Federal Court of Australia

Lincoln v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 346

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 10 May 2020 be dismissed.

2.    The applicant pay the costs of the respondent fixed in the amount of $5,000.00

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an originating application for review of a migration decision filed on 10 May 2020. Mr Lincoln, the applicant, seeks review of a decision (revocation decision) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) made on 25 February 2020 under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act), not to revoke an earlier decision cancelling Mr Lincoln’s Class TY (subclass 444) visa under s 501(3A) of the Migration Act.

Background

2    The applicant, Mr Lincoln, is a citizen of New Zealand, born on 31 December 1978. He was the holder of the holder of a Class TY (subclass 444) visa from 10 September 1994 until it was cancelled by a delegate of the Minister on 12 December 2017 under s 501(3A) of the Migration Act (cancellation decision).

3    Mr Lincoln had his first interaction with the criminal justice system when he was a juvenile. In July 1996, he was convicted of possessing a prohibited drug. In the following years he was convicted of the following offences (as summarised in his national police certificate):

    Steal mv;

    Be&s; and

    Drive manner dangerous.

4    For those convictions Mr Lincoln was given a recognisance order, 200 hours of community service, a fine and a two-year disqualification from holding a driver’s license.

5    In 1998, Mr Lincoln was convicted in the Port Macquarie Local Court of the following crimes:

    Be&s;

    B&e with intent; and

    Influence witness.

6    For those convictions Mr Lincoln was ordered to pay a fine, and serve 500 hours community service.

7    In 2008, Mr Lincoln was convicted and fined for contravening a Court order.

8    On 31 May 2016, Mr Lincoln was convicted before McMeekin J in the Supreme Court of Queensland of manslaughter and possessing dangerous drugs. In respect of the manslaughter conviction, he was sentenced to nine years’ imprisonment. He had faced a murder charge in respect of the abduction and killing of Mr Timothy John Pullen over a drug debt, but he pleaded guilty to manslaughter on the first day of trial. In respect of the offence of possessing dangerous drugs, having pleaded guilty to possessing a quantity of methamphetamine, Mr Lincoln was sentenced to two years’ imprisonment. Both terms of imprisonment were ordered to be served concurrently.

9    Mr Lincoln was held in remand from 19 July 2013 to 30 May 2016 and has been held in correctional detention since his sentencing on 31 May 2016.

10    Mr Lincoln was notified of the cancellation decision by letter from the Department of Immigration and Border Protection dated 13 June 2018.

11    Materially, the letter of 13 June 2018 stated:

…

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act.

Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

On 13 May 2016 you were convicted of Manslaughter and sentenced to nine years imprisonment. The information based on which the decision maker was satisfied that you do not pass the character test is the Sentencing Remarks of the Supreme Court of Queensland on 31 May 2016.

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

In particular, regard was had to Integrated Offender Management Systems, Sentence Calculation Details report from the Queensland Department of Corrective Services, created on 13 June 2016 and File note dated 12 December 2017.

…

12    On 29 June 2018, through his then solicitors Samuta McComber Lawyers, Mr Lincoln requested that the cancellation decision be revoked pursuant to s 501CA(4)(a) of the Migration Act, on the basis that:

    his continued presence in Australia posed only a minimal and remote risk of harm to the Australian community;

    the best interests of his children, who were minors ordinarily resident in Australia, would be best served by revocation;

    a majority of members of the Australian community informed of his circumstances would not favour non-revocation;

    he ordinarily resided in Australia and had done so for a significant number of years; and

    he had significant and enduring ties to Australia.

13    On 13 December 2018 the Minister wrote to the Mr Lincoln to provide him with the opportunity to comment on further information, described as information which “the department has which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s501CA of the Migration Act.” The information was identified in the letter as:

    Prisoner (Conduct) Report consisting of the Visitors/Attempted Visitors for a Prisoner list, Incident Inquiry, Urinalysis – Breath Test Enquiry, Prisoner Risks Enquiry received on 29 November 2018;

    Incoming passenger card dated 11 January 2009 where you did not declare your criminal convictions;

    Media article from the Hinterland Times dated 9 July 2015;

    Media article from the ABC news dated 1 June 2016;

    Media article from the Goulburn Post dated 10 May 2018; and

    Media article from the Brisbane Times dated 30 July 2014.

14    (It is convenient to refer to the above-listed media articles as the four media articles.)

15    The letter stated that a copy of the information was enclosed, and that any response Mr Lincoln wished to make to comment on that information should be received by the Department no later than 28 days from the date he was taken to have received the letter.

16    It does not appear from the material before the Court that Mr Lincoln provided a response to this letter.

17    On 4 March 2019 the Department wrote again to Mr Lincoln, informing him that Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA had been revoked, and replaced by new Ministerial Direction 79 which was enclosed. This letter stated that Mr Lincoln “should now use Direction 79 in place of Direction 65” and continued:

The changes to Direction 79 are primarily to emphasise that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed.

If the decision-maker who decides whether to revoke the original decision to cancel your visa is a delegate of the Minister, they must now follow Direction 79. If, however, the Minister makes a decision personally, he or she is not bound by Direction 79 although it provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether to revoke the original decision to cancel your visa.

…

You are invited to comment on this information…

18    It does not appear from the material before the Court that the applicant responded to this letter.

19    On 16 May 2019 Mr Joel McComber of Sentry Law emailed the Department, advising that his firm had been appointed by Mr Lincoln as his migration representative, and asking to be forwarded any correspondence regarding Mr Lincoln’s case since 15 April 2019.

20    On 25 February 2020, the Minister made the revocation decision, and provided a statement of reasons for this decision. Mr Lincoln was notified of the revocation decision on 27 February 2020.

revocation decision

21    The Minister, at [4]-[9] of the revocation decision, concluded that Mr Lincoln did not meet the requirements of the character test as defined in s 501 of the Migration Act by reason of his 2016 convictions and the associated punishments, with the result that requirements of s 501CA(4)(b)(i) of the Migration Act were not met.

22    The Minister then considered whether there was another reason why the original decision should be revoked in accordance with s 501CA(4)(b)(ii). The Minister noted that Mr Lincoln had articulated reasons why the cancellation decision should be revoked, including:

    His residence in Australia since the age of 15;

    the best interests of his two minor children were aged 15 and 14 years;

    the presence of all immediate family members in Australia and the impact of a non-revocation decision on them;

    his ties to the community and the positive contributions he had made;

    the absence of family support in New Zealand;

    his remorse for his criminal offending;

    that his offending was influenced by drugs and he no longer took drugs;

    he had completed various educational and rehabilitation courses in prison; and

    the family and community support available to the applicant in Australia to aid his rehabilitation and reintegration in the community.

23    In considering the best interests of minor children in Australia and whether that consideration weight in favour of revoking the cancellation decision, the Minister confirmed that Mr Lincoln had two minor Australian citizen children. The Minister also accepted that he had been actively involved in the parenting and care of his children, finding that the revocation of the cancellation decision was in the best interest of the children.

24    When considering the extent of impediments if the applicant was removed from Australia, the Minister accepted that Mr Lincoln would face significant hardship as a result of being separated from his family in Australia, noting that he did not have any familial ties in New Zealand. The Minister concluded however that there was nothing to indicate that Mr Lincoln was not in good health. Although Mr Lincoln had a history of dyslexia and carpel tunnel syndrome, the Minister was satisfied he had been able to earn a living and provide for his family in Australia, and that he would be able to establish himself and earn a living in New Zealand. The Minister in particular noted a letter dated 15 February 2018 from the directors and administrators of Murphy Brothers Ltd, a business based in Christchurch, offering Mr Lincoln a position as an Asbestos Removal and Demolition Labourer in their organisation, which Mr Lincoln accepted on 20 February 2018. The organisation acknowledged Mr Lincoln’s criminal history and parole requirements.

25    The Minister went on to note that New Zealand was culturally and linguistically similar to Australia, with comparable standards of health care, education and social welfare. Despite this, the Minister concluded that the extent of the impediments Mr Lincoln faced in establishing himself in New Zealand would inflict substantial hardship upon him, and that this matter weighed in favour of revoking the cancellation decision.

26    The Minister had regard to the strength, nature and duration of Mr Lincoln’s ties to Australia. The Minister noted that Mr Lincoln has resided in Australia for approximately 25 years, having arrived when he was 15 years old. The Minister took into account the fact that Mr Lincoln has spent several years contributing positively to the community through his employment, his involvement as a parent in his children’s school, and his work with the homeless and people struggling with drug dependence.

27    The Minister accepted that Mr Lincoln’s familial and community ties to Australia were significant. The Minister also accepted that Mr Lincoln’s wife, children (including his minor children), mother and extended family would experience emotional, financial and practical hardship if he left Australia, and found that these matters weighed in favour of revoking the cancellation decision. The Minister had regard to the support Mr Lincoln had given his wife in her studies, and his involvement in programmes for children and young people.

28    In respect of the consideration of the protection of the Australian community, and Mr Lincoln’s claim that he did not pose an unacceptable risk of reoffending as he was rehabilitated, the Minister referred to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizen. In respect of Mr Lincoln’s criminal conduct, the Minister said as follows:

39.    On 31 May 2016, Mr LINCOLN was convicted in the Supreme Court of Queensland of manslaughter and possessing dangerous drugs and sentenced to nine years and two years' imprisonment respectively for the offences, with both terms of imprisonment to be served cumulatively. According to the National Police Certificate dated 11 July 2016, the offence of manslaughter occurred 'on or about' 16 April 2012.

40.    I note that Mr LINCOLN's total sentence of 11 years commenced on 19 July 2013 and is due to end on 18 July 2024. I further note that Mr LINCOLN has been eligible for parole since 19 July 2018, however is currently in prison.

41.    According to the sentencing remarks of the Supreme Court of Queensland dated 31 May 2016, Mr LINCOLN and Mr Oakley - a co-offender - faced a charge of murder, however both pleaded guilty to the manslaughter of Mr Timothy John Pullen on the first day of their joint trial. The sentencing remarks indicate that at the time of sentencing, Mr Pullen's body had not been recovered. Mr LINCOLN also pleaded guilty to the possession of a quantity of methylamphetamine.

42.     Mr LINCOLN's conviction resulted from the abduction and killing of Mr Pullen over a drug debt. Judge McMeekin accepted that Mr LINCOLN was the principal organiser of the abduction. While the Judge noted that it was not known how the victim died or who killed him, the sentencing remarks indicate that Mr LINCOLN and five other persons were involved in the crime.

43.    I have considered the details about Mr LINCOLN's co-offenders included in the sentencing remarks and note the following:

•    Mr Oakley played a lesser role in the abduction of Mr Pullen;

•    Ms Kiera McKay was the occupant of the unit from which Mr Pullen was abducted and that she and her partner Mr Nicholas Voorwinden, had pleaded

•    guilty to manslaughter and had been sentenced to terms of imprisonment they also provided evidence against Mr LINCOLN and Mr Oakley; and

•    Mr Renwick and Mr Kister had been involved in the 'disposal of the body', had pleaded guilty to being "accessories after the fact" and at the time of Mr LINCOLN's sentencing, were awaiting sentencing.

…

45.    The sentencing remarks of 31 May 2016 indicate that the Crown relied on information provided by Ms McKay. According to Ms McKay's version of events, Mr LINCOLN accompanied by Mr Oakley and two others entered Ms McKay's unit through a back door that had been left unlocked, as planned. The victim was asleep on the couch in the downstairs area. She then went upstairs to join Mr Voorwinden, where they heard a commotion, however did not witness any violence. After about five minutes, Mr LINCOLN called out saying, "Sorry about the mess guys" and left.

46.     The sentencing remarks indicate that the Judge noted that a neighbour observed the victim 'being forcibly taken from the unit, placed in the rear seat of a vehicle and taken away and that Mr LINCOLN and Mr Oakley left in a separate vehicle.' However, I keep in mind the Judge's remark that, “The evidence that I've been taken to is a little bit obscure, but a neighbour saw the person who was obviously the deceased being pushed into the rear seat of the vehicle.”

47.    The Judge noted that, "Subsequently, police forensic specialists found the blood, as I've said, in the unit and as well in the Navarra motor vehicle into which the neighbour saw a person being bundled." The Judge also noted Mr Voorwinden's version of observing blood all throughout the lounge and couch on which the deceased had been sleeping. The Judge stated, "The description given was that there was a fair bit of blood, there was a pool and there was drips all the way out the door. There was little splatters on the roof of the unit and there was drips all the way out the front door and on the front doorway and on the doorway with smudged hand marks. There were some on the seats and drips on the pavers. Both were seen on the lounge walls and ceiling. Voorwinden and McKay cleaned up the blood and disposed of the couch."

48.    I note that the Judge referred to the schedule of facts that indicate that in a subsequent meeting with Ms McKay, Mr LINCOLN 'was annoyed when McKay had told him that she had burned the cushions, but did not wait to see if they were totally destroyed. He told Ms McKay to leave Queensland and that he would get the boys to torch the unit. That latter thing never happened.'

49.    I note that according to the sentencing remarks, during the interview with the police following his arrest 'some months later', Mr Lincoln admitted to knowing the victim for about five years. While Mr LINCOLN initially denied knowing Mr Renwick (who was involved in the disposal of the body), he told the police he had been drinking with Mr Renwick the night of the offending, after being shown the 'telephone records.'

50.     The Judge noted that, "In Mr Lincoln's case the facts agreed allege that the motivation behind the crime was the money to be paid by the Odin's outlaw motorcycle gang."

51.    I note that there are several media articles that refer to Mr Pullen's murder and provide further details of and Mr LINCOLN's role and that of his co-offenders in the same.

These include the following~

•    An article from the Hinterland Times, dated 9 July 2015;

•    ABC News report dated 1 June 2016;

•    An article from the Goulburn Post, dated 10 May 2018; and

•    An article from the Brisbane Times, dated 30 July 2014.

52.    According to the article in Goulburn Post, dated 10 May 2018 and titled, "Qld parole board doubts killer's story", the board president, Michael Byrne QC remarked at Mr LINCOLN's parole hearing that, "He is the instigator by his own admission ... and was the person who arranged it" and that Mr LINCOLN had "no further information of the body of the victim." Mr LINCOLN has not provided any comment regarding the above articles.

53.    In his statement dated 20 June 2018, Mr LINCOLN submits that he is not and has never been associated with the Odins Outlaw Motorcycle Club. He also states that he first met Mr Pullen (the victim) a number of years prior to the incident and that Mr Pullen was living in a shed at the same address, as Mr LINCOLN and his family, who were living in a house at the address. Mr Pullen and Mr Duckworth worked together for a period of about six months at the property, then Mr Pullen left. Some months after he left, Ms KcKay contacted Mr LINCOLN and said that Mr Pullen was staying with her. He states that he passed on this information and that it ultimately led to Mr Pullen's abduction 'as detailed in the court proceedings.

54.    Mr LINCOLN also submits that he went to Ms McKay's unit accompanied by three others, however he was standing outside the unit when the victim came out after being assaulted in the unit, and that's when called out, "sorry about the mess." He also states that when the victim was taken from the unit, he and Mr Oakley left in a separate car and returned to where they were staying. Later, the same morning on 16 April 2012, he met Mr Renwick who told him that Mr Pullen had passed away.

55.    While I keep in mind Mr LINCOLN's submissions in paragraphs 53 and 54 above and am cognizant that the Judge considered the evidence available as 'obscure', I adopt the judicial observations, and having regard to the remarks and dispositions of the court, fully concur with the Judge's remark on 31 May 2016 that, "The fact, of course, is that a man has died because of Mr Lincoln's determination to arrange his abduction in order to settle a drug debt. Plainly enough, Mr Lincoln was in the position of being the enforcer to arrange and collect this debt and was tempted by the substantial moneys said to have been offered by this outlaw gang. Right thinking people in our community can only be appalled at the crime."

56.    Keeping in mind Mr LINCOLN's conduct resulting in the death of Mr Pullen, I fully concur with the Judge's remarks above and find Mr LINCOLN's offending to be very serious.

57.    As regards the conviction for possessing dangerous drugs, the sentencing remarks indicate that on 19 July 2013, when the police went to arrest Mr LINCOLN on the charge of murder, they found a packet of drugs in his motor vehicle that turned out to contain a substantial quantity of methylamphetamine.

58.    The Judge noted that a 'very significant quantity of drugs' were found and noted that the "total weight was 126.9 or so grams with a pure amount of methylamphetamine at 42.265 grams, of 33.3 per cent purity" and that it was '20 times the aggravated circumstance in Schedule 3.' The Judge remarked, "There's no doubt at all that there was a commercial element to that." Mr LINCOLN was sentenced to two years imprisonment for this offence.

59.    I find that the sentence Mr LINCOLN received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious.

60.    I acknowledge that Mr LINCOLN's offending history includes one other conviction by the Queensland Local Court on 21 February 2008, for contravene order – identifying particulars. He was fined $200. Mr LINCOLN's offences without conviction/s include property, driving and possession of drugs related offences for which he received fines, recognisance and community service orders.

61.    Notwithstanding Mr LINCOLN's offences without convictions, I find that Mr LINCOLN's premeditated offence of manslaughter resulting in the death of a person, can only be viewed as being very serious. Additionally, while I acknowledge that Mr LINCOLN was convicted of possessing dangerous drug, with the quantity of methylamphetamine found in his possession I accept the Judge's remark that "there is no doubt that there was a commercial element to that." I note that the commercial trafficking of drugs causes serious problems in the community for addicts or users and their families, and involves a significant cost to the community as a result of crimes committed to pay for illicit drugs, and policing, court, corrective services and rehabilitation costs. Given the potential for commerce in drugs in the quantities that Mr LINCOLN was found to have in his possession, I find Mr LINCOLN's drug related offences to be serious. Overall, I find Mr LINCOLN's offending to be very serious.

(Emphasis in original).

29    The Minister then considered whether Mr Lincoln posed a risk to the Australian community through re-offending, by having regard to any mitigating or causal factors in his offending, and having regard to the steps Mr Lincoln had undertaken to reform and address his behaviour, as well as his overall conduct in the custodial and non-custodial environment.

30    The Minister observed that Mr Lincoln was an adult when he chose to take drugs, and found that his addiction to drugs at the time of his offending neither excused his offending nor minimised the seriousness of his offending.

31    In respect of the death of Mr Pullen, the Minister concluded that while Mr Lincoln might be remorseful for his role, his actions and his contemporaneous statement indicated that he did not take responsibility for his actions.

32    The Minister noted evidence that Mr Lincoln had limited personal insight and judgment.

33    In respect of rehabilitation, the Minister had regard to information including several certificates being evidence of the completion of courses in prison, supportive letters from Mr Lincoln’s wife and sister-in-law to the Parole Board, a supportive letter from Mr Lincoln’s course facilitator from 1997 to 2000, and a letter from a former employer of Mr Lincoln who would be prepared to re-employ him. The Minister also noted other information relating to Mr Lincoln’s conduct in prison. The Minister continued:

80.    In light of the above report from Queensland Corrective Services and the documentary evidence of the various courses completed by Mr LINCOLN, I find that Mr LINCOLN has demonstrated a willingness to rehabilitate and that he has actively taken steps to do so. I also accept that his family remains supportive of him. While I accept that the 'clear' drug tests administered are indicative of a lower risk of reoffending, I remain mindful that Dr Yoxall has stated that Mr LINCOLN's methylamphetamine dependence is now in remission while he is in a controlled environment.

81.    I take into account the mitigating circumstances detailed above in relation to Mr LINCOLN's offending, his remorse for his offending, his program attendance, and other progress he has made towards rehabilitation. I give weight to Dr Yoxall's opinion that, "Overall Mr Lincoln did not express attitudes and values supportive of criminal behaviour. However, he did not appear to appreciate the impact that his offending has had on others. His views on future needs and goals were quite simplistic. He reported that he is willing to comply with any ongoing conditions or requirements, including engagement in treatment and/or rehabilitation and reporting to a parole officer. On review of Mr Lincoln's records and what he revealed in interview, it appears that he is highly motivated to change his previous behaviour." I accept that Mr LINCOLN is motivated to change, however I find that Dr Yoxall's comments indicate that Mr LINCOLN has limited insight about the impact his offending had on others.

82.    I also give weight to Dr Yoxall's conclusion of the report that, "In consideration of all available information, it is my opinion that the risk of Mr Lincoln reoffending is moderate and substantially elevated if he relapses to illicit drug use. In my view Mr Lincoln would benefit from a formal rehabilitation and relapse prevention program once he is in the community so that he can learn and implement strategies in this context."

83.    I have also considered the family and professional support Mr LINCOLN has for his rehabilitation, changes in his circumstances motivating rehabilitation and his plans for the future. I accept that being in prison and having his visa cancelled have been salutary. Notwithstanding this, I have given weight to the very serious nature of his offences and his limited insight into his offending. While I acknowledge Mr LINCOLN's efforts at rehabilitation, the support available to him upon his release (including an offer of employment) and his future plans, I find that his rehabilitation has not been tested in the community.

84.    I find that there is an ongoing risk that Mr LINCOLN will reoffend. I consider that should Mr LINCOLN reoffend in a similar manner, it could result in physical and psychological harm to members of the Australian community.

(Emphasis in original).

34    Materially the Minister concluded as follows:

87.    I am not satisfied that Mr LINCOLN passes the character test (as defined by s501).

88.     In considering, in light of Mr LINCOLN's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr LINCOLN's minor children [child 1] and[child 2]. I found that their best interests would be served by the revocation of the original decision.

89.    In addition, I have considered the length of time Mr LINCOLN has made a positive contribution to the Australian community (1998 to 2012) and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr LINCOLN would face if he were removed to New Zealand.

90.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crime committed by Mr LINCOLN, which is of a violent nature.

91.    Further, I find that the Australian community could be exposed to significant harm should Mr LINCOLN reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr LINCOLN.

92.    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr LINCOLN, than I otherwise would, because he has lived in Australia from a young age.

93.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr LINCOLN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration, and any other considerations as described above. These include his lengthy residence in Australia, his ties to Australia - familial, employment and those established through his volunteer activities and the hardship Mr LINCOLN, his family and social networks will endure in the event the original decision is not revoked.

94.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4}(b}(ii), that there is another reason why the original decision under s501(3A) to cancel Mr LINCOLN's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr LINCOLN's Class TY Subclass 444 Special category (Temporary) visa remains cancelled.

application to this court

35    Onn 8 May 2020 I ordered that the applicant be granted an extension of time to file an application for review of the Minister’s decision. The applicant filed an originating application for review of a migration decision on 10 May 2020, which is the application now before the Court. The grounds of the application are as follows:

1.    The Respondent's decision dated 25 February 2020 involved jurisdictional error as the Respondent had regard to irrelevant material in making the decision

Particulars

A.    In deciding not to exercise the discretion conferred by s 501CA(4) of the Migration Act 1958 the Respondent placed significant weight on the risk of the Applicant's ongoing presence may pose to the Australian community.

B.    In making findings about the risk of the Applicant's ongoing presence in Australia may pose to the community, the Respondent relied on details set out in articles and/or reports published by the following news outlets:

i.    The Hinterland Times (article date 9 July 2015);

ii.    ABC News (report dated 1 June 2016);

iii.    The Goulbourn Post (article dated 10 May 2018); and

iv.    The Brisbane Times (article date 30 July 2014).

C.    In considering the above listed article and/or reports, the Respondents noted that they provided, "further detail and Mr Lincoln's role.." [sic], meaning details further to those contained in the remarks of the sentencing judge.

D.    The articles and/or reports identified above were irrelevant to the determination of the risk the Applicant's ongoing presence may pose to the Australian community at The Respondent was bound to adopt the factual findings made by the sentencing Court in deciding whether to exercise the discretion conferred by the Sentencing Court; it was not open to the Respondent to draw on factual assertions made in the reports and/or articles identified above.

E.    In the circumstances where:

i.    the content of the articles and/or reports set out above were relied on by the Minister in making findings regarding risk the Applicant's ongoing presence may pose to the Australian community; and

ii.    the Applicant's ongoing presence may pose to the Australian community was determinative of the Respondent's decision not to exercise the discretion conferred by s 501CA(4).

2. In the alternative to Ground 1, the Respondent's decision involved jurisdictional error as the Respondent's having regard to the material identified in Ground 1 was unreasonable in the legal sense.

Particulars

A. It was unreasonable in the legal sense to rely on factual asserts made in the articles and/or reports identified at 1(B) above in determining whether to exercise the discretion conferred by s 501CA(4) of the Migration Act 1958.

Submissions of the parties

36    In summary the applicant submitted that the Minister erred in having regard to the four media articles. In particular:

    The Minister could not have regard to material which was inconsistent with the sentencing Judge’s remarks.

    An article relied on by the Minister published on 30 July 2014 entitled “Queensland man ‘murdered’ over drug debt: Court” made factual assertions which went beyond the ultimate findings of the sentencing Court on 31 May 2016, and the Minister could not rely on nor have regard to such factual assertions.

    To the extent that the Minister had regard to factual assertions in the four media reports identified in his reasons at [51], where those factual assertions went beyond the matters found by the sentencing Judge that material was irrelevant.

    Even if that material was not “irrelevant” for the purposes of establishing jurisdictional error, it was unreasonable for the Minister to uncritically rely on factual matters which went beyond the findings made by the sentencing Judge.

37    The Minister submitted, in summary:

    There was nothing in the decision record to suggest that the Minister used the content of the four media articles in a way that derogated from or impugned the factual findings of the sentencing Judge.

    The factual matters asserted in the articles were not referred to in the Minister’s reasons for decision.

    The Minister made clear that he fully concurred with the sentencing remarks, and that he adopted the findings of the sentencing Judge.

    The only factual matters extracted by the Minister from the four media articles were set out at [52] of the Minister’s reasons, none of which contradicted the findings of the sentencing Judge.

    The comments of the Minister at [52] related to a different event, namely Mr Lincoln’s failure to provide information to the Queensland Parole Board in relation to the body of the deceased notwithstanding that he was the admitted instigator of the events leading to his death.

    It was logical and rational for the Minister to examine the circumstances surrounding the commission of the relevant offence, including events post-dating the applicant’s sentencing, to inform his assessment of the nature and gravity of the applicant’s criminal conduct.

    The applicant did not suggest that the four media articles were irrelevant when they were put to him for comment on 13 December 2018.

    There was nothing unreasonable about the Minister’s engagement with the article in the Goulburn Post dated 10 May 2018.

38    The Minister sought costs fixed in the amount of $5,000.

Consideration

39    Notwithstanding the distinction in the two grounds on which the applicant relies, a common factor is the extent to which the Minister had regard, if at all, to the contents of the four media articles. In particular, Mr Lincoln relied on the decision of the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, where the Court by majority held that an administrative decision-maker, in deciding whether there was “another reason” to revoke the cancellation of a non-citizen’s visa, was not entitled to make factual findings about the circumstances of an offence or offences inconsistent with those made by a Judge in sentencing the non-citizen for that offence or those offences. In particular, as McKerracher J observed in that case:

77.    As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function… The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

40    In my view this principle is not enlivened by the reasons of the Minister, including comments at [51] and [52] of his reasons.

41    First, it is abundantly clear that, in his reasons for decision, the Minister closely followed the remarks of the sentencing Judge. In particular, I note the detailed acceptance by the Minister of the sentencing remarks in paras [41], [42], [43], [44], [45], [46], [47], [48], [49], [50], [55], [56], [57], [58], [59] and [61] of the Minister’s reasons. Indeed at [55] the Minister specifically adopted the sentencing Judge’s remarks.

42    Second, while the Minister referred to the four media articles at [51], I am not satisfied that the Minister accepted any facts alleged in those articles which were inconsistent with the sentencing Judge’s remarks. In so observing I note that:

    Although the Minister referred to the four media articles, there is no suggestion in the reasons of the Minister that he accepted that the Mr Lincoln had been convicted or sentenced other than in respect of offences for which Mr Lincoln had actually been convicted and sentenced on 31 May 2016 by McMeekin J in the Supreme Court of Queensland.

    A fair reading of the reasons of the Minister is that the Minister noted the four media articles referring to the applicant because they were relatively contemporaneous with the prosecution and later parole application of Mr Lincoln, and they were in the public domain.

    Importantly, the article from the Hinterland Times dated 9 July 2015, the ABC News report dated 1 June 2016, and the article from the Brisbane Times dated 30 July 2014, all predated the sentencing Judge’s remarks. The applicant has not pointed to any facts in those reports to which the Minister either expressly or impliedly referred, or which influenced the decision of the Minister, and which were inconsistent with the sentencing Judge’s remarks on which the Minister so clearly relied.

43    Third, clearly at [52] the Minister referred in short compass to the contents of the article from the Goulburn Post, dated 10 May 2018 (Goulburn Post article). I accept, however, the submission of the Minister that nothing at [52] contradicted the findings of the sentencing Judge, but rather related to a different matter, namely Mr Lincoln’s failure to provide information to the Queensland Parole Board in relation to the location of the corpse of the deceased. No further comment was made in the reasons of the Minister concerning this issue, however I accept the submission of the Minister that this information was relevant to inform the Minister’s assessment of the overall nature and gravity of the applicant’s criminal conduct.

44    Fourth, the extent to which Mr Lincoln has been represented in these proceedings is unclear. As appears from the material before the Court, prior to the hearing there were several communications from lawyers for Mr Lincoln, including his present lawyers, to the Minister. However no explanation has been provided for the absence of response by Mr Lincoln to the Minister’s letter dated 13 December 2018, in particular to the extent that the Minister sought response from Mr Lincoln concerning the four media articles. Certainly, Mr Lincoln did not claim that the four media articles were irrelevant prior to the revocation decision. To that extent it appears that, at the time of the revocation decision, Mr Lincoln took no issue with the relevance of the four media articles despite being invited to do so.

45    In conclusion, in respect of Ground 1:

    The applicant has not demonstrated that the Minister had regard to any fact asserted in the four media articles which was inconsistent with the remarks of the sentencing Judge;

    The applicant has not demonstrated that the Minister relied on details set out in the four media articles which were inconsistent with the remarks of the sentencing Judge;

    In determining whether Mr Lincoln’s ongoing presence in Australia posed a risk to the Australian community, the Minister clearly and unambiguously adopted the factual findings of the sentencing Judge;

    The Minister’s reference to the four media articles was, at most, cursory; and

    The material in the Goulburn Post article was relevant to inform the Minister’s assessment of the overall nature and gravity of Mr Lincoln’s criminal conduct.

46    Ground 1 is not substantiated.

47    In respect of Ground 2:

    I am not satisfied that the Minister had regard to the contents of the four media articles to the extent that facts asserted therein were inconsistent with the findings of the sentencing Judge; and

    For reasons I have already given, it was reasonable for the Minister to have regard to the material in the Goulburn Post article.

48    Ground 2 is not substantiated.

49    As neither ground before the Court is substantiated, the appropriate order is to dismiss the application. Costs are to follow the event, fixed in the amount of $5,000.00.

Associate:

Dated:    14 April 2021