Australia's highest court has ruled that two Indigenous men cannot be deported even though they were born overseas and never applied for citizenship, in a landmark ruling on Tuesday for the country's first inhabitants.

The country's conservative government has recently moved to deport hundreds of foreigners convicted of crimes as part of an immigration crackdown that can also leave dual-nationals stripped of their Australian citizenship.

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Many people have been deported from Australia, sometimes to countries they had left when just children.

Daniel Love and Brendan Thoms were born overseas with at least one of their parents an Indigenous Australian citizen.

Both men had been living in Australia with permanent residency visas but had never applied to become citizens. Their visas were revoked after they were separately convicted in 2018 of crimes that carried prison sentences of more than a year.

Australia's conservative government had sought to treat the men as foreigners and deport them to Papua New Guinea and New Zealand.

But in a 4-3 ruling, Australia's High Court said the men must be treated as citizens and can therefore remain. Love still faces another hearing to determine his indigenous heritage.

Special connection

Thoms, 31, was released after 501 days in immigration detention within hours of the ruling that he was entitled to live in Australia, his lawyer Claire Gibbs said.

"Brendan has had 500 sleepless nights worrying he could be deported at any time, and that is now thankfully at an end," Gibbs said in a statement.

"He is very happy to have been released and to now be reunited with his family at long last," she added.

Thoms has lived in Australia since he was six years old, is accepted as a member of the Gunggari tribe and recognised as a native title holder of their traditional land.

But a majority of judges was not convinced that 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 five years old.

His lawyers say he will provide more evidence of his heritage 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.



The court found that Indigenous Australians 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.

Gibbs said the government had used its constitutional powers to deal with aliens "inconsistently, unfairly and, now we've proven, unlawfully".

"This case isn't about citizenship. It's about who belongs here, who's an Australian national and who's a part of the Australian community," Gibbs told reporters 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."

Indigenous Australians make up 3 percent of the country's population and are the most disadvantaged minority group in a range of measures. They die younger than other Australians and are overrepresented in prisons.