Aboriginal Australian born overseas 'cannot be alien', court rules

Landmark case says Aboriginal Australians cannot be deported

Attorney-General Christian Porter says the government will seek to work around a controversial High Court ruling that non-citizens who identify as Aboriginal can not be deported.

The precedent set by the ruling means nobody with indigenous Australian heritage can be deported from the country.

Lawyers for the men argued Aboriginal Australians could not be "alien" to Australia, and thus, that that section did not apply to them. The government has been criticized for deporting some criminals who have lived in Australia since where were children but had never become citizens. Their visas were revoked after being convicted separately in 2018 for crimes that led to prison sentences of more than one year.

This is especially so for New Zealand-born Brendan Thoms, who has lived in Australia since 1994 and is a descendant of the Gunggari people through his maternal grandmother.

" The High Court has found that Aboriginal Australians are secured from deportation".

Daniel Love, who is facing deportation, still faces uncertainty.

"That Aboriginal Australians are not "aliens" within the meaning of that constitutional term in s 51 (xix) is another", she said.

"Brendan has had 500 sleepless nights worrying he might be deported at any time, and that's now fortunately at an finish", stated Ms Gibbs.

" He is extremely delighted to have been launched and to now be reunited with his household at long last", she added.

But most of the judges were not convinced that Love, 40, was indigenous and was accepted as a member of the Kamilaroi tribe.

Love was born in Papua New Guinea and has been a permanent resident of Australia since 1984.


Both Love and Thoms were placed in immigration detention and threatened with deportation on their release from prison after serving sentences for unrelated crimes.

Love has had his visa restored contemplating that his attorneys initiated court docket motion and resides on the Gold Coast.

"Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law", said the ruling.

"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", Claire Gibbs, a lawyer for the two men, told reporters in Canberra.

The president of the Law Council of Australia, Pauline Wright, welcomed the decision, saying it confirmed that questions about membership of Aboriginal societies were beyond the Parliament's legislative power.

"This is a very significant decision today that has helped to clarify the law - it is now beyond doubt that Aboriginal Australians can not be deported through the exercise of the aliens power", Ms Gibbs said.

"The Department of Home Affairs will consider the best methods to review other cases which may be impacted".

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

"My two clients have been very embarrassed to be aboriginal men in immigration detention and have been the subject of many mockeries", Gibbs said. They are not Australian citizens, but both identify as Aboriginal Australians.

"Significantly, today's ruling is also a win for any other Aboriginal Australians in similar circumstances and we are very proud of this result", she said.

Indigenous Australians make up 3 percent of the country's population and are the most disadvantaged minority group in a range of measures.

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