Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423

Federal Court of Australia

Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 File number(s): NSD 500 of 2020

Judgment of: SC DERRINGTON J

Date of judgment: 15 November 2021

Date of publication of reasons: 19 November 2021

Catchwords: MIGRATION – where applicant a New Zealand citizen – where applicant identifies with and is accepted by an Aboriginal community – where applicant claims Aboriginal descent through traditional and customary law – whether applicant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – whether applicant entitled to a writ of habeas corpus – where constitutional question of applicant's status removed to the High Court of Australia under s 40(1) of the Judiciary Act 1903 (Cth) – whether detaining officer held reasonable suspicion that applicant is not an Aboriginal Australian MIGRATION – where visa cancelled on character grounds – whether Minister erred in exercising discretion not to revoke visa cancellation by failing to give proper, genuine and realistic consideration to representations made by the applicant – whether Minister's findings unreasonable MIGRATION – validity of invitation under s 501CA(3) of the Migration Act to make representations – whether 'period' in reg 2.52 of the Migration Regulations 1994 (Cth) accurately crystallised in the invitation – whether power in s 501CA(4) nevertheless operative ADMINISTRATIVE LAW – habeas corpus – jurisdiction of Federal Court of Australia – relevant principles

Legislation: Constitution s 51(xix) Acts Interpretation Act 1901 (Cth) s 15A Evidence Act 1995 (Cth) s 136 Judiciary Act 1903 (Cth) ss 39B, 40(1), 79B Migration Act 1958 (Cth) ss 13, 14, 119, 120, 189, 196, 198(2B), 476A, 499(1), 499(2A), 501, 501(3A), 501CA Migration Regulations 1994 (Cth) r 2.52