Australia's highest court rules indigenous people can't be deported

The court found that Brendan Thoms, 31, who was born in New Zealand to an indigenous Australian mother, was an Aboriginal Australian. Photo / Supplied

Australia's highest court ruled Tuesday the Government can't deport Aboriginal people as part of its policy of ridding the country of foreign criminals.

The High Court ruled in a 4-3 decision that indigenous Australians cannot be deported even if they do not hold Australian citizenship.

The court had heard the case of two men who were born overseas but identified as being from indigenous tribes.

The Government attempted to deport them after they served prison sentences for violent crimes. The Government has been criticised for deporting some criminals who have lived in Australia since they were children but had never become citizens.

The court found that Brendan Thoms, 31, who was born in New Zealand to an indigenous Australian mother, was an Aboriginal Australian.

Thoms had lived in Australia since he was 6, is accepted as a member of the Gunggari tribe and is recognised as a native titleholder of their traditional land.

But a majority of judges was not convinced that Daniel Love, 40, was indigenous and was accepted as a member of the Kamilaroi tribe.

He was born in Papua New Guinea to an indigenous Australian father and has lived in Australia since he was 5.

His lawyers say he will provide more evidence of his Aboriginality and another trial could be held to decide the issue.

Both Love and Thoms were placed in immigration detention and threatened with deportation on their release from prison after serving sentences for unrelated crimes.

Love has had his visa restored since his lawyers initiated court action and lives on the Gold Coast.

Thoms has been in immigration detention in Brisbane for the 16 months since he completed a six-month prison sentence.

Daniel Love. Photo / Supplied

Their lawyer Claire Gibbs demanded that Thoms be immediately released.

"He's very anxious to be released and to be reunited with his family after all this time," Gibbs said outside court.

"The High Court has found that Aboriginal Australians are protected from deportation.

"They can no longer be removed from the country that they know and that they have a very close connection with," she added.

The Home Affairs Department did not immediately respond to a request for comment.

Gibbs said both Love and Thoms would sue the Government for wrongful detention.

"Both of my clients have suffered severe embarrassment about being Aboriginal men in immigration detention and they've been subject to a lot of ridicule," Gibbs said.

"So it's been a very, very tough time for them both."

The court found Aboriginal Australian have a special cultural, historic and spiritual connection to Australia which is inconsistent with them being considered "aliens" in the meaning of the Australian constitution.

Indigenous Australians make up 3per cent of the population and are the most disadvantaged minority group in a range of measures.

Indigenous Australians die younger than other Australians and are over-represented in prisons.

- AP