A New Zealand man resisting deportation on the basis he has been culturally adopted as Aboriginal has won an order freeing him from immigration detention.
On Friday the federal court ruled the former home affairs minister Peter Dutton “failed to give any degree of consideration” to Shayne Montgomery’s claim of Aboriginality, ordering the government to reconsider his visa cancellation.
But despite the order for Montgomery to be released from detention, his future is still uncertain as the decision not to restore his visa can simply be remade after consideration of his Aboriginality.
In February 2020 the high court ruled that Aboriginal Australians cannot be aliens and cannot be deported, in the landmark Love and Thoms decision the commonwealth is now seeking to overturn.
Montgomery has applied to the high court seeking to extend the category of “non-citizen, non-alien” to people customarily adopted as Aboriginal even if they have no Aboriginal biological descent.
Before that aspect of the case is heard in 2022, the federal court was first asked to rule on Montgomery’s claim of procedural defects in Dutton’s decision in May 2020 not to restore his visa.
According to court documents, Montgomery was born in 1981 in New Zealand before coming to Australia in 1997 to live with his mother and stepfather.
But after Montgomery was convicted of a non-violent aggravated burglary in March 2018, the Australian government cancelled his visa. He was taken to immigration detention after his release from prison on 21 February 2019.
Montgomery argued that because he has been culturally adopted by the Mununjali people he is Aboriginal, despite not being biologically descended from any Indigenous person.
Montgomery’s evidence of his Aboriginality includes his initiation on Stradbroke Island; being recognised by a Mununjali woman, Gamma Merle, and her family as their “son”; and his feeling of belonging and that his “spirit guides and ancestors are Aboriginal”.
Montgomery argued that Dutton had failed to give “proper, genuine and realistic consideration” to what he had said about his Aboriginality and “the consequences of this status on the impact of his removal”.
Justice Sarah Derrington found that Dutton had acknowledged representations about Montgomery’s Aboriginality “in considering the strength of his ties to the community”, but made no finding about his 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,” she said.
By failing to “give any degree of consideration” to the claim, Dutton committed a jurisdictional error, she said.
Derrington noted the commonwealth had accepted in the case that Montgomery “both identifies as an Aboriginal Australian and has been accepted by a traditional Aboriginal group as a member of that group”.
The judge noted that Montgomery has received Abstudy, a commonwealth social security benefit “directed specifically to Aboriginal people”.
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In those circumstances, the judge found that the suspicion held by Montgomery’s detaining officer that he is not an Aboriginal Australian was “not reasonable”, and he was therefore entitled to an order releasing him from immigration detention.
In his decision, Dutton had acknowledged Montgomery’s seven-year-old daughter, Wyntah-Willow, would be negatively affected by his deportation.
At the hearing in October, Montgomery’s lawyers argued Dutton had hidden his reasons behind “bland” understatement, showing insufficient appreciation that Wyntah-Willow would be effectively orphaned.
Derrington said although Dutton’s conclusion was “expressed blandly”, Montgomery had failed to show any representation Dutton hadn’t considered.
The judge found that Montgomery’s “only real complaint” was that insufficient weight had been given to their interests, but that was a matter for the minister not the court to decide.
Derrington rejected Montgomery’s argument that it was “legally unreasonable” for Dutton to conclude that if he were to reoffend the Australian community could be exposed to harm.
A spokesperson for the Department of Home Affairs told Guardian Australia it doesn’t comment on individual cases for privacy reasons, but was aware of the judgment.
“The department is considering the implications of the decision and will consider all options, including an appeal or making a new decision,” the spokesperson said. “It would be inappropriate to comment further at this time.”