Lawrence v Minister for Home Affairs

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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…

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Details
Case
[2022] FedCFamC2G 617
Decision Date

CaseChat Overview and Summary

In Lawrence v Minister for Home Affairs, the Federal Court of Australia was asked to review a decision by the Minister for Home Affairs to cancel the resident visa of Mr Lawrence, a British citizen who had lived in Australia since the age of seven. The Minister’s decision was based on the finding that Mr Lawrence presented a risk to the safety of the Australian community due to his alleged links with an outlaw motorcycle gang. Mr Lawrence challenged the decision on the grounds that it was made irrationally and without proper consideration of the evidence.

The primary legal issue before the court was whether the Minister’s decision to cancel Mr Lawrence’s visa was irrational or otherwise flawed. Mr Lawrence argued that the decision was irrational because it was based on contradictory or inconsistent findings, and that the Minister failed to properly consider the evidence regarding his alleged links with the outlaw motorcycle gang. The Minister, on the other hand, contended that the decision was rational and based on a proper assessment of the evidence.

The court found that the Minister’s decision was irrational because it was based on inconsistent findings and failed to properly consider the evidence. The court noted that the Minister had relied on information from Western Australian Police that Mr Lawrence was the vice-president of a chapter of the outlaw motorcycle gang, but this information was contradicted by other evidence provided by Mr Lawrence. The court also found that the Minister had failed to properly consider the probative value of the evidence and had not given sufficient weight to the presumption of innocence. As a result, the court found that the Minister’s decision was irrational and quashed it.

In conclusion, the Federal Court of Australia found that the Minister’s decision to cancel Mr Lawrence’s visa was irrational and quashed it. The court found that the decision was based on inconsistent findings and failed to properly consider the evidence, and that the Minister had not given sufficient weight to the presumption of innocence. This case highlights the importance of ensuring that administrative decisions are based on a proper assessment of the evidence and that the decision-maker gives appropriate weight to the evidence presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Court Book (“CB”) numbering 518 pages was marked as Exhibit 1.BACKGROUNDUp 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for 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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONGround 1Applicant’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”.