Both men identify as Indigenous Australians, both have served time behind bars and neither holds Australian citizenship.

In a landmark decision on Tuesday, the High Court issued a reprieve for Daniel Love and Brendan Thoms, delivering a blow to the Department of Immigration that was seeking to deport the pair.

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The High Court ruled in a 4-3 majority decision that given Thoms’ Aboriginal ancestry, he could not be classified as an alien under the constitution.

Both Love and Thoms were facing deportation after serving time in prison, under recent laws that give ministerial power to cancel visas on character grounds.

Case 1: Brendan Thoms

Thoms, 30, was born in New Zealand to an Aboriginal mother and a Kiwi father who holds Australia citizenship.

He has lived in Australia since the age of seven but never obtained citizenship.

Thoms’ visa was cancelled more than a year ago after he completed an 18-month jail sentence for domestic violence, with the Australian government seeking his deportation to New Zealand.

The High Court ruled on Tuesday Thoms could not be deemed an alien, given his status as an Aboriginal Australian.

Case 2: Daniel Love

Love, 39, was born in Papua New Guinea to a PNG mother and Aboriginal father.

He has lived in Australia since the age of five but never obtained citizenship.

Love served 12 months for assault occasioning bodily harm and subsequently had his visa cancelled, with the Australian government seeking his deportation to Papua New Guinea.

On Tuesday, the High Court was unable to agree as to whether Love is Aboriginal, casting continued uncertainty over his case.

Both men are seeking damages for false imprisonment after being placed in immigration detention pending their deportation.

Last year, barrister for the two men, Stephen Keim SC, invoked the case of Mabo that acknowledged the history of Indigenous dispossession.

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

With AAP

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