Notorious Tasmanian bikie faces deportation...again
A notorious Tasmanian bikie who won a decisive High Court victory against Peter Dutton today is once again facing deportation to New Zealand after the Immigration Minister cancelled his visa within hours of the legal decision.
Aaron Joe Graham, a founding member of the Rebels motorcycle gang in Tasmania, and fellow Rebels gang member Mehaka Lee Te Puia, successfully challenged their visa cancellations.
The pair had been held in immigration detention since 2015, when the Immigration Minister cancelled their visas on character grounds as part of a crackdown on outlaw motorcycle gangs.
Mr Dutton had refused to reveal the information he relied on to cancel their visas, arguing that under section 503A of the Migration Act he was not required to divulge any intelligence provided to him by law enforcement agencies on a confidential basis.
The High Court today, in a 6-1 decision, found the cancellation of the men’s visas was “invalid” because the Minister had acted on a “wrong” construction of section 503A.
The High Court ruled that section 503A was invalid to the extent it operated to shield the Minister’s exercise of his powers from judicial scrutiny.
It said the section prevented the court from determining if the Minister’s decision was reasonable on the basis that the individuals failed “the character test” and it was in the national interest.
However, the Turnbull government on Monday pushed through an urgent amendment to the Migration Act ahead of the High Court’s decision.
The amendment inserts a new section 503E, which validates decisions made by the Minister to cancel visas on character grounds in reliance on confidential information protected by section 503A.
Mr Dutton had previously warned an adverse decision by the High Court could lead to a reluctance by ASIO and law enforcement agencies to pass on classified or sensitive intelligence information to his department. He had also warned it could cast doubt on thousands of visa cancellations made since 2014.
Lawyer Anthony Malkoun, who acted for the bikies, said Graham had been waiting at Villawood Detention Centre with his bags packed, expecting to return home to his family, when he was served with a notice that his visa had been cancelled once again. He said his family was “devastated” by the fresh setback and his homecoming celebrations had been put on hold.
“If there’s a proper legal basis to challenge the decision or the section then we will proceed to do so but only after careful consideration,” he said.
Section 503A of the Migration Act was introduced by the Howard government in 1998 in response to a growing unwillingness by intelligence and law enforcement agencies to hand over sensitive information unless they could be assured that the information and its sources would be protected.
It covers information provided to the Immigration Department by 42 commonwealth, state and territory law enforcement, security, criminal intelligence and investigative agencies, as well as 285 overseas bodies.
Mr Dutton said the government would consider today’s High Court decision.
“The Government will look to amend legislation wherever appropriate to give effect to the continued cancellation of visas of serious criminals, organised crime figures, criminal bikie gang members and those who pose a national security risk to Australia,” he said.
“The Parliament has passed amendments to the Migration Act to ensure that all other visa cancellations and refusals which relied on protected information remain valid – keeping these serious criminals and gang members off our streets.”
Opposition immigration spokesman Shayne Neumann said Labor supported the amendment passed by the Senate on Monday.
“Labor strongly supports the refusal or cancellation of visas of non-citizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act,” he said.