Map of Sydney Australia

SYDNEY - The Australian government has released an Aboriginal man from immigration detention after judges said Indigenous people have a special legal status and cannot be deported — even if they are not citizens. The landmark case was brought by two convicted criminals who have Aboriginal heritage but foreign citizenship, and were to be expelled. 

Brendan Thoms was born in New Zealand, and Daniel Love in Papua New Guinea.  Each has Aboriginal heritage and an Australian parent.  They  moved as children to Australia, but they never became citizens.  Their lawyers argued they should not be deported for serious crimes because of their deep ancestral roots to Australia.  

Under the law foreigners, or "aliens," must lose their right to live and work in Australia if they have been sentenced to more than a year in prison.  The authorities wanted to deport both Thoms and Love.

But the High Court in Canberra found that first peoples hold a special position because of their spiritual and historic ties to the land.  The judges ruled that Indigenous people are exempt from Australia’s immigration laws, and cannot be deported, even if they are not Australian citizens.  

"I have just got off the phone from Brendan  and his mother, Jenny," said Claire Gibbs, a lawyer representing Brendan Thoms. "They are understandably incredibly thrilled, but very, very relieved with today’s decision, with the High Court finding that an Aboriginal Australian cannot be an alien for the purpose of the constitution.”

It is a defeat for the government.  It says it is reviewing the implications of the judges’ decision.  A senior minister said the ruling had created a new category of person in Australia, someone who is neither a citizen, nor a non-citizen.

The decision is only likely to affect a small number of people, but it is seen as a step forward for the legal recognition of Indigenous Australians.  They have long felt marginalized and discriminated against  by mainstream society.

Brendan Thoms has been released from immigration detention, but Daniel Love’s case is less certain.  The High Court could not agree if he had been accepted by the Aboriginal tribe he claims to be a member of, and it is unclear if he will qualify for the special status recognized in the judges’ ruling.

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