Lewer v Minister for Home Affairs - [2022] FCA 456

FEDERAL COURT OF AUSTRALIA
Lewer v Minister for Home Affairs [2022] FCA 456

File number VID 832 of 2020

Judgment of: MURPHY J

Date of judgment: 28 April 2022

Catchwords:
MIGRATION – application for an extension of time – relevant principles – application allowed

MIGRATION – application for review of decision of the Minister to cancel visa under personal power in s 501(3) of the Migration Act 1958 (Cth) – whether the Minister erred in deciding that cancellation of the applicant’s visa is in the national interest – whether the Minister erred in relying on police reports which concerned alleged criminal conduct for which the applicant was not charged or was charged but not convicted – whether no evidence in support of Minister’s findings – whether the Minister’s decision is legally unreasonable – whether in the circumstances of the case the Minister was empowered to make the visa cancellation decision under s 501(3) – application dismissed

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Criminal Code Act 1995 (Cth) s 301.3(c)

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth) ss 65, 477A, 501, 501A, 501C

Taxation Administration Act 1953 (Cth)

Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007 (Vic)

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

Cases cited:
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303

Boucaut Bay Company Ltd (in Liq) v Commonwealth [1927] HCA 59; 40 CLR 98

Buck v Bavone [1976] HCA 24; 135 CLR 110

Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98

D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344

L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188

Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403

Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402

Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277

SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; 154 FCR 302

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 193

Date of hearing: 13 December 2021

Counsel for the Applicant: Mr C J Oldham

Solicitor for the Applicant: Macpherson Kelley Pty Ltd

Counsel for the Respondent: Mr A F Solomon-Bridge

Solicitor for the Respondent: Sparke Helmore

ORDERS

VID 832 of 2020

BETWEEN:
GARY JOHN LEWER

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

28 APRIL 2022

THE COURT ORDERS THAT:
1.The Minister for Home Affairs be substituted as Respondent in the proceeding in place of the Department of Home Affairs.
2.The Applicant be granted an extension of time to bring an application in respect of the Respondent’s decision of 15 January 2020 to cancel the Applicant’s visa pursuant to s 501(3) of the Migration Act 1958 (Cth).
3.The amended originating application dated 14 October 2021 be dismissed.
4.The Applicant pay the Respondent’s party-party costs to be agreed, and in default of agreement to be assessed by a Registrar on a lump sum basis.

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

REASONS FOR JUDGMENT
MURPHY J:
INTRODUCTION

The applicant, Gary Lewer, is a 66-year-old citizen of the United Kingdom who arrived in Australia as a young child in 1960, and has lived in Australia for most of his life. He seeks judicial review of the decision of the respondent, the Minister for Home Affairs, dated 15 January 2020, to cancel his Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa (cancellation decision), and an extension of time within which to bring the application.
The Minister cancelled Mr Lewer’s visa pursuant to s 501(3) of the Migration Act 1958 (Cth) (the Act) on the basis that: (a) the Minister reasonably suspects that Mr Lewer does not pass the character test in s 501(6); and (b) the Minister is satisfied that cancellation of Mr Lewer’s visa is in the national interest. Mr Lewer accepts that he has a “substantial criminal record” as defined in ss 501(6) and (7) of the Act and therefore does not pass the character test as he was sentenced in March 1995 to a term of 6 months imprisonment on each of two firearm-related offences.
Mr Lewer submits, and it is plain on the materials before the Court, that the cancellation decision is largely based on Victoria Police intelligence holdings summarised in two Victoria Police reports provided to the Minister. It is uncontentious that Mr Lewer has been convicted of a range of offences including firearm, drug possession, violent, break and enter, property and driving offences; and he does not pass the character test because of the terms of imprisonment imposed for the firearms convictions. But the Victoria Police reports go much further than the matters of which Mr Lewer has been convicted; they state that police believe he has been involved in “sophisticated criminal drug importation and manufacturing enterprises” over many years. He has not, however, been convicted on charges of involvement in such enterprises, nor convicted on charges relating to the great majority of the serious conduct outlined in the reports. The Victoria Police reports seek to explain the absence of convictions on the basis that Mr Lewer “possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid detection and therefore is an extremely difficult suspect to investigate”; that there is no one else above Mr Lewer in his criminal groups, that he is “the sole person in charge”; and that he has successfully avoided criminal convictions on a number of occasions, noting that “multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died”.
In summary Mr Lewer submits that in making the cancellation decision the Minister fell into jurisdictional error, as:
(a)there is no evidence to support the Minister’s relevant findings as to his asserted serious criminal conduct and criminal associations; instead being based on little more than suspicion and innuendo. He says police suspicion or belief is not “evidence” capable of supporting the Minister’s conclusion that it is in the national interest to cancel his visa;
(b)the cancellation decision is legally unreasonable when one takes into account that there is no evidence to support the allegations contained in the Victoria Police reports; the charges he faced for involvement in a criminal drug importation and manufacturing enterprise were withdrawn; there is no ongoing police investigation of Mr Lewer; Mr Lewer was granted a visa in mid-2017 while under police investigation, and the delegate considered exercising the power to refuse to grant him a visa, but granted the visa in any event; and there has been no further offending conduct by Mr Lewer since the grant of the visa;
(c)there had been no material change in the facts and circumstances relevant to the national interest since Mr Lewer was granted the visa in 2017, and the cancellation power under s 501(3) was not available to be exercised by the Minister on the same facts and circumstances as had previously been before the delegate who granted the visa. Further, that s 501A was the appropriate section under which the Minister was required to consider cancellation of Mr Lewer’s visa, to the exclusion of s 501(3).
Centrally, the application raises questions about the probative value of information upon which the Minister could rationally or legally reasonably rely in making the cancellation decision, and thereby cause his removal from Australia, where he has lived for most of his life. Mr Lewer’s arguments are not without force, but for the reasons I explain, I am not persuaded that the Minister fell into jurisdictional error as alleged and the application must be dismissed.
Several short points can be made at this stage.
First, in circumstances where it is uncontentious that Mr Lewer does not pass the character test, the Minister’s power to cancel Mr Lewer’s visa under s 501(3) of the Act required that the Minister be satisfied that doing so is in the national interest. It is not the fact of it being in the national interest that Mr Lewer’s visa be cancelled that is an issue. Rather it is, first, whether Mr Lewer established there was no evidence to support the Minister’s findings and his satisfaction that it is in the national interest to cancel his visa, and second, whether his satisfaction had a rational and legally reasonable basis.
Secondly, in reaching the requisite state of satisfaction the Minister may rely on information which would not be “evidence” in a court of law, provided it is material which could rationally affect his assessment of the probability of the facts in issue.
Thirdly, while reasonable minds may differ as to the probative value of the information in the Victoria Police reports, Mr Lewer did not establish that there was no evidence for the Minister’s findings or for the cancellation decision. He did not establish that the cancellation decision is a decision no reasonable decision-maker could have reached on the material before the Minister. It is a decision about which reasonable minds may reasonably differ; but, disagreement, even emphatic disagreement, is not enough to establish jurisdictional error.
Fourthly, the evidence does not support Mr Lewer’s contention that in mid-2017 the delegate made a positive decision that granting him the visa pursuant to s 65 of the Act was not prevented by s 501. Further, I am satisfied that the facts and circumstances before the Minister when he was considering cancelling Mr Lewer’s visa under s 501(3) in January 2020 were quite different from those before the Minister’s delegate in mid-2017 when the delegate granted the visa; and the Minister was not precluded from exercising the discretion under that section. Finally, even if the Minister had power to cancel Mr Lewer’s visa under s 501A, I am not persuaded that meant that he had no power to do so under s 501(3).
RELEVANT LEGISLATIVE PROVISIONS
Section 65(1) of the Act provides:
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.
(Emphasis added.)
Section 501(3) provides:
Decision of Minister - natural justice does not apply
(3) The Minister may:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test; and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
Section 501(4) provides that the power under subs (3) may only be exercised by the Minister personally. The decision in the present case was so made. Section 501(5) relevantly provides that the rules of natural justice do not apply to a decision under subs (3).
Section 501A provides:
Refusal or cancellation of visa--setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
(1)This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c)not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d)not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister--natural justice applies
(2)The Minister may set aside the original decision and:
(a)refuse to grant a visa to the person; or
(b)cancel a visa that has been granted to the person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the person does not satisfy the Minister that the person passes the character test; and
(e)the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister--natural justice does not apply
(3)The Minister may set aside the original decision and:
(a)refuse to grant a visa to the person; or
(b)cancel a visa that has been granted to the person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
(4)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(4A)Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
(5)The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
Decision not reviewable under Part 5 or 7
(7)A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.
THE EVIDENCE
The evidence is contained in the Court Book dated 12 May 2021 and the Supplementary Court Book dated 13 October 2021, which include:
(a)the submission from the Department of Home Affairs to the Minister dated 13 December 2019 in respect of whether to cancel the applicant’s visa under s 501(2) or s 501(3) (Departmental submission);
(b)the cancellation decision dated 15 January 2020;
(c)the Minister’s statement of reasons for the cancellation decision dated 15 January 2020 (Minister’s reasons), which includes 10 attachments:
(i)a National Criminal History Check regarding Mr Lewer, dated 12 June 2019;
(ii)a Victoria Police intelligence unit report regarding Mr Lewer dated 12 July 2019 (first Victorian Police report);
(iii)a Victoria Police intelligence unit report regarding Mr Lewer dated 10 October 2019 (second Victoria Police report);
(iv)a print out “Facts Sheet” from the Australian Criminal Intelligence Commission (ACIC) website dated 12 April 2019 regarding organised crime groups (ACIC Facts Sheet);
(v)partially redacted records of Mr Lewer’s travel to and from Australia;
(vi)press articles regarding Mr Lewer and his asserted associates;
(vii)an email from the Australian Taxation Office to the Department dated 24 October 2019 stating that on 21 February 2019 Mr Lewer was convicted on six charges under the Taxation Administration Act 1953 (Cth) for failing to lodge income tax returns from 1 July 2010 to 30 June 2016, for which he was fined $800;
(viii)an Australian citizenship assessment regarding Mr Lewer dated 16 October 2019, which states that he is not an Australian citizen;
(ix)an ACIC report entitled “Illicit Firearms in Australia”; and
(x)the Drugs, Poisons and Controlled Substances (Precursor Supply) Regulations 2010 (Vic); and
(d)Mr Lewer’s extension of time application dated 5 January 2021, together with an affidavit in support of Meg Elizabeth Liberatore, solicitor, sworn on 23 December 2020.
Mr Lewer also relies on an affidavit of Kian Christopher Bone, solicitor, affirmed on 23 September 2021, which annexes copies of documents released by the Department in respect of a request under the Freedom of Information Act 1982 (Cth) (the FOI request), including copies of emails which relate to Mr Lewer’s application for a visa in mid-2017. The Minister objected to the admissibility of the emails on the basis of relevance. I have decided to admit the affidavit and its annexures into evidence.
THE FACTS AND PROCEDURAL BACKGROUND
Mr Lewer was born in the United Kingdom in August 1955. The Minister’s reasons state (at [130]) that he arrived in Australia on 1 February 1960 and therefore it appears that he has lived in Australia for approximately 62 years. Mr Lewer says that his family settled in Morwell, where Mr Lewer went to school and completed year 11 in 1972, at the age of 17. As set out at (at [42] below) Mr Lewer’s criminal offending began the following year.
As an adult, Mr Lewer became an elite body builder. He is a multiple winner of the Mr Australia and Mr World titles and a former Mr Universe.
The 2017 visa application
The Department’s records indicate that Mr Lewer has briefly departed Australia on 21 occasions since 1978. It is uncontroversial that in approximately mid-2017 he applied for a Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa and that he disclosed his criminal convictions in the application. Having regard to Departmental email correspondence provided to Mr Lewer pursuant to his FOI request (FOI documents), I find that a delegate queried whether it was appropriate to refuse Mr Lewer’s visa application under s 501 at that time, but was advised to grant Mr Lewer the visa and refer the question of cancellation to the Department’s National Character Consideration Centre (NCCC). It will be necessary to explore this further in relation to ground seven of the application.
The Victorian Police reports

On 12 July 2019, Victoria Police sent the first Victoria Police report to the NCCC. To explain my reasons it will be necessary to go to both Victoria Police reports in more detail, but it is convenient to now set out some of the reports’ contents and broad conclusions.
The first Victoria Police report summarised material it described as “intelligence holdings”, which it states:
…clearly displays a systematic, consistent course of criminal association and serious criminal conduct over a sustained period of many years by Gary LEWER. The material in its totality exceeds mere coincidence that Gary LEWER has been the subject of various high-level Police Operations between 1981 and 2017. He has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises that has caused and had the potential to cause, if not disrupted by police, unquantified harm to the Australian community. It also demonstrates behavioural criminal characteristics of Gary LEWER that are in direct conflict with the privilege and responsibilities of being the holder of a visa to remain in Australia.
It contains information about Mr Lewer’s asserted or suspected involvement in:
(a)tax evasion;
(b)the trafficking of amphetamine by two persons, which conduct was stated to have been uncovered in a covert police operation between December 2009 and March 2010 (Covert Drug Operation 1);
(c)the storage of large quantities of precursor chemicals for drug manufacturing in concert with others, which conduct was stated to have been uncovered in a covert police operation between May 2013 and February 2014 (Covert Drug Operation 2);
(d)the untimely death of a Crown witness who made a statement to the Victoria Police in August 2013 implicating her for conspiring with Mr Lewer and another person in the importation and sale of precursor chemicals;
(e)a series of offences committed between February 2015 and June 2016 against a family with whom Mr Lewer was in a dispute about a retirement home development next door to his former wife’s residence, in relation to which property Mr Lewer is stated to have had an interest. Some of that offending conduct resulted in Mr Lewer being convicted, including of intentionally damaging property;
(f)criminal damage to the Beachside fitness complex in Seaford, Victoria, in January 2009;
(g)a criminal association with a person charged with trafficking a commercial quantity of amphetamine; and
(h)suspected numerous other criminal associations.
The report states:
Throughout Gary LEWER’s residence in Australia he has forged a powerful reputation in criminal circles as being a violent individual who has the proven behaviour and financial means to inflict harm on any person that provides to police information about his criminal activities.
Gary LEWER possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid detection and therefore is an extremely difficult suspect to investigate. There is no one else above Gary LEWER in his criminal groups; he is the sole person in charge.
It requested the Department give favourable consideration to cancellation of Mr Lewer’s visa and possible deportation.
On 10 October 2019, the Victoria Police sent the second Victoria Police report to the NCCC. This report states that in 1995 Mr Lewer was charged, along with nine other men, with offences of sexual penetration, attempted sexual penetration of, and an indecent act with, two 15 year old girls; and also an offence for making objectionable film. Although the two girls had made statements and there was photographic evidence of the men having sex with one of the girls, the charges were withdrawn on the day of the hearing when the two girls refused to testify. The report says that a matter of “further alarm” is the “common theme” of investigations and court cases against Mr Lewer “being undermined due to witnesses being too fearful to make statements implicating him in crimes”.
The report concludes that this is “additional information of serious bad character and criminal conduct” and further demonstrates that Mr Lewer is “unfit to hold a visa and remain in Australia”.
The cancellation decision
On 13 December 2019, the Assistant Secretary of the NCCC provided the Minister with the Departmental submission regarding cancellation of Mr Lewer’s visa under s 501(2) or s 501(3) of the Act. The submission reiterated much of the information set out in the first and second Victoria Police reports, and annexed the reports.
On 15 January 2020, the Minister decided to cancel Mr Lewer’s visa pursuant to s 501(3) and provided written reasons dated the same day.
The non-revocation decision
On or about 27 March 2020, Mr Lewer was notified by letter of the cancellation decision and was invited to make submissions to the Minister in relation to the possible revocation of the cancellation decision under s 501C(4). The materials do not explain why it took the Department almost two months to so inform Mr Lewer. The letter to Mr Lewer said as follows:
Under s 501C(4) of the Act, the Minister may revoke his original decision if, you are entitled to and make representations in accordance with an invitation within seven (7) days after being given the notice, and you are able to satisfy him that you pass the character test as defined in s 501(6).
Any representations you make can bear only on the question of whether or not you pass the character test, not on the exercise of the Minister’s residual discretion under s 501(3).
You will note that s 501(6)(a), with reference to s 501(7)(d), was the relevant ground of the character test in your case. Therefore, you objectively fail the character test as provided for by s 501(6)(a), on the basis that you have a substantial criminal record as defined by s 501(7)(d) of the Act. This is because you have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
…
As this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you.
However, any representations that you make will be futile unless you can show that you do not have a substantial criminal record.
On 3 April 2020, Mr Lewer’s solicitors made submissions to the Department seeking revocation of the cancellation decision. Broadly, the submissions contended that the Minister could not be satisfied that cancellation of Mr Lewer’s visa is in the national interest because:
(a)the visa was cancelled for the improper purpose of removing Mr Lewer from Australia at the request of Victoria Police “who are frustrated by their failed attempts to link Mr Lewer to significant criminal offending (which he denies), rather than him being a person who posed a real risk to the safety of the community”;
(b)by cancelling the visa and purporting to remove him to the United Kingdom, Australia risks breaching its obligations under the International Covenant on Civil and Political Rights; and
(c)the delay between cancellation of the visa and Mr Lewer being notified of the cancellation is so substantial that, despite the fact that the rules of natural justice do not apply, it amounts to a breach of the Minister’s duty to act fairly.
It is evident from these submissions that Mr Lewer’s lawyers did not understand that pursuant to s 501C(4), the only basis for revocation of the cancellation decision was if the Minister is satisfied that Mr Lewer passes the character test.
On 8 December 2020, the Minister made a decision not to revoke the cancellation decision because he was not satisfied that Mr Lewer passes the character test (the non-revocation decision).
The application for judicial review of the non-revocation decision
On 31 December 2020, Mr Lewer filed an originating application seeking judicial review of the non-revocation decision. It is unnecessary to deal with this application because Mr Lewer accepts that s 501C(4) provides that the Minister can only revoke an original decision under s 501(3) if the Minister is satisfied that the person passes the character test. He accepts that, because he does not pass the character test, there was no basis upon which the Minister could have revoked the cancellation decision.
The application for an extension of time
On 5 January 2021 Mr Lewer filed an application seeking an extension of time under s 477A(2) of the Act to file an application for judicial review of the cancellation decision. The application was supported by an affidavit of Mr Lewer’s solicitor at the time which annexed a draft originating application seeking review of the cancellation decision.
On 29 July 2021, Mr Lewer was given leave to file and serve a draft amended originating application, which he did on 14 October 2021.
The hearing proceeded on the basis that if Mr Lewer was successful in his application for an extension of time, the Court would treat the draft amended originating application as the application for review.
THE MINISTER’S REASONS
The Minister’s reasons for the cancellation decision comprise 18 pages, commencing with an overview of the decision, including the statutory provisions under which the decision was made and a summary of Mr Lewer’s right to make submissions about revocation of the decision to the Minister under s 501C: at [1]-[8]. The Minister noted that he could have elected to cancel Mr Lewer’s visa under s 501(2), which would have required that Mr Lewer be afforded natural justice, but had instead decided to proceed under s 501(3): at [9]-[10].
Thereafter the Minister’s reasons are divided into four sections:
(a)a brief analysis of whether Mr Lewer passes the character test and the Minister’s conclusion that he reasonably suspects that Mr Lewer does not pass that test: at [11]-[15];
(b)a detailed consideration of whether cancelling Mr Lewer’s visa is in the national interest: at [16]-[125];
(c)a short section headed “other considerations”: at [126]-[138]; and
(d)the Minister’s conclusion that he is satisfied that it is in the national interest to cancel Mr Lewer’s visa: at [139]-[144].
I now turn to summarise those sections of the reasons.
Character test
The “character test” section of the Minister’s reasons briefly summarise the basis for the Minister’s conclusion that he reasonably suspects that Mr Lewer does not pass the character test on account of his “substantial criminal record”, as defined. It is unnecessary to set this out as it is uncontentious that Mr Lewer does not pass the character test.
National interest
The “national interest” section of Minister’s reasons commence with an overview of the relevant jurisprudence: at [17]-[21]. The Minister states as follows:
17.“National interest” is not defined for the purposes of s 501(3). Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.
18.In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:
‘The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.’
19.In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 409, the Full Court referred to the seriousness of the crimes of the visa holder in that case and said:
‘It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa’.
20.In Re Patterson; Ex parte Taylor (2001) 182 ALR 657, Gaudron J said, after referring to the decision in Gunner, at 676:
‘Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled’.
21.I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.
Mr Lewer did not take issue with any of these matters.
The remainder of the “national interest” section is broken up into four subsections:
(a)Criminal conduct: at [22]-[36];
(b)Other serious conduct and criminal associations: at [37]-[97];
(c)Risk to the Australian community: at [98]-[121]; and
(d)Conclusion: at [122]-[125].
Criminal conduct
In this part of the “national interest” section, the Minister summarised Mr Lewer’s various criminal convictions by reference to the Criminal History Check. The Criminal History Check shows that Mr Lewer has the following “Disclosable Court Outcomes” (which is defined to include charges, court convictions, findings of guilt with no conviction, court appearances, good behaviour bonds or other court orders, pending matters awaiting court hearing, and traffic offence history):
(a)in 1973 he was fined $250 for a break enter & steal offence;
(b)in 1974 he was sentenced to imprisonment for four weeks for a driving whilst licence suspended/cancelled/disqualified offence;
(c)in 1983 he was fined $1,000 for an assault occasioning actual bodily harm offence;
(d)in 1992 in respect of a charge of possess restricted substance the matter was adjourned and he was given a $500 good behaviour bond and ordered to pay $300 to the court fund;
(e)in 1993 he was convicted of two counts of possess restricted substance and fined $500 in aggregate, and also convicted of manufacture anabolic steroids and fined $3,000;
(f)in 1995 he was convicted of possess unregistered firearm, possess/use prohibited firearm/ammunition/article and possess pistol or imitation without licence and was given six months imprisonment on each charge, to be served concurrently. At the same time he was also convicted on four counts of possess restricted substance and fined $3,000 in aggregate;
(g)in 1997 he was convicted of possess restricted substance and possess prescribed weapon for which he was fined $1,500 in aggregate;
(h)in 2014 he was convicted of possess cocaine and fined $300; and
(i)in 2016 he was convicted of without authorisation/excuse enter a private place; intentionally damage property and possess/use/carry prohibited weapon without exemption/approval for which he was fined $2,000 in aggregate.
The Minister noted (at [32]) that the Department was informed by the Australian Taxation Office (ATO) that in October 2019 Mr Lewer was also convicted of six charges of failure to comply with the final notice to lodge income tax returns from 1 July 2010 to 30 June 2016 for which he was fined $800 and ordered to lodge the outstanding returns within 120 days.
The Minister said (at [33]-[34]) that he considered Mr Lewer’s 1995 firearms offence convictions to be serious “as they have the potential to result in harm to a member of the Australian community and are often linked to other criminal activities.” He said that the jail sentences given to Mr Lewer at that time also indicated the seriousness of his offending conduct. The Minister also noted that Mr Lewer committed further firearm offences in 1997 and 2016.
In relation to Mr Lewer’s overall criminal conduct, the Minister said (at [35]) that he took into account that Mr Lewer had been convicted of a range of serious offences, including convictions for violent offending in 1983 and drug related offending in 1992, 1993, 1995, 1997 and 2014. The Minister noted that those offences did not result in custodial sentences, but said that he considered such “violent and drug related offending, particularly drug offences that involve the manufacture of illicit drugs, including anabolic steroids, to be serious due to the harm that flows to the community from this type of offending”.
The Minister concluded (at [36]) that “[o]verall, I find Mr Lewer’s offending to be serious and his recidivism is indicative of his disrespect for Australia’s law”.
Other serious conduct and criminal associations
In this part of the “national interest” section, the Minister’s reasons commence with a summary of the conclusions of the Victoria Police reports as follows (at [37]-[40]):
37.I have had regard to the Victoria Police intelligence report dated 12 July 2019 and additional police information dated 10 October 2019 that state that Mr LEWER has been the subject of various high level police operations between 1981 and 2017 and that intelligence holdings clearly display a systematic, consistent course of serious conduct including criminal associations, over a sustained period of many years by Mr LEWER.
38.The intelligence report states that throughout his residence, Mr LEWER has forged a powerful reputation in criminal circles as being a violent individual who has proven behavioural and financial means to inflict harm on any person that provides police with information about his criminal activities.
39.Police report that he possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid dete[c]tion and is an extremely difficult subject to investigate. The intelligence report states that there is no one else above Mr LEWER in his criminal groups and he is the sole person in charge.
40.The intelligence report states that Mr LEWER has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises and has criminal associations, as set out below.
The remainder of this part is set out under the following sub-headings, which reflect the various topics addressed in the Victoria Police reports:
(a)Covert Drug Operation 1 (17 December 2009 to 8 March 2010);
(b)Covert Drug Operation 2 (29 May 2013 to 17 February 2014);
(c)Crown witness;
(d)Investigation into criminal damage, arson and stalking (2 February 2015 to 9 June 2016);
(e)Investigation into criminal damage by fire;
(f)Child sex allegations – withdrawn;
(g)Taxation issues; and
(h)Criminal associations.
Covert Drug Operation 1 (17 December 2009 to 8 March 2010)
The Minister noted (at [41]) that the first Victoria Police report states that a covert police operation was carried out between the above dates, in which a police undercover operative purchased $14,000 worth of amphetamines from Mark Lesser, an associate of Mr Lewer. The report states that it was agreed that Mr Lesser would provide 10 ounces of amphetamine for $40,000; and that investigators believed that Mr Lewer handed over 10 ounces of amphetamine to Ian Lesser, but that there was no direct evidence other than circumstances to support that belief. Mark and Ian Lesser were arrested and charged with trafficking a drug of dependence; the $40,000 cash was never recovered, and a further investigation into Mr Lewer did not proceed.
Covert Drug Operation 2 (29 May 2013 to 17 February 2014)

The Minister noted (at [42]-[43]) that the first Victoria Police report states that a covert police operation was carried out between the above dates, to investigate the storage of large quantities of precursor chemicals by a chemical company, Chemcycle Australia Pty Ltd. Investigators suspected that the chemicals were being stored for future use in the manufacture of methylamphetamine. The report states that the investigation established that Mr Lewer had been responsible for the importation of precursor chemicals since approximately 2007 for the purpose of supplying a network of organised crime associates for the manufacture of methylamphetamine.
The Minister noted (at [44]-[46]) that the report states that: Mr Lewer succeeded in that criminal activity by conspiring with Andrew Hutton, sole proprietor of Chemcycle, and his wife, Lisa Hutton; large volumes of precursor chemicals were stored at the Chemcycle premises in Seaford and in shipping containers at other locations; Mr Lewer and Mr Hutton conspired with a number of other identified persons in respect of the storage of the precursor chemicals; the precursor chemicals were stored at various locations so as to minimise any loss or risk if one of the sites was compromised; Mr Hutton imported chemicals under Mr Lewer’s direction; small packages of particular precursor chemicals were placed in small containers and were delivered by Mr Lewer to unidentified criminal associates for $20,000-$100,000; and the profits were shared between Mr Lewer, Mr Hutton and Ms Hutton.
The Minister also noted (at [51]-[53]) that the report states that: the investigations between 29 May 2013 and 19 August 2013 led to the recovery of “unprecedented quantities” of precursor chemicals; in 2013, towards the end of Mr Lewer’s enterprise with the Huttons, Mr Lewer conspired with his nephew, Shaun Cousens, in the importation from China of commercial quantities of border controlled precursor chemicals prescribed under s 301.3(c) of the Criminal Code Act 1995 (Cth); and Mr Lewer and Mr Cousens then conspired with Daniel Justin and Adam Cousens in the storage of border controlled precursor chemicals for use in the manufacture of methylamphetamine.
The Minister noted (at [54]) that the report states that: Mr Hutton, Christopher Frier and Heiko Krueger were charged in connection with precursor chemical seizures; Kenneth Wiggett was interviewed as a conspirator but was not charged due to insufficient evidence; investigators identified Mr Lewer as being directly associated with Mr Hutton and Mr Frier, and he was suspected of also being associated with Mr Wiggett through others; and 2.2 tonnes of a three tonne shipment of nitromethane imported from China by Mr Hutton, under the direction of Mr Lewer, was never recovered.
The Minister said (at [55]-[56]) that the report states that: the investigations of Mr Lewer and Mr Cousens led to the arrest of Mr Cousens on 26 November 2013, who was found in possession of two large metal reaction vessels, a large charcoal filter used in the manufacture of methylamphetamine, and 650 kgs of a precursor chemical; and such an amount of a precursor chemical would convert to 143-250 kgs of methylamphetamine, with a value between $40 and $82 million.
At [57]-[59] the Minister noted that the report states that: post-arrest and seizure investigations established that in June 2012 Mr Cousens introduced himself to a Chinese national, Mr Lei (Eric) Zhang, and that Mr Cousens flew to China on multiple occasions between May 2012 and September 2013 where he was taught how to manufacture a chemical precursor and methylamphetamine; Mr Cousens purchased two shipments of precursor chemicals from Mr Zhang which totalled 2,464 kgs; investigators were only able to seize 650 kgs of these precursor chemicals and the unrecovered chemicals could produce pure amounts of methylamphetamine valued at $110 million to $220 million depending on the manufacturing process; and Mr Lewer and Mr Cousens had the opportunity to make substantial profits whether they sold the chemicals unmanufactured, or after manufacturing them into another precursor chemical, or into methylamphetamine.
The Minister said (at [60]) that the report states that Mr Cousens was charged and that two Chinese co-conspirators, who were held in China, confessed to meeting with him. The Chinese government gave approval for the Chinese nationals to give evidence against Mr Cousens by video-link before the County Court of Victoria. However, on 16 January 2016 the Chinese Ministry of Justice withdrew their approval for the Chinese nationals to give evidence against Mr Cousens and the trial was discontinued.
Crown Witness
The Minister noted (at [62]-[63]) that the first Victoria Police report states that on 27 August 2013 Ms Hutton made a statement to police which implicated her in conspiring with Mr Hutton and Mr Lewer in the importation and sale of precursor chemicals.
Mr Lewer was then charged with possess substance to traffick (manufacture) in a drug of dependence, possess material to traffick (manufacture) in a drug of dependence and possess equipment to traffick (manufacture) in a drug of dependence. He was also charged with other offences relating to the storage and sale of precursor chemicals between May 2013 and August 2013.
The Minister said (at [64]-[65]) that investigators formed the belief that Ms Hutton was at high risk of being killed by Mr Lewer and she was provided with assistance through the Victoria Police Witness Protection Unit. However, on 29 September 2013 she went against police advice for personal family reasons, and she discontinued the police assistance. On 21 February 2014 (although the Minister’s reasons wrongly said 27 August 2014) she was found hanging by the neck and died eight days later. As a result of Ms Hutton’s death the prosecution case against Mr Lewer did not proceed and on 4 March 2014 all charges against him were withdrawn.
Investigation into criminal damage, arson and stalking (2 February 2015 to 9 June 2016)
The Minister noted (at [66]) that the first Victoria Police report states that between the above dates a police investigation was conducted into a series of crimes believed to have been committed by Mr Lewer against the Smith family, who were building a $7-8 million retirement home that threatened to block the views of Mr Lewer’s former spouse’s home, in which he had a financial interest.
He noted (at [67]) that the report states that there was an investigation into an incident at the building site of the proposed retirement home when the engine bay of an excavator was set on fire in the early hours of 2 February 2015. The fire destroyed the excavator valued at $100,000 and caused major disruption to the progress of construction. Mr Lewer and his son were the only persons of interest and prime suspects in the investigation. They were arrested but released without charge due to insufficient evidence.
The Minister said (at [68]) that Mr Lewer and his son were subsequently convicted of criminal damage in relation to the deliberate flooding of the Smith construction site in May 2015. The Minister described this incident (at [31]) where he said that, according to the first Victoria Police report, between 24 and 26 May 2015 Mr Lewer and his son used a post-hole digger to dig a hole adjacent to the property owned by the Smith family. Then they continuously ran water into the hole, causing a landslip that flooded the concrete formwork and earth foundations, causing damage of approximately $19,430 and major disruption to the progress of construction.
The Minister also noted (at [69]-[73]) that the first Victoria Police report states that there were a number of other incidents involving the Smith family, as follows:
(a)on 29 March 2016 offenders soaked rags with accelerant and shoved them into the PVC piping embedded in the concrete slab foundations at the Smith family construction site and then set them alight. The incident caused significant delays to the construction. Mr Lewer was the only prime suspect but no charges were laid (at [69]);
(b)on 17 May 2016 offenders destroyed two Smith family motorcars parked in the driveway of a residence they were renting while their home was built. There was a risk of the fire spreading to the residence where Mr and Mrs Smith and their adult daughter lived, but they escaped without injury. Investigators targeted Mr Lewer as the only prime suspect. Investigators also believed Mr Lewer conducted surveillance to identify their temporary rental residence and was linked to investigations into the Smith family’s online social media accounts (at [70]);
(c)on 7 June 2016, the Smith family’s adult daughter was leaving her place of employment when she identified Mr Lewer driving beside her in congested traffic. She drove back to the work car park and observed him park his car about 100 m away watching her employment building and car park. She drove off in fear and called her father (at [71]); and
(d)between 24 April 2018 and 23 May 2018 an offender used an unknown projectile to damage large front glass windows at the Smith family home, causing $5,000 in damage. Investigators suspected Mr Lewer but no person was charged (at [73]).
None of these incidents resulted in charges being laid against Mr Lewer.
The Minister also noted (at [72]) that the first Victoria Police report states that: on 8 June 2016 the girlfriend of the Smith family’s adult son received a telephone call at her workplace from a person she believed to be Mr Lewer; the caller threatened to blow up her house, burn her cars and nail her pet dogs to the front door if Mr Smith did not cease the development; the caller made specific references to her being at work at a hairdresser the previous Saturday and alluded to the fact that he had been watching her; investigators were unable to obtain any telecommunications evidence due to the design of the switchboard system at her workplace; and Mr Lewer was charged with stalking but the prosecution case failed and the charges were struck out.
Investigation into criminal damage by fire
The Minister noted (at [74]) that the first Victoria Police report states that: an investigation had been conducted into criminal damage by fire of the Beachside Fitness Complex on 17 January 2009; investigations established that Mr Lewer frequented the gym and that the operator of the gym, Andrew Thompson, reluctantly allowed him and his associates to use it without paying membership fees because he feared retribution; Mr Thompson became aware that Mr Lewer was selling steroids and other drugs at the gym car park and was having a sexual relationship with his girlfriend; on 16 January 2009 Mr Thompson told Mr Lewer that he was no longer welcome at the gym, and Mr Lewer’s then spouse spoke to Mr Thompson and suggested he should reconsider that decision; on the night of 16 January 2009 the gym was destroyed by fire; Mr Lewer was the only prime suspect in the investigation; two identified witnesses would not provide statements for fear of retribution by Mr Lewer; and no charges were laid.
Child sex allegations - withdrawn
The Minister noted (at [75]) that the second Victoria Police report states that in 1995 Mr Lewer was charged with two counts of sexual penetration of a person aged between 10-16 years old, one count of attempted sexual penetration of a person between 10-16 years old, one count of indecent act with a child under 16 and one count of make objectionable film.
The Minister said the following (at [76]):
The charges were laid in relation to an incident that occurred in January 1995 where two 15 year old female victims were allegedly involved with Mr LEWER and nine other accused men, including his associates Ian lesser and Mark Lesser…Photographs were seized of the men allegedly having sex with one of the victims. Both victims made statements against all the accused and given the photographic evidence, the prosecution case was considered strong. On the commencement of the court proceedings at the Magistrates Court of Victoria on 27 November 1995, unexpectedly both victims refused to give evidence against all the accused and as a result, all sexual offence charges were withdrawn.
Taxation issues
The Minister noted (at [77]-[78]) that the first Victoria Police report states that: “long held intelligence holdings” reveal that Mr Lewer has no known lawful means of income, has concealed assets and has “amassed substantial hidden wealth from criminal drug and other activity”; he has purchased two multimillion dollar properties, one of which he resides in, and the other of which his former spouse resides in; both homes are linked to fake companies, a fictitious person named Daniel James and a solicitor, Mr John Voitin; and although both homes are stated to have been purchased by Mr Lewer through criminal proceeds, both he and his former spouse are merely occupants with no lawful ownership.
Criminal associations
The Minister noted that (at [79]) the first Victoria Police report states that Mr Lewer had associated and continued to associate with people who have been convicted of criminal offences or are known to police to be involved in serious criminal conduct, including that:
(a)in 1999, Mr Lewer associated with Sonny Schmidt (now deceased) who was convicted of importing a prohibited drug and sentenced to three years imprisonment, and who had an association with Tony Mokbel, who was also linked with drug importation (at [80]-[81]);
(b)Mr Lewer has strong connections with the Cavuoto family who are linked to several high-level criminal identities in South Australia, although they have a limited criminal history themselves. It states that Mr Lewer is known to drive and hide a silver 2003 Aston Martin that is registered to a member of the Cavuoto family (at [83]);
(c)in late 2011 and 2012 Yasmin Kasumovic travelled from South Australia to meet with an unidentified man to obtain precursor chemicals (nitroethane and nitromethane) and returned to South Australia the following day. The Minister said that the report states that “given the connections between Mr Lewer, the Cavuoto family and the Ka[s]umovic family, the unrecovered importation of 2200 litres of nitromethane…the approximate time frame and the nitroethane/nitromethane similarities, investigators suspect that Mr Lewer was the unidentified male in Victoria that met Yasmin Kasumovic” (at [84]-[85]);
(d)Mr Lewer’s son, Brayden Lewer, has convictions including contravene community correction order, criminal damage, threat to inflict serious injury, burglary, theft and bail offences. It states that he lives with his mother, Mr Lewer’s former spouse, Kathryn MacDonald and has no income other than the support of his mother (at [86]);
(e)Ms MacDonald has convictions for weapon and drug-related offences. She has no source of income other than the support of Mr Lewer who pays her $1,000 cash a week (at [87]);
(f)Mr Lewer’s nephew, Mr Cousens, remains Mr Lewer’s close and loyal associate. His prior convictions include possess handgun and possess a silencer. His asserted “prior involvements” include import a commercial quantity of border control precursor, pre traffick commercial quantity of border controlled precursor, possess substance to manufacture drug of dependence, possess equipment to manufacture drug of dependence (at [88]);
(g)during a covert drug operation on 7 December 2018, Mr Wiggett was intercepted along the Hume Highway and was found to be in possession of 21 kgs of amphetamine. On 9 May 2019 investigators received information that, whilst in prison on remand, Mr Wiggett attempted to convey a message to Mr Lewer saying “for Gary not to worry about his income stream, it will be business as usual. That (Wiggett) was expecting and willing to do a 6 year stretch. That no names were to be used, coded nicknames only as (Wiggett) said a detective [identified by name] who investigated him years ago may still be watching things. Wiggett said that ‘he believed that detective did not know his association with Lewer after Wiggett was interview[ed] by that detective some years ago’”(at [90]-[91]);
(h)Mr Justin remains a close and loyal associate of Mr Lewer. He has convictions including traffick drug of dependence commercial quantity, traffick cannabis, cultivate narcotic plant, possess cannabis, assault police, resist emergency worker, road traffic offences, obtain property by deception, make and use false document, indecent assault and rape (at [92]);
(i)Ian Lesser remains a close associate and loyal of Mr Lewer. He has convictions including possess methylamphetamine, possess cannabis, sexual penetration of a child under 16, traffick drug of dependence, possess heroin, use drug of dependence, import prohibited imports into Australia and handle stolen goods. He has served several substantial terms of imprisonment and is a registered sex offender. The report states that his “prior involvements” include traffick cocaine, traffick methylamphetamine, possess heroin, possess cannabis, deal proceeds of crime, possess drug of dependence, traffick drug of dependence large quantity, traffick ecstasy and assault occasioning actual bodily harm (at [93]);
(j)Mark Lesser has convictions including traffick, possess and use amphetamine, possess and use cannabis, possess and use ecstasy, indecent assault, handle stolen goods and traffick other drug of dependence. He has served several substantial terms of imprisonment and his involvement in the “drug ventures” was established by Covert Drug Operation 1 (at [94]);
(k)Zoltean Pastean’s association with Mr Lewer was established by Covert Drug Operation 2. He has convictions including solicit/invite person to prostitute, traffick heroin, traffick amphetamine, possess heroin, possess amphetamine, possess cannabis. The report states that his “prior involvements” include possess testosterone, possess drug of dependence, possess schedule 4 poison and possess nandrolone (at [95]); and
(l)Mr Lewer associated with Mr Voitin. An article in The Age newspaper on 31 July 2019 described Mr Voitin as a “bikie lawyer” and said that a suspicious fire had razed his Bellarine Peninsula home. The article also said that Mr Voitin was due to face a committal hearing on 5 August 2019 on charges of false accounting after a “bikie taskforce police” raided his former business in March 2018 as part of a major investigation into alleged money laundering on behalf of the Comanchero motorcycle gang (at [96]).
The part of the Minister’s reasons titled “Other serious conduct and criminal associations” concluded as follows (at [97]):
In light of this information, whilst I acknowledge that Mr LEWER has not been convicted of offences linked to the aforementioned covert operations, I am satisfied that police intelligence holdings demonstrate that Mr LEWER has engaged in other serious conduct, through his involvement in sophisticated drug operations and violent conduct, and through his significant criminal associations. I have had regard to the intelligence that Mr LEWER is at the top of the hierarchy in his criminal groups. Overall, I find that Mr LEWER has engaged in other serious conduct.
Risk to the Australian community
In this part of the “national interest” section, the Minister said (at [99]) that he had taken into account that despite receiving sentences of imprisonment for firearm offences in 1995, Mr Lewer was convicted of further firearm offences in 1997 and 2016, which indicated that imprisonment had not deterred him from reoffending. The Minister noted that the ACIC report on illicit firearms said, amongst other things, that the illicit movement, trafficking and use of firearms is a serious national threat; that the demand for and supply of illicit firearms are driven by a range of entities from organised crime groups to low level individual criminals; and that the illicit firearms market is driven by outlaw motorcycle gangs, Middle Eastern organised crime groups and other groups engaged in trafficking illicit commodities such as drugs (at [100]-[102]).

The Minister said (at [104]) that he had taken into account that Mr Lewer’s criminal history shows that he has been convicted of other serious offending including “violent and drug offending”. In relation to his drug offending, he noted that Mr Lewer was convicted of manufacturing anabolic steroids in 1993 and possession of illicit substances in 1992, 1993, 1995, 1997 and 2014.
The Minister said (at [105]) that while Victoria Police believed that Mr Lewer was involved in sophisticated criminal drug importation and manufacturing schemes, he had not been convicted of any such offences. He said:
I note the police intelligence report states that Mr LEWER has been a primary suspect in multiple covert operations revealing sophisticated criminal drug importation and manufacturing enterprises that would have yielded substantial profits to Mr LEWER and his criminal associates. Also, that he has successfully avoided criminal convictions on a number of occasions, noting that multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died. I also note from the report that Mr LEWER is said to be the sole person responsible in his criminal groups and that he ‘possesses sound knowledge of police investigation methodology, is extremely disciplined in his criminal conduct to avoid dete[c]tion and is an extremely difficult subject to investigate’.
The Minister also said (at [107]) that he had taken into account that Mr Lewer’s criminal record is “limited” to the extent that he had received (only) two custodial sentences, and the majority of his offending had resulted in fines and a good behaviour bond. However, the Minister also had regard to the first Victoria Police report which noted the suspected criminal damage, arson and stalking by Mr Lewer in relation to his opposition to the Smith family’s property development, and that Mr Lewer had been convicted of criminal damage in relation to the incident in May 2015.
At [109] the Minister noted that the first Victoria Police report states that Mr Lewer had amassed substantial wealth despite not having a lawful means of income, and that he had been charged with failing to furnish tax returns over a period of six years. The Minister found that financial crimes are often linked to criminal activity, as indicated in the police report (at [110]).
The Minister said (at [111]-[114]) said that he had regard to the Australian Government’s recognition that the activities of criminal organisations are an issue of national concern, which “adversely affects the Australian community, economy, government and way of life.” He noted that the ACIC Facts Sheet in the materials said that “organised crime groups in Australia pose a high threat to the Australian community and way of life, and engineer much of Australia’s serious crime.” He said that he had taken into account those matters, which reiterated the concerns expressed in the first Victoria Police report. The Minister found that there is a significant threat posed by criminal organisations and their members and said that he was mindful of “the significant resources required to protect the community from criminal organisations and the resultant financial cost which is borne by the community to prevent and disrupt criminal activity.”
At [115]-[121], the Minister said the following:
115.I have taken into account that in the intelligence report dated 12 July 2019, Victoria Police state:
‘…Victoria Police intelligence holdings clearly displays a systematic, consistent course of criminal association and serious criminal conduct over a sustained period of many years by Gary LEWER. The material in its totality exceeds mere coincidence that Gary LEWER has been the subject of various high-level Police Operations between 1981 and 2017. He has been investigated in relation to sophisticated criminal drug importation and manufacturing enterprises that has caused and had the potential to cause, if not disrupted by police, unquantified harm to the Australian community. It also demonstrates serious behavioural criminal characteristics of Gary LEWER that are in direct conflict with the privilege and responsibilities of being the holder of a visa to remain in Australia.’
116.I have also taken into account that the intelligence report states that intelligence holdings held by Victoria Police, the Australian Criminal Intelligence Commission and the Independent Broad-Based Anti-Corruption Commission indicate that Mr LEWER has been identified as a security threat against a serving police officer. I consider this conduct is serious and poses a risk to both the police officer and the community, who relies on the police force to maintain order and protect the community from criminal activities.
117.I have taken into account that the intelligence report states that Mr LEWER is the sole person in charge in his criminal groups, that he has engaged in serious criminal conduct through his involvement in the sophisticated criminal drug trade and manufacturing enterprises, his violent and threatening conduct, including stalking, arson and property damage, and through his criminal associations.
118. In light of Mr LEWER’s criminal history and the magnitude of police intelligence over an extended period of time, 1981 to 2017, notwithstanding the absence of convictions in relation to the majority of the conduct outlined in the report, overall I find that Mr LEWER has engaged in serious criminal and other conduct.
119. I consider Mr LEWER’s criminal and other serious conduct demonstrates that dispositions of a custodial sentence have not deterred him from engaging in such conduct, I consider that Mr LEWER’s propensity to engage in other serious conduct including by heading criminal groups and his criminal associations, also increases his risk of engaging in further criminal conduct involving drug offending, weapons, violence or threats of violence, stalking or intimidating behaviour, or criminal damage.
120. I have, also had regard to the concerns expressed by Victoria police in their intelligence report dated 12 July 2019, that Mr LEWER’s activities, particularly in relation to the drug importation and manufacturing enterprises, place the Australian community at significant risk. I hold strong reservations regarding Mr LEWER’s future prospects of maintaining good conduct.
121. I find that Mr LEWER poses a risk to the Australian community through reoffending or further engaging in other serious conduct including his said position as the sole person in charge of his criminal groups and his associations with offenders who have been convicted of, or are known by police for, serious offending.
The Minister concluded (at [122]) that “there is an ongoing risk that Mr Lewer will reoffend or engage in other serious conduct.” The Minister continued (at [123]-[125]) as follows:
123. I find that if Mr LEWER were to engage in criminal or other serious conduct involving drug offending, weapons, violence or threats of violence, stalking or intimidating behaviour, or criminal damage, members of the community will be put at risk of serious physical or psychological harm or financial harm.
124. Further, if Mr LEWER engages in other serious conduct by his position as the sole person in charge of his criminal groups and his continuing associations with offenders, who have been convicted of or are known by police for serious offending, this will support as a whole, the continuing risk posed to the community by criminal organisations through their various criminal activities.
125. In sum, Mr LEWER’s criminal history and his other serious conduct as outlined above, and my finding regarding the ongoing risk to the Australian community posed by Mr LEWER’s continued presence, raised concerns that were of such a serious nature that I concluded that the use of my discretionary power to cancel Mr LEWER’s Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa, without prior notice, is in the national interest.
Other considerations
In this section (at [126]-[138]), the Minister considered whether there were any other relevant considerations that might support a decision not to cancel Mr Lewer’s visa despite the Minister’s satisfaction that it is in the national interest to do so. It involved consideration of the best interests of any minor children; the expectations of the Australian community; the strength, nature and duration of Mr Lewer’s ties to Australia; and the extent of any impediments Mr Lewer will face if removed to the United Kingdom. Mr Lewer did not take issue with this part of the Minister’s reasons and it is unnecessary to set it out.
Conclusion
In concluding his reasons (at [139]-[144]) the Minister summarised his findings under each of the sections referred to above, as follows:
139. I reasonably suspect that Mr LEWER does not pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(d) and I am satisfied that cancellation of his visa is in the national interest.
140. In considering whether or not to cancel Mr LEWER’s visa, I note the available information does not indicate that there are any children under 18 in Australia whose best interests would be affected by the cancellation of Mr LEWER’s visa.
141. I also considered the risk posed to the Australian community by Mr LEWER’s continued presence in Australia, taking into consideration his criminal and other serious conduct as outlined above. Non-citizens such as Mr LEWER who commit such offences and engage in such conduct should not generally expect to be permitted to remain in Australia.
142. I find that the Australian community could be exposed to significant harm should Mr LEWER reoffend or engage in other serious conduct, involving drugs, weapons, violence or threats of violence, stalking or intimidating behaviour, criminal damage, or criminal associations. I could not rule out the possibility of further criminal or other serious conduct by Mr LEWER. The Australian community should not tolerate the risk of harm that could result from such conduct.
143. I found the above consideration outweighed the countervailing considerations in Mr LEWER’s case, including the impact on family members and friends. I have also considered the length of time Mr LEWER has resided in Australia from a young age, and that he made some positive contribution to the Australian community through his bodybuilding career. I have also considered that Mr LEWER would not face any significant impediments upon return to his home country, although he would face hardship due to separation from family and friends and having had very long term residence in Australia.
144. I find that the considerations favouring non-cancellation as outlined above, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr LEWER’s Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa under s 501(3)(b) of the Act.
THE EXTENSION OF TIME APPLICATION
By application of the 35 day time limit in s 477A(1) of the Act, Mr Lewer was required to file any application for review of the cancellation decision by 19 February 2020. He did not file the draft application for review of the cancellation decision until 5 January 2021, and it was therefore substantially out of time. Under s 477A(2) of the Act the Court has power to extend the time limit if satisfied that it is in the interests of justice to do so.
The discretion in s 477A(2) is broad, and is not confined by any obligation to take into account or to ignore any particular matter. The exercise of a discretion to grant an extension of time may be informed by a number of considerations, including:
(a)the extent of the delay and whether there is an acceptable explanation for it;
(b)any action taken by the applicant, other than by making the application, which had made the decision-maker aware that the decision is contested;
(c)any prejudice to the respondent if the extension is granted (although absence of prejudice will not itself justify an extension);
(d)the merits of the proposed judicial review application; and
(e)fairness as between the applicant and other persons otherwise in a like position:
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349 per Wilcox J.
Although the considerations set out in Hunter Valley concern the discretion to extend time under the Administrative Decisions (Judicial Review) Act 1977 (Cth), in numerous decisions those factors have been endorsed and applied to similar discretions to extend time under other legislation. The factors are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] per Griffiths J with Edmonds J agreeing, citing with approval Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83 at 97 per French J (as his Honour then was). In considering whether to extend time, the consideration of the merits of the proposed grounds of review should be no more than an “impressionistic evaluation”: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 at [68] per Collier, Rangiah and Derrington JJ. In relation to the discretion the courts “have been sensitive to the premature curtailment of a person’s ability to agitate a claimed right” particularly where no other avenue of redress exists and where the consequences of a refusal to extend time are legally and practically significant for the applicant: DHX17 at [69]-[71].
The Minister opposes the grant of an extension of time on the basis that the proposed review application has no merit, and there is no adequate explanation for the delay. He notes that there were 355 days between the cancellation decision and the date on which Mr Lewer filed his draft originating application, which exceeds the time provided under the Act by 320 days. The Minister accepts that the delay between 15 January 2020 and 27 March 2020 (72 days) may be explained on the basis that Mr Lewer was not aware of the existence of the cancellation decision until that time; but he says that still leaves an unexplained delay of 248 days.
The Minister also notes that, notwithstanding the clear advice in the cancellation notice, Mr Lewer made lengthy representations to the Minister about revocation on 3 April 2020, which included an admission that he failed the character test. He submits that from at least the date of those representations Mr Lewer, who was legally represented, must be taken to have known that the Minister did not have power to revoke the cancellation decision and that his representations were therefore futile. In those circumstances, the Minister argues that there is no adequate explanation for the long delay since that time.
Against that, Mr Lewer says that the delay in making an application for review of the cancellation decision occurred as a result of his lawyer’s misunderstanding of the scope of the Minister’s power to revoke the cancellation decision under s 501C(4). That misunderstanding led to submissions being advanced on Mr Lewer’s behalf as to why the Minister should revoke the cancellation decision when, because Mr Lewer does not pass the character test, there was no basis under s 501C(4) for the Minister to do so. Counsel for Mr Lewer accepts that the legal advice given to Mr Lewer at that time was wrong and says that the result of his lawyer’s misunderstanding should not be visited on Mr Lewer.
Notwithstanding that I have found against Mr Lewer in the review application, an impressionistic evaluation of its merits for the purpose of the extension of time application, shows that the grounds are reasonably arguable. I am persuaded that once Mr Lewer’s misunderstanding of the scope of the Minister’s power to revoke the cancellation decision under s 501C(4) was realised, the draft originating application to review the cancellation decision was filed. In my view the result of the delay arising from his lawyer’s misunderstanding should not be visited on Mr Lewer. That is particularly so when no other avenue of redress is available to him and if he is not granted an extension of time he will have lost the opportunity to argue that the Minister erred in reaching a state of satisfaction that it is in the national interest to cancel his visa. Against that, the Minister does not argue that he will suffer any prejudice if an extension of time is granted. It is appropriate to exercise the discretion in s 477A(2) to grant Mr Lewer an extension of time to bring the application.
THE REVIEW APPLICATION
The amended originating application for judicial review raised six grounds of review, but Mr Lewer abandoned three of those grounds. The application proceeded only in respect of grounds two, four and seven.
Ground 2
Ground two of the application alleges as follows:
The Minister fell into error be making the decision to cancel the applicant’s visa on the basis of allegations made by Victoria Police for which there was no evidence, or alternatively that [the decision] was not reasonably open on the materials provided by Victoria Police to the Minister.
In oral submissions counsel for Mr Lewer made it clear that this ground is advanced as a “no evidence” case (see e.g. transcript of the hearing (T) at T5.40, 6.22-23, 6.37, 9.01, 9.39, 10.13, 16.07, 16.12, 17.01, 18.17, 18.29-33). I proceed on that basis.
Mr Lewer notes that the Minister has “complete freedom” to determine the applicable national interest, and that the Minister said (at [21]) that “the matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it” and also “a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.” The Minister went on to find (at [121]) that:
…Mr LEWER poses a risk to the Australian community through reoffending or further engaging in other serious conduct including his said position as the sole person in charge of his criminal groups and his associations with offenders who have been convicted of, or are known by police for, serious offending.
Mr Lewer argues that the Minister’s satisfaction that it is in the national interest to cancel his visa is based on:
(a)the risk he poses to the Australian community through reoffending or further engaging in other serious conduct;
(b)his involvement in sophisticated criminal drug importation and manufacturing enterprises;
(c)his leadership of criminal groups;
(d)his criminal associations;
(e)his convictions for firearm offences in 1997 and 2016; and
(f)his amassing substantial hidden wealth from criminal activities.
He contends, and it is plain from the Minister’s reasons, that the Minister relied upon the Victoria Police reports in making the cancellation decision. He says, and I accept, that the Minister’s reasons acknowledge that Mr Lewer has not been convicted for being involved in sophisticated criminal drug importation and manufacturing enterprises, nor has he been convicted of the majority of the criminal conduct in relation to which the Victoria Police reports state or suggest he has been involved.
Mr Lewer submits, and it is uncontentious, that if an administrative decision-maker makes a finding, which finding is a critical step towards the ultimate conclusion, and there is no evidence that is relevant and logically probative of that finding, that may constitute jurisdictional error in reaching the ultimate conclusion: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357 per Mason CJ with Brennan J agreeing and at 367-368 per Deane J. He argues that the Minister’s consideration and exercise of the power to cancel a visa, which depends on an assessment and findings of fact for its exercise, requires that there be probative material on which those findings can be made; and the findings cannot properly be based on speculation or guesswork or on assumptions based on material incapable of supporting those assumptions, citing Assistant Minister for Immigration and Border Protection v Splendido[2019] FCAFC 132; 271 FCR 595 at [107] and [111] per Mortimer J, [113] per Moshinsky J and [131]-[132] per Wheelahan J.

In Djokovic at [35] the Full Court said:
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
Mr Lewer accepts that he faces a “high bar” in seeking to establish legal unreasonableness in the cancellation decision. In my view he failed to establish that the Minister’s finding (at [118]) that Mr Lewer has engaged in serious criminal and other conduct is illogical, irrational or legally unreasonable, nor did he show that there is no rational or legally reasonable basis for the Minister’s conclusion (at [121]-[122]) that there is an ongoing risk that Mr Lewer will reoffend or engage in other serious conduct. He did not establish that the cancellation decision is one which no reasonable decision-maker could have made on the material before the Minister.
I accept that, in light of the absence of convictions for the majority of the conduct referred to in the Victoria Police reports, it was open to another decision-maker, acting reasonably, to conclude that there was insufficient probative material to make the findings that are critical steps to reaching the requisite state of satisfaction that it is in the national interest to cancel Mr Lewer’s visa. But that is not the test. The Minister’s satisfaction turned upon factual matters about which reasonable minds could reasonably differ. It involved questions of fact, projections of the future risk of offending conduct and evaluations in the nature of opinion. As Gummow J said in Eshetu at [137] in such cases “it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.
Also, Mr Lewer is incorrect in saying that all charges for the matters for which he was investigated by Victoria Police were withdrawn. It is true that in 1995 the charges of sexual offences involving two young girls were withdrawn and in 2014 the charges of drug trafficking and manufacturing arising out of Covert Drug Operation 2 were withdrawn. But as the Minister noted, Mr Lewer has been convicted of a range of offences involving firearms, drug possession, violence, breaking and entering and property damage. Those convictions alone provide support for a finding that Mr Lewer has engaged in serious criminal and other conduct.
Further, withdrawal of these two sets of charges does not show that no reasonable decision-maker could have reached the cancellation decision on the material before the Minister. The Minister took into account:
(a)(at [105]) that Mr Lewer “has successfully avoided criminal convictions on a number of occasions, noting that multiple charges have been withdrawn, witnesses have retracted their statements (in one case citing fear) and a crown witness died”; and
(b)(at [115]) that “[t]he material in its totality exceeds mere coincidence that Gary Lewer has been the subject of various high-level Police Operations between 1981 and 2017” including investigations in relation to “sophisticated criminal drug importation and manufacturing enterprises”.
The Minister found (at [118]) that overall, in light of Mr Lewer’s criminal history and the magnitude of police intelligence over an extended period of time, and notwithstanding the absence of convictions in relation to the majority of the conduct outlined in the first Victoria Police report, “Mr Lewer has engaged in serious criminal and other conduct”.
Mr Lewer submits that there is no ongoing police investigation into his conduct, but he did not establish that. That may or may not be so, and there was no obligation on Victoria Police to reveal to the Minister (and through the Minister to Mr Lewer), whether or not there are ongoing criminal investigations into his conduct. In any event, the absence of an ongoing police investigation (if that be the case) would not show that the cancellation decision is legally unreasonable. The past matters to which the Minister referred are sufficient to show a rational basis for the cancellation decision.
He also submits that the cancellation decision was legally unreasonable in circumstances where he was granted the visa while under police investigation and where he disclosed his prior criminal convictions in the visa application. The Minister’s reasons, however, show that the cancellation decision was, to a significant extent, based on the information in the Victoria Police reports which related to conduct that went beyond the matters for which Mr Lewer had been convicted. I am not persuaded that it was legally unreasonable to cancel the visa on the basis of this new information.
Mr Lewer argues that there has been no further offending by him since he was granted the visa in 2017. That submission is incorrect. In 2019 Mr Lewer was convicted of failing to lodge income tax returns for six years. In any event, an absence of recent offending does not show that no reasonable decision-maker could have reached the cancellation decision on the material before the Minister. The absence of, or a low level of recent offending, was just one of the matters to be weighed by the Minister in reaching the requisite state of satisfaction.
Finally, Mr Lewer argues that the cancellation decision is legally unreasonable because there is no evidence to support the allegations contained in the first and second Victoria Police reports, and the related findings by the Minister. I do not accept that, for the reasons set out in relation to ground two.
Ground 7
Ground seven of the application alleges as follows:
The power in s 501(3) of the Migration Act was not available to be exercised either:
a.on the same facts and circumstances as had been before the Minister in or about June 2017;
or alternatively,
b.by taking into account the uncharged and/or unproven allegation of Victoria Police because these unproven allegations did not relevantly bear on the question of the applicant’s previous criminal history or whether it was in the national interest to cancel his visa.
Mr Lewer concedes that sub-ground (b) is subsumed by grounds two and four of the application. He presses ground 7(a) only.
The Minister notes (at [130]) that the Departmental movement records in respect of Mr Lewer (movement records) are incomplete, but says that Mr Lewer left Australia briefly on at least 21 occasions since 1978. The movement records show that Mr Lewer most recently left Australia on 19 June 2017.
Mr Lewer notes that that in respect of his June 2017 international travel, the Department recorded him as being a “resident”. He submits, and the Minister did not argue otherwise, that in respect of his travel between 4 October 1990 and 19 June 2017, he was the holder of a Class BB Resident Return visa which permitted him to live in Australia for a period determined by the Minister, and that he had been granted several such visas since 1993. It appears that a number of those visas were for a five year period.
In approximately mid-2017 Mr Lewer applied for the visa which is the subject of the cancellation decision. He disclosed his criminal convictions in the application. The FOI documents in evidence show that on 8 June 2017 a Departmental officer (identity redacted) sent an email to a person (identity redacted), who it is appropriate to infer is another Departmental officer, saying :
Dear [redacted]
As discussed, could I please ask your opinion on a case:
We have a permanent resident lawfully onshore on a valid Resident Return Visa subclass 155 (granted in 1997, so the travel facility has expired). This client intends to travel overseas very soon and consequently has applied for a new RRV [Resident Return Visa], and on the surface he appears to meet all requirements for grant [of the visa]…
[redacted text]
…
I can see that in the client’s pending visa application form, he disclosed some of his criminal convictions, but not all of them. However, I can also see from the [redacted] email report that all appear to be minor convictions: only one of them resulted in a 6 month jail sentence. The others did not seem to have resulted in any imprisonment according to the attached emails. The reason they are recommending deportation is due to current investigations which are ongoing and have not yet resulted in any new conviction at this stage.
The email then posed the following two questions for consideration:
•Consequently, as the client is already a permanent resident in Australia, who meets all requirements for a new Resident Return Visa grant, is there a legal basis for referring the case to [the Visa Applicant Character Consideration Unit (VACCU)] for refusing the pending application under s501?
•Or would it be better for me to grant the new RRV, and then refer the grant to the NCCC [(the National Character Consideration Centre)] to consider cancellation under s501?
If further investigation leads to a new conviction, then NCCC could consider cancelling a new RRV grant exactly as they would do for the current permanent resident visa held by the client. Therefore, proceeding to grant a new RRV would make no difference to the outcome, except if the police requires the client to not be granted a new travel visa in order to discourage him from departing Australia so that he could face prosecution?
Your urgent advice is required as the client is proposing to depart soon (as per his attached email) is pressing us to make a decision on his visa application, which has exceeded processing service standards.
…
(Emphasis added).
Later the same day, a Departmental officer (identity redacted) sent an email to various recipients (identities redacted), who it is appropriate to infer are also Departmental officers, advising that Mr Lewer would be granted the visa, but that the grant of the visa would then be referred to the NCCC for the purpose of considering whether to cancel the visa under s 501 of the Act. The email said:
Dear [redacted] team, as well as [redacted]
After I received your below and attached emails, I immediately forwarded them to our [VACCU and NCCC] for further instructions on how we should best proceed from here.
The VACCU and NCCC manager, [redacted] advised me to grant the Resident Return Visa (RVV) to the client, and then refer this grant to her NCCC team to consider cancelling it under Character s 501.
However, she asked me to convey to the [redacted] that refusal of the RRV would not prevent [the applicant] from departing, and VACCU would only be able to make a finding based on the information currently before them. A cancellation consideration however will allow NCCC to fully investigate this client’s criminal associations, prior to making a character finding. To this end, NCCC would be grateful for any other intel your teams are able to provide to NCCC (i.e. results of your investigations and/or any new recorded convictions) that could then assist NCCC in making a determination whether or not to cancel the client’s permanent resident visa status.
Please note: I have not yet granted the new RRV, as I was asked by VACCU/NCCC to first obtain the client’s overseas contact details. I have sent a request to the client about this, but I have not yet received an answer; so his visa application is still pending at the moment.
…
(Emphasis added).
More than two years later, and a couple of days after receiving the first Victoria Police report, on 16 July 2019 the Acting Manager of the Character Cancellation Taskforce in the NCCC said in an internal email:
Please see attached report and NCHC regarding Mr LEWER. Mr LEWER was issued with a notice regarding possible visa cancellation under s 501(2) but did not collect the registered mail item. Since then, Vic Pol have provided the attached report in relation to intel holdings around Mr LEWER’s criminal networks and activities.
While [redacted] has advised he can assist with hand delivery of the notice with attached included, I thought I would refer to you in the first instance to assess whether Mr LEWER’s visa should be considered for cancellation under s 501(3). Escalation is also required but I can arrange this pending decision on which power to proceed with.
On 5 September 2019, internal correspondence within the Department indicates that it was proposed that the matter be referred to the Minister to consider using his personal power under s 501(3) of the Act to cancel Mr Lewer’s visa. As I have said, on 13 December 2019, the Assistant Secretary of the NCCC provided the Minister with the Departmental submission regarding cancellation of Mr Lewer’s visa under s 501(2) or s 501(3) of the Act.
On 16 December 2019, Mr Lewer arrived at Melbourne airport from overseas. The FOI documents show that an unidentified Departmental officer sent an email to various unidentified persons with the subject line: “… - UPDATE - Possible visa cancellation under s 501(3)(b) - client now ONSHORE - Gary John LEWER…violent offender with significant crime links”. The email said that “Border Clearance officers spoke with him…He declared his criminal convictions which were the same as stated on his s/c 155 visa”.
Mr Lewer submits that this correspondence demonstrates that the Minister and the Department had several “touch points” with Mr Lewer after his last conviction on 27 January 2016. He notes that on each occasion the Department did not act on or progress the cancellation of his visa. He argues that it is important that the delegate gave consideration to commencing cancellation of his visa when he applied for the visa in or around June 2017; but instead made a decision to grant the visa on the basis that Mr Lewer’s file could be referred to the NCCC in the event that the police investigation into Mr Lewer, which was ongoing, resulted in a conviction. He emphasises that no convictions subsequently occurred.
He submits that, in the circumstances in which it occurred, the decision in mid-2017 to grant him the visa amounted to a decision by a delegate of the Minister not to refuse him a visa pursuant to s 501(1). He argues this is evidenced by the words of s 65(1) of the Act which state that the Minister or his delegate is to grant a visa if satisfied that, among other things, the grant of the visa is not prevented by s 501. Mr Lewer submits that because of this requirement, it follows that, in the process of granting him the visa under s 65, the delegate made a positive decision that granting him a visa was not prevented pursuant to s 501(1).
On this basis Mr Lewer contends, first, that because he declared his criminal convictions in the 2017 visa application, the Minister’s power to cancel his visa pursuant to s 501(3) was not subsequently available to be exercised on the same facts and/or circumstances as those which existed at the time he was granted the visa. He argues that the Victoria Police reports produced in 2019 did not represent a change in the factual circumstances from those prevailing in mid-2017 when the delegate decided to grant him the visa. He says that is so because the Victoria Police reports did not contain information about any new criminal convictions. On his argument, because no further criminal charges or convictions flowed from the Victoria Police investigations, there was no relevant change in his circumstances to re-enliven the Minister’s discretion to cancel his visa under s 501(3).
In support of this contention he relies on Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 and Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200, and submits those principles should be extended to the circumstances of the present case.
Those decisions held that where the Administrative Appeals Tribunal has set aside a visa cancellation decision by the Minister or a delegate of the Minister under s 501(2) of the Act; or a decision has been made by the Minister or a delegate under s 501(2) of the Act not to cancel a person’s visa despite their failure to pass the character test, neither the Minister nor a delegate may re-exercise the power under s 501(2) to cancel a visa in respect of that person in reliance upon the same facts as were before the previous decision-maker.
In Makasa per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ, the High Court summarised the first instance and Full Court decisions in Brown and said at [23]-[25] and [27] that the preferred approach was that adopted by the primary judge, Colvin J, where his Honour “took the view that, once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa”.
At [42]-[44], their Honours said:
42.Whether the decision is to cancel the visa or not to cancel the visa, the decision is therefore the end point of an exercise of the power conferred by s 501(2) of the Act. That is so of a decision to cancel or not to cancel reached by the Minister or a delegate in an initial exercise of the power. And it is so of a decision to cancel or not to cancel reached by the AAT on review in a re-exercise of the power under s 43(1)(c)(i) of the AAT Act.
43.The consequence is that, if the Minister or a delegate is to make a subsequent decision to cancel a visa under s 501(2) of the Act, superseding a decision of the Minister or a delegate in the first instance or of the AAT on review not to cancel the visa, that subsequent decision can only occur through a re-exercise of the power conferred by s 501(2) of the Act.
44.The determinative question therefore becomes whether, and if so when, the power conferred by s 501(2) of the Act, having once been exercised by the Minister or a delegate in the first instance or re-exercised by the AAT on review not to cancel a visa, can be re‑exercised by the Minister or a delegate to cancel the visa. The answer turns on an examination of whether, and if so to what extent, there appears sufficiently for the purposes of s 2 of the AI Act an intention contrary to the application of the general prescription in s 33(1) of the AI Act that a statutory power “may be exercised ... from time to time as occasion requires”.
Their Honours concluded that where a previous decision-maker has decided not to cancel a person’s visa under s 501(2), that power may not be re-exercised by the Minister or a delegate to revisit and reverse that previous decision if there has been no change to the factual basis on which the earlier decision was made. The Court also said at [55]:
Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.
Second, Mr Lewer submits that s 501A is the appropriate section under which the Minister must consider cancellation of Mr Lewer’s visa, to the exclusion of s 501(3). He argues that this is evident given the terms of s 501A and in circumstances where the FOI documents show that in mid-2017 a delegate of the Minister made a decision not to exercise the power conferred by s 501(1) to refuse to grant Mr Lewer a visa.

Mr Lewer argues that s 501A is applicable in the present case by virtue of the process enshrined in s 65 of the Act for granting a visa. He relies on Makasa at [52]-[53] where the High Court said:
Looking next to s 501A of the Act, however, there emerges a somewhat broader intention limiting the scope of the application of s 33(1) of the AI Act to the power conferred by s 501(2). Part of the purpose of s 501A is to confer specific powers on the Minister to revisit and reverse a decision not to cancel a visa in the exercise of the power conferred by s 501(2). That is so whether the decision not to cancel is made by a delegate or by the AAT. And it is so whether the reason for the decision not to cancel a visa is satisfaction by the delegate or the AAT that the visa holder passes the character test or an exercise of discretion by the delegate or the AAT not to cancel the visa. So much is spelt out in s 501A(1).
As powers of ministerial override, each of the specific powers conferred on the Minister by s 501A(2) and s 501A(3) can be exercised by the Minister without need for any change to the factual basis on which the delegate or the AAT formed a reasonable suspicion that the visa holder did not pass the character test in making the decision not to cancel a visa.
(Emphasis added.)
Mr Lewer contends that unlike the position under s 501(3), in exercising either of the powers under s 501A(2) or (3), Mr Lewer could have made submissions to the Minister before the cancellation decision was made, which he submits might realistically have affected the outcome.
Consideration
Mr Lewer submits that the Minister acted outside power in deciding to cancel his visa under s 501(3) when the Minister’s delegate had earlier decided to grant him the visa (which involved a positive decision that the grant was not prevented by s 501) when the same relevant facts and circumstances applied.
First, the threshold difficulty for this submission is that Mr Lewer did not establish that the same facts and circumstances were before the Minister when he made the cancellation decision in January 2020 as were before the delegate when he granted the visa in mid-2017. In considering whether to grant Mr Lewer a visa in mid-2017 the delegate did not have the first and second Victoria Police reports before him; whereas in considering cancelling the visa in January 2020 the Minister had those reports. The first Victoria Police report was not created until July 2019 and was not sent to the Minister until 13 December 2019.
To my mind this argument boils down to the proposition that the two Victoria Police reports are so lacking in probative value in relation to the facts in issue that they cannot properly be characterised as amounting to a change in the facts and circumstances for consideration by the Minister, as compared to the facts and circumstances before the delegate. I do not accept that.
Mr Lewer asserts that there was no change in circumstances because he disclosed his criminal convictions in his 2017 visa application, and there were no further convictions after that point. That, however, eludes the point because it is plain that the cancellation decision was based on more than his criminal convictions. What the Victoria Police reports disclosed was that, although Mr Lewer had not been convicted of such conduct, Victoria Police believed, based on its intelligence holdings, that he had been involved in sophisticated criminal drug importation and manufacturing enterprises and other serious criminal conduct and that he had numerous criminal associations. It was on the basis of that information, as well as his criminal convictions, that the Minister found that, notwithstanding the absence of convictions in relation to the majority of the conduct alleged in the two reports, Mr Lewer had engaged in serious criminal and other conduct, and that he poses a risk to the Australian community through reoffending or further engaging in other serious conduct.
Second, Brown and Makasa stand for the proposition that, once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa. I accept that the principles Brown and Makasa can be applied, by analogy, to a case relating to the re-exercise of the discretion in s 501(3) rather than s 501(2): see Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 at [15]-[16] per Logan, Charlesworth and Wheelahan JJ; but the applicant’s reliance on Brown and Makasa is misplaced in the present case for three reasons.
(a)This is not a case where there was an earlier exercise of power to not cancel Mr Lewer’s visa under s 501, and then the Minister subsequently sought to re-exercise that discretion to cancel the visa, based on the same facts and circumstances. The delegate did not consider whether to cancel the visa. His or her task was to decide whether to grant the visa, which should have involved deciding whether doing so was prevented by s 501. As I explain below, in fact, the delegate did not determine the issues that may have arisen under s 501, instead deferring those issues to the NCCC.
(b)The intra-Department email correspondence (extracted at [166]-[171] above) shows that the delegate initially queried whether refusal was available under s 501 but upon receiving instructions from the VACCU and NCCC manager, the delegate granted the visa and referred consideration of whether to cancel the visa to the NCCC team who said they would “fully investigate [Mr Lewer’s] criminal associations, prior to making a character finding” and consider cancelling it under s 501. Whatever the obligation of the delegate under s 65, the evidence indicates that the delegate granted Mr Lewer the visa without deciding pursuant to s 65(1)(a)(iii) of the Act whether or not that was prevented by s 501. Instead, any question as to the application of s 501 to Mr Lewer was referred to the NCCC. The Minister subsequently cancelled the visa pursuant to his power under s 501(3), but that did not involve the Minister re-exercising the cancellation power under that provision.
(c)Even if (contrary in my view) there was a re-exercise of the discretion under s 501(3), the provision of the first and second Victoria Police reports to the Minister altered the factual circumstances relevant to the Minister’s consideration of whether or not to re-exercise the discretion to cancel the visa, such that a new “occasion” arose for the re-exercise of that statutory power: see Chetcuti at [15].
Finally, I do not accept Mr Lewer’s contention that s 501A, to the exclusion of s 501(3), is the section under which the Minister was required to consider cancellation of Mr Lewer’s visa.
Section 501A is a power which is available where, relevantly, a delegate “makes a decision not to exercise the power conferred by [s] 501(1) to refuse to grant a visa to the person” (emphasis added): see s 501A(1)(a) and (c)). Mr Lewer had the onus to establish that factual premise for s 501A to apply. That factual premise was made out in Makasa and Brown but in those cases the Administrative Appeals Tribunal decided “not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person”, thereby enlivening the power in s 501A: see s 501A(1)(b) and (d).
In the present case, there is no evidence of a positive decision by the delegate not to exercise the power conferred by s 501(1) to refuse to grant a visa to Mr Lewer. Mr Lewer’s reliance on the terms of s 65 of the Act does not establish that such a decision was made. As I have said, the evidence indicates that the delegate granted the visa without deciding whether or not that was prevented by s 501; the question as to whether that section applied was referred to the NCCC for consideration. The evidence tends to show that Mr Lewer’s 2017 visa application triggered a process under which he was granted the visa, and an investigation then proceeded into whether the visa should be cancelled under s 501(2) or (3). In those circumstances, s 501A does not apply.
Further, even if (contrary to my view) s 501A does apply to the circumstances of the present case, I do not accept that the availability of power to cancel a visa under that section means that the power under s 501(3) is excluded. As explained in Chetcuti (at [22]-23]) as a matter of construction s 501 of the Act confers separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical. In relation to the inter-relationship between the visa cancellation powers under ss 501 and 501A, the Full Court said (at [23]):
…the provision made by s 501A for the setting aside by the Minister, acting personally, of an earlier, non-adverse decision is expressly textually keyed to a decision by a delegate or the Tribunal, “not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person”. All that s 501A has to say about s 501(3) is the self-evident position that the power conferred by that subsection is unaffected by the particular regime for which s 501A provides.
If the power under s 501(3) is unaffected by the regime under s 501A, the power in s 501(3) is not excluded by the availability of power under s 501A.
Ground seven is dismissed.
COSTS
I am not aware of any reason why costs should not follow the event. I have made an order that Mr Lewer pay the Minister’s costs of the application which, in the absence of agreement, shall be determined by lump sum assessment by a Registrar.

I certify that the preceding one hundred and ninety three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy.
Associate:
Dated: 28 April 2022

File number	VID 832 of 2020
Judgment of:	MURPHY J
Date of judgment:	28 April 2022
Catchwords:	MIGRATION – application for an extension of time – relevant principles – application allowed MIGRATION – application for review of decision of the Minister to cancel visa under personal power in s 501(3) of the Migration Act 1958 (Cth) – whether the Minister erred in deciding that cancellation of the applicant’s visa is in the national interest – whether the Minister erred in relying on police reports which concerned alleged criminal conduct for which the applicant was not charged or was charged but not convicted – whether no evidence in support of Minister’s findings – whether the Minister’s decision is legally unreasonable – whether in the circumstances of the case the Minister was empowered to make the visa cancellation decision under s 501(3) – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Criminal Code Act 1995 (Cth) s 301.3(c) Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth) ss 65, 477A, 501, 501A, 501C Taxation Administration Act 1953 (Cth) Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007 (Vic) Drugs, Poisons and Controlled Substances (Precursor Supply) Regulations 2010 (Vic)
Cases cited:	Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 Boucaut Bay Company Ltd (in Liq) v Commonwealth [1927] HCA 59; 40 CLR 98 Buck v Bavone [1976] HCA 24; 135 CLR 110 Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 Mentink v Minister for Home Affairs [2013] FCAFC 113 Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; 154 FCR 302
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	193
Date of hearing:	13 December 2021
Counsel for the Applicant:	Mr C J Oldham
Solicitor for the Applicant:	Macpherson Kelley Pty Ltd
Counsel for the Respondent:	Mr A F Solomon-Bridge
Solicitor for the Respondent:	Sparke Helmore

ORDER MADE BY:	MURPHY J
DATE OF ORDER:	28 APRIL 2022