Landmark case says Aboriginal Australians cannot be deported

Yahoo – AFP, Holly ROBERTSON, February 11, 2020

Australia's highest court says immigration law does not apply to Aboriginal
Australians (AFP Photo/SAEED KHAN)

Aboriginal Australians are exempt from immigration law, the country's top court ruled Tuesday, in a historic decision that found indigenous people born overseas cannot be deported.

Australia had been trying to deport two men -- Papua New Guinea citizen Daniel Love and New Zealand citizen Brendan Thoms -- under laws that allow a convicted criminal's visa to be cancelled on character grounds.

Both men identify as Aboriginal Australians, each has one indigenous parent, and they have lived in the country since they were small children.

Love, who served time for assault, and Thoms, who had been jailed for domestic violence, have been battling in the courts to stay in Australia, arguing that they may be "non-citizens" but they are also not "aliens".

The High Court ruled in a decision that split the judges 4-3 that Aboriginal Australians "are not within the reach" of constitutional provisions relating to foreign citizens.

Indigenous people have inhabited the vast continent for more than 60,000 years, while the modern nation's constitution only came into force in 1901.

Thoms -- who was already recognised as a traditional land owner -- was accepted by the court as Aboriginal.

But the judges could not agree on whether Love was under a three-part test that considers biological descent, self-identification and community recognition.

Lawyer Claire Gibbs, who represented the men, hailed the decision as "significant for Aboriginal Australians".

"This case isn't about citizenship, it's about who belongs here, who is an Australian national and who is a part of the Australian community," she told reporters in Canberra.

"The High Court has found Aboriginal Australians are protected from deportation. They can no longer be removed from the country that they know and the country that they have a very close connection with."

The case marked the first time an Australian court has considered whether the government has the power to deport indigenous people.

But it also touched on the contentious question of how Aboriginality is defined in the law.

Gibbs said she was "confident" that they would eventually be able to prove Love's status as he was "accepted by his community as Aboriginal" and had "biological proof" that he was a descendant of the First Australians.

Lawyers will now pursue compensation claims on behalf of both men, who Gibbs said had suffered "severe embarrassment" and been "subject to ridicule" as a result of being Aboriginal men held in immigration detention.

Acting Immigration Minister Alan Tudge described it as a "significant judgement" that has "implications for our migration programs".

"On the face of it, it has created a new category of persons; neither an Australian citizen under the Australian Citizenship Act, nor a non-citizen," he said in a statement.

The government was reviewing the decision and its implications, Tudge said.

Thoms was freed from immigration detention following the ruling, while Love had been released back in September 2018.