Ex national president of the Rebels and uncle of Dustin Martin, Dean Martin, fights to stay in Oz
The bikie uncle of AFL star Dusty Martin plans to fight a decision that would see him booted back to New Zealand in court, amid claims “a person who is Aboriginal is not an alien” and can’t be detained.
Police & Courts
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The bikie uncle of AFL champion Dustin Martin claims he has been wrongfully detained ahead of deportation because he is Indigenous, not an alien.
The Herald Sun revealed last week how Dean William Martin, 56, had been taken into immigration detention after the Federal Government cancelled his visa on character grounds.
The former national president of the Rebels outlaw motorcycle gang is fighting the decision to be sent back to New Zealand.
He filed for a writ of habeas corpus demanding his case be brought before the Supreme Court to determine whether the government has acted lawfully or has the power to remove him from the country.
An urgent administrative hearing was called on Tuesday, a week after he was placed at Melbourne Immigration Detention Centre.
Martin did not attend the proceeding but his lawyer Matthew Albert argued a High Court ruling in 2020 meant “a person who is Aboriginal is not an alien and cannot be detained under the Immigration Act”.
“The question is, is Mr Martin a constitutional alien or not?” Mr Albert told the court.
He said the onus was on the Commonwealth to prove his client was not Aboriginal.
In court documents, Martin states he is “not within the reach” of the powers of parliament to deport him because he is a recognised member of the Manegin Aboriginal community in Tasmania.
He claims he advised the Department of Home Affairs that he was an Aboriginal Australian in October 2021, providing evidence including genealogical records, a statutory declaration made by a Manegin elder and a copy of a resolution made by the Aboriginal Corporation Tasmania declaring him a member.
Mr Albert said the matter needed to be dealt with quickly as his client was being deprived of his liberty.
This is why he made the application in the Supreme Court instead of the Federal Court, which usually hears immigration matters, he said.
“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.”
But Richard Knowles KC, for the Commonwealth, said the case should be transferred to the Federal Court.
A hearing has been set down for Friday for Supreme Court judge Michelle Quigley to rule if it can stay before her, or should be moved.
Mr Knowles said Martin had also already lodged a revocation request of the visa cancellation.
“It’s not known what decision might be made in relation to that visa revocation request,” he said.
He said it is also not known how long such a decision will take.
But if he is successful, he said, “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.
The Minister for Home Affairs cancelled Martin’s Special Category (subclass 444) visa, which allows New Zealand citizens to visit, study, stay and work in Australia, on July 18.
Four days later, Martin was notified of the decision and detained in immigration detention.
Outspoken Victorian Senator Lidia Thorpe, who previously dated Martin, last week accused the government of making “a mistake” over Martin’s deportation.
“How can an Aboriginal man be deported from his own country,” she said.
One immigration law expert said he believed Martin will be allowed to stay if he can prove Aboriginal heritage.
That lawyer said there was case law to show he could not be sent back to New Zealand.
The Herald Sun has been told Dean’s brother Shane considered a High Court challenge based on his claim to Aboriginality.
But he never went through with it and was deported in 2018, dying three years later in Auckland.
In 2020, the High Court ruled it was unconstitutional to deport Aboriginal people, even if they did not have Australian citizenship.
Three weeks later, a man who had come from New Zealand at the age of four was freed from immigration custody, where he had been held pending deportation over serious assault matters.
That was the second release of its type that year.
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