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].