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

This matter came before the High Court of Australia concerning a special case stated between Shayne Paul Montgomery (the applicant) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the Minister for Home Affairs (the respondents). The dispute centred on the inclusion of extensive affidavit material in the special case and the precise framing of the legal question to be determined by the Court. The applicant sought to annex numerous affidavits, including his own, those of community members and elders, and an expert anthropologist's report, arguing this material was essential for the Court to understand his position as an adopted member of an Aboriginal community. The respondents, however, contended that annexing such material would undermine the utility of the special case procedure, which relies on agreed facts, and could lead to uncertainty and a lack of precision.

The legal issues before the Court involved two primary matters: the extent to which factual material, beyond agreed facts, could be included in a special case, and the appropriate formulation of the constitutional question concerning the Parliament's power to treat the applicant as an alien for the purposes of Commonwealth legislation, specifically the *Migration Act 1958* (Cth). The applicant argued that the affidavits provided necessary context and detail to fully explain his unique circumstances, likening them to an appeal book containing trial findings. Conversely, the respondents maintained that the special case itself should contain all material facts, and that the inclusion of affidavits would create inconsistencies and obscure the agreed factual basis, potentially leading to the Court being asked to draw inferences from evidentiary material rather than rule on agreed facts.

The Court, through His Honour, expressed a strong preference for the special case procedure to be based on agreed facts, noting that it was not designed for parties to "roam at large" by reference to evidence or to resolve factual disputes. His Honour indicated that the inclusion of extensive affidavit material, from which different views of the facts might emerge, would be inconsistent with the Court's expectations for an agreed factual basis. Regarding the legal question, His Honour indicated an understanding that the core issue was whether it was open to the Commonwealth Parliament to treat the applicant as an alien for the purposes of the *Migration Act*, and that the Commonwealth's proposed framing, with a slight amendment to specify the Act, was not problematic. The parties were given an opportunity to further negotiate the agreed facts and the precise wording of the question, with a potential remitter to the Federal Court as an alternative if agreement could not be reached.