Federal Court of Australia

Lewer v Minister for Home Affairs [2023] FCAFC 121

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to amend the particulars of ground 1 of the notice of appeal, by inserting particular (i).

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

1    I have had the advantage of the reading the reasons for judgment of McElwaine J. I agree that the appeal should be dismissed with costs for the reasons given by his Honour. I wish to add some observations of my own.

2    The Minister concluded that the appellant had engaged in serious criminal conduct, and that he posed a risk to the Australian community through reoffending or engaging in other serious conduct. In essence, the appellant says that the Minister’s decision was legally unreasonable because it was based on findings that were not supported by any probative or, alternatively, sufficiently probative material. Senior Counsel for the appellant characterised the material as “slight” and, by implication, incapable of supporting the Minister’s findings.

3    The appellant submitted to the primary judge, and his Honour accepted, that the Minister’s cancellation decision was largely based on information contained in two Victoria police reports summarising “intelligence holdings” which concluded that the appellant had been involved in various forms of serious criminal activity including the importation and manufacture of illegal drugs.

4    The primary judge identified eight matters referred to in the first report which suggested that the appellant had been involved in a wide range of criminal activity including tax evasion, the storage of large quantities of precursor chemicals used in the manufacture of amphetamines, trafficking of amphetamines, the death of a crown witness who had made a statement to police implicating the appellant in the importation and sale of precursor chemicals, and criminal damage to the property of others.

5    A second report referred to by his Honour provided an account of charges laid against the appellant and nine other men accused of having sex with two 15 year old girls. The two girls made statements to police and there was, according to the report, photographic evidence of the incident. However, the report stated that the charges were withdrawn on the morning of the hearing when the two girls refused to testify. The report suggested that investigations and court cases involving the appellant were undermined due to witnesses being too fearful to make statements implicating him in crimes.

6    Accepting that the Minister’s finding that the appellant had engaged in serious criminal conduct was based on the two police reports, the question is whether the information contained in them was, by its nature and quality, incapable of providing any rational or logical basis for the Minister’s finding that the appellant had engaged in such conduct. In answering that question, it is necessary to have regard to both the source of the information and the information itself.

7    As to the source of the information, the primary judge found at [125]:

… The intelligence holdings on which the Victoria Police reports were based were created and maintained by regulated State-based organisations with a statutory obligation to investigate crime, and the Minister was entitled to treat the reports as having been prepared carefully and in good faith …

8    The correctness of that finding was not challenged by the appellant. His Honour went on to note, correctly in my view, that it was a matter for the Minister to evaluate the reports and to form a view as to their cogency, and to give them weight if he considered that appropriate.

9    As to the quality of the information, there is no doubt that the police reports were largely based on hearsay and would not have been admissible in criminal proceedings against the appellant for any one or more of the numerous offences in which it implicated him. But it does not follow that the police reports did not constitute probative material or that they were incapable of providing any rational or logical support for the Minister’s decision.

10    The information in the first police report included the following:

(1)    On 27 August 2013 Lisa Hutton made a statement to police which implicated her in a conspiracy with her husband, Mr Hutton, and the appellant in the importation and sale of precursor chemicals. The appellant was then charged with various offences including possess substance to traffick (manufacture) in a drug of dependence, possess material to traffick (manufacture) in a drug of dependence and possess equipment to traffick (manufacture) in a drug of dependence. The appellant was also charged with other offences relating to the storage and sale of precursor materials between May 2013 and February 2013. Investigators believed that Ms Hutton was at high risk and she was provided with assistance through the Victoria Police Witness Protection Unit. On 29 September 2013, acting against police advice, she discontinued the police assistance. On 21 February 2014, she was found hanging by the neck. She died eight days later. As a result of Ms Hutton’s death, the prosecution against the appellant did not proceed and on 4 March 2014 all charges against him were withdrawn.

(2)    The appellant’s nephew (Shaun Cousens) flew to China on multiple occasions between 27 May and 13 September 2013 where he purchased shipments of precursor chemicals, a portion of which (650kgs) was subsequently seized. Mr Cousens was arrested on 26 November 2013 after he and the appellant were identified engaging in what are referred to in the report as “extensive anti-law enforcement surveillance methods” at various locations. Mr Cousens was found in possession of two large metal reaction vessels, a large charcoal filter used in the manufacture of methylamphetamine, and 650kgs of a precursor chemical, convertible to between 143 and 250kgs of methylamphetamine, with a value of between $40 and $82 million. He was charged with conspiring with two Chinese co-conspirators who were held in China. The Chinese Government gave approval for the Chinese nationals to give evidence against Mr Cousens by video-link before the County Court of Victoria, but on 16 January 2016 the Chinese Ministry of Justice withdrew their approval and the trial against Mr Cousens was discontinued.

(3)    The appellant’s former spouse (Kathryn MacDonald) lived at a property with the appellant’s son (Brayden Lewer) adjoining another property on which the Smith family was constructing a retirement home that threatened to block the view of Ms MacDonald’s home, which was situated a short distance (less than one kilometre away) from a different home at which the appellant resided. In the early hours of 2 February 2015, an excavator located on the construction site valued at $100,000 was destroyed by fire. The appellant and his son were the only persons of interest and prime suspects in the investigation. They were arrested but released without charge due to insufficient evidence. They were subsequently convicted of criminal damage in relation to the deliberate flooding of the construction site in May 2015. The report also contained information concerning other incidents involving the Smith family in 2016, including an incident in which rags soaked with accelerant were put into PVC piping in the concrete foundations on the construction site and set alight. The incident caused significant delays to construction with subcontractors reluctant to work at the site for fear that their equipment would be destroyed. The report also contained other information relating to stalking and intimidation of the Smith family including the girlfriend of a son. She received a call at work from a person she believed to be the appellant who threatened to blow up her house, burn her cars and nail her dogs to the front door. The appellant was charged with stalking but the charge was struck out apparently due to lack of evidence that he was the caller.

11    The Minister was entitled to infer that many of the matters referred to in the police reports were matters of objective fact. These would include, for example, the various charges laid against the appellant and his associates, the appellant’s conviction in May 2015 for criminal damage caused to the Smith family property, the destruction earlier that year of the excavator, the fire damage to the concrete foundations in 2016, the death of Ms Hutton in early 2014, Mr Cousens’ numerous trips to China in 2013, and the equipment found in his possession following his arrest in late 2013.

12    Leaving aside the flood damage at the construction site in respect of which the appellant and his son were convicted, the Minister’s conclusion as to the appellant’s involvement in a range of serious criminal activity was, it may be assumed, based on various inferences drawn by intelligence officers involved in the preparation of the two police reports. The question is then whether it was reasonably open to the Minister to himself infer that the appellant had engaged in serious criminal conduct in respect of which he had not been convicted on the basis of the information contained in the police reports. In some cases it would seem that the inference that the appellant had been directly involved in such criminal activity was strong and, in the case of the intimidation of the Smith family, very strong. As to the other criminal activity disclosed in the first police report that related to the manufacture and supply of amphetamines, and the importation and possession of large quantities of precursor materials used in such manufacture, it was not legally unreasonable for the Minister to infer that the appellant had been engaged in serious criminal activity of the kind described in the first police report over a lengthy period in association with various other perpetrators (including Mr Hutton and Mr Cousens) with whom he had close connections.

Associate:

Dated:    4 August 2023

REASONS FOR JUDGMENT

O’CALLAGHAN J:

13    The appellant had his Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa cancelled by the then Minister for Home Affairs under s 501(3) of the Migration Act 1958 (Cth) on 15 January 2020.

14    By that provision, the Minister was empowered to cancel that visa without affording the appellant natural justice if he:

    reasonably suspected that the person did not pass the character test (s 501(3)(c)); and

    was satisfied that the cancellation was in the national interest (s 501(3)(d)).

15    The appellant did not pass the character test by reason of s 501(6)(a) of the Migration Act, so s 501(3)(c) was not in issue.

16    The principal question before the learned primary judge arose under s 501(3)(d), namely whether the Minister’s decision to cancel the appellant’s visa was affected by jurisdictional error in the way he dealt with whether the cancellation was “in the national interest”.

17    It is well established in the cases that, when used in a statute, the expression “national interest” imports a discretionary value judgment to be made by reference to undefined and wide-ranging factual matters. It is likewise well established in the cases that an inquiry into the national interest conferred on a Minister is consistent with legislative recognition that the inquiry is an evaluative one, involving a discretionary value judgment that is best suited to resolution by the holders of political office, not judges. See Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400-1 [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 46 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 390 [157] (Griffiths, White and Bromwich JJ); Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at 597 [138]-[139] (Besanko J, with whom each of Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed); Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142 at [20] (Mortimer J, as the Chief Justice then was).

18    The power is, of course, not unconfined, because the Minister must attain the requisite state of satisfaction reasonably. See the cases cited in CWY20 at 597 [140].

19    The appellant in this case contended that the Minister’s decision to cancel his visa was plainly unreasonable.

20    As the learned primary judge explained in his detailed and careful reasons, it was no such thing.

21    The Victoria Police reports, which are set out at length in the reasons of the primary judge and McElwaine J, and which are conveniently summarised in the reasons of Nicholas J, contain information that, as McElwaine J correctly said, point “compellingly to the conclusion that Mr Lewer had engaged in serious criminal conduct”. Indeed, those reports make clear that Mr Lewer engaged in such conduct over a period of decades.

22    The appellant’s contention that it was plainly unreasonable for the Minister to cancel Mr Lewer’s visa in the national interest, in the face of that self-evidently correct characterisation of the Victoria Police reports, is in my view untenable.

23    And none of the cases relied upon by the appellant with which McElwaine J deals (Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; Godley v Minister for Immigration and Indigenous Affairs [2004] FCA 774; (2004) 83 ALD 411; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754; HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; (2019) 163 ALD 101; and QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394) concerned s 501(3) or consideration of any issue about the national interest. It is thus unsurprising that they are irrelevant.

24    I agree with the reasons of McElwaine J (including in relation to the firearms point), and with the additional observations of Nicholas J.

25    The appeal must be dismissed, with costs.

Associate:    

Dated:    4 August 2023

REASONS FOR JUDGMENT

MCELWAINE J:

Introduction

26    Mr Gary Lewer is a citizen of the United Kingdom who has resided in Australia for most of his adult life of 67 years. It is not in issue that he does not satisfy the character test at s 501(2) of the Migration Act 1958 (Cth) (the Act) in that he has a substantial criminal record which includes sentences for two or more terms of imprisonment, where the total of those terms is 12 months or more. Specifically, on 20 March 1995, he was convicted in the Magistrates’ Court of Victoria on three charges relating to possession of an unregistered firearm, possession of a prohibited firearm and ammunition and possession of a pistol (or an imitation of one) and was sentenced to six months imprisonment on each, to be served concurrently. This is not the extent of his recorded criminal history, which commences in 1973 and concludes in 2016.

27    Mr Lewer was the holder of Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa. On 15 January 2020, the then Minister for Home Affairs, Mr Peter Dutton MP, exercised his personal power at s 501(3) of the Act to cancel that visa. The Minister reasonably suspected that Mr Lewer did not pass the character test and was further satisfied that the cancellation is in the national interest, each within the meaning of s 501(3)(c) and (d) of the Act.

28    The Minister considered a departmental brief which comprised various documents, including intelligence reports from Victoria Police dated 12 July and 10 October 2019. The synopsis of the content of the July report provides:

The following material from Victoria Police intelligence holdings clearly displays a systematic, consistent course of criminal association in serious criminal conduct over a sustained period of many years by Gary LEWER. The material in its totality exceeds mere coincidence that Gary LEWER has been the subject of various high-level Police Operations between 1981 and 2017. He has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises that has caused and had the potential to cause, if not disrupted by police, unquantified harm to the Australian community. It also demonstrates serious behavioural criminal characteristics of Gary LEWER that are in direct conflict with the privilege and responsibilities of being the holder of a visa to remain in Australia.

29    The Minister accepted the Victoria Police assessments and provided extensive reasons on 15 January 2020 (Minister’s Decision or MD) for his ultimate finding:

I find that the Australian community could be exposed to significant harm should Mr LEWER reoffend or engage in other serious conduct, involving drugs, weapons, violence or threats of violence, stalking or intimidating behaviour, criminal damage, or criminal associations. I could not rule out the possibility of further criminal or other serious conduct by Mr LEWER. The Australian community should not tolerate the risk of harm that could result from such conduct.

30    On 31 December 2020, Mr Lewer filed an originating application to review the Minister’s decision under s 476A of the Act and sought a writ of certiorari to quash the decision together with a writ of mandamus to require the Minister to make the decision according to law. That application was heard by the primary judge on 13 December 2021 who, for the reasons published on 28 April 2022, dismissed it with costs: Lewer v Minister for Home Affairs [2022] FCA 456 (PJ).

31    From that decision, Mr Lewer appeals to this Court and relies upon an amended notice of appeal filed on 26 October 2022, which adds a further particular to ground 1 at (i). The appeal was argued by reference to the grounds in that notice. For the reasons that follow, I would grant to the appellant leave to amend his notice of appeal and order that the appeal be dismissed with costs.

The legislative scheme

32    By s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(3) provides:

The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

   (c)    the Minister reasonably suspects that the person does not pass the character test; and

   (d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

33    This power is only capable of being exercised by the Minister personally and the rules of natural justice do not apply: s 501(4) and (5). Relevantly, the character test relating to a substantial criminal record is set out at s 501(7):

(7)    For the purposes of the character test, a person has a substantial criminal record if:

(a)    the person has been sentenced to death; or

  (b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

(Original emphasis.)

34    For concurrent sentences, each term is to be counted in working out the total: s 501(7A).

The Minister’s decision

35    As I have noted, the Minister received from his Department a detailed briefing note with various attachments. In part, the primary judge summarised the content of the brief (which the appellant does not challenge) at PJ [17]-[26]. It is convenient to set out a portion of that summary, which I adopt:

Mr Lewer was born in the United Kingdom in August 1955. The Minister’s reasons state (at [130]) that he arrived in Australia on 1 February 1960 and therefore it appears that he has lived in Australia for approximately 62 years. Mr Lewer says that his family settled in Morwell, where Mr Lewer went to school and completed year 11 in 1972, at the age of 17. As set out [below] Mr Lewer’s criminal offending began the following year.

As an adult, Mr Lewer became an elite body builder. He is a multiple winner of the Mr Australia and Mr World titles and a former Mr Universe.

The 2017 visa application

The Department’s records indicate that Mr Lewer has briefly departed Australia on 21 occasions since 1978. It is uncontroversial that in approximately mid-2017 he applied for a Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa and that he disclosed his criminal convictions in the application. Having regard to Departmental email correspondence provided to Mr Lewer pursuant to his FOI request (FOI documents), I find that a delegate queried whether it was appropriate to refuse Mr Lewer’s visa application under s 501 at that time, but was advised to grant Mr Lewer the visa and refer the question of cancellation to the Department’s National Character Consideration Centre (NCCC). It will be necessary to explore this further in relation to ground seven of the application.

The Victorian Police reports

...

[The Victorian Police reports] contain information about Mr Lewer’s asserted or suspected involvement in:

(a)    tax evasion;

(b)    the trafficking of amphetamine by two persons, which conduct was stated to have been uncovered in a covert police operation between December 2009 and March 2010 (Covert Drug Operation 1);

(c)    the storage of large quantities of precursor chemicals for drug manufacturing in concert with others, which conduct was stated to have been uncovered in a covert police operation between May 2013 and February 2014 (Covert Drug Operation 2);

(d)    the untimely death of a Crown witness who made a statement to the Victoria Police in August 2013 implicating her for conspiring with Mr Lewer and another person in the importation and sale of precursor chemicals;

(e)    a series of offences committed between February 2015 and June 2016 against a family with whom Mr Lewer was in a dispute about a retirement home development next door to his former wife’s residence, in relation to which property Mr Lewer is stated to have had an interest. Some of that offending conduct resulted in Mr Lewer being convicted, including of intentionally damaging property;

(f)    criminal damage to the Beachside fitness complex in Seaford, Victoria, in January 2009;

(g)    a criminal association with a person charged with trafficking a commercial quantity of amphetamine; and

(h)    suspected numerous other criminal associations.

The report states:

Throughout Gary LEWER’s residence in Australia he has forged a powerful reputation in criminal circles as being a violent individual who has the proven behaviour and financial means to inflict harm on any person that provides to police information about his criminal activities.

Gary LEWER possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid detection and therefore is an extremely difficult suspect to investigate. There is no one else above Gary LEWER in his criminal groups; he is the sole person in charge.

It requested the Department give favourable consideration to cancellation of Mr Lewer’s visa and possible deportation.

On 10 October 2019, the Victoria Police sent the second Victoria Police report to the NCCC. This report states that in 1995 Mr Lewer was charged, along with nine other men, with offences of sexual penetration, attempted sexual penetration of, and an indecent act with, two 15 year old girls; and also an offence for making objectionable film. Although the two girls had made statements and there was photographic evidence of the men having sex with one of the girls, the charges were withdrawn on the day of the hearing when the two girls refused to testify. The report says that a matter of “further alarm” is the “common theme” of investigations and court cases against Mr Lewer “being undermined due to witnesses being too fearful to make statements implicating him in crimes”.

The report concludes that this is “additional information of serious bad character and criminal conduct” and further demonstrates that Mr Lewer is “unfit to hold a visa and remain in Australia”.

36    The Minister’s Decision recorded that he “reasonably suspect[s] that Mr Lewer does not pass the character test” (at MD [16]) and then gave consideration to the meaning of national interest at s 501(3)(d) of the Act by reference to Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [86] (French, O’Loughlin and Whitlam JJ), Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 (Heerey, Lindgren and Emmett JJ) and Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [79] (Gaudron J). The Minister concluded at MD  [21]:

I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.

37    The appellant does not contend that the Minister erred in misunderstanding or misstating the meaning of national interest for the purposes of s 501(3) of the Act. Next the Minister divided his reasons into four sections: criminal conduct, criminal associations, risk to the Australian community and other considerations. The primary judge clearly and comprehensively summarised the Minister’s reasons at PJ [42]-[79]. Although lengthy, I adopt his Honour’s summary because the appellant’s primary argument is that it was not reasonably open to the Minister to be satisfied that it is in the national interest to cancel his visa “based on slight material or speculation” and, as further refined in submissions, the argument is that the Minister’s decision is jurisdictionally flawed as “it was neither rational nor reasonable for the Minister positively to find that the appellant had in fact committed any let alone all of the crimes of which he was ‘suspected’… absent convictions”. Those submissions require a detailed understanding of all the material considered by the Minister: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84] (Nettle and Gordon JJ).

38    His Honour’s summary is:

Criminal conduct

In this part of the “national interest” section, the Minister summarised Mr Lewer’s various criminal convictions by reference to the Criminal History Check. The Criminal History Check shows that Mr Lewer has the following “Disclosable Court Outcomes” (which is defined to include charges, court convictions, findings of guilt with no conviction, court appearances, good behaviour bonds or other court orders, pending matters awaiting court hearing, and traffic offence history):

(a)    in 1973 he was fined $250 for a break enter & steal offence;

(b)    in 1974 he was sentenced to imprisonment for four weeks for a driving whilst licence suspended/cancelled/disqualified offence;

(c)    in 1983 he was fined $1,000 for an assault occasioning actual bodily harm offence;

(d)    in 1992 in respect of a charge of possess restricted substance the matter was adjourned and he was given a $500 good behaviour bond and ordered to pay $300 to the court fund;

(e)    in 1993 he was convicted of two counts of possess restricted substance and fined $500 in aggregate, and also convicted of manufacture anabolic steroids and fined $3,000;

(f)    in 1995 he was convicted of possess unregistered firearm, possess/use prohibited firearm/ammunition/article and possess pistol or imitation without licence and was given six months imprisonment on each charge, to be served concurrently. At the same time he was also convicted on four counts of possess restricted substance and fined $3,000 in aggregate;

(g)    in 1997 he was convicted of possess restricted substance and possess prescribed weapon for which he was fined $1,500 in aggregate;

(h)    in 2014 he was convicted of possess cocaine and fined $300; and

(i)    in 2016 he was convicted of without authorisation/excuse enter a private place; intentionally damage property and possess/use/carry prohibited weapon without exemption/approval for which he was fined $2,000 in aggregate.

The Minister noted (at [32]) that the Department was informed by the Australian Taxation Office (ATO) that in October 2019 Mr Lewer was also convicted of six charges of failure to comply with the final notice to lodge income tax returns from 1 July 2010 to 30 June 2016 for which he was fined $800 and ordered to lodge the outstanding returns within 120 days.

The Minister said (at [33]-[34]) that he considered Mr Lewer’s 1995 firearms offence convictions to be serious “as they have the potential to result in harm to a member of the Australian community and are often linked to other criminal activities.” He said that the jail sentences given to Mr Lewer at that time also indicated the seriousness of his offending conduct. The Minister also noted that Mr Lewer committed further firearm offences in 1997 and 2016.

In relation to Mr Lewer’s overall criminal conduct, the Minister said (at [35]) that he took into account that Mr Lewer had been convicted of a range of serious offences, including convictions for violent offending in 1983 and drug related offending in 1992, 1993, 1995, 1997 and 2014. The Minister noted that those offences did not result in custodial sentences, but said that he considered such “violent and drug related offending, particularly drug offences that involve the manufacture of illicit drugs, including anabolic steroids, to be serious due to the harm that flows to the community from this type of offending”.

The Minister concluded (at [36]) that “[o]verall, I find Mr Lewer’s offending to be serious and his recidivism is indicative of his disrespect for Australia’s law”.

Other serious conduct and criminal associations

In this part of the “national interest” section, the Minister’s reasons commence with a summary of the conclusions of the Victoria Police reports as follows (at [37]-[40]):

37.    I have had regard to the Victoria Police intelligence report dated 12 July 2019 and additional police information dated 10 October 2019 that state that Mr LEWER has been the subject of various high level police operations between 1981 and 2017 and that intelligence holdings clearly display a systematic, consistent course of serious conduct including criminal associations, over a sustained period of many years by Mr LEWER.

38.    The intelligence report states that throughout his residence, Mr LEWER has forged a powerful reputation in criminal circles as being a violent individual who has proven behavioural and financial means to inflict harm on any person that provides police with information about his criminal activities.

39.    [The] Police report that he possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid dete[c]tion and is an extremely difficult subject to investigate. The intelligence report states that there is no one else above Mr LEWER in his criminal groups and he is the sole person in charge.

40.    The intelligence report states that Mr LEWER has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises and has criminal associations, as set out below.

The remainder of this part is set out under the following sub-headings, which reflect the various topics addressed in the Victoria Police reports:

  (a)    Covert Drug Operation 1 (17 December 2009 to 8 March 2010);

  (b)    Covert Drug Operation 2 (29 May 2013 to 17 February 2014);

  (c)    Crown witness;

(d)    Investigation into criminal damage, arson and stalking (2 February 2015 to 9 June 2016);

  (e)    Investigation into criminal damage by fire;

  (f)    Child sex allegations – withdrawn;

  (g)    Taxation issues; and

  (h)    Criminal associations.

Covert Drug Operation 1 (17 December 2009 to 8 March 2010)

The Minister noted (at [41]) that the first Victoria Police report states that a covert police operation was carried out between the above dates, in which a police undercover operative purchased $14,000 worth of amphetamines from Mark Lesser, an associate of Mr Lewer. The report states that it was agreed that Mr Lesser would provide 10 ounces of amphetamine for $40,000; and that investigators believed that Mr Lewer handed over 10 ounces of amphetamine to Ian Lesser, but that there was no direct evidence other than circumstances to support that belief. Mark and Ian Lesser were arrested and charged with trafficking a drug of dependence; the $40,000 cash was never recovered, and a further investigation into Mr Lewer did not proceed.

Covert Drug Operation 2 (29 May 2013 to 17 February 2014)

The Minister noted (at [42]-[43]) that the first Victoria Police report states that a covert police operation was carried out between the above dates, to investigate the storage of large quantities of precursor chemicals by a chemical company, Chemcycle Australia Pty Ltd. Investigators suspected that the chemicals were being stored for future use in the manufacture of methylamphetamine. The report states that the investigation established that Mr Lewer had been responsible for the importation of precursor chemicals since approximately 2007 for the purpose of supplying a network of organised crime associates for the manufacture of methylamphetamine.

The Minister noted (at [44]-[46]) that the report states that: Mr Lewer succeeded in that criminal activity by conspiring with Andrew Hutton, sole proprietor of Chemcycle, and his wife, Lisa Hutton; large volumes of precursor chemicals were stored at the Chemcycle premises in Seaford and in shipping containers at other locations; Mr Lewer and Mr Hutton conspired with a number of other identified persons in respect of the storage of the precursor chemicals; the precursor chemicals were stored at various locations so as to minimise any loss or risk if one of the sites was compromised; Mr Hutton imported chemicals under Mr Lewer’s direction; small packages of particular precursor chemicals were placed in small containers and were delivered by Mr Lewer to unidentified criminal associates for $20,000-$100,000; and the profits were shared between Mr Lewer, Mr Hutton and Ms Hutton.

The Minister also noted (at [51]-[53]) that the report states that: the investigations between 29 May 2013 and 19 August 2013 led to the recovery of “unprecedented quantities” of precursor chemicals; in 2013, towards the end of Mr Lewer’s enterprise with the Huttons, Mr Lewer conspired with his nephew, Shaun Cousens, in the importation from China of commercial quantities of border controlled precursor chemicals prescribed under s 301.3(c) of the Criminal Code Act 1995 (Cth); and Mr Lewer and Mr Cousens then conspired with Daniel Justin and Adam Cousens in the storage of border controlled precursor chemicals for use in the manufacture of methylamphetamine.

The Minister noted (at [54]) that the report states that: Mr Hutton, Christopher Frier and Heiko Krueger were charged in connection with precursor chemical seizures; Kenneth Wiggett was interviewed as a conspirator but was not charged due to insufficient evidence; investigators identified Mr Lewer as being directly associated with Mr Hutton and Mr Frier, and he was suspected of also being associated with Mr Wiggett through others; and 2.2 tonnes of a three tonne shipment of nitromethane imported from China by Mr Hutton, under the direction of Mr Lewer, was never recovered.

The Minister said (at [55]-[56]) that the report states that: the investigations of Mr Lewer and Mr Cousens led to the arrest of Mr Cousens on 26 November 2013, who was found in possession of two large metal reaction vessels, a large charcoal filter used in the manufacture of methylamphetamine, and 650 kgs of a precursor chemical; and such an amount of a precursor chemical would convert to 143-250 kgs of methylamphetamine, with a value between $40 and $82 million.

At [57]-[59] the Minister noted that the report states that: post-arrest and seizure investigations established that in June 2012 Mr Cousens introduced himself to a Chinese national, Mr Lei (Eric) Zhang, and that Mr Cousens flew to China on multiple occasions between May 2012 and September 2013 where he was taught how to manufacture a chemical precursor and methylamphetamine; Mr Cousens purchased two shipments of precursor chemicals from Mr Zhang which totalled 2,464 kgs; investigators were only able to seize 650 kgs of these precursor chemicals and the unrecovered chemicals could produce pure amounts of methylamphetamine valued at $110 million to $220 million depending on the manufacturing process; and Mr Lewer and Mr Cousens had the opportunity to make substantial profits whether they sold the chemicals unmanufactured, or after manufacturing them into another precursor chemical, or into methylamphetamine.

The Minister said (at [60]) that the report states that Mr Cousens was charged and that two Chinese co-conspirators, who were held in China, confessed to meeting with him. The Chinese government gave approval for the Chinese nationals to give evidence against Mr Cousens by video-link before the County Court of Victoria. However, on 16 January 2016 the Chinese Ministry of Justice withdrew their approval for the Chinese nationals to give evidence against Mr Cousens and the trial was discontinued.

Crown Witness

The Minister noted (at [62]-[63]) that the first Victoria Police report states that on 27 August 2013 Ms Hutton made a statement to police which implicated her in conspiring with Mr Hutton and Mr Lewer in the importation and sale of precursor chemicals.

Mr Lewer was then charged with possess substance to traffick (manufacture) in a drug of dependence, possess material to traffick (manufacture) in a drug of dependence and possess equipment to traffick (manufacture) in a drug of dependence. He was also charged with other offences relating to the storage and sale of precursor chemicals between May 2013 and August 2013.

The Minister said (at [64]-[65]) that investigators formed the belief that Ms Hutton was at high risk of being killed by Mr Lewer and she was provided with assistance through the Victoria Police Witness Protection Unit. However, on 29 September 2013 she went against police advice for personal family reasons, and she discontinued the police assistance. On 21 February 2014 (although the Minister’s reasons wrongly said 27 August 2014) she was found hanging by the neck and died eight days later. As a result of Ms Hutton’s death the prosecution case against Mr Lewer did not proceed and on 4 March 2014 all charges against him were withdrawn.

Investigation into criminal damage, arson and stalking (2 February 2015 to 9 June 2016)

The Minister noted (at [66]) that the first Victoria Police report states that between the above dates a police investigation was conducted into a series of crimes believed to have been committed by Mr Lewer against the Smith family, who were building a $7-8 million retirement home that threatened to block the views of Mr Lewer’s former spouse’s home, in which he had a financial interest.

He noted (at [67]) that the report states that there was an investigation into an incident at the building site of the proposed retirement home when the engine bay of an excavator was set on fire in the early hours of 2 February 2015. The fire destroyed the excavator valued at $100,000 and caused major disruption to the progress of construction. Mr Lewer and his son were the only persons of interest and prime suspects in the investigation. They were arrested but released without charge due to insufficient evidence.

The Minister said (at [68]) that Mr Lewer and his son were subsequently convicted of criminal damage in relation to the deliberate flooding of the Smith construction site in May 2015. The Minister described this incident (at [31]) where he said that, according to the first Victoria Police report, between 24 and 26 May 2015 Mr Lewer and his son used a post-hole digger to dig a hole adjacent to the property owned by the Smith family. Then they continuously ran water into the hole, causing a landslip that flooded the concrete formwork and earth foundations, causing damage of approximately $19,430 and major disruption to the progress of construction.

The Minister also noted (at [69]-[73]) that the first Victoria Police report states that there were a number of other incidents involving the Smith family, as follows:

(a)    on 29 March 2016 offenders soaked rags with accelerant and shoved them into the PVC piping embedded in the concrete slab foundations at the Smith family construction site and then set them alight. The incident caused significant delays to the construction. Mr Lewer was the only prime suspect but no charges were laid (at [69]);

(b)    on 17 May 2016 offenders destroyed two Smith family motorcars parked in the driveway of a residence they were renting while their home was built. There was a risk of the fire spreading to the residence where Mr and Mrs Smith and their adult daughter lived, but they escaped without injury. Investigators targeted Mr Lewer as the only prime suspect. Investigators also believed Mr Lewer conducted surveillance to identify their temporary rental residence and was linked to investigations into the Smith family’s online social media accounts (at [70]);

(c)    on 7 June 2016, the Smith family’s adult daughter was leaving her place of employment when she identified Mr Lewer driving beside her in congested traffic. She drove back to the work car park and observed him park his car about 100 m away watching her employment building and car park. She drove off in fear and called her father (at [71]); and

(d)    between 24 April 2018 and 23 May 2018 an offender used an unknown projectile to damage large front glass windows at the Smith family home, causing $5,000 in damage. Investigators suspected Mr Lewer but no person was charged (at [73]).

None of these incidents resulted in charges being laid against Mr Lewer.

The Minister also noted (at [72]) that the first Victoria Police report states that: on 8 June 2016 the girlfriend of the Smith family’s adult son received a telephone call at her workplace from a person she believed to be Mr Lewer; the caller threatened to blow up her house, burn her cars and nail her pet dogs to the front door if Mr Smith did not cease the development; the caller made specific references to her being at work at a hairdresser the previous Saturday and alluded to the fact that he had been watching her; investigators were unable to obtain any telecommunications evidence due to the design of the switchboard system at her workplace; and Mr Lewer was charged with stalking but the prosecution case failed and the charges were struck out.

Investigation into criminal damage by fire

The Minister noted (at [74]) that the first Victoria Police report states that: an investigation had been conducted into criminal damage by fire of the Beachside Fitness Complex on 17 January 2009; investigations established that Mr Lewer frequented the gym and that the operator of the gym, Andrew Thompson, reluctantly allowed him and his associates to use it without paying membership fees because he feared retribution; Mr Thompson became aware that Mr Lewer was selling steroids and other drugs at the gym car park and was having a sexual relationship with his girlfriend; on 16 January 2009 Mr Thompson told Mr Lewer that he was no longer welcome at the gym, and Mr Lewer’s then spouse spoke to Mr Thompson and suggested he should reconsider that decision; on the night of 16 January 2009 the gym was destroyed by fire; Mr Lewer was the only prime suspect in the investigation; two identified witnesses would not provide statements for fear of retribution by Mr Lewer; and no charges were laid.

Child sex allegations - withdrawn

The Minister noted (at [75]) that the second Victoria Police report states that in 1995 Mr Lewer was charged with two counts of sexual penetration of a person aged between 10-16 years old, one count of attempted sexual penetration of a person between 10-16 years old, one count of indecent act with a child under 16 and one count of make objectionable film.

The Minister said the following (at [76]):

The charges were laid in relation to an incident that occurred in January 1995 where two 15 year old female victims were allegedly involved with Mr LEWER and nine other accused men, including his associates Ian lesser and Mark Lesser...Photographs were seized of the men allegedly having sex with one of the victims. Both victims made statements against all the accused and given the photographic evidence, the prosecution case was considered strong. On the commencement of the court proceedings at the Magistrates Court of Victoria on 27 November 1995, unexpectedly both victims refused to give evidence against all the accused and as a result, all sexual offence charges were withdrawn.

Taxation issues

The Minister noted (at [77]-[78]) that the first Victoria Police report states that: “long held intelligence holdings” reveal that Mr Lewer has no known lawful means of income, has concealed assets and has “amassed substantial hidden wealth from criminal drug and other activity”; he has purchased two multimillion dollar properties, one of which he resides in, and the other of which his former spouse resides in; both homes are linked to fake companies, a fictitious person named Daniel James and a solicitor, Mr John Voitin; and although both homes are stated to have been purchased by Mr Lewer through criminal proceeds, both he and his former spouse are merely occupants with no lawful ownership.

Criminal associations

The Minister noted that (at [79]) the first Victoria Police report states that Mr Lewer had associated and continued to associate with people who have been convicted of criminal offences or are known to police to be involved in serious criminal conduct, including that:

(a)    in 1999, Mr Lewer associated with Sonny Schmidt (now deceased) who was convicted of importing a prohibited drug and sentenced to three years imprisonment, and who had an association with Tony Mokbel, who was also linked with drug importation (at [80]-[81]);

(b)    Mr Lewer has strong connections with the Cavuoto family who are linked to several high-level criminal identities in South Australia, although they have a limited criminal history themselves. It states that Mr Lewer is known to drive and hide a silver 2003 Aston Martin that is registered to a member of the Cavuoto family (at [83]);

(c)    in late 2011 and 2012 Yasmin Kasumovic travelled from South Australia to meet with an unidentified man to obtain precursor chemicals (nitroethane and nitromethane) and returned to South Australia the following day. The Minister said that the report states that “given the connections between Mr Lewer, the Cavuoto family and the Ka[s]umovic family, the unrecovered importation of 2200 litres of nitromethane...the approximate time frame and the nitroethane/nitromethane similarities, investigators suspect that Mr Lewer was the unidentified male in Victoria that met Yasmin Kasumovic” (at [84]-[85]);

(d)    Mr Lewer’s son, Brayden Lewer, has convictions including contravene community correction order, criminal damage, threat to inflict serious injury, burglary, theft and bail offences. It states that he lives with his mother, Mr Lewer’s former spouse, Kathryn MacDonald and has no income other than the support of his mother (at [86]);

(e)    Ms MacDonald has convictions for weapon and drug-related offences. She has no source of income other than the support of Mr Lewer who pays her $1,000 cash a week (at [87]);

(f)    Mr Lewer’s nephew, Mr Cousens, remains Mr Lewer’s close and loyal associate. His prior convictions include possess handgun and possess a silencer. His asserted “prior involvements” include import a commercial quantity of border control precursor, pre traffick commercial quantity of border controlled precursor, possess substance to manufacture drug of dependence, possess equipment to manufacture drug of dependence (at [88]);

(g)    during a covert drug operation on 7 December 2018, Mr Wiggett was intercepted along the Hume Highway and was found to be in possession of 21 kgs of amphetamine. On 9 May 2019 investigators received information that, whilst in prison on remand, Mr Wiggett attempted to convey a message to Mr Lewer saying “for Gary not to worry about his income stream, it will be business as usual. That (Wiggett) was expecting and willing to do a 6 year stretch. That no names were to be used, coded nicknames only as (Wiggett) said a detective [identified by name] who investigated him years ago may still be watching things. Wiggett said that ‘he believed that detective did not know his association with Lewer after Wiggett was interview[ed] by that detective some years ago’” (at [90]-[91]);

(h)    Mr Justin remains a close and loyal associate of Mr Lewer. He has convictions including traffick drug of dependence commercial quantity, traffick cannabis, cultivate narcotic plant possess cannabis, assault police, resist emergency worker, road traffic offences, obtain property by deception, make and use false document, indecent assault and rape (at [92]);

(i)    Ian Lesser remains a close associate and loyal [sic] of Mr Lewer. He has convictions including possess methylamphetamine, possess cannabis, sexual penetration of a child under 16, traffick drug of dependence, possess heroin, use drug of dependence, import prohibited imports into Australia and handle stolen goods. He has served several substantial terms of imprisonment and is a registered sex offender. The report states that his “prior involvements” include traffick cocaine, traffick methylamphetamine, possess heroin, possess cannabis, deal proceeds of crime, possess drug of dependence, traffick drug of dependence large quantity, traffick ecstasy and assault occasioning actual bodily harm (at [93]);

(j)    Mark Lesser has convictions including traffick, possess and use amphetamine, possess and use cannabis, possess and use ecstasy, indecent assault, handle stolen goods and traffick other drug of dependence. He has served several substantial terms of imprisonment and his involvement in the “drug ventures” was established by Covert Drug Operation 1 (at [94]);

(k)    Zoltean Pastean’s association with Mr Lewer was established by Covert Drug Operation 2. He has convictions including solicit/invite person to prostitute, traffick heroin, traffick amphetamine, possess heroin, possess amphetamine, possess cannabis. The report states that his “prior involvements” include possess testosterone, possess drug of dependence, possess schedule 4 poison and possess nandrolone (at [95]); and

(l)    Mr Lewer associated with Mr Voitin. An article in The Age newspaper on 31 July 2019 described Mr Voitin as a “bikie lawyer” and said that a suspicious fire had razed his Bellarine Peninsula home. The article also said that Mr Voitin was due to face a committal hearing on 5 August 2019 on charges of false accounting after a “bikie taskforce police” raided his former business in March 2018 as part of a major investigation into alleged money laundering on behalf of the Comanchero motorcycle gang (at [96]).

The part of the Minister’s reasons titled “Other serious conduct and criminal associations” concluded as follows (at [97]):

In light of this information, whilst I acknowledge that Mr LEWER has not been convicted of offences linked to the aforementioned covert operations, I am satisfied that police intelligence holdings demonstrate that Mr LEWER has engaged in other serious conduct, through his involvement in sophisticated drug operations and violent conduct, and through his significant criminal associations. I have had regard to the intelligence that Mr LEWER is at the top of the hierarchy in his criminal groups. Overall, I find that Mr LEWER has engaged in other serious conduct.

Risk to the Australian community

In this part of the “national interest” section, the Minister said (at [99]) that he had taken into account that despite receiving sentences of imprisonment for firearm offences in 1995, Mr Lewer was convicted of further firearm offences in 1997 and 2016, which indicated that imprisonment had not deterred him from reoffending. The Minister noted that the ACIC report on illicit firearms said, amongst other things, that the illicit movement, trafficking and use of firearms is a serious national threat; that the demand for and supply of illicit firearms are driven by a range of entities from organised crime groups to low level individual criminals; and that the illicit firearms market is driven by outlaw motorcycle gangs, Middle Eastern organised crime groups and other groups engaged in trafficking illicit commodities such as drugs (at [100]-[102]).

The Minister said (at [104]) that he had taken into account that Mr Lewer’s criminal history shows that he has been convicted of other serious offending including “violent and drug offending”. In relation to his drug offending, he noted that Mr Lewer was convicted of manufacturing anabolic steroids in 1993 and possession of illicit substances in 1992, 1993, 1995, 1997 and 2014.

The Minister said (at [105]) that while Victoria Police believed that Mr Lewer was involved in sophisticated criminal drug importation and manufacturing schemes, he had not been convicted of any such offences. He said:

I note the police intelligence report states that Mr LEWER has been a primary suspect in multiple covert operations revealing sophisticated criminal drug importation and manufacturing enterprises that would have yielded substantial profits to Mr LEWER and his criminal associates. Also, that he has successfully avoided criminal convictions on a number of occasions, noting that multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died. I also note from the report that Mr LEWER is said to be the sole person responsible in his criminal groups and that he ‘possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid dete[c]tion and is an extremely difficult subject to investigate’.

The Minister also said (at [107]) that he had taken into account that Mr Lewer’s criminal record is “limited” to the extent that he had received (only) two custodial sentences, and the majority of his offending had resulted in fines and a good behaviour bond. However, the Minister also had regard to the first Victoria Police report which noted the suspected criminal damage, arson and stalking by Mr Lewer in relation to his opposition to the Smith family’s property development, and that Mr Lewer had been convicted of criminal damage in relation to the incident in May 2015.

At [109] the Minister noted that the first Victoria Police report states that Mr Lewer had amassed substantial wealth despite not having a lawful means of income, and that he had been charged with failing to furnish tax returns over a period of six years. The Minister found that financial crimes are often linked to criminal activity, as indicated in the police report (at [110]).

The Minister said (at [111]-[114]) said [sic] that he had regard to the Australian Government’s recognition that the activities of criminal organisations are an issue of national concern, which “adversely affects the Australian community, economy, government and way of life.” He noted that the ACIC Facts Sheet in the materials said that “organised crime groups in Australia pose a high threat to the Australian community and way of life, and engineer much of Australia’s serious crime.” He said that he had taken into account those matters, which reiterated the concerns expressed in the first Victoria Police report. The Minister found that there is a significant threat posed by criminal organisations and their members and said that he was mindful of “the significant resources required to protect the community from criminal organisations and the resultant financial cost which is borne by the community to prevent and disrupt criminal activity.”

At [115]-[121], the Minister said the following:

115.    I have taken into account that in the intelligence report dated 12 July 2019, Victoria Police state:

‘...Victoria Police intelligence holdings clearly displays a systematic, consistent course of criminal association and serious criminal conduct over a sustained period of many years by Gary LEWER. The material in its totality exceeds mere coincidence that Gary LEWER has been the subject of various high-level Police Operations between 1981 and 2017. He has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises that has caused and had the potential to cause, if not disrupted by police, unquantified harm to the Australian community. It also demonstrates serious behavioural criminal characteristics of Gary LEWER that are in direct conflict with the privilege and responsibilities of being the holder of a visa to remain in Australia.’

116.    I have also taken into account that the intelligence report states that intelligence holdings held by Victoria Police, the Australian Criminal Intelligence Commission and the Independent Broad-Based Anti-Corruption Commission indicate that Mr LEWER has been identified as a security threat against a serving police officer. I consider this conduct is serious and poses a risk to both the police officer and the community, who relies on the police force to maintain order and protect the community from criminal activities.

117.    I have taken into account that the intelligence report states that Mr LEWER is the sole person in charge in his criminal groups, that he has engaged in serious criminal conduct through his involvement in the sophisticated criminal drug trade and manufacturing enterprises, his violent and threatening conduct, including stalking, arson and property damage, and through his criminal associations.

118.    In light of Mr LEWER’s criminal history and the magnitude of police intelligence over an extended period of time, 1981 to 2017, notwithstanding the absence of convictions in relation to the majority of the conduct outlined in the report, overall I find that Mr LEWER has engaged in serious criminal and other conduct.

119.    I consider Mr LEWER’s criminal and other serious conduct demonstrates that dispositions of a custodial sentence have not deterred him from engaging in such conduct, I consider that Mr LEWER’s propensity to engage in other serious conduct including by heading criminal groups and his criminal associations, also increases his risk of engaging in further criminal conduct involving drug offending, weapons, violence or threats of violence, stalking or intimidating behaviour, or criminal damage.

120.    I have, [sic] also had regard to the concerns expressed by Victoria police in their intelligence report dated 12 July 2019, that Mr LEWER’s activities, particularly in relation to the drug importation and manufacturing enterprises, place the Australian community at significant risk. I hold strong reservations regarding Mr LEWER’s future prospects of maintaining good conduct.

121.    I find that Mr LEWER poses a risk to the Australian community through reoffending or further engaging in other serious conduct including his said position as the sole person in charge of his criminal groups and his associations with offenders who have been convicted of, or are known by police for, serious offending.

The Minister concluded (at [122]) that “there is an ongoing risk that Mr Lewer will reoffend or engage in other serious conduct.” The Minister continued (at [123]-[125]) as follows:

123.    I find that if Mr LEWER were to engage in criminal or other serious conduct involving drug offending, weapons, violence or threats of violence, stalking or intimidating behaviour, or criminal damage, members of the community will be put at risk of serious physical or psychological harm or financial harm.

124.    Further, if Mr LEWER engages in other serious conduct by his position as the sole person in charge of his criminal groups and his continuing associations with offenders, who have been convicted of or are known by police for serious offending, this will support as a whole, the continuing risk posed to the community by criminal organisations through their various criminal activities.

125.    In sum, Mr LEWER’s criminal history and his other serious conduct as outlined above, and my finding regarding the ongoing risk to the Australian community posed by Mr LEWER’s continued presence, raised concerns that were of such a serious nature that I concluded that the use of my discretionary power to cancel Mr LEWER’s Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa, without prior notice, is in the national interest.

Other considerations

In this section (at [126]-[138]), the Minister considered whether there were any other relevant considerations that might support a decision not to cancel Mr Lewer’s visa despite the Minister’s satisfaction that it is in the national interest to do so. It involved consideration of the best interests of any minor children; the expectations of the Australian community; the strength, nature and duration of Mr Lewer’s ties to Australia; and the extent of any impediments Mr Lewer will face if removed to the United Kingdom. Mr Lewer did not take issue with this part of the Minister’s reasons and it is unnecessary to set it out.

(Original Emphasis.)

39    Save for two references to firearms offences in 1997 and 2016, the appellant does not submit that the Minister misunderstood the factual material that was before him. Nor does the appellant submit that this summary is inaccurate or incomplete.

The reasons of the primary judge

40    The appellant’s case before the primary judge, to the extent now relevant, rested on two primary arguments. One, the Minister’s findings of serious criminal conduct and criminal association were not supported by evidence and were based on “little more than suspicion and innuendo” (PJ [4]). Counsel for the appellant conceded that this argument was one of “no evidence” to support the Minister’s findings. The primary judge summarised the argument at PJ [94]:

Mr Lewer submits, and it is uncontentious, that if an administrative decision-maker makes a finding, which finding is a critical step towards the ultimate conclusion, and there is no evidence that is relevant and logically probative of that finding, that may constitute jurisdictional error in reaching the ultimate conclusion: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357 per Mason CJ with Brennan J agreeing and at 367-368 per Deane J. He argues that the Minister’s consideration and exercise of the power to cancel a visa, which depends on an assessment and findings of fact for its exercise, requires that there be probative material on which those findings can be made; and the findings cannot properly be based on speculation or guesswork or on assumptions based on material incapable of supporting those assumptions, citing Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at [107] and [111] per Mortimer J, [113] per Moshinsky J and [131]-[132] per Wheelahan J.

41    The primary judge reasoned that to succeed on this argument it is insufficient to demonstrate that there was no evidence before the Minister for each individual finding of fact: “for the decision to be outside power the relevant finding must be one that is (at least) a ‘critical step’ or ‘crucial’ in making the decision”: PJ [122] by reference to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] (Mansfield, Selway and Bennett JJ); Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 at [23] (Marshall, North and Flick JJ) and SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [57]-[59] (Madgwick J). His Honour continued and explained his parenthetic qualification:

I say “at least” because other decisions have said that a finding of fact made with no evidence will amount to jurisdictional error only where the relevant finding is a precondition to the exercise of jurisdiction: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39] per Gummow and Hayne JJ; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; 154 FCR 302 at [19] per Heerey J; SZAPC at [47], [57].

42    At PJ [123], his Honour proceeded favourably to the appellant’s arguments, stating:

….it is unnecessary to express a view as to whether Mr Lewer is required to show that each impugned finding is a precondition to the exercise of jurisdiction, or whether it is enough for him to show that each finding is a critical step in the cancellation decision. Taking the approach most favourable to Mr Lewer, in various different ways he failed to establish that any of the findings for which he argues there was no evidence were a critical step in the cancellation decision.

43    Despite that approach, his Honour was unpersuaded by the appellant’s contentions which ranged across the absence of primary supporting documents (PJ [125]), the absence of convictions for “the great majority of the conduct alleged” in the Victoria Police reports (PJ [126]) and that the Minister “was not entitled to rely on assertions of suspicion or belief held by police investigators to make findings” (PJ [141]). The appellant does not before this Court assert that the primary judge erred in rejecting that case.

44    The second argument made to the primary judge as expressed in ground 4 of the appellant’s originating application was:

The unsatisfactory nature of the allegations made by Victoria Police resulted in the Minister reaching a decision that was legally unreasonable.

45    In rejecting this ground, the primary judge reasoned that the issue before him was not whether as a fact, cancellation of the visa was in the national interest, but “whether the Minister was satisfied on a rational or legally reasonable basis that doing so was in the national interest”: PJ [148] by reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26]-[29] (French CJ), at [63] (Hayne, Kiefel and Bell JJ) and at [88] (Gageler J).

46    His Honour was unpersuaded that the appellant’s arguments satisfied the high bar for a finding of irrationality, illogicality or legal unreasonableness, even though another decision-maker acting reasonably may have concluded that the material was insufficiently probative to support the findings made by the Minister. At PJ [154]-[161] his Honour, through that lens, individually considered and rejected the submissions of the appellant relating to the various findings that he had engaged in serious criminal or other conduct (absent conviction), that some charges for which he had been investigated by Victoria Police were subsequently withdrawn and that he had not further offended since the grant of his last visa in 2017.

The appeal to this Court

47    Before this Court, the appellant’s primary argument is that the Minister’s findings were not reasonably open in that the quality of the material that the Minister considered was insufficient to support the findings and the primary judge erred in failing to so find. A secondary argument is that the Minister made a material error in finding that the appellant had been convicted of firearms offences in 1997 and 2016 when, correctly understood, the appellant’s criminal history sheet did not disclose the commission of offences of that particular character.

48     The appellant’s grounds as set out in his amended notice of appeal are:

1.    The primary judge erred in failing to find that the decision of the Respondent (the Minister) was affected by jurisdictional error, on the basis that the Minister erred in purporting to be satisfied that it was in the “national interest” to cancel the Appellant’s visa on the basis of findings that were not reasonably open.

Particulars

a.    In purporting to make his assessment of the “national interest”, the Minister made a positive finding that the Appellant “has engaged in other serious conduct”.

b.    This “other serious conduct” to which the Minister referred was all of that alleged in: (a) a report from Victoria Police to the Department of Home Affairs dated 12 July 2019 with the subject “Request for Favourable Consideration of Visa Cancellation – Gary Lewer”; and (b) a further report from Victoria Police to the Department of Home Affairs dated 10 October 2019 with the subject “Additional Information for Favourable Consideration of Visa Cancellation of Gary Lewer” (together, the Victoria Police reports).

c.    The Minister, as administrative decision-maker, is not precluded from making a finding that a person has engaged in conduct that constitutes a criminal offence, in the absence of a conviction. However, there are principles that bear on the quality of the evidence that is required to support a positive finding that criminal conduct has been committed, and on the approach that must be adopted in deciding whether to make such a finding.

d.    In particular, but without limitation, this Court has held that “in the absence of prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. Consistently, but without limitation, Colvin J in HZCP v Minister for Immigration and Border Protection (2019) 274 FCR 121 at [184], [186], held that: “in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others”; that the weight to be afforded particular material depends on matters including “the seriousness of the allegation the decision-maker is asked to accept” and “the gravity of the consequences that may flow from making the finding”; and “[i]f there is no conviction and a party makes a claim that a crime has been committed by another then due ‘weight is to be given to the presumption of innocence and exactness of proof is required”.

e.    In various respects, the material in the Victoria Police reports was not capable of supporting the positive finding that the Minister made that the Appellant had engaged in all of the “other serious conduct” alleged therein, including in light of the principles identified above. In particular, but without limitation, it was not reasonably open to the Minister positively to find that the Appellant had engaged in the serious criminal conduct alleged therein in circumstances where:

i.    various allegations of criminal conduct were based on: “suspicions” (1st Victoria Police report at [19], [23], [28(f)], [49(a)], [51(a)], [52(a)], [55(a)], [61]); 2nd Victoria Police report at [5]-[7]); and “belief”, for which there was “no direct evidence” (2nd Victoria Police report at [44(b)(i)], [44(d)(i)]); and

ii.    where the Minister did not put the matters in the Victoria Police reports to the Appellant for his response and therefore precluded himself from considering any such response, also did not consider or give any weight to the presumption of innocence.

f.    Further to the point at particular (e)(i) above, and contrary to the finding of the primary judge (J [142]), read the Minister’s reasons fairly, the Minister did make positive findings to the effect that the Appellant had engaged in criminal conduct based on unsubstantiated “suspicions” and “beliefs” of Victoria Police.

g.    Further, it was not reasonably open to the Minister positively to find that the Appellant had engaged in the serious criminal conduct therein where the views of Victoria Police set out in the reports were expressly based on circular and self-serving reasoning, being that the Appellant “is extremely disciplined in his criminal conduct to avoid detection” and is “therefore an extremely difficult suspect to investigate” (1st Victoria Police report at [66]).

h.    The primary judge correctly found that: (i) the Minister had “relied upon the Victoria Police reports in making the cancellation decision” (J [93]); (ii) “the Minister was principally concerned with Victoria Police’s intelligence holdings about Mr Lewer which were stated to ‘display a systematic, consistent course of serious conduct including criminal associations, over a sustained period of many years” (J [132]). Including in light of those correct findings, the primary judge erred insofar as he suggested that any legal defects in the Minister’s positive findings as to the alleged “serious conduct” in the Victoria Police reports were immaterial, because the limited number of convictions recorded against the Appellant (Minister’s Reasons at [23]-[35]) provided independent support for the Minister’s assessment of the “national interest” (cf. J [156]).

i.    The primary judge erred by failing to find that the Minister had made a material legal error in finding that the appellant had been convicted of firearms offences in 1997 and 2016 (Minister’s Reasons at [33], see also [99]), and attributing significance to that (Minister’s Reasons at [99]-103]) (cf. J [129]-[132]).

49    The appellant’s submissions may be shortly stated. Accepting that it was open to the Minister to determine that he had engaged in criminal and other serious conduct for which he had not been convicted as a step in his reasoning process (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ)), the argument focused on the quality of the material considered by the Minister. As variously contended by senior counsel in oral submissions: the Minister “erred in bridging the gulf between suspicion and a positive finding of criminality”, the “material [was] slight in the sense it was unlikely to provide a satisfactory basis” for the findings and ultimately, accepting the content of the police reports:

The question then becomes – informed by the principles that we’ve identified – can the Minister not only rationally but reasonably move from the assertion of suspicions by Vic Pol [sic] to positive findings?

50    Senior counsel for the Minister emphasised that in accordance with s 501(3) of the Act, the Minister need only be satisfied that cancellation of the visa is in the national interest and the difficulty for the appellant lies in the high threshold requirement for a finding that the Minister’s decision was legally illogical, irrational or unreasonable. In the Minister’s submission the analysis is confined in this case to whether the findings were open “in the sense that it is not shown that no logical or rational or reasonable person could ever reach the same findings on the same material as that before the decision-maker”. Counsel cautioned against undertaking a wider inquiry as to the sufficiency or adequacy of the material before the Minister: properly understood, the function of this Court is limited to whether the material was “rationally capable of supporting the relevant findings”. The characterisation by the appellant that the material was of slight probative value is distracting and erroneous. Read as a whole, the material before the Minister is entirely supportive of the inferences that the Minister drew and the conclusions reached.

Consideration

51    The appellant’s attempt to distil a principle which invites analysis of the quality of the material that the Minister considered so as to accept his contention that it was insufficient to support the Minister’s satisfaction that it is in the national interest to cancel his visa, in my view, finds no support in cases said to be analogous and is inconsistent with Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992. In that appeal, in the context of a claim for a protection visa and the requirement at s 36(2)(a) of the Act (as it was) that the Minister be satisfied that the applicant is a non-citizen to whom Australia has protection obligations under the Refugees Convention, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said at [38]:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.

(Footnote omitted.)

52    The appellant accepts that the Minister was entitled to find that he had engaged in criminal conduct (despite conviction) but argues that by analogy “there are principles that bear on the quality of evidence required to support a positive finding of criminality absent conviction.” The submissions commence with this Court’s decision in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (Baker) (Burchett, Branson and Tamberlin JJ). Section 501 of the Act (as it was) enabled the Minister to refuse to grant a visa to a person if satisfied, having regard to the person’s past criminal conduct or general conduct, that the person is not of good character. The applicant had a long history of convictions for offences of dishonesty. The Minister exercised the power and refused to grant a visa, which decision the Administrative Appeals Tribunal (Tribunal) affirmed. On appeal to a single judge, the Tribunal’s decision was set aside. This Court allowed the appeal to it. The appellant emphasises a part of the reasons at 194:

At the outset, we should say that we agree with his Honour that the words of the statute “past criminal conduct” cannot be read down to refer only to past conduct the subject of criminal convictions. As his Honour pointed out, the context of s 501 includes s 506, subs 3(b) of which refers to “any criminal convictions in Australia or a foreign country”. Similarly, the section of the same Act considered in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 referred to “a person who had been convicted of a crime” (emphasis added). We think it is clear that, by contrast with these provisions, s 501(2)(a) is concerned with a person's conduct - either “general conduct” or conduct of a more particular kind, described as “criminal conduct”. It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B. Robertson, “Criminal Allegations in Civil Cases” (1991) 107 LQR 194.

53    The reasoning is not analogous. It was not a case of jurisdictional error, being an appeal from the Tribunal on a question of law. And I do not read this passage as laying down some principle of general application where, as in this case, the satisfaction of the Minister as a precondition to the exercise of the power is not constrained by the fact of past criminal conduct evidenced by conviction. As a general counsel of prudence, past criminal conduct is usually established by the fact of conviction, but that is not to say that evidence of conviction or evidence of conduct that is criminal to the criminal standard is necessary before it is open to the Minister to be satisfied that cancellation of a visa is in the national interest. In this case, what is clear from a fair reading of the whole of the Minister’s reasons is that he reached the statutory state of satisfaction by drawing inferences that were open from material provided by Victoria Police which, on its face, was strongly probative of the Minister’s finding at [118] that the appellant’s:

…criminal history and the magnitude of police intelligence over an extended period of time, 1981 to 2017, notwithstanding the absence of convictions in relation to the majority of the conduct outlined in the report, overall I find that Mr LEWER has engaged in serious criminal and other conduct which conclusion was not one reached on slight material.

54    Although Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774; (2004) 83 ALD 411 (Lee J) was an application for prerogative relief pursuant to s 39B of the Judiciary Act 1903 (Cth) for jurisdictional error, which challenged a decision of the Minister not to grant a visa on character grounds pursuant to s 501(2)(a) (as it was), it does not assist the appellant’s argument for the same reason that Baker does not. And in any event, the statement by Lee J at [62] by reference to Baker that “[i]n the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available” is a qualified one that must not be taken out of its factual context. The application for relief succeeded because the Minister failed to identify relevant findings of fact in circumstances where, his Honour concluded, the relatively benign criminal history: “required closer analysis than the Minister appeared to give [it] if a finding of fact was to be made that the applicant was a person not of good character”: [68]. At the risk of stating the obvious, the Ministerial satisfaction required by s 501(3)(d) is evaluative and fact sensitive.

55    FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 (French CJ, Hayne, Crennan, Bell and Gageler JJ) (FTZK), does not assist the appellant’s quality of evidence submission. A foreign national who claimed to be a person to whom Australia owed protection obligations pursuant to the Refugees Convention, as it then operated in accordance with the Act, applied unsuccessfully for the grant of a protection visa pursuant to s 36. Article 1F excludes from the operation of the Refugees Convention “any person with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. The applicant was suspected by the prosecuting authorities in the Peoples Republic of China of involvement in the murder of a child. A delegate of the Minister concluded that the applicant was excluded, which decision was upheld on review by the Tribunal. The applicant purported to appeal to this Court as on an appeal from the Tribunal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That was incompetent, as the privative clause decision provisions of s 474 of the Act applied. The applicant then sought to amend the proceeding so as to invoke the Court’s jurisdiction pursuant to s 476A(1)(b). A majority of the Court held the appeal incompetent and refused leave to amend on the basis that the asserted jurisdictional error allegation was bound to fail: FTZK v Minister for Immigration and Citizenship (2013) 211 FCR 158; [2013] FCAFC 44 (Gray and Dodds-Streeton JJ, Kerr J dissenting).

56    The majority relevantly reasoned that although the Tribunal did not express in its reasons how certain conduct of the applicant (well after commission of the alleged offence) was relevant to its conclusion that there were serious reasons for considering that the applicant was involved in the murder, their Honours rejected the argument that the Tribunal relied on matters that did not have probative weight on that question and inferred that the Tribunal must have regarded those matters as demonstrating a consciousness of guilt: [19], [44]-[49].

57    Justice Kerr in dissent was not prepared to draw that inference. In his Honour’s view, if that had been the reasoning pathway one would have expected the Tribunal to say so and to reason responsively: [153], [156]. His Honour would have quashed the Tribunal’s decision and ordered remittal.

58    The High Court in FTZK granted special leave and allowed the appeal. The Tribunal committed jurisdictional error in that failed “to ask itself the question which Art 1F(b) required – namely, whether there was a rational connection between the material before it and any inference that the appellant had committed a serious non-political crime in China”: [6], per French CJ and Gageler J. The appellant relies on a portion of the reasoning of their Honours at [14] and [16] in support of the submission: “even where an administrative decision-maker need only have serious reasons for considering that a person has committed serious crime – i.e., falling short of positive finding that the person has committed the crime – meticulous investigation and solid grounds are required, and the decision-maker must pay close attention to the probative relevance of the material”. With respect, that submission takes the passages relied upon out of context and omits paragraph [15]. Their Honours’ complete reasoning that is presently relevant at [14]-[16] is:

The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference. There are a variety of mechanisms, administrative and judicial, by which a receiving State may determine whether that threshold is reached. Weinberg J, in a careful consideration of the construction of Art 1F(b) in Arquita v Minister for Immigration and Multicultural Affairs, stated the position accurately when he said:

It is sufficient ... if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.

Baroness Hale of Richmond JSC and Lord Dyson MR observed in Al-Sirri v Home Secretary:

“It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable.”

Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.

The criterion for exclusion from the application of the Convention, defined by Art 1F(b), is not to be equated to a standard of proof. Standards of proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences, including civil liabilities and criminal sanctions. They are not substitutes for the application of the ordinary words of Art 1F(b). There is a degree of risk in the use which has been made of them as parameters defining necessary or sufficient conditions for the application of the Article. It has been held that satisfaction on the balance of probabilities that an applicant for refuge committed a serious non-political crime may be necessary to engage Art 1F(b). It has also been held that satisfaction that it is more likely than not that an applicant for refuge has not committed the alleged crime is sufficient to support a conclusion that Art 1F(b) is not engaged. The proposition that a state of satisfaction beyond reasonable doubt that an applicant for refuge has committed the alleged crime is sufficient to enliven Art 1F(b) may be uncontroversial. However, if there is material strong enough to support such a conclusion it is probably unnecessary to go further than a finding that the material constitutes serious reasons for considering that the alleged crime has been committed. The risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the Article and may result in the bar being placed too high or too low, according to the circumstances.

It should be said, however, that the absence of a requirement under Art 1F(b) for a positive finding that the applicant has committed a serious non-political crime does not mean that the criterion requires anything less than “meticulous investigation and solid grounds”. In particular, and relevant to the present case, the decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the Article poses.

(Footnotes omitted.)

59    Section 501(3)(d) of the Act does not condition the exercise of the Ministerial power on satisfaction that a person has committed an offence. The Minister’s finding that the appellant “has engaged in serious criminal conduct” (MD [117]), “notwithstanding the absence of convictions in relation to the majority of the conduct” (MD [118]) outlined in the Victoria Police reports was based on probative material. It was extensive. The circumstantial association of the appellant in the commission of many serious criminal offences is set out in detail, as summarised and found by the Minister and which I have extracted above.

60    The Act does not impose a standard of proof that must be attained before it is open to the Minister to make such findings. Reading the Minister’s decision as a whole it is clear that he gave careful consideration to the content of the intelligence reports, was cognisant of the substantial information contained therein and drew inferences that were open. The Minister did “pay close attention to the probative relevance of the material” (FTZK, [16]).

61    At issue in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202, was whether the Tribunal committed jurisdictional error in not considering evidence inconsistent with the basis on which the appellant had been convicted and sentenced in the District Court of Western Australia, which conviction resulted in the mandatory cancellation of his visa. A delegate of the Minister declined to revoke the cancellation pursuant to s 501CA(4) of the Act. A majority of this Court (McKerracher and Colvin JJ, Derrington J dissenting) concluded that “another reason” to cancel the revocation decision pursuant to s 501CA(4)(b) does not permit the decision-maker to make findings of fact inconsistent with the conviction and sentence, or to “go behind” the conviction: [77]-[78] (McKerracher J) and [182], [194] (Colvin J). The appellant emphasises a component of the reasons of Colvin J at [184]: “an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court” and then relies upon selected sentences at [186] as supporting his general argument that the material before the Minister was of insufficient weight to found the conclusion that he had engaged in serious criminal activity, despite the absence of conviction.

62    Justice Colvin distinguished administrative power, the exercise of which depends on the fact of conviction for an offence (a jurisdictional prerequisite) (at [181]) from the exercise of other types of power (at [183]) where:

the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of the decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence

63    In the latter category, the decision-maker may reach a conclusion which is contrary to the factual foundation for the conviction or sentence, which his Honour was careful to qualify in the final sentence of this paragraph:

However, it is unlikely that an administrative decision-maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of the factual matters that provide the necessary foundation for the conviction or sentence.

64    Then (at [184] and [185]) his Honour identified two further qualifications. One, an administrative decision-maker does not find facts in the same way or on the same evidence as a court and nor is it bound to reason from the material that is before it in the same way. The other, that adherence to the rules of evidence is not required. It is in this context that one should understand the whole of the reasons (at [186]) that the appellant emphasises:

Nevertheless, in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, his Honour captured its essence by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’. If there is no conviction and a party makes a claim that a crime has been committed by another then due 'weight is to be given to the presumption of innocence and exactness of proof is expected'. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.

65    As correctly submitted for the Minister, the no conviction reasoning of his Honour in that passage is obiter. Moreover, the Minister’s decision to cancel the appellant’s visa was not made upon a claim by a party that a crime had been committed. The Minister unilaterally made the cancellation decision, the rules of natural justice did not apply and he did so because he concluded that cancellation is in the national interest which is the foundational justification for the exercise of the power. That is a very different decision-making paradigm from an inter partes claim that a person has committed crimes for which they have not been charged and convicted.

66    Next, there is CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; (2019) 163 ALD 101 (CVN17) where Kenny J upheld a jurisdictional error contention that the Tribunal took into account police reports about the conduct of the applicant when he was a child who, by reason of age, was statutorily incapable of committing any criminal offence. As a nine year old, he was below the age of criminal responsibility of 10 years set by s 29 of the Criminal Code Act 1899 (Qld). The reports concerned the applicant’s involvement in conduct that would otherwise have amounted to burglary and common assault. The Tribunal characterised these incidents as “uncharged acts” and her Honour found that the Tribunal had regard to each incident “as instances of offending, or transgressions of the criminal law, even though the events had not, and could not, be the subject of a charge and criminal proceeding”: [80].

67    The appellant relies upon her Honour’s reasoning at [98]:

Further, the alleged incidents of “Burglary with breaking” and “Common Assault” were never contested before a court: no plea was ever entered, no witnesses were called, and no conviction was recorded. The material on which the Tribunal relied in relation to these incidents was apparently drawn from police service files from 2003. ST1 and ST2 were documents entitled the “Solicitors Office Report Details”, which appeared to contain police reports or records of some description. The applicant suggested, and the Minister did not deny, that the documents were obtained by the Minister’s legal representatives under subpoena, and provided to the Tribunal as the documents were not before the decision-maker who made the decision under review. The identity of the person or persons compiling the material was not disclosed; and, given that the matter could not proceed to court, the reliability of its contents was unascertained. Although some of the material referred to “admissions” made by the then nine-year-old applicant, it is generally accepted that such purported admissions should be treated cautiously as they may not be reliable. In its Report No 84, the Australian Law Reform Commission stated that it should not be assumed that statements made, or recorded as made, by young children in the presence of police and parents are reliable: see Australian Law Reform Commission, Report No 84: Seen and heard: priority for children in the legal process (1997) at 14.21, 14.25-14.26, 14.30. In such circumstances, there was error in treating the material in these records as if it established that the applicant had committed the criminal offences of “Burglary with breaking” and “Common Assault”, since there was “no logical connection between the evidence and the inferences or conclusions drawn”: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135]. This further supports the finding of jurisdictional error set out below: see SZMDS at [132].

68    The reliance on that passage is misplaced. In context, the jurisdictional error committed by the Tribunal was that it erroneously ignored that the applicant could not be held criminally responsible for his conduct at nine years of age. Further, the material that the Tribunal took into account was of questionable reliability and it failed to treat admissions purportedly made by the child with due caution. In the present case, as found by the primary judge, the material relied upon comprised intelligence holdings “created and maintained by regulated State-based organisations with a statutory obligation to investigate crime”: PJ [125]. The appellant does not challenge that finding. It is also pertinent to observe that the material was extensive: the Minister did not base his findings on one or two isolated reports.

69    The final superior court decision on which the appellant places reliance is QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, another non-revocation of a visa cancellation decision where Anastassiou J distinguished the reasoning of Kenny J in CVN17 for the reason that the Tribunal had not considered information in police reports as a factual basis in its assessment of the future risk posed by the applicant to the community. The reasoning of his Honour at [96], aptly demonstrates why the appellant’s arguments are not persuasive:

In addition, I regard it as significant in this context that the Tribunal is not bound by the rules of evidence. The Tribunal is engaged in an evaluative exercise, the boundaries of which cannot be precisely demarcated. Properly focusing on the statutory task of the Tribunal, there was nothing legally unreasonable about weighing up all the evidence and giving appropriate weight to the matters for which the Applicant was convicted, to mattes [sic] in respect of which he was charged but not convicted, as well as to matters in respect of which he was not charged. As is plain from the Decision Record, it is the convictions from 2012 and 2014 which principally informed the Tribunal’s assessment of the nature and seriousness of the Applicant’s prior offending and, consequently, risk of re-offending.

70    I also accept the submission of senior counsel for the Minister that “a reviewing court is not concerned with whether material might be said to be of slight (or strong) probative value, only whether the material was rationally capable of supporting the relevant finding” by reference to Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 (Rawson) at [84] (Jagot J) and BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 (BHL19) at [326]-[327] (Bromwich J).

71    BHL19 concerned a refugee who was refused a protection visa on character grounds: s 501(1). He had resided peacefully in Australia since November 2012. In 2014, he was informed of the violent death of his mother, who had been killed in a bomb blast. He became agitated and then suffered a period of mental illness. His illness was of such severity that at one point he stated his wish to return to Syria and kill himself with a bomb. He was then placed into immigration detention. He was spoken to by police officers. His mental illness made it difficult to coherently assess his intentions. He suffered from delusions and made violent threats against other detainees. Later his mental health improved and he applied to be released. His application was refused. Somewhat later, he applied for a protection visa. The Minister refused the application despite the fact that the appellant had lived in immigration detention for some years without incident, had no criminal history and his compelling protection claims. The Minister, however, reasoned that the Australian community “would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by (the appellant) and the current global context”.

72    Justice Bromwich, with whom White J agreed generally, rejected the appellant’s arguments that the Minister’s reasons and conclusions were legally unreasonable. It is presently instructive to set out the passages from the reasons of his Honour that the Minister emphasises in this appeal at [326]-[327]:

In the exercise of a statutory power which requires reaching a state of satisfaction, in this case refusal to grant a visa under s 501(1) if the Minister was not satisfied that the appellant passed the character test, an implied condition is that this state of mind be arrived at rationally, including that findings of fact be based on evidence that is rationally probative of the fact in issue: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 at [40]. While this challenge was brought upon the basis of asserted legal unreasonableness, not irrationality per se, the assessment of whether the material before the Minister was capable of supporting the impugned conclusions reached is much the same. Legal capacity of such material, rather than its weight, goes to the lawfulness of the exercise of power, not the merits of that exercise of power. It is akin to the difference between the role of a tribunal of law in deciding whether evidence has the legal capacity to prove a fact, such that there is a case to answer, and a tribunal of fact in assessing evidence to determine whether a fact in issue has been proven. Thus, in a criminal jury trial, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision” and may only be taken away from the jury by a directed verdict “if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v The Queen (1990) 171 CLR 207 at 214-215. It hardly seems likely that an administrative decision-maker has less latitude to evaluate material that lacks quality than a jury deciding the question of whether guilt of a serious criminal offence has been established.

The legal capacity of the material before the Minister to support the conclusions reached will not necessarily be lacking if it is weak, or capable of a benign explanation, or might support a different conclusion, because that is merely something about which reasonable minds may differ, perhaps even vociferously: see BFH16 at [29], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [96] and [130], and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47].

73    His Honour concluded that the high threshold of legal unreasonableness had not been met. Justice Wigney dissented, not on any issue of principle, but upon the characterisation of the entirety of the Minister’s reasons which his Honour concluded were plainly outside of the range of possible lawful outcomes and therefore “plainly unjust, obviously disproportionate, and irrational”: [247].

74    The reasoning of Bromwich J is presently persuasive. It was not irrational or legally unreasonable for the Minister to consider the content of the Victoria Police reports and to reason from the information contained therein that, despite the absence of conviction for the criminal conduct attributed to the appellant, nonetheless the sheer volume of criminal intelligence and the detail of the information pointed compellingly to the conclusion that Mr Lewer had engaged in serious criminal conduct and that in consequence his propensity to engage in that conduct was a risk to be appropriately assessed in informing the Minister’s satisfaction that cancellation of the visa is in the national interest. The Minister was, in my view, entirely justified in joining all of the dots and in reasoning inferentially to that conclusion.

75    Overall, and with respect to the submissions developed by senior counsel for the appellant, sufficient attention was not directed to the high threshold that must be met before it can be concluded that the Minister’s decision in terms of outcome or process was legally irrational, illogical or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33] (Allsop CJ, Besanko and O’Callaghan JJ) where, as further explained at [35]:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

76    The Minister’s reasons are replete with findings of relevant fact, supported by the material that was before him and the inferences which were open therefrom. The appellant has failed to make good his appeal ground on this issue.

77    The appellant’s second argument in support of his appeal ground is that the primary judge erred in not finding error by the Minister in his understanding of the character of the firearms offences for which the appellant was convicted and sentenced in 1997 and 2016. The appellant’s criminal history relevantly recorded the following:

78    The appellant submits, and the Minister does not dispute, that these convictions were for offences contrary to the Control of Weapons Act 1990 (Vic), which differs from the firearms offences for which the appellant was convicted and sentenced in 1995. It should be noticed that the Firearms Act 1996 (Vic) was not in force before the appellant’s convictions on 20 March 1995. The Firearms Act 1958 (Vic) applied. In any event, the appellant submits that the Minister erroneously concluded that he had “committed further firearms offences in 1997 and 2016” at [33] and [99] when there was no evidence that these convictions were for firearm offences, as distinct from some other (unidentified) prohibited weapon. The purpose of the Control of Weapons Act is to regulate weapons other than firearms and body armour: s 1. It incorporates the definition of a firearm in the Firearms Act 1996. It regulates the possession of imitation firearms and other articles prescribed by regulation as prohibited weapons. The Act also regulates the possession of controlled weapons, which includes knives.

79    Even if the Minister made an erroneous finding of fact, it does not without more amount to legal error, let alone a jurisdictional one: Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J). Recognising this difficulty, senior counsel for the appellant variously sought to characterise the error first as a no evidence contention which, in oral submissions, evolved to one of irrational or unreasonable reasoning as a step in reaching one of the Minister’s conclusions at MD [99]-[104] to the effect that firearms are a serious risk to the Australian community and that illicit firearms and organised criminal gangs are inextricably linked.

80    I reject this submission. It was not in my view irrational or unreasonable for the Minister to infer and find that the appellant’s offending in 1997 and 2016 did relate to firearms. The Minister inferred that these offences related to firearms based on the material that he considered. The statutory scope of rational decision-making did not require the Minister to interrogate the particular Victorian statutory provisions or the facts which found these convictions in order to rationally conclude that the references to prohibited weapons were firearms. The Minister’s reasons disclose an evident and intelligible justification for the inference. It does not follow from acceptance that the Minister was wrong about that factual conclusion that his reasoning or conclusions sit beyond the scope of the conferred statutory power which turns on satisfaction that in all of the circumstances cancellation of the appellant’s visa is in the national interest. It was not a precondition of the exercise of the Minister’s statutory power that he be positively satisfied that the appellant had committed firearms offences in 1997 and 2016. Whilst the Minister placed weight on the risks to the Australian community inherent in the unlawful possession of firearms, there was evidence of the conviction of the appellant for offences of that character in 1995 and the Minister’s conclusion about the risk is unimpeachable. The statutory scope of rational decision-making entitled the Minister to have regard only to the summary of the charges and convictions which were rationally capable of supporting the inference that was drawn. As explained by Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11]:

The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

81    Put at its highest, if it be accepted that the Minister made a wrong factual inference based on the material he considered, it is one that falls well short of being capable of a finding that a rational foundation is lacking for the conclusion that it is in the national interest to cancel the appellant’s visa, when considered in context and as a whole. It was not a critical finding as a necessary step to that ultimate conclusion, which in a different context may support a finding that the exercise of discretion was legally unreasonable: Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 at [33]-[35] (Charlesworth J, Flick and Perry JJ concurring).

82    I also reject the alternative characterisation of this argument as resting on a no evidence point. The short summary of the offences set out on the appellant’s criminal history sheet provided some probative basis for the Minister’s inference and no error of law was committed: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (Mason CJ); Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108 at [89]-[100] (Greenwood J; French J agreeing at [3], subject to his Honour’s separate reasons; Weinberg J agreeing at [41]); Rawson at [62] (Jessup J) and [84] (Jagot J, with whom Nicholas J agreed).

83    Further, the Minister’s conclusion was not based on the inference that he drew about the 1997 and 2016 convictions: it was not critical to the Minister’s overall state of satisfaction which turned on an extensive consideration of the appellant’s recorded criminal history, his inferred involvement in serious criminal conduct and his hierarchal status in sophisticated criminal networks. Differing views have been expressed in this Court as to when an erroneous finding of fact will amount to jurisdictional error. On one view, the finding must be a precondition to the exercise of jurisdiction. On the other, the finding must be a critical step in the reasoning process to the ultimate conclusion. Those approaches and the authorities are summarised in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63]-[64] (Middleton, Moshinsky and Anderson JJ) and comprehensively analysed in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89 (Besanko, Jessup and Bromberg JJ).

84    It is not necessary to analyse the competing approaches as the appellant’s argument rises no higher than identification of an inferential factual error as a component of multifaceted reasoning towards the Minister’s ultimate conclusion. So understood, the Minister did not commit jurisdictional error: Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 at [26] (Gleeson CJ).

85    For these reasons, I reject this argument and the appeal ground. It was not submitted that costs should not follow the event.

Conclusion

86    For these reasons, I would order as follows:

1.    Leave is granted to the appellant to amend the particulars of ground 1 of the notice of appeal, by inserting particular (i).

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs to be agreed or assessed.

Associate:

Dated:    4 August 2023