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| 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.
