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

In Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Federal Court was tasked with determining the legality of the detention of Mr. Montgomery, a New Zealand citizen who claims to be of Aboriginal descent. The central legal issues revolved around whether Mr. Montgomery's detention under section 189 of the Migration Act 1958 was lawful given his claimed Aboriginal status, and whether the Minister for Home Affairs had properly exercised his discretion in not revoking the visa cancellation imposed on Mr. Montgomery. Furthermore, the court had to consider whether the Minister's decision not to revoke the visa cancellation was unreasonable and whether the invitation to make representations under section 501CA(3) of the Migration Act was valid.

The court found that Mr. Montgomery's detention was unlawful because he was not an 'alien' within the meaning of section 51(xix) of the Australian Constitution, as he was recognised by an Aboriginal community as Aboriginal. Consequently, he was entitled to a writ of habeas corpus, which would mandate his release from detention. The court also held that the Minister had failed to give proper, genuine, and realistic consideration to Mr. Montgomery's representations regarding his Aboriginality, thus exercising his discretion unreasonably. Additionally, the court determined that the invitation to make representations was valid despite a technical issue with the period specified, allowing the Minister's power under section 501CA(4) to remain operative.

The court granted Mr. Montgomery leave to amend his application to include new grounds for judicial review, dismissed his application for leave to introduce a new ground, quashed the Minister's decision not to revoke the visa cancellation, and remitted the matter back to the Minister for reconsideration in accordance with the court's reasons. The court also ordered that Mr. Montgomery be released from detention forthwith and dismissed two grounds of his judicial review application while upholding another ground.