Two brothers who co-founded a now-outlawed bikie gang — and helped lead the crusade against South Australia's anti-gang laws — face being deported to New Zealand after losing a bid to stop their visas being cancelled.
Tom and Perry Mackie migrated from New Zealand in the 1970s and were founding members of the Descendants – a motorcycle group now outlawed under South Australia's anti-bikie laws.
Former home affairs minister Peter Dutton cancelled their visas declaring it was in the national interest.
A Federal Court judge threw out the brothers' bid to overturn that decision last year.
On Friday the Full Court of the Federal Court dismissed another appeal.
While lawyers for the men did not dispute that the brothers did not meet the Migration Act's character test, they argued the minister had made "jurisdictional errors".
In its judgement, the Full Court referenced Australian Federal Police advice which Mr Dutton relied on in making his decision.
That included assertions that the Descendants "played a 'strong role' in unifying other outlaw bikie gangs, such as the Hells Angels, Finks and Gypsy Jokers, against anti-biker legislation".
The then minister also considered media reports which he said showed the Mackies were "not only members of the Descendants OMCG, but seemingly proud leaders and public representatives of OMCGs and their many members in South Australia".
The court found Mr Dutton had determined the Mackies' conduct had showed "a willingness to disobey Australian laws".
Lawyers for the brothers had argued their conduct was no more than political opposition and involved no disobedience of the law.
But Justices Steven Rares, Debra Mortimer and Patrick O'Sullivan dismissed their arguments.
The court found it was open to the minister to link the brothers' roles with garnering support among bikie groups to oppose legislation designed to curb their activities.
In recent years, Australia has deported hundreds of New Zealand citizens found guilty of serious criminal offences, despite some holding few ties to the country.
The issue has been a subject of tension between the two nations.
Last year, Mr Dutton inflamed those tensions when he labelled criminals being sent to New Zealand as "trash".
In a joint press conference with New Zealand Prime Minister Jacinda Ardern last week, Australian Prime Minister Anthony Albanese signalled his government's approach to deportations would shift.
"We will continue to deport people when appropriate, but we will have some common sense apply here," Mr Albanese said.
"Where you have a circumstance where someone has lived their entire life, effectively, in Australia with no connection whatsoever to New Zealand, common sense should apply.
"We will act friends and we will work through those issues in a common sense way."
The Mackies' solicitor Harry Patsouris says the men are considering their options, including a possible High Court appeal.
The Home Affairs Minister Clare O'Neil has been contacted for comment.
