McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 (11 December 2020) (Allsop CJ, Besanko and Mortimer JJ)


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