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

• Jurisdiction: Australia Federal only
• Judge: ANDERSON J
• Judgment Date: 07 April 2020
• Neutral Citation: [2020] FCA 416
• Date: 07 April 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

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

File number:	VID 1121 of 2019
Judge:	ANDERSON J
Date of judgment:	7 April 2020
Catchwords:	MIGRATION – applicant in immigration detention – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) decided not to revoke cancellation of applicant’s absorbed person visa – applicant born in Cook Islands – applicant claims he is an Aboriginal Australian – applicant claims he is an Australian citizen – application for relief in the nature of a writ of habeas corpus – whether applicant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – meaning of “an officer” – inference of officer’s suspicion – presumption of continuance – reasonableness of suspicion ; HIGH COURT AND FEDERAL COURT – original jurisdiction of Federal Court of Australia – s 476A(1) of the Migration Act – whether exercise of power under s 189(1) of the Migration Act is a “decision” – original jurisdiction to review administrative action under s 189(1) – residual original jurisdiction to determine whether s 189(1) is capable of validly applying to the applicant ; CONSTITUTIONAL LAW – powers of Commonwealth Parliament – power to make laws with respect to naturalisation and aliens – Love v Commonwealth of Australia [2020] HCA 3 – applicant self-identifies as Aboriginal – applicant recognised by elder as member of Aboriginal community – no evidence of biological descent – mode of proving biological descent – whether applicant satisfies tripartite test for Aboriginality in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 ; CITIZENSHIP – applicant born in Cook Islands – applicant arrived in Australia at age 7 – applicant adopted in Queensland at age 8 – applicant’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” – applicant enrolled on Commonwealth electoral roll in 1986 – applicant voted in 1987 Australian federal election – applicant issued an Australian passport in 2017 – presumption of regularity – whether the applicant is an Australian citizen ; STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – ordinary meaning of “birth” – reading of Act as a whole – reading statutory provision in harmony with other provisions ; PRIVATE INTERNATIONAL LAW – domicile of origin – concept at common law – whether concept equates to place of birth – statutory modification to concept ; FAMILY LAW AND CHILD WELFARE – adoption – policy underpinning adoption order – effect of adoption order – whether adoption order deems adopted child to have same citizenship status as adoptive parents ; STATUTES – Commonwealth Electoral Act 1918 (Cth) – persons entitled to enrolment on Commonwealth electoral roll and to vote – Australian Passports Act 2005 (Cth) – entitlement to be issued an Australian passport ; ADMINISTRATIVE LAW – habeas corpus – jurisdiction of Federal Court of Australia – history, nature and effect of remedy – proper respondent – onuses of proof – whether Minister presented prima facie justification for restraint – whether applicant satisfied initial evidential onus in relation to claim of Aboriginality – whether Minister proved lawfulness of applicant’s detention ; 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, this proceeding ; PRACTICE AND PROCEDURE – Notices of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) – whether “reasonable time” elapsed since giving of notices for consideration by Attorneys-General ; Held: Federal Court of Australia does not have original jurisdiction to directly review lawfulness of applicant’s detention – however, applicant is a person to whom s 189(1) of the Migration Act may validly apply – applicant is not an Australian citizen – applicant failed to prove that he is Aboriginal Australian under tripartite test in Mabo (No 2) – applicant is an alien for the purposes of s 51(xix) of the Constitution
Legislation:	Constitution ss 51(xix), 51(xxvi) Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4(1) Australian Citizenship Act 1948 (Cth) (repealed) Pt II, ss 3(a), 5(1), 5A, 7(1), 7(2), 10, 10(1), 10A, 10B, 10C, 11, 11(1), 12, 13, 14, 15 Australian Citizenship Act 2007 (Cth) Div 1 of Pt 2, ss 4, 4(1)(b), 4(2), 12, 13, 21 Australian Citizenship Amendment Act 1984 (Cth) ss 2(1), 5, 7, 39(3) Australian Citizenship Amendment Act 1991 (Cth) (repealed) Australian Passports Act 2005 (Cth) ss 3, 7, 8, 8(a), 42, 43 Commonwealth Electoral Act 1918 (Cth) ss 93, 93(1)(b)(ii) Evidence Act 1995 (Cth) ss 59, 69, 69(2), s 69(3), 155, 155A Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c), 78A, 78B, 78B(1) Migration Act 1958 (Cth) ss 5(1), 34(2), 116(1)(d), 189, 189(1), 189(3), 196, 474, 474(2), 474(3), 474(3)(a)–(f), 474(3)(g), 476A, 476A(1), 476A(1)(a)-(d), 501(2), 501(3A), 501CA(4) Migration Litigation Reform Act 2005 (Cth) Nationality and Citizenship Act 1948 (Cth) Adoption of Children Act 1964 (Qld) (repealed) ss 7, 7(1), 28, 31, 31(2), 55 British Nationality and New Zealand Citizenship Act 1948 (NZ) (repealed) s 6
Cases cited:	Ainslie v Ainslie [1927] HCA 23; 39 CLR 381 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 Antunovic v Dawson [2010] VSC 377; 30 VR 355 Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 Attorney-General (Cth) v Queensland (1990) 25 FCR 125 Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305; 350 ALR 494 Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) [2003] FCA 1525; 137 FCR 317 Bae v The Queen [2020] SASCFC 7 Barnardo v Ford [1892] AC 236 BC v The Public Advocate & Ors [2018] SASC 193 Bhalsod v Perrie [2018] WASCA 108; 84 MVR 469 Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Cassell v The Queen [2000] HCA 8; 201 CLR 189 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 Certain Children v Minister for...