Unu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4239

Unu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4239 (21 December 2023)
Division:GENERAL DIVISION
File Number(s):2023/7560
Re:Amieki Junior Unu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 21 December 2023
Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and substitutes it with a decision not to cancel the Applicant’s visa under subsection 501(2) of the Migration Act 1958.
..................................[sgd]......................................
Member W Frost
Catchwords
MIGRATION – Cancellation of Applicant’s Class TY (Subclass 444) Special Category visa under s 501(2) of the Migration Act 1958 – whether Applicant passes the character test – reasonable suspicion of association with an organisation pursuant to s 501(6)(b) – Applicant’s criminal offences unrelated any criminal organisation and occurred over two years ago – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 499, 501, 501CA, 501G
Cases
Minister for Immigration & Citizenship v Haneef (2007) 163 FCR 414
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
Roach v Minister for Immigration and Border Protection [2016] FCA 750
Stevens v Minister for Immigration and Border Protection (2016) 153 ALD 346
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
21 December 2023
INTRODUCTION

The Applicant, Mr Amieki Junior Unu, is a New Zealand citizen who has resided in Australia since 2019. In September 2023, Mr Unu’s Special Category (Class TY) (Subclass 444) visa (Visa) was cancelled by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), pursuant to subsection 501(2) of the Migration Act 1958 (Act).
Subsection 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. The delegate was satisfied, pursuant to subsection 501(6)(b) of the Act, that Mr Unu did not pass the character test because they reasonably suspected that Mr Unu ‘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 that ‘the group, organisation or person has been or is involved in criminal conduct’. That group was the ‘Comanchero’ outlaw motorcycle gang (OMCG).
As a result, Mr Unu applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the decision to cancel his Visa. The Tribunal has considered all of the documents filed in this proceeding pursuant to section 501G of the Act,[1] together with the parties’ respective submissions, tender bundles and other documents.[2] For the following reasons, the Tribunal has decided to set aside the decision to cancel Mr Unu’s Visa.
[1] Exhibit 1.
[2] Applicant’s Statement of Facts, Issues and Contentions dated 10 November 2023, Respondent’s Statement of Facts, Issues and Contentions dated 24 November 2023 and Exhibits 2-10.
BACKGROUND
Mr Unu is a 24-year-old citizen of New Zealand.[3]
[3] Exhibit 1, pages 40, 150 and 167.
On 23 December 2016, Mr Unu first arrived in Australia from New Zealand.[4] He departed Australia on 21 January 2017.[5]
[4] Ibid., page 168.
[5] Ibid.
On 7 January 2019, aged 19, Mr Unu arrived in Australia.[6]
[6] Ibid.
On 21 February 2019, Mr Unu departed Australia.[7]
[7] Ibid.
On 25 February 2019, Mr Unu arrived in Australia.[8]
[8] Ibid.
On 15 July 2019, Mr Unu departed Australia.[9]
[9] Ibid., page 167.
On 20 July 2019, Mr Unu arrived in Australia.[10]
[10] Ibid.
On 27 September 2019, Mr Unu departed Australia.[11]
[11] Ibid.
On 5 October 2019, Mr Unu arrived in Australia.[12]
[12] Ibid.
On 24 December 2019, Mr Unu departed Australia.[13]
[13] Ibid.
On 6 February 2020, Mr Unu arrived in Australia.[14] He has not departed Australia since this time.[15]
[14] Ibid.
[15] Ibid.
Between March and May 2021, Mr Unu first met his now fiancée, Ms Ruzica Azdajic.[16] They began formally dating ‘some months’ after this initial meeting.[17]
[16] Exhibit 3.
[17] Ibid. See also Exhibit 1, page 140.
On 8 December 2021, the ACT Magistrates Court convicted Mr Unu of ‘Common Assault’ and sentenced him to a suspended period of imprisonment of 42 days.[18] This offence occurred on 19 March 2021. The sentencing Magistrate stated that the offence was ‘a quite serious episode of what I would describe as drunken street violence’.[19] His Honour further stated that:[20]
[18] Exhibit 1, page 41.
[19] Ibid., page 49.
[20] Ibid., pages 49-50.
He, and people that he knew, were on Bunda Street at 9.30 pm on a Friday night in March, for some reason they fixed their attention on a car occupied by the complainant and his wife, at least.
…
What then occurred was offending, which was explosive, random, against a vulnerable person who was seated inside his own car and not committing any offences. It was brutal, it was sustained in terms of there being five or six blows from the defendant to the complainant in the head region, a vulnerable area of the body, and this occurred in company.
…
The defendant is a young man, he's got no criminal history but this is an example of the unprovoked drunken violence which seems to perpetuate in Canberra after hours, at night, with young men who drink alcohol to a level that they cannot cope with and then, they become violent.
A strong message needs to be sent to Mr Unu, and also, to other young men in the community and also, to the community members that are fearful of this type of violence, that it will not be tolerated. In my view, a conviction is necessary in this matter. To deal with it by way of a non-conviction order would be an afront to the public conscience and would be an appealable error.
I form the same view about a conviction and either a good behavior [sic] order and [sic] fine. In my view, it is an insufficient and dramatically insufficient way to deal with this type of drunken, unprovoked, sustained violence, in company. That leaves me then, with the contention that a sentence of imprisonment is the only appropriate sentence and that is my firm view in this matter.
Notwithstanding this young man's age and his lack of history. I started at a commencement of two months’ imprisonment, but I've reduced that to 42 days, or six weeks, on account of his plea. Because of his lack of criminal history and his youth, I have decided to fully suspend that sentence. He is to be suspended for a period of 12 months on the following conditions.
That to be under supervision for 12 months, that he supply breath, blood, urine and saliva samples for drug and alcohol testing, if requested. That he undertaken any educational, vocational, psychological, psychiatric, or other assessments, programs, or counselling in relation to drug and alcohol abuse and violence.
On 12 and 13 December 2021, Mr Unu was captured by CCTV footage inside an elevator located at residential apartments in the ACT in the presence of persons reported by the Australian Federal Police (AFP) to be OMCG members.[21]
[21] Ibid., pages 101-106.
On 29 January 2022, Mr Unu was photographed at the OMCG ‘National Run’ in Melbourne, Victoria.[22]
[22] Ibid., pages 105-106.
Since December 2022, Mr Unu has been engaged to marry Ms Azdajic.[23]
[23] Exhibit 3.
On 16 January 2023, the ACT Magistrates Court convicted Mr Unu of ‘Assault Occasioning Actual Bodily Harm’ and sentenced him to 10 months’ imprisonment.[24] The offence occurred on 25 June 2021.[25] The sentence was served by way of an intensive correction order in the community and Mr Unu was ordered to perform 120 hours of community service work. The sentencing Magistrate stated that:[26]
[24] Exhibit 1, page 41.
[25] Ibid., pages 78-82.
[26] Ibid., pages 69-71.
The offending involves the defendant engaged in a relatively short fight where he punched the victim. That followed another fight between the victim and a colleague, a young colleague of the defendant. And had a bit of a scuffle on the ground. I understand that confrontation had followed a game of pool at an establishment.
The actions of the defendant involved him pushing the victim once and then placing his hands or fingers on the victim’s chest a second time and then striking him to the face. Essentially it was one punch and it was not in circumstances where the victim is not aware it was about to happen or was not aware that he was engaged in a confrontation directly with the defendant.
The victim then fell backwards, striking his head on the ground, the hard ground, causing a laceration to his scalp. He was then in and out of consciousness as he laid on the ground with a laceration to his lip, which appears or may have been as a result of the first confrontation with the other person. There was swelling around his eyes and mouth and there was bleeding to the back of his head.
Of significance, he was taken to Canberra Hospital, where he was intubated and ventilated for a period of time and spent some three days, in my calculations, maybe four days, in the intensive care unit before being discharged.
…
So the event occurred on 25 June and he was released from ICU and discharged on 28 June. The conduct, as I’ve said, involved the one punch as he faced the victim. Not the most serious form of conduct. The circumstances involved the defendant responding to a fight involving his younger colleague, a colleague who is perhaps more vulnerable than he was, and so therefore there’s a degree of, on one level, altruism by the defendant.
But the nature of the injuries are serious and it’s been conceded that they are very serious examples of actual bodily harm and that takes it so close to grievous bodily harm, because the definition of grievous bodily harm is ‘very serious injury’. It’s a serious example of this type of offence and requires an appropriate response.
The maximum penalty is five years imprisonment. There’s consent to jurisdiction. This court has power to impose that penalty. The defendant has a criminal history. The previous single entry relates to an offence that occurred prior to this, by some months, and the defendant had engaged with police prior to the offending in relation to the matter for sentence today, but had not been summonsed to appear before the court and had certainly not been sentenced by the court prior to this offending.
…
The defendant is only 23 years of age and I have the benefit of a presentence report. I note the defendant’s background. There are a number of positive features to the defendant’s background, including his work ethic, his, I guess, taking responsibility for his offending and what’s been reflected in all the documents is that the defendant and others have seen that he has changed somewhat since the offence some 18 months ago.
…
The defendant has undergone some drug or alcohol rehabilitation. Only a couple of entries are recorded in the presentence report. There’s alcohol and drug counselling with Directions, there was two Smart Recovery group sessions and I’m told some of those sessions have extended or continued since October last year, approximately once a fortnight.
I accept the defendant accepts responsibility for his action and he regrets what has occurred. I think it’s a bit difficult to say this is out of character when this is the second time this occurred in a relatively short period of time.
The defendant is someone who is respected and valued by his friends, colleagues and family and maybe in a way, that’s part of the problem; the defendant in this occasion seems to have come to the aid of a colleague in a misunderstood assumption of responsibility to engage with the victim.
There was no threat to his colleague at that time; the threat had passed. What occurred was nothing more than retribution, noting [sic] more than providing what he perceived as the just desserts for the victim, who had engaged in a fight of sorts with his colleague.
The authorities that have been put before me state I guess the obvious, that alcohol fuelled violence is something that frustrates the community, it causes misery, unnecessary misery for many people, and it appears to just keep on occurring. Young men, with alcohol on board, appear to feel justified in engaging in violence that has effects that continue for a considerable period of time.
The striking of someone to the head can easily cause them to fall and strike their head on the ground and this occurs from time to time and causes catastrophic injuries and death. In this case, everyone’s lucky that the injury was not more serious, but it was an injury of some significance.
I am satisfied that the purposes of sentencing, in particular general deterrence but also specific deterrence here, and the need to denounce the conduct and make the defendant accountable and recognise the harm done to the victim require a period of imprisonment. Nothing short of that would be suitable or adequate.
Since February 2023, Mr Unu has lived with his fiancée, Ms Azdajic.[27]
[27] Exhibit 3.
On 14 March 2023, the Minister’s department (Department) sent Mr Unu a notice of intention to consider cancellation of his Visa under subsection 501(2) of the Act.[28] Mr Unu responded to the Department’s notice on 6 April, 9 May and 27 June 2023.[29]
[28] Exhibit 1, pages 107-112.
[29] Ibid., pages 121-150.
On 13 September 2023, a delegate of the Minister exercised the discretion under subsection 501(2) of the Act to cancel Mr Unu’s Visa.[30] Mr Unu was notified of that decision on 6 October 2023.[31] Following receipt of that correspondence, Mr Unu has been detained at Villawood Immigration Detention Centre.
[30] Ibid., pages 15-39.
[31] Ibid., pages 5-39.
On 15 October 2023, Mr Unu applied to the Tribunal for review of the decision to cancel his Visa.[32]
LEGISLATION & MINISTERIAL DIRECTION
[32] Ibid., pages 1-4.
The Act
Subsection 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Pursuant to subsection 501(6)(b) of the Act, a person does not pass the character test if the Minister ‘reasonably suspects’:
(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...
The High Court of Australia in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 considered the construction of subsection 501(2) of the Act and relevantly said as follows (at [34]-[40]):
Bearing centrally on the construction of s 501(2) of the Act is recognition that s 501(2) confers a single power that is exercised by the Minister or a delegate in the first instance, and that is re-exercised by the AAT under s 43(1) of the AAT Act on review, according to a two-stage decision-making process.
The first stage of the decision-making process begins with the decision-maker forming a reasonable suspicion that the visa holder in question does not pass the character test. By operation of s 501(6), a person either passes the character test or does not. The person does not pass the character test in any one or more of the circumstances exhaustively enumerated in s 501(6). Otherwise, the person passes the character test.
Reasonable suspicion is a state of mind — “a state of conjecture or surmise” — that is based on “sufficient grounds reasonably to induce that state of mind”. The necessary precondition to the decision-maker forming a reasonable suspicion that the visa holder does not pass the character test is therefore the existence of facts sufficient to induce a reasonable person to surmise that one or more of the circumstances exhaustively enumerated in s 501(6) has occurred.
The decision-maker having formed a reasonable suspicion that the visa holder does not pass the character test, the first stage of the decision-making process is completed by the decision-maker making a binary decision either to be satisfied by the visa holder that he or she passes the character test or not to be so satisfied and in consequence to maintain the reasonable suspicion.
Satisfaction too is a state of mind — an “actual persuasion of [the] occurrence or existence” of the thing in issue. Implicit in the statutory placing of the onus on the visa holder to satisfy the decision-maker that he or she passes the character test is a requirement of procedural fairness that the visa holder be given notice and an opportunity to make representations before the first stage of the decision-making process can be completed. Implicit in the statutory need for satisfaction or non-satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker.
If the outcome of the first stage of the decision-making process is that the decision-maker is satisfied by the visa holder that he or she passes the character test, the only decision open to the decision-maker is not to cancel the visa. The decision-making process necessarily ends with the making of that decision.
The second stage of the decision-making process is reached only if the outcome of the first stage is that the decision-maker, not being satisfied that the visa holder passes the character test, maintains a reasonable suspicion that the visa holder does not pass the character test by reason of the occurrence of one or more of the circumstances set out in s 501(6). The second stage then involves the decision-maker, reasonably and in compliance with applicable directions given under s 499, exercising a discretion the outcome of which is the making by the decision-maker of a further binary decision either to cancel the visa in the exercise of discretion or not to cancel the visa in the exercise of discretion.
Subsection 500(1)(b) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act. Accordingly, the delegate’s decision to cancel the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 23 January 2023, the Minister made a direction under section 499 of the Act, being Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which commenced on 3 March 2023 and applies in relation to the Tribunal’s consideration of Mr Unu’s application for review of the decision to cancel his Visa under subsection 501(2) of the Act.
The Preamble to Direction 99 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)where the discretion to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion (paragraph 5.1(2));
(c)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));
(d)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(e)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(f)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(g)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5)); and
(h)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).

Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501(2) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501(2) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1)   In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)   Primary considerations should generally be given greater weight than the other considerations.
(3)   One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Mr Unu passes the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether the discretion to cancel the visa under subsection 501(2) of the Act should be exercised.
EVIDENCE
Mr Unu gave evidence by video from Villawood Immigration Detention Centre and told the Tribunal that he recalled signing his Personal Circumstances Form on 6 April 2023, which he had submitted to the Department.[33] Mr Unu confirmed having never spelt his name in ways other than set out in that form, and that his nicknames growing up were ‘Meki’ or ‘Max’. He was referred to in Australia as ‘Meki’.
[33] Ibid., pages 136-149.
Mr Unu told the Tribunal he first came to Australia in 2016 on a holiday with his aunt and uncle and their family to ‘get away from New Zealand’. The last time he arrived in Australia with the intention of remaining in this country was January 2019. Mr Unu went back to New Zealand later that year to visit family and on another occasion for his godson’s birthday. He told the Tribunal he spent approximately 340 to 345 days in Australia during 2019. In this regard, Mr Unu agreed that he only went back to New Zealand for temporary stays.
Mr Unu confirmed that the residential address in ACT listed in the Personal Circumstances Form remained the same and that the property is still ‘under my name’. This residence is situated on the fifth floor of a residential apartment block with 12 levels. Mr Unu’s fiancée lives at the same residential address. He confirmed that they remain in a relationship, but due to his current circumstances they have ‘put a hold’ on their wedding. Mr Unu told the Tribunal that, if his Visa were not restored, his fiancée would have to leave Australia and her family, and that she has no ties to New Zealand. He confirmed that they have discussed the consequences of his removal from Australia and his fiancée’s has decided to move to New Zealand with Mr Unu.
Mr Unu agreed that his criminal offending occurred when he was at a low point in his life physically and mentally and that he had turned to alcohol and drugs. He could not recall the last time he was inebriated from drinking alcohol, but said it had been ‘a while’. Mr Unu subsequently told the Tribunal that this had occurred within the last six months, and this level of inebriation was a ‘four’ out of 10. This occurred during his and his fiancée’s anniversary, which they celebrated on the Gold Coast.
Mr Unu was referred to his statement that he had been hanging around with the wrong crowd. He told the Tribunal he meant that he was hanging around with people that ‘had no benefit to me’, but who were focused on ‘partying’ and drug use. Mr Unu said that he met these people at nightclubs, but that he took sole responsibility for his own alcohol use.
Mr Unu told the Tribunal that he was striving to be a better person and that his attitude ‘towards everything’ had changed. He said he had in the past not taken responsibility for his actions and felt like this had been his biggest problem. It was not until he addressed his mental health and alcohol issues and thought about what he had done, which actions did not align with how his mother had raised him, that he recognised he needed a change for himself, his family and fiancée.
Mr Unu was referred to the statement that he would not reoffend in the future. He told the Tribunal that being in Villawood was the biggest deterrent to going down his previous path. Mr Unu said that he was ‘[u]nrecognisable’ and ‘not me’ when he drank to excess or used drugs.
Mr Unu was referred to his statement that it would be difficult for him to find a stable job and income if he returned to New Zealand because of his criminal ‘record’, and to research he has undertaken suggesting that people who are deported are seen as ‘criminals’ and not given ‘chances’ or jobs in New Zealand. Before coming to Australia Mr Unu had sought employment in New Zealand with ‘no luck’. Mr Unu confirmed that he had the same qualifications then as he does now.
Mr Unu was referred to his statement that he was young, foolish and easily manipulated at the time of his offending and told the Tribunal he had been easily pressured into the use of drugs. Before coming to Australia, drugs were not really of interest to Mr Unu, but he ‘fell to peer pressure’ and ‘bad choices’ in this country. These bad choices included not being careful in his alcohol use and being unaware of his actions and their consequences, and their effects on people around him and those that care for him. When it was put to Mr Unu that the effects extended to those unknown to him, he agreed and said this was ‘not something I’m proud of’.
Mr Unu told the Tribunal that his statement that he is ‘better as of today’ than when he first arrived was because he feels that he has matured since then, and is now more aware of his actions and their consequences. He has also become more discerning regarding the people he surrounds himself with and his ‘mindset’. He made a promise to himself that he would do better, and is aiming to do so and to be a ‘good person’.
By way of cross-examination, Mr Unu confirmed that he first came to Australia in 2016. The aunt and uncle he travelled with now reside in Australia. He came in search of a ‘better life’ and hoped to move his mother over to this country. In New Zealand, he had lived in Auckland with his mother and two of his siblings. Mr Unu confirmed that three of his siblings currently live in New Zealand and one of those siblings now has her own family, while the other two siblings remain living with his mother. He does not have a very strong connection with his father, who also lives in New Zealand. Mr Unu also has one remaining grandparent living in NZ, with whom he has not had ‘much contact’ since residing in Australia.
Mr Unu told the Tribunal he is the ‘main provider’ for his mother. His brother living in New Zealand is unemployed, and his sister is ‘on benefits’ and a single mother who cannot presently contribute financially. Mr Unu sent money weekly to his mother whenever possible to assist, up until the time he was recently detained.
However, Mr Unu said that he had not regularly been in contact with his mother and those siblings residing with her until his second court case when he reached out and told them what had occurred. He has since started to maintain more contact with his mother and two younger siblings. Mr Unu said that, apart from his siblings and mother, he does not have ties to New Zealand. While he agreed that his fiancée, if she moved to New Zealand with him, would have ties to his family, he said that she had never met them and would not have her own immediate family around.
Mr Unu told the Tribunal that he began drinking in New Zealand in high school, mainly on the weekends because there was no access to alcohol during the week at the boarding school he attended. He also experimented with recreational marijuana use during this time. Mr Unu ultimately completed his schooling by way of courses in New Zealand and received a certificate and diploma in engineering in or around 2018. Mr Unu told the Tribunal that in New Zealand he applied for almost any kind of jobs, including those in factories, but these were paid ‘minimum wage’ and were insufficient to provide for his own and his family’s needs. This was after he received his engineering qualification. The pay was the ‘main issue’ with the jobs. He told the Tribunal he did not apply for jobs in his field of expertise and said he had returned to school to ‘make my mum happy’. He applied in Australia only for formwork jobs.
Mr Unu told the Tribunal that when he arrived in January 2019, which is when he contended he started living in Australia, he initially resided in his ‘boss’ garage’. He had secured the job through a ‘mutual friend’ before arriving in Australia. Soon after, Mr Unu was provided accommodation through his employment in the form of a share house, in which he lived with other employees. He lived at this share house until the end of 2019, before he went back to New Zealand for a visit, and on his return to Australia he lived elsewhere in the ACT.
Mr Unu was referred to his statement that he fell in with the wrong crowd and he told the Tribunal that some of this ‘crowd’ were fellow employees, but not all were colleagues. He said everyone in this group had an ‘immature mindset’, and in this environment he continued his drinking that had commenced from the time he was at boarding school in New Zealand. This drinking mostly occurred on weekends, but occasionally occurred during the week. Mr Unu also commenced experimenting with other drugs and agreed that this experimentation occurred in early 2019. These drugs were ‘mainly’ provided by his colleagues and used with alcohol when ‘partying’, mostly on the weekends. This drug use ‘slowly progressed’ to occurring on weekdays, in late 2019. Mr Unu agreed to going ‘very regularly’ to nightclubs, including almost every weekend. He would finish work at midday and ‘go straight to the bottle shop’ and start drinking. He would stay out until the nightclubs closed and said he otherwise could not recall when he left those venues because he was ‘too drunk’, but agreed it would usually have been until the early hours of the morning.
The Minister’s representative referred Mr Unu to the ACT Policing report from 17 March 2019, just over two months since he commenced living in Australia and in the share house.[34] Mr Unu agreed to attending a particular bar in the ACT regularly during that time. It was put to Mr Unu that, pursuant to the police report, he had hit a person ‘in the head with a closed fist’.[35] He declined to answer the question on the basis of potential self-incrimination.
[34] Exhibit 8, pages 12-15.
[35] Ibid., page 14.
Mr Unu was then referred to an AFP Statement of Facts from 27 April 2019.[36] He did not recall the alleged incident itself, which was reported to have involved Mr Unu and another person ‘throwing punches towards each other’, Mr Unu telling police the other person had come from Sydney and was trying to ‘be a big man in Canberra, but that isn’t how it works here’ and telling police to let him go so he could go around the corner and ‘sort it out with the male, the way they do it at home’.[37] Mr Unu did however recall waking at a police watch house after this incident. He disagreed that he would have made the comment about the person coming from Sydney trying to be a ‘big man in Canberra’ and had no recollection of saying those words. Mr Unu denied having an issue with a person coming from Sydney to Canberra and did not recall telling police to let him go so he could ‘sort it out’ the way they do ‘at home’.
[36] Ibid., pages 18-20.
[37] Ibid., page 19.
The Minister’s representative referred Mr Unu to another AFP Statement of Facts from 15 September 2019.[38] He did not recall the alleged incident, however agreed it sounded like something he would have done at the time and that he could have said the alleged words. Mr Unu denied generally having a problem with police, only to having problems with them when intoxicated. He told the Tribunal that, if he had said words about sorting out an issue the way they do at home, it would have meant sorting out any differences through a physical altercation. However, Mr Unu again said he did not recall saying these words, although agreed that he could have done so. To this end, Mr Unu agreed with the proposition that at that time, when he was aged around 19, the only way he knew how to sort out issues was by physical violence. He could not recall being conveyed to the police watch house, but accepted it occurred because he woke up ‘a lot’ at the watch house during 2019.
[38] Ibid., pages 23-25.
Mr Unu was taken to the AFP Statement of Facts from 15 December 2019.[39] This relevantly stated that police ‘observed a large group of islander [sic] males become involved in a physical altercation with one another’ and Mr Unu ‘was lying face down on the pavement with a small wound to his forehead’, but that police ‘had cause to deal with [Mr Unu] just minutes prior to the incident as he was walking around Tocumwal Lane with his shirt off being aggressive toward other males’.[40] He told the Tribunal he remembered the next day ‘very well’, because he woke up at the watch house in a ‘pool of blood’ and with a ‘broken jaw’.
[39] Ibid., pages 30-32.
[40] Ibid., page 31.
Mr Unu confirmed that he left Australia on 24 December 2019 and returned on 6 February 2020.[41] He continued living at the share house before his boss a month or two later ‘kicked everyone’ out of the premises due to their drinking, and sacked them. Mr Unu then ‘spiralled down’ and was not working, but using drugs ‘a lot’, and both his drug and alcohol use increased. He started work again in mid-2021 after asking his former employer for a ‘second chance’. This period of unemployment had lasted almost 18 months and he agreed to having used and abused alcohol and drugs on a fairly regular basis during this period. Mr Unu said he continued socialising with some of the same people, but not with others. Whilst unemployed, Mr Unu resided at a caravan park connected with his employer and lived there with three other people who had been employed by the same business, two of whom had also been sacked. He agreed that he continued to use alcohol and drugs during this time.
[41] Exhibit 1, page 167.
Mr Unu was referred to an incident on 16 February 2020, shortly after he returned to Australia, where police and ambulance attended the share house at 6.25am following someone consuming ‘a large amount of GHB’ and attempting to take their own life.[42] Mr Unu had a faint recollection of this incident, but said he did not know the person. The incident report also noted that police ‘identified three persons of interest at the premises’, including Mr Unu, and that the premises was a ‘possible half-way house for OMCG members’, with ‘[m]ultiple OMCG members linked to [the] address’.[43]
[42] Exhibit 8, pages 33-35.
[43] Ibid., page 35.
In this regard, Mr Unu told the Tribunal he now knows what the OMCG is, but did not at the time of this incident. He said it is a ‘motorcycle club’, and at the time he thought he knew a group of boys that ‘[rode] bikes’. Mr Unu said he did not know them by name, but saw them out ‘at the clubs’. Mr Unu said he had not known what the OMCG was before recently being detained, he did not have this knowledge whilst he was living at that share house, and that his boss would have been ‘very against it’, meaning any criminal activity. Mr Unu denied knowing that the people who rode bikes were involved in criminal behaviour, but considered that his boss would have known about these people.
The Minister’s representative asked Mr Unu what he previously knew about the OMCG. He told the Tribunal he only knew what he had seen from OMCG members in New Zealand, that they had jewellery and drove expensive cars. Mr Unu also said they had disagreements with some of his co-workers, which he did not interfere with because he knew they did not like people going against them. To this end, Mr Unu said he had seen them fighting at the clubs. He expressly denied any relationship at all with the OMCG.
Mr Unu was taken to an AFP summary of a traffic incident from May 2020 where a car he was in was stopped by police who reported that it was ‘occupied by persons suspected to be OMCG related’.[44] He could not recall this event, but did not deny it occurred. Mr Unu told the Tribunal he could not think why police suspected the occupants were ‘OMCG related’, but said perhaps it was a stereotype, and that because of his drunken history the police thought he was a ‘troublemaker’. To this end, Mr Unu said that he would not be surprised if the police assumed he was an OMCG member or associated with them, because he was a troublemaker.
[44] Ibid., pages 39-41.
Mr Unu confirmed that in October 2020 he was still living at the caravan park. An AFP summary from that date relevantly reported that Mr Unu had been refused entry to a pub and ‘was becoming angry with patrons and employees’ and subsequently ‘became verbally aggressive, calling Police “dog cunts” and stating that he was going to bash them and their families”’.[45] He could not recall going to the venue on 11 October 2020, but did not believe he would have said the reported words because he values family.[46] Mr Unu was reportedly conveyed to the police watch house and deemed too aggressive for the sobering up shelter.[47] He told the Tribunal he recalled waking up at the watch house, but not the preceding events due to being ‘too drunk’.
[45] Ibid., page 46.
[46] Ibid., pages 45-46.
[47] Ibid., page 46.
Mr Unu recalled having surgery on his arm, which occurred in November 2020, but could not recall the reason for the operation.[48] The ACT Policing summary relevantly stated that Mr Unu was ‘bleeding heavily from his left lower arm’ and police were advised that he ‘had punched the glass window of a building’.[49] Mr Unu told the Tribunal he did not recall this incident. He attributed this reported action to a previous ‘toxic relationship’, and that it was possibly following an argument with his then partner. In this regard, Mr Unu agreed that the only way he had known how to deal with conflict was through physical violence.
[48] Ibid., pages 50-53.
[49] Ibid., page 51.
Mr Unu was then referred to an incident that occurred in March 2021, which led to his first criminal conviction.[50] While Mr Unu did not recall the incident, he recalled pleading guilty to common assault and accepted that he committed that offence. The AFP Statement of Facts relevantly noted that Mr Unu had begun to unzip his pants and prepared to urinate on the complainant’s car, then walked from the driver’s side of the car around to the passenger side door and began punching the complainant with both hands ‘approximately five or six times in the head’.[51] Mr Unu told the Tribunal he was too drunk to recall the incident and would have started drinking that day directly after work, from approximately 4.30pm. Mr Unu agreed that the offence was cowardly, unprovoked and completely disproportionate; he said it was something he will regret for a long time.
[50] Ibid., pages 54-57.
[51] Ibid., page 59.

The Minister’s representative took Mr Unu to the offence committed on 25 June 2021, which led to his second and final conviction. He agreed the incident occurred, but said he could not recall it. A video of the incident, captured by CCTV, was played to the Tribunal on behalf of the Minister.[52] The video showed Mr Unu punching the victim once in the head and the victim falling backwards onto the pavement, with police arriving shortly afterwards. The AFP Statement of Facts relevantly noted that Mr Unu used his left hand to strike the victim in the face with a closed fist, which caused the victim to fall backwards and hit the back of his head on brick pavers on the ground, resulting in a laceration to the rear of his scalp.[53] Mr Unu and a witness, his colleague, then turned around and walked in the direction of the pub they had been attending.[54]
[52] Exhibit 9.
[53] Exhibit 8, page 76.
[54] Ibid.
Mr Unu told the Tribunal that at the time, he had believed he was defending his colleague. He said that, at the time, he thought the victim was the aggressor in the fight that led up to him striking the victim, but he no longer held that view. Mr Unu told the Tribunal that he went out to ‘address the problem’ and ‘resolve it’, but that he went about resolving the situation ‘the wrong way’. He was drunk and did not think through his actions. Mr Unu said he ‘blacked out’ and punched the victim. He was very drunk and could not recall if he made any threats to another person following the incident. Mr Unu agreed that he walked away from the incident, did not look back and said he did not consider that he may have killed the victim. He went back to the pub and continued drinking.
Mr Unu told the Tribunal he could not really recall being asked to leave the premises after the incident. A video from a police body worn camera of footage inside the pub was played to the Tribunal by the Minister’s representative.[55] Mr Unu agreed that he was one of the people captured by the video, but said he could not recall the incident and was ‘not proud of it’; the behaviour inside and upon leaving the premises was ‘unacceptable’. Mr Unu told the Tribunal he was with ‘former colleagues’, but then clarified that two of them are still working with his current employer.
[55] Exhibit 10.
Mr Unu was asked whether he feels animosity towards the police. He said his behaviour on the night had emanated from being under the influence of alcohol, which is the only time he has problems with the police. However, Mr Unu did not want to ‘put the full blame’ on alcohol and said he took responsibility for his drinking. He was asked whether he accepted he had anger issues. Mr Unu told the Tribunal that, during those times he never thought that he had a problem, but during the recent court case he realised he needed to make changes. Mr Unu accepted that his behaviour following being asked to leave the premises by police was unwarranted, and that they were just trying to prevent further problems, but his immaturity and ‘stupidity’ led him to acting in that manner.
Mr Unu told the Tribunal that he had recommenced working with his employer around February 2021, and that when his employer was notified about this incident and the associated court case, he was ‘not really happy about it’. Mr Unu’s employer had ‘warned him’ that he had a ‘second chance’, which was his way of saying it was Mr Unu’s ‘last strike’, and that he would be fired if there were any other incidents. Mr Unu told the Tribunal he had not been taking responsibility for his actions, which was what his boss had wanted him to do.
Mr Unu agreed that he recommenced drinking from February 2021, despite telling his boss that he would change. He told the Tribunal that, at that time, he would go out, although not as much as before, he was ‘not really’ using drugs and had reduced his alcohol intake from what it had been in 2020. The Minister’s representative asked Mr Unu whether he had thought he should stop drinking after the incident in late June 2021. Mr Unu said this was in the early stages of his relationship with his now fiancée and he was in denial about his problems at that time. He said he knew what he did was wrong, but had sought to justify it based on his upbringing, when he should have instead accepted his alcohol abuse required fixing.
Mr Unu was referred to a reported incident one week later, on 3 July 2021, where he and another person were said to have ‘appeared heavily intoxicated’ and ‘appeared to be fighting in the street’.[56] He recalled this incident and said he had had an argument with a colleague. Mr Unu told the Tribunal that the way he was acting at the time was ‘not right’.
[56] Exhibit 8, page 89.
It was put to Mr Unu that, despite his excessive drinking being the reason he had assaulted someone causing injury just one week earlier, he went out and drank to excess with friends the next weekend. Mr Unu told the Tribunal that at that time he was still in denial about his alcohol issues, so was continuing to drink.
Mr Unu was taken to a reported incident where police observed him ‘urinating on a bin behind Gus’s Café’ on 31 October 2021.[57] He recalled this incident and agreed that he was intoxicated, but said he was ‘instantly apologetic’ and meant no harm. However, Mr Unu said he could not recall an incident that reportedly occurred approximately one hour later where he was allegedly ‘assaulting’ another person.[58] He told the Tribunal that he was just trying to avoid problems with the police, was still drinking, but did not want to get ‘more in trouble’. Mr Unu agreed that at that time he had not stopped drinking and continued to drink with colleagues and by himself.
[57] Ibid., page 94.
[58] Ibid., page 96.
Mr Unu recalled being convicted of common assault and sentenced on 8 December 2021 for the incident in March 2021 against a person in a motor vehicle. He was asked whether he had appreciated that he had a serious drinking problem at that time. Mr Unu replied, ‘[n]ot really’; he knew it was a problem, but was still trying to justify it and said he was ‘still in denial’ after this first court appearance. Mr Unu told the Tribunal he did not want to take the blame or be accountable for his actions at that time.
Mr Unu was then referred to the days after being convicted and sentenced, including 13 December 2021, which was his 22^nd birthday. He said that he had been drinking at home in his current apartment with work colleagues. Mr Unu was referred to the photographs obtained by the AFP from CCTV in the lift of his apartment block from 12 and 13 December 2021.[59] The first photo was captured at 9.14pm on 12 December 2021.[60] Mr Unu recalled being in the lift with the people shown in the photographs and said he had just met them that night at a party, having been invited to an apartment a few floors up from his apartment. He said he went up to the other apartment, then went back down to get alcohol, and then went back up again. Mr Unu told the Tribunal that two people in the lift were work colleagues. Mr Unu said he met the person identified by the AFP as an OMCG member that night. They shared the same barber and met at the party in the other apartment. Mr Unu told the Tribunal he now knows that that person, referred to as ‘Zack’, was a member of the OMCG, but that he was only aware of this ‘later on’ when they became ‘friends’ and met up for ‘drinks or lunch’.
[59] Exhibit 1, pages 103-104.
[60] Ibid., page 103.
Mr Unu was referred to the second photograph, from 1.34am on 13 December 2021, which captured himself and another person in the lift.[61] He told the Tribunal he believed this person was ‘Zack’, the OMCG member. Mr Unu said he was already intoxicated at that time and could not recall where he was going.
[61] Ibid.
Mr Unu was taken to a third photograph, captured at 1.42am on 13 December 2021, with three people in the lift including Mr Unu.[62] He believed that one of the people was Zack. Mr Unu said he had ‘no memory’ of interactions with the third person in the lift and denied knowing them. Mr Unu said he was drinking excessively that night and his memory of events was not very good. He believed he had seen the third person since this time, but not on any ‘social occasion’. Mr Unu believed he saw him around Canberra and maintained that he did not know his name.
[62] Ibid., page 104.
Mr Unu was referred to the fourth and final photograph from 2.12am on 13 December 2021.[63] He said his memory of that night is ‘not really good’ and he has ‘no recollection’ of what he was doing at that time. Mr Unu confirmed that one of the people in that photograph was a work colleague. Another person, Mr Unu believed, was Zack. He denied knowing the fourth person in the photo.
[63] Ibid.
Mr Unu was asked how he became friends with Zack. He said it started through a mutual friend, their barber. They exchanged telephone numbers and would meet up at the barbershop or for lunch and drinks. He thought they met up two or three times after the party in December 2021. Mr Unu said he did not consider him a friend at that time, but only ‘later down the line’. He said he could not really pinpoint the number of times they met, but said it was ‘a few times’. Mr Unu explained that after getting to know Zack, his personal judgment was that he was a ‘good bloke’. He agreed he saw Zack more than two or three times if meetings at the barbershop were counted. Zack was said to be easy to talk to and very friendly. Mr Unu said that, in around ‘late February’ 2022, he considered that they were friends, and would be in contact about meeting for lunch or dinner. This occurred fortnightly or weekly, ‘give or take’, ‘whenever he would text me’. He denied that this frequency was ‘regular’. They would talk, tell jokes and discuss their interests. Mr Unu said Zack was ‘wanting to know about me’, asking about his history and background. Mostly they would meet with a mutual friend, the barber.
Mr Unu was asked why Zack was wanting to get to know him. He said he suspected that is what would occur before a friendship was formed. Mr Unu was then asked how he found out Zack was a member of the OMCG. He told the Tribunal that this occurred in the week of the OMCG national run in January 2022. Mr Unu said that he had plans to travel to Melbourne with his barber friend, and Zack had told him he was also in Melbourne and invited them to come along to the national run. Mr Unu’s evidence was that he found out Zack was an OMCG member when he saw him at the national run wearing the apparel. Mr Unu was never told beforehand nor had he suspected that Zack was an OMCG member.
Mr Unu said following the court case he had discussed with his barber friend the associated ‘stress’ he had experienced and the barber offered to pay for accommodation in Melbourne, which offer he accepted. Mr Unu planned to go just for the weekend, but wanted to stay longer. He planned to do some sightseeing and take in the nightlife. Mr Unu denied planning to go to the national run before he went to Melbourne. When his mutual friend, the barber, received a phone call from Zack, Mr Unu was invited to attend the national run and they both went to this event. Mr Unu told the Tribunal Zack knew they were in Melbourne because of a social media post from the barber of a picture of the Melbourne skyline when they arrived on the Friday night, having driven from the ACT.
While Mr Unu initially said it was not a coincidence that he was in Melbourne on the same day as the OMCG national run, he later clarified that he meant it was a coincidence. Mr Unu and his barber friend drove to the location of the national run, but he could not recall how long this journey took or where the run was located. He saw a lot of people and police, and a lot of OMCG members, and ‘that’s when Zack came’. Mr Unu met Zack at the national run and told the Tribunal he did not know anyone else at that event. He said he did not meet anyone else that day or interact with anyone. Mr Unu told the Tribunal he made ‘small talk’ and shook hands with people. Mr Unu then agreed that he had met other people, but they did not introduce themselves and said he only hung around with Zack. Mr Unu was present while ‘they were riding around’ and then left, and estimated he was there for approximately one or two hours.
Mr Unu was referred to the photographs obtained by the AFP from the national run.[64] He identified himself in the first photo, but said he did not recognise the other person he was pictured walking with and that they had just met that day; the person’s face was pixelated in the photo and Mr Unu could not identify them.[65]
[64] Ibid., pages 105-106.
[65] Ibid., page 105.
The next photo Mr Unu was referred to showed him standing with two police officers with another person standing behind him, whom he did not remember.[66] Mr Unu recalled speaking to police on the day as well as what they spoke about. He said one officer came up to him and called him by his first name, which took him by surprise. Mr Unu was asked by police whether he was an OMCG member and he replied no, that he was there to ‘support the boys’. He told the Tribunal this was a reference to Zack, and he had said ‘boys’ to the police because them calling him by his first name caught him off guard and made him ‘nervous’; it was a ‘spur of the moment thing’ and he was not referring to anyone else other than Zack. Mr Unu told the Tribunal he attended to see his friend ‘riding’, and did not know at that time Zack was an OMCG member so he had told the police he was there to support him. Mr Unu further said that Zack had invited him to attend so he did to support him. Zack arranged for Mr Unu to be driven in a van which followed the OMCG members while they rode around for one to two hours. Mr Unu saw Zack wearing the OMCG clothing so then made the assumption that he was a member. He had recognised and seen OMCG clothing before on social media and on the news.
[66] Ibid.
After the ride in the van, Mr Unu left for the hotel, got changed and started drinking with his barber friend. Zack met up with them later and they went out, but he could not recall whereabouts. There were no other OMCG out with them, because they were said to be drinking at their own place and Zack had said that Mr Unu was not invited to that event. The following day, Sunday, Mr Unu was ‘pretty hungover’. Mr Unu and his barber friend went to the city, drove around and did some sightseeing. They then drove home to the ACT.
Mr Unu could not recall when he went back to work after this time, but said he was working ‘very often’ in February 2022. He told the Tribunal he was working on a site in Dickson in the ACT around this time, but also on ‘multiple sites’. He denied ever working at a site opposite the casino in Canberra. Mr Unu said by this point his drinking had slowly started to decrease and it occurred only with his colleagues; he was no longer drinking every weekend.
Mr Unu was referred to an AFP ‘Information Report’ containing information said to have been received from a confidential source on 28 March 2022.[67] This information relevantly stated that:[68]
(a)‘Meksy is a nom for the Como’s’;
(b)‘He started hanging around with them about 4-6 months before’;
(c)‘He is working on construction sites with the other Islander boys’;
(d)‘Meksy’ is ‘about to start working on a project opposite the Casino’ and they ‘will be earning about $1,500 a week doing general labouring’.
[67] Exhibit 8, page 10.
[68] Ibid.
Under the heading, ‘Reporting Officer Comments’, the report stated that ‘Meksy is Amieki UNU’. The source was given an ‘Admiralty Rating’ of ‘B – 2’, which equated to the source being classed as ‘Usually reliable’ and the credibility of the information being classed as ‘Probably true’.[69]
[69] Ibid.
Mr Unu said he had never been called ‘Meksy’, and denied that the report was about him because some of the things reported were untrue. This included the type of work he was performing; he was doing ‘formwork’, not ‘general labouring’ as reported, and was earning less than $1,500 per week. He again denied working on a project opposite the casino. Mr Unu also disagreed with the use of the term ‘hanging around with them’, saying he had only been hanging around with Zack, and only for a period of four months. Mr Unu denied that he was a ‘nom’, or nominee, of the OMCG. He denied that the reference to ‘Meksy’ was about him, as he had never been called by that name. He told the Tribunal it was possible that some people may have thought he was a nominee because he was seen hanging around Zack at ‘nightclubs or bars’.
Mr Unu told the Tribunal that after the OMCG national run in January 2022 he began ‘hanging out’ with Zack, and that whenever Mr Unu had ‘social meetings’ with his workmates he would invite Zack along. He could not estimate how often this occurred, but acknowledged that it was often enough that people may have considered him a nominee. Mr Unu told the Tribunal he did not know how a person becomes a nominee until Zack told him, which occurred ‘as we started becoming good friends’. Zack told Mr Unu that in order to become a nominee a person would have to ‘earn it’, but Mr Unu did not know what that meant until he asked Zack. He was told it meant participating in crime, such as beating up someone who the OMCG wanted beaten up and collecting debts. Mr Unu told the Tribunal that they were speaking about this process because Zack had expressed his desire to leave the OMCG; police were ‘always on his case’ and it was affecting his life. This discussion was said to have occurred in mid-2022, and by this point Zack’s house had been ‘raided’ on multiple occasions.
Mr Unu was referred to a second AFP ‘Information Report’ containing information said to have been received from a confidential source on 1 May 2022.[70] This information relevantly stated that ‘Meksi has joined the club’ and that ‘Meksi is Amieki Unu’.[71] The ‘Admiralty Rating’ was again marked as ‘B – 2’, equating to the source being ‘Usually reliable’ and the credibility of the information being ‘Probably true’.[72]
[70] Ibid., page 8.
[71] Ibid., pages 8-9.
[72] Ibid., page 9.
Mr Unu denied that the reference to this person was about him because he was not called ‘Meksi’. He also said it was incorrect that he had joined the OMCG. Mr Unu told the Tribunal he was never a nominee and never joined the OMCG; he was only friends with Zack. Mr Unu was unsure why someone would say he had joined the OMCG, but guessed it was because of his friendship with Zack and them hanging out together. He did not know who would have reported that he was a member of the OMCG, but thought people may have made that assumption.
Mr Unu was referred to a third and final AFP ‘Information Report’ containing information said to have been received from a confidential source on 13 July 2022.[73] This information relevantly stated that ‘Megsy’ and others, whose names were redacted, ‘are the only people left in the Como’s’ and that ‘Megsy might leave’.[74] An ‘Admiralty Rating’ of ‘B – 3’ was given, which equated to the source being classed as ‘Usually reliable’ and the credibility of the information being classed as ‘Possibly true’.[75]
[73] Ibid., page 6.
[74] Ibid.
[75] Ibid., pages 6-7.
Mr Unu told the Tribunal he believed that Zack had left the OMCG earlier than 13 July 2022, and that it was probably around March or May 2022. Shortly after the national run, Zack had voiced his displeasure about the police being ‘on his case’ due to his OMCG membership, and Mr Unu had encouraged him to leave. Mr Unu told the Tribunal he did not know why someone would say he ‘might leave’ the OMCG, as he had not joined in the first place.
After Zack left the OMCG, they hung out ‘more’, but Mr Unu could not identify how frequently. They met up for dinner and talked. However, Mr Unu cut Zack off once he received notice of the possible visa cancellation in March 2023. He wanted to be more focused on his partner, but Mr Unu and Zack also had a ‘mutual disagreement’, and Mr Unu said he felt that if he had not been friends with Zack in the first place he would not have been in this situation with his Visa; that is, he blamed Zack and their friendship for the police thinking he was linked to the OMCG. He could not recall exactly when this falling out occurred.

In July 2022, Mr Unu was regularly working, but not regularly drinking. He acknowledged that he still sometimes drank to excess, but this was not ‘all the time’, as it had been previously. Mr Unu was referred to an ACT Policing summary from 18 December 2022.[76] The situation was reported to be that police attended a nightclub at 3.35am ‘in response to a fight which had been observed [by] the ACT government Sierra-10 camera operators’, police identified Mr Unu ‘as the aggresor [sic]’, he was ‘immediately calm upon Police interaction’ and was issued with an ‘exclusion direction which he complied with’.[77] Mr Unu told the Tribunal he recalled this incident and said he had had a disagreement with a colleague, and the police came and told him to leave, which he did. Mr Unu said he and his colleague were pushing each other, but no one threw punches. Mr Unu had had a lot to drink, but was more conscious of his actions than he had been in the past. He told the Tribunal he was sick of getting in trouble and had limited his drinking, but went out that night because he was attending his work Christmas party.
[76] Ibid., pages 97-98.
[77] Ibid., page 98.
Mr Unu agreed that he had engaged with ‘Directions ACT’ and the ‘Smart Recovery’ program. He had an initial assessment in 2022, one counselling session and two sessions in the Smart Recovery program. The latter was about addressing problems with alcohol and drugs, and was more of a support system for people to tell their stories without being judged. This was different to the counselling session, although Mr Unu could not recall exactly what that was about. He told the Tribunal he learnt that he had a problem; he ‘loved alcohol but it did not love him’, and was not good for him. The Smart Recovery sessions were about accountability, and helped him realise he had an alcohol problem. Mr Unu said he did not want to go out on the night that led to the incident on 18 December 2022, but was encouraged to do so by his work colleagues, and ultimately thought he would be alright because he was with them.
Mr Unu attended another Smart Recovery session in July 2023 and a couple more for which he could not get documentation in time for this proceeding. Mr Unu said he learnt that some people are not meant to drink alcohol, and as much as he tries to prevent himself from being in bad situations, they can occur. Mr Unu told the Tribunal that every time he thought about drinking alcohol he considered what type of person he would be in an alcohol-induced state. He said that he was an alcoholic and acknowledged he was ‘not perfect’. In this regard, Mr Unu acknowledged that he still sometimes wants to drink, but he has support systems in place with his partner and brother. Mr Unu confirmed that he became serious with his partner, now fiancée, towards the end of 2021, and that throughout all of his ‘bad choices’, she has seen the ‘good side’ of him.
The Minister’s representative put to Mr Unu that, despite being in a serious relationship since late 2021, he says that he only now has support systems in place to stop excessive drinking. Mr Unu said that previously he would drink and his fiancée would ‘get mad’, and it was not until the end of 2022, when she threatened to end their relationship, that he realised he needed to change.
Mr Unu was asked whether he accepted that his workmates were a constant feature of his drinking over more than four years. He disagreed and said that, while his workmates have ‘been there’, his behaviour was ‘not on them, but me’. To this end, Mr Unu said former colleagues, but not current workmates, had previously pressured him to drink. There are only two employees still working with the business from the time Mr Unu lived at the share house, one of which is Mr Unu himself, and ‘a lot’ of his workmates have ‘settled down’ and have children, so the mindset is ‘different’. Mr Unu told the Tribunal he would not ‘go out drinking’ unless he was with his partner, because she is the ‘biggest deterrent’ to his getting drunk and becoming violent, and Mr Unu wants a life with her in Australia.
Mr Unu was referred to his contention that he would suffer ‘moderate impediments’ if removed from Australia. He told the Tribunal that he financially supports his mother through income he earns in Australia. His family still live in the same government housing he grew up in, and although he would ‘always’ have a home with his mother, there was no room for him to stay. He did however agree that there would be temporary accommodation for him. Mr Unu referred to research he had undertaken regarding how difficult it is for people removed from Australia and returned to New Zealand to secure employment, and that ‘80%’ reoffend. He acknowledged that this research was not presented as evidence in this proceeding. Mr Unu also agreed that, when living in New Zealand, he did not apply for jobs related to his qualification. He therefore agreed that he was unsure of his employment prospects, but said having a record of being deported would ‘not help’. In this regard, Mr Unu said that his criminal history has not prevented him being employed in Australia because he is fortunate enough to have a boss who believes in him and supports the changes he has made. He doubted whether ‘any other job’ would employ him. Mr Unu confirmed that, if removed, he would search for work in New Zealand to provide an income for his family and would have to apply for unemployment benefits if he could not find work.
During re-examination, Mr Unu was asked about his ties to family in New Zealand. He could not recall when he last spoke to his father, but said it was at least one year ago on a telephone call that Mr Unu had with his siblings. Mr Unu told the Tribunal that, growing up, his parents had an ‘on and off’ relationship and his father would ‘come and go’, and in later years had resided with his own mother. Before Mr Unu came to live in Australia in 2019, he would ‘not often’ see his mother because they had a ‘rocky’ relationship at the time. He last spoke to his two siblings now living with his mother during the Tribunal hearing and also, albeit briefly, spoke to his mother during this call. Mr Unu told the Tribunal he would have to sleep on the couch at his mother’s home if he returned to New Zealand.
Mr Unu told the Tribunal he had just turned 15 when he went to boarding school in New Zealand. He considered that he experienced addiction to alcohol during those school years and did not decline offers to drink. At the time, Mr Unu was able to go without alcohol and considered he became properly addicted once he was 18 and could more easily ‘get access to alcohol’. He was young and ‘keen to party’. Mr Unu denied still having that desire, and said it ceased when he realised he wanted a future with his partner, to settle down and have a family.
Mr Unu told the Tribunal that he returned to complete his schooling to make his mother happy; schooling was something he did not enjoy, but it was disappointing for his mother to see him ‘throwing his life away’ by not completing school and he just wanted to make her happy. Mr Unu’s representative referred him to the video of the assault in June 2021, his associated conduct towards police and his earlier evidence that this was not how he was raised by his mother. Mr Unu said that his mother has a very good heart and raised him to be a respectful person. Mr Unu said his actions went against everything she raised him to be. Whilst growing up, Mr Unu’s mother was his primary carer and was ‘always there’.
Mr Unu was asked about the examples of him being drunk and disorderly over a period of two years. He told the Tribunal that growing up he witnessed his parents arguing and they had a ‘toxic relationship’. Mr Unu said he always felt that if he and his siblings were not alive it would have been better for his mother and she would not be as ‘mentally’ affected. He blames himself for the way his mother was treated, he hated how they grew up with nothing and wanted a normal childhood. Mr Unu agreed that he had spoken about these childhood issues with a counsellor, through the ‘Everyman’ service, whom he found supportive. This discussion did not occur until the third session, in around mid-2023, once Mr Unu trusted the counsellor and did not feel judged by him.
Mr Unu told the Tribunal that it was the environment he grew up in, rather than his parents and their relationship, that taught him to deal with conflict using violence. He grew up in council flats alongside ‘criminals’, and he observed that physical violence was used to resolve issues. Mr Unu told the Tribunal he has since changed by learning more about resolving problems through means other than violence; he said that it is always better to resolve issues by talking to the other person and working out the best option for both of them. Mr Unu provided an example of one such instance in which he had used words rather than physicality. He told the Tribunal that he had a falling out with a friend who started shoving him to instigate a fight. Mr Unu had realised fighting would be no good for either of them and walked away rather than resorting to violence.
Mr Unu was referred to the reported incident in March 2019 and said police had not contacted him further in relation to the matter.[78] He was also taken to the reported incident on 15 September 2019 and asked whether he had trouble with people other than police when intoxicated. Mr Unu told the Tribunal he would not know, because when he was drunk he did not think about the people that he hurt.[79] Mr Unu denied getting drunk around his partner. He also confirmed that police had not contacted him about the matter the subject of a report on 15 December 2019.[80]
[78] Ibid., pages 12-15.
[79] Ibid., pages 23-25.
[80] Ibid., pages 30-32.
Mr Unu told the Tribunal that he first heard the actual term, ‘OMCG’, after he was given notice of the possible visa cancellation and said he did ‘not know much really’. He saw OMCG members at nightclubs but also on the streets in the city. Mr Unu said he was ‘very intimidated’ by them because they were in big groups, with tattoos, and he made assumptions about them based on how they looked; they were said to be ‘Islanders as well’.
Mr Unu was referred to the written and video evidence of him in mid-2021 using derogatory language towards police. He said ‘a big factor’ in his use of that language was being intoxicated. Mr Unu described his attitude as being ‘very negative’ because of an incident that had occurred at a police watch house, where he had woken in a pool of blood, and despite notifying the officers they did not attend to him until one hour later. He considered this treatment to be unfair and different to the treatment of others in the community. He said that during ‘run-ins’ with the police he felt singled out, and despite acknowledging these run-ins were his fault, maintained he received unfair treatment.
Mr Unu confirmed that he was not undertaking any rehabilitation programs in October 2020 when he used derogatory language towards police, and could not recall whether he was involved in rehabilitation in March 2021 when he committed his first offence. He told the Tribunal that the rehabilitation programs sought to address his alcohol and anger management issues. Some of these sessions were voluntary and some were not. Mr Unu could not recall whether, as at the date of the second offence incident on 25 June 2021, he had been spoken to about the March 2021 incident, but thought he probably had not, and he had not yet been to court. Mr Unu said that he had undertaken rehabilitation courses in 2022 and 2023, with approximately six to seven sessions of Smart Recovery in 2023. The ‘Everyman’ meetings have continued while Mr Unu has been in detention and his last meeting was about two to three weeks before the Tribunal hearing.
Mr Unu told the Tribunal he stopped being in denial about his alcohol problem during the second court case, which ended in January 2023, when he read through statements about the damage he had caused to the victim. He realised what he had been doing was wrong, and that his behaviour needed to be addressed before it escalated any further.
Mr Unu was referred to the incident with a work colleague in July 2021.[81] While Mr Unu considered this colleague to be a friend at the time, he said that this friendship is no longer of the same nature, because he came to recognise that it was not a beneficial relationship and that he needed to distance himself from that person.
[81] Ibid., page 89.
Mr Unu told the Tribunal that police did not speak to him after an incident reported to have occurred on 31 October 2021.[82] He was also not contacted by police after the reported incident on 18 December 2022.[83]
[82] Ibid., page 96.
[83] Ibid., pages 97-98.
Mr Unu was referred to the photographs from CCTV inside the lift at his residential apartment block in December 2021.[84] He confirmed that he resided on level five and his barber friend resided on level nine in the same building. The next memory Mr Unu had after that evening was waking up with his partner.
[84] Exhibit 1, pages 103-104.
Mr Unu was referred to the concept of a ‘nom’ and the suggestion that he was a ‘nom’ for the OMCG. He told the Tribunal that Zack informed him that being a ‘nom’ means joining the OMCG. Mr Unu was taken to his evidence that, in June 2022, Zack had disclosed his wish to leave the OMCG and that he had encouraged Zack to do so. Mr Unu told the Tribunal he said to Zack that there was ‘no winning in that lifestyle’ and he was better off in ‘better company’. Mr Unu again denied being a member of the OMCG.
Mr Unu told the Tribunal that he did not apply for jobs in the field for which he was qualified in New Zealand because it was not what he wanted to do, he had obtained the qualifications mainly for his mother.
After re-examination, the Tribunal asked Mr Unu a series of questions regarding his purported involvement with the OMCG. He denied ever commencing the nominee process for the OMCG, or being a nominee or a member of the OMCG, but acknowledged that ‘for a second’ he considered becoming a member when Zack had said to him, ‘jokingly’, that he should join the OMCG and ‘would look good’ in their ‘colours’. Mr Unu told the Tribunal he declined this invitation because he did not consider they would be good for him. He said that he had ‘full knowledge’ of the OMCG and ‘what it was like to be an OMCG’ when Zack had told him he wanted to leave that organisation. Mr Unu agreed that he had continued to ‘hang out’ with Zack for approximately nine months after he said he became aware of the nature of the OMCG in mid-2022. This friendship continued, Mr Unu said, because he was supporting Zack as a friend, including his efforts to ‘leave the club’, which Mr Unu supported, and not because of any affiliation Mr Unu had with the OMCG. He told the Tribunal he had no involvement at any time in the OMCG and that he had always told police he had ‘no affiliation’ or had never been part of the OMCG.
There were no other witnesses at the Tribunal hearing. However, Mr Unu relied on the witness statements made by his fiancée, Ms Azdajic, his de-facto sister-in-law, Ms Gabriela Azdajic, and his cousin, Mr Christian Unu.[85] He also relied on the evidence of Ms Erin Harris, a Community Corrections Officer in the ACT.[86] These people were made available for cross-examination, but were not required either by the Minister or the Tribunal. For the avoidance of doubt, the Tribunal has considered the written material produced by these people in its decision.
CONTENTIONS
[85] Exhibits 3, 4 and 5.
[86] Exhibit 6.
Mr Unu
While Mr Unu accepted that the OMCG is an Australian criminal organisation, he denied being a past or present member or past or present nominee of the OMCG. He also denied the relevant association with OMCG affiliates, members or organisations.
Mr Unu contended that, even if some association is able to be found on the evidence, it was not reasonable to infer from that evidence that he has the requisite sympathies for, support of, or involvement in the criminal conduct of the OMCG, noting the insufficiency of mere knowledge of the criminality of persons with whom one has associated or associates, or an organisation with whom one has associated or associates. Accordingly, Mr Unu submitted, the requisite state of satisfaction about association cannot be achieved, so there is no failure of the character test under the Act and therefore the power to cancel the Visa is not enlivened.
In the alternative, Mr Unu contended that, if the Tribunal was satisfied that he failed the character test, his Visa should not be cancelled under subsection 501(2) of the Act having regard to the relevant considerations in Direction 99. Mr Unu submitted that Primary Consideration 1 weighed moderately against cancellation of his Visa, Primary Consideration 3 weighed heavily against cancellation and Primary Consideration 5 also weighed against cancellation. He did not contend that Primary Consideration 2 or Primary Consideration 4 were applicable in this proceeding. Mr Unu further contended that the only relevant other consideration, the extent of impediments if removed, weighed against cancellation of the Visa.
Accordingly, Mr Unu submitted that the Tribunal should set aside the decision under review and make a decision in substitution that either he passes the character test or, if he does not, that the discretion in the Act should not be exercised to cancel the Visa pursuant to subsection 501(2) of the Act.
Minister
The Minister contended that Mr Unu has had an association with the OMCG because he was observed by police on two occasions in the company of members of the OMCG, within a seven-week period. It was submitted that the nature and duration of those encounters were not fleeting or merely coincidental. Mr Unu was observed on CCTV footage with members of the OMCG and was subsequently observed in another Australian state at an OMCG event to ‘support the boys’. The Minister further submitted that Mr Unu had conceded that the available inference is that ‘some association’ must have brought him to willingly attend the OMCG ‘National Run’ in another state, and that this does not support his position that the association was of ‘minimal degree and frequency’ or of ‘limited duration’.
The Minister contended that, overall, the evidence, in the context of Mr Unu’s own criminal conduct, strongly supports a reasonable suspicion, for the purposes of subsection 501(6)(b) of the Act, that he has had an association with the OMCG. It follows, the Minister submitted, that the Tribunal should not be satisfied that Mr Unu passes the character test for the purposes of subsection 501(2) of the Act, as defined in subsection 501(6).
As a result of that contention, and in contemplation of whether to exercise the discretion to cancel the Visa, the Minister submitted that Primary Consideration 1 and Primary Consideration 5 both weighed heavily against Mr Unu, and that the weight attributable towards Mr Unu under Primary Consideration 3 should be significantly moderated by the relatively short duration of his presence in Australia, the harm he has caused to the community and his ability to maintain contact with his family from New Zealand. Additionally, the Minister submitted that the Tribunal should give very limited, if any weight, in favour of Mr Unu in relation to the extent of impediments if removed from Australia. Accordingly, the Minister contended that the Tribunal should affirm the decision under review.
CONSIDERATION
Does Mr Unu pass the character test under the Act?
As set out above in these reasons, subsection 501(2) of the Act provides that the Minister may cancel a person’s visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.

Under subsection 501(6)(b) of the Act, a person does not pass the character test if the Minister ‘reasonably suspects’:
(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…
Criminal conduct is not defined in the Act or Direction 99, however there was no dispute in this proceeding that the OMCG is a criminal organisation.[87] In Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [171] (Roach), the Federal Court of Australia agreed that:[88]
… a group might be described as suspected of being “involved in criminal conduct” in the ordinary sense of that phrase if the Minister suspects that members of the group commit crimes in their capacity as members of the group, using the facilities or resources of the group, or with the group’s express tacit approval.
[87] See Applicant’s Statement of Facts, Issues and Contentions dated 10 November 2023, paragraph 32.
[88] Cited with approval in Stevens v Minister for Immigration and Border Protection (2016) 153 ALD 346; [2016] FCA 1280, at [125].
The Court in Roach, at [169], held that the term ‘involved’, in relation to the phrase ‘involved in criminal conduct, should ‘be given its ordinary and natural meaning which connotes “actively participating in” or simply being “implicated”’ in criminal conduct. To this end, the Australian Criminal Intelligence Commission (ACIC) has identified that outlaw motorcycle gangs are ‘one of the most high-profile manifestations of organised crime, with an active presence in all Australian states and territories’, who see themselves operating ‘outside the law’.[89] In addition, the AFP relevantly stated, in a file note to the Department, that the OMCG is a ‘criminal organisation’ conducting ‘criminal activities’.[90] For completeness, based on the available evidence, the Tribunal reasonably suspects that the OMCG has been, or is, involved in criminal conduct, as required in order to meet the threshold under subsection 501(6)(b)(ii) of the Act.
[89] Exhibit 1, page 114.
[90] Ibid., pages 101-102.
Therefore, the central dispute in relation to the question of whether Mr Unu passes the character test was whether, pursuant to the threshold under subsection 501(6)(b)(i) of the Act, the Tribunal ‘reasonably suspects’ that Mr Unu ‘has had’ an association with the OMCG.
Section 2 of Annex A to Direction 99 provides guidance on the application of the character test under subsection 501(6) of the Act. The following paragraphs in section 2 of Annex A provide relevant guidance in relation to the character test under subsection 501(6)(b) of the Act:
(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.
The Minister relied on a file note from the Department which extracted a summary dated 16 February 2022 of information provided to it by the AFP about Mr Unu’s purported association with the OMCG. That file note relevantly stated as follows:[91]
[91] Ibid., pages 101-106.
The Canberra Comanchero OMCG has been increasingly coming to police attention through their criminal activities including serious and violent offences.
UNU has history for alcohol related incidents and has a propensity for violence. He has been involved in a number of incidents since coming to the ACT and shows disregard to authority, the law and for public safety in the ACT community.
On 17 March 2019, UNU was involved in assaulting a male in the City CBD. The victim did not make a statement to police resulting in no further action being taken.
On 27 April 2019, police were conducting a mobile patrol in the City CBD when they came
across a disturbance. UNU was identified as a person involved and was subsequently taken into police custody for being intoxicated, disorderly and unable to care for himself.
On 15 September 2019, police attended a nightclub in the City CBD after reports of a
disturbance. Police attempted to speak with UNU who was immediately dismissive and
abusive of police. UNU was taken into police custody for being intoxicated, disorderly and
unable to care for himself.
On 15 December 2019, police attended a nightclub in the City CBD after reports of a
disturbance. UNU was aggressive and police observed him to be restrained by other
members of the public. UNU was taken into police custody for being intoxicated, disorderly and unable to care for himself.
On 11 October 2020, police attended a nightclub in the City CBD after reports of a
disturbance. UNU was verbally aggressive to police and would not answer questions or
engage with police. UNU was taken into police custody for being intoxicated, disorderly and unable to care for himself.
On 19 March 2021, police attended the City CBD after reports a male has been assaulted.
The complainant observed a male of Pacific Islander appearance begin to urinate on the rear of his car.
The Complainant’s girlfriend yelled from the passenger seat at the POI who walked to the
driver’s door, begin [sic] urinating on it and kick the window and open the door. The POI
proceeded to punch the complainant in the face several times before being pulled away by another Islander male. One of the offenders was identified as UNU.
UNU pled guilty to the offence of common assault and received a one month and eleven day suspended sentence (08 December 2021 to 18 Jan 2022). UNU was also placed on an eighteen month Good Behaviour Order from 8 December 2021 to 7 December 2022.
On 25 June 2021, police attended a location after reports of a fight between two males, one who was unconscious. UNU is the alleged offender in the incident and has been charged with assault occasioning actual bodily harm. The matter is currently before the ACT Magistrates Court and is next in court on 15 March 2022 for mention.
On 3 July 2021, police attended the City CBD after reports of a disturbance. UNU was
verbally aggressive and fighting with another male in the street. Police separated both parties and gave them an exclusion direction to leave the City area. Nil further issues.
On 13 December 2021, UNU was captured on CCTV at Southport Apartments – 325 Anketell Street, GREENWAY with a number Comanchero OMCG members their associates [sic]. That night, police attended the location following reports of a disturbance. It was later identified a male has received a significant injury to his wrist. A further review of CCTV at the apartments identified UNU was in company with the male suspected of being involved in the disturbance and altercation at the time. This matter of [sic] currently under investigation by Taskforce Nemesis.
On 29 January 2022, the Comanchero OMCG held their National Run in Melbourne, Victoria. Comanchero members from Victoria, NSW and ACT attended the run with a number of supporters. During the run, ACT Policing Taskforce Nemesis observed UNU present alongside a number of Comanchero members. Taskforce Nemesis members spoke to UNU during the run who stated he came along to ‘support the boys’. While UNU was not wearing Comanchero OMCG apparel when spoke [sic] to by police, it is likely he attended the run as prospective nominee for the Canberra Comanchero OMCG.
The Comanchero OMCG is a criminal organisation that operates under a code of silence and intimidation, making it difficult for law enforcement to investigate and successfully prosecute. If UNU remains in Australia, he will continue to associate with the Comanchero OMCG and will continue to commit serious offences, as is evident above. This OMCG association and offending is not beneficial to the Australian community and positive emigration expectations.
The Minister contended that the evidence before the Tribunal revealed that Mr Unu ‘has had’ an association with the OMCG. It was not submitted that Mr Unu ‘has been or is a member’ of a group or organisation involved in criminal conduct. Nor was it submitted that Mr Unu presently ‘has’ an association with a group, organisation or person involved in criminal conduct. Accordingly, any ‘association’ with the OMCG was acknowledged by the Minister to have been in the past and not to have risen to the level of Mr Unu becoming a member of the OMCG. The Minister’s contention was therefore, in the Tribunal’s view, that Mr Unu had the lowest level of connection to a group or organisation involved in criminal conduct pursuant to subsection 501(6)(b) of the Act, being a previous, but not present, association with the OMCG. Mr Unu denied the requisite association and contended that he therefore passed the character test under the Act.
Based on the Department’s record of Mr Unu’s movement history in and out of Australia, the Tribunal is satisfied that he began permanently residing in Australia in January 2019.[92] In or around February of that year, Mr Unu commenced employment with a construction company in the ACT.[93] In March 2019, according to the Department’s file note containing information it received from the AFP, Mr Unu ‘was involved in assaulting a male’, but ‘no further action’ was taken.[94]
[92] Ibid., pages 167-168.
[93] Ibid., pages 147 and 156.
[94] Ibid., page 101.
Between April 2019 and October 2020, according to the AFP summary, Mr Unu was ‘involved’ on four occasions in a ‘disturbance’ in the ‘City CBD’ and taken into police custody for ‘being intoxicated, disorderly and unable to care for himself’.[95]
[95] Ibid.
In February 2020, ACT police identified Mr Unu as one of three ‘persons of interest’ at a premises, which police described as a ‘possible half-way house for OMCG members’, with multiple ‘OMCG members linked to [the] address’.[96] There was no other documentary evidence in relation to this matter, and Mr Unu told the Tribunal this premises was the share house he resided in and which was linked to his employment.
[96] Exhibit 8, pages 34-35.
In May 2020, ACT police observed and stopped a vehicle said to be ‘occupied by persons suspected to be OMCG related’.[97] One of the three occupants was Mr Unu.[98] There was no further evidence in relation to this matter.
[97] Ibid., page 40.
[98] Ibid.
In March and June 2021, respectively, Mr Unu committed the offences of ‘common assault’ and ‘assault occasioning actual bodily harm’.[99] He was sentenced to a suspended term of 42 days’ imprisonment for the first offence, and 10 months’ imprisonment to be served in the community by way of an intensive corrections order for the second and final offence, committed two and a half years ago.[100] These serious offences were committed against members of the public, but there was no evidence that the offences were linked to the OMCG or that they were, without minimising the seriousness of that offending, any more than drunken acts of random violence committed by Mr Unu. The first offence was committed against a person seated in a motor vehicle and the second offence involved Mr Unu misapprehending that a work colleague was under threat, although Mr Unu’s act of violence was rightly described as ‘retribution’.[101]
[99] Ibid., pages 54-82, and Exhibit 1, pages 101-102.
[100] Exhibit 1, page 41.
[101] Ibid., page 71.
There was no evidence before the Tribunal that Mr Unu has been charged with, or convicted of, any offences, criminal or otherwise, since these two offences, the last of which was committed in mid-2021. Since that offending, Mr Unu remained living in the Australian community until October 2023, more than two years later, when his Visa was cancelled, following which he has been in immigration detention.
After the two criminal offences, in July 2021, according to the AFP summary, Mr Unu was ‘verbally aggressive and fighting with another male’ in the ‘City CBD’.[102] Police gave both parties an ‘exclusion direction to leave the City area’ and there were reported to be no further issues.[103]
[102] Ibid., page 102.
[103] Ibid.
In mid-December 2021, almost six months since the last criminal offence, Mr Unu was captured by CCTV in a lift located in his residential apartment block in the company of persons identified by the AFP as members of the OMCG.[104] There was no other documentary evidence before the Tribunal regarding these individuals or the nature of Mr Unu’s involvement at that time with these purported members of the OMCG, although the AFP file note from February 2022 stated that one of the males identified in the CCTV was ‘suspected of being involved in’ a ‘disturbance and altercation’ at the location.[105] It was unclear from this evidence whether that person was a member or associate of the OMCG and the file note stated that the matter was ‘currently under investigation by Taskforce Nemesis’.[106] There was no evidence before the Tribunal of the status of that investigation, including whether it resulted in the individual being charged or convicted of any offence.
[104] Ibid., pages 103-104.
[105] Ibid., page 102.
[106] Ibid.
Mr Unu told the Tribunal that this occasion, in December 2021, was when he first met Zack, whom he acknowledged was, at that time, an OMCG member. Mr Unu also acknowledged that he and Zack became friends following this event and thereafter socialised together, including at bars and nightclubs. There was no documentary evidence before the Tribunal regarding any link Mr Unu had to any other particular individuals in the OMCG, including the length of any such links.
In late January 2022, fewer than seven weeks later, Mr Unu attended the OMCG ‘National Run’ in Melbourne.[107] The AFP file note stated that police observed Mr Unu ‘alongside a number of Comanchero members’ and that he told police he was there to ‘support the boys’.[108] Mr Unu was not wearing OMCG apparel, but the AFP stated that it was ‘likely he attended the run as a prospective nominee for the Canberra Comanchero OMCG’.[109] Mr Unu told the Tribunal it was coincidental that he and his ‘barber friend’, who was said to have introduced him to Zack at the party in December 2021, were in Melbourne at the same time as the OMCG national run. Mr Unu said that this was when he first became aware of Zack’s membership of the OMCG. Mr Unu acknowledged meeting other OMCG members at this event, but said he only engaged in brief and superficial discussion with them. He also told the Tribunal he met up with Zack on the night of the national run, but not with any other OMCG members; Zack had been at an OMCG event that night and told Mr Unu he was not invited.
[107] Ibid., pages 102 and 105-106.
[108] Ibid., page 102.
[109] Ibid.
The AFP file note from February 2022 concluded, among other things, that if Mr Unu ‘remains in Australia, he will continue to associate with the Comanchero OMCG and will continue to commit serious offences’.[110] Contrary to the AFP’s statement, Mr Unu did not continue to offend. He committed no criminal offences, nor was he charged with any offences, after mid-2021. Mr Unu told the Tribunal his friendship with Zack continued until around March 2023, noting again that he said Zack left the OMCG in mid-2022.
[110] Ibid.
There was no dispute that Mr Unu had engaged in drunken, often violent, behaviour on multiple occasions from March 2019 to July 2021, a period of just over two years. Plainly, from the sentencing remarks and the other relevant evidence, Mr Unu’s criminal offending was serious, involving two separate acts of unprovoked physical violence against members of the public. Mr Unu was rightly remorseful about this behaviour and the impact on his victims. However, as previously stated, he has not committed any criminal offences since mid-2021. Additionally, in the 12 months from December 2021, when Mr Unu was identified in the presence of OMCG members, until December 2022, Mr Unu was not involved in any incidents reported by police. This period covered the OMCG national run in January 2022. It was not until 18 December 2022 that Mr Unu was reported to have participated in a physical altercation with another person in public. He told the Tribunal this was a drunken dispute with a work colleague and the evidence demonstrates that no further action was taken in relation to this matter.
In Minister for Immigration & Citizenship v Haneef (2007) 163 FCR 414 at 447-448, the Full Federal Court of Australia said that:
Having regard to its ordinary meaning, the context in which it appears and the legislative purpose, we conclude that the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person's character. It is, of course, not necessary, to enliven the Minister's discretion to cancel the visa, that the Minister be satisfied that such an association actually exists. It is enough for the purposes of s 501(6) that the Minister reasonably suspects that the visa holder has such an association with someone else or a group or organisation which the Minister reasonably suspects has been or is involved in criminal conduct.
Having regard to all of the evidence, the Tribunal accepts Mr Unu’s submission that:[111]
…it is not reasonable to infer from the evidence before the Tribunal that the applicant has, even if some association is able to be found on that evidence, the requisite sympathies for, support of or involvement in the criminal conduct of the Comanchero OMCG noting the insufficiency of mere knowledge of the criminality of persons with whom one has associated or associates or an organisation with whom one has associated or associates.
[111] Applicant’s Statement of Facts, Issues and Contentions dated 10 November 2023, paragraph 35
As set out in Annex A to Direction 99, in establishing ‘association’, the following factors are to be considered:
(a)the nature of the association Mr Unu has had with the OMCG;
(b)the degree and frequency of the association; and
(c)the duration of the association.

In February 2021, the Australian Institute of Criminology (AIC) produced a paper titled, The changing culture of outlaw motorcycle gangs in Australia, which noted that outlaw motorcycle gangs:[112]
…emerged [in Australia] in the late 1960s for male motorcycle enthusiasts who were attracted to the freedoms and thrills of a life outside of society’s laws, norms and values…Despite their devolved structure, with local branches or ‘chapters’ operating with substantial independence, [outlaw motorcycle gangs] developed strict, military-inspired hierarchical structures, and have fostered broader ‘outlaw’ cultures characterised by violence, machismo and recklessness, but also camaraderie and loyalty.
[112] Exhibit 1, page 188.
In relation to recruitment, the AIC paper stated that:[113]
Most [outlaw motorcycle gangs] have historically had well-defined recruitment processes centred on testing the reliability, loyalty and ‘outlaw’ values of potential members. Individuals wishing to join a club have typically been expected to spend time, from a few months to a few years, getting to know members by regularly attending clubhouses and events, and going on rides. After this period, an associate (sometimes known as a ‘hangaround’) would be deemed suitable for membership, and would become a ‘prospect’ or (as they are typically known in clubs originating in Australia) a ‘nominee’. This period typically lasts between one and two years, during which they undertake menial tasks around the clubhouse, run errands and generally follow the orders of full members. After the prospect or nominee period, all full members of a chapter would vote on whether to elevate that person to full membership.
[113] Ibid., page 191. Internal references omitted.
Mr Unu denied ever having been a nominee or member of an outlaw motorcycle gang. Aside from his attendance at the OMCG national run in January 2022, at which he was a spectator and not a participant, there was no evidence before the Tribunal of Mr Unu having participated in any of the other nominated activities of an outlaw motorcycle gang, and not over any significant period of time as appears to be the requirement of a nominee.
An ACIC note on violence and organised criminal activity stated that:[114]
[114] Ibid., page 120.
Organised crime operating in Australia is also likely to use extortion, through threats of violence, as activity to generate a profit—for example, in conjunction with the trafficking of highly profitable illicit commodities such as amphetamine-type stimulants or cocaine—and also as an enabling activity to help expand market control. This can include the infiltration of legitimate business structures for criminal gain.
Violence is a key factor in competition between criminal groups operating in the same criminal markets. This means the levels of violence among organised crime groups tends to [sic] and flow depending on the number, size and ‘strength’ of the groups in any particular crime market, as well as the size and profitability of any given crime market.
Reasons for the use of violence by organised crime include:
·as a way of ‘warning off’ competitors in criminal markets
·retaliation for previous violent acts
·retaliation for failure to supply goods
·employment of stand-over tactics on behalf of other criminal groups
·internal group discipline
·maintenance of ‘honour’ or status
·extortion to gain money or access to other business activities.
Mr Unu submitted that his criminal offending and misdemeanour conduct involved drunken violence in a milieu of partying and consuming alcohol to excess, alongside anger management issues. Accordingly, Mr Unu contended, none of his violent conduct can be allied in any way to the types of violence typically employed by outlaw motorcycle gangs or members, such that whatever association is had with the organisation or its members cannot reasonably be held to bear upon his character. This contention assumes even greater force, it was submitted, when it is considered that there was no evidence of the conduct by Mr Unu involving, directly or indirectly, members of the OMCG or the activities typically related to such groups and persons.
As detailed above in these reasons, Mr Unu committed two serious and violent criminal offences in mid-2021 against members of the public seemingly unknown to him. He has not offended since that time and the other incidents detailed in police reports did not progress to any criminal charges against Mr Unu. While there were two aforementioned police references in 2020 to Mr Unu being at a ‘possible half-way house for OMCG members’, being the work share house, and in a vehicle ‘occupied by persons suspected to be OMCG related’, the Tribunal places little weight on those less than definitive reports and the associated link to Mr Unu.[115]
[115] Exhibit 8, pages 35 and 40.
Given the clandestine nature of outlaw motorcycle gangs, it is difficult to have certainty about the relevant factors in a consideration of whether Mr Unu has had an association with the OMCG. The Tribunal must rely on the available evidence to make findings of fact and reach the correct or preferable decision. Given the nature of the subject matter, the Tribunal necessarily did not have all relevant information before it to determine perfectly the extent of Mr Unu’s association with the OMCG. However, based on the available evidence before the Tribunal, the nature, degree, frequency and duration of Mr Unu’s association with the OMCG does not appear to have been strong or enduring. It is noteworthy that, despite confidential reporting that Mr Unu was, in the space of less than four months, from March to July 2022, a nominee, then had joined the OMCG and was subsequently considering leaving the OMCG, the Minister did not contend that Mr Unu was at any time a nominee or member of the OMCG. Instead, the lowest limb of the membership or association requirement to not pass the character test, of having ‘had an association’, was relied upon by the Minister. The confidential reporting from around mid-2022 was not before the delegate when they made the cancellation decision, and was not contained in any updated AFP file note regarding Mr Unu’s behaviour and association with the OMCG. These information reports from confidential sources were, in substance approximately one-page in length and heavily redacted, and were said to have come from a source that was usually reliable, with the credibility of the information said to be either probably true or possibly true.[116] Mr Unu denied that these reports were about him and said that he has not been known by the purported nicknames ascribed to him in these reports, of ‘Megsy’, ‘Meksi’ or ‘Meksy’.[117] The Tribunal notes that, in accordance with Mr Unu’s evidence to the Tribunal about his actual nickname, both a work colleague and a friend separately referred to him as ‘Meki’, and not any other nickname, in letters of support provided to the Department in May 2023 and before the confidential reports were made available.[118]
[116] Ibid., pages 6-11.
[117] Ibid.
[118] Exhibit 1, pages 161 and 164.
Based on the aforementioned research and the balance of the evidence, the Tribunal places minimal weight on these information reports. The suggested movement from Mr Unu being a nominee of the OMCG in March 2022, to having joined the OMCG by May 2022 and then be considering leaving the OMCG by July 2022, does not accord with the aforementioned research put forward by the Minister regarding the nature of membership of such organisations, nor does it accord with Mr Unu’s reported behaviour during 2022, which did not result in any police reports, incidents, complaints or charges, until what was said to be a drunken altercation with a work colleague in December 2022, which did not result in any police action. Also, in or around early to mid-2022, Zack was said to have discussed with Mr Unu, and carried out, his own disengagement from the OMCG. While this period covers the same period canvassed in the confidential information reports regarding Mr Unu’s purported membership of the OMCG, the balance of the evidence points against him having any association with the OMCG at this time, especially when considering the nature, degree, frequency and duration of any association, pursuant to Direction 99. Based on the evidence, during 2022 Mr Unu’s cousin, whom he considers a brother, moved to Australia and counselled him about his friendships, Mr Unu’s domestic relationship accelerated and he became engaged to his now fiancée, and he reduced his alcohol intake. This pattern continued in 2023 with Mr Unu ending his friendship with the then former OMCG member, Zack, undertaking alcohol and drug rehabilitation sessions, completing his intensive corrections order and the required community service work, together with returning negative drug and alcohol test results and remaining employed up until he was placed in immigration detention in October 2023.[119] In addition, as previously stated, Mr Unu has not committed any further criminal offences since mid-2021, a period of over two years.
[119] Exhibit 6.
Mr Unu’s evidence to the Tribunal appeared to have been given truthfully; he volunteered information about his friendship with Zack, none of which was previously before the Tribunal and acknowledged his fleeting consideration about joining the OMCG in or around April 2022. To the extent that some of Mr Unu’s evidence went against his own interests and that of his legal advice, the Tribunal considers that this illustrated his potential initial naivety about the nature of the OMCG and the effect of his friendship with an OMCG member. For example, while this friendship continued for some time after Mr Unu became aware of the OMCG and its criminal conduct, Mr Unu ended his friendship with Zack once he received notice of the potential cancellation of the Visa and the attendant consequences. That is, Mr Unu told the Tribunal he blamed his friendship with Zack for his present issues regarding the Visa, because Zack was the purported link to the OMCG, the association with which group led to the cancellation of the Visa.
In this regard, the Tribunal is satisfied that Mr Unu’s criminal offending and other unsociable conduct pre-dated persuasive evidence of any association he has had with the OMCG. Mr Unu contended that:[120]
…the highwater mark of any association between the applicant and OMCG or personnel is that the applicant was in company with members of the OMCG on 12 and 13 December 2021 with the available inference that some association must have then brought him to willingly attend the National Run some 6 weeks later on 29 January 2022, where he indicated to police he was ‘supporting the boys.’ The objective evidence does not support to the requisite state of satisfaction that he was a prospective nominee, particularly considering the benefit of the passage of time that reveals that such a graduation did not come to pass, or that any further association with OMCG or personnel took place beyond this time. The requisite state of satisfaction is not achieved to the extent that the evidence affords a reasonable suspicion of association with regard to the minimal degree and frequency of the association, the limited duration, which informs in a positive way for the applicant that the nature of any association must not have been of such quality that he is captured by s 501 (6)(b) and fails the character test.
[120] Applicant’s Statement of Facts, Issues and Contentions dated 10 November 2023, paragraph 39.
Critically, for Mr Unu to fail the association limb of the character test, the Tribunal must have a reasonable suspicion that he was ‘sympathetic with, supportive of, or involved in the criminal conduct’ of the OMCG. In this regard, Direction 99 provides that mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. There was no contention that Mr Unu was ‘involved in’ the criminal conduct of the OMCG. After a careful consideration of the available evidence in relation to this element of the association limb in Direction 99, while the Tribunal is satisfied that Mr Unu has had, in broad terms, some association with the OMCG, it does not have the requisite reasonable suspicion that he was ‘sympathetic with’ or ‘supportive of’ the criminal conduct of the OMCG. That is, the Tribunal does not reasonably suspect that Mr Unu was ‘sympathetic with’ or ‘supportive of’ the criminal conduct of the OMCG. Rather, any association that Mr Unu has had with the OMCG, as ill-advised as that was, appears to have been based on friendship, and not support for or sympathy with its criminal conduct. To this end, while Mr Unu may have had an association with the OMCG, by way of his friendship with Zack and potentially others for a period of time, there was no persuasive evidence that Mr Unu sympathised with or supported the OMCG’s criminal conduct. To find otherwise, based on the evidence before the Tribunal, would be speculative.
Additionally, in order to not pass the character test under the Act, pursuant to Direction 99, the association ‘must have some negative bearing upon the person’s character’. Even if the Tribunal did hold a reasonable suspicion that Mr Unu has had an association with the OMCG, the Tribunal is satisfied that the weight of evidence demonstrates that any previous association did not have, pursuant to Direction 99, the requisite ‘negative bearing’ on Mr Unu’s character. While the ‘reasonable suspicion’ threshold is low, Direction 99 requires that the association ‘must’ have some negative bearing upon Mr Unu’s character. This requirement reflects the gravity of the consequences for a person found to have ‘had an association’ with a group, organisation or person who has been or is involved in criminal conduct, being that they would not pass the character test under the Act and enliven the discretion to cancel their visa to live in Australia, subject to an evaluation of the primary and other considerations in Direction 99. As previously detailed, and contrary to the expectations or assumptions of someone who is or was an associate, nominee or member of the OMCG, Mr Unu did not have any interaction with police from the time of his documented meeting with members of the OMCG in December 2021 and January 2022, until a drunken incident with a work colleague almost 12 months later in December 2022, which incident did not result in any complaint or charges against Mr Unu. The Tribunal finds that there was no evidence of any association with the OMCG having had a ‘negative bearing’ on Mr Unu’s character during that period. Therefore, the Tribunal is not satisfied that the requisite standard is met in this particular element in Direction 99 in order to find that Mr Unu does not pass the limb of the character test in subsection 501(6)(b)(i) of the Act.
Accordingly, based on all of the requirements in Direction 99, and pursuant to subsection 501(6)(b) of the Act, the Tribunal does not have a reasonable suspicion that Mr Unu has had an association with a criminal group or organisation, being the OMCG. Therefore, for the purpose of subsection 501(2) of the Act, the Tribunal is satisfied that Mr Unu passes the character test as defined in subsection 501(6)(b) of the Act. As a result, the discretion to cancel the Visa under subsection 501(2) of the Act is not enlivened, the Tribunal is therefore not required to address the primary and other considerations in Direction 99 and the decision under review should be set aside and substituted with a decision not to cancel the Visa.
CONCLUSION
The Tribunal has found that Mr Unu does pass the ‘character test’ as defined in subsection 501(6) of the Act because it does not have a reasonable suspicion that he has had an association with a group or organisation that has been, or is, involved in criminal conduct, pursuant to the requirements under Direction 99. Accordingly, Mr Unu’s application before the Tribunal is successful.
The Tribunal hopes that Mr Unu’s interactions with the criminal justice system and the migration system, most recently through the cancellation of his Visa and a subsequent period of immigration detention, coupled with his desire to remain in this country to live and raise a family with his fiancée, and to also continue to provide for his family in New Zealand, will all act as protective factors to ensure that Mr Unu makes the most of the opportunity now provided to him to remain in the Australian community.
DECISION
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and substitutes it with a decision not to cancel the Applicant’s visa under subsection 501(2) of the Act.

I certify that the preceding 164 (one hundred and sixty four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...............................[sgd].........................................
Associate
Dated: 21 December 2023

Date(s) of hearing:

Date final submissions received:

4-5 December 2023

24 November 2023

Solicitor for Applicant:
Mr Luke Vozella, Vozella Lawyers

Solicitor for Respondent: Mr Aaron Taverniti, Sparke Helmore Lawyers