Mackie v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 29 October 2021
• Neutral Citation: [2021] FCA 1326
• Court: Federal Court
• Date: 29 October 2021

Federal Court of Australia

Mackie v Minister for Home Affairs [2021] FCA 1326

File numbers:	SAD 189 of 2020 SAD 190 of 2020
Judgment of:	BESANKO J
Date of judgment:	29 October 2021
Catchwords:	MIGRATION — application for judicial review of decision of Minister for Home Affairs — where Minister made decision to cancel applicant’s visa under s 501(3) of Migration Act 1958 (Cth) — where applicant founding member of Descendants Motorcycle Club — where Descendants Motorcycle Club an Outlaw Motorcycle Gang (OMCG) and declared organisation under Serious and Organised Crime (Control) Act 2008 (SA) — where in considering whether cancellation of visa in national interest under s 501(3)(d) Minister had regard to applicant’s criminal history and other serious conduct — where in considering other serious conduct by applicant Minister referred to links between OMCGs and organised crime and made finding that applicant’s association with and membership of Descendants OMCG an instance of other serious conduct — where Minister found “strong role” of Descendants OMCG in unifying other OMCGs against anti-biker legislation further example of applicant’s willingness to disobey Australian laws — whether Minister erred in characterising opposition to anti-biker legislation as further example of willingness to disobey Australian laws — whether opposition to anti-biker legislation properly characterised as instance of engagement in political communication and organisation such that Minister erred in considering that matter as supporting conclusion cancellation of visa in national interest — application dismissed ; EVIDENCE — application to adduce evidence on application for judicial review — where evidence sought to be adduced beyond material before Minister for Home Affairs — where further evidence sought to be adduced said by applicant to be responsive to submissions advanced by Minister — whether Minister in fact advancing submissions contended by applicant — application dismissed ; CONSTITUTIONAL LAW — where applicant contends on proper construction of s 501(3)(d) of Migration Act 1958 (Cth) engagement in non-violent political communication and organisation cannot by reason of that feature be taken into account as supporting conclusion that cancellation of visa in national interest — where applicant does not contend s 501(3)(d) constitutionally invalid — where applicant relies on significance of political communication and organisation in Australia’s constitutional system of representative and responsible government as informing statutory construction — where both parties referred to implied constitutional freedom of communication concerning government or political matters — whether matter arising under Constitution or involving its interpretation
Legislation:	Constitution Judiciary Act 1903 (Cth) s 78B Migration Act 1958 (Cth) ss 501, 501F Serious and Organised Crime (Control) Act 2008 (SA)
Cases cited:	Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539 Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 [2020] FCA 1855 DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 McCloy v State of New South Wales [2015] HCA 34; (2015) 257 CLR 178 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 Palmer v State of Western Australia [2021] HCA 5; (2021) 95 ALJR 229 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 Totani v State of South Australia [2009] SASC 301; (2009) 105 SASR 244 Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	83
Date of hearing:	2 May 2021
Counsel for each Applicant:	Mr S McDonald SC with Mr M Simmons
Solicitor for each Applicant:	Patsouris & Associates
Counsel for the Respondent:	Mr C Lenehan SC with Mr C Tran
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		SAD 189 of 2020
BETWEEN:	THOMAS MACKIE Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

		SAD 190 of 2020
BETWEEN:	PERRY MACKIE Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	BESANKO J
DATE OF ORDER:	29 October 2021

THE COURT ORDERS THAT:

1. The Amended Originating application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1. There are two applications for judicial review before the Court. The first application is brought by Thomas Mackie against the Minister for Home Affairs (the Minister) in which he challenges a decision by the Minister made on 21 December 2020 to cancel his Class TY Subclass 444 Special Category (Temporary) visa under s 501(3) of the Migration Act 1958 (Cth) (the Act) on the ground of jurisdictional error. Thomas Mackie seeks a writ of certiorari quashing the Minister’s decision. The second proceeding is brought by Perry Mackie and, in these respects, is the same as the...