Aboriginal spiritual connection to land no bar to deportation, Morrison government says

Government lawyers made the claim in an appeal, warning that the Love and Thoms decision barring the deportation of Aboriginal non-citizens threatened the principle that Aboriginal sovereignty did not survive the colonisation of Australia.

In February 2020 the high court held in a four-three split that Aboriginal Australians were not aliens for the purpose of the constitution and could not be deported.

Guardian Australia revealed in October that the government was seeking to overturn the decision, which by April 2021 had resulted in nine people being released from immigration detention.

Donaghue submitted that even if Love and Thoms were correctly decided, the federal court decision to release Montgomery should be overturned because he lacked Aboriginal biological descent.

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.

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 argues that because he has been culturally adopted by the Mununjali people, he is Aboriginal.

The matter is yet to be listed for hearing.