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Another Visa Cancellation Set Aside, Another Setback for the Minister

It seems pretty evident that the present Minister for Immigration and Border Protection has an “agenda” to exclude persons who have been associated with “outlaw motorcycle gangs” from Australia, by exercising the visa cancellation powers under section 501 of the Migration Act. 

Another case that exemplifies this apparent agenda was recently decided by the Full Court of the Federal Court, Muggeridge v Minister for Immigration and Border Protection (2017) FCA (8 December 2017). 

Perhaps an initial, superficial reading of the facts might tend to suggest that the visa cancellation was justified: 

The visa holder was born to Australian citizen parents (a fact which might cause one to wonder whether the “visa holder” might not have had at least a colourable claim to become an Australian citizen himself – but that is another matter). The visa holder was adopted by a New Zealand couple and was raised there as a New Zealand citizen. Then, he was reunited with his Australian biological parents and three siblings, and came back to live in Australia at the age of 22. 

However, the visa holder eventually became involved with the “Life and Death” motorcycle club’s amphetamine business. It was found in the Minister’s statement of reasons supporting the visa cancellation that he had “organised the club house, looked after money, balanced the books which were kept in code and accounted for the cash”. 

This activity led to the visa holder’s being sentenced to a term of imprisonment of 4 years and 6 months, and then to his “deportation” from Australia. 

However, after a period of time, the visa holder returned to Australia on a fraudulently obtained passport, with a false name and false date of birth. He then resided in Australia for a period of 19 years (without committing any further offences) until he was evidently somehow detected by the Department. 

So: “Simply throw him out?”. Was this simply an “open and shut case”? 

Well, the Minister did proceed to cancel the visa. The basis for doing so was a finding by the Minister that the Australian community could be exposed to great harm if the visa holder were to resume contact with any outlaw motorcycle club and re-offend in a similar fashion. 

The problem with the Minister’s cancellation decision, as found by the Full Court, was that the materials that were before the Minister simply did not logically or rationally support the conclusion that there was a possibility that the visa holder would in fact resume contact with an outlaw motorcycle club or that he would re-offend in a similar manner. 

The facts of the case simply did not bear out that there was any such possibility: 

The story was that after returning to Australia, the visa holder had worked as a fitter and welder for a period of 13 years, until he had suffered a debilitating degenerative spinal injury. He had had seven surgeries for this condition. And there was evidence that he had close, positive family ties in Australia and that he had been involved in volunteer work for a number of charities. 

There was also evidence before the Minister that the visa holder had resigned from the motorcycle club prior to his deportation from Australia in 1994, and further, that he had not had any affiliations with any motorcycle club since returning to Australia in 1997. 

In fact, the Minister expressly acknowledged in the statement of reasons in support of the visa cancellation that the visa holder had “demonstrated rehabilitation and that the risk that he might re-offend was “low”. 

So, the critical linchpin of the visa cancellation decision – that there was a possibility that the visa holder might resume contact with a motorcycle club, and that if he did, that there was a risk that he would re-offend in a similar way as he had at the time of the original offence in 1989 – was simply at odds with the facts. 

So the visa cancellation decision was found by the Full Court to be legally unreasonable. 

And: as much as the Minister might want to implement a blanket approach to remove visa holders who have been convicted of criminal offences in association with “outlaw motorcycle clubs”, that agenda is likely to be defeated when the facts are against it, as they were here: when a person has lived lawfully in Australia for nearly 20 years, has severed contacts with motorcycle clubs, has strong family ties and is active in church and charitable activities, and when an express finding has been made that the person has been rehabilitated, and is suffering from a degenerative spinal injury, it is really hard to make a rational, logical argument that the person continues to present “a risk of harm to the Australian community”.

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  • Guest
    Terry Monday, 18 December 2017

    It appears from reading the article that the court was correct in its decision about the Ministers decoision, but where is it that anyone considered that the visa holder returned to Australia on a fraudulently obtained passport, with a false name and false date of birth. Thta alone should be enogh to deprt the visa holder.

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