Case S173/2021

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

Case No.


Case Information


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 be overturned – Whether applicant satisfies tripartite test despite not being biologically descended from Indigenous people – Whether applicant alien.


11/10/2021 Hearing (Single Justice, Canberra by video connection)

18/10/2021 Cause Removed

08/11/2021 Hearing (Single Justice, Canberra by video-connection)

29/11/2021 Hearing (Single Justice, Canberra by video-connection)

02/12/2021 Notice of discontinuance

06/12/2021 Written submissions (Applicant)

20/12/2021 Written submissions (Respondents)

04/02/2022 Reply