Migration, detention and lawfulness: High Court holds detention of Brendan Craig Thoms was not unlawful due to ‘reasonable suspicion’ of the officer

Thoms v Commonwealth of Australia [2022] HCA 20

Brendan Craig Thoms, a New Zealand citizen and Aboriginal Australian, was detained in 2018 following a visa cancellation.  He was released following the decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Love) (the case note for which can be viewed here). In the present case, Thoms pursued a claim of damages against the Commonwealth for unlawful imprisonment and the High Court, dismissing his claim, determined his detention was not unlawful. 

Facts 

Thoms is a citizen of New Zealand and held a temporary visa to reside in Australia following his entry to the country in 2003. On 27 September 2018, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The following day, Thoms was detained under s 189(1) of the Act, which provides: 

If an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person. 

Three migration officers employed by the Department of Home Affairs were responsible at different times for Thoms’ detention. Each in turn alleged to have held, upon regular review, a reasonable suspicion that he was an unlawful non-citizen, including after he presented them with proof of his Aboriginal lineage and identity. The officers’ reasonable suspicion was yet to be proven at this stage. 

The decision in Love held that Mr Thoms was not an “alien” within the meaning of s 51(xix) of the Australian Constitution as he is an Aboriginal Australian. The High Court acknowledged that the “aliens” power under s 51(xix) is the constitutional head of power under which s 189(1) of the Act operates. It was then determined that Thoms could not be an “alien” as he is an Aboriginal Australian and accordingly s 189(1) did not permit his detention. He was therefore immediately released. 

On this same basis, Thoms in the present case argued that s 189(1) could not apply to him.  He also argued s 189(1) is valid only in its application to unlawful non-citizens who are also aliens. Therefore, any suspicion held by the officer is irrelevant.  In the alternative, no steps were taken by the Commonwealth to enquire into his assertion that he was an Aboriginal Australian, which the officers had considered irrelevant. He argued that any suspicion held that he was an alien or unlawful non-citizen could not be a reasonable one. 

Decision 

The Court unanimously rejected Thoms’ argument and accepted the Commonwealth’s argument that Thoms’ detention was not unlawful. 

The Court followed the decision of Ruddock v Taylor (2005) 222 CLR 612 (Taylor), which concerned a British citizen whose temporary visa was cancelled and was similarly detained under s 189(1). In that case, the detention of Mr Taylor was valid on the basis that the officer reasonably suspected him to be an unlawful non-citizen and it was not necessary to determine Mr Taylor’s actual immigration status.  

Chief Justice Kiefel and Justices Keane and Gleeson (with whom Justice Gageler agreed) cited Taylor and explained that, as in that case, the construction of s 189 is such that it not only extends to officers who know that a person is an unlawful non-citizen, but also to cases where the officer reasonably suspects that the person is an unlawful non-citizen. What constitutes reasonable suspicion is to be judged at the time the detention was effected (at [21]) and the decision in Love did not retrospectively apply to the effect that the officers’ suspicion of Thoms’ unlawfulness was not reasonable (at [43]-[44]). 

The reasonable suspicion held was objectively sustainable on the facts and law as understood at the time the suspicion was formed. It was irrelevant that Thoms was later found to not be an alien under s 51(xix) of the Constitution as a law “may still be constitutionally valid even if its operation depends upon a reasonable suspicion” (at [36]). 

While the majority concluded that the terms “alien” and “non-citizen” are synonymous, Justices Gordon and Edelman held that they are not.  They said further that the concept of “aliens” also pre-supposes persons who are “non-aliens, persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word” (Pochi v Macphee (1982) 151 CLR 101 at 109). Parliament may only subject a person to a law with respect to aliens if that person is in fact and law an alien (at [62]). Following the decision in Love, Aboriginal Australians are recognised as not being within the reach of the “aliens” power. 

Justices Gordon and Edelman concluded that s 189(1) remains valid, even in relation to non-aliens where they are reasonably suspected of being unlawful non-citizens. However, this depends on there being no objective facts or law in existence which are capable of being known to a reasonable officer at the time the officer holds that suspicion, and which would indicate to the officer that the person was a non-alien. They emphasised that prior to the decision in Love the existing facts and law at the time of Mr Thoms’ detention were such that an officer reasonably suspected him to be an unlawful non-citizen. It is the reasonableness of the suspicion as to Mr Thoms' status as an unlawful non-citizen which created the sufficient connection to the “aliens” power (at [78]). 

Commentary 

This decision confirms that it remains possible for Aboriginal Australians to be subject to immigration detention despite their recognised status as not being within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. However, the lawfulness of the detention under s 189(1) of the Act depends on the reasonable suspicion of the officer that the person detained is an unlawful non-citizen, to be determined objectively on the facts and law available for the duration of the detention. Ongoing detention past the point that evidence is provided of the person’s status as an Aboriginal Australian, will likely render the detention from that point unlawful. 

The full case can be read here.  

Eddy Mizrahi is a lawyer at Hall & Wilcox