Three years after beating deportation, Indigenous Australians freed from visa limbo

A group of Indigenous Australians who spent almost three years in limbo without basic human rights since the high court ruled they could not be deported as aliens have at last been granted special purpose visas allowing them to work, access Medicare and travel internationally.

But the group, some of whom spent years in onshore and offshore immigration detention prior to the court ruling in February 2020, still don’t know how their citizenship claims will ultimately be resolved.

Daniel Gibuma is a 58-year-old Torres Strait Islander who was born in Papua New Guinea and spent over two years in the Yongah Hill immigration detention centre in Western Australia after serving jail time for an assault charge.

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He was released following the high court ruling but, like others, had been living stateless as a “non-alien, non-citizen” until the Albanese government’s decision to allow 19,000 refugees to stay on 22 December last year.

“It’s a big breakthrough for us, no more looking over our shoulders. Getting this visa means we can move on with our lives, like getting a job and continue until they give us our citizenship. It is better than nothing,” Gibuma, who now lives in Cairns, said.

In the time Gibuma spent in detention and the years since his release, his older brother and mother died and he was not able to attend their funerals. Gibuma also lost his six-year-old son, who was sent back to Papua New Guinea to live with family in his absence only to die due to illness in April 2022.

“I am looking forward to being able to travel back to PNG. I will go to my village in Mabaduan and visit my son’s grave. He is buried next to my mum, so I will go and visit them,” Gibuma said.

“But we must keep moving forward. We will never get those days back or be able to see the people we lost along the way.”

Townsville resident Akee Charlie, 52, spent five years in immigration detention centres, including one year on Christmas Island, after spending five months in prison for assault. Also PNG-born, Charlie is the grandson of George Mye, the prominent Torres Strait Islander who fought for the region’s autonomy. During his incarceration, his younger brother died and he lost a son to suicide.

“I was struggling last year, but this is a real weight off. Getting this visa made me so happy, all the stress and everything off my shoulders. I have a visa now, a visa number. I can work. I can travel,” Charlie said.

“My lawyer is starting my process for citizenship. They said first we will get your Centrelink [number] back, then we will get your citizenship, one step at a time. Then they will go for compensation.”

The Department of Home Affairs confirmed the special purpose visas were “a temporary solution” but could not provide any more detail about how the affected people would transition to citizenship and whether a new visa type would need to be created.

“It is a government priority to address the immediate needs of those who have been released from immigration detention and have been living in the Australian community without a visa,” a spokesperson said.

“The government is committed to identifying and delivering longer-term options in response to the high court’s decision.”

It is understood that fewer than 15 of the special purpose visas were issued on 22 December by the minister for immigration, citizenship and multicultural affairs to people released from detention in similar circumstances.

Prof Kim Rubenstein, a constitution expert from the University of Canberra, said the cohort’s plight highlighted “the disjuncture between formal legal status and access to rights in Australia”.

“They are now going to be accessing what we call citizenship rights without formally being recognised as a citizen. It shows a sort of evolution of Australian citizenship law as one that hasn’t had a consistent or philosophically coherent approach to understanding the connection between legal status and full membership in our society,” Rubenstein said.

“While people see this situation as specific to Indigenous Australians, it does reflect on the quality of all … Australian citizenship as there is a gap between formal legal status, lived experience of membership and the rights that flow from being a member of a community.”

Gibuma and Charlie were able to pass the same tripartite test of Aboriginality that was first used in the Mabo case in 1992. The test is based on biological descent, self-identification and recognition of identity by a First Nations group.

The department did not answer questions about whether there are any other people in immigration detention centres who claim to be traditional custodians of Australian territory.