McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Cases cited: Ainslie v Ainslie [1927] HCA 23; 39 CLR 381 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 Antunovic v Dawson [2010] VSC 377; 30 VR 355 Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 Attorney-General (Cth) v Queensland (1990) 25 FCR 125 Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305; 350 ALR 494 Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) [2003] FCA 1525; 137 FCR 317 Bae v The Queen [2020] SASCFC 7 Barnardo v Ford [1892] AC 236 BC v The Public Advocate & Ors [2018] SASC 193 Bhalsod v Perrie [2018] WASCA 108; 84 MVR 469 Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 Blatch v Archer (1774) 1 Cowp 63; 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56 MVR 70 Eatock v Bolt [2011] FCA 1103; 197 FCR 261 EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 Ex parte Walsh; In re Yates [1925] HCA 53; 37 CLR 36 Ex parte Williams [1934] HCA 48; 51 CLR 545 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 Fremlin v Fremlin [1913] HCA 25; 16 CLR 212 Gargan v DPP [2004] NSWSC 10; 144 A Crim R 296 George v Rockett [1990] HCA 26; 170 CLR 104 Gibbs v Capewell (1995) 54 FCR 503 Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 Gore v Australian Securities and Investments Commission [2017] FCAFC 13; 249 FCR 167 GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; 72 NSWLR 647 Greene v Secretary of State for Home Affairs [1942] AC 284 Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; 160 FCR 465 Guo v Commonwealth [2017] FCA 1355; 258 FCR 31 Hardess v Beaumont [1953] VLR 315 Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 Hicks v Ruddock [2007] FCA 299; 156 FCR 574 Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCAFC 48 Hussein v Chong Fook Kam [1970] AC 942 In the Marriage of Ferrier-Watson and McElrath [2000] FamCA 219; 26 Fam LR 169 In the Matter of Marianne Watson (No 2) [2001] TASSC 105 Jane v Westminster Magistrates' Court [2019] EWHC 394 (Admin); [2019] 4 WLR 95 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 Knox County v Ninth National Bank, 147 US 91 (1893) Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 Liversidge v Anderson [1942] AC 206 Lloyd v Wallach [1915] HCA 60; 20 CLR 299 Love v Commonwealth of Australia [2020] HCA 3 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Mason v Tritton (1994) 34 NSWLR 572 Matete v Minister for Immigration and Citizenship [2009] FCA 187 McGregor v Australian Mortgage, Land and Finance Co (1898) 15 WN (NSW) 128 McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 Metropolitan Gas Go v Federated Gas Employers' Industrial Union [1925] HCA 5; 35 CLR 449 Minister for Home Affairs v Tervonen [2008] FCAFC 24; 166 FCR 91 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Morris v Kanssen [1946] AC 459 Muramats v Commonwealth Electoral Officer (WA) [1923] HCA 41; 32 CLR 500 Murray v Director General, Health & Community Services Victoria (unreported, Eames J, 23 June 1995) Okwume v Commonwealth of Australia [2016] FCA 1252 Ousley v The Queen [1997] HCA 49; 192 CLR 69 Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 Patmore v Independent Indigenous Advisory Committee [2002] FCAFC 316; 122 FCR 559 Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 Plaintiff M47/2018 v Minister for Home Affairs & Anor [2019] HCATrans 9 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 93 ALJR 732; 367 ALR 711 PR v Department of Human Services [2007] VSC 338 Prior v Mole [2017] HCA 10; 261 CLR 265 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Brewer [1942] HCA 33; 66 CLR 535 R v Davey; Ex parte Freer [1936] HCA 58; 56 CLR 381 R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; 3 CLR 93 R v Noonan [2002] NSWCCA 46; 127 A Crim R 599 Radlich v Bank of New Zealand (1993) 45 FCR 101 Re Bryning, deceased [1976] VR 100 Re McKenzie (1951) 51 SR (NSW) 293 Re Nash (No 2) [2017] HCA 52; 263 CLR 443 Re Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; 68 ALJR 668; 123 ALR 478 Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 Sadiqi v Commonwealth (No 2) [2009] FCA 1117; 181 FCR 1 Schlieske v Federal Republic of Germany (1987) 14 FCR 424 Secretary of State for Home Affairs v O'Brien [1923] AC 603 Selby v Pennings (1998) 19 WAR 520 Shaw v Wolf (1998) 83 FCR 113 Singh v Commonwealth of Australia [2004] HCA 43; 222 CLR 322 Snedden, Minister for Immigration v Ng Chong Sun [1969] HCA 20; 121 CLR 413 SZRTN v Minister for Immigration and Border Protection [2015] FCA 305 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 Te v Minister for Immigration and Multicultural and Indigeneous Affairs [2004] FCAFC 15; 204 ALR 497 Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 Udny v Udny (1869) LR 1 Sc & Div 441 United Transport Services Pty Ltd v Evans [1992] 1 VR 240 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 Wall v The King; Ex parte King Won (No 1) [1927] HCA 4; 39 CLR 245 Warner v Hung (No 2) [2011] FCA 1123; 297 ALR 56 Watson v Lee [1979] HCA 53; 144 CLR 374 Western Australia v Manado [2020] HCA 9 Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 Williams v The Queen [1986] HCA 88; 161 CLR 278 Yoxon v Secretary to Department of Justice [2015] VSC 124; 50 VR 5

Date of last submissions: 31 March 2020 (Respondent) 2 April 2020 (Applicant)

National Practice Area: Administrative and Constitutional Law and Human Rights

Solicitor for the Respondent: Australian Government Solicitor

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGE: ANDERSON J DATE OF ORDER: 7 April 2020

1. The name of the respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
2. Leave is granted for the applicant to rely on the "Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)" dated 11 March 2020 (Amended Application).
3. There be an extension of time for the filing of the Amended Application.
4. The applicant's application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed.
5. The costs of the habeas corpus application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS i. INTRODUCTION [1] Edward McHugh: Immigration, adoption, adulthood, detention [3] Detention and impending deportation [8] Legal challenge in this Court [11] Alleged unlawfulness of detention [13] Summary of my decision [17] ii. Background to this proceeding [24] Cancellation of applicant's visa [25] Minister's decision [42] Proceeding in this Court [44] Section 78B notices [51] Hearing of the application [59] III. Minister's basis for restraint [62] IV. Jurisdictional limitation [65] Limited original jurisdiction of the Federal Court [66] "Migration decision" [70] Application to the present case [81] Residual original jurisdiction [88] Consideration of alternative analyses [90] v. Direct CHALLENGE to detention [94] Habeas corpus [95] Jurisdiction of this Court [96] History and nature of the remedy [98] Onus of proof [101] Prima facie justification for restraint [106] Proper respondent [118] Prima facie justification for applicant's detention [120] Officer's suspicion [123] "An officer" [126] Inference of a suspicion [135] Key authorities [136] Admissibility of evidence [149] Evidence supporting inference of a suspicion [156] Consideration [170] Conclusion on officer's suspicion [188] VI. Applicant's Aboriginality [190] Love v Commonwealth of Australia [191] Biological descent [200] Relevant authorities [204] Modes of proof [227] Applicant's evidence [230] Consideration [234] Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant [237] Alternative analysis: Direct challenge to lawfulness of applicant's detention [243] Conclusion on Aboriginality [246] VII. Applicant's citizenship [248] Applicant's claim to citizenship [250] Historical legislative framework [256] New Zealand citizenship [256] 1948 Citizenship Act [257] "British subject" status [257] Criteria for citizenship [260] 1984 amendments [265] 1991 amendments [269] 2007 Citizenship Act [270] Enrolling to vote in Australia [273] Obtaining an Australian passport [276] Citizenship by birth? [279] Applicant's adoption order and birth registration [281] "Born in Australia" [286] "Domicile of origin" [301] Common law position [301] Statutory modification to "domicile of origin" [306] Policy underpinning adoption order [309] Interpretation of the 1948 Citizenship Act [316] Presumption of citizenship? [324] Applicant's evidence [325] Presumption of regularity [329] Consideration [338] Conclusion on citizenship [351] Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant [351] Alternative analysis: Direct challenge to lawfulness of applicant's detention [352] VIII. conclusion [353] Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant [354] Alternative analysis: Direct challenge to lawfulness of applicant's detention [356] Reasonableness of officer's suspicion [357] Habeas corpus revisited [370] Ix. ORDERS [375] Costs [375] Pronouncement [376]

i. INTRODUCTION 1 The applicant, Edward McHugh, demands that the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), justify the lawfulness of the applicant's custody in immigration detention. Subject to the outcome of this proceeding, the applicant is liable to be removed from Australia as an unlawful non-citizen. However, the applicant contends that he is not an unlawful non-citizen. The applicant seeks immediate release from detention. 2 The applicant argues that he cannot be lawfully deported, nor lawfully subject to immigration detention. This is because, according to the applicant, he is, first, an Aboriginal Australian and, second, an Australian citizen. The Minister rejects these claims. The Minister asserts that the applicant, who is a New Zealand citizen, is an "alien" to Australia for constitutional purposes, and is accordingly liable to lawful deportation.

Edward McHugh: Immigration, adoption, adulthood, detention 3 The applicant was born in 1968 in the Cook Islands. This, by operation of New Zealand law, made him a citizen of New Zealand. The applicant never knew his biological father and was abandoned by his biological mother shortly after birth. The applicant was initially raised by another Cook Islander woman until her passing in 1974. Thereafter, when the applicant was six years old, that woman's daughter, Maryanne McHugh, and her husband, Kevin McHugh, cared for the applicant, but did not formally adopt him at that time. Kevin McHugh was born in Australia. However, Maryanne McHugh was born in the Cook Islands, and did not become an Australian citizen until 1997. Neither Maryanne McHugh, nor Kevin McHugh, are biological relatives of the applicant. 4 The applicant first arrived in Australia in 1975, when he was seven years old. His incoming passenger card recorded him as an Australian citizen. He was formally adopted by Maryanne and Kevin McHugh in 1976, almost 21 months after arriving in Australia. Two days after the making of the adoption order, the applicant's birth was registered in Queensland. The registration identified Maryanne and Kevin McHugh as the applicant's parents. It was not until 2013, when the applicant was 45 years old, that he learned that he had been adopted, rather than born to, his adoptive parents. 5 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. 6 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. 7 Other aspects of the applicant's history are relevant to the dispute regarding the true status of his citizenship. In 1986, when the applicant was 18 years old, and still living with his adoptive parents in Queensland, he was informed by the electoral office that he was eligible to vote. The applicant subsequently voted in the 1987 Australian federal election. Two decades later, in 2017, the applicant applied for, and was issued, an Australian passport. The applicant contends that his entry on the Commonwealth electoral roll, and the issue of his Australian passport, could only lawfully occur upon satisfaction that he was an Australian citizen. The Department of Home Affairs (Department) claims that his passport was issued in error.

Detention and impending deportation 8 The applicant has an extensive criminal record. A National Criminal History Check records the commission of 106 offences between 1987 and 2018 across Queensland, Western Australian, South Australia and the Northern Territory. This record largely consists of low-level offences. However, in December 2005, the applicant was convicted and sentenced for 16 months for possessing a prohibited drug with intent. Subsequently, after regular offending, the applicant was, on 14 February 2018, convicted of various offences and sentenced to four months' imprisonment. Where a non-citizen has been sentenced to a term of imprisonment of 12 months or more, and is currently serving a sentence of imprisonment (whether or not those terms of imprisonment are the same), his or her visa is mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). 9 In February 2018, the Department formed the view that the applicant was not an Australian citizen. In the Department's view, the applicant was merely the holder of an absorbed person visa, which is a class of permanent visa that gives lawful status to particular non-citizens who have been long-time residents in Australia. In April 2018, the applicant was notified that this visa had been cancelled by the Minister. The next day, the applicant submitted a request for revocation of the visa cancellation. After the completion of the applicant's criminal detention, he was transferred to immigration detention on 11 May 2018, and has been there since (albeit in different locations). The Minister contends that he has lawful authority to detain the applicant under s 189(1) of the Migration Act, which relevantly provides that "[i]f an officer knows or reasonably suspects that a person … is an unlawful non-citizen, the officer must detain the person". 10 On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant's visa (Minister's decision). This meant that, subject to any legal challenge, the applicant was liable to be deported from Australia.

Legal challenge in this Court 11 On 2 October 2019, the applicant, then without legal assistance, applied to this Court for judicial review of the Minister's decision. Now, with the assistance of legal representation, the applicant does not simply seek to challenge the validity of the Minister's decision. His primary contention is that his ongoing detention is unlawful, and that he should accordingly be immediately released from detention. The applicant seeks relief in the nature of a writ of habeas corpus, which, in broad terms, allows a court to examine the legality of a person's restraint and, if the Court finds the restraint to be unlawful, to order that the restrained person be released. Unless otherwise expressed, this form of relief is, for simplicity, referred to below as "habeas corpus". 12 For reasons explained below at [56]-[57], I directed that the applicant's application for habeas corpus would be heard and determined separate from, and prior to, the applicant's application for judicial review of the Minister's decision (should that latter application be necessary to address). Therefore, these reasons only address the applicant's habeas corpus application.

Alleged unlawfulness of detention 13 The applicant's first basis for establishing the unlawfulness of his detention arises from the High Court of Australia's recent decision of Love v Commonwealth of Australia [2020] HCA 3 (Love). In that case, a majority of the High Court held that the relevant provisions of the Migration Act for detaining and removing unlawful non-citizens (which are enacted under the "aliens" legislative power conferred by s 51(xix) of the Constitution) do not validly apply to Aboriginal Australians. Relying on this authority, the applicant argues that he must be released from immigration detention on the basis that he satisfies the tripartite test for Aboriginality expressed by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)). 14 The Minister has proceeded in the present case on the basis that two of the three elements of the tripartite test are satisfied by the applicant; namely, that the applicant self-identifies as an Aboriginal Australian, and that he is recognised as such by an elder of the Ardyaloon Community. However, the parties are in dispute about the remaining element of the tripartite test: that the applicant is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. Neither is there any evidence tending to disprove his biological Aboriginality. In these circumstances, the applicant and the Minister dispute which party bears the onus of proving (or disproving) the satisfaction of this element. The applicant submits that the Minister bears the onus of proving that he has the lawful authority to detain the applicant as an alien. The Minister conversely submits that the applicant bears the onus of proving that he is not an alien. 15 The applicant alternatively argues that he is an Australian citizen. First, the applicant contends that, because his birth was registered in Queensland in 1976, he was "born in Australia" within the meaning of the relevant citizenship legislation such that he qualified for automatic citizenship. Second, the applicant further argues that his entry onto the electoral roll, and the issue of his Australian passport, establishes that he is an Australian citizen. The applicant contends that the Minister has not adduced evidence to displace the presumption that those administrative actions were legally valid. 16 The Minister rejects the applicant's contention that he was "born in Australia" for the purposes of the relevant citizenship legislation. That phrase, in the Minister's submission, refers to the applicant's physical place of birth, and it is not in dispute that the applicant was physically born in the Cook Islands. The Minister moreover rejects the applicant's argument in relation to the effect of his entry onto the electoral roll, and the issue of his Australian passport. In the Minister's submission, those events, while ordinarily indicative of Australian citizenship, do not, as a matter of law, confer citizenship on the applicant. According to the Minister, conferral of citizenship only validly occurs where a person satisfies the prescribed statutory criteria, which never occurred in the applicant's case.

Summary of my decision 17 The issues raised in the present case require a detailed consideration of principles of constitutional law, administrative law, migration law and citizenship law, the interpretation of various Commonwealth and State statutes, and an enquiry into the manner in which the relevant onuses of proof in the present case are to be discharged. A summary of my reasoning and decision is as follows. 18 As a consequence of the jurisdictional limitation in s 476A of the Migration Act, the Federal Court of Australia does not have original jurisdiction to directly review the validity of any act under the Migration Act in relation to the applicant's detention. This means that this Court does not have original jurisdiction to hear and determine the applicant's application for habeas corpus, as this remedy directly questions the lawfulness of the applicant's detention. However, this Court retains original jurisdiction in the present case to determine whether or not the power to detain under s 189(1) of the Migration Act is capable of validly applying to the applicant in light of his claims to Aboriginality and Australian citizenship. 19 In my view, s 189(1) of the Migration Act is capable of applying to the applicant. This is because, for the following reasons, he is an alien to Australia for the purposes of s 51(xix) of the Constitution. 20 First, the applicant has failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2). The Minister accepted for the purposes of this application that the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community. However, the applicant does not know whether he is of biological Aboriginal descent. There is no evidence tending to prove his biological Aboriginality. The applicant has accordingly failed to satisfy his onus of proving the factual elements necessary to establish that he is not an alien on the basis of his Aboriginality. 21 Second, the applicant is not an Australian citizen. Conferral of Australian citizenship only occurs through the satisfaction of prescribed statutory criteria. From the time that the applicant was born until the date of this decision, the applicant has not satisfied the statutory criteria for Australian citizenship. In particular, he was not "born in Australia" within the meaning of the relevant citizenship legislation. Moreover, the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his Australian passport, occurred as a matter of accepted fact. However, those administrative actions did not confer Australian citizenship on the applicant as a matter of law. 22 If I am wrong, and this Court does possess original jurisdiction to directly review the validity of the applicant's detention, my view is nevertheless that the applicant is today lawfully detained under s 189(1) of the Migration Act. Although the Minister in the present case did not adduce direct evidence that, as at the time of the hearing, an officer subjectively held a suspicion that the applicant is an unlawful non-citizen, it is open for this Court in the circumstances of the present case to infer the existence of such a suspicion from the admissible evidence. For the reasons summarised above, that suspicion is reasonable; the applicant is, as a matter of law, an unlawful non-citizen. 23 For these reasons, the applicant's application for habeas corpus is dismissed.

ii. Background to this proceeding 24 The applicant's personal background was summarised above. That background will be further detailed in the course of these reasons. The purpose of Part II of these reasons is to provide a summary of the legal and procedural background to this decision.

Cancellation of applicant's visa 25 On 7 October 2013, about four and a half years prior to the cancellation of the applicant's absorbed person visa, the Department (then the Department of Immigration and Border Protection) wrote to the applicant to notify him that his visa would be considered for cancellation under s 501(2) of the Migration Act on character grounds, although the letter did not specify which class of visa was held by the applicant. 26 On 20 January 2014, the Department wrote to the applicant notifying him that a delegate of the Minister for Immigration and Border Protection had decided not to cancel his visa. However, the applicant was issued with a formal warning that the visa cancellation may be reconsidered if the applicant continued to commit further offences. 27 The applicant says that he did not receive the letters sent by the Department in 2013 and 2014. He says that he was "living rough" at the time and did not receive mail. 28 After the applicant's last criminal convictions on 14 February 2018, representatives of the Department conducted enquiries into the status of the applicant's citizenship. On 23 February 2018, a member of the Department's Character Liability Assessment Team emailed that Department's Citizenship Helpdesk regarding the applicant. That email presented the conflicting evidence regarding the applicant's citizenship (in particular that the applicant was an Australian passport holder and that he held an Australian birth certificate). 29 On 26 February 2018, in response to that email, the Department's Citizenship Helpdesk determined that the applicant was not an Australian citizen. In particular, the email response expressed that "it appears … that [the applicant] may have been issued with an Australian passport in error". On the same date, the applicant's Australian passport, which had been issued on 25 October 2017, was made void. 30 On 23 April 2018, the Department informed the applicant by letter that his visa had been cancelled pursuant to s 501(3A) of the Migration Act. The letter referred to the fact that the application had held an absorbed person visa since 1 September 1994 by operation of law. 31 By way of context, an absorbed person visa is a class of permanent visa that gives lawful status to a particular class of non-citizens who have been long-time residents in Australia, but do not hold a visa and would otherwise be unlawful non-citizens. Such a visa is taken to have been granted on 1 September 1994 to a non-citizen in the migration zone who: (i) was in Australia on 2 April 1984; (ii) had before that date ceased to be an immigrant; (iii) had not left Australia after that date; and (iv) was not a person to whom s 20 of the Migration Act applied immediately before 1 September 1994: s 34(2) of the Migration Act. The holder of an absorbed person visa may remain in, but must not re-enter, Australia: ibid, s 34(1). See, generally, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 and Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [36]-[38] per Kiefel, Bell, Keane and Edelman JJ. 32 On 24 April 2018, the day after the Department informed the applicant of his visa cancellation, the applicant requested the revocation of that decision under s 501(3A) of the Migration Act. It is unnecessary to detail the content of the applicant's request for the purposes of this decision. However, it is apparent from subsequent correspondence, as detailed below, that the applicant contacted the Department and contested the assertion that he was not an Australian citizen. 33 On 30 April 2018, the Department wrote to the applicant to provide evidence that the applicant held an absorbed person visa. It is clear from the letter that, by this time, the Department had been provided with a copy of the applicant's Queensland birth certificate, and was at least informed that the applicant held an Australian passport. The letter from the Department relevantly advised the following: Evidence that you hold an Absorbed Person Visa is included with this letter. In regards to your citizenship status I can confirm that you are not an Australian Citizen by descent. Your birth certificate states you were born in Atiu Cook Islands, a New Zealand dependant territory until 1965 at which time it became a self-governed territory. Your Queensland birth certificate sets out that the date of registration is 4 November 1976. Automatic acquisition via adoption did not come into effect until 22 November 1984, therefore, you did not automatically become an Australian citizen via adoption. An Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only. Australian citizenship by descent is not automatic, you must make an application and you do not become an Australian citizenship by descent until such time as the application is approved. A search of historical records shows there is nothing to indicate that you ever applied for and acquired Australian citizenship either by conferral or descent. Therefore your Absorbed Person visa remains cancelled. … 34 On 10 May 2018, the Department wrote again to the applicant in response to his enquiries about the cancellation of his visa. The letter expressed the following: Dear Mr McHugh I refer to you enquiries where you wish to seek clarification as to why you are not an Australian citizen. You were born in the Cook Islands and claim you were adopted at around age five by relatives in Australia. At that time, there was no provision under Australian citizenship legislation, which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship. On 22 November 1984, provisions were included in the Citizenship Act 1948 where by a child, who was present in Australia as a permanent resident, automatically became a citizen upon their adoption in Australia by an Australian citizen. These provisions were not retrospective, so only apply to adoptions that took place after that date. As a person born outside Australia, the only manner you could have become an Australian citizen is by application either by conferral (as a permanent resident) or by descent (if you had an Australian citizen parent at the time of your birth). The Department has undertaken a search of departmental records and cannot find a record that you have ever acquired Australian citizenship. I note you were issued with a Queensland birth certificate and your adopted parents registered your birth on 4 November 1976. It is quite possible that you had been issued with an Australian passport in the past on the basis of this birth certificate. The Australian Passport Office routinely issued Australian passports to person who were not Australian citizens in error. Therefore, the Australian passport issued to you on 25 October 2017 was done so in error. This passport is no longer valid and should be returned to the Department of Foreign Affairs and Trade or your nearest Australian Embassy or High Commission. International border authorities have been notified of the passport cancellation. I trust this information assists clarify why you are not an Australian citizen. The applicant says he did not see this letter until about August 2018. 35 On 11 May 2018, the applicant, after being released from criminal custody, was detained in immigration detention. 36 In June and July 2018, the applicant sought legal advice, and provided his lawyer with a copy of his Australian passport. The lawyer informed the applicant of the Department's position that the applicant's passport had been issued in error. 37 On 7 August 2018, the applicant emailed Mr Colin Rowell (Mr Rowell), Assistant Director of the Citizenship Operations Section at the Department. The applicant expressed the following: I have received confirmation that my Australian passport has been cancelled due to something incorrect about my birth certificate, can you please confirm in detail the reason for this cancellation of my Australian passport, i look forward to hearing from you. 38 On 10 August 2018, Mr Rowell replied as follows: The issue to a person of an Australian birth certificate or Australian passport does not make that person an Australian citizen. A person is only an Australian citizen if they meet the requirements for Australian citizenship under the Australian Citizenship Act 2007. [Mr Rowell then referred back to the key aspects in the Department's letter dated 10 May 2018, as extracted above at [34].] As you are not an Australian citizen, you are not entitled to hold an Australian passport and consequently your Australian passport has been cancelled. 39 On 13 September 2018, further email correspondence ensued between the applicant and Mr Rowell. The applicant raised the registration of his birth in Queensland and contended that the has automatically acquired citizenship by adoption. 40 On 18 September 2018 and 20 September 2018 respectively, the Department wrote to the applicant to inform him of certain information that might be taken into account by the Minister in making his decision whether or not to revoke the cancellation of the applicant's visa. That information included the applicant's National Criminal History Check. 41 On 17 October 2018, the applicant emailed the Department to respond to the information raised by the Department. The email largely addressed the past offences committed by the applicant, and further detailed his history. The applicant also expressed the following: I'm not sure if I should be asking for a visa I've never seen or signed or even been told about until now in my life as I am an Australian citizen as I do have an Australian passport and , I would like nccc [i.e. National Character Consideration Centre] to consider the seriousness and manner of the process against me as it would be disastifying evidence when my case is proven to be a citizen of Australia … (Errors in original.)

Minister's decision 42 On 23 August 2019, the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant's visa. As these reasons do not address the applicant's application for judicial review of the Minister's decision, it is unnecessary to consider the Minister's statement of reasons (Minister's Reasons) in detail. 43 The Minister's Reasons did not include express reference to the applicant's claims that he was an Australian citizen, or an Aboriginal Australian. However, it is clear that documentation of those claims were before the Minister. A submission from the Department to the Minister in advance of the Minister's decision included the following passages: Other Relevant Information Citizenship status 57. Mr MCHUGH submits that he is an Australian citizen due to his Queensland Birth Certificate and Australian passport, which states that his nationality is Australian …. In the Department's responses to Mr MCHUGH's Australian citizenship claims he has been informed that • .When Mr MCHUGH's arrived in Australia (12 February 1975) there was no provision under the Australian citizenship legislation which enabled a person adopted by Australian citizens to automatically acquire Australian citizenship. Mr MCHUGH did not automatically acquire citizenship and the Department has assessed he is not an Australian citizen. • An Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only. • The passport is no longer valid, has been cancelled and should be returned to the Department of Foreign Affairs and Trade or the nearest Australian Embassy or High Commission … … Sensitivities 63. Mr MCHUGH, who was born in the Cook Islands, identifies as a member of the Aboriginal community, having lived in Australia since the age of seven and having grown up in and been accepted by the Darwin indigenous community. Furthermore he submits that he is an Australian citizen, on the basis of having an Australian birth certificate (as a result of having been adopted here) and an Australian passport. However his case has been assessed in detail by the Citizenship Helpdesk, which has advised that he is not an Australian citizen and his passport (which was issued prior to 2005, when changes were introduced which would now preclude such an issue) has been cancelled and should be returned.

Proceeding in this Court 44 On 2 October 2019, the applicant sought judicial review of the Minister's decision. The applicant did not have legal assistance at the time. 45 On 12 December 2019, a case management hearing was held in the proceeding, at which the applicant appeared via video-link from the immigration detention centre at which he was then detained. The applicant informed me at the hearing that he was an Australian citizen and confirmed that he sought judicial review of the Minister's decision. The matter was thereafter listed for hearing on 11 March 2020. 46 On 13 February 2020, Victoria Legal Aid (VLA) filed a notice on behalf of the applicant informing the Court that Mr Guy Coffey (Mr Coffey), a solicitor at VLA, had been appointed to represent the applicant in the proceeding. 47 On 28 February 2020, an affidavit of Mr Coffey was filed on the applicant's behalf. The affidavit relevantly annexed a "Draft Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)". A revised version of this document dated 11 March 2020, broadly in the same form as the original, was handed up at the start of the hearing on that date (applicant's amended application). The Minister did not object, and leave was granted for the applicant to rely on the amended application. 48 The applicant's amended application identified five grounds. The two grounds relevant to the application for habeas corpus are as follows: Grounds of application for relief in the nature of the writ of habeas corpus A. Edward McHugh is a citizen with the result that there was no power to grant, cancel, or revoke cancellation of any visa in his name, nor was or is he liable for detention under s 189 of the Migration Act 1958 (Cth). B. Edward McHugh is not an alien for the purposes of the constitution and therefore cannot be detained as an 'unlawful non-citizen' under the Migration Act 1958 (Cth). … 49 The applicant's amended application sought various relief. The forms of relief relevant to the application for habeas corpus are as follows: A. There be an extension of time for the filing of the originating application. B. There be leave to amend the originating application in the present form. C. Relief in the nature of a writ of habeas corpus issue. D. Enjoin the Minister including by his officers or agents from treating the Applicant as a non-citizen. E. If the Applicant is not detained at the date of judgment, a declaration that he is a citizen of Australia. … J. That the Respondent pay the Applicants costs. 50 As can be seen from the first form of relief sought, the applicant requires an extension of time to file his application. However, the Minister informed the Court in written submissions that he does not oppose the extension of time. I accordingly granted an order to that effect.

Section 78B notices 51 The respective Attorneys-General of the Commonwealth or a State are entitled to intervene in proceedings in this Court that relate to a matter arising under the Constitution or involving its interpretation: s 78A of the Judiciary Act 1903 (Cth) (Judiciary Act). 52 Section 78B of the Judiciary Act provides the mechanism by which the Attorneys-General are notified of proceedings that present this opportunity. That provision relevantly provides the following: Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. … (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. 53 On 2 March 2020, nine days before the hearing, a Notice of a Constitutional Matter was filed by the applicant under s 78B of the Judiciary Act (Applicant's s 78B Notice). The constitutional issues addressed in that notice relate to a ground for judicial review of the Minister's decision, and are unnecessary to detail for present purposes. 54 The next day, on 3 March 2020, eight days before the hearing, a separate Notice of a Constitutional Matter was filed by the Minister under s 78B of the Judiciary Act (Minister's First s 78B Notice). That notice relevantly expressed the following: In this matter, a question arises whether the Applicant is an Aboriginal Australian in the sense described in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 at [81] and in consequence (inter alia): • is not an alien for the purposes of s 51(xix) of the Constitution; and • cannot be detained under s 189 of the Migration Act 1958 (Cth) (the Act). 55 Once the filing of these notices had reached my attention, I listed a case management hearing in the proceeding on 6 March 2020 for the parties to address me on, amongst other issues, whether, in accordance with the terms of s 78B(1) of the Judiciary Act, a "reasonable time" would elapse between the giving of both the Applicant's s 78B Notice and the Minister's First s 78B Notice respectively and the hearing of the application. After hearing the parties at the case management hearing, I made a direction that each party, in respect of their own notice, contact the offices of the respective Attorneys-General prior to the hearing to confirm whether the Attorneys-General intended to intervene in the proceeding. 56 At the start of the first hearing day, on 11 March 2020, the parties provided an update as to the response of the Attorneys-General in relation to the Applicant's s 78B Notice and the Minister's First s 78B Notice respectively. In short, given the relative urgency of the applicant's habeas corpus application, both the applicant and Minister agreed that, in respect of the Minister's First s 78B Notice, a "reasonable time" had elapsed for the purposes of s 78B of the Judiciary Act. However, I agreed with the applicant's submission (which was unopposed by the Minister) that a reasonable time had not yet elapsed in respect of the Applicant's s 78B Notice. 57 On this basis, I agreed to hear the applicant's application for habeas corpus (including the constitutional issues raised in the Minister's First s 78B Notice) separate from, and prior to, the applicant's application for judicial review of the Minister's Decision (including the constitutional issues raised in the Applicant's s 78 Notice). Apart from complying with s 78B(1) of the Judiciary Act, this sequence was logically sensible as, if the applicant succeeded in establishing that he was not an alien, and was therefore released for detention, his judicial review application would be rendered redundant. 58 For completeness, I also note that on 16 March 2020, four days after the hearing of the habeas corpus application was completed, the Minister filed a Further Notice of a Constitutional Matter (Minister's Second s 78B Notice). The constitutional issues addressed in the Minister's Second s 78 Notice relate to a ground for judicial review of the Minister's decision, and are unnecessary to detail for present purposes.

Hearing of the application 59 The hearing of the applicant's habeas corpus application took place on 11 and 12 March 2020. The applicant was represented by Mr Albert of counsel, and the Minister was represented by Mr Hill of counsel. I am grateful to both of them (and their instructing solicitors, VLA and the Australian Government Solicitor respectively) for their detailed written and oral submissions in relation to the complex issues raised in the present case. 60 The applicant was present in court during the hearing. At the pre-hearing case management hearing on 6 March 2020, I had, upon request by Mr Albert (and in the face of opposition from Mr Hill), directed that the Minister arrange for the applicant to be brought from the immigration detention centre to attend the hearing. My usual view is that this is unnecessary where a litigant in immigration detention has legal representation. However, my view was that the present case was of such a character that it warranted the attendance of the applicant in person so that he could view the hearing and also be in a position to provide instructions to his representatives. 61 The parties provided two sets of written submissions after the completion of the hearing. First, on 16 March 2020 (Minister) and 18 March 2020 (applicant), the parties filed supplementary written submissions in relation to a number of issues arising from the hearing, including the jurisdictional limitation in s 476A(1) of the Migration Act, and the entitlement of the Court to infer of the existence of a subjective suspicion of an officer for the purposes of s 189(1) of the Migration Act. Then, on 31 March 2020 (Minister) and 2 April 2020 (applicant), the parties filed further supplementary submissions in relation to the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (PDWL), which was delivered by Wigney J on 17 March 2020.

III. Minister's basis for restraint 62 The Minister contends that the applicant's initial, and continuing, custody in immigration detention in the present case is lawfully supported by s 189(1) of the Migration Act, which provides as follows: Detention of unlawful non-citizens (1) 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. … 63 This statutory provision should be read together with s 196 of the Migration Act, which relevantly provides as follows: 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. … 64 The application of these statutory provisions is discussed further below. Before doing so, it is necessary to address a critical preliminary issue in relation to the scope of the Federal Court of Australia's original jurisdiction in relation to administrative acts taken under the Migration Act.

IV. Jurisdictional limitation 65 The first duty of a court is to confirm that it has jurisdiction to hear and determine the issues raised by the parties: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 at 415 per Griffith CJ; Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 at 446 per Isaacs ACJ, with Gavan Duffy J agreeing; Re Nash (No 2) [2017] HCA 52; 263 CLR 443 at [16] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ; see also Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, The Federation Press, 2020) (Leeming's Authority to Decide) pp 37-38.

Limited original jurisdiction of the Federal Court 66 Section 476A(1) of the Migration Act provides the following: Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. 67 The practical effect of s 476A, with limited exceptions, is to exclude the matters that would otherwise be within the original jurisdiction of this Court in relation to "migration decisions" (in particular that jurisdiction conferred by s 39B of the Judiciary Act): see Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth), pp 12-13 and Mr Ruddock (Attorney-General), Migration Litigation Reform Bill 2005 Second Reading Speech, 10 March 2015, Australian Parliamentary Debates, House of Representatives, pp 2-3; Matete v Minister for Immigration and Citizenship [2009] FCA 187 at [11] per Stone J. Section 476A is therefore "an instance of indirect express amendment: whose effect is to alter the combined legal meaning of the general conferral of jurisdiction and the specific qualification of exclusion in the later law": Leeming's Authority to Decide at 142. 68 The reach of the jurisdictional limitation in s 476A(1) of the Migration Act is confined to applications for "public law remedies in the nature of judicial review" of migration decisions: DBE17 v Commonwealth [2019] HCA 47; 94 ALJR 41 (DBE17) at [15] per Nettle J; see also Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [9] per Rares, Perram and Wigney JJ. However, s 476A(1) does not oust this Court's original jurisdiction to hear and determine proceedings that involve the ancillary or collateral consideration of "migration decisions", such as claims in tort for false imprisonment, misfeasance in public office and negligence: DBE17 at [14], citing Okwume v Commonwealth of Australia [2016] FCA 1252 (Okwume (TJ)) at [28] per Charlesworth J; see also Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 (Fernando) per Siopis J. 69 As indicated above, the purported statutory authority relied upon by the Minister for the applicant's current detention is s 189(1) of the Migration Act. As can be seen from the terms of s 476A(1), there is no express conferral of original jurisdiction upon this Court in relation to s 189(1). It was the Minister's submission, therefore, that this Court does not have original jurisdiction to review any exercise of power under s 189(1). This submission rests on an exercise of power under s 189(1) being characterised as a "decision" (from which the definition of "migration decision" in s 476A(1) is derived: see the s 5(1) definition of "migration decision", and the related definitions of "privative clause decision" and "purported privative clause decision"). The applicant conversely submits that an exercise of power under s 189(1), which is an act compelled by the Migration Act, is not properly characterised as a "decision".

"Migration decision" 70 The fact that s 189(1) of the Migration Act imposes a "statutory command" on an officer to detain a person reasonably suspected of being an unlawful non-citizen (Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb) at [236] per Hayne J) does not preclude the act of detaining, or continuing to detain, that person under s 189(1) from being characterised as a "decision" for the purposes of the jurisdictional limitation in s 476A(1). This is clear from the statutory definitions underpinning s 476A(1). 71 A "migration decision", as referred to in the chapeau to s 476A(1) of the Migration Act, is defined by s 5(1) of that Act as comprising, amongst other statutory concepts, a "privative clause decision", which, in accordance with its own definition in s 5(1), has the meaning provided by s 474(2). That statutory provision, along with the related provision in s 474(3), provides as follows: (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. 72 Subsection (3) of s 474 of the Migration Act has the effect of expanding the ordinary meaning of a "decision": Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [65]-[66] and [68] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 374 ALR 272 (EFX17) at [37]-[40] per Greenwood J, [170] per Rares J and [216] per Logan J (dissenting, but not in relation to the question of the Federal Circuit Court of Australia's jurisdiction). This effect is consistent with the legislative policy underpinning s 474: EFX17 at [59]-[61] per Greenwood J and [214] per Logan J. 73 The expanded definition of a "decision" notably includes, if the terms of ss 474(3)(a)-(f) are not satisfied, the "doing or refusing to do any other act or thing": s 474(3)(g). Moreover, the definition of a "privative clause decision" under s 474(2) relevantly includes "a decision … required to be made" (emphasis added). Any action, or inaction, taken under the Migration Act needs to be viewed through this prism: see EFX17 at [216] per Logan J. The act of detaining, or continuing to detain, a person under s 189(1) is the doing of an act that the Migration Act requires the officer to do. Accordingly, based on the applicable statutory definitions, the act of detaining, or continuing to detain, a person under the Migration Act constitutes a "migration decision" for the purposes of the jurisdictional limitation in s 476A(1). 74 This view differs from that recently expressed by Wigney J in PDWL. In that case, his Honour, in response to an urgent application for relief in the nature of a writ of habeas corpus, ordered that the first respondent, a citizen of Afghanistan, be released forthwith from immigration detention. In the circumstances of that case, s 189(1) of the Migration Act provided no justification for the ongoing detention of the first respondent: PDWL at [87]. 75 In relation to the question as to whether the detention of an unlawful non-citizen under the Migration Act constituted a "migration decision" for the purposes of s 476A of the Migration Act, Wigney J expressed the following in PDWL: [61] The Minister sought to argue that the Court had no jurisdiction to entertain PDWL's application by reason of s 476A of the Migration Act. … [62] The Minister sought to characterise PDWL's application for a writ in the nature of habeas corpus as an application "in relation to a migration decision". That was said to be because some hypothetical officer somewhere in the Commonwealth must have made a decision to detain the first respondent under subs 189(1) of the Migration Act. … [63] … [T]he Minister's characterisation of PDWL's application for habeas corpus as being a review of a hypothetical decision by the hypothetical officer to detain PDWL under subs 189(1) of the Migration Act has no merit and is rejected. The fact that PDWL has been detained does not mean that a decision was made, or must have been made, by an officer to detain him under subs 189(1) of the Migration Act. No decision under the Migration Act is required as a precondition to the power and duty to detain an unlawful non-citizen: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70 at [31]. … (Emphasis added.) 76 Wigney J held that the first respondent's application in that case - which his Honour characterised as one for relief against an officer of officers of the Commonwealth for lawful detention - fell within the Federal Court's jurisdiction under the Judiciary Act: ibid at [64]. His Honour then concluded in respect of the jurisdictional issue as follows: [77] The Minister's contention that the Court does not have jurisdiction to entertain PDWL's application has no merit and is rejected. That is so whether it be considered to be an application for a writ of habeas corpus, an action in the nature of habeas corpus, an action for injunctive relief against an officer of the Commonwealth, or an action in respect of a matter arising under the Migration Act. Either way, the Court has jurisdiction to entertain such an application under s 39B of the Judiciary Act and power to make an order releasing a person from detention under s 23 of the Federal Court Act. The Court's jurisdiction to entertain such an action is not affected in any way by s 476A of the Migration Act because it is not an action in relation to a migration decision. 77 With the greatest of respect to Wigney J, some aspects of the reasoning in PDWL do not reflect the current position of the law. This follows from his Honour's reliance (at [63] and [85] of PDWL) on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 (Al Masri) to support the conclusion that the detention of an unlawful non-citizen under Migration Act does not require a "decision". In that case, the Full Court (constituted by Black CJ, Sundberg and Weinberg JJ) stated the following: [30] The relationship between ss 189 and 196 was considered by this Full Court in another appeal: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at 275-277 [149]-[152]; 196 ALR 111 at 135-136 [149]-[152] (VFAD). We adopt what was said in that case and conclude that the sphere of operation of s 189 is complete once a person is detained in immigration detention and that thereafter continuing detention is provided for by s 196. We would not impute to the Parliament an intention such that if s 196 did not operate to render lawful the continued detention of an unlawful non-citizen, that consequence could be avoided by a succession of repeated actions to detain under s 189. [31] The effect of ss 189 and 196 is that no decision under the Act is required as a precondition to the power and duty to detain an unlawful non-citizen. Detention depends upon the status of the person, and in that sense the detention regime is clearly administrative, mandatory, indefinite and, if the Solicitor-General's submissions are accepted, possibly even permanent. (Emphasis added.) 78 Some aspects of these passages in Al Masri, as published in 2003, do not accurately reflect the current position of the law. First, the remarks in Al Masri in relation to interrelationship between ss 189 and 196 of the Migration Act have been superseded by the High Court's decision in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 (Ruddock v Taylor). That case involved consideration of the lawfulness of two periods of detention of the respondent; the first lasting 161 days and the second 155 days: ibid at [3]. The plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ expressed at [25] that "the lawfulness of the respondent's detention turned upon whether there was statutory or other authority to detain him" and "[t]hat required consideration of s 189". Implicit in this analysis is that s 189(1) empowers an officer not only to initially detain a relevant person, but also to continue to detain that person. This interpretation of Ruddock v Taylor, which I follow, was applied in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 at [34] per Crennan J and Guo v Commonwealth [2017] FCA 1355; 258 FCR 31 (Guo) per Jagot J (see in particular [69]-[70] and [83(3)]-[83(4)]); see also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 (Okwume (FC)) at [165] per Besanko J; although see, contra, Okwume (TJ) at [196] per Charlesworth J. In this regard, it is important, in my view, that the s 5(1) definition of "detain", which is picked up by s 189(1), includes to "keep, or cause to be kept, in immigration detention" (emphasis added). 79 Second, and most importantly for immediate purposes, Al Masri was decided before the insertion of s 476A into the Migration Act in 2005 by the Migration Litigation Reform Act 2005 (Cth). There was accordingly no consideration in that case of the extended definition of a "decision" in s 474(3) that is applicable in the present case. Thus, in my view, Al Masri does not currently support the proposition that the act under the Migration Act of detaining, or continuing to detain, a person does not constitute a "migration decision" for the purposes of the jurisdictional limitation in s 476A(1). 80 In highlighting these deficiencies with the modern application of Al Masri, I am not expressing any criticism of Wigney J in PDWL. His Honour was delivering ex tempore reasons as duty judge in response to an urgent application involving the liberty of the respondent in that case. Moreover, importantly, it does not appear that counsel in that case brought his Honour's attention to the extended definition of a "decision" in s 474(3) of the Migration Act, nor the dangers in relying on outdated remarks in Al Masri.

Application to the present case 81 For the reasons above, except where expressly permitted by s 476A(1)(a)-(d) of the Migration Act, this Court does not have original jurisdiction to directly review the validity of the "doing or refusing to do any … act or thing" under the Migration Act. Does the applicant's application for habeas corpus engage this form of review? 82 There are accepted differences between a habeas corpus application at common law, which centre on the lawfulness of a physical restraint, and a judicial review application at common law, which centre on the jurisdictional validity of administrative action. In particular, although a habeas corpus application compels an enquiry into the lawfulness of administrative action at a particular point in time, they are not strictly a means of collaterally impeaching the jurisdictional validity of previous administrative decisions. This is apparently the basis upon which a series of recent Victorian decisions have expressed that "habeas corpus does not provide a remedy by way of judicial review": PR v Department of Human Services [2007] VSC 338 at [6] per Osborn J, cited in Antunovic v Dawson [2010] VSC 377; 30 VR 355 at [126] (Antunovic) per Bell J and Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 at [540] per John Dixon J. (In relation to the distinction between a habeas corpus application and a judicial review application in the United Kingdom, see Jane v Westminster Magistrates' Court [2019] EWHC 394 (Admin); [2019] 4 WLR 95 at [45]-[67] per Singh LJ, with Dingemans J agreeing; but cf Wade HWR, "Habeas corpus and judicial review" (1997) 113 Law Quarterly Review 55.) 83 Notwithstanding any differences between these forms of application, for the purposes of the jurisdictional limitation in s 476A(1) of Migration Act, a habeas corpus application in the context of immigration detention under the Migration Act inherently engages the precise form of investigation that s 476A(1) (read with ss 474(2) and (3)) seeks to prohibit the Federal Court from undertaking in its original jurisdiction; namely (except where specifically permitted), the direct review into the lawfulness of administrative action taken pursuant to that Act. As expressed by Black CJ in Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 (Vardalis) at [71], "[h]abeas corpus is a remedy directed to the relief of a person's detention without lawful authority, at a particular place and time". This inherently compels the reviewing court to determine whether "liberty is lawfully restrained": Ex parte Walsh; In re Yates [1925] HCA 53; 37 CLR 36 (Walsh) at 79 per Isaacs J. For this reason, my view is that the applicant's application in the present case - for relief in the nature of habeas corpus - is, to paraphrase Rares, Perram and Wigney JJ in Tang and Nettle J in DBE17, an application for a public law remedy in the nature of direct judicial review of a migration decision. 84 As evident from decisions such as Fernando, Tang and DBE17, the phrase "in relation to" in s 476A of the Migration Act has not been interpreted with the full breadth that its ordinary meaning could potentially warrant. As explained in those decisions, this is due to the subject matter and legislative history underpinning Div 2 of Pt 8 (containing ss 474A-484) of the Migration Act. There is consequently a line drawn between proceedings of different character. 85 On one side of the line, the jurisdictional limitation in s 476A(1) does not apply to proceedings involving the ancillary or collateral attack on the lawfulness of a person's detention under the Migration Act. As explained by McHugh J in Ousley v The Queen [1997] HCA 49; 192 CLR 69 (Ousley) at 98-99, "[a] collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision". In the present statutory context, this has enabled litigants, in the Federal Court's original jurisdiction, to collaterally challenge the lawfulness of their restraint in immigration detention through claims in tort for false imprisonment, misfeasance in public office or negligence. 86 On the other side of the line, however, the jurisdictional limitation in s 476A(1) applies to oust proceedings involving the direct attack on the lawfulness of a person's detention under the Migration Act. This will clearly cover, for example, an application for judicial review of an administrative decision under the Migration Act to cancel a visa (that is not otherwise permitted under paragraphs 476A(1)(a)-(d)): Matete at [11]-[12]. In my view, an application for habeas corpus in the context of immigration detention under the Migration Act also falls on this side of the line. This is because, to apply McHugh J in Ousley, the primary object of such an application is to set aside the act of detention by, or on behalf of, the respondent to that application. Ultimately, it would be artificial not to describe such an application as one being in relation to a "migration decision" as defined. 87 The Federal Court of Australia is a creature of statute; and its creator, the Commonwealth Parliament, may giveth jurisdiction, and it may taketh jurisdiction away. For these reasons expressed above, s 476A(1) of the Migration Act removes this Court's original jurisdiction to hear and determine the applicant's application for habeas corpus.

Residual original jurisdiction 88 This, however, does not bring an end to the present case. To the extent that the jurisdictional limitation in s 476A(1) does not apply, this Court retains original jurisdiction in any matter arising under the Migration Act: s 39B(1A)(c) of the Judiciary Act. The Minister accepted in the present case that, even though this Court did not have original jurisdiction in relation to "migration decisions", the Court nonetheless continued to possess the residual original jurisdiction to determine whether or not the applicant was a person to whom s 189(1) could validly apply. As explained in the written submissions filed on behalf of the Minister: … s 476A only limits the jurisdiction of this Court in relation to decisions. Section 476A does not prevent this Court from determining, without challenging any actual decision made under s 189, the anterior legal question of whether the Applicant is a person to whom s 189 is capable of validly applying. That jurisdiction remains under s 39B of the Judiciary Act. 89 This restricted enquiry has fundamental implications for my consideration of the issues raised by the parties in their submissions. In particular, as the Court is confined to determining whether or not s 189(1) was capable of validly apply to the applicant, there is no need to consider the nature and operation of an application for habeas corpus. Additionally, as this Court does not have original jurisdiction to directly review the validity of the applicant's detention, this Court cannot validly enquire into whether an officer currently holds a reasonable suspicion under s 189(1) in respect of the applicant.

Consideration of alternative analyses 90 The present case involved extensive argument from counsel, both in written and oral form, in relation to a range of complex issues. This included issues in relation to the nature of an application for habeas corpus and the application of the terms of s 189(1) of the Migration Act to the applicant. 91 In deference to counsel, and for the purposes of addressing all the questions raised at trial should any party wish to appeal from this decision (see Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 at [154] per McLeish JA), these reasons will proceed to analyse the parties' submissions on the following two alternative bases: (a) on the basis that this Court does not have original jurisdiction to directly review the validity of the applicant's detention (as I have determined above) (primary analysis); and (b) on the assumption that I am wrong on the jurisdictional question, on the basis that this Court does have original jurisdiction to directly review the validity of the applicant's detention (alternative analysis). 92 The primary analysis constitutes the ultimate reasoning underpinning the outcome of this decision. However, as will be explained, my view is that the choice between the two forms of analysis makes no difference to the ultimate practical outcome in the present case. 93 The balance of these reasons is structured as follows: (a) Part V (Direct challenge to detention), which starts from the next paragraph, involves the consideration of issues uniquely relevant to the alternative analysis; namely (and broadly), the nature of an application for habeas corpus and the identification of an officer's reasonable suspicion in respect of the applicant for the purposes of s 189(1) of the Migration Act; (b) Part VI (Applicant's Aboriginality), which starts below at [190], addresses the applicant's claims that he is an Aboriginal Australian. This part is relevant to both the primary analysis and the alternative analysis, although the nature of the onus to prove the applicant's Aboriginality differs between those analyses; (c) Part VII (Applicant's citizenship), which starts below at [248], addresses the applicant's claims that he is an Australian citizen. This part is relevant to both the primary analysis and the alternative analysis; and (d) Part VIII (Conclusion), which starts below at [353], reconciles the consideration in Parts V-VII and explains why the applicant does not succeed on either the primary analysis or the alternative analysis; and (e) Part IX (Orders), which starts below at [375], sets out my orders resulting from the analysis in these reasons.

v. Direct CHALLENGE to detention 94 Part V of these reasons relates solely to the alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant's detention). It is convenient to address these issues first because the alternative analysis requires an additional layer of inquiry into the nature of an application for habeas corpus and the satisfaction of the terms of s 189(1) of the Migration Act in the present case.

Habeas corpus 95 The first two grounds of the applicant's amended application sought to establish a basis for this Court to grant relief in the nature of a writ of habeas corpus. It is necessary for the purposes of the alternative analysis to introduce the nature, effect and availability of such relief.

Jurisdiction of this Court 96 The Federal Court of Australia's jurisdiction to grant "relief in the nature of a writ of habeas corpus", as sought by the applicant, was not a topic of detailed submissions in the present case. The applicant's opening written submissions expressed that such a remedy could be issued pursuant to this Court's power under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which, for reference, provides that this Court "has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate". No objection to this proposition was raised by the Minister. 97 Although doubts remain as to whether the Federal Court has the authority to award a writ of habeas corpus per se (see, for example, Clark D and McCoy G, Habeas Corpus: Australia, New Zealand and the South Pacific (2nd ed, The Federation Press, 2018) (Clark and McCoy's Habeas Corpus) pp 26-28 and Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 (Alsalih) at [41]; but cf Clark D, "Jurisdiction and Power: Habeas Corpus and the Federal Court" (2006) 32(2) Monash University Law Review 275), it appears accepted that this Court has power, pursuant to s 23 of the FCA Act, to make an order in the nature of a writ of habeas corpus: Vadarlis at [106] per Beaumont J; Al Masri at [170]; Alsalih at [41]; Al-Kateb at [24] per Gleeson CJ; Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 at [19] per Logan J, with Reeves and Markovic JJ agreeing; PDWL at [70]-[76].

History and nature of the remedy 98 The history and nature of the writ of habeas corpus has been detailed elsewhere: see, for example, Clark and McCoy's Habeas Corpus at 19-22 and Antunovic per Bell J. Historically, there were various forms of the writ that served different purposes: see Secretary of State for Home Affairs v O'Brien [1923] AC 603 (O'Brien) at 609 per Earl of Birkenhead and Clark and McCoy's Habeas Corpus at 33-36. The relevant form of the writ (or at least relief in its nature) that is applicable on the alternative analysis in the present case is habeas corpus ad subjiciendum, which, in broad terms, allows a court to examine the legality of a person's restraint and, if the Court finds the restraint to be unlawful, to order that the restrained person be released: see Clark and McCoy's Habeas Corpus at 37 and Antonovic at [16], citing Blackstone W, Commentary on the Laws of England (1768), Vol 3, p 131. 99 It is unnecessary to further detail the scope and grounds of review in an application for habeas corpus. In relation to habeas corpus in Australia, see generally Clark and McCoy's Habeas Corpus and Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) (Aronson, Groves and Weeks' Judicial Review of Administrative Action) Ch 14. In relation to habeas corpus in the United Kingdom, see Farbey J, Sharpe RJ and Atrill S, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011). 100 The locus of the onus of proof in respect of various issues for determination in the present case was a key point of dispute between the parties. For the purposes of the alternative analysis, it is convenient to outline the basis for granting habeas corpus by reference to the legal and evidential onuses operating in an application for such relief.

Onus of proof 101 It is well-accepted that, in an application for habeas corpus, the respondent bears the ultimate legal onus of proving that the restraint of the applicant is legally justified: R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; 3 CLR 93 (Lindbergh) at 95 per Griffith CJ, Barton and O'Connor JJ; R v Davey; Ex parte Freer [1936] HCA 58; 56 CLR 381 at 385 per Evatt J; Liversidge v Anderson [1942] AC 206 at 245 per Lord Atkin; Trobridge v Hardy [1955] HCA 68; 94 CLR 147 (Trobridge) at 152 per Fullagar J; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Scholl J; R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 (Khawaja) at 110 and 112-114 per Lord Scarman; Vardalis at [73] per Black CJ; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 93 ALJR 732; 367 ALR 711 (Plaintiff M47/2018) at [39] per Kiefel CJ, Keane, Nettle and Edelman JJ; Antunovic at [118] and [120]. This follows from the fundamentality at common law of the right to personal liberty: see Trobridge at 152; Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan J; Al Masri at [86]-[93] and Antunovic at [6] and [9]. As expressed by Isaacs J in Walsh at 79, "there is always an initial presumption in favour of liberty … [s]o that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law". However, notwithstanding this foundational principle, it is not correct to state that, in an application for habeas corpus, the respondent bears the exclusive onus of proof. The true position is more complex. 102 An application for habeas corpus instead involves a series of shifting onuses between applicant and respondent: Yoxon v Secretary to Department of Justice [2015] VSC 124; 50 VR 5 (Yoxon) at [33] per T Forrest J. In many cases, it will be unnecessary for the parties, and the Court, to overtly trace the distinct steps from one onus to the next. Often, practicalities of the case will be such that the spotlight is instantly trained on the respondent to establish the lawfulness of the applicant's restraint. However, in certain cases, the proper analysis will be that the applicant has not done enough to put the respondent to proof. 103 In my view, having read the authorities, the shifting onuses of proof in an application for habeas corpus may be reduced to the following four steps (each of which are to be assessed as at the time the Court is considering the matter: Murray v Director General, Health & Community Services Victoria at 32 (unreported, Eames J, 23 June 1995), quoting Sharpe RJ, The Law of Habeas Corpus (2nd ed, Oxford University Press, 1989) pp 186-187): (1) first, the applicant bears the initial onus of proving that he or she is actually restrained: Yoxon at [34] per T Forrest J. For the scope of what constitutes "restraint", see generally Aronson, Groves and Weeks' Judicial Review of Administrative Action at 911-924 and Clark and McCoy's Habeas Corpus at 66-69. Habeas corpus will not issue where an applicant has already been released (Barnardo v Ford [1892] AC 236 (Barnardo)), or on the basis of threatened restraint (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 at [298]-[299] per Garde J). This first step also requires the applicant to prove that the named respondent or respondents have "the ability to secure the applicant's release" (Aronson, Groves and Weeks' Judicial Review of Administrative Action at 929), although there is a degree of leniency as to how the respondent may be named: see, for example, Dien v Manager of the Immigrant Detention Centre at Port Headland (1993) 115 FLR 416 (Dien). The named respondents should normally include the immediate custodian with direct physical control over the liberty of the applicant. However, it is common for other parties, such as Ministers of Parliament, to be named as a respondent where they have the power to secure the applicant's release (even though they do not themselves have direct custody of the applicant). (But cf Alsalih at [3].) The applicable enquiry appears to be whether the respondent has power, custody or control of the applicant: Barnardo at 338 per Lord Herschell; Gargan v DPP [2004] NSWSC 10; 144 A Crim R 296 at [24]-[25] per O'Keefe J; Hicks v Ruddock [2007] FCA 299; 156 FCR 574 (Hicks) at [36]-[50] per Tamberlin J; Antunovic at [90]-[113]. For commentary in relation to the identification of the proper respondent (or respondents), see Aronson, Groves and Weeks' Judicial Review of Administrative Action at 929-936 and Clark and McCoy's Habeas Corpus at 226-228; (2) second, if the applicant establishes that he or she is restrained, the respondent next bears the onus of presenting a prima facie justifiable basis for the restraint. That basis may, for example, come in the form of a court order (see, for example, Ex parte Williams [1934] HCA 48; 51 CLR 545 at 548 per Starke J; Re Officer in Charge of Cells, ACT Supreme Court, Re; Ex parte Eastman [1994] HCA 36; 68 ALJR 668; 123 ALR 478 per Deane J; Re Writ of Habeas Corpus Ad Subjiciendum; Ex Parte Hooker [2005] WASC 292 (Hooker) at [9]-[11] per Le Miere J), a warrant (Yoxon at [10] and [35]) or a Ministerial order (Greene v Secretary of State for Home Affairs [1942] AC 284 (Greene) at 296 per Viscount Maugham, 297 per Lord Macmillan and 306 per Lord Wright). In the absence of official documentation, a "narrative of facts" may otherwise be sufficient to form the requisite prima facie basis for the restraint: ibid at 306 per Lord Wright. If, however, the respondent fails to offer a justification for the restraint, the applicant is entitled to be released: Lindbergh at 95; Greene at 290 per Viscount Maugham; Yoxon at [36]; (3) third, if the respondent presents a prima facie justification for the restraint, the applicant next bears an initial evidential onus to raise a prima facie question as to the lawfulness of the restraint: Lloyd v Wallach [1915] HCA 60; 20 CLR 299 at 313 per Isaacs J; Green at 306 per Lord Wright; Khawaja at 112 per Lord Scarman; Truong v Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 (Truong) at 731 per Malcolm CJ and Seaman J and 737 per Ipp J; Dien at 418 per Malcolm CJ, with Seaman J agreeing; Al Masri at [15] and [176]; Te v Minister for Immigration and Multicultural and Indigeneous Affairs [2004] FCAFC 15; 204 ALR 497 (Te) at [61] per French, Sackville and Hely JJ; Hooker at [7]; De Alwis v The State of Western Australia [2014] WASC 161 (De Alwis) at [4] per Martin CJ; Yoxon at [36]-[37]; Plaintiff M47/2018 at [39]. This is consistent with the remarks of Isaacs J in Wall v The King; Ex parte King Won (No 1) [1927] HCA 4; 39 CLR 245 at 256 that the writ of habeas corpus is "not a writ of course, though a writ of right. It had to be moved for, and a proper case had to be shown"; and (4) fourth, if the applicant satisfies the initial evidential onus, the respondent finally bears the ultimate legal onus of proving the lawfulness of the restraint: Dien at 418-9; Hicks at [54]; De Alwis at [4]; Yoxon at [38]. This requires the respondent to prove any fact presented by the relevant statute as a condition of the power to restraint: Truong at 731, citing R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 (see 233 per Lord Parker CJ and 248 per Blain J); see also Khawaja at 110-112; Te at [61]. This ultimate onus is not easily discharged: De Alwis at [4]. The relevant standard of proof is the balance of probabilities, although, given the liberty of the applicant is at stake, this requires strong, clear and cogent evidence: Khawaja at 110-112, Truong at 731 and 737; Dien at 419; De Alwis at [4]; Antunovic at [121]-[123]; Yoxon at [40]. Moreover, in this context, there is no presumption that acts of the respondent were legally regular: Dillon v R [1982] AC 484 (Dillon) at 487 per Lord Fraser of Tullybelton, for the Privy Council; Schlieske v Federal Republic of Germany (1987) 14 FCR 424 at 432 per Fox, Wilcox and Burchett JJ; Antunovic at [119]. 104 If, upon engagement of the fourth step outlined above, the lawfulness of the applicant's restraint is proven by the respondent, habeas corpus will not issue. However, if the lawfulness is not proven, then habeas corpus will issue of right, and the applicant must be released. There is no discretion to refuse to grant the remedy: Walsh at 76 per Isaacs J; Vardalis at [91] per Black CJ; Antunovic at [131]; BC v The Public Advocate & Ors [2018] SASC 193 at [18] per Stanley J. 105 It is important for the purposes of the alternative analysis in the present case to expand on the second step outlined above, being the requirement for the respondent to present a prima facie justification for an established restraint.

Prima facie justification for restraint 106 Although the importance of the locus of the onus of proof in the present case was evident from the parties' opening written submissions, it only became a matter of sharp focus on the second hearing day. On that morning, I brought the parties' attention to a section of Clark and McCoy's Habeas Corpus (at 236-238) that addresses the "Burden of proof" for a habeas corpus application. One of the cases cited therein (at 236, fn 219) is the decision of T Forrest J in Yoxon. It is necessary to briefly address the applicant' submissions in relation to the principles presented in that case. 107 In Yoxon, T Forrest J summarised the principles in relation to the onus of proof for a habeas corpus application. His Honour acknowledged at [33] that "the issue of burden is a complicated one because it shifts between the parties as the application proceeds". His Honour then continued to explain those shifts at [34]-[39]. The applicant submitted that these passages in Yoxon exhibited a five stage approach. Without extracting the relevant passages, it is sufficient to state that applicant described the five stages as follows: (1) first, the applicant bears the burden of establishing the fact of restraint: ibid at [34]; (2) second, the respondent has to justify the restraint by showing the legal authority which lies behind it: ibid at [35]; (3) third, the respondent has to produce some documentation to support the restraint: ibid at [35]-[36]; (4) fourth, the applicant has an initial evidential burden to raise a sufficient reason to question the legal authority of the restraint: ibid at [37]; and (5) fifth, the respondent finally has the absolute burden of proving that the statutory conditions underpinning the restraint have been complied with: ibid at [38]. 108 As can be seen, this five stage approach proposed by the applicant is, in many respects, similar to the four step approach (as outlined above at [103]) that I discern from a broader reading of the authorities. The applicant's proposed approach instead splits my second step (above at [103(2)]) into two separate stages (the applicant's second and third stages), which includes, in particular, the requirement for the respondent to provide "some documentation" to support the restraint. 109 The applicability of the third stage presented by the applicant is crucial to the alternative analysis in in the present case. To foreshadow the discussion below, the applicant argues that, in respect of his claims to Aboriginality (and therefore non-alienage), the Minister has failed to provide any documentation to support the lawfulness of the applicant's restraint. However, this approach must be rejected. When it is stated, as part of the second step (above at [103(2)] above), that the respondent bears the onus of presenting a prima facie justification for the restraint, this does not necessarily require the respondent to produce documentary evidence to establish the prima facie lawfulness of the restraint (although the respondent may do so). All that the second step requires is for the respondent to provide a prima facie lawful basis for the restraint. Depending on the circumstances, that may come in the form of official documentation that, on its face, carries the requisite authority, such as an order or a warrant. However, the form of prima facie justification is not limited to such forms of substantiation. It may also come in the form of a statutory power to restrain the applicant. This is illustrated by the High Court of Australia's 2019 decision in Plaintiff M47/2018. 110 The plaintiff in Plaintiff M47/2018 was a non-citizen who destroyed his foreign passport before presenting himself to immigration officials. He was taken into immigration detention as an unlawful non-citizen pursuant to ss 189 and 196 of the Migration Act. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking declaratory relief that his detention was unlawful, together with writs of mandamus and habeas corpus to compel his release. The parties subsequently filed a special case, which was referred to the Full Court of the High Court for determination. The special case did not contain any agreement between the parties in relation to there being no prospect that the plaintiff would be able to be removed from Australia in the reasonably foreseeable future (which was the basis for the plaintiff's argument that the powers conferred under the Migration Act had been spent). Instead, the plaintiff invited the Court to draw certain inferences as to the prospects of his removal. 111 The questions presented in the special case ultimately did not arise because the factual inferences upon which the applicant's case relied were untenable on the agreed facts. Consequently, no question arose as to the lawfulness of the plaintiff's detention: Plaintiff M47/2018 at [12] and [41]-[42] per Kiefel CJ, Keane, Nettle and Edelman JJ and [49] per Bell, Gageler and Gordon JJ. The significance of the High Court's decision for present purposes is set out in the plurality's judgment. 112 In oral submissions to the High Court, senior counsel for the plaintiff relied on the Privy Council's decision in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 in support of the submission that the defendants in Plaintiff M47/2018 (the Minister for Home Affairs and the Commonwealth of Australia) bore the onus of proving the facts concerning the identity of the plaintiff's parents and his place of birth (in order to show that there was a real prospect of removing the plaintiff to his country of origin within a reasonable time): Plaintiff M47/2018 v Minister for Home Affairs & Anor [2019] HCATrans 9 at 72-73. To this, the plurality of Kiefel CJ, Keane, Nettle and Edelman JJ responded as follows in Plaintiff M47/2018: [38] Tan affords the plaintiff no assistance. In that decision, the applicants' claims for habeas corpus were determined upon evidence adduced at trial by the parties and findings made upon that evidence, rather than upon facts stated in a special case agreed between the parties. Thus, in relation to the issue as to whether the detention of some applicants could be justified as detention "pending removal", it was held that because the evidence was that the Vietnamese government had unequivocally refused to accept the return of the applicants, the continuing detention of the applicants could not be said, on the evidence, to be "pending removal". Whatever may be the position in a trial on evidence, the special case procedure adopted by the parties in the present case was adopted as an alternative to such a trial. The special case contains no agreed fact of the kind that was of crucial importance in Tan. The questions presented to the Court upon the facts agreed between the parties do not fall to be resolved by the application of the onus of proof as if this Court were conducting a trial. The questions stated by the parties must be resolved in accordance with r 27.08 of the High Court Rules on the agreed facts and documents and the inferences that may properly be drawn from those facts and documents. [39] The plaintiff assumed, by his pleading, the burden of establishing those inferences as matters of fact. It is not only "an elementary rule of the law of evidence", but "a rule of common sense" that the burden of proof is upon the party who asserts a fact, not on the party who denies it. That is not to overlook that where, as here, the claim is one for habeas corpus, the onus is on the defendant Minister to justify the plaintiff's detention. But where, as here, the plaintiff's detention is apparently lawful - because it is admitted that the plaintiff is an unlawful non‑citizen, and ss 189 and 196 of the [Migration Act] are lawful authority to detain an unlawful non‑citizen for the purpose of lawful removal from Australia as soon as that becomes practicable - the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia. [40] This consideration is compelling in this case: it is the plaintiff, not the defendants, who could reasonably be expected to provide information on the facts relating to the identity of his parents and their place of birth and residence. Insofar as the special case is deficient by reason of the absence of this information, that deficit does not provide a basis for drawing any one of the inferences urged by the plaintiff. In that regard, the present case brings to mind the considerations of common sense underlying the maxim stated by Lord Mansfield in Blatch v Archer [(1774) 1 Cowp 63 at 65; 98 ER 969 at 970] that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". (Citations omitted.) 113 Three relevant observations emerge from this passage. First, [39] of Plaintiff M47/2018 confirms the position, as outlined above, that, in a habeas corpus application, the ultimate legal onus rests on the respondent to justify the applicant's restraint, but that the applicant nonetheless carries an initial evidential onus to question the lawfulness of the applicant's restraint. 114 Second, [39] of Plaintiff M47/2018 also illustrates how the prima facie justification for the applicant's restraint (being the second step outlined above at [103(2)]) may be satisfied by the respondent in a manner other than presenting official documentation. As the plurality indicated, ss 189 and 196 of the Migration Act provided prima facie lawful authority for the plaintiff's detention. The presentation by the defendants of that prima facie statutory authority triggered the requirement for the plaintiff to satisfy his initial evidential onus. 115 Third, the plurality highlighted the general principle pronounced by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 (Blatch v Archer) that an onus of proof ought to rest on the party that is best placed to discharge it. This principle is returned to later in these reasons. 116 Contrary to the applicant's submission, the factual and procedural differences between Plaintiff M47/2018 and the present case do not undermine the cogency of these three observations. It is correct that differences exist between the two cases. As counsel for the applicant highlighted, the plaintiff in Plaintiff M47/2018, unlike the applicant in the present case, assumed the onus of establishing factual inferences by pleading those facts in his statement of claim: see ibid at [39]. Moreover, the nature of the dispute in Plaintiff M47/2018 was such that it was accepted between the parties that the plaintiff in that case was an unlawful non-citizen: see ibid at [2]. That is not applicable in the present case, where the applicant directly confronts the assertion that he is an unlawful non-citizen. However, notwithstanding all of this, the differences between the cases do not undermine the validity of the broader principles highlighted in the preceding paragraphs. The first observation (above at [113]) is established across various authorities, as cited above at [103(3)]-[103(4)]. The second observation (above at [114]) - that statutory authority may found a prima facie justification for an applicant's restraint - is a principle of broad application, and is not contingent on an applicant being an "unlawful non-citizen" (although that happened to be the case in Plaintiff M47/2018). And the third observation (above at [115]) is simply a general maxim. 117 The crucial message is that the threshold for a respondent to present a prima facie justification for an applicant's restraint is not high. Its purpose, at an elemental level, is to oblige the respondent to engage with the curial proceedings for habeas corpus in order to maintain the applicant's restraint. Its further purpose is to compel the respondent to specify the purported legal basis for the restraint so as to provide the applicant with an informed opportunity to raise a prima facie question as to the lawfulness of his or her restraint. If there is a reasonable possibility that a statutory power, combined with the surrounding facts, will lawfully support the restraint, the respondent will satisfy its initial onus to present a prima facie justification for the restraint.

Proper respondent 118 As indicated above at [103(1)], a proper respondent to an application for habeas corpus is one that has power, custody or control of the applicant. The Court has not been expressly informed in the present case of the identity of the person, or persons, who currently have power, custody or control of the applicant, although the applicant's amended application identifies the immigration detention centre at which was detained at the time that the application was filed on 11 March 2020. Clearly, the Minister himself does not have physical custody of the applicant. Nonetheless, the parties agreed that the Minister was an appropriate respondent for all forms of relief sought by the applicant. 119 Although it is ultimately unnecessary for me to decide, I express hesitancy as to whether the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs was the appropriate respondent to the applicant's application for habeas corpus in the present case. Although the answer may be simple, there was no evidence or submissions before me as to the power, custody or control that the Minister has over the applicant's detention. In particular, I note that the Migration Act is listed in the most recent Administrative Arrangements Order (made on 5 December 2019 and commencing on 1 February 2020) as being administered by the Minister for Home Affairs (and there is no reference at all to the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs). And, finally, the present case appears to be distinguishable from cases such as Snedden, Minister for Immigration v Ng Chong Sun [1969] HCA 20; 121 CLR 413 (the Rt Hon Sir Billy Snedden then being the Minister for Immigration), where the catalyst for the habeas corpus application was an order for deportation made by the Minister himself.

Prima facie justification for applicant's detention 120 As discussed above by reference to Plaintiff M47/2018, the invocation of ss 189(1) and 196 of the Migration Act, assuming that the relevance of those statutory provisions is reasonably supported by the surrounding facts, is sufficient to provide prima facie lawful authority for the applicant's detention. For the purposes of the alternative analysis in the present case, there are sufficient surrounding facts to establish that the applicant may reasonably fall within the terms of s 189(1). At this preliminary stage of analysis, it is sufficient to observe the following undisputed facts: (a) the applicant was born in the Cook Islands in 1968; (b) the applicant arrived in Australia in 1975, when he was seven years old; (c) the applicant was adopted in November 1976 at the age of eight by an Australian citizen father and a permanent resident mother (who later became an Australian citizen in 1997); (d) there is no record that the applicant has ever applied for Australian citizenship; (e) the applicant's absorbed person visa was cancelled in April 2018 and the Minister decided not to revoke that cancellation in August 2019; and (f) although the applicant self-identifies as an Aboriginal Australian, and is recognised as such he is recognised as such by an elder of the Ardyaloon Community (in which the applicant resided from about 1990 to 2001), there is no evidence that tends to prove that the applicant is a biological descendent of the Aboriginal people. 121 This "narrative of facts" (see Greene at 306 per Lord Wright), in conjunction with the terms of ss 189(1) and 196, is sufficient for the Minister to demonstrate a prima facie justification for the applicant's restraint for the purposes of the alternative analysis in in the present case. 122 There is, however, one crucial item missing from this list of facts: that, for the purposes of s 189(1), there exists, as at or around the date of this decision, an officer that holds a subjective suspicion that the applicant is an unlawful non-citizen. As became clear at the hearing, the Minister had not filed any direct evidence from "an officer" that there currently existed any such suspicion.

Officer's suspicion 123 For the Minister to prove the lawfulness of the applicant's restraint under s 189(1) of the Migration Act (which is critical for the alternative analysis in the present case), it is necessary for the Minister to establish that an officer knows or reasonably suspects that the applicant is an unlawful non-citizen. The manner in which a reasonable suspicion is to be established is addressed in George v Rockett [1990] HCA 26; 170 CLR 104 (George v Rockett) at 111-113 and 115-117 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, Ruddock v Taylor at [27] per Gleeson CJ, Gummow, Hayne and Heydon JJ and Prior v Mole [2017] HCA 10; 261 CLR 265 (Prior v Mole) at [4] per Kiefel and Bell J, [23]-[27] per Gageler J, [73] per Nettle J and [98]-[99] per Gordon J; see also Okwume (FC) at [134] per Besanko J and Bae v The Queen [2020] SASCFC 7 at [61]-[78] per Kelly J, with Stanley and Parker JJ agreeing. 124 Having read and considered these decisions, there are, in my view, three questions that the Court needs to ask itself in the circumstances of the alternative analysis in the present case: (1) Does an officer, as at or around the time of this decision, subjectively hold a suspicion that the applicant is an unlawful non-citizen? (2) If so, what are the objective circumstances by reference to which the officer subjectively formed that suspicion? (3) Having identified those circumstances, did the objective circumstances provide a sufficient foundation for a reasonable person in the position of the officer to form the suspicion that the applicant is an unlawful non-citizen? This requires the Court to undertake its own independent assessment as to the reasonableness of the officer's suspicion. 125 In the present circumstances, where there is no direct evidence that an officer currently holds the requisite suspicion, the immediate focus is on the first of these questions.

"An officer" 126 Section 189(1) of the Migration Act requires "an officer" to hold the relevant knowledge or suspicion to enliven the duty and power under that statutory provision. The precise meaning of this phrase is important on the alternative analysis in the present case, where the Minister has not filed any evidence as to the identity of any particular officer who is currently detaining the applicant (although the applicant's amended application states the location of the immigration detention centre at which the applicant was detained at the time that the application was filed on 11 March 2020). The applicant contends that the absence of such evidence is fatal to the Minister's defence of the lawfulness of the applicant's detention. 127 In support of this contention, the applicant relies on a passage from the judgment of Besanko J in the Full Court of the Federal Court of Australia's decision in Okwume (FC). By way of overview, Okwume (FC) involved two appeals from a decision of Charlesworth J in relation to a claim by a non-citizen - Mr Okwume - for damages and other compensation in relation to a period of detention between 21 July 2005 to 5 April 2016. In summary, an Immigration Inspector at Brisbane International Airport made a decision under s 116(1)(d) of the Migration Act to cancel the visa of Mr Okwume, who was subsequently detained at the airport, then a nearby motel, and then an immigration processing centre. At trial, Charlesworth J allowed Mr Okwume's application in part: Okwume (TJ) at [6] and [291]. Her Honour held that Mr Okwume had been unlawfully detained for a relatively short period between 21 July 2005 and 22 July 2005, but that the remainder of his detention was lawful. Her Honour further rejected Mr Okwume's causes of action for misfeasance in public office and negligence. 128 The Commonwealth's appeal was based on the conclusion of Charlesworth J that the cancellation of Mr Okwume's visa was affected by two jurisdictional errors, neither of which had been pleaded by Mr Okwume or put to the Commonwealth as respondent. The Commonwealth moreover contended on appeal that Mr Okwume's visa was validly cancelled and that his detention was thereafter lawful. On the other hand, Mr Okwume's appeal centred on the conclusion of Charlesworth J that Mr Okwume had not established that he was unlawfully detained for the period between 21 July 2005 and 22 July 2005. Both of these appeals involved consideration of the operation of s 189 of the Migration Act. 129 Each member of the Full Court - Besanko, Mortimer and White JJ - wrote separate judgments. Relevantly for present purposes, Besanko J, after outlining Charlesworth J's approach to s 189(1), expressed the following about the proper operation of that statutory provision: [134] I would put the correct analysis differently to how the primary judge put it, but perhaps the effect is the same. The starting point is whether the particular officer suspected that a person had a particular status (ie, was an unlawful non-citizen). If it is found that the particular officer did not have the suspicion, then that is the end of the inquiry and s 189 of the Act was not engaged. If he or she did have the suspicion, then the question is whether a reasonable person in the officer's position would have entertained a suspicion that the person was an unlawful non-citizen. That will involve, in the first instance, an examination of the circumstances known to the person. If a reasonable person in the officer's position would have desisted from forming the suspicion or awaited further information or made further inquiries before forming the relevant suspicion, then the actual officer's suspicion is not reasonable in the circumstances. … (Emphasis added.) 130 The applicant highlights the references in the passage above to a "particular officer". The applicant contends that the Minister is compelled to identify a particular officer that is currently detaining the applicant, which the Minister has failed to do. 131 To the extent that the Minister argues in the present case that s 189(1) of the Migration Act ought to be applied by reference to a hypothetical officer untethered from the reality of the circumstances of the case, I disagree with that characterisation of the statutory test. Section 189(1) is not intended to be applied in the abstract. There must be, as a matter of fact, an actual suspicion to warrant the detention of the alleged unlawful non-citizen. 132 It does not follow, however, that the statutory test under s 189(1) of the Migration Act may only be satisfied by reference to the state of mind of a particular named officer. Although evidence from an appropriate officer will be the most direct, and cogent, manner of proving the requisite state of mind, this is not an exhaustive means of doing so. Depending on the circumstances, it may, in my view, be possible for the Court to draw a reasonable inference as to the existence of a relevant suspicion from the surrounding evidence. 133 It is important to recognise the factual and procedural context in which Besanko J in Okwume (FC) expressed his remarks extracted above. The underlying causes of action in that case were the tort of false imprisonment, the tort of misfeasance in public office, and the tort of negligence. Charlesworth J in 2016, and then the Full Court in 2018, were assessing the lawfulness of a period of detention of Mr Okwume between 21 July 2005 and 5 April 2006. The events of 21 July 2005 and 22 July 2005, immediately after Ms Okwume's arrival in Australia, were well-documented: see Okwume (TJ) at [35]-[82] per Charlesworth J and Okwume (FC) at [6]-[49] per Besanko J. It was clear from these known circumstances that there were three identified officers who were alleged by the Commonwealth to have lawfully detained Mr Okwume from time to time during that short period, namely Mr Andersson, Ms O'Connell and Ms Trad. 134 The remarks of Besanko J at [134] of Okwume (FC) should be read in this light. The passage preceding that paragraph demonstrates that his Honour's focus was the subjective suspicion of two particular named individuals, Mr Andersson and Ms O'Connell, at a particular point in time in the past: ibid at [130]-[133]. It is therefore unsurprising that his Honour, in formulating the appropriate approach to s 189(1), expressed that it was necessary to enquire into the suspicion of particular named officers at the relevant points in time. That focus was necessary in the circumstances of that case. However, that particular focus will not be necessary in all cases.

Inference of a suspicion 135 In my view, for the reasons explained below, the Minister, for the purposes of establishing that s 189(1) of the Migration Act was lawfully engaged, was not required in the present case to adduce direct evidence from an officer that the officer held, as at or around the time of this decision, the requisite suspicion in respect of the applicant. It is instead open for the Court to draw reasonable inferences from the surrounding evidence.

Key authorities 136 Sadiqi v Commonwealth (No 2) [2009] FCA 1117; 181 FCR 1 (Sadiqi (No 2)) is a decision of McKerracher J. That proceeding involved claims by the plaintiff for compensation from the Commonwealth to redress what the plaintiff asserted were breaches of Australian law in relation to, broadly, the period of time in which he spent in immigration detention prior to being recognised as a refugee. His Honour's decision in Sadiqi (No 2) involved the determination of a series of complex preliminary questions presented by the parties. 137 By way of amended notice of contention, the defendants in that case requested that the Court consider a further preliminary question. The terms of that further question are set out at [135] of Sadiqi (No 2). The question broadly asked whether certain established facts provided a reasonable basis on which an officer could suspect that the plaintiff was seeking to enter the migration zone and that, if the plaintiff entered the migration zone, the plaintiff would be an unlawful non-citizen. 138 McKerracher J's view was that the proposed question was inappropriate to answer given there was no evidence that any officer held such a suspicion. His Honour's response to the defendants raising the proposed question was as follows: [137] The difficulty, however, is that there is no agreed fact and no evidence of any officer of the first defendant holding a suspicion, reasonable or otherwise. [138] The defendants contend that reasonable suspicion is inevitable as the agreed facts record that the plaintiff left Afghanistan with the intention of travelling to Australia; the vessel on which the plaintiff travelled from Indonesia towards the Territory of Ashmore and Cartier Islands was an Indonesian coastal vessel; in addition to the plaintiff, there were 161 other asylum seekers onboard the vessel; and the plaintiff did not hold a visa under the Migration Act. [139] There can be little doubt on those facts (in the absence of evidence to the contrary or evidence which might counterbalance those facts) that there would have been a reasonable basis for the relevant suspicion to be held by any officer of the first defendant. The position, however, is that the defendants have adduced no evidence that any such officer held such a suspicion. [140] I was taken to a deal of analysis by the High Court as to what may constitute suspicion or reasonable suspicion but none of this authority, in my view, overcomes the difficulty that there is no actual evidence of an officer holding suspicion: George v Rockett (1990) 170 CLR 104 at 115; Ruddock v Taylor (2005) 222 CLR 612 at [27]). It would have been open to the defendants to seek to adduce such evidence but rather than do so or produce any record which might establish that an officer actually held a suspicion the defendants have invited the Court to infer that a suspicion must have been held. [141] I do not take Ruddock v Taylor 222 CLR 612 as being authority for the defendants' submission that an inference of knowledge or suspicion can be drawn in the circumstances of this case. In Ruddock v Taylor the Court was addressing a situation in which there was an issue as to whether cancellation of Mr Taylor's visa was valid in light of his long-term residency in Australia. It was agreed that the cancellations were at the relevant time unauthorised but equally, it was agreed that the visa could have been lawfully cancelled at the time of the hearing before the High Court. The question was whether he had been falsely imprisoned following the cancellation of his visa. The distinction in Ruddock v Taylor was that there had been evidence before the primary judge from the officers who detained Mr Taylor as to the inquiries they had undertaken (at [49]-[50], [93]-[96]). The difference in that case was that while McHugh J dissented partly on the basis that the trial judge made no findings as to the state of mind of either of the officers, the majority was prepared to infer from the existence of the evidence and the calling of the officers and the inquiries that they made that there was the necessary suspicion. The question for the High Court was whether grounds for a reasonable suspicion could include grounds which were technically incorrect at law. I do not consider that the passages relied upon by the defendants in Ruddock v Taylor (at [50]) fill the gaps as to the absence of any comparable evidence in the present situation. Nor was there any issue in that case to the fact that officers had held a suspicion. The issue in Ruddock v Taylor was whether the suspicion could still be reasonable if founded on a mistake of law or fact. [142] I am unable to accept, however likely that it may be, that it is open to the Court to speculate that a suspicion was held. The difficulty I repeat is not with the reasonableness of a suspicion being held but the establishment that any suspicion was held. (Emphasis added.) 139 In isolation, these emphasised comments of McKerracher J tend to repudiate the suggestion that a court is entitled to infer the existence of an officer's requisite suspicion for the purposes of s 189(1) of the Migration Act. However, these comments need to be read in light of the Full Court's subsequent decision in Okwume (FC). 140 As introduced above, Okwume (FC) involved appeals by both the Commonwealth and Mr Okwume from the decision of Charlesworth J. Relevantly for present purposes, Mr Okwume appealed on (amongst other grounds) the ground that her Honour erred in finding that an officer - Ms Trad - was empowered to detain Mr Okwume under s 189(1) of the Migration Act. Mr Okwume argued that Ms Trad had failed to independently form a reasonable suspicion in respect of Mr Okwume for the purposes of that statutory provision. It is unnecessary to explore the detailed facts in Okwume (FC). It is sufficient to extract the relevant passages in relation to the inference of the existence of a suspicion. 141 Besanko J characterised the relevant question as whether the Commonwealth had established that Ms Trad reasonably suspected that Mr Okwume was an unlawful non-citizen: ibid at [152]. His Honour recorded the Commonwealth's submission as follows: [153] The Commonwealth submitted that the primary judge's finding as to Ms Trad's state of mind and conduct was correct. The Commonwealth was not required to call the officer if the other evidence in the case - ie, documentary evidence - established the relevant matter (Sadiqi v Commonwealth (No 2) [2009] FCA 1117; (2009) 181 FCR 1 (Sadiqi) at [139]). … 142 Subsequently, at [157], Besanko J observed that the Commonwealth's submissions raised a number of questions, the first of which was whether Charlesworth J erred "in finding that Ms Trad reasonably suspected Mr Okwume of being an unlawful non-citizen". To this, Besanko J stated the following: [158] With respect to the first question, there is, of course, no rule of law that an officer's state of mind can only be established by oral evidence from the officer (Sadiqi at [139]-[140]). In this case, the primary judge drew inferences from documents put in evidence and, in my opinion, she was entitled to do that. (Emphasis added.) 143 Then, after considering Ms Trad's consideration of Mr Okwume in the circumstances of that case, Besanko J concluded (in respect of this issue) as follows: [162] In my opinion, it is appropriate to draw the inference that Ms Trad believed that Mr Okwume's visa had been cancelled and suspected that he was an unlawful non-citizen for the purposes of s 189(1) of the Act. Furthermore, a reasonable person in Ms Trad's circumstances would have formed that suspicion. It does not seem to me correct to conclude that a reasonable person in Ms Trad's circumstances would have considered it necessary to ask for details of the steps in the cancellation process before forming the suspicion. [163] In Ruddock v Taylor, the plurality [of Gleeson CJ, Gummow, Hayne and Heydon JJ] in addressing the facts said (at [49]-[50]): At the trial of these proceedings, those officers who had been responsible for effecting the respondent's detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent. Plainly, each suspected that the respondent was an unlawful non citizen. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non citizen follows inevitably. [164] Although Ms Trad did not give evidence in this case, the documents indicate that she was presented with information, which she would have had no reason to doubt, that there had been a regular and effective cancellation of Mr Okwume's visa. She then completed documents from which it may be inferred that she reasonably suspected that Mr Okwume was an unlawful non-citizen within the Act and she gave directions as to his detention. 144 White J wrote separately to Besanko J in relation to Mr Okwume's appeal. White J, unlike Besanko J, was not satisfied that it could be inferred that Ms Trad was acting pursuant to s 189 of the Migration Act to, as relevant in the circumstances of that case, effect a fresh detention of Mr Okwume: Okwume (FC) at [340]. However, importantly for present purposes, his Honour accepted that, as a matter of principle, an officer's suspicion could be inferred from surrounding evidence: [325] Unlike the circumstances considered in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, the Commonwealth did not adduce any evidence at trial from Ms Trad. This meant that inferences as to the character of her actions and of her state of mind have to be drawn from the documents, to the extent that that is possible: Sadiqi v Commonwealth (No 2) [2009] FCA 1117; (2009) 181 FCR 1 at [139]. (Emphasis added.) 145 These passages from the judgments of Besanko J and White J respectively clearly support the view that the Court may draw reasonable inferences from surrounding evidence as to the existence of an officer's suspicion for the purposes of s 189(1) of the Migration Act. The citation by Besanko J and White J of Siddiqi (No 2) in support of that proposition suggests that, when McKerracher J in Siddiqi (No 2) referred to there being no evidence in that case of an officer holding the requisite suspicion, his Honour did not simply mean that there was no direct evidence of an officer's suspicion. Instead, McKerracher J was stating that there was no evidence whatsoever (not even circumstantial evidence) that could support a reasonable inference as to the existence of the suspicion. 146 For completeness, Mortimer J did not express a view in Okwume (FC) as to ability to infer a relevant suspicion. Her Honour held that, in the circumstances of that case (in particular that the relevant argument arose for the first time on appeal), it was inappropriate to determine the debate about the scope and operation of ss 189 and 196 in relation to Mr Okwume's detention: ibid at [259]. Her Honour did, however, express in passing that she did "consider that what is contended on behalf of Mr Okwume, is not without substance": ibid at [269]. 147 I agree with, and follow, the remarks of Besanko J and White J in Okwume (FC) that the existence of an officer's suspicion for the purposes of s 189(1) of the Migration Act may be inferred from the surrounding evidence. This is consistent with the remarks of the plurality of Gleeson CJ, Gummow, Hayne and Heydon JJ in Ruddock v Taylor at [49]-[50], as extracted by Besanko J in Okwume (FC) (see above at [143]). Indeed, in Guo at [68], Jagot J described an "essential competent of the reasoning in Ruddock v Taylor" as being that, "on the facts of that case, it should be inferred that the officers who detained the respondent, at all material times, held the requisite reasonable suspicion under s 189(1)" (emphasis added). Her Honour also expressed in Guo at [80] that "the means by which such a reasonable suspicion may be formed, may be held and may continue are questions of fact and inference to be determined on the evidence of the particular case". 148 The next question for the purposes of the alternative analysis is whether the evidence in the present case supports the inference of the existence, as at or around the time of this decision, of the requisite suspicion in respect of the applicant.

Admissibility of evidence 149 At the start of the first hearing day, the Minister sought to read the affidavit of Ms Jennifer Margaret Duff (Ms Duff) affirmed on 19 February 2020. Ms Duff is the Director of the Status Resolution Capability Branch of the Department, and is located in Belconnen in the Australian Capital Territory. Ms Duff's affidavit attests to various facts, including systems and procedures at the Department, the initial assessment of the applicant's status as an unlawful non-citizen, and monthly case reviews thereafter in respect of the applicant's detention. Her affidavit contains 27 annexures in support of these facts. It is clear from the affidavit, however, that Ms Duff did not herself conduct any of the assessments of the applicant, or reviews of his detention. Paragraph 7 of her affidavit indicates that Ms Duff reviewed the departmental records in respect of the applicant in order to detail a chronology of the Department's consideration of the applicant for the purposes of this application. 150 Counsel for the applicant objected to the admissibility of various parts of Ms Duff's affidavit on basis that they constituted inadmissible hearsay. (For reference, the aspects of the affidavit impugned by the applicant were paras 14-19, 21-23 and 27-43 and the associated annexures, JMD-4 to JMD-8 and JMD-11 to JMD-27). The applicant contended (without opposition from the Minister) that the impugned paragraphs, and associated annexures, were being relied on by the Minister to prove the state of mind of the people identified in the affidavit (or annexures). As the applicant highlighted, those people were not managed by Ms Duff. Nor were the representations in question obtained by Ms Duff. 151 After a brief adjournment, counsel for the Minister reduced the scope of the material on which he sought to rely. The revised scope of material comprised paras 1-13, 20, 24, 25, 26 of the affidavit and annexures JMD-1 to JMD-12. He expressly stated that he did not need to rely on annexures JMD-13 to JMD-27. In respect of the annexures upon which the Minister sought to rely, counsel for the Minister argued that those documents were business records of the Department that were excluded from the hearsay rule pursuant to s 69(2) of the Evidence Act 1995 (Cth) (Evidence Act). The applicant's response was that the exception in s 69(2) did not apply because the relevant records were "prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with" this proceeding: ibid, s 69(3). 152 Section 59 of the Evidence Act provides that "[e]vidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation". However, the Evidence Act prescribes various exceptions to that general rule. Section 69 of the Evidence Act provides one such exception, and relevantly provides as follows: Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. … 153 Each of the annexures upon which the Minister sought to rely - annexures JMD-1 to JMD-12 - were documents to which the exception in s 69(2) of the Evidence Act prima facie applied. The question was whether s 69(3) operated to oust that exception. 154 The annexures upon which the Minister sought to rely are each dated throughout 2018, and were therefore prepared prior to the Minister's decision on 23 August 2019 and the commencement of this proceeding on 2 October 2019. As such, the representations in these documents were, as submitted by the Minister, not prepared "for the purpose of conducting, or for or in contemplation of or in connection with" this proceeding. Neither were they obtained by Ms Duff "for the purpose of, or in contemplation of or in connection with, this proceeding". Although Ms Duff had obtained (in the sense of collated) the copies of the records in preparation for this proceeding, she had not "obtained" the representations expressed in those records. This is because she is not a person who sought those representations or procured them to be made: see Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 at [26]-[27] per Lindgren J, cited in Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305; 350 ALR 494 at [45] per Moshinsky J; see also Odgers S, Uniform Evidence Law (14th ed, Thomson Reuters, 2019) p 487. Section 69(3) therefore does not apply to those records. 155 Having considered Ms Duff's affidavit, and the terms of s 69 of the Evidence Act, I ruled on the first hearing day that I would admit paras 1-13, 20 and 24-26 of the affidavit, in addition to each of the annexures prepared prior to the Minister's Decision (on 23 August 2019), namely annexures JMD-1 to JMD-22. However, as noted above, counsel for the Minister expressly abandoned reliance on annexures JMD-13 to JMD-27. As such, the relevant annexures of Ms Duff's affidavit for the purposes of this decision are only annexures JMD-1 to JMD-12.

Evidence supporting inference of a suspicion 156 Counsel for the Minister, in his supplementary written submissions filed after hearing, particularly relied on annexures JMD-4, JMD-5 and JMD-11 (as detailed below) to support the inference of the existence, as at or around the time of this decision, of the requisite suspicion in respect of the applicant. 157 Annexure JMD-4 is a four page document entitled "Detention Note" (May 2018 Detention Note). The evident purpose of the document is to facilitate, and provide substantiation of, an assessment as to whether there are grounds to suspect that the "client" (the applicant in the present case) is an unlawful non-citizen. At the end of the document, there is a section enabling certification by a "Compliance Officer", and also the signature of that officer's manager. That section provides as follows: Reasoning Pursuant to s189 Detention - Decision I have reasonable grounds to suspect the client is an unlawful non-citizen and must be detained in accordance with the provisions of section 189 of the Migration Act 1958 (the Act). Compliance Officer: SHAYNE QUINN Position Number: [Description of position number] STO: [Darwin, NT] Date: 11/05/2018 Managerial Review I have reviewed the facts and reasoning of this case and the decision is: Most Preferable Option Further Comments: Signature: Electronically signed Manager Name: ANNE LORD Position Number: [Description of position number] STO: [Adelaide, SA] Date: 11/05/2018 158 As can be seen, this document was certified, and reviewed, on 11 May 2018, which is the date on which the applicant was first taken into immigration detention after being released from criminal custody: para 13 of Ms Duff's affidavit. 159 Other aspects of the May 2018 Detention Note are pertinent. The document commences with a section specifies the "Client Details". That section identifies the applicant and his personal details. In relation to "Citizenship", it states three countries: "AUSTRALIA", "NEW ZEALAND" and "COOK ISLANDS". The document then notes that the applicant is detained in an immigration detention centre in Darwin, and proceeds to outline an "Identity Assessment", detail the applicant's "Immigration History" and then state the reasoning for the officer holding the suspicion as to the applicant's status as an unlawful non-citizen. The latter section provides as follows (with errors in original): Reasoning Pursuant to s189 Detention - Facts Evidence Reasons I considered whether the client is suspected of being an unlawful non-citizen. In this consideration I took into account the facts and evidence provided in this report. ň The client has been satisfactorily identified in accordance with departmental instructions. As the client has been satisfactorily identified the basis of my reasonable suspicion that the client is an unlawful non-citizen is as follows: ň The client's statements at interview have substantially matched Departmental records. ň The client has no substantive visa in effect and no bridging visa in effect. ň The client is not affected by known case law. Reasons for ongoing detention: On 10/05/2018, Officer QUINN conducted a status assessment for Mr MCHUGH Edward Vainepoto (31/01/1968), turning his mind to potential visa's held by operation of law, and potential Australian citizenship acquired by birth. Officer QUINN came to a reasonable suspicion that MCHUGH is an Unlawful Non-Citizen whose last visa held was an Absorbed Person (BF-C) visa which was cancelled on 23/04/2018 under s501. Officer QUINN took into consideration the following: - Citizenship Assessment - conducted by Visa and Citizenship Management Division on 26/02/2018 … - Absorbed Person Determination - conducted by Legal Advice & Operational Support Branch on 16/03/2018 … - Citizenship Assessment - verbally supported by Status Resolution Helpdesk on 10/05/2018 On 10/05/2018, Officer QUINN conducted a CAT and determined that MCHUGH is not affected by case law or notification defects. On 08/05/2018, Officer QUINN conducted a CCI with MCHUGH and determined that he is not eligible for the grant of a Bridging Visa E. Therefore MCHUGH must be detained under s189 of the MIGRATION ACT 1958. Based on my consideration, of this information, I have formed a reasonable suspicion that the client is an Unlawful Non-Citizen. As a result of my conclusion in this regard I have found that the client is subject to the mandatory detention provisions in s189 of the Migration Act 1958. 160 Annexure JMD-5 is a three page document entitled "Detention Review Manager: Phase 1" (May 2018 Detention Review). It is electronically signed by a Detention Review Manager, Ms Karen Pereira, on 13 May 2018 (two days after the May 2018 Detention Note). Ms Pereira's location is specified as "VIC". 161 The May 2018 Detention Review, like the May 2018 Detention Note, first specifies the "Client Details". The applicant's personal details are recorded, and the section again records the applicant's citizenship as "AUSTRALIA", "NEW ZEALAND" and "COOK ISLANDS". It moreover identifies his country of birth as "COOK ISLANDS". The document further records that the applicant is now detained at an immigration detention centre near Perth, but that the detaining officer remains "SHAYNE QUINN" in "NT". 162 The May 2018 Detention Review then sets out a detailed "Detention Review", which includes an immigration history of the applicant. The following extract from that review details Ms Pereira's assessment of the evidence underlying her suspicion that the applicant is an unlawful non-citizen: 4. Is there sufficient objective evidence to know or hold a reasonable suspicion that the client is an unlawful non-citizen? Yes: There is sufficient objective evidence to know or hold a reasonable suspicion that the client is an unlawful non-citizen. Comments: The Citizenship Helpdesk found on 26/02/2018 that Mr McHugh is not an Australian citizen. I note the previous assessment made in 2013 … is centred around whether he may have automatically acquired Australian citizenship by adoption, as it is claimed that his parents that are listed in the birth certificate adopted him. The QLD birth certificate sets out that date of registration is 4 November 1976. Automatic acquisition via adoption was not in effect until 22 November 1984, therefore, Mr McHugh did not automatically become an Australian citizen via adoption. This is all confirmed in the 2013 assessment. In regard to him being an Australian passport holder, an Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only. The issuing of the passport in this case, was most likely on presentation of the Australian birth certificate and the fact that prior to 2005 appropriate checks were not made as to whether the applicant was an Australian citizen. I also note that on entry the passenger list as entering Australia on a New Zealand travel document. Also, the passenger card it's listed that country of Citizenship is Australia. It appears whoever wrote this may have thought because his adopted father was born in Australia, he may have acquired it by descent. Australian citizenship by descent is not automatic, you must make an application and you do not become an Australian citizenship by descent until such time as the application is approved. Mr McHugh could have only become an Australian citizen by application. I've had a search of our historical records and there is nothing to indicate Mr McHugh has ever applied for and acquired Australian citizenship either by conferral or descent. Contd. 5. Have alternatives to detention, including the grant of a bridging visa been considered? Yes Comments: . I've found that his mother Mary-Anne McHugh … acquired Australian citizenship by conferral on 23/12/1997 at the time Mr McHugh was an adult. Therefore, we can disregard he ever became an Australian citizen as a dependant on his mother's citizenship application. …. The DRM has completed an assessment of the cancellation of the 501 visa using a checklist designed by the DRM for this purpose and the DRM's finding is that Mr McHugh was correctly notified of the cancellation … The DRM finds based on the evidence currently before the Department that Mr McHugh is an unlawful noncitizen. Mr McHugh is not able to lodge an application for a visa because of the provision of section 501E. 163 To return to Ms Duff's affidavit, Ms Duff deposes in para 20 that [d]uring the period of the applicant's detention, monthly case reviews are conducted by his case manager, a task required by the role. As part of this process, the case manager is required to turn their mind to whether detention is still appropriate. In order to answer this question, the case manager must consider: 20.1. whether the detainee is an unlawful non-citizen 20.2. under which law the detention is authorised. 164 It is apparent that annexures JMD-6 (dated 5 June 2018), JMD-7 (dated 5 July 2018), JMD-8 (dated 31 July 2018) and JMD-11 (dated 20 September 2018), each being documents entitled "Case Review" (collectively, Monthly Case Reviews), are examples of the periodical case reviews referred to in Ms Duff's affidavit. Each of these documents are materially in the same form, and it is only necessary to refer to the last of these documents. 165 Annexure JMD-11 is a seven page document entitled "Case Review" (September 2018 Case Review). The last page of the September 2018 Case Review records that it was completed by "CHRISTINE HATFULL" (Ms Hatfull) on 20 September 2018, and that no further senior review was required. It is unclear where Ms Hatfull was located when completing this review, although the document records the applicant's location at this time as an immigration detention centre on Christmas Island. 166 The September 2018 Case Review, like the other documents discussed above, starts with the "Client Details". It again notes the applicant's personal details, and lists his citizenship as "AUSTRALIA", "NEW ZEALAND" and "COOK ISLANDS". However, the document's critical original contribution to the case management of the applicant is contained in the following section: Lawful Detention Is detention still appropriate? Yes Justification of ongoing detention, including barriers to release from detention and actions taken to resolve them where possible. On 23/04/2018 Mr MCHUGH's BF-C was cancelled under s501 (3A). Mr MCHUGH was released from Prison on 11 /05/2018 and he was detained under s189(1) of the Act. Mr MCHUGH was transferred to Northwest Point IDC on 04/09/2018 and remains detained under s189(3) of the Act. Under s196(1) of the Act, an unlawful non-citizen detained under s189 must remain in immigration detention until they depart Australia or are granted a visa. Ongoing detention remains lawful and appropriate Referral to DRM Not Required Please justify your answer. There has been no new information identified to raise concerns regarding Mr MCHUGH's unlawful immigration status or the lawfulness of his detention. Mr MCHUGH has made no claims of being an Australian citizen or permanent resident, is not affected by any known case law and there are no indicators currently known to trigger a referral to DRM. Detention continues to be appropriate. Mr MCHUGH has been advised by Citizenship that he is not an AU citizen - although he assumed he was. He has been given a letter to advise him of this and this issue is considered closed bt the Dept; however, Mr McHugh is contiuing to try to establish his Australian Citizenship status. (Errors in original.) 167 As can be seen from the second paragraph of the extract above, the identified statutory basis for the applicant's detention at the time was s 189(3) of the Migration Act because the applicant was, at that time, located on Christmas Island: see s 5(1) definition of "excised offshore place". 168 Towards the end of the September 2018 Case Review, there is a section that records the appropriate future case management approach for the applicant: Approach and Acuity Is the Case Management Approach still appropriate? Yes Please justify your answer. SRO will review case on a monthly basis and remain alert to any changes in circumstances that affect case progression. At this stage of Mr McHUGH's immigration pathway, minimal intervention is required. SRO to ensure barriers to status resolution are identified/escalated appropriately to effectively achieve case objective: Revocation Is the Acuity setting still appropriate? Yes Please justify your answer. SRO will review case on a monthly basis and remain alert to any changes in circumstances that affect case progression. At this stage of Mr McHUGH's immigration pathway, minimal intervention is required. SRO to ensure barriers to status resolution are identified/escalated appropriately to effectively achieve case objective: Revocation 169 Annexure JMD-12 is an email trail dated 25 September 2018 that relevantly includes an email from Ms Hatfull to representatives of the Department at the Brisbane Immigration Transit Accommodation Centre (Ms Hatfull's September 2018 Email). That email informed those representatives of the following: Mr McHugh has recently transferred from CI to BITA. He has made claims regarding being an Australian citizen ; these claims have been investigated at length by the Citz Heldesk … with the outcome that Mr McHugh is NOT an Australian citizen. I am letting you know as Mr McHugh will be stating his claims of Citizenship, which he is continuing to pursue. He was born in the Cook Islands, brought to Australia when he as about 5 years old, and adopted by an Australian citizen father and PR mother (who later became a citizen). He was issued with an Australian Birth Certificate and an Australian passport - his passport has recently been made void as it was determined that he is not a Citizen. Mr McHugh has also raised his case with the Ombudsman. I have multiple emails from / about Mr McHugh … just so you are aware that he will raise this issue with you and you are aware that his claims have been investigated.

Consideration 170 In my view, for the purposes of the alternative analysis in the present case, the evidence outlined above is sufficient to reasonably support an inference that, as at or around the time of this decision, an officer subjectively suspects that the applicant is an unlawful non-citizen. 171 To start, although the present focus is on the existence of a suspicion, rather than the reasonableness of such a suspicion, the subjective basis for the officers' suspicions is clear from the above documents. The May 2018 Detention Review notes that citizenship would only have been acquired by the applicant by application, and both the May 2018 Detention Note and the May 2018 Detention Review refer to the assessment by the Citizenship Helpdesk that the applicant was not an Australian citizen. The May 2018 Detention Review also refers to the fact that the applicant, having been adopted prior to the 1984 legislative amendments (as discussed below at [265]-[267]), was not eligible for citizenship by adoption. The authors of the May 2018 Detention Note and the May 2018 Detention Review accordingly formed the view that, on the material before the Department, the applicant was an unlawful citizen. (I also note that there was understandably no consideration of the applicant's Aboriginality in these pre-Love assessments.) 172 These documents establish that in May 2018 an officer subjectively held a suspicion that the applicant was an unlawful non-citizen. In this regard, I reject the applicant's submission that, because the authors or reviewers of these documents were in geographical locations different from the applicant, a suspicion under s 189(1) of the Migration Act could not be lawfully formed. It is correct that Ms Anne Lord was located in Adelaide when reviewing the May 2018 Detention Note (when the applicant was in Darwin), and that Ms Pereira was in Victoria when completing the May 2018 Detention Review (when the applicant was near Perth). It may also be that Ms Christine Hatfull was not on Christmas Island (with the applicant) when completing the September 2018 Case Review. But it does not follow that the geographical separation between these officers and the applicant disqualified the officers from lawfully detaining the applicant for the purposes of s 189(1). 173 Importantly, "detain" is defined under s 5(1) of the Migration Act as meaning: (a) to "take into immigration detention"; or (b) to "keep, or cause to be kept, in immigration detention", and includes "taking such action and using such force as are reasonably necessary to do so". This definition does not limit the concept of detention to physically proximate restraint. The inclusion of the reference to "cause to be kept" indicates that the definition of "detain" extends beyond direct physical restraint to include, where appropriate, the act of authorising the restraint. This act of authorising the restraint may take place at a location different from the applicant's physical presence. Given the span of immigration detention centres across the vast geography occupied by Australia, and the modern accessibility of electronic information technology, it is unsurprising that this occurs. For this reason, it is unnecessary, for the purposes of justifying the lawfulness of the applicant's detention, for the Minister to rely on evidence of a suspicion formed, or held, at the same geographical location at which the applicant is detained. 174 Thus, in respect of the analysis as at May 2018, the documents considered above largely speak for themselves. An officer subjectively held a suspicion that the applicant was an unlawful non-citizen at that point in time. The critical question is whether the May 2018 Detention Note, the May 2018 Detention Review, the Monthly Case Reviews (including the September 2018 Case Review), Ms Hatfull's September 2018 Email and the affidavit of Ms Duff, in conjunction with all other relevant circumstances, reasonably support the inference that an officer continues to hold that suspicion as at or around the date of this decision. In my view, they do. 175 A convenient starting point is the attestation by Ms Duff in her affidavit that, during the period of the applicant's detention, monthly case reviews are conducted by a case manager, which requires the case manager to turn his or her mind to whether the detention remains appropriate. This requires consideration of whether the detainee is an unlawful non-citizen and the law under which the detention is authorised. As the applicant submits, this evidence from Ms Duff does not by itself prove that an officer subjectively held the requisite suspicion as at the time of the hearing of this application, or continues to hold that suspicion as at or around the date of this decision. But this evidence, which was unchallenged by the applicant, does establish that, as at the date that Ms Duff deposed to that fact (19 February 2020), shortly prior to the hearing of the habeas corpus application, there existed a continuing formal protocol to that effect. 176 Returning to the annexures to Ms Duff's affidavit, the Monthly Case Reviews are evidently examples of the periodical reviews undertaken pursuant to the protocol referred to by Ms Duff. In particular, Ms Hatfull determined in the September 2018 Case Review that ongoing detention of the applicant remained appropriate (see above at [166]). She records that there has been no new information to raise concerns regarding the applicant's status. She notes that the applicant continues to assert that he was an Australian citizen but, according to Ms Hatfull, the issue was at this time considered closed. (This is consistent with Ms Hatfull's September 2018 Email subsequently sent to representatives of the Department: see above at [169].) Then, toward the end of the September 2018 Case Review, Ms Hatfull recommends that the same case management approach continue (see above at [168]). The document states that "SRO will review case on a monthly basis and remain alert to any changes in circumstances that affect case progression". 177 Although there is no admissible evidence in relation to case reviews conducted beyond September 2018, there is also nothing to suggest that there has been a change in the nature of the suspicion held towards the applicant. We are aware that, on 17 October 2018, the applicant emailed the Department to provide a response to certain information raised by the Department (see above at [41]). It also appears that, on the same date, the Department received letters in support from various members of the applicant's family: see Exhibit R1 (being the bundle of "Relevant Documents" filed in the proceeding on 13 January 2020), pp 99-107). However, these were simply representations made on behalf of the applicant. Then, on 23 August 2019, after a lapse of about 10 months, the Minister determined not to revoke the cancellation decision. That decision was the catalyst for this proceeding. 178 The drawing of an inference from the admissible evidence that an officer currently holds the requisite suspicion in respect of the applicant exhibits a common mode of judicial reasoning. To explain, the revised version of Wigmore on Evidence classifies circumstantial evidence into three classifications, one of which is "prospectant evidence": Wigmore JH, Evidence in Trials at Common Law (rev ed, Tillers P, Little, Brown and Company, 1983), Vol IA, s 43. The Hon Dyson Heydon AC QC explains that "the argument for the reception of this kind of evidence [i.e. prospectant evidence] is that the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed, at the moment of time into which the court is inquiring": Heydon JD, Cross on Evidence (12th ed, LexisNexis Butterworths, 2019) (Cross on Evidence) [1120]. 179 This form of inferential reasoning has otherwise been described as the application of a "presumption of continuance": Wigmore JH, Evidence in Trials at Common Law (rev ed, Chadbourn JH, Little, Brown and Company, 1979), Vol II (Wigmore on Evidence, Vol II), s 437; Wigmore JH, Evidence in Trials at Common Law (rev ed, Chadbourn JH, Little, Brown and Company, 1981), Vol IX, s 2530. Particular examples of this "presumption" are outlined in Cross on Evidence at [1125]. This includes the presumption that a person's state of mind will continue until the contrary is shown: Owners of Strata Plan No 23007 v Cross [2006] FCA 900; 153 FCR 398 at [66]-[68] per Edmonds J; Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; 160 FCR 465 (Guiseppe) at [45] per Gyles and Edmonds JJ. Although often described as a "presumption", it is, in truth, "no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts": Cross on Evidence at [1125], citing R v Noonan [2002] NSWCCA 46; 127 A Crim R 599 at [18] per Bell J; see also Mason v Tritton (1994) 34 NSWLR 572 (Mason) at 587 per Kirby P. The issue is, as stated in Cross on Evidence at [1125], "simply one of relevance, depending on common human experience". 180 For present purposes, the operation of this form of reasoning is best encapsulated in the following extract from Wigmore on Evidence, Vol II at s 437, which was quoted with approval by Kirby P in Mason at 587-588: When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period. The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence to-day will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control. 181 Returning to the present case, my view is that, in circumstances where: (i) an officer in May 2018 clearly held a subjective suspicion that the applicant was an unlawful non-citizen; (ii) that view was repeated in subsequent monthly case reviews up to September 2018; (iii) an officer expressed in September 2018 that the issue regarding the applicant's citizenship was considered "closed"; (iv) the Minister in August 2019 decided not to revoke the applicant's visa cancellation; and (v) there exists in February 2020 a continuing protocol that the appropriateness of the applicant's detention is reviewed monthly, an inference may reasonably be drawn that, as at or around the date of this decision, an officer subjectively holds a suspicion that the applicant is an unlawful non-citizen. 182 In particular, I do not view the delivery of the High Court of Australia's judgment in Love on 11 February 2020 as an intervening circumstance that undermines the validity of this inference. It is correct that the Minister and the Department have been on notice for some time that that the applicant self-identifies as a member of the Aboriginal community (see para 63 of the submission from the Department to the Minister, as relevantly extracted above at [43]). However, this has never, either prior to the Minister's decision or during this proceeding, extended to a claim that the applicant is of biological Aboriginal descent, which, as discussed below, is an essential component of the test for Aboriginality applied in Love. As such, notwithstanding the significance of the majority's analysis in Love, it does not, by itself, form a basis for negating an inference the inference drawn above. 183 For completeness, my view is that the absence of direct evidence as to the existence of an officer's suspicion in the present case is distinguishable from the absence of evidence criticised by Wigney J in PDWL. In that case, Perry J had made procedural orders as duty judge on 12 March 2020, including an order requiring the Minister to "file and serve an affidavit by an appropriate officer from the [Minister's] Department explaining whether the first respondent is still in immigration detention and, if so, an officer with actual knowledge should also explain why he is still in immigration detention" (see PDWL at [35]). As Wigney J observed at [37], it is abundantly clear that Perry J wanted to know why the first respondent remained in immigration detention the day after the Administrative Appeals Tribunal had granted him a visa. However, when the matter came before Wigney J on 17 March 2020, the first respondent was still in immigration detention, and the affidavit filed on behalf of the Minister in the interim refused to provide an explanation for why the first respondent remained in custody on the basis that it would "reveal legal advice that is subject to legal professional privilege": ibid at [42]-[45]. 184 It was in this procedural context that Wigney J criticised the Minister in PDWL as follows: [57] The conduct of the Minister in this case, on just about any view, has been disgraceful. Putting aside the fact that PDWL remains in detention, despite having been granted a visa on 11 March 2020, that is, six days prior to the hearing of these applications, the Minister appears to have willingly and flagrantly failed to comply with the orders made by Perry J on 12 March 2020. That order required the Minister to file an affidavit by an appropriate officer in his Department with actual knowledge of why PDWL was still in immigration detention. The affidavit filed in purported compliance with that order contained no such explanation. Rather, it sought to conceal any explanation behind the cloak of legal professional privilege. [58] Putting aside the Minister's undoubted ability to waive any privilege if he wished to do so, I have little doubt that an explanation could have been given for the continuing detention of PDWL which did not involve the disclosure of any privileged information. The reasons for the continuing detention could have been explained by an officer who was not a solicitor and the explanation could undoubtedly have been given without exposing any legal advice that may have supported that explanation. It may perhaps be inferred that the only explanation that the Minister had for the continuing detention of PDWL was that he, or someone in his Department, thought that the Tribunal's decision was wrong. It would appear, however, that either no officer in the Minister's Department was prepared to depose to that fact, or the Minister was simply prepared to ignore the clear terms of Perry J's order. [59] The Minister's failure to comply with the order made by Perry J on 12 March 2020 provides another reason to refuse his application for expedition. … [62] The Minister sought to characterise PDWL's application for a writ in the nature of habeas corpus as an application "in relation to a migration decision". That was said to be because some hypothetical officer somewhere in the Commonwealth must have made a decision to detain the first respondent under subs 189(1) of the Migration Act. The Minister did not adduce any evidence that any officer had in fact turned his or her mind to subs 189(1) of the Act at any time after the Tribunal's decision, or that any officer had in fact made a decision under subs 189(1) of the Act. One wonders why, if there was in fact such an officer, he or she did not swear an affidavit in compliance with the orders made by Perry J on 12 March 2020. 185 There are two bases on which PDWL is distinguishable from the present case in relation to the absence of direct evidence as to the existence of a requisite suspicion. The first is that the opportunity in PDWL to reasonably draw an inference that an officer held the requisite suspicion was negated by the Minister's non-compliance with Perry J's order that the Minister file an affidavit explaining why the first respondent in PDWL was in immigration detention. Although my procedural orders on 12 December 2019 in the present proceeding required the Minister to file affidavit material in advance of the hearing, those orders, first, were made before the applicant's habeas corpus application was made and, second, did not specifically direct the Minister to provide an explanation for the applicant's detention in the same manner of Perry J's order in PDWL. 186 The second basis for distinguishing PDWL from the present case is that it appears from Wigney J's reasons that the Minister adduced no evidence whatsoever in PDWL as to the existence of a suspicion for the purposes of s 189(1) of the Migration Act. Thus, the facts of PDWL are relevantly comparable to those in Sadiqi (No 2), where the defendants in that case - the Commonwealth and the former Minister for Immigration and Multicultural Affairs - failed to adduce any evidence that an officer held a relevant suspicion, and accordingly McKerracher J was unable to speculate as to the existence of such a suspicion (see above at [136]-[138]). In contrast, in the present case there is substantial admissible evidence regarding the existence from May to September 2018 of a relevant suspicion, and evidence in February 2020 as to a continuing protocol regarding periodical reviews of the appropriateness of the applicant's detention. This may not be the best evidence that the Minister could have produced to this Court, but it is sufficient to establish the existence of the requisite suspicion for the purposes of the alternative analysis in the present case. 187 Before continuing, I note that the applicant raised various criticisms regarding the extent and quality of reasoning expressed by the officers in the documents annexed to Ms Duff's affidavit. In my view, these matters concern the reasonableness of the officer's suspicion, rather than the existence of a subjective suspicion (which was the focus of the analysis above). These criticisms raised by the applicant are returned to below at [361].

Conclusion on officer's suspicion 188 For the reasons expressed above, I am satisfied, for the purposes of the alternative analysis in the present case, that, at the date of this decision, there is an officer who subjectively suspects that the applicant is an unlawful non-citizen. 189 The next step for the purposes of the alternative analysis is to assess the reasonableness of that suspicion. That directs attention to the bases raised by the applicant for the unlawfulness (and therefore unreasonableness) of the officer's suspicion.

VI. Applicant's Aboriginality 190 Part VI of these reasons addresses the applicant's claims to be an Aboriginal Australian. The enquiry into the applicant's Aboriginality is relevant to the primary analysis in the present case because, as explained below by reference to the High Court's decision in Love, Aboriginal Australians (in the relevant sense for constitutional purposes) are not "aliens" within the meaning of s 51(xix) of the Constitution. This means that the relevant detention and deportation provisions of the Migration Act, as currently enacted, do not apply to such persons. The enquiry into the applicant's Aboriginality is moreover relevant to the alternative analysis in the present case because the lawfulness of the applicant's detention inherently informs the reasonableness of an officer's suspicion under s 189(1) of the Migration Act that the applicant is an unlawful non-citizen.

Love v Commonwealth of Australia 191 The decision of Love was delivered by the High Court on 11 February 2020. The Chief Justice and each puisne justice of the High Court delivered separate reasons, and it is unnecessary to detail the issues of constitutional interpretation at stake in that case. Key for present purposes is the verdict by the majority of the High Court that Aboriginal Australians (as understood according to the tripartite test in Mabo (No 2) at 70 per Brennan J) are not "aliens" within the meaning of s 51(xix) of the Constitution: Love at [74] and [81] per Bell J, [284] per Nettle J, [374] per Gordon J and [398] per Edelman J. 192 The effect of Love is that the relevant provisions of the Migration Act for detaining and removing unlawful non-citizens, which are enacted under the "aliens" power under s 51(xix) of the Constitution, do not apply to Aboriginal Australians. On the facts stated in the special cases in Love, it was not in dispute that Mr Thoms, a New Zealand citizen (and the plaintiff in one matter before the High Court), was an Aboriginal Australian, and therefore not an "alien": [287]-[288] per Nettle J, [387] per Gordon J and [460] and [462] per Edelman J. However, on the facts stated, a majority was unable to agree as to whether Mr Love, a citizen of Papua New Guinea (and the plaintiff in the other matter before the High Court), was an Aboriginal Australian: see [78]-[81] per Bell J, [388]-[389] per Gordon J and [462] per Edelman J; cf [287]-[288] per Nettle J. 193 The test for Aboriginality applied by the majority in Love for the purposes of determining non-alienage under s 51(xix) of the Constitution was the tripartite test set out by Brennan J in Mabo (No 2) at 70, where his Honour stated that [m]embership 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. (Love at [76] and [81] per Bell J, [284] per Nettle J, [366]-[367] per Gordon J and [458] per Edelman J.) 194 Thus, for a person to establish that he or she is an Aboriginal Australian pursuant to this test, the person must satisfy each of three elements. He or she must: (a) be a biologically descendent of the Aboriginal people; (b) personally identify as an Aboriginal person; and (c) be recognised as Aboriginal by other persons enjoying traditional authority amongst an Aboriginal society. 195 It should be recognised, though, that this test does not purport to govern any social or cultural concept of what makes a person an Aboriginal Australian. The test only governs the legal concept of Aboriginality for certain purposes: ibid at [367] per Gordon J. 196 It is necessary to highlight two further aspects of the majority judgments in Love that, although not relevant to the facts of the present case, may be important in future cases. The first is that the majority in Love did not state that the only way a person who purports to be an Aboriginal Australian can establish non-alienage for constitutional purposes is by satisfying each of the three elements of the tripartite test. The plaintiffs in Love, in advancing their case as to the scope of the Commonwealth legislative power under s 51(xix) of the Constitution, relied on the tripartite test in Mabo (No 2) (or at least one analogous to it) to formulate the meaning of an Aboriginal Australian: Love at [23] per Kiefel CJ, [76] per Bell J; [116] per Gageler J and [191] per Keane J. That is the particular basis upon which the High Court considered the special cases before it. 197 This leaves room for future argument by a non-citizen of Australia that, on the basis of his or her Aboriginality, he or she is not an alien notwithstanding that he or she does not satisfy each of the three elements of the tripartite test in Mabo (No 2): see Love at [80] per Bell J. (See also, in a different context, Eatock v Bolt [2011] FCA 1103; 197 FCR 261 (Eatock) at [189] per Bromberg J.) As stated by Edelman J in Love (at [458]), the tripartite test of Aboriginality is "not set in stone". His Honour expressed particular reservations with the applicability of the tripartite test "to determining Aboriginality as the basis for those fundamental ties of political community in Australia which are not dependent upon membership of a particular sub-group": ibid at [458]. 198 For the purposes of the present case, however, the parties accepted that the tripartite test in Mabo (No 2) was the appropriate test for Aboriginality for the purposes of establishing non-alienage, and that each of the three elements outlined above were necessary conditions for the purpose of satisfying that test. Neither do the concerns expressed by Edelman J regarding the application of the test arise in the present case, as the applicant claims membership of a particular sub-group of the Aboriginal people, namely the Ardyaloon Community. 199 The second further aspect to highlight from the majority judgments of the Love is an important qualification to the application of the tripartite test. Three members of the majority in Love indicated that, even if a person satisfies each of the three elements of the tripartite test, it may be that, in certain cases, that person has otherwise renounced their connection with Australia such that they are properly characterised as an alien for constitutional purposes: see [279] per Nettle J, [372] per Gordon J and [465] per Edelman J. However, that possibility was not engaged in relation to the two plaintiffs in Love. Nor is it engaged on the facts of the present case.

Biological descent 200 The first element of the tripartite test in Mabo (No 2) - that the person be a biologically descendent of the Aboriginal people - assumes particular significance in the present case. 201 It is ultimately unnecessary in the present case to determine what forms of evidence are necessary or sufficient to prove whether a person is of Aboriginal descent. That is because, as discussed from [230] below, no evidence was adduced on that issue. The question of the applicant's biological descent is therefore simply a matter of identifying which party has failed to meet their onus of proof in the present case. That said, it is instructive to review the relevant authorities to inform oneself of the forms of evidence that could, or should, have been adduced in the present case. The purpose of this section is to outline those authorities. 202 Only a limited number of judicial decisions have considered the nature and proof of Aboriginality in Australia. Earlier decisions include Muramats v Commonwealth Electoral Officer (WA) [1923] HCA 41; 32 CLR 500 at 506-507 per Higgins J and Re Bryning, deceased [1976] VR 100 at 102-104 per Lush J. (See generally Chesterman J and Galligan B, Citizens Without Rights: Aborigines and Australian Citizenship (Cambridge University Press, 1997); McRae H et al, Indigenous Legal Issues: Commentary and Materials (4th ed, Thomson Reuters, 2009) [2.20]-[2.30] and Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Canberra, 2012) p 21.) 203 It is useful to focus on the "modern" decisions since the developments regarding the legal conception of Aboriginality in the 1980s: see Gardiner-Garden J, Defining Aboriginality in Australia, Department of the Parliamentary Library, Current Issues Brief No. 10 2002-03 (3 February 2003) (Gardiner-Garden's Defining Aboriginality in Australia) pp 4-5. These modern decisions are traced in Australian Law Reform Commission, The Protection of Human Genetic Information, Report No 96 (1993), Vol 2, pp 914-918 and Eatock at [175]-[187]. The key aspects of these decisions in relation to the biological descent of an Aboriginal person are extracted in chronological order below.

Relevant authorities 204 In Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam Case), Brennan J considered the meaning of "Aboriginal race" in the context of the High Court of Australia determining the scope of the Commonwealth's legislative power under the "race power" in s 51(xxvi) of the Constitution. After the 1967 constitutional amendment, it provides that the Commonwealth Parliament has, subject to the other provisions of the Constitution, power with respect to "the people of any race for whom it is deemed necessary to make special laws". 205 Brennan J expressed (at 243) that the concept of "race" necessarily entailed a biological element. His Honour continued to express the following (at 244) about the nature of this biological connection: Membership of a race imports a biological history or origin which is common to other members of the race, but Richardson J. [in King Ansell v Police [1979] 2 NZLR 531 at 542] is surely right in denying the possibility of proving ultimate genetic ancestry. However, in my respectful opinion, I do not think his Honour was propounding his "real test" of common regard as being conclusive or exhaustive. Actual proof of descent from ancestors who were acknowledged members of the race or actual proof of descent from ancestors none of whom were members of the race is admissible to prove or to contradict, as the case may be, an assertion of membership of the race. Though the biological element is, as Kerr L.J. pointed out [in Mandla v Dowell Lee [1983] 1 QB 1 at 19], an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. … 206 Although Deane J did not consider the concept of "race" in the same detail, his Honour expressed the following in the Tasmanian Dam Case at 273-274: It is unnecessary, for the purposes of the present case, to consider the meaning to be given to the phrase "people of any race" in s. 51(xxvi). Plainly, the words have a wide and non-technical meaning: see, e.g., King-Ansell v. Police [[1979] 2 NZLR 531]; Mandla v. Dowell Lee [[1983] 1 QB 1]. The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par. (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By "Australian Aboriginal" I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal. … 207 As can be seen, the last sentence of this passage appears to be the progenitor of the test for Aboriginality adopted by Brennan J in Mabo (No 2), as applied by the majority in Love: see Gardiner-Garden's Defining Aboriginality in Australia at 4-5. 208 In Attorney-General (Cth) v Queensland (1990) 25 FCR 125 (Attorney-General (Cth) v Queensland), the Full Court of the Federal Court of Australia (constituted by Jenkinson, Spender and French JJ) was required to consider the ordinary meaning of "Aboriginal" for the purposes of interpreting the Letters Patent authorising the Royal Commission into Aboriginal Deaths in Custody (which was conducted between 1987 and 1991). The Commissioner, in ruling on his own jurisdiction, concluded that "in its ordinary and natural sense in modern usage the word 'Aboriginal' includes people or proven Aboriginal descent …". The Commissioner found that a particular deceased was of Aboriginal descent, and that the Commission was accordingly empowered by the Letters Patent to inquire into that deceased's death. The State of Queensland submitted that the deceased was not an Aboriginal, and succeeded at first instance. The Attorney-General of the Commonwealth appealed to the Full Court. 209 The Full Court allowed the appeal and held that the Commissioner did not err in applying his test as to the meaning of "Aboriginal" for the purposes of the Letters Patent. Each member of the Full Court wrote separate judgments. Jenkinson J relevantly stated the following at 126-127: I apprehend that in vernacular use in Australia at this time the word "Aboriginal", used as a noun, is applied only to a person thought to be a descendant of the people who occupied this country before British settlement, or thought possibly to be a descendant of those people. Descent, at least as a real possibility, is essential, as I would find. In a case where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used or eschewed in reference to that person under the influence of what may be called cultural circumstances. The cultural circumstances and the culturally influenced attitudes of any particular member of the Australian community whose choice it is on a particular occasion to use or to eschew the word in such a case may be put aside. I would find that, in reference to him who identifies himself as a person of Aboriginal descent and who is recognised as an Aboriginal by the Aboriginal community, the word "Aboriginal" will be used, notwithstanding that he is thought to be in only small part of Aboriginal descent, or to be not certainly, only possibly, of Aboriginal descent at all. 210 Spender J expressed the following at 132: In my respectful opinion, neither the attribute of self-recognition, nor recognition by "the Aboriginal community" is a necessary integer in the ordinary meaning of an Aboriginal. I have reservations as to whether one can speak with any precision of "the Aboriginal community". It seems to me that this aspect of the matter can be put no higher than recognition as Aboriginal by persons who are accepted by the person making the classification as being of Aboriginal descent. Further, in my opinion, the presence of either attribute, or even both, is not sufficient to constitute a person an Aboriginal. Wishing cannot make it so. I am not to be taken as saying that, when a person has to decide whether a person is an Aboriginal, the factors of self-recognition, or recognition by persons who are accepted as being Aboriginals, are irrelevant. In cases at the margin, where Aboriginal descent is uncertain, or where the extent of Aboriginal descent might, on one view, be regarded as insignificant, each of those factors may have an evidentiary value in the resolution of the question. Once, however, it is established that the person is non-trivially of Aboriginal descent, then in my view of the ordinary meaning of the word "Aboriginal", that person is within that meaning. 211 The detailed judgment of French J considered the meaning of an Aboriginal as defined under various statutes. In relation to the question of interpretation in that case, his Honour concluded as follows at 148: For the purposes of the Letters Patent, the better view is that Aboriginal descent is a sufficient criterion for classification as Aboriginal. That proposition must be read subject to the right of the Commissioner to decline to inquire into a case where the Aboriginal genetic heritage is so small as to be trivial or of no real significance in relation to the overall purpose of the Commission. … 212 In Gibbs v Capewell (1995) 54 FCR 503 (Gibbs), Drummond J considered the meaning of the phrase "a person of the Aboriginal race of Australia" for the purposes of the definition of an "Aboriginal person" under s 4(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act). His Honour held that the Commonwealth Parliament had intended to give this phrase its ordinary meaning: Gibbs at 507. However, according to his Honour (at 506), the objects of the ATSIC Act demonstrated that the legislature had used the expression "Aboriginal race of Australia" to refer to the group of persons in the modern Australian population who are descended from the inhabitants of Australia immediately prior to European settlement. It follows that an "Aboriginal person" is, for the purposes of this Act, one of those descendants. 213 On this basis, Drummond J stated the following at 507: Since the Act itself makes it clear that proof of descent from the pre-European settlement inhabitants of Australia is essential before a person can come within the expression "Aboriginal person" in the Act, I reject the suggestion advanced on behalf of the first respondent that a person without any Aboriginal genes but who has identified with an Aboriginal community and who is recognised by that community as one of them can be an "Aboriginal person" for the purposes of this particular Act. It follows that adoption by Aboriginals of a person without any Aboriginal descent and the raising of that person as an Aboriginal (a possibility mentioned by the first respondent) will not, because of the statutory requirement for descent, bring that person within the description "Aboriginal person". 214 Drummond J next considered (at 507-508) the question as to whether "Aboriginal person" denoted only full blood descendants of the pre-European settlement inhabitants of the continent or whether it comprehends persons of mixed descent. His Honour held that it was sufficient that a person possessed "some Aboriginal genetic material": ibid at 508. 215 Drummond J finally considered, and rejected, the Minister's argument in that case that the proof of Aboriginal descent was a sufficient condition to be an "Aboriginal person" for the purposes of the ATSIC Act. His Honour expressed the following at 511: In my opinion, in order for someone to be described as an "Aboriginal person" within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient. A substantial degree of Aboriginal descent may, by itself, be enough to require a person to be regarded as an "Aboriginal person". Jenkinson J, in Attorney-General (Cth) v Queensland at [25 FCR, 127], referred to the impossibility of a person "of wholly Aboriginal descent" being able to avoid being described in ordinary Australian usage as Aboriginal, irrespective of any steps he personally took to avoid such an appellation. It is I think where a person is either wholly of Aboriginal descent or where the degree of Aboriginal descent is so substantial that the person possesses what would be regarded by the generality of the Australian community as clear physical characteristics associated with Aboriginals that the person would be described in ordinary speech as "Aboriginal". 216 In Shaw v Wolf (1998) 83 FCR 113 (Shaw), Merkel J was required to consider a challenge to the electability of certain persons to the Regional Council for the Hobart Region under the ATSIC Act. The primary issue, similar to Gibbs, was whether each of these persons were "a person of the Aboriginal race of Australia" for the purposes of definition of an "Aboriginal person" under s 4 of that Act. Merkel J concluded that the petitioners established that two persons standing for election were not Aboriginal persons for the purposes of the Act: Shaw at 131. 217 Merkel J considered, and agreed with, the substance of Drummond J's conclusions in Gibbs: Shaw at 118. Merkel J's judgment proceeded to engage in a detailed exploration of the nature of Aboriginal identity. His Honour expressed at 120 that "any consideration of descent, self-identification and communal recognition as factors relevant to determining whether a particular individual is an Aboriginal person must not only recognise the interaction and interdependence of these factors but do so in the context of their particular application in relation to that person". 218 In relation to "descent", Merkel J stated the following at 120: Descent Although in Gibbs v Capewell at 510; 583 Drummond J referred to the requirement of "proof of actual Aboriginal descent", in my view his Honour was not referring to proof according to any strict legal standard. Rather, his Honour was referring to the requirement that under the Act an Aboriginal person must have some Aboriginal descent. Accordingly if, after considering all of the material that is logically probative of descent, the Court is satisfied that a person does not have some descent then the person cannot be an Aboriginal person for the purposes of the Act. As I point out hereafter, evidence as to the process by which self-identification and communal identification occurs can be logically probative of descent. 219 On the topic of "self-identification", Merkel J concluded as follows at 122: In these circumstances Aboriginal identification often became a matter, at best, of personal or family, rather than public, record. Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral "history" of descent may in some instances be the only evidence available to establish Aboriginal descent. Accordingly oral histories and evidence as to the process leading to self-identification may, in a particular case, be sufficient evidence not only of descent but also of Aboriginal identity. 220 One further aspect of Shaw is noteworthy. Merkel J held at 123 that, given the nature of the petitions in that case, the onus was on the petitioners "to prove the allegations of the petition so far as they are not admitted". In that case, this required the petitioners to prove that the respondents were each not an Aboriginal person. However, as explained below, the present case is distinguishable from this aspect of Shaw. 221 A similar issue to that considered in Gibbs and Shaw arose in In the Matter of Marianne Watson (No 2) [2001] TASSC 105 (Re Watson (No 2). In that case, Cox CJ was not persuaded that the appellant in that case, Ms Watson, was "a person of the Aboriginal race of Australia" for the purposes of Aboriginal Lands Act 1995 (Tas) (Tasmanian Aboriginal Lands Act), which borrowed the meaning of that phrase from ATSIC Act: Re Watson (No 2) at [1]. Ms Watson had sought for her name to be included on the Aboriginal Land Council of Tasmania Electoral Roll, but the Chief Electoral Officer objected to her inclusion on the basis that Ms Watson did not meet that statutory description. 222 The Chief Electoral Officer was required by the Tasmanian Aboriginal Lands Act to prepare guidelines concerning the eligibility of a person to be placed on the relevant electoral roll: Re Watson (No 2) at [2]. The Chief Electoral Officer had, by reference to the decisions in Gibbs and Shaw, developed such guidelines, which relevantly provided as follows (Re Watson (No 2) at [3]): Aboriginal ancestry A person must be able to provide authentic evidence that shows a direct line of ancestry linked back to traditional Aboriginal society. Documentary evidence is generally required - the form of a verifiable family tree, or archival or historical documentation that links a person to a traditional family or person. • Photographic evidence or family folklore alone will not normally be sufficient to prove Aboriginal ancestry. • Where a person is chiming their Aboriginal ancestry from outside Tasmania, proof of descent must be available from the other area of Australia concerned. 223 The appellant in Re Watson (No 2) adduced various evidence in support of her electoral eligibility, including an affidavit in relation to her personal belief regarding her descent, photographs of her alleged ancestor, Ellen Janet Bessell (Ellen) (who was born in 1888), and Ellen's children and grandchildren, and affidavits from several members of the Aboriginal community, who provided their opinions that the people in those photographs were Aboriginal people: ibid at [6]-[9]. The Chief Electoral Officer adduced evidence to challenge the appellant's claims to Aboriginality (ibid at [10]-[12]), including an affidavit from an academic at the University of Tasmania, Mr Gregory Patrick Lehman. 224 Cox CJ expressed his conclusion as follows: [13] Having regard to all the evidence, I am not persuaded on the balance of probabilities that the appellant is "a person of the Aboriginal race of Australia". I respectfully adopt the statement of Drummond J in Gibbs v Capewell (supra) at [54 FCR, 511]: "In order for someone to be described as an 'Aboriginal person' within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient." In the present case, there is no documentary evidence of Aboriginal descent, there is no evidence of an oral history connecting the appellant to any historical personage and very little oral history of any connection with an Aboriginal group or tribe, such little history being the rather vague reference to Ellen's people having come from the Islands in an open boat. To my unpractised eye, the photographs are not definitive and according to Mr Lehman's affidavit, neither he nor the other members of the advisory committee considered that the persons depicted were persons with Aboriginal ancestry. Although Mrs West and the other deponents of affidavits filed on behalf of the appellant were of the contrary view and saw resemblances of other Aboriginal persons in some of the appellant's relatives, especially her great uncle Ernest and her great-grandmother Ellen, I have no reason to prefer their view to that of the members of the advisory committee. Darkness of pigmentation is common to the descendants of many different races and is not, on its own, indicative of Aboriginal descent. 225 Finally, in Eatock, Bromberg J was required to consider whether the publication of two newspaper articles contravened s 18C of the Racial Discrimination Act 1975 (Cth). The applicant in that case complained that the two articles conveyed offensive messages about fair-skinned Aboriginal people. 226 After considering the decisions outlined above in these reasons, Bromberg J expressed the following: [188] The authorities to which I have referred, make it clear that a person of mixed heritage but with some Aboriginal descent, who identifies as an Aboriginal person and has communal recognition as such, unquestionably satisfies what is conventionally understood to be an "Aboriginal Australian". For some legislative purposes and in the understanding of some people, compliance with one or two of the attributes of the three-part test may be regarded as sufficient. To some extent, including within the Aboriginal community, debate or controversy has occurred as to the necessary attributes for the recognition of the person as an Aboriginal. Those controversies have usually occurred in relation to whether a person meets the necessary criteria, rather than as to the criteria itself. Those controversies have however from time to time focused upon whether a person with no or no significant Aboriginal descent should be accepted as an Aboriginal person. [189] A person possessing all three attributes identified by the three-part test clearly satisfies the conventional understanding of an Aboriginal person. Consistently with the authorities to which I have referred, in the knowledge of the possession of those three attributes, such a person would be described by ordinary Australians as Aboriginal. In my view, such a person would be entitled to expect that other Australians would recognise and respect his or her identification as an Aboriginal Australian. …

Modes of proof 227 The question as to whether a person is Aboriginal person can be a "vexed and difficult question": Patmore v Independent Indigenous Advisory Committee [2002] FCAFC 316; 122 FCR 559 at [56] per Merkel and Downes JJ. It will be often be personally uncomfortable for that question to arise in litigation. But courts are compelled to answer such questions for the purposes of quelling controversies involving the determination of legal rights, duties or liabilities. Accordingly, contests as to the biological descent of a person may need to be settled by "a court acting on evidence which lacks specificity": Love at [368] per Gordon J; see also Mabo (No 2) at 62 per Brennan J. 228 It is unnecessary for the purposes of the present case to define the forms of evidence that are necessary to be presented by a party to litigation in order to prove, or disprove, a person's Aboriginal biological descent. That will likely be the subject of consideration in future cases. The extracts from the decisions outlined above may supply an indication as to how courts will determine these questions in the future. It should not be forgotten, however, that a number of the decisions above were determined in specific statutory contexts, the features of which may not be broadly applicable. 229 In the present context, the appropriate focus is on the biological or genetic ancestry of a person. That is evident from the terms of the tripartite test expressed in Mabo (No 2). However, these matters are not necessary to consider further as, in the present case, no evidence in relation to the applicant's biological descent was adduced by either the applicant or the Minister.

Applicant's evidence 230 The evidence regarding the applicant's Aboriginality for the purposes of this application was set out in the applicant's affidavit sworn on 27 February 2020 (applicant's affidavit). The relevant parts of the applicant's affidavit are as follows: Aboriginality 6. I identify as and am recognised as being an Aboriginal Australian. I do not know if I am of Aboriginal biological descent. Identity 7. From about 1990, I lived with my life in the Ardyaloon Aboriginal community of the Bardi Jawi people. We lived together there for twelve years then we separated. 8. I have a traditional Bardi Jawi language name. 9. The community spoke both English and Bardi. I know some Bardi. 10. I had a ceremonial role in the community for the period that I lived within it. I put boys through the law to become men. I painted them, and sung and danced with them all night. I also participated in circumcision ceremonies. I had to carry them up a hill and if I stopped and dropped them I could be killed by the family. I had to prepare the place for ceremony. I had to collect the right wood and leaves for smoking the wound. 11. I also used to work with the rangers who were employed by the Aboriginal community. For instance, we monitored the collection of trochus shells. We look after the health of the ocean. 12. I was initiated in to the law of the men of the community. Out of respect for the law, I cannot say what the content of this is. 13. My wife and I lived with our five children, four girls and one boy. I was very involved in raising them. We would camp together and go fishing. 14. In about 2001 I separated from my wife, and I moved out of the community as a result. 15. I moved to Derby and married an Aboriginal woman there. I had two boys with her. She was a Bardi Jawi woman too and the children were raised in that tradition. 16. I lived with my second wife for six years. We lived in Derby and for three years in her mother's community, the Mulan Aboriginal community. That is where we had our boys. It is a desert community, with a population of about six or seven extended families living in forty houses. 17. I separated from my second wife in about 2008 but in 2010 I returned to live with my first wife. We lived in Broome together with four of the children (the eldest daughter was in Perth at university). We separated again after two years. 18. In 2015, I met an Aboriginal artist, a Gidja woman. She and I travelled around Australian in 2015 and 2016. We painted traditional Aboriginal paintings and sold them. 19. When we travelled we stayed at Aboriginal communities all round the country and were looked after well. Recognition 20. I am recognized as Aboriginal by the Bardi Jawi people of the Ardyaloon One Arm Point Community, Dampier Peninsula, Western Australia, My seven children and their two mothers are of Bardi Jawi descent and all are born in the Kimberly region of Western Australia. Now produced and shown to me and marked EM-1 is a copy of a letter from Peter Skeen, a Bardi Jawi elder. I received the letter by email from Mr Skeen on 19 February 2020. 21. This is the only letter of recognition I was able to get while I am detained an in the 16 days between the High Court's decision in Love and Thoms, and this evidence being due for filing. Descent 22. I do not know who my biological father was and know nothing about him. 23. I do not have reason to believe that my biological mother was of Aboriginal descent, but I do not know much about her at all. I have had no contract with her since she abandoned me. I do not know if she is now dead or alive. 231 As raised in para 20 of his affidavit, the applicant had received a letter by email from a Mr Peter Skeen (Mr Skeen), who, according to the applicant's affidavit, is a Bardi Jawi elder. The letter from Mr Skeen expressed the following: To the Federal Court of Australia, Hi my name is peter skeen I am a traditional owner and an elder of the bardi jawi tribe of the dampier peninsula. I've known Edward mc hugh for 30 years as a part of the bardi jawi aboriginal tribe on the dampier peninsula. Edward mc hugh has seen how the bardi jawi people carry out our law and culture on the land Edward mc hugh respect the bardi jari people cultural law Edward mc hugh also dacnce in out ceremony]to bring up young boy through out law in the bush to be come young men by the bardi jawi cultural law. Edward mc hugh has all way respected the bardi jawi law proples way still to today far as I know. Edward mc hugh all so started a family on the dampier peninsula to [name removed] a bardi jawi woman who is my cousin sister my mother [name removed] brother [name removed] daughter had kids for Edward mc hugh kids are bardi jawi children in out family group Edward mchugh is a part of our people. And a family man.I peter skeen all I know Edward mc hugh has erned his right to be part of us bardi jawi family he is a bardi jawi law and cultural man too I peter skeen of bardi jawi tribe on Edward mc hugh behalf of our family. Peter Skeen, elder, traditional owner and lawman Of the Bardi Jawi Tribune, Ardyaloon One Arm Point Community … (Errors in original.) 232 The letter from Mr Skeen is undated and unsigned. If the outcome of this decision had hinged on the veracity of this evidence, I would have experienced difficulty being satisfied from this evidence that the applicant was recognised as Aboriginal by persons enjoying traditional authority amongst the relevant Aboriginal society. I acknowledge that there was only a short period of time for the applicant and his representatives to prepare evidence for this application (see para 21 of the applicant's affidavit). But evidence of the kind provided in Mr Skeen's letter, for it to have probative and evidentiary weight, should more appropriately come in a form of an affidavit by the person enjoying traditional authority. 233 In any event, the Minister did not challenge Mr Skeen's letter. (The Minister's opening written submissions contended that Mr Skeen's letter did not establish that the applicant was recognised as an Aboriginal by elders, however that contention was not raised at the hearing.) Counsel for the Minister expressed at the hearing that someone on behalf of the Minister had made their own inquiries, which established that Mr Skeen was an officer of the registered native title corporation connected with the Bardi Jawi people, and that there was accordingly a prima facie link between his opinion and the membership of that community. On this basis, the Minister proceeded at the hearing on the basis that the elements of self-identification and communal recognition were satisfied. The only element in contest was the applicant's biological descent.

Consideration 234 Counsel for the applicant accepted that there was no evidence in relation to the applicant's biological descent. In these circumstances, a positive submission by the applicant that he was of biological Aboriginal descent would plainly have been untenable on the facts, as the applicant did not know whether he was of such descent, and did not have any reason to believe that his birth parents were of such descent: paras 6, 22 and 23 of the applicant's affidavit. The applicant did not advance such a submission. 235 The applicant's approach was instead to put the Minister to proof. The applicant submitted that it was the Minister who bore the onus of proving the lawfulness of the applicant's detention. This required the Minister, who was detaining the applicant under the Migration Act, to prove that the applicant was an alien for constitutional purposes. According to the applicant, this, in the circumstances of the present case, required the Minister to prove that at least one of the three elements in the tripartite test in Mabo (No 2) was not satisfied. Thus, according to this argument, the onus was on the Minister to present evidence that contradicted the suggestion that the applicant was of Aboriginal descent. In the applicant's submission, the Minister's failure to do so meant that the Minister had failed to demonstrate that the applicant was an alien, and therefore this Court was compelled to find that the applicant's detention was unlawful. 236 For the following reasons, the applicant's submission regarding the onus of proof in relation to his claim to Aboriginality must be rejected for the purposes of both the primary analysis and alternative analysis in the present case.

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant 237 The applicant clearly did not commence this application on the basis that this Court's original jurisdiction was confined to determining whether s 189(1) of Migration Act was capable of applying to him. The competency of his habeas corpus application relied on this Court possessing original jurisdiction to directly review the legality of his detention. However, as determined above at [87], this Court does not have such original jurisdiction. 238 This shift in the jurisdictional reality effects a fundamental transformation in the nature and burden of the present case. Whereas a habeas corpus application burdens the respondent (the Minister in this case) with the ultimate legal onus of proving the lawfulness of the applicant's restraint (subject to the other preliminary onuses discussed above), an application involving a dispute as to the interpretation and application of a statute supplies no such protections, even where the liberty of the applicant in such a case is at stake. 239 Once the limitation in s 476A of the Migration Act on this Court's jurisdiction crystallised in the present case, the character of the applicant, for the purposes of discerning the appropriate locus of the onus of proof, converted from a person restrained under the Migration Act (and prima facie unlawfully so) to a "mere" litigant seeking the Court's assent to his interpretation and application of the terms of that statute. The applicant was transformed into a bare moving party, and the onus of proof transformed with him. This signalled the reinstatement of a "fundamental requirement of any judicial system" (Cross on Evidence at [7060]), namely that "if a person thinks that he has a claim against another person, or against a Ministry, the duty is on him to establish that claim": Dickinson v Minister of Pensions [1953] 1 QB 228 at 232 per Ormerod J; see also Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505 at [30] per Chesterman JA, with Margaret Wilson J agreeing. 240 On the basis of this revised context, the applicant's claim in this Court is akin to the applicant applying to this Court for a declaration that he is not a person to whom s 189(1) of the Migration Act is capable of validly applying (or, expressed differently, that the applicant is not an "alien" within the meaning of s 51(xix) of the Constitution). The acquisition of such declaratory relief would require the applicant to satisfy the burden of proof of any matter which is a necessary element of the declaration sought: Gore v Australian Securities and Investments Commission [2017] FCAFC 13; 249 FCR 167 at [28]-[29] per Dowsett and Gleeson JJ. This is even so where the applicant seeks a negative declaration: Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) [2003] FCA 1525; 137 FCR 317 at [355]-[356] per French J. As such, "[i]t is for the claimant to establish the ambit of the rights to be declared, and to prove all the facts necessary to enable the declaration to be made": Warner v Hung (No 2) [2011] FCA 1123; 297 ALR 56 at [47] per Emmett J (as affirmed in Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCAFC 48 per Jacobson, Gordon and Robertson JJ). 241 Whether a person is an Aboriginal Australian is a question of fact: Love at [75] per Bell J. In accordance with the legal concept of Aboriginality adopted by the parties in Love and the present case, that question involves the determination of three subsidiary questions of fact; namely, the three elements of the tripartite test outlined above at [194]. To negative the assertion of constitutional alienage, the applicant bore the onus to prove each one of those facts, including that he is a biologically descendent of the Aboriginal people. Thus, for the purposes of the primary analysis in the present case, proof of his biological Aboriginal descent was "an essential element" in his case that the power to detain under s 189(1) of the Migration Act did not apply to him: Currie v Dempsey [1967] 2 NSWR 532 at 539; (1967) 69 SR (NSW) 116 at 125 per Walsh JA. 242 By not adducing any evidence as to his biological descent, the applicant has failed to prove that he biologically descendent of the Aboriginal people. He has accordingly failed to prove that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2).

Alternative analysis: Direct challenge to lawfulness of applicant's detention 243 The same practical outcome is reached under the alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant's detention). However, it is reached by way of a different path of reasoning. 244 In an application for habeas corpus, once the respondent presents a prima facie justification for the restraint (which the Minister has in the present case: see above at [120]-[121]), the applicant bears an initial evidential onus to raise a prima facie question as to lawfulness of the restraint (see above at [103(3)]). The applicant has provided evidence that he self-identifies as an Aboriginal Australian: para 6 of the applicant's affidavit. The facts regarding his adult life (ibid, paras 7 to 19) demonstrate that his claim to Aboriginality is more than mere "wishing", to quote Spender J in Attorney-General (Cth) v Queensland at 132. This clearly satisfies his initial evidential onus in relation to the element of self-identification. In addition, the production of Mr Skeen's letter (disregarding, for now, my concerns expressed above at [232]) also satisfies his initial onus in relation to the element of communal recognition. 245 The problem for the applicant is that he has not identified any evidence capable of satisfying his initial evidential onus of proof in relation to his claim to Aboriginal descent. There is no evidence to prove that the applicant is Aboriginal. There is no evidence to disprove that he is Aboriginal. The scales of justice remain in equilibrium and, for present purposes, this spells the end of the applicant's argument. For the purposes of the alternative analysis in the present case, the applicant, in respect of his claims to be unlawfully detained on the basis of his Aboriginality, has failed to satisfy this initial evidential onus. The result is that there is no requirement for the Minister to justify the applicant's detention in respect of that particular alleged basis of unlawfulness.

Conclusion on Aboriginality 246 Factual contests regarding the Aboriginality of non-citizens are an inevitable consequence of the High Court's decision in Love. It may be difficult for a person to satisfy the relevant tripartite test to establish that they are an Aboriginal Australian. But, as Nettle J stated in Love at [281]: … difficulty of proof … means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country. 247 It is worth returning to the maxim of Lord Mansfield in Blatch v Archer, as invoked by the plurality in Plaintiff M47/2018 (see above at [112]), that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". Where, such as in the present case, an issue as to the biological decent of a litigant is in issue, the primary power to prove that fact will, in most cases, be possessed by that litigant, and not an opposing party. I recognise that this principle may ring insincere in the circumstances of the applicant's childhood in the present case, but in most cases the person whose descent is to be determined will be best placed to assemble any relevant evidence, testimonial or documentary, in relation to his or her line of ancestry.

VII. Applicant's citizenship 248 Part VII of these reasons addresses the applicant's claims to Australian citizenship. Like the enquiry above into the applicant's Aboriginality, the enquiry into the applicant's Australian citizenship is relevant to both the primary analysis and alternative analysis in the present case. 249 The enquiry into the applicant's Australian citizenship is relevant to the primary analysis because the relevant detention and deportation provisions of the Migration Act, which are enacted under the "aliens" legislative power conferred by s 51(xix) of the Constitution, do not apply to Australian citizens. For the same reason, the enquiry into the applicant's Australian citizenship is also relevant to the alternative analysis because, as noted above, the lawfulness of the applicant's detention inherently informs the reasonableness of an officer's suspicion under s 189(1) of the Migration Act that the applicant is an unlawful non-citizen.

Applicant's claim to citizenship 250 The applicant first argues that he is an Australian citizen by birth due to the operation of the citizenship legislation in force at the time of his formal adoption in 1976. As discussed below, this argument hinges on the scope and meaning of the statutory phrase "born in Australia". 251 The applicant alternatively submits that, even if he did not strictly meet that statutory criteria for citizenship by birth, the Minister cannot discharge his onus of proving that the applicant is a non-citizen. The premises for this submission are the uncontested facts that the applicant was entered on the Commonwealth electoral roll in 1986, and was issued an Australian passport in 2017. Both acts required the applicant to be an Australian citizen. In the applicant's submission, the onus of proof on the Minister is "unusually high" in the present case because the Minister must displace the "presumption of regularity" in respect of these administrative actions. 252 The Minister response to these submissions, in short, is that, notwithstanding that the applicant was entered on the electoral roll, and issued an Australian passport, the applicant has never satisfied the statutory criteria to be an Australian citizen. He was not eligible for Australian citizenship under the statutory criteria that existed at the time of his arrival in Australia, nor since. Thus, in the Minister's submission, the presumption of regularity, as raised by the applicant, does not apply in the present case because it is clear on the evidence that the applicant does not meet the relevant statutory criteria. 253 A number of steps are required to address the merits of these submissions. It is not possible to determine whether the applicant is an Australian citizen simply by reference to the citizenship legislation currently in force. Given the long history of the applicant's presence in Australia, it is necessary to consider the various forms of citizenship legislation from time to time throughout that period. This endeavour is instructed by ss 4(1)(b) and 4(2) of the current Australian Citizenship Act 2007 (Cth) (2007 Citizenship Act). Section 4 of that Act provides as follows: Australian citizen (1) For the purposes of this Act, Australian citizen means a person who: (a) is an Australian citizen under Division 1 or 2 of Part 2; or (b) satisfies both of the following: (i) the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day; (ii) the person has not ceased to be an Australian citizen under this Act. Citizenship under the old Act (2) If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day [of the 2007 Citizenship Act, being 1 July 2017], work that out under the Australian Citizenship Act 1948 as in force at that time. 254 Consequently, as observed by Perram J in SZRTN v Minister for Immigration and Border Protection [2015] FCA 305 at [15] in the context of citizenship legislation: A person wishing to know their status is required to locate the original text of the repealed 1948 statute and then, in the style of an archaeologist, to look up all amendments since then to the time of the event said to give rise to nationality so as to reconstruct the statute as it was at the relevant date. 255 Accordingly, the first step is to trace the relevant legislative history in relation to New Zealand and Australian citizenship, enrolling to vote in Australia and obtaining an Australian passport.

New Zealand citizenship 256 The applicant was born in the Cook Islands in 1968. At that time, s 6 of the British Nationality and New Zealand Citizenship Act 1948 (NZ) relevantly provided that "every person born in New Zealand after the commencement of this Act shall be a New Zealand citizen by birth". "New Zealand" was defined by s 2(1) of that Act as including the Cook Islands. For this reason, the applicant is a citizen of New Zealand.

"British subject" status 257 The applicant arrived in Australia in 1975. At that time, Pt II of the Australian Citizenship Act 1948 (Cth) (1948 Citizenship Act) provided for the status of "British subject". Section 7(1), the first provision in Pt II of the 1948 Citizenship Act, provided that [a] person who, under this Act, is an Australian citizen or, by a law for the time being in force in a country to which this section applies, is a citizen of that country has, by virtue of his Australian citizenship or his citizenship of that country, as the case may be, the status of a British subject. 258 Subsection (2) of s 7 prescribed various countries to which s 7(1) applied, including New Zealand. Accordingly, as the applicant was a citizen of New Zealand when he arrived in Australia, he was a "British subject" for the purposes of the 1948 Citizenship Act. 259 In 1984, Pt II of the 1948 Citizenship Act was repealed by s 7 of the Australian Citizenship Amendment Act 1984 (Cth) (1984 Amendment Act). Pursuant to a new s 5A of the 1948 Citizenship Act (inserted by s 5 of the 1984 Amending Act), non-citizens whose right to remain in Australia was not limited as to time, and who were not prohibited non-citizens, were treated as permanent residents.

Criteria for citizenship 260 When the applicant arrived in Australia in 1975, the eligibility for Australian citizenship was governed by Pt III of the 1948 Citizenship Act. Pursuant to that Act, Australian citizenship could broadly be obtained either by birth (s 10), by descent (s 11), or by "grant" (ss 12-15). (To interpolate, there has been a change in terminology from "grant" to "conferral" in more recent legislation: Rubenstein K, Australian Citizenship Law (2nd ed, Thomson Reuters, 2017) (Rubenstein's Australian Citizenship Law) at [4.370] and [4.530].) It is necessary to extract the statutory provisions in relation to the first two avenues of obtaining Australian citizenship. 261 Section 10 of the 1948 Citizenship Act, which governed citizenship by birth, provided the following: 10. (1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth. (2) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father- (a) was not an Australian citizen; (b) was not ordinarily resident in Australia; and (c) was- (i) a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen's dominions or with international organizations); or (ii) a consular officer of a foreign sovereign power. (3) A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father was an enemy alien and the occurred in a place then under occupation by the enemy. See generally Rubenstein's Australian Citizenship Law at [4.250]. 262 The parties are in dispute as to whether the applicant is an Australian citizen by birth pursuant to s 10(1) of the 1948 Citizenship Act. As discussed below, the applicant contends that he is "a person born in Australia" for the purposes of that statutory provision, while the Minister contends that the applicant is not. 263 Section 11 of the 1948 Citizenship Act, which governed citizenship by descent, relevantly provided the following: 11. (1) A person born outside Australia on or after 26th January, 1949, is an Australian citizen by descent if - (a) in the case of a person born in wedlock-at the time of the birth his father or mother was an Australian citizen; or (b) in the case of a person born out of wedlock-at the time of the birth his mother- (i) was an Australian citizen; or (ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea, and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows. … See generally Rubenstein's Australian Citizenship Law at [4.400]. 264 It is accepted in the present case that: (a) there is no evidence that either of the applicant's birth parents was an Australian citizen, (b) the applicant's birth was not registered with an Australian consulate for the purposes of s 11(1) of the 1948 Citizenship Act; and (c) there is no evidence that any application was made by, or on behalf of, the applicant for a grant of citizenship under Div 2 of Pt III (comprising ss 12-15) of the 1948 Citizenship Act.

1984 amendments 265 The 1984 Amending Act enacted certain amendments to s 10 of the 1948 Citizenship Act (citizenship by birth) (see Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 312-313 per O'Loughlin J), which are unnecessary to detail for present purposes. The 1984 Amending Act also replaced s 11 of that 1948 Citizenship Act with a new s 10A and s 10B. 266 The new s 10A of the 1948 Citizenship Act, which governed citizenship by adoption, provided as follows: Citizenship by adoption 10A. A person, not being an Australian citizen, who - (a) under a law in force in a State or Territory, is adopted by an Australian citizen or jointly by 2 persons at least one of whom is an Australian citizen; and (b) at the time of his adoption is present in Australia as a permanent resident, shall be an Australian citizen. See generally Rubenstein's Australian Citizenship Law at [4.300]. 267 Section 10A was added with effect from 22 November 1984 (s 2(1) of the 1984 Amending Act), and applied to a relevant person adopted after that date (s 39(3) of the 1984 Amending Act). 268 The new s 10B of the 1948 Citizenship Act, which governed citizenship by descent, relevantly provided as follows: Citizenship by descent 10B. (1) A person born outside Australia (in this sub-section referred to as the 'relevant person') is an Australian citizen if - (a) the name of the relevant person is registered for the purposes of this section at an Australian consulate within 18 years after his birth; and (b) a person, being a parent of the relevant person at the time of the birth of the relevant person - (i) was at that time an Australian citizen who had acquired Australian citizenship otherwise than in the manner referred to in sub-sub-paragraph (ii) (A); or (ii) was - (A) at that time an Australian citizen who had acquired Australian citizenship under this section, or undersection 11 of this Act as in force at any time before the commencement of this section; and (B) at any time before the registration of the name of the relevant person (including a time before the birth of the relevant person), present in Australia, otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory, for a period of, or for periods amounting in the aggregate to, not less than 2 years. See generally Rubenstein's Australian Citizenship Law at [4.410]. There is no evidence of any application to register the applicant for the purposes of this statutory provision.

1991 amendments 269 The Australian Citizenship Amendment Act 1991 (Cth) (1991 Amendment Act) inserted a new s 10C into the 1948 Citizenship Act, which provided for a person to apply to the Minister to be registered as an Australian citizen in specified circumstances: see Rubenstein's Australian Citizenship Law at [4.410]. There is no evidence of such an application being made by, or on behalf of, the applicant. For reference, the new s 10C inserted by the 1991 Amendment Act relevantly provided as follows: Citizenship by descent for a person over 18 years old 10C. (1) A person who is registered under this section is an Australian citizen. (2) A person may apply to the Minister to be registered under this section. (3) The application must be in accordance with the approved form. (4) The Minister must register, in the prescribed manner, an applicant for registration under this section if: (a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and (b) that parent: (i) is an Australian citizen at the time an application under this section is made; or (ii) is dead and at the time of his or her death was an Australian citizen; and (c) the applicant: (i) was born outside Australia on or after 26 January 1949; and (ii) is aged 18 years or over on the day on which this section commences; and (iii) failed for an acceptable reason to become registered as an Australian citizen under: (A) section 10B; or (B) section 11 of this Act as in force at any time before the commencement of section 10B; and (d) the Minister is satisfied that the applicant is of good character. (5) For the purposes of subparagraph (4)(c)(iii), an applicant has an acceptable reason if and only if: (a) an Australian passport has been issued to the applicant; or (b) the applicant's name has been on an Electoral Roll under the Commonwealth Electoral Act 1918; or (c) the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B or under section 11 of this Act as in force at any time before the commencement of section 10B; or (d) the applicant has a reason for failing to become registered that is declared by the regulations to be an acceptable reason for the purposes of this section. …

2007 Citizenship Act 270 Division 1 of Pt 2 of the 2007 Citizenship Act provides for the automatic acquisition of citizenship, including citizenship by birth in Australia (s 12) and citizenship by adoption (s 13): see generally Rubenstein's Australian Citizenship Law at [4.270] and [4.310]. Those provisions provide as follows: 12 Citizenship by birth (1) A person born in Australia is an Australian citizen if and only if: (a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. Enemy occupation (2) However, a person is not an Australian citizen under this section if, at the time the person is born: (a) a parent of the person is an enemy alien; and (b) the place of the birth is under occupation by the enemy; unless, at that time, the other parent of the person: (c) is an Australian citizen or a permanent resident; and (d) is not an enemy alien. 13 Citizenship by adoption A person is an Australian citizen if the person is: (a) adopted under a law in force in a State or Territory; and (b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and (c) present in Australia as a permanent resident at that time. 271 These provisions apply on and from 1 July 2007, and therefore do not apply to the applicant in the present case. As explained in Rubenstein's Australian Citizenship Law at [4.290], "[p]eople who were adopted by Australian citizens prior to 22 November 1984 are required to apply for a conferral of Australian citizenship under s 21 of the [2007 Citizenship Act]". 272 Division 2 of Pt 2 of the 2007 Citizenship Act provides for the acquisition of Australian citizenship by application: see generally Ch 4 of Rubenstein's Australian Citizenship Law. There is no evidence of such an application being made by, or on behalf of, the applicant.

Enrolling to vote in Australia 273 The applicant states that an electoral officer wrote to him in 1986 and expressed that the applicant was eligible to vote: para 25 of the applicant's affidavit (see below at [325]). The applicant states that he voted in an election once, namely the Australian federal election in July 1987: para 26 of the applicant's affidavit. 274 Section 93 of the Commonwealth Electoral Act 1918 (Cth) (Commonwealth Electoral Act) addresses a person's entitlement to vote in an Australian federal election. It is substantially in the same form as it was at the time that the applicant was enrolled to vote in 1986. Section 93(1) now provides as follows: Persons entitled to enrolment and to vote (1) Subject to subsections (7) and (8) and to Part VIII, all persons: (a) who have attained 18 years of age; and (b) who are: (i) Australian citizens; or (ii) persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or (B) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922; shall be entitled to enrolment. 275 Although the applicant was previously a "British subject" (for the reasons identified above at [257]-[258]), he does not fall within s 93(1)(b)(ii), which only applies to persons who were on the electoral roll before 26 January 1984.

Obtaining an Australian passport 276 The applicant was issued an Australian passport under the Australian Passports Act 2005 (Cth) (Passports Act) on 25 October 2017. Section 3 of the Passports Act stated then, and continues to state now, that the principle object of that Act is "to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally". 277 At the time that the applicant was issued his passport, ss 7 and 8 of the Passports Act provided the following: 7 Australian citizen is entitled to be issued an Australian passport (1) An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister. (2) An Australian citizen's entitlement to be issued with an Australian passport is affected by section 8 and by Division 2. (3) An application for an Australian passport must be: (a) made in the form approved by the Minister; and (b) accompanied by the applicable fee (if any). 8 Minister to be satisfied of person's citizenship and identity Before issuing an Australian passport to a person, the Minister must be satisfied: (a) that the person is an Australian citizen; and (b) of the identity of the person. 278 A note to s 8 states that the reader of the Passports Act should "[s]ee sections 42 and 43 for details about how the Minister satisfies himself or herself of an Australian passport applicant's citizenship and identity". Those provisions provide the mechanism for the Minister to request certain information for the purposes of performing his function under that Act.

Citizenship by birth? 279 The applicant first argues that, when he was formally adopted by his adoptive parents in 1976, he became an Australian citizen by birth pursuant to s 10(1) of the 1948 Citizenship Act. That statutory provision is again set out for reference: 10. (1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth. 280 The applicant argues that he is "a person born in Australia" for the purposes of this statutory provision. Although the applicant accepts that he was physically born in the Cook Islands, he submits that this statutory phrase encapsulates the registration of his birth in Queensland after the making of an adoption order in that jurisdiction.

Applicant's adoption order and birth registration 281 On 16 August 1976, the applicant's adoptive parents completed an application to adopt the applicant. Their application described the applicant as "no relation". 282 On 14 October 1976, the Director of the Queensland Department of Children's Services wrote to the applicant's adoptive parents to inform them that the adoption application had been recommended, and that they should forward the prescribed fee to finalise the adoption. 283 On 2 November 1976, an adoption order was made pursuant to s 7 of the Adoption of Children Act 1964 (Qld) (1964 Qld Adoption Act) by the Director of the Queensland Department of Children's Services (adoption order). (The 1964 Qld Adoption Act has been repealed and replaced with the Adoption Act 2009 (Qld).) For reference, s 7(1) of the 1964 Qld Adoption Act provides as follows: 7. Adoption by order of the Director. (1) Upon an application made as prescribed by any person or persons desirous of being authorised to adopt a child, the Director may, in accordance with this Act, make an order (in this Act referred to as an "adoption order") authorising the applicant or applicants to adopt the child. 284 On 4 November 1976, two days after the making of the adoption order has made, the applicant's birth was registered under the 1964 Qld Adoption Act. Although the position is unclear, I infer that the registration occurred on the "Adopted Children Register" kept by the Registrar-General pursuant to s 55 of the 1964 Qld Adoption Act. The applicant's birth certificate in evidence in the present case (birth certificate) was certified by the Registrar-General of Queensland on 12 July 2017 as a true copy of the particulars recorded in the relevant register. The birth certificate states the following: Queensland Birth registered in the General Registry for Queensland at Brisbane pursuant to Act No. 54 of 1964 Column [Registration number]

1. No. CHILD 31 January 1968
2. 1. When born Areora, Atiu, Cook Islands
3. Where born Edward Vainepoto
4. 1. Name McHugh
5. Surname Male
6. Sex PARENTS Kevin Joseph McHugh Father Farmer
7. 1. Name and surname 15 years
8. Profession, trade or occupation Toowoomba, Queensland
9. Age Maryanne Joan McHugh […]
10. Birthplace 19 years Mother Atiu, Cook Islands, Cook Islands
11. 1. Name and maiden surname [Address]
12. Age H.W.Tesch
13. Birthplace 4 November 1976
14. Address of Parents
15. 1. Signature of Registrar-General
16. Date of Registration

285 The ages of the applicant's adoptive parents are identified in the birth certificate as the age that they would have been if the applicant had been born to them at the time that he was, in fact, born.

"Born in Australia" 286 The applicant contends that he was "a person born in Australia" for the purposes of s 10(1) of the 1948 Citizenship Act on and from 4 November 1976, being the date of the registration of his birth in Queensland. The basis for this submission is as follows. 287 At the time of the applicant's adoption, s 31 of the 1964 Qld Adoption Act provided the following: 31. Effect of order on domicile. (1) Subject to this section, upon the making of an adoption order, the adopted child acquires the domicile of the adopter or adopters at the date of the adoption order and the child's domicile thereafter shall be determined as if the child had been born in lawful wedlock to that adopter or those adopters. (2) The domicile acquired, upon the making of the order, by the child under subsection (1) of this section shall be deemed to be also the child's domicile of origin. 288 The applicant argues that s 31(2) supplies the necessary link between the registration of the applicant's birth under the 1964 Qld Adoption Act, and the meaning of the phrase "born in Australia" under s 10(1) of the 1948 Citizenship Act. This is because, according to the applicant, as at the time that the 1964 Qld Adoption Act was enacted, and as at the time the applicant was adopted in 1976, the phrase "domicile of origin" was equated with the phrase "place of birth". Therefore, according to this argument, s 31(2) of the 1964 Qld Adoption Act has the practical effect of deeming the applicant's place of birth to be Australia for the purposes of s 10(1) of the 1948 Citizenship Act. The applicant submits that, for the purposes of the citizenship legislation, the location of his physical birth is immaterial because of the intervention of the 1964 Qld Adoption Act. 289 The applicant cites seven key sources to support his submission that the phrase "domicile of origin" was interchangeable with the phrase "place of birth" as at the time that the Queensland Parliament enacted the 1964 Qld Adoption Act. I will introduce them in chronological order. 290 The first source is a passage of Isaacs J in Fremlin v Fremlin [1913] HCA 25; 16 CLR 212 (Fremlin). The issues in that case included assessing the domicile of origin of the appellant for the purpose of determining whether he was entitled to bring a suit in New South Wales. The passage of Isaacs J highlighted by the applicant is as follows (at 231-232): … Upon the petitioner proving that New South Wales was his domicil of origin, on whom then rested the burden of proof, that is, the burden of displacing the effect of that established fact? I find no trace of that question being considered in the judgment appealed from; and, reading that judgment, I conclude that no special force was given to the domicil of origin, but it simply took its place as one of a number of facts, the potency of each depending equally on the circumstances. I devote no attention to what is called the factum required to affect the domicil of origin, because the actual residence and occupation of the petitioner in Western Australia is uncontroverted. The contest is with regard to the animus, or intention, accompanying that residence. No doubt, as laid down in Hodgson v. De Beatwhesne, it is impossible to lay down any positive rule with respect to the necessary evidence, and Courts of Justice must necessarily draw their conclusions from all the circumstances of the case: in one case a fact may be of the greatest importance; in another the same fact may be so qualified as to be of little weight. But a man's domicil of origin stands in an exceptional position. It is affixed to him by law at the moment of his birth, and is therefore involuntary; and, although he is free to relinquish it by acquiring a substituted domicil, provided both act and intention combine for that purpose, it never completely disappears. While he retains the substitute, that prevails; but, as no man can ever be without a domicil, the moment the substituted domicil ceases, then the original domicil reasserts itself, as the true domicil, unless by the united force of a new act and a new intention another substitute be adopted. The domicil of origin, consequently, has a force, which no other domicil can have. … (Citations omitted and emphasis added.) 291 The second source is a speech in 1945 by Sir Robert Menzies, the then Leader of the Opposition, in relation to the Matrimonial Causes Bill 1945 (Sir Robert Menzies' speech). The reference is his speech to the meaning of "domicile of origin" is brief, but it is useful to set out the context: There has been in this country for quite a long time, discussion about the desirability or otherwise of a uniform divorce law. In more recent times there has been a particular proposal for an all-Australian domicile, and with both these movements the Attorney-General (Dr. Evatt), is quite familiar. This bill does not deal with either of these matters. It does not purport to establish a uniform divorce law, or an Australian domicile in relation to matrimonial causes. Domicile is an artificial notion which has been imported into this branch of the law, but it is of first-class importance in all matters of divorce. The power of a court to pronounce a divorce depends fundamentally upon the existence of a domicile of the parties within its jurisdiction. For example, if the Victorian Supreme Court is dealing with a divorce proceeding, the first inquiry is as to whether the parties before the court are domiciled in Victoria. If they are not, the Victorian court has no jurisdiction to deal with the matter at all, apart from special legislative provision of this kind. Domicile is not merely residence. We are disposed to say, in our ordinary use of the word, that a man is domiciled where he lives for the time being, but, in the eye of the law, for this purpose a man is domiciled either where he was born - which is referred to as the domicile of origin - or in a place where he not only resides but also has the intention of residing permanently, and this, if it be elsewhere than where he was born, is what the lawyers call his domicile of choice. In either event, domicile goes beyond the mere fact of residence. For example, if a man is domiciled in Victoria and goes to Western Australia, he may become domiciled there if it be his intention to remain there permanently. The onus of proving that he has assumed a new domicile would rest upon him. (Emphasis added.) (Mr Menzies (Leader of the Opposition), Matrimonial Causes Bill 1945 Second Reading Speech, 1 August 1945, Commonwealth Parliamentary Debates, House of Representatives, p 4834.) 292 The third source is a passage from Latham CJ in the High Court of Australia's 1949 decision in Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 (Koon Wing Lau). That case involved the determination of, amongst other issues, whether the enactment of the War-time Refugees Removal Act 1949 (Cth) was a valid exercise of Commonwealth legislative power. One of the key statutory provisions in question was s 4 of that Act, which prescribed the scope of the Act's application. For context, the terms of s 4(1) were extracted by Latham CJ in Koon Wing Lau at 550: Section 4 is in the following terms: - " (1) This Act shall apply to every person - (a) who entered Australia during the period of hostilities and is an alien; (b) who, during the period of hostilities, entered Australia as a place of refuge, by reason of the occupation, or threatened occupation, of any place by an enemy, and has not left Australia since he so entered; or (c) who, during the period of hostilities, entered Australia by reason of any other circumstances attributable to the existence of hostilities and has not left Australia since he so entered, not being - (d) a person who, at the time of that entry, was domiciled in Australia; (e) a person who was born in Australia; (f) a diplomatic or consular representative or official trade commissioner of a foreign country, or a member of the staff of any such representative or commissioner, who has been sent to Australia by the Government of the foreign country; or (g) the wife or a dependent relative of any person referred to in the last preceding paragraph. … 293 In the course of considering the scope and application of s 4 of the War-time Refugees Removal Act 1949 (Cth), Latham CJ expressed the following at 555: … any person who was born in Australia, whether he has a permanent home here or not, does not come within the provisions of the Act. Paragraph (d) excludes from the application of the persons who at the time of their entry were domiciled in Australia. A person can have only one domicile at any given time. All persons have a domicile of origin - their place of birth. Persons born here are expressly excluded from the Act: par. (e). If they have retained an Australian domicile of origin they are doubly excluded - by par. (d) and par. (e). (Emphasis added.) 294 The fourth source is a passage from a 1961 journal article from Peter Nygh, then a Lecturer in Law at the University of Tasmania: Nygh PE, "The Reception of Domicil into English Private International Law" (1961) 1(4) University of Tasmania Law Review 555 (Nygh's Reception of Domicil). The purpose of that article was "to show how a Roman administrative concept, adopted by mediaeval jurists as a compromise between the personal law system of the Dark Ages and the feudal territorialism of the succeeding Middle Ages, was finally received, if only partially so, into English private international law during the middle of the last century": ibid at 568. 295 The article commenced (at 555-556) with the following introduction to various key concepts: In [the] classical age of Roman law there were two ways in which a man could become attached to a municipality, liable to its burdens and amenable to its courts. They were origo, attaching itself by inheritance to, and domicil, which was generally dependent on the free will of the subject. Though for most practical purposes their effect was similar, there was still an important jurisprudential distinction between them. 'Descent (origo), manumission, election and adoption make a man a citizen (civis), but, as the divine Hadrian has clearly declared in his edict, domicil makes him a resident (incola).' Origo determined citizenship and as such was no doubt the more ancient concept, harking back to the days when only a Roman citizen was entitled to the protection of the Roman law and the stranger was an outlaw. So long as Rome distinguished between the law applicable only to its citizens and the law applicable to foreigners, origo must have remained a concept of primary importance. In essence it denoted the claim to citizenship by descent primarily through blood relationship and later through those legal relationships such as manumission and adoption which create a situation akin to it. A child would inherit the citizenship of its father (and in certain circumstances that of its mothers), which in its turn was derived from origo irrespective of the ancestor's domicil at the time of the birth. Citizenship would also be inherited from the patron or adopter by the manumitted slave or the adopted child. The only way in which citizenship could be attained without inheritance was by way of adlectio, the election to citizenship by the municipal magistrates or, as it would be termed in modern times, naturalisation. The city in which a man had his origo was his patria or civitas, and the analogy to the modern laws of nationality is obvious. (Citations omitted and emphasis added.) 296 Later, in the course of considering the development of the distinction between the domicilium originis and the domicilium habitationis in the 16th century, the article stated the following at 561: This domicil of origin without any special distinction had already existed in the classical Roman law, where it had been accepted that a child at its birth would inherit its father's present domicil, but unlike origo it could be irrevocably lost by the subsequent acquisition of a fresh domicil. Domicil of origin at first had no special quality except in the time and method of its acquisition. But with the disappearance of origo the need arose for a stable connecting factor to which could be attached certain aspects of personal status free from the difficulties inherent in a choice of domici1. If a man's personal law was to be determined by his domicil then it followed that a gap in that domicil could not be tolerated. The domicil of origin took the place of the defunct origo in supplying the courts with a reference which accompanied a man from birth and on which they could always fall back if he had no present domicil. (Citations omitted and emphasis added.) 297 The fifth source, which is dated after the enactment of the 1964 Qld Adoption Act, is a section on "domicile of origin" in a 1979 text by Professor Edward Sykes and Michael Pryles: Sykes EL and Pryles MC, Australian Private International Law (1st ed, The Law Book Company, 1979) (Sykes and Pryles' Australian Private International Law (1st ed)) pp 198-199. That section included the following passage (see ibid): Domicile of origin is generally determined as at birth and cannot subsequently be changed. Of course the actual domicile of a minor may be changed by a change in his parents domicile. Moreover upon attaining majority there is a full capacity to acquire an independent domicile elsewhere. But such new domiciles are domiciles of dependency and domiciles of choice respectively and are not new domiciles of origin. There are, however, some exceptions. Adoption legislation in the Australian States and Territories, other than Western Australia, provide that an adopted child takes as its domicile of origin the domicile of the adopting parent or parents at the date of the adoption order. … (Citations omitted and emphasis added.) 298 The last sentence in the passage above was accompanied by a footnote citing various legislation across Australian State and Territories, including s 31(2) of the 1964 Qld Adoption Act. 299 The sixth source is a parliamentary reply by the Hon Lionel Bowen (then the Deputy Leader of the Opposition) to a ministerial statement in 1979 by the Hon Andrew Peacock (then the Minister for Foreign Affairs) in relation to dual nationality (Bowen's speech). The Deputy Leader of the Opposition's speech included the following passage: We are aware of the situation in Australia. It is important that we try to get bilateral arrangements. If other countries are anxious to have us take their citizens-as many countries are because they are anxious to get the financial exchange which in many cases is remitted to there-it seems to be an appropriate time to suggest that those countries might enter into a bilateral arrangement whereby a citizen, on acceptance of nationality in Australia, is no longer obliged to be a dual national. I am aware of the international law which relates to the question of domicile of origin. It will be difficult to erase that law because the domicile of origin is related to birth. If one is born in another country there is going to be an issue always as to whether one is deemed to be originally a national of that country. Honourable members will notice that it is an accepted principle of international law that diplomatic protection may not be given by a state to a dual national of that state when he is in the country of the other nationality. So there are also problems in regard to international law. (Emphasis added.) (Mr Bowen, Reply to Ministerial Statement, 17 October 1979, Commonwealth Parliamentary Debates, House of Representatives, p 2104.) 300 The seventh source is the following passage from Slattery J in Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 (Dempsey) at [173]: The law of domicile of origin may be shortly stated. The domicile of origin is that domicile is ascribed to each individual at birth by force of law: M Davies, AS Bell and PLG Brereton, Nygh's Conflict of Laws in Australia (9th ed 2014, LexisNexis Butterworths Australia) ("Nygh"). At common law a nuptial child takes the domicile of its father at birth: Nygh at [13.13].

Common law position 301 Contrary to the applicant's submission, a person's "domicile of origin" is not equated at common law with that person's place of physical birth. The common law position around the time of the enactment of the 1964 Qld Adoption Act is best stated by reference to the following extract from the 1968 edition of Conflict of Laws in Australia: THE DOMICIL OF ORIGIN Its acquisition The rules relating to the acquisition of a domicil of origin are fairly simple: I - A legitimate child born before the dissolution of his parents' marriage (whether by death, divorce or annulment of voidable marriage) takes as his domicil of origin the domicil which his father possessed at the time of the child's birth. II - An illegitimate child and semble a legitimate child born posthumously takes as his domicil of origin the domicil which his mother possessed at the time of his birth. III - A foundling takes as his domicil of origin the place where he was found. (Citations omitted.) (Nygh PE, Sykes EI and MacDougall DJ, Conflict of Laws in Australia (1st ed, Butterworths, 1968) p 69). 302 This position is reflected in other contemporaneous texts: Morris JHC (ed), Dicey's Conflict of Laws (7th ed, Stevens & Sons Limited, 1958) p 93 (Dicey's Conflict of Laws (7th ed)); Cheshire GC, Private International Law (7th ed, Butterworths, 1965) p 165. (And see, earlier, Westlake J, Private International Law (5th ed, Sweet & Maxwell, 1912) ss 245-248). For case law, it is sufficient to cite Udny v Udny (1869) LR 1 Sc & Div 441 (Udny) and Re McKenzie (1951) 51 SR (NSW) 293 at 295-296 per Sugerman J. 303 Various legislation has since been enacted to modify this position (see Mortensen R, Garnett R and Keyes M, Private International Law in Australia (4th ed, LexisNexis Butterworths, 2019) (Mortensen's Private International Law in Australia) [10.4]), although the common law position continues dormant in an unaltered state: Davies M, Bell AS, Brereton PLG and Douglas M, Nygh's Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, 2020) (Nygh's Conflict of Laws in Australia (10th ed)) [13.12]. The only apparent change is that we now spell domicile with an "e" (which makes no difference: see Ainslie v Ainslie [1927] HCA 23; 39 CLR 381 at 392 per Isaacs J). 304 A person's domicile of origin at common law will, as a matter of practicality, often be his or her place of physical birth because that will be the domicile of his father or mother (as relevant) as at that point in time. The remarks in Sir Robert Menzies' speech and Koon Wing Lau per Latham CJ should be read as reflecting this practicality. However, strictly speaking, a person's physical place of birth is irrelevant to the determination of that person's domicile of origin at common law. As stated in Dicey's Conflict of Laws (7th ed) at 93, a domicile of origin "does not depend on the place where the child is born, nor on the place where his mother or father reside, but solely on the domicile of the appropriate parent at the time of birth". 305 That said, it is correct that a person's domicile of origin is ascribed (or "assigned" or "attributed") by law as at the time of birth. That is what the passages in Fremlin per Isaacs J, Nygh's Reception of Domicil, Sykes and Pryles' Australian Private International Law (1st ed), Bowen's speech and Dempsey per Slattery J were expressing; they were not voicing that a person's domicile of origin is to be equated with that person's place of physical birth. Thus, a person's domicile of origin is, subject to statutory intervention, fixed at birth. And where a person's domicile changes through acquisition of a "domicile of choice", the domicile of origin at common law continues inoperative, but not abandoned: Nygh's Conflict of Laws in Australia (10th ed) at [13.11], citing Udny at 454-455; see also Fremlin at 232 per Isaacs J (as extracted above at [290]).

Statutory modification to "domicile of origin" 306 The common law conception of domicile is subject to statutory modification. This notably occurred with the enactment of the Domcile Acts that came into effect in most Australian jurisdictions on 1 July 1982: Domicile Act 1982 (Cth), Domicile Act 1979 (NSW), Domicile Act 1979 (NT), Domicile Act 1981 (Qld), Domicile Act 1980 (SA), Domicile Act 1980 (Tas), Domicile Act 1978 (Vic) and Domicile Act 1981 (WA). The rules under these Acts only apply whenever a domicile has to be determined as at a time on or after 1 July 1982: Nygh's Conflict of Laws in Australia (10th ed) at [13.4]; Dempsey at [172]. The common law continues to apply to the extent untouched by statute: In the Marriage of Ferrier-Watson and McElrath [2000] FamCA 219; 26 Fam LR 169 at [71] per Holden and Jerrard JJ. 307 An example of statute modifying the conception of domicile of origin is found, for example, in s 6 of Domicile Acts in the States and Territories and in s 7 of the Domicile Act 1982 (Cth): Abolition of rule of revival of domicile of origin The rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice without the acquisition of a new domicile of choice is abolished and the domicile a person has at any time continues until the person acquires a different domicile. See generally Mortensen's Private International Law in Australia at [10.30]-[10.32], Nygh's Conflict of Laws in Australia (10th ed) at [13.21] and Radlich v Bank of New Zealand (1993) 45 FCR 101 at 108 per Einfeld J. 308 Section 31(2) of the 1964 Qld Adoption Act is clearly another form of statutory intervention into the common law meaning of domicile of origin. That statutory provision deems the domicile acquired upon the making of the adoption order to be the adopted child's domicile of origin: see, in relation to the (now repealed) Victorian equivalent of this statutory provision, Forgarty JF, Bourke and Fogarty's Maintenance Custody and Adoption Law (3rd ed, Butterworths, 1972) p 294. To what extent, and for what purposes, does this deeming provision apply? Does it have the effect that an adopted child to which that provision applies is also deemed to be "a person born in Australia" for the purposes of s 10(1) of the 1948 Citizenship Act?

Policy underpinning adoption order 309 In the early 1960s, discussions between the Attorneys-General in each Australian jurisdiction led to the drafting of a Model Bill on adoption: Boss P, Adoption Australia (National Children's Bureau of Australia Inc., 1992) (Boss' Adoption Australia) pp 5-8; Standing Committee on Social Issues, NSW Legislative Council, Releasing the Past: Adoption Practices 1950 - 1998: Final Report (Sydney, 2000) [3.41]; Community Affairs References Committee, Commonwealth Senate Standing Committee on Community Affairs, Commonwealth Contribution to Former Forced Adoption Policies and Practices (Canberra, 2012) (2012 CARC Report) Chs 6-7. (And see more generally Marshall A and McDonald M, The Many-Sided Triangle: Adoption in Australia (Melbourne University Press, 2001) pp 32-38.) 310 By the end of that decade, every State and Territory jurisdiction, except for Western Australia, had (albeit with some deviations) enacted legislation reflecting the Model Bill's provisions: Adoption of Children Ordinance 1965 (Cth) (as applied to the Australian Capital Territory), Adoption of Children Act 1965 (NSW), Adoption of Children Ordinance 1964 (Cth) (as applied to the Northern Territory), 1964 Qld Adoption Act, Adoption of Children Act 1966 (SA), Adoption of Children Act 1968 (Tas) and the Adoption of Children Act 1964 (Vic) (1960s adoption legislation). 311 A key policy behind the enactment of the 1960s adoption legislation was the desire to give effect to the "clean break" theory between birth parents and the adopted child: 2012 CARC Report at [6.13], [7.29]-[7.35], [7.103]; Victorian Law Reform Commission, Review of the Adoption Act 1984: Consultation Paper (Melbourne, 2016) [2.32]. In the 1964 Qld Adoption Act, for instance, the general effect of an adoption order was prescribed as follows: Division 4 - Effect of Adoption Orders 28. General effect of adoption orders. (1) For the purposes of the laws of Queensland but subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order - (a) the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock; (b) the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child; (c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection so far as they are relevant; (d) any guardianship of the adopted child ceases to have effect; and (e) any previous adoption of the child (whether effected under the law of Queensland or otherwise) ceases to have effect. … See further Department of Families (Qld), Adoption Legislation Review: Consultation Paper (Department of Families (Qld), Brisbane, 2002) [3.9]. 312 The "clean break" policy was referred to by the Hon Alex Dewar (then the Queensland Minister for Labour and Industry) in his second reading speech in advance of the enactment of the 1964 Qld Adoption Act: Division 4 of Part III of the Bill [which contained ss 28-32 of the 1964 Qld Adoption Act, once enacted], relating to the effects of adoption orders, contains provisions which should remedy anomalies in the present law with respect to succession, and to the relationship between the adopted child and its parents. The present law is confusing, particularly as it does not completely sever the relationship between the adopted child and its natural parents and relatives. Hon. members will see from the Bill that it is the intention to place the adopted child in exactly the same position with regard to its adopting parents as a child born in lawful wedlock. There will be a complete severance from the natural parents and their relatives. It will also mean that, in relation to the adopted child, for succession purposes adopting parents will stand in the same position as if it was a natural child. … I have mentioned the important features of the Bill. They will strengthen adoption procedures in Queensland and will ensure, with the passing of comparable legislation in the other States and by the Commonwealth, that an adopted child will have the same status, no matter to what part of Australia it goes. The child will have uniform rights throughout the Commonwealth and in all respects stand in exactly the same position to its adopting parents as a natural child stands to its parents. Comparable laws throughout Australia will control and, I hope, completely prevent undesirable practices in adoption and give this country a law which could be a pattern throughout the world. (Emphasis added.) (Mr Dewar (Minister for Labour and Industry), Adoption of Children Bill Second Reading Speech, 2 December 1964, Queensland Parliamentary Debates, Legislative Assembly, pp 2047 and 2049.) 313 The applicant highlights this second reading speech as demonstrating the intention of the Queensland Parliament that adoption orders made under the 1964 Qld Adoption Act were to put the adopted child in the same position with regard to his or her adoptive parents as if the child had been born to that couple. In the applicant's submission, this was intended to extend to the adopted child, by operation of law, also automatically possessing the same citizenship status as if he or she had been physically born in Queensland. 314 Support for this submission is found in Boss' Adoption Australia, a text published in 1992 which contains a useful study of comparative Australian adoption legislation and policy. The late Professor Peter Boss relevantly described the effect of an adoption order as follows (at 40): 8 Adoption order The major effects of making an adoption order are uniform across all States and Territories. The adopted child becomes the child of the adoptive parents as if he/she had been born to them in marriage, and assumes the legal relationship of his or her new family. … … The adoptive parents' domicile also becomes the domicile of the adopted child. If the adoptive parents, or one of them in a joint adoption, has Australian citizenship, the adopted child, if not already an Australian citizen, assumes Australian citizenship. (Emphasis added.) 315 The emphasised paragraph in this context is uncited. And, having regarding to a proper interpretation of the 1948 Citizenship Act, the view expressed in Professor Boss' text is, with respect, incorrect.

Interpretation of the 1948 Citizenship Act 316 Particular principles of statutory interpretation are relevant to construing the meaning of the phrase "born in Australia" in s 10(1) of the 1948 Citizenship Act. 317 The starting point is that, unless the contrary is shown, the words and phrases in a statute are to be interpreted in accordance with their ordinary meaning: Cody v J H Nelson Pty Ltd [1947] HCA 17; 74 CLR 629 at 647 per Dixon J; Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237; 262 FCR 449 at [24(2)] per Burley, Steward and Thawley JJ. (Although the ordinary meaning of a statutory word or phrase must be rejected to the extent that it is inconsistent with the statutory purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ (although cf the final sentence of [94] per Edelman J)). 318 The ordinary meaning of "birth" is the event constituted by the physical emergence of a new human being from the body of that person's mother, and one that signifies the start of that person's phase of life physically autonomous from its mother. Thus, within its ordinary meaning, a person is "born in Australia" if their physical birth occurred within the geographical territory of Australia (which, at the time of the applicant's adoption, was defined as including "the Territories that are not trust territories": s 5(1) of the 1948 Citizenship Act). (Special rules applied to a person born on a registered ship or aircraft: ibid, s 3(a).) 319 A second relevant principle of statutory interpretation is that a statutory provision is not to be read in isolation. It is instead necessary to read the Act as a whole: Metropolitan Gas Go v Federated Gas Employers' Industrial Union [1925] HCA 5; 35 CLR 449 at 455 per Isaacs and Rich JJ; Western Australia v Manado [2020] HCA 9 at [56] per Nettle J, citing K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 per Mason J and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. This means that the apparent scope of a statutory provision may be limited by other provisions in the Act: Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) [4.3]. As explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. … (Citations omitted.) 320 Section 10(1) of the 1948 Citizenship Act must be construed in harmony with the other provisions of that Act. Section 10 was intended to reflect the common law principle of jus soli (literally, "right of the soil": Singh v Commonwealth of Australia [2004] HCA 43; 222 CLR 322 (Singh) at [222] per Kirby J; see also [81], fn 119 per McHugh J). In contrast, s 11 of that Act was intended to reflect (with some statutory modification) the common law principle of jus sanguinis (literally, "right of blood": Singh at [81], fn 120 per McHugh J). Section 11 is again set out for reference: 11. (1) A person born outside Australia on or after 26th January, 1949, is an Australian citizen by descent if- (a) in the case of a person born in wedlock-at the time of the birth his father or mother was an Australian citizen; or (b) in the case of a person born out of wedlock-at the time of the birth his mother- (i) was an Australian citizen; or (ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea, and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows. … 321 The clear intention of s 11(1) is to permit a person born outside Australia after the prescribed date (being a person to whom s 10(1) inherently does not apply) to obtain citizenship where he or she possesses by descent a requisite connection to Australia (or another country under British subjection as defined). Were "born in Australia" in s 10(1) to be construed as including a person who was physically born outside of Australia, but then had their domicile of origin deemed by State law to be Australia, such an interpretation would have the effect of undermining the statutory design underlying s 11(1). That design notably includes the requirement for a relevant person's birth to be registered at an Australian consulate within five years of the birth. 322 This alludes to the central flaw underlying the applicant's claim to Australian citizenship. Citizenship is a statutory concept: Singh at [311] per Callinan J; Love at [244] and [280] per Nettle J. Until the enactment of the Nationality and Citizenship Act 1948 (Cth) (which then became the 1948 Citizenship Act), there was no concept in law of Australian citizenship: Love at [306] per Gordon J; Rubenstein's Australian Citizenship Law at [1.40]. Upon enactment, s 10(1) was in the same terms as that in 1976 (as considered above), and granted citizenship to "a person born in Australia". That is the particular concept of citizenship by birth defined by the Commonwealth Parliament. Why, I ask rhetorically, would a State law coming into existence about sixteen years later influence the construction of a pre-existing Commonwealth law enacted by a different legislature? There is no statutory indication that the phrase "born in Australia" under s 10(1) of the 1948 Citizenship Act was intended to "pick up" a person's domicile of origin. This is unsurprising given the concepts of domicile of origin and place of birth are not interchangeable, as explained above. Moreover, in any event, strong and direct statutory language from the Commonwealth Parliament would surely be required to enable a person's entitlement to citizenship under Commonwealth law to be influenced by future acts of State Parliaments. Certainly, no such language exists in the present case. 323 For these reasons, I reject the applicant's submission that, by operation of s 31(2) of the 1964 Qld Adoption Act, the applicant became "a person born in Australia" for the purposes of s 10(1) of the 1948 Citizenship Act.

Presumption of citizenship? 324 The applicant alternatively submits that, even if he was not "a person born in Australia" within the meaning of s 10(1) of the 1948 Citizenship Act, the Minister cannot discharge his onus of proving that the application is a non-citizen. In the applicant's submission, the fact that he was enrolled onto the Commonwealth electoral roll in 1986, and then issued an Australian passport in 2017, demonstrates that he is an Australian citizen.

Applicant's evidence 325 The evidence in the applicant's affidavit in relation to his enrolment on the Commonwealth electoral roll, and the issuing of his Australian passport, is as follows: 3. I always understood that my nationality was Australian. 4. The first I learned that I was not an Australian citizen was when I was put in immigration detention on 11 May 2018. Before that, no one had ever told me that I was either a lawful non-citizen or an unlawful non-citizen. … Voting in elections 25. In 1986, when I was 18 years old and living with my parents in the family home in Queensland, the electoral office wrote to me and told me I was eligible to vote. 26. I voted in a Commonwealth election in July 1987 for the first and only time. I voted at a booth in Southbrook Hall, a suburb 10 minutes outside Toowoomba. I was living with my uncle and aunt at that time. 27. I did not vote again because I moved around the country working and living rough and in remote Aboriginal communities a lot. The issuing of my Australian passport 28. In October 2017 I applied for the time for a passport. I applied because I needed more identification in order to live in a hotel. I was living rough, also known as 'long-grassing', in Darwin. Now produced and shown to me and marked EM-2 is a copy of my passport application. Now produced and shown to me and marked EM-3 is a document relating to the issue of my passport. 29. Because I had always thought of myself as an Australian I thought receiving a passport would be a formality. 30. When I applied for a passport I provided my birth certificate, over 18 plus card, key card, Centrelink number and my granddaughter's address. A passport was issued on 25 October 2017. I picked it up at a suburban post officer in Darwin. … 34. If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen. 326 The annexures referred to in the extract above were: (a) a copy of the applicant's signed and completed passport application dated 4 October 2017 (annexure EM-2); and (b) a copy of a report containing details regarding the applicant's passport (annexure EM-3). The report is marked "DFAT DECLASSIFIED" and "COPY ISSUED UNDER FOI ACT 1982". The report records, amongst other details, that the applicant's passport was issued on 25 October 2017 and made void on 26 February 2018. 327 Also in evidence was a photograph of the applicant's passport displaying the applicant's photograph and details (being part of annexure JMD-9 to Ms Duff's affidavit). The details correctly match the applicant's name, date of birth and the date of issue identified in the applicant's affidavit: 25 October 2017. 328 The content of the applicant's affidavit, and the documents annexed to the applicant's affidavit, were not challenged by the Minister.

Presumption of regularity 329 The applicant relies on the "presumption of regularity" to support his argument that his enrolment on the Commonwealth electoral roll in 1986, and the issue of his Australian passport in 2017, demonstrate that the relevant decision-makers were satisfied, as at those points in time, that he was an Australian citizen. 330 The presumption of regularity is otherwise referred to by its Latin maxim, omnia praesumuntur rite esse acta, which broadly translates to "everything is presumed to be rightly and duly performed until the contrary is shown": Kersley RH, Broom's Legal Maxims (10th ed, Sweet & Maxwell, 1939) p 642, quoted in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (NSW Aboriginal Land Council) at 164 per McHugh JA. The presumption is naturally rebuttable: Hardess v Beaumont [1953] VLR 315 at 320 per Dean J. 331 The concepts of the presumption of regularity and onus of proof are interrelated: Selby v Pennings (1998) 19 WAR 520 (Selby) at 532 per Ipp J. The presumption has a variety of applications (Morris v Kanssen [1946] AC 459 (Morris) at 475 per Lord Simonds, for the House of Lords), many of which are captured in Cross on Evidence at [1175]. The maxim is often applied to assist proof of the fact that a particular person of body (in either a private or public sphere) has been validly appointed: for example, see R v Brewer [1942] HCA 33; 66 CLR 535 (Brewer) at 548 per Latham CJ and McTiernan J and Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; 169 FCR 85 (Anti-Discrimination Tribunal (Tas)) at [51] per Goldberg J and [260]-[261] per Kenny J. In respect of the veracity of certain public records, the presumption has been codified in ss 155 and 155A of the Evidence Act. 332 There are two broad foundations for the presumption of regularity: see Best WM, The Principles of the Law of Evidence (9th ed, Sweet & Maxwell, 1902) p 308, quoted in Selby at 528 per Ipp J. The first is public policy. This is reflected in the observation that "[t]he wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order": Morris at 475. The Hon Dyson Heydon AC QC observes that "[m]uch trouble and expense is saved when the courts act on this assumption": Cross on Evidence at [1175]. See also McGregor v Australian Mortgage, Land and Finance Co (1898) 15 WN (NSW) 128 at 129 per Darley CJ, with Owen and Walker JJ agreeing. 333 The second foundation is common experience. The tenability of the presumption relies on there being "previous experience of the connection between the known and inferred facts, of such a nature, that as soon as the existence of the one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject": Starkie T, A Practical Treatise of the Law of Evidence (10th American ed, T & JW Johnson & Co, 1876) p 741, quoted in McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 (McLean Bros) at 849 per Griffith CJ and GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; 72 NSWLR 647 (GPT) at [79] per Basten JA, with Bell JA and Young CJ in Eq agreeing. As such, in determining whether the presumption is rebutted, the ordinary course of human affairs carries some weight, which may vary depending on the circumstances: Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 (Hill) at [52] per Hodgson JA, with Ipp JA and Davies AJA. 334 The presumption of regularity has been considered or applied by Australian appellate courts on numerous occasions: for example, McLean Bros at 850 per Griffith CJ; Brewer at 548 per Latham CJ and McTiernan J; Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 at 47-48 per Moffitt JA, with Asprey JA and Taylor AJA agreeing; Watson v Lee [1979] HCA 53; 144 CLR 374 at 381-382 per Barwick CJ; NSW Aboriginal Land Council at 164 per McHugh JA and 169-170 per Clarke AJA; Selby at 528-529 per Ipp J; Cassell v The Queen [2000] HCA 8; 201 CLR 189 (Cassell) at [17] per Gleeson CJ, Gaudron, McHugh and Gummow JJ and [63]-[69] per Kirby J (dissenting); Guiseppe at [45] per Gyles and Edmonds JJ; Hill at [51]-[52]; Minister for Home Affairs v Tervonen [2008] FCAFC 24; 166 FCR 91 at [69] per Jacobson, Bennett and Buchanan JJ; Anti-Discrimination Tribunal (Tas) at [51] per Goldberg J and [260]-[261] per Kenny J; GPT at [80]; Dixon v Lekich [2010] QCA 213; 56 MVR 70 at [20] and [24] per Fraser JA, with McMurdo P and White JA agreeing; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; 188 LGERA 26 at [114]-[118] per McColl JA, with Macfarlan and Whealy JJA agreeing; Bhalsod v Perrie [2018] WASCA 108; 84 MVR 469 at [107]-[112] per Buss P, with Mazza and Beech JJA agreeing. 335 In NSW Aboriginal Land Council at 164, McHugh JA wrote that "[t]he natural home of the maxim is public law". His Honour then defined the application of the maxim in that context as follows: Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. (Ibid. See also Cassell at [63] per Kirby J.) 336 This reflects the same principle expressed in greater breadth by Brewer J in delivering the opinion of the Supreme Court of the United States in Knox County v Ninth National Bank, 147 US 91 at 97 (1893) (as quoted by Griffiths CJ in Mclean Bros at 850): It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act. 337 The applicant highlights that the inference of regularity is "stronger in the case of a Minister of state": Guiseppe at [45]. Upon this premise, the applicant argues that the Minister bears a heavy burden in the present case of proving that the applicant is not an Australian citizen. However, with respect, this submission misunderstands the proper operation of the presumption of regularity.

Consideration 338 Contrary to the applicant's submission, the presumption of regularity does not operate in the present case to facilitate proof that the applicant is, as a matter of law, an Australian citizen. The effect of the maxim omnia praesumuntur rite esse acta does not extend that far. 339 The presumption of regularity is an evidential presumption. It is a judicial tool founded on common experience and pragmatic concerns to facilitate the proof of certain facts in appropriate circumstances. Where applicable in respect of a particular fact, a presumption will arise that the fact has occurred in the past, and it is up to the party against whom the presumption operates to present evidence to the contrary. 340 The true ambit of the presumption is evident from the passage of McHugh JA in NSW Aboriginal Land Council extracted above at [335]. That passage does not state that the purported exercise of power or the doing of an act by the public official or authority is presumed, as matter of law, to be valid. What the passage expresses is that a presumption arises that, as a matter of fact, all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. 341 The presumption of regularity does not facilitate proof of the lawfulness of an act that is, in reality, patently unlawful. This limitation was referred to by Lord Simonds, on behalf of the House of Lords, in Morris at 475 in the context of private law: One of the fundamental maxims of the law is the maxim "omnia praesumuntur rite esse acta." It has many applications. In the law of agency it is illustrated by the doctrine of ostensible authority. In the law relating to corporations its application is very similar. The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order. But the maxim has its proper limits. An ostensible agent cannot bind his principal to that which the principal cannot lawfully do. The directors or acting directors or other officers of a company cannot bind it to a transaction which is ultra vires. … (Emphasis added.) 342 The application of this limitation in public law is illustrated by the decision of Southwell J in United Transport Services Pty Ltd v Evans [1992] 1 VR 240 (United Transport Services). The defendant in that case was charged with various offences in relation to a fire at a chemical factory. At the hearing, the defendant challenged the validity of the appointment of the informant as an inspector. Various documents were provided to support the authority of the informant to bring the proceedings. This included two pages from the Victorian Government Gazette that included a section entitled "Appointment of Inspectors under the Occupational Health and Safety Act 1985" that named the relevant informant, and was expressed to be authorised by the then Victorian Minister for Employment and Industrial Affairs (Victorian Minister): ibid at 244-245. 343 The parties agreed that the Victorian Governor, on the advice of the Executive Council, had the power to make the appointment in question: ibid at 246. However, there was no express statutory power for the Victorian Minister to do so. Indeed, the relevant legislation governing the offences was silent as to the manner of appointment, or the identity of the appointor: ibid at 245. Being unable to point to any authority or fact to explain the Victorian Minister's authorisation of the appointment in the Gazette, the informant relied on the presumption of regularity. 344 It is convenient to set out Southwell J's consideration of the presumption of regularity (at 247-248) in full: As to the applicability of the presumption of regularity, a convenient starting point is the judgment of Dean J in Hardess v Beaumont [1953] VLR 315. There his Honour dealt with the question whether there had been proof of the due appointment of an analyst whose certificate had been tendered in a case concerning the sale of allegedly contaminated meat. His Honour there held, following R v Whitaker [1914] 3 KB 1283, that there was prima facie evidence of the due appointment of the analyst, since she was discharging a duty in which the public had an interest, and she was paid out of public funds. At 318, his Honour observed that "the matter must be determined in the absence of any special provision of the statute and in accordance with the general law of evidence". In my opinion, that statement is here apt. The learned judge went on to refer to a number of authorities, at 318-19, relating to the presumption that a person acting in a public office is presumed to be duly appointed, unless the contrary is shown. His Honour held that the analyst was a public officer (and in my opinion no legitimate distinction can be drawn in this regard between the analyst and the inspector). It is not, I think, necessary to refer in detail to the reasons which led his Honour to hold that there was sufficient evidence that the analyst was "duly appointed as an analyst by the (Health) Commission". But there, s. 242(3) of the Health Act 1928 empowered the commission to "approve in writing as analysts persons possessing competent skill and experience...". However, there was no direct evidence that the commission had approved the analyst. The question [in Hardess v Beaumont] was whether the presumption applied so as to render direct proof unnecessary. It was not a case where, as here, a question arose as to the power to appoint. The question was whether there was proof that the proven power had been duly exercised. It must steadily be borne in mind that the court is here dealing with an evidentiary issue, and the applicability of what is no more than a rebuttable presumption. As Dean J said, [1953] VLR, at 320, "It is always open to a defendant to rebut the presumption". In that case, the defendant could have rebutted the presumption by calling the grantor or the grantee of the approval, in order to prove that the analyst had not been duly approved by the commission. The statute clearly identifies the commission as having the power to grant approval. In the present case, how does the defendant go about rebutting the presumption? It does not know who purported to appoint the inspector, other than knowledge derived by the inference I have drawn that the minister probably purported to make the appointment. And so the defendant calls the minister to prove that he purported so to act. That would advance neither cause. That evidence would throw no light on the question whether the minister was lawfully empowered to appoint. As it seems to me, the presumption may be applied so as to fill gaps in proof of the steps necessary to be proved in order to prove due appointment. But it is impermissible to apply it so as to bestow a power where the statute omits to do so. In my opinion, the presumption of regularity cannot be relied upon in proof of the due appointment of the informant. (Emphasis added.) 345 Returning to the present case, the applicant was enrolled to vote under s 93(1) of the Commonwealth Enrolment Act (extracted above at [274]), and was issued an Australian passport under s 7(1) of the Passports Act (extracted above at [277]). In accordance with the terms of those respective statutory provisions, both entitlements were only available to Australian citizens (putting aside the alternative under s 93(1)(b)(ii) of the Commonwealth Enrolment Act, which is inapplicable in the present case). In addition, the applicant was only entitled to be issued a passport where the Minister was satisfied that the applicant was an Australian citizen: s 8(a) of the Passports Act. 346 The applicant now presents his Australian passport, and the evidence of his enrolment, as substantiation of his Australian citizenship. The maxim omnia praesumuntur rite esse acta may aid the applicant to raise an evidential presumption that, as a matter of fact, the Minister formed a state of satisfaction for the purposes of the Passports Act that the applicant was an Australian citizen. That is because the formation by the Minister of that state of mind was a condition necessary to the issue of the applicant's passport. However, that is not how the applicant seeks to apply the presumption of regularity in the present case. The applicant attempts to raise a presumption from the underlying evidence that the applicant is, as a matter of law, an Australian citizen. That attempt must be rejected. As explained above, citizenship is a statutory concept. It is an entitlement conferred only by statute. It cannot be conferred by mere administrative action, mistaken or otherwise. 347 The proposition that the issue of a passport does not, of itself, amount to a grant of citizenship is supported by the judgment of Burchett J in the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 (Petrovski). The facts of that case bear some resemblance to those in the present case. The opening words of Burchett J's judgment described Petrovski as "an appeal in a case brought primarily to test the effect of the issue, by some extraordinary oversight, of an Australian passport to a Serbian citizen [Mr Petrovski], who, for his part, had applied for it honestly and without any attempt to conceal the facts". Mr Petrovski had applied to sponsor his wife and her child for permanent resident status. He was then told for the first time that he was not, and never had been, an Australian citizen. 348 Each judge on the Full Court (constituted by Burchett, O'Louglin and Tamberlin JJ) wrote separate judgments. Key for present purposes is the clear statements by Burchett J (at 307 and 308) that the issue of a passport does not amount to a grant of citizenship. As expressed by his Honour, "a person who is not a citizen makes an application under the Australian Citizenship Act for a grant of citizenship, he [or she] must, of course, comply with the requirements of that Act". See also VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [54] per Weinberg J. In my opinion, the same necessity to comply with statutory requirements also applies in relation to the applicant's enrolment to vote. 349 In the present case, the applicant was, as a matter of fact, enrolled to vote and issued an Australian passport. But he was never, as a matter of law, a citizen of Australia. When we, in the style of an archaeologist, dig back into the history of the relevant legislation and the applicant's circumstances, we cannot uncover a point in time at which the applicant satisfied the statutory criteria for Australian citizenship. The applicant was conferred New Zealand citizenship upon birth. Upon arrival in Australia, the applicant was considered a "British subject", but not an Australian citizen, under the 1948 Citizenship Act. He was not "a person born in Australia", and therefore was not entitled to citizenship by birth. There is no evidence of the registration of his birth for the purposes of obtaining citizenship by descent. He was adopted prior to the amendments in the 1984 Amending Act which introduced automatic citizenship by adoption. And there is no evidence of him otherwise applying for citizenship. 350 To conclude, the manner in which I have analysed the presumption of regularity is on the basis that the applicant's submissions misunderstand the appropriate scope and effect of that presumption. This, in my view, is the correct manner of characterising the issues in question. However, if I'm wrong, and the presumption is operative, the same outcome is still reached. Even if the enrolment of the applicant on the Commonwealth electoral roll, and the issue of his passport, create a presumption that the applicant is an Australian citizen, that presumption is rebutted by identifying the relevant statutory criteria for citizenship and then concluding, in accordance with the analysis above, that the applicant never satisfied that criteria.

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant 351 As explained above at [237]-[240], the applicant, on the primary analysis in the present case, bears the onus of proving each of the elements necessary to establish that he is a not a person to whom s 189(1) of the Migration Act is capable of applying. Given that the applicant was unsuccessful in proving that he was an Aboriginal Australian under the relevant test (see above at [242]), he was alternatively required to prove that he satisfied the statutory criteria for Australian citizenship. For the reasons expressed above, he has failed to do so.

Alternative analysis: Direct challenge to lawfulness of applicant's detention 352 As for the alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant's detention), the applicant has satisfied his initial evidential onus to raise a prima facie question as to the lawfulness of his restraint in respect of his claims to be unlawfully detained on the basis of his Australian citizenship. He did so by presenting evidence of his past enrolment on the Commonwealth electoral roll in 1986 and the issue of his Australian passport in 2017. However, the Minister has satisfied his ultimate legal onus to establish the lawfulness of the applicant's detention by demonstrating that the applicant has never satisfied the statutory criteria for Australian citizenship.

VIII. conclusion 353 Part VIII of these reasons details my conclusion to both the primary analysis and the alternative analysis in the present case.

Primary analysis: Applicability of s 189(1) of the Migration Act to the applicant 354 As explained above at [88], this Court has original jurisdiction to determine whether or not the applicant is a person to whom s 189(1) of the Migration Act is capable of validly applying. The answer to that question can be briefly stated. 355 The applicant has failed to establish that he is an Aboriginal Australian within the meaning of the tripartite test in Mabo (No 2) at 70 per Brennan J (see above at [242]). He has also failed to establish that he is an Australian citizen (see above at [351]). No other basis is advanced by the applicant to negate that he is an "alien" within the meaning of s 51(xix) of the Constitution. Accordingly, the applicant is a person to whom s 189(1) of the Migration Act is capable of validly applying.

Alternative analysis: Direct challenge to lawfulness of applicant's detention 356 The alternative analysis (based on the assumption, contrary to what I have determined, that this Court does have original jurisdiction to directly review the validity of the applicant's detention) requires an additional phase of analysis.

Reasonableness of officer's suspicion 357 As discussed above, there is, as at or around the date of this decision, an officer who subjectively suspects that the applicant is an unlawful non-citizen: see above at [188]. For the applicant' detention to be lawfully supported by s 189(1) of the Migration Act, the suspicion must also be reasonable. The reasonableness of that state of mind is a matter for the Court to determine: George v Rockett at 112; Prior v Mole at [27] per Gageler J. 358 The objective circumstances by reference to which the officer now subjectively forms that suspicion have been discussed throughout in these reasons. They are primarily sourced from the admissible annexures to Ms Duff's affidavit, including the May 2018 Detention Note, the May 2018 Detention Review, the Monthly Case Reviews and Ms Hatfull's September 2018 Email. However, the information recorded in those documents is supplemented by knowledge of the context of the present application. 359 The relevant objective circumstances include the following: (a) the applicant was born in the Cook Islands in 1968; (b) the applicant arrived in Australia in 1975, when he was seven years old; (c) the applicant was adopted in November 1976 at the age of eight by an Australian citizen father and a permanent resident mother (who later became an Australian citizen in 1997); (d) there is no record that the applicant has ever applied for Australian citizenship; (e) the applicant's absorbed person visa was cancelled in April 2018 and the Minister decided not to revoke that cancellation in August 2019; and (f) although the applicant self-identifies as an Aboriginal Australian, and is recognised as such by an elder of the Ardyaloon Community (in which the applicant resided from about 1990 to 2001), there is no evidence that tends to prove that the applicant is a biological descendent of the Aboriginal people. 360 In my view, these circumstances provide a sufficient foundation for a reasonable person in the position of the officer to suspect that the applicant is an unlawful non-citizen. As an elementary matter, it should be recalled that the suspicion of the existence of a fact does not require prima facie proof of that fact. "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking": Hussein v Chong Fook Kam [1970] AC 942 per Lord Devlin, for the Privy Council, quoted in George v Rockett at 115; see also Goldie v Commonwealth [2002] FCA 433; 117 FCR 566 (Goldie) at [4] per Gray and Lee JJ. In any event, my view, having undertaken an analysis in Parts VI and VII of these reasons of the applicant's circumstances and the relevant legislation, is that the suspicion that the applicant is an unlawful non-citizen is reasonable. 361 The criticisms raised by the applicant regarding the content and quality of the reasoning expressed in the May 2018 Detention Note, the May 2018 Detention Review and the Monthly Case Reviews do not preclude this conclusion. First, although the fact that the "Client Details" section in each of these documents recorded the applicant's citizenship as including Australia (in addition to Cook Islands and New Zealand) is odd, and is on its face inconsistent with the officers holding a suspicion that the applicant was an unlawful non-citizen, there is likely a simple explanation for this. The reference to "Australia" may, for instance, simply reflect that, as the applicant was once issued an Australian passport, the Department's internal computer system recorded the applicant as an Australian citizen, and the "Client Details" attached to the applicant's electronic file were not corrected upon cancellation of the applicant's passport in February 2018. Regardless, these documents have to read as a whole. It is clear from the inherent nature of the documents, and the opinions recorded therein, that the applicant was suspected not to be an Australian citizen. 362 Second, the statement in the September 2018 Case Review that the applicant "has made no claims of being an Australian citizen or permanent resident" (see above at [166]) should not be read, as the applicant proposed, as expressing the (obviously incorrect) view that the applicant has made no assertion that he is an Australian citizen. "[N]o claims" is instead appropriately interpreted as the absence of any formal applications for citizenship. It is clear from the next paragraph of the September 2018 Case Review that Ms Hatfull, the author of that document, recognised that the applicant was continuing to assert his status as an Australian citizen. 363 Third, and finally, the applicant's attacks on the extent and quality of reasoning in these documents are, at a more basal level, not to the point. In the applicant's submission, the documents displayed "a breath-taking lack of engagement with the factual basis upon which [the applicant] is being deprived of his liberty", did not "show any inquiry, let alone a reasonable inquiry, into some obvious reasons to conclude [the applicant] is not a non-citizen", and did not "show any intellectual engagement with the conflicting facts that one officer gave [the applicant] a passport in 2017 on the basis that he was a citizen and a different person in 2018 formed the view that he should not have been given that passport". 364 Admittedly, there is one clear example of reasoning expressed in these documents being based upon a false factual premise. The apparent source of this error (according to the admissible evidence) is the internal advice from the Department's Citizenship Helpdesk on 26 February 2018, which found that the applicant was not an Australian citizen (see above at [29]). That advice included the following: In regard to [the applicant] being an Australian passport holder, an Australian passport is not evidence of a person's citizenship. It was common prior to 2005 for Australian passports to be issued to persons who were not Australian citizens. In 2005 a new Passports Act was introduced restricting Australian passports to be issued to Australian citizens only. The issuing of the passport in this case, was most likely on presentation of the Australian birth certificate and the fact that prior to 2005 appropriate checks were not made as to whether the applicant was an Australian citizen. 365 This advice is based on the false premise that the applicant applied for, and obtained, his Australian passport prior to the commencement of the Passports Act in 2005. In fact, the applicant obtained his passport in 2017. This erroneous factual premise was used in the Citizen Helpdesk's advice to explain away why the applicant, although a non-citizen, had been issued an Australian passport. 366 The erroneous factual premise, and the consequent reasoning, is replicated in subsequent documents authored by the Department. This includes the Department's letter to the applicant on 30 April 2018 (see above at [33]) and the May 2018 Detention Review (see above at [162]). It also includes paras 57 and 63 of the Department's submissions to the Minister in advance of the Minister's decision (see above at [43]), however there was no reference to this fact in the Minister's Reasons. 367 Notwithstanding this fallacy, caution is necessary in responding to the applicant's submission in this respect, which is aimed at undermining the reasonableness of the requisite suspicion formed under s 189(1) of the Migration Act. The criticisms raised by the applicant invoke considerations akin to claims of legal unreasonableness in judicial review applications. However, in the present context, the reasonableness of the officer's suspicion is determined by the Court. The enquiry into the reasonableness of the suspicion therefore differs from that natural to judicial review, where the merits (or subjective appropriateness) of the decision is solely within the province of the administrative decision-maker. Consequently, the internal records of the Department are not to be parsed as if they were formal published reasons for an administrative decision. 368 Moreover, I reject any suggestion that the relevant suspicion is unreasonable because a failure to conduct proper enquiries in relation to the conflicting facts regarding the applicant's citizenship (in particular, the question as to why he was issued an Australian passport in October 2017). The present case is not akin to Goldie, where the relevant officer formed a suspicion based on incomplete and outdated information: ibid at [17] and [19] per Gray and Lee JJ. The suspicion held in the present case is evidently inconsistent with the issue of the applicant's passport, but it is one based on a more recent (and, I suspect, more detailed) assessment of the applicant's citizenship status. 369 Ultimately, the applicant's criticisms of the extent and quality of reasoning expressed by the officers do not aid the applicant's argument that the terms of s 189(1) of the Migration Act are not satisfied. For the reasons expressed above, my view, for the purposes of the alternative analysis in the present case, is that the requisite suspicion held by an officer as at or around the date of this decision - that the applicant is an unlawful non-citizen - is reasonable.

Habeas corpus revisited 370 The primary remedy sought in the applicant's amending application for present purposes is "[r]elief in the nature of a writ of habeas corpus". As explained above at [103], an application for such relief involves a series of shifting onuses between applicant and respondent. Having considered all of the issues raised by the parties relevant to the alternative analysis, the application of those onuses in the present case is as follows. 371 First, the applicant bore the onus of proving that he or she is actually restrained. That is clearly satisfied in the present case. 372 Second, the Minister next bore the onus of presenting a prima facie justification for restraining the applicant. In the present case, the invocation of the statutory authority under s 189(1) of the Migration Act, in conjunction with the surrounding facts, is sufficient to provide prima facie lawful authority for the applicant's detention: see above at [120]-[121]. 373 Third, the applicant next bore an initial evidential onus to raise a prima facie question as to the lawfulness of his restraint. In the present case, the applicant, in respect of his claims to be unlawfully detained on the basis of his Aboriginality, failed to satisfy this onus: see above at [245]. There was therefore no requirement for the Minister to justify the applicant's detention in respect of that particular alleged basis of unlawfulness. However, in respect of the applicant's claims to be unlawfully detained on the basis of his Australian citizenship, the applicant satisfied this initial onus by presenting evidence of his past enrolment on the Commonwealth electoral roll in 1986 and the issue of his Australian passport in 2017: see above at [352]. 374 Fourth, and finally, the Minister bore the ultimate legal onus of proving the lawfulness of the applicant's restraint under s 189(1) of the Migration Act. I am satisfied that, as at or around the date of this decision, there is an officer who subjectively suspects that the applicant is an unlawful non-citizen: see above at [188]. In my view, that suspicion is reasonable: see above at [360] and [369]. The terms of s 189(1) are accordingly satisfied as at the time of this decision. Thus, the applicant's detention is lawful. Therefore, for the purposes of the alternative analysis, the Minister has satisfied his ultimate legal onus in the present case.

Costs 375 Given the applicant's application for judicial review of the Minister's decision remains to be determined in this proceeding, I reserve the question as to the costs of the applicant's habeas corpus application for future consideration.

Pronouncement 376 For the reasons expressed above, I make the following orders: 1. The name of the respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". 2. Leave is granted for the applicant to rely on the "Amended Originating application for review of a migration decision and under s 39B of the Judiciary Act 1903 (Cth)" dated 11 March 2020 (Amended Application). 3. There be an extension of time for the filing of the Amended Application. 4. The applicant's application for relief in the nature of a writ of habeas corpus (habeas corpus application) is dismissed. 5. The costs of the habeas corpus application be reserved. 377 The Minister did not seek any further relief should he succeed in this decision. In any event, it should be clear from these reasons that the applicant is an "alien" to Australia for the purposes of s 51(xix) of the Constitution. I certify that the preceding three hundred and seventy-seven (377) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.