Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2023] HCATrans 35

[2023] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2022

B e t w e e n -

REX TEREVA

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GORDON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 1.29 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances for the parties.

MR L. BOCCABELLA appears with MR M. O. PLUNKETT for the applicant.  (instructed by Jindalee Lawyers)

MR G. J. JOHNSON appears for the respondents.  (instructed by the Australian Government Solicitor)

GORDON J:   Yes, Mr Boccabella.

MR BOCCABELLA:   Thank you, your Honours.  Your Honours, may I take you to pages 263 and 264 of the application book.

GORDON J:   Are you still there, Mr Boccabella?

MR BOCCABELLA:   Yes.  Do you have ‑ ‑ ‑

GORDON J:   We have those pages, thank you.

MR BOCCABELLA:   Thank you.  As you can see, it sets out section 501BA, and at the bottom it refers to, in subsection (2):

The Minister may set aside the original decision –

in this case, of the Administrative Appeals Tribunal:

and cancel a visa that has been granted to the person –

and then it goes on to set the prerequisites.  At the bottom of the page is:

the Minister is satisfied that the cancellation is in the national interest.

Then, of course, the provision that is subject of this application for special leave:

The rules of natural justice do not apply to a decision under subsection (2).

And then if your Honours could turn the page, where section 75 of the Constitution is set out, you can see, obviously, that a fundamental pillar of one of the constitutional writs is removed by the abolition of the rules of natural justice.  Now, your Honours, one section that was not put in the application book by myself, nor our learned friend, but is an obvious point – but I will just point it out for the sake of clarity.  Under section 476A of the Migration Act, the Federal Court has, for all practical purposes, the same jurisdiction of the High Court under section 75(v) of the Constitution.

So, my basic proposition, your Honours, is that the constitutional writs would be ravaged if each ground of judicial review were abolished.  Could I now take you to page 233 of the court book, where I have set out the decision of the plurality in S157 – and, your Honours, please ask me to pause if your Honours are not on that page at the moment.  At page 233, where I have set out the passage from the plurality in S157, in paragraph 104, as you can see, their Honours stated that:

The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action.  Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction.

Then, their Honours go on to say, at the top of the next page, 234:

The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

So, your Honours, it is my submission that section 75 is limited to, of course, to actions of officers of the Commonwealth. Of course, section 75(v) of the Constitution does not extend to State officials, but only to officers of the Commonwealth in the context of that compact that the plurality was discussing in S157.

So, the consequence of that would be that State governments could abolish the rules of natural justice because the effect of the limiting compact found in section 75 of the Constitution only limits what officers of the Commonwealth can do.  So, as I have taken your Honours to it, the effect of section 501BA(3) is to make the constitutional writs inoperable to this applicant and, of course, any other applicant who is affected by the decision not to accord natural justice.

GORDON J:   Mr Boccabella, it would be useful, at least for my part, to know where the error, or what is the error in the analysis undertaken, for example, by Justice Mortimer between paragraphs 29 through to 35 inclusive of her judgment where she addresses, I think, this very argument.

MR BOCCABELLA:   Well, first of all – what paragraphs again, your Honour?

GORDON J:   It is paragraphs 29, I think, through to 35 of her Honour’s judgment.

MR BOCCABELLA:   Well, your Honours, the essential error was that her Honour did not appreciate that it just simply took away a pillar of the constitutional writs, and her Honour at one point observed that the issues of pecuniary bias, for example, and bias generally, were not developed, of course, which is something I disagree with.

Our submission is that this provision is just too wide.  It cannot absolve the Minister from any form of apprehended or actual bias, or even pecuniary bias, it just cannot do that, and, in my submission, her Honour has possibly misunderstood the nature of the writ, that this is a type of restriction on any attempt to stop the courts viewing the actions of an officer of the Commonwealth.  That is the fundamental error.  It goes fundamentally, obviously, to the approach to the constitutional writs.

The applicant submits simply that Parliament cannot take away a fundamental pillar of the constitutional writs.  Her Honour thought that Parliament could take that fundamental pillar away from consideration by the Federal Courts and the High Court by abolishing the rules of natural justice.  Indeed, without section 501BA(3), the Minister’s decision would be unlawful.

Your Honours, it is useful to look at how did this actually work in practice.  So could I take you now to page 11 of the court book, where simply – in paragraph 10 – and again I would ask your Honours to ask me to pause if you have not reached that point.  But there the Minister said:

I chose to proceed without giving Mr TEREVA an opportunity to be heard before making my decision.  I am cognisant that as a consequence, Mr TEREVA has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family.

He goes on to say:

I have, however, given consideration to representations made by Mr TEREVA in relation to the original decision, and in the AAT proceedings which resulted in the AAT revoking the decision to cancel Mr TEREVA’s visa.

But what the Minister did not address, of course, is that Mr Tereva was denied the fundamental opportunity to make a submission on whether the Minister’s national interest power was activated.  This is a case where it is difficult to see where the threads of national interest come from, given that the sort of offences that Mr Tereva committed are ordinarily the grist for the Magistrates Court in Australia.

The Minister did not want to hear from the person affected as to how the national interest power was going to be used against that particular person.  Now, it is that example which fuels the proposition that the abolition of the rules of natural justice makes the constitutional writs inoperable for this particular person.

It is my submission, therefore, that Parliament simply cannot take away a pillar of these constitutional writs because – let us examine the consequences.  Let us say Parliament decided that the ground of fraud could never be used.  Let us say Parliament decided that, perhaps, unlawfulness could never be used – that unreasonableness could never be used.  This would in effect render the writs inoperable.

Now, of course, it is not the applicant’s case that there is any particular set of rules that must be adopted in each particular case.  That obviously would be a question for Parliament to decide and in genuine cases of national interest, of course, Parliament could just devise a system whereby a person could be detained for a short period while he or she marshalled his arguments – there could be a stringent timeline for all of that to be done.  Of course, those would be issue to be litigated on another occasion –if they reduced the provisions of natural justice to nothingness, of course, that is another question.

But generally, restrictions on the rules of natural justice to meet the appropriate situation but not the actual abolition of the rules of natural justice – possibly outside a national security context, or something like that.  In essence, for this applicant, the door was closed on the constitutional writs even before the door was open.  Now, your Honour ‑ ‑ ‑

GORDON J:   Do you propose to say anything further in relation to ground 2?

MR BOCCABELLA:   Yes.  Very briefly, as your Honours can see, and if I can take you page 12 of the court book, the actual treatment of the national interest, in my submission, was scant.  Indeed, if I take you to paragraph 19 on page 12 where the minister basically outlined a series of very general headings, and then at page 16, paragraph 53, again, something extremely general which hardly articulates what it is that the national interest was.  At paragraph 53 the Minister said, this is on page 16:

In sum, having regard to the above, including the nature and seriousness of his criminal history and the risk to the Australian community, were he to reoffend, I conclude that these matters are of such seriousness that it is in the national interest to cancel Mr TEREVA’s visa.

And then his Honour goes on at page 20, at paragraph 82:

I find that the above considerations favouring non-cancellation are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the decision of the Administrative Appeals Tribunal . . . and cancel Mr TEREVA’s Absorbed Person visa –

Your Honours, that is, in my submission, not grappling with the issues of what is in the national interest.  There are metes and bounds to what is the national interest.  The Minister cannot, of course, decide what the national interest is.  The courts do have the residual power to determine what the national interest is, to determine if the metes and bounds of the national interest have been exceeded, which, in my submission, has been done in this case.  This is possibly the low-water mark of any exercise of national interest which, of course, I have also referred to in my submissions.

Further, your Honours, I wish to address the ground of proportionality, and I start with the reasons of his Honour Justice Bromwich which are set out at page 208 of the court book, and in relation to paragraph 42 where his Honour stated:

On top of that, he is to be removed from Australia after living here for well over 40 years.  The overall consequences of his conduct on a single night, serious though they were, have already been out of all proportion to what he has done, yet he is now to be banished from Australia as well.

So, your Honours, Justice Bromwich was identifying the issue of proportionality, and yet the court shied away – the Full Federal Court shied away from considering proportionality as an issue.  In my submissions I referred to what his Honour Justice French stated in Li.  If I could take you to page 238 where his Honour stated, starting at the bottom of 238 moving over to the top of 239:

Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational –

and, in my submission, that is apposite to this case, in the sense that there has not been a significant High Court case since Li which addresses the issue of proportionality.  In my submission, this is an appropriate vehicle for examining that question because what happened to this man who, of course, has committed a serious offence is – but although restricted to South‑East Queensland and restricted to the Magistrates Court, there is a disproportionate element to the way he was treated.

Their Honours in the Full Federal Court thought that the issue of proportionality was linked to the test of there being an evident basis for the decision but, in my submission, the concept of proportionality, of course, is just a second pathway whereby the conclusion of unreasonableness is reached and this case, in my submission, firstly identifies that there was a lack of proportionate response to what the applicant had done and, secondly, that it is an appropriate vehicle for this Court to develop the law of proportionality as it applies to unreasonableness.

Thank you, your Honours.  Unless your Honours wish to agitate any further matters, those are my submissions.

GORDON J:   Thank you, Mr Boccabella.  The Court will adjourn to consider the course it will take.

AT 1.49 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.51 PM:

GORDON J:   We do not need to hear from you, Mr Johnson.  We are of the view that there are insufficient prospects of success to warrant the grant of special leave.  Special leave to appeal is refused with costs.

Adjourn the Court until 2.30 pm, please.

AT 1.51 PM THE MATTER WAS CONCLUDED