FEDERAL COURT OF AUSTRALIA

Lewer v Minister for Home Affairs [2022] FCA 456

ORDERS

THE COURT ORDERS THAT:

1.    The Minister for Home Affairs be substituted as Respondent in the proceeding in place of the Department of Home Affairs.

2.    The Applicant be granted an extension of time to bring an application in respect of the Respondent’s decision of 15 January 2020 to cancel the Applicant’s visa pursuant to s 501(3) of the Migration Act 1958 (Cth).

3.    The amended originating application dated 14 October 2021 be dismissed.

4.    The Applicant pay the Respondent’s party-party costs to be agreed, and in default of agreement to be assessed by a Registrar on a lump sum basis.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant, Gary Lewer, is a 66-year-old citizen of the United Kingdom who arrived in Australia as a young child in 1960, and has lived in Australia for most of his life. He seeks judicial review of the decision of the respondent, the Minister for Home Affairs, dated 15 January 2020, to cancel his Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa (cancellation decision), and an extension of time within which to bring the application.

2    The Minister cancelled Mr Lewer’s visa pursuant to s 501(3) of the Migration Act 1958 (Cth) (the Act) on the basis that: (a) the Minister reasonably suspects that Mr Lewer does not pass the character test in s 501(6); and (b) the Minister is satisfied that cancellation of Mr Lewer’s visa is in the national interest. Mr Lewer accepts that he has a “substantial criminal record” as defined in ss 501(6) and (7) of the Act and therefore does not pass the character test as he was sentenced in March 1995 to a term of 6 months imprisonment on each of two firearm-related offences.

3    Mr Lewer submits, and it is plain on the materials before the Court, that the cancellation decision is largely based on Victoria Police intelligence holdings summarised in two Victoria Police reports provided to the Minister. It is uncontentious that Mr Lewer has been convicted of a range of offences including firearm, drug possession, violent, break and enter, property and driving offences; and he does not pass the character test because of the terms of imprisonment imposed for the firearms convictions. But the Victoria Police reports go much further than the matters of which Mr Lewer has been convicted; they state that police believe he has been involved in “sophisticated criminal drug importation and manufacturing enterprises” over many years. He has not, however, been convicted on charges of involvement in such enterprises, nor convicted on charges relating to the great majority of the serious conduct outlined in the reports. The Victoria Police reports seek to explain the absence of convictions on the basis that Mr Lewer “possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid detection and therefore is an extremely difficult suspect to investigate”; that there is no one else above Mr Lewer in his criminal groups, that he is “the sole person in charge”; and that he has successfully avoided criminal convictions on a number of occasions, noting that “multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died”.

4    In summary Mr Lewer submits that in making the cancellation decision the Minister fell into jurisdictional error, as:

(a)    there is no evidence to support the Minister’s relevant findings as to his asserted serious criminal conduct and criminal associations; instead being based on little more than suspicion and innuendo. He says police suspicion or belief is not “evidence” capable of supporting the Minister’s conclusion that it is in the national interest to cancel his visa;

(b)    the cancellation decision is legally unreasonable when one takes into account that there is no evidence to support the allegations contained in the Victoria Police reports; the charges he faced for involvement in a criminal drug importation and manufacturing enterprise were withdrawn; there is no ongoing police investigation of Mr Lewer; Mr Lewer was granted a visa in mid-2017 while under police investigation, and the delegate considered exercising the power to refuse to grant him a visa, but granted the visa in any event; and there has been no further offending conduct by Mr Lewer since the grant of the visa;

(c)    there had been no material change in the facts and circumstances relevant to the national interest since Mr Lewer was granted the visa in 2017, and the cancellation power under s 501(3) was not available to be exercised by the Minister on the same facts and circumstances as had previously been before the delegate who granted the visa. Further, that s 501A was the appropriate section under which the Minister was required to consider cancellation of Mr Lewer’s visa, to the exclusion of s 501(3).

5    Centrally, the application raises questions about the probative value of information upon which the Minister could rationally or legally reasonably rely in making the cancellation decision, and thereby cause his removal from Australia, where he has lived for most of his life. Mr Lewer’s arguments are not without force, but for the reasons I explain, I am not persuaded that the Minister fell into jurisdictional error as alleged and the application must be dismissed.

6    Several short points can be made at this stage.

7    First, in circumstances where it is uncontentious that Mr Lewer does not pass the character test, the Minister’s power to cancel Mr Lewer’s visa under s 501(3) of the Act required that the Minister be satisfied that doing so is in the national interest. It is not the fact of it being in the national interest that Mr Lewer’s visa be cancelled that is an issue. Rather it is, first, whether Mr Lewer established there was no evidence to support the Minister’s findings and his satisfaction that it is in the national interest to cancel his visa, and second, whether his satisfaction had a rational and legally reasonable basis.

8    Secondly, in reaching the requisite state of satisfaction the Minister may rely on information which would not be “evidence” in a court of law, provided it is material which could rationally affect his assessment of the probability of the facts in issue.

9    Thirdly, while reasonable minds may differ as to the probative value of the information in the Victoria Police reports, Mr Lewer did not establish that there was no evidence for the Minister’s findings or for the cancellation decision. He did not establish that the cancellation decision is a decision no reasonable decision-maker could have reached on the material before the Minister. It is a decision about which reasonable minds may reasonably differ; but, disagreement, even emphatic disagreement, is not enough to establish jurisdictional error.

10    Fourthly, the evidence does not support Mr Lewer’s contention that in mid-2017 the delegate made a positive decision that granting him the visa pursuant to s 65 of the Act was not prevented by s 501. Further, I am satisfied that the facts and circumstances before the Minister when he was considering cancelling Mr Lewer’s visa under s 501(3) in January 2020 were quite different from those before the Minister’s delegate in mid-2017 when the delegate granted the visa; and the Minister was not precluded from exercising the discretion under that section. Finally, even if the Minister had power to cancel Mr Lewer’s visa under s 501A, I am not persuaded that meant that he had no power to do so under s 501(3).

RELEVANT LEGISLATIVE PROVISIONS

11    Section 65(1) of the Act provides:

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

(Emphasis added.)

12    Section 501(3) provides:

Decision of Minister - natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

13    Section 501(4) provides that the power under subs (3) may only be exercised by the Minister personally. The decision in the present case was so made. Section 501(5) relevantly provides that the rules of natural justice do not apply to a decision under subs (3).

14    Section 501A provides:

Refusal or cancellation of visa--setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

  (a)    a delegate of the Minister; or

  (b)    the Administrative Appeals Tribunal;

  makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister--natural justice applies

(2)    The Minister may set aside the original decision and:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

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

Action by Minister--natural justice does not apply

(3)    The Minister may set aside the original decision and:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

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

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

THE EVIDENCE

15    The evidence is contained in the Court Book dated 12 May 2021 and the Supplementary Court Book dated 13 October 2021, which include:

(a)    the submission from the Department of Home Affairs to the Minister dated 13 December 2019 in respect of whether to cancel the applicant’s visa under s 501(2) or s 501(3) (Departmental submission);

(b)    the cancellation decision dated 15 January 2020;

(c)    the Minister’s statement of reasons for the cancellation decision dated 15 January 2020 (Minister’s reasons), which includes 10 attachments:

(i)    a National Criminal History Check regarding Mr Lewer, dated 12 June 2019;

(ii)    a Victoria Police intelligence unit report regarding Mr Lewer dated 12 July 2019 (first Victorian Police report);

(iii)    a Victoria Police intelligence unit report regarding Mr Lewer dated 10 October 2019 (second Victoria Police report);

(iv)    a print out “Facts Sheet” from the Australian Criminal Intelligence Commission (ACIC) website dated 12 April 2019 regarding organised crime groups (ACIC Facts Sheet);

(v)    partially redacted records of Mr Lewer’s travel to and from Australia;

(vi)    press articles regarding Mr Lewer and his asserted associates;

(vii)    an email from the Australian Taxation Office to the Department dated 24 October 2019 stating that on 21 February 2019 Mr Lewer was convicted on six charges under the Taxation Administration Act 1953 (Cth) for failing to lodge income tax returns from 1 July 2010 to 30 June 2016, for which he was fined $800;

(viii)    an Australian citizenship assessment regarding Mr Lewer dated 16 October 2019, which states that he is not an Australian citizen;

(ix)    an ACIC report entitled “Illicit Firearms in Australia”; and

(x)    the Drugs, Poisons and Controlled Substances (Precursor Supply) Regulations 2010 (Vic); and

(d)    Mr Lewer’s extension of time application dated 5 January 2021, together with an affidavit in support of Meg Elizabeth Liberatore, solicitor, sworn on 23 December 2020.

16    Mr Lewer also relies on an affidavit of Kian Christopher Bone, solicitor, affirmed on 23 September 2021, which annexes copies of documents released by the Department in respect of a request under the Freedom of Information Act 1982 (Cth) (the FOI request), including copies of emails which relate to Mr Lewer’s application for a visa in mid-2017. The Minister objected to the admissibility of the emails on the basis of relevance. I have decided to admit the affidavit and its annexures into evidence.

THE FACTS AND PROCEDURAL BACKGROUND

17    Mr Lewer was born in the United Kingdom in August 1955. The Minister’s reasons state (at [130]) that he arrived in Australia on 1 February 1960 and therefore it appears that he has lived in Australia for approximately 62 years. Mr Lewer says that his family settled in Morwell, where Mr Lewer went to school and completed year 11 in 1972, at the age of 17. As set out at (at [42] below) Mr Lewer’s criminal offending began the following year.

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

The 2017 visa application

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

The Victorian Police reports

20    On 12 July 2019, Victoria Police sent the first Victoria Police report to the NCCC. To explain my reasons it will be necessary to go to both Victoria Police reports in more detail, but it is convenient to now set out some of the reports’ contents and broad conclusions.

21    The first Victoria Police report summarised material it described as “intelligence holdings”, which it states:

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

22    It contains information about Mr Lewer’s asserted or suspected involvement in:

(a)    tax evasion;

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

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

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

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

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

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

(h)    suspected numerous other criminal associations.

23    The report states:

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

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

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

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

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

The cancellation decision

27    On 13 December 2019, the Assistant Secretary of the NCCC provided the Minister with the Departmental submission regarding cancellation of Mr Lewer’s visa under s 501(2) or s 501(3) of the Act. The submission reiterated much of the information set out in the first and second Victoria Police reports, and annexed the reports.

28    On 15 January 2020, the Minister decided to cancel Mr Lewer’s visa pursuant to s 501(3) and provided written reasons dated the same day.

The non-revocation decision

29    On or about 27 March 2020, Mr Lewer was notified by letter of the cancellation decision and was invited to make submissions to the Minister in relation to the possible revocation of the cancellation decision under s 501C(4). The materials do not explain why it took the Department almost two months to so inform Mr Lewer. The letter to Mr Lewer said as follows:

Under s 501C(4) of the Act, the Minister may revoke his original decision if, you are entitled to and make representations in accordance with an invitation within seven (7) days after being given the notice, and you are able to satisfy him that you pass the character test as defined in s 501(6).

Any representations you make can bear only on the question of whether or not you pass the character test, not on the exercise of the Minister’s residual discretion under s 501(3).

You will note that s 501(6)(a), with reference to s 501(7)(d), was the relevant ground of the character test in your case. Therefore, you objectively fail the character test as provided for by s 501(6)(a), on the basis that you have a substantial criminal record as defined by s 501(7)(d) of the Act. This is because you have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

…

As this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you.

However, any representations that you make will be futile unless you can show that you do not have a substantial criminal record.

30    On 3 April 2020, Mr Lewer’s solicitors made submissions to the Department seeking revocation of the cancellation decision. Broadly, the submissions contended that the Minister could not be satisfied that cancellation of Mr Lewer’s visa is in the national interest because:

(a)    the visa was cancelled for the improper purpose of removing Mr Lewer from Australia at the request of Victoria Police “who are frustrated by their failed attempts to link Mr Lewer to significant criminal offending (which he denies), rather than him being a person who posed a real risk to the safety of the community”;

(b)    by cancelling the visa and purporting to remove him to the United Kingdom, Australia risks breaching its obligations under the International Covenant on Civil and Political Rights; and

(c)    the delay between cancellation of the visa and Mr Lewer being notified of the cancellation is so substantial that, despite the fact that the rules of natural justice do not apply, it amounts to a breach of the Minister’s duty to act fairly.

It is evident from these submissions that Mr Lewer’s lawyers did not understand that pursuant to s 501C(4), the only basis for revocation of the cancellation decision was if the Minister is satisfied that Mr Lewer passes the character test.

31    On 8 December 2020, the Minister made a decision not to revoke the cancellation decision because he was not satisfied that Mr Lewer passes the character test (the non-revocation decision).

The application for judicial review of the non-revocation decision

32    On 31 December 2020, Mr Lewer filed an originating application seeking judicial review of the non-revocation decision. It is unnecessary to deal with this application because Mr Lewer accepts that s 501C(4) provides that the Minister can only revoke an original decision under s 501(3) if the Minister is satisfied that the person passes the character test. He accepts that, because he does not pass the character test, there was no basis upon which the Minister could have revoked the cancellation decision.

The application for an extension of time

33    On 5 January 2021 Mr Lewer filed an application seeking an extension of time under s 477A(2) of the Act to file an application for judicial review of the cancellation decision. The application was supported by an affidavit of Mr Lewer’s solicitor at the time which annexed a draft originating application seeking review of the cancellation decision.

34    On 29 July 2021, Mr Lewer was given leave to file and serve a draft amended originating application, which he did on 14 October 2021.

35    The hearing proceeded on the basis that if Mr Lewer was successful in his application for an extension of time, the Court would treat the draft amended originating application as the application for review.

THE MINISTER’S REASONS

36    The Minister’s reasons for the cancellation decision comprise 18 pages, commencing with an overview of the decision, including the statutory provisions under which the decision was made and a summary of Mr Lewer’s right to make submissions about revocation of the decision to the Minister under s 501C: at [1]-[8]. The Minister noted that he could have elected to cancel Mr Lewer’s visa under s 501(2), which would have required that Mr Lewer be afforded natural justice, but had instead decided to proceed under s 501(3): at [9]-[10].

37    Thereafter the Minister’s reasons are divided into four sections:

(a)    a brief analysis of whether Mr Lewer passes the character test and the Minister’s conclusion that he reasonably suspects that Mr Lewer does not pass that test: at [11]-[15];

(b)    a detailed consideration of whether cancelling Mr Lewer’s visa is in the national interest: at [16]-[125];

(c)    a short section headed “other considerations”: at [126]-[138]; and

(d)    the Minister’s conclusion that he is satisfied that it is in the national interest to cancel Mr Lewer’s visa: at [139]-[144].

I now turn to summarise those sections of the reasons.

Character test

38    The “character test” section of the Minister’s reasons briefly summarise the basis for the Minister’s conclusion that he reasonably suspects that Mr Lewer does not pass the character test on account of his “substantial criminal record”, as defined. It is unnecessary to set this out as it is uncontentious that Mr Lewer does not pass the character test.

National interest

39    The “national interest” section of Minister’s reasons commence with an overview of the relevant jurisprudence: at [17]-[21]. The Minister states as follows:

17.    “National interest” is not defined for the purposes of s 501(3). Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

18.    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:

‘The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.’

19.    In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 409, the Full Court referred to the seriousness of the crimes of the visa holder in that case and said:

‘It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa’.

20.    In Re Patterson; Ex parte Taylor (2001) 182 ALR 657, Gaudron J said, after referring to the decision in Gunner, at 676:

‘Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled’.

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

40    Mr Lewer did not take issue with any of these matters.

41    The remainder of the “national interest” section is broken up into four subsections:

(a)    Criminal conduct: at [22]-[36];

(b)    Other serious conduct and criminal associations: at [37]-[97];

(c)    Risk to the Australian community: at [98]-[121]; and

(d)    Conclusion: at [122]-[125].

Criminal conduct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other serious conduct and criminal associations

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

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

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

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

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

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

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

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

(c)    Crown witness;

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

(e)    Investigation into criminal damage by fire;

(f)    Child sex allegations – withdrawn;

(g)    Taxation issues; and

(h)    Criminal associations.

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

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

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

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

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

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

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

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

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

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

Crown Witness

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Investigation into criminal damage by fire

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

Child sex allegations - withdrawn

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

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

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

Taxation issues

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

Criminal associations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Risk to the Australian community

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other considerations

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

Conclusion

80    In concluding his reasons (at [139]-[144]) the Minister summarised his findings under each of the sections referred to above, as follows:

139.     I reasonably suspect that Mr LEWER does not pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(d) and I am satisfied that cancellation of his visa is in the national interest.

140.     In considering whether or not to cancel Mr LEWER’s visa, I note the available information does not indicate that there are any children under 18 in Australia whose best interests would be affected by the cancellation of Mr LEWER’s visa.

141.     I also considered the risk posed to the Australian community by Mr LEWER’s continued presence in Australia, taking into consideration his criminal and other serious conduct as outlined above. Non-citizens such as Mr LEWER who commit such offences and engage in such conduct should not generally expect to be permitted to remain in Australia.

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

143.     I found the above consideration outweighed the countervailing considerations in Mr LEWER’s case, including the impact on family members and friends. I have also considered the length of time Mr LEWER has resided in Australia from a young age, and that he made some positive contribution to the Australian community through his bodybuilding career. I have also considered that Mr LEWER would not face any significant impediments upon return to his home country, although he would face hardship due to separation from family and friends and having had very long term residence in Australia.

144.     I find that the considerations favouring non-cancellation as outlined above, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr LEWER’s Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa under s 501(3)(b) of the Act.

THE EXTENSION OF TIME APPLICATION

81    By application of the 35 day time limit in s 477A(1) of the Act, Mr Lewer was required to file any application for review of the cancellation decision by 19 February 2020. He did not file the draft application for review of the cancellation decision until 5 January 2021, and it was therefore substantially out of time. Under s 477A(2) of the Act the Court has power to extend the time limit if satisfied that it is in the interests of justice to do so.

82    The discretion in s 477A(2) is broad, and is not confined by any obligation to take into account or to ignore any particular matter. The exercise of a discretion to grant an extension of time may be informed by a number of considerations, including:

(a)    the extent of the delay and whether there is an acceptable explanation for it;

(b)    any action taken by the applicant, other than by making the application, which had made the decision-maker aware that the decision is contested;

(c)    any prejudice to the respondent if the extension is granted (although absence of prejudice will not itself justify an extension);

(d)    the merits of the proposed judicial review application; and

(e)    fairness as between the applicant and other persons otherwise in a like position:

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349 per Wilcox J.

83    Although the considerations set out in Hunter Valley concern the discretion to extend time under the Administrative Decisions (Judicial Review) Act 1977 (Cth), in numerous decisions those factors have been endorsed and applied to similar discretions to extend time under other legislation. The factors are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] per Griffiths J with Edmonds J agreeing, citing with approval Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83 at 97 per French J (as his Honour then was). In considering whether to extend time, the consideration of the merits of the proposed grounds of review should be no more than an “impressionistic evaluation”: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 at [68] per Collier, Rangiah and Derrington JJ. In relation to the discretion the courts “have been sensitive to the premature curtailment of a person’s ability to agitate a claimed right” particularly where no other avenue of redress exists and where the consequences of a refusal to extend time are legally and practically significant for the applicant: DHX17 at [69]-[71].

84    The Minister opposes the grant of an extension of time on the basis that the proposed review application has no merit, and there is no adequate explanation for the delay. He notes that there were 355 days between the cancellation decision and the date on which Mr Lewer filed his draft originating application, which exceeds the time provided under the Act by 320 days. The Minister accepts that the delay between 15 January 2020 and 27 March 2020 (72 days) may be explained on the basis that Mr Lewer was not aware of the existence of the cancellation decision until that time; but he says that still leaves an unexplained delay of 248 days.

85    The Minister also notes that, notwithstanding the clear advice in the cancellation notice, Mr Lewer made lengthy representations to the Minister about revocation on 3 April 2020, which included an admission that he failed the character test. He submits that from at least the date of those representations Mr Lewer, who was legally represented, must be taken to have known that the Minister did not have power to revoke the cancellation decision and that his representations were therefore futile. In those circumstances, the Minister argues that there is no adequate explanation for the long delay since that time.

86    Against that, Mr Lewer says that the delay in making an application for review of the cancellation decision occurred as a result of his lawyer’s misunderstanding of the scope of the Minister’s power to revoke the cancellation decision under s 501C(4). That misunderstanding led to submissions being advanced on Mr Lewer’s behalf as to why the Minister should revoke the cancellation decision when, because Mr Lewer does not pass the character test, there was no basis under s 501C(4) for the Minister to do so. Counsel for Mr Lewer accepts that the legal advice given to Mr Lewer at that time was wrong and says that the result of his lawyer’s misunderstanding should not be visited on Mr Lewer.

87    Notwithstanding that I have found against Mr Lewer in the review application, an impressionistic evaluation of its merits for the purpose of the extension of time application, shows that the grounds are reasonably arguable. I am persuaded that once Mr Lewer’s misunderstanding of the scope of the Minister’s power to revoke the cancellation decision under s 501C(4) was realised, the draft originating application to review the cancellation decision was filed. In my view the result of the delay arising from his lawyer’s misunderstanding should not be visited on Mr Lewer. That is particularly so when no other avenue of redress is available to him and if he is not granted an extension of time he will have lost the opportunity to argue that the Minister erred in reaching a state of satisfaction that it is in the national interest to cancel his visa. Against that, the Minister does not argue that he will suffer any prejudice if an extension of time is granted. It is appropriate to exercise the discretion in s 477A(2) to grant Mr Lewer an extension of time to bring the application.

THE REVIEW APPLICATION

88    The amended originating application for judicial review raised six grounds of review, but Mr Lewer abandoned three of those grounds. The application proceeded only in respect of grounds two, four and seven.

Ground 2

89    Ground two of the application alleges as follows:

The Minister fell into error be making the decision to cancel the applicant’s visa on the basis of allegations made by Victoria Police for which there was no evidence, or alternatively that [the decision] was not reasonably open on the materials provided by Victoria Police to the Minister.

90    In oral submissions counsel for Mr Lewer made it clear that this ground is advanced as a “no evidence” case (see e.g. transcript of the hearing (T) at T5.40, 6.22-23, 6.37, 9.01, 9.39, 10.13, 16.07, 16.12, 17.01, 18.17, 18.29-33). I proceed on that basis.

91    Mr Lewer notes that the Minister has “complete freedom” to determine the applicable national interest, and that the Minister said (at [21]) that “the matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it” and also “a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.” The Minister went on to find (at [121]) that:

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

92    Mr Lewer argues that the Minister’s satisfaction that it is in the national interest to cancel his visa is based on:

(a)    the risk he poses to the Australian community through reoffending or further engaging in other serious conduct;

(b)    his involvement in sophisticated criminal drug importation and manufacturing enterprises;

(c)    his leadership of criminal groups;

(d)    his criminal associations;

(e)    his convictions for firearm offences in 1997 and 2016; and

(f)    his amassing substantial hidden wealth from criminal activities.

93    He contends, and it is plain from the Minister’s reasons, that the Minister relied upon the Victoria Police reports in making the cancellation decision. He says, and I accept, that the Minister’s reasons acknowledge that Mr Lewer has not been convicted for being involved in sophisticated criminal drug importation and manufacturing enterprises, nor has he been convicted of the majority of the criminal conduct in relation to which the Victoria Police reports state or suggest he has been involved.

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

95    In relation to the attachments to the first Victoria Police report, Mr Lewer describes them as:

(a)    a copy of a generic article from the ACIC website about organised crime groups that does not refer to him;

(b)    partially redacted movement records showing him travelling to the United Kingdom and Europe;

(c)    a partially redacted internal departmental email requesting movement records relating to him;

(d)    a series of newspaper articles that mention him, including an article from the Herald Sun dated 4 March 2014 which states that the drug importation charges against him had been withdrawn;

(e)    a media article about Mr Voitin that makes no mention him;

(f)    an email between the Department and the ATO in relation to his conviction for not filing tax returns, which resulted in an $800 fine;

(g)    a citizenship status assessment relating to him;

(h)    a copy of his most recent visa application;

(i)    an ACIC brochure on “Illicit Firearms in Australia” that makes no reference to him; and

(j)    an extract of the Drugs, Poisons and Controlled Substances (Precursor Supply) Regulations 2010 (Vic).

He says that the attachments provide no probative support for the Minister’s findings nor the cancellation decision.

96    On his argument, the material in the Victoria Police reports is “vague [and] speculative”, and although “directly about Mr Lewer” it is not capable of supporting the allegations made about him. He contends that most of the information in the reports is no more than speculation or guesswork, some of it does not even refer to Mr Lewer, and overall there is no evidence for the Minister’s findings or the cancellation decision.

97    He takes issue with the Minister’s contention that the no evidence ground must fail if there is a “skerrick” of evidence to support a finding made. He does not accept that the Victoria Police reports are “evidence”; he says that they are intelligence reports based on information either received or inferred by the police for the purpose of informing their operations, and they are not matters that could form a probative basis to prove or disprove the existence of the alleged facts.

98    Mr Lewer relies on various parts of the Minister’s reasons.

99    First, Mr Lewer submits that there is no evidence for the Minister’s findings (at [99]) that he was “convicted of further firearm offences in 1997 and 2016” and that his imprisonment for the 1995 firearms offences did not deter him from reoffending. Mr Lewer notes that the Departmental submission to the Minister said (at paragraph 89) that Mr Lewer was “convicted of firearm offences in 1995, 1997 and 2016”. He points out that the Criminal History Check shows that in 1997 he was convicted of possess prescribed weapon and given a fine, and in 2016 he was convicted of possess/use/carry prohibited weapon without exemption/approval for which he was given a fine; neither of which conviction mentions a firearm. It is uncontroversial that he was convicted of firearms offences in 1995; but he argues that there is no evidence he was convicted of firearm offences in 1997 and 2016. Counsel for Mr Lewer also says he is instructed (although he put on no evidence to support) that the weapons relevant to the 1997 and 2016 convictions were a knife and a bow respectively.

100    Second, Mr Lewer contends there is no evidence for the (asserted) findings (at [77]-[78]) that he has “amassed substantial hidden wealth from criminal drug and other activity” which he has used to purchase “two multimillion dollar properties.” He refers to paragraphs 6 and 7 of the first Victoria Police report which relevantly state that “[i]nvestigators have established that Gary Lewer has no known lawful means of income and has amassed substantial hidden wealth from criminal drug activity”; and that “[l]ong held intelligence holdings reveal Gary Lewer is known to hide large sums of cash.” He says those statements are not evidence upon which the Minister could rely for the findings made nor for the cancellation decision; noting that the Minister did not have before him any other material, such as the primary intelligence holdings upon which the Victoria Police investigators relied in reaching the stated view.

101    Relatedly, Mr Lewer refers to the statements in paragraph 8 of the first Victoria Police report that both of the “multimillion dollar home[s]” “are linked to; fake companies, a fictitious person named ‘Daniel James’ and a solicitor John Voitin who is knowingly implicated in this fraudulent scheme.”

102    In this regard he points to an attachment to the Minister’s reasons, a newspaper article from The Age dated 31 July 2019 which carries the headline “Bikie lawyer’s farm burnt out in suspicious Bellarine Peninsula blaze”. The Minister said (at [96]):

The intelligence report states that Mr LEWER associated with solicitor John Voitin. I note the article in the Age on 31 July 2019, ‘Bikie lawyer’s farm burnt out in suspicious Bellarine Peninsula blaze’ states that a suspicious fire razed the Bellarine Peninsula home of a high profile bikie lawyer, John Voitin, just weeks after vandals trashed his luxury property in Melbourne’s inner east. The article further states that Mr Voitin was due to face a committal hearing at the Melbourne Magistrates Court on the following Monday (5 August 2019) on charges of false accounting after bikie taskforce police raided his former business in March 2018, as part of a major investigation into alleged money laundering on behalf of the Comanchero motorcycle gang.

103    Then, in the following paragraph which concluded the section of the Minister’s reasons headed “[o]ther serious conduct and criminal associations”, the Minister acknowledged (at [97]) that while “Mr Lewer has not been convicted of offences linked to the aforementioned covert operations”, he was satisfied that “police intelligence holdings demonstrate that Mr Lewer has engaged in other serious conduct, through his involvement in sophisticated drug operations and violent conduct, and through his significant criminal associations.”

104    Mr Lewer submits there was no evidence before the Minister of any link between Mr Lewer, Mr Voitin and the Comanchero motorcycle gang, and that the inclusion of the The Age article in the materials before the Minister does not establish any such link. On his argument, the article provides no support for the allegation in the Victoria Police report that he and Mr Voitin had a “close and dishonest association”, nor that he amassed a substantial fortune from his criminal activities. He says the article is not evidence capable of supporting any finding by the Minister nor the cancellation decision.

105    Third, Mr Lewer points to the statements in paragraphs 34 to 37 of the first Victoria Police report that relate to the investigation into and prosecution of Mr Cousens which did not proceed as a result of the Chinese Ministry of Justice revoking its approval for two Chinese witnesses to give evidence against Mr Cousens in relation to charges of importing a large quantity of precursor chemicals. Mr Lewer also says there is no evidence for the statement that Mr Lewer had “a close and dishonest association” with Mr Voitin who had substantial business interests and contacts in Hong Kong. He notes that while the report said (at paragraph 38) that “it cannot be excluded” that Mr Lewer, through his association with Mr Voitin, “had the means and finances available to bribe an official in the Chinese Ministry of Justice”, it confirmed there is “no direct evidence to support this belief”. He says that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.

106    Fourth, Mr Lewer refers to the statements in paragraphs 11-13 of the first Victoria Police report which refer to Covert Drug Operation 2, as summarised above at [50]-[56]. In brief, the report states that: between those dates, Mr Lewer was under investigation in relation to the storage by Chemcyle of large quantities of precursor chemicals; investigators established that Mr Lewer was responsible for the importation of precursor chemicals for the purpose of supplying a network of organised crime associates who were manufacturing methylamphetamine; Mr Hutton imported chemicals under Mr Lewer’s direction; and the profits were shared between Mr Lewer, Mr Hutton and Ms Hutton.

107    Mr Lewer submits that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision. Counsel for Mr Lewer says he is instructed (but put on no evidence as to this) that while Mr Hutton was charged in relation to the inappropriate storage of chemicals, that was not in relation to the sale of precursor chemicals for the purpose of illegal drug manufacturing. Mr Lewer argues that if the police had evidence of Mr Hutton or Chemcyle being involved in such activity there would be trading records, bills of lading, transport documents and the like which might provide a probative basis for the allegations in the report, but there was no such material before the Minister. He notes that the material before the Minister does not include any police witness statements that would ordinarily provide a probative basis for such allegations. Finally, Mr Lewer notes that while charges were laid against him in 2013 for possess substance to traffick (manufacture) in a drug of dependence, possess material to traffick (manufacture) in a drug of dependence and possess equipment to traffick (manufacture) in a drug of dependence, the charges were subsequently withdrawn.

108    Fifth, Mr Lewer points to paragraphs 14-16 of the first Victoria Police report which state that “[b]etween 29/04/2013 and 14/05/2013, investigators became aware of three Crime Stoppers reports disclosing large quantities of precursor chemicals being stored at a factory premises in Seaford and a residential dwelling in Frankston”, and that subsequent investigations identified the chemicals as being connected to Mr Hutton. He notes that the Minister was not provided those Crime Stoppers reports nor any other probative material such as witness statements, photographs or CCTV footage which could have provided a basis for the allegations. He says that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.

109    Sixth, Mr Lewer says there is no evidence for the statements in paragraphs 17-19 of the first Victoria Police report. Those paragraphs said that Mr Hutton, Mr Frier and Heiko Kreuger were charged in relation to the seizure of “unprecedented quantities” of Schedule 1, Precursor Chemicals as specified in the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007 (Vic) from properties in Skye, Dandenong South and Airport West. The report then said:

Investigators identified Gary LEWER as being directly associated with HUTTON and FRIER. Gary LEWER was suspected of being associated with Kenneth WIGGETT through Vincent MENDEZ (deceased) and other persons, with KREUGER. Gary LEWER was to be charged but at a later time.

Mr Lewer submits that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.

110    Seventh, Mr Lewer points to paragraph 21(b) of the first Victoria Police report which states that investigations with the Drug & Organised Crime Task Force, Serious & Organised Crime Branch, South Australia Police established that:

Late 2011 and 2012, South Australian Police investigations during Operation Dream establish that Rasim KASUMOVIC’s brother, Yasmin KASUMOVICc, travelled from South Australia to Victoria to meet an unidentified person (Gary LEWER) to obtain nitroethane and nitromethane and that he would return to South Australia the following day.

He submits there is no evidence for the allegation that the unidentified person was Mr Lewer, nor how it is said that the police knew or believed it was Mr Lewer. Mr Lewer submits that there was no evidence before the Minister which linked him to the sale of nitroethane and nitromethane, and no evidence to support any related finding by the Minister nor the ultimate decision.

111    Eighth, Mr Lewer relies on parts of the Victoria Police reports which set out matters that police investigators “suspect” or “believe”. By way of example, he refers to:

(a)    paragraph 28(f), which states:

Given the association similarities with LEWER, SCHMIDT, MOKBEL, SPALIVIERO, GREGORIADES and Lei (Eric) ZHANG, investigators suspect it is highly likely LEWER had learned of Lei (Eric) ZHANG through his association with SCHMIDT and passed this information onto Shaun COUSENS to make contact with Lei (Erin) ZHANG.

(Emphasis added.);

and

(b)    paragraph 30, which states:

Investigators believe that Gary LEWER and Shaun COUSENS had the opportunity to make substantial profits whether they sold the substance unmanufactured or manufactured into phenyl-2-propane (P2P) or methylamphetamine.

(Emphasis added.)

Mr Lewer contends that assertions of suspicion and belief by police investigators, without evidence to support that belief, are not evidence upon which the Minister was able to make any related finding nor the cancellation decision.

112    Ninth, Mr Lewer also relies on an article in The Age dated 5 March 2014 with the headline “Chinese man ‘taught’ Melbourne artist how to make drug ice, court told”, which was attached to the Minister’s reasons. The article primarily concerned Mr Cousens, but also referred to Mr Lewer in the following terms:

Mr Cousens, 42, applied for bail on Tuesday as his uncle Garry Lewer - former Mr Australia, Mr World and Mr Universe bodybuilder - had three charges issued against him last year withdrawn.

Mr Lewer, 58, had earlier been linked in court to Mr Cousens and other men charged over what police believe was the largest-ever seizure of precursor chemicals in Victoria.

He was charged with conspiring to possess sodium 3-0x0-phenylbutanoate with the intention of using it to traffic a drug of dependence.

He was also charged with conspiring with [sic] to possess equipment to use for the purposes of trafficking a drug of dependence and possessing equipment with the intention using it to traffick the same drug.

Patrick O’Halloran, of behalf of the Director of Public Prosecutions, told magistrate Gerard Lethbridge that three charges in total would be withdrawn.

(Emphasis added.)

113    Mr Lewer contends that the article is not evidence that he engaged in the alleged conduct; it is nothing more than a media report of a police allegation about someone who had a profile that may have been of interest to members of the public.

114    Tenth, Mr Lewer notes that paragraphs 31-33 of the first Victoria Police report state that: on 27 August 2013 Ms Hutton was interviewed and made a statement implicating her in conspiring with her husband and Mr Lewer in the importation and sale of precursor chemicals; Mr Lewer was subsequently charged with a number of offences related to Covert Drug Operation 2; Ms Hutton was placed in witness protection but against police advice she discontinued police assistance; on 21 February 2014 she was found hanging by the neck and died eight days later, which was after her statement was provided to solicitors acting for Mr Lewer at the time; and as a result of Ms Hutton’s death the prosecution case against Mr Lewer could not proceed and all charges against him were withdrawn on 4 March 2014. He submits that there is no evidence to show that he possessed substances, material or equipment to manufacture and/or traffick a drug of dependence, nor that he had anything to do with the death of Ms Hutton, and there was no evidence before the Minister to make any related findings nor the cancellation decision.

115    Mr Lewer notes that the first Victoria Police report does not contain Ms Hutton’s statement nor any other evidence that would support the allegations that Ms Hutton apparently made. He says that if such a statement exists it should have been before the Minister as evidence of the conduct alleged.

116    Eleventh, Mr Lewer relies on [109]-[110] of the Minister’s reasons where he said:

I have had regard to the police intelligence that states that Mr LEWER has amassed substantial wealth despite not having a lawful means of income. I note that Mr LEWER was charged with Failure to furnish a prescribed form (Tax return) between 2011 and 2017 and was fined.

I consider financial crimes have a widespread impact on the revenue available to the government and are often linked to criminal activity, as indicated in the intelligence report.

117    Mr Lewer accepts that he was convicted for not filing tax returns from July 2010 to June 2016 and was fined $800. Counsel for Mr Lewer submits (but put on no evidence to support) that the income tax that had not been identified because of Mr Lewer’s failure to file returns was approximately $6,000, which equates to roughly $1,000 per year for the relevant period. Having regard to those amounts, Mr Lewer submits there is no evidence to suggest that he was engaging in criminal activity, and was evading tax in order to fund the alleged criminal conduct.

118    Twelfth, Mr Lewer points to: (a) the ACIC Facts Sheet (referred to in the Ministers reasons at [112]) which states that organised crime groups pose a threat to the Australian community; and (b) the ACIC report on illicit firearms in Australia. He submits, and it must be accepted, that they are all general documents which do not relate directly to Mr Lewer, and they are not evidence that he has participated in any of the offending conduct alleged in the Victoria Police reports.

119    In summary he argues that there was no evidence before the Minister in support of various findings that are critical steps in the cancellation decision, and no evidence to support the cancellation decision.

Consideration

120    It is in error of law to make a finding of fact for which there is no evidence: Bond at 355-356 and 367-368. In the context of a no evidence contention, “evidence” means “some evidence or other supporting material” (emphasis added); it means “not a skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17] per Keane, Gordon, Edelman, Steward and Gleeson JJ.

121    In the context of an administrative decision, “no evidence” is a reference to there being no “material which could rationally affect the decision-maker’s assessment of the probability of the facts in issue”: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [235] per Basten JA with Bathurst CJ agreeing; Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [50] per Jessup J. In relation to a no evidence case, an administrative decision-maker is usually entitled to take into account material which would not count as “evidence” in a judicial context: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] per Basten JA with McColl JA agreeing, cited with approval in D’Rozario at [65].

122    Further, to establish jurisdictional error, Mr Lewer must go further than show that there is no evidence in support of a finding of fact; for the decision to be outside power the relevant finding must be one that is (at least) a “critical step” or “crucial” in making the decision under review: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19] per Mansfield, Selway and Bennett JJ; Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [23] per Marshall, North and Flick JJ; SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [57]-[59] per Madgwick J. I say “at least” because other decisions have said that a finding of fact made with no evidence will amount to jurisdictional error only where the relevant finding is a precondition to the exercise of jurisdiction: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 21 [39] per Gummow and Hayne JJ; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; 154 FCR 302 at [19] per Heerey J; SZAPC at [47], [57].

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

124    Second, Mr Lewer’s contention that the material relied upon by the Minister in support of various findings was “vague [and] speculative” in substance goes to whether the cancellation decision was reasonably open to the Minister, not to whether there was no evidence. His no evidence case was that the Victoria Police reports are not evidence which could have rationally affected the Minister’s assessment of the probability of the facts in issue and in making the cancellation decision. He contends that, in the absence of primary documents such as witness statements, Crime Stoppers’ reports, CCTV footage, transport documents or bills of lading to support the various allegations against Mr Lewer in the Victoria Police reports, there was no evidence before the Minister.

125    I do not accept that contention. While the absence of such primary documents is relevant to the weight to be given to the allegations in the Victoria police reports, their absence does not show that there was not a “skerrick” of supportive material before the Minister. The intelligence holdings on which the Victoria Police reports were based were created and maintained by regulated State-based organisations with a statutory obligation to investigate crime, and the Minister was entitled to treat the reports as having been prepared carefully and in good faith. It was his task to evaluate the reports and form a view as to their cogency, and to give the reports weight if he considered that appropriate. He was not obliged to seek out the primary material gathered by Victoria Police and other law enforcement agencies comprising the intelligence holdings themselves. The Victoria Police reports are more than a “skerrick” of material which could have rationally affected the Minister’s assessment of the probability of the facts in issue.

126    Third, looked at in isolation I can accept that the fact that Mr Lewer has not been convicted of the great majority of the conduct alleged in the Victoria Police reports indicates that it was open to the Minister to give little weight to the unproven allegations. But the Victoria Police reports also included material which meant it was open to the Minister to see the absence of convictions in a different light, including that:

(a)    after a lengthy police investigation in Covert Drug Operation 2, Mr Lewer was charged in 2013-2014 with possess substance to traffick (Manufacture) in a drug of dependence, possess material to traffick (Manufacture) in the drug of dependence, possess equipment to traffick (Manufacture) in a drug of dependence. According to the first Victoria Police report those charges were only withdrawn because of the untimely death of a critical witness, Ms Hutton;

(b)    in 1995 numerous sexual offence charges were laid against Mr Lewer and nine others in relation to an incident involving two 15 year old girls. The second Victoria Police report states that both girls made statements against all the accused and photographs were seized of the men having sex with one of the girls. It further states that, at the commencement of the Magistrates Court hearing on 27 November 1996 both girls unexpectedly refused to give evidence and as a result all of the sexual offence charges were withdrawn;

(c)    the second Victoria Police report states that there is a “common theme of Mr Lewer’s suspected involvement in investigations and court cases against him being undermined due to witnesses being too fearful to make statements implicating him in crimes”;

(d)    the Minister was entitled to take into account allegations of serious criminal and other conduct that was not the subject of a conviction, including because the first Victoria Police states that the intelligence holdings clearly display a “systematic, consistent course of criminal association and serious criminal conduct over a sustained period of many years” and that Mr Lewer “possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid detection and therefore is an extremely difficult suspect to investigate” (at [2] and [66]); and

(e)    the Minister said (at [105]) that Mr Lewer “has successfully avoided criminal convictions on a number of occasions, noting that multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died”.

127    It was the Minister’s task to consider what weight to give the absence of convictions for the majority of the alleged serious criminal and other conduct and his reasons show that he did so. For example, the Minister said:

(a)    (at [115]) that he had taken into account that the first Victoria Police report said that “the material in its totality exceeds mere coincidence that Gary Lewer has been the subject of various high-level Police Operations between 1981 and 2017. He has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises…” (emphasis added); and

(b)    (at [118]) that “notwithstanding the absence of convictions in relation to the majority of the conduct outlined in the report”, in light of Mr Lewer’s criminal history and the magnitude of police intelligence over an extended period of time, “overall I find that Mr Lewer has engaged in serious criminal and other conduct”.

128    More fundamentally, in relation to the no evidence case, the question is not whether the Minister erred in attributing weight to the allegations in the Victoria Police reports because of the absence of convictions for that conduct; it is whether Mr Lewer established that there is not a skerrick of evidence to support the impugned findings. In my view he did not establish that.

129    Fourth, I do not accept that there is no evidence to support the Minister’s finding (at [33]) that Mr Lewer committed further firearm offences in 1997 and 2016. The Criminal History Check shows that in 1997 Mr Lewer was convicted of possess prescribed weapon and was given a fine; and in 2016 he was convicted of possess/use/carry prohibited weapon without exemption/approval for which he was given a fine, but it said nothing about the nature of the weapons beyond describing them as “prescribed” and “prohibited”.

130    The Departmental submission, however, informed the Minister that “Mr Lewer was convicted of firearm offences in 1995, 1997 and 2016”, and referred to the Criminal History Check. It was open to the Minister to treat the information in the Departmental submission as having been prepared carefully and in good faith, and he was not required to look behind the submission, by asking, for example, to see copies of the presentments or witness statements from 1997 and 2016 to ascertain whether the “prescribed” or “prohibited” weapons referred to were, in fact, firearms. The Departmental submission is, in my view, more than a skerrick of material which could rationally affect the Minister’s assessment of the probability of those facts.

131    Further, Mr Lewer did not establish that the finding that he was convicted of further firearm offences in 1997 and 2016 was erroneous. Counsel for Mr Lewer says that he is instructed that the weapons referred to in the 1997 and 2016 convictions were a knife and a bow respectively, but he adduced no evidence as to that. It would have been straightforward for Mr Lewer to adduce evidence as to the nature of the two weapons but he did not. Mr Lewer had the onus to establish jurisdictional error, and it was incumbent on him to put on material to show that the finding was erroneous. He did not do so.

132    Even if (contrary in my view) the Minister’s finding in relation to the 1997 and 2016 offences was erroneous, Mr Lewer did not establish that the finding was a critical step in the cancellation decision. It was just one of a raft of matters to which the Minister referred in making that decision and, on a fair reading, the Minister was principally concerned with Victoria Police’s intelligence holdings about Mr Lewer which were stated to “clearly display a systematic, consistent course of serious conduct including criminal associations, over a sustained period of many years.” The suggested existence of two further convictions for firearm offences, for which the penalty imposed was only a fine, was not a critical step in the cancellation decision.

133    Fifth, for similar reasons I do not accept Mr Lewer’s contention that there is no evidence in support of the asserted finding (at [77]-[78]) that Mr Lewer has “amassed substantial hidden wealth from criminal drug and other activity.”

134    Each of those paragraphs commence with the phrase “[t]he intelligence report states” and then reiterates, almost word for word, parts of paragraphs 6-8 of the first Victoria Police report. Those paragraphs informed the Minister that:

6.    Gary LEWER was a professional body builder, a former Mr Universe and multiple Mr Australia title holder. Investigators have established that Gary LEWER has no known lawful means of income and has amassed substantial hidden wealth from criminal drug activity.

7.    Long held intelligence holdings reveal Gary LEWER is known to hide large sums of cash. It has further been established that Gary LEWER has evaded taxation by concealing assets. He has failed taxation returns over many years. Gary LEWER resides in a multimillion dollar home at [address supplied] and his ex-wife Kathryn MACDONALD whom he has a strong relationship with resides at another multimillion dollar home at [address supplied]. The properties are less than a kilometre apart.

8.     Both homes are linked to; fake companies, a fictitious person names “Daniel JAMES” and a solicitor John VOITON who is knowingly implicated in this fraudulent scheme. Although both homes have been purchased through criminal proceeds by Gary LEWER, he and Kathryn MACDONALD are merely occupants with no known lawful ownership.

135    I do not accept that [77]-[78] of the Minister’s reasons comprise “findings”; the Minister merely set out what he was informed by the first Victoria Police report.

136    Further, the substance of this contention is that there is no evidence underpinning Victoria Police’s intelligence holdings. This misconceives the necessary analysis which does not involve an inquiry as to the evidentiary basis for Victoria Police’s intelligence holdings, it concerns whether there was evidence before the Minister which could rationally affect his assessment of the probability of the facts in issue.

137    As I have said, the first Victoria Police report summarised intelligence holdings created and maintained by Victoria Police. The Minister was entitled to treat the reports as having been prepared carefully and in good faith. It was his task to evaluate the information provided and form a view as to its cogency, and it was open to him to give the reports weight if he considered that appropriate. The Minister was not obliged to seek out the primary material underpinning the matters summarised in the first Victoria police report. The report itself is more than a skerrick of material which could rationally affect the Minister’s assessment of the probability of the facts in issue.

138    Sixth, I accept Mr Lewer’s contention that The Age newspaper article on 31 July 2019 provides no support for the Minister’s findings (at [97]) that Mr Lewer has “significant criminal associations”, nor for the (asserted) finding that he and Mr Voitin had a close and dishonest association, nor for the cancellation decision. That does not, however, take matters very far because there is little to indicate that the newspaper article was the basis for the asserted findings.

139    On a fair reading of the Minister’s reasons, the finding that Mr Lewer has significant criminal associations was based on the intelligence holdings in the first Victoria Police report (summarised above at [69]), which related to his association with various proven or suspected criminals including Sonny Schmidt, the Cavuoto family, Yasmin Kasumovic, his son Brayden, his former spouse Ms MacDonald, Shaun Cousens, Kenneth Wiggett, Daniel Justin, Ian Lesser, Mark Lesser and Zoltan Pastean. Those findings were not based on the newspaper article.

140    Nor, on a fair reading, was the asserted finding that Mr Lewer had a close and dishonest association with Mr Voitin based on the newspaper article. It was based on the first Victoria Police report which said (at paragraphs 37-38) that investigations had established that Mr Lewer “had a close and dishonest association with solicitor John Voitin who had substantial business interests and contacts in Hong Kong”. The report also stated at paragraph 8 that both Mr Lewer and Ms MacDonald’s “multimillion dollar homes” are linked to fake companies and Mr Voitin, who is “knowingly implicated in this fraudulent scheme”. The Departmental submission summarised those aspects of the first Victoria Police report at paragraphs 51 and 69.

141    Seventh, Mr Lewer submits that the Minister was not entitled to rely on assertions of suspicion and belief by police investigators to make findings. He put forward some examples of matters suspected or believed by police investigators set out in the first Victoria Police report, which the Minister reiterated in the reasons, but Mr Lewer did not identify the findings which he seeks to impugn in this regard. For example:

(a)    in relation to paragraph [28](f) of the first Victoria Police report, the Minister’s reasons said only that: “[t]he intelligence report states that investigators suspect it is highly likely that Mr Lewer learned of Lei (Eric) Zhang through his association with Mr Schmidt and passed this information on to Shaun Cousens to make contact with Lei (Eric) Zhang” (at [82]).

(b)    in relation to paragraph 30 of the first Victoria Police report, the Ministers reasons said only that: “[i]nvestigators believe that Gary Lewer and Shaun Cousens had the opportunity to make substantial profits whether they sold the substance unmanufactured or manufactured into phenyl-2-propane (P2P) or methylamphetamine.”

142    In my view the Minister did not make any finding that, in fact, Mr Lewer learned of Mr Zhang through his association with Mr Schmidt and passed the relevant information on to Mr Cousens, nor that Mr Lewer and Mr Cousens had the opportunity to make substantial profits whether they sold the precursor chemicals unmanufactured or manufactured.

143    Ground two is dismissed.

Ground 4

144    Ground four of the application alleges as follows:

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

145    Mr Lewer submits that the national interest that was determined by the Minister as applicable in this case includes the seriousness of the alleged criminal conduct having regard to the circumstances and nature of the conduct, any disposition imposed by the court in respect of that conduct, and the consideration of the risk of Mr Lewer reoffending. He says, and I accept, that the Minister substantially relied upon the Victoria Police reports in reaching the requisite state of satisfaction that it is in the national interest to cancel his visa.

146    He relies on Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [7], [9] and [11] where Allsop CJ explained the concept of legal unreasonableness based on an “outcome-focused” conclusion, without any specific jurisdictional error being identified: see Stretton at [6] citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44] per Allsop CJ, Robertson and Mortimer JJ. He asserts legal unreasonableness of this type.

147    On Mr Lewer’s argument, while the Minister acknowledges the absence of convictions in relation to the majority of the conduct outlined in the Victoria Police reports, and refers to “serious” conduct by Mr Lewer rather than “criminal” conduct, it is impossible to comprehend how the cancellation decision was arrived at in circumstances where:

(a)    all charges for the matters that Mr Lewer was investigated for by Victoria Police that are referred to in the Victoria Police reports were withdrawn;

(b)    there is no ongoing police investigation of Mr Lewer;

(c)    Mr Lewer was granted a visa in mid-2017 while under police investigation, and the delegate considered exercising the power to refuse to grant him a visa, but granted the visa in any event;

(d)    there has been no further offending conduct by Mr Lewer since the grant of the visa; and

(e)    there is “no evidence” to support the allegations contained in the Victoria Police reports.

He contends that the Minister’s decision lacks evident and intelligible justification and is therefore legally unreasonable.

Consideration

148    Section 501(3) of the Act provides a discretion to cancel a visa (i.e. “[t]he Minister may cancel a visa…”) held by a person, if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that cancellation is in the national interest. The issue under this ground is not whether cancellation of Mr Lewer’s visa was, in fact, in the national interest; it is whether the Minister was satisfied on a rational or legally reasonable basis that doing so is in the national interest: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [26]–[29] per French CJ, [63] per Hayne, Kiefel (as her Honour then was) and Bell JJ and [88] per Gageler J.

149    In Stretton at [4]-[6], Allsop CJ explained the principles relevant to deciding whether a decision shows legal unreasonableness using an outcome-focused analysis. His Honour explained (at [11]) that the task is not definitional, but one of characterisation, having regard to the terms, scope and purpose of the statutory source of power:

...[T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

150    The expression of the requirement for lawful satisfaction has been variously described over the years.

151    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J, their Honours explained that an administrative decision will not involve legal unreasonableness if a reasonable decision-maker could reach that decision or make that finding, on the same material. If the decision (or a state of satisfaction) is one upon which reasonable minds can differ, it will not be illogical, irrational or legally unreasonable so as to show jurisdictional error simply because one conclusion has been preferred to another possible conclusion. To similar effect, in Stretton at [21] Allsop CJ observed that the question is “whether a decision-maker could reasonably come to the conclusion” reached.