Australia's highest court is set to decide whether two indigenous Australian men can be deported from their tūrangawaewae for breaching Australia's "good character" visa laws.
Brendan Thoms, 30, and Daniel Love, 39, were both born outside Australia to an indigenous parent but had not applied for Australian citizenship before being convicted of crimes that carried a jail sentence of 12 months or more.
Their lawyers are now asking the High Court of Australia whether the Australian government is justified in seeking to deport them on the basis that they are "aliens" who have failed the good character visa test.
In written submissions to the court, Maurice Blackburn, the law firm representing the men, has said that indigenous people who have inhabited the land for 80,000 years “cannot be alien to Australia” and have “never owed allegiance to a foreign sovereign power”.
In defence, the government's lawyers have argued that as 'non-Australian citizens' the men are 'aliens' under the law.
Thoms, who is Gunggari and a native title holder, was born in New Zealand to an indigenous mother and a Kiwi father but has lived in Australia since he was an infant.
Love, who has Kamilaroi whakapapa, was born in Papua New Guinea to an indigenous father and PNG mother and has lived in Australia since he was five, although his whānau travelled back and forth to Australia ever since he was born.
Both men had their visas cancelled following their convictions and were sent to an immigration detention centre.
Thoms has been there for the past seven months, while Love has been released and had his visa returned under ministerial discretion.
The court case began in Canberra on Wednesday.