Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142

Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142

The appeal was dismissed because the Minister addressed the correct statutory questions under s 501BA, separately considered the character test and the national interest, and gave reasons based on the appellant's lengthy criminal history, risk to the Australian community and community expectations. The appellant's challenges largely invited merits review and did not show that the Minister exceeded the legal boundaries of the national interest or made a legally unreasonable decision. Section 501BA(3) validly excludes the natural justice hearing rule and does not impermissibly confine judicial review under s 75(v) of the Constitution.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Migration Appeal Concerning Exercise of Power Under S 501 BA of the Migration Act 1958 (cth) / Appeal to the Full Court From Tereva V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1307
Outcome
Appeal dismissed.
Legal Topics
['visa Cancellation on Character Grounds' 'ministerial Override Under S 501 Ba' 'national Interest' 'legal Unreasonableness' 'natural Justice' 'section 75(v) of the Constitution']
['migration Law' 'administrative Law' 'constitutional Law'] ['visa Cancellation on Character Grounds' 'ministerial Override Under S 501 Ba' 'national Interest' 'legal Unreasonableness' 'natural Justice' 'section 75(v) of the Constitution']

Case Brief

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Procedural Posture

Migration Appeal Concerning Exercise of Power Under S 501 BA of the Migration Act 1958 (cth) / Appeal to the Full Court From Tereva V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1307

Legal Issues

  1. 1 ["Whether the Minister's discretion under s 501BA of the Migration Act 1958 (Cth) miscarried or was not properly exercised." 'Whether the Minister exceeded the proper boundaries for determining that visa cancellation was in the national interest.' "Whether the Minister's decision was legally unreasonable, including by reason of disproportionality or allocation of weight." 'Whether s 501BA(3) of the Migration Act 1958 (Cth) is invalid because it violates or excessively interferes with the exercise or performance of the constitutional writs under s 75(v) of the Constitution.' 'Whether the exclusion of natural justice in s 501BA(3) extends to principles of actual or apprehended bias.']

Ratio Decidendi

The appeal was dismissed because the Minister addressed the correct statutory questions under s 501BA, separately considered the character test and the national interest, and gave reasons based on the appellant's lengthy criminal history, risk to the Australian community and community expectations. The appellant's challenges largely invited merits review and did not show that the Minister exceeded the legal boundaries of the national interest or made a legally unreasonable decision. Section 501BA(3) validly excludes the natural justice hearing rule and does not impermissibly confine judicial review under s 75(v) of the Constitution.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar."]