The High Court of Australia has ruled that Aboriginal people cannot be considered ‘aliens’ under immigration law and therefore cannot be deported for criminal convictions. 

The court was specifically focusing on the cases of two Indigenous men, Daniel Love and Brendan Thoms, who failed their migration character tests because they had served jail sentences. 

As a result, they were facing deportation from Australia. 

Credit: PA

Both men were born overseas however moved to Australia after birth and held permanent residency visas. 

According to the ABC, Mr Love, who has been welcomed by the Kamilaroi people, was sentenced to 12 months behind bars for an assault charge. Mr Thoms, who is native title holder as a member of the Gunggari people, was handed an 18-month sentence for domestic violence. 

Both their visas were cancelled after the convictions were handed out. 

The question facing the court was whether these two men could be deported considering they didn’t have Australian citizenship but still had ties to First Nation people. 

Brendan Thoms and Daniel Love. Credit: ABC

Four out of the seven judges in the High Court of Australia decided that Aboriginal people occupy a special position in the country, backed up by common law recognition of native title rights. Deporting them would violate an obligation for Australia to look after the Aboriginal community. 

The ruling said: “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.”

The High Court’s decision will be applied to Mr Thoms but not to Mr Love because it couldn’t confirm his Aboriginal heritage during the hearing. 

Credit: Bidgee/Creative Commons

Mr Thoms’ lawyer, Claire Gibbs, said outside the High Court that it’s a relief to finally have a decision after her client had spent so long in detention: “That’s 500 sleepless nights and we hope that is the last. 

“He’s missed two Christmases with his family [and] one of his son’s birthdays. His son’s birthday is coming up again so he’s hopeful of returning to celebrate with his family.

“In a practical sense, Brendan is still a New Zealand citizen, but he’s not an alien in this country and he’s protected from being deported. Aboriginal Australians can no longer be removed from the country that they know and the country that they have a very close connection with.”

The decision is being heralded as one of the biggest in Aboriginal legislation within Australia.