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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to the Applicant failing the character test, stemming from a substantial criminal record. The Applicant sought to argue that he was an Aboriginal person, which would place him outside the scope of the "aliens" power under section 51(xix) of the Constitution and thus affect the Tribunal's jurisdiction. The decision was made by J Rau Sc SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Applicant qualified as an Aboriginal person according to the tripartite test established in *Mabo v Queensland (No 2)* and applied in *Love v The Commonwealth*. This test requires satisfaction of three limbs: biological descent from indigenous people, self-identification as a member of an indigenous community, and recognition as such by elders or other persons of traditional authority within that community. If the Applicant met this test, it would determine whether he was considered an "alien" for the purposes of the Migration Act and consequently, the Tribunal's jurisdiction to hear the matter.

The Tribunal reasoned that the Applicant had failed to satisfy the first limb of the tripartite test, as he did not have, nor assert, any Aboriginal ancestry. Consequently, it was unnecessary to consider the remaining limbs of the test in the jurisdictional context. The Tribunal found that the Applicant was therefore an alien for the purposes of the Act, and the matter could proceed. The Tribunal also considered Ministerial Direction No. 99, noting that the Applicant had not established that he was owed non-refoulement obligations, and therefore, there was no impediment to his lawful return to Sudan.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation.