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High Court will decide if Indigenous people without citizenship can be deported

The case will focus on whether an Indigenous person can be considered an “alien” under the Australian Constitution.

Lawyers will argue in the High Court of Australia this month that Indigenous people should be exempt from the government’s mandatory deportation powers.

Immigration laws changed in 2014 allowing visas to be revoked if a person has been convicted of a crime carrying a jail sentence of a year or longer.

Data shows the number of visa cancellations in Australia has increased steadily since then.

A significant proportion of people currently detained at onshore detention centres face the prospect of being sent to New Zealand, the Pacific Islands or Papua New Guinea, including those who have lived in Australia for most of their life.

In some cases the government has attempted to deport people with Indigenous heritage, notably Daniel Love and Brendan Thoms.

Both men have one Aboriginal parent, were born overseas and lived in Australia since they were young children. They were both told shortly before their scheduled release from jail they would instead be going to immigration detention.

Love, a Kamilaroi man born in Papua New Guinea, had his visa reinstated after seven weeks in detention and has sued for $200,000.  Thoms, a Gunggari man born in New Zealand, remains in detention.

In a submission filed with the High Court last month, lawyers for the men argued that they could not be considered “aliens” under the Australian Constitution. 

“We need that clarification by the highest court in the land to say that someone who is Aboriginal, who is descended from the first people of Australia before the European settlement, can’t be an alien,” Maurice Blackburn senior associate Claire Gibbs told NITV.