Dustin Martin‘s bikie uncle is fighting his detention and deportation out of Australia because he is Aboriginal.
Dean Martin, the Richmond Tigers star’s uncle and former national president of the Rebels bikie gang, has mounted a court challenge to avoid being deported to New Zealand.
Martin, 56, had his visa personally cancelled by Home Affairs Minister Clare O’Neil on character grounds on July 18 and was detained at the Melbourne Immigration Detention Centre on July 22.
The Herald Sun reported that Martin has filed for a writ of habeas corpus demanding his case be heard by the Supreme Court.
This is a bid to determine whether the Australian government has acted lawfully or even has the power to deport him.
A week after he was taken into detention, an urgent administrative hearing was called on Tuesday.
Martin was not present at the hearing, where his lawyer Matthew Albert said a 2020 High Court ruling meant ‘a person who is Aboriginal is not an alien and cannot be detained under the Immigration Act’.
Mr Albert told the court: ‘The question is, is Mr Martin a constitutional alien or not?’
Ex national president of the Rebels bikie gang Dean Martin (pictured) has mounted a court challenge to avoid being deported to New Zealand
Martin is the uncle of Richmond Tigers fL superstar Dustin Martin (pictured)
He said it was up to the Commonwealth to prove his client was not Aboriginal.
Court documents revealed Martin states that as a recognised member of the Manegin Aboriginal community in Tasmania, he is ‘not within the reach’ of the powers of Parliament to deport him.
Martin claims he advised the Department of Home Affairs in October 2021 that he was an Aboriginal Australian.
He also claims he provided evidence including a statutory declaration made by a Manegin elder, a copy of a resolution made by the Aboriginal Corporation Tasmania declaring him a member, and genealogical records.
Mr Albert said his client was being deprived of his liberty and the matter should be dealt with promptly.
He said this urgency was the reason the application had been made in the Supreme Court and not the Federal Court, where immigration matters are usually heard.
‘This court is as well placed as any to deal with constitutional debate,’ Mr Albert said.
‘The Federal Court processes at the moment are very, very slow.’
‘This court is significantly quicker to deal with these applications.’
Richard Knowles KC, for the Commonwealth, refuted this and said the case should be transferred to the Federal Court.
A hearing has been set down for Friday to determine if the case will be heard before the Supreme Court or transferred.
Mr Knowles said his client had already lodged a revocation request of the visa cancellation.
Mr Knowles added that if the request is successful ‘his visa will spring back into life’ and the case will be closed.
‘If it’s unfavourable to him, he will have the opportunity to seek judicial review, but only in the Federal Court, or the High Court,’ he said.
Independent senator Lidia Thorpe (pictured ) who briefly dated Martin (pictured) in 2021 said the government has made a mistake in his pending deportation
Independent senator Lidia Thorpe who briefly dated Martin in 2021 said the government has made a mistake in his pending deportation.
‘Mr Martin has proof, support and recognition that he is Aboriginal from Elders and community in Lutruwita Tasmania,’ she said.
‘We’ve already seen the High Court rule in 2020 that the Commonwealth lacks constitutional power to deport First Peoples under the Migration Act.
Senator Thorpe said First Nations people could not be classified as ‘alien’ and deported because it is inconsistent with their connection to the country that is ‘recognised by common law’.
‘My question is, why does the government now think they can go against the law and deport First Peoples?’
An immigration lawyer told the Herald Sun if Martin can prove Aboriginal heritage, he believes he will be allowed to stay in Australia.
He added there is case law to show he could not be deported to New Zealand.
