Keeping in detention = “migration decision” under s 476A?

Federal Court. Once an act is made to detain a person under s 189 of the Migration Act 1958, is the continuation of that detention also an act under s 189? If so, is the continued detention of a person under s 189 a "migration decision", with the result that the FCA does not have original jurisdiction in an application for a writ in the nature of habeas corpus? If so, does the FCA have a residual original jurisdiction to determine whether a habeas corpus applicant is a person to whom s 189(1) can validly apply? Can 189(1) be applied by reference to a hypothetical officer? Was the Applicant "born in Australia" for the purposes of the Australian Citizenship Act 1948, despite being born in the Cook Islands? Was the Applicant an Aboriginal Australian? Were enrolment on the Commonwealth electoral roll and the issue of an Australian passport determinative of whether Applicant was a citizen?

The Applicant self-identified as an Aboriginal Australian and was recognised as such by an elder of the Ardyaloon Community, although there was no evidence that tended to prove that he was a biological descendent of the Aboriginal people.

The Applicant's birth in the Cook Islands made him a NZ citizen by operation of NZ law. He was informally adopted in NZ by a couple who moved with him to Australia in 1975, when he was 7 years old. They then formally adopted him in Australia.

In 1986, while residing in Queensland and aged 18, he was informed by the electoral office that he was eligible to vote, which he did in 1987. In 2017, he applied for, and was granted, an Australian passport. He also held an Australian birth certificate. There was no record that the Applicant had ever applied for Australian citizenship.

In February 2018, the Department’s Citizenship Helpdesk determined that the Applicant was not an Australian citizen, after finding that "it appears … that [the Applicant] may have been issued with an Australian passport in error”. On the same date, the Applicant’s Australian passport was made void

In April 2018, the Department mandatorily canceled the Applicant's visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) and he was placed in immigration detention as a result in May 2018, after he was released from criminal custody.

The Applicant then made representations under s 501CA(3), seeking the revocation of that cancellation, but in August 2019 the Minister decided under s 501CA(4) not to revoke the mandatory cancellation.

The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Minister's non-revocation decision. He also applied for relief in the nature of a writ of habeas corpus, which is, for simplicity, referred to in the FCA's decision as “habeas corpus”.

The FCA decided first the application for habeas corpus and the reasons provided in this decision only address the habeas corpus application.

Section 476A of the Migration Act 1958 (Cth) ousted, to some extent, the original jurisdiction conferred on the FCA by s 39B of the Judiciary Act 1903 (Cth). The effect of the former provision was to limit the FCA's original jurisdiction in relation to a migration decision to the matters listed under s 476A(1).

The Minister argued that:

  • an exercise of power under s 189(1) should be characterised as a “migration decision”;
  • the Applicant’s initial, and continuing, custody in immigration detention was lawfully supported by s 189(1).

The FCA answered the above and many other questions, as follows:

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