Federal Court (Full Court). Does s 476A of the Migration Act 1958 (Cth) prevent "direct review" by the Federal Court of an exercise of power under s 189, including by way of an application for habeas corpus? We summarise the answer to that and 35 other questions.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does s 476A of the Migration Act 1958 (Cth) prevent "direct review" by the Federal Court (FCA) of an exercise of power under s 189, including by way of an application for habeas corpus?
Question 2: Does s 476A "prevent a collateral challenge to the lawfulness of the appellant’s detention, as a step in the seeking of other relief, such as damages for false imprisonment"?
Question 3: Does the FCA have original jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to determine whether s 189 is capable of applying to an individual?
Question 4: Is the correct question whether the FCA has jurisdiction to issue a writ of habeas corpus or make an order in nature of habeas corpus or is it rather whether the FCA has the power to do so?
Question 5: Is habeas corpus an appropriate form of relief to be sought for unlawful executive detention?
Question 6: Is habeas corpus no more than a form of order which could be granted in an appropriate case under s 23 of the Federal Court of Australia Act?
Question 7: Can s 33(1)(f) of the Judiciary Act, which provides that "[t]he High Court may make orders or direct the issue of writs", "be exercised only as an incident of the exercise of the original or appellate jurisdiction of the court under other provisions"?
Question 8: If the answer to Question 7 is "yes", does the same principle apply to the FCA, by reason of s 23 of the Federal Court of Australia Act?
Question 9: If determining the application for habeas corpus, was the FCA engaging in “judicial review” of a “decision” for the purposes of determining whether that “decision” was lawful, with the result that s 476A prevented that review? Or was the FCA rather "determining an anterior question about the capacity in law of the executive detention power in s 189(1) applying to an individual, as an ancillary question in its judicial review (in this case, where the arguments on both aspects overlap) of a “migration decision” of the Minister [under s 501CA(4)], such jurisdiction regularly invoked under s 476A(1)(c)", with the result that s 476A did not prevent the grant of habeas corpus?
Question 10: Can it be said that, if a person does not, according to law, have the status of an "unlawful non-citizen", 196(3) cannot operate to prevent his/her release, including pursuant to a writ of habeas corpus?
Question 11: Can it be said that, if a person does not, according to law, have the status of an "unlawful non-citizen", 196(4) cannot operate to prevent his/her release, including pursuant to a writ of habeas corpus?
Question 12: Can it be said that, if detention is unlawful because of jurisdictional error in the exercise of the cancellation power, 196(4) cannot operate to prevent release, including pursuant to a writ of habeas corpus?
Question 13: Is the "court" referred to in ss 196(3) and (4) only the High Court?
Question 14: If habeas corpus is available to the FCA, is there a basis to differentiate its availability between the Federal Circuit Court (FCCA) and the FCA?
Question 15: If the FCCA has the power to hear and determine an application for habeas corpus and transfers the proceedings to the FCA, does the FCA have the power to hear and determine that application, by reason of the jurisdiction given to the FCA under s 476(1)(a)?
Question 16: Is the FCA's power to grant relief by way of habeas corpus "rendered unavailable by reason of the terms of s 476A(1), which confine the Court’s jurisdiction to the circumstances set out in paras (a)-(d)"?
Question 17: Can it be said that, "an application for relief by way of a writ of habeas corpus would not be inappropriate in circumstances of other personal powers mentioned in s 476A(1)(c) – for example, s 501(3), which is a personal power of either cancellation or refusal of a visa"?
Question 18: Can it be said that "the phrase “in relation to a migration decision” in s 476A should be confined: first, to public law remedies; and second, to “direct” judicial review"?
Question 19: At first instance, the FCA held that there existed a shifting onus of proof regarding the lawfulness or unlawfulness of detention: "first, the applicant bears the onus of proof of showing that she or he is restrained"; "second, the respondent bears the onus of showing “a prima facie justifiable basis for the restraint""; "third, the applicant bears an “initial evidential onus to raise a prima facie question as to the lawfulness of the restraint""; and "fourth, the respondent bears “the ultimate legal onus of proving the lawfulness of the restraint”". Instead of that 4-step shifting onus of proof, should the onus be that, first, the applicant bears the initial evidential burden of proving that he/she is detained and "[putting] in issue" the detention (i.e. proving that detention is prima facie unlawful) and, second, that the respondent must then discharge the legal burden of proving that detention is supported by "some positive authority conferred by the law"?
Question 20: Is there a "distinction to be drawn between the burden of proof in false imprisonment and any other claim for release based on unlawful detention, whether described as habeas corpus, or as orders in the nature of habeas corpus, or as mandatory injunctions"?
Question 21: Was the Minister "required simply to establish a “reasonable possibility” that an officer reasonably suspected the appellant was (a) an unlawful non-citizen and (b) not an Aboriginal Australian"?
Question 22: Can it be said that, "for the purposes of s 189, an officer or officers must hold a reasonable suspicion throughout the detainee’s detention"?
Question 23: Subsection 69 of the Evidence Act created an exception to the hearsay rule under s 59. Under s 69, the hearsay rule did not apply to "previous representations" contained in business records, that is a document that "is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business". Paragraph 69(3)(a) provided that the exception did not apply "if the representation... was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding". Shortly before being taken into immigration detention following the visa cancellation under s 501(3A), the Appellant "rigorously and repeatedly stated that he was a citizen". Can it be said that "[d]etaining a person who claims that he is a citizen when that status means that that person cannot be lawfully detained gives rise to a near inevitability of proceedings", with the result that the documents found in the Department's systems containing the previous representations made by the detaining officer/s were "prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding"?
Question 24: Can it be said that, "after the Minister made an adverse decision to the appellant [under s 501CA(4)], including on the appellant’s belief he was a citizen, which he had been so clear in asserting, ... [the] contemplation [of an Australian proceeding] was more likely"?
Question 25: Can it be said that, "in order to continue to detain a person, an officer must continue to have a reasonable suspicion that the person is an unlawful non-citizen. And, it should now be added, is not an Aboriginal Australian"?
Question 26: Can it be said that, "although there was no direct evidence that an officer suspected that the appellant was an unlawful non-citizen at any time after September 2018, it could be presumed that the suspicion continued to the date of the Court’s decision"?
Question 27: Can it be said that the HCA's decision in Love/Thoms "should have brought about a substantial reassessment by the Commonwealth of all individuals who claimed, or might reasonably be suspected to be, Aboriginal Australians"?
Question 28: Can it be said that "lawfulness of continued detention of a person reasonably suspected to be an unlawful non-citizen may change during the course of detention as a result of an event which could affect the state of mind of the detaining officer or officers"?
Question 29: If the answers to Questions 27 and 28 are "yes", was the HCA's decision in Love/Thoms "an event which could affect the state of mind of the detaining officer or officers", with the result that failure to consider that event meant that the Appellant's detention was no longer justified by a reasonable suspicion under s 189 that he was an unlawful non-citizen or an Aboriginal Australian?
Question 30: Was the FCA in error by assessing whether the requisite reasonable suspicion under existed by reference to a time in the past, instead of by reference to the time of trial?
Question 31: Subection 10(1) of the Citizenship Act 1948 relevantly provided: "Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth". Can it be said that "the phrase “born in Australia” in s 10(1) should not be construed as limited to those whose physical birth occurred within the geographical territory of Australia"?
Question 32: Can it be said that, "if the writ of habeas corpus or an application for an order in the nature of habeas corpus can be entertained in [the FCA,] it can be sought as a remedy within, or as an incident of, the matter that includes the judicial review of the decision under s 501CA and the claim under s 39B that s 189 does not apply to him, because he is a citizen or, if not, an Aboriginal Australian who is not an alien?
Question 33: Can it be said that the HCA's decision in Love/Thoms means that ss 13(1) and 14(1) of the Migration Act 1958 (Cth) should be interpreted in a way that, "whilst a non-citizen Aboriginal Australian who had a visa would be a lawful non-citizen because of the holding of a visa, a non-citizen Aboriginal Australian who does not hold a visa is not an unlawful non-citizen, because of his or her status as an Aboriginal Australian and thus not being an alien"?
Question 34: Can it be said that a consequence of the HCA's decision in Love/Thoms is that s 189 should be read down so as not to apply to a person who is, in fact, an Aboriginal Australian (i.e. a non-alien)? Or should that provision rather be read as authorising, and requiring, an officer to detain a person (merely) reasonably suspected of being an unlawful non-citizen who is not an Aboriginal Australian (i.e. an alien)?
Question 35: Can it be said that habeas corpus is a writ of right, although not a writ of course, and that it is not a discretionary remedy?
Question 36: Does the tripartite test focus on a particular Aboriginal community for each limb of the test?
The FCAFC answered those questions as follows:
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