McGlone and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application by the Applicant for review of a delegate's decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test, having been convicted of serious drug offences and sentenced to over seven years imprisonment. The central issue before the Tribunal was whether there was "another reason" to revoke the cancellation under section 501CA(4) of the Act.

The legal issues before the court were whether the Applicant was an Aboriginal person, and if so, what implications this had for the Tribunal's jurisdiction. The Applicant's assertion of indigeneity was raised in the context of the High Court's decision in *Love v The Commonwealth*, which held that Aboriginal Australians are not within the reach of the "aliens" power conferred by section 51(xix) of the Constitution. This required an examination of the tripartite test for establishing indigenous status, comprising biological descent, self-identification, and recognition by the community.

The Tribunal found that the Applicant failed to satisfy the first limb of the tripartite test, as he did not have, nor assert, Aboriginal ancestry. Consequently, it was unnecessary to consider the other limbs of the test in the jurisdictional context. The Tribunal concluded that the Applicant was therefore an alien for the purposes of the Act, and the matter could proceed. The Applicant's assertion of indigeneity was considered unmeritorious and reflected poorly on his credit.

The Tribunal ultimately revoked the decision to cancel the Applicant's visa.