Federal Court. Is it for a court to judge, pursuant to s 189 of the Migration Act 1958 (Cth), whether "an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen", "based on the entirety of the evidence before it and not just the evidence that may have been available to the detaining officers"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is it for a court to judge, pursuant to s 189 of the Migration Act 1958 (Cth), whether "an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen", "based on the entirety of the evidence before it and not just the evidence that may have been available to the detaining officers"?
Question 2: Is what was in the minds of the detaining officers relevant for the purpose of s 189?
Question 3: In circumstances where the Applicant raised objections on the basis of hearsay to the admissibility of evidence adduced by the Commonwealth, did the Commonwealth bear the onus of establishing that the exception under s 69 of the Evidence Act 1995 (Cth) relating to "business records" applied?
Question 4: Do the words "might reasonably be supposed to have had personal knowledge" within ss 69(2)(a) and (5) of the Evidence Act 1995 (Cth) "indicate that the Court is allowed to draw inferences not just from the form of the document, but also from the nature of the information contained in it"?
Question 5: If a "previous representation" (i.e. one made out of court) referred to in affidavits sworn by officers on behalf of the Commonwealth should be admitted by reason of s 69 of the Evidence Act 1995 (Cth), is the weight given to that representation clearly diminished if those affidavits did not identify the sources of the representation?
The FCA answered those questions as follows: