• Maurice Blackburn Lawyers’ Senior Associate Claire Gibbs, who is acting for Daniel Love and Brendan Thoms. (NITV News )Source: NITV News
Gunggarri man Brendan Thoms, who spent more than 500 days in immigration detention is seeking $4.1 million in damages from the Federal Government over its bid to have him deported.
Keira Jenkins

16 Sep 2020 - 5:42 PM  UPDATED 17 Sep 2020 - 9:18 AM

Two Aboriginal men, who were held in immigration detention are suing the Australian government over its unlawful bid to deport them.

Gunggarri man Brendan Thoms spent 500 days in immigration detention. He was released after a landmark High Court ruling in February, and is seeking $4.1 million in damages.

While Kamilaroi man Daniel Love, who spent 49 days in immigration detention, launched a case seeking compensation in October last year.

He is seeking $390,000 in damages.

The Federal Government sought to deport both men on character grounds, after they both served jail sentences.

The men's lawyer Claire Gibbs, a senior associate at Maurice Blackburn Lawyers, told NITV News that their action is about holding the government accountable.

"Brendan still finds it hard to sleep; that whole time he didn't know if it was going to be the night that he got tapped on the shoulder and deported," she said.

"The government was put on notice very early on that these were Aboriginal men.

"So we're holding the government accountable for their decision to unlawfully detain them. This was a very serious infringement on their human rights."

'Should never have happened'

Mr Thoms was born in New Zealand. He lived in Australia from the age of six but never became a citizen.

Mr Thoms said in a statement that he could never get the days he was locked up in detention back, but "the memories of those dark days will live with me forever".

"Every day in immigration detention I feared it could be my last day in Australia," the statement said.

"I was scared I would be tapped on the shoulder in the middle of the night and put on a plane or a boat out of the country.

"I was scared I wouldn’t see my family again, or get to watch my boy grow up. What happened to me should never have happened.

"This case is about justice for me and my family."

Mr Love was born in Papua New Guinea but has also lived in Australia since childhood.

In February's High Court ruling the judges did not reach agreement on whether Mr Love was an Aboriginal man.

The Federal Court will now make a ruling on his ancestry.

Ms Gibbs said it had been "offensive" for Mr Love and his family to have his identity questioned in court.

"Daniel can trace his ancestry on one side of his family, on the other side he can trace to his great grandmother, who was removed as part of the Stolen Generations," she said.

"It was government policies that were responsible for her removal and now it is the government that is now questioning Daniel's identity because of it."

Ms Gibbs said the next steps are for the government to concede that Mr Love is an Aboriginal man, then to be 'held accountable for the wrongful imprisonment' of Mr Love and Mr Thoms. 

"It may go to another hearing," she said.

"But what I hope is that the government will engage in meaningful discussions on this."

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.