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The case, launched by Kiwi-born Mehaka Tepuia who has lived in WA for more than a decade, will test laws allowing the minister to deport people who do not pass a character test.
Along with Aaron ‘AJ’ Graham, reportedly a founding member of the Rebels in Tasmania, Mr Tepuia is asking the High Court to rule that his October 2015 visa cancellation under section 501 of the Migration Act was unconstitutional.
Mr Tepuia’s lawyers say there was “no demonstrated substance” in Mr Dutton’s decision to deport him for apparent associations with the Rebels. He faced no criminal charges at the time.
The decision was based on “protected information” which could not be viewed by Mr Tepuia or the Federal Court when it was asked to review the decision.
Before the High Court full bench, one of Australia’s most accomplished lawyers, Bret Walker, called the laws allowing deportation without review “sinister”.
“There is, we submit, a remarkable and deplorable project afoot with such legislation,” Mr Walker said.
Mr Tepuia’s daughter, Merepeka Matangi, said her father was a “teddy bear”, not a national security risk.
His lawyers said the minister had not suggested the 37-year-old was involved in criminal activity.
“A decision made wholly or substantially in reliance on ‘protected information’ can be practically unexaminable,” Mr Walker said. “It also ... encourages unnecessary secrecy.
“He (the minister) did not record even in the most general terms any finding that (Mr Tepuia) was himself involved in ... criminal activity. Nor any suspicion he might do so in the future. (Mr Dutton’s) conclusion on ‘national interest’ was an unthinking one.”
They claim because Mr Tepuia was not a criminal, his deportation may harm efforts to “disrupt or disable” bikie gangs, because “it captures not only those who are involved in criminal conduct but also those who are opposed to it, including anyone who is actively trying to root it out”.
The attorneys-general for NSW, Queensland, Tasmania, Victoria and South Australia have joined Commonwealth lawyers in the case against Mr Tepuia.
The High Court appeal leaves Mr Dutton battling to keep the right he has to deport suspected bikie gang members, as he tries to beef up his powers to be able to override the granting of citizenship to criminals.
Those suggested laws will be debated in Canberra this week.
A decision on Mr Tepuia’s case has been reserved.