Two men with Indigenous heritage, but who were both born overseas, could be deported after they failed a migration character test, depending on the outcome of a High Court case which began on 8 May 2019.
The Australian Government’s policy to deport an increasing number of people under the character test provisions has raised numerous complications for Indigenous people and those born in PNG before its independence in 1975.
The two men in the separate High Court cases have at least one parent who is Indigenous and holds Australian citizenship. They both have Indigenous children, and one is a native title holder.
However, neither formally applied for Australia citizenship and, after being convicted of ‘serious’ crimes and given jail sentences of 12 months or more, both had their visas cancelled under the government’s character test provisions.
The High Court is now being asked to determine if an Aboriginal Australian in the men’s circumstances is an “alien” for the purposes of the Constitution.
It is the first time the Court has been asked to rule on the commonwealth’s use of its alien powers in this way.
In submissions to the Court, the men’s lawyers argued that Indigenous people “cannot be alien to Australia” and were “beyond the reach” of that constitutional power.
The Australian government has submitted that whether the men were Indigenous or native title holders was “irrelevant” to the question of their alien status. They have said it was an agreed fact that neither plaintiff was a citizen and that “non-citizen” was the same as “alien”.
Legal arguments began on Wednesday, with the government citing the High Court’s section 44 ruling on MPs with Australian citizenship concerns, and the men’s lawyers citing significant cases including the Mabo decision and the High Court ruling on a Papua-born man who was an Australian citizen by birth but who could be treated as an alien.