A member of a notorious New Zealand outlaw motorcycle gang may spend Christmas in immigration detention after losing a court bid to re-enter Australia – where he has lived for the past 33 years.
Peter Tekou Nahona was returning from visiting family on 28 October when he was detained at Perth International Airport due to his membership of the Mighty Mongrel Mob Motorcycle Club (MMM).
His class TY – 444 visa was cancelled under s 116(1)(e)(i) of the Migration Act 1958 (Cth) on the basis that his membership of an outlaw motorcycle gang and presence in Australia posed a risk to the safety of the Australian community.
An urgent injunction on 30 October restrained the removal of the 56-year-old grandfather from Australia, and orders were made for an expedited final hearing.
Mr Nahona appealed the visa cancellation to the Federal Circuit and Family Court on the grounds it was legally unreasonable, and that the 15 minutes in which he was invited to respond to a Notice Of Intention to Consider Cancellation (NOICC) at the airport was not reasonable for the purposes of s 121(3)(b) of the Act.
In a 31-page decision delivered on Friday, Judge Given dismissed Mr Nahona’s application for a review of the decision, and ordered he pay the court costs of the Department of Immigration, Citizenship and Multicultural Affairs.
She outlined the events on 28 October, when a baggage search uncovered evidence confirming Mr Nahona was a “fully patched member” of MMM. Items included rings, shirts, bandanas and a leather jacket which all depicted MMM club insignia, as well as photos on his phone.
In the formal interview with Australian Border Force officials which followed the search, Mr Nahona told them he was a member of a “motorcycle gang”, and although he was not a member of an Australian chapter of the club, he had many connections to Australian members.
His visa was then cancelled and he was taken to an immigration detention facility as an unlawful non-citizen.
Mr Nahona appealed the visa cancellation on the grounds it was unreasonable because “there was no logical connection between the activities of a club in Australia bearing the same name of a club to which the applicant belonged outside Australia; and/or even if there was such a connection, it was a disproportionate basis to cancel the visa of this applicant given his history; and/or the assessment of risk to safety in the Australian community was illogical”; and that the invitation to the formal interview “did not specify a time that was reasonable”.
In a written submission he claimed: “It was irrational to cancel the visa of a law-abiding resident of Australia for 33 years and grandfather of seven Australian citizen children because he has tattoos and clothes associated with a club outside Australia of which he is a member”.
Judge Given said the decision was reached not because of what Mr Nahona was carrying or wearing, or his MMM tattoos, but because of his admitted membership of an internationally recognised organised crime syndicate known to be involved in drug trafficking, arms trafficking and murder for hire.
“There has been no dispute by the applicant to the veracity of the information relied on by the delegate, namely that the club is an internationally recognised crime syndicate. The attack is instead directed to whether, and to what degree, the applicant could be considered to be involved in the club’s criminal activities,” she said.
“The material before the delegate, being the applicant’s own concessions, was that he and his friends (who were also club members) socialise while wearing their club colours and drinking beer in his backyard.
“However, as anodyne as that particular activity might seem, it is still a meeting between members of a crime syndicate which as an organisation is, undisputedly, involved in criminal activity in Australia.”
Judge Given said Mr Nahona’s criminal history was not a factor in the decision, which had a “very specific” basis.
“Rather, the delegate concluded that the applicant, being a member of the club per se, and being present in Australia, was sufficient as to pose a potential risk to the safety the Australian community. I find this to be neither fanciful, nor to require additional evidence,” she said.
She acknowledged visa cancellations did not usually involve a person who had lived in Australia since 1990.
“It can well be understood that the outcome of the delegate’s decision will feel subjectively harsh to the applicant. The court acknowledges it will likely result in considerable hardship to him and to his family,” she said.
“However, it is well established that this court cannot look to what it considers reasonable for itself, and then conclude that any contrary outcome constitutes error.”
She said the visa cancellation might feel disproportionate to Mr Nahona, but “by reference to the scope and purpose of the statutory power, which in the case of s 116 of the Act includes protection of the Australian community, it is not”.
Judge Given also found there was no procedural unfairness by reason of the time period he was given to respond to the NOICC, considering all the circumstances of the case.
She said because of the “somewhat unusual nature of this case and that it is almost Christmas”, the parties had already considered a way forward should Mr Nahona’s application be unsuccessful.
She said Mr Nahona was entitled to appeal the orders and reasons for judgment, but lawyers and courts would not be working at full capacity.
“The court has indicated to the parties a willingness to accommodate a regime including continuation of the injunction preventing the applicant’s removal to New Zealand, and also potentially a stay of my orders today to enable the applicant to properly take advice and prepare any appeal to the Federal Court of Australia,” she said.
“Of course, if that is a course the applicant wishes to pursue, then by seeking an extended period in which to appeal and continue the injunction, he will in essence be electing to remain in immigration detention.”