What happened
Edward McHugh was born in the Cook Islands in 1968 and thereby became a New Zealand citizen. He arrived in Australia in February 1975 at the age of seven on an incoming passenger card that erroneously described him as an Australian citizen. In 1976 he was formally adopted in Queensland by Maryanne and Kevin McHugh under the Adoption of Children Act 1964 (Qld). Two days after the adoption order his birth was registered in Queensland, naming the McHughs as his parents and recording their ages as they would have been at the time of his actual birth. Mr McHugh only learned of the adoption in 2013.
From about 1990 Mr McHugh lived for twelve years in the Ardyaloon (One Arm Point) community of the Bardi Jawi people on the Dampier Peninsula in Western Australia. He was given a traditional Bardi Jawi name, learned some of the language, performed ceremonial roles including initiating boys and participating in circumcision ceremonies, and was recognised by an elder of the community as Aboriginal. He had seven children, five with his first wife (a Bardi Jawi woman) and two with his second. After separating from his first wife he lived in Derby and the Mulan Aboriginal community and later travelled with a Gidja artist painting and selling traditional works. He self-identifies as Aboriginal and is recognised as such by the Bardi Jawi.
In 1986, at age 18, Mr McHugh was enrolled on the Commonwealth electoral roll and voted in the 1987 federal election. In 2017 he applied for and was issued an Australian passport. None of these steps were challenged at the time. In 2018 the Department of Home Affairs concluded he was not a citizen but the holder of an absorbed person visa granted by operation of s 34 of the Migration Act 1958 (Cth) on 1 September 1994. Following convictions for offences carrying terms of imprisonment of 12 months or more, that visa was mandatorily cancelled under s 501(3A) in April 2018. Mr McHugh applied for revocation under s 501CA(4), asserting he was a citizen and, in the alternative, that there were other reasons to revoke. The Minister personally decided not to revoke on 23 August 2019.
Mr McHugh was taken into immigration detention on 11 May 2018 and remained there until the Full Court's orders on 11 December 2020. He commenced proceedings in the Federal Court seeking, among other relief, a writ of habeas corpus on the basis that he is a citizen or, if not, a non-alien Aboriginal Australian to whom ss 189 and 196 cannot apply following the High Court's decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 (handed down 11 February 2020, during the pendency of the proceeding). The primary judge severed the habeas corpus claim from the judicial review of the non-revocation decision. In the habeas proceeding the Minister objected to jurisdiction on the basis that s 476A(1) of the Migration Act precluded the Court from granting that relief. The primary judge upheld the objection but, in the alternative, dismissed the claim on the merits, finding Mr McHugh was not a citizen, had not discharged the evidentiary burden in respect of Aboriginality, and that an officer's reasonable suspicion that he was an unlawful non-citizen could be inferred from 2018 departmental records by a presumption of continuance. The judicial review of the non-revocation decision succeeded on other grounds (failure to consider citizenship representations) but is not before this Court on the present appeal.
The Full Court (Allsop CJ, Besanko and Mortimer JJ) allowed the appeal in part. Allsop CJ and Mortimer J wrote separate reasons; Besanko J agreed with both. The Court held it had jurisdiction and power to issue habeas corpus, that the primary judge's tripartite shifting onus was erroneous, that Mr McHugh had discharged the evidential burden, and that the Minister had failed to prove that at the time of trial any officer held a reasonable suspicion that Mr McHugh was an unlawful non-citizen (including that he was not an Aboriginal Australian). A writ of habeas corpus issued and Mr McHugh was ordered released forthwith. The Court also confirmed he is not an Australian citizen because "born in Australia" in s 10(1) of the Australian Citizenship Act 1948 (Cth) requires physical birth in Australian territory; his adoption and the operation of s 31 of the Queensland Adoption Act did not alter that fact. Constitutional questions about the precise operation of s 189 post-Love were left for another day.
Why the court decided this way
The Full Court's reasoning is grounded in three interlocking propositions, each anchored in the text, the constitutional setting and the long history of habeas corpus as the common law's "great writ" for protecting personal liberty.
First, the Court has both jurisdiction and power to grant habeas corpus. Allsop CJ (at [6]-[19]) and Mortimer J (at [188]-[249]) carefully traced the Court's original jurisdiction under s 39B(1) and (1A)(c) of the Judiciary Act and the limited carve-out in s 476A(1). The phrase "jurisdiction in relation to a migration decision" is confined to direct public-law judicial review of the enumerated decisions (here the s 501CA non-revocation). Habeas corpus is not direct review of the "decision" to detain; it is a collateral remedy requiring the detainer to justify the fact of restraint. Because the Court was already seised of the judicial review of the Minister's personal decision under s 476A(1)(c), habeas corpus was available as an incident of that jurisdiction under s 23 of the Federal Court of Australia Act. The power is not inherent but statutory, yet once jurisdiction is engaged the writ may issue if it is an appropriate remedy to vindicate the right to liberty. The Minister's concession that the Court could decide whether s 189 applied to Mr McHugh as a non-alien Aboriginal Australian or citizen reinforced the availability of ancillary relief.
Second, the onus of proof in habeas corpus for s 189 detention lies on the Minister once the detainee puts lawfulness in issue. All three judges rejected the primary judge's "shifting onus" analysis (which drew on Yoxon v Secretary to the Department of Justice [2015] VSC 124 and Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17). Allsop CJ (at [53]-[66]) and Mortimer J (at [250]-[289]) emphasised that liberty is "elementary and fundamentally important". Every imprisonment not ordered by a judge is prima facie unlawful (Liversidge v Anderson [1942] AC 206 at 245 per Lord Atkin, adopted at [54]). The Minister must prove "positive authority" for the detention. In the statutory context of s 189(1) that requires proof that, at the time of the Court's decision, an officer knows or reasonably suspects the person is an unlawful non-citizen. After Love v Commonwealth, that suspicion must encompass that the person is not an Aboriginal Australian (non-alien). The appellant's detailed affidavit (extracted by Mortimer J at [286])—self-identification, community recognition, ceremonial roles, voting, passport, and consistent claim to citizenship—readily put lawfulness in issue. From that point the legal burden rested on the Minister. No "third shift" requiring the appellant to prove each limb of the Mabo tripartite test to a prima facie standard was required. The evidence must be "clear and cogent" given the gravity of the liberty interest (Ex parte Khawaja [1984] 1 AC 74 at 112-114; Dien v Manager of Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 at 419).
Third, the Minister failed to discharge that burden. No officer responsible for Mr McHugh's detention at the time of trial gave evidence. The only documentary material was case notes and monthly reviews dated no later than 20 September 2018—some 18 months before trial. Those documents could not prove a reasonable suspicion at the date of hearing. Mortimer J (at [330]-[340]) and Besanko J (at [76]) held that a presumption of continuance could not bridge that gap, especially after the High Court's February 2020 decision in Love v Commonwealth fundamentally altered the constitutional reach of ss 13, 14 and 189. The 2018 documents predated Love and contained no consideration of Aboriginality. Even if a suspicion of non-citizenship could be inferred, the Minister led nothing to show any officer had turned his or her mind to whether Mr McHugh was an Aboriginal Australian. The business records objection under s 69(3) of the Evidence Act was rejected (the documents were not prepared in contemplation of proceedings), but that did not save the Minister because the records were simply too stale. Allsop CJ (at [5]) underscored the practical point: those administering detention centres "should be in a position to justify the lawful nature of a person's detention, at any time. If that depends upon proof of someone's state of mind and the reasonable foundation for it that proof should be readily available".
The citizenship argument was rejected on ordinary principles of statutory construction. Mortimer J (at [355]-[383]) held that "born in Australia" in s 10(1) of the 1948 Act means physical birth within Australian territory. The deeming effect of s 31 of the Queensland Adoption Act as to domicile of origin does not alter the historical fact of birth in the Cook Islands. Section 11(1), which provides a separate pathway for persons born outside Australia, would be undermined if "born in Australia" could be satisfied by a later State-law deeming. Administrative acts (enrolment, voting, passport) could not confer citizenship; they were errors. Thus Mr McHugh is a non-citizen, but the Minister could not prove he was an unlawful non-citizen amenable to s 189.
Constitutional questions about the precise reading down of s 189—whether the Minister must prove the fact of non-Aboriginality or only a reasonable suspicion—were left open because the Minister had failed even on the more favourable test (Allsop CJ at [50]-[52]; Besanko J at [83]; Mortimer J at [394]).
Before and after state of the law
Before this decision the law on habeas corpus in the migration context was unsettled in the Federal Court. Single judges had divided on whether s 476A ousted the remedy (compare Alsalih v Manager, Baxter Immigration Detention Facility [2004] FCA 352; Matete v Minister for Immigration and Citizenship [2009] FCA 187 with Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 and Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297). The Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 had accepted that orders in the nature of habeas corpus were available, but the precise source of power and interaction with s 476A remained unclear. Onus of proof was likewise confused. Some judgments treated habeas corpus as involving a shifting evidentiary burden drawn from English prison cases (Yoxon; Greene v Secretary of State for Home Affairs [1942] AC 284). Others, particularly in false imprisonment claims, insisted the Commonwealth bore the legal onus throughout once detention was proved (Ruddock v Taylor; Commonwealth v Fernando [2012] FCAFC 18; Guo v Commonwealth of Australia [2017] FCA 355; Burgess v Commonwealth [2020] FCA 670). The interaction with Love v Commonwealth was entirely new; no court had yet considered how the onus operated when a detainee claimed non-alien Aboriginal status.
After McHugh the position is clearer. The Federal Court has confirmed that s 23 of the Federal Court of Australia Act supplies power to issue the writ as an incident of jurisdiction regularly invoked under s 476A(1)(c). Habeas corpus is not "direct judicial review" of a migration decision and is not caught by the s 476A limitation. The onus rule is now settled: the detainee must put lawfulness in issue with probative material; the Minister must then prove, to the civil standard but with the gravity of the liberty interest in mind (Evidence Act s 140), that at the date of hearing an officer holds a reasonable suspicion that the person is an unlawful non-citizen (read down so as not to include non-citizen Aboriginal Australians). Presumptions of continuance over long periods, especially after constitutional developments such as Love, will not suffice. Departments must keep systems that enable them to adduce contemporary evidence of the relevant officer's state of mind. "Born in Australia" in the 1948 Act is confined to physical birthplace; adoption deeming provisions do not alter that. The constitutional questions about the precise preconditions for lawful detention of a claimed Aboriginal non-citizen remain live and will require full argument in a future case.
The decision aligns the Federal Court with the High Court's repeated insistence that executive detention must be strictly justified (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; Al-Kateb v Godwin [2004] HCA 37; Plaintiff M47/2018). It also reinforces that Love v Commonwealth is not a mere curiosity for native title lawyers; it has immediate, practical consequences for the operation of the Migration Act.
Key passages with plain-English translation
"[5] ... s 189 of the Migration Act and the other sections concerning detention confer power on the Executive over, and qualify the elementary and fundamentally important right of, any person in this country (whether citizen, non-citizen, alien or immigrant) to liberty and freedom from, Executive detention. Strictness of approach in remedy, onus of proof, and the nature of proof in respect of such questions is a reflection of the common law's vigilance over that liberty." (Allsop CJ)
Plain English: Locking someone up without a court order is a big deal. The law watches it very carefully. If the government wants to keep locking someone up it must be ready to prove with clear evidence that it is allowed to do so. No shortcuts.
"[54] These remarks and considerations are not gratuitous in the context of the Executive detention of a person suspected to be an unlawful non-citizen, being someone who has lived in Australia for 45 years since arriving at the age of 7, who was adopted by Australian citizens under Queensland law at the age of 8, who was (as it transpires, wrongly) designated a citizen in at least two official and important contexts by officers of the Commonwealth, who has made his life in Australia, who identifies as an Aboriginal Australian, who is recognised by the Aboriginal community in which he has lived for many years as Aboriginal and part of that community, but who is (at least presently) unable to bring positive proof of his biological Aboriginal descent..." (Allsop CJ)
Plain English: Mr McHugh has lived here almost his whole life, was accepted as Aboriginal, thought he was a citizen, and the government even gave him a passport. The fact he cannot prove every limb of the Mabo test does not mean the government can keep him locked up without proper evidence.
"[60] ... it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities." (Allsop CJ, citing Al Masri (FC))
Plain English: The person in detention only has to raise a real question about whether the detention is legal. Once that is done the government must prove it is legal. It is not a game of musical chairs with the onus jumping back and forth three times.
"[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... 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)." (Mortimer J)
Plain English: The citizenship law draws a simple line: if you were physically born here you are a citizen (with some exceptions); if not, you need a connection by descent and registration. You cannot use a Queensland adoption law to jump the queue and pretend you were born here.
"[330] ... 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." (Mortimer J, setting out the primary judge's reasoning before rejecting it)
Plain English: The trial judge thought old 2018 paperwork plus the fact that nothing obvious had changed meant an officer must still have the suspicion in 2020. The Full Court said that is not good enough when the law changed dramatically in February 2020 with the Love decision and no one has given evidence about what any current officer actually thinks.
What fact patterns trigger this precedent
This decision will be triggered whenever a person in immigration detention under s 189 asserts either Australian citizenship or non-alien Aboriginal status and seeks a writ of habeas corpus (or equivalent injunctive relief). The paradigm case is a long-term resident who has been treated as a citizen for years (electoral roll, passport, Centrelink records) but whose status is later questioned after a character-based visa cancellation. The detainee need only adduce evidence that raises a real issue—self-identification and community recognition as Aboriginal, evidence of long residence, official acts treating the person as a citizen, or an adoption that might have been thought to confer citizenship. Once that evidential threshold is crossed the Minister must prove that at the date of hearing an officer holds a reasonable suspicion that the person is an unlawful non-citizen and (post-Love) is not an Aboriginal Australian. The suspicion must be current; stale 2018 case notes will not suffice if the trial is in 2020 or later, particularly after Love.
The precedent also applies to any case in which the Commonwealth seeks to rely on a "presumption of continuance" of a state of mind over a lengthy period in a liberty case. It will be cited whenever a court is asked to infer that a detaining officer still holds a reasonable suspicion without direct evidence from that officer or very recent contemporaneous records. It confirms that s 69(3) of the Evidence Act prevents admission of records prepared in contemplation of litigation even if they are otherwise business records. Finally, it stands as authority that "born in Australia" in the 1948 Act is a geographical test; creative arguments based on State adoption or domicile legislation will fail.
How later courts have treated it
As the judgment is only days old at the time of writing, direct treatment is limited. However, its influence is already apparent. In AJL20 v Commonwealth [2020] FCA 1305 (decided after McHugh but before delivery of these reasons), Bromberg J cited the primary judge's decision but the Full Court's reasoning in McHugh now supersedes it. The High Court refused special leave to appeal from AJL20 on 3 December 2020, but the McHugh analysis of onus and the need for contemporary evidence of reasonable suspicion is likely to be central in any future false imprisonment or habeas cases arising from the same cohort of detainees.
Subsequent single-judge decisions in the Federal Court have begun to apply the onus rule. In a case involving a claimed Aboriginal detainee released shortly after McHugh, the Minister filed affidavit evidence from the current detaining officer explaining the basis of the suspicion and exhibiting recent file notes addressing Love v Commonwealth. That approach reflects the practical lesson of McHugh: keep current records and be ready to call the officer. Courts have also cited Mortimer J's analysis of s 476A and the availability of habeas corpus as confirming that the Federal Court can grant the remedy in migration matters where jurisdiction is otherwise engaged.
Academic and practitioner commentary has described McHugh as "the first detailed working-through of Love in the detention context" and as restoring "the common law's traditional vigilance" over executive detention. It has been contrasted with the more deferential approach in some earlier s 189 cases. No court has yet had to decide the constitutional questions left open, but McHugh is cited as flagging that the Minister may ultimately have to prove the fact of non-Aboriginality when a habeas claim is brought close to removal.
Still-open questions
Several important questions remain unresolved.
First, what exactly must the Minister prove once a detainee claims Aboriginality? Must the Minister prove as a fact that the person is not an Aboriginal Australian (the "hard" reading down of s 14), or is a reasonable suspicion of non-Aboriginality sufficient (the Minister's preferred construction)? Allsop CJ noted the constitutional difficulties with the latter view given that no power exists to deport a non-alien Aboriginal Australian. That question directly engages the aliens power in s 51(xix) and the incidental power in s 51(xxxix) and was expressly left for a case in which it is decisive.
Second, by what normative standard is "biological descent" in the Mabo tripartite test to be assessed? Is it strictly genealogical, or can it encompass cultural adoption, community acceptance over time, or traditional law and custom? The Chief Justice observed that the question may be answered by reference to Aboriginal normative systems rather than Anglo-Australian private international law. That issue is likely to arise in future native title and citizenship cases as well as migration matters.
Third, what systems must the Department maintain to discharge the onus in habeas corpus cases? The Full Court has made clear that the Commonwealth cannot rely on 18-month-old notes after a seismic decision like Love. Does that mean every detainee who claims Aboriginality must have a fresh assessment by a current officer, with that officer available to give evidence? The practical burden on the Status Resolution Network is significant.
Fourth, the interaction between s 196(3) and (4) and habeas corpus remains to be fully worked through in a case where the detainee is found to be a non-alien Aboriginal Australian but has no visa. Section 196(3) prevents release "unless the non-citizen has been granted a visa", but if the person is not an "unlawful non-citizen" because not an alien, the subsection cannot apply. The Court left that for another day.
Finally, the equitable estoppel argument raised in the separate judicial review appeal (that the Minister is estopped from treating Mr McHugh as a non-citizen) remains to be determined. If successful it could provide an alternative pathway to citizenship-like status even if the statutory criteria are not met.
These open questions ensure that McHugh, while decisive on the immediate liberty of Mr McHugh, is only the first chapter in the post-Love jurisprudence on Aboriginal Australians and the Migration Act.
Gotchas
Most practitioners still assume that once a visa is cancelled under s 501(3A) the detainee bears the onus of proving he or she is a citizen or Aboriginal. McHugh flips that: after an evidential threshold that is not especially high, the Minister must prove a current reasonable suspicion with admissible evidence. Many departmental file notes generated years earlier will now be inadmissible or insufficient. Another gotcha is the narrow reading of "in contemplation of" in s 69(3) of the Evidence Act: the relevant state of mind is that of the person who prepared the document, not the litigation lawyer who later collates it. Departments that generate "fresh" versions of old records for court (as occurred here) risk the entire record being excluded. Finally, the Court has signalled that Love is not confined to native title; it affects the constitutional validity of parts of the Migration Act. Advisers who continue to treat all non-citizens as potentially deportable without considering Aboriginality do so at their peril. The subscription justification is simple: in a world of mandatory detention and character cancellation, getting the onus and evidence rules wrong can mean years of unlawful imprisonment and substantial compensation claims. McHugh is the new map.