A New Zealand man who opposed deportation on the grounds that he has been culturally adopted as an Aboriginal has won an order freeing him from immigration prison.
On Friday, the federal court ruled that former Home Secretary Peter Dutton “failed to take any degree of consideration” into Shayne Montgomery’s claim of aboriginal origin, and ordered the government to reconsider his visa cancellation.
But despite the order for Montgomery to be released from detention, his future is still uncertain, as the decision not to recover his visa can simply be reconsidered after considering his aboriginal origin.
In February 2020, the High Court ruled that Aboriginal Australians could not be foreigners and could not be deported, in the landmark Love and Thoms decision that the Commonwealth is now seeking to overturn.
Montgomery has asked the district court to extend the category of “non-citizen, non-foreigner” to persons who are usually adopted as aborigines, even though they have no aboriginal biological lineage.
Before considering this aspect of the case in 2022, the federal court was first asked to rule on Montgomery’s allegation of procedural error in Dutton’s decision in May 2020 not to recover his visa.
According to court documents, Montgomery was born in 1981 in New Zealand before coming to Australia in 1997 to live with his mother and stepfather.
But after Montgomery was convicted of a non-violent aggravated burglary in March 2018, the Australian government canceled his visa. He was taken into immigration custody following his release from prison on February 21, 2019.
Montgomery claimed that because he has been culturally adopted by the Mununjali people, he is Aboriginal, despite the fact that he is not biologically descended from any native.
Montgomery’s proof of his Aboriginal origin includes his inauguration on Stradbroke Island; to be recognized by a Mununjali woman, Gamma Merle, and her family as their “son”; and his sense of belonging, and that his “spiritual guides and ancestors are Aborigines.”
Montgomery claimed that Dutton had failed to take “correct, genuine and realistic consideration” to what he had said about his aboriginal origin and “the consequences of this status on the effect of his removal”.
Judge Sarah Derrington found that Dutton had acknowledged representations of Montgomery’s aboriginality “by considering the strength of his ties to society”, but made no statement about his submission that he is an aboriginal Australian.
“There is no indication in the Minister’s reasoning that the Minister has taken any or any real consideration to the allegation that Mr Montgomery was an Aboriginal Australian and that the decision in love did not preclude such a conclusion,” she said.
By failing to “give any degree of consideration” to the claim, Dutton committed a jurisdictional error, she said.
Derrington noted that the Commonwealth had accepted in the case that Montgomery “both identifies as an Aboriginal Australian and has been accepted by a traditional Aboriginal group as a member of this group”.
The judge noted that Montgomery has received Abstudy, a Commonwealth social security benefit “specifically targeted at Aborigines”.
In those circumstances, the judge found that Montgomery’s detention officer’s suspicion that he was not an Aboriginal Australian was ‘unreasonable’ and he was therefore entitled to an order releasing him from immigration detention.
In his decision, Dutton had acknowledged that Montgomery’s seven-year-old daughter, Wyntah-Willow, would be adversely affected by his deportation.
At the October hearing, Montgomery’s lawyers argued that Dutton had hidden his reasons behind the “blurred” understatement, which showed insufficient appreciation that Wyntah-Willow would actually be orphaned.
Derrington said that although Dutton’s conclusion was “expressed as meaningless”, Montgomery had failed to show any representation that Dutton had not considered.
The judge found that Montgomery’s “only real complaint” was that insufficient weight had been given to their interests, but it was a matter for the minister and not the court to decide.
Derrington rejected Montgomery’s argument that it was “legally unreasonable” for Dutton to conclude that if he were to insult Australian society, it could be harmed.
A spokesman for the Department of Home Affairs told the Guardian Australia that it did not comment on individual cases for privacy reasons, but was aware of the verdict.
“The department is considering the implications of the decision and will consider all options, including a complaint or making a new decision,” the spokesman said. “It would be inappropriate to comment further at this time.”