Lawrence v Minister for Home Affairs
[2022] FedCFamC2G 617
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Lawrence v Minister for Home Affairs [2022] FedCFamC2G 617
File number(s): PEG 46 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 4 August 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of United Kingdom – involvement with outlaw motor cycle gang – Resident Return Visa cancellation whilst overseas – whether irrational or unreasonable error in finding of involvement in criminal activities – whether unreasonableness or constructive failure to exercise jurisdiction because of failure to make obvious inquiries – whether procedural unfairness – whether jurisdictional error – writs issued Legislation: Federal Court of Australia Act 1976 (Cth) s 32AB
Migration Act 1958 (Cth) ss 116, 128, 129, 131, 476A, 503A
Migration Regulations1994 (Cth) Sch 4, PIC 4013
Queensland Criminal Code (Criminal Organisations) Regulation 2013 (Qld)
International Covenant on Civil and Political Rights arts 17, 23
United Nations Convention of the Rights of the Child art 9
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, (2015) 255 CLR 352; (2015) 89 ALJR 382; (2015) 317 ALR 279; (2015) 147 ALD 470
Bhangu v Minister for Immigration and Border Protection [2017] FCA 108
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Brown v Minister for Immigration and Citizenship [2009] FCA 1098; (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113; (2010) 265 ALR 668; (2010) 114 ALD 477
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121; (2019) 168 ALD 1
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448; (2009) 83 ALJR 539; (2009) 253 ALR 219
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112
Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; (1997) 24 AAR 457; (1997) 153 ALR 463; (1997) 45 ALD 136
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105
Muliaga v Minister for Immigration and Citizenship [2011] FCA 1168; (2011) 124 ALD 162
MZABA v Minister for Immigration and Border Protection [2015] FCA 711; (2015) 234 FCR 425
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052
Ozer v Minister for Home Affairs [2019] FCA 104
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 23
Shaw v Wolf (1998) 83 FCR 113; (1998) 163 ALR 205
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 8 November 2021 Place: Perth Counsel for the Applicant: Mr N Wood by CISCO Webex Solicitor for the Applicant: Putt Legal Counsel for the First Respondent: Mr C Tran by CISCO Webex Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 46 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KEVIN MICHAEL LAWRENCE
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the respondent made on 30 November 2020 not to revoke the cancellation of the applicant’s Resident Return (Subclass 155) Visa.
2.A writ of mandamus issue requiring the respondent to re-determine whether or not to revoke, under s 131(1) of the Migration Act 1958 (Cth), a decision made on 14 February 2018 by a delegate of the respondent under s 128 of the Migration Act 1958 (Cth) to cancel the applicant’s Resident Return (Subclass 155) Visa.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).REASONS FOR JUDGMENT
JUDGE LUCEV
On 31 December 2020 the applicant, Mr Kevin Michael Lawrence (“Mr Lawrence”), lodged an application for judicial review (“Judicial Review Application”) pursuant to s 476A of the Migration Act 1958 (Cth) (“Migration Act”) in the Perth Registry of the Federal Court of Australia. The Judicial Review Application related to a 30 November 2020 decision of the Minister for Home Affairs (“Minister”), under s 131 of the Migration Act not to revoke the cancellation (“Minister’s Decision”) of Mr Lawrence’s Class BB Subclass 155 (Resident Return) RR Visa (“Resident Visa”). The Minister’s Decision was made in response to a decision by a delegate of the Minister (“Delegate” and “Delegate’s Decision” respectively) on 14 February 2018 to cancel Mr Lawrence’s Resident Visa relying on s 116(1)(e)(i) of the Migration Act.
On 2 March 2021, by order of the Federal Court, pursuant to s 32AB(1) of the Federal Court of Australia Act1976 (Cth), this matter was transferred to this Court (then styled as the Federal Circuit Court of Australia).
An amended Judicial Review Application was filed on 19 July 2021 (“Amended Judicial Review Application”). There are three grounds of review, as set out below at [58].
The Court Book (“CB”) numbering 518 pages was marked as Exhibit 1.
BACKGROUND
Up to the time of the Delegate’s Decision
Generally, the relevant background prior to the Delegate’s Decision is as follows:
(a)Mr Lawrence is a citizen of the United Kingdom, born in 1961: CB 11 at [1];
(b)on 20 January 1968 Mr Lawrence first arrived in Australia at age seven with his family: CB 11 at [2];
(c)on 2 April 1988 Mr Lawrence was granted a Transitional (Permanent) visa by operation of law: CB 11 at [2];
(d)on 24 August 2015 Mr Lawrence was granted a Resident Visa: CB 11 at [2];
(e)on 8 February 2018 Mr Lawrence travelled to Thailand: CB 11 at [2]; and
(f)on 14 February 2018 Mr Lawrence’s Resident Visa was cancelled by the Delegate under s 128 of the Migration Act relying upon a ground in s 116(1)(e)(i) of the Migration Act. The Delegate’s Decision was made on the basis that Mr Lawrence presents a risk to the safety of the Australian community due to Mr Lawrence’s Outlaw Motor Cycle Gang (“OMCG”) links.
Delegate’s Decision
The Delegate’s Decision was predicated on the basis that Mr Lawrence’s OMCG links were with a recognised OMCG operating in Western Australia, namely the Rebels, said to be known to be engaged in illegal activity including “illicit drug offending, money laundering, extortion and violence” and that the Western Australian Police (“WAPOL”) considered Mr Lawrence to be a risk to the Australian community given his criminal history and links to the Rebels.
Attached to the Delegate’s Decision were several related documents, including a letter from WAPOL (“WAPOL Letter”). The WAPOL Letter was provided with various redactions of the names of investigating officers and it made various claims including that Mr Lawrence was the vice-president of the “‘Fremantle Chapter’” of the Rebels. Further attached to the Delegate’s Decision was open source material about the Rebels.
In the Delegate’s Decision Mr Lawrence was invited to show why he thought the ground for cancellation did not exist or to give reasons why his Resident Visa should not be cancelled in accordance with the requirements of s 129 of the Migration Act (“Revocation Request”).
Revocation Request
On 23 March 2018 Mr Lawrence, through his lawyer, provided submissions and supporting evidence in response to the Revocation Request (“Revocation Request Response”).
In the Revocation Request Response Mr Lawrence took issue with the accuracy of the WAPOL information which was provided to the Delegate, including the proposition that Mr Lawrence was the vice-president of the Fremantle Chapter of the Rebels.
The Department did not correspond with Mr Lawrence regarding his Revocation Request Response for some 18 months.
Due to the Department delay in responding, Mr Lawrence’s lawyer made inquiries in the intervening period regarding the delay, emphasising the circumstances of Mr Lawrence as he waited in Thailand separated from his family in Australia.
On 18 June 2019 Mr Lawrence’s lawyer wrote to the Department to enquire about the delay in the decision regarding the Revocation Request Response.
On 25 June 2019 the Department emailed Mr Lawrence in response and indicated that it was “diligently processing” the Revocation Request.
On 1 May 2020 Mr Lawrence’s lawyer again wrote to the Department to enquire about the decision regarding the Revocation Request Response.
On 27 May 2020 Mr Lawrence filed an application in the Federal Court with respect to the delay alleging there had been unreasonable delay in the determination of his Revocation Request Response, and seeking relief by way of mandamus.
On 10 June 2020 the Department wrote to Mr Lawrence inviting comment on certain matters including an Australian Institute of Criminology paper titled “Disengagement from involvement in organised crime: processes and risks” (“AIC Paper”), dated April 2018.
On 22 June 2020 Mr Lawrence provided further evidence and submissions on the material and the Delegate’s Decision.
On 16 July 2020 WAPOL responded to an email sent from the Department seeking further information about Mr Lawrence (“WAPOL Email”). In the WAPOL Email:
(a)WAPOL made assertions that on 9 July 2018 an individual had arrived in Perth from Thailand with 2.98 kilograms of cocaine which had been supplied to that individual by a Mr A. Mr A was said to be “an associate of the Rebels”; and
(b)the following paragraph appeared:
Information obtained during the subsequent search warrants at premises occupied by, [redacted in original] as well as examination of electronic devices, revealed that LAWRENCE had been residing with … [name deleted] (Mr A) in Thailand and financing the importations on behalf of the Rebels OMCG since his Australian visa was cancelled by the Australian Government in February 2018. LAWRENCE was also facilitating drug importations with another Australian ex-pat, … [name deleted] (Mr B)] who was arrested by Thai authorities last year for serious drug offences. Further evidence of LAWRENCE’s relationship with … [Mr A] and drug importations was discovered at a search warrant facilitated by NAGS [National Anti-Gangs Squad] at the home of the father of … [Mr A] in Fremantle in November 2018.
On 17 July 2020 the Department invited Mr Lawrence to comment on information it had extracted from the WAPOL Email.
On 21 July 2020 Mr Lawrence requested the Department provide the original of the WAPOL Email. Mr Lawrence’s lawyer also put questions to the Department about what, if any information, had been put to Mr Lawrence. On 23 July 2020 the Department provided a copy of the WAPOL Email, with various redactions, to Mr Lawrence.
On 30 July 2020 Mr Lawrence’s lawyer sent an email to the Department attaching a statement with a response to the information denying that Mr Lawrence had facilitated drug importation with Mr A or Mr B, and explaining his limited interactions with them in Thailand and his living conditions in Thailand including his financial situation.
On 16 September 2020 Mr Lawrence provided a further detailed submission in response.
MINISTER’S DECISION
On 30 November 2020 the Minister made the Minister’s Decision.
The Minister’s Decision dealt with the Delegate’s Decision as follows:
(a)detailed the information that the Delegate had considered;
(b)noted that the Delegate had also considered Mr Lawrence’s criminal history and further information from the WAPOL Letter regarding Mr Lawrence’s associations and activities, noting that WAPOL considered Mr Lawrence’s presence in Australia to be a risk to the community;
(c)that the Delegate was satisfied that Mr Lawrence’s presence in Australia would or might be a risk to the safety of the Australian community; and
(d)that having considered other relevant matters, the Delegate decided to cancel Mr Lawrence’s Resident Visa under s 128 of the Migration Act, and that under s 129 of the Migration Act Mr Lawrence was invited to, and made, the Revocation Request Response.
The Minister’s Decision was divided into an assessment of whether there was:
(a)a ground for cancellation: CB 493-500 at [11]-[39]; and
(b)another reason why the cancellation should be revoked: CB 500-511 at [40]-[117].
Assessment of whether there was a ground for cancellation
Observations – OMCGs and Mr Lawrence
As to whether there was a ground for cancellation of the Resident Visa, the Minister:
(a)observed that the Australian Criminal Intelligence Commission (“ACIC”) identifies OMCGs as one of the most high profile manifestations of organised crime, that the criminal activities of OMCGs distinguish them from recreational riding clubs which are made up of people who get together solely to ride their motorcycles and socialise, and that OMCGs have been identified by Australian law enforcement agencies as having high levels of involvement in methamphetamine production and distribution, illicit firearms, trafficking, tax evasion and money laundering, as well as serious violent crime. The Minister also found that the Rebels are identified by the ACIC as an OMCG and that the Queensland Criminal Code (Criminal Organisations) Regulation 2013 (Qld) names the Rebels as a criminal organisation: CB 493-494 at [11];
(b)considered that any involvement with a criminal organisation such as the Rebels bolsters the organisation’s ability to undertake criminal activities which represent a risk to the safety of the Australian community, and that therefore the Minister considered that, where a person is involved with this type of organisation, their presence in Australia may be, or might be, a risk to the safety of the Australian community, and that this is so especially if the person is an active member in the organisation or if the person, whether as a member of the organisation or otherwise, has engaged in conduct that posed a risk to the safety of others in the community: CB 493-494 at [12];
(c)noted that the information in the WAPOL Letter confirmed that the Rebels is an established criminal group in Western Australia, involved in the sale and supply of prohibited drugs and criminal activity throughout the state of Western Australia;
(d)noted that in relation to Mr Lawrence’s involvement with the Rebels, the WAPOL Letter states at CB 494-495 at [13] that:
(i)Mr Lawrence has a limited criminal history;
(ii)Mr Lawrence’s involvement with the Rebels has him associating with persons with serious convictions for extortion, robbery, assaults, threats, drug dealing, intimidation and murder;
(iii)WAPOL intelligence refers to the involvement of Mr Lawrence with OMCG activity in 2005 and that this report verifies a long history of associations with criminals;
(iv)Mr Lawrence is understood to be the Rebels’ Fremantle Chapter Vice-President. Numerous intelligence reports have Lawrence associating with local, national and international gang members and attending local and national meetings and gatherings of OMCGs;
(v)WAPOL intelligence refers to an incident where a long term Rebels member was evicted from the Rebels due to bad standing. Mr Lawrence was present with other Rebels members who attempted to enter the ex-member’s property, and threatened the ex-member with violence and retribution;
(vi)Mr Lawrence has a very close association with a Mr C. Mr C is currently serving a prison term in Acacia Prison for serious offences and is expected to be deported at the conclusion of his sentence. Mr C was present with Mr Lawrence during the above violent incident (see [27(d)(v)] above) with the ex-member of the Rebels;
(vii)Mr Lawrence is known to have links with other person involved in crime and criminal activity such as WA Rebels President, Mr D, Rebels’ Fremantle Chapter President, Mr E and many other “gangsters” who are currently serving prison sentences;
(viii)Mr Lawrence is known to visit OMCG members in prison who are serving sentences for serious violent offences;
(ix)on 6 December 2014 Mr Lawrence was involved in a standoff with police where a large group of Rebels members tried to intimidate, threaten and challenge police to engage in violence. This incident was only resolved after “numerous and excessive” police resources were deployed to quell the gathering;
(x)Mr Lawrence is known to be verbally aggressive and encourage younger OMCG members to confront and attempt to threaten and intimidate police on interactions. Lawrence is known to “mentor” prospective OMCG members on gang behaviours and criminal tactics. This “mentorship” is known to be utilised by senior gang members to enable them to distance themselves from their own criminality; and
(xi)WAPOL consider Mr Lawrence to be a risk to the community, given his criminal history and links to the Rebels. It is the view of WAPOL that Mr Lawrence’s eligibility to remain in Australia should be subjected to further and intense scrutiny, as WAPOL consider Mr Lawrence’s presence in Australia to be a risk to the community.
Retirement from the Rebels
As to Mr Lawrence’s retirement from the Rebels the Minister:
(a)noted submissions about Mr Lawrence’s retirement from the Rebels after his Resident Visa was cancelled which suggested that “‘there is no ground for cancellation because there is no relevant risk’”: CB 495 at [14];
(b)noted that in particular Mr Lawrence submitted at CB 495 at [15] that:
(i)as the risk allegedly posed by Mr Lawrence was directly associated with Mr Lawrence’s Rebels membership, the risk no longer exists as Mr Lawrence had since permanently “‘quit’” the Rebels;
(ii)the basis for the cancellation was an association with the Rebels, and not active participation in criminal activities; and
(iii)the circumstances in which the cancellation arose no longer exist as Mr Lawrence has quit the Rebels and the Department’s view regarding Mr Lawrence’s involvement in bolstering the Rebels’ ability to undertake criminal activities, and therefore represent a risk to the Australian community, is redundant; and
(c)noted that s 131(1)(a) of the Migration Act requires consideration of whether there was a ground for the cancellation, and it had been conceded that Mr Lawrence was a member of the Rebels, and that he only sought to leave following the Delegate’s Decision. The fact that Mr Lawrence “‘quit’” the Rebels after his Resident Visa was cancelled was not relevant to whether his presence in Australia might be a risk to the safety of the Australian community at the time of the Delegate’s Decision, and hence whether there was a ground for the cancellation that occurred on 14 February 2018. The Minister considered Mr Lawrence’s submissions in this regard in the context of considering whether there is another reason why the Delegate’s Decision should be revoked.
Nature of OMCG Membership
As to the nature of Mr Lawrence’s OMCG membership, the Minister:
(a)noted Mr Lawrence’s submissions that s 116(1)(e)(i) of the Migration Act requires the person’s presence in Australia to pose (or potentially pose) a risk to the community, and that there is no such risk in the case of Mr Lawrence, because his membership of the Rebels was “‘simply benign’”: CB 495 at [17];
(b)noted that in determining the nature of Mr Lawrence’s Rebels membership, the Minister had considered the media article “Bibra Lake: Rebels Motorcycle Club promises no anarchy at new clubhouse” dated 21 February 2017, which depicts Mr Lawrence as the Fremantle Chapter Vice-President, and shows him with senior Rebels member Fremantle Chapter President Mr E and had also considered photographs, supplied by Mr Lawrence, of Rebels tattoos on Mr Lawrence’s body: CB 495 at [18];
(c)noted that in relation to the nature of Mr Lawrence’s Rebels membership, the submissions made by Mr Lawrence included the following: CB 495-496 at [19]:
(i)Mr Lawrence was a “‘social member’” of the Rebels from 2008 and was not engaged in criminal activities;
(ii)that it is possible to have innocent associations with persons who engage in criminal activity, and membership of an OMCG is not a crime in itself;
(iii)Mr Lawrence made it clear to the Rebels at the outset that he would not be involved in any criminal activity. Mr Lawrence provided a statutory declaration detailing these claims and provided bank statements from two banks, and noted that there are no untoward or unexplained transactions to support receipt of any earnings from illegal activities, which, it was submitted, corroborated his explanation that he was a “‘social member’” of the Rebels;
(iv)Mr Lawrence’s activities predominantly involved attending the Rebels clubhouse and going for a ride once a week, servicing members’ bikes and occasionally holidaying overseas with members, and that in addition he had “compulsory” membership duties which included visiting other Rebels members in prison on a roster basis;
(v)Mr Lawrence’s claim that he was not the Fremantle Chapter Vice-President as reported and that he “‘stood in’” for a member who was unable to attend the interview with the journalist;
(vi)Mr Lawrence had not participated in or encouraged stand offs or intimidatory behaviour towards police and did not have the close associations identified by WAPOL;
(vii)Mr Lawrence had been misconstrued as an aggressive, violent individual when in fact he is an unassuming, teetotal and hardworking family man; and
(viii)he was asked to “‘go surety’” for another member who did not attend court and that he paid $5000 for that purpose;
(d)having regard to all of the above information, was satisfied that Mr Lawrence was an active member of the Rebels, of at least 10 years standing since 2008, until he left the group following the Delegate’s Decision in 2018: CB 496 at [20];
(e)did not accept that Mr Lawrence’s membership was “‘benign’” or that he was only a “‘social member’” of the Rebels, but rather, that Mr Lawrence’s activities with the Rebels, as outlined in the Delegate’s Decision at CB 495 at [19], included performing “compulsory” membership duties such as visiting Rebels members in prison, going surety for another member and standing in for a member in an interview with a journalist, which indicated that Mr Lawrence’s involvement included not only socialising and servicing motorbikes, but supporting the Rebels more broadly: CB 496 at [21]; and
(f)having regard to Mr Lawrence’s activities with Rebels members, including travelling internationally on holidays with fellow members, attending local and national Rebels meetings and gatherings, visiting members and “‘noms’” in prison on a regular basis, and the tattoos on Mr Lawrence’s body with images representing the Rebels, the Minister was satisfied that Mr Lawrence had formed extremely strong ties with Rebels members and identified strongly as a Rebels member: CB 496 at [22].
WAPOL Letter
As to the reliability of the WAPOL Letter, the Minister:
(a)noted Mr Lawrence’s submission that the Delegate erred by placing too much reliance on the WAPOL Letter and engaging in “guilt by association” when concluding that Mr Lawrence poses a risk to the safety or good order of Australians;
(b)noted Mr Lawrence’s submission that there are a number of problems with the WAPOL Letter, both factually and inferentially, that it is hearsay and lacks objectivity, and that Mr Lawrence categorically denies the majority of the information in the WAPOL Letter, and that its contents confirm the Rebels have been under close surveillance, and that despite such close scrutiny, Mr Lawrence has not been charged with any criminal offence: CB 496 at [23];
(c)at CB 497 at [24] summarised Mr Lawrence’s submission which disputes the accuracy of the WAPOL Letter in relation to:
(i)incorrectly dating Mr Lawrence’s membership with the Rebels to 2005 when Mr Lawrence claimed he was first approached by the Rebels in 2008 when they learned he was an excellent Harley Davidson mechanic;
(ii)Mr Lawrence visiting members or “‘noms’” in prison only because it is compulsory and done on a rostered basis;
(iii)Mr Lawrence not having close associations with Mr C, and says that Mr Lawrence had only visited Mr C in prison as part of his membership duties, and claims to not know Mr C “very well”, but acknowledges Mr Lawrence has met and socialised with a number of other Rebels members since his membership commenced in 2008;
(iv)Mr Lawrence categorically denying that he is a senior member of the Rebels and in his statutory declaration claims he was incorrectly titled as the Vice-President in a local newspaper after he “‘stood in’” for a member who was unable to attend the interview with the journalist;
(v)Mr Lawrence only having convictions for assault, over 20 years ago, and long before his involvement with the Rebels, and which are so dated as to be irrelevant;
(vi)the sentencing outcomes for Mr Lawrence’s offences were historical and from a time in his life when he was “‘young and occasionally hot headed’”, and reflect that neither assault was considered by the Court to be serious;
(vii)Mr Lawrence disputing the claim he was involved in stand offs with the police, and that he was asked to “‘go surety’” for a member who did not attend court, but he admits that he paid $5000 and did not know that it would result in a criminal conviction on his record;
(viii)Mr Lawrence submitting that WAPOL cannot conclude he is a risk to the community if there is no suggestion of his own involvement in criminal activity; and
(ix)as the date of the WAPOL Letter was redacted, there was no means of ascertaining when WAPOL formed its view of Mr Lawrence and if that view remains current, and that he “did not know himself” when he read the contents of it and was in disbelief WAPOL considered him a risk to the community;
(d)explained that in considering whether Mr Lawrence’s presence in Australia might be a risk to the safety of the Australian community (as asserted in the WAPOL Letter), that he had also taken into account several letters of support for Mr Lawrence from Mr Lawrence’s friends, family, neighbours, colleagues, tax accountant and the Federal Member for Burt, the Hon Matt Keogh MP, as well as a petition of over 1300 signatures in support of allowing Mr Lawrence to return to Australia: CB 497-498 at [25]-[26];
(e)noted that the WAPOL Letter was prepared by the Gang Crime Squad (“GCS”) within WAPOL which the Minister considered would have substantial professional expertise in this area, and that the WAPOL Letter was issued following consideration of more than 40 intelligence reports specifying the involvement of Mr Lawrence with the Rebels: CB 498 at [27];
(f)did not accept the WAPOL Letter is “‘hearsay and lacks objectivity’” as claimed, and found that the information provided by WAPOL in relation to Mr Lawrence’s involvement with the Rebels and the risk that he may pose to the safety of the Australian community is more likely objective and accurate than the claims made by Mr Lawrence himself or by people close to him: CB 498 at [28];
(g)gave greater weight to the WAPOL assessment in relation to the nature of Mr Lawrence’s involvement with the Rebels and the risk that he might pose to the safety of the Australian community: CB 498 at [29];
(h)regarding the submission that the WAPOL Letter being undated meant there was no means of ascertaining when WAPOL formed the view that Mr Lawrence was a risk to the community and if that view remains current, noted:
(i)that the Department clarified the WAPOL Letter was received by the Department on 13 February 2018, the day before the Resident Visa cancellation: CB 498 at [30]; and
(ii)Mr Lawrence’s submission that the Department’s clarification did not answer the concern raised, noting that the date when the Department was provided with the letter “‘does not establish that the contents of the letter were current as at that date’” while also pointing out that “‘[t]he most recent (unredacted) date contained in the WAPOL Letter is 6 December 2014’”: CB 498-499 at [31];
(i)did not accept that the currency of the contents of the WAPOL Letter could not be established simply because the WAPOL Letter is not dated, and that it was clear the WAPOL Letter had been prepared by WAPOL specifically to assist the Department in considering whether Mr Lawrence’s Resident Visa should be cancelled;
(j)found that it was highly unlikely that WAPOL would have provided the WAPOL Letter to the Department, setting out their findings about Mr Lawrence, as well as a conclusion that they considered Mr Lawrence to be a risk to the community, if WAPOL did not consider those findings and that conclusion to be current at that time: CB 498-499 at [31];
(k)was satisfied the views expressed by WAPOL in the WAPOL Letter were current as at 13 February 2018: CB 499 at [32];
(l)noted that the Department cancelled Mr Lawrence’s Resident Visa within 24 hours of receiving the WAPOL Letter, and that Mr Lawrence had submitted that it was “‘inconceivable that the Delegate could have satisfactorily considered all of the factors relevant to the decision to cancel Mr Lawrence’s … [Resident] Visa pursuant to s 116(1)(e)(i) of the Act in such as [sic] short amount of time’”, and that Mr Lawrence similarly indicated that he was “‘appalled that the immigration department took less than 24 hours to reach such a life shattering decision, without taking the time to fact check anything that the WA Police letter said about me’”: CB 499 at [34]; and
(m)noted there was no basis for any similar concern in relation to the Minister’s determination of this issue in considering whether to revoke the cancellation of Mr Lawrence’s Resident Visa: CB 499 at [35].
Prior convictions
As to the historical nature of prior convictions, the Minister accepted the offences were historical and were not of the most serious types, acknowledged the convictions were recorded prior to Mr Lawrence’s involvement with the Rebels, and that whilst on their own the convictions may not be enough to indicate that Mr Lawrence’s presence in Australia might be a risk to the Australian community, considering the fact that Mr Lawrence engaged in violent criminal offending as an adult, when he could be reasonably be expected to understand the consequences of his actions, and that he joined an OMCG known to be involved in criminal activities, not a club or group who get together solely to ride their motorbikes and socialise, made it even more likely that his involvement in the Rebels was more than social and that he joined the Rebels to contribute to its criminal activities: CB 499 at [37].
Conclusion – whether ground for cancellation
The Minister, having considered the submissions by and on behalf of Mr Lawrence in respect of his involvement with the Rebels, as well as the information provided by WAPOL, concluded at CB 499 at [38] that:
(a)it is relevant that WAPOL considered Mr Lawrence “to be a risk to the community, given his criminal history and links to the Rebels”: CB 500 (dot point one);
(b)Mr Lawrence was an active member of the Rebels at the time his Resident Visa was cancelled on 14 February 2018 and had been involved with the Rebels for an extensive period of time and that this involvement was more than social: CB 500 (dot point two);
(c)Mr Lawrence only sought to leave the Rebels following the Delegate’s Decision to cancel his Resident Visa: CB 500 (dot point three); and
(d)the fact that Mr Lawrence engaged in violent criminal offending as an adult and that he joined an OMCG known to be involved in criminal activities, as opposed to a club or group who get together solely to ride their motorbikes and socialise, made it even more likely that his involvement in the Rebels was more than social and that he joined the Rebels to contribute to its criminal activities: CB 500 (dot point four); and
(e)he was satisfied that, at the time Mr Lawrence’s Resident Visa was cancelled, Mr Lawrence’s involvement with the Rebels meant that his presence in Australia might be a risk to the safety of the Australian community, and it followed that the Minister was satisfied that there was a ground for the cancellation of Mr Lawrence’s Resident Visa on 14 February 2018 under s 116(1)(e)(i) of the Migration Act: CB 500 at [39].
Assessment of whether there is another reason why the cancellation should be revoked
As to whether there was another reason why the cancellation of Mr Lawrence’s Resident Visa should be revoked, the Minister:
(a)as to the purpose of Mr Lawrence’s travel and stay in Australia, found that Mr Lawrence had resided in Australia since 1968 and has not returned to his home country of England and intends to live in Australian permanently, and gave this considerable weight in Mr Lawrence’s favour: CB 500 at [40];
(b)noted the submissions made by Mr Lawrence as to the degree of hardship that may be caused to Mr Lawrence and any family members, and considered the submissions that Mr Lawrence’s children, partner and elderly parents, who are all Australian citizens, would be adversely affected if Mr Lawrence was unable to return to Australia;
(c)detailed the personal circumstances of Mr Lawrence, Mr Lawrence’s partner, and their family, especially their son who has major learning and psychological difficulties;
(d)accepted that Mr Lawrence would experience a degree of financial hardship if Mr Lawrence’s Resident Visa cancellation was not revoked, in the form of lost income due to being offshore without a Resident Visa and not being able to undertake his normal job and acknowledged that this financial hardship would extend to his family in Australia as Mr Lawrence was the sole income earner in the family unit and his partner would face significant difficulties supporting the family and that this may also impact Mr Lawrence’s partner: CB 500-501 at [42]-[48];
(e)accepted that it is likely that a non-revocation decision will result in emotional hardship for Mr Lawrence particularly as he has no ties to the UK and would be socially isolated living apart from his family;
(f)accepted that Mr Lawrence’s Australian family will suffer significant emotional hardship, especially his Australian citizen children, three of whom are minors, his two grandchildren who are minors, and his partner of more than 23 years;
(g)accepted that Mr Lawrence’s partner would face significant practical difficulties raising their three minor children as a sole parent, particularly given the difficulties faced by their youngest child and gave this consideration significant weight in Mr Lawrence’s favour: CB 501 at [49];
(h)as to the circumstances in which the ground for cancellation arose, the Minister considered these were not beyond Mr Lawrence’s control, and considered it likely that Mr Lawrence was aware of the adverse standing of OMCGs in Australia and of their involvement in crime, and found that there were no extenuating circumstances outside of Mr Lawrence’s control which led to his participation in the Rebels, and the risk that his presence in Australia might pose to the Australian community as a result: CB 501 at [50];
(i)accepted that after his Resident Visa was cancelled Mr Lawrence took steps to disassociate himself from the Rebels and noted submissions that Mr Lawrence has no intention of re-joining or otherwise reconnecting with the Rebels if he is permitted to return to Australia, but found that there was no indication that Mr Lawrence had considered ceasing his involvement before his Resident Visa was cancelled nor any other indication that his continued involvement with the Rebels had not been voluntary up to that time, and gave this consideration no weight in Mr Lawrence’s favour: CB 501 at [51];
(j)as to Mr Lawrence’s past and present behaviour towards the Department, noted there was no evidence that Mr Lawrence had engaged in any adverse behaviour towards the Department other than his failure to declare his criminal history to them on two occasions, once on an Incoming Passenger Card and once on a Border Resident Visa Application. The Minister noted the submissions on the failure to declare his criminal history on the Incoming Passenger Card from Mr Lawrence that this was a “genuine” oversight and the submission that on all other occasions Mr Lawrence had declared his criminal history and the oversight was clearly not an attempt to mislead the Department. The Minister noted that Mr Lawrence’s representative submitted that on the Border Resident Visa Application form Mr Lawrence had declared his convictions using an acronym for each. The Minister considered and accepted the submissions that Mr Lawrence’s failure to declare on each of these occasions was an innocent oversight on Mr Lawrence’s part rather than an attempt to mislead and therefore found that Mr Lawrence had not engaged in any adverse behaviour towards the Department and gave this consideration a little weight in Mr Lawrence’s favour: CB 501-502 at [52]-[56];
(k)as to the legal consequences of a decision not to revoke the Resident Visa cancellation, gave some weight to the consideration that a decision not to revoke would mean that Mr Lawrence’s status would remain unchanged and that he would continue to be without a valid Resident Visa to travel to Australia, and that he would continue to be subject to Public Interest Criterion 4013 (“PIC 4013”) (as prescribed by Schedule 4 to the Migration Regulations1994 (Cth)) for three years from the date of cancellation. The Minister noted that the period of restriction under PIC 4013 would end in the near future, being February 2021: CB 502 at [57]; and
(l)as to Australia’s international obligations, considered the submissions made by, and on behalf of, Mr Lawrence in relation to Australia’s international obligations so far as they related to Mr Lawrence’s family, particularly his minor children and grandchildren in Australia: CB 502 at [58]-[61], and noted Mr Lawrence’s submissions that:
(i)Australia is in breach of its international obligations in respect to the rights of the child, referring to art 9(1) of the United Nations Convention of the Rights of the Child (“CRC”) which states that “a child shall not be separated from their parents against his or her will, except when competent authorities determine that such separation is necessary for the child’s best interest”;
(ii)Australia is in breach of arts 17 and 23(1) of the International Covenant on Civil and Political Rights (“ICCPR”) insofar as art 17 states “… all people have the right to be free from “arbitrary” interference with their family”, and art 23(1) states “… the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”; and
(iii)with reference to the CRC and ICCPR, the revocation of Mr Lawrence’s Resident Visa cancellation is in the best interests of his minor Australian citizen children, and that they should be the primary consideration in the decision.
International Obligations
In relation to Australia’s international obligations the Minister:
(a)having regard to Australia’s international obligations and the long term impacts of a decision not to revoke the cancellation of the Resident Visa on Mr Lawrence’s children and grandchildren, found that it would be in the best interests of the minor children in Mr Lawrence’s life for the Resident Visa cancellation to be revoked and as such, gave significant weight to this consideration in Mr Lawrence’s favour: CB 502-503 at [62];
(b)noted that while art 3 of the CRC provides that, in all actions concerning a child, the best interests of the child shall be “a” primary consideration, it does not require the best interests of the child to be “the” primary consideration, and as such other considerations may be the primary consideration and may outweigh the best interests of the child in certain circumstances, and in this case, the Minister considered that other primary considerations, the integrity of the migration program and the safety of the Australian community: CB 503 at [63];
(c)further noted that art 9(4) of the CRC contemplates that separation may occur against a parent’s will in circumstances such as deportation, and while art 9(3) of the CRC obliges States to respect the child’s right to maintain contact with the parent, and as noted in the Minister’s Decision, Mr Lawrence is subject to PIC 4013 which limits his ability to be granted a Resident Visa for re-entry to Australia if he applied within three years from the date of the cancellation of the Resident Visa. The Minister noted, however, that the three year period ceases in February 2021 and in any event, the Minister was not aware of any significant impediments to Mr Lawrence’s family being able to maintain contact with him by phone or via online methods, or subject to the family’s financial situation and the current limitations on travel due to COVID-19, by seeking to visit him outside Australia: CB 503 at [64]; and
(d)also acknowledged Australia’s international obligations with regard to the impact on Mr Lawrence’s family as a whole and had attributed significant weight to the submissions in this regard. Nevertheless, the Minister noted that an interference with the family will not be arbitrary where, as in Mr Lawrence’s case, it is reasonable, necessary and proportionate to a legitimate objective such as protecting the Australian community from harm: CB 503 at [65].
Employment in Australia
As to employment in Australia, the Minister noted at CB 503 at [66]-[68] that:
(a)Mr Lawrence submitted that he had a secure job in Australia and that his employer had agreed to hold his position if he is allowed back into Australia;
(b)Mr Lawrence had advised that he had held the same job for 35 years and had provided proof of employment and emails detailing the employer’s agreement to hold the position for him if he is allowed back into Australia;
(c)the submission that Mr Lawrence’s employer was enquiring about Mr Lawrence’s Resident Visa status because Mr Lawrence had only been granted a 12 month leave of absence from work; and
(d)on 23 June 2020 the Department received a copy of correspondence from Mr Lawrence’s employer dated 19 May 2020, which states that they will grant him additional leave without pay until 30 August 2020 but that if Mr Lawrence does not have a positive outcome regarding his Resident Visa and re-entry to Australia by this date, his employer would be required to review his ongoing employment on the basis that he does not have the right to work in Australia,
and the Minister gave these matters a little weight in Mr Lawrence’s favour.
Ties to the Australian community
As to ties to the Australian community, the Minister at CB 503-504 at [69]-[70] noted that:
(a)he had considered submissions that, in addition to his family, Mr Lawrence has extensive community links in Australia who support his return and that:
(i)several letters of support had been received in relation to Mr Lawrence, including from two long-term friends, two neighbours, a colleague and Mr Lawrence’s tax accountant;
(ii)Mr Lawrence’s daughter had submitted a petition of more than 1300 signatures supporting his return to Australia following the decision to cancel his Resident Visa;
(iii)Mr Lawrence had submitted that he is actively involved in his children’s school community and their sporting competitions; and
(iv)Mr Lawrence has been employed within the same community since 1984; and
(b)accepted that Mr Lawrence has extensive community links, having ordinarily resided in Australia since the age of seven, having arrived on 20 January 1968, including via his work, neighbourhood, family, friends and children’s school and sports programs, and
the Minister gave this considerable weight in Mr Lawrence’s favour.
Retirement from the Rebels
As to retirement from the Rebels, the Minister at CB 504 at [71]-[74] noted:
(a)Mr Lawrence’s continued claims that he had retired from the Rebels and that as he is no longer a member of the Rebels, the Department’s view regarding the risk to the safety of the Australian community posed by any involvement in a criminal organisation is now redundant and does not have any bearing on the request for revocation; and
(b)the submission that once Mr Lawrence was notified of the Delegate’s Decision, he permanently “‘quit’” and “‘retired’” from the Rebels and that Mr Lawrence had gone to great lengths to ensure his ties to the Rebels are cut, including:
(i)informing from the Rebels that he will no longer associate with them;
(ii)removing and/or obscuring his Rebels tattoos;
(iii)selling his motorbike;
(iv)returning his Rebels patch and other memorabilia; and
(v)Mr Lawrence providing proof of sale for his motorbike, and a ute which he says would be associated with the Rebels due to its presence at the clubhouse on a regular basis, and submitted that he has no intention of re-joining the Rebels, or otherwise reconnecting with them, if he is permitted to return to Australia, and these matters were reiterated in a statutory declaration dated 21 March 2018 provided by Mr Lawrence.
The Minister accepted that Mr Lawrence has taken some steps to dissociate himself from the Rebels, but also considered other information which indicated there remained a significant risk that Mr Lawrence will continue to be involved with the Rebels: CB 504 at [74].
AIC Paper
As to the AIC Paper the Minister noted that:
(a)in assessing the risk of Mr Lawrence re-engaging with the Rebels in the future the Minister had considered the AIC Paper, along with representations made in relation to this paper by Mr Lawrence: CB 504-505 at [75];
(b)Mr Lawrence had submitted that the AIC Paper is entirely supportive of Mr Lawrence’s request for revocation, noting that he retired from the Rebels immediately upon having his Resident Visa cancelled and has not communicated with any individual associated with the Rebels since, and the submission set out several extracts applicable to Mr Lawrence’s case;
(c)Mr Lawrence submitted that none of the obstacles to leaving the Rebels identified by the AIC Paper exist in Mr Lawrence’s life, and in particular at CB 505 at [76] that he:
(i)has maintained full-time employment with his employer since 1984 and that his position remains open to him: CB 505 at [76];
(ii)had the support of his immediate family and friends outside of the Rebels, noting that he had provided several references including neighbours and a long-term friend of over 45 years: CB 505 at [76]; and
(iii)he was actively involved in his children’s school community and their sporting programs: CB 505 at [76];
(d)Mr Lawrence had never been so isolated from the wider community and external interactions and, as much as he enjoyed being a social member of the Rebels because of his passion for motorcycles and his hobby as a motorcycle mechanic, he has never depended on his Rebels membership for social ties: CB 505 at [76];
(e)the AIC Paper states “research suggests that only when the predicted benefits of leaving outweigh the detriments of remaining in the group will members proceed with disengagement”, and that this described Mr Lawrence’s situation, noting that Mr Lawrence has an exceptionally strong motivation to not ever associate with the Rebels again, in that his family comes first above all else and that the Resident Visa cancellation process has devastated him and his family: CB 505 at [76];
(f)consistent with the AIC Paper Mr Lawrence:
(i)arranged for his partner to return his Rebels club colours and the club’s motorbikes that were housed at his house (as the club mechanic) and to sell his motorcycle;
(ii)had removed his Rebels club tattoos;
(iii)had not experienced any difficulties or repercussions, and his retirement from the Rebels was accepted without question; and
(iv)was not a senior member of the Rebels, and the circumstances of his retirement were due to his family, not due to a dispute with other members: CB 505 at [76];
(g)that the AIC Paper references “new deportation legislation” in reference to strategies that may be employed to promote disengagement, and Mr Lawrence understands that this squarely applies to his circumstances, and he is under no illusion that if he ever resumes any association with the Rebels, he will face permanent deportation from Australia and he did not intend to take that risk: CB 505 at [76]; and
(h)in the letter dated 20 June 2020 from Mr Lawrence, in addition to maintaining that the statutory declaration he signed on 21 March 2018 remains true and correct, Mr Lawrence also submitted that the AIC Paper is consistent with his situation, noting that one of the strongest motivators for disengagement is family: CB 505 at [77].
The Minister:
(a)accepted that the steps Mr Lawrence had taken to disassociate from the Rebels, such as returning his patches/colours and covering his tattoos are consistent with examples of processes for leaving group membership identified by the AIC Paper: CB 505 at [78];
(b)also accepted that Mr Lawrence’s family circumstances and the cancellation of his Resident Visa provided considerable motivation for disengagement, which is consistent with the findings of the AIC Paper in this regard: CB 505 at [79];
(c)considered submissions that none of the obstacles identified by the AIC Paper exist in Mr Lawrence’s life, noting in particular that Mr Lawrence has full-time employment outside of the Rebels, is actively involved in his children’s school and sports communities, does not depend on his Rebels membership for social ties, and that he has the support of family and friends outside of the Rebels: CB 505-506 at [80];
(d)noted the following excerpts from the AIC Paper relating to the strength of ties to deviant groups and the effects of disassociation at CB 506 at [81]:
1) deviant groups exist outside the bounds of normal society and are often described as close-knit ‘families’ with strong bonds formed among members (Harris 2015). Leaving such a group means leaving the social relationships and severing close friendships, particularly if the group insists departed members have no further contact (Harris 2015)
2) their identity is based on their membership of a group and the social relations and dependence on the group that brings. The loss of friendship and social ties with long term associates, as well as the isolation from the community and lack of legal alternatives, can act to dissuade many individuals from leaving the group
(e)found that the extremely strong ties Mr Lawrence formed with Rebels due to the length and extent of his membership, the fact that he identified strongly as Rebels member and the challenges following disengagement from a group such as the Rebels as discussed in the AIC Paper, are factors that could motivate Mr Lawrence to remain associated with Rebels members in the future and that information provided by WAPOL most recently (in the WAPOL Email) indicated that Mr Lawrence had continued to be involved with Rebels associates after his Resident Visa was cancelled: CB 506 at [82].
Further information from WAPOL and activities in Thailand
As to further information from WAPOL, the Minister noted at: CB 506 at [83] that:
(a)in July 2020 WAPOL provided information (the WAPOL Email) that Mr Lawrence had been residing with Mr A in Thailand and financing the importation of drugs on behalf of the Rebels: CB 506 at [83];
(b)Mr A was identified as having been involved in at least eight importations of controlled drugs that were ultimately destined for Rebels members: CB 506 at [83];
(c)Mr Lawrence had also been facilitating drug importations while in Thailand with Mr B: CB 506 at [83];
(d)in addition to evidence of Mr Lawrence residing with Mr A, there is further evidence of his relationship with Mr A: CB 506 at [83]; and
(e)on 17 July 2020 the Department provided this information to Mr Lawrence for his comment and Mr Lawrence made submissions in response: CB 506 at [84].
As to Mr Lawrence’s residential living arrangements in Thailand Mr Lawrence submitted that he had been staying at a room in a hotel in Thailand (“Hotel”), and that he did not pay the rent as he had reached an agreement with the proprietor that he would conduct repairs, maintain the rooms and house sit at the Hotel in exchange for the costs of his accommodation: CB 506 at [85].
The Minister:
(a)found that the information provided by WAPOL with respect to Mr Lawrence’s living arrangements while in Thailand is more likely to be accurate than the claims made by Mr Lawrence that he had been staying at the Hotel since February 2018;
(b)found that it was unlikely that Mr Lawrence had resided in the Hotel for a period of at least two years at no cost;
(c)did not find Mr Lawrence’s evidence of his residential arrangements compelling; and
(d)was satisfied that Mr Lawrence had resided with Mr A for at least some of the time while he has been living in Thailand: CB 506 at [86].
As to Mr Lawrence’s association with Mr A, the Minister noted that Mr Lawrence submitted at CB 507 at [87]-[89] that he first met Mr A in February 2018, during his first week in Thailand at a pub in Pattaya where he was staying at the time, that for several months he and Mr A and Mr A’s five year old daughter three times a week would have a meal or go shopping and Mr Lawrence would occasionally join Mr A’s family for Sunday lunch, and that in roughly July 2019, Mr A left Thailand for work and the friendship ended and he had never seen Mr A again.
The Minister, having regard to the information provided by WAPOL and the nature of Mr Lawrence’s prior involvement with OMCG, did not accept Mr Lawrence’s claims that his relationship with Mr A only included socialising for several months. In reaching this view the Minister noted the information provided by WAPOL that Mr A had been involved in at least eight drug importations destined for Rebels members and considered this to be a significant involvement in the activities of the Rebels, and found it unlikely that Mr Lawrence was not aware of Mr A’s association and involvement in OMCG’s criminal activities, and accepted WAPOL’s findings about Mr Lawrence’s relationship with Mr A and about Mr Lawrence’s criminal activities in Thailand.
As to Mr Lawrence’s association with Mr B the Minister at CB 507 at [90]-[91] noted that Mr Lawrence submitted that:
(a)he first met Mr B in February 2018 at the same pub in the same city at the same time Mr Lawrence met Mr A. Mr Lawrence and Mr B socialised for a few weeks before parting ways, they exchanged contact numbers, and Mr Lawrence did not learn any personal information about Mr B, what he did for a living, or why he was in Thailand and there was never any mention of drugs or drug dealing; and
(b)he heard from Mr B out of the blue approximately 12 months after meeting him, and Mr B told Mr Lawrence he was in financial trouble and asked if Mr Lawrence could lend him some money to help him pay some bills. Mr Lawrence agreed and gave Mr B about $4500. In October and November 2019 Mr Lawrence asked for the money back via text message and did not get a reply, and he has not heard from Mr B since.
The Minister considered the information provided by WAPOL was more likely an accurate reflection of Mr Lawrence’s relationship with Mr B and the lending of the funds to Mr B indicates the relationship between Mr B was more significant than Mr Lawrence has claimed.
As to Mr Lawrence’s activities in Thailand since the Delegate’s Decision, Mr Lawrence submitted (see CB 507 at [92]-[94]) that:
(a)he had been supporting himself in Thailand through the sale of his Harley Davidson motorcycle, ute and vintage Holden Torana. When this money ran out, Mr Lawrence applied to access part of his superannuation which he was currently living off (and he provided evidence of withdrawals from his superannuation account);
(b)he has had nothing to do with drug importations whatsoever in Thailand (or ever), and he has no clue how his activities in Thailand could be construed as having been involved in financing or facilitation of drug imports on behalf of the Rebels; and
(c)he has had nothing to do with the Rebels since the cancellation of the Resident Visa and he had taken a series of clear and definitive steps to quit the Rebels, and its associates.
The Minister accepted Mr Lawrence had sold his Harley Davidson motorcycle, ute and Holden Torana and applied to access his superannuation, and that he had done this for financial purposes, but was not satisfied that Mr Lawrence had obtained funds solely through these means, and for the reasons previously explained regarding his relationship with Mr A and Mr B the Minister did not accept Mr Lawrence’s claims that he has not been involved in the financing or facilitation of drug imports.
As to the limits of information provided in the WAPOL Email, the Minister noted at CB 508 at [95]-[100] that Mr Lawrence had submitted that:
(a)the WAPOL Email mentioned an individual who was involved in drug importation in July 2018 and two individuals who were arrested in September 2018 for drug possession and importation, and that Mr A supplied the drugs to those individuals, and that Mr Lawrence cannot comment on whether he knows the people (whose names are blacked out) referred to in the WAPOL Email and if he does, it is not possible to provide a reply to this further information because it is blacked out;
(b)he knows absolutely nothing about drug imports in July 2018 or about any drug imports that Mr A was carrying out in 2018, and reiterated his claims about the nature of his relationship with Mr A and that he found it grossly unfair that just because he socialised with Mr A on and off in 2018 and 2019 that an assumption had been made by WAPOL that he somehow played a part in any criminal activities that Mr A was involved in;
(c)that he cannot make any sense of how the information in relation to two people, whose names are blacked out, and who were arrested on 25 September 2018 for drug importation and possession offences has anything to do with him;
(d)the main point of the WAPOL Email was not that Mr Lawrence himself was involved with the unidentified individuals, and therefore that it was not relevant that Mr Lawrence was not able to comment on whether and how he knew those individuals. Rather, what the WAPOL Email highlighted is the criminal activities of Mr A, including those involving the unidentified individuals and that Mr Lawrence is known to have been associated with Mr A; and
(e)that the WAPOL Email does not state what the further evidence in relation to his relationship with Mr A and drug importations discovered in a search warrant in November 2018 was, and he reiterated that his relationship with Mr A was nothing other than that of a “‘casual’” friend and that this seemed to be a classic case of “‘guilt by association’”.
The Minister considered there was sufficient information in WAPOL Email for Mr Lawrence to provide meaningful comments on his activities in Thailand and association with Mr A, as evidenced by his ability to provide a detailed four-page response.
As to contact with WAPOL, Mr Lawrence submitted (see CB 508-509 at [101]-[104]) that:
(a)it was important for the Department to know that WAPOL directly contacted him about Mr A in 2019, and they asked him what he was up to in Thailand, and called him again seeking information. On both occasions Mr Lawrence told them he knew nothing about any criminal conduct that Mr A may have been engaged in and the police officers did not ask Mr Lawrence anything about whether he was involved in drug importation, and they did not mention anything about the matters that were included in the WAPOL Email; and
(b)the “new” information from WAPOL had come out of nowhere, and he felt that it was like he is being set up to cover for the fact that the Department had been so slow in properly looking at his situation. The allegations that had been levelled against him are false as he has never had anything to do with drugs being imported, or taken part in anything that either Mr A or Mr B are known for, and he reiterated that he has quit the Rebels.
The Minister:
(a)found that it was neither necessary nor appropriate for the Minister to speculate on why WAPOL did not ask Mr Lawrence about the matters raised in the WAPOL Email when they spoke to him;
(b)did not accept Mr Lawrence’s submission that the information from WAPOL had “‘come out of nowhere’” and that Mr Lawrence is being “‘set up’”. The Minister considered the previous information provided by WAPOL and ongoing communication between WAPOL and Mr Lawrence indicates that Mr Lawrence has been of interest to the GCS for some time and that Mr Lawrence was aware of their interest;
(c)considered a law enforcement agency would not continue to investigate Mr Lawrence despite his denial of any knowledge Mr A’s criminal activities if there was not information or evidence that he may be involved in activities of concern forming a basis for the continued investigations;
(d)was satisfied that the information from WAPOL did not come out of nowhere and that Mr Lawrence’s activities have continued to be of interest to WAPOL for some time; and
(e)said that he had addressed elsewhere Mr Lawrence’s claim that he has never participated with anything to do with drug importations with either Mr A or Mr B and that Mr Lawrence had quit the Rebels: see CB 507 at [87]-[91].
Minister’s conclusion as to Mr Lawrence’ retirement from Rebels
The Minister’s conclusion on Mr Lawrence’s claims of retirement from Rebels at CB 509 at [105]-[109] were that:
(a)having considered the information set out in the WAPOL Email, as well as Mr Lawrence’s submissions in response, the Minister found that Mr Lawrence has continued to be involved with Rebels associates after his Resident Visa was cancelled in 2018, contrary to his repeated claims that he no longer associate with anyone associated with the Rebels;
(b)found that Mr Lawrence’s continued involvement with the Rebels after his alleged retirement included involvement in the Rebels’ criminal activities, particularly drug importation;
(c)while there are strong incentives, similar to those discussed in the AIC Paper for Mr Lawrence to dissociate from the Rebels, Mr Lawrence’s continued involvement with Rebels associates, contrary to what he repeatedly claimed, casts significant doubt on his intention or ability to disengage with the Rebels. The Minister took into account the factors that could motivate Mr Lawrence to remain associated with Rebels members in the future, including his extremely strong ties with Rebels members and the challenge following disengagement from a group such as the Rebels as discussed in the AIC Paper, and concluded that there is a significant risk that Mr Lawrence would continue to be involved with the Rebels including being involved in their criminal activities, particularly drug importation;
(d)gave no weight in Mr Lawrence’s favour to the claims about his retirement from the Rebels; and
(e)concluded that if Mr Lawrence were to apply for another Resident Visa, the risk of his re-engagement with the Rebels may be reassessed when that application is considered.
Minister’s conclusion as to circumstances in which the cancelation occurred
As to the circumstances in which the cancellation of the Resident Visa occurred the Minister at CB 509-510 at [110]-[112]:
(a)noted Mr Lawrence’s submission that:
(i)in cancelling the Resident Visa it is evident that the Delegate “‘did not know anything whatsoever about Mr Lawrence’s personal circumstances’”, including but not limited to his family circumstances, and that there was “‘no valid reason why the Delegate could not await Mr Lawrence’s return’” so that his submission could be taken into account before any decision was made to cancel his Resident Visa; and
(ii)the Delegate cancelled the Resident Visa “‘without attempting to find out more about [Mr Lawrence’s] personal circumstances’” and that Mr Lawrence is “‘appalled that the immigration department took less than 24 hours to reach such a life shattering decision, without taking the time to fact check anything that the WA Police letter said about [him] and attempting to find out more about [his] personal circumstances’”;
(b)noted that it was not clear whether the above submissions are suggesting that there were flaws in the cancellation process that should be remedied by revoking the cancellation and to the extent that that was the concern, noted that the Delegate’s reasons for cancelling the Resident Visa under s 128 of the Migration Act (that is, without notice while Mr Lawrence was outside Australia) are explained in the Delegate’s Decision;
(c)did not consider the information contained in the WAPOL Letter of two pages to be so substantial that it could not have been considered properly by the Delegate in a 24 hour timeframe, and that the Minister also understood that before receiving the WAPOL Letter, the Delegate had already been in possession of a range of other information, also provided to Mr Lawrence along with the Notification of Cancellation, relating to the Rebels and Mr Lawrence’s membership, and was satisfied that the timeframe for the Delegate to decide whether to cancel the Resident Visa, after receiving information from WAPOL, was reasonable in the circumstances;
(d)considered that it was open to the Delegate to rely on the findings and assessment made by an area within WAPOL, as a law enforcement agency, that specialises in gang crime investigation, in determining whether Mr Lawrence’s presence in Australia might be a risk to the safety of the Australian community;
(e)did not consider the cancellation to be flawed in the above respects and gave the above submissions no weight in Mr Lawrence’s favour; and
(f)in terms of Mr Lawrence’s personal and family circumstances which, according to Mr Lawrence’s submissions, should be taken into account, considered those circumstances in making the Minister’s Decision, and gave them weight as indicated in the Minister’s Decision.
Concerns about the revocation process
As to concerns about the revocation process the Minister at CB 510 at [113]-[115]:
(a)noted that on 23 June 2020, in responding to the clarification provided by the Department in relation to the Delegate’s Decision and further information regarding his request for revocation, Mr Lawrence submitted that there is an overwhelming case in favour of revocation and that the delay had been egregious;
(b)noted that on 16 September 2020 Mr Lawrence had submitted that it is difficult to say the procedure followed by the Department, and circumstances in which Mr Lawrence has now been placed, were “fair”, and information provided in the WAPOL Email, some of which was two years old, was being provided without:
(i)the full details because the names of some of the individuals concerned were redacted;
(ii)any further evidence of his alleged relationship with Mr A;
(iii)access to additional information from WAPOL through Freedom of Information which WAPOL blocked due to delay; and
(iv)an explanation as to why he was not invited to comment on information during 2018 and 2019;
(c)accepted that the revocation process had taken some time, however considered the procedure had been fair and that the time taken to finalise the revocation was reasonable in light of the complexity of the case, the requirement to afford procedural fairness on multiple occasions, and the substantial amount of information provided that needed to be assessed and considered by the Department. The Minister considered the Department has provided all relevant information to Mr Lawrence,
and the Minister gave these considerations no weight in Mr Lawrence’s favour.
In conclusion, the Minister accepted there are several factors in favour of revocation of the Delegate’s Decision in Mr Lawrence’s case, including but not limited to the significant impact of the cancellation on Mr Lawrence and his family, particularly his minor children and grandchildren and that the best interests of those children and grandchildren are a primary consideration. The Minister was not, however, satisfied that those factors outweigh the significant risk that Mr Lawrence will re-engage with the Rebels after his return to Australia, and considered that such re-engagement may bolster the Rebels’ ability to undertake criminal activities that represent a risk to the safety of the Australian community, which the Minister also considered to be a primary consideration in this matter. The Minister, since he was satisfied that there was a ground for the cancellation of the Resident Visa, and was not satisfied that there was another reason why the cancellation should be revoked, concluded that the cancellation of the Resident Visa was not to be revoked under s 131 of the Migration Act: CB 511 at [118].
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
The Amended Judicial Review Application contains three grounds of review, as follows:
1.The Minister acted irrationally or unreasonably erred in making a positive finding of fact that the applicant had been “involve[d] in criminal activities” of the Rebels outlaw motorcycle group, “particularly drug importation” ([106]), despite finding that the applicant had “left” ([20]) and had taken “steps to disassociate from” ([51]), the Rebels following the cancellation decision.
Particulars
(a) First, the Minister’s findings are inconsistent.
(b)Secondly, and in any event, in making this positive finding, the Minister failed to adhere to principles that constrain administrative decision-makers making findings that criminal conduct has been engaged in in the absence of prosecution and conviction, including that:
(i) “due weight” must be given “to the presumption of innocence and exactness of proof is expected” (HZCP (2019) 273 FCR 121); and
(ii)in forming a view that particular material justifies such a finding, regard must be had to certain matters including “the nature and form of the evidence received” and “the other forms of persuasive material that might be available to be presented as to the same facts and any reason why that material is not presented”.
(c)Third, and further to (b), the Minister erred in making the impugned finding:
(i)in reliance on the assertions in the email from the Western Australia Police on 16 July 2020;
(ii) in the absence of any underlying information on which the assertions were purportedly based; and
(iii)in circumstances where the applicant denied the assertions and gave information that undermined those assertions.
2.The Minister acted unreasonably, or constructively failed to exercise his jurisdiction, by failing to make obvious inquiries of the Western Australia Police as to any underlying information on which its assertions were purportedly based.
Particulars
(a) The particulars to ground 1 are repeated.
(b)The applicant, by his legal representative, asked the Minister to obtain from Western Australia Police underlying information on which its assertions were purportedly based, including so as to enable the applicant to respond to the assertions.
(c)The Minister refused to do so, but then relied on the unsubstantiated assertions in the email from Western Australia Police.
3. The Minister’s decision was made in circumstances involving procedural unfairness.
Particulars
(a)The particulars to grounds 1 and 2 are repeated.
Jurisdictional error required
The Minister’s Decision may be set aside on judicial review if it is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 23.
Jurisdictional error may arise if the Minister asked the wrong question, ignored relevant material or relied on irrelevant material in a way that the Minister’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Minister under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515, as may legal unreasonableness: Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J; Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”).
To constitute jurisdictional error the error must be material in the requisite sense as explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ:
2.Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Lawrence to establish jurisdictional error in the Minister’s Decision: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [47] per Griffiths, White and Bromwich JJ; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ.
CONSIDERATION
Ground 1
Applicant’s submissions
Mr Lawrence made the following submissions as to ground 1:
(a)where an administrative decision-maker makes inconsistent or contradictory findings on a central issue to be determined, that evinces a “serious problem in the reasoning process” the problem may be explained as an instance of irrationality or unreasonableness; alternative characterisations of the nature may also be available Bhangu v Minister for Immigration and Border Protection [2017] FCA 108 at [35] per Moshinsky J; Muliaga v Minister for Immigration and Citizenship [2011] FCA 1168; (2011) 124 ALD 162 at [53] per Katzmann J. There is no need to fix upon any “category” of jurisdictional error as was observed in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, (2013) 302 ALR 672; (2013) 136 ALD 41 at [77] per Robertson J:
77.Useful for analysis though categories or formulas are, they should be seen as servants rather than masters. To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits.
(b)there is no prohibition on an administrative decision-maker, such as the Minister, finding that a person has engaged in conduct that constitutes a criminal offence, in the absence of a conviction, as a step on the road to exercising a statutory power: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, (2015) 255 CLR 352; (2015) 89 ALJR 382; (2015) 317 ALR 279; (2015) 147 ALD 470 (“Today FM”) at [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ, and the cases referred to therein. However, there are principles that bear on the quality of evidence required to support a positive finding that criminal conduct has been committed;
(c)in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; (1997) 24 AAR 457; (1997) 153 ALR 463; (1997) 45 ALD 136 (“Baker”) the Full Court of the Federal Court considered a previous form of s 501 of the Migration Act, which required the Minister to consider “past criminal conduct”. The Full Court of the Federal Court at FCR at 194 per Burchett, Branson and Tamberlin JJ held that “in the absence of prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material”.
(d)in Brown v Minister for Immigration and Citizenship [2009] FCA 1098 at [85] per Edmonds J the Federal Court referred with approval to this aspect of Baker. That caution was echoed by the Full Court of the Federal Court on appeal: Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113; (2010) 265 ALR 668; (2010) 114 ALD 477 (“Brown Appeal”) at [128] per Nicholas J;
(e)in FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1 (“FTZK”), the High Court held that, even where an administrative decision-maker need only have “serious reasons” for considering that a person has committed serious crime, that is falling short of a “positive finding” that the person has committed the crime, “meticulous investigation and solid grounds” are required, and the decision-maker must “pay close attention to the probative relevance of the material”: FTZK at [14] per French CJ and Gageler J;
(f)in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 (“Splendido”) the Full Court of the Federal Court, in the context of an assessment of whether there is a risk that a person will engage in criminal conduct, held that the evidence must achieve “a threshold probative value”, and that a court must in assessing the adequacy of the evidence compare “the material available to the decision-maker and the conclusions drawn from that material”: at [48] per Mortimer J; and
(g)in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121; (2019) 168 ALD 1 (“HZCP”) Colvin J (who formed part of the majority in the Full Court of the Federal Court with McKerracher J, both delivering separate reasons):
(i)acknowledged that “an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court … [i]n the Tribunal, evidence is simply material before the Tribunal, however received. Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason”: HZCP at [184] per Colvin J; and
(ii)observed that “[n]evertheless … in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others” and that “the weight to be afforded particular material depends upon”, amongst other things, “the seriousness of the allegation the decision-maker is asked to accept” and “the gravity of the consequences that may flow from making the finding”: HZCP at [186] per Colvin J, and further that:
186.… If there is no conviction and a party makes a claim that a crime has been committed by another then due “weight is to be given to the presumption of innocence and exactness of proof is expected”.
Mr Lawrence further submitted that, having regard to the matters outlined above at [64] above, the Court should find that the Minister’s Decision is affected by jurisdictional error because:
(a)the Minister’s reasons embody inconsistent findings. In particular, and most obviously the Minister’s finding that Mr Lawrence had “left the [Rebels]” after his Resident Visa was cancelled in 2018: CB 496 at [20], is inconsistent with the Minister’s finding that Mr Lawrence had “continued involvement with the Rebels OMCG after his alleged retirement”, which “included involvement in criminal activities of the organisation, particularly drug importation”;
(b)in any event, in making positive findings to the effect that Mr Lawrence had been involved in the serious criminal activity of drug importation into Australia (both with Mr A and Mr B), the Minister failed to adhere to the constraints identified at [64] above;
(c)the Minister manifestly failed to give any weight to a presumption of innocence;
(d)moreover, by no means do the Minister’s reasons evince “exactness of proof” of the serious crimes that the Minister found that Mr Lawrence had committed. Despite Mr Lawrence’s denials, and despite Mr Lawrence requesting that the Minister ask WAPOL to provide the information on which it made its assertions about Mr Lawrence’s criminal conduct, the Minister simply accepted WAPOL’s assertions; and
(e)in particular, without obtaining and analysing the information on which WAPOL made its assertions, and in light of Mr Lawrence’s denials, there was no rational or reasonable way (consistent with the constraints outlined at [64] above) that the Minister could simply “accept WAPOL’s findings” about Mr Lawrence’s involvement in serious criminal activities with Mr A: CB 507 at [89], or find that WAPOL’s email was “likely an accurate reflection” of Mr Lawrence’s involvement in serious criminal activities with Mr B.
Minister’s submissions
The Minister submitted as follows:
(a)the argument that the Minister made “inconsistent findings”, being that on the one hand, the Minister found that Mr Lawrence had “left the [Rebels]”: CB 496 at [20], and on the other, the Minister’s finding that Mr Lawrence had “continued involvement with the Rebels after his alleged retirement”, which “included involvement in criminal activities of the organisation, particularly drug importation”: CB 509 at [106] should be rejected as there is no inconsistency. The Minister accepted that Mr Lawrence formally left the Rebels, but that he was nonetheless continuing to associate with them despite formally leaving its membership. By analogy a person might return their membership of a political party (compare: leave the Rebels) yet still associate with its members, vote for its politicians and maybe even attend its events (compare this to continuing to associate with the Rebels in various ways); and
(b)the argument that the Minister had insufficient evidence before him (but not no evidence) to find that Mr Lawrence had been involved in the Rebels’ criminal activities, particularly drug importation, because the Minister could not rely on the WAPOL Letter and Email: CB 497-498 at [25]-[28], should be rejected because:
(i)it is plainly an invitation to engage in merits review: Mr Lawrence’s argument is that the Minister gave undue weight to the WAPOL Letter and Email despite everything Mr Lawrence had to say, negatively, about them. But the assessment of the material is a matter for the Minister. The Minister is not a criminal investigative agency, and there is nothing in the context of the Migration Act generally, or s 129 thereof in particular, to suggest that the Minister acted in a legally unreasonable or irrational manner in his assessment of the WAPOL material;
(ii)in Baker at FCR at 194 per Burchett, Branson and Tamberlin JJ, the Full Court of the Federal Court did not say what was meant by “slight material”. Unless a finding was based on no evidence, or was simply not open to a decision-maker, then there is no jurisdictional error in an applicant asserting that the decision-maker placed more emphasis on material than the applicant would like. That is, the reference to “slight material” does not dilute the stringency of unreasonableness and illogicality review as established in Li or Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”);
(iii)that Brown Appeal at [128] per Nicholas J does not assist Mr Lawrence. There it was said:
128.… primary judge found, and I agree, that the Tribunal stopped short of making findings that the appellant was actually guilty of the criminal conduct described in the housing department records and police intelligence reports. Similarly, the Tribunal did not find that the appellant failed the character test by reason of her “past and present criminal conduct” or her “past and present general conduct" on the basis of the material contained in the housing commission records and police intelligence reports. Looked at in isolation this material may have been “slight” in the sense that it was unlikely to provide a satisfactory basis to conclude that the appellant failed the character test on account of her having engaged in criminal conduct. But that presupposes that there was no other evidence upon which the Tribunal might also rely. Here there was other evidence before the Tribunal establishing (inter alia) the appellant’s convictions for offences involving violence, intimidation and drug dealing between 1999 and 2006. These convictions were central to the Tribunal’s finding that the appellant failed the character test. It was a matter for the Tribunal to determine how much weight it should give the housing departments records and police intelligence reports: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.
(iv)the information from WAPOL was to be assessed in the light of:
(A)Mr Lawrence’s known history with the Rebels;
(B)material on criminal groups;
(C)how people disassociate from criminal organisations; and
(D)an assessment of the reliability and credibility of Mr Lawrence’s denials,
and the weight to be given to the above material was a matter for the Minister;
(v)FTZK is readily distinguishable. The applicable standard in that case was whether there were “serious reasons for considering”. A different standard applies here;
(vi)Splendido at [48] per Mortimer J does not go far enough for Mr Lawrence’s purposes and the Court should not conclude that it is not open to the Minister, in light of the other material, to give the weight that he did to the WAPOL material;
(vii)HZCP also does not assist Mr Lawrence. For one thing, the statements to which Mr Lawrence draws attention do not resolve the question before this Court. For another, Colvin J appears to have been talking about occasions where a decision-maker finds that a crime has in fact been committed. Given that Colvin J was comparing administrative proceedings with criminal proceedings, this should be understood as a discussion about when an administrative decision-maker may find that a crime, with its physical and mental elements, has been committed (similarly to a court proceeding). That is not what the Minister was saying, with that level of specificity, granularity and confidence, in CB 509 at [106]; and
(viii)none of the cases relied upon by Mr Lawrence assist him.
Consideration – Ground 1
Inconsistency
Dealing first with the alleged inconsistent findings by the Minister, the Court observes that, as a matter of fact, there is not necessarily any inconsistency between the finding that Mr Lawrence had left or retired from the Rebels: CB 496 at [20], and later findings at CB 507 at [89] and CB 509 at [106] that Mr Lawrence had continued to associate with the Rebels (and in particular Mr A and Mr B) after his retirement from the Rebels. It is perfectly tenable that a person might resign from an organisation but continue to associate with the members of the organisation. The analogy of political party members posited by the Minister is an apt one, and one which might be extended to sports clubs, community and voluntary organisations, and even law societies or Bar associations!
The assertion of jurisdictional error by way of inconsistent findings on the part of the Minister is therefore not made out.
Criminal activity
The WAPOL Email appears at CB 456-457 as follows (with original and further redactions, and amendments):
Hi … [name redacted]
Below is a redacted version of information related to LAWRENCE.
Essentially the information we have relating to Kevin Michael LAWRENCE (aka ‘Nitro’), born 31 October 1961, is as follows:
On 9 July 2018, Friend … [name redacted] arrived in Perth, Western Australia (WA) from Bangkok, Thailand, carrying 2.98 kilograms of cocaine, concealed within a suitcase.
For importing these drugs, … [name redacted] was charged by the Australian Federal Police (AFP) with importing a commercial quantity of cocaine into Australia. … [name redacted] participated in a record of interview (ROI) and made full admission to the offence.
NAGS investigators identified from admissions made and the examination of electronic devices that the cocaine was intended to be picked up by … [name redacted], who at the time was a Rebels OMCG nominee. It was further identified that the drugs were supplied to … [name redacted] in Thailand by … [Mr A], … who is recorded as an associate of the Rebels OMCG. Throughout the investigation, … [Mr A] was identified as having be[en] involved in at least 8 importations of Border Controlled drugs that ultimately were destined for Rebels OMCG.
On 25 September 2018, NAGS investigators arrested … [name redacted] and … [name redacted], born … [date redacted], for drug possession and importation offences after special projects revealed that … [name redacted] had taken possession of a large quantity of drugs that was imported by … [name redacted] and an associate and who were supplied by … [name redacted]. These drugs were supposed to be delivered to … [name redacted].
Information obtained during the subsequent search warrants at premises occupied by … [name redacted], as well as examination of electronic devices, revealed that LAWRENCE had been residing with … [Mr A] in Thailand and financing the importations on behalf of the Rebels OMCG since his Australian visa was cancelled by the Australian Government in February 2018. LAWRENCE was also facilitating drug importations with another Australian ex-pat, … [Mr B] who was arrested by Thai authorities last year for serious drug offences. Further evidence of LAWRENCE’s relationship with … [Mr A] and drug importations was discovered at a search warrant facilitated by NAGS at the home of the father of ... [Mr A] in Fremantle in November 2018.
… [name redacted] | A/Detective Sergeant …
Intelligence Manager | Gang Crime Squad | Western Australia Police | ...
It is pertinent to observe that the material provided by WAPOL is described as “information”, notwithstanding that in the final paragraph, being the only paragraph which mentions Mr Lawrence, a positive conclusion is drawn that Mr Lawrence was financing drug importations on behalf of the Rebels after the cancellation of his Resident Visa.
The Minister appears to have accepted what is set out in the final paragraph of the WAPOL Email as “findings” by WAPOL, as in the Minister’s Decision at CB 507 at [89] the Minister says that:
89.I accept WAPOL’s findings about Mr Lawrence’s relations with … [Mr A] and about Mr Lawrence’s criminal activities in Thailand.
The Minister’s acceptance of what was said by WAPOL is also evident from findings and conclusions reached by the Minister in the Minister’s Decision at CB 509 at [106]-[107] as follows:
106.Moreover, I found that Mr LAWRENCE’s continued involvement with the Rebels OMCG after his alleged retirement included involvement in criminal activities of the organisation, particularly drug importation.
107.… I concluded that there is a significant risk that Mr Lawrence would continue to be involved with the Rebels OMCG, including being involved in the organisation’s criminal activities, particularly drug importation.
The Court accepts, as the Minister submitted orally, that the Minister did not find that Mr Lawrence had actually committed a crime. Whilst that may be so, it is plain that the Minister considered that Mr Lawrence had, and continued to have, involvement in criminal activities, including, significantly, the alleged financing of drug importation into Australia.
It must be accepted that the Minister may, and as a step in the ultimate decision making process, make a finding or decision a person has been involved in criminal activity: Today FM at [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ. It is uncontroversial that the question of weight to be given to the evidence is a matter for the Minister. What is, however, controversial is the quality of the evidence to be weighed in the process of giving weight to the evidence.
A finding or conclusion that a person has been involved in criminal activities or criminal conduct (the terms are probably interchangeable) ought not be made on “slight material”: Baker at FCR at 194 per Burchett, Branson and Tamberlin JJ, but that is not to say that in the absence of evidence of relevant criminal convictions that it cannot be determined that a person has been involved in criminal activity on the basis of, for example, government administrative or police records: Brown Appeal at [128] per Nicholas J. Those records just must not be “slight material”.
FTZK related to whether there were “serious reasons for considering” whether a serious non-political crime had been committed, but did not involve the making of a positive finding to that effect, and yet the criterion was said to require nothing less than “meticulous investigation and solid grounds”: FTZK at [14] per French CJ and Gageler J. In this case the Minister made a positive finding and a conclusion of involvement in what was manifestly serious criminal activity by Mr Lawrence. In the Court’s view a finding that a person has been involved in serious criminal activity requires, at the very least, evidence of proper investigation and proper grounds in support of the finding: cf FTZK at [14] per French CJ and Gageler J.
In HZCP at [185]-[188] per Colvin J it was said that:
185. Facts can be fairly found by administrative decision-makers without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 395-396. The fact that material may be inadmissible according to the laws of evidence does not mean that it cannot be received by an administrative tribunal. It is relevance that determines whether the material is to be considered: Casey v Repatriation Commission (1995) 60 FCR 510 at 514.
186.Nevertheless, in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363, his Honour captured its essence by saying “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained”. If there is no conviction and a party makes a claim that a crime has been committed by another then due “weight is to be given to the presumption of innocence and exactness of proof is expected”. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.
187.Further, in order to establish a particular fact even in the absence of contradictory evidence, the mode of proof must be sufficient to persuade a reasonable person to that conclusion. In the context of a court decision, this is recognised by the principle that the evidential burden is not discharged unless there is evidence of a kind that, if uncontradicted, would justify persons of ordinary reason and fairness in affirming the proposition maintained by the proponent: Wentworth v Rogers [1984] 2 NSWLR 422 at 436.
188.So, in forming a view as to whether particular material demonstrates a particular factual matter, regard is had to the nature and form of the evidence received, the degree of its inherent veracity (or lack thereof), the other forms of persuasive material that might be available to be presented as to the same facts and any reason why that material is not presented. Within any such fact-finding process, proof of a conviction and sentence carries great weight, not just in proving the fact of the conviction and the nature of the sentence, but also in proving the necessary factual foundation for those matters.
In relation to a submission made by the Minister (Transcript, p 28) it is necessary to observe that the above quoted comments from HZCP were not restricted to the circumstances in which a person had actually committed a crime. Indeed HZCP at [186] per Colvin J deals specifically with circumstances where there is no more than a claim that a crime has been committed. Here, the Minister does not specifically claim, find or conclude that a crime has been committed by Mr Lawrence but does accept what the Minister describes as “WAPOL’s findings about … Mr Lawrence’s criminal activities in Thailand”: CB 457. The WAPOL “findings” included findings that Mr Lawrence had been “financing” and “facilitating” drug importation into Australia.
WAPOL’s findings, accepted by the Minister, and from which the Minister drew the finding and conclusion referred to at [72] and [78] above, are findings of serious criminal activity, and their acceptance by the Minister must be based upon proof of an acceptable standard. In this case the proof of the alleged serious criminal activity is said to be the information provided, and conclusions drawn, by a single police officer in WAPOL’s GCS. Neither the Department nor the Minister sought or had resort to any of the underlying information grounding that single police officer’s conclusions. The Court does not seek to denigrate those conclusions, but rather to make the point that the Minister, before making a decision with serious consequences for Mr Lawrence in cancelling his Resident Visa on the basis of a finding and conclusion that Mr Lawrence was involved in serious criminal activity, ought reasonably be expected to have had regard to more compelling and probative evidence of the matters the subject of the conclusion set out in the final paragraph of the WAPOL Email. The Minister did not ask WAPOL for access to any of the information upon which the conclusion in the WAPOL Email was based, that information being information that may not only have been relevant, but also possibly highly persuasive: HZCP at [188] per Colvin J, and likely to be more than just “slight material”: Baker at FCR at 194 per Burchett, Branson and Tamberlin JJ. What distinguishes this case from SZMDS at [131]-[135] per Crennan and Bell JJ is that there is insufficient probative evidence of a standard sufficient to reasonably justify the conclusion in the WAPOL Email relied upon by the Minister that Mr Lawrence had engaged in serious criminal activity. Notwithstanding:
(a)the stringency of the reasonableness test: Li at [13] per French CJ; Pandey at [41(j)] per Wigney J;
(b)the other material to which the Minister had regard,
the Minister’s Decision can, in all the circumstances, therefore be characterised as unreasonable.
In relation to materiality the Minister’s Decision relied to a not insignificant degree, and certainly sufficiently for the purposes of materiality, upon its findings and conclusion that Mr Lawrence was, and would continue to be, involved in the Rebels criminal activity, particularly drug importation, such that there is a realistic possibility that the Minister’s Decision might have been different but for the failure to act in accordance with the legal standard of reasonableness: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
It follows that ground one 1 of the Amended Judicial Review Application has been made out, other than as to the issue of the Minister’s allegedly inconsistent findings, and that the Minister’s Decision is affected by material jurisdictional error.
Ground 2
Applicant’s submissions
Mr Lawrence made the following submissions as to ground 2:
(a)that another way of explaining the Minister’s errant approach was that the Minister unreasonably failed to make obvious inquiries of WAPOL, including for the very material that WAPOL had identified was the basis for its assertions as to Mr Lawrence’s serious criminal activity: see Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112 (“Le”) at [64]-[79] per Kenny J; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226 at [49]-[52] per Nettle J; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [136]-[142] per Bromberg J; MZABA v Minister for Immigration and Border Protection [2015] FCA 711; (2015) 234 FCR 425 at [69]-[78] per Bromberg J; Ozer v Minister for Home Affairs [2019] FCA 104 (“Ozer”) at [43]-[47] per Steward J; Li at [100] per Gageler J. There is no “evident and intelligible justification” for why the Minister did not do so;
(b)that any concern that obtaining such information might result in some inappropriate disclosure of criminal intelligence to Mr Lawrence is unfounded. Any such concerns could have been ameliorated by s 503A of the Migration Act, and/or limits on procedural fairness that flow from public interest considerations: Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448; (2009) 83 ALJR 539; (2009) 253 ALR 219. Any such concerns do not justify the Minister, if he is proposing to make positive findings that Mr Lawrence has engaged in serious criminal conduct, failing to even ask WAPOL to provide any evidence upon which it made its assertions that Mr Lawrence had engaged in serious criminal conduct before making findings to that effect;
(c)that the Federal Court observed in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 (“Waensila”) at [14] per Robertson J:
14.As explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend … in the ordinary case a decision-maker is obliged to take into account all the information before him or her:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
(d)that the unreasonableness of the Minister’s approach is accentuated by the extraordinary and unexplained delay in the determination of the Revocation Request Response. Mr Lawrence had waited over two years while it is apparent that essentially no action had been taken. The WAPOL Email, on which the Minister ultimately relied, was procured very late in the process and only in the context of Federal Court proceedings seeking to compel the Minister or the Department to make a decision; and
(e)given the extraordinary delay, and then the specific request by Mr Lawrence for the Minister or the Department to make inquiries of WAPOL as to the basis for its assertions, any reasonable decision-maker would have acceded to the request to seek further information before deciding the matter. That did not occur.
Minister’s submissions
The Minister made the following submissions as to ground 2:
(a)that it is rare for jurisdictional error to be identified by reason of a failure by the decision-maker to obtain additional information. That is what this ground asserts;
(b)the reference to Waensila at [14] per Robertson J is entirely inapt because that is about a decision-maker considering up to date material that is before him or her, not about seeking out additional material;
(c)that in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ the High Court said:
25.It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
The joint judgment held that there was no jurisdictional error in that case, because it was not clear what useful result would be achieved by the inquiry;
(d)that such a failure will only amount to jurisdictional error, however, in “rare or exceptional circumstances”: Le at [60] per Kenny J. The failure must bespeak unreasonableness or a constructive failure to discharge the Tribunal’s review function. In SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 (“SZMJM”) at [30] per Bennett J the Federal Court said “[t]he fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error” (see also MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] per White J); and
(e)that Mr Lawrence’s argument is driven from the premise that it was unacceptable for the Minister to rely on the WAPOL material. But it was open to the Minister to do so. Given WAPOL’s views, it is entirely improbable that the material would assist Mr Lawrence’s case and it is entirely improbable that he would do anything but deny it. It is clear he did not agree with WAPOL’s views. To not make the inquiries Mr Lawrence wished the Minister to make does not bespeak jurisdictional error.
Consideration of Ground 2
The Court has already observed that the Minister did not ask WAPOL for the information underlying the conclusion expressed in the WAPOL Email which formed the basis for the Minister’s finding and conclusion that Mr Lawrence was engaged in serious criminal activity, and that that information may not only have been relevant but also possibly highly persuasive: see [79] above.
The mere fact that the Minister did not ask for the material does not however constitute jurisdictional error. First, it is not evident that the material would have been provided by WAPOL, it no doubt being operational in nature and possibly relevant to ongoing operations, meaning that relevant “facts” in the material underlying the WAPOL Email may not have been easily ascertainable: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The difficulty in accessing the underlying factual material is implicit in submissions made on behalf of Mr Lawrence which recognised that there may be issues with the “inappropriate disclosure of criminal intelligence” and the suggestion of possible means to ameliorate that concern.
Second, the decision whether or not to request the information from WAPOL went to the manner of exercise of the Minister’s power, and whilst possibly it was imprudent not to request the information, not to do so was not of itself a jurisdictional error: Ozer at [45] per Steward J. The risk that the Minister ran by not asking WAPOL for the underlying information was that identified in relation to ground 1, namely that it left the Minister with insufficiently probative evidence of a standard sufficient to reasonably justify the conclusion that Mr Lawrence was engaged in serious criminal activity. And if there is insufficient probative evidence to justify a conclusion the Minister ought not strain to justify a conclusion by simply adopting the view of WAPOL (or any other law enforcement agency) in relation to the nature of allegedly serious criminal activity. That said, it remains the case that the mere failure to ask for further information from WAPOL in this case was not of itself jurisdictional error: SZMJM at [30] per Bennet J.
For the above reasons ground 2 is not made out and does not disclose jurisdictional error in the Minister’s Decision.
Ground 3
Applicant’s submissions
Mr Lawrence made the following submissions as to ground 3:
(a)further or alternatively, in circumstances where Mr Lawrence was not afforded an opportunity to comment on any of the information considered by WAPOL, it was procedurally unfair for the Minister to base his positive finding that Mr Lawrence had engaged in serious criminal conduct on the basis of WAPOL’s assertions in reliance on that information;
(b)the Minister was not bound by the formal rules of evidence that apply in court proceedings, but he was bound by principles of procedural fairness and legal reasonableness. Notably, in that respect, one of the conceptual foundations of the law of evidence is fairness: Shaw v Wolf (1998) 83 FCR 113; (1998) 163 ALR 205, FCR at 125 per Merkel J. In particular, as the High Court observed in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548 (“Papakosmas”), rationales for the hearsay rule include “its potential unreliability and the threat that hearsay poses to procedural fairness”: Papakosmas at [84] per McHugh J. Likewise, principles of unreliability and fairness infuse the approach to opinion evidence. An opinion of a person, where the evidentiary basis of the opinion is undisclosed, is both unreliable, and it is unfair to rely on it; and
(c)accordingly, as Professor Rees has explained in relation to administrative decision-making:
while it is generally accepted that the historical rationale for the [hearsay] rule may have been either the unreliability of hearsay evidence, or its unfairness, or both, Heydon has concluded that ‘[t]he absence of an opportunity to cross-examine the maker of the statement is, however, the best all-embracing reason that can be given for the rule’. Consequently, a tribunal which is not bound by the rules of evidence, but which is required to comply with the rules of natural justice, may face considerable difficulties when confronted with hearsay evidence which contains assertions of fact that go to the heart of disputed question of fact in the proceedings. In extreme cases the unfairness generated by admitting and acting upon such evidence may cause a tribunal to refuse to accept hearsay evidence, or, if it is admitted, a supervising court may set aside the tribunal’s decision on natural justice grounds …
Minister’s submissions
The Minister made the following submissions as to ground 3:
(a)the third ground of review, being that the Minister denied Mr Lawrence procedural fairness in relying on WAPOL’s views without providing Mr Lawrence with an opportunity to comment on what underpinned them, should be rejected;
(b)to be clear, the Minister did not have access to what underpinned WAPOL’s views, and so this is not a case where a decision-maker acted on material that was not put to a person for comment;
(c)this ground is only reached if the Minister succeeded on grounds one and two, and it was therefore not unreasonable or irrational for the Minister to rely on WAPOL’s views (without access to the underlying material);
(d)given these premises, the claim of procedural unfairness is simply untenable. The Minister put to Mr Lawrence what the Minister had in order for Mr Lawrence to comment upon it. Mr Lawrence took the opportunity to comment; and
(e)there is no denial of procedural fairness.
Consideration of Ground 3
The material relied upon by the Minister to make the Minister’s Decision was material upon which Mr Lawrence was provided the opportunity to comment, an opportunity which he fully availed himself of: see [20] above. There was therefore no denial of procedural fairness in this case in relation to the material specifically relied upon by the Minister.
The fact that Mr Lawrence did not have an opportunity to comment on the WAPOL information underlying the conclusions reached in the WAPOL Email, which the Minister had also not seen, was not a denial of procedural fairness by the Minister. As explained in relation to ground 2 it was not a jurisdictional error for the Minister not to request the underlying material from WAPOL, and in circumstances where that underlying material was not before the Minister Mr Lawrence could not be denied procedural fairness by the Minister by not being afforded an opportunity to comment upon that information.
In the above circumstances, ground 3 is not made out, and does not establish jurisdictional error in the Minister’s Decision.
CONCLUSION AND ORDERS
In conclusion, the Court finds that:
(a)ground 1 of the Amended Judicial Review Application has been made out, in part, and in that part establishes material jurisdictional error in the Minister’s Decision; and
(b)ground 1 is not made out in part (in relation to the inconsistency argument), and nor are grounds 2 and 3 of the Amended Judicial Review Application made out, and they do not therefore establish jurisdictional error in the Minister’s Decision.
It follows from these conclusions that the Minister’s Decision is affected by material jurisdictional error in relation to that part of ground 1 concerning the Minister’s finding and conclusion that Mr Lawrence had engaged in serious criminal activity, and that prerogative relief in the form of writs of certiorari and mandamus must issue quashing the Minister’s Decision and remitting the matter back to the Minister for determination in accordance with the law.
The Court will hear the parties as to costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 4 August 2022
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