Hirama v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 15 June 2021
• Neutral Citation: [2021] FCA 648
• Court: Federal Court
• Date: 15 June 2021

Federal Court of Australia

Hirama v Minister for Home Affairs [2021] FCA 648

File number:	VID 331 of 2020
Judgment of:	MORTIMER J
Date of judgment:	15 June 2021
Catchwords:	CONSTITUTIONAL LAW – Constitution s 51(xix) – application of tripartite test in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1; where applicant is a non-citizen who identifies as an Aboriginal Australian ; PRACTICE AND PROCEDURE – where parties sought a particular form of declaratory relief – principles applying to grant of declaratory relief – declaratory relief granted in form other than that sought by the parties
Legislation:	Migration Act 1958 (Cth) Native Title Act 1993 (Cth)
Cases cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 Mellifont v Attorney-General (Qld) [1991] HCA 53; 173 CLR 289 Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58; 183 FCR 10 Re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 Samson on behalf of the Ngarluma People v Western Australia [2015] FCA 1438 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia (No 2) [2017] FCA 1299 Yindjibarndi Aboriginal Corporation RNTBC v Western Australia [2020] FCA 1416
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	62
Date of last submission/s:	20 October 2020
Date of hearing:	16 February 2021
Counsel for the Applicant:	Mr A J Hartnett
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr S Lloyd SC with Mr A Yuile
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 331 of 2020
BETWEEN:	JONATHON KINGI HIRAMA Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	MORTIMER J
DATE OF ORDER:	15 JUNE 2021

THE COURT DECLARES THAT:

1. The applicant is not an alien within the meaning of s 51(xix) of the Constitution.

THE COURT ORDERS THAT:

2. The respondent pay the applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1. This proceeding is part of a cohort of matters relating to people affected by the decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 (Love/Thoms). That is, it is a matter relating to an individual who is a non-citizen affected by an exercise of power under the Migration Act 1958 (Cth), but who claims to not be an alien and therefore outside the reach of legislation supported by s 51(xix) of the Constitution.

2. It is an agreed fact that the applicant is an “Aboriginal Australian”, as that term is used in Love/Thoms to describe a person who is not an alien within the meaning of s 51(xix). The applicant seeks a declaration to that effect, and costs. Given the agreed facts, the respondent, the Minister for Home Affairs, appropriately did not oppose the granting of declaratory relief, nor the making of an order for costs.

3. Therefore, the question for the Court is whether it is satisfied the declaratory relief sought is appropriate, and is supported by the evidence contained in the agreed facts. For the reasons that follow, declaratory relief will be granted, but not in precisely the terms sought by the parties.

4. These reasons should be read with my reasons for judgment in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647.

Procedural Background

5. This matter was commenced by application filed in the High Court of Australia on 2 October 2019. The application was accompanied by an affidavit affirmed by the applicant on 1 October 2019 in support of the request for extension of time to make the application, which was contained within the application itself.

6. The Minister filed submissions in response to the application, opposing the making of the orders sought and identifying the matter as one that would be potentially affected by the matter of Love/Thoms. The Minister sought that the proceeding to be adjourned pending the decision in Love/Thoms.

7. In this proceeding, after Love/Thoms was handed down, on 15 May 2020 and with the consent of the parties, Nettle J relevantly made orders granting the extension of time sought, and remitting the matter to be heard in this Court. The Minister submitted that the delay between the handing down of Love and the remittal orders made in this proceeding reflected

a period where the applicant’s matter was held in abeyance in the High Court while the parties explored whether the applicant was an Aboriginal Australian to whom the judgment applied.

8. An amended originating application was filed in this Court on 17 June 2020. A further amended application was filed on 22 September 2020, seeking only a declaration that the applicant is not an ‘alien’ within the meaning of s 51(xix) of the Constitution, and costs.

The decision in Love/Thoms

9. The decision of the High Court in Love/Thoms was published on 11 February 2020. I have set out my understanding of the reasons in detail in Helmbright at [104]-[111]; [150]-[214]. In short summary, a majority of the Court found that those non-citizens who fall within the term “Aboriginal Australians” are not “aliens” within the meaning of s 51(xix) of the Constitution. The majority employed the term “Aboriginal Australians” by reference to the description given by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70. Therefore, Aboriginal Australians as so described are not vulnerable to exercises of power such as the visa cancellation and removal powers contained in the Migration Act, because those parts of the Migration Act are supported by s 51(xix).

10. The parties have sought that the proceeding be resolved in favour of the applicant on the basis of the approach set out by Brennan J in Mabo (No 2) at 70. As I explain in Helmbright, and as that proceeding itself illustrates, the Mabo (No 2) approach may not be the only approach contended to be available to determine if a non-citizen is an Aboriginal Australian, and therefore on the majority view in Love/Thoms not an alien. In Helmbright I held that, sitting as a single judge at trial level, I was bound to adopt the approach in ...