Kapeli v Secretary, Department of Home Affairs - [2024] FCA 1246 - FCA 2024 case summary — Zoe

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Kapeli v Secretary, Department of Home Affairs

[2024] FCA 1246

Federal Court of Australia|2024-10-29|Before: O'Bryan J

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Source facts

Court

Federal Court of Australia

Decision date

2024-10-29

Before

O'Bryan J

Source

Original judgment source is linked above.

Judgment (65 paragraphs)

[1]

Constitution s 51(xix) Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Acts Interpretation Act 1901 (Cth) s 15A Evidence Act 1995 (Cth) ss 27, 48(1)(b), 59, 60, 63, 64, 69, 76, 77, 136, 140, 156(1) Evidence Amendment Act 2008 (Cth) Federal Court of Australia Act 1976 (Cth) s 23 Federal Court Rules 2011 (Cth) rr 21.01, 29.09, 40.03 Judiciary Act 1903 (Cth) ss39B, 78B Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5 Migration Act 1958 (Cth) ss 5(1), 180, 189(1), 196, 196(4), 198(1), 198(2A) 198(2B), 198(5), 198(6), 501(3A), 501CA Legislation: Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Amendment (Duration of Detention) Act 2003 (Cth) Migration Legislation Amendment Act (No 1) 2014 (Cth) Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) Native Title Act 1993 (Cth) Aboriginal Lands Act 1995 (Tas) s 3 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(7) Fisheries Act 1994 (Qld) s 14 Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5

[2]

Akiba v Queensland (No 3) (2010) 204 FCR 1 Alexander v Jansson [2010] NSWCA 176 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43 Bodney v Bennell (2008) 167 FCR 84 Briginshaw v Briginshaw (1938) 60 CLR 336 Burgess v Commonwealth (2020) 276 FCR 548 Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Commonwealth v AJL20 (2021) 273 CLR 43 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 Fejo v Northern Territory (1998) 195 CLR 96 George v Rockett (1990) 170 CLR 104 Gibbs v Capewell (1995) 54 FCR 503 Goldie v The Commonwealth (2002) 117 FCR 566 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2021) 287 FCR 109 Hirama v Minister for Home Affairs [2021] FCA 648 Hobson v Commonwealth of Australia [2022] FCA 418 In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105 Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 Khim v Minister for Immigration (1993) 39 FCR 535 Le as next friend for Lin Yan v Minister for Immigration and Ethnic Affairs [1994] FCA 66 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 521 Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 Mabo v Queensland (No 2) (1992) 175 CLR 1 Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 Cases cited: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 Mann v Carnell (1999) 201 CLR 1 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Ofu-Koloi v The Queen (1956) 96 CLR 172 Osland v Secretary, Dept of Justice (2008) 234 CLR 275 Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 Pochi v Macphee (1982) 151 CLR 101 Quick v Stoland Pty Ltd (1998) 87 FCR 371 Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 Roach v Page (No 11) [2003] NSWSC 907 Ruddock v Taylor (2005) 222 CLR 612 Save the Children Australia v Minister for Home Affairs (2024) 304 FCR 262 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 Shaw v Wolf (1998) 83 FCR 113 SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 Stevenson v Yasso [2006] 2 Qd R 150 Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582 Thoms v Commonwealth (2022) 276 CLR 466 Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 38 Western Australia v Ward (2000) 99 FCR 316

[9]

A. Introduction

This is an application made under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking the issue of a writ of habeas corpus under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) requiring the respondents, the Secretary of the Department of Home Affairs (Department) and the Minister for Home Affairs (Minister), to release the applicant, Samiuela Latu Kapeli, from immigration detention. Mr Kapeli is detained pursuant to ss 189 and 196 of the Migration Act 1958 (Cth) (Migration Act).
Mr Kapeli's application for a writ of habeas corpus is made on two bases. The first is that Mr Kapeli is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian as that expression is used in the majority judgments of the High Court in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love/Thoms). As such, Mr Kapeli is not a person to whom the power of detention in s 189 of the Migration Act is capable of application. The second is that there is no real prospect of the removal of Mr Kapeli from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. In those circumstances, s 189 does not authorise the continued detention of Mr Kapeli, having regard to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ).
In these reasons, the expression "Aboriginal Australian" will be used to refer to the category of persons who are described as Aboriginal Australian in the majority judgments of the High Court in Love/Thoms and who cannot be regarded as aliens within the meaning of s 51(xix) of the Constitution. In that sense, the expression is used to invoke a constitutional meaning and not a vernacular meaning. In using the expression "Aboriginal Australian", I echo the comment made by Mortimer J (as her Honour then was) in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2021) 287 FCR 109 (Helmbright) at [9]: In these reasons, I have used the term "Aboriginal Australian" and "Indigenous" because they are terms used by members of the Court in Love/Thoms. I accept these terms may not be considered appropriate by all, especially by some people who identify as Aboriginal or Torres Strait Islander.
Mr Kapeli was born in Tonga on 20 June 1982 and is a citizen of Tonga. He arrived in Australia on 14 May 2003 as the holder of a special purpose visa. He has resided in Australia since that time. On 6 December 2003, Mr Kapeli married Sarina Kapeli (nee Lever). Sarina Kapeli describes herself as "an Aboriginal woman from the Kuku Yalanji Tribe which is from Far North Queensland, which was also my birth mother's Tribe". On 16 December 2014, Mr Kapeli was granted a permanent Partner (Class BS) (Subclass 801) visa.
On 18 February 2020, following convictions for assault occasioning actual bodily harm, Mr Kapeli's partner visa was mandatorily cancelled under s 501(3A) of the Migration Act (prior cancellation decision). On 29 July 2020, Mr Kapeli was detained in immigration detention. Mr Kapeli made representations in support of the revocation of the prior cancellation decision, including on the basis that he is an Aboriginal person. On 10 August 2022, the Minister decided to revoke the prior cancellation decision and Mr Kapeli was thereupon released from immigration detention.
On 13 May 2024, following a further conviction for assault occasioning actual bodily harm, Mr Kapeli's visa was again mandatorily cancelled under s 501(3A) of the Migration Act (current cancellation decision). On 6 June 2024, Mr Kapeli made representations to the Minister in support of the revocation of the current cancellation decision. However, as at the date of the hearing, no decision had been made on the request for revocation. On 25 June 2024, Mr Kapeli was granted bail from the Cessnock Correctional Centre. On 26 June 2024, Mr Kapeli was detained upon his release from the Cessnock Correctional Centre and was taken into immigration detention at Villawood Immigration Detention Centre.
It is uncontroversial that Mr Kapeli is not an Australian citizen and does not hold a visa and is therefore an unlawful non-citizen within the meaning of the Migration Act.
Mr Kapeli claims to be an Aboriginal Australian because, in his words, he identifies as an Aboriginal man, he has been initiated into the Worimi tribe of the Forster/Tuncurry region of New South Wales, and he is recognised and accepted as Aboriginal by the Worimi tribe, including its elders. It should be noted that Mr Kapeli and each of the Worimi people who gave evidence on behalf of Mr Kapeli in this proceeding refer to themselves as members of the Worimi "tribe".
Angela Wang is the officer of the Department responsible for the decision to detain Mr Kapeli in the purported exercise of the power under s 189(1) of the Migration Act. Ms Wang has given evidence in the proceeding that she is satisfied, on the basis of legal advice received from the Australian Government Solicitor (AGS), that Mr Kapeli does not satisfy the first limb of the "tripartite test" for membership of an Aboriginal group of people stated by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), requiring biological descent from an Aboriginal member of the group, and so is not an Aboriginal Australian. Ms Wang has also given evidence, on the basis of legal advice received from the AGS, that:
she is satisfied that Mr Kapeli meets the second limb of the tripartite test in Mabo (No 2) in that Mr Kapeli identifies as a member of the Worimi tribe in the Forster region of New South Wales; and
although a court may find, on the balance of probabilities, that Mr Kapeli does not meet the third limb of the tripartite test in Mabo (No 2) - recognition of Mr Kapeli's membership of the Worimi tribe by the elders or other persons enjoying traditional authority among those people - it is not open to Ms Wang to reasonably suspect that Mr Kapeli does not meet the third limb.
In the course of oral closing submissions, lead counsel for Mr Kapeli, Mr Albert, expanded the issues for determination in this proceeding. Mr Albert submitted that there were six bases on which the Court should conclude that Mr Kapeli's detention is unlawful. Many of the contentions advanced by Mr Albert in closing submissions had not been clearly raised in written submissions filed before the commencement of the hearing. Both the Court and the respondents heard the contentions for the first time in closing submissions. The approach taken by Mr Albert was procedurally unfair to the respondents and was unhelpful to the Court. The approach should not be repeated. In future cases of this kind, it may be necessary to require the parties to file points of claim so that the issues for determination are clearly defined prior to the commencement of the hearing.
As a result of the large number of issues and arguments raised by Mr Albert on behalf of Mr Kapeli, these reasons are lengthier than might have been expected for a case of this nature. Despite that, I have endeavoured to express these reasons with economy, conscious that an application for habeas corpus should be determined promptly.
For the reasons that follow, I conclude that Mr Kapeli's application must be dismissed. Mr Kapeli has never claimed to be biologically descended from Aboriginal people, and there is no evidence before the Court raising any prospect that any of Mr Kapeli's forebears were biologically descended from Aboriginal people. I find Ms Wang's belief that Mr Kapeli is not biologically descended from Aboriginal people to be objectively reasonable. Indeed, I would go further and conclude on the balance of probabilities that Mr Kapeli is not biologically descended from Aboriginal people. In my view, the decision of the High Court in Love/Thoms only excludes from the head of power with respect to aliens in s 51(xix) of the Constitution Aboriginal persons who satisfy the tripartite test in Mabo (No 2), understood as requiring biological descent from Aboriginal people. The reasons of the majority in Love/Thoms do not support a conclusion that persons having the characteristics possessed by Mr Kapeli, being persons who have been welcomed into membership of an Aboriginal community, but who are not biologically descended from Aboriginal people, are thereby outside the meaning of the expression "alien" in s 51(xix) of the Constitution. With respect to NZYQ, the Minister is yet to determine whether to revoke the current cancellation decision. In those circumstances, Mr Kapeli is lawfully detained while his future immigration status is investigated and determined and NZYQ has no application.
In using the expression "Aboriginal" as a proper noun, the Court is conscious that it is an expression that has come to be used to refer to all of the indigenous peoples of the continent of Australia without differentiating between the numerous tribal or clan groups that exist. The use of the expression "Aboriginal" as a proper noun began in the course of European settlement of Australia, but the expression is now used in that sense in many Australian laws that apply generally to the indigenous peoples of Australia, such as the Native Title Act 1993 (Cth) (NTA) (along with the expression Torres Strait Islanders). It is both respectful and relevant to acknowledge, however, that each of the tribal or clan groups of indigenous peoples of Australia had and continue to have their own individual tribal or clan names, and had and frequently continue to have their own individual laws and customs including decision-making processes. As discussed further below, what is now referred to as the "tripartite test" for membership of an Aboriginal group of people stated by Brennan J in Mabo (No 2) recognises that membership relates to individual tribal or clan groups and each limb of the tripartite test references the individual tribal or clan group concerned.
As a final introductory point, it is important to emphasise what this judgment determines and what it does not determine. The judgment concerns the meaning that has been given to the expression "alien" in s 51(xix) of the Constitution by the High Court in Love/Thoms. The judgment does not concern, and accordingly does not determine, the meaning of the expression "Aboriginal" under other Australian laws. Nor does this judgment concern the meaning of the expressions "Aboriginal" or "Aboriginal person" in everyday parlance in Australia. The judgment should not be understood as a criticism or rejection of the evidence given by members of the Worimi people to the effect that they consider Mr Kapeli to be a Worimi man. The judgment reflects a conclusion that the Commonwealth has constitutional power to detain Mr Kapeli under s 189(1) of the Migration Act as an unlawful non-citizen, notwithstanding that members of the Worimi people have formed a close relationship with Mr Kapeli and have accepted him into their community.

[13]

Urgent applications on 20 September 2024

On the evening of 19 September 2023, Mr Kapeli sought an urgent case management hearing for the following day in order to resolve a number of issues that had arisen between the parties. A case management hearing was listed for the following morning.
The first issue was an application by Mr Kapeli for an order requiring the respondents to transport him from the Villawood Detention Centre to Melbourne so that he could be present during the hearing. The application was made partly on the basis that the respondents wished to cross-examine Mr Kapeli, but was also more broadly based on Mr Kapeli's wish to be present in court during the hearing. In so far as the application was made on that broader basis, it was unreasonably delayed by Mr Kapeli. It should have been made at a much earlier point in time. Despite that, at the case management hearing on 20 September 2024, the respondents consented to an order that Mr Kapeli be transferred from Villawood Immigration Detention Centre in order to facilitate his attendance at the final hearing in person on 23 and 24 September 2024.
The second issue was an application by Mr Kapeli for the Court to permit the affidavit evidence of Sarina Kapeli to be adduced in evidence notwithstanding that the respondents required her attendance at the hearing for cross-examination but Sarina Kapeli was unavailable to attend the hearing by reason of a medical procedure scheduled for 24 September 2024. The usual rule of practice and procedure, reflected in r 29.09 of the Federal Court Rules 2011 (Cth) (Rules), is that an affidavit of a witness may not be adduced in evidence in those circumstances. The rule is supported by s 27 of the Evidence Act 1995 (Cth) (Evidence Act) which states that a party may question any witness (except as provided by that Act). The Court may grant dispensation from the rule, but does not do so lightly. As observed by Katzmann J in Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582; 126 ALD 290 (at [35]): … if a party wishes to cross-examine a witness on matters in dispute in the proceeding and gives reasonable notice of its intention to do so, it is an incident of the court's duty to provide a fair trial that, in general, that wish be respected. The right to cross-examine a witness has been described as "a fundamental element of litigation when conducted on affidavits or witness statements, not lightly to be set aside", all the more so when the witness is a party: Alexander v Jansson [2010] NSWCA 176 at [11].
The respondents opposed Mr Kapeli's application but, acting reasonably, proposed a compromise whereby the affidavit would be read subject to the removal of certain controversial paragraphs (those paragraphs would not be read). Mr Kapeli refused the compromise proposed by the respondents. I also gave Mr Kapeli the option of adjourning the hearing, or reconvening the hearing on another day, to enable Sarina Kapeli to attend for cross-examination. Mr Kapeli declined those options. The reason given for that position was that Mr Kapeli is in immigration detention and wished to complete the hearing and obtain the judgment of the Court as soon as possible. Whilst Mr Kapeli's desire for an early hearing was understandable, it was procedurally unfair to the respondents to admit Sarina Kapeli's affidavit in evidence without affording the respondents an opportunity to cross-examine her. The decision for the Court in those circumstances was either to refuse to admit Sarina Kapeli's affidavit into evidence, or to do so subject to argument about the weight that should be given to the evidence. At the case management hearing on 20 September 2024, I made a ruling that Sarina Kapeli's affidavit would be admitted into evidence subject to arguments about weight. I indicated to the parties that the respondents' inability to cross-examine would materially affect the weight that the Court gives to controversial evidence.
The third issue was an application by Mr Kapeli for an order that the respondents produce any notes of a conference attended by Angela Wang with counsel for the respondents on 13 September 2024. I refused to make that order at the case management hearing on 20 September 2024. The reason for refusing the application can be briefly stated as follows.
Ms Wang is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189 of the Migration Act. In her second affidavit affirmed on 13 September 2024, Ms Wang referred to additional information she had received since her first affidavit, including an updated legal advice from the AGS with respect to the application of the decision in Love/Thoms to Mr Kapeli's circumstances. Ms Wang stated that, in forming an opinion for the purposes of s 189 of the Migration Act, she had relied on the additional information and the AGS advice. A copy of the AGS advice was annexed to the affidavit and legal professional privilege in the advice was necessarily waived.
In addition to the AGS advice, Ms Wang's affidavit also annexed an email dated 12 September 2024 by which she received that advice and an email dated 13 September 2024 that she sent in response. Each of those emails made passing reference to a conference that was scheduled to be held on 13 September 2024 between Ms Wang and counsel for the respondents. Mr Kapeli sought production of any notes of that conference.
The respondents informed Mr Kapeli and the Court that the respondents held a single document recording notes of the conference, but the respondents refused production on the basis of legal professional privilege. Mr Kapeli did not contest that the notes of the conference were privileged, but argued that privilege in the notes of the conference had been (impliedly) waived by Ms Wang having produced the AGS advice.
The test for implied waiver of privilege is well known. A court will impute an intention to waive privilege where the actions of a party are inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: see Mann v Carnell (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [45] (Gleeson CJ, Gummow, Heydon and Kiefel JJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
In her affidavit, Ms Wang does not refer to the conference she attended with counsel on 13 September 2024, beyond the passing reference described above. Ms Wang deposed that, in forming her opinion with respect to the detention of Mr Kapeli under s 189, she relied on the AGS advice. Ms Wang does not state, and there is nothing in her evidence to suggest, that she relied on information or advice received at the conference with counsel on 13 September 2024. In the circumstances, Mr Kapeli's submission that Ms Wang had waived privilege in the note of the conference with counsel had no basis whatsoever.

[14]

Adjournment of the hearing listed for 23 and 24 September 2024

On the evening of Friday 20 September 2024, the solicitors for the respondents informed the solicitors for Mr Kapeli that the respondents believed that Mr Kapeli had an "infectious ailment" preventing him from being cleared to travel to Melbourne in compliance with the Court's order made earlier that day. In correspondence, it was explained that Mr Kapeli was under investigation for a diagnosis of active tuberculosis. Further correspondence between the solicitors occurred over the weekend. The parties ultimately sought an order by consent vacating the Court's earlier order requiring Mr Kapeli to be transported to Melbourne, and that order was made on the morning of 23 September 2024.
At the commencement of the hearing on 23 September 2024, lead counsel for Mr Kapeli, Mr Albert, informed the Court that there was uncertainty with respect to Mr Kapeli's medical condition, resulting in uncertainty with respect to future travel arrangements for Mr Kapeli. Mr Albert submitted that he was ready to proceed with the hearing, but he wished to seek instructions from Mr Kapeli about an application for an adjournment of the hearing. However, Mr Albert considered that he could not advise Mr Kapeli, and obtain instructions, until Mr Kapeli's ability to travel in the coming days or weeks was known. The basis of any application for an adjournment would be that, first, Mr Kapeli wished to give his evidence, by way of cross-examination and re-examination, in person, and Mr Kapeli considered that the presentation of his case would be prejudiced if he were required to give his evidence by means of audio-visual facilities, and second, that Mr Kapeli wished to be present during the hearing of his case. However, if the medical diagnosis was such that Mr Kapeli could not travel for many weeks, the application for an adjournment would likely not be pressed.
To that end, Mr Kapeli made an application for an order under r 21.01 of the Rules that the respondents provide written answers to the following interrogatories:
When is the final result from the culture samples for tuberculosis in relation to the applicant, taken on 3 August 2024, expected by the respondents to be provided to the applicant?
If a negative result is returned, how long after this do the respondents expect the applicant will be deemed to be fit to travel?
If a positive result is returned, how long after this do the respondents expect it will take for the applicant to be fit to travel?
Mr Kapeli submitted that the order for interrogatories was also sought on the basis that the answers were relevant to his application based on the principles stated in NZYQ because Mr Kapeli's medical condition may reveal that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
The respondents opposed the application for interrogatories, submitting that they would endeavour to provide updated information to Mr Kapeli's lawyers as soon as possible. The respondents also submitted that, in so far as Mr Kapeli's application for interrogatories was based on NZYQ, the application was misconceived. The Minister had not yet made a decision with respect to Mr Kapeli's request for the cancellation of his visa to be revoked and, accordingly, Mr Kapeli was not being detained for the purpose of removal from Australia but was being detained for the purpose of his visa status being considered. The respondents also informed the Court that they had offered to Mr Kapeli that they would not oppose an application for an adjournment on account of Mr Kapeli's medical condition, but otherwise the respondents were ready to proceed.
I refused the application for interrogatories for the reason that I was not satisfied that there was a sufficient basis for such an order. The proceeding was adjourned until 2.15pm, however, to provide the respondents with further time to obtain updated information about Mr Kapeli's medical condition and provide that information to Mr Kapeli.
At the resumption of the hearing at 2.15pm, the Court was informed that the medical test results had come back showing that Mr Kapeli did not have active tuberculosis. In those circumstances, Mr Kapeli sought an adjournment of the hearing until 8 and 9 October 2024, being dates available to the Court and both parties. The basis of the application for an adjournment was that both Mr Kapeli and Sarina Kapeli would then be available to attend Court to give evidence by way of cross-examination and re-examination. Lead counsel for Mr Kapeli, Mr Albert, also placed reliance on the fact that he was unavailable the following day (24 September 2024), although that was known at the time the matter was listed for hearing.
The respondents opposed the adjournment, indicating that Mr Kapeli could be transported to Court for cross-examination on 24 September 2024 and, during the balance of 23 September 2024, cross-examination could proceed with respect to the respondents' witnesses. Counsel for the respondents accepted, however, that the only prejudice to the respondents from an adjournment was costs.
Not without hesitation, I granted the application for an adjournment. The principal reason for granting the adjournment was to enable Mr Kapeli to be present in Court throughout the hearing and to give evidence in person by way of cross-examination and re-examination, and to enable Sarina Kapeli also to attend Court to give evidence in person in the same manner. Those considerations assumed more significance in this proceeding than they might otherwise have by reason of the nature of the proceeding, being an application for a writ of habeas corpus requiring the respondents to release Mr Kapeli from immigration detention. I reserved the costs occasioned by the adjournment. The effect of that order is that, if no further order is made, costs follow the event (see r 40.03 of the Rules).

[18]

General principles

This Court has jurisdiction under s 39B of the Judiciary Act to determine whether Mr Kapeli is lawfully detained under the Migration Act: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 (McHugh) at [18] - [19] (Allsop CJ) and [74] (Besanko J). The Court has power under s 23 of the FCA Act to issue a writ of habeas corpus and to make an order requiring Mr Kapeli to be released from detention if his detention is unlawful: McHugh at [20] (Allsop CJ), [75] (Besanko J) and [190] (Mortimer J); Save the Children Australia v Minister for Home Affairs (2024) 304 FCR 262 at [33].
An application for habeas corpus is directed to the lawfulness of the detention of the applicant at the time of the hearing of the application for the writ: McHugh at [288] per Mortimer J, Allsop CJ and Besanko J agreeing at [2] and [76] respectively.
An applicant seeking a writ of habeas corpus has an initial evidentiary burden of establishing that there is a reason to suppose that their detention is unlawful: Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ); McHugh at [60] (Allsop CJ), [92] (Besanko J) and [273] (Mortimer J). Once the applicant's initial evidentiary burden has been met, the burden then shifts to the detaining party to show that, on the balance of probabilities, the applicant's detention is lawful: McHugh at [56], [61] (Allsop CJ), [90], [96] (Besanko J) and [294] (Mortimer J).
In accordance with s 140 of the Evidence Act, the Court is required to take into account the nature and gravity of the subject-matter of the proceeding (the deprivation of the applicant's liberty by the Executive) in deciding whether it is satisfied on the balance of probabilities that the detention is lawful: McHugh at [294] (Mortimer J). It has often been said in this context that the evidence should be clear and cogent: McHugh at [57] (Allsop CJ). That is not, however, to introduce some intermediate burden of proof between balance of probabilities and beyond reasonable doubt. It is only to require that the nature and quality of the evidence adduced in proof of particular facts be weighed having regard to the seriousness of the subject-matter of the proceeding: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 at 450 (Mason CJ, Brennan, Deane and Gaudron JJ).
Mr Kapeli has been detained pursuant to the purported exercise of power under s 189(1) of the Migration Act. The principal question that arises in this proceeding is whether Mr Kapeli's detention under s 189(1) is lawful. Section 189(1) provides as follows: If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
It can be seen that s 189(1) is directed not only to cases where an officer knows that a person is an unlawful non-citizen, but extends to cases where the officer reasonably suspects that a person has that status: Ruddock v Taylor (2005) 222 CLR 612 (Ruddock) at [27] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms v Commonwealth (2022) 276 CLR 466 (Thoms No 2) at [29] (Kiefel CJ, Keane and Gleeson JJ). A reasonable suspicion is something substantially less than certainty: Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie v The Commonwealth (2002) 117 FCR 566 (Goldie) at [4]-[5] (Gray and Lee JJ). It requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112. The reasonableness of the officer's suspicion is assessed objectively, in the sense that the officer's suspicion must be "justifiable upon objective examination of relevant material": Thoms No 2 at [58] (Gordon and Edelman JJ), quoting Goldie at [4]-[5] (Gray and Lee JJ). The reasonableness of the officer's suspicion is assessed by reference to what is known, or reasonably capable of being known, at the time of detention: Ruddock at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Thoms No 2 at [41] (Kiefel CJ, Keane and Gleeson JJ) and [49] (Gordon and Edelman JJ).
What is capable of being known at the time of detention includes the state of the law: Thoms No 2 at [44] (Kiefel CJ, Keane and Gleeson JJ), [82]-[83] (Gordon and Edelman JJ). In reaching an understanding of what the law is, the officer may receive legal advice. In such a case, the officer is not required to question or second guess the advice given to them unless "it is clear the advice is objectively and obviously defective, such that a non-legally trained person such as a detaining officer could reasonably be expected to see the fault in the advice": Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 at [59] (Mortimer J) (an appeal against that decision, on different grounds, was dismissed: (2023) 300 FCR 106). A subsequent change in the law will not affect the reasonableness of the suspicion prior to the change in the law: Thoms No 2 at [43] (Kiefel CJ, Keane and Gleeson JJ) and [58] and [83] (Gordon and Edelman JJ).
An "unlawful non-citizen" is defined in s 5(1) of the Migration Act to mean a person who is not an Australian citizen and does not hold a visa. In the present case, it is not in dispute that Mr Kapeli is not an Australian citizen and does not hold a visa. As identified earlier in these reasons, Mr Kapeli claims that his detention is unlawful, first, on the basis of the principles stated by the High Court in Love/Thoms and, second, on the basis of the principles stated by the High Court in NZYQ. Those principles, and their interaction with the power of detention in s 189(1), are explained in the following paragraphs.

[19]

The principles stated by the High Court in Love/Thoms

Section 189 of the Migration Act was enacted by the Federal Parliament pursuant to the power conferred by s 51(xix) of the Constitution to make laws with respect to "aliens". The decision in Love/Thoms concerns the limits of that power, and specifically whether that power applies to Aboriginal persons who are not Australian citizens, were born overseas and are citizens of a foreign country (those being the characteristics of the plaintiffs in that case): Kiefel CJ at [1] and [4], Bell J at [49], Gageler J (as his Honour then was) at [112] and [126], Keane J at [142]-[145], Nettle J at [241], Gordon J at [294] and [331] and Edelman J at [391]. The majority (Bell, Nettle, Gordon and Edelman JJ) found, in four separate judgments with differing reasons, that Aboriginal Australians, understood according to the tripartite test stated in Mabo (No 2), are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution: Bell J at [81], speaking on behalf of the majority.
The tripartite test stated in Mabo (No 2) is a reference to that part of the judgment of Brennan J in which his Honour summarised the common law of Australia with respect to native title, including the identification of persons entitled to native title. His Honour stated (at 70, emphasis added):
Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
Unless the context indicates to the contrary, references in these reasons to the "tripartite test" are a reference to the above bolded passage from the judgement of Brennan J in Mabo (No 2).
The principal point of controversy in the present case is the application of the first limb of the tripartite test, biological descent from indigenous people, to Mr Kapeli.
Applying s 15A of the Acts Interpretation Act 1901 (Cth), the effect of the decision in Love/Thoms is that the Migration Act generally, and s 189 specifically, must be read and construed subject to that constitutional limit. In other words, s 189 must be disapplied in so far as it purports to apply to Aboriginal people (understood according to the tripartite test): Love/Thoms at [285] (Nettle J), [293] (Gordon J) and [398] (Edelman J).
The manner and extent of the disapplication of s 189 to Aboriginal people was subsequently considered in Thoms No 2. There, the High Court unanimously concluded that s 189(1) validly empowered an officer to detain a person in immigration detention where the officer reasonably suspects that the person is an unlawful non-citizen and is not an Aboriginal person, even if the true facts are that they are an Aboriginal person within the tripartite test. The High Court concluded that, providing the requisite suspicion is held by the officer, s 189(1) can validly apply because, in those circumstances, there will be a sufficient connection with the aliens power in s 51(xix) of the Constitution: Thoms No 2 at [31] and [37] (Kiefel CJ, Keane and Gleeson JJ, Gageler and Steward JJ agreeing) and [64] and [67] (Gordon and Edelman JJ). Conversely, where circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that a person is not an alien (relevantly here, because they are an Aboriginal person within the tripartite test), s 189(1) would not validly empower the officer to detain the person: at [74] and [77] (Gordon and Edelman JJ).
Thus, the principal question that arises in this proceeding is whether circumstances (whether of fact or law) exist which would indicate to the mind of a reasonable officer that Mr Kapeli is not an alien within the principles stated in Love/Thoms.

[20]

The principles stated by the High Court in NZYQ

The duration of a person's detention under s 189 is governed by s 196. Relevantly, s 196(1) stipulates that an unlawful non‑citizen detained under s 189 must be kept in immigration detention until, amongst other things, he or she is removed from Australia under s 198 or s 199, is deported under s 200, or is granted a visa.
Section 198 concerns the removal from Australia of unlawful non-citizens. Relevantly with respect to the facts in NZYQ, s 198(1) stipulates that an officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed. Section 198(6) provides as follows: An officer must remove as soon as reasonably practicable an unlawful non‑citizen if: (a) the non‑citizen is a detainee; and (b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
In NZYQ, the High Court unanimously re-affirmed the following constitutional principle stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 33 concerning the validity, under Ch III of the Constitution, of a law authorising the detention of an alien: In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.
The High Court in NZYQ framed the principle in Lim in the following manner (at [39]): Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. In other words, detention is penal or punitive unless justified as otherwise.
The High Court concluded that the continuing detention under ss 189 and 196 of the Migration Act of an alien who is required to be removed from Australia under s 198 is contrary to Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future: at [44]-[45] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) and [54] (Edelman J).
The High Court decision in NZYQ concerned a person (the plaintiff) in immigration detention whose visa application had been finally determined such that a duty was imposed on officers of the Department by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable (at [4]). Additionally, the plaintiff wrote to the Minister requesting his removal, which engaged another duty imposed on officers by s 198(1) to remove the plaintiff from Australia. The plaintiff was a stateless Rohingya Muslim who was born in Myanmar. A delegate had determined that the plaintiff had a well-founded fear of persecution in Myanmar (at [3]), with the result that the Migration Act did not authorise his removal to Myanmar and there was no real prospect of him being provided with a right to enter or reside in another country (at [5]).
The purpose for which an alien may be detained under ss 189 and 196 is not limited to the removal of the person from Australia. It is also a legitimate and non-punitive purpose of detention to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined: NZYQ at [48]; see also Commonwealth v AJL20 (2021) 273 CLR 43 at [24]-[28] (Kiefel CJ, Gageler, Keane and Steward JJ) and Thoms No 2 at [39] (Kiefel CJ, Keane and Gleeson JJ) and [57] (Gordon and Edelman JJ).

[21]

Affidavits relied upon

Mr Kapeli's summons dated 8 August 2024 was supported by an affidavit affirmed by James Clarke on 7 August 2024. As noted earlier, Mr Clarke is a solicitor employed by Gadens, the solicitors for Mr Kapeli in this proceeding.
On 16 August 2024, I made timetabling orders for the filing of evidence in the form of affidavits. Recognising that Mr Kapeli bears an initial evidentiary burden of establishing that there is a reason to suppose that his detention is unlawful, the orders required Mr Kapeli to file evidence first. The orders then provided for the filing of evidence in chief by the respondents, for the filing of responsive evidence by Mr Kapeli, and for the filing of reply evidence by the respondents.
Mr Kapeli initially filed the following two affidavits:
An affidavit affirmed by Mr Kapeli on 20 August 2024, to which was annexed an earlier affidavit of Mr Kapeli affirmed on 2 August 2022 which was prepared in support of Mr Kapeli's application for revocation of the prior cancellation decision. Mr Kapeli's affidavit dated 2 August 2022 annexed a statement dated 13 April 2022.
An affidavit affirmed by Michelle Donnelly on 20 August 2024, to which was annexed an affidavit of Michelle Donnelly affirmed on 1 August 2022 which was prepared in support of Mr Kapeli's application for revocation of the prior cancellation decision. Michelle Donnelly is 62 years old and has lived in Forster, New South Wales, for over 40 years. She describes herself as a Bundjalung-Worimi Aboriginal woman and a Worimi elder. Michelle Donnelly's father was Bundjalung and her mother was Worimi.
The respondents filed the following two affidavits being their proposed evidence in chief:
An affidavit affirmed by Angela Wang on 27 August 2024. Ms Wang is an employee of the Department and is currently employed as a Status Resolution Officer (SRO) within the Department's Status Resolution and Visa Cancellation Division. Ms Wang is the SRO assigned responsibility for Mr Kapeli, and is the officer of the Department responsible for the decision to detain Mr Kapeli under s 189. Ms Wang deposed that she is satisfied that Mr Kapeli is not an Australian citizen, does not hold a visa, and is therefore an unlawful non-citizen and that Mr Kapeli does not satisfy the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court's decision in Love/Thoms. In reaching that view, Ms Wang relied on legal advice provided to her by the AGS dated 19 August 2024.
An affidavit affirmed by Christopher James Montgomery on 27 August 2024. Mr Montgomery is currently employed as a Senior Legal Officer within the Department's Migration and Citizenship Litigation Branch.
Mr Kapeli filed the following further affidavits by way of responsive evidence:
A further affidavit sworn by Mr Kapeli on 2 September 2024.
A further affidavit affirmed by Michelle Donnelly on 2 September 2024.
An affidavit sworn by Sarina Kapeli on 2 September 2024. Sarina Kapeli has been married to Mr Kapeli for 21 years. She describes herself as an Aboriginal woman from the Kuku Yalanji tribe which is from Far-North Queensland, and which was also her birth mother's tribe.
An affidavit affirmed by Desmond Donnelly on 3 September 2024. Mr Donnelly is the son of Michelle Donnelly. He is 43 years old and lives in Forster, New South Wales. He describes himself as an Aboriginal man of the Worimi tribe from the Forster-Tuncurry region.
An affidavit sworn by Percy Simon on 2 September 2024. Percy Simon is 76 years old and lives in Forster, New South Wales. His mother was Worimi but he is not sure if his father was Worimi. He describes himself as a Worimi elder and deposed that he has traditional authority to make decisions about "our people" which authority has been passed down to him and others (including Michelle Donnelly) through elders now gone and that he is the oldest elder in Forster.
An affidavit affirmed by Desmond Simon on 2 September 2024, to which was annexed an earlier affidavit of Mr Simon affirmed on 29 July 2022 which was prepared in support of Mr Kapeli's application for revocation of the prior cancellation decision. Desmond Simon is 70 years old and has lived in Forster, New South Wales, most of his life. Both his father and mother were Worimi. He deposed that he is accepted as an elder in the Worimi community and that he has traditional knowledge and authority to make decisions for "my people".
An affidavit affirmed by James Clarke on 3 September 2024. By his affidavit, Mr Clarke sought to adduce in evidence a number of publications containing historical and ethnographic descriptions of the Aboriginal people in the Port Stephens and Hunter Valley areas in New South Wales and of the "Worimi Tribe".
The respondents filed the following two affidavits by way of reply to Mr Kapeli's responsive evidence:
An affidavit affirmed by Mary Margaret Baras-Miller on 12 September 2024. Ms Baras-Miller is a lawyer at the AGS. Ms Baras-Miller deposed to information she obtained from the Services Australia Medicare Branch.
A further affidavit affirmed by Angela Wang on 13 September 2024. In that affidavit, Ms Wang deposed to receiving and considering the seven further affidavits filed by Mr Kapeli in the proceeding, the affidavit of Ms Baras-Miller and further advice provided by the AGS dated 12 September 2024. Ms Wang deposed that she continues to be satisfied that Mr Kapeli does not meet the first limb of the tripartite test (Aboriginal descent) and so is not an Australian Aboriginal within the meaning of High Court's decision in Love/Thoms.
Mr Kapeli filed two further affidavits on 20 September 2024, outside the timetable set by the Court. The first was the affidavit of James Clarke affirmed that day which was referred to earlier in these reasons. That affidavit concerned the s 78B notices that had been given to the Attorneys-General and was uncontroversial. The second was a further affidavit of Mr Kapeli sworn that day. That affidavit concerned a medical episode experienced by Mr Kapeli on the evening of 26 June 2024 which resulted in him being taken to hospital in an ambulance. The respondents took no objection to the late filing of the further affidavit from Mr Kapeli.

[23]

Objections to Mr Kapeli's evidence

The respondents objected to a relatively small number of passages in Mr Kapeli's evidence largely on the grounds of hearsay (under s 59 of the Evidence Act) and opinion (under s 76 of the Evidence Act). Ultimately, Mr Kapeli did not dispute that the passages were inadmissible under those exclusionary rules. However, Mr Kapeli submitted, and the respondents agreed, that the objectionable passages were admissible under ss 60 and 77 of the Evidence Act because they were relevant for a purpose other than proof of the facts asserted or expressed in the evidence. The relevance of the evidence lay in the fact that Ms Wang had taken into account Mr Kapeli's evidence (including the objectionable passages) in making her decision about the ongoing detention of Mr Kapeli under s 189 of the Migration Act. I accepted that the evidence is relevant to the Court's assessment of whether Ms Wang's suspicion that Mr Kapeli was an unlawful non-citizen and was an alien (not being an Aboriginal Australian) was reasonable and is therefore admissible under ss 60 and 77 of the Evidence Act.
The effect of admitting evidence under ss 60 and 77 of the Evidence Act is that the evidence is admitted for all purposes, including as proof of the facts asserted or expressed in the evidence. The respondents sought a ruling from the Court under s 136 of the Evidence Act limiting the use to be made of the objectionable passages on the ground that there is a danger that using the evidence in proof of the facts asserted or expressed in the objectionable passages might be unfairly prejudicial to the respondents or be misleading or confusing. Mr Kapeli resisted that ruling. In my view, the present case is an exemplar of the circumstances in which it is appropriate to make a ruling under s 136 of the Evidence Act. I ruled that the use to be made of all of the objectional passages is limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act. The reasons for that ruling are as follows.
Sections 60 and 77 were enacted in their present form by the Evidence Amendment Act 2008 (Cth), implementing recommendations made in the Report on the Uniform Evidence Law published by the Australian Law Reform Commission, the NSW Law Reform Commission and the Victorian Law Reform Commission in December 2005 (ALRC 102). ALRC 102 recognised that evidence admitted under s 60 (and s 77) would remain subject to discretionary exclusion under ss 135 and 136, stating (at [7.65]): The intention of s 60 was to enable evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the facts asserted in the representation, and to do so whether or not the evidence is first-hand or more remote hearsay, subject to the controls provided by ss 135-137.
The discretionary power to limit the use of admissible evidence in s 136 is stated as follows: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing.
In Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; 224 ALR 317 (Seven Network No 8), Sackville J observed (at [16]) that, under s 136, the Court does not have to be satisfied that a particular use of evidence will be unfairly prejudicial; the court need only be satisfied that there is a danger that a particular use of evidence might be unfairly prejudicial.
In Quick v Stoland Pty Ltd (1998) 87 FCR 371, the Full Federal Court considered whether a use limitation should be made under s 136 in respect of hearsay material that formed a basis for expert opinion. Branson J observed (at 377-8) that, in cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 by exercising the discretion in s 136. Finkelstein J said (at 382) that, where the hearsay involves facts that are in conflict or facts that are unreliable, it is quite unsatisfactory for those facts to be proved by the operation of s 60, and that one way in which this problem can be overcome is by an order under s 136.
In a passage that has been referred to and applied on many occasions, Sperling J in Roach v Page (No 11) [2003] NSWSC 907 listed a number of considerations that are relevant to an assessment of the danger that a particular use of evidence might be unfairly prejudicial to a party (at [74]): Having regard to the terms and context of ss 135, 136 and 137 and the case law to which I have referred, I set out my view of considerations relevant to "unfair prejudice" as follows. (a) To say that any prejudice must be unfair prejudice is to state the obvious. (b) The phrase "unfair prejudice" is not defined. The legislature imposed no restriction on the criteria for unfairness. (c) The exceptions to the hearsay rule evince a legislative intention to allow evidence notwithstanding its hearsay character. But ss 135, 136 and 137 evince a legislative intention to allow any evidence, otherwise admissible, to be rejected or its use to be limited if the conditions specified in those sections are met. (d) Where hearsay evidence is made admissible by an exception to the hearsay rule it would be wrong to exclude it or to limit its use merely because it is hearsay and therefore of inherently less reliable quality. That would be to frustrate the intention of the legislature in making hearsay evidence admissible where it is covered by an exception to the hearsay rule. But that is not the same as saying that there is scope for the application of ss 135, 136 and 137 in relation to hearsay evidence which is covered by such a statutory exception but where there is some additional factor, for example, where the maker of the representation is not to be called. (e) Inability to test the truth of the representation is a legitimate ground for rejecting or limiting the use of evidence which is covered by an exception to the hearsay rule. Thus, whether the maker of the representation will be called as a witness is a relevant consideration. (f) However, where hearsay evidence is admissible under an exception to the hearsay rule because of the unavailability of the maker of the representation, there is a special reason for not disallowing the evidence or limiting its use on the ground that the evidence cannot be tested by cross-examination. That is because the legislature has made the evidence admissible notwithstanding that consideration. (g) Conversely, where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice. (h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party's case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness. (i) Where ss 60 or 77 operate and the author of the document is not called, the truth of facts stated or the efficacy of the opinion expressed cannot be tested by cross-examination. The consequence of the operation of ss 60 or 77 is then potentially the more unfair on that account. (j) The operation of s60 on assumption evidence which is given as the basis for an expert opinion is also a special case. Where such evidence is in the form of a bare statement of facts or where facts are stated as having been provided by some other person or persons, s60 operates to make the account evidence of the truth of the facts so stated. That is not so if the expert says that certain facts are assumed for the purpose of providing the opinion. A disadvantage should not be incurred in legal proceedings by happenstance. If the facts stated are contentious, it will ordinarily be unfair that the opposite party is fixed with assumption evidence as evidence of the truth of the facts stated by reason of those facts having been stated in one form rather than the other.
The passages of Mr Kapeli's evidence to which objection was taken by the respondents frequently involved conclusory assertions containing a mixture of hearsay and opinion. By way of illustration, Mr Kapeli deposed that: "My Elders say I am Aboriginal and that they have culturally accepted me". That evidence is hearsay because it concerns the statements and opinions of others. It also suffers from being a vague conclusory statement that unidentified "Elders" have "culturally accepted" Mr Kapeli.
As another illustration, Michelle Donnelly deposed that: In around 2008, Samiuela was initiated into and accepted by our Aboriginal Worimi community during a ceremony. In our culture this ceremony is men's business so I wasn't there, but I was told about it.
Again, the evidence is inadmissible hearsay. Michelle Donnelly did not identify who told her that information, and no application was made to adduce the hearsay evidence under ss 63 or 64 of the Evidence Act.
In his affidavit affirmed 3 September 2024, Mr Clarke annexed the following extracts from the following publications:
pages 2-13 and 24-29 of The Port Stephens Blacks: Recollections of William Scott by Gordon Bennett;
pages 12-21 of The Earliest Inhabitants: Aboriginal Tribes of Dungog, Port Stephens and Gresford by Gordon Bennett;
an article titled Further Notes on the Worimi by W.J. Enright from the August 1933 edition of the publication Mankind;
an article titled The Worimi Tribe by W.J. Enright, published in a 1936 edition of the Newcastle and Hunter District Historical Society Journal and Proceedings;
a chapter of Dr Helen Brayshaw's thesis, titled Some Aspects of the Material Culture of the Aborigines of the Hunter Valley at the Time of First White Settlement in the Area;
an article titled The Keeparra Ceremony of Initiation by R.H. Mathews from an 1896 edition of the Journal of the Anthropological Institute through the University of Newcastle's Living Histories page;
pages 1-23 of The Rainbow Beach Man: The Life and Times of Les Ridgeway, Worimi Elder by John Ramsland.
Mr Clarke deposed that he had observed that the authors of those publications had made comments in relation to initiation ceremonies of the Worimi people and Mr Clarke then reproduced passages from the above publications reflecting his "observations". As noted above, Mr Clarke is Mr Kapeli's solicitor. He does not depose that he has any qualifications as an anthropologist or has any specialised knowledge based on his training, study or experience that would qualify him to express any opinion about the initiation ceremonies of the Worimi people either historically or in current times. Accordingly, Mr Clarke's "observations" are inadmissible opinion. It also follows that the publications annexed to his affidavit, which are hearsay documents, are not admissible as basis material for an admissible opinion pursuant to s 60 of the Evidence Act: see Bodney v Bennell (2008) 167 FCR 84 at [92]-[93] and the authorities referred to in Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 at [37]-[41]. No application was made to adduce the publications under s 63 of the Evidence Act.
Although the objectionable passages of Mr Kapeli's evidence are inadmissible hearsay or opinion in this proceeding, they are nevertheless relevant material to be considered by the detaining officer, Ms Wang, in forming or maintaining the required suspicion under s 189 of the Migration Act. The objectionable passages were therefore necessarily considered by Ms Wang and, in her affidavits, Ms Wang deposed that she had taken all of Mr Kapeli's evidence into account in forming her opinion for the purposes of s 189 of the Migration Act. It necessarily follows that all of Mr Kapeli's evidence, including the objectionable passages, is relevant to a consideration of the basis on which Ms Wang formed her opinion and whether the suspicion held by Ms Wang was objectively reasonable. All of the evidence is therefore admissible under ss 60 or 77 for that non-hearsay purpose - not to prove (in this proceeding) the truth of the facts asserted or expressed in the evidence.
It is a circumstance of proceedings of this nature that all of the evidence adduced on behalf of an applicant - including evidence that is inadmissible because it is hearsay, or unqualified opinion, or vague and conclusory in form - must be considered by a detaining officer and therefore becomes admissible under ss 60 and 77 of the Evidence Act. In my view, it is unfairly prejudicial to the respondent if the applicant is permitted to use such evidence as proof of the facts asserted or expressed in the evidence. By definition, hearsay evidence cannot be tested because the person who made the previous representation is unavailable to be cross-examined. It is also unfair to a party to require them to cross-examine a deponent in respect of unqualified opinions and vague and conclusory evidence.
In a number of cases, courts have observed that the danger that a particular use of evidence might be unfairly prejudicial to a party is less acute in a trial before a judge rather than a jury, because a judge can address the unfair prejudice by giving the objectionable evidence little weight. In Seven Network (No 8), Sackville J stated (at [21]): I agree … that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the court to make a direction limiting the use of otherwise admissible evidence.
In the present case, I consider that the threshold requirements for limiting the use of the objectionable passages from Mr Kapeli's evidence are satisfied in that there is a danger that using the evidence in proof of the facts asserted or expressed in those passages might be unfairly prejudicial to the respondents. I accept that the unfair prejudice might be ameliorated by assigning the evidence little (if any) weight having regard to its character. It might be questioned whether the practical result of either approach differs (that is, limiting the use to be made of the evidence or assigning it little weight). In my view, having regard to the character of the evidence and the circumstances in which it is being admitted, this is an appropriate case in which the use of the objectionable passages should be limited to evidence of the information taken into account by Ms Wang in making a decision under s 189(1) of the Migration Act.

[26]

Samiuela Kapeli

The respondents submitted that Mr Kapeli gave untruthful answers to certain questions and was evasive in answering certain questions. I accept that submission. I formed the impression from the answers given by Mr Kapeli, and the manner in which he gave the answers, that Mr Kapeli wished to avoid providing information about his Tongan ancestry because he believed that such information would be harmful to his claim that he is an Aboriginal Australian. Mr Kapeli did not claim to have Aboriginal biological ancestry, but frequently asserted that he does not know his ancestry and therefore does not know whether he has Aboriginal biological ancestry.
As discussed further below, it is uncontroversial that Mr Kapeli was born in Tonga and was adopted and raised from infancy by his great aunt (the sister of his grandfather on his father's side), Pisila Taulupe, and her husband, Tangaki Taulupe Latu. He deposed that he did not know his biological parents and was not challenged on that evidence. At the beginning of his cross-examination, however, Mr Kapeli was asked whether he knew the names of his biological mother and father and the country in which each of them were born. He answered "no" to each of those questions. A little later, he was pressed further and the following exchange occurred: And sitting there as you are now, you've got no recollection of your parents' names? This is the hardest part of my life. I've never been told, I've never been asked. With all my life - I'm 41 years old. I would love to know, but the hardest part is they abandoned me, for two weeks old. It has broken my heart. Okay. No. And have you ever tried to find out their names? No.
I find that those answers were untruthful. The names of Mr Kapeli's biological parents and the country and town in which they were born are recorded in a number of documents associated with Mr Kapeli's migration to Australia and which originate from Mr Kapeli.
The first document is Mr Kapeli's New South Wales marriage certificate. Although the copy of the marriage certificate in evidence is a certified copy dated 10 August 2005, the marriage date is recorded by the New South Wales Registry of Births, Deaths and Marriages as 12 December 2003 and the registration number is 29921/2003. I infer that the information contained in the certificate was therefore recorded on the register in 2003. The marriage certificate records the name of Mr Kapeli's father as Sione Tuifio Aloua and the name of his mother as Folau Kapeli. That information could only have been provided by Mr Kapeli to the New South Wales Registry.
The second document is a certified copy of the "particulars contained in the Birth Register for the District of Tongatapu for the year 1982", containing Mr Kapeli's registered birth details. The document is written in the Tongan language, but also has an English translation, and is titled (in English) "True Copy of Birth Registration". The document is certified by the Registrar of Births, Deaths and Marriages, Tonga, and is dated 29 June 2004. The document (which I will refer to as the Birth Registration Particulars) records the following information concerning Mr Kapeli:
his name at birth is given as Samiuela Iatu Kapeli;
the date of his birth is recorded as 20 June 1982;
the name of his biological father is Tuifio Aloua;
the place of his biological father's birth is Utulei (which is a township in Tonga);
the name of his biological mother is Elenoa Folau Kapeli;
the place of his biological mother's birth is Falevai Vv (which is a township in the Vavua islands in Tonga);
the birth is recorded as "illegitimate" (which I infer indicates that his biological parents were not married); and
the birth was registered by Mr Kapeli's biological parents, although only his biological mother signed the register.
It is apparent that Mr Kapeli was given his mother's surname at birth, which he has retained.
The third document is a migration form (Form 47SP) titled "Application for migration to Australia by a partner" dated 22 June 2005 by which Mr Kapeli applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The application records that Mr Kapeli received assistance from Sarina Kapeli in completing the form, and Mr Kapeli confirmed in evidence that the handwriting on the form is Sarina Kapeli's handwriting. However, Mr Kapeli signed the form declaring the accuracy of the information provided. Mr Kapeli gave evidence that he recalled the application. Significantly, the application records the following information concerning Mr Kapeli's biological family in Tonga:
Mr Kapeli's biological father is recorded as Sione Aloua, his birth date is 11 July 1960, his marital status is "married" and his country of residence is Tonga;
Mr Kapeli's biological mother is recorded as Elenoa Kapeli, her birth date is unknown, her marital status is "married" and her country of residence is Tonga; and
Mr Kapeli's brothers and sisters are recorded as Tangaki Aloua (born in 1990), David Aloua (born in 1992), Kalisitane Aloua (born in 1994), Pisila Aloua (born 1996) and Siosiani Aloua (born 2001) and their country of residence is Tonga.
The application required Mr Kapeli to attach, among other things, his birth certificate and marriage certificate. The Birth Registration Particulars and Mr Kapeli's marriage certificate, referred to above, formed part of his Departmental migration file and I infer they were submitted with the application. In cross-examination, Mr Kapeli confirmed that he completed the application with the information contained on those documents. In respect of the names of Mr Kapeli's brothers and sisters, Mr Kapeli gave evidence that he obtained that information from his adoptive mother, Pisila Taulupe. Mr Kapeli did not explain in evidence where he obtained the information concerning his father's birth date and marital status, nor where he obtained the information concerning his mother's marital status. It seems most likely that he also obtained that information from his adoptive mother.
The fourth document is a further migration form (Form 80) titled "Personal particulars for character assessment" also dated 22 June 2005. Again, the form was completed by Sarina Kapeli but signed by Mr Kapeli declaring the accuracy of the information contained in it. Relevantly, the form records that the place of birth of Mr Kapeli's father (Sione Aloua) is Tonga and the place of birth of Mr Kapeli's mother (Elenoa Kapeli) is Falevai, Tonga.
Prior to the hearing, Mr Kapeli also told Ms Wang that he did not know the names, date of birth or citizenship at birth of his parents. In an email dated 9 July 2024, Ms Wang reports on a telephone conversation she had conducted that day with Mr Kapeli. The email records: I also asked him to provide names, DOB [date of birth] and citizenship at birth of his biological parents, however, Mr Kapeli stated that he has never met them and does not know any of those details about them.
Mr Kapeli did not contest that record of his conversation with Ms Wang.
During cross-examination, Mr Kapeli was shown the documents referred to above and it was put to Mr Kapeli that he knows his biological parents' names and their place of birth. Mr Kapeli's answers were evasive, seeking to draw a distinction between what the Birth Registration Particulars recorded and what he "knew". I do not accept Mr Kapeli's explanation for the answers he gave in cross-examination and that he gave to Ms Wang on 9 July 2024 when he stated that he did not know the names of his biological parents or their place of birth. That is for two reasons. First, Mr Kapeli admitted that he relied on the Birth Registration Particulars in completing his migration forms and that he had no reason to believe that the information in the Birth Registration Particulars was inaccurate. Second, Mr Kapeli admitted that he obtained information about his biological brothers and sisters (which included their names, dates of birth and country of residence) from his adoptive mother, Pisila Taulupe, who was also his father's aunt. It is implausible that Mr Kapeli sought that information from Ms Taulupe but never referred to his biological parents. Further, as noted above, Mr Kapeli also obtained information concerning his father's birth date and marital status and his mother's marital status, the likely source of which was his adoptive mother. I find that Mr Kapeli has known the names of his biological parents and their place of birth since at least 2003.
I conclude that Mr Kapeli was untruthful in the answers he gave in cross-examination and that he gave to Ms Wang on 9 July 2024 when he stated that he did not know the names of his biological parents or their place of birth. I also conclude that the reason that Mr Kapeli was untruthful was because he believed that denying knowledge about his ancestry would assist his case in this proceeding.
The respondents also place reliance on evidence suggesting that, at and around the time that Mr Kapeli was taken into immigration detention on 26 June 2024, Mr Kapeli twice admitted that he was not biologically descended from an Aboriginal or a Torres Strait Islander person. Mr Kapeli contested that evidence. It is necessary to consider the reliability and weight of the evidence.
Mr Kapeli was taken into immigration detention on 26 June 2024. A document titled "Field Operation - Located Person Interview" records details of an interview conducted by an officer of Australian Border Force named Joanne with Mr Kapeli at 7.50 pm that day. The document contains pro forma questions. In a section titled "Aboriginal or Torres Strait Islander Persons", the document contained four questions with pro form answers to be completed by the officer "yes", "no" and "IDK" (which I infer is an abbreviation of "I don't know"). The document recorded the following answers to the following questions:
Do you identify as an Aboriginal or a Torres Strait Islander person? Yes - Member of the Worimi tribe based in Forster - His wife and children are Australian Aboriginal
Are you aware of any blood relatives you may have who are Aboriginal or Torres Strait Islanders persons? If yes, can you provide us with any information you know about your relatives? Yes - His wife and children are Australian Aboriginal (member of the Worimi tribe)
Are you biologically descended from an Aboriginal or a Torres Strait Islander person? If yes, can you provide us with any information you know about your Aboriginal or Torres Strait Islander heritage? No
Have you ever been recognised as an Aboriginal or Torres Strait Islander person by an elder or other person who holds traditional authority, or any Aboriginal corporation? If yes, can you provide evidence? Aboriginal community in Forster. Docs provided by his lawyer
As can be seen, the document recorded that Mr Kapeli answered "no" to the question whether he is biologically descended from an Aboriginal or a Torres Strait Islander person.
In her affidavit affirmed 27 August 2024, Ms Wang deposed that, on 27 June 2024, she became Mr Kapeli's "Status Resolution Officer". At that point, Ms Wang had administrative responsibility for Mr Kapeli, but she was not then assigned responsibility for the lawfulness of his detention. Ms Wang further deposed that, on 27 June 2024, she conducted a "Detention Client Interview" with Mr Kapeli by telephone. During the interview, Mr Kapeli stated that he self-identifies as an Aboriginal Australian. Ms Wang asked Mr Kapeli whether any of his biological parents, grandparents, great grandparents or ancestors before them were Aboriginal or Torres Strait Islander persons, and Mr Kapeli said "no". Ms Wang's evidence is supported by a documentary record of the interview which contains those questions and answers. The document shows that the interview commenced at 10.24 am and was completed at 10.43 am.
In his affidavit dated 2 September 2024, Mr Kapeli denied that he told Ms Wang on 27 June 2024 there is no "Aboriginal ancestry in his genetic family". Mr Kapeli deposed that he has "never known enough about my family history to be able to say anything about who my genetic ancestors are or where I come from genetically". Mr Kapeli deposed that, at the time of the telephone interview with Ms Wang, he had just been let out of hospital with chest pains.
In his subsequent affidavit dated 20 September 2024, Mr Kapeli's evidence about the 27 June 2024 interview altered to some extent. He deposed that he did not remember Ms Wang asking him questions about his Aboriginality or his ancestry on the morning of 27 June 2024. That was because he had been in hospital overnight as a result of chest pains and, at the time of the telephone interview, he was "still feeling the effects of morphine and was feeling muddled from the medical episode, the medication and the lack of sleep". In that affidavit, Mr Kapeli also gave evidence about the interview on 26 June 2024. He deposed that he was released on bail that day and taken to the Villawood Immigration Detention Centre, where he had a conversation with people from the Australian Border Force. He deposed that, while he was speaking to the people from the Australian Border Force, he started to experience chest pains and, about 10 minutes later, an ambulance was called. Mr Kapeli deposed that the ambulance took him to Liverpool Hospital that night and he remained in hospital overnight. Mr Kapeli annexed to his affidavit an "Ambulance Electronic Medical Record" which records that the New South Wales Ambulance service received a call at 8.36 pm, an ambulance was dispatched at 8.41 pm and arrived at the Villawood Detention Centre at 9.00 pm and the ambulance arrived at Liverpool Hospital at 10.13 pm.
I find that, when Mr Kapeli was asked on 26 and 27 June 2024 whether he was biologically descended from an Aboriginal or a Torres Strait Islander person, he answered "no". However, I accept that at the time he gave those answers he may have been feeling unwell, which raises a question about the reliability of the answers he gave. For that reason, I do not rely on the answers he gave. Mr Kapeli's reliability as a witness, though, was further undermined by answers he gave in cross-examination about the interviews conducted on 26 and 27 June 2024. In particular, Mr Kapeli was asked in cross-examination whether he knew why he was asked if he was descended from Aboriginal people, and he answered that he did not. I find that answer to be untruthful. Mr Kapeli has claimed to be an Aboriginal person for immigration purposes since at least 2022, being the previous occasion on which Mr Kapeli's visa was cancelled and he was taken into immigration detention. Mr Kapeli affirmed an affidavit at that time (which was annexed to his 24 August 2024 affidavit) in which he claimed to be an Aboriginal man, whilst stating: "I don't know if I have any biological links to Aboriginal people". The affidavit was prepared with the assistance of lawyers. It is apparent that Mr Kapeli understands that being biologically descended from Aboriginal people may be relevant to his claim to be an Aboriginal person for immigration purposes.
One further aspect of Mr Kapeli's evidence requires comment. Throughout his written and oral evidence, Mr Kapeli repeatedly stated that he does not know much about his genetic ancestry and that it is too emotionally painful to ask his adoptive mother (his great aunt on his father's side) about his family history. I do not accept that evidence. Rather, I find that Mr Kapeli knows some information about his family history, as referred to above, and that Mr Kapeli has otherwise deliberately chosen not to make further enquiries about his family history because he believes that further information will not assist him in his claim to be an Aboriginal Australian for immigration purposes. The reasons for making those findings are as follows.
First, Mr Kapeli was raised in Tonga by his great aunt on his father's side, Pisila Taulupe, and her husband, Tangaki Taulupe. Mr Taulupe died when Mr Kapeli was 7 years old, but Pisila Taulupe is alive and lives in Tonga. It follows that Mr Kapeli was raised within his biological family on his father's side. In his statement dated 13 April 2022 (made while Mr Kapeli was in immigration detention by reason of the prior cancellation decision), Mr Kapeli stated that he came to Australia on 14 May 2003 when he was 19 years old in order to support his adoptive mother (Pisila Taulupe) financially. Mr Kapeli further stated that he continues to support his adoptive mother. I find that Mr Kapeli continues to have a close relationship with Pisila Taulupe.
Second, when Mr Kapeli needed to obtain information about his family history and relations for the purposes of applying for a partner visa to remain in Australia in 2005, he obtained that information from relevant records of the Tongan government and from Pisila Taulupe. That included information about his birth parents, their place of birth and, in the case of his father, his date of birth and their marital status, as well as the names and dates of birth of his brothers and sisters on his father's side.
Third, Mr Kapeli returned to Tonga in around Christmas 2022 with his wife and children to see Pisila Taulupe. That trip followed his release from immigration detention on 10 August 2022 (on which date the Minister decided to revoke the prior cancellation decision). Whilst in immigration detention, Mr Kapeli made representations to the Department that he was an Aboriginal Australian. In his affidavit dated 2 August 2022, Mr Kapeli deposed that he did not know if he had any biological links to Aboriginal people. I find that, at the time that he returned to Tonga in 2022, Mr Kapeli was aware that information concerning his biological ancestry may be relevant to his claim to be an Aboriginal Australian for immigration purposes. I find that Mr Kapeli had the opportunity to make further enquiries about his biological ancestry from his adoptive mother both at that time and since that time.
Fourth, for the reasons given earlier, I consider that Mr Kapeli was untruthful when he gave evidence that he did not know the names and place of birth of his biological parents.
All of the above matters combined persuades me that Mr Kapeli's evidence that it is too emotionally painful to ask Pisila Taulupe or other family members about his family history is a contrivance. I find that Mr Kapeli could readily obtain further information concerning his family history through, at the least, Pisila Taulupe, but he has chosen not to make enquiries.
Overall, I do not consider Mr Kapeli to be a reliable witness. I find that, in certain aspects of his evidence, Mr Kapeli was untruthful and, in certain other aspects, he was evasive. I therefore treat his evidence with caution. I accept, though, the following answers he gave in cross-examination as they are contrary to his interests in the proceeding:
Mr Kapeli is not aware of anyone in his biological family being born in Australia;
no-one in Mr Kapeli's biological family has ever told him that they are descended from Aboriginal people; and
Mr Kapeli does not have a genetic connection with the Worimi tribe.

[29]

Birth Registration Particulars

As noted above, one of the documents in evidence was the Birth Registration Particulars. The document is written in the Tongan language, but has an English translation, and is certified by the Registrar of Births, Deaths and Marriages, Tonga, and is dated 29 June 2004. The document formed part of Mr Kapeli's migration file and was tendered through Mr Montgomery's affidavit without objection. It is apparent from the documentary record and from Mr Kapeli's cross-examination that the document was submitted by Mr Kapeli to the Department in connection with his application for a partner visa in mid-2005, and Mr Kapeli relied on the document when completing the relevant migration forms.
Despite the foregoing, Mr Kapeli submitted that the Court could not rely on the document as proof of the facts asserted in it because any such reliance depended upon making a "presumption of regularity" about the document and "[t]here is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned" (quoting McHugh at [53] (Allsop CJ) and also referring to the reasons of Mortimer J in that decision at [333]).
I reject that submission. The Court is not required to make a presumption of regularity in order to rely on the Birth Registration Particulars as proving the facts stated in the document. The Court need only act in accordance with the ordinary rules of evidence as prescribed by the Evidence Act.
As explained by the author of Cross on Evidence ([1175]), the presumption of regularity is also referred to by its Latin maxim omnia praesumuntur rite esse acta which means all acts are presumed to have been done rightly and regularly. The presumption may apply in a wide range of circumstances, but is frequently concerned with a presumption of due appointment of a public official and capacity to act and the due performance of preconditions to the exercise of power.
By tendering a copy of the Birth Registration Particulars, the respondents are not seeking to prove the due appointment of a public official or the due performance of preconditions to the exercise of power. They are seeking to prove the content of the Birth Register for the District of Tongatapu which is a public document within the meaning of the Evidence Act (being a document that "forms part of the records of the government of a foreign country"). Section 156(1) of the Evidence Act facilitates proof of such documents and relevantly provides as follows: (1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been: (a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or (b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document; is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.
In its Evidence (Interim) report (ALRC Report 26), the Australian Law Reform Commission explained (at Vol 1 para 993) that there is a "mass of legislation providing special and less stringent methods for authenticating public and other documents", but that it is necessary "to include a number of provisions to ensure the availability of methods of proof available in many jurisdictions". Section 156(1) is such a provision.
The copy of the Birth Registration Particulars is a document that purports to be an extract from or summary of a public document, being the Birth Register for the District of Tongatapu, and to have been certified as such an extract or summary by a person who might reasonably be supposed to have custody of the public document, being the Registrar of Births, Deaths and Marriages in Tonga. It follows that, under s 156(1), the copy of the Birth Registration Particulars is presumed, unless the contrary is proved, to be an extract from or summary of the Birth Register.
It is apparent that the copy of the Birth Registration Particulars tendered in evidence is not the original of that document but is a photocopy. Section 48(1)(b) of the Evidence Act permits a party to adduce evidence of a document by tendering a photocopy. No objection was taken to the tender of the copy and, accordingly, no issue concerning the authenticity of the copy arises. That is no doubt because the document originated from Mr Kapeli and was relied on by Mr Kapeli in support of his application for a partner visa in mid-2005.
The copy of the Birth Registration Particulars therefore proves the facts stated in that document, being the particulars of Mr Kapeli's birth and his biological parents, as set out above.
Mr Kapeli argued that there is reason to doubt the veracity of the Birth Registration Particulars by reason of an inconsistency in the documentary record concerning the year of Mr Kapeli's birth. As noted above, the Birth Registration Particulars states that Mr Kapeli was born in 1982. However, Mr Kapeli's marriage certificate gives his birth year as 1983. Mr Kapeli's immigration documents also give his birth year as 1983. I asked Mr Kapeli about the discrepancy during cross-examination. Mr Kapeli answered: I have the birth certificate. I have the same thing at home, and it's 83.
The respondent did not call for production of that document, or press Mr Kapeli further about the issue. Despite that, I consider that the answer is difficult to accept having regard to the following matters:
The Birth Registration Particulars states that it is a true copy of the particulars contained in the Birth register for the District of Tongatapu for the year 1982. Further, the Particulars indicate that Mr Kapeli's birth is recorded in the Register with the number "1011/1982 Vol 2", which further indicates that the particulars are taken from the records in the Register for the year 1982.
During cross-examination, Mr Kapeli repeatedly stated that he relied on the Birth Registration Particulars to complete his migration documents because the Birth Registration Particulars came from the Tongan government. In giving those answers, Mr Kapeli made no reference to possessing a different birth certificate.
Mr Kapeli submitted the Birth Registration Particulars with his migration papers and did not submit another birth certificate.
Another explanation for the discrepancy may be found in the fact that Mr Kapeli's marriage was recorded in the New South Wales Registry of Births, Deaths and Marriages in 2003 (having the registration number 29921/2003). That registration pre-dates the Birth Registration Particulars which is dated 29 June 2004. Accordingly, at the time of registering his marriage, Mr Kapeli recorded his year of birth as 1983. That may have been done in error, or may have been done on the basis of some other document that, likely erroneously, recorded Mr Kapeli's birth year as 1983. It appears that, when Mr Kapeli completed his migration forms in mid-2005, he maintained his year of birth as 1983 notwithstanding that the Birth Registration Particulars shows 1982.
Determining Mr Kapeli's birth year is not relevant to any issue in the proceeding and it is unnecessary to reach a concluded view about that fact. However, I reject Mr Kapeli's submission that the inconsistency between the documents with respect to his birth year is a reason to doubt the veracity of the Birth Registration Particulars and the information contained in that document. I consider the more likely explanation of the inconsistency is that an error was made in recording Mr Kapeli's birth year in his marriage certificate or in some prior document possessed by Mr Kapeli (and which was relied on by him when registering his marriage) but which was not tendered by him in evidence.

[30]

Relevant factual issues in dispute

It is not in dispute in this proceeding that Mr Kapeli is not an Australian citizen and does not hold a visa and is therefore an unlawful non-citizen within the meaning of the Migration Act. The issue in dispute is whether Mr Kapeli is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian.
The relevant factual issues in dispute are largely defined by the evidence given by Ms Wang in support of her decision to detain Mr Kapeli under s 189 of the Migration Act. In her second affidavit affirmed 13 September 2024, Ms Wang deposed that, having read the affidavits filed in the proceeding and the legal advice received from the AGS:
she is not satisfied that Mr Kapeli meets the first limb of the tripartite test for membership of an Aboriginal group of people stated by Brennan J in Mabo (No 2), requiring biological descent from an Aboriginal member of the group, and so is not an Aboriginal Australian within the meaning of the High Court's decision in Love/Thoms;
she is satisfied that Mr Kapeli meets the second limb of the tripartite test in that Mr Kapeli identifies as a member of the Worimi tribe in the Forster region of New South Wales; and
although a court may find, on the balance of probabilities, that Mr Kapeli does not meet the third limb of the tripartite test, being recognition of Mr Kapeli's membership of the Worimi tribe by the elders or other persons enjoying traditional authority among those people, Ms Wang considers that it is not open to her to reasonably suspect that Mr Kapeli does not meet the third limb.
Thus, Ms Wang's decision to detain Mr Kapeli under s 189(1) of the Migration Act is dependent on her belief that Mr Kapeli does not satisfy the first limb of the tripartite test. The respondents acknowledged that, if Ms Wang's belief that Mr Kapeli does not satisfy the first limb of the tripartite test is not objectively reasonable, the detention of Mr Kapeli would be unlawful. In other words, the respondents did not seek to support the lawfulness of Mr Kapeli's detention on the basis that Ms Wang reasonably suspects that Mr Kapeli does not meet the second or third limbs of the tripartite test. For that reason, the factual findings set out below commence with Mr Kapeli's ancestry.
Mr Kapeli contends that the first limb of the tripartite test is not confined to biological ancestry and can include descent through adoption under traditional or customary laws of an Aboriginal society. That contention requires consideration of other aspects of the evidence adduced by Mr Kapeli concerning his relationship with Worimi people in the Forster region of New South Wales. It should be noted that, at different points in the hearing, Mr Kapeli placed reliance on his claimed adoption by Michelle Donnelly and on his claimed initiation into the Worimi tribe. Mr Kapeli did not clearly explain how his claimed initiation was relevant to the first limb of the tripartite test.
On the basis of the evidence adduced in the proceeding, I make the following factual findings.

[33]

Mr Kapeli's connection with the Worimi community in the Forster region

The evidence establishes that Mr Kapeli has a close connection with the Worimi community in the Forster region, and particularly with the Donnelly family.
When Mr Kapeli first arrived in Australia in 2003, he made a friend, Desmond Donnelly, through playing football at a local club. As noted earlier, Mr Donnelly describes himself as an Aboriginal man of the Worimi tribe from the Forster-Tuncurry region. Mr Kapeli deposed that Mr Donnelly became a brother to him and, through Mr Donnelly and Mr Donnelly's mother (Michelle Donnelly), brothers and sisters, Mr Kapeli's connection with Aboriginal culture expanded.
Mr Kapeli engaged in youth development in Forster because his wife is actively involved in the Worimi community. Mr Kapeli described the different programs he has been involved in with Aboriginal youth in the Forster region between 2009 and 2019 including physical and sporting activities such as diving, fishing, football and gym. In 2009, Mr Kapeli and Mr Donnelly established a youth group in the Worimi community called the "young boys". The youth group ran social and sporting activities. Mr Kapeli stated that he is a father figure to many children in the Worimi community and that many children call him "Dad" or "Uncle".
Sarina Kapeli described the range of activities she organises for the Worimi community in Forster. Sarina Kapeli deposed that Mr Kapeli is supportive and involved with everything she does in the community.
Michelle Donnelly deposed that she has known Mr Kapeli since around 2003, after he first arrived in Australia. Michelle Donnelly described their relationship as very close, and stated that Mr Kapeli refers to her as his "mum", and refers to her sons, Perry and Desmond Donnelly, as his brothers. Michelle Donnelly stated that Mr Kapeli has been accepted as an Aboriginal member of her family and that he has been culturally adopted into the Worimi tribe and onto Worimi country. Michelle Donnelly stated that: Samiuela has been a part of our Worimi community for over 13 years and is accepted as part of our family here.
Michelle Donnelly further deposed that: Becoming part of the Worimi Tribe is about how he blended in, how he became accepted and gave so much to everyone here, straight away.
Desmond Donnelly deposed that his mother, Michelle Donnelly, has accepted Mr Kapeli into her family and into the Worimi tribe, and Mr Donnelly has accepted Mr Kapeli in the same way. Mr Donnelly considers Mr Kapeli to be like a brother to him. Mr Donnelly also considers that Mr Kapeli has an important role in the Worimi community and has attended trips with other Worimi men and boys which involved camping, fishing, cooking and secret men's business (which Mr Donnelly said he could not disclose).
Each of Percy Simon and Desmond Simon deposed that they have has known Mr Kapeli for many years and that Mr Kapeli is heavily involved in, and accepted as an important part of, the Worimi community in Forster. Each deposed that Mr Kapeli takes part in Worimi community events and activities, and that Mr Kapeli has played an important role with Aboriginal youth in the community.

[34]

Mr Kapeli's claimed initiation/adoption into the Worimi tribe

Mr Kapeli claims to have been initiated into the Worimi tribe and to be an adopted son to Michelle Donnelly. Mr Kapeli's evidence in that regard was not challenged or contradicted by the respondents. Nevertheless, I consider that the evidence has significant limitations which affects its weight.
First, with respect to Mr Kapeli's claimed adoption, there is no evidence about the adoption beyond Michelle Donnelly's assertion that Mr Kapeli has been "culturally adopted". In particular, there is no evidence concerning Worimi traditional law or custom with respect to adoption, and no evidence that any such law or custom was applicable to Mr Kapeli's adoption by Michaelle Donnelly. Rather, Michelle Donnelly's evidence is to the effect that Mr Kapeli has been welcomed into her home and has been accepted as part of her family, and that Mr Kapeli has been accepted by the Worimi community in Forster by reason of the contribution that he has made to that community.
Second, with respect to Mr Kapeli's claimed initiation, there is little if any evidence concerning Worimi traditional law or custom with respect to initiation. Further, and perhaps more significantly, the evidence concerning Mr Kapeli's initiation has material inconsistencies. It is convenient to commence by reproducing Mr Kapeli's evidence from his affidavit dated 2 September 2024 (the sections in parenthesis are subject to a ruling under s 136 of the Evidence Act that the use of the evidence is limited to evidence of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act):
After I first came to Australia, I would go out with a lot of the Aboriginal people in the Forster community and spend time on country. We would sometimes go fishing, other times we would just sit by the fire and have a yarn. We would talk about men's business when we were out doing this.
Some of the time, Greg Ridgeway would be there. He was respected as a mentor and an Elder of the Worimi people. He would speak about the ancestors of the Worimi people, the Dreamtime, and the obligations that we had to the next generation and our community to lift them up.
When Greg was having these talks with us, he would paint the faces of the people gathered. I wasn't allowed to have this happen, and I would tell him even though I wanted to be included in this, I knew that wasn't permitted. I felt lucky to even be able to see those things being done.
One day, when Greg was around and had already finished painting some people's faces and talking, he asked if I would like to have it done as well. I reminded him that it wasn't allowed, and he said something like "You know what? I'll initiate you". Others had left, and it was just the two of us by then.
Greg did a smoking ceremony, sat down with me, drew on my face with clay, and welcomed me to his ancestors. I felt honoured. It was a different feeling for me that night. Because I have never really known where I came from, this felt like a new beginning for me, like the first time I had somewhere I belonged and could be proud to call myself a part of. Since then, I consider myself a proud Worimi man [and other Worimi people treat me like that too].
For the Worimi people, initiation isn't just a one-off thing. It can happen multiple times over the course of your life. I don't have permission to say more about this.
I am accepted into the Worimi Tribe by Michelle Donnelly, who is also a respected Elder with traditional authority to make such decisions. She considers me her adopted son, and talks about me as part of the family, and part of the Worimi people.
[Other Elders with traditional authority, including Desmond Simon and Percy Simon accept me into the Worimi people and community.]
Mr Kapeli also gave sworn evidence in 2022 about his claimed initiation. Those accounts are not consistent with the above account given in 2024. In his statement dated 13 April 2022, Mr Kapeli stated that:
It was around the year 2008 I was initiated and accepted by my Worimi Tribe. A small ceremony was held by the Worimi tribal elders. The Worimi elders lit a fire during that night where we all sat around talking to our ancestors and the land, asking for guidance and acceptance for myself as well as ancestral blessings.
It can be seen that in his 13 April 2022 account Mr Kapeli stated that a number of (unidentified) Worimi elders were present, whereas in the more recent account in 2024 Mr Kapeli stated that only Greg Ridgeway was present. The discrepancy was not explained.
Mr Kapeli annexed his 13 April 2022 statement to his sworn affidavit dated 2 August 2022 and deposed that the contents of the statement were true and correct. In his affidavit dated 2 August 2022, Mr Kapeli deposed as follows:
In around the year 2008, I was initiated and accepted by my Worimi Tribe during a ceremony on Worimi country. The ceremony was held by the Worimi Elders, who are people with traditional authority in our Tribe. The Elders lit a fire during that night and we all sat around talking to our ancestors and the land, asking for guidance and acceptance for myself as well as ancestral blessings. There were approximately five Elders present for my initiation, including Uncle Greg Richway, who led the initiation. Uncle Greg has dementia now and is also quite physically unwell.
I was taught secret men's business as part of this initiation. This is knowledge that has been handed down from generation to generation from before European people came to Australia. During this ceremony I was inducted into the songlines of the Worimi. This means that my ancestors are the same ancestors as for anyone else from my Worimi Tribe and I have become part of the ongoing ancestral lineage of the Worimi people. I would need permission from my Elders to provide any further details about what happened during my initiation because it is secret men's business and cannot be shared with outsiders.
In the written evidence, Mr Ridgeway's name has also been spelt as "Richway" (in circumstances where it is clear that the same individual is being referred to). In these reasons, I will adopt the spelling "Ridgeway".
In the above account, Mr Kapeli stated that five elders were present during his initiation, one of whom was Greg Ridgeway. Again, the statement is inconsistent with the 2024 account in which Mr Kapeli stated that only Mr Ridgeway and he were present. The discrepancy was not explained. Mr Kapeli deposed that Mr Ridgeway has dementia. That is corroborated by Michelle Donnelly and Desmond Simon and may explain why no evidence was adduced from Mr Ridgeway with respect to Mr Kapeli's initiation. However, Mr Kapeli did not identify the other elders whom he deposed were present during his initiation, and no other senior member of the Worimi people gave evidence that they were present.
Percy Simon is 76 years old, has lived in Forster for the past 20 years and describes himself as a Worimi elder. Significantly, Percy Simon does not give evidence that he was present during Mr Kapeli's initiation; indeed, he makes no reference to any knowledge of an initiation ceremony. Rather, Percy Simon gives evidence that Mr Kapeli is Worimi because he has been recognised as Worimi by Michelle Donnelly, deposing that: I know that Michelle [Donnelly] recognises Samiuela Kapeli as Worimi, and she has the authority to do this.
Desmond Simon is 70 years old, has lived in Forster most of his life and describes himself as a Worimi elder (a role he took up from about 2013). In his statement dated 29 July 2022, Desmond Simon stated that he accepts Mr Kapeli as part of the Worimi community and that other elders who accept Mr Kapeli include Percy Simon, Greg Ridgeway and Michelle Donnelly. Desmond Simon gave two accounts of the process by which Mr Kapeli became "an accepted member of the Worimi Tribe". Both accounts were hearsay and the evidence was received subject to a ruling under s 136 of the Evidence Act that the use of the evidence is limited to evidence of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act. The first account was that Mr Kapeli's acceptance was through a cultural process involving elders (who are not identified by Desmond Simon) taking Mr Kapeli out bush and doing traditional ceremonies including secret men's business. Desmond Simon acknowledged that he was not present during those activities. The second account was that Mr Kapeli was initiated during a small ceremony at which Mr Ridgeway was present. Again, Desmond Simon acknowledged that he was not present at the ceremony and does not know anything about it.
Each of Michelle Donnelly, Desmond Donnelly and Sarina Kapeli also gave hearsay evidence of their belief that Mr Kapeli underwent an initiation ceremony with Mr Ridgeway, but none were able to give direct evidence of the ceremony. Their evidence in that respect was also admitted subject to the use ruling made under s 136 of the Evidence Act.
All of the witnesses corroborate the fact that each of Percy Simon, Desmond Simon and Michelle Donnelly are regarded as elders within the Worimi community in the Forster region, and I accept that evidence. I also accept that each of Percy Simon, Desmond Simon and Michelle Donnelly regard Mr Kapeli as a member of the Worimi community, and that Michelle Donnelly regards him as a son. I accept that the personal bonds between Mr Kapeli and the Worimi community in the Forster region are close.
However, I place limited weight on Mr Kapeli's evidence that he has been initiated into the Worimi community. That is for the following reasons.
First, Mr Kapeli's evidence with respect to his initiation is inconsistent in material respects. His 2024 account differs significantly to his 2022 accounts.
Second, Mr Kapeli's evidence with respect to his initiation is given at a high level of generality. Mr Kapeli deposed that he would need permission from his elders to provide any further details about what happened during his initiation because it is secret men's business and cannot be shared with outsiders. The Court accepts the possibility that information concerning the traditional laws and customs of an Aboriginal society may be secret and sacred and, for that reason, is not to be shared publicly. The Court also accepts that individuals may not have the requisite authority to disclose such information in a legal proceeding without permission from elders. While the Court takes those concerns into account, it remains for a party to adduce sufficient evidence in proof of the case they seek to make before the Court. The Court is able to make a range of orders to protect the confidentiality of evidence to enable witnesses to give evidence about matters that, by traditional law and custom of an Aboriginal society, are required to be kept secret. The Court understands that, despite the availability of such orders, witnesses may still be reluctant to disclose certain matters in a Court proceeding. Nevertheless, if matters are not disclosed to the Court in evidence, the Court cannot take them into account in making a determination. The Court cannot be persuaded that a witness has knowledge of a matter of traditional law or custom if the witness declines to give evidence about the matter, even if the witness states that the matter is culturally sensitive. When such impediments arise, it is incumbent upon the lawyers who called the witness to apply for suitable orders that would enable the evidence to be given in a manner that protects the secrecy of the information and takes account of any cultural concerns.
Third, no evidence has been adduced in the proceeding concerning the Worimi people, or the traditional laws and customs of the Worimi people, or whether the Worimi continue to acknowledge and observe traditional laws and customs. Accordingly, there is no evidence from which the Court could make any assessment that the claimed initiation ceremony reflected the traditional laws or customs of the Worimi people. Further, whilst I accept that each of Percy Simon, Desmond Simon and Michelle Donnelly are regarded as elders within the Worimi community in the Forster region, none of those persons gave evidence with respect to the processes by which decisions are made by elders on behalf of the Worimi community, particularly whether decisions are required to be made collectively (and who must participate) and whether decisions are able to be made by individual elders.
In summary, the evidence satisfies me that Worimi elders from the Forster region have accepted Mr Kapeli as a member of the Worimi community, and Michelle Donnelly regards Mr Kapeli as a son. To the extent that it is relevant, I am not satisfied that Mr Kapeli's acceptance as a member of the Worimi community occurred under laws or customs of the Worimi people that are traditional, or that Mr Kapeli was adopted by Michelle Donnelly under laws or customs of the Worimi people that are traditional.

[35]

Other forms of recognition of Mr Kapeli as an Aboriginal person

In support of his claim to be an Aboriginal person, Mr Kapeli adduced evidence about his recognition as such by the Tobwabba Aboriginal Health Service in Forster and by Medicare. The evidence does not assist.
Mr Kapeli tendered a letter from the Tobwabba Aboriginal Health Service dated 2 September 2024 which relevantly stated: I am writing to confirm that Samiuela Kapeli has been a patient of Tobwabba Aboriginal Corporation Medical Service since the 3rd of April, 2017. Mr Kapeli is a patient based on his kinship ties through his wife and their two children. Please note that our medical service has strict patient eligibility guidelines, as our services are predominantly available only to Aboriginal community members and their direct families.
The letter makes clear that Mr Kapeli's entitlement to be a patient of the Tobwabba Aboriginal Corporation Medical Service derives from his wife, who is an Aboriginal woman, and their children (who are Aboriginal by reason of descent from their mother).
Mr Kapeli also tendered a screenshot of his Medicare portal which records "Aboriginal" under the heading "Descent".
Ms Baras-Miller, an AGS lawyer, tendered a copy of documents obtained from the Services Australia website which show that, when a person enrols in Medicare, the person may choose to identify as an Indigenous Australian by completing a "Medicare Voluntary Indigenous Identifier form". The Medicare enrolment form states: Aboriginal and Torres Strait Islander Australian The Aboriginal and Torres Strait Islander question is voluntary and will not affect your application. If you do answer, the information will help us to continue to improve services to Aboriginal and Torres Strait Islander Australians.
Ms Baras-Miller also tendered correspondence with Medicare about the information recorded in the "Descent" field of a person's Medicare registration. Phillip Cuttriss, the Director of Medicare Consumers, provided the following information by way of email dated 6 September 2024: Medicare does not assess our customers for aboriginality. Information under the "Descent" field is always provided by the customer (or in the case of minors at the time of enrolment, the responsible adult completing their enrolment form). Because of the self-identification approach to the information in the descent field, no supporting evidence is held by Medicare that could substantiate a material claim of aboriginality by the customer.
Whilst the above email was hearsay, it was admitted under s 60 of the Evidence Act as relevant to proof of the information taken into account by Ms Wang in making her decision under s 189 of the Migration Act. The evidence was admitted subject to a ruling under s 136 of the Evidence Act that the use of the evidence be limited to proof of that fact.
Having regard to the above matters, I conclude that it was reasonable for Ms Wang to give no weight to the letter from the Tobwabba Aboriginal Health Service in Forster or the screenshot of Mr Kapeli's Medicare portal.

[36]

Ms Wang's decision to detain Mr Kapeli

As stated earlier, Ms Wang is an employee of the Department and is currently employed as a SRO within the Department's Status Resolution and Visa Cancellation Division. On 27 June 2024, Ms Wang became the SRO with responsibility for Mr Kapeli and, on 15 July 2024, became the detaining officer for Mr Kapeli.
In her first affidavit affirmed 27 August 2024, Ms Wang adduced the records held by the Department concerning Mr Kapeli. Ms Wang deposed that, when she became the detaining officer for Mr Kapeli on 15 July 2024, she formed her own opinion whether Mr Kapeli's detention was lawful based on her review of the Departmental files. Those records included legal advice given by the AGS in 2022 when Mr Kapeli was detained following the prior cancellation decision. In advices dated 28 June 2022 and 10 August 2022, the AGS expressed the opinion that for a person to meet the tripartite test endorsed by the majority in Love/Thoms, it is necessary that the person is biologically descended from Aboriginal or Torres Strait Islander people. In both opinions, the AGS stated that, on the basis of the material that was before the Department, the AGS considered that Mr Kapeli did not meet either the first or third limbs of the tripartite test. Ms Wang deposed that: I was satisfied the applicant was not an Australian citizen and his visa had been cancelled. I considered that the applicant did not satisfy the first limb of the tripartite test in Love and Thoms, because the applicant had told me that he was not biologically descended from any Aboriginal Australian during the DCI [the Detention Client Interview that occurred on the morning of 27 June 2024], and because I had not seen anything in reviewing the Departmental Records which made me think that he might be biologically descended from an Aboriginal Australian.
Ms Wang deposed that she conducted further "case reviews" of Mr Kapeli's detention on 26 July 2024 and on 7 August 2024 (following the filing by Mr Kapeli of a proceeding in this Court on 19 July 2024). Ms Wang also received a copy of further legal advice from the AGS dated 19 August 2024 with respect to the application of the decision in Love/Thoms to Mr Kapeli. In the advice, the AGS maintained its earlier opinion that for a person to meet the tripartite test endorsed by the majority in Love/Thoms, it is necessary that the person be biologically descended from Aboriginal or Torres Strait Islander people. The AGS expressed the opinion, based on the documentary evidence available to it (which was extensive and included all of the information provided by Mr Kapeli), that a detaining officer could reasonably suspect that Mr Kapeli was not an Aboriginal Australian because he was not biologically descended from an Aboriginal forebear. Ms Wang deposed as follows: My current view on the applicant's detention
The applicant is presently located at Villawood Immigration Detention Centre. I remain the SRO assigned to the applicant's case and the applicant's detaining officer.
Since I became the applicant's detaining officer I have been satisfied that he is not an Australian citizen, does not hold a visa, and is therefore an unlawful non-citizen. I remain satisfied the applicant does not satisfy the first limb of the tripartite test, and so is not an Australian Aboriginal within the meaning of High Court's decision in Love and Thoms.
Accordingly, for the purposes of s 189(1) of the Migration Act, I reasonably suspect that the applicant is an unlawful non-citizen who is not an Aboriginal Australian. Removal of the applicant from Australia
The applicant is not presently on a removal pathway. He will not be on a removal pathway until his request for the revocation of the second cancellation decision is determined.
In her second affidavit affirmed 13 September 2024, Ms Wang deposed that she had been provided with all of the affidavits filed on behalf of Mr Kapeli in this proceeding and that she read those affidavits. Ms Wang further deposed that she had received an updated advice dated 12 September 2024 from the AGS with respect to the application of the decision in Love/Thoms to Mr Kapeli and the affidavit of Ms Baras-Miller and that she read those documents. The further AGS advice dated 12 September 2024 took into account the additional material that had been filed by Mr Kapeli in the proceeding and the affidavit of Ms Baras-Miller. In the advice, the AGS maintained the same opinions it had earlier expressed, observing that the further material filed by Mr Kapeli does not assert, much less demonstrate, that Mr Kapeli is of Aboriginal biological descent for the purposes of the first limb of the tripartite test. Ms Wang deposed as follows (clarification in parentheses added):
Having read the affidavits and the September 2024 AGS advice: 7.1. I am not satisfied that the applicant meets the first limb of the tripartite test. The September 2024 AGS advice states that, on the current state of the law, the first limb of the tripartite test requires biological descent. The affidavits do not contain any evidence that the applicant is biologically descended from an Aboriginal Australian. I understand that the applicant has put forward evidence in the affidavits about his initiation by the Worimi people. But my understanding based on the September 2024 AGS advice is that a person cannot satisfy the first limb of the tripartite test by having been initiated or adopted by an Aboriginal or Torres Strait Islander group. I am satisfied that Medicare does not hold any information about the applicant's biological descent and I am not aware of any other enquiries which might help me form a view about the first limb. 7.2. I remain satisfied that the applicant meets the second limb of the tripartite test. He has consistently identified as an Aboriginal Australian. 7.3. I understand from the September 2024 AGS advice that a court might find, on the balance of probabilities, that the applicant does not meet the third limb of the tripartite test. But the AGS advice also states that it is not open to a detaining officer to reasonably suspect that the applicant does not meet the third limb of the tripartite test. Based on that advice, I consider it is not open to me to suspect that the applicant does not meet the third limb.
Accordingly, because I am satisfied that the applicant does not meet the first limb of the tripartite test, I suspect that the applicant is an unlawful non-citizen who is not an Aboriginal Australian for the purposes of s 189(1) of the Act.
On 13 September 2024, I conducted a further case review for the applicant and formed the view that the applicant's detention was still lawful and appropriate under s 189(1) of the Act. I recorded my reasons in the case review and in a further MCP 7 [a document that is updated from time to time to record whether the detaining officer at the relevant time considers that detention remains lawful and appropriate].

[37]

F. Mr Kapeli's contentions

In his written submissions, Mr Kapeli submitted that his detention was unlawful for two principal reasons.
First, Mr Kapeli submitted that he is not an alien within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian. Mr Kapeli submitted that there is no dispute that he identifies as an Aboriginal person and that there is no serious dispute that he is accepted to be an Aboriginal person by elders and other Aboriginal people of the Worimi group. As to his 'biological descent', Mr Kapeli submitted that he does not know his genetic history but he has been initiated into and "brought up" by a particular Aboriginal people, according to the law and custom of that Aboriginal group.
Second, Mr Kapeli submitted that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future by reason of the need for continued investigations as to whether he is an Aboriginal Australian. In those circumstances, s 189 does not authorise his continued detention, having regard to the decision of the High Court in NZYQ. Mr Kapeli submitted that he can only be removed from Australia if he is not an Australian Aboriginal (ie, proved to the standard of balance of probabilities rather than reasonable suspicion). Mr Kapeli further submitted that, being satisfied of a person's Aboriginality to that standard of proof - especially when questions of the law and custom of adoption and integration of a particular group is in issue - will necessarily involve deep historical research, as well as consultation with a large number of people who are part of, or are learned in respect of, that group. That will take substantial time and resources, even assuming such a state of satisfaction on that question can be reached at all in respect of Mr Kapeli and the Worimi people.
In oral closing submissions, lead counsel for Mr Kapeli, Mr Albert, expanded the issues for determination in the proceeding. Mr Albert submitted that there were "six standalone bases upon which … Mr Kapeli is entitled to the resumption of his liberty". Before outlining those six bases, Mr Albert advanced an initial point of statutory construction concerning s 196(4) of the Migration Act. The point was not advanced with clarity, but Mr Albert subsequently confirmed that Mr Kapeli submitted that, on a habeas corpus application, the effect of s 196(4) is that the respondents bear the burden of establishing on the balance of probabilities (and on clear and cogent evidence) that both:
Mr Kapeli is not an Aboriginal Australian (and therefore an alien); and
the detaining officer reasonably suspects that Mr Kapeli is not an Aboriginal Australian (and therefore an alien).
It is apparent that, if it be correct that the effect of s 196(4) is that the respondents bear the burden of establishing on the balance of probabilities that Mr Kapeli is not an Aboriginal Australian (and therefore an alien), the question whether the detaining officer reasonably suspects that Mr Kapeli is not an Aboriginal Australian is rendered redundant, as the former requires a higher standard of proof than the latter.
The six bases on which Mr Kapeli submitted that the writ of habeas corpus should be granted can be summarised as follows.
On the first basis, Mr Kapeli assumes that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words; that is, genetic ancestry or relationship or, in the vernacular, related by blood. Mr Kapeli contends that the respondents have not discharged their burden of proof of showing that Mr Kapeli is not biologically descended from Aboriginal people. Mr Kapeli submitted that there is no clear and cogent evidence that Mr Kapeli lacks genetic Aboriginal descent.
On the second basis, Mr Kapeli again assumes that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words. Mr Kapeli contends that the detaining officer's suspicion that he is not biologically descended from Aboriginal people is not reasonable because the officer has failed to make all inquiries in relation to his biological ancestry that are reasonable in the circumstances (citing Goldie at [4]). In that regard, Mr Kapeli relied on the fact that he has claimed to be an Aboriginal Australian since 2022 (at the time of the prior cancellation decision).
On the third basis, Mr Kapeli contends that the first limb of the tripartite test does not require biological descent in the ordinary meaning of those words and that a person may satisfy the first limb if they have been adopted into an Aboriginal society. In support of that contention, Mr Kapeli relied upon the observations of Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 (Ward) at [232]-[234] that, in articulating the tripartite test in Mabo (No 2), Brennan J was not intending to lay down as an invariable requirement that there be strict "biological descent". Mr Kapeli submitted that the detaining officer acted upon erroneous legal advice that the first limb of the tripartite test requires biological descent in the ordinary meaning of those words and, as a consequence, erroneously failed to consider whether Mr Kapeli satisfied the first limb by reason of adoption into the Worimi tribe. By failing to make such enquiries, and applying the principles stated in Goldie at [4], the detaining officer failed to form a reasonable suspicion that Mr Kapeli was not an Aboriginal Australian.
On the fourth basis, Mr Kapeli contends that the majority judgments in Love/Thoms do not prescribe the tripartite test as the requisite test for being an Aboriginal Australian who is outside the aliens power in s 51(xix) of the Constitution; further or alternatively, even if the tripartite test is the requisite test, satisfaction of one of the limbs of the test may be inferred from satisfaction of the other two limbs (citing, in order, Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 (Attorney-General (Cth) v Queensland) at 132-133 (Spender J) and 147-148 (French J); In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105 (Watson) at [7] (Cox CJ); Stevenson v Yasso [2006] 2 Qd R 150; 163 A Crim R 1 (Stevenson) at [38] (McMurdo P), [81] (McPherson JA) and [133] (Fryberg J); and Ofu-Koloi v The Queen (1956) 96 CLR 172 (Ofu-Koloi) at 175 (Dixon CJ, Fullagar and Taylor JJ)). Mr Kapeli distilled the proposition as "two out of three is enough". Mr Kapeli submitted that the detaining officer's suspicion that Mr Kapeli was not an Australian Aboriginal was not reasonable in circumstances where the officer failed to consider broader tests of Aboriginality or that biological descent may be inferred from mutual recognition (the second and third limbs of the tripartite test).
On the fifth basis, Mr Kapeli contends that the AGS legal advice, on which the detaining officer relied, was not a reasonable advice with the result that the detaining officer's suspicion (that Mr Kapeli was not an Aboriginal Australian) was not reasonable (citing Hobson at [83] where SC Derrington J in turn cites Guo v Commonwealth of Australia [2017] FCA 1355 at [43] (Jagot J)). Mr Kapeli submitted that the AGS legal advice was not reasonable because it did not consider whether the first limb of the tripartite test can be met by way of adoption into an Aboriginal society. Mr Kapeli advanced the surprising submission that, even if the Court concludes that the ultimate opinion expressed in the AGS legal advice is correct, the advice is unreasonable because it failed to give express consideration to adoption as a means of satisfying the first limb of the tripartite test.
On the sixth basis, Mr Kapeli contends that there is "no evidence" that the respondents know, or will know in the reasonably foreseeable future, that Mr Kapeli is an alien and therefore his continued detention is unlawful in accordance with the principles stated in NZYQ. Mr Kapeli initially submitted that this contention relies on the following four propositions:
First, the principle established by NZYQ is that a person cannot be detained under ss 189 and 196 of the Migration Act when there is no real prospect of the person being removed from Australia in the reasonably foreseeable future.
Second, the only persons who can be removed from Australia under s 198 of the Migration Act are aliens within s 51(xix) of the Constitution. In that regard, Mr Kapeli submitted that the power to remove a person from Australia under s 198 depends upon the person being an alien, and it is insufficient that the removing officer has a reasonable suspicion that the person is an alien (citing McHugh at [48] and [51] (Allsop CJ)).
Third, the detainer requires clear and cogent evidence that Mr Kapeli lacks Aboriginal biological descent in order to show that there is a real prospect of removal under s 198.
Fourth, there is no clear and cogent evidence that Mr Kapeli lacks Aboriginal biological descent, nor any evidence as to what steps the respondents have started taking to investigate that matter, nor how long any such investigation will take.
In the course of argument, Mr Kapeli did not dispute that the purpose for which an alien may be detained under ss 189 and 196 is not limited to the removal of the person from Australia and that a legitimate purpose of detention is to keep separate from the community a person who is reasonably suspected of being an unlawful non-citizen until their immigration status is investigated and determined. Mr Kapeli submitted that, in the present case, he is the subject of an extant duty of removal under s 198(5). Mr Kapeli argued that the duty of removal has arisen notwithstanding that:
Mr Kapeli's visa was cancelled under s 501(3A);
Mr Kapeli has been invited, in accordance with s 501CA, to make representations to the Minister about revocation of the decision to cancel his visa; and
Mr Kapeli has made representations in accordance with the invitation but the Minister had not yet decided whether to revoke the cancellation of his visa.
The foregoing submission raises a question concerning the proper construction of s 198 of the Migration Act. As noted earlier in these reasons, the submission was not raised in Mr Kapeli's written submissions and was raised for the first time in Mr Kapeli's oral closing submissions. In those circumstances, leave was granted to the respondents to file written submissions addressing the issue of construction, and for Mr Kapeli to file written submissions in reply. The Court has received those submissions and they are addressed below.

[38]

The proper construction of s 196(4)

It is convenient to commence with Mr Kapeli's submission concerning s 196(4) of the Migration Act: that the effect of the section is that, on a habeas corpus application, the respondents bear the burden of establishing on the balance of probabilities (and on clear and cogent evidence) that Mr Kapeli is not an Aboriginal Australian (and therefore an alien). Lead counsel for Mr Kapeli, Mr Albert, was unable to identify any authority that supported the submission. Nor did Mr Albert refer the Court to the authorities that stand against the submission and seek to address them. For the following reasons, I reject the submission.
It is apparent from their terms that s 189 specifies the circumstances in which an officer of the Department is under a statutory duty to detain a person, and s 196 specifies the circumstances in which the detention is to cease, thereby defining the duration of the detention.
Section 189(1) provides as follows: If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Thus, s 189(1) relevantly establishes two bases on which an officer is required to detain a person. The first is if the officer knows that a person is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). The second is if the officer reasonably suspects that a person is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). As set out earlier in these reasons, a reasonable suspicion is something substantially less than certainty; it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
Section 196 provides as follows: 196 Duration of detention (1) An unlawful non‑citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non‑citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen. (4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
By s 196(1), an unlawful non‑citizen detained under s 189 must be kept in immigration detention until, among other things, he or she is removed from Australia under s 198 or 199, is deported under s 200, or is granted a visa.
Subsection 196(4) applies to Mr Kapeli's detention because he has been detained as a result of the cancellation of his visa under s 501. Under s 196(4), Mr Kapeli's detention is to continue unless a court finally determines that the detention is unlawful, or that Mr Kapeli is not an unlawful non‑citizen. The gravamen of Mr Kapeli's submission concerning s 196(4) is that, on an application for habeas corpus, the detainer must negative both limbs; that is, the detainer must prove on the balance of probabilities that, first, the detention is lawful and, second, that the person detained is an unlawful non-citizen (and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian). Mr Kapeli's argument is that, while the first limb incorporates the reasonable suspicion test under s 189, the second limb does not and the relevant facts must be proved on the balance of probabilities.
Mr Kapeli's submission misstates the ordinary meaning of the statutory text and is inconsistent with the statutory purpose as identified in the extrinsic materials. The meaning of s 196(4) and the relevant extrinsic materials were considered by Besanko J in Burgess v Commonwealth (2020) 276 FCR 548 (Burgess), albeit the argument advanced by Mr Kapeli was not in issue in that case. The following propositions can be taken from that decision.
First, the source of power to detain a person is contained in s 189, and s 196(4) is not a separate source of power to detain: Burgess at [84] and [124].
Second, and as is apparent from the heading to s 196 and the statutory text, the section is concerned with the duration, and perhaps more accurately the cessation, of detention that has been effected under s 189: Burgess at [85].
Third, ss 196(4) to (7) inclusive were introduced into s 196 by the Migration Amendment (Duration of Detention) Act 2003 (Cth): Burgess at [98]. An issue that had arisen prior to the insertion of those provisions was this Court's power to order the interlocutory release of a person in detention under a general power in the Court such as s 23 of the FCA Act pending the final determination of an application for judicial review of the decision that led to the person's detention (viz, the cancellation of his or her visa): Burgess at [99]-[100]. The relevant extrinsic materials explain that the purpose of the amendments was to prevent a court from ordering the release of a person from detention on an interlocutory basis pending the final determination of any substantive proceedings, whether those proceedings challenged the lawfulness of the detention or the cancellation of the visa that resulted in detention: Burgess at [111]-[114].
A decision to cancel a visa (for example, under s 501) is separate from the decision to detain a person. As observed by the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) in Falzon v Minister for Immigration (2018) 262 CLR 333 (Falzon) at [56]: A cancellation decision has the immediate effect that the person's status is changed from that of a lawful non-citizen to an unlawful non-citizen. Section 501(3A) merely provides the basis for the change in status. It does not authorise detention. It is that new status that exposes the person to detention under s 189.
It also follows that a legal challenge to the lawfulness of the cancellation of a visa is separate from a legal challenge to the lawfulness of a person's detention. In Ruddock, the majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) explained (at [25]): The first inquiry, about the lawfulness of the decision to cancel the respondent's visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised. That directed attention, principally, to s 501 of the Act. By contrast, the lawfulness of the respondent's detention turned upon whether there was statutory or other authority to detain him. That required consideration of s 189.
The foregoing propositions and principles support the conclusion that s 196(4) contemplates two types of application that may be made to the Court to challenge a person's detention and bring it to an end. The first is a challenge to the lawfulness of the detention, which requires consideration of the exercise of the power to detain under s 189. The second is a challenge to the decision that rendered the person an unlawful non-citizen, typically the cancellation of the person's visa. In both cases, the purpose of s 196(4) is to prevent the Court from ordering the release of the person from detention on an interlocutory basis. The subsection stipulates that a person may only be released on the final determination of either application by the Court.
By his application for habeas corpus, Mr Kapeli has challenged the lawfulness of his detention under s 189. He has not challenged the decision to cancel his visa under s 501. In accordance with the principles stated in McHugh and which have been set out earlier in these reasons, the respondents bear the burden of proving the lawfulness of Mr Kapeli's detention, which requires proof that the detaining officer reasonably suspects that Mr Kapeli is an unlawful non-citizen and, applying Love/Thoms and Thoms No 2, is not an Aboriginal Australian. If that is proved on the balance of probabilities, Mr Kapeli's detention is lawful. The respondents are not required by s 196(4) to prove, on the balance of probabilities, that Mr Kapeli is not an Aboriginal Australian.
For those reasons, I reject Mr Kapeli's submission concerning the construction of s 196(4).

[39]

Who are Aboriginal Australians within the meaning of the majority judgments in Love/Thoms?

Mr Kapeli put his contention that he is an Aboriginal Australian, and therefore outside the aliens power in s 51(xix) of the Constitution, on at least three bases. The first basis assumes that Aboriginal Australians within the meaning of the majority judgments in Love/Thoms are persons who satisfy the tripartite test, where the first limb of the tripartite test requires biological descent from an Aboriginal person. In other words, an Aboriginal Australian is a person who has Aboriginal ancestry, as well as satisfying the mutual recognition criteria in the tripartite test. The second basis also assumes that Aboriginal Australians within the meaning of the majority judgments in Love/Thoms are persons who satisfy the tripartite test, but that the first limb of the tripartite test does not require biological descent from an Aboriginal person and can be satisfied by adoption under traditional law and custom as discussed by the Full Court (in a native title context) in Ward. The third basis assumes that the majority judgments in Love/Thoms did not exhaustively define who is an Aboriginal Australian and the Court may have regard to other judicial explications of Aboriginality. Mr Kapeli's submissions therefore put in issue the ratio decidendi of the High Court's decision in Love/Thoms.
It is uncontroversial that the first basis on which Mr Kapeli relies is supported by Love/Thoms. The respondents contend that the second and third bases on which Mr Kapeli relies are not supported by Love/Thoms.
The High Court's decision in Love/Thoms has been considered and applied in several decisions of this Court both at first instance and on appeal, including in the Full Court decision in McHugh and in the first instance decisions in Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 38 (Webster), Helmbright, Hirama v Minister for Home Affairs [2021] FCA 648 (Hirama), Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 (Montgomery) and Hobson. As a judge at first instance, I am bound to follow the decisions in Love/Thoms and McHugh. I should also follow an earlier decision of another judge (at first instance) unless of the view that the earlier decision is plainly wrong.
In Love/Thoms, Bell J stated (at [81], speaking on behalf of the majority): I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.
In each of McHugh and the first instance decisions referred to above that have applied Love/Thoms, the Court has concluded that the foregoing statement of Bell J is the ratio decidendi of Love/Thoms: see (in chronological order) Webster at [4] and [49] (Rares J); McHugh at [63] (Allsop CJ), [99] and [102] (Besanko J), and [142] and [396] (Mortimer J); Helmbright at [5] and [107]-[108] (Mortimer J); Hirama at [10] (Mortimer J); Montgomery at [48] (SC Derrington J); and Hobson at [27] (SC Derrington J). In Helmbright, Mortimer J further concluded (at [110] and [117]) that the specific incorporation of the tripartite test in Mabo (No 2) in the statement of the majority's agreement concerning Aboriginal Australians and s 51(xix) of the Constitution (at [81] of Love/Thoms) binds a single judge of this Court to apply Brennan J's approach in determining whether a person is an Aboriginal Australian for that purpose.
Mr Kapeli did not submit that McHugh and the first instance decisions referred to above that have applied Love/Thoms erred in the identification of the ratio of Love/Thoms. Nor did Mr Kapeli submit that the conclusion expressed by Mortimer J, that a single judge of this Court is bound to apply the tripartite test in determining whether a person is an Aboriginal Australian for that purposes of s 51(xix) of the Constitution, was clearly wrong and should not be followed. In any event, I respectfully agree with her Honour's conclusion.
It follows that the third basis on which Mr Kapeli put his contention to be an Aboriginal Australian, and therefore outside the aliens power in s 51(xix) of the Constitution, must be rejected. It is not open to me as a single judge to have regard to other judicial explications of Aboriginality for the purposes of determining whether Mr Kapeli is outside the aliens power in s 51(xix).
The question that remains is whether the second basis on which Mr Kapeli put his contention to be an Aboriginal Australian, and therefore outside the aliens power in s 51(xix) of the Constitution, is supported by Love/Thoms and the decisions that have followed.

[40]

The majority reasoning in Love/Thoms and the first limb of the tripartite test

The question raised by Mr Kapeli is whether an Aboriginal Australian, as that expression is used in the majority judgments, is limited to persons who are biologically descended from an Aboriginal person, or whether it includes persons who have been adopted by an Aboriginal clan, community or group. In my view, the majority judgments in Love/Thoms do not support a conclusion that a person having Mr Kapeli's characteristics, being a citizen of another country and not being a biological descendant of a member of an Aboriginal clan, group or community, is outside the aliens power in s 51(xix) of the Constitution. I consider that the following propositions lead to that conclusion.
First, Love/Thoms concerns the limits of the power of the Commonwealth in s 51(xix) of the Constitution to make laws with respect to naturalization and aliens, and the meaning of the word "aliens" in that provision. The case proceeds from the principle stated by Gibbs CJ in Pochi v Macphee (1982) 151 CLR 101 (Pochi) at 109 (Mason J agreeing at 112, Wilson J agreeing at 116) that: "Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". In Thoms No 2, Gordon and Edelman referred to that principle as the "Pochi limit" (at [61]). It follows that the majority reasons in Love/Thoms must be understood as identifying a category of persons who could not possibly answer the description of aliens.
Second, the High Court has affirmed on many occasions that Parliament may treat a person as an alien notwithstanding that person's long and strong connection to Australia and its community. The facts on demurrer in Pochi were that the applicant was born in Italy, came to Australia when he was 20 years old with the intention of making the country his home, married in Australia and became absorbed into the Australian community. The High Court concluded that those circumstances did not mean that he was no longer an alien (Gibbs CJ at 111, Mason and Wilson JJ agreeing). The principle that a non-citizen does not lose the status of being an alien by reason of being absorbed into (and, it might be said, adopted by) the Australian community has been affirmed in many cases including Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. The principle was referred to with approval by members of the majority and the minority in Love/Thoms (Kiefel CJ at [17], Keane J at [172], Nettle J at [257], Gordon J at [304] and Edelman J at [415]-[421]). The contention advanced by Mr Kapeli, that he ceased to be an alien under the Constitution by reason of being adopted by the Worimi tribe located in the Forster region of New South Wales, creates considerable tension, if not direct conflict, with those authorities. The contention requires a conclusion that an Aboriginal clan, group or community may confer on a person who is not a citizen, and who has no Aboriginal ancestry, membership of the Australian political community by adopting the person into their clan, group or community.
Third, the agreed facts in Love/Thoms were that each of the plaintiffs were biological descendants of Aboriginal persons: in respect of Mr Love, see Bell J at [79], Keane J at [155], Nettle J at [223], Gordon J at [381], Edelman at [459]; in respect of Mr Thoms, see Nettle J at [230], Gordon J at [379]). It follows that the facts in Love/Thoms provided no occasion for the majority to consider circumstances equivalent to those of Mr Kapeli. Further, the case advanced on behalf of the plaintiffs in Love/Thoms was primarily put on the basis that biological descent from an Aboriginal ancestor was an essential element of being an Aboriginal Australian who was outside the Pochi limit: see Kiefel CJ at [23], [26] and [43], Bell J at [76] and [80], Gageler J at [112] and [116], Keane J at [183] - [185] and [191], Nettle J at [242], Gordon J at [292] and [294] and Edelman at [391]. Even the broadest framing of the plaintiffs' case relied upon biological descent from an Aboriginal ancestor as an essential element: see Gageler J at [120]-[122]; Keane J at [210], [214].
Fourth, the reasoning of each of the majority judgments hinged upon Aboriginal ancestry as an essential factor, together with mutual recognition, as rendering a person outside the Pochi limit:
Justice Bell referred with apparent approval to the plaintiffs' argument which was premised upon the unique connection between Aboriginal people and their traditional lands which has been described as essentially spiritual (at [70]-[71]). Her Honour dismissed a concern that "treating an Aboriginal Australian as an alien is to identify a race-based limitation on power", concluding that the concern is overstated (at [73]). Her Honour did not deny that the effect of the majority's conclusion is to recognise, in part, a race-based limitation on power (albeit a limitation that also requires the mutual recognition limbs of the tripartite test).
Justice Nettle's reasoning commenced with the express recognition that the question being resolved was "whether Aboriginal descent, self-identification as a member of an Aboriginal community and acceptance by such a community as one of its members constitute such a relationship with the Crown in right of Australia as to put a person beyond the reach of that legislative power" (at [255], emphasis added). His Honour identified an inconsistency between the common law's recognition of a person's membership of an Aboriginal society (which recognition depended upon descent and mutual recognition) and a power to deport such a person as an alien (at [271]-[272]). His Honour referred to the Crown's unique obligation of protection to Australian Aboriginal societies and their members based upon the "historical connection between Aboriginal societies and the territory of Australia which they occupied at the time of the Crown's acquisition of sovereignty" (at [276], emphasis added), and the necessary implication that resident members of such societies, who are of Aboriginal descent, owe to the Crown an obligation of permanent allegiance (at [279]-[280]).
Justice Gordon's reasons were also premised upon the recognition that: the Indigenous peoples of Australia are the first peoples of this country; the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European "settlement"; and that the connection between the Indigenous peoples of Australia and the land and waters of Australia is unique and essentially spiritual (at [289]-[290] and [363]). Her Honour reasoned that the constitutional term "aliens" conveys otherness or foreignness, which term is incapable of applying to Aboriginal Australians, as the original inhabitants of the country, because it would conflict with the content, nature and depth of Aboriginal Australians' connection with land and waters (at [296] and [298]). An Aboriginal Australian is not an "outsider" to Australia in so far as they are the descendants of the first peoples of this country and are recognised as such (at [335]). The legal concept of Aboriginality for these purposes, which may differ from social concepts of Aboriginality, requires "biological descent, self-identification and recognition by an elder or elders enjoying traditional authority" and each element is "significant and necessary" (at [366]-[367], emphasis in original). Her Honour expressly recognised that biological descent (as one of the limbs of the legal concept of Aboriginality) involves a race-based distinction, but reasoned that the Constitution does not prohibit special treatment of a race (at [370]).
Justice Edelman framed the "central question" being determined as "whether an Aboriginal person, identifying and accepted by their community as such, with a genealogy tied to the Australian land for tens of thousands of years, is an "alien" within the application of s 51(xix) of the Constitution" (at [391], emphasis added). His Honour reasoned that the powerful spiritual and cultural connections between Aboriginal people and the defined territory of Australia, which have existed for tens of thousands of years, is an underlying basis for membership of the political community of Australia (at [450]-[451]). His Honour concluded that the tripartite test in Mabo (No 2), being a test used in that case to identify those members of a particular sub-group of indigenous people who enjoy continuing connection with particular land, can be usefully applied in the present case for determining "Aboriginality" (at [458]). His Honour observed that "an Aboriginal child, whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land", has metaphysical ties to the Australian polity such that the child is not an alien (at [466], emphasis added).
Having regard to the above matters, the majority judgments provide no support for Mr Kapeli's contention that an Aboriginal Australian, in this constitutional context, can include a person who has no Aboriginal ancestry but has been adopted under the traditional law and custom of an Aboriginal clan, group or community. Mr Kapeli's contention requires an extension of what was decided in Love/Thoms. The foundation for that extension is said to be the majority's adoption of the tripartite test in Mabo (No 2), and what is said to be the interpretation given to the first limb of the tripartite test in decisions of this Court concerning native title determinations such as Ward at [232]-[234]. It will be necessary to return to Mr Kapeli's submissions below.

[43]

McHugh

The applicant in McHugh was born in New Zealand. At trial it was found that he never knew his biological father and he was abandoned by his biological mother shortly after birth. The applicant was raised by adoptive parents. He first arrived in Australia when he was 7 years old. The following additional facts are taken from the findings made by the primary judge which were reproduced by Mortimer J (at [114]): From about 1990 until 2001, the applicant lived with his first wife in the Ardyaloon or One Arm Point Community of the Bardi Jawi people (Ardyaloon Community), which is located on the Dampier Peninsula in Western Australia. The applicant has a traditional Bardi Jawi name, speaks some Bardi, and held a ceremonial role in the Ardyaloon Community during this period. The applicant had five children with his first wife. In 2001, the applicant moved out of the Ardyaloon Community after separating from his first wife. He later remarried, and, until 2008, lived with his second wife, a Bardi Jawi woman, in Derby, Western Australia, and also in the Mulan Aboriginal community in the east Kimberly region of Western Australia. The applicant had two children with his second wife. In 2015, the applicant met a Gidja woman, who was an aboriginal artist. During 2015 and 2016, the applicant travelled with her and painted, and sold, traditional Aboriginal paintings. Critically for the purposes of the present case, the applicant self-identifies as being an Aboriginal Australian. He is also ostensibly recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of Aboriginal biological descent.
The Full Court in McHugh overturned the decision of the primary judge dismissing the application and granted a writ of habeas corpus. The Full Court did so for the reason that the applicant satisfied the initial evidentiary onus upon him raising a case that he may be an Aboriginal Australian, and the evidence adduced by the Minister failed to prove that an officer of the Department had a reasonable suspicion that the applicant was not an Aboriginal Australian: at [2] (Allsop CJ), [76] (Besanko J) and [339]-[340] (Mortimer J). The significant feature of the case was that no evidence was adduced by the Minister that any detaining officer held the requisite suspicion.
The decision in McHugh is factually distinguishable from the present case for two reasons. The first reason is that, unlike in McHugh, in the present case evidence has been adduced from the detaining officer. The second reason is that, in the present case, more is known about Mr Kapeli's ancestry than in McHugh. Relevantly, in the present case there is evidence concerning the identity and place of birth of Mr Kapeli's biological parents, as well as Mr Kapeli's admissions in cross-examination that: Mr Kapeli is not aware of anyone in his biological family being born in Australia; no-one in Mr Kapeli's biological family has ever told him that they are descended from Aboriginal people; and Mr Kapeli does not have a genetic connection with the Worimi tribe.
In McHugh, each of Allsop CJ and Mortimer J referred to the possibility that biological descent within the first limb of the tripartite test may be broader than strict biological ancestry. Allsop CJ commented (at [65]): … it is far from clear, and not the subject of debate before us, by what relevant normative standard or standards the question of biological descent for the purposes of the tripartite test is to be assessed: Is it genealogical or biological descent strictly by blood, or does it include other features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law or custom?
Justice Mortimer expressed her agreement, stating (at [396]): I respectfully agree with the Chief Justice's reasons at [65] that the question of how the descent aspect of the tripartite test is to be determined was not the subject of detailed submissions before this Court, and is a question of some complexity. Indeed, putting to one side the prospect that the tripartite test may not be the only approach (see Love/Thoms at [80]), the relationship between on the one hand what has been said in Love/Thoms about "Aboriginality" by reference to the High Court's decision in Mabo (No 2) on the common law's recognition of native title, and on the other hand the operation of the statutory scheme of native title in the Native Title Act 1993 (Cth), is in my respectful opinion yet to be worked through in detail.
By way of illustration, her Honour made reference to Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba) where Finn J found that the practice of adoption by Torres Strait Islanders pre-dates the assertion of British sovereignty and was the subject of traditional law and custom (at [198] and [201]), and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr) where the Full Court (Wilcox, French and Weinberg JJ) found that the membership of the native title holding community includes persons recognised as members by, amongst other things, adoption in accordance with traditional laws and customs (at [9]).
I do not consider that the foregoing statements of Allsop CJ and Mortimer J constitute considered dicta binding on me. The statements do no more than raise the possibility that biological descent within the first limb of the tripartite test may be broader than strict biological ancestry.

[44]

Helmbright

The facts in Helmbright differ from this proceeding. Significantly, it was not in dispute in that case that the applicant was of Tasmanian Aboriginal descent and identified as an Aboriginal person. The issue in dispute was whether the applicant was recognised by a group of Aboriginal or Torres Strait Islander people in the sense expressed by the third limb of the tripartite test. In that case, the Minister submitted that the third limb required recognition by an Aboriginal "society" who have been continuously "united in and by [their] acknowledgment and observance of a body of law and customs" from sovereignty until the present day so that, under their laws and customs, they can also establish a continuing connection with particular land and waters, thus proving they hold native title, adopting the language of the plurality in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [53].
In that factual context, Mortimer J summarised her conclusions as follows: 5 For the reasons that follow, I find that the reasoning of the majority in Love/Thoms, reflected in the ratio decidendi of that decision, does not leave a single judge of this Court free to adopt a different test to the one set out by Brennan J in Mabo (No 2), even though the majority reasoning in Love/Thoms expressly recognises that there may be other available approaches to the determination of whether or not a person such as Mr Helmbright is an Aboriginal Australian. 6 I find the ratio decidendi of the decision in Love/Thoms does not require a single judge to apply the mutual "recognition" limb of the Mabo (No 2) test by reference to any native title approach. I also conclude the reasoning of Nettle J in Love/Thoms on this matter does not support the Minister's submission, both as to the interpretation of that reasoning, and whether it "controls" the approach a single judge must take. 7 I conclude that Brennan J's approach, although expressed in the context of a decision about common law recognition of native title, is not as narrow as the Minister submits when it is applied to the question of alienage, as Love/Thoms requires. I conclude that, aside from descent, the Mabo (No 2) test looks to "mutual recognition", that being the term used by Brennan J. The two aspects to mutual recognition are recognition by an individual that she or he is a member of the group concerned, and second, recognition by elders or others enjoying traditional authority within that group that the individual is a member. The recognition in this sense must flow both ways. 8 In Mr Helmbright's case, I conclude that on the evidence Mr Helmbright has proven the descent limb, and the self-identification aspect of the mutual recognition limb, but has not proven the second aspect of the mutual recognition limb in Mabo (No 2). He has proven that he is recognised by the community mtwAC represents, but he has not proven the recognition has been given by "elders or others enjoying traditional authority". This conclusion means he has failed to prove on the balance of probabilities he is not an alien for the purposes of s 51(xix) of the Constitution, and for the purposes of the Migration Act 1958 (Cth). However, I find that if Deane J's test in the Tasmanian Dam Case was able to be applied to the evidence about Mr Helmbright's circumstances, that test would be satisfied.
Justice Mortimer expressly recognised that the reasoning in Love/Thoms may not foreclose the possibility that an approach other than the tripartite test in Mabo (No 2) may be available to determine whether a person is, or is not, an Aboriginal Australian and therefore not an alien within s 51(xix) of the Constitution (at [117]). Nevertheless, her Honour concluded (at [110]): The specific incorporation of Brennan J's approach in Mabo (No 2) as the way the term "Aboriginal Australian" is to be understood in that proposition, binds me as a single judge of this Court to apply Brennan J's approach in determining whether Mr Helmbright is an "Aboriginal Australian".
As to the content of Brennan J's approach in Mabo (No 2) when applied in the context of s 51(xix) of the Constitution, Mortimer J undertook a detailed examination of the development in Australian law of the tripartite test which came to be expressed by his Honour in Mabo (No 2). Her Honour observed (at [125]) that the tripartite test "arose from dissatisfaction with an approach based solely on biological descent, especially when European attitudes to biological descent had in the past informed and supported some of the oppressive government and public policies towards Aboriginal and Torres Strait Islander people". Her Honour stated her conclusion as to the content of the tripartite test when applied in the context of s 51(xix) of the Constitution as follows (at [148]): In my opinion the correct understanding of the test as explained by Brennan J in Mabo (No 2) is that there must be: (a) biological descent from "the indigenous people", which is a reference to an identifiable group, clan or community; and (b) mutual recognition of a person's membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community. In this context, what is required is authority to permit or preclude membership that has its source in the norms handed down from generation to generation, since prior to European settlement.
The foregoing statement highlights an important aspect of the tripartite test, which is the interrelationship between the three limbs. Each of the three limbs is concerned with an identifiable clan, group or community of Aboriginal people, and the tripartite test requires that each limb is satisfied by reference to an identifiable group, clan or community of Aboriginal people. The test reflects the fact that each of the tribal or clan groups of indigenous peoples of Australia had, prior to European settlement, their own identity, language and laws and customs (including decision-making processes) and, despite the severe impacts caused by European settlement, frequently continue to have their own identity, language and laws and customs.
As already noted, it was not in dispute that Mr Helmbright was of Tasmanian Aboriginal descent. It was therefore unnecessary for Mortimer J to explore the first limb of the tripartite test, which is the limb in issue in the present proceeding. Referring to Brennan J's approach in Mabo (No 2), her Honour stated (at [135]): Although biological descent remains prominent in most of the tests, there is no need in the present case to explore what might be comprehended by his Honour's phrase "biological descent from the indigenous people" (emphasis added), and whether this can include, for example, biological descent from a person who was adopted under traditional law and custom by a particular group or clan; cf my observations in McHugh at [396]. Nor is it necessary to explore whether the non-citizen himself or herself could rely on adoption in accordance with traditional law and custom as a legitimate surrogate for a biological connection to a group or clan.
In the above passage, her Honour refers to two possible addenda to the first limb of the tripartite test each of which addresses a different factual circumstance.
The first addendum acknowledges that the traditional laws and customs of many Aboriginal societies recognised the adoption of children, whereby the adopted child would become a member of the society concerned (see Akiba at [198] and [201] and Alyawarr at [9], which were referred to by Mortimer J in McHugh as examples). Prior to European settlement, children who were adopted would have been born into a different Aboriginal tribal or clan group. As noted above, the formulation of the tripartite test by Brennan J in Mabo (No 2) requires that each limb be satisfied by reference to an identifiable group, clan or community of Aboriginal people. Strictly applied, the tripartite test might not include a descendant of an Aboriginal person who was born into one Aboriginal tribal or clan group but was adopted under traditional law and custom by another Aboriginal tribal or clan group. It can readily be accepted that the tripartite test should not be applied in that legalistic manner. However, those are not the circumstances of this case.
The second addendum is whether a person can rely on adoption in accordance with traditional law and custom as a legitimate surrogate for a biological connection to a group or clan. It is not clear whether her Honour contemplated, within the second addendum, a person who does not have Aboriginal ancestry. In this case, Mr Kapeli argues that, regardless of whether he has Aboriginal ancestry, he is an Aboriginal person because he has been adopted by the Worimi people.
As is apparent from the above passage, Mortimer J does not express any view whether the addenda are properly within the first limb of the tripartite test when applied in the context of s 51(xix) of the Constitution. Like the similar statements in McHugh, I do not consider that the above passage (at [135]) constitutes considered dicta binding on me. That is confirmed by her Honour's later statements in Helmbright (at [288]-[289]): There is no occasion in this case to consider the position in respect of customary adoption, or other customary ways of determining membership of a group. … … Nuances such as this, and the role of adoption under traditional law and custom, will remain to be worked out in subsequent cases where such issues arise. Mr Helmbright's argument on the first limb raises no such issues.

[45]

Hirama

The facts in Hirama differ from this proceeding in that it was an agreed fact that the applicant was an "Aboriginal Australian" as that term is used in Love/Thoms to describe a person who is not an alien within the meaning of s 51(xix) of the Constitution (at [2]). The agreed facts were that the applicant was descended from a Nyul Nyul man named Malambor, who was an apical ancestor for the Nyul Nyul native title determination; the applicant identified as a Nyul Nyul person; and the Chairperson of the Nyul Nyul PBC Aboriginal Corporation, being the registered native title body corporate under the NTA for the Nyul Nyul people, had recognised the applicant as a member of the Nyul Nyul people and as a holder of native title.
In the native title determination recorded in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854, three native title holding groups were recognised: the Jabirr Jabirr/Ngumbarl people; the Nyul Nyul people; and the Nimanburr people. In certain areas of land and waters, the three native title holding groups jointly held native title, and in other areas each of the groups separately held native title.
As Mortimer J explains in Hirama, while the Minister agreed that the applicant was an Aboriginal Australian, the Minister did so on the basis that the tripartite test should be understood as limited to membership of an Aboriginal group or society who are recognised as holding native title under the NTA (and that those requirements were satisfied in respect of Mr Hirama). Her Honour rejected that understanding of the tripartite test (at [11]), referring to her Honour's reasons published the same day in Helmbright.
The foregoing provides context for the following statement of her Honour (at [35]) on which Mr Kapeli placed some reliance: I note the Minister accepts that "descent" need not mean strict biological descent but can include adoption in accordance with the traditional law and custom of a particular group. The terms of the determination itself also make this clear. That is the case for Mr Hirama's ancestor, as the Nyul Nyul elder Mr Alec Dann explains in the letter extracted below.
The AGS legal advice that was provided to Ms Wang in the present case explained that, in Hirama, the agreed facts were that the applicant's maternal great grandfather was Mathias Dann, who was a Nimanbur man, but who had been culturally adopted into the Nyul Nyul people by Malambor's son. It followed that the applicant was not a biological descendant of Malambor, but was biologically descended from a Nimanbur man and there had been traditional adoption between the two groups several generations earlier. The AGS legal advice expressed the opinion that any concession made by the Minister in Hirama related specifically to the facts of that case and did not carry over into this case which deals with a very different set of facts.
Mr Kapeli submitted that the attempt by the AGS to distinguish Hirama from the present case was legally unreasonable and shows that the advice given to Ms Wang was unreasonable. I reject that submission. I consider the AGS's explanation of the "concession" made by the Minister in Hirama appropriately contextualises the position adopted by the Minister in that case. Further, I do not consider that Hirama provides any guidance on the meaning of the first limb of the tripartite test in the circumstances of the present case.

[46]

Montgomery

The facts in Montgomery are similar to the present case. Mr Montgomery was a citizen of New Zealand who had his visa cancelled under s 501(3A) of the Migration Act and was taken into immigration detention under s 189. Justice SC Derrington summarised Mr Montgomery's claim to be an Aboriginal Australian as follows (at [4]): Mr Montgomery claims to be an Aboriginal Australian. He says he is a Mununjali man and does not need to have a biological Aboriginal ancestor to be Aboriginal according to the traditional laws and customs of the Mununjali People … . The Minister accepts that Mr Montgomery identifies as an Aboriginal Australian, has been accepted and recognised as a Mununjali man by persons enjoying traditional authority amongst that society, but does not accept that he is an Aboriginal Australian because he is unable to point to any Aboriginal ancestor to whom he is biologically related.
As in the present case, the detaining officer deposed that she was satisfied that Mr Montgomery met the second and third limbs of the tripartite test but suspected that he did not satisfy the first limb. The officer deposed to her current understanding of the first limb of the tripartite test that a person must show biological descent and that adoption is not sufficient to satisfy the first limb (at [59(2)]).
Justice SC Derrington concluded that the Minister had failed to discharge its onus to prove that the detaining officer's suspicion that Mr Montgomery was not an Aboriginal Australian was reasonable (at [68]). In support of that conclusion, her Honour referred to the following matters.
The first matter, which appears to have been the most significant, was that the AGS had written to Mr Montgomery's representatives describing the Department's "Preliminary position on tripartite test" (at [61]). Her Honour considered it significant that the letter made no assertion as to whether the tripartite test foreclosed any other approach "to determining Aboriginality as the basis for those fundamental ties of political community in Australia" (referring to Love/Thoms at [458] per Edelman J) or supplants the rights of Aboriginal people to determine by reference to Indigenous law and customs who possesses such rights (referring to Love/Thoms at [357] per Gordon J). Her Honour concluded that the officer must have had access to the AGS letter and therefore "to have understood at least that there was a view that Love might not be confined to her narrow understanding of the first limb of the tripartite test" (at [62]).
The second matter was that the detaining officer was aware that Mr Montgomery had, on a few occasions, claimed to have biological descent, but was unaware of any additional evidence in support of those claims (at [63]). In that regard, Mr Montgomery had deposed that his father and grandmother were Maori and that his grandmother had told him that their Ngapuhi ancestors married into an Australian Aboriginal clan and that he has Aboriginal ancestors within his family, although Mr Montgomery did not know if he is directly descended from those Aboriginal ancestors (at [53(e)]).
The third matter was that Mr Montgomery had given evidence that he had received Abstudy and had engaged with various Aboriginal social service providers. Her Honour observed that this evidence raised the possibility that Commonwealth agencies, including Centrelink, may have held relevant information but the detaining officer had not made enquiries of those agencies (at [65]).
The three matters relied on by SC Derrington J in finding that the Minister had failed to discharge its onus to prove that the detaining officer's suspicion that Mr Montgomery was not an Aboriginal Australian was reasonable are not present in Mr Kapeli's case.

[47]

Hobson

The facts in Hobson differ from this proceeding and are similar to the facts in Helmbright. Mr Hobson was a citizen of New Zealand who had his visa cancelled under s 501(3) of the Migration Act and was taken into immigration detention under s 189. Justice SC Derrington summarised the Minister's position on Mr Hobson's claim to be an Aboriginal Australian as follows (at [6]): The Minister accepts that Mr Hobson is biologically descended from an Aboriginal Australian and that he identifies as an Aboriginal Australian. The Minister also accepts that Mr Hobson has been accepted and recognised as a Dharug man by Dharug Elders. The Minister contends, however, that there is no evidence that the community that has purported to recognise Mr Hobson, being the Dharug People, is one that has remained continuously united in and by its acknowledgement and observance of laws and customs deriving from before the Crown's acquisition of sovereignty, or that the recognition has been given by persons in that community with authority under laws and customs deriving from before the Crown's acquisition of sovereignty. The Minister's position is premised on the contention that this Court is bound to apply the reasoning of Nettle J in Love and that the decision of Mortimer J to the contrary in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647 is plainly wrong and should not be followed.
Justice SC Derrington concluded that the Minister had failed to prove the existence of a reasonable suspicion on the part of the detaining officer that Mr Hobson is not an Aboriginal Australian throughout the period of detention, and that was sufficient to grant the relief sought (at [67]). In that regard, Mr Hobson had been detained since 3 December 2020 and the person who became Mr Hobson's detaining officer and who gave evidence in the proceeding only assumed that role on 29 March 2022, two days before she swore her affidavit (at [64]). Her Honour observed that there was no evidence that any officer held the relevant reasonable suspicion at any time between 3 December 2020 and 29 March 2022 (at [64]).
Her Honour also found that the detaining officer had not made reasonable enquiries concerning the application of the third limb of the tripartite test, including enquiries of the Commonwealth's Office of the Registrar of Indigenous Corporations as to its understanding of Dharug people as an Aboriginal society, clan or community (at [73] and [75]). Her Honour found that the detaining officer's suspicion rose no higher than that Mr Hobson "does not meet, or probably does not meet" the third limb of the tripartite test, and that it is not sufficient for a detainer to assert that a person's detention is probably lawful (at [82]).

[48]

Principles established by each of McHugh and other decisions applying Love/Thoms

The principles that I draw from McHugh and the other decisions referred to above can be distilled to two propositions.
First, each of McHugh and the first instance decisions referred to above support a conclusion that the ratio decidendi of Love/Thoms was expressed in the statement of Bell J at [81], speaking on behalf of the majority, that Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.
Second, in Helmbright, Mortimer J concluded that this Court is required to apply the tripartite test in Mabo (No 2) in determining whether a person is an Aboriginal Australian. Her Honour explained that test as requiring:
biological descent from "the indigenous people", which is a reference to an identifiable group, clan or community; and
mutual recognition of a person's membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community, where traditional authority is to be understood as authority to permit or preclude membership that has its source in the norms handed down from generation to generation, since prior to European settlement.
Apart from the foregoing, McHugh and the other decisions applying Love/Thoms involved the application of established principles to the facts and circumstances of each case, including an assessment of whether the Minister or Department had discharged their onus of proving that the detaining officer reasonably suspected that the detained person was not an Aboriginal Australian. The facts and circumstances of each case differ in material respects to the present case, including with respect to the nature and extent of the evidence adduced on behalf of the Minister or Department, and the reasoning and conclusions in those other cases do not dictate the resolution of the present proceeding.
None of McHugh and the other decisions have decided, or expressed considered dicta, on the specific question that arises in this proceeding: whether biological descent, as referred to in the first limb of the tripartite test, includes adoption under the traditional laws and customs of an Aboriginal clan, group or community and, to the extent it does, the circumstances in which traditional adoption may satisfy the tripartite test. In each of McHugh and Helmbright, the question was raised but not examined.

[49]

Consideration of native title principles

In support of his contention that the first limb of the tripartite test does not require biological descent from an Aboriginal person and can be satisfied by adoption under traditional law and custom, Mr Kapeli relied upon a passage from the judgment of Beaumont and von Doussa JJ in Ward which considered Brennan J's reference to biological descent in Mabo (No 2). Ward was an appeal from a decision of Lee J which determined, under the NTA, that native title existed in the determination area and was held by the Miriuwung and Gajerrong people (save in respect of a part of the determination area known as Booroongoong (Lacrosse Island), in respect of which native title was also held by the Balangarra people). The passage relied on by Mr Kapeli was as follows: 232 … we think it plain that his Honour was not intending to lay down as an invariable requirement that there be strict "biological descent". Rather, we understand Brennan J to be expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty. 233 Extensive evidence was led concerning the adoption (or growing up) of children by members of the Miriuwung and Gajerrong community, and within subgroups of the community. In our opinion, the reference by Brennan J to "biological descent" was not intended to exclude such people from membership of the community. The trial judge did not err in rejecting the State's contention that a narrow and exclusive test of biological descent was required. … 235 On the evidence, the traditional laws and customs acknowledged and observed by the communities in the determination area at sovereignty, and as currently acknowledged and observed by those recognised amongst themselves as present members of the Miriuwung and Gajerrong community, did not impose a requirement of strict biological descent, let alone patrilineal descent as a prerequisite to membership. The trial judge was plainly correct as a matter of fact to observe that the genealogies admitted into evidence showed "a broad spread of links with ancestors" among the representative claimants and other witnesses who had given evidence in support of the claim. His Honour identified these people at 533-535. That broad spread of links is in our opinion sufficient proof of "biological" connection between the present community and the community in occupation at the time of sovereignty. His Honour's approach was correct in point of law and correct as a matter of fact on the evidence.
Mr Kapeli's argument in reliance upon Ward requires the following logical steps. First, the High Court majority in Love/Thoms expressed agreement with the statement that Aboriginal Australians, understood according to the tripartite test in Mabo (No 2), are not within the reach of the aliens power conferred by s 51(xix) of the Constitution. Second, Brennan J's statement of the first limb of the tripartite test (biological descent) has been interpreted in Ward, in a native title context, as encompassing traditional adoption. Third, that interpretation of Brennan J's statement of the first limb of the tripartite test has necessarily been incorporated into the ratio of the High Court's decision in Love/Thoms. There are difficulties with the stated breadth of the second step of the argument and with the logical connection with the third step of the argument.
An obvious point to be highlighted is that the subject matter of Mabo (No 2) and subsequent decisions made under the NTA (including Ward) is the recognition of native title, which requires the identification of the persons, or each group of persons, holding the common or group rights comprising the native title and the nature and extent of the native title rights and interests in relation to the relevant area of land and waters (as per s 225 of the NTA). As the High Court explained in Fejo v Northern Territory (1998) 195 CLR 96 at [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title - native title is neither an institution of the common law nor a form of common law tenure, but is recognised by the common law. Numerous subsequent cases have illustrated that the content of the traditional laws and customs acknowledged and observed by the numerous Aboriginal clans, groups and communities across Australia is not uniform and may contain different rules with respect to the inter-generational transmission of rights and interests in relation to land and waters.
It can be accepted, as Mr Kapeli submitted, that decisions of this Court have recognised, in the context of native title determinations, that the traditional law and custom of certain Aboriginal societies permitted the adoption of children from different societies. Typically, but not always, children adopted under traditional law and custom would accede to the rights and interests in land and waters held by all other members of the society. Examples of such cases include: Ward at [232]-[234]; Alyawarr at [9]; and Akiba at [198] and [201]. Whether adopted children accede to the rights and interests held by all other members of the society depends on the applicable law and custom of the society concerned. In some cases, the adopted child may hold contingent rights and interests in the relevant country as a custodian, but such rights will not be transmissible to that person's children. An example of such a case is given in Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702 at [44].
Mr Kapeli's argument approaches Brennan J's statement of the tripartite test as if it were a statutory definition which has been subsequently interpreted by the Full Court in Ward. It is not a statutory definition. It is a description, in summary form, of the usual requirements of membership of a native title holding group. As Brennan J emphasised in the same passage, native title to particular land, its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. The majority's statements in Ward that are relied upon by Mr Kapeli must be understood in that context. The majority's statements were in response to an argument advanced by the State of Western Australia that the findings of the trial judge, that each of the applicants had established the necessary continuing connection with the determination area since sovereignty, were not supportable on the evidence. Amongst other things, the State submitted that the evidence did not establish the requirements identified in Mabo (No 2) by Brennan J (at 70) of "biological descent" and "mutual recognition" (see Ward at [221]). The majority's statements explained why that argument was rejected. The majority concluded that the relevant requirement was that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs, and that a substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty. The majority's reference to "a substantial degree of ancestral connection" recognised the centrality of biological descent as the means by which native title rights and interests were transmitted under traditional law and custom, while taking account of the fact that adoption of children was practised in the traditional society.
In summary, two matters of context concerning the passage from Ward relied on by Mr Kapeli should be emphasised. First, the passage concerned the identification of the native title holding group for the purposes of making a determination of native title under the NTA. Second, the passage recognised that, under the traditional law and customs of the Miriuwung and Gajerrong people, the descendants of persons who had, in previous generations, been adopted as children by members of the Miriuwung and Gajerrong community were regarded as members of the Miriuwung and Gajerrong people and as holding native title rights and interests.
In my view, the attempt by Mr Kapeli to transplant the majority's statements in Ward into the High Court's ratio in Love/Thoms, and thereby include within the meaning of Aboriginal Australian a person who has no Aboriginal ancestry but has been adopted under the traditional law and custom of an Aboriginal clan, group or community, should be rejected for three reasons.
First, and as explained earlier in these reasons, the majority judgments in Love/Thoms provide no express support for the contention that an Aboriginal Australian, in this constitutional context, can include a person who has no Aboriginal ancestry.
Second, whilst the majority in Love/Thoms agreed that the tripartite test was a suitable test by which to answer the constitutional question raised in the case, the basis for that agreement did not emanate from, and did not depend upon, the possession of native title rights and interests; rather, the agreement flowed from a recognition of the unique ancestral connection between Aboriginal people and their traditional lands: see Bell J at [71]; Nettle J at [277]; Gordon J at [364]-[365]; Edelman at [451]. As discussed earlier, in adopting a definition of Aboriginal Australians (as persons who could not possibly be regarded as aliens), each of the majority judgments emphasised the requirement of biological descent from Aboriginal forebears as establishing ancestral connection to land and waters.
Third, to accept that a person, who has no Aboriginal forebears, may become an "Aboriginal Australian" (and thereby a person who could not possibly be regarded as an alien) by virtue of recent adoption by an Aboriginal community would conflict with established authority that a non-citizen remains an alien notwithstanding that they have been absorbed into the Australian community. It would, in effect, confer on each and every Aboriginal community the authority to convert a non-citizen's status from an alien into a non-alien by means of adoption of the non-citizen into the community. A non-citizen adopted in that manner would not have the characteristics of an Aboriginal Australian identified by the High Court majority in Love/Thoms - specifically, the unique ancestral connection between Aboriginal people and their traditional lands.
The conclusion so expressed should be understood as confined to the facts of this case, involving a person who is not descended from an Aboriginal clan, group or community with ancestral connection to traditional lands and waters. Different considerations would arise in a case where the facts are similar to those that arose in Ward, involving persons who are descendants of an Aboriginal clan, group or community, but whose forebears may have been adopted as children under traditional law and custom and who have ancestral connection to traditional lands and waters through those forebears.

[50]

Evidentiary inference of Aboriginal descent

A further submission advanced by Mr Kapeli is that, even if Aboriginal Australians within the meaning of the majority judgments in Love/Thoms are persons who satisfy the tripartite test in Mabo (No 2), and the first limb of the tripartite test requires biological descent from an Aboriginal person, satisfaction of that limb of the tripartite test may be inferred from satisfaction of the other two limbs. In support of that contention, Mr Kapeli referred to Attorney-General (Cth) v Queensland at 132-133 (Spender J) and 147-148 (French J); Watson at [7] (Cox CJ); Stevenson at [38] (McMurdo P), [81] (McPherson JA) and [133] (Fryberg J); and Ofu-Koloi at 175 (Dixon CJ, Fullagar and Taylor JJ)).
The cases relied on by Mr Kapeli provide no support for an evidentiary inference that Mr Kapeli has Aboriginal ancestry. The legal and factual context of the statements relied on by Mr Kapeli in each of those cases is entirely different to the present case. Broadly, the cases involved circumstances in which Aboriginal descent was difficult to prove from documentary records, but where a long historical family association with an Aboriginal community and recognition by the Aboriginal community provided evidentiary support for a finding of Aboriginal descent.
Attorney-General (Cth) v Queensland concerned the meaning of the word "Aboriginal" in Letters Patent establishing a Royal Commission into deaths of Aboriginal people and Torres Strait Islanders while in police custody. Justice Spender considered that a person who is of Aboriginal descent is Aboriginal for the purposes of the Letters Patent, but also observed that where Aboriginal descent is uncertain, the factors of self-identification and recognition by the Aboriginal community may have an evidentiary value in the resolution of the question of descent (at 132-133). Justice French also concluded that, for the purposes of the Letters Patent, Aboriginal descent is a sufficient criterion for classification as Aboriginal (at 148).
Watson concerned the meaning of the word "Aboriginal" in the Aboriginal Lands Act 1995 (Tas) to determine whether a person could be included on the Aboriginal Land Council of Tasmania Electors Roll. The word "Aboriginal" was defined in s 3 as having the meaning given to that expression for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), which in turn defined an "Aboriginal person" as "a person of the Aboriginal race of Australia". It was not in dispute that this required proof of Aboriginal ancestry. Cox CJ referred (at [7]) with approval to the statements of Drummond J in Gibbs v Capewell (1995) 54 FCR 503 (Gibbs) at 512, and Merkel J in Shaw v Wolf (1998) 83 FCR 113 (Shaw) at 122, to the effect that evidence as to the process by which self-identification and communal identification occurs can be logically probative of descent.
Stevenson concerned the meaning of the word "Aborigine" in s 14 of the Fisheries Act 1994 (Qld) which stipulated that "An Aborigine may take, use or keep fisheries resources … under Aboriginal tradition" and thereby provided a defence to the prohibition in s 84 of that Act of the unlawful possession of fishing apparatus. The relevant question was whether Mr Yasso was an Aborigine within the meaning of the Act. McMurdo P observed (at [38]) that the word "Aborigine" should be given its ordinary meaning and does not require an ethnological enquiry, and that pertinent considerations are whether the person said to be an Aborigine is of Aboriginal descent, identifies himself or herself as an Aborigine and is recognised in the Aboriginal community as being an Aborigine. Each of McPherson JA (at [81]) and Fryberg J (at [133]) concluded that Mr Yasso was an Aborigine within the statute because his grandmother was an Aborigine of the Darumbal people and Mr Yasso identified with that community.
Ofu-Koloi concerned a provision of a law of the Territory of Papua titled White Women's Protection Ordinance 1926-1934" which provided that "any person who unlawfully and indecently deals with a European girl under the age of fourteen years shall be guilty of a crime". Section 71A of the Evidence and Discovery Ordinance 1913-1952 provided that: "In any prosecution, if the court, judge, magistrate, justice or justices do not consider that there is sufficient evidence to determine the question whether a person is a native, part-native or European, the court, judge, magistrate, justice or justices having seen the person may determine the question". The ground of appeal to the High Court against conviction was that the primary judge erred in ruling that the victim of the alleged crime was European. The High Court concluded that the terms "European", "native" and "part-native" take a vernacular meaning and "do not call upon the courts to make an ethnological inquiry of a scientific, historical or scholarly character" (at 175). Nevertheless, the High Court confirmed that "[r]acial origin or derivation is the criterion" (at 176).
None of the above cases assist Mr Kapeli. His circumstances are in no way analogous to the facts of the above cases. The facts that Mr Kapeli identifies as a Worimi man, and is recognised as a Worimi man by certain elders of that community, do not provide any evidentiary support for a finding that Mr Kapeli has Aboriginal ancestors (far less Worimi ancestors) in circumstances where Mr Kapeli's forebears were Tongan, Mr Kapeli arrived in Australia as an adult, and Mr Kapeli has been socially accepted as a member of the Worimi community through family and personal connections in relatively recent times.

[59]

Section 198 of the Migration Act

Section 198 is a lengthy and complex provision which defines the circumstances in which an officer must remove an unlawful non-citizen from Australia. There are many such circumstances which are separately defined in subss (1), (1A), (1C), (2), (2A), (2B), (5), (6), (7) and (8). Each of those subsections states that an "officer must remove as soon as reasonably practicable an unlawful non-citizen" who meets the specific circumstances defined in the subsection. The parties' arguments focus on subss (1), (2A), (2B) and (5). It is convenient to reproduce those subsections, without losing sight of the overall structure of the section: 198 Removal from Australia of unlawful non‑citizens Removal on request (1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed. … Removal of unlawful non‑citizens in other circumstances … (2A) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if: (a) the non‑citizen is covered by subparagraph 193(1)(a)(iv); and (b) since the Minister's decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and (c) in a case where the non‑citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision - either: (i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or (ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision. Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in regulations under section 501E. (2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if: (a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and (b) since the delegate's decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and (c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision - either: (i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or (ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision. Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2). … (5) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen: (a) is a detainee; and (b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa; regardless of whether the non‑citizen has made a valid application for a bridging visa.

[61]

The respondents' written submissions post-hearing

The respondents submitted that, properly construed, s 198(5) has no application to a person who falls within the scope of s 198(2B), save that no decision has yet been made by the Minister whether to revoke the cancellation of the relevant visa under s 501CA. In other words, s 198 should be construed such that, where a person satisfies the conditions in s 198(2B)(a) and (b), and has made representations under s 501CA, but in respect of which no decision has yet been made under s 501CA, that person is not subject to a removal duty under s 198(5). The respondents submitted that to construe s 198(5) as applying to such a person would be to cut across the intended operation of s 198(2B) and would cause substantial injustice to affected persons. The respondents submitted that this construction is supported by both purposive and contextual considerations, including the legislative history, and by authority.
The respondents submitted that it is clear from the terms of s 198(2B) that Parliament's intention is that a person whose visa has been cancelled by the Minister's delegate under s 501(3A), who has not since applied for a substantive visa, and who has made representations seeking revocation of that cancellation decision, is not to be removed until a decision is made by the Minister in response to those representations under s 501CA of the Act. However, if Mr Kapeli's construction of s 198 is accepted, such a person could be removed under s 198(5) before the Minister makes a decision under s 501CA. The respondents submitted that such a construction would therefore conflict with the apparent purpose of s 198(2B), and would render the requirement in s 198(2B)(c) otiose. The respondents also submitted that Mr Kapeli's construction would also give rise to unfair and perverse results. It would deprive persons of the benefit of the scheme for revocation of cancellation, because it would expose them to removal before their request for revocation had been determined.
The respondents referred to three authorities that support the respondents' submission concerning the purpose of s 198(2B) (albeit that those cases did not consider the interaction between ss 198(2B) and (5) and the issue that arises in this case):
In BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43 (BDS20), the Full Court was concerned with the question whether the Minister could invite a person to make representations under s 501CA(3) more than once. As a contextual matter bearing upon that question, Banks-Smith and Jackson JJ observed (at [112]) that: "Section 198(2B)(c) is describing the way that the obligation to remove the non-citizen can be deferred pending the outcome of a process to determine whether to revoke the cancellation of the visa". The respondents noted that BDS20 was overturned on appeal by the High Court in accordance with consent orders, but on the unrelated basis that the purported invitation to the appellant under s 501CA(3) was invalid (see [2022] HCATrans 41). The respondents submitted that the reasoning in BSD20 remains persuasive, and was adopted by Allsop CJ in Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 521 at [9].
In McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258, the principal issue was whether the Minister's decision not to revoke the cancellation of a visa under s 501CA was invalid. Justice Colvin found that it was invalid and quashed the purported decision. That raised the question of whether mandamus should issue, and on what terms. In the course of his Honour's reasons, Colvin J concluded that there is an obligation for the Minister to undertake the statutory task as required by s 501CA within a reasonable period of any representations being made (at [114]). His Honour observed that, if that were not the case: It would also mean that a person could be held in immigration detention indefinitely. That is because the Migration Act qualifies the statutory obligation to remove an 'unlawful non-citizen' (a non-citizen in Australia who does not hold a visa: see s 13 and s 14) in cases where the procedure in s 501CA must be followed. Section 193(1), s 198(2A) and s 198(2B) provide that where s 501CA applies and a person has made representations about revocation, the obligation to remove does not arise until a decision has been made not to revoke the cancellation. If there is no statutory obligation for the decision to be made within a reasonable period then there could be indefinite detention of a person who seeks revocation of a decision to cancel their visa.
In Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653, Middleton J observed (at [105]): … as a consequence of s 198(2A), no immediate obligation to remove the Applicant as soon as reasonably practicable arose at the point of cancellation. The obligation to remove would only arise upon the happening of certain further contingencies, including that the Applicant either not make representations for revocation within the period for doing so, or that he make representations and the Minister makes a subsequent and separate decision not to revoke the cancellation decision.
The respondents submitted that the relationship between ss 198(2B) and (5) is readily explained on the basis of the interpretive principle stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 and Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678. Parliament has by ss 198(2B) and (5) conferred the "same power" (removal as soon as reasonably practicable) and there is substantial overlap between the conditions for the enlivenment of the power. However, by s 198(2B)(c), Parliament has prescribed an additional restriction on the power, which should be construed as excluding the operation of the general provision in s 198(5) that would otherwise apply.
The respondents observed that the same interpretative difficulty does not arise with respect to s 198(1) because the duty to remove an unlawful non-citizen arises from entirely different circumstances: viz, a written request for removal from the person being detained.
The respondents further submitted that their preferred construction of s 198 is supported by the legislative history.
Before 1 June 1999, a person whose visa was cancelled, and who was consequently detained under s 189 of the Migration Act, was required to be told about the consequences of cancellation under s 194 (including the right to apply for a visa under s 195 or for revocation of cancellation under s 137K) and could relevantly apply for a visa under s 195. Section 137K is part of the scheme for the automatic cancellation of student visas inserted by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) which is not presently relevant. The only removal duty in respect of such a person was contained in s 198(5), which then provided: An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) was entitled to apply for a visa in accordance with section 195 but did not do so.
On 1 June 1999, the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (1998 Amendment Act) inserted s 193(1)(a)(iv) into the Migration Act. One effect of that insertion was to disapply ss 194 and 195 to persons detained under s 189 because of a personal decision of the Minister to refuse or cancel their visa under ss 501, 501A or 501B. By extension, that insertion had the further effect that the removal duty under s 198(5) could no longer apply in respect of such persons (as such persons were not entitled to apply for a visa in accordance with s 195). The 1998 Amendment Act also inserted s 198(2A), which created a new removal duty for persons detained because of a personal decision of the Minister. Accordingly, at this time, a person who satisfied the conditions in s 198(2A) could only be removed from Australia under that subsection. The person could not be removed under s 198(5). It was only if, and when, the Minister made an adverse revocation decision that the removal duty under s 198(2A) was engaged.
The Migration Legislation Amendment Act (No 1) 2014 (Cth) repealed and substituted s 198(5)(b), so that it thereafter provided (emphasis added): (5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa; regardless of whether the non-citizen has made a valid application for a bridging visa.
The respondents submitted that s 198(5)(b) was re-expressed as applying to persons who had not, as a matter of fact, applied for a visa under s 195. The respondents acknowledged that the change in language in s 198(5)(b) opened up a possible argument that a person who hitherto could only have been removed under 198(2A) and not (5) (because they were not "entitled" to make an application under s 195) could now also be removed under s 198(5). The respondents submitted that there is no indication in the extrinsic materials that there was any intention to change s 198(5) insofar as it applied to persons detained because of a personal decision of the Minister.
I interpolate at this point that the respondents' submissions did not expressly refer to the possibility that, despite the change in the language of s 198(5)(b), the section should be construed as containing an implicit condition that the detainee is entitled to apply for a substantive visa in accordance with s 195(1) or to apply under s 137K for revocation of the cancellation of a substantive visa. It would be non-sensical for the duty of removal to arise because the detainee has not applied for a visa under s 195 or the revocation of the cancellation of a visa under s 137K, but where the detainee has no legal right to make those applications.
The final steps in the legislative history are that, on 11 December 2014, the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) inserted into the Migration Act the scheme of mandatory cancellation in s 501(3A), and revocation of the cancellation in s 501C. Then, on 23 February 2017, the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) inserted s 198(2B) into the Migration Act. That provision replicates s 198(2A) but applies only to cancellation decisions made by delegates of the Minister under s 501(3A) and corresponding revocation processes under s 501CA.
The respondents submitted that the legislative history indicates that:
the clear intent when s 198(2A) was first enacted was that the subsection would confer the only power to remove persons whose visas had been cancelled by the Minister personally under s 501, and there has never been any intention to depart from this; and
the apparent purpose of inserting s 198(2B) into the Migration Act was to align the removal regime applicable to persons whose visas were cancelled by delegates with the regime in s 198(2A) (which is applicable to persons whose visas were cancelled by the Minister personally).

[62]

Mr Kapeli's written submissions in reply post-hearing

Mr Kapeli's written submissions in reply post-hearing were unpersuasive. The submissions were based on mischaracterisations and, on occasion, misstatements of authority and a perverse argument that the purpose of the power of removal in s 198 of the Migration Act was the "restoration of liberty" and the "protection of liberty". The submissions were replete with quotations of phrases or sentences from other decisions of this Court - what might be described as "snippets" - where the snippet was taken entirely out of context and where the ratio of the decision is either irrelevant to Mr Kapeli's contention or, worse, contrary to Mr Kapeli's contention.
Mr Kapeli's submissions commenced by citing SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 (SPKB) at [101]-[103] as support for the proposition that "each sub-section of s 198 operates in its terms as soon as the conditions within the subsection have been satisfied". That submission involves a mischaracterisation, if not a misstatement, of the reasons of Lander J. His Honour stated (at [103]) that: "Section 198(6) operates in its terms as soon as the conditions within the subsection have been satisfied". His Honour's statement was only concerned with s 198(6), and his Honour was not addressing the circumstance, which arises in this case, about the potential overlap and conflict between two subsections of s 198.
Next, Mr Kapeli's submissions propounded that the removal power in s 198 has a "focus on the restoration of liberty", that the statutory purpose is "to compel removing officers to restore a person's liberty with maximum haste", and that this purpose "is consistent with the prime importance given by the law generally to the protection of liberty". The submission inverts the statutory purpose of detention and removal under the Migration Act. The purpose of the removal power is to expel or deport from Australia an alien who has no legal right to remain, and the purpose of detention is in aid of the purpose of expulsion or deportation: Lim at 32 and 33 (Brennan, Deane and Dawson JJ). As Nettle J observed in Falzon (at [92], citations omitted): … As a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country. Consequently, as was decided in Robtelmes v Brenan and has ever since been regarded as settled law, Parliament has power under s 51(xix) of the Constitution to make laws for the deportation of non-citizens for whatever reason Parliament thinks fit. And, as Gibbs CJ observed in Pochi v Macphee, it is only to be expected that it should be so; for such a power is essential to national security.
It can be accepted that s 198 requires removal as soon as reasonably practicable and there is a legitimate concern with respect to lengthy and indefinite detention. As affirmed by the High Court in NZYQ, continuing detention is unlawful if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. But Mr Kapeli's submission that the purpose of removal is the "restoration of liberty" ignores a fundamental countervailing consideration: the entitlement of an unlawful non-citizen to pursue lawful means under the Migration Act to remain in Australia rather than be expelled or deported. Section 198 balances those countervailing considerations by, on the one hand, empowering a detainee under s 198(1) to request their removal from Australia and, on the other hand, conditioning the power of removal on the finalisation of available avenues to obtain a visa to remain in Australia (and be released from detention).
It is in that context that Mr Kapeli's submissions misapply snippets from numerous authorities. It is unnecessary to refer to every snippet quoted by Mr Kapeli. The following examples illustrate the flaws in Mr Kapeli's submissions.
First, Mr Kapeli cited Le as next friend for Lin Yan v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 388 in support of the proposition that the removal powers in the Migration Act have long been recognised as "directed to the prevention of unjustified detention". The report of the judgment in the Administrative Law Decisions (cited by Mr Kapeli) is only a headnote. The head note states that Gallop J decided (amongst other things) that s 54P of the Migration Act (the predecessor to s 198) is directed to the prevention of unjustified detention and not to the frustration of the capacity of the designated person to seek review from the courts. The statement in the headnote is somewhat obscure, but indicates a concern that the removal power is not to be used to prevent a detainee from having a relevant migration decision challenged in Australian courts. The unreported judgment (number 669 of 1994, 1 September 1994) reveals that Gallop J adopted a submission made by the applicant to the effect stated in the headnote, set out above. However, the unreported judgment clarifies that the applicant's submission in that case was made in reliance on the decision of Burchett J in Khim v Minister for Immigration (1993) 39 FCR 535 where his Honour observed (at 536) that precipitate action (ie, deportation pursuant to s 54P), if taken in cases involving refugee claims, might lead not merely to denials of justice but to underserved imprisonment or execution of the deportee (in both cases, in the receiving country). Read in context, the decision of Gallop J stands for the opposite principle than the one asserted by Mr Kapeli; it stands for the principle that s 54P is not intended to frustrate the entitlement of a detainee to remain in Australia while seeking lawful review of the relevant migration decision that renders them an unlawful non-citizen.
Second, Mr Kapeli cited the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 (Al Masri) at [122] in support of the proposition that Parliament was working on the assumption that s 196 and s 198 would together operate to bring detention to an end. That statement appears in the judgment of the Full Court, but the passage in which it appears is directed to the issue of indefinite detention and the ability of the detainee to bring their detention to an end by requesting removal under s 198(1). The Full Court observed (at [122]): Although the expression "reasonably practicable" in s 198 does not imply immediacy, the conferral upon a person detained of the power to enliven the mechanism for removal, and the duty to engage that mechanism, suggests again that Parliament was working on the assumption that ss 196 and 198 would together operate to bring detention to an end, and that it was not acting upon the very different understanding that they would operate together even where there was no real prospect of removal and thus no real prospect of detention coming to an end within any reasonably foreseeable timeframe.
The Full Court concluded in that case that the power to detain under s 196(1)(a) of the Migration Act is subject to an implied limitation that the period of mandatory detention does not extend to a time where there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention, a principle in accordance with the High Court's decision in Lim and that has now been affirmed by the High Court in NZYQ. Thus, properly understood, the decision in Al Masri provides no support for Mr Kapeli's contention. Section 198 does not operate to restore a person's liberty; rather, to the extent that s 196 operates to detain a person indefinitely, it is beyond power and the person must be released from detention.
Third, Mr Kapeli cited Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483 at [143] in support of the proposition that the intended effect of s 198(5) and other sub-sections of s 198 is to restore the detainee's liberty by removing the person from Australia and immigration detention. Again, that statement appears in the reasons of Feutrill J (in so far as it refers to s 198(5)), but the passage in which it appears is to a different effect. At that point of the reasons, his Honour was considering whether to continue an interlocutory injunction preventing the Minister from removing the detainee from Australia. In that context, his Honour observed (at [143]): There is an evident tension between the intended effect of s 198(5), which is to restore the detainee's liberty by removing the person from Australia and immigration detention, and the appellant's desire to remain in Australia pending his appeal and the potential reconsideration of his application for the grant of a visa, which will result in the appellant remaining in immigration detention until a visa is granted or he is removed from Australia. As a consequence, if the appeal were to fail (as it has), the appellant would remain in detention for a longer period of time than would otherwise have been the case. Against that, I have taken into account that it is the appellant's desire to remain in Australia and that he must be taken to understand the consequence of the grant of the injunction.
As can be seen from the above passage, his Honour appreciated that the effect of an injunction would prolong detention, but the appellant chose that option in order to pursue legal avenues to remain in Australia.
Fourth, Mr Kapeli cited M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at [54]-[55] in support of the proposition that no sub-section of s 198 gives an officer a choice - he or she is obliged to remove a person from Australia if the conditions set out in the provision are satisfied. The submission is a misstatement of the reasons of the Court. In a joint judgment, Goldberg, Weinberg and Kenny JJ stated that s 198(6) does not give an officer a choice, explaining that the subsection imposes a duty and does not merely confer a power. However, like SPKB, their Honours' statement was only concerned with s 198(6), and their Honours were not addressing the circumstance, which arises in this case, about the potential overlap and conflict between two subsections of s 198.
Fifth, Mr Kapeli cited BDS20 at [110] in support of the proposition that the detention of the person which is mandatory under s 189 causes suffering to the detainee and cost to the Commonwealth and it should not be permitted to continue longer than necessary. Again, that statement appears in the joint reasons of Banks-Smith and Jackson JJ, but the statement is not concerned with the power of removal under s 198 and provides no support for Mr Kapeli's contention that the purpose of the power of removal is the restoration of liberty. The statement concerned the proper construction of s 501CA(3)(b) and whether the Minister was legally entitled to invite representations with respect to the revocation of the cancellation of a visa on more than one occasion. In that context, Banks-Smith and Jackson JJ said (at [110]): Our construction of the power conferred by s 501CA(3) is also consistent with other aspects of the Migration Act. The detention of the person which is mandatory under s 189 causes suffering to the detainee and cost to the Commonwealth. It should not be permitted to continue longer than necessary. This supports a view of s 501CA(3) that it provides a limited window of time within which the possibility of revocation, which will necessarily extend any immigration detention, is to be invoked.
Two matters can be observed from the quoted paragraph. First, it says nothing about the purpose of s 198 and provides no support for Mr Kapeli's contention. Second, it highlights the importance of the procedure under s 501CA by which a person whose visa has been mandatorily cancelled under s 501(3A) can seek revocation of that cancellation. Subsections 198(2A) and (2B) address those procedures and impose a duty of removal only after those procedures have been followed.
Mr Kapeli submitted that the contention that multiple removal obligations under s 198 can persist and co-exist is recognised by the following passage in the joint judgment of Gageler and Gordon JJ in Falzon (at [86], with whom Nettle J agreed at [92]): At all times while the plaintiff has been detained, the Act has imposed a duty on an officer to remove the plaintiff as soon as reasonably practicable. When the plaintiff was first taken into immigration detention on 14 March 2016, the obligation to remove him was to be found in s 198(5) of the Act, because he had not applied for a visa under s 195(1). In addition, the effect of s 198(2B) is that it applies "in relation to" both the decision to cancel the plaintiff's visa and the invitation issued to the plaintiff to make representations about revocation. Since its commencement, that sub-section has imposed an obligation on an officer to remove the plaintiff as soon as reasonably practicable following the decision not to revoke the cancellation of his visa.
Two observations can be made about that passage. First, the issue raised in this proceeding was not before the High Court in Falzon. Second, the above passage might be understood as conveying the opposite meaning to that submitted by Mr Kapeli. It is apparent from the passage that Gageler and Gordon JJ were conscious of the legislative history of s 198. That explains their Honours' statement that, when the plaintiff was first taken into immigration detention on 14 March 2016, the obligation to remove him was to be found in s 198(5) of the Act. That statement recognises that s 198(2B) was not introduced until 23 February 2017. Their Honours then address s 198(2B) separately and in a manner that suggests their Honours perceived that s 198(2B) was the provision that applied to the plaintiff's circumstances.

Kapeli v Secretary, Department of Home Affairs

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (19)

Cases Cited (63)

Cited By (2)