A former Tasmanian bikie boss has been stripped of his visa within hours of the federal court quashing the immigration minister Peter Dutton’s original decision to deport him to New Zealand on character grounds.
New Zealand-born Aaron Joe “AJ” Graham remains in Goulburn maximum security prison after Justice Richard Tracey on Thursday ruled that Dutton’s decision had denied Graham procedural fairness – it failed to mention that any invitation to Graham to challenge it would be futile because, as a convicted criminal, he was incapable of satisfying the character test.
Tracey ruled the cancellation unlawful and ordered the minister to pay Graham’s legal costs.
Barrister Michael Pena-Rees said the “elation and excitement” of Graham’s wife at being told of his pending release turned to dismay after a delegate for Dutton delivered a fresh visa cancellation after lunchtime.
Pena-Rees told Guardian Australia it was “extraordinary” that Dutton “whilst on the campaign trial and in caretaker mode was able to read a 300-page document and review it and apply it in the space of say two hours, and then recancel Mr Graham’s visa”.
Graham has been in jail since his visa was cancelled after his arrest in police raids in Tasmania a year ago. Under section 501 of the Migration Act, he fails the character test because he has been sentenced to a prison term of more than 12 months – a 15-month term for assault in 2009.
His lawyers would lodge a high court challenge as soon as possible, Pena-Rees said.
“It’s a very unique case I must say,” he said. “Regardless of the background of the individual, when you take that away what you’re looking at is any recourse to justice relating to this particular provision in the legislation, really does not afford you any natural justice.
“Anything the justice in the federal court may decide really has no bearing on what the minister ultimately will do.
“It may come to the stage where he is the longest serving detainee in the supermax prison even though has committed no crime and is not there for any sentence nor on remand for any matters.”
A former president of a Rebels chapter in Tasmania, Graham had been convicted of a series of crimes since 1985 including firearms, drug and assault offences.
Graham had lived in Australia under a special category visa since 1976, when he arrived as a 10-year-old.
The immigration department in 2011 spared Graham deportation after his jail term, instead giving him a warning in view of his time living in Australia, his links to the community, his three adult children and his risk of further offending.
Dutton has previously cancelled the visas of New Zealand-born bikies without criminal convictions, including a onetime bodyguard for the New Zealand prime minister, John Key.
Since being warned in 2011, Graham had received further convictions, including common assault, using abusive language to a police officer and driving under the influence of drugs.
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