Former bikie, armed robber fail in effort to overturn deportation

An Albanian former Comanchero bikie and a New Zealander who held a knife to a woman’s throat had launched legal action aimed at overturning the cancellation of their visas.

Former immigration minister Andrew Giles. Picture: Tamati Smith/NewsWire

Two foreign criminals who had their visas re-cancelled after their cases were unearthed by The Australian have had their deportations affirmed by the Federal Court.

An Albanian former Comanchero bikie known only as BJKY and Somali-born New Zealander Jamaal Hama – who held a knife to the throat of a woman during an armed robbery – had their cases reassessed by then-immigration minister Andrew Giles just days after they were first brought to public attention in May.

Mr Giles cancelled the visas of the two men – along with those of dozens of other convicted non-citizens – after reviewing their cases in the wake of The Australian’s revelations. The Administrative Appeals Tribunal had allowed the men to remain in the country off the back of Mr Giles’s Direction 99 order, which required decision-makers to weigh the strength, nature and duration of a foreign criminal’s ties to Australia as a primary consideration in determining whether the mandatory cancellation of their visa should be overturned.

According to separate Federal Court decisions handed down late last month, both BJKY and Jama argued that Mr Giles had shown apprehended bias when he cancelled their visas.

Lawyers for Jama cited interviews Mr Giles gave with the ABC and Sky News in the wake of The Australian’s reporting, as well as a June press release confirming that the government would scrap Direction 99. In those statements, Mr Giles said he had already cancelled some visas reinstated by the AAT and that more cancellations would follow.

Federal Court judge Catherine Button dismissed Jama’s arguments, finding Mr Giles’s statements made it clear he was aware that he would have to consider each submission coming before him.

“The minister’s statements as a whole conveyed that he had a view concerning the significance of community safety in the assessment of the national interest, would be applying that view in considering the cancellation decisions coming before him, and held a view that some tribunal decisions did not accord with community expectations or how the government had expected Direction 99 to be applied,” Justice Button wrote.

In 2019, Jama was sentenced to four years’ imprisonment after he and a co-offender robbed a woman of $4500 and her mobile phone. Jama held a knife to the woman’s neck and ribs during the robbery, threatened her and told her he knew where she lived.

While the AAT in May last year found that Jama had failed the character test, it revoked the cancellation of his visa because of the “strong weight” given to his ties to Australian citizens and permanent residents.

Jama’s case was one of the first brought against the government after Mr Giles began cancelling many of the visas restored off the back of Direction 99. He had moved to Australia as a 17-year-old in November 2008.

BJKY also moved to Australia as a 17-year-old. He went on to develop links to Albanian members of the Comancheros outlaw motorcycle gang, and earned convictions for aggravating blackmail and cultivating/trafficking a commercial quantity of drugs. However, he argued that he had been dragged into the organisation unwittingly and had been compelled to commit crimes for the group to pay off his debts to it.

The AAT, in its decision last year to allow him to keep his visa, noted that he was married to an Australian citizen and they had a child together who was born the day before he was taken into custody for cultivating cannabis. It also noted that while BJKY, his mother and his sisters “love” Albania, “they have no desire to live there permanently again”.

The Federal Court decision noted that BJKY had been removed from Australia in August, with his wife and child having since joined him in Albania.

Federal Court judge Stewart Anderson also rejected BJKY’s argument that Mr Giles’s media statements showed apprehended bias, as well as his arguments that the minister had made multiple jurisdictional errors.

The government’s victories in the Jama and BJKY matters contrast with the recent result in a case brought by a Bhutanese man identified as PLQF.

In that matter, the Federal Court found the government had failed to adequately consider the man’s status as a stateless person.

PLQF had previously been jailed for attacking his wife with a meat cleaver and a string of other domestic violence charges but his status as a stateless person meant he was among a cohort of detainees who could not be returned to home countries but were not eligible for a visa. The High Court in 2023 ruled that those detainees could no longer be indefinitely detained.