Foreign-born criminals who claim to be Aboriginal win fight to stay in Australia as High Court rules indigenous people CAN'T be deported
- The High Court has ruled indigenous people can't be deported from Australia
- Majority 4-3 verdict said they couldn't be seen as 'aliens' under the constitution
- New Zealand-born Brendan Thomas, 31, had legally challenged his deportation
- So had Papua New Guinean-born Daniel Love, 40, jailed for a serious assault
Aboriginal people cannot be deported from Australia because they are exempt from immigration laws, the High Court has decided.
Australia's most powerful court has delivered a majority 4-3 verdict ruling that indigenous residents born overseas can't be considered 'aliens' under the constitution.
The full-bench decision, announced in Canberra on Tuesday morning, is a major win for two indigenous men fighting deportation from Australia after serving time in prison for violent crimes committed in Queensland.
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 31-year-old man was detained in 2018 and had his residency visa cancelled after serving part of an 18-month jail sentence for a domestic violence attack.
He also had further convictions dating back more than a decade.
Aboriginal people cannot be deported from Australia because they are exempt from immigration laws, the High Court has decided. Pictured: New Zealand-born Brendan Thoms, who had his residency visa cancelled after serving part of an 18-month jail sentence for domestic violence
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The court verdict is also likely to spare Papua New Guinea-born man Daniel Love from deportation, although the judges disagreed on whether he had been accepted as part of the Kamilaroi tribe.
The 40-year-old man, with a PNG mother and an indigenous father, has lived in Australia permanently since he was five.
He was detained in a Brisbane immigration detention centre in 2018 after he had served a 12-month sentence for assault occasioning bodily harm.
Neither man holds Australian citizenship, but both identify as indigenous, and each has one Australian parent.
The men are seeking damages for false imprisonment after being placed in immigration detention pending their deportation.
The High Court released a statement confirming the 'majority' of justices held the view Parliament could not 'treat an Aboriginal Australian as an "alien"' under the constitution.
The court, however, was unable to agree as to whether Papua New Guinea-born Daniel Love was Aboriginal, casting some continued uncertainty over his case
Claire Gibbs, a senior associate with social justice law firm Maurice Blackburn who acted for both men, said the High Court decision would stop Aboriginal people from being removed from Australia.
'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,' she said in a statement on Tuesday.
Last year, a barrister for the two men, Stephen Keim SC, invoked the landmark Mabo native title case of 1992, which acknowledged the history of indigenous dispossession.
'To remove Aboriginal Australians from the country would be another, if not worse, case of dispossession,' he said.
Both men had their visas cancelled under Section 501 of the Migration Act by virtue of being jailed for at least 12 months.
They were not awaiting deportation under Section 116 of the same law, where Immigration Minister David Coleman can have someone expelled from Australia if they are deemed a threat to public safety.
Ms Gibbs called for Thoms to be released immediately from immigration detention.
'Brendan has spent 500 nights in detention, he has missed two Christmases with his family,' she said.
'He has paid a hefty price for a crime he had already served time for and he must be released as a matter of urgency.'
Both men were represented by Maurice Blackburn and the Refugee and Immigration Legal Service based in Brisbane.
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