By | Migration Agent Sydney | 22 Oct 2015
Joel Royston Makea was arrested and placed in immigration detention early last month after the Immigration Minister revoked his visa on character grounds, citing his senior role within the Rebels bikie gang as a reason behind the decision.
However, Mr Makea’s lawyers argued successfully in the Federal Court yesterday for an injunction preventing that move while they prepare their legal challenge. Mr Makaea’s mother Marion said the decision to send her son back to New Zealand had been both unfair and cruel because he had grown up in Australia and all of his family were now living here.
His partner is expecting a child and he has four other children who also live in Perth.
Immigration Minister Peter Dutton has been quoted as saying “criminal bikie groups sell and distribute ice and are involved in other serious crime,” Mr Dutton said. “Coming to Australia and remaining here on a visa is a privilege — not a right.”
We do not know whether or not Mr Makea has broken any laws as we are not involved in this case.
MIGRATION AGENTS COMMENTARY
The Minister for Immigration is required by law to cancel a visa if he is not satisfied that a person does not pass the character test because of the operation of s501(6)(a) (substantial criminal record) on the basis of s501(7)(a), (b) or (c).
In simpler terms, this means that if any of the following scenarios apply, the Minister must cancel a foreign national’s visa –
In additional to the above, a person may fail the character test if the Minister suspects that a person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person which is involved in criminal conduct.
The difficulties with the above is the language used in the Migration Act, which makes specific reference to the words ‘or has had or has an association with a group.’ This makes a case such as Mr Makea’s even more difficult even if it can be proven that he is reformed, rehabilitated and no longer has any associations with the alleged groups the Minister suspects he is or was aligned with.
We are not involved in Mr Makea’s case, however from the onset the Australian government’s allegations mean this is not going to be an easy Ministerial decision to challenge.