Two Aboriginal men who were born in New Zealand but migrated to Australia as young people are currently being held in immigration detention centres on opposite sides of the country.
NITV News can reveal that 67-year-old John Webster, a Wathaurong man from Victoria, and 39-year-old Wakka Wakka and Mununjali man Shayne Montgomery, are currently being detained in Sydney and Perth respectively.
Mr Webster was taken to Sydney’s Villawood Immigration Detention Centre in February after completing a six month sentence in the Brisbane Correctional Centre.
There’s been serious concerns for his welfare as he has been diagnosed with terminal cancer and was told he had six months to live, just over a year ago.
His sister Raewyn Llouttit told NITV News that the family, who are based in Queensland, are fearful they might not see him alive again.
The COVID-19 pandemic has led to strict interstate travel restrictions and the suspension of visits to the centre.
“He hasn't had anyone to see him. He's in a very bad way, every time I talk to him it's, 'is he going to last much longer or not?' I'm just terrified that he is going to end up dying in that place,” she said.
“When he was first in there, he was sleeping on the floor because he was put into a room with two bunks. He's 67, he can hardly walk and he couldn't get up into the top bunk, so he slept on the floor for probably his first six weeks of being in there.”
Mr Webster’s lawyer Alison Battisson, from not-for-profit firm ‘Human Rights for All’ said he should be freed.
"For people who identify as being Indigenous or are biologically Indigenous in immigration detention, their options, legally are very, very simple," she told NITV News.
"If they are biologically Aboriginal then they must be released immediately due to the decision, in Love, in the High Court in 2020,"
“For anyone who is examining who to release from immigration detention centres, this man should be at the top of that list.”
Wakka Wakka and Mununjali man Shayne Montgomery from the Bundi Monsell family has lived in Australia for more than 20 years but is not an Australian citizen. He’s currently being held in Perth Immigration Detention Centre near the city's airport.
His visa was cancelled by the Department of Home Affairs due to his conviction for aggravated robbery in 2016. He served 11 months in Acacia prison in Perth and has now been in immigration detention centres for more than a year.
As visits to the detention centre have also been suspended due to the Coronavirus outbreak, Mr Montgomery said he’s concerned for the welfare of his daughter.
The last time he saw his 5-year-old girl was a month ago where they shared a ‘box visit’ meaning she was on the other side of a plastic screen.
“It was really, really heartbreaking to see my daughter and be subjected to that and then my daughter asking me, "Oh, Daddy, have you done anything wrong?" I turned around and said, "No, baby, why do you ask me this?" She's like, "When are you getting out of jail, Daddy? I need you out of jail now. I just want to come home, Daddy.” Mr Montgomery told NITV News.
The father of five also outlined his own health issues, saying that he has inflammation around his heart, or Pericaditis, which is a condition that can cause complications with COVID-19. He’s also reliant on medication for high blood pressure. He said that the conditions at the centre are worse than prison.
"Detention is hell. It's mental torture. Not only mental torture for myself, but for my kids, the family and extended family. I'll see things that are unspeakable of. I've seen people take their own lives in front of me." he said.
Mr Montgomery's Migration agent Adam Doumanis, who has worked for the Australian Border Force as a Removals Officer, said he’s concerned what would happen if the Coronavirus was brought into the centre.
“In my experience in that detention facility, it is very, very difficult to escape the transfer of any sort of bacteria,” he said.
“It was common knowledge amongst staff that, especially when you were in the interview rooms, that if someone had a bug, if someone had a flu …the first thing you would be thinking was that you were going to go home and probably contracted a cough or a flu yourself.”
'Shouldn't be in detention'
In February, a landmark High Court decision ruled that Aboriginal people cannot be deported under immigration law.
The decision, made by the High Court, means Aboriginal people are not subject to the 'alien powers' in the constitution, so can't be deported under immigration law.
The High Court ruled that two Aboriginal men, who had been born overseas and were facing deportation, could not be considered 'aliens', protecting them from being deported.
Mr Doumanis said he wrote to the Department of Home Affairs when he heard about the ruling, to clarify Mr Montgomery’s situation.
“[I] basically stated what's happening with his case. Why is he still in detention? That there are no legal grounds and nothing to stand on in terms of him being removed from the country.” Mr Doumanis said .
"After not receiving any response, I started to become a bit more demanding. I have requested a direct line to the case officer, which was just simply ignored. Then I think after probably about six or seven emails that I had sent out to the department... I received only one bit of correspondence back and that was that the department does not provide situation reports relating to any case"
The Department of Home Affairs follows the ‘tripartite’ test for Indigeneity, which was used in the High Court’s decisions in February and follows three key aspects. They are of biological descent from Aboriginal people, self-identification as a member of an Aboriginal community and recognition as a member of that community by the elders or other persons enjoying traditional authority in that community.
In a statement provided to NITV News on April 10, a spokesperson for Home Affairs said in part that the Department doesn't comment on individual cases.
Alison Battisson, who is representing both men, has supplied NITV News with recognition documents and a statutory declaration from Mununjali Elders supporting Mr Montgomery.
Mr Webster maintains a strong biological link through his Wathaurong Great Grandfather.
Ms Battisson notes that because of inconsistent record keeping for Aboriginal communities and the lack of recognition in the census information gathering at the time, proving all three aspects of Indigeneity can be a very difficult task.
“As with many Indigenous clients, it would help ease the burden for those who are already discriminated against historically, that timely assistance be offered by the Minister of Indigenous Affairs to assist them in establishing their Indigeneity claims especially when that person is dying and detained," she said.
But Manager of the University of New South Wales' Indigenous Law Centre Eddie Synot told NITV News he disagrees with the Department of Home Affairs methodology - he believes no Indigenous person should be in immigration detention.
Mr Synot, a Wamba Wamba man, pointed out that in February's High Court ruling 'the judges were very careful not to cement in stone what it means from a legal perspective to be Aboriginal'.
"So they used …the three-part test, biological descents, identification, and then acceptance or the self-determining kind of mutual recognition from community and that just because they are adjudicating over what this legal or technical definition of Aboriginality is, doesn't mean that Aboriginal people aren't Aboriginal in other aspects or in other ways," he said.
Mr Synot maintains “If you're in immigration detention and you are an Aboriginal or Torres Strait Islander person, well, according to the High Court, you shouldn't be in detention. You don't meet the definition of an alien.”