Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery

The High Court of Australia considered an application by Shayne Paul Montgomery for a temporary stay or deferral of the hearing of an appeal by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The appeal concerned orders made by SC Derrington J of the Federal Court of Australia, which included the issue of a writ of habeas corpus and the release of Mr Montgomery from detention. The Minister's appeal to the Full Court of the Federal Court raised questions regarding the High Court's decision in *Love v The Commonwealth*. Subsequently, the entire appeal was removed to the High Court pursuant to s 40(1) of the *Judiciary Act 1903* (Cth).

The legal issues before the High Court were whether to grant Mr Montgomery's application for a stay or deferral of the appeal hearing, and whether the Minister's appeal against the habeas corpus orders was competent. Mr Montgomery sought the deferral pending the Minister's reconsideration of the revocation of the cancellation of his visa, arguing that a favourable decision on the visa reconsideration could render the appeal moot. He also contended that the Minister had taken an unreasonably long time to decide the revocation application.

The Court reasoned that Mr Montgomery's entitlement to liberty was based on the habeas corpus orders, and the Minister's appeal was directly relevant to determining the lawfulness of his detention. The Court found that the existence of a right to visa reconsideration did not impede the hearing of the appeal, nor was it a ground for deferral. The Court rejected the submission that the Minister had been unreasonably dilatory in deciding the revocation application, noting ongoing provision of material by Mr Montgomery's representatives. The Court distinguished the present case from situations involving the prudential approach to constitutional questions, as the appeal had come before the Court by way of appeal and the issues required resolution by the High Court. The Court concluded that no good reason had been shown to delay the hearing of the appeal, and that a court's duty is to hear and determine cases before it.

The application for a stay or deferral of the appeal hearing was refused, and the costs of the application were reserved.