By Migration Agent Sydney | Migration Agent Sydney | 2 Sep 2015
A senior outlaw motorcycle gang member will be deported on character grounds by Immigration Minister Peter Dutton.
Joel Royston Makaea was a member of the Rebels bikie gang and had lived in Perth for six years, but was arrested earlier this week and held in immigration detention at Perth Airport.
His visa has since been revoked by the Department of Immigration and Border Protection.
A ministerial spokesman said Mr Dutton would not comment on individual cases, but in a statement the Minister said he was determined to keep the community safe.
"Criminal bikie groups sell and distribute ice and are involved in other serious crime," the statement said.
"On that basis, through a provision within the Migration Act, I can decide that their visas will be cancelled and they will be going back to their country of birth.
"I'm going to do that wherever possible because these people are detracting, not contributing to our society."
Mr Dutton said visas issued to foreign nationals were a privilege not a right.
"If that privilege is abused then they should expect to have their visa cancelled and be sent packing from our country," he said.
Section 501(3) of the Migration Act is a cancellation power, available only to the Minister personally, where the Minister may decide it is in the national interest to cancel a person’s visa without providing natural justice.
Section 501C(10) provides for non-citizens in immigration detention to make representations to the Minister about revocation. Non-citizens who are not in immigration detention are not entitled to make representations.
There is no clear definition of what constitutes the ‘national interest’ and it is open to the Minister to determine what the national interest is in relation to each case.
The courts have accepted that the question of what is or is not in the national interest is an evaluative one and is entrusted by the Parliament to the Minister to determine personally according to the Minister’s satisfaction, which must nevertheless be attained reasonably.
It is also the case that where the same conduct is relied on to demonstrate failure to pass the character test and found to the Minister’s satisfaction that it is in the national interest to refuse or cancel a visa, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel (or refuse) the visa of the person concerned.
National interest considerations are separate and distinct from any finding of whether a person passes the character test, although the same matters may be relevant for both purposes. Any submission or decision record in relation to a decision under s501(3), s501A and s501B must contain a separate section dealing specifically with the reasons why cancellation is considered to be in the national interest.
A decision by the Minister under s501(3) is not merits reviewable, however, such a decision is subject to judicial review at the Federal Court.
Under s501(5), the common law rules of natural justice and the code of procedure set out in the Act do not apply to decisions made pursuant to s501(3). The Minister, therefore, is not required to give notice of an intention to consider a decision to refuse or cancel a visa, or give the person the opportunity to comment before the decision is made.
However, a person will be provided with an opportunity to make representations as to whether the decision should be revoked under s501C.