• Two Torres Strait Islanders in detention say they were approached by Border Force after the High Court decision and asked to prove their ancestry. (AAP|/Tracey Nearmy)Source: AAP|/Tracey Nearmy
Border Force officials have allegedly asked two Torres Strait Islander detainees to prove their ancestry and released two others following the Love & Thoms decision in the High Court on Wednesday.
Aaron Smith

15 Feb 2020 - 12:00 AM  UPDATED 15 Feb 2020 - 12:00 AM

Two Torres Strait Islander men being held in detention and facing deportation from Australia say they were approached by Border Force officials following the Love & Thoms decision in the High Court on Wednesday and asked to prove their ancestry.

Daniel Gibuma, a registered Traditional Owner of the Torres Strait Island of Boigu, told NITV News he has been held in Yongah Hill Detention Centre for a period of over two years. On Thursday, Australian Border Force (ABF) officers approached him asking for a letter from Elders to prove his First Nation Heritage, he said.

"They have taken all my family support documents and my ID and I think I am going home to the islands on Monday,” said Mr Gibuma.

However, he said that the ABF Officers have provided nothing in writing, only an email address to send any supporting documentation.

Another Torres Strait Islander, Daniel Charlie, told NITV News he has been held in the Melbourne Immigration Transit Accommodation (MITA) detention centre for the last eight months and that he had also been approached by Border Force officers on Thursday.

 “[They] asked for proof of me being Indigenous, but they never gave me anything in writing, just an email to send stuff to, I didn’t realise they are doing it to send me home.”

Mr Charlie said he had spent nearly seven years in detention centres, including two years on Christmas Island, before he was deported to Papua New Guinea in 2017 where he remained homeless and stateless until he returned home by dinghy in 2019.

Both the PNG National Court and the PNG Supreme Court have ruled Mr Charlie is not a PNG citizen.

Two more Islanders – Akee Charlie (who has spent over four years in detention) and Andrew Kabe (who has been in detention for nearly two years)– are believed to have both been released from Yongah Hill on the same day that the ABF spoke to Mr Gibuma.

All of these men were born in PNG prior to independence in 1975 and were considered Australian citizens at birth, and in some cases Traditional Owners of Australian territory.

However, after the Australian Government passed legislation in 1975, thousands of Australians had their citizenship revoked and were placed on Permanent Stay Visas, often without their knowledge.

In 2014, after the federal government made amendments to Section 501 of the Migration Act 1958, Mr Gibuma and Mr Charlie found they had been deemed stateless due to their criminal records.

Not 'Aliens'

On Tuesday, the High Court ruled Aboriginal Australians cannot be considered "aliens" under the constitution when it heard the cases of two convicted criminals and non-Australian citizens the government wanted to deport.

The four-three majority decision was a big victory for New Zealand-born Gunggari man Brendan Thoms, though the Court was unable to agree as to whether Papua New Guinea-born Daniel Love, a descendent of the Kamilaroi people, is Aboriginal.

In a statement to NITV News, the Australian Presence Legal (APL), a Sydney-based law firm that represents clients who claim to be of Torres Strait Islander descent and are currently held in immigration detention, said while the Love & Thoms case could provide hope to detainees of First Nations descent, the decision was likely "to be open to future judicial scrutiny".

“News which is coming through that some of our clients of Aboriginal and Torres Strait Islander descent have been released from detention is positive, and indicates that the Government is complying with the recent High Court decision," said the firm.

“However, we caution against giving false hope that the issues have been resolved, given the recent statements by the Attorney General Christian Porter who suggests the Government may seek to sidestep the court’s decision by way of drafting or changing legislation, which would permit deportation in certain circumstances.”

Our rightful place, but foundational issues remain unresolved
OPINION: The case of Love and Thoms played out in the High Court on Wednesday intersects with our foundational issues that speak to belonging and community – the unresolved tension of the Australian nation’s relationship with this continent's First Nations.