Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor; Attorney-General of the Commonwealth v Minister for Immigration, Citizenship, Migrant Services and...

In proceedings before the High Court of Australia, Shayne Paul Montgomery sought leave to discontinue his application (S173/2021), with the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the Minister for Home Affairs agreeing to pay his costs. Concurrently, the Attorney-General of the Commonwealth sought the removal of an appeal from a Federal Court decision into the High Court (C21/2021). The dispute arose from a Federal Court grant of habeas corpus to Mr Montgomery, releasing him from detention. The Commonwealth's appeal concerned the interpretation of section 189 of the Migration Act 1958 (Cth) and the constitutional validity of its application, particularly in light of the High Court's decisions in *Love and Thoms*.

The central legal issues before the High Court were whether the Commonwealth's appeal from the habeas corpus order was competent, and if so, the substantive constitutional questions regarding the interpretation of "alien" for the purposes of the Migration Act and the requirement for biological descent to satisfy the tripartite test. Mr Montgomery's legal team argued that an appeal from a habeas corpus order discharging a person from detention is generally not competent unless specifically provided for by legislation, citing historical common law principles and Australian case law. The Commonwealth contended that such appeals are competent, relying on recent High Court and Federal Court decisions and arguing that the constitutional questions raised were of significant public importance and required urgent resolution.

The High Court, as a single Justice, indicated that it would not determine the complex question of the appeal's competence, nor the substantive constitutional issues. Instead, it was inclined to accept the Solicitor-General's submission that these matters, including any challenge to competence or the need for leave to appeal, could and should be resolved by a Full Court of the High Court. The Court noted that the removal of the appeal into the High Court was an entitlement of the Attorney-General as of right when constitutional interpretation was involved. The Court proposed to make orders for the removal of the appeal, subject to agreeing on a timetable for the filing of submissions, allowing both parties adequate time to prepare for the substantive hearing.