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

Catchwords

Constitutional law – Aliens power – Immigration detention – Indigenous Australians – Where applicant born in and citizen of New Zealand and not Australian citizen – Where applicant's parents and ancestors not Aboriginal Australian or Torres Strait Islanders – Where applicant granted visa to live in Australia in 1997 – Where Mununjali people Indigenous society existing in Australia since prior to 1788 – Where applicant identifies as member of Mununjali people, recognised by Mununjali elders and by Mununjali traditional law and customs as such – Where, in 2018, applicant's  visa cancelled – Where in 2019, applicant taken into immigration detention – Where, in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3, majority of High Court held Aboriginal Australian who satisfies tripartite test identified in Mabo v Queensland (No 2) (1992) 175 CLR 1 beyond reach of aliens power in s 51(xix) of Constitution – Where applicant commenced proceedings in Federal Court of Australia, relevantly seeking declaration not alien within meaning of s 51(xix) following Love/Thoms – Whether decision in Love/Thoms should be overturned – Whether applicant satisfies tripartite test despite not being biologically descended from Indigenous people – Whether applicant alien.

Courts – Jurisdiction – ­Appeal from single judge of Federal Court of Australia – Habeas corpus – Competent court – Where appellate jurisdiction of Federal Court defined by s 24(1)(a) of Federal Court of Australia Act 1976 (Cth) – Where cause removed was appeal to Full Court of Federal Court from orders of single judge – Where single judge exercised original jurisdiction, relevantly issuing writ of habeas corpus – Whether appeal lies from order for issue of writ of habeas corpus.