An Aboriginal man held in immigration detention for 500 days should be immediately released after the High Court found he cannot be deported, his lawyer said.
A landmark decision handed down today determined that Indigenous Australians are not “aliens” under the Constitution, after a test case brought on behalf of two men.
Daniel Love and Brendan Thoms were both born overseas but each have a parent who’s an Australian citizen. They both identify as Aboriginal Australians and Mr Thoms also holds native title.
But they spent time in prison for serious criminal offences and the government cancelled their visas in 2018 and sought to deport them – Mr Thoms to New Zealand and Mr Love to Papua New Guinea.
Maurice Blackburn senior associate Claire Gibbs, who is acting for the men, said the court’s decision was significant for all Aboriginal Australians born overseas and a key step in the road to justice for Brendan Thoms in particular.
“This is a very significant decision today that has helped to clarify the law – it is now beyond doubt that Aboriginal Australians cannot be deported through the exercise of the aliens power,” Ms Gibbs said.
“The Federal Government must release our client Brendan Thoms from detention today.
“The High Court has found that Brendan is an Aboriginal Australian and with their further ruling today that Aboriginal Australians are not aliens.
“There is no excuse for him to be detained a minute longer.”
New Zealand-born Brendan Thoms is fighting against deportation to New Zealand.Source:Facebook
Mr Thoms has spent 500 days in immigration detention, which Ms Gibbs described as “a hefty price for a crime he had already served time for”.
“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.”
Both men came to Australia as children but identify as Aboriginal and have a “proud family history here and a strong connection to the land”, she said.
Mr Thoms has a claim to native title.
“Both had well and truly served their time for crimes committed, yet they were punished twice with no basis for doing so, and for our client Brendan this remains the case.”
The 4-3 majority decision in the High Court represents a significant victory for Mr Thoms but the court was unable to determine whether Mr Love is Aboriginal, continuing his uncertainty.
In court last year, Stephen Keim SC, barrister for the men, said removing them from the country would constitute significant dispossession.
“What we say is, to interpret the ‘aliens’ clause in the constitution to say it’s all right to remove Aboriginal Australians from the country they have occupied for 80,000 years on the mere basis that they happen to be born overseas is another dispossession and raises similar challenges to that considered by the court with regard to Terra Nullius,” Mr Keim said.
Ms Gibbs said the government’s decision to detain the men “defied logic” and said today’s decision had exposed it as “unfair” and “also wrong”.
“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.