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

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