Australia is the only place Daniel Gibuma has ever called home.
- Australia’s government is challenging a landmark High Court ruling that found Indigenous peoples are not ‘outsiders’ within the meaning of the constitution
- If the decision is overturned, some Aboriginal and Torres Strait Islander people who are not Australian citizens will be vulnerable to deportation.
- Advocates call for political reform, saying human rights issues are at stake
It was there that he grew up diving for crayfish and learning to read the ocean and the tides.
This is the land his ancestors occupied for thousands of years before him.
This is the land on which his children and grandchildren now live.
But Mr Gibuma fears he will soon be kicked out of Australia for the second time in two years.
The thought leaves him riddled with anxiety.
“My family is all Torres Strait Islanders. That’s the only thing I knew growing up.”
Mr Gibuma is among 10 Aboriginal men freed from immigration detention since 2020, when a landmark High Court ruling found Aboriginal and Torres Strait Islander people could not be deported.
The decision applies to aboriginal people who are not citizens because they were born abroad.
But the Australian government is now seeking to have the landmark judgment overturned.
If successful, this will leave Mr. Gibuma and other non-Indigenous citizens vulnerable to deportation.
“It’s shocking to me,” Mr Gibuma said.
“I feel like I’ve been left alone by my own country.”
“My name was on the list”
Daniel Gibuma was born in Papua New Guinea, just a few miles from the Australian border, and moved to Boigu Island in the Torres Strait when he was six years old.
His ancestors are Torres Strait Islanders and Mr. Gibuma is a recognized Aboriginal title holder.
He held a permanent residency visa for decades, but it was revoked in 2018 when he was charged with common assault and was sentenced to prison.
The Australian government wanted to deport Mr Gibuma to Papua New Guinea under powers in the Migration Act which allow non-nationals to be deported if they have committed serious crimes.
Mr. Gibuma was held for two years in immigration detention.
“I couldn’t sleep, I had nightmares because they were picking people up in the middle of the night, putting them on the plane – and my name was on the list,” he said.
Mr. Gibuma feared being sent to Papua New Guinea.
But then, in February 2020, the High Court issued its landmark decision.
“A whole new class of people”
The judgment centered on the cases of two other Aboriginal men, Daniel Love and Brendan Thoms.
Both were also born overseas and were not citizens.
In a highly controversial interpretation of the Australian Constitution, judges ruled that non-Aboriginal citizens were not “aliens”, meaning they could not be deported under the Migration Act.
It has been considered the most important constitutional decision of recent years.
Claire Gibbs, the lawyer representing the men, said it was a victory for Indigenous people.
But the decision upset members of the Australian government.
Then Attorney General Christian Porter said it created “an entirely new class of people” who must be “treated differently from all other people in the same circumstances.”
Now the government is asking the High Court to review the decision in another case involving a man claiming to be a non-Aboriginal citizen, Shayne Montgomery.
In their submissions, Commonwealth lawyers argue that the judges’ reasoning in the cases involving Mr Love and Mr Thoms was inconsistent.
They also say the ruling confers “incorrect political sovereignty” on Aboriginal and Torres Strait Islander people by giving them the power to decide who can and cannot live in Australia.
To prove that they are aboriginal, a person must be recognized by a group of traditional owners.
“This makes the question of whether certain people are members of the Australian body politic dependent on whether they are recognized as members of an Aboriginal society,” the lawyers say.
This, according to the Commonwealth, gives indigenous peoples “a constitutional capacity greater than that conferred on any state parliament”.
Lawyer says government challenge is ‘insulting’ to Indigenous peoples
Ms Gibbs said the government’s challenge to the decision was insulting to Indigenous Australians.
“They refuse to accept that they were wrong.”
Meanwhile, as non-citizen non-aliens, people like Daniel Gibuma are stuck in limbo.
Without a current visa or citizenship, Mr. Gibuma is not legally able to work and he is not eligible for government services like Centrelink and Medicare.
Since his release from immigration detention, he has relied on his children for financial support.
“I need to be given the rights as a human being to reintegrate into this society,” he said.
“To find a job, pay taxes and give something back to this country.”
Another native non-citizen, Dunder Koiget, has been homeless since being released from immigration detention in April last year after being charged with drug trafficking.
Mr Koiget said couch surfing with friends was shameful and stressful.
But he fears being sent back to Papua New Guinea, where he was born.
“If I go back to PNG, I will be killed because I received death threats in PNG,” he said.
Mr Koiget said he had made mistakes in the past but was determined to turn his life around.
“I would like to be an Australian citizen. It’s a good place here,” he said.
Policy reform needed, say supporters
The Deputy Director of the UNSW Center for Indigenous Law, Dani Larkin, said swift law reform was needed to recognize the rights of non-Indigenous nationals to live and work in Australia.
“[That way] you can actually exist properly in this country,” Dr. Larkin said.
“There is a complete deprivation of access for this group of people to exercise their own civil liberties.”
She said legal reform would require consultation with the Indigenous community.
“The immigration framework as it stands must be able to recognize this previously unidentified and unrecognized group of people who are non-citizens, non-aliens,” Dr Larkin said.
A spokesperson for the Attorney General said the government respects the High Court’s ruling in Love and Thoms and is acting in accordance with the ruling, and is committed to working closely with Aboriginal and Torres Strait Islander people on a policy aimed at improving socio-economic outcomes.
The Home Office is currently assessing around 22 other people in immigration detention who may be indigenous and fall under the Love and Thoms ruling.
A spokesperson said none had yet passed the three-part test proving their indigeneity.
“The department invests a significant amount of resources to provide high quality facilities and equipment, a wide range of services and activities within the detention network and to ensure safety and security in the centers,” said the spokesperson.