A deported Torres Strait Islander man has been in an immigration holding facility on Horn Island since May 30 after re-entering Australian territory by dinghy and landing on the Torres Strait Island of Saibai.
Daniel Charlie arrived from Papua New Guinea early last week and claims he handed himself over to Australian Border Force officers.
Mr Charlie was deported to PNG in April 2017 after spending years in Australian immigration detention centres –including two years on Christmas Island– and is adamant he is an Australian citizen and wants to come home.
“When I arrived on Saibai I went to Immigration and told them to take me to a detention centre,” Mr Charlie told Torres News.
“At first they refused, they didn't know what to do with me for a couple of days, they told me to go back to Daru from where I came – but I insisted and they eventually took me [in],” he said.
Mr Charlie, who was born in Papua in 1973 prior to PNG independence in 1975, believes he is an Australian citizen as he was born in an external Australian territory.
He moved to the Torres Strait with his family in November 1976, a year after PNG's independence where they finally settled on the Torres Strait island of Erub.
Since then, Mr Charlie has spent his whole life living in Australia.
Like many people born in the state of Papua prior to PNG's independence, Daniel Charlie thought he was an Australian citizen from birth and, like many others in his situation, was unaware his citizenship status had been revoked after Australian government legislation in 1975 changed the status of these people to Permanent Stay Visas.
“I was born an Australian citizen, why do I have a visa? - I have been stuck in detention centres for years,” he said.
“I believe how this issue has been proceeding, everything is coming into the light – I think I now have a chance that my case may be heard.”
Shamili Kugathas of the Sydney-based law firm Australian Presence Legal, which is currently representing Islander clients caught up in this scenario told NITV there are a "significant number" of indigenous people born before PNG independence in 1975, particularly from the Torres Strait region, who find themselves in legal limbo where neither the Australian nor PNG governments are prepared to accept that they have citizenship rights.
“For their sake, the issue needs to be finally determined either by the courts, through legislation, or diplomatically," said Ms Kugathas.
In 2007, Mr Charlie was released from jail after serving six years for armed robbery and then taken into Sydney's Villawood Immigration Detention Centre where he spent the next four years.
“A human rights group in Sydney (NGO Public Interest Law Clearing House) took on my case and in 2011 I was released on a visa while they tried to work out my case – the lawyers were trying to take the government to court,” he said.
It is not known how far the NGO got with Mr Charlie’s case.
In 2015 Mr Charlie was jailed for one month for assault before being transferred to Christmas Island, where he stayed until he was deported against his will in April 2017 to Port Moresby: a country he had not lived since he was a a young child.
On February 28, 2018, Mr Charlie took his case to PNG's National Court with the help of an Office of Public Sector solicitor seeking a court order to return home to Australia.
The court ruled in Mr Charlie’s favour finding he either “has a right to permanent resident in Australia; or: Is an Australian citizen; or: Is a stateless person”, according to the court records.
However, the PNG Government has lodged an appeal with PNG’s Supreme Court to overturn the National Court’s ruling and the case will set a legal precedent in PNG in how they consider people in Mr Charlie’s situation.
When contacted about mt Charlies plight, the Australia's Department of Home Affairs told Torres News that it does not comment on individual cases.
“Determining the Australian citizenship status of people born prior to PNG independence (September 1975), under Australian citizenship law and the PNG Constitution, depends on particular individual circumstances,” the department said in a statement.
The Shadow Minister of Home Affairs, Senator Kristina Keneally, did not respond to a request for comment on the case.