Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702

Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702

The applicant satisfied the first limb of the tripartite test (biological descent from Wathaurong ancestor) but failed to satisfy the second and third limbs, as recognition by elders must be from the same indigenous society as biological descent, not a different society; the evidence of cultural adoption by Yunupingu people does not satisfy mutual recognition required; therefore, applicant failed to establish he is not an alien under s 51(xix) and the application must be dismissed.

Jurisdiction
Australia
Judgment Date
20 May 2020
Procedural Posture
Application for Constitutional Declaration and Habeas Corpus / Final Judgment
Outcome
Application dismissed
Legal Topics
['s 51(xix) Constitution – Aliens Power' 'aboriginality – Tripartite Test' 'visa Cancellation Under Migration Act' 'evidence of Indigenous Descent' 'recognition by Elders – Cultural Adoption' 'jurisdiction Under Judiciary Act']
['constitutional Law' 'administrative Law' 'migration Law' 'human Rights Law'] ['s 51(xix) Constitution – Aliens Power' 'aboriginality – Tripartite Test' 'visa Cancellation Under Migration Act' 'evidence of Indigenous Descent' 'recognition by Elders – Cultural Adoption' 'jurisdiction Under Judiciary Act']

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Procedural Posture

Application for Constitutional Declaration and Habeas Corpus / Final Judgment

Legal Issues

  1. 1 ['Whether the applicant is not an alien under s 51(xix) of the Constitution due to Aboriginal descent' 'Whether mutual recognition by elders of a different indigenous society (than biological descent) satisfies tripartite test' 'Whether the evidence establishes sufficient biological descent and mutual recognition' 'Jurisdiction for habeas corpus in light of s 476A Migration Act']

Ratio Decidendi

The applicant satisfied the first limb of the tripartite test (biological descent from Wathaurong ancestor) but failed to satisfy the second and third limbs, as recognition by elders must be from the same indigenous society as biological descent, not a different society; the evidence of cultural adoption by Yunupingu people does not satisfy mutual recognition required; therefore, applicant failed to establish he is not an alien under s 51(xix) and the application must be dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' "The respondents pay the applicant's costs up to and including 6 May 2020 fixed in the sum of $4000." "The applicant pay the respondents' costs of the proceedings thereafter and such costs may be set off."]