Federal Court of Australia
Federal Court of Australia
Hobson v Commonwealth of Australia [2022] FCA 418 File number(s): VID 120 of 2022
Judgment of: SC DERRINGTON J
Date of judgment: 14 April 2022
Date of publication of reasons: 21 April 2022
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)
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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