FEDERAL COURT OF AUSTRALIA

Lyons v Minister for Immigration and Border Protection [2017] FCA 1381

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision dated 13 July 2017 to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501(2) of the Migration Act 1958 (Cth) be quashed.

2.    The respondent pay the applicant’s costs, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application under s 476A of the Migration Act 1958 (Cth) (Migration Act). The applicant, Mr Lyons, seeks an order quashing a personal decision of the Minister dated 13 July 2017 made pursuant to s 501(2) of the Migration Act. As a result of that decision, Mr Lyons’ Class BB Subclass 155 Five Year Resident Return visa was cancelled. In summary, Mr Lyons claims that the Minister’s decision was made erroneously because:

    The decision was legally unreasonable, illogical and/or irrational; and/or

    The decision was made on the basis of no evidence.

Background

2    Mr Lyons was born in Scotland in 1965. He emigrated to Australia with his family when he was four years old and has resided in Australia since then. His extended family of four sisters, one aunt and five cousins live in Australia. Mr Lyons is married to an Australian citizen and has three children, one of whom was a minor at the time of the Minister’s decision.

3    On 21 November 2007, Mr Lyons pleaded guilty in the District Court of Queensland to one count of being in premises with intent to commit an indictable offence and one count of extortion. He was sentenced to imprisonment for 12 months, wholly suspended for an operational period of two years.

4    Section 501(2) of the Migration Act provides:

(2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    the person does not satisfy the Minister that the person passes the character test.

5    For the purposes of s 501(2), “the character test” is defined by s 501(6) which provides:

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the Minister reasonably suspects:

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

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

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

(ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

(Original emphasis.)

6    “Substantial criminal record” is defined by s 501(7):

Substantial criminal record

(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.)

7    Because of the sentence of imprisonment, Mr Lyons has a “substantial criminal record” within the meaning of s 501(7)(c), which in turn meant that he failed the character test for the purposes of s 501(6)(a). The Minister observed at [8] of his decision that Mr Lyons did not pass the character test by virtue of s 501(6)(a) and that Mr Lyons had not satisfied the Minister that he passed the character test.

8    The primary focus of the Minister’s decision was whether, in light of the fact that Mr Lyons had failed the character test for the purposes of s 501(6)(a) of the Migration Act, the Minister should exercise his discretion to cancel Mr Lyon’s visa.

9    In summary, the Minister’s decision was as follows.

Minister’s Decision

10    The Minister explained that because Mr Lyons did not pass the character test, and having assessed the information set out in the attachments to the decision, he would consider whether to exercise his discretion to cancel Mr Lyons’ visa, taking into account factors he considered weighed against and in favour of cancelling Mr Lyons’ visa (at [9]).

11    First, the Minister observed that, in making his decision, he considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens (at [10]).

12    Second, the Minister considered Mr Lyons’ criminal conduct. The Minister described this conduct as follows:

Criminal Conduct

11.    In considering the nature and seriousness of Mr LYONS’s criminal offending I note that offences such as being in premises with intent to commit an indictable offence and extortion are serious.

12.    On 21 November 2007, Mr LYONS was convicted in the District Court of Queensland of one count of being in premises with intent to commit an indictable offence, and one count of extortion and sentenced to 12 months imprisonment.

13.    Mr LYONS and his co-offenders, Mr Lee and Mr Laing, all members of the Black Uhlans Motorcycle Club, attended a tattoo parlour on 6 December 2006 as it had come to their attention, as stated by His Honour, ‘that certain things had transpired in relation to that tattoo parlour, which reflected badly upon [their] club’. The Judge acknowledged that Mr LYONS and his co-offenders did not attend the tattoo parlour that day for the purpose of making threats or committing extortion, ‘but rather to have it out, as it were, with the complainants’ in relation to what the complainants had said about the Black Uhlans. The conversation, which principally involved Mr Laing, lasted approximately 15 minutes and included references to the complainants ceasing the operation of their business and payment of a percentage of the business.

14.    I am aware that the Crown accepted that the extortion offence is a ‘relatively low level one, there being no violence or threats of violence mode’. However I find an aggravating factor; that a 14 year old female and a customer were present in the parlour. I note that the 14 year old girl was ‘very distressed’. I also note the Judge’s observations that Mr LYONS’s offending required the ‘need to impose a penalty which will be seen by others in the community who might engage in this sort of activity, to be a deterrent’.

15.    I find that Mr LYONS’s conviction for being in premises with intent to commit on indictable offence and extortion are serious.

(Original emphasis.)

13    Third, the Minister considered the risk to the Australian community. Specifically, the Minister considered whether Mr Lyons posed a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and by giving consideration to the steps Mr Lyons has undertaken to reform and address his behaviour.

14    In addressing this issue the Minister found as follows:

17.    I have considered that Mr LYONS’ offence occurred in circumstances where he was the Chapter President of the Black Uhlans Motor Cycle Club.

18.    I have given regard to Mr LYONS representation that he joined the Black Uhlans Motorcycle Club as he enjoyed being involved with people who shared a passion for motorcycles. Further, Mr LYONS joined the Black Uhlans prior to the establishment of the Vicious Lawless Association Disestablishment Act 2013 (Qld) and he had no desire to be involved in any unlawful activity. I note Mr LYONS’ representation that he recognised the potential risk of continuing to be a member of the Black Uhlans and ceased his membership with the club in December 2015.

19.    I note the information from the Queensland Police Service that as at 26 July 2016, Mr LYONS was considered to be a current confirmed member of the Black Uhlans Outlaw Motorcycle Gang as he had been seen as recently as 2015 riding his motorcycle whilst wearing full Black Uhlans Outlaw Motorcycle Gang colours. Further, on 20 May 2016, Mr LYONS was intercepted by police on his way to the funeral of another Black Uhlans Outlaw Motorcycle Gang member, I have considered Mr LYONS’ representation that the report was materially incorrect, the deceased was not a member of the Black Uhlans Outlaw Motorcycle Gang – he was a fellow motorcycle enthusiast.

20.    I have considered the statements provided by the mother and sister of James John Gurney Henzell, the deceased, that Mr Henzell was not a member of the Black Uhlans Motorcycle Club or any other motorcycle club.

21.    I note the letter from Mr Bill Wuertz, President of the Black Uhlans Motorcycle Club Queensland confirming that Mr LYONS resigned from the club in December 2015, I have also considered that the information from the Queensland Police Service in relation to the intercept of Mr LYONS on 20 May 2016 does not mention that Mr LYONS was wearing his Black Uhlans colours.

22.    I accept that Mr LYONS is no longer a member of the Black Uhlans Outlaw Motorcycle Gang and this decreases the likelihood of his reoffending. I note Mr LYONS’ offending occurred in the context of his membership of the Black Uhlans and he remained a member of the Black Uhlans for some nine years after his offending, I also note with concern that Mr LYONS remained a member of the Black Uhlans for some two years after the introduction of laws deeming the Black Uhlans to be a criminal organisation.

23.    I note Mr LYONS’s representations that he is deeply remorseful for his involvement in the incident which led to his conviction. Further, I note Mr LYONS entered a plea of guilty to the offences.

24.    I acknowledge Mr LYONS’s remorse and accept that his insight into his offending lessens the risk of re-offending. However I note with concern Mr LYONS’s representation that he entered a plea of convenience in order to resolve the matter expeditiously and to assist with the administration of justice as he could not fund a proper defence. I also note Mr LYONS’ representation of the conviction as an unfortunate circumstance.

25.    I have considered the letters of support provided for Mr LYONS by his spouse, adult children and a number of members of the Gladstone community. I find that community support will assist Mr LYONS from re-offending.

26.    I note Mr LYONS has not been convicted of any further criminal offences in Australia. However I note with concern that Mr LYONS did not declare his criminal conviction on arrival to Australia on 13 January 2015.

27.    I find there is an ongoing likelihood that Mr LYONS will re-offend, albeit a low likelihood.

28.    If Mr LYONS did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

(Original emphasis.)

15    Fourth, the Minister considered the best interests of minor children who would be affected by cancellation of Mr Lyons’ visa. In particular, the Minister noted that Mr Lyons has a minor son, an infant grandson who relies heavily on him, and other close relatives including minors for whom Mr Lyons was a continuous source of support. The Minister found that it was in the best interests of Mr Lyons’ son Daniel Lyons not to cancel Mr Lyons’ visa (at [31]), in circumstances where Daniel Lyons and Mr Lyons were close and Daniel Lyons would be extremely upset to lose his father to another country. The Minister found that it was in the best interests of Mr Lyons’ grandson Lincon Lyons not to cancel the visa (at [33]), in circumstances where the father of Lincon Lyons was absent and Mr Lyons had assumed those responsibilities. Although the Minister found that it was in the best interests of a number of minor children including nine children of his nephews, eight children of his nieces and three children of close friends, the Minister concluded that there was no evidence indicating that these children did not have parents or carers of their own to care for them.

16    Fifth, the Minister was mindful of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa cancelled, and that Mr Lyons has breached the trust of the Australian community that non-citizens would obey Australian laws while in Australia (at [41]-[43]).

17    Sixth, the Minister had extensive regard to the strength, nature and duration of Mr Lyons’ ties to Australia. The Minister found:

45.    Mr LYONS has resided in Australia for some 47 years, having arrived as a young child aged four. Mr LYONS has lived In Australia for most of his life and from a very young age and I hold the view that the Australian community may afford a higher tolerance of criminal conduct.

46.    I have given more weight to this consideration as Mr LYONS has spent over 30 years contributing positively to the community through employment activities and I have taken this into account.

47.    I acknowledge that Mr LYONS has been married to his wife Leeanne for 23 years and that the couple have three children, Daniel who is 17 and two adult daughters, Tegan and Jamie-Lee, aged 24 and 21.

48.    I considered that Mr LYONS is Leeanne Lyons’s best friend and is always by her side supporting her. I have considered that Mrs Lyons is extremely distressed at the prospect of being separated from Mr LYONS and is unsure how she and her family will cope without him.

49.    I have also considered that Mr LYONS loves his wife and family ‘more than life itself’ and worries about their welfare if he were to be separated from them. I have considered advice that Mrs Lyons cries herself to sleep at night and has been withdrawn and emotional since Mr LYONS received the Notice of Intention to Consider Cancellation. I have also had regard to letters of support received from Mr LYONS’s daughters. I accept that Mr LYONS’s wife, son and daughters would be devastated if his visa is cancelled and I note their requests that he not be separated from them.

50.    I find that cancellation of Mr LYONS’s visa would cause emotional, practical and financial hardship for Mr LYONS’s family, including his wife and children.

51.    I note that Mr LYONS has four sisters, one aunt and five cousins residing in Australia. Further, I note one of Mr LYONS’s sisters lives in Adelaide and has terminal cancer. Mr LYONS maintains regular contact with her and pays for her to visit him and his family in Queensland.

52.    I acknowledge cancellation of Mr LYONS’s visa would cause emotional hardship for his sisters and cousins.

53.    I have considered the numerous letters of support which attest to Mr LYONS being a kind and hard-working man who is well-liked and respected, and loves and supports his family. I have also considered representations that Mr LYONS was also a constant and reliable support for his elderly mother prior to her death in September 2016.

54.    I am cognisant that Mr LYONS attended school in Australia until approximately 1980 and has worked in Australia as a labourer, porter, enrolled nurse, franchisee and crane rigger and driver.

55.    I have also considered representations that Mr LYONS is actively involved in community service and volunteers his time generously with the local Police-Citizens Youth Club, the Harbour City BMX Club, the Gladstone Meteors Radio Control Car Club, his local rugby league club and his local soccer club which has awarded him Player’s Player of the Year and Clubman of the Year awards.

56.    I also note Mr LYONS has also assisted with a variety bash fundraising event in 2011 that raised $15,000 for children with special needs, assists friends with transport to work and undertook fund raising to assist with the renovation of a friend’s house to accommodate a child with a disability.

57.    I have considered the effect of visa cancellation upon Mr LYONS’s immediate family in Australia and accept that those persons would experience emotional hardship. I find that Mr LYONS has been making a positive contribution to the community for over 30 years and I have taken this into account. I also recognise the effect of visa cancellation for minor children and family members in Australia.

18    Seventh, the Minister took into account the extent of impediments Mr Lyons would face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom. In summary, the Minister noted that:

    In March 2012, Mr Lyons was involved in a car accident which caused significant damage to his left shoulder, requiring surgery in May 2012. As a result Mr Lyons has been unable to obtain employment which involved lifting or moving heavy objects (at [59]). Mr Lyons has a moderate disability with regard to recreational and domestic activities and is capable of working a sedentary or light duty position (at [61]);

    Mr Lyons sought psychological treatment as he was disheartened by his inability to resume employment due to his injuries (at [60]);

    Mr Lyons represented that he has built his life entirely in Australia and knows Australia to be home, that he would be required to re-start his life with the significant impediment of a serious shoulder injury, would experience difficulty locating social medical and/or economic support and would face significant difficulties supporting his family. However the Minister considered that Mr Lyons was unlikely to experience substantial language or cultural barriers if he returned to the United Kingdom (at [64]);

    The Minister accepted that Mr Lyons would suffer hardship and emotional distress if separated from his family in Australia (at [65]); and

    The Minister also accepted that “Mr LYONS, at least initially, would experience some hardship in returning to the United Kingdom and establishing himself there. However this impact would lessen over time as Mr LYONS would have access to welfare and support services.”

19    The Minister concluded as follows:

67.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of Mr LYONS.

68.    In considering whether or not to cancel Mr LYONS’s visa, I gave primary consideration to the best interests of Mr LYONS’s son and grandson who are minors and have found that their best interests would be best served by not cancelling the visa.

69.    Mr LYONS has committed a serious crime, that of being in premises with intent to commit an indictable offence and extortion and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia.

70.    I find that the Australian community could be exposed to harm should Mr LYONS re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr LYONS. The Australian community should not tolerate any further risk of harm.

71.    I found the above consideration outweighed the countervailing considerations in Mr LYONS’s case, including the best interests of minor children and impact on family members. I have also considered the length of time Mr LYONS has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members including Leeanne Lyons, Jamie-Lee Lyons, Tegan Lyons, Daniel Lyons and Lincon Lyons.

72.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr LYONS, than I otherwise would, because he has lived in Australia for most of his life, and from a very young age.

73.    In reaching my decision I concluded that Mr LYONS represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

74.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr LYONS’s Class BB, Subclass 155 Five Year Resident Return visa under s501(2) of the Migration Act

Was the decision of the Minister unreasonable, illogical and/or irrational?

20    In his first ground of review Mr Lyons claims, in summary, that the decision of the Minister was unreasonable, illogical and/or irrational.

21    These are terms which are commonly used by persons who have been the subject of unfavourable decisions of public officials as well as Ministers. It is incumbent on the Court to regard such claims with extreme caution. Before the jurisdiction of this Court to make orders quashing the decision can be enlivened, the decision of the Minister must be unreasonable, illogical and/or irrational as a matter of law. It is helpful to revisit relevant principles in this respect.

22    The modern restatement of the law in Australia confirming that a discretionary power conferred by statute must be exercised reasonably can be found in the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li). The principles explained in Li have been examined numerous times by the Full Court of this Court in such cases as Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh), Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 240 FCR 1 (Stretton) and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden). Conveniently the Full Court in Eden summarised these principles as follows:

“LEGAL UNREASONABLENESS” – RELEVANT PRINCIPLES

54    Before addressing the specific appeal grounds and contentions, it is necessary to say something briefly concerning the relevant principles in relation to “legal unreasonableness” as a ground of judicial review. It is possible to be brief for two reasons.

55    First, there was no substantial disagreement between the parties in relation to the relevant principles. The main points of contention involved whether the primary judge applied, or correctly applied, those principles.

56    Second, the relevant principles were the subject of detailed analysis, in a relevantly similar context, in the recent decision of this Court in Stretton. Like this matter, Stretton concerned the question whether the Minister’s exercise of power under s 501(2) of the Act to cancel a visa was legally unreasonable. In that context, both the judgments of Allsop CJ and Griffiths J (with whom Wigney J agreed) distilled a number of statements of principle concerning legal unreasonableness derived, for the most part, from the decision of the High Court in Li and the decision of this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh).

57    For the purposes of this appeal, it is sufficient to reduce the relevant principles into a few short propositions. This short summary is not intended to supplant or derogate from the detailed analysis and explication of the relevant principles in Li, Singh and Stretton.

58    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

59    Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

61    This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.

62    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).

63    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

23    The purposes of s 501(2) adverted to in Eden were described in more detail in Stretton as including the protection of the Australian community (Stretton at [16], Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367) and giving effect in an appropriate case to the personal circumstances of the visa-holder and his or her family and associates (Stretton at [75]).

24    Taking all of these principles into consideration, while noting the fact that the Minister’s discretion to cancel a visa conferred by s 501(2) is substantially unfettered, I find that the Minister’s conclusion that Mr Lyons presented an on-going risk to the Australian community was unreasonable, and therefore his decision to cancel Mr Lyons’ visa was unreasonable.

25    In summary, I have formed this view because the Minister’s approach to assessing the risk to the Australian community allegedly posed by Mr Lyons was to ignore key evidence supporting Mr Lyons’ case, and to distort other evidence by omission, in order that the Minister’s statement of reasons achieved an outcome whereby Mr Lyons’ visa was cancelled.

26    I so find for the following reasons.

27    First, in having regard to Mr Lyons’ criminal conviction for extortion in 2007, it is clear that in his reasons the Minister “cherry-picked” circumstances of the conviction and sentence which supported an exercise of discretion to cancel Mr Lyons’ visa. On the face of his reasons the Minister appeared to ignore comments of the sentencing Judge in Mr Lyons’ favour, and which were relevant to the likelihood of reoffending and rehabilitation, and the risk Mr Lyons posed to the Australian community. Those comments of the sentencing Judge included that:

    Although the prosecution submitted that it would be appropriate to sentence Mr Lyons and his co-accused to a term of imprisonment, the prosecution also conceded that “because of the mitigating factors, you might be given a parole release date as of today”;

    Although the maximum penalty for the offence of extortion was 14 years imprisonment, Mr Lyons received a sentence of one year;

    Mr Lyons had co-operated with the system of justice by pleading guilty;

    Mr Lyons had had no criminal history whatsoever; and

    Mr Lyons had had a good work history and was in a stable relationship.

28    In relation to this issue the Minister submits that, following the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [81], the Minister was not required to have regard to the comments of the sentencing Court. That may well be. Nonetheless, the Minister did have regard to some of his Honour’s comments. If the Minister has regard to the comments of the sentencing Judge, he is not entitled to do so selectively. Such selectivity is itself unreasonable because it leads to an outcome which is not evident or transparent.

29    I am not satisfied that simply because the Minister had the comments of the sentencing Judge before him that the Minister had regard to all of those comments. I make this observation in circumstances where there were many comments of the sentencing Judge in favour of Mr Lyons, which were in turn relevant to the Minister’s decision but to which the Minister did not refer.

30    Second, and critically to both the risk posed by Mr Lyons and the prospect of his re-offending, while the Minister clearly had regard to the fact of Mr Lyons’ conviction, there is no indication on the face of the Minister’s reasons that he had regard to the fact that Mr Lyons’ sentence was in fact wholly suspended by his Honour at the time of sentence. I am not satisfied, particularly in light of what I have concluded was a degree of selectivity in the approach of the Minister to the circumstances of Mr Lyons’ conviction and sentence that, simply because the Minister had the sentencing remarks of the Judge before him, he had regard to the very important issue of the suspension of the sentence.

31    In Eden at [73] the Full Court observed that a sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment, and is regarded as a “very serious form of punishment” (see also the Full Court in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [184]). It is not in dispute that Mr Lyons’ offence was serious, that the sentence he received was a serious form of punishment, and that, as a result, he failed the character test under the Migration Act. At [8] of the Minister’s reasons the Minister specifically finds that this was the reason why Mr Lyons failed the character test.

32    However, as the Minister made clear in his reasons, the key issue was whether Mr Lyons posed an ongoing risk to the community. As explained in Bagaric M, Edney R and Alexander T, Sentencing in Australia (5th ed, Lawbook Co, 2017) at 669 [700.3500]:

The main purpose in suspending a sentence is to encourage reform of the offender [See, for example, R v Robinson [1975] VR 816, 828; R v Davey (1980) 2 A Crim R 254; 50 FLR 57; [1980] FCA 134] and thus a central consideration in determining whether or not to suspend a sentence is the prospects of rehabilitation.

(Footnotes omitted. Emphasis added.)

33    Similarly the Court of Criminal Appeal of New South Wales in R v NJK [2011] NSWCCA 151 at [32] said:

It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.

34    In light of settled principles concerning the basis on which a sentencing Judge can wholly suspend a sentence, it was not open to the Minister to assume other than that the suspension of Mr Lyons’ sentence as a whole by the sentencing Judge was because his Honour was satisfied that the community could be adequately protected by a sentence designed to assist in the rehabilitation of Mr Lyons at the expense of imprisonment. This suspension of Mr Lyons’ sentence is, without doubt, relevant to the risk Mr Lyons posed to the community, not only in 2007 but in the future, and to any conclusion the Minister could draw in this regard.

35    As a result, I am unable to see how the Minister makes the leap of reasoning, by reference to Mr Lyons’ conviction in 2007, from the decision of the sentencing Judge in 2007 to wholly suspend Mr Lyons’ sentence, because Mr Lyons was a proper candidate for rehabilitation (and, presumably, able to be released because he did not pose a danger to the community), to a finding that Mr Lyons in 2017 presented an “ongoing” risk to the community which could properly be addressed by the cancellation of his visa.

36    Third, the Minister noted the circumstances of the offence and the sentencing Judge’s finding that, when Mr Lyons and his co-accused attended the tattoo parlour on the relevant day, “it was not for the purpose of making threats or committing the offence of extortion, but rather to have it out, as it were, with the complainants, in relation to what had been reported to you about what the complainants had said, and which reflected upon your club”. Although his Honour did not elaborate on his use of the expression “have it out”, I note that in common parlance – and for example according to Oxford Dictionary of Idioms (Oxford University Press, 2000) – it means to attempt to resolve a contentious matter by confronting someone and engaging in a frank discussion or argument. At the hearing before me Counsel submitted that it was open to the Minister to interpret the expression “have it out” as contemplating harm. However, such an interpretation cannot be supported by reference to the ordinary meaning of that phrase or the comments of the sentencing Judge, on which the Minister clearly relied. Logically, a preparedness on the part of Mr Lyons to engage in frank discussion or argument does not equate to causing harm to anyone. In any event, the Minister did not have regard to the implications of this in assessing Mr Lyons’ risk to the community.

37    Fourth, the Minister “note[d] with concern Mr Lyons’s representation that he entered a plea of convenience in order to resolve the matter expeditiously and to assist with the administration of justice as he could not fund a proper defence.” (Emphasis added.)

38    It is difficult to know what to make of this statement by the Minister. The Minister appears to take the view that pragmatism on the part of an accused who is unable to fund a proper defence to a criminal charge, is equivalent to lack of remorse (or worse – an ongoing tendency to re-offend), and that such pragmatism should weigh against Mr Lyons so far as concerns the Minister’s consideration of this case. The absence of logic in this approach is highlighted by the fact that, as was apparent from the comments of the sentencing Judge in the criminal proceedings, both his Honour and the Crown viewed the plea of guilty by Mr Lyons and his co-accused as a mitigating factor in those proceedings rather than something which should be taken against them in sentencing. It is well-known that accused persons may enter a “plea of convenience” to criminal charges for pragmatic reasons (see for example recent comments of the Court of Appeal of Queensland in R v Gazzara [2017] QCA 168 at [59] as well as the acceptance of this approach in criminal trials in R v Gomez [2007] ACTCA 21; (2007) 1 ACTLR 145 and Jameson v SA Police [2016] SASC 5). Indeed as was observed by Brennan, Toohey and McHugh JJ in Meissner v R [1995] HCA 41; (1995) 184 CLR 132 at 141:

A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

39    Similarly Dawson J in the same case at 157 said:

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.

40    Sentencing Judges do not treat such pleas as aggravating factors in determining sentences. It is neither logical nor reasonable that the Minister should regard Mr Lyons’ plea of guilty “with concern”, because it was a “plea of convenience”. From a sentencing perspective, such a plea does not indicate lack of remorse, and I find that it was not open to the Minister to find that it did.

41    Fifth, at [24] of his reasons the Minister states “I also note Mr LYONS’ representation of the conviction as an unfortunate circumstance”. Again, it is difficult to know what to make of this statement by the Minister. In the context in which this sentence appears in the reasons it seems that the Minister takes the view that Mr Lyons’ has represented his conviction as “an unfortunate circumstance,” and presumably therefore Mr Lyons viewed the conviction with insouciance. However the expression “unfortunate circumstance” to which the Minister relies appears to derive from a submission of lawyers for Mr Lyons dated 3 February 2016 in which the lawyers refer to both Mr Lyons’ criminal charges and his inability to fund a proper defence as “unfortunate circumstances”. The statement of the Minister at [24] appears to distort the submission of Mr Lyons’ lawyers by omission of key words.

42    Sixth, the Minister places great weight in his decision on Mr Lyons’ past association with the Black Uhlans Motor Cycle Club. In his reasons, the Minister examines in detail various matters including that:

    Mr Lyons’ offence occurred in circumstances where Mr Lyons was the-then Chapter President of the Black Uhlans (which the Minister mentions twice, namely at [18] and [22] of his reasons);

    Mr Lyons joined the Black Uhlans prior to the Vicious Lawless Association Disestablishment Act 2013 (Qld) (VLAD Act);

    Mr Lyons remained a member of the Black Uhlans for nine years after his offending; and

    the Minister “notes with concern” at [22] of his reasons that Mr Lyons remained a member of the Black Uhlans for some two years after the introduction of the VLAD Act deeming the Black Uhlans to be a criminal organisation.

43    Section 501(6)(b) of the Migration Act provides that a person does not pass the character test if (inter alia) the Minister reasonably suspects that the person has been or is a member of a group or organisation that has been or is involved in criminal conduct. However, as I noted earlier in this judgment the Minister did not identify s 501(6)(b) as the basis on which Mr Lyons failed the character test – rather the Minister refers to the association between Mr Lyons and the Black Uhlans motorcycle club in the context of assessing the risk Mr Lyons posed to the Australian community.

44    Mr Lyons does not dispute that his past association with the Black Uhlans was a relevant consideration for the Minister in approaching the task of exercising the Ministerial discretion. It is also clear at [18]-[21] that the Minister details evidence favourable to Mr Lyons insofar as concerns his association with the Black Uhlans. However, on its face the statement of reasons of the Minister points to an inflexibility of approach on the part of the Minister in assessing whether Mr Lyons posed an ongoing risk to the Australian community and the exercise of his discretion to cancel Mr Lyons’ visa, referable to what appears to be the Minister’s unfavourable view of motorcycle clubs and persons associated with them (or who were ever associated with them). I have formed this view in light of the following points:

    Under the heading “Risk to the Australian Community” the Minister recounts, in considerable detail at [19]-[21] of the decision, what appears to be no more than an account of Mr Lyons riding his motorcycle whilst wearing Black Uhlans colours and another police sighting of Mr Lyons on his way to the funeral of a person who was not a Black Uhlans member. The Minister notes that the police intercepted Mr Lyons, but nothing came of that. This anecdote appears to be irrelevant to the decision of the Minister, certainly it goes nowhere, and its detailed inclusion is only explicable by reference to some level of pre-judgment by the Minister.

    The Minister accepted at [22] that Mr Lyons was no longer a member of the Black Uhlans. The Minister said that “this decreases the likelihood of his reoffending”, however at [70] the Minister found that the Australian community could be exposed to harm should Mr Lyons re-offend in a similar fashion and the Minister could not rule out that possibility. The sentencing Judge plainly stated that none of Mr Lyons or his co-accused “sought any benefit for you individually, as opposed to the club”. As Mr Lyons’ offence concerned extortion, related (as the sentencing Judge found and the Minister noted) to Mr Lyons’ association with a motorcycle club, I am unable to identify the Minister’s leap of reasoning from Mr Lyons’ circumstances and offence in 2007, to Mr Lyons’ circumstances in 2017 when he has not been a member of any motorcycle club for several years. There was no material before the Minister to suggest that Mr Lyons had formed any other associations with any other motorcycle clubs, or that he retained any lingering connection with the Black Uhlans. On what basis the Minister concluded that Mr Lyons could be in the position to re-offend in a similar fashion – namely seeking to extort money on behalf of a motorcycle club, or any other organisation – is entirely unclear to me.

    Although the Minister referred several times to the VLAD Act (at [18], [22]) in the context where the reference was not favourable to Mr Lyons, the Minister does not acknowledge that Mr Lyons’ previous membership of the Black Uhlans did not of itself, at any time, merely by reference to the fact of that association alone, give rise to any criminal charges in respect of Mr Lyons. However, the reasons of the Minister suggest that Mr Lyons is tainted with some level of criminality by virtue of his historical association with the Black Uhlans.

45    Seventh, the Minister did not have regard to the fact that Mr Lyons had committed the offence more than ten years before the Minister exercised his decision. There is no explanation in the Minister’s reasons as to how, in light of the significant passage of time since Mr Lyons’ conviction (during which time Mr Lyons had not re-offended), the Minister was unable to exclude the existence of a possibility of Mr Lyons re-offending. In my view the delay of more than ten years by the Minister to conclude that Mr Lyons presented a risk to the Australian community warranting cancellation of Mr Lyons’ visa is a factor which supports a finding of unreasonableness.

46    Eighth, the Minister at [28] states that if Mr Lyons did engage in further criminal conduct of a similar nature, such conduct could cause psychological and/or physical harm to a member of the Australian community. Having regard to the reasons of the Minister as set out in his decision, and the evidence to which the Minister refers, I am unable to identify the basis on which the Minister makes this statement.

47    The process of reasoning by which the Minister reaches this view is unclear. There was no evidence before the Minister of anyone suffering psychological and/or physical harm from any conduct of Mr Lyons, at any time. It may be that the Minister speculates that any engagement in extortion-related activities by anyone could cause psychological and/or physical harm to a member of the Australian community. However, the Minister is required to consider the circumstances of Mr Lyons in assessing his ongoing risk to the community. An examination of the reasons of the Minister demonstrates that, in forming this conclusion, the Minister drew on comments of the sentencing Judge concerning the presence of a customer and a “very distressed” 14 year old female at the tattoo parlour the subject of the offence at the time of the conduct in question. However, the sentencing Judge also commented that Mr Lyons’ offence did not include violence or threats of violence. In the absence of any evidence that either the customer or the girl were psychologically or physically harmed as a result of the conduct giving rise to the offence (and there did not appear to be any such evidence), such a conclusion was purely speculative, verging on fanciful. The unfettered discretion of the Minister to make factual findings does not extend to findings for which there is no basis. Certainly the Minister could not point to any such finding of either psychological or physical harm by the sentencing Judge.

48    Ninth, in written submissions the Minister claimed that conduct of Mr Lyons, including his remaining a member of the Black Uhlans Motorcycle Club, and his failure to declare his criminal conviction on his arrival into Australia on 13 January 2015, were capable of being interpreted as showing a certain defiance or disobedience of the law. This submission on the part of the Minister is purely speculative and self-serving. No such finding was made by the Minister in his reasons. In any event:

    As I have already noted, the Minister did not point to any harm or criminal charges arising from Mr Lyons continued membership of the Black Uhlans; and

    No proceedings of any kind arose from Mr Lyons’ inaccurate completion of an incoming passenger card in 2015.

49    I conclude that the Minister’s finding that Mr Lyons posed an unacceptable risk of harm to the Australian community because of the possibility of future offending by him was not founded on an evident or intelligible justification. Having regard to the terms, scope and purpose of the Migration Act there is no evident, transparent and intelligible justification for the decision of the Minister to cancel Mr Lyons’ visa.

50    In light of my findings with respect to ground 1 of Mr Lyons’ application it is unnecessary for me to consider ground 2.

No evidence

51    In ground 3 of his application, Mr Lyons claims that the Minister’s decision was made erroneously and it was not open to him to reach a conclusion that Mr Lyons plausibly posed a risk to the Australian community. In particular, Mr Lyons pleads that:

    There was no evidence that would permit a rational determination that Mr Lyons posed any risk at all to the Australian community through re-offending;

    There was no evidence to support the conclusion of the existence of any likelihood of reoffending or an unacceptable risk of harm to the Australian community; and

    An inference of harm or risk to the Australian community was remote, implausible and not reasonably open on the evidence as a matter of law where Mr Lyons’ rehabilitation was complete.

52    Although ground 3 is couched in terms of “no evidence”, the manner in which this ground of review is framed is by reference to the reasonableness of the Minister’s decision. The decision of the Minister to exercise his discretion to cancel Mr Lyons’ visa was not reasonable as a matter of law. It is unnecessary for me to deal with ground 3 in such circumstances.

Conclusion

53    As Griffith J observed in Stretton, it is important that there appears from the statement of reasons provided by the Minister that the Minister has made a balanced and objective appraisal and weighing of the potentially wide range of matters requiring consideration in exercising the significant and substantive power under s 501(2) (Stretton at [70]). The statement of reasons of the Minister in this case demonstrates that the Minister has not performed this task.

54    The Minister’s decision to cancel Mr Lyons’ visa should be quashed. Costs should follow the event.

Associate:

Dated:    24 November 2017