McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Appeal from:

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

File number:

VID 270 of 2020

Judges:

ALLSOP CJ, BESANKO AND MORTIMER JJ

Date of judgment:

11 December 2020

Catchwords:

MIGRATION – appeal from decision of single judge of the Federal Court of Australia – judicial review of Minister’s decision not to revoke cancellation of appellant’s absorbed person visa – appellant in immigration detention – appellant born in Cook Islands – appellant claims he is an Aboriginal Australian – appellant claims he is an Australian citizen – application for a writ of habeas corpus – whether appellant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – whether an officer held a reasonable suspicion that the appellant was an unlawful non-citizen at the time of trial – where no officer responsible for appellant’s detention at point of trial gave evidence – where no documentary evidence tendered that related to the state of mind of any detaining officer at point of trial – where no evidence tended to prove that any detaining officer had turned his or her mind to whether the appellant was an Aboriginal Australian – whether officer’s suspicion could be inferred – whether presumption of continuance applied – appeal allowed

HIGH COURT AND FEDERAL COURT – original jurisdiction of Federal Court of Australia – whether Federal Court has authority and power to issue a writ of habeas corpus – s 23 of the Federal Court of Australia Act 1976 (Cth) – application of s 476A of the Migration Act – meaning of “jurisdiction in relation to a migration decision” – Federal Court has power to issue a writ of habeas corpus and such power has not been ousted or limited in any way by s 476A(1) of the Migration Act – appeal allowed

ADMINISTRATIVE LAW – habeas corpus – history, nature and effect of remedy – onus of proof – whether legal onus of proving the unlawfulness of the appellant’s restraint borne by appellant – where primary judge applied a “shifting” onus of proof – whether appellant required to satisfy initial evidential onus in relation to claim of Aboriginality – Minister bears onus of proving the lawfulness of detention and must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers at the time of trial – appeal allowed

CITIZENSHIP – appellant born in Cook Islands – appellant arrived in Australia at age 7 – appellant adopted in Queensland at age 8 – appellant’s birth registered in Queensland at the same time – s 31(2) of the Adoption of Children Act 1964 (Qld) deemed applicant’s “domicile of origin” to be domicile of adopters at time of adoption – whether applicant was “born in Australia” – appellant enrolled on Commonwealth electoral roll in 1986 – appellant voted in 1987 Australian federal election – appellant issued an Australian passport in 2017 – whether the appellant is an Australian citizen

STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – whether phrase “born in Australia” is limited to physical birth within the geographical territory of Australia

EVIDENCE – hearsay – business records – s 69(3) of the Evidence Act 1995 (Cth) – whether records of Department of Home Affairs were prepared or obtained for the purpose of conducting, or in contemplation of, an Australian proceeding – phrase “in contemplation of” refers to the person who prepared the representation or who obtained it – the officers whose views are recorded in the documents were unlikely to have contemplated that proceedings about the appellant’s detention were reasonably probable

Legislation:

Constitution ss 51(xix), 51(xxxix), 75(iii), 75(v)

Acts Interpretation Act 1901 (Cth) s 15A

Australian Citizenship Act 1948 (Cth) ss 5, 10, 10A, 11, 39

Australian Citizenship Act 2007 (Cth) s 4

Evidence Act 1995 (Cth) ss 60, 66A, 69

Federal Court of Australia Act 1976 (Cth) ss 18BAA, 23, 32, 37, 40, 54, 55

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5, 13, 14, 34, 189, 196, 200, 474, 475, 476A, 501, 501A, 501B, 501BA, 501C, 501CA

Migration Litigation Reform Act 2005 (Cth)

Native Title Act 1993 (Cth)

High Court Rules 1952 (Cth)

High Court Rules 2004 (Cth)

Adoption Act 1931 (Qld)

Adoption Act 2000 (NSW) s 4

Adoption of Children Act 1964 (Qld) ss 28, 31

Cases cited:

AJL20 v Commonwealth [2020] FCA 1305

Akiba v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; 192 ALR 609

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562

Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352, 136 FCR 291

Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1

Attorney-General of the Commonwealth v Queensland [1990] FCA 358; 25 FCR 125

Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; 147 FCR 235

BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 351; 348 ALR 227

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651

Bropho v Western Australia [1990] HCA 24; 171 CLR 1

Burgess v Commonwealth of Australia [2020] FCA 670; 378 ALR 501

Bushell’s Case 2 Jon 13

CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1

Coco v The Queen [1994] HCA 15; 179 CLR 427

Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1

Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604

DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156

Dien v Manager of Immigration Detention Centre at Port Hedland (1993) 115 FLR 416; sub nom Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729

Dillon v The Queen [1982] AC 484

DJL v Central Authority [2000] HCA 17; 201 CLR 226

Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309

Ex p Susannah Nicholls (1845) Reserved & Equity Judgments of NSW 11

Felton v Mulligan [1971] HCA 39; 124 CLR 367

Fencott v Muller [1983] HCA 12; 152 CLR 570

FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 251

Gibbs v Capewell [1995] FCA 25; 54 FCR 503

Goldie v Commonwealth [2002] FCA 433; 117 FCR 566

Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; 93 CLR 55

Greene v Secretary of State for Home Affairs [1942] AC 284

Guo v Commonwealth of Australia [2017] FCA 355; 258 FCR 31

Guo v Minister of Immigration and Ethnic Affairs [1995] FCA 29; 38 ALD 38

Hackett (a Pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248

Hicks v Ruddock [2007] FCA 299; 156 FCR 574

Jackson v Sterling Industries Limited [1987] HCA 23; 162 CLR 612

Joye v Beach Petroleum NL [1996] FCA 502; 67 FCR 275

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531

Koon Wing Lau v Calwell [1949] FCA 65; 80 CLR 533

Koroitamana v Commonwealth [2006] HCA 28; 227 CLR 31

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390

Lee v Australian Crime Commission [2013] HCA 39; 251 CLR 196

Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740

Liversidge v Anderson [1942] AC 206