Legal detention ruling for Aboriginal man

·2-min read

It was legal for a New Zealand-born Aboriginal man to be held in detention after his Australian visa was cancelled, the country's highest court has found.

Brendan Thoms, who identifies as Aboriginal but was born abroad, had an Australian visa until it was cancelled in September 2018 after he was jailed for serious crimes.

He was detained as an "unlawful non-citizen" by officers from the Department of Home Affairs pending deportation.

Mr Thoms identified as an Aboriginal Australian and his mother was an Australian citizen of Aboriginal descent.

During the earlier proceedings, barrister Stephen Keim invoked the case of Mabo which acknowledged the history of Indigenous dispossession.

"To remove Aboriginal Australians from the country would be another, if not worse, case of dispossession," he said.

Mr Thoms was held in detention until a High Court ruling in February last year found he was not an "alien".

That case was brought by Mr Thoms and another Aboriginal man Daniel Love.

Mr Thoms also sought damages for wrongful imprisonment, with the High Court then asked to rule on whether his detention was unlawful.

Lawyers for Mr Thoms argued a section of the Migration Act was not supported by the Constitution "in its application to a person who is reasonably suspected of being an unlawful non-citizen but who is in fact not an alien".

But his argument was "unanimously rejected" by the High Court, the judgment published on Wednesday said.

"The court ... concluded that the applicant's detention was lawful because the objective facts at the time provided reasonable grounds for each of the officers to suspect that he was an unlawful non-citizen".

Maurice Blackburn senior associate Claire Gibbs said Mr Thoms was disappointed with the outcome.

"He spent more than 500 nights locked up in immigration detention," she said.

"He deserves justice and accountability for the way he was treated and the ongoing harm it has caused."

Ms Gibbs said the federal government had an opportunity to ensure no First Australians would ever again be declared aliens and threatened with deportation.

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