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

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr Tereva, sought to challenge a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his visa. The Minister's decision was made under section 501BA(2) of the *Migration Act 1958* (Cth), which allows the Minister to set aside a previous decision and cancel a visa if satisfied that the cancellation is in the national interest. Crucially, section 501BA(3) of the Act stated that the rules of natural justice do not apply to a decision made under subsection (2).

The central legal issue before the High Court was whether section 501BA(3) of the *Migration Act* was constitutionally valid, specifically in its purported exclusion of the rules of natural justice from the Minister's decision-making power to cancel a visa in the national interest. The applicant argued that this provision impermissibly impaired the constitutional writs jurisdiction of the High Court under section 75(v) of the *Constitution*, which guarantees the availability of certain judicial remedies against officers of the Commonwealth. The applicant contended that Parliament cannot legislate to abolish fundamental pillars of these constitutional writs, thereby rendering them inoperable, particularly in cases involving apprehended or actual bias.

The applicant's submissions focused on the principle that legislative attempts to impair judicial review of administrative action face significant barriers, citing *S157* (a reference to *Plaintiff S157/2002 v Commonwealth*). It was argued that section 501BA(3) effectively removed a fundamental pillar of the constitutional writs by abolishing the rules of natural justice, which the applicant submitted was an error in the lower court's reasoning. The applicant also raised concerns about the Minister's application of the "national interest" power, arguing that the Minister's reasoning was scant and that the decision lacked proportionality, likening it to "taking a sledgehammer to crack a nut."

The High Court refused special leave to appeal. Justice Gordon, delivering the Court's decision, stated that there were insufficient prospects of success to warrant the grant of special leave. Consequently, special leave to appeal was refused with costs.