Trass-Maraki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 2417

Trass-Maraki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2417 (11 June 2024)

Division:GENERAL DIVISION

File Number:          2024/1667

Re:Pahira Robert Trass-Maraki

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member D. Cosgrave

Date of decision:                   11 June 2024

Date of written reasons:        15 July 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 28 February 2024 to cancel the Applicant’s visa and substitutes it with a decision to not exercise the power to cancel the Applicant’s visa.

................[SGD]...........

Member D. Cosgrave

Catchwords

MIGRATION – discretionary visa cancellation – failure to pass the character test – suspicion of involvement with unlawful organisations in Australia – where Applicant suffers from delusions of fantasy and grandeur –– evidence unable to substantiate the reasonable suspicion claim – Tribunal finding Applicant passes the character test - decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336

Emery and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 16

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

Khalil v Minister for Home Affairs (2019) 271 FCR 326

Roach v Minister for Immigration and Border Protection [2016] FCA 750

Stevens v Minister for Immigration and Border Protection [ 2016] FCA 1280

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member D. Cosgrave

15 July 2024

INTRODUCTION

1. Mr Trass-Maraki seeks review of the Minister’s (the Minister or the Respondent) delegate’s 28 February 2024 decision (decision under review) to discretionarily cancel his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]

   [1] Exhibit R1: G3, page 20.

2. The hearing was held by audio visual link in Brisbane on 28 and 29 May 2024.

   
   

   Ms Trass-Maraki represented Mr Trass-Maraki. Mr Freeburn of counsel represented the Respondent.

3. The Tribunal would like to thank Mr Freeburn for his assistance and forbearance in dealing with Mr Trass-Maraki in this matter.

4. This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 11 June 2024. On 11 June 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review and substituted it with a decision to not cancel Mr Trass-Maraki’s Visa pursuant to section 501(2) of the Act.[3] The Tribunal now gives its reasons for its decision.

   [2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).

   [3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].

5. Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.

   FACTS 

6. Mr Trass-Maraki is a 40-year-old[4] New Zealand citizen who first arrived in Australia in March 2005.[5]

   [4] Exhibit R1: G4, page 51.

   [5] Exhibit R1: G31, page 251.

7. On 28 February 2024, the Respondent’s delegate exercised the discretion in s 501(2) to cancel Mr Trass-Maraki’s Visa. Mr Trass-Maraki was not notified of that decision until

   
   

   19 March 2024. On 20 March 2024, Mr Trass-Maraki applied to the Tribunal for a review of the delegate’s decision dated 28 February 2024.[6] .

   [6] Exhibit R1: G2.

   BASIS OF THE REVIEWABLE DECISION

8. Under s501(6)(b) of the Act a person does not pass the character test if the Minister reasonably suspects:[7]

   (i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and,

   (ii)that the group, organisation or person has been or is involved in criminal conduct.

   (Emphasis added)

   [7] Direction 99; Annex A, Section 2, Clause 3(2).

9. The person need not be in a class of members or associates who have, in fact, committed criminal conduct. [8]

   [8] Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141] (Perry J).

10. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.

    THE TRIBUNAL’S TASK

11. The Tribunal’s task is to consider section 501(6)(b) and the evidence before it and then decide whether Mr Trass-Maraki fails the character test on the basis.

12. If Mr Trass-Maraki succeeds on the ‘character test’ ground, the weight of authority indicates that the Tribunal must not exercise the power conferred by s 501(2) to cancel the Visa and instead set aside the reviewable decision.

13. If Mr Trass-Maraki does not succeed on the ‘character test’ ground, then the Tribunal is required to turn its mind to the application of Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[9]

    [9] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].

    EVIDENCE

14. The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, further documents tendered by Mr Trass-Maraki and the Respondent and oral testimony given by Mr Trass-Maraki, Mrs Trass-Maraki, Ms Lucy Trass-Maraki and Mr Warwick Stansfield.

    Documentary evidence

15. The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.

    THE TRIBUNAL’S ASSESSMENT OF THE WITNESSES

16. The Tribunal observed Mr Trass-Maraki closely as he gave evidence. He was a problematic witness – uncooperative at times and truculent at others. It was also clear when his mental state became overwhelmed, he effectively ceased answering questions coherently.

17. Mrs Trass-Maraki – as a witness rather than as an advocate – established herself as a witness with high credibility whose testimony was cogent, unshaken and persuasive, especially under cross-examination.

    SECTION 501(6)(B) OF THE ACT

18. The character test is defined in s 501(6) of the Act which applies in this matter.

19. The Respondent contends that:[10]

    [10] Exhibit R3: Respondent’s Statement of Facts, Issues and Contentions (SFIC), [5] – [19].

    ·Mr Trass-Maraki fails the character test on the basis referred to in section 501(6)(b) of the Act. Under that provision, a person does not pass the character test if the Respondent Minister reasonably suspects, firstly, that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person (‘Limb 1’); and, secondly, that the group, organisation or person has been or is involved in criminal conduct (‘Limb 2’).  (Emphasis added)

    ·In effect, section 501(6)(b) operates as a ‘deeming provision’ whereby a person suspected of being a member of a group or organisation which is suspected of being involved in criminal conduct will fail the character test.[11]

    [11] Roach v Minister for Immigration and Border Protection [2016] FCA 750, Perry J at [142].

    ·In applying section 501(6)(b), it is sufficient if a group has been or is involved in criminal conduct and the person is a member of that group. It is not necessary that the applicant be in a class of members or associates who have, in fact, committed criminal conduct.[12] Direction No. 99 contains guidance in the application of section 501(6)(b). In relation to the ’reasonable suspicion’ threshold prescribed by the provision, it is explained that a ‘suspicion is less than a certainty or belief, but more than a speculation or idle wondering’.[13]

    [12] Roach v Minister for Immigration and Border Protection [2016] FCA 750, Perry J at [141].

    [13] The Direction, Annexure A, Section 2, paragraph 3(2).

    ·Ultimately, on the evidence, it is contended that this Tribunal should be reasonably satisfied that Mr Trass-Maraki has been a member of, or is associated with, a group or organisation involved in criminal conduct – namely the Mongrel Mob.

    ·The Minister deals first with Limb 2. Evidence discloses that the Mongrel Mob is an organisation involved in criminal conduct. It was founded in New Zealand in the 1960s. More recently, the organisation has gained a foothold in large Australian cities, including in Sydney and Melbourne. Since 2015, there has been an increased presence of the Mongrel Mob in Queensland. Evidence discloses that members of the Mongrel Mob in Australia and New Zealand have been charged, and in many cases convicted, of crimes including murder, wounding, kidnapping, armed robbery, extortion, drug offences and weapons offences. The Mongrel Mob is known to be identified by images including a swastika, British bulldog and German Stahlhelm (helmet) – depicted predominantly in red, white and black colours. The club motto is ‘Sieg Heil’. Other terms used to refer to the gang include ‘Dog’, ‘SFH’, ‘S13’, ‘MO13’, ‘Mongrel’, ‘Top Dog’, ‘MM’, ‘MMA’, ‘MMMA’, ‘Barbarian’, ‘Notorious’ and ‘13’.[14] 

    [14] Exhibit R2: TB Explanatory notes to Liquor (Identified Organisation—Mongrel Mob) Amendment Regulation 2018 (Qld).

    ·In response to the danger posed by the Mongrel Mob, in 2018, the Liquor Regulation 2002 (Qld) was amended to prescribe the Mongrel Mob as an ‘identified organisation’, for the purpose of preventing items bearing the Mongrel Mob ‘colours’ and other paraphernalia from being worn or carried in public places. Overall, it is uncontentious the Mongrel Mob is an organisation involved in criminal conduct. Mr Trass-Maraki does not appear to dispute this. Limb 2 is satisfied.

    ·The Minister turns now to Limb 1. There is clear evidence of Mr Trass-Maraki’s membership of and/or association with the Mongrel Mob. As at 8 July 2022, the Queensland Police Service considered Mr Trass-Maraki to be an ‘Office Bearer (Vice Captain) of the Mongrel Mob, Brisbane Chapter.’[15] In evidence are screenshots taken in 2022 of social media posts made by the applicant in 2022 and 2023.[16] These posts include: 

    [15] Exhibit R1: G10, page 71.

    [16] Exhibit R1: G9 and G10.

    oimages of mongrel mob insignia (including swastikas, stahlhelm and bulldogs);

    ostatements making express reference to the Mongrel Mob and using terms associated with the organisation including ‘heil’, ‘mongrel’, ‘sieg hiel’, ‘bulldog’ and other terms associated with dogs including ‘chaindogg’, ‘barks’, ‘kennel’; 

    ophotographs and videos showing Mr Trass-Maraki wearing clothing and patches displaying Mongrel Mob insignia and/or standing in front of signs displaying such insignia. In a number of photographs from 2022, Mr Trass-Maraki is seen with a badge stating ‘mongrel mob vice-captain’;[17] 

    [17] Exhibit R1: G9, page 68.

    ophotographs and videos showing Mr Trass-Maraki with other persons where Mr Trass-Maraki and those other persons are all wearing clothing and patches displaying Mongrel Mob insignia and/or standing in front of signs displaying such insignia; and

    othe sharing of statements about the process through which persons (or ‘prospects’) attain membership to the Mongrel Mob. 

    ·In response to many of Mr Trass-Maraki’s social media posts, other users (whose names are redacted) have posted statements supporting Mr Trass-Maraki and also using language correlated with the Mongrel Mob. Also included in evidence is a photograph taken by police on 14 November 2021 depicting Mr Trass-Maraki wearing a shirt with Mongrel Mob insignia (including a swastika, a stahlhelm and a bulldog).[18] In September 2021, Mr Trass-Maraki’s mother advised police that she had observed Mr Trass-Maraki with a ‘Mongrels gang patch’.[19] 

    [18] Exhibit R1: G11, page 84.

    [19] Exhibit R2: TB3, page 131.

    ·In his material, Mr Trass-Maraki asserts that he ‘has never been a member of the Mongrel Mob’. Mr Trass-Maraki describes his connection to the Mongrel Mob as one of ‘fantasy and pretend’. In essence, he claims he has previously acted as if he is a member of, or associated with, the Mongrel Mob, when he was not so.

    ·Mr Trass-Maraki contends that the outfits shown in photographs on social media do not belong to him. His explanation for how he came to be photographed in the clothing is as follows. He says he, firstly, ‘pinched’ the outfits from another house in his neighbourhood, secondly, ‘put them on’, thirdly, took photographs of himself in the outfits and then, fourthly, left the outfits at the house with the exception of one shirt. Mr Trass-Maraki’s wife gives similar evidence; suggesting that
    Mr Trass-Maraki was ‘playing dress ups’.

    ·Needless to say, these explanations are implausible and should not be accepted by this Tribunal. Specifically, it is implausible that, by chance, Mr Trass-Maraki came upon Mongrel Mob paraphernalia at an unidentified neighbour’s house, took photographs of himself in the clothing and progressively released those photographs over time on social media; pretending to be a member of a criminal gang. On any view, the more likely explanation is that Mr Trass-Maraki is in fact a member of, or associated with, the Mongrel Mob. 

    ·In this regard, there is clear evidence that Mr Trass-Maraki knows or is connected with other persons associated with the Mongrel Mob. Mr Trass-Maraki has posted photographs and videos depicting himself with other persons all displaying Mongrel Mob paraphernalia. Mr Trass-Maraki’s contention that none of the other persons depicted in the photographs have been formally identified as ‘known members of the [Mongrel Mob]’ goes nowhere. Additionally, it is emphasised that, in response to many of Mr Trass-Maraki’s social media posts, other users (whose names are redacted) have posted statements indicating connection with the Mongrel Mob. In light of this evidence, claims that
    Mr Trass-Maraki was ‘pretending’ or ‘playing dress ups’ cannot be sustained. 

    ·Mr Trass-Maraki claims he sometimes speaks ‘the way the Mongrel Mob do’ because he is from an area of New Zealand where the same ‘slang’ is used – an absurd proposition. The language used by Mr Trass-Maraki in his social media posts – including the expression ‘sieg hiel’ – is plainly not slang used in any part of New Zealand. Further, that claim is inconsistent with Mr Trass-Maraki’s other submissions that he was deliberately pretending to be a member of the Mongrel Mob. 

    ·Mr Trass-Maraki attributes his behaviour to various psychiatric conditions (said to include schizoaffective disorder, paranoia, anxiety and depression). Reliance is placed on a report dated 28 October 2022 by Dr Parvez, general practitioner.
    Dr Parvez states that Mr Trass-Maraki ‘is not a member of any gang’. He continues: ‘The photos that he has put up on social media is part of his illness and part of his delusion of [grandeur] where he feels like he is someone special, powerful, wealthy and has a high status in the society, which is not the reality.’ 

    ·Dr Parvez’s opinion that Mr Trass-Maraki’s social media activity can be attributed to his ‘delusion of grandeur’ is contingent upon his view that Mr Trass-Maraki is not, as a matter of fact, a member of a gang. How Dr Parvez knows that
    Mr Trass-Maraki is not a member of a gang is unclear. Presumably, it is based upon what Mr Trass-Maraki told him. Regardless, Dr Parvez’s evidence on this issue should be afforded very little weight. His conclusion that Mr Trass-Maraki is not a member of a gang is not the expression of any medical opinion, it is a statement of fact.

    ·Overall, the Minister contends that Mr Trass-Maraki has been a member of, or is associated with, the Mongrel Mob. Limb 1 is satisfied. 

20. Summarising Mrs Trass-Maraki’s contentions on this issue are:[20]

    [20] Exhibit A2: Applicant’s SFIC, [24] – [27], [33] – [48].

    ·Mr Trass-Maraki consistently maintains he has never been a member of the Mongrel Mob, or any bikie gang or outlaw motorbike gangs, and that he does not associate with anyone who is in such a gang ’or anything like that’.[21]

    [21] Exhibit R1: G14, page 176.

    ·Mr Trass-Maraki explains that he made some ’regretful decisions to portray myself as someone I am not.... I am not and have never been a member of the Mongrel mob’. [22]

    [22] Exhibit R1: G15, page 182.

    ·In his most recent statement, he maintains emphatically that he is not and ‘has never been a member of the Mongrel Mob. I have never been associated with the Mongrel Mob. I have never been invited to, or attended a meeting of the Mongrel Mob, or been at any event run by the Mob’. [23] He explained how he came across the Mongrel Mob outfits, and why he has expressed himself using Mongrel Mob signs and expressions on social media. [24]

    [23] Exhibit A1: page 3.

    [24] Exhibit A1: page 3.

    ·Mr Trass-Maraki suffers from complex mental health issues including but not limited to schizoaffective disorder, PTSD, severe or extreme generalised anxiety disorder, depressed mood and social anxiety disorder.[25] He suffers from delusions of grandeur, paranoia and anxiety.[26]

    [25] Exhibit R1: G20, G21 and G22 and Exhibit A3: page 67.

    [26] Exhibit R1: G20, G21 and G22 and Exhibit A3: page 67.

    ·He requires full-time care from his wife for meal preparation, laundry, travel, management of his medical needs including appointments and medication, and advocacy for his care needs in health and legal situations.[27]

    [27] Exhibit R1: G22 and Exhibits A1 and A3.

    ·Mrs Trass-Maraki states that Mr Trass-Maraki has no criminal involvement with any outlaw motorcycle gang.[28]

    [28] Exhibit R1: G23, page 228 [7] – page 229 [10].

    ·Mr Trass-Maraki’s mental health conditions first appeared in 2011 or 2012.[29] He has been approved for a Disability Support Pension and his wife was approved for a carer’s pension in 2020.[30] Mr Trass-Maraki rarely leaves his home and has not worked for some time. He does not go out in public pretending to be part of the Mongrel Mob.

    ·Mrs Trass-Maraki believes that Mr Trass-Maraki has a fascination with the Mongrel Mob as he was born in a region of New Zealand where the gang had a presence.[31]

    ·Mr Trass-Maraki has developed a hobby of making online music, encouraged by his wife and doctors.[32] He will sometimes watch video clips about the Mongrel Mob and sometimes mimic the way they speak or the hand signs they use, and will sometimes try to replicate the type of music the Mongrel Mob uses in their video clips.[33]

    ·The Mongrel Mob clothing and patches he is seen wearing in the photographic evidence came from a tenant at a friend’s house Mr Trass-Maraki was looking after.[34] Mr Trass-Maraki never owned clothing and patches. With the exception of one t-shirt, he took none of the outfits to his home.[35]

    ·Mr Trass-Maraki’s then-lawyer,  Mr Andrew Stewart, confirms that to the best of his knowledge and information, Mr Trass-Maraki is not and never has been a member of the Mongrel Mob or any other motorcycle gang, and that none of the offences he has acted for Mr Trass-Maraki have arisen out of any motorcycle gang related activities.[36]

    ·In assessing whether the applicant in Emery and Minister for Immigration, Citizenship, and Multicultural Affairs[37] was a member or associated with the Mongrel Mob, the Tribunal considered that the applicant had told the police of his membership and that he had become a ’patched member’, there was photographic evidence of the applicant with senior members of the Mongrel Mob including the president, he had a ‘thirteen’ tattoo, and was observed by police associating with the Mongrel Mob in public. Ultimately it was this external evidence which persuaded the Tribunal in that matter to make a finding that the applicant had been a member of the Mongrel Mob.  

    ·In comparison to Emery, the nature of the evidence, and of the alleged association between Mr Trass-Maraki and the Mongrel Mob in this matter stems from a number of social media posts over the span of approximately 12 months originating from Mr Trass-Maraki  himself. There is no external evidence of
    Mr Trass-Maraki’s involvement with the Mongrel Mob. There is no photographic evidence of Mr Trass-Maraki with any known members of the Mongrel Mob and he has never been observed to have associated with the Mob in public. He has no connections with the Mongrel Mob. [38] He does not own, and never has owned, a motorbike.[39]

    ·It is accepted that at absolute face value, and without any context or consideration of the objective material, it may appear that Mr Trass-Maraki has had an involvement with the Mongrel Mob. However, with the context and explanation provided in the evidence, which includes evidence from his wife of 10 years, his family, his doctors and his solicitor, it becomes clear that this is in fact, not the case at all. 

    ·Mr Trass-Maraki’s connection with the Mongrel Mob is one of fantasy and pretend, in large part a result of his serious and complex mental health issues including schizoaffective disorder, which make him suffer from delusions of grandeur, paranoia, severe social anxiety and severe anxiety and depression, amongst other serious effects. 

    [29] Exhibit R1: G23, page 229, [14] and Exhibit A1: page 7.

    [30] Exhibit A1: page 9.

    [31] Exhibit R1: G16 and G23, page 228; Exhibit A1, page 7.

    [32] Exhibit R1: G23.

    [33] Exhibit R1: G23.

    [34] Exhibit A1: page 7.

    [35] Exhibit A1: page 7.

    [36] Exhibit R1: G19, pages 219-220.

    [37] Emery and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 16 (3

    January 2023) at [24].

    [38] Exhibit R1: G14, page 176.

    [39] Exhibit R1: G17.

1. While the necessary ‘reasonable suspicion’ should be based on reasonable grounds,[40]  the formation of a reasonable suspicion is ultimately a matter for the decision maker. Section 2  of Annex A of the Direction provides guidance to decision makers in determining whether a person does not pass the character test in circumstances where that person ‘(a)...has been or is a member of a group or organisation, or has had an association with a group, organisation or person and (b) that the group, organisation or person has been, or is, involved in criminal conduct.’ Stated in full, this guidance commentary comprises the following:

   [40] See Stevens v Minister for Immigration and Border Protection [ 2016] FCA 1280; (2016) 153 ALD 346, per

   Charlesworth J at para [14(5)].

   ‘(1) A person does not pass the character test if the Minister reasonably suspects:

   a) that the person has been or is a member of a group or organisation, or has or has had an association with a group, organisation or person; and

   b) that the group, organisation or person has been, or is, involved in criminal conduct.

   (2) A suspicion is less than a certainty or a belief, but more than a speculation or idle wondering. For a suspicion to be reasonable, it should be:

   a) a suspicion that a reasonable person could hold in the particular circumstances; and

   b) based on an objective consideration of relevant material.

   (3) A member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has a reasonable suspicion that:

   a) the person has been, or is a member of a group or organisation; and

   b) the group or organisation has been, or is, involved in criminal conduct.

   (4) In establishing association, the following factors are to be considered:

   a) the nature of the association;

   b) the degree and frequency of association the person had or has with the individual, group or organisation; and

   c) the duration of the association.

   (5) Decision-makers should note that in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation - mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. In order to not pass the character test on this ground, the association must have some negative bearing upon the person’s character.

   (6) In some cases the information concerning association will be protected from disclosure under the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other people at risk.’

   Is the group, organisation or person involved in criminal conduct?

2. The Tribunal considers this question is answered by the uncontested evidence before it and the decision in Emery.

3. The Tribunal accepts and finds that the Mongrel Mob is an organisation that has been or is involved in criminal conduct, satisfying s 501(6)(b)(ii).[41]

   Can a ‘reasonable suspicion’ be formed that Mr Trass-Maraki was sympathetic towards, or supportive of, the Mongrel Mob’s criminal conduct?

   [41] Exhibit R1: G12.

4. Assessing and considering the evidence and testimony before it in relation to this question, the Tribunal notes the following:

   ·The visual evidence supporting the allegation that Mr Trass-Maraki has been or is a member of, or has had or has an association with, the Mongrel Mob (the allegation) is drawn from photographs posted or published on Mr Trass-Maraki’s Facebook accounts and videos posted on YouTube.[42]

   [42] Exhibit R1: G9, G10 and G17, page 190.

   ·The Queensland Police Service’s information on Mr Trass-Maraki’s offending history between June 2005 and June 2023 covers 55 incidents. It has three mentions of Mr Trass-Maraki wearing Mongrel Mob attire – twice in November 2021 and once in March 2022.[43]

   [43] Exhibit R1: G11.

   ·There is no other evidence before the Tribunal supporting the allegation. The allegation’s nature is very serious. The gravity of the consequences of finding that the allegation is made out are equally very serious. There is an inherent improbability to the allegation. The Tribunal considers that the allegation is an extraordinarily serious one and consequently requires extraordinary proof.[44]

   [44] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and section 140(2) Evidence Act 1995 (Cth).

   ·The Tribunal notes that two of the photographs show badges respectively reading ‘Mongrel Mob National Sgt At Arms’[45] and ‘Mongrel Mob Vice Captain’[46]. While possible, it seems unlikely that Mr Trass-Maraki could have held both roles contemporaneously or in close proximity to each other as suggested by the curation of the photographs. The evidence indicates that the Mongrel Mob was outlawed in Queensland in 2018.[47] This raises the question as to why the Queensland Police Service did not take further action against Mr Trass-Maraki as an apparent leader within the Mongrel Mob in November 2021 and in March 2022 when he offended while wearing Mongrel Mob attire.

   [45] Exhibit R1: G9, page 69.

   [46] Exhibit R1: G9, page 68.

   [47] Exhibit R1: G13, pages 138 and 144.

   ·This open question is further enlivened by the statement in the evidence from the Queensland Police Service referenced by Mr Freeburn in his cross-examination[48] of Mr Trass-Maraki: ‘As at 08-Jul-2022, Pahira Robert TRASS-MARAKI 10-May-1984 is recorded as an Office Bearer (Vice Captain) of the Mongrel Mob, Brisbane Chapter.’[49]

   [48] Transcript, page 14, lines 4-7.

   [49] Exhibit R1: G10.

   ·There were also questions about hand gestures allegedly used by Mongrel Mob members. It would appear from the cross-examination that the hand gesture concerned is widely used, rather than being confined to the Mongrel Mob. [50]

   [50] Transcript, page 12, line 32 – page 13, line 44, page 20, line 36 – page 21, line 13, page 47, lines 19- 22, page 78, lines 1-23.

   ·The Tribunal gives weight to Mr Stewart’s 15 November 2022 letter in view of the fact that he has represented Mr Trass-Maraki on three occasions.[51] In that letter
   Mr Stewart notes that on 7 February 2022, despite the police having found a photograph of Mr Trass-Maraki wearing clothing similar to motorcycle gang clothing, the Crown did not present that as an allegation.

   [51] Exhibit R1: G19, pages 219 – 220.

   ·Dr Slack’s 18 June 2019 report states that when Mr Trass-Maraki was employed (at that time) his employment did not last long mainly because of his paranoia.[52] Both Dr Slack’s report and Dr Gardner’s report establish that Mr Trass-Maraki has been diagnosed with Schizoaffective Disorder, Bipolar Disorder, generalised anxiety disorder and social anxiety disorder. Ms Robins’ 20 May 2024 report indicates that Mr Trass-Maraki has PTSD and benefits from having a pet therapy dog.[53] None of these reports were contested. It is difficult to reconcile the plausibility of Mr Trass-Maraki being a Mongrel Mob member or successfully (for certain values of success) associating with the Mongrel Mob in conjunction with the state of his mental health.

   ·The Tribunal accepts Mrs Trass-Maraki as a witness with a high degree of credibility. Her account of the context of how Mr Trass-Maraki came to be wearing the Mongrel Mob attire is plausible and realistic, supported by Dr Parvez’s report which states that Mr Trass-Maraki suffers from delusions of grandeur.

   ·The Tribunal observed Mr Trass-Maraki as he gave evidence. On the basis of that observation, the Tribunal considers that it is unlikely that he can function effectively on a sustained basis in social situations around other people requiring that he interact. This in turn raises concerns about how he could function effectively as a Mongrel Mob member or in association with the Mongrel Mob.

   ·The Respondent contends that Mr Trass-Maraki’s explanations for how he came to be wearing the Mongrel Mob attire are implausible. The Respondent offered no line of reasoning or argument to advance their implied argument that Mr Trass-Maraki was a Mongrel Mob member because he is pictured wearing the Mob’s attire beyond specifying the photographs and videos. This appears to the Tribunal to fall into a logical fallacy of assuming that one thing proved another simply because it exists and precedes the claim. After reading the evidence and hearing the testimony of Mr and Mrs Trass-Maraki for how he came to be wearing the Mongrel Mob attire, the Tribunal considers the explanation provided by Mr and Mrs Trass-Maraki is equally or more plausible than the Respondent’s contention.

   ·The Respondent further contends that Mr Trass-Maraki knows or is connected with other persons associated with the Mongrel Mob.

   ·Section 2 of Annex A of the Direction, as noted above, requires the Tribunal to consider the nature of the association, the degree and frequency of association Mr Trass-Maraki had or has with Mongrel Mob and the association’s duration.

   ·The evidence supporting the Respondent’s contention comes from the photos and videos. These do not assist greatly in assessing the nature, degree, frequency or duration of any possible association between Mr Trass-Maraki and the Mongrel Mob. At the least, ‘association’ and ‘duration’ imply a period of time whereas a photograph is literally a snapshot of a specific moment.

   ·Further evidence as to the nature, degree, frequency or duration of any possible association is required to validate the extraordinary claim that Mr Trass-Maraki had or has an ‘association’, as characterised in the Direction, with the Mongrel Mob. There is no such evidence before the Tribunal.

   ·Overall, the evidence of either Mr Trass-Maraki’s membership or association with the Mongrel Mob is circumstantial, insufficient and in open contention with the testimony and evidence from Mr and Mrs Trass-Maraki.

   ·Serious allegations with serious consequences require more compelling evidence for the decision maker to feel an actual persuasion and reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

   [52] Exhibit R1: G20, page 221.

   [53] Exhibit A3.

5. The Tribunal finds that Mr Trass-Maraki was not and is not a Mongrel Mob member and that he has not had, nor does he currently have, an association with the Mongrel Mob. The allegation is not made out.

   FINDINGS

6. The Tribunal’s task was to consider whether there is a reasonable suspicion that

   
   

   Mr Trass-Maraki’s situation met the requirements of section 501(6)(b) of the Act.

7. The Tribunal found, after considering the contentions and evidence, that a reasonable suspicion is not made out. Consequently section 501(2)(a) is not enlivened and

   
   

   Mr Trass-Maraki passes the character test.

8. While finding that the Mongrel Mob is a criminal organisation, the Tribunal could not find that there was sufficient evidence to support a reasonable suspicion that Mr Trass-Maraki was or is a member of the Mongrel Mob, or that he has or has an association with the Mongrel Mob.

   DECISION

9. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 28 February 2024 to cancel the Applicant’s visa and substitutes it with a decision to not exercise the power to cancel the Applicant’s visa.

I certify that the preceding twenty-nine paragraphs (29) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

............[SGD]..............

Associate

Dated: 15 July 2024

Dates of hearing:	28 and 29 May 2024
Advocate for the Applicant:	Mrs Tiana Trass-Maraki
Counsel for the Respondent:	Mr Doug Freeburn (Higgins Chambers)
Solicitors for the Respondent:	Mr Jake Kyranis (Special Counsel)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
APPLICANT’S MATERIALS
A1	Applicant’s Materials	A	Various	7/05/2024
A2	Applicant’s Statement of Facts, Issues and Contentions (SOFIC)	A	6/05/2024	7/05/2024
A3	Collated Applicant Bundle (Updated)	A	Various	23/05/2024
RESPONDENT’S MATERIALS
R1	G Documents	R	Various	28/03/2024
R2	Respondent’s Tender Bundle	R	Various	17/05/2024
R3	Respondent’s Statement of Facts, Issues and Contentions (SOFIC)	R	17 May 2024	17/05/2024