By Phil Pennington of RNZ

A New Zealand citizen locked in detention is heading to Australia's highest court today to break new legal ground that would protect Aboriginal people from deportation.

The court will examine the question of whether Aboriginal or Torres Strait Islanders can be deported as aliens if they don't hold Australian citizenship.

Alongside another plaintiff, who was born in Papua New Guinea, New Zealand-born Brendan Thoms has been fighting his case since his deportation was ordered last year.

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The detainee's lawyer said on top of the jail time Brendan Thoms has done, and time in immigration detention, he now faces a third penalty of being torn from his tribal lands.

"What we say is that because Brendan is indigenous that the Constitution cannot treat him as an alien, that the power found in the Migration Act, cannot be used to deport him," Rod Hodgson of Maurice Blackburn lawyers in Brisbane told RNZ last year.

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Brendan Thoms' mother Jenny is Aboriginal, his father an expat New Zealander who now holds Australian citizenship.

The family lived in New Zealand until Brendan was seven-years-old - he never obtained Australian citizenship since he's been there.

Thoms admitted he's made mistakes, reflecting on his 18-month sentence for domestic violence.

"It's nothing I'm proud of, I'm embarrassed about it," he said.

After serving his sentence, Thoms' visa was cancelled in September this year and he was put in a Brisbane detention centre.

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Thoms has been battling deportation. Photo / Supplied
Thoms has been battling deportation. Photo / Supplied

"It's ridiculous, I honestly thought that I would be able to prove to them that I'm Aboriginal but their response to me was that they weren't even going to accept that when they were making a decision on the visa," Thoms told RNZ by phone from detention.

"It's ridiculous, I can't believe I'm in this situation," he said.

Thoms was asking to have an elder from his Gunggari tribe visit to get the word out to his people about his plight, but he said immigration officers had obstructed this.

"They basically said they can't organise it. Unlike in prison, there were no Aboriginal liaison officers to call on for help," he said.

"Y'know, I feel like my people done it hard, like my great-grandmother and my grandmother. I feel like I'm just hanging my head in shame walking around this place."

Thoms' cellmate recently agreed to be deported, even though it meant taking his Aboriginal children to New Zealand.

"They want to keep the family together, but they're taking the kids away from their land to do that - I was just heartbroken."

The man's tribespeople went to Federal Court, but the children's indigenous rights were not acknowledged, Thoms said.

Rod Hodgson has filed a writ in Australia's equivalent of the Supreme Court, aimed at making it illegal for the Federal Government to treat any Aboriginal as an "alien" as well as seeking damages for wrongful imprisonment.

- Additional reporting, NZ Herald

-RNZ