Hobson v Commonwealth of Australia [2022] FCA 418
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File number(s): |
VID 120 of 2022 |
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Judgment of: |
SC DERRINGTON J |
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Date of judgment: |
14 April 2022 |
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Date of publication of reasons: |
21 April 2022 |
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Catchwords: |
CONSTITUTIONAL LAW – Constitution s 51(xix) – content of the tripartite test in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 – whether ratio in Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152 ‘controlled’ by judgment of Nettle J in relation to the third limb – where applicant is biologically descendent from an Aboriginal woman, self-identifies, and is accepted by Dharug Elders – where Minister contends no evidence that Dharug community has remained continuously united in and by its customs and laws deriving from before the Crown’s acquisition of sovereignty
MIGRATION – where applicant is a New Zealand citizen –– where visa cancelled under s 501(3) of the Migration Act 1958 (Cth) – where applicant is biologically descendent from an Aboriginal woman, self-identifies, and is accepted by Dharug Elders – whether applicant lawfully detained under s 189 of Migration Act 1958 (Cth) – construction of s 189 – whether Minister satisfied onus of proof that detention lawful – whether detaining officer’s suspicion of non-Aboriginality reasonable –whether applicant entitled to writ of habeas corpus
EVIDENCE – constitutional facts – onus of proof – whether rules of evidence displaced
EVIDENCE – opinion evidence – evidence of traditional laws and customs – exception under s 78A of the Evidence Act 1995 (Cth) |
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Legislation: |
Constitution s 51(xix) Acts Interpretation Act 1901 (Cth) s15A Evidence Act 1995 (Cth) s 78A Evidence Amendment Act 2008 (Cth) sch 1 s 36 Judiciary Act 1903 (Cth) s 39B(1A)(b) and (c), 78B Migration Act 1958 (Cth) ss 5, 13, 14, 29, 45, 189(1), 196(4), 501(2), 501(3), 501(6)(b) Native Title Act 1993 (Cth) ss 223(1)(b), 225 Racial Discrimination Act 1975 (Cth) s 8 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(7) |
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Cases cited: |
Breen v Sneddon [1961] HCA 67; 106 CLR 406 Burgess v Commonwealth of Australia [2020] FCA 670; 276 FCR 548 Clubb v Edwards [2019] HCA 11; 267 CLR 171 Dillon v The Queen [1982] AC 484 Fernando v Commonwealth of Australia [2012] FCAFC 18; 200 FCR 1 Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374 Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77 Goldie v Commonwealth of Australia [2002] FCAFC 100 Guo v Commonwealth [2017] FCA 1355 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647 Jerrard (Deceased), Re Estate [2018] NSWSC 781; 97 NSWLR 1106 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27; 104 NSWLR 333 Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Maloney v The Queen [2013] HCA 28; 252 CLR 168 Mashood v Commonwealth [2003] FCA 1147; 133 FCR 50 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 Montgomery v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCA 1423 Okwume v Commonwealth [2016] FCA 1252 Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 |
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Division: |
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Registry: |
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National Practice Area: |
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Number of paragraphs: |
87 |
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Date of hearing: |
12 April 2022 |
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Counsel for the Applicant: |
Mr Matthew Albert with Ms Evelyn Tadros |
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Solicitor for the Applicant:
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Carina Ford Immigration Lawyers |
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Counsel for the Respondents: |
Mr Christopher Tran with Ms Julia Wang |
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Solicitor for the Respondents: |
Australian Government Solicitor |
ORDERS
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VID 120 of 2022 |
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BETWEEN: |
JACKIE DEAN HOBSON Applicant
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AND: |
COMMONWEALTH OF AUSTRALIA First Respondent
MINISTER FOR HOME AFFAIRS Second Respondent
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order made by: |
SC DERRINGTON J |
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DATE OF ORDER: |
14 April 2022 |
THE COURT ORDERS THAT:
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A writ of habeas corpus issue.
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The respondents pay the applicant’s costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SC DERRINGTON J
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Mr Hobson has neither been charged with nor convicted of any criminal offence. Despite this, except for a period of one month when he was released pursuant to an order of this Court quashing the original decision by the Minister for Home Affairs pursuant to s 501(2) of the Migration Act 1958 (Cth) to cancel his Class TY subclass 444 Special Category visa before the Minister again cancelled his visa pursuant to s 501(3), Mr Hobson has been held in immigration detention since February 2020. The Minister has identified that Mr Hobson does not pass the character test because the Minister reasonably suspects that Mr Hobson has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person that has been or is involved in criminal conduct within the meaning of s 501(6)(b) of the Migration Act. The alleged relevant organisation is the Rebels Outlaw Motorcycle Gang.
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He is detained under s 189(1) of the Migration Act which requires the detention of an unlawful non-citizen. Mr Hobson was born in New Zealand in 1968 and is a citizen of that country despite having been a permanent resident of Australia since 31 October 1994. There is no dispute that Mr Hobson is neither an Australian citizen nor the holder of a valid visa and is therefore an unlawful non-citizen.
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Mr Hobson contests the lawfulness of his detention under s 189(1) of the Migration Act for the reason that he is a ‘non-citizen non-alien’ as understood after the decision of the High Court in Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152. He seeks a writ of habeas corpus on the basis that, as an Aboriginal Australian, his detention is unlawful.
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Mr Hobson claims to be an Aboriginal Australian. He says he is a Dharug man who is a biological descendant of Elanora Cooman (his great, great, great grandmother) an Indigenous woman born in Australia in approximately 1822.
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Mr Hobson has a ‘Confirmation of Aboriginality’ from the Dharug Ngurra Aboriginal Corporation which was signed by Uncle Colin Locke and Sister Corina Norman on 20 September 2021.
The Minister accepts that...
