournment of the hearing. However, Mr Albert considered that he could not advise Mr Kapeli, and obtain instructions, until Mr Kapeli’s ability to travel in the coming days or weeks was known. The basis of any application for an adjournment would be that, first, Mr Kapeli wished to give his evidence, by way of cross-examination and re-examination, in person, and Mr Kapeli considered that the presentation of his case would be prejudiced if he were required to give his evidence by means of audio-visual facilities, and second, that Mr Kapeli wished to be present during the hearing of his case. However, if the medical diagnosis was such that Mr Kapeli could not travel for many weeks, the application for an adjournment would likely not be pressed.

36    To that end, Mr Kapeli made an application for an order under r 21.01 of the Rules that the respondents provide written answers to the following interrogatories:

(a)    When is the final result from the culture samples for tuberculosis in relation to the applicant, taken on 3 August 2024, expected by the respondents to be provided to the applicant?

(b)    If a negative result is returned, how long after this do the respondents expect the applicant will be deemed to be fit to travel?

(c)    If a positive result is returned, how long after this do the respondents expect it will take for the applicant to be fit to travel?

37    Mr Kapeli submitted that the order for interrogatories was also sought on the basis that the answers were relevant to his application based on the principles stated in NZYQ because Mr Kapeli’s medical condition may reveal that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.

38    The respondents opposed the application for interrogatories, submitting that they would endeavour to provide updated information to Mr Kapeli’s lawyers as soon as possible. The respondents also submitted that, in so far as Mr Kapeli’s application for interrogatories was based on NZYQ, the application was misconceived. The Minister had not yet made a decision with respect to Mr Kapeli’s request for the cancellation of his visa to be revoked and, accordingly, Mr Kapeli was not being detained for the purpose of removal from Australia but was being detained for the purpose of his visa status being considered. The respondents also informed the Court that they had offered to Mr Kapeli that they would not oppose an application for an adjournment on account of Mr Kapeli’s medical condition, but otherwise the respondents were ready to proceed.

39    I refused the application for interrogatories for the reason that I was not satisfied that there was a sufficient basis for such an order. The proceeding was adjourned until 2.15pm, however, to provide the respondents with further time to obtain updated information about Mr Kapeli’s medical condition and provide that information to Mr Kapeli.

40    At the resumption of the hearing at 2.15pm, the Court was informed that the medical test results had come back showing that Mr Kapeli did not have active tuberculosis. In those circumstances, Mr Kapeli sought an adjournment of the hearing until 8 and 9 October 2024, being dates available to the Court and both parties. The basis of the application for an adjournment was that both Mr Kapeli and Sarina Kapeli would then be available to attend Court to give evidence by way of cross-examination and re-examination. Lead counsel for Mr Kapeli, Mr Albert, also placed reliance on the fact that he was unavailable the following day (24 September 2024), although that was known at the time the matter was listed for hearing.

41    The respondents opposed the adjournment, indicating that Mr Kapeli could be transported to Court for cross-examination on 24 September 2024 and, during the balance of 23 September 2024, cross-examination could proceed with respect to the respondents’ witnesses. Counsel for the respondents accepted, however, that the only prejudice to the respondents from an adjournment was costs.

42    Not without hesitation, I granted the application for an adjournment. The principal reason for granting the adjournment was to enable Mr Kapeli to be present in Court throughout the hearing and to give evidence in person by way of cross-examination and re-examination, and to enable Sarina Kapeli also to attend Court to give evidence in person in the same manner. Those considerations assumed more significance in this proceeding than they might otherwise have by reason of the nature of the proceeding, being an application for a writ of habeas corpus requiring the respondents to release Mr Kapeli from immigration detention. I reserved the costs occasioned by the adjournment. The effect of that order is that, if no further order is made, costs follow the event (see r 40.03 of the Rules).

Section 78B notices

43    By an affidavit affirmed on 20 September 2024, the solicitor for Mr Kapeli, James Clarke of Gadens, deposed that notices under s 78B of the Judiciary Act had been given to the Commonwealth Attorney-General and each State and Territory Attorney-General. None of the Attorneys-General sought to intervene in the proceeding.

Duration of the hearing and written submissions after the conclusion of the hearing

44    The hearing was listed for two days commencing 8 October 2024. The length of the closing submissions made on behalf of Mr Kapeli necessitated the continuation of the hearing on a third day.

45    During closing submissions, Mr Kapeli advanced a submission concerning the proper construction of s 198 of the Migration Act that had not been previously foreshadowed. The submission was that, by virtue of s 198(5), the Department was under an immediate obligation to remove Mr Kapeli from Australia as soon as possible, notwithstanding that:

(a)    Mr Kapeli’s visa was cancelled under s 501(3A);

(b)    Mr Kapeli had been invited, in accordance with s 501CA, to make representations to the Minister about revocation of the decision to cancel his visa; and

(c)    Mr Kapeli had made representations in accordance with the invitation but the Minister had not yet decided whether to revoke the cancellation of his visa.

46    The submission was advanced in aid of Mr Kapeli’s arguments concerning the application of the principles in NZYQ to the facts of this case.

47    The respondents sought an opportunity to file written submissions in response following the close of the hearing. Mr Kapeli did not oppose that application and I gave leave for the sequential filing of further submissions limited to the issue of construction.

C.    Relevant principles governing the writ of habeas corpus and immigration detention

General principles

48    This Court has jurisdiction under s 39B of the Judiciary Act to determine whether Mr Kapeli is lawfully detained under the Migration Act: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 (McHugh) at [18] - [19] (Allsop CJ) and [74] (Besanko J). The Court has power under s 23 of the FCA Act to issue a writ of habeas corpus and to make an order requiring Mr Kapeli to be released from detention if his detention is unlawful: McHugh at [20] (Allsop CJ), [75] (Besanko J) and [190] (Mortimer J); Save the Children Australia v Minister for Home Affairs (2024) 304 FCR 262 at [33].

49    An application for habeas corpus is directed to the lawfulness of the detention of the applicant at the time of the hearing of the application for the writ: McHugh at [288] per Mortimer J, Allsop CJ and Besanko J agreeing at [2] and [76] respectively.

50    An applicant seeking a writ of habeas corpus has an initial evidentiary burden of establishing that there is a reason to suppose that their detention is unlawful: Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ); McHugh at [60] (Allsop CJ), [92] (Besanko J) and [273] (Mortimer J). Once the applicant’s initial evidentiary burden has been met, the burden then shifts to the detaining party to show that, on the balance of probabilities, the applicant’s detention is lawful: McHugh at [56], [61] (Allsop CJ), [90], [96] (Besanko J) and [294] (Mortimer J).

51    In accordance with s 140 of the Evidence Act, the Court is required to take into account the nature and gravity of the subject-matter of the proceeding (the deprivation of the applicant’s liberty by the Executive) in deciding whether it is satisfied on the balance of probabilities that the detention is lawful: McHugh at [294] (Mortimer J). It has often been said in this context that the evidence should be clear and cogent: McHugh at [57] (Allsop CJ). That is not, however, to introduce some intermediate burden of proof between balance of probabilities and beyond reasonable doubt. It is only to require that the nature and quality of the evidence adduced in proof of particular facts be weighed having regard to the seriousness of the subject-matter of the proceeding: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 at 450 (Mason CJ, Brennan, Deane and Gaudron JJ).

52    Mr Kapeli has been detained pursuant to the purported exercise of power under s 189(1) of the Migration Act. The principal question that arises in this proceeding is whether Mr Kapeli’s detention under s 189(1) is lawful. Section 189(1) provides as follows:

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.

53    It can be seen that s 189(1) is directed not only to cases where an officer knows that a person is an unlawful non-citizen, but extends to cases where the officer reasonably suspects that a person has that status: Ruddock v Taylor (2005) 222 CLR 612 (Ruddock) at [27] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms v Commonwealth (2022) 276 CLR 466 (Thoms No 2) at [29] (Kiefel CJ, Keane and Gleeson JJ). A reasonable suspicion is something substantially less than certainty: Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie v The Commonwealth (2002) 117 FCR 566 (Goldie) at [4]-[5] (Gray and Lee JJ). It requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112. The reasonableness of the officer’s suspicion is assessed objectively, in the sense that the officer’s suspicion must be “justifiable upon objective examination of relevant material”: Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie at [4]-[5] (Gray and Lee JJ). The reasonableness of the officer’s suspicion is assessed by reference to what is known, or reasonably capable of being known, at the time of detention: Ruddock at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms No 2 at [41] (Kiefel CJ, Keane and Gleeson JJ) and [49] (Gordon and Edelman JJ).

54    What is capable of being known at the time of detention includes the state of the law: Thoms No 2 at [44] (Kiefel CJ, Keane and Gleeson JJ), [82]-[83] (Gordon and Edelman JJ). In reaching an understanding of what the law is, the officer may receive legal advice. In such a case, the officer is not required to question or second guess the advice given to them unless “it is clear the advice is objectively and obviously defective, such that a non-legally trained person such as a detaining officer could reasonably be expected to see the fault in the advice”: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 at [59] (Mortimer J) (an appeal against that decision, on different grounds, was dismissed: (2023) 300 FCR 106). A subsequent change in the law will not affect the reasonableness of the suspicion prior to the change in the law: Thoms No 2 at [43] (Kiefel CJ, Keane and Gleeson JJ) and [58] and [83] (Gordon and Edelman JJ).

55    An “unlawful non-citizen” is defined in s 5(1) of the Migration Act to mean a person who is not an Australian citizen and does not hold a visa. In the present case, it is not in dispute that Mr Kapeli is not an Australian citizen and does not hold a visa. As identified earlier in these reasons, Mr Kapeli claims that his detention is unlawful, first, on the basis of the principles stated by the High Court in Love/Thoms and, second, on the basis of the principles stated by the High Court in NZYQ. Those principles, and their interaction with the power of detention in s 189(1), are explained in the following paragraphs.

The principles stated by the High Court in Love/Thoms

56    Section 189 of the Migration Act was enacted by the Federal Parliament pursuant to the power conferred by s 51(xix) of the Constitution to make laws with respect to “aliens”. The decision in Love/Thoms concerns the limits of that power, and specifically whether that power applies to Aboriginal persons who are not Australian citizens, were born overseas and are citizens of a foreign country (those being the characteristics of the plaintiffs in that case): Kiefel CJ at [1] and [4], Bell J at [49], Gageler J (as his Honour then was) at [112] and [126], Keane J at [142]-[145], Nettle J at [241], Gordon J at [294] and [331] and Edelman J at [391]. The majority (Bell, Nettle, Gordon and Edelman JJ) found, in four separate judgments with differing reasons, that Aboriginal Australians, understood according to the tripartite test stated in Mabo (No 2), are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution: Bell J at [81], speaking on behalf of the majority.

57    The tripartite test stated in Mabo (No 2) is a reference to that part of the judgment of Brennan J in which his Honour summarised the common law of Australia with respect to native title, including the identification of persons entitled to native title. His Honour stated (at 70, emphasis added):

6.     Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

58    Unless the context indicates to the contrary, references in these reasons to the “tripartite test” are a reference to the above bolded passage from the judgement of Brennan J in Mabo (No 2).

59    The principal point of controversy in the present case is the application of the first limb of the tripartite test, biological descent from indigenous people, to Mr Kapeli.

60    Applying s 15A of the Acts Interpretation Act 1901 (Cth), the effect of the decision in Love/Thoms is that the Migration Act generally, and s 189 specifically, must be read and construed subject to that constitutional limit. In other words, s 189 must be disapplied in so far as it purports to apply to Aboriginal people (understood according to the tripartite test): Love/Thoms at [285] (Nettle J), [293] (Gordon J) and [398] (Edelman J).

61    The manner and extent of the disapplication of s 189 to Aboriginal people was subsequently considered in Thoms No 2. There, the High Court unanimously concluded that s 189(1) validly empowered an officer to detain a person in immigration detention where the officer reasonably suspects that the person is an unlawful non-citizen and is not an Aboriginal person, even if the true facts are that they are an Aboriginal person within the tripartite test. The High Court concluded that, providing the requisite suspicion is held by the officer, s 189(1) can validly apply because, in those circumstances, there will be a sufficient connection with the aliens power in s 51(xix) of the Constitution: Thoms No 2 at [31] and [37] (Kiefel CJ, Keane and Gleeson JJ, Gageler and Steward JJ agreeing) and [64] and [67] (Gordon and Edelman JJ). Conversely, where circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that a person is not an alien (relevantly here, because they are an Aboriginal person within the tripartite test), s 189(1) would not validly empower the officer to detain the person: at [74] and [77] (Gordon and Edelman JJ).

62    Thus, the principal question that arises in this proceeding is whether circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that Mr Kapeli is not an alien within the principles stated in Love/Thoms.

The principles stated by the High Court in NZYQ

63    The duration of a person’s detention under s 189 is governed by s 196. Relevantly, s 196(1) stipulates that an unlawful non‑citizen detained under s 189 must be kept in immigration detention until, amongst other things, he or she is removed from Australia under s 198 or s 199, is deported under s 200, or is granted a visa.

64    Section 198 concerns the removal from Australia of unlawful non-citizens. Relevantly with respect to the facts in NZYQ, s 198(1) stipulates that an officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed. Section 198(6) provides as follows:

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a)     the non‑citizen is a detainee; and

(b)     the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)     one of the following applies:

(i)     the grant of the visa has been refused and the application has been finally determined;

(ii)     the visa cannot be granted; and

(d)     the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

65    In NZYQ, the High Court unanimously re-affirmed the following constitutional principle stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 33 concerning the validity, under Ch III of the Constitution, of a law authorising the detention of an alien:

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.

66    The High Court in NZYQ framed the principle in Lim in the following manner (at [39]):

Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. In other words, detention is penal or punitive unless justified as otherwise.

67    The High Court concluded that the continuing detention under ss 189 and 196 of the Migration Act of an alien who is required to be removed from Australia under s 198 is contrary to Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future: at [44]-[45] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) and [54] (Edelman J).

68    The High Court decision in NZYQ concerned a person (the plaintiff) in immigration detention whose visa application had been finally determined such that a duty was imposed on officers of the Department by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable (at [4]). Additionally, the plaintiff wrote to the Minister requesting his removal, which engaged another duty imposed on officers by s 198(1) to remove the plaintiff from Australia. The plaintiff was a stateless Rohingya Muslim who was born in Myanmar. A delegate had determined that the plaintiff had a well-founded fear of persecution in Myanmar (at [3]), with the result that the Migration Act did not authorise his removal to Myanmar and there was no real prospect of him being provided with a right to enter or reside in another country (at [5]).

69    The purpose for which an alien may be detained under ss 189 and 196 is not limited to the removal of the person from Australia. It is also a legitimate and non-punitive purpose of detention to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined: NZYQ at [48]; see also Commonwealth v AJL20 (2021) 273 CLR 43 at [24]-[28] (Kiefel CJ, Gageler, Keane and Steward JJ) and Thoms No 2 at [39] (Kiefel CJ, Keane and Gleeson JJ) and [57] (Gordon and Edelman JJ).

D.    The evidence

Affidavits relied upon

70    Mr Kapeli’s summons dated 8 August 2024 was supported by an affidavit affirmed by James Clarke on 7 August 2024. As noted earlier, Mr Clarke is a solicitor employed by Gadens, the solicitors for Mr Kapeli in this proceeding.

71    On 16 August 2024, I made timetabling orders for the filing of evidence in the form of affidavits. Recognising that Mr Kapeli bears an initial evidentiary burden of establishing that there is a reason to suppose that his detention is unlawful, the orders required Mr Kapeli to file evidence first. The orders then provided for the filing of evidence in chief by the respondents, for the filing of responsive evidence by Mr Kapeli, and for the filing of reply evidence by the respondents.

72    Mr Kapeli initially filed the following two affidavits:

(a)    An affidavit affirmed by Mr Kapeli on 20 August 2024, to which was annexed an earlier affidavit of Mr Kapeli affirmed on 2 August 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Mr Kapeli’s affidavit dated 2 August 2022 annexed a statement dated 13 April 2022.

(b)    An affidavit affirmed by Michelle Donnelly on 20 August 2024, to which was annexed an affidavit of Michelle Donnelly affirmed on 1 August 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Michelle Donnelly is 62 years old and has lived in Forster, New South Wales, for over 40 years. She describes herself as a Bundjalung-Worimi Aboriginal woman and a Worimi elder. Michelle Donnelly’s father was Bundjalung and her mother was Worimi.

73    The respondents filed the following two affidavits being their proposed evidence in chief:

(a)    An affidavit affirmed by Angela Wang on 27 August 2024. Ms Wang is an employee of the Department and is currently employed as a Status Resolution Officer (SRO) within the Department’s Status Resolution and Visa Cancellation Division. Ms Wang is the SRO assigned responsibility for Mr Kapeli, and is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189. Ms Wang deposed that she is satisfied that Mr Kapeli is not an Australian citizen, does not hold a visa, and is therefore an unlawful non-citizen and that Mr Kapeli does not satisfy the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court’s decision in Love/Thoms. In reaching that view, Ms Wang relied on legal advice provided to her by the AGS dated 19 August 2024.

(b)    An affidavit affirmed by Christopher James Montgomery on 27 August 2024. Mr Montgomery is currently employed as a Senior Legal Officer within the Department’s Migration and Citizenship Litigation Branch.

74    Mr Kapeli filed the following further affidavits by way of responsive evidence:

(a)    A further affidavit sworn by Mr Kapeli on 2 September 2024.

(b)    A further affidavit affirmed by Michelle Donnelly on 2 September 2024.

(c)    An affidavit sworn by Sarina Kapeli on 2 September 2024. Sarina Kapeli has been married to Mr Kapeli for 21 years. She describes herself as an Aboriginal woman from the Kuku Yalanji tribe which is from Far-North Queensland, and which was also her birth mother’s tribe.

(d)    An affidavit affirmed by Desmond Donnelly on 3 September 2024. Mr Donnelly is the son of Michelle Donnelly. He is 43 years old and lives in Forster, New South Wales. He describes himself as an Aboriginal man of the Worimi tribe from the Forster-Tuncurry region.

(e)    An affidavit sworn by Percy Simon on 2 September 2024. Percy Simon is 76 years old and lives in Forster, New South Wales. His mother was Worimi but he is not sure if his father was Worimi. He describes himself as a Worimi elder and deposed that he has traditional authority to make decisions about “our people” which authority has been passed down to him and others (including Michelle Donnelly) through elders now gone and that he is the oldest elder in Forster.

(f)    An affidavit affirmed by Desmond Simon on 2 September 2024, to which was annexed an earlier affidavit of Mr Simon affirmed on 29 July 2022 which was prepared in support of Mr Kapeli’s application for revocation of the prior cancellation decision. Desmond Simon is 70 years old and has lived in Forster, New South Wales, most of his life. Both his father and mother were Worimi. He deposed that he is accepted as an elder in the Worimi community and that he has traditional knowledge and authority to make decisions for “my people”.

(g)    An affidavit affirmed by James Clarke on 3 September 2024. By his affidavit, Mr Clarke sought to adduce in evidence a number of publications containing historical and ethnographic descriptions of the Aboriginal people in the Port Stephens and Hunter Valley areas in New South Wales and of the “Worimi Tribe”.

75    The respondents filed the following two affidavits by way of reply to Mr Kapeli’s responsive evidence:

(a)    An affidavit affirmed by Mary Margaret Baras-Miller on 12 September 2024. Ms Baras-Miller is a lawyer at the AGS. Ms Baras-Miller deposed to information she obtained from the Services Australia Medicare Branch.

(b)    A further affidavit affirmed by Angela Wang on 13 September 2024. In that affidavit, Ms Wang deposed to receiving and considering the seven further affidavits filed by Mr Kapeli in the proceeding, the affidavit of Ms Baras-Miller and further advice provided by the AGS dated 12 September 2024. Ms Wang deposed that she continues to be satisfied that Mr Kapeli does not meet the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court’s decision in Love/Thoms.

76    Mr Kapeli filed two further affidavits on 20 September 2024, outside the timetable set by the Court. The first was the affidavit of James Clarke affirmed that day which was referred to earlier in these reasons. That affidavit concerned the s 78B notices that had been given to the Attorneys-General and was uncontroversial. The second was a further affidavit of Mr Kapeli sworn that day. That affidavit concerned a medical episode experienced by Mr Kapeli on the evening of 26 June 2024 which resulted in him being taken to hospital in an ambulance. The respondents took no objection to the late filing of the further affidavit from Mr Kapeli.

Evidentiary objections

77    Each of the affidavits was read subject to rulings I made on evidentiary objections. In accordance with the orders of the Court, the parties conferred with respect to objections and reached a largely agreed position which was recorded in a document provided to the Court and marked for identification.

Objections to Mr Kapeli’s evidence

78    The respondents objected to a relatively small number of passages in Mr Kapeli’s evidence largely on the grounds of hearsay (under s 59 of the Evidence Act) and opinion (under s 76 of the Evidence Act). Ultimately, Mr Kapeli did not dispute that the passages were inadmissible under those exclusionary rules. However, Mr Kapeli submitted, and the respondents agreed, that the objectionable passages were admissible under ss 60 and 77 of the Evidence Act because they were relevant for a purpose other than proof of the facts asserted or expressed in the evidence. The relevance of the evidence lay in the fact that Ms Wang had taken into account Mr Kapeli’s evidence (including the objectionable passages) in making her decision about the ongoing detention of Mr Kapeli under s 189 of the Migration Act. I accepted that the evidence is relevant to the Court’s assessment of whether Ms Wang’s suspicion that Mr Kapeli was an unlawful non-citizen and was an alien (not being an Aboriginal Australian) was reasonable and is therefore admissible under ss 60 and 77 of the Evidence Act.

79    The effect of admitting evidence under ss 60 and 77 of the Evidence Act is that the evidence is admitted for all purposes, including as proof of the facts asserted or expressed in the evidence. The respondents sought a ruling from the Court under s 136 of the Evidence Act limiting the use to be made of the objectionable passages on the ground that there is a danger that using the evidence in proof of the facts asserted or expressed in the objectionable passages might be unfairly prejudicial to the respondents or be misleading or confusing. Mr Kapeli resisted that ruling. In my view, the present case is an exemplar of the circumstances in which it is appropriate to make a ruling under s 136 of the Evidence Act. I ruled that the use to be made of all of the objectional passages is limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act. The reasons for that ruling are as follows.

80    Sections 60 and 77 were enacted in their present form by the Evidence Amendment Act 2008 (Cth), implementing recommendations made in the Report on the Uniform Evidence Law published by the Australian Law Reform Commission, the NSW Law Reform Commission and the Victorian Law Reform Commission in December 2005 (ALRC 102). ALRC 102 recognised that evidence admitted under s 60 (and s 77) would remain subject to discretionary exclusion under ss 135 and 136, stating (at [7.65]):

The intention of s 60 was to enable evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the facts asserted in the representation, and to do so whether or not the evidence is first-hand or more remote hearsay, subject to the controls provided by ss 135–137.

81    The discretionary power to limit the use of admissible evidence in s 136 is stated as follows:

136     General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)     be unfairly prejudicial to a party; or

(b)     be misleading or confusing.

82    In Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; 224 ALR 317 (Seven Network No 8), Sackville J observed (at [16]) that, under s 136, the Court does not have to be satisfied that a particular use of evidence will be unfairly prejudicial; the court need only be satisfied that there is a danger that a particular use of evidence might be unfairly prejudicial.

83    In Quick v Stoland Pty Ltd (1998) 87 FCR 371, the Full Federal Court considered whether a use limitation should be made under s 136 in respect of hearsay material that formed a basis for expert opinion. Branson J observed (at 377–8) that, in cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 by exercising the discretion in s 136. Finkelstein J said (at 382) that, where the hearsay involves facts that are in conflict or facts that are unreliable, it is quite unsatisfactory for those facts to be proved by the operation of s 60, and that one way in which this problem can be overcome is by an order under s 136.

84    In a passage that has been referred to and applied on many occasions, Sperling J in Roach v Page (No 11) [2003] NSWSC 907 listed a number of considerations that are relevant to an assessment of the danger that a particular use of evidence might be unfairly prejudicial to a party (at [74]):

Having regard to the terms and context of ss 135, 136 and 137 and the case law to which I have referred, I set out my view of considerations relevant to “unfair prejudice” as follows.

(a)     To say that any prejudice must be unfair prejudice is to state the obvious.

(b)     The phrase “unfair prejudice” is not defined. The legislature imposed no restriction on the criteria for unfairness.

(c)     The exceptions to the hearsay rule evince a legislative intention to allow evidence notwithstanding its hearsay character. But ss 135, 136 and 137 evince a legislative intention to allow any evidence, otherwise admissible, to be rejected or its use to be limited if the conditions specified in those sections are met.

(d)     Where hearsay evidence is made admissible by an exception to the hearsay rule it would be wrong to exclude it or to limit its use merely because it is hearsay and therefore of inherently less reliable quality. That would be to frustrate the intention of the legislature in making hearsay evidence admissible where it is covered by an exception to the hearsay rule. But that is not the same as saying that there is scope for the application of ss 135, 136 and 137 in relation to hearsay evidence which is covered by such a statutory exception but where there is some additional factor, for example, where the maker of the representation is not to be called.

(e)     Inability to test the truth of the representation is a legitimate ground for rejecting or limiting the use of evidence which is covered by an exception to the hearsay rule. Thus, whether the maker of the representation will be called as a witness is a relevant consideration.

(f)     However, where hearsay evidence is admissible under an exception to the hearsay rule because of the unavailability of the maker of the representation, there is a special reason for not disallowing the evidence or limiting its use on the ground that the evidence cannot be tested by cross-examination. That is because the legislature has made the evidence admissible notwithstanding that consideration.

(g)     Conversely, where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice.

(h)     Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party’s case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness.

(i)     Where ss 60 or 77 operate and the author of the document is not called, the truth of facts stated or the efficacy of the opinion expressed cannot be tested by cross-examination. The consequence of the operation of ss 60 or 77 is then potentially the more unfair on that account.

(j)     The operation of s60 on assumption evidence which is given as the basis for an expert opinion is also a special case. Where such evidence is in the form of a bare statement of facts or where facts are stated as having been provided by some other person or persons, s60 operates to make the account evidence of the truth of the facts so stated. That is not so if the expert says that certain facts are assumed for the purpose of providing the opinion. A disadvantage should not be incurred in legal proceedings by happenstance. If the facts stated are contentious, it will ordinarily be unfair that the opposite party is fixed with assumption evidence as evidence of the truth of the facts stated by reason of those facts having been stated in one form rather than the other.

85    The passages of Mr Kapeli’s evidence to which objection was taken by the respondents frequently involved conclusory assertions containing a mixture of hearsay and opinion. By way of illustration, Mr Kapeli deposed that: “My Elders say I am Aboriginal and that they have culturally accepted me”. That evidence is hearsay because it concerns the statements and opinions of others. It also suffers from being a vague conclusory statement that unidentified “Elders” have “culturally accepted” Mr Kapeli.

86    As another illustration, Michelle Donnelly deposed that:

In around 2008, Samiuela was initiated into and accepted by our Aboriginal Worimi community during a ceremony. In our culture this ceremony is men’s business so I wasn’t there, but I was told about it.

87    Again, the evidence is inadmissible hearsay. Michelle Donnelly did not identify who told her that information, and no application was made to adduce the hearsay evidence under ss 63 or 64 of the Evidence Act.

88    In his affidavit affirmed 3 September 2024, Mr Clarke annexed the following extracts from the following publications:

(a)    pages 2-13 and 24-29 of The Port Stephens Blacks: Recollections of William Scott by Gordon Bennett;

(b)    pages 12-21 of The Earliest Inhabitants: Aboriginal Tribes of Dungog, Port Stephens and Gresford by Gordon Bennett;

(c)    an article titled Further Notes on the Worimi by W.J. Enright from the August 1933 edition of the publication Mankind;

(d)    an article titled The Worimi Tribe by W.J. Enright, published in a 1936 edition of the Newcastle and Hunter District Historical Society Journal and Proceedings;

(e)    a chapter of Dr Helen Brayshaw’s thesis, titled Some Aspects of the Material Culture of the Aborigines of the Hunter Valley at the Time of First White Settlement in the Area;

(f)    an article titled The Keeparra Ceremony of Initiation by R.H. Mathews from an 1896 edition of the Journal of the Anthropological Institute through the University of Newcastle’s Living Histories page;

(g)    pages 1-23 of The Rainbow Beach Man: The Life and Times of Les Ridgeway, Worimi Elder by John Ramsland.

89    Mr Clarke deposed that he had observed that the authors of those publications had made comments in relation to initiation ceremonies of the Worimi people and Mr Clarke then reproduced passages from the above publications reflecting his “observations”. As noted above, Mr Clarke is Mr Kapeli’s solicitor. He does not depose that he has any qualifications as an anthropologist or has any specialised knowledge based on his training, study or experience that would qualify him to express any opinion about the initiation ceremonies of the Worimi people either historically or in current times. Accordingly, Mr Clarke’s “observations” are inadmissible opinion. It also follows that the publications annexed to his affidavit, which are hearsay documents, are not admissible as basis material for an admissible opinion pursuant to s 60 of the Evidence Act: see Bodney v Bennell (2008) 167 FCR 84 at [92]-[93] and the authorities referred to in Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 at [37]-[41]. No application was made to adduce the publications under s 63 of the Evidence Act.

90    Although the objectionable passages of Mr Kapeli’s evidence are inadmissible hearsay or opinion in this proceeding, they are nevertheless relevant material to be considered by the detaining officer, Ms Wang, in forming or maintaining the required suspicion under s 189 of the Migration Act. The objectionable passages were therefore necessarily considered by Ms Wang and, in her affidavits, Ms Wang deposed that she had taken all of Mr Kapeli’s evidence into account in forming her opinion for the purposes of s 189 of the Migration Act. It necessarily follows that all of Mr Kapeli’s evidence, including the objectionable passages, is relevant to a consideration of the basis on which Ms Wang formed her opinion and whether the suspicion held by Ms Wang was objectively reasonable. All of the evidence is therefore admissible under ss 60 or 77 for that non-hearsay purpose – not to prove (in this proceeding) the truth of the facts asserted or expressed in the evidence.

91    It is a circumstance of proceedings of this nature that all of the evidence adduced on behalf of an applicant – including evidence that is inadmissible because it is hearsay, or unqualified opinion, or vague and conclusory in form – must be considered by a detaining officer and therefore becomes admissible under ss 60 and 77 of the Evidence Act. In my view, it is unfairly prejudicial to the respondent if the applicant is permitted to use such evidence as proof of the facts asserted or expressed in the evidence. By definition, hearsay evidence cannot be tested because the person who made the previous representation is unavailable to be cross-examined. It is also unfair to a party to require them to cross-examine a deponent in respect of unqualified opinions and vague and conclusory evidence.

92    In a number of cases, courts have observed that the danger that a particular use of evidence might be unfairly prejudicial to a party is less acute in a trial before a judge rather than a jury, because a judge can address the unfair prejudice by giving the objectionable evidence little weight. In Seven Network (No 8), Sackville J stated (at [21]):

I agree … that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the court to make a direction limiting the use of otherwise admissible evidence.

93    In the present case, I consider that the threshold requirements for limiting the use of the objectionable passages from Mr Kapeli’s evidence are satisfied in that there is a danger that using the evidence in proof of the facts asserted or expressed in those passages might be unfairly prejudicial to the respondents. I accept that the unfair prejudice might be ameliorated by assigning the evidence little (if any) weight having regard to its character. It might be questioned whether the practical result of either approach differs (that is, limiting the use to be made of the evidence or assigning it little weight). In my view, having regard to the character of the evidence and the circumstances in which it is being admitted, this is an appropriate case in which the use of the objectionable passages should be limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act.

Objections to the respondents’ evidence

94    Mr Kapeli objected to a relatively small number of passages in Ms Wang’s evidence, largely on the grounds of hearsay (under s 59 of the Evidence Act). I overruled certain of the objections on the basis that the evidence was a business record within s 69 of the Evidence Act. In respect of the other objections, the parties agreed that, as the evidence had been considered by Ms Wang in forming her opinion under s 189 of the Migration Act, the evidence was relevant to the Court’s assessment of whether Ms Wang’s suspicion that Mr Kapeli was an unlawful non-citizen and was an alien (not being an Aboriginal person) was reasonable and was therefore admissible under s 60 of the Evidence Act.

95    Mr Kapeli sought a ruling from the Court under s 136 of the Evidence Act limiting the use to be made of the objectionable passages on the ground that there is a danger that using the evidence in proof of the facts asserted or expressed in the objectionable passages might be unfairly prejudicial to him. I made that ruling for the same reasons as given in respect of Mr Kapeli’s evidence.

Credibility and reliability of the witness evidence

96    As noted earlier, the respondents cross-examined two witnesses, Mr Kapeli and Sarina Kapeli. The respondents challenged Mr Kapeli’s credit, but there was no challenge to Sarina Kapeli’s credit.

97    Mr Kapeli cross-examined Ms Wang, but there was no challenge to Ms Wang’s credit.

Samiuela Kapeli

98    The respondents submitted that Mr Kapeli gave untruthful answers to certain questions and was evasive in answering certain questions. I accept that submission. I formed the impression from the answers given by Mr Kapeli, and the manner in which he gave the answers, that Mr Kapeli wished to avoid providing information about his Tongan ancestry because he believed that such information would be harmful to his claim that he is an Aboriginal Australian. Mr Kapeli did not claim to have Aboriginal biological ancestry, but frequently asserted that he does not know his ancestry and therefore does not know whether he has Aboriginal biological ancestry.

99    As discussed further below, it is uncontroversial that Mr Kapeli was born in Tonga and was adopted and raised from infancy by his great aunt (the sister of his grandfather on his father’s side), Pisila Taulupe, and her husband, Tangaki Taulupe Latu. He deposed that he did not know his biological parents and was not challenged on that evidence. At the beginning of his cross-examination, however, Mr Kapeli was asked whether he knew the names of his biological mother and father and the country in which each of them were born. He answered “no” to each of those questions. A little later, he was pressed further and the following exchange occurred:

And sitting there as you are now, you've got no recollection of your parents' names?

This is the hardest part of my life. I've never been told, I've never been asked. With all my life - I'm 41 years old. I would love to know, but the hardest part is they abandoned me, for two weeks old. It has broken my heart. Okay. No.

And have you ever tried to find out their names?

No.

100    I find that those answers were untruthful. The names of Mr Kapeli’s biological parents and the country and town in which they were born are recorded in a number of documents associated with Mr Kapeli’s migration to Australia and which originate from Mr Kapeli.

101    The first document is Mr Kapeli’s New South Wales marriage certificate. Although the copy of the marriage certificate in evidence is a certified copy dated 10 August 2005, the marriage date is recorded by the New South Wales Registry of Births, Deaths and Marriages as 12 December 2003 and the registration number is 29921/2003. I infer that the information contained in the certificate was therefore recorded on the register in 2003. The marriage certificate records the name of Mr Kapeli’s father as Sione Tuifio Aloua and the name of his mother as Folau Kapeli. That information could only have been provided by Mr Kapeli to the New South Wales Registry.

102    The second document is a certified copy of the “particulars contained in the Birth Register for the District of Tongatapu for the year 1982”, containing Mr Kapeli’s registered birth details. The document is written in the Tongan language, but also has an English translation, and is titled (in English) “True Copy of Birth Registration”. The document is certified by the Registrar of Births, Deaths and Marriages, Tonga, and is dated 29 June 2004. The document (which I will refer to as the Birth Registration Particulars) records the following information concerning Mr Kapeli:

(a)    his name at birth is given as Samiuela Iatu Kapeli;

(b)    the date of his birth is recorded as 20 June 1982;

(c)    the name of his biological father is Tuifio Aloua;

(d)    the place of his biological father’s birth is Utulei (which is a township in Tonga);

(e)    the name of his biological mother is Elenoa Folau Kapeli;

(f)    the place of his biological mother’s birth is Falevai Vv (which is a township in the Vavua islands in Tonga);

(g)    the birth is recorded as “illegitimate” (which I infer indicates that his biological parents were not married); and

(h)    the birth was registered by Mr Kapeli’s biological parents, although only his biological mother signed the register.

103    It is apparent that Mr Kapeli was given his mother’s surname at birth, which he has retained.

104    The third document is a migration form (Form 47SP) titled “Application for migration to Australia by a partner” dated 22 June 2005 by which Mr Kapeli applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The application records that Mr Kapeli received assistance from Sarina Kapeli in completing the form, and Mr Kapeli confirmed in evidence that the handwriting on the form is Sarina Kapeli’s handwriting. However, Mr Kapeli signed the form declaring the accuracy of the information provided. Mr Kapeli gave evidence that he recalled the application. Significantly, the application records the following information concerning Mr Kapeli’s biological family in Tonga:

(a)    Mr Kapeli’s biological father is recorded as Sione Aloua, his birth date is 11 July 1960, his marital status is “married” and his country of residence is Tonga;

(b)    Mr Kapeli’s biological mother is recorded as Elenoa Kapeli, her birth date is unknown, her marital status is “married” and her country of residence is Tonga; and

(c)    Mr Kapeli’s brothers and sisters are recorded as Tangaki Aloua (born in 1990), David Aloua (born in 1992), Kalisitane Aloua (born in 1994), Pisila Aloua (born 1996) and Siosiani Aloua (born 2001) and their country of residence is Tonga.

105    The application required Mr Kapeli to attach, among other things, his birth certificate and marriage certificate. The Birth Registration Particulars and Mr Kapeli’s marriage certificate, referred to above, formed part of his Departmental migration file and I infer they were submitted with the application. In cross-examination, Mr Kapeli confirmed that he completed the application with the information contained on those documents. In respect of the names of Mr Kapeli’s brothers and sisters, Mr Kapeli gave evidence that he obtained that information from his adoptive mother, Pisila Taulupe. Mr Kapeli did not explain in evidence where he obtained the information concerning his father’s birth date and marital status, nor where he obtained the information concerning his mother’s marital status. It seems most likely that he also obtained that information from his adoptive mother.

106    The fourth document is a further migration form (Form 80) titled “Personal particulars for character assessment” also dated 22 June 2005. Again, the form was completed by Sarina Kapeli but signed by Mr Kapeli declaring the accuracy of the information contained in it. Relevantly, the form records that the place of birth of Mr Kapeli’s father (Sione Aloua) is Tonga and the place of birth of Mr Kapeli’s mother (Elenoa Kapeli) is Falevai, Tonga.

107    Prior to the hearing, Mr Kapeli also told Ms Wang that he did not know the names, date of birth or citizenship at birth of his parents. In an email dated 9 July 2024, Ms Wang reports on a telephone conversation she had conducted that day with Mr Kapeli. The email records:

I also asked him to provide names, DOB [date of birth] and citizenship at birth of his biological parents, however, Mr Kapeli stated that he has never met them and does not know any of those details about them.

108    Mr Kapeli did not contest that record of his conversation with Ms Wang.

109    During cross-examination, Mr Kapeli was shown the documents referred to above and it was put to Mr Kapeli that he knows his biological parents’ names and their place of birth. Mr Kapeli’s answers were evasive, seeking to draw a distinction between what the Birth Registration Particulars recorded and what he “knew”. I do not accept Mr Kapeli’s explanation for the answers he gave in cross-examination and that he gave to Ms Wang on 9 July 2024 when he stated that he did not know the names of his biological parents or their place of birth. That is for two reasons. First, Mr Kapeli admitted that he relied on the Birth Registration Particulars in completing his migration forms and that he had no reason to believe that the information in the Birth Registration Particulars was inaccurate. Second, Mr Kapeli admitted that he obtained information about his biological brothers and sisters (which included their names, dates of birth and country of residence) from his adoptive mother, Pisila Taulupe, who was also his father’s aunt. It is implausible that Mr Kapeli sought that information from Ms Taulupe but never referred to his biological parents. Further, as noted above, Mr Kapeli also obtained information concerning his father’s birth date and marital status and his mother’s marital status, the likely source of which was his adoptive mother. I find that Mr Kapeli has known the names of his biological parents and their place of birth since at least 2003.

110    I conclude that Mr Kapeli was untruthful in the answers he gave in cross-examination and that he gave to Ms Wang on 9 July 2024 when he stated that he did not know the names of his biological parents or their place of birth. I also conclude that the reason that Mr Kapeli was untruthful was because he believed that denying knowledge about his ancestry would assist his case in this proceeding.

111    The respondents also place reliance on evidence suggesting that, at and around the time that Mr Kapeli was taken into immigration detention on 26 June 2024, Mr Kapeli twice admitted that he was not biologically descended from an Aboriginal or a Torres Strait Islander person. Mr Kapeli contested that evidence. It is necessary to consider the reliability and weight of the evidence.

112    Mr Kapeli was taken into immigration detention on 26 June 2024. A document titled “Field Operation – Located Person Interview” records details of an interview conducted by an officer of Australian Border Force named Joanne with Mr Kapeli at 7.50 pm that day. The document contains pro forma questions. In a section titled “Aboriginal or Torres Strait Islander Persons”, the document contained four questions with pro form answers to be completed by the officer “yes”, “no” and “IDK” (which I infer is an abbreviation of “I don’t know”). The document recorded the following answers to the following questions:

(a)    Do you identify as an Aboriginal or a Torres Strait Islander person?

Yes - Member of the Worimi tribe based in Forster - His wife and children are Australian Aboriginal

(b)    Are you aware of any blood relatives you may have who are Aboriginal or Torres Strait Islanders persons? If yes, can you provide us with any information you know about your relatives?

Yes - His wife and children are Australian Aboriginal (member of the Worimi tribe)

(c)    Are you biologically descended from an Aboriginal or a Torres Strait Islander person? If yes, can you provide us with any information you know about your Aboriginal or Torres Strait Islander heritage?

No

(d)    Have you ever been recognised as an Aboriginal or Torres Strait Islander person by an elder or other person who holds traditional authority, or any Aboriginal corporation? If yes, can you provide evidence?

Aboriginal community in Forster. Docs provided by his lawyer

113    As can be seen, the document recorded that Mr Kapeli answered “no” to the question whether he is biologically descended from an Aboriginal or a Torres Strait Islander person.

114    In her affidavit affirmed 27 August 2024, Ms Wang deposed that, on 27 June 2024, she became Mr Kapeli’s “Status Resolution Officer”. At that point, Ms Wang had administrative responsibility for Mr Kapeli, but she was not then assigned responsibility for the lawfulness of his detention. Ms Wang further deposed that, on 27 June 2024, she conducted a “Detention Client Interview” with Mr Kapeli by telephone. During the interview, Mr Kapeli stated that he self-identifies as an Aboriginal Australian. Ms Wang asked Mr Kapeli whether any of his biological parents, grandparents, great grandparents or ancestors before them were Aboriginal or Torres Strait Islander persons, and Mr Kapeli said “no”. Ms Wang’s evidence is supported by a documentary record of the interview which contains those questions and answers. The document shows that the interview commenced at 10.24 am and was completed at 10.43 am.

115    In his affidavit dated 2 September 2024, Mr Kapeli denied that he told Ms Wang on 27 June 2024 there is no “Aboriginal ancestry in his genetic family”. Mr Kapeli deposed that he has “never known enough about my family history to be able to say anything about who my genetic ancestors are or where I come from genetically”. Mr Kapeli deposed that, at the time of the telephone interview with Ms Wang, he had just been let out of hospital with chest pains.

116    In his subsequent affidavit dated 20 September 2024, Mr Kapeli’s evidence about the 27 June 2024 interview altered to some extent. He deposed that he did not remember Ms Wang asking him questions about his Aboriginality or his ancestry on the morning of 27 June 2024. That was because he had been in hospital overnight as a result of chest pains and, at the time of the telephone interview, he was “still feeling the effects of morphine and was feeling muddled from the medical episode, the medication and the lack of sleep”. In that affidavit, Mr Kapeli also gave evidence about the interview on 26 June 2024. He deposed that he was released on bail that day and taken to the Villawood Immigration Detention Centre, where he had a conversation with people from the Australian Border Force. He deposed that, while he was speaking to the people from the Australian Border Force, he started to experience chest pains and, about 10 minutes later, an ambulance was called. Mr Kapeli deposed that the ambulance took him to Liverpool Hospital that night and he remained in hospital overnight. Mr Kapeli annexed to his affidavit an “Ambulance Electronic Medical Record” which records that the New South Wales Ambulance service received a call at 8.36 pm, an ambulance was dispatched at 8.41 pm and arrived at the Villawood Detention Centre at 9.00 pm and the ambulance arrived at Liverpool Hospital at 10.13 pm.

117    I find that, when Mr Kapeli was asked on 26 and 27 June 2024 whether he was biologically descended from an Aboriginal or a Torres Strait Islander person, he answered “no”. However, I accept that at the time he gave those answers he may have been feeling unwell, which raises a question about the reliability of the answers he gave. For that reason, I do not rely on the answers he gave. Mr Kapeli’s reliability as a witness, though, was further undermined by answers he gave in cross-examination about the interviews conducted on 26 and 27 June 2024. In particular, Mr Kapeli was asked in cross-examination whether he knew why he was asked if he was descended from Aboriginal people, and he answered that he did not. I find that answer to be untruthful. Mr Kapeli has claimed to be an Aboriginal person for immigration purposes since at least 2022, being the previous occasion on which Mr Kapeli’s visa was cancelled and he was taken into immigration detention. Mr Kapeli affirmed an affidavit at that time (which was annexed to his 24 August 2024 affidavit) in which he claimed to be an Aboriginal man, whilst stating: “I don’t know if I have any biological links to Aboriginal people”. The affidavit was prepared with the assistance of lawyers. It is apparent that Mr Kapeli understands that being biologically descended from Aboriginal people may be relevant to his claim to be an Aboriginal person for immigration purposes.

118    One further aspect of Mr Kapeli’s evidence requires comment. Throughout his written and oral evidence, Mr Kapeli repeatedly stated that he does not know much about his genetic ancestry and that it is too emotionally painful to ask his adoptive mother (his great aunt on his father’s side) about his family history. I do not accept that evidence. Rather, I find that Mr Kapeli knows some information about his family history, as referred to above, and that Mr Kapeli has otherwise deliberately chosen not to make further enquiries about his family history because he believes that further information will not assist him in his claim to be an Aboriginal Australian for immigration purposes. The reasons for making those findings are as follows.

119    First, Mr Kapeli was raised in Tonga by his great aunt on his father’s side, Pisila Taulupe, and her husband, Tangaki Taulupe. Mr Taulupe died when Mr Kapeli was 7 years old, but Pisila Taulupe is alive and lives in Tonga. It follows that Mr Kapeli was raised within his biological family on his father’s side. In his statement dated 13 April 2022 (made while Mr Kapeli was in immigration detention by reason of the prior cancellation decision), Mr Kapeli stated that he came to Australia on 14 May 2003 when he was 19 years old in order to support his adoptive mother (Pisila Taulupe) financially. Mr Kapeli further stated that he continues to support his adoptive mother. I find that Mr Kapeli continues to have a close relationship with Pisila Taulupe.

120    Second, when Mr Kapeli needed to obtain information about his family history and relations for the purposes of applying for a partner visa to remain in Australia in 2005, he obtained that information from relevant records of the Tongan government and from Pisila Taulupe. That included information about his birth parents, their place of birth and, in the case of his father, his date of birth and their marital status, as well as the names and dates of birth of his brothers and sisters on his father’s side.

121    Third, Mr Kapeli returned to Tonga in around Christmas 2022 with his wife and children to see Pisila Taulupe. That trip followed his release from immigration detention on 10 August 2022 (on which date the Minister decided to revoke the prior cancellation decision). Whilst in immigration detention, Mr Kapeli made representations to the Department that he was an Aboriginal Australian. In his affidavit dated 2 August 2022, Mr Kapeli deposed that he did not know if he had any biological links to Aboriginal people. I find that, at the time that he returned to Tonga in 2022, Mr Kapeli was aware that information concerning his biological ancestry may be relevant to his claim to be an Aboriginal Australian for immigration purposes. I find that Mr Kapeli had the opportunity to make further enquiries about his biological ancestry from his adoptive mother both at that time and since that time.

122    Fourth, for the reasons given earlier, I consider that Mr Kapeli was untruthful when he gave evidence that he did not know the names and place of birth of his biological parents.

123    All of the above matters combined persuades me that Mr Kapeli’s evidence that it is too emotionally painful to ask Pisila Taulupe or other family members about his family history is a contrivance. I find that Mr Kapeli could readily obtain further information concerning his family history through, at the least, Pisila Taulupe, but he has chosen not to make enquiries.

124    Overall, I do not consider Mr Kapeli to be a reliable witness. I find that, in certain aspects of his evidence, Mr Kapeli was untruthful and, in certain other aspects, he was evasive. I therefore treat his evidence with caution. I accept, though, the following answers he gave in cross-examination as they are contrary to his interests in the proceeding:

(a)    Mr Kapeli is not aware of anyone in his biological family being born in Australia;

(b)    no-one in Mr Kapeli’s biological family has ever told him that they are descended from Aboriginal people; and

(c)    Mr Kapeli does not have a genetic connection with the Worimi tribe.

Sarina Kapeli

125    There was no challenge to Sarina Kapeli’s credibility. I consider that Sarina Kapeli was a truthful witness. I generally accept her evidence. However, as with all other witnesses who gave affidavit evidence in support of Mr Kapeli’s application, aspects of Sarina Kapeli’s evidence was stated at a high level of generality which undermined the weight that can be given to the evidence. I will return to that topic later in these reasons.

Angela Wang

126    There was no challenge to Ms Wang’s credibility. I consider that Ms Wang was a truthful witness and I accept her evidence in full.

Birth Registration Particulars

127    As noted above, one of the documents in evidence was the Birth Registration Particulars. The document is written in the Tongan language, but has an English translation, and is certified by the Registrar of Births, Deaths and Marriages, Tonga, and is dated 29 June 2004. The document formed part of Mr Kapeli’s migration file and was tendered through Mr Montgomery’s affidavit without objection. It is apparent from the documentary record and from Mr Kapeli’s cross-examination that the document was submitted by Mr Kapeli to the Department in connection with his application for a partner visa in mid-2005, and Mr Kapeli relied on the document when completing the relevant migration forms.

128    Despite the foregoing, Mr Kapeli submitted that the Court could not rely on the document as proof of the facts asserted in it because any such reliance depended upon making a “presumption of regularity” about the document and “[t]here is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned” (quoting McHugh at [53] (Allsop CJ) and also referring to the reasons of Mortimer J in that decision at [333]).

129    I reject that submission. The Court is not required to make a presumption of regularity in order to rely on the Birth Registration Particulars as proving the facts stated in the document. The Court need only act in accordance with the ordinary rules of evidence as prescribed by the Evidence Act.

130    As explained by the author of Cross on Evidence ([1175]), the presumption of regularity is also referred to by its Latin maxim omnia praesumuntur rite esse acta which means all acts are presumed to have been done rightly and regularly. The presumption may apply in a wide range of circumstances, but is frequently concerned with a presumption of due appointment of a public official and capacity to act and the due performance of preconditions to the exercise of power.

131    By tendering a copy of the Birth Registration Particulars, the respondents are not seeking to prove the due appointment of a public official or the due performance of preconditions to the exercise of power. They are seeking to prove the content of the Birth Register for the District of Tongatapu which is a public document within the meaning of the Evidence Act (being a document that “forms part of the records of the government of a foreign country”). Section 156(1) of the Evidence Act facilitates proof of such documents and relevantly provides as follows:

(1)     A document that purports to be a copy of, or an extract from or summary of, a public document and to have been:

(a)     sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

(b)     certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document;

is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

132    In its Evidence (Interim) report (ALRC Report 26), the Australian Law Reform Commission explained (at Vol 1 para 993) that there is a “mass of legislation providing special and less stringent methods for authenticating public and other documents”, but that it is necessary “to include a number of provisions to ensure the availability of methods of proof available in many jurisdictions”. Section 156(1) is such a provision.

133    The copy of the Birth Registration Particulars is a document that purports to be an extract from or summary of a public document, being the Birth Register for the District of Tongatapu, and to have been certified as such an extract or summary by a person who might reasonably be supposed to have custody of the public document, being the Registrar of Births, Deaths and Marriages in Tonga. It follows that, under s 156(1), the copy of the Birth Registration Particulars is presumed, unless the contrary is proved, to be an extract from or summary of the Birth Register.

134    It is apparent that the copy of the Birth Registration Particulars tendered in evidence is not the original of that document but is a photocopy. Section 48(1)(b) of the Evidence Act permits a party to adduce evidence of a document by tendering a photocopy. No objection was taken to the tender of the copy and, accordingly, no issue concerning the authenticity of the copy arises. That is no doubt because the document originated from Mr Kapeli and was relied on by Mr Kapeli in support of his application for a partner visa in mid-2005.

135    The copy of the Birth Registration Particulars therefore proves the facts stated in that document, being the particulars of Mr Kapeli’s birth and his biological parents, as set out above.

136    Mr Kapeli argued that there is reason to doubt the veracity of the Birth Registration Particulars by reason of an inconsistency in the documentary record concerning the year of Mr Kapeli’s birth. As noted above, the Birth Registration Particulars states that Mr Kapeli was born in 1982. However, Mr Kapeli’s marriage certificate gives his birth year as 1983. Mr Kapeli’s immigration documents also give his birth year as 1983. I asked Mr Kapeli about the discrepancy during cross-examination. Mr Kapeli answered:

I have the birth certificate. I have the same thing at home, and it’s 83.

137    The respondent did not call for production of that document, or press Mr Kapeli further about the issue. Despite that, I consider that the answer is difficult to accept having regard to the following matters:

(a)    The Birth Registration Particulars states that it is a true copy of the particulars contained in the Birth register for the District of Tongatapu for the year 1982. Further, the Particulars indicate that Mr Kapeli’s birth is recorded in the Register with the number “1011/1982 Vol 2”, which further indicates that the particulars are taken from the records in the Register for the year 1982.

(b)    During cross-examination, Mr Kapeli repeatedly stated that he relied on the Birth Registration Particulars to complete his migration documents because the Birth Registration Particulars came from the Tongan government. In giving those answers, Mr Kapeli made no reference to possessing a different birth certificate.

(c)    Mr Kapeli submitted the Birth Registration Particulars with his migration papers and did not submit another birth certificate.

138    Another explanation for the discrepancy may be found in the fact that Mr Kapeli’s marriage was recorded in the New South Wales Registry of Births, Deaths and Marriages in 2003 (having the registration number 29921/2003). That registration pre-dates the Birth Registration Particulars which is dated 29 June 2004. Accordingly, at the time of registering his marriage, Mr Kapeli recorded his year of birth as 1983. That may have been done in error, or may have been done on the basis of some other document that, likely erroneously, recorded Mr Kapeli’s birth year as 1983. It appears that, when Mr Kapeli completed his migration forms in mid-2005, he maintained his year of birth as 1983 notwithstanding that the Birth Registration Particulars shows 1982.

139    Determining Mr Kapeli’s birth year is not relevant to any issue in the proceeding and it is unnecessary to reach a concluded view about that fact. However, I reject Mr Kapeli’s submission that the inconsistency between the documents with respect to his birth year is a reason to doubt the veracity of the Birth Registration Particulars and the information contained in that document. I consider the more likely explanation of the inconsistency is that an error was made in recording Mr Kapeli’s birth year in his marriage certificate or in some prior document possessed by Mr Kapeli (and which was relied on by him when registering his marriage) but which was not tendered by him in evidence.

E.    Factual findings

Relevant factual issues in dispute

140    It is not in dispute in this proceeding that Mr Kapeli is not an Australian citizen and does not hold a visa and is therefore an unlawful non-citizen within the meaning of the Migration Act. The issue in dispute is whether Mr Kapeli is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian.

141    The relevant factual issues in dispute are largely defined by the evidence given by Ms Wang in support of her decision to detain Mr Kapeli under s 189 of the Migration Act. In her second affidavit affirmed 13 September 2024, Ms Wang deposed that, having read the affidavits filed in the proceeding and the legal advice received from the AGS:

(a)    she is not satisfied that Mr Kapeli meets the first limb of the tripartite test for membership of an Aboriginal group of people stated by Brennan J in Mabo (No 2), requiring biological descent from an Aboriginal member of the group, and so is not an Aboriginal Australian within the meaning of the High Court’s decision in Love/Thoms;

(b)    she is satisfied that Mr Kapeli meets the second limb of the tripartite test in that Mr Kapeli identifies as a member of the Worimi tribe in the Forster region of New South Wales; and

(c)    although a court may find, on the balance of probabilities, that Mr Kapeli does not meet the third limb of the tripartite test, being recognition of Mr Kapeli’s membership of the Worimi tribe by the elders or other persons enjoying traditional authority among those people, Ms Wang considers that it is not open to her to reasonably suspect that Mr Kapeli does not meet the third limb.

142    Thus, Ms Wang’s decision to detain Mr Kapeli under s 189(1) of the Migration Act is dependent on her belief that Mr Kapeli does not satisfy the first limb of the tripartite test. The respondents acknowledged that, if Ms Wang’s belief that Mr Kapeli does not satisfy the first limb of the tripartite test is not objectively reasonable, the detention of Mr Kapeli would be unlawful. In other words, the respondents did not seek to support the lawfulness of Mr Kapeli’s detention on the basis that Ms Wang reasonably suspects that Mr Kapeli does not meet the second or third limbs of the tripartite test. For that reason, the factual findings set out below commence with Mr Kapeli’s ancestry.

143    Mr Kapeli contends that the first limb of the tripartite test is not confined to biological ancestry and can include descent through adoption under traditional or customary laws of an Aboriginal society. That contention requires consideration of other aspects of the evidence adduced by Mr Kapeli concerning his relationship with Worimi people in the Forster region of New South Wales. It should be noted that, at different points in the hearing, Mr Kapeli placed reliance on his claimed adoption by Michelle Donnelly and on his claimed initiation into the Worimi tribe. Mr Kapeli did not clearly explain how his claimed initiation was relevant to the first limb of the tripartite test.

144    On the basis of the evidence adduced in the proceeding, I make the following factual findings.

Mr Kapeli’s ancestry

145    Mr Kapeli was born in Tonga in 1982 and is a citizen of Tonga. Mr Kapeli’s biological parents were both born in Tonga and, as at mid-2005, resided in Tonga. All of Mr Kapeli’s brothers and sisters reside in Tonga.

146    Mr Kapeli’s adoptive mother, Pisila Taulupe, is his great aunt on his father’s side. Mr Kapeli was raised in Tonga. He came to Australia in 2003 in order to earn money to support his adoptive mother financially.

147    Mr Kapeli has never claimed to be biologically descended from Aboriginal people. The highest to which Mr Kapeli’s evidence rises is that he “does not know” whether he has any biological links to Aboriginal people. Mr Kapeli admitted in evidence that: he is not aware of anyone in his biological family being born in Australia; no-one in Mr Kapeli’s biological family has ever told him that they are descended from Aboriginal people; and Mr Kapeli does not have a genetic connection with the Worimi tribe.

148    There is no reason on the evidence to suspect that Mr Kapeli has any Aboriginal ancestors. I find that Ms Wang’s suspicion that Mr Kapeli is not of Aboriginal descent is objectively reasonable. Indeed, on the basis of the evidence concerning Mr Kapeli’s immediate family in Tonga, I find on the balance of probabilities that Mr Kapeli is of Tongan descent and is not biologically descended from an Aboriginal person. Further, Mr Kapeli has admitted that he does not have a genetic connection with the Worimi people.

Mr Kapeli’s arrival in Australia and life in Sydney

149    Mr Kapeli moved to Australia in 2003, arriving on 14 May 2003 as the holder of a special purpose visa.

150    Mr Kapeli lived in Sydney between 2003 and about 2007 or 2008. Mr Kapeli married Sarina Kapeli (nee Lever) in Sydney on 6 December 2003. As noted earlier, Sarina Kapeli describes herself as an Aboriginal woman from the Kuku Yalanji tribe which is from Far-North Queensland. Sarina Kapeli deposed that they have three children, although Mr Kapeli deposed that they have two children together, John Tuifio Srdjan Kapeli and Pisila Lupe Veronica Rose Maree Kapeli, and Mr Kapeli is a stepfather to Sarina Kapeli’s older son Judah Paul-Tui ‘Olo’ Tele Fifita.

151    Mr Kapeli and Sarina Kapeli moved to Forster in about 2007 or 2008. Sarina Kapeli’s birth mother died when she was nine years old, and she spent most of her childhood in foster care in Sydney with a woman named Noelene who was a Bundjalung woman. Noelene’s father (who was from Vanuatu) had other children with a Worimi woman who lived in Forster, and Noelene therefore had stepsiblings who lived in Forster and were Worimi (through their mother). In around 2007, Noelene moved to Forster and, about a year later, Mr Kapeli and Sarina Kapeli moved to Forster to be closer to Noelene.

Mr Kapeli’s connection with the Worimi community in the Forster region

152    The evidence establishes that Mr Kapeli has a close connection with the Worimi community in the Forster region, and particularly with the Donnelly family.

153    When Mr Kapeli first arrived in Australia in 2003, he made a friend, Desmond Donnelly, through playing football at a local club. As noted earlier, Mr Donnelly describes himself as an Aboriginal man of the Worimi tribe from the Forster-Tuncurry region. Mr Kapeli deposed that Mr Donnelly became a brother to him and, through Mr Donnelly and Mr Donnelly’s mother (Michelle Donnelly), brothers and sisters, Mr Kapeli’s connection with Aboriginal culture expanded.

154    Mr Kapeli engaged in youth development in Forster because his wife is actively involved in the Worimi community. Mr Kapeli described the different programs he has been involved in with Aboriginal youth in the Forster region between 2009 and 2019 including physical and sporting activities such as diving, fishing, football and gym. In 2009, Mr Kapeli and Mr Donnelly established a youth group in the Worimi community called the “young boys”. The youth group ran social and sporting activities. Mr Kapeli stated that he is a father figure to many children in the Worimi community and that many children call him “Dad” or “Uncle”.

155    Sarina Kapeli described the range of activities she organises for the Worimi community in Forster. Sarina Kapeli deposed that Mr Kapeli is supportive and involved with everything she does in the community.

156    Michelle Donnelly deposed that she has known Mr Kapeli since around 2003, after he first arrived in Australia. Michelle Donnelly described their relationship as very close, and stated that Mr Kapeli refers to her as his “mum”, and refers to her sons, Perry and Desmond Donnelly, as his brothers. Michelle Donnelly stated that Mr Kapeli has been accepted as an Aboriginal member of her family and that he has been culturally adopted into the Worimi tribe and onto Worimi country. Michelle Donnelly stated that:

Samiuela has been a part of our Worimi community for over 13 years and is accepted as part of our family here.

157    Michelle Donnelly further deposed that:

Becoming part of the Worimi Tribe is about how he blended in, how he became accepted and gave so much to everyone here, straight away.

158    Desmond Donnelly deposed that his mother, Michelle Donnelly, has accepted Mr Kapeli into her family and into the Worimi tribe, and Mr Donnelly has accepted Mr Kapeli in the same way. Mr Donnelly considers Mr Kapeli to be like a brother to him. Mr Donnelly also considers that Mr Kapeli has an important role in the Worimi community and has attended trips with other Worimi men and boys which involved camping, fishing, cooking and secret men’s business (which Mr Donnelly said he could not disclose).

159    Each of Percy Simon and Desmond Simon deposed that they have has known Mr Kapeli for many years and that Mr Kapeli is heavily involved in, and accepted as an important part of, the Worimi community in Forster. Each deposed that Mr Kapeli takes part in Worimi community events and activities, and that Mr Kapeli has played an important role with Aboriginal youth in the community.

Mr Kapeli’s claimed initiation/adoption into the Worimi tribe

160    Mr Kapeli claims to have been initiated into the Worimi tribe and to be an adopted son to Michelle Donnelly. Mr Kapeli’s evidence in that regard was not challenged or contradicted by the respondents. Nevertheless, I consider that the evidence has significant limitations which affects its weight.

161    First, with respect to Mr Kapeli’s claimed adoption, there is no evidence about the adoption beyond Michelle Donnelly’s assertion that Mr Kapeli has been “culturally adopted”. In particular, there is no evidence concerning Worimi traditional law or custom with respect to adoption, and no evidence that any such law or custom was applicable to Mr Kapeli’s adoption by Michaelle Donnelly. Rather, Michelle Donnelly’s evidence is to the effect that Mr Kapeli has been welcomed into her home and has been accepted as part of her family, and that Mr Kapeli has been accepted by the Worimi community in Forster by reason of the contribution that he has made to that community.

162    Second, with respect to Mr Kapeli’s claimed initiation, there is little if any evidence concerning Worimi traditional law or custom with respect to initiation. Further, and perhaps more significantly, the evidence concerning Mr Kapeli’s initiation has material inconsistencies. It is convenient to commence by reproducing Mr Kapeli’s evidence from his affidavit dated 2 September 2024 (the sections in parenthesis are subject to a ruling under s 136 of the Evidence Act that the use of the evidence is limited to evidence of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act):

13.     After I first came to Australia, I would go out with a lot of the Aboriginal people in the Forster community and spend time on country. We would sometimes go fishing, other times we would just sit by the fire and have a yarn. We would talk about men’s business when we were out doing this.

14.     Some of the time, Greg Ridgeway would be there. He was respected as a mentor and an Elder of the Worimi people. He would speak about the ancestors of the Worimi people, the Dreamtime, and the obligations that we had to the next generation and our community to lift them up.

15.     When Greg was having these talks with us, he would paint the faces of the people gathered. I wasn’t allowed to have this happen, and I would tell him even though I wanted to be included in this, I knew that wasn’t permitted. I felt lucky to even be able to see those things being done.

16.     One day, when Greg was around and had already finished painting some people’s faces and talking, he asked if I would like to have it done as well. I reminded him that it wasn’t allowed, and he said something like “You know what? I’ll initiate you”. Others had left, and it was just the two of us by then.

17.     Greg did a smoking ceremony, sat down with me, drew on my face with clay, and welcomed me to his ancestors. I felt honoured. It was a different feeling for me that night. Because I have never really known where I came from, this felt like a new beginning for me, like the first time I had somewhere I belonged and could be proud to call myself a part of. Since then, I consider myself a proud Worimi man [and other Worimi people treat me like that too].

18.     For the Worimi people, initiation isn’t just a one-off thing. It can happen multiple times over the course of your life. I don’t have permission to say more about this.

19.     I am accepted into the Worimi Tribe by Michelle Donnelly, who is also a respected Elder with traditional authority to make such decisions. She considers me her adopted son, and talks about me as part of the family, and part of the Worimi people.

20.     [Other Elders with traditional authority, including Desmond Simon and Percy Simon accept me into the Worimi people and community.]

163    Mr Kapeli also gave sworn evidence in 2022 about his claimed initiation. Those accounts are not consistent with the above account given in 2024. In his statement dated 13 April 2022, Mr Kapeli stated that:

15.    It was around the year 2008 I was initiated and accepted by my Worimi Tribe. A small ceremony was held by the Worimi tribal elders. The Worimi elders lit a fire during that night where we all sat around talking to our ancestors and the land, asking for guidance and acceptance for myself as well as ancestral blessings.

164    It can be seen that in his 13 April 2022 account Mr Kapeli stated that a number of (unidentified) Worimi elders were present, whereas in the more recent account in 2024 Mr Kapeli stated that only Greg Ridgeway was present. The discrepancy was not explained.

165    Mr Kapeli annexed his 13 April 2022 statement to his sworn affidavit dated 2 August 2022 and deposed that the contents of the statement were true and correct. In his affidavit dated 2 August 2022, Mr Kapeli deposed as follows:

6.     In around the year 2008, I was initiated and accepted by my Worimi Tribe during a ceremony on Worimi country. The ceremony was held by the Worimi Elders, who are people with traditional authority in our Tribe. The Elders lit a fire during that night and we all sat around talking to our ancestors and the land, asking for guidance and acceptance for myself as well as ancestral blessings. There were approximately five Elders present for my initiation, including Uncle Greg Richway, who led the initiation. Uncle Greg has dementia now and is also quite physically unwell.

7.     I was taught secret men’s business as part of this initiation. This is knowledge that has been handed down from generation to generation from before European people came to Australia. During this ceremony I was inducted into the songlines of the Worimi. This means that my ancestors are the same ancestors as for anyone else from my Worimi Tribe and I have become part of the ongoing ancestral lineage of the Worimi people. I would need permission from my Elders to provide any further details about what happened during my initiation because it is secret men’s business and cannot be shared with outsiders.

166    In the written evidence, Mr Ridgeway’s name has also been spelt as “Richway” (in circumstances where it is clear that the same individual is being referred to). In these reasons, I will adopt the spelling “Ridgeway”.

167    In the above account, Mr Kapeli stated that five elders were present during his initiation, one of whom was Greg Ridgeway. Again, the statement is inconsistent with the 2024 account in which Mr Kapeli stated that only Mr Ridgeway and he were present. The discrepancy was not explained. Mr Kapeli deposed that Mr Ridgeway has dementia. That is corroborated by Michelle Donnelly and Desmond Simon and may explain why no evidence was adduced from Mr Ridgeway with respect to Mr Kapeli’s initiation. However, Mr Kapeli did not identify the other elders whom he deposed were present during his initiation, and no other senior member of the Worimi people gave evidence that they were present.

168    Percy Simon is 76 years old, has lived in Forster for the past 20 years and describes himself as a Worimi elder. Significantly, Percy Simon does not give evidence that he was present during Mr Kapeli’s initiation; indeed, he makes no reference to any knowledge of an initiation ceremony. Rather, Percy Simon gives evidence that Mr Kapeli is Worimi because he has been recognised as Worimi by Michelle Donnelly, deposing that:

I know that Michelle [Donnelly] recognises Samiuela Kapeli as Worimi, and she has the authority to do this.

169    Desmond Simon is 70 years old, has lived in Forster most of his life and describes himself as a Worimi elder (a role he took up from about 2013). In his statement dated 29 July 2022, Desmond Simon stated that he accepts Mr Kapeli as part of the Worimi community and that other elders who accept Mr Kapeli include Percy Simon, Greg Ridgeway and Michelle Donnelly. Desmond Simon gave two accounts of the process by which Mr Kapeli became “an accepted member of the Worimi Tribe”. Both accounts were hearsay and the evidence was received subject to a ruling under s 136 of the Evidence Act that the use of the evidence is limited to evidence of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act. The first account was that Mr Kapeli’s acceptance was through a cultural process involving elders (who are not identified by Desmond Simon) taking Mr Kapeli out bush and doing traditional ceremonies including secret men’s business. Desmond Simon acknowledged that he was not present during those activities. The second account was that Mr Kapeli was initiated during a small ceremony at which Mr Ridgeway was present. Again, Desmond Simon acknowledged that he was not present at the ceremony and does not know anything about it.

170    Each of Michelle Donnelly, Desmond Donnelly and Sarina Kapeli also gave hearsay evidence of their belief that Mr Kapeli underwent an initiation ceremony with Mr Ridgeway, but none were able to give direct evidence of the ceremony. Their evidence in that respect was also admitted subject to the use ruling made under s 136 of the Evidence Act.

171    All of the witnesses corroborate the fact that each of Percy Simon, Desmond Simon and Michelle Donnelly are regarded as elders within the Worimi community in the Forster region, and I accept that evidence. I also accept that each of Percy Simon, Desmond Simon and Michelle Donnelly regard Mr Kapeli as a member of the Worimi community, and that Michelle Donnelly regards him as a son. I accept that the personal bonds between Mr Kapeli and the Worimi community in the Forster region are close.

172    However, I place limited weight on Mr Kapeli’s evidence that he has been initiated into the Worimi community. That is for the following reasons.

173    First, Mr Kapeli’s evidence with respect to his initiation is inconsistent in material respects. His 2024 account differs significantly to his 2022 accounts.

174    Second, Mr Kapeli’s evidence with respect to his initiation is given at a high level of generality. Mr Kapeli deposed that he would need permission from his elders to provide any further details about what happened during his initiation because it is secret men’s business and cannot be shared with outsiders. The Court accepts the possibility that information concerning the traditional laws and customs of an Aboriginal society may be secret and sacred and, for that reason, is not to be shared publicly. The Court also accepts that individuals may not have the requisite authority to disclose such information in a legal proceeding without permission from elders. While the Court takes those concerns into account, it remains for a party to adduce sufficient evidence in proof of the case they seek to make before the Court. The Court is able to make a range of orders to protect the confidentiality of evidence to enable witnesses to give evidence about matters that, by traditional law and custom of an Aboriginal society, are required to be kept secret. The Court understands that, despite the availability of such orders, witnesses may still be reluctant to disclose certain matters in a Court proceeding. Nevertheless, if matters are not disclosed to the Court in evidence, the Court cannot take them into account in making a determination. The Court cannot be persuaded that a witness has knowledge of a matter of traditional law or custom if the witness declines to give evidence about the matter, even if the witness states that the matter is culturally sensitive. When such impediments arise, it is incumbent upon the lawyers who called the witness to apply for suitable orders that would enable the evidence to be given in a manner that protects the secrecy of the information and takes account of any cultural concerns.

175    Third, no evidence has been adduced in the proceeding concerning the Worimi people, or the traditional laws and customs of the Worimi people, or whether the Worimi continue to acknowledge and observe traditional laws and customs. Accordingly, there is no evidence from which the Court could make any assessment that the claimed initiation ceremony reflected the traditional laws or customs of the Worimi people. Further, whilst I accept that each of Percy Simon, Desmond Simon and Michelle Donnelly are regarded as elders within the Worimi community in the Forster region, none of those persons gave evidence with respect to the processes by which decisions are made by elders on behalf of the Worimi community, particularly whether decisions are required to be made collectively (and who must participate) and whether decisions are able to be made by individual elders.

176    In summary, the evidence satisfies me that Worimi elders from the Forster region have accepted Mr Kapeli as a member of the Worimi community, and Michelle Donnelly regards Mr Kapeli as a son. To the extent that it is relevant, I am not satisfied that Mr Kapeli’s acceptance as a member of the Worimi community occurred under laws or customs of the Worimi people that are traditional, or that Mr Kapeli was adopted by Michelle Donnelly under laws or customs of the Worimi people that are traditional.

Other forms of recognition of Mr Kapeli as an Aboriginal person

177    In support of his claim to be an Aboriginal person, Mr Kapeli adduced evidence about his recognition as such by the Tobwabba Aboriginal Health Service in Forster and by Medicare. The evidence does not assist.

178    Mr Kapeli tendered a letter from the Tobwabba Aboriginal Health Service dated 2 September 2024 which relevantly stated:

I am writing to confirm that Samiuela Kapeli has been a patient of Tobwabba Aboriginal Corporation Medical Service since the 3rd of April, 2017. Mr Kapeli is a patient based on his kinship ties through his wife and their two children.

Please note that our medical service has strict patient eligibility guidelines, as our services are predominantly available only to Aboriginal community members and their direct families.

179    The letter makes clear that Mr Kapeli’s entitlement to be a patient of the Tobwabba Aboriginal Corporation Medical Service derives from his wife, who is an Aboriginal woman, and their children (who are Aboriginal by reason of descent from their mother).

180    Mr Kapeli also tendered a screenshot of his Medicare portal which records “Aboriginal” under the heading “Descent”.

181    Ms Baras-Miller, an AGS lawyer, tendered a copy of documents obtained from the Services Australia website which show that, when a person enrols in Medicare, the person may choose to identify as an Indigenous Australian by completing a “Medicare Voluntary Indigenous Identifier form”. The Medicare enrolment form states:

Aboriginal and Torres Strait Islander Australian

The Aboriginal and Torres Strait Islander question is voluntary and will not affect your application. If you do answer, the information will help us to continue to improve services to Aboriginal and Torres Strait Islander Australians.

182    Ms Baras-Miller also tendered correspondence with Medicare about the information recorded in the “Descent” field of a person’s Medicare registration. Phillip Cuttriss, the Director of Medicare Consumers, provided the following information by way of email dated 6 September 2024:

Medicare does not assess our customers for aboriginality.

Information under the "Descent" field is always provided by the customer (or in the case of minors at the time of enrolment, the responsible adult completing their enrolment form).

Because of the self-identification approach to the information in the descent field, no supporting evidence is held by Medicare that could substantiate a material claim of aboriginality by the customer.

183    Whilst the above email was hearsay, it was admitted under s 60 of the Evidence Act as relevant to proof of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act. The evidence was admitted subject to a ruling under s 136 of the Evidence Act that the use of the evidence be limited to proof of that fact.

184    Having regard to the above matters, I conclude that it was reasonable for Ms Wang to give no weight to the letter from the Tobwabba Aboriginal Health Service in Forster or the screenshot of Mr Kapeli’s Medicare portal.

Ms Wang’s decision to detain Mr Kapeli

185    As stated earlier, Ms Wang is an employee of the Department and is currently employed as a SRO within the Department’s Status Resolution and Visa Cancellation Division. On 27 June 2024, Ms Wang became the SRO with responsibility for Mr Kapeli and, on 15 July 2024, became the detaining officer for Mr Kapeli.

186    In her first affidavit affirmed 27 August 2024, Ms Wang adduced the records held by the Department concerning Mr Kapeli. Ms Wang deposed that, when she became the detaining officer for Mr Kapeli on 15 July 2024, she formed her own opinion whether Mr Kapeli’s detention was lawful based on her review of the Departmental files. Those records included legal advice given by the AGS in 2022 when Mr Kapeli was detained following the prior cancellation decision. In advices dated 28 June 2022 and 10 August 2022, the AGS expressed the opinion that for a person to meet the tripartite test endorsed by the majority in Love/Thoms, it is necessary that the person is biologically descended from Aboriginal or Torres Strait Islander people. In both opinions, the AGS stated that, on the basis of the material that was before the Department, the AGS considered that Mr Kapeli did not meet either the first or third limbs of the tripartite test. Ms Wang deposed that:

I was satisfied the applicant was not an Australian citizen and his visa had been cancelled. I considered that the applicant did not satisfy the first limb of the tripartite test in Love and Thoms, because the applicant had told me that he was not biologically descended from any Aboriginal Australian during the DCI [the Detention Client Interview that occurred on the morning of 27 June 2024], and because I had not seen anything in reviewing the Departmental Records which made me think that he might be biologically descended from an Aboriginal Australian.

187    Ms Wang deposed that she conducted further “case reviews” of Mr Kapeli’s detention on 26 July 2024 and on 7 August 2024 (following the filing by Mr Kapeli of a proceeding in this Court on 19 July 2024). Ms Wang also received a copy of further legal advice from the AGS dated 19 August 2024 with respect to the application of the decision in Love/Thoms to Mr Kapeli. In the advice, the AGS maintained its earlier opinion that for a person to meet the tripartite test endorsed by the majority in Love/Thoms, it is necessary that the person be biologically descended from Aboriginal or Torres Strait Islander people. The AGS expressed the opinion, based on the documentary evidence available to it (which was extensive and included all of the information provided by Mr Kapeli), that a detaining officer could reasonably suspect that Mr Kapeli was not an Aboriginal Australian because he was not biologically descended from an Aboriginal forebear. Ms Wang deposed as follows:

My current view on the applicant’s detention

32.     The applicant is presently located at Villawood Immigration Detention Centre. I remain the SRO assigned to the applicant’s case and the applicant’s detaining officer.

33.     Since I became the applicant’s detaining officer I have been satisfied that he is not an Australian citizen, does not hold a visa, and is therefore an unlawful non-citizen. I remain satisfied the applicant does not satisfy the first limb of the tripartite test, and so is not an Australian Aboriginal within the meaning of High Court’s decision in Love and Thoms.

34.     Accordingly, for the purposes of s 189(1) of the Migration Act, I reasonably suspect that the applicant is an unlawful non-citizen who is not an Aboriginal Australian.

Removal of the applicant from Australia

35.     The applicant is not presently on a removal pathway. He will not be on a removal pathway until his request for the revocation of the second cancellation decision is determined.

188    In her second affidavit affirmed 13 September 2024, Ms Wang deposed that she had been provided with all of the affidavits filed on behalf of Mr Kapeli in this proceeding and that she read those affidavits. Ms Wang further deposed that she had received an updated advice dated 12 September 2024 from the AGS with respect to the application of the decision in Love/Thoms to Mr Kapeli and the affidavit of Ms Baras-Miller and that she read those documents. The further AGS advice dated 12 September 2024 took into account the additional material that had been filed by Mr Kapeli in the proceeding and the affidavit of Ms Baras-Miller. In the advice, the AGS maintained the same opinions it had earlier expressed, observing that the further material filed by Mr Kapeli does not assert, much less demonstrate, that Mr Kapeli is of Aboriginal biological descent for the purposes of the first limb of the tripartite test. Ms Wang deposed as follows (clarification in parentheses added):

7.     Having read the affidavits and the September 2024 AGS advice:

7.1.     I am not satisfied that the applicant meets the first limb of the tripartite test. The September 2024 AGS advice states that, on the current state of the law, the first limb of the tripartite test requires biological descent. The affidavits do not contain any evidence that the applicant is biologically descended from an Aboriginal Australian. I understand that the applicant has put forward evidence in the affidavits about his initiation by the Worimi people. But my understanding based on the September 2024 AGS advice is that a person cannot satisfy the first limb of the tripartite test by having been initiated or adopted by an Aboriginal or Torres Strait Islander group. I am satisfied that Medicare does not hold any information about the applicant’s biological descent and I am not aware of any other enquiries which might help me form a view about the first limb.

7.2.     I remain satisfied that the applicant meets the second limb of the tripartite test. He has consistently identified as an Aboriginal Australian.

7.3.     I understand from the September 2024 AGS advice that a court might find, on the balance of probabilities, that the applicant does not meet the third limb of the tripartite test. But the AGS advice also states that it is not open to a detaining officer to reasonably suspect that the applicant does not meet the third limb of the tripartite test. Based on that advice, I consider it is not open to me to suspect that the applicant does not meet the third limb.

8.     Accordingly, because I am satisfied that the applicant does not meet the first limb of the tripartite test, I suspect that the applicant is an unlawful non-citizen who is not an Aboriginal Australian for the purposes of s 189(1) of the Act.

9.     On 13 September 2024, I conducted a further case review for the applicant and formed the view that the applicant’s detention was still lawful and appropriate under s 189(1) of the Act. I recorded my reasons in the case review and in a further MCP 7 [a document that is updated from time to time to record whether the detaining officer at the relevant time considers that detention remains lawful and appropriate].

F.    Mr Kapeli’s contentions

189    In his written submissions, Mr Kapeli submitted that his detention was unlawful for two principal reasons.

190    First, Mr Kapeli submitted that he is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian. Mr Kapeli submitted that there is no dispute that he identifies as an Aboriginal person and that there is no serious dispute that he is accepted to be an Aboriginal person by elders and other Aboriginal people of the Worimi group. As to his ‘biological descent’, Mr Kapeli submitted that he does not know his genetic history but he has been initiated into and “brought up” by a particular Aboriginal people, according to the law and custom of that Aboriginal group.

191    Second, Mr Kapeli submitted that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. In those circumstances, s 189 does not authorise his continued detention, having regard to the decision of the High Court in NZYQ. Mr Kapeli submitted that he can only be removed from Australia if he is not an Australian Aboriginal (ie, proved to the standard of balance of probabilities rather than reasonable suspicion). Mr Kapeli further submitted that, being satisfied of a person’s Aboriginality to that standard of proof – especially when questions of the law and custom of adoption and integration of a particular group is in issue – will necessarily involve deep historical research, as well as consultation with a large number of people who are part of, or are learned in respect of, that group. That will take substantial time and resources, even assuming such a state of satisfaction on that question can be reached at all in respect of Mr Kapeli and the Worimi people.

192    In oral closing submissions, lead counsel for Mr Kapeli, Mr Albert, expanded the issues for determination in the proceeding. Mr Albert submitted that there were “six standalone bases upon which … Mr Kapeli is entitled to the resumption of his liberty”. Before outlining those six bases, Mr Albert advanced an initial point of statutory construction concerning s 196(4) of the Migration Act. The point was not advanced with clarity, but Mr Albert subsequently confirmed that Mr Kapeli submitted that, on a habeas corpus application, the effect of s 196(4) is that the respondents bear the burden of establishing on the balance of probabilities (and on clear and cogent evidence) that both:

(a)    Mr Kapeli is not an Aboriginal Australian (and therefore an alien); and

(b)    the detaining officer reasonably suspects that Mr Kapeli is not an Aboriginal Australian (and therefore an alien).

193    It is apparent that, if it be correct that the effect of s 196(4) is that the respondents bear the burden of establishing on the balance of probabilities that Mr Kapeli is not an Aboriginal Australian (and therefore an alien), the question whether the detaining officer reasonably suspects that Mr Kapeli is not an Aboriginal Australian is rendered redundant, as the former requires a higher standard of proof than the latter.

194    The six bases on which Mr Kapeli submitted that the writ of habeas corpus should be granted can be summarised as follows.

195    On the first basis, Mr Kapeli assumes that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words; that is, genetic ancestry or relationship or, in the vernacular, related by blood. Mr Kapeli contends that the respondents have not discharged their burden of proof of showing that Mr Kapeli is not biologically descended from Aboriginal people. Mr Kapeli submitted that there is no clear and cogent evidence that Mr Kapeli lacks genetic Aboriginal descent.

196    On the second basis, Mr Kapeli again assumes that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words. Mr Kapeli contends that the detaining officer’s suspicion that he is not biologically descended from Aboriginal people is not reasonable because the officer has failed to make all inquiries in relation to his biological ancestry that are reasonable in the circumstances (citing Goldie at [4]). In that regard, Mr Kapeli relied on the fact that he has claimed to be an Aboriginal Australian since 2022 (at the time of the prior cancellation decision).

197    On the third basis, Mr Kapeli contends that the first limb of the tripartite test does not require biological descent in the ordinary meaning of those words and that a person may satisfy the first limb if they have been adopted into an Aboriginal society. In support of that contention, Mr Kapeli relied upon the observations of Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 (Ward) at [232]-[234] that, in articulating the tripartite test in Mabo (No 2), Brennan J was not intending to lay down as an invariable requirement that there be strict “biological descent”. Mr Kapeli submitted that the detaining officer acted upon erroneous legal advice that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words and, as a consequence, erroneously failed to consider whether Mr Kapeli satisfied the first limb by reason of adoption into the Worimi tribe. By failing to make such enquiries, and applying the principles stated in Goldie at [4], the detaining officer failed to form a reasonable suspicion that Mr Kapeli was not an Aboriginal Australian.

198    On the fourth basis, Mr Kapeli contends that the majority judgments in Love/Thoms do not prescribe the tripartite test as the requisite test for being an Aboriginal Australian who is outside the aliens power in s 51(xix) of the Constitution; further or alternatively, even if the tripartite test is the requisite test, satisfaction of one of the limbs of the test may be inferred from satisfaction of the other two limbs (citing, in order, Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 (Attorney-General (Cth) v Queensland) at 132-133 (Spender J) and 147-148 (French J); In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105 (Watson) at [7] (Cox CJ); Stevenson v Yasso [2006] 2 Qd R 150; 163 A Crim R 1 (Stevenson) at [38] (McMurdo P), [81] (McPherson JA) and [133] (Fryberg J); and Ofu-Koloi v The Queen (1956) 96 CLR 172 (Ofu-Koloi) at 175 (Dixon CJ, Fullagar and Taylor JJ)). Mr Kapeli distilled the proposition as “two out of three is enough”. Mr Kapeli submitted that the detaining officer’s suspicion that Mr Kapeli was not an Australian Aboriginal was not reasonable in circumstances where the officer failed to consider broader tests of Aboriginality or that biological descent may be inferred from mutual recognition (the second and third limbs of the tripartite test).

199    On the fifth basis, Mr Kapeli contends that the AGS legal advice, on which the detaining officer relied, was not a reasonable advice with the result that the detaining officer’s suspicion (that Mr Kapeli was not an Aboriginal Australian) was not reasonable (citing Hobson at [83] where SC Derrington J in turn cites Guo v Commonwealth of Australia [2017] FCA 1355 at [43] (Jagot J)). Mr Kapeli submitted that the AGS legal advice was not reasonable because it did not consider whether the first limb of the tripartite test can be met by way of adoption into an Aboriginal society. Mr Kapeli advanced the surprising submission that, even if the Court concludes that the ultimate opinion expressed in the AGS legal advice is correct, the advice is unreasonable because it failed to give express consideration to adoption as a means of satisfying the first limb of the tripartite test.

200    On the sixth basis, Mr Kapeli contends that there is “no evidence” that the respondents know, or will know in the reasonably foreseeable future, that Mr Kapeli is an alien and therefore his continued detention is unlawful in accordance with the principles stated in NZYQ. Mr Kapeli initially submitted that this contention relies on the following four propositions:

(a)    First, the principle established by NZYQ is that a person cannot be detained under ss 189 and 196 of the Migration Act when there is no real prospect of the person being removed from Australia in the reasonably foreseeable future.

(b)    Second, the only persons who can be removed from Australia under s 198 of the Migration Act are aliens within s 51(xix) of the Constitution. In that regard, Mr Kapeli submitted that the power to remove a person from Australia under s 198 depends upon the person being an alien, and it is insufficient that the removing officer has a reasonable suspicion that the person is an alien (citing McHugh at [48] and [51] (Allsop CJ)).

(c)    Third, the detainer requires clear and cogent evidence that Mr Kapeli lacks Aboriginal biological descent in order to show that there is a real prospect of removal under s 198.

(d)    Fourth, there is no clear and cogent evidence that Mr Kapeli lacks Aboriginal biological descent, nor any evidence as to what steps the respondents have started taking to investigate that matter, nor how long any such investigation will take.

201    In the course of argument, Mr Kapeli did not dispute that the purpose for which an alien may be detained under ss 189 and 196 is not limited to the removal of the person from Australia and that a legitimate purpose of detention is to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined. Mr Kapeli submitted that, in the present case, he is the subject of an extant duty of removal under s 198(5). Mr Kapeli argued that the duty of removal has arisen notwithstanding that:

(a)    Mr Kapeli’s visa was cancelled under s 501(3A);

(b)    Mr Kapeli has been invited, in accordance with s 501CA, to make representations to the Minister about revocation of the decision to cancel his visa; and

(c)    Mr Kapeli has made representations in accordance with the invitation but the Minister had not yet decided whether to revoke the cancellation of his visa.

202    The foregoing submission raises a question concerning the proper construction of s 198 of the Migration Act. As noted earlier in these reasons, the submission was not raised in Mr Kapeli’s written submissions and was raised for the first time in Mr Kapeli’s oral closing submissions. In those circumstances, leave was granted to the respondents to file written submissions addressing the issue of construction, and for Mr Kapeli to file written submissions in reply. The Court has received those submissions and they are addressed below.

G.    Consideration of Mr Kapeli’s contentions

The proper construction of s 196(4)

203    It is convenient to commence with Mr Kapeli’s submission concerning s 196(4) of the Migration Act: that the effect of the section is that, on a habeas corpus application, the respondents bear the burden of establishing on the balance of probabilities (and on clear and cogent evidence) that Mr Kapeli is not an Aboriginal Australian (and therefore an alien). Lead counsel for Mr Kapeli, Mr Albert, was unable to identify any authority that supported the submission. Nor did Mr Albert refer the Court to the authorities that stand against the submission and seek to address them. For the following reasons, I reject the submission.

204    It is apparent from their terms that s 189 specifies the circumstances in which an officer of the Department is under a statutory duty to detain a person, and s 196 specifies the circumstances in which the detention is to cease, thereby defining the duration of the detention.

205    Section 189(1) provides as follows:

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.

206    Thus, s 189(1) relevantly establishes two bases on which an officer is required to detain a person. The first is if the officer knows that a person is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). The second is if the officer reasonably suspects that a person is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). As set out earlier in these reasons, a reasonable suspicion is something substantially less than certainty; it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

207    Section 196 provides as follows:

196     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.

(4A)     Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)     To avoid doubt, subsection (4) or (4A) applies:

(a)     whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)     whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)     Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)     This section has effect despite any other law.

(7)     In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

208    By s 196(1), an unlawful non‑citizen detained under s 189 must be kept in immigration detention until, among other things, he or she is removed from Australia under s 198 or 199, is deported under s 200, or is granted a visa.

209    Subsection 196(4) applies to Mr Kapeli’s detention because he has been detained as a result of the cancellation of his visa under s 501. Under s 196(4), Mr Kapeli’s detention is to continue unless a court finally determines that the detention is unlawful, or that Mr Kapeli is not an unlawful non‑citizen. The gravamen of Mr Kapeli’s submission concerning s 196(4) is that, on an application for habeas corpus, the detainer must negative both limbs; that is, the detainer must prove on the balance of probabilities that, first, the detention is lawful and, second, that the person detained is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). Mr Kapeli’s argument is that, while the first limb incorporates the reasonable suspicion test under s 189, the second limb does not and the relevant facts must be proved on the balance of probabilities.

210    Mr Kapeli’s submission misstates the ordinary meaning of the statutory text and is inconsistent with the statutory purpose as identified in the extrinsic materials. The meaning of s 196(4) and the relevant extrinsic materials were considered by Besanko J in Burgess v Commonwealth (2020) 276 FCR 548 (Burgess), albeit the argument advanced by Mr Kapeli was not in issue in that case. The following propositions can be taken from that decision.

211    First, the source of power to detain a person is contained in s 189, and s 196(4) is not a separate source of power to detain: Burgess at [84] and [124].

212    Second, and as is apparent from the heading to s 196 and the statutory text, the section is concerned with the duration, and perhaps more accurately the cessation, of detention that has been effected under s 189: Burgess at [85].

213    Third, ss 196(4) to (7) inclusive were introduced into s 196 by the Migration Amendment (Duration of Detention) Act 2003 (Cth): Burgess at [98]. An issue that had arisen prior to the insertion of those provisions was this Court’s power to order the interlocutory release of a person in detention under a general power in the Court such as s 23 of the FCA Act pending the final determination of an application for judicial review of the decision that led to the person’s detention (viz, the cancellation of his or her visa): Burgess at [99]-[100]. The relevant extrinsic materials explain that the purpose of the amendments was to prevent a court from ordering the release of a person from detention on an interlocutory basis pending the final determination of any substantive proceedings, whether those proceedings challenged the lawfulness of the detention or the cancellation of the visa that resulted in detention: Burgess at [111]-[114].

214    A decision to cancel a visa (for example, under s 501) is separate from the decision to detain a person. As observed by the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) in Falzon v Minister for Immigration (2018) 262 CLR 333 (Falzon) at [56]:

A cancellation decision has the immediate effect that the person’s status is changed from that of a lawful non-citizen to an unlawful non-citizen. Section 501(3A) merely provides the basis for the change in status. It does not authorise detention. It is that new status that exposes the person to detention under s 189.

215    It also follows that a legal challenge to the lawfulness of the cancellation of a visa is separate from a legal challenge to the lawfulness of a person’s detention. In Ruddock, the majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) explained (at [25]):

The first inquiry, about the lawfulness of the decision to cancel the respondent’s visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised. That directed attention, principally, to s 501 of the Act. By contrast, the lawfulness of the respondent’s detention turned upon whether there was statutory or other authority to detain him. That required consideration of s 189.

216    The foregoing propositions and principles support the conclusion that s 196(4) contemplates two types of application that may be made to the Court to challenge a person’s detention and bring it to an end. The first is a challenge to the lawfulness of the detention, which requires consideration of the exercise of the power to detain under s 189. The second is a challenge to the decision that rendered the person an unlawful non-citizen, typically the cancellation of the person’s visa. In both cases, the purpose of s 196(4) is to prevent the Court from ordering the release of the person from detention on an interlocutory basis. The subsection stipulates that a person may only be released on the final determination of either application by the Court.

217    By his application for habeas corpus, Mr Kapeli has challenged the lawfulness of his detention under s 189. He has not challenged the decision to cancel his visa under s 501. In accordance with the principles stated in McHugh and which have been set out earlier in these reasons, the respondents bear the burden of proving the lawfulness of Mr Kapeli’s detention, which requires proof that the detaining officer reasonably suspects that Mr Kapeli is an unlawful non-citizen and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian. If that is proved on the balance of probabilities, Mr Kapeli’s detention is lawful. The respondents are not required by s 196(4) to prove, on the balance of probabilities, that Mr Kapeli is not an Aboriginal Australian.

218    For those reasons, I reject Mr Kapeli’s submission concerning the construction of s 196(4).

Who are Aboriginal Australians within the meaning of the majority judgments in Love/Thoms?

219    Mr Kapeli put his contention that he is an Aboriginal Australian, and therefore outside the aliens power in s 51(xix) of the Constitution, on at least three bases. The first basis assumes that Aboriginal Australians within the meaning of the majority judgments in Love/Thoms are persons who satisfy the tripartite test, where the first limb of the tripartite test requires biological descent from an Aboriginal person. In other words, an Aboriginal Australian is a person who has Aboriginal ancestry, as well as satisfying the mutual recognition criteria in the tripartite test. The second basis also assumes that Aboriginal Australians within the meaning of the majority judgments in Love/Thoms are persons who satisfy the tripartite test, but that the first limb of the tripartite test does not require biological descent from an Aboriginal person and can be satisfied by adoption under traditional law and custom as discussed by the Full Court (in a native title context) in Ward. The third basis assumes that the majority judgments in Love/Thoms did not exhaustively define who is an Aboriginal Australian and the Court may have regard to other judicial explications of Aboriginality. Mr Kapeli’s submissions therefore put in issue the ratio decidendi of the High Court’s decision in Love/Thoms.

220    It is uncontroversial that the first basis on which Mr Kapeli relies is supported by Love/Thoms. The respondents contend that the second and third bases on which Mr Kapeli relies are not supported by Love/Thoms.

221    The High Court’s decision in Love/Thoms has been considered and applied in several decisions of this Court both at first instance and on appeal, including in the Full Court decision in McHugh and in the first instance decisions in Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 38 (Webster), Helmbright, Hirama v Minister for Home Affairs [2021] FCA 648 (Hirama), Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 (Montgomery) and Hobson. As a judge at first instance, I am bound to follow the decisions in Love/Thoms and McHugh. I should also follow an earlier decision of another judge (at first instance) unless of the view that the earlier decision is plainly wrong.