Recent High Court Judgment on deportation of Aboriginal people from Australia

In the recent cases of Love v Commonwealth of Australia and Thoms v Commonwealth of Australia, the High Court of Australia ruled that Aboriginal Australians cannot be considered "aliens"[1] under the Australian Constitution, presenting a major hurdle to the deportation of two men, Brendan Thoms and Daniel Love. This article outlines the background to this High Court case and further highlights its significant implications for the Aboriginal community who are confronted with risks of deportation.  ‍

Background  

The background of Mr Thoms and Mr Love are as follows:  A. Mr Thoms  Mr Thoms was born in New Zealand to an Aboriginal Australian mother and a New Zealand father. He has lived in Australia since the age of six. In 2018, he was sentenced to 18 months imprisonment for assault occasioning bodily harm. His Visa was also cancelled under section 501(3A) of the Migration Act 1958 and he was placed in immigration detention.  B. Mr Love  Mr Love was born in Papua New Guinea to a mother who was a Papua New Guinea citizen and a father who was an Australian citizen. His father is of Aboriginal Australian and Papuan descent. Mr Love has lived continuously in Australia on a Permanent Residency Visa since the age of six. In 2018, he was imprisoned for 12 months for assault occasioning bodily harm. The Minister for Home Affairs cancelled Mr Love's visa under section 501(3A) of the Migration Act 1958 on the basis that he was sentenced to a term of imprisonment of 12 months or more and therefore failed the character test.  Mr Love was transferred from prison to immigration detention as an unlawful non-citizen. He was released from immigration detention as an unlawful non-citizen in September 2018 when the Department of Home Affairs invoked the decision to cancel his Visa.  

‍Arguments presented by both parties  

Both Mr Thoms and Mr Love argued that as Aboriginal people that have a special connection with Australia they cannot be regarded as "unlawful non-citizens"[1] for the purposes of section 189 of the Migration Act 1958 or as aliens for the purposes of section 51 of the Constitution ("the Aliens Power"[1]).  On behalf of Mr Thoms and Mr Love, Stephen Keim SC submitted the following:  What we say is, to interpret the "aliens"[1] clause in the Constitution to say it is alright 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. The Commonwealth of Australia had argued in response that any person who does not have citizenship is an alien under the Australian Citizenship Act 2007.  

‍Implications of the recent High Court judgment

‍Since the challenges by Mr Thoms and Mr Love have been on foot, reports have shown that the Commonwealth of Australia is seeking to deport other people of Aboriginal descent to other countries in similar circumstances.  The 4-3 majority decision in the High Court of Australia is a big victory for New Zealand born Mr Thoms, who is fighting against deportation after serving time in prison. However, the High Court was unable to agree as to whether Papua New Guinea - born Daniel Love is Aboriginal, casting some continued uncertainty over his case.  The recent High Court decision has helped the Aboriginal community in Australia to assert with confidence that people of Aboriginal descent cannot be considered as aliens and thus they will not be deported to other countries by the Commonwealth of Australia.  If you require legal advice or representation in an immigration matter or another legal matter, please contact Hutchinson Legal on 03 9870 9870.