Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to rely on his proposed second further amended originating application in the form annexed to the affidavit of Arti Chetty dated 19 October 2021 in so far as it amends Grounds One, Two, Three, and Eight, and deletes Ground Nine.

2.    The application for leave to introduce the proposed new ground be dismissed.

3.    A writ of habeas corpus issue.

4.    An order in the nature of habeas corpus be made.

5.    The applicant be released from detention forthwith.

6.    Grounds One and Two of the application for judicial review be dismissed.

7.    Ground Three of the application for judicial review is upheld.

8.    A writ of certiorari issue quashing the Minister’s decision made on 7 May 2020 not to revoke the mandatory cancellation of the applicant’s visa.

9.    The matter be remitted to the Minister for determination according to law and in accordance with the reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    The applicant, Mr Shayne Montgomery, is a citizen of New Zealand. He arrived in Australia on 11 August 1997, aged 15, and was granted a Class TY Subclass 444 Special Category (Temporary) visa (Visa).

2    On 10 July 2018, a delegate of the Minister cancelled Mr Montgomery’s visa as required by s 501(3A) of the Migration Act 1958 (Cth). It is not in dispute that Mr Montgomery did not pass the character test in s 501(3A)(a)(i) of the Migration Act, because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more).

3    Mr Montgomery has been in immigration detention since February of 2019 and prior to that, had been incarcerated for 11 months following his criminal conviction (Affidavit of Shayne Paul Montgomery affirmed 7 April 2021(Aff-SPM) at [2]).

4    Mr Montgomery claims to be an Aboriginal Australian. He says he is a Mununjali man and does not need to have a biological Aboriginal ancestor to be Aboriginal according to the traditional laws and customs of the Mununjali People (Aff-SPM at [110]-[111]). The Minister accepts that Mr Montgomery identifies as an Aboriginal Australian, has been accepted and recognised as a Mununjali man by persons enjoying traditional authority amongst that society, but does not accept that he is an Aboriginal Australian because he is unable to point to any Aboriginal ancestor to whom he is biologically related.

5    Mr Montgomery seeks a writ of habeas corpus on the basis that, as an Aboriginal Australian, his detention is unlawful under s 189 of the Migration Act because he is a ‘non-citizen non-alien’. He also seeks judicial review of the Minister for Home Affair’s decision not to revoke the cancellation of his Visa.

6    On Monday 15 November 2021, I made orders in terms set out below in paragraph [25] and indicated to the parties that my reasons for judgment would be published at a later date. These are those reasons.

Procedural history

7    This matter began on 5 May 2020 as an application seeking a writ of mandamus brought pursuant to s 39B of the Judiciary Act 1903 (Cth) requiring the Department of Home Affairs and the Minister to consider and determine the revocation of the mandatory cancellation of Mr Montgomery’s Visa made by a Request for Revocation dated 12 July 2018. The Minister’s decision not to revoke the cancellation of the Visa then followed with some alacrity on 7 May 2020. Mr Montgomery was notified of the Minister’s decision on 8 May 2020.

8    Mr Montgomery amended his application to seek judicial review of that decision, made under s 501CA of the Migration Act, under s 476A(1)(c) of the Migration Act and s 39B of the Judiciary Act. The procedural history reveals several amendments to the originating application first filed on 5 May 2020.

9    On 2 July 2020, Mr Montgomery filed an amended originating application by which he raised his Aboriginality and the consequence of this status on his removal, or the Minister’s power to remove him, if he was determined to be a ‘non-citizen non-alien’.

10    On 24 August 2020, a Notice of a Constitutional Matter was filed by Mr Montgomery, pursuant to s 79B of the Judiciary Act. The constitutional issue was expressed in the Notice in the following way:

3.     In the process of seeking revocation of the visa cancellation, the Applicant and his representatives made various representations to the Minister relating to the Applicant’s Aboriginality. The Applicant contends that these representations broadly evidence the mutual recognition between the Applicant and Aboriginal Elders that the Applicant is an Aboriginal person. The Applicant submitted that he was not an ‘alien’ for the purposes of section 51(xix) of the Constitution.

4.    Despite the Minister’s ‘acknowledging’ the various representations and evidential support for the Applicant’s Aboriginality, the Applicant alleges that the Minister fails to deal with the Applicant’s representations that his Aboriginality meant that he was not an alien for the purposes of section 51(xix) of the Constitution since the High Court in Love v Commonwealth of Australia [2020] HCA 3 (Love) left open the identification of Indigenous people to the laws and customs which allocate authority to Elders.

11    None of the Attorneys-General indicated that he or she would intervene in the proceeding.

12    A further amended originating application was filed on 9 November 2020 by which Mr Montgomery sought a writ of habeas corpus, a declaration that he is not an ‘alien’ within the meaning of s 51(xix) of the Constitution and an order requiring that he not be detained under ss 189 and 196 of the Migration Act, an order that the Minister’s decision be quashed and a writ of mandamus directed to the Minister requiring her to determine the application according to law. Pursuant to that document, Grounds 8 and 9 provided:

Ground Eight

8.     The Applicant is entitled to a writ of habeas corpus as he is not an alien for the purposes of the Constitution as he is Aboriginal and therefore cannot be detained as an “unlawful non-citizen” under the Migration Act 1958 (Cth).    

Ground Nine

9.    Further, or alternatively to Ground 8, the Applicant is not an alien for the purposes of the Constitution as he is Aboriginal and therefore the Minister does not have the power to detain, remove or deport him from Australia as an “unlawful-non-citizen” under the Migration Act 1958 (Cth).

13    A further Notice of a Constitutional Matter was filed by Mr Montgomery on 23 December 2020. Again, none of the Attorneys-General indicated that he or she would intervene in the proceeding.

14    On 11 October 2021, after application was made to the High Court of Australia by the Minister pursuant to s 40(1) of the Judiciary Act, Mr Montgomery’s application for a writ of habeas corpus, for a declaration that he is not an ‘alien’ within the meaning of s 51(xix) of the Constitution, and an order requiring that he not be detained under ss 189 and 196 of the Migration Act, to the extent that the relief is sought on the basis of Grounds 8 and 9 of the further amended originating application, was removed to the High Court.

15    To the extent that Mr Montgomery’s application for a writ of habeas corpus is based only on the lawfulness of his detention under s 189 of the Migration Act, that issue remains for this Court to determine.

16    Subsequent to that skirmish in the proceedings, Mr Montgomery sought leave, by interlocutory application filed on 19 October 2021, to rely on a second further amended originating application filed on 19 October 2021, which narrowed the grounds of review, including by deleting what had been Ground Nine in the previous iteration of the originating application, introducing a new ground, and amending the prayers for relief.

17    The Minister did not oppose the amendments made in respect of what have become Grounds One (but as to particular (d), only to the extent that it was a particular and not a free-standing allegation of jurisdictional error), Two, Three, and Eight, nor the deletion of Ground Nine. The grounds of judicial review ultimately relied on at trial, and accepting the characterisation of particular (d) to Ground One as no more than that, were as follows:

Ground One

The Minister erred in exercising his discretion under s 501CA by failing to give proper, genuine and realistic consideration to the representations made by the Applicant regarding the best interests of his three minor children.

                Particulars

a.    The Minister failed to consider the long-term psychological and cultural impact, including trauma, of the Applicant’s removal on his Aboriginal children, Tahrel Robert Shane Montgomery (aged 15) and/or Saphire Tierra Montgomery (aged 12), in the context of:

i.    the Applicant’s Aboriginality;

ii.    the children’s Aboriginality;

iii.    the mother of Saphire Tierra Montgomery, Marion Ivers, being a child of the stolen generation; and

iv.    the children having no foreseeable prospect of any personal and direct contact with their father.

b.    The Minister failed to consider the long-term psychological and cultural impact, including trauma, of the Applicant’s removal on Wyntah-Willow Montgomery (aged 6), in the context of:

i.    the Applicant’s Aboriginality;

ii.    the Applicant being her sole parent such that she would effectively become an orphan from a young age;

iii.    having no alternative to State care until attaining the age of 18 years; and

iv.    having no foreseeable prospect of any personal and direct contact with her father and sole parent.

c.    The Minister failed to consider the benefits of the Applicant being able to be Wyntah-Willow’s primary carer, both in terms of the benefit of having a parent and having access to her Aboriginal siblings and culture.

d.    The Minister failed to adequately explain in his reasons his understanding and appreciation of why revoking the cancellation is in the best interests of the Applicant’s three minor children.

Ground Two

The Minister erred in exercising his discretion under s 501CA in that his finding that the Applicant posed an unacceptable risk to the Australian community failed to give proper, genuine and realistic consideration to the representations made by the Applicant, or further or alternatively, was legally unreasonable.

                Particulars

a.    There was no evidential basis for the Minister’s finding that there is a risk that Mr Montgomery will “reoffend in a similar manner”, which could result in “physical harm” to members of the Australian community because:

i.    There was no material upon which it could be inferred that any of the Applicant’s previous offending had caused physical harm to any members of the Australian community;

ii.    The Applicant and others in support of him made representations to the Minister that he has not been violent towards anyone (including commit family violence) or caused physical harm to members of the Australian community;

iii.    The Minister did not make any findings that the Applicant had physically harmed any member of the Australian community (including commit family violence).

Ground Three (formerly grounds Three to Five)

The Minister erred in exercising his discretion under s 501CA by failing to give proper, genuine and realistic consideration to the representations made by the Applicant and his representatives of his Aboriginality and the consequences of this status on the impact of his removal.

Ground Eight

The Applicant is entitled to a writ of habeas corpus or relief in that nature because his detention is unlawful as contemplated by s 196(4) Migration Act 1958 (Cth) and is in breach of s 198 of that Act.

18    The Minister opposed leave being granted to include as a new ground:

The Minister erred by purporting to exercise power under s 501CA(4) of the Migration Act 1958 (Cth) when a precondition to the exercise of that power did not exist, namely an invitation in accordance with s 501CA(3) of the Migration Act including because the Applicant has not been invited to make representations in accordance with s 501CA(3)(b).

19    The basis of the Minister’s opposition was first, that this Court has no jurisdiction in respect of a ‘migration decision’ performed under s 501CA other than a decision taken by the Minister personally (s 476A) and, secondly, whilst accepting that the ground is based primarily on two decisions of the Full Court delivered only a month ago (EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174) they relevantly applied the earlier decision of Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578, which had been decided on 12 November 2020. The Minister submitted that there was no explanation as to why the amendment was foreshadowed only a week prior to the hearing in circumstances where an explanation is called for: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [30] and [101]-[102].

20    The Minister also opposed leave being granted to include five new prayers for substantive relief:

Details of relief sought

…

3    Further or alternatively to 2: an order requiring that the applicant not be detained under ss 189 and 196 of the Migration Act 1958 (Cth).

…

6    The Court declares that the Applicant has not been invited in accordance with s 501CA(3) of the Migration Act 1958 (Cth) concerning the decision under subsection 501CA(3) to cancel the visa granted to the Applicant.

7    An order in the nature of mandamus requiring the Minister to give the Applicant a notice and invitation in accordance with s 501CA(3) of the Migration Act 1958 (Cth).

8    An injunction preventing the removal of the Applicant under s 198(2B) of the Migration Act 1958 (Cth) until each precondition is fulfilled, including provision of a notice in accordance with s 501CA(3) of the Migration Act 1958 (Cth).

9    Such further or other remedies, orders or conditions which the Court thinks appropriate or just under ss 22 or 23 of the Federal Court of Australia Act 1976 (Cth), including in any response to any interlocutory application following the delivery of reasons for judgment by this Court.

21    The objection to prayers 6-8 is premised on the objection to the proposed new ground of review. The basis for the objection to prayer 3 is that it is duplicative of prayer 2, which seeks a writ of habeas corpus, and otherwise seeks to restrain the future exercise of a statutory power. Prayer 9 is said to be impermissibly vague.

22    Consequent upon the shifting nature of the issues that are, or are not, to be determined by this Court, the Court now has before it seven sets of submissions:

(a)    Mr Montgomery’s submissions filed on 13 August 2021;

(b)    Mr Montgomery’s supplementary submissions on Ground 5 filed on 28 September 2021;

(c)    The Minister’s submissions filed on 7 October 2021;

(d)    Mr Montgomery’s submissions in reply filed on 19 October 2021;

(e)    The Minister’s submissions in reply filed on 25 October 2021;

(f)    Mr Montgomery’s submissions on habeas corpus filed on 5 November 2021;

(g)    The Minister’s submissions on habeas corpus filed on 10 November 2021.

23    Mr Montgomery read and relied on his own affidavit dated 7 April 2021; the affidavit of Jacqueline Montgomery dated 14 February 2021; three affidavits of Arti Chetty dated 29 January 2021, 9 April 2021 and 19 October 2021; and an affidavit of Alison Mary Battison dated 5 May 2020. Mr Montgomery also read the affidavit of Athol Goltz dated 12 February 2021; the affidavit of Bronwyn Garcia dated 13 February 2021; the affidavit of Ruth James dated 7 April 2021; the affidavit of Keith Davidson dated 18 December 2020; the affidavit of Desmond Sandy dated 20 April 2021; and, the affidavit of Dr Fiona Powell dated 21 May 2021. This latter group of affidavits was admitted as evidence of their existence, not as proof of the contents of the affidavits: Evidence Act 1995 (Cth) s 136.

24    The Minister read and relied on the affidavit of Melinda Anne Jackson dated 10 June 2020; the affidavit of Peter Frank dated 10 August 2020; the affidavit of Shelley Leanne McBroom dated 15 October 2021; and the affidavit of Tigiilagi Eteuati dated 25 October 2021.

25    For the reasons that follow:

(a)    Mr Montgomery should be granted leave to rely on his proposed second further amended originating application in the form annexed to the affidavit of Arti Chetty dated 19 October 2021 in so far as it amends Grounds One, Two, Three, and Eight, and deletes Ground Nine;

(b)    Leave to introduce the proposed new ground should be refused;

(c)    A writ of habeas corpus should issue and an order in the nature of habeas corpus should be made and Mr Montgomery should be released from detention forthwith;

(d)    Grounds One and Two of the application for judicial review should be dismissed;

(e)    Ground Three of the application for judicial review should be upheld;

(f)    A writ of certiorari should be issued to the Minister quashing the decision made on 7 May 2020 not to revoke the mandatory cancellation of Mr Montgomery’s visa;

(g)    The matter should be remitted to the Minister for determination according to law and in accordance with these reasons.

Factual Background

26    Mr Montgomery was born in Auckland, New Zealand on 18 December 1981. He arrived in Australia on 11 August 1997 and has not subsequently returned to New Zealand.

27    Mr Montgomery has an extensive history of criminal offending dating back to August 1998 when he was admonished and discharged for 16 motor vehicle and property offences in the Youth Court of New Zealand, even though he had by that date already arrived in Australia. Between 1997 and 1999, he was found guilty without conviction in the Children’s Court of Queensland and the District Court of Queensland for a variety of offences, for which he received penalties in the nature of bonds, probation and community service orders.

28    Between July 2003 and March 2015, Mr Montgomery was sentenced to fines, bonds, probation, a drug rehabilitation order, community service, and periods of imprisonment of up to two years for offences that included: break and enter, unlawful use of a motor vehicle, stealing, attempted stealing, fraud, wilful damage, unlawful possession of suspected stolen property, possessing dangerous drugs, obstructing police, failure to appear, contravening directions and breaching order. On 11 June 2008, he faced 150 charges in the Magistrates Court in Queensland.

29    On 8 March 2018, Mr Montgomery was sentenced for a total of 14 months imprisonment for an offence of aggravated burglary and commit offence in dwelling. He was placed in immigration detention on 21 February 2019 and has been in custody ever since.

30    On 10 July 2018, Mr Montgomery was issued with a notice of visa cancellation under s 501(3A) on the basis that a delegate of the Minister was satisfied that he did not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. He was invited to make representations to the Minister about revoking the cancellation of the Visa.

31    The following day, Mr Montgomery acknowledged receipt of the notice of visa cancellation and, on 12 July 2018, made a request for revocation of a mandatory visa cancellation under s 501(3A) (Request for Revocation), which was acknowledged by the Department on 20 July 2018.

32    On 4 January 2019, the Department informed Mr Montgomery that it had further information which may be relevant to the decision whether to revoke the decision to cancel his Visa. This information comprised a National Criminal History Check (2018), Sentencing Remarks of the Brisbane District Court (2010), Sentencing Remarks of the Southport Drug Court (2008) and a media article from The Bulletin (2006). Mr Montgomery was invited to comment on this information.

33    On 14 March 2019, the Department informed Mr Montgomery that it had further information which may be relevant to the decision whether to revoke the decision to cancel his Visa. This information comprised a New Zealand Police Report (7 February 2019), a Department file note recording a conversation with his mother in which she advised the Department that Mr Montgomery had not been deported from New Zealand (5 February 2019), and a movement record (15 February 2019). Mr Montgomery was invited to comment on this additional information which he did so by handwritten letter dated 23 March 2019.

34    On 31 May 2019, the Department requested further information from Mr Montgomery, no later than 28 days from the date on which he was taken to receive the letter, being his birth certificate, evidence of his Aboriginality, evidence of Aboriginality of two of his children, and his explanation of his ‘aggravated burglary and commit offence in dwelling’ offence of which he was convicted on 8 March 2018.

35    Less than a week later, on 6 June 2019, the Department invited Mr Montgomery to comment on further information it had received, which comprised information from Western Australian Police Officers relating to Mr Montgomery’s possible involvement in the Outlaw Motorcycle Gang (OMCG).

36    On 13 June 2019, Mr Montgomery provided the Department with documents that were said to evidence the Aboriginality of two of his children, their grandmother and a statutory declaration that he is ‘known in the Aboriginal and Torres Strait Islander community and is recognised by the Northside Elders in the Zillmere community’. On 10 July 2019, he provided evidence of the Aboriginality of a third child.

37    By handwritten letter sent by email on 17 June 2019, Mr Montgomery provided an explanation of his involvement in the offence for which he was convicted on 8 March 2018 and rejected any involvement in an OMCG.

38    On 1 July 2019, Mr Montgomery provided the Department with a copy of his birth certificate.

39    On 13 September 2019, the Department invited Mr Montgomery to comment on further information it had received from the Department of Communities in Western Australia, which comprised concerns or reported incidents of family violence perpetrated by Mr Montgomery, protection order concerns in relation to his youngest child, history of family violence perpetrated by Mr Montgomery towards other children and any action taken by other child protection agencies, and reunification plans for Mr Montgomery and his youngest child.

40    On 24 September 2019, Mr Montgomery responded to this request in a submission prepared on his behalf by a registered migration agent (Submission Challenging s 501C Cancellation).

41    There was no correspondence from the Department in response to this submission, or any of Mr Montgomery’s previous correspondence.

42    Mr Montgomery provided the Department with further evidence of his claim to Aboriginality on 17 April 2020. By letter dated 24 April 2020, the Department, on this occasion through the Australian Government Solicitor (AGS), requested further information regarding Mr Montgomery’s claims to meet the tripartite test in Love v Commonwealth of Australia [2020] HCA 3; 375 ALR 597 (Love). It was stipulated that this evidence should be provided ‘by no later than COB 8 May 2020’.

43    On 28 April 2020, Ms Alison Battisson of Human Rights for All Pty Ltd responded to the request made by the Australian Government Solicitor (HR4A Letter).

44    Mr Montgomery’s originating application for relief under s 39B of the Judiciary Act seeking a writ of mandamus requiring the Department and the Minister to consider and determine the revocation of the cancellation of the Visa was filed on 5 May 2020. Two days later, the Minister made the decision not to revoke the cancellation.

Habeas Corpus

45    As has already been observed above, Mr Montgomery has been in immigration detention since February 2019. In Mashood v Commonwealth [2003] FCA 1147; 133 FCR 50 at [21], Goldberg J said:

Loss or deprivation of liberty, even for a short time, is a matter of irreparable harm. The right to enjoy personal liberty is “the most elementary and important of all common law rights”: Trobridge v Hardy (1995) 94 CLR 147 at 152 per Fullagar J. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 Brennan J said at 523: “The law of this country is very jealous of any infringement of personal liberty…” Liberty is a precious and valued right. Much blood has been shed in defence of liberty. In Preston v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 420, French J said at [27]:

Liberty lost is never recoverable even if partially compensable by damages.

I adopt with respect with his Honour’s observation, although I am inclined to doubt the proposition that liberty lost can be compensated, even partially, by the award of a monetary sum.

46    The approach and principles relevant to an application for an order in the nature of habeas corpus in the context of immigration detention of an Aboriginal Australian under the Migration Act have been explained by the Full Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 358 ALR 405. They may be summarised as follows:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

47    The resolution of Mr Montgomery’s application to this Court for an order in the nature of habeas corpus depends solely on the question of whether a relevant officer ‘knows or reasonably suspects’ that Mr Montgomery ‘is an unlawful non-citizen’. If so, Mr Montgomery must be detained: Migration Act s 189(1). Sections 13 and 14 of the Migration Act define the concepts of lawful and non-lawful citizens:

13    Lawful non-citizens

(1)    A non-citizen in the migration zone who holds a valid visa that is in effect is a lawful non-citizen.

(2)    An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14    Unlawful non-citizens

(1)     A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2)    To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

48    There is no dispute that Mr Montgomery is not a citizen. Nor does he hold a visa because of the operation of s 501(3A). As observed above, ss 13 and 14 must be read down and construed so as not to exceed legislative power: s 15A of the Acts Interpretation Act 1901 (Cth). This is because, in Love, a majority of the High Court decided that an Aboriginal Australian is not an ‘alien’ within the meaning of s 51(xix) and so is not within the reach of the aliens power. The ratio decidendi of Love is the proposition that ‘Aboriginal Australians (understood according to the tripartite test in Mabo (No 2)) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’: Love at [81] per Bell J.

49    That tripartite test for Aboriginality, applied by the majority in Love (at [76] and [81] per Bell J; at [284] per Nettle J; at [366]–[367] per Gordon J; and at [458] per Edelman J) was set out by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70, where his Honour said:

[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

50    Thus, for a person to establish that he or she is an Aboriginal Australian pursuant to this test, the person must satisfy each of three elements. He or she must:

(a)    be a biological descendant of the Aboriginal people;

(b)    personally identify as an Aboriginal person; and

(c)    be recognised as Aboriginal by other persons enjoying traditional authority amongst an Aboriginal society.

51    The question of Mr Montgomery’s Aboriginality for the purposes of s 189 of the Migration Act is not a matter for this Court – it has been removed to the High Court of Australia. The question for this Court is the lawfulness of Mr Montgomery’s detention under s 189.

52    As an applicant for a writ of habeas corpus, Mr Montgomery was required to adduce evidence demonstrating ‘probable cause’, or a ‘case fit to be considered’. The burden then shifts to the Minister, as the detainer, to prove, by clear and cogent evidence, the lawfulness of his detention.

53    Mr Montgomery deposed (Aff–SPM), inter alia:

(a)    ‘I did not realise I was not an Australian citizen until my visa was cancelled on 10 July 2018 while I was in prison. This was a big shock to me and my family as we all thought I was an Australian citizen like the rest of my siblings’ (at [3]).

(b)    ‘I have 5 Australian citizen children. My former partners, and mothers to my four eldest children, Elizabeth Anne Garcia (Lizzie) and Marion Ivers (also known as Shasheer Chapman), are both Aboriginal’ (at [4]).

(c)    ‘I identify as Aboriginal and have been accepted as such by the Mununjali clan of the Yugambeh people of south Queensland. I was reared up by the Bundi/Mitchl/Monsell family within the Mununjali people and initiated at Beaudesert, our country. I am a Mununjali man’ (at [5]).

(d)    ‘I was born in Auckland to my biological mother, Jacqueline Montgomery, and my biological father, Michael Peti…My father is from the Ngapuhi tribe of the Maori people of New Zealand and my mother is Australian. My mother’s lineage goes back a long way in Australia as she has told me that her family arrived in Australia in around the 1830s on some of the first convict boats. My mother does not know if she has an Aboriginal ancestor’ (at [7]).

(e)    ‘I did not grow up with my Maori side of the family and do not know much about my Maori heritage. All I know is that my father and grandmother were Maori. My grandmother told me that their Ngapuhi ancestors married into an Australian Aboriginal clan and that I have Aboriginal ancestors within my family. I do not know if I am directly descended from these Aboriginal ancestors’ (at [10]).

(f)    ‘When I was told that I would be placed in a boy’s home, I asked whether I could be placed with other Maori kids. I think they misunderstood “Maori” as “Murri” and so I was put into Dundalli House, which was a home for Aboriginal boys – for Murri boys’ (at [15]).

(g)    ‘There were about 14 boys at Dundalli House, ranging from between about 15-20 years old…After lunch, we would do cultural education. We learned about Aboriginal culture, including corroboree dance. We would learn the way of the kangaroo and the way of the emu. We would learn about the way of ancestors’ (at [17]).

(h)    ‘Early on, I was allowed to also take part in the cultural learning, but I wasn’t allowed to do the corroboree dance, which I really wanted to learn. Later, after my initiation on Stradbroke Island, I got asked whether I wanted to join in the corroboree dance and I started joining in with the other boys’ (at [18]).

(i)    ‘They knew straight away that I was a Maori kid when I started at Dundalli. I copped grief straight away from the Murri boys’ (at [19]).

(j)    ‘From early on being there at Dundalli, I started going on trips out to Stradbroke Island’ (at [20]).

(k)    ‘I was 16 when I did my initiation. … We would go out with the boys who were doing their initiation. We would get them ready and then they would go with the Elders. While they were doing their initiation, the rest of us boys would be with the other Elders. We would be learning about the Nunkul tribe and the Quandamooka people’ (at [21]).

(l)    ‘After initiation, the Elders took me to Centrelink because I was on youth allowance and they changed my allowance so that I received Abstudy and had those entitlements. I received Abstudy for years – I am not too sure how long exactly but it was for years’ (at [31]).

(m)    ‘In 1998, when I was 16, I met Danny and Gamma Merle. By my 17th birthday, I was living with Gamma Merle and celebrated my birthday with her and the Bundis. Danny and I would spend time at Gamma Merle’s place when I was homeless. Gamma Merle would take care of me and feed me. Very soon, I had my own bedroom and then, sometime after that, Gamma Merle started calling me her son’ (at [35]).

(n)    ‘Gamma Merle passed away in about 2001 or 2002. She was a Mununjali Elder. She treated me like her own. … Because of her, and Gamma Eileen (Gamma’s Merle’s sister), the whole family accepted me’ (at [36]).

(o)    ‘There is an expectation on me, from Uncle Boy, from my ancestors that have passed and from Bronwyn that I share our knowledge and teach our children our ways… not only [am I expected] to take my place in our family but that I do the work that I have been taught to do, share the knowledge of our people as it has been taught to me’ (at [79]).

(p)    ‘I was taken to Beaudesert and spent about 3 months there living on country with the Elders. I underwent initiation. This was not long after my 18th birthday’ (at [86]).

(q)    ‘I was given a totem in the bora ring. … The dreamtime stories are also about the connection between mob, creation and the land. These were the stories I was told. It gave me a connection to the land and to my people. I belong to the land there now’ (at [92]).

(r)    ‘When I learned about my people is when I felt like I belonged. My spirit guides and my ancestors are Aboriginal. It makes me feel like a man. It makes me feel good. It makes me feel my worth. It makes me feel like I am someone. There is a meaning to it – a sense of belonging. I belong to the land here in Australia and to the Mununjali people, my people. I am Mununjali.’ (at [95]).

(s)    ‘While I lived in Brisbane I accessed the same services as the rest of my family. The Aboriginal legal service up there assisted me with legal matters and I went to the Aboriginal health service in Woolloongabba. I used to go see the indigenous team that worked at Centrelink in Fortitude Valley all the time. Dean Saunders doesn’t work there anymore but he was my indigenous liaison person at Centrelink. Everyone knew I was Aboriginal and that I came from the Garcia/Mitchell/Bundi mob’ (at [101]).

(t)    ‘During the time I have been in immigration detention, my representatives and I have provided a lot of information to the Minister and to ABF about my Aboriginal family, children and about my Aboriginal identity. I have been interviewed more than once about being Aboriginal’ (at [102]).

(u)    ‘In an interview in February 2019, I told the Department that I am Mununjali’ (at 103]).

(v)    ‘I can’t remember the exact dates, but I was interviewed three times in the middle of February in 2020 by detention officers. They wanted to know about my biological parents and whether they have Aboriginal ancestry:

(a)    I told them that my biological mother has a long lineage in Australia as her ancestors arrived on some of the first convict boats. I explained she might be Aboriginal but she does not know whether she has a biologically Aboriginal ancestor.

(b)    I told them that my biological father might have Aboriginal ancestors. As I explained at paragraph [10]… .

(c)    I told the officers at the interviews that I was unsure whether I have ancestors who are biologically Aboriginal. They kept asking me whether I knew for sure that I have an Aboriginal ancestor through my biological parents and I said I did not know of anyone. I tried to gather more information for them but I couldn’t find any further information.

(d)    I told them I am an Aboriginal man and that I have undergone initiation on country: (at [104]).

(w)    ‘You don’t have to be biologically born Aboriginal to call yourself Aboriginal, to be Aboriginal. It is the respect that I have earned from my elders and connections I have made with my people and with my spiritual guides to my land and country. I am a proud black man and proud of my people and the knowledge I was taught. I am proud to fly the black, yellow and red flag high. I am most proud of being given the right by my elders to call myself an Aboriginal man, a Mununjali man’ (at 110]).

(x)    ‘I do not need to have a biological Aboriginal ancestor to be Aboriginal. This is the decision of the elders in my family: Gamma Eileen, Gamma Merle, Mama B, Uncle Laurence, Uncle Robert and Uncle Athol. They have the authority to make this decision. They have the respect and the knowledge. They educated me in our customs, our traditional ways. I went through their process and I earned their respect. They have taken me in and class me as their own. I am an Aboriginal man and this is my country’ (at [111]).

54    Some of these points were made to the Minister in submissions in support of the revocation of the visa cancellation, in particular; in his Request for Revocation of a Mandatory Visa Cancellation dated 12 July 2018, in his Submission dated 24 September 2019, in the certificates of Aboriginality provided to the Minister on 17 April 2020, and in the letter sent on his behalf to the Minister from HR4A dated 28 April 2020.

55    This material was sufficient for Mr Montgomery to ‘put in issue’ the lawfulness of, and justification for, his executive detention. Thus, the burden of proof lay on the Minister to show ‘positive authority’ or ‘lawful authority’ at the time of trial for Mr Montgomery’s detention.

56    The Minister relied on the evidence of Mrs Shelley McBroom, the Detention Status Resolution Officer employed by the Department with responsibility for the detention of Mr Montgomery, to prove that an officer held a reasonable suspicion that Mr Montgomery was not an Aboriginal Australian. Her affidavit, affirmed on 15 October 2021 (Aff–SLM), was read. Mrs McBroom confirmed the truth and accuracy of the content of her affidavit and she was cross-examined on her evidence. Mrs McBroom was an impressive witness who answered the questions put to her directly and with apparent care.

57    To the extent that the cross-examination attempted to discredit her understanding of the law to which she had deposed by testing her knowledge of particular passages in certain cases which have considered the concept of ‘Aboriginality’ including Hirama v Minister for Home Affairs [2021] FCA 648, Western Australia v Ward [2000] FCAFC 191; 99 FCR 316, Attorney-General (Cth) v State of Queensland [1990] FCA 358; 25 FCR 125, Gibbs v Capewell [1995] FCA 25; 54 FCR 503, Shaw v Wolf [1998] FCA 39; 83 FCR 113, Ofu-Koloi v The Queen [1956] HCA 64; 96 CLR 172, it did not do so. First, the cross-examination was directed at the very constitutional question that has been removed to the High Court. It was therefore irrelevant to the matters before this Court. Secondly, it cannot be the case that a reasonable officer in the position of Mrs McBroom, who was not said to have had any legal training, could be expected to have a level of knowledge of this case law, including by being able to attribute passages of obiter dicta to individual judges, beyond what might reasonably be expected of an advanced law student undertaking a constitutional law examination. This is not the same quality of knowledge that the Full Court expected an officer exercising power under ss 119 and 120 of the Migration Act to have, namely ‘that s 119 was a natural justice or procedural fairness provision designed to give a visa holder a meaningful opportunity to say… why the document in question is not bogus’: Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 at [137] per Besanko J.

58    Mrs McBroom’s evidence that she was satisfied that Mr Montgomery is not and never has been an Australian citizen (Aff–SLM at [10]) was uncontroversial, as was her evidence that Mr Montgomery does not currently hold a visa that is in effect (Aff–SLM at [11]). The challenge to Mrs McBroom’s evidence concerned her state of satisfaction as to whether Mr Montgomery is an unlawful non-citizen for the purposes of s 189 of the Migration Act because she suspected that he is an alien, by virtue of not being an Aboriginal Australian (Aff–SLM at [14]). Again, to the extent that counsel sought to contend that Mrs McBroom resiled from that position in cross-examination when she answered ‘Yes’ to the question put to her:

Mrs McBroom, in light of what you have now read on those two pages [being the extracts from the cases mentioned above], is it really your evidence that you suspect that Mr Montgomery may be a non-Aboriginal unlawful non-citizen?

I reject that submission. Not only was it consistent with her sworn testimony that she reasonably suspects he is a non-Aboriginal unlawful non-citizen, but it was designed to trap Mrs McBroom in resiling from her evidence without giving her the opportunity to appreciate that the question being put to her was a different question from the one to which her evidence had been primarily directed.

59    Mrs McBroom’s evidence was that she arrived at this state of satisfaction as follows:

(1)    Her review of the Department’s records revealed that Mr Montgomery was born in New Zealand and he is a New Zealand citizen; there is no evidence that Mr Montgomery has ever been granted Australian citizenship; his mother is an Australian citizen and his father is a New Zealand citizen; he was the holder of a TY-444 visa that was granted on 11 August 1997, but which was cancelled under s 501(3A)(a)(i) on 10 July 2018, and he has not been granted a further visa after that date (Aff–SLM at [8]).

(2)    She has read the decision in Love and has attended Departmental training on the decision. Mrs McBroom was satisfied that Mr Montgomery meets the second and third limbs of the tripartite test but suspected that he did not satisfy the first limb. Mrs McBroom deposed to her current understanding of the first limb of the tripartite test to be that a person ‘must show biological descent and therefore adoption is not sufficient to satisfy the first limb’ (Aff–SLM at [13]).

(3)    In forming the view described in [13] and [14] of her affidavit, Mrs McBroom deposed that she had had regard to Aff–SPM, the Affidavit of Jacqueline Ann Montgomery sworn 14 February 2021, the Departmental records of interviews with Mr Montgomery conducted on 11 February 2020 and 14 February 2020, and legal advice provided by the Australian Government Solicitor (AGS) and other internal Departmental legal officers regarding the tripartite test (Aff–SLM at [15]).

60    The Minister did not waive privilege over that legal advice and it was not produced to the Court. The Minister is entitled to claim legal professional privilege over the advice and I draw no adverse inference from its not being produced. To do otherwise would be to undermine the very basis of the privilege: Giannarelli v Wraith (No 2) [1991] HCA 2; 171 CLR 592 at 605.

61    Nevertheless, on 24 April 2020, the AGS had written to Mr Montgomery’s then representatives, HR4A. In that letter, the AGS wrote that in Love ‘the High Court held by majority that Aboriginal Australians, understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70 (as discussed by Nettle J), are not within the reach of Parliament’s power to make laws with respect to “aliens” pursuant to s 51(xix) of the Constitution’ (AMB1-17 to Affidavit of Alison Mary Battisson affirmed 5 May 2020). That letter also set out what was describes as the Department’s ‘Preliminary position on tripartite test’. Significantly, that letter made no assertion as to whether the tripartite test, framed as it was with respect to native title to land and waters, foreclosed any other approach ‘to determining Aboriginality as the basis for those fundamental ties of political community in Australia’ (Love at [458] per Edelman J) or supplants the rights of Aboriginal people to determine by reference to Indigenous law and customs who possesses such rights (Love at [357] per Gordon J). The uncertainty of the boundaries of the ratio in Love was a matter that was squarely put to the Minister in the response by HR4A to the letter from AGS (MAJ-2 to Affidavit of Melinda Anne Jackson affirmed 10 June 2020).

62    In the context of the relative uncertainty of the precise boundaries of the tripartite test, Mrs McBroom is not to be criticised for adhering to her view that she was, in effect, bound to take the ratio of Love at face value which, to her mind, meant that Mr Montgomery needed to ‘meet the lineage of Aboriginal bloodlines’. Nevertheless, the justification for Mr Montgomery’s detention depends on proof of his detainer’s state of mind judged reasonably. Mrs McBroom must be taken to have had access to the correspondence from AGS, given that it was within the power and possession of the Department, and so to have understood at least that there was a view that Love might not be confined to her narrow understanding of the first limb of the tripartite test.

63    Further, Mrs McBroom deposed that she was aware that Mr Montgomery had, on a few occasions, claimed to have biological descent, but was unaware of any additional evidence to support those claims. She did not accept those claims to be accurate in light of subsequent and more detailed accounts of his ancestry (Aff–SLM at [13.1]). Whilst it seems unlikely that further evidence as to Mr Montgomery’s ancestry may be uncovered, the time for him to be put to proof on that question has not yet arrived. Nor has the time arrived for the High Court to decide the determinative normative standards by which the question of biological descent, at least with respect to the Mununjali People, is to be assessed.

64    Mrs McBroom also gave evidence that she knew Mr Montgomery has been adopted by the Mununjali People. As the Chief Justice observed in McHugh, at [65], even for the purposes of the tripartite test itself, it remains unclear by what relevant normative standard or standards the question of biological descent is to be assessed. His Honour asks rhetorically, ‘is it genealogical or biological descent strictly by blood, or does it include features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law and custom?’ It is likely that not all Aboriginal peoples will have the same law and custom governing these issues. Consequently, there is likely to be no universal and inevitable answer as to whether a person satisfies the first limb of the tripartite test.

65    Mrs McBroom had also read Mr Montgomery’s affidavit which, in addition to his detailed evidence about his absorption into his Aboriginal family, also detailed his receipt of Abstudy over a number of years and his engagement with various Aboriginal social service providers. This evidence raised a state of affairs, namely that the Commonwealth considered Mr Montgomery to be Aboriginal for the purposes of certain social security benefits available only to Aboriginal people, that conflicted with Mrs McBroom’s understanding that Mr Montgomery was not Aboriginal. Mrs McBroom did not make inquiries of Centrelink about Mr Montgomery. No evidence was led as to what records might be held by other Commonwealth agencies, but it was incumbent on Mrs McBroom to inquire as to whether any relevant material was held by those other agencies.

66    Conversely, I do not accept that Mrs McBroom was required to have made any further inquiries of Mr Montgomery (in circumstances where he refused to meet with her and where case notes of previous interviews were available and read), Mr Montgomery’s mother (in light of her affidavit), nor of any member of the Mununjali People (given the extent of Mr Montgomery’s affidavit evidence). Nor was Dr Powell’s report (the existence of which was not known to her) likely to provide any information contrary to her current understanding of the law that a biological ancestor was required in order to prove Aboriginality under the tripartite test. Any such further inquiries were only likely to be confirmatory of the suspicion she had formed about of Mr Montgomery’s claim of Aboriginality. Any expert opinion was inherently likely to depend on information provided by Mr Montgomery and his family. This is confirmed in Dr Powell’s report where she says, ‘I have no information about the identity of the Applicant’s biological father’s antecedents, and for that reason I am unable to give opinion on [Aboriginal heritage on his father’s side]’ (FP-01 to Affidavit of Fiona Powell affirmed 21 May 2021).

67    What is required for the purposes of satisfying s 189 of the Migration Act was stated by the Full Court in Goldie v Commonwealth of Australia [2002] FCAFC 100:

[4]    …the word ‘reasonably’ has been placed before the word ‘suspects’ in 189(1). The adverb makes it clear that, in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances.

    …

[6]    It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonable suspects is an unlawful non-citizen. That, of course, is consonant with the serious act the officer is empowered to carry out. Section 196 operates upon a person detained under s 189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen. The scheme contemplated under the Migration Act is indefinite detention pending removal or deportation under administrative fiat. It is not detention for the purpose of curial review or determination of status. These provisions confirm that the appropriate construction of s 189 is that an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of the suspicion.

    (original emphasis)

68    Mr Montgomery claimed to be an Aboriginal man, a Mununjali. It was accepted by the Minister that he had been adopted by the Mununjali People. Mr Montgomery made representations that the decision in Love did not foreclose a finding that he was a biological descendant of Aboriginal people by traditional law and custom. He had been provided with access to social security benefits and services by the Commonwealth that were directed specifically to Aboriginal people. It was accepted by the Minister that he both identifies as an Aboriginal Australian and has been accepted by a traditional Aboriginal group as a member of that group. In these circumstances, the suspicion held by the relevant officer that Mr Montgomery is not an Aboriginal Australian is not reasonable. There is no room for any presumptions in favour of the Executive where the liberty of the subject is concerned: Dillon v The Queen [1982] AC 484 at 487 (Privy Council); McHugh at [53] per Allsop CJ. The Minister has failed to discharge the onus of proof that an officer held the reasonable suspicion that Mr Montgomery is an alien by not being an Aboriginal Australian.

69    For the above reasons, Mr Montgomery is entitled to the issue of a writ of habeas corpus and an order under the application for relief in the nature of a writ of habeas corpus that he be released from detention forthwith.

Judicial review

Legislative Provisions relevant to the judicial review grounds

70    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

71    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

72    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

73    Section 501CA of the Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

74    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made a direction titled ‘Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (Direction 79) which came into force on 28 February 2019.

75    When a Minister makes a decision personally, he or she is not bound by Direction 79.

76    Paragraph 6.3 of Direction 79 provides as follows:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

…

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

77    Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

78    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen’s visa, are articulated in Part C). Paragraph 8(3) of Direction 79 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

79    Part C of Direction 79 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into ‘primary considerations’ and ‘other considerations’.

80    Paragraph 13(2) of Direction 79 provides that the following considerations are ‘primary considerations’:

    (a)    protection of the Australian community from criminal or other serious conduct;

    (b)    the best interests of minor children in Australia; and

    (c)    expectations of the Australian community.

81    Paragraph 13.2 of Direction 79, which corresponds to the primary consideration in paragraph 13(2)(b), provides as follows:

…

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

(a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

…

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)     Whether there are other persons who already fulfil a parental role in relation to the child;

(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

…

82    Paragraph 13.3 of Direction 79, which corresponds to the primary consideration in paragraph 13(2)(c), provides as follows:

13.3 Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

83    Paragraph 14(1) of Direction 79 provides a non-exhaustive list of ‘other considerations’ which must be taken into account by a decision-maker where relevant. These considerations include (but are not limited to): international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

The proposed new ground

84    This proposed ground relates to the validity of the invitation issued to Mr Montgomery pursuant to s 501CA(3)(b) of the Migration Act to make representation about revocation of his visa dated 10 July 2018. That invitation provided, in part:

Time-frame to make representations about revocation

Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s 501CA(3)(b) and s 501CA(4) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.

If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s 501CA(4)(a) of the Act.

Lodging the Revocation Request Form

If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.

If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.

As this notice was given to you by hand, you are taken to have received it when it was handed to you.

(emphasis and underlining in the original)

85    Regulation 2.52 of the Migration Regulations 1994 (Cth) provides that ‘the period’ referred to in s 501CA(3)(b) within which the representations must be made is ‘within 28 days after the person is given the notice and particulars of relevant information under paragraph 501CA(3)(a) of the Act’.

86    Section 198(2B) of the Migration Act requires:

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c) in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision–either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

        (emphasis added)

87    It was uncontroversial that Mr Montgomery was handed the notice on 11 July 2018.

88    The invitation received by Mr Montgomery made four claims about the period in which to make his representations:

    Any representations must be made within 28 days after he is taken to have received the notice;

    Representations received outside the prescribed timeframe of 28 days cannot be considered;

    The revocation request form must be lodged within 28 days after he was taken to have received the invitation;

    The request for revocation must be received by the Department by mail, email or fax, within 28 days after he was taken to have received the invitation.

89    Mr Montgomery completed the revocation request form on 12 July 2018. It was received by the Department on 20 July 2018.

90    Mr Montgomery submits that the invitation was invalid and ineffective because the period for representations was improperly crystallised. This was because the prescribed period was incorrectly identified as referable to when any representation was received by, or lodged with, the Department rather than by a period referable to when any representations were made or dispatched to the Minister. In Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 95 ALJR 342, the High Court held, at [42], that ‘an invitation to make representation “within the period… ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation’. The Court said, at [41]:

It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.

91    In EFX17, the respondent was instructed that any representations must be made within the prescribed time period which was said to be ‘within 28 days after you are taken to have received this notice’. The instructions also said that, ‘As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted’. The email was transmitted to the Brisbane Correctional Centre on 3 January 2017 but the letter and its enclosures were handed to the respondent by a Corrective Services Officer the following day, 4 January 2017. If the letter and enclosures complied with s 501CA(3) then the 28-day period would have started to run from 4 January 2017. The High Court held, at [40], that in the absence of any manner of ascertaining the 28-day period, and by incorrectly saying that the respondent was ‘taken to have received [the letter] at the end of the day it was transmitted [by email]’ (which was 3 January 2017), the letter did not invite representations ‘within the period…ascertained in accordance with the regulations’. The High Court gave as an example, an invitation to make representations within ‘28 days from the date that you were handed this document’: at [42].

92    As can be discerned from the High Court’s reasoning, the Court was concerned with circumstances where the person would be held to the strict consequences of failing to make representations because the correct period had not been accurately crystallised in the invitation and so the representations were made one day beyond the requisite 28-day period.

93    This was a similar feature in each of the Full Court decisions relied upon by Mr Montgomery. In Stewart, the Minister contended that the representations had been made outside the 28-day period. The Full Court held that the word ‘made’ does not mean ‘received’ but rather ‘dispatched’ and so it was sufficient in that case for the prisoner to have given the representations to the prison authorities within the 28-day period to dispatch because the prisoner does not know whether or not they have been received in time: at [47].

94    In EPL20, the representations were received by the Minister on 4 October 2019 which was one day outside the 28-day period. The Minister’s delegate did not take any point about the timing of the representations but, on review to the Administrative Appeal Tribunal, the Tribunal held that it lacked jurisdiction because the applicant’s representations had to be received no later than 3 October 2019. The Full Court observed that the High Court had accepted that an error by one day in crystallising the period for making representations was sufficient to invalidate the invitation without any consideration of the extent or consequences of departure: at [40].

95    The Full Court held that it should follow and apply Stewart and that there was no sound basis for distinguishing Stewart or EFX17 in that context: at [41].

96    Sillars, which was heard concurrently with EPL20, also concerned circumstances in which the representations were received outside the 28-day time period (10 days later) and where no issue as to the timing of the representations was raised by the delegate. The Tribunal, however, accepted a submission by the Minister that the Tribunal had no power to revoke the cancellation decision because the representations had been made outside the prescribed period.

97    On their face, the decisions in Stewart, EFX17, EPL20, and Sillars, by which I am bound, are authority for the proposition that the failure of an invitation to crystallise the period in which representations must be made makes the invitation ineffectual. The reasoning of the Full Court in Stewart emphasized, at [50], that:

the legislative expressions “makes” and “made” in s 501CA and reg 2.52 focus on the act of the prisoner, not the position of the Minister as the intended recipient of the representations. It can be readily inferred that, in such a context, the statutory language contemplated and intended that the prisoner only do all that was reasonably necessary in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.

(emphasis added)

98    Nevertheless, there is a distinguishing feature in the present case, namely that Mr Montgomery’s representations were incontrovertibly received within the prescribed period. There is therefore no issue as to whether the Minister’s power s 501CA was enlivened. It plainly was. Subsequent to the Minister’s receipt of the representations, Mr Montgomery was sent a series of five further requests to comment or provide information on a variety of matters that had been brought to the Minister’s attention. These ‘procedural fairness’ notices are not ‘a representation under paragraph 501CA(3)(b)’ and so the time period prescribed by reg 2.52(2)(b) is of no application to these requests.

99    There is some force in the Minister’s opposition to leave being granted to add this additional ground which was foreshadowed only a week before the hearing. Although the Minister properly conceded that no relevant prejudice could be shown, given it raises a question of law only, no satisfactory explanation was offered. In circumstances where the primary authority relied on to raise the new ground was decided in November of 2020, an explanation is called for: Aon [30].

100    I accept that the two more recent decisions of the Full Court on which Mr Montgomery relies, EPL20 and Sillars, were decided only three and a half weeks before the proposed new ground was foreshadowed.

101    Were it necessary for me to decide this point, I consider that s 501CA(4) becomes operative if, in accordance with sub-s (a), the person makes representations in accordance with the invitation with the prescribed period: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [44]. Mr Montgomery did just that. It is difficult to accept that where an applicant for revocation of a cancellation decision has made representations in accordance with s 501CA which have been received within the prescribed period, that Parliament intended that such a person would be at risk of having their invitation to provide representations deemed invalid, thereby requiring them to recommence the process and prolonging their period in immigration limbo.

102    Given the conclusions I have reached in relation to the other grounds of judicial review, it is unnecessary for me to reach a concluded view on this ground, and undesirable that I do so given that applications for special leave to appeal to the High Court have been filed in both EPL20 and Sillars. Mr Montgomery will be able to provide additional information provided it is received at any time before a decision as to whether or not to revoke the cancellation is made.

103    Leave to amend the second further amended originating application to add the proposed new ground should be refused.

The remaining grounds of review

104    Mr Montgomery contends that the Minister failed to give proper, genuine, and realistic consideration to the representations made by him regarding the best interests of his three minor children, that the Minister erred in his finding that Mr Montgomery posed an unacceptable risk to the Australian community, and that the Minister failed to give proper, genuine, and realistic consideration to the representations made by him regarding his Aboriginality.

105    In the statement of reasons for decision s 501CA of the Migration Act (Minister’s reasons), the Minister concluded:

CONCLUSION

152.     I have undertaken: (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character tests (as defined by s 501) for the purposes of s 501CA(4)(b)(i); and (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).

153.     I concluded Mr MONTOGOMERY has made representations in accordance with the invitation.

154.     I am not satisfied that Mr MONTGOMERY passes the character test (as defined by s 501).

155.    In considering, in light of Mr MONTGOMERY’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr MONTGOMERY’s children, Tahrel, Saphire and Wyntah-Willow Montgomery and Mr MONTGOMERY’s minor nieces and nephews. I found that their best interest would be best served by the revocation of the original decision.

156.    In addition, I have considered the length of time Mr MONTGOMERY has made a positive contribution to the Australian community, the strength of his ties to the Australian community and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr MONTGOMERY would face if he were removed to New Zealand.

157.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr MONTGOMERY, which includes aggravated burglary and commit offence in dwelling.

158.    Further, I find that the Australian community could be exposed to harm should Mr MONTGOMERY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MONTGOMERY.

159.    I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr MONTGOMERY, than I otherwise would, because he has lived in Australia from the age of 15. I have also considered his claims that he fears he will face harm due to his extensive facial tattoos from the Maori population, especially the Maori gangs if he returns to New Zealand, but as noted earlier, I am unable to make any finding in this regard without further substantiation of those claims.

160.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MONTGOMERY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interest of his children and other minor family members, treated as a primary consideration, and the other countervailing considerations as mentioned above. These include his lengthy residence and ties, employment, volunteer and familial to Australia, and the hardship Mr MONTGOMERY, his family and social networks will endure in the event the original decision is not revoked.

161.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr MONTGOMERY’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr MONTGOMERY’s Class TY, Subclass 444 Special Category (Temporary) visa remains cancelled.

106    In a letter of 8 May 2020 to Mr Montgomery, it was said that ‘the Minister decided, under s 501CA of the Migration Act, not to revoke the original decision’. That statement of the Minister’s purported exercise of power is wholly inconsistent with paragraph 161 of the Minister’s Reasons in which he states that his power in s 501CA(4) is not enlivened. The Minister identified that Mr Montgomery had made representations to him as to why the cancellation decision should be revoked, such that sub-s (4)(a) was satisfied. The Minister was, however, not satisfied of either of the matters in sub-s (4)(b). Thus, he concluded that the facts on which his power in s 501CA(4) to revoke the cancellation decision was conditioned did not exist. As a result, Mr Montgomery’s visa remained cancelled.

107    The Full Court has explained that the matters in sub-s 4(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister was satisfied that either existed: Ali at [41]. As in that case, by his reasons, the Minister recorded that he was not satisfied that Mr Montgomery passed the character test, nor was he satisfied that there was ‘another reason why the original decision should be revoked’. The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in subs (a) and (b), was not enlivened.

108    As was observed by the Full Court, although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be ‘reviewed’ are limited: MacCormick v Federal Commissioner of Taxation [1945] HCA 10; 71 CLR 283; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118–119; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420.

109    In Avon Downs, at 360, Dixon J said, in relation to the range of errors which might vitiate a claimed state of mind:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

110    The consequence of the legislative structure of s 501CA was explained in Ali at [44]-[45]:

… in the case of s 501CA(4) the incorporation of a substantive deliberative process has the consequence that the process of forming the relevant state of mind incorporates certain implied statutory requirements. Prima facie, the function of forming a state of mind for the purposes of s 501CA(4)(b) is unconfined. However, s 501CA(3) requires the giving of notices and information to the affected person as well as the making of an invitation to make representations about the revocation decision. Section 501CA(4) may only ever become operative if, in accordance with subs (a), the person affected makes representations in accordance with that invitation. Although it is not expressly stated in subs (b) that relevant factors that the Minister must consider in forming his state of satisfaction or otherwise are the claims made in the representations, that conclusion is a necessary inference. The principles of interpretation or construction which are used to identify those factors which the person forming the state of mind is required to consider are not dissimilar to those found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, concerning the identification of relevant or irrelevant considerations for the exercise of discretions: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [184] – [187]. If “by implication from the subject-matter, scope and purpose of the Act” the repository of power is required to consider a factor in forming the required state of mind, any putative state of mind formed without considering it would be vitiated.

It would follow that a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind.

111    In BHL19, Wigney J (albeit dissenting in the result) discussed the substance of the obligation to take into account a relevant factor, particularly in the context of the power in s 501CA(4), at [169]:

As was made clear most recently by the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 at [37], the Minister is obliged to engage in an “active intellectual process with significant and clearly expressed relevant representations” in the context of a decision to cancel or refuse a visa. Depending on the nature and content of the representations, the Minister may also be “required to make specific findings of fact” in relation to the matters raised in the representations: Omar at [39]. It is not sufficient for the Minister to merely “note” the representations, or state that they had been considered or taken into account: Omar at [43]; see also AEM20 v Minister for Home Affairs [2020] FCA 623 at [100]. The failure to consider, in a relevant legal sense, significant matters raised clearly by a person in the appellant’s position will amount to a “failure to conform with the Act” or a failure to “carry out the relevant statutory function according to law”: Omar at [45].

112    A failure to properly take into account or have regard to a claim raised by the person in his or her representations will necessarily have the consequence that one of the Avon Downs errors has occurred, such that if the error was material, the putative state of mind formed by the Minister will be vitiated: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [72]; Ali at [49].

113    In this context, it is important to observe that the obligation to consider Mr Montgomery’s claims arises as a necessary incident of the Minister’s task. As Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3], Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

114    More recently, the Full Court has said in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [30] per Burley, Colvin and Jackson JJ:

What is required, is consideration of a kind that means that the Minister’s state of satisfaction is formed after, at least, an evaluation of the persuasiveness (in the view of the Minister) of each reason of significance that is prominently put forward in the representations as a reason why the original decision to cancel the visa should be revoked. Where there are number of reasons put forward then they should all be considered together. If the Minister is of the view that there are countervailing reasons that affect whether the reasons advanced by the person concerned are sufficient to be ‘another reason’ then the persuasiveness to the Minister of the reasons advanced by the representations is to be evaluated by a process whereby those reasons and the countervailing reasons are all considered.

115    Importantly, the Full Court went on to say, at [36]:

The Court is also conscious in cases like the present that the repository of the power is the Minister and it is the Minister’s state of satisfaction that determines whether there is power to revoke the visa cancellation. It is not for the Court to usurp that authority entrusted by Parliament in the Minister and clothe a view as to the merits of the reasons advanced by way of representation to the Minister with language said to manifest jurisdictional error. In order for there to be jurisdictional error of the kind alleged in the present case there must be a finding that the duty to perform the statutory task was not carried out, not that there is disagreement, even strong disagreement with the reasoning and conclusion reached. Put shortly, the Court must not do anything that would substitute its state of satisfaction for the Minister’s state of satisfaction in the present case.

Ground One – Best interests of the children.

116    Turning then to the first ground of review, that relating to the best interests of Mr Montgomery’s minor children. The Minister found that the best interests of Mr Montgomery’s children, Tahrel, Saphire, and Wyntah-Willow, and of his minor nieces and nephews, would be best served by the revocation of the original decision. Mr Montgomery claims that the Minister failed to adequately explain in his reasons his understanding and appreciation of why he came to this finding.

117    Mr Montgomery contends that the Minister failed to give proper, genuine, and realistic consideration to the representations made in respect to the best interests of the children. In particular, it is said that the Minister failed to consider the long-term psychological and cultural impact, including trauma, on his aboriginal children in the context of Mr Montgomery’s Aboriginality, the children’s Aboriginality, the mother of one child being the child of the stolen generation and there being no foreseeable prospect of any personal and direct contact between Mr Montgomery and his children. In relation to his youngest child, aged seven, and who is not said to be an Aboriginal Australian, it is said that the Minister failed to consider the long-term psychological and cultural impact, including trauma in the context of Mr Montgomery’s Aboriginality, his being her sole parent, the child’s having no alternative to State care until attaining the age of 18, and there being no foreseeable prospect of any personal and direct contact with her father and sole parent. Further, Mr Montgomery contends that the Minister failed to consider the benefits of his being able to be her primary care-giver, both in terms of the benefit of being a parent and having access to her Aboriginal siblings and culture.

118    The central role in the statutory regime of representations made to the Minister in accordance with an invitation given by the Minister under s 501CA(3) has been explained in a number of decisions: Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [34]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643. In Maioha, Rares and Robertson JJ said, at [48]:

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made.

119    It is therefore necessary to examine the scope of the representations put to the Minister in relation to the best interests of Mr Montgomery’s minor children. In his Request for Revocation, Mr Montgomery stated that ‘The cancellation of my visa will have a devastating effect on all my children. In our culture both Maori and Aboriginal family is very important and the closeness extends to our sometimes large extended families’. He stated that the Department of child protection had taken his youngest child out of the care of her mother, ‘due to severe drug addiction’, and ‘placed her with my brother… and his wife’. He stated, ‘My major concern is for my youngest child Wyntah Willow who has been taken into custody of the child protection Agency in Perth and who I have legal custody of. If my partner Jessie Anne Wilkins remains unable thru severe drug addiction to become her mother again I’m scared of what would happen to her?’.

120    His current partner, Juanita Fleming, wrote a letter of support dated 21 June 2019. In it she stated, ‘Also Wyntah, Shayne is all she has right now and her mother is on her journey, and yes one day she will wake up but in the meantime Wyntah is in the care of the Childrens Services And if Shayne was to be deported it nearly makes it impossible for him to gane their care back of Wyntah and she suffers the most out of everyone, And the feeling of Abandonment is a real thing for her. Also the distance that would be created would also make it very hard for Shayne to maintain a relationship with his other children which would be devastating to all his kids as well as himself and his family’.

121    On 4 July 2019, Ms Claire Thomas (Mr Montgomery’s now ex-sister-in-law) wrote to the Department stating that she has had Wyntah-Willow in her full-time care since 2018. She stated ‘Wynta-Willow always looks forward to her visits with Shayne and speaks highly of him. She thoroughly enjoys her time with him and has never spoken of him or their time together in a negative way. It is clear that they have a very close bond. Wyntah-Willow expresses that she loves and misses her father on a regular basis’.

122    Mr Montgomery’s migration agent, Mr Doumanis, submitted, ‘If my client is not reinstated his visa, Wyntah-Willow will be left with no responsible parental figure and the DCP will move to have an order placed to keep her in government custody until she turns 18 … My client is from a low socio-economic background and will not be able to afford to fly his children to New Zealand for visits’. He submitted further that, ‘The psychological impact that his removal from the country would have on his family, in particular his children, is unfathomable’.

123    The Minister’s Reasons, at [13], indicate that he ‘treated the best interests of any affected children under 18 in Australia as a primary consideration’. From paragraphs [14]-[42] the Minister dealt with Mr Montgomery’s representations: noting the Aboriginality of his three eldest children and that the mother of Saphire is a child of the stolen generation, at [15]-[17]; referring to the representation as to the importance of family in Aboriginal culture and the trauma caused by the loss of a father within that culture, at [18]; acknowledging that Mr Montgomery’s youngest child, Wyntah-Willow is under the care of the Department of Child Protection and resides with her uncle’s family, at [20]; that if reunification is not possible, the Department will apply for a care order until she is 18, at [21]; that she will be left with no responsible parental figure in her life, at [23]; and noting the statement from Mr Montgomery’s sister that separating Mr Montgomery and Wyntah-Willow ‘would be extremely detrimental for Wyntah-Willow as she is very reliant on her father’, at [32].

124    Similar to the view reached by the Full Court in Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611 at [72] per Katzmann, O’Callaghan and Derrington JJ, this is an example of where the use of the words ‘noted’, ‘acknowledged’ and ‘take into consideration’ carries with it much more than that the Minister was aware of the existence of the submission. By making the finding that the best interests of the children would be served by the revocation of the decision the Minister made a determination about the importance of the various factors relating to the children in the circumstances of the case.

125    The Minister concluded:

42.    I find that [it is] in the best interests of Mr MONTGOMERY’s children, Tahrel and Saphire Montgomery, for the original decision to cancel Mr MONTGOMERY’s visa to be revoked.

43.    I note that Wyntah-Willow Montgomery will be negatively affected should Mr MONTGOMERY be removed from Australia. I therefore find that it is in the best interests of Wyntah-Willow for Mr MONTGOMERY’s visa cancellation to be revoked, to enable her to spend time with her father and be parented and supported by him.

126    Mr Montgomery contended that the Minister’s reason were analogous to those in Bettencourt, particularly as regards to the ‘bland’ statement that the best interests of the children would be served by the revocation of the original decision and the apparent understatement of the consequences for Wyntah-Willow, without any qualitative evaluation of a kind that would indicate that the Minister accepted the full consequences for the children if the decision was not revoked.

127    Quite obviously, Bettencourt involved different circumstances. The Full Court held that there was no finding by the Minister concerning the quality or character of likely harm to the children in circumstances where expert evidence had been put before the Minister: Bettencourt at [44]. That is not this case.

128    Similarly, Mr Montgomery gains no assistance from the passage on which he relied in Webb v Minister for Home Affairs [2020] FCA 831; 170 ALD 511 at [47]. That too was a case where consideration of particular representations concerning the children had been omitted and where the Minister expressed relative degrees of weight in relation to certain representations (eg at [44]). Again, that is not this case.

129    Although it is true that the conclusion is expressed blandly, Mr Montgomery has not demonstrated that any material representation was not considered in the course of the Minister’s reaching his decision. It is pertinent to note that the only matter that the Minister found expressly would be served by the revocation of the original decision was the best interests of the children. When the ground of review is framed in this light, the only real complaint is about the weight given to that primary consideration. The question of weight is a matter for the Minister, not the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [44].

130    Ground one cannot succeed.

Ground Two – The unacceptable risk posed by Mr Montgomery.

131    Mr Montgomery asserts that the Minister erred in his finding that Mr Montgomery posed an unacceptable risk to the Australian community in that he failed to give proper, genuine and realistic consideration to the representations made or, alternatively, the finding was legally unreasonable. It is said that there was no evidential basis for the Minister’s finding that there is a risk that Mr Montgomery will reoffend in a similar manner which could result in physical harm to members of the community because there was no material from which it could be inferred that any of his previous offending had caused physical harm, nor did the Minister make any finding of physical harm, and both Mr Montgomery and others made representations that he had not been violent towards anyone. It was said further that the Minister failed to give proper, genuine and realistic consideration to the representations in relation to the circumstances of his offending, his remorse or his rehabilitation and that the Minister failed to give any reasons as to how his finding that there is a risk that Mr Montgomery may “reoffend in a similar manner” transmuted to a finding that he posed an “unacceptable risk to the Australian community”.

132    It is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1:

[8]    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

…

[11]    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

[12]    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13]    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

133    As the Chief Justice observed in Stretton in [8], the role of this Court in conducting judicial review of the Minister’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker, including in particular substituting its view of what is reasonable for that of the Minister: see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59]. The issue therefore is whether the arguments advanced in support of this ground of appeal go beyond a challenge to the merits of the evaluative exercise carried out by the Minister, so as to substantiate a finding of legal unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [330]; Egan v Minister for Home Affairs [2021] FCAFC 85 at [98]-[99].

134    The Minister’s Reasons deal at some length with the risk to the Australian community, at [110]-[151], including the representations made in relation to mitigation, remorse, and rehabilitation. He considered the sentencing remarks in relation to the offence of 8 March 2018, including that Mr Montgomery aided the burglary by his physical presence but that there was no intention to threaten or extort the victim: (Minister’s reasons at [107]). In sentencing remarks in relation to the burglary, Quail DCJ said:

I find that in relation to all of you who are before me for sentencing that your intention was, in going there, was only to recover the debt. And consistently with the verdict of the jury there was no intention to threat [sic] [the victim] and no intention or plan to extort her.

…

In relation to all of you, your acts of aiding were that, by your physical presence, you did give encouragement to [the co-accused] committing the burglary and stealing…

You all knew at that point that he was going into the house to steal something and you intended to help in committing those offences. Your physical presence not only provided him with positive encouragement and moral support, which emboldened him to commit the offence, but of each of you, by your presence, provided him with physical security such that he could safely complete the offence knowing that [the victim] would not be able to enter the house and call the police and nor would anyone else.

135    The Minister took into consideration the representation that ‘there is no family violence’ in his present relationship and that various incident reports of family violence could not have been committed by Mr Montgomery as he was incarcerated, nor do they appear on his National Criminal History check: (Minister’s reasons at [123]-[124]).

136    The Minister found that there is a risk that Mr Montgomery will reoffend. The Minister’s Reasons record: ‘I consider that should Mr MONTGOMERY reoffend in a similar manner, it could result in physical and/or financial harm to members of the Australian community’, (Minsiter’s reasons at [150]).

137    The Minister concluded:

157.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr MONTGOMERY, which includes aggravated burglary and commit offence in dwelling.

158.    Further, I find that the Australian community could be exposed to harm should Mr MONTGOMERY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MONTGOMERY.

138    The reference to ‘physical harm’ in [150], used as it is in the composite phrase ‘and/or financial harm’, is the only reference in the Minister’s Reasons to physical harm. Although there was no finding that Mr Montgomery had physically harmed any member of the Australian community, in the context of the offence for which he was convicted (aggravated burglary), it was not legally unreasonable for the Minister to conclude that, should Mr Montgomery reoffend in a similar fashion, the Australian community could be exposed to harm. This was a conclusion open to the Minister as a matter of subjective assessment. That a different conclusion could have been reached by assessing Mr Montgomery’s representations in the way contended by him amounts to no more than inviting impermissible merits review: (Eshetu at [137] per Gummow J).

139    I am therefore not satisfied that the necessary threshold of legal unreasonableness has been surmounted in relation to the reasoning of the Minister in finding that the risk existed.

140     Ground Two cannot succeed.

Ground Three – Mr Montgomery’s Aboriginality.

141    Mr Montgomery contends that the Minister failed to give proper, genuine, and realistic consideration to the representations made by him, and his representatives, of his Aboriginality and the consequences of this status on the impact of his removal.

142    In his supplementary submissions on this ground, Mr Montgomery’s challenge to this aspect of the Minister’s decision relies solely on the fact that he has a direct, longstanding connection with an Aboriginal community, who recognise him as a member of that community. Mr Montgomery makes no submissions in this proceeding as to whether or not he is capable of being treated as an ‘alien’.

143    Mr Montgomery’s representations to the Minister in relation to his Aboriginality, and the consequences of this status on the impact of his removal, or on the Minister’s power to remove him, were made in a number of ways.

144    In his Request for Revocation, Mr Montgomery stated that both the mother of the eldest of his three children, and the mother of his fourth child, are Indigenous Australians. Again, he went on to describe the impact the cancellation of the visa would have on his children in this way: ‘The cancellation of my visa will have a devastating effect on all my children. In our culture both Maori and Aboriginal family is very important and the closeness extends to our sometimes large extended families’. He stated that he had participated in ‘Aboriginal tribal law to connect with my childrens heratige’.

145    As has already been outlined above, Mr Montgomery provided the Department with further material evidencing the Aboriginality of his children, and in relation to his own Aboriginality, in response to a request made by the Department on 31 May 2019.

146    The Submission of 24 September 2019 said in relation to Mr Montgomery’s ties to Australia:

My client and his children are recognised and accepted as Aboriginals in Australia as verified by the Aboriginal and Torres Strait Islander Men’s council. My clients mothers [sic] family tree dates all the way back to the first people to arrive in the convict ships and settle here in australia illustrating his strong ties to the country. The reason he and his family have been recognised by the aboriginal elders was because he completed his traditional ceremony completing the aboriginal ‘walk about’ living off the Australian land out in the bush and desert for six months they call it man hood learnt how to eat and survive and there [sic] traditional ways.

147    This was clear representation as to Mr Montgomery’s claim to be an Aboriginal Australian.

148    On 17 April 2020, Mr Montgomery provided a certificate in relation to his Aboriginality and a statutory declaration from Mr Alexander Keith Davidson, made on 15 April 2020, which stated that Mr Montgomery has ‘always been a member of the aboriginal community’ being a member of the ‘tribe of the Beaudesert area’. Mr Davidson stated that ‘my association with Shayne Montgomery was 24 years ago when I moved to Zillmere area. I know his connection is even more aboriginal [illegible] becaus of his [association] with a aboriginal girl who has his three children two boys and one daughter who at this trying times need his influence as they are struggling to be part of this community’.

149    The Department was also provided with the HR4A Letter in which Ms Battisson confirmed that Mr Montgomery does not claim that he is of Indigenous descent; rather, he identifies as Indigenous and has been accepted as such by Indigenous Elders. The letter draws attention to the views expressed in Love by Nettle J, at [278], and Gordon J, at [357], in respect of membership of Aboriginal societies and changing acceptance and practice of Aboriginal culture, and to those of Edelman J, at [458] that:

the tripartite test was applied in Mabo [No 2] as a means to identify those members of a particular sub-group of indigenous people who enjoy continuing connection with particular land. It can be usefully applied in this case. However, it is not set in stone, particularly as an approach to determining Aboriginality as the basis for those fundamental ties of political community in Australia which are not dependent upon membership of a particular sub-group. (emphasis added).

150    Ms Battisson urged on Mr Montgomery’s behalf,

Given the authority placed in Elders, some deference must be given to their decisions to welcome people into Indigenous communities, as Mr Alex Davidson has done for Mr Montgomery. It is asked that this decision is respected in this case and given significant weight in any decision to revoke the cancellation of Mr Montgomery’s visa.

151    There are a number of places in which the Minister’s Reasons refer to his consideration of Mr Montgomery’s representations in relation to his Aboriginality. In relation to Mr Montgomery’s family members, the Minister’s Reasons record the following:

[15]    I note that Mr MONTGOMERY’s daughter Tyleia, and his sons, Anfeni and Tharel are Indigenous Australians and their mother is Ms Elizabeth Anne Garcia.

[16]    I note that Mr MONTGOMERY’s daughter Saphire, is an indigenous Australian and her mother is Ms Sasheer Chapman (also known as Ms Marion Ivers). I also note that Ms Chapman is a child of the ‘stolen generation’.

[17]    I acknowledge the ‘Confirmation and acceptance of Aboriginality and/or Torres Strait Islander Decent’ [sic] recognition by the Northside Elders in the Zillmere Community for Tyleia, Tahrel and Bronwyn Garcia (their Grandmother), and ‘Confirmation Aboriginality and/or Torres Strait Islander Decent’ [sic] for Saphire.

152    The Minister’s Reasons record further:

[18]    Mr MONTGOMERY states in the Maori and Aboriginal culture, family is very important and closeness extends to their large and extended families, stating ‘A loss of a father, thru death or in my case removal from Australia will be very traumatic to immediate family members let alone my children’.

…

[81]    I note Mr MONTGOMERY [sic] statement that his family are a ‘combined culture’, stating ‘in our culture both Maori and Aboriginal family is very important and the closeness extends to our sometimes large extended families’. He states that he is much loved by his family who are in Brisbane and Perth and that his removal will would have a huge impact on them.

153    It is noteworthy that the Minister’s Reasons omit the sentence which preceded the explanation of the importance of family in both Maori and Aboriginal culture which read, ‘The cancellation of my visa will have a devastating effect on all my children’.

154    The Minister’s Reasons contain three further references to Mr Montgomery’s Aboriginality in the following terms:

[85]    I acknowledge that on 17 April 2020, Mr Montgomery’s representative provided the Department with a signed but undated ‘Confirmation and acceptance of Aboriginality and/or Torres Strait Islander Decent’ [sic] Certificate for Mr Shayne Paul MONTGOMERY and that Northside Elder, Mr Alexander Keith Davidson, states that Mr MONTGOMERY has been a member of the aboriginal community since he was a young child. I also acknowledge that Mr Davidson is a signatory to the Traveston Crossing Dam Indigenous Land Use Agreement.

[86]    I acknowledge that another agent has said that Mr MONTGOMERY has been recognised by the aboriginal elders as aboriginal, because he completed his traditional ceremony by finishing the aboriginal ‘walk-about’, living off the Australian land out in the bush and desert for six months and learning how to eat and survive the indigenous traditional way.

[87]    Human Rights for All, Ms Alison Battison acknowledges that Mr MONTGOMERY has not claimed he is of Indigenous descent, rather that he identifies as Indigenous and has been accepted as such by Indigenous Elders. Ms Battison asks that Mr MONTGOMERY’s acceptance by Mr Davidson as Indigenous be given significant weight in relation to Mr MONTGOMERY’s request for revocation.

[88]    I accept that Mr MONTGOMERY’s apparent links with the Indigenous community and the acceptance of him by Mr Davidson are indicative of the strength of Mr MONTGOMERY’s ties to Australia.

155    The Minister’s Reasons also record, at [94], that he ‘recognise[s] the effect of non-revocation for family members in Australia’.

156    Although the Minister acknowledged the various representations in relation to Mr Montgomery’s Aboriginality in considering the strength of his ties to the community, unlike his finding in relation to the best interests of the children, there is no finding in relation to Mr Montgomery’s submission that he is an Aboriginal Australian. There is no indication in the Minister’s Reasons that the Minister gave any, or any real consideration, to the submission that Mr Montgomery was an Aboriginal Australian and that the decision in Love did not foreclose such a conclusion.

157    Contrary to the circumstances in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843 at [212] (McHugh (No 2)), Mr Montgomery’s representations in relation to his Aboriginality, and the consequences of this status on the impact of his removal, constituted a ‘clearly articulated claim in need of resolution’ for the purposes of the exercise of the Minister’s power under s 501CA(4) of the Act.

158    Based on the Minister’s Reasons, the Minister failed to give any degree of consideration to Mr Montgomery’s representations as to his Aboriginality. By failing to give consideration to this significant representation, the Minister committed a recognised species of jurisdictional error: Omar at [45]; Viane at [75]; GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [32f]; McHugh (No 2) at [221].

159    Ground Three must be upheld.

Disposition

160    As the outcome of the Minister’s decision in the present case was not reached according to law, the matter will be remitted to the Minister to reconsider Mr Montgomery’s revocation request. This will require the Minister to genuinely confront the circumstances raised by Mr Montgomery’s representations: Hands at [3].

Associate:

Dated:    19 November 2021