Landmark case says foreign-born Aboriginal Australians cannot be deported

SYDNEY (AFP) - Aboriginal Australians are exempt from immigration law, the country's top court ruled Tuesday (Feb 11), 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.

Although Love and Thoms were born overseas and never applied for Australian citizenship, they identify as Aboriginal Australians, have one indigenous parent each, and have lived in the country since they were 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 Australian 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 came into force only 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.

Ms 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 Ms Gibbs said had suffered "severe embarrassment" and been "subject to ridicule" as a result of being Aboriginal men held in immigration detention.

Australia's conservative government has in recent months moved to deport hundreds of foreigners convicted of crimes as part of an immigration crackdown that can also strip dual-nationals of their Australian citizenship, Reuters reported.

The move has seen scores of people deported from Australia, sometimes to countries they had left when they were just children.

The country's 700,000 or so indigenous people track near the bottom of its 25 million citizens in almost every economic and social indicator.