Mackie v Minister for Home Affairs [2021] FCA 1326

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