Aboriginal people can not be deported

Clay Curtis
February 14, 2020

The country's conservative government has recently moved to deport hundreds of foreigners convicted of crimes as part of an immigration crackdown that can also leave dual-nationals stripped of their Australian citizenship.

Australia's highest court on Tuesday ruled two Indigenous men can not be deported even though they were born overseas and never applied for citizenship, in a landmark ruling for the country's first inhabitants.

Two indigenous men who were born overseas but moved to Australia as children, Daniel Love and Brendan Thoms, have been facing deportation after serving jail sentences.

"Brendan has had 500 sleepless nights worrying he could be deported at any time, and that is now thankfully at an end", said Ms Gibbs.

"He is very happy to have been released and to now be reunited with his family at long last", she added.

Acting Immigration Minister Alan Tudge said the ruling "created a new category of persons; neither an Australian citizen under the Australian Citizenship Act, nor a non-citizen".

The High Court of Australia in Canberra.

But the Commonwealth told the court any person who was not a citizen was an "alien" under the law, and that Mr Thoms and Mr Love owed their allegiance to the countries they were born in. Their visas were revoked after they were separately convicted in 2018 of crimes that carried prison sentences of more than a year.

Daniel Love and Brendan Thoms were both born overseas but each have a parent who's an Australian citizen.

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

What is the status of Aboriginal people in Australia?

Love has had his visa restored since his lawyers initiated court action in 2018 and lives on the Gold Coast.

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"The overarching finding is Aboriginal Australians can not be aliens and therefore can not be deported, even if they don't hold citizenship".

"It's about the use of alien powers, which we believe the government has been using inconsistently, unfairly and, now we've proven, unlawfully", she said.

"This case is not about citizenship".

Claire Gibbs, a lawyer for the 2 males, advised reporters afterwards: "This case is not about citizenship, it's about who belongs right here".

"From the perspective of common sense, Aboriginal Australians should never have been placed in immigration detention and threatened with deportation from Australia, and today's High Court decision has further reinforced this fact".

"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", they found.

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

However, Love and Thoms both identify as Indigenous.

" Both of my customers have suffered severe shame about being Aboriginal males in migration detention and they've been subject to a great deal of ridicule", Gibbs mentioned. They are not Australian citizens, but both identify as Aboriginal Australians.

She noted the case arose from Australia's increasingly tough policies of deporting non-citizens who break the law, some to countries where they don't speak the language or have any real connections.

The ruling is being seen as a historic second for the popularity of Australia's first inhabitants.

Australia has never reached a treaty with its indigenous peoples, which many argue this would bring important recognition.

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