Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246

Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246

The applicant's detention under s 189(1) of the Migration Act is lawful as the detaining officer reasonably suspected, on clear evidentiary grounds, that he is not an Aboriginal Australian within the constitutional meaning as adopted by the majority in Love/Thoms, since there is no evidence of biological descent from Aboriginal people. Acceptance into a community or adoption without Aboriginal ancestry does not displace alien status. Pending the Minister’s decision on revocation of visa cancellation, the applicant is lawfully detained for the purpose of determining immigration status and not for removal. NZYQ has no application. Application dismissed.

Parties
Applicant: Samiuela Latu Kapeli; First Respondent: Secretary of Department of Home Affairs; Second Respondent: Minister for Home Affairs
Jurisdiction
Australia
Judgment Date
29 October 2024
Procedural Posture
Application for Writ of Habeas Corpus Under S 39 B Judiciary Act 1903 (cth) and S 23 Federal Court of Australia Act 1976 (cth) / Judgment After Final Hearing
Outcome
Application dismissed
Legal Topics
Immigration Detention, Writ of Habeas Corpus, Alien Status Under Constitution S 51(xix), Meaning of Aboriginal Australian, Interpretation of Migration Act 1958 (cth) S 189, S 196, S 198, Burden of Proof in Habeas Corpus, Revocation of Visa Cancellation, Removal Obligations Under Migration Act
Migration Law Constitutional Law Administrative Law Immigration Detention Writ of Habeas Corpus Alien Status Under Constitution S 51(xix) Meaning of Aboriginal Australian Interpretation of Migration Act 1958 (cth) S 189, S 196, S 198 +3 more

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Parties

Samiuela Latu Kapeli

Applicant

Secretary of Department of Home Affairs

First Respondent

Minister for Home Affairs

Second Respondent

Procedural Posture

Application for Writ of Habeas Corpus Under S 39 B Judiciary Act 1903 (cth) and S 23 Federal Court of Australia Act 1976 (cth) / Judgment After Final Hearing

Legal Issues

  1. 1 Whether applicant is lawfully detained under s 189 of the Migration Act 1958 (Cth)
  2. 2 Whether applicant is an Aboriginal Australian and thus not an alien for the purposes of s 51(xix) of the Constitution per Love/Thoms
  3. 3 Whether lack of Aboriginal biological descent precludes applicant from being outside the aliens power

Ratio Decidendi

The applicant's detention under s 189(1) of the Migration Act is lawful as the detaining officer reasonably suspected, on clear evidentiary grounds, that he is not an Aboriginal Australian within the constitutional meaning as adopted by the majority in Love/Thoms, since there is no evidence of biological descent from Aboriginal people. Acceptance into a community or adoption without Aboriginal ancestry does not displace alien status. Pending the Minister’s decision on revocation of visa cancellation, the applicant is lawfully detained for the purpose of determining immigration status and not for removal. NZYQ has no application. Application dismissed.

Court Disposition

Application dismissed

Orders

  • Applicant's application for a writ of habeas corpus is dismissed.
  • Applicant to pay respondents' costs (subject to right to apply to vary).