In February 2020, the High Court of Australia in Love v Commonwealth; Thoms v Commonwealth, held that Aboriginal Australians cannot be classified as “aliens” under section 51(xix) of the Constitution. 

In early 2022, the then Morrison government, sought to challenge the Court’s decision in Love; Thoms in relation to a matter concerning Mr Shayne Montgomery, a New Zealand-born man who was adopted into a Mununjali family as a teenager after a period of homelessness. 

When Mr Montgomery was convicted of non-violent aggravated burglary four years ago, his citizenship came into question. The Immigration department cancelled his visa, and, following release from prison, Mr Montgomery was taken into immigration detention. 

Mr Montgomery challenged his visa cancellation in the Federal Court in 2021 asserting that he was recognised by elders as a Mununjali man. The Court ruled in his favour, and he was released from immigration detention. 

The Morrison government intended to challenge this decision; however, in July 2022, a notice of discontinuance was filed by the Commonwealth with the High Court granting leave to the Albanese government to withdraw the case.

A spokesperson for the Attorney General said: “Love; Thoms has been the law of the land for more than two years now, and the Albanese government will not seek to overturn [it].”

Mr Montgomery is now able to live safely with his family and community after having his visa re-instated. 

Lawyers for Mr Montgomery stated that: “Self-determination is a fundamental right that must be respected if we are truly committed to reconciliation and truth telling.”

The decision of Love; Thoms remains intact meaning that First Nations peoples cannot be deported from their own country. 

Munro Legal works extensively with First Nations people who have been victims of institutional abuse. If you wish to discuss your rights and options, please contact Munro Legal to arrange a consultation.