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

The High Court case will focus on whether an Indigenous person can be considered an “alien” under the Australian Constitution. (AAP) Source: AAP

The struggle of two Aboriginal men born overseas to remain in Australia is the subject of a case before the High Court.

In a case described as a landmark trial, lawyers are asking the High Court to make a determination on whether Indigenous people can be considered as an 'alien' under the Australian constitution and therefore be exempt from the government's deportation powers.

Chief Justice Kiefel AC described the term 'alien' in simple terms as a person who is born in another country and does not hold Australian citizenship, whether they are Aboriginal or another foreign nationality.

Barrister Steven Keim SC acting on behalf of Maurice Blackburn Lawyers, argued that Aboriginal people be exempt from the term ‘alien’ and said it was the "worst form of Australian dispossession" to deport an Indigenous person based on the Constitutional definition of the term 'alien'.

He said the Court should keep up with the changing modern society and move away from a precedent that came into effect in 1901.

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.

In submissions filed to the High Court in early April, lawyers asked the court to rule that an Aboriginal person who does not have citizenship - but has at least one Indigenous parent, came to Australia at a young age and has only left for short periods of time - be exempt from the government’s mandatory deportation powers.

In court on Wednesday, Solicitor-General Stephen Donaghue said anyone born outside of Australia who holds no Australian citizenship, Aboriginal or otherwise, should be treated the same way, and that is as an ‘alien’.

Lawyers for the two Indigenous men facing deportation as 'aliens' asked the court to clearly define the term and for Aboriginal people not to be considered as an ‘alien’.

Based on judicial construction, people who aren’t citizens of Australia and belong to another country are considered an ‘alien’ under the Australian Constitution.

Maurcie Blackburn senior assoicate, Claire Gibbs, told reporters outside of the court, that clients Daniel Love, 39, and Brendan Thoms, 31, are accepted as Indigenous Australians regardless of their citizenship status.

"They are Aboriginal men and they are accepted by their communities as such. They have Aboriginal children who are also Australian citizens," she said.

Ms Gibbs said she is confident the court will rule in favour of both men, a decision which will set a future precedent for other non-citizen Indigenous Australians.

Four out of seven of the High Court Justices need to rule in favour of the case for it to be successful.

The hearing will continue on Thursday.

A recent change in law

In 2014, the immigration laws changed allowing visas to be revoked if a person has been convicted of a crime carrying a jail sentence of 12 months or more.

Minister for Home Affairs Peter Dutton or delegate of the Minister has the power to reinstate a cancelled visa, at the discretion of individual cases.

The government has since deported a number of Indigenous people who have been convicted of crimes on the basis of 'character'.

Mr Love, a Kamilaroi man born in Papua New Guinea, had his permanent visa reinstated and was released from immigration detention after spending seven weeks with the fear of being exiled and has sued for $200,000.

Mr Thoms, a Gunggari man born in New Zealand, has been in detention since September last year.

Jenny Thoms, Mr Thoms mother, is a Gungarri woman and told NITV News his possible deportation is weighing heavily on the family.

“We’ve been up and down with our emotions but luckily for us, Brendan has mentally been OK so that’s helped us get through it,” she said.

Ms Thoms said it was a “shock” when she found out, only one day before Mr Thoms was due to be released on parole, that her eldest son was being shipped to an immigration detention centre instead of going home.

If Mr Thoms is sent back to New Zealand, he would be separated from his 6-year-old son, who Ms Thoms said is “just starting to ask after his dad now… he is asking when Dad is coming home”.

She said her son should be allowed to stay where his family is because he is a Native Title Holder and proud Indigenous man.

If the court rules against the lawyers’ argument, Ms Thoms said it would greatly impact the family and take an emotional toll on Mr Thoms and her grandson.