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

FEDERAL COURT OF AUSTRALIA

Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702 File number: NSD 485 of 2020

Judge: RARES J

Date of judgment: 20 May 2020

Catchwords: CONSTITUTIONAL LAW – Constitution s 51(xix) – where foreign born applicant claimed to be a non-citizen non-alien by reason of being an Aboriginal Australian within the meaning of tripartite test in Mabo v Queensland (No 2) 175 CLR 1 at 70 – where Minister had cancelled applicant's visa and decided not to revoke cancellation under s 501(CA)(4) of the Migration Act 1958 (Cth) – sufficiency of evidence necessary to establish each limb of tripartite test – whether test's requirement of "mutual recognition" satisfied by Australian Aboriginal recognition by elders or persons enjoying traditional authority "culturally adopting" applicant into indigenous society different from that of his biological descent.

Legislation: Constitution, s 51(xix) Evidence Act 1995 (Cth), s 140 Judiciary Act 1903 (Cth), 39B Migration Act 1958 (Cth), ss 189, 476A, 501, 501CA Native Title Act 1993 (Cth) Racial Discrimination Act 1975 (Cth)

Cases cited: Blatch v Archer (1774) 1 Cowp 63 Gibbs v Capewell (1995) 54 FCR 503 Griffiths v Northern Territory (2007) 165 FCR 391 In the matter of The Aboriginal Lands Act 1995 and Marianne Watson (No 2) [2001] TASSC 105 Love v The Commonwealth (2020) 94 ALJR 198 Mabo v Queensland (No 2) (1992) 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 The Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 Warrie v Western Australia (2017) 365 ALR 624 Western Australia v Ward (2002) 213 CLR 1 Barwick D, "Mapping the past: an atlas of Victorian clans – 1835–1904", Journal of Aboriginal History, Vol 8 (1984) pp 100-131 Clark I, Scars in the Landscape", AIATSIS Report Series, 1995 Courtenay A, The Ghost & The Bounty Hunter, ABC Books, 2020 Prentis M D, "Research and friendship: John Mathew and his Aboriginal informants", Journal of Aboriginal History, Vol 22 (1998)