McLeod v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1479
•9 December 2022
FEDERAL COURT OF AUSTRALIA
McLeod v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1479
File number: VID 299 of 2022 Judgment of: MOSHINSKY J Date of judgment: 9 December 2022 Catchwords: MIGRATION – where Minister served a notice of intention to consider cancellation of a visa under s 501(2) of the Migration Act 1958 (Cth) – where the notice attached material said to suggest that the visa holder did not pass the character test by virtue of s 501(6)(b), namely that the Minister reasonably suspects that the person had been or was a member of a group or organisation and that the group or organisation had been or was involved in criminal conduct – where the visa holder commenced the present proceeding seeking relief before any decision had been made to cancel his visa – where the applicant contended that on the material set out in and attached to the notice it was not open to the Minister to form a reasonable suspicion of the matters in s 501(6)(b) – where the applicant sought declaratory relief – whether, as a matter of discretion, the Court should decline to grant declaratory relief Legislation: Migration Act 1958 (Cth), ss 501, 501D Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
FUD18 v Minister for Home Affairs (2021) 285 FCR 505
George v Rockett (1990) 170 CLR 104
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Roach v Minister for Immigration and Border Protection [2016] FCA 750
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 5 December 2022 Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr G Hill SC with Mr AF Solomon-Bridge Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
VID 299 of 2022 BETWEEN: ROBERT JAMES MCLEOD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Subject to paragraph 3, the applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum.
3.If either party seeks a different costs order, the party may within three business days file a short outline of submissions, in which case further orders will be made for the filing of responding submissions.
THE COURT DIRECTS THAT:
4.By 4.00 pm on 22 December 2022, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the respondent’s costs.
5.In the absence of any agreement:
(a)by 27 January 2023, the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);
(b)within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant, a citizen of New Zealand, has lived in Australia since he was 21 years old. He is now 59 years old. On 21 April 2019, he was granted a Class TY Subclass 444 Special Category (Temporary) visa (visa). By letter dated 22 April 2022 from the Department of Home Affairs (the Department), the respondent (the Minister) gave the applicant notice of an intention to consider cancellation of the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Notice). The Notice stated that the Department held information that suggested that the applicant may not pass the character test because of s 501(6)(b) of the Migration Act. Section 501(6)(b) provides that a person does not pass the character test if the Minister reasonably suspects:
(a)that the person has been or is a member of a group or organisation, or has had an association with a group, organisation or person; and
(b)that the group, organisation or person has been or is involved in criminal conduct.
The Notice included a number of attachments. Most relevantly for present purposes, attachment 8 to the Notice comprised a bundle of documents. The Notice stated that that attachment included a file note that indicated the applicant’s association to the “Outlaws” Outlaw Motorcycle Gang, and that further information from the Australian Criminal Intelligence Commission (ACIC), the Australian Border Force (ABF) and the Australian Institute of Criminology (AIC) was also included.
On 3 June 2022, before any decision had been made to cancel his visa, the applicant commenced the present proceeding. As originally formulated in the originating application, the applicant sought the following relief:
(a)prohibition to prevent the Minister from cancelling the applicant’s visa;
(b)alternatively, a mandatory injunction to require the Minister to provide to the applicant notice of sufficient particulars as to how the group had been or was involved in criminal conduct within the meaning of s 501(6)(b).
However, in his outline of submissions filed in advance of the hearing, the applicant instead sought a declaration as follows:
On the material set out in the [Notice] and its attachments, it is not lawful to find that the applicant fails the character test under s 501(6)(b) of the Migration Act 1958.
In the course of the hearing, the applicant accepted that, as submitted by the Minister, if a declaration were to be made, some refinement to the wording of the proposed declaration would be appropriate, to focus on the capacity to form a relevant reasonable suspicion from the material, rather than focussing on the capacity “to find” a failure of the character test.
In brief summary, the applicant contends that, on the material set out in and attached to the Notice, it is not open to the Minister to form a reasonable suspicion that the Outlaws is a group or organisation that has been or is involved in criminal conduct within the meaning of s 501(6)(b). On this basis, the applicant seeks declaratory relief.
The Minister contends, in summary, that the material in the Notice establishes that:
(a)Outlaw Motorcycle Gangs (OMCGs) are involved in organised crime; and
(b)the Outlaws is an OMCG.
On this basis, the Minister contends that it is open to the decision-maker to reasonably suspect that the Outlaws is a group or organisation that has been or is involved in criminal conduct within the meaning of s 501(6)(b).
For the reasons that follow, I have decided that, as a matter of discretion, the Court should decline to grant declaratory relief.
Material before the Court
The material before the Court for the purposes of the hearing comprises an amended Court Book (Court Book or CB), two affidavits relied on by the applicant, and a letter from Sparke Helmore (the solicitors for the Minister) to Carina Ford Immigration Lawyers (the solicitors for the applicant) dated 21 October 2022.
The Court Book includes a copy of the Notice (dated 22 April 2022) (CB 188-193), together with the attachments to the Notice (CB 7-186). I was informed by counsel for the Minister that the document at CB 1-6, which is substantially the same as the Notice but with the date 15 June 2022, bears an incorrect date because the date field automatically updated when the copy was printed. That version of the Notice can be put to one side.
The two affidavits before the Court are as follows:
(a)an affidavit of the applicant dated 10 November 2022; and
(b)an affidavit of Carina Ford, a solicitor, dated 8 November 2022.
There was no cross-examination of the deponents to the affidavits. The two affidavits are relied on by the applicant in relation to discretionary considerations in the context of the claim for declaratory relief.
The letter from Sparke Helmore dated 21 October 2022 states that the Notice contains an error in that, on page 2, three of the documents listed as forming part of attachment 8 were not in fact part of attachment 8 (or any other attachment). The three documents listed in error are:
•Information on Illicit Drugs from the ACIC, dated 30 June 2016
•Information on Outlaw Motor Cycle Gangs from the ACIC, dated 21 April 2017
•Information on Illicit Firearms in Australia Report from the ACIC, dated 2016
The letter states that the error is reflected in the fact that none of the three documents appears in the Court Book filed in this proceeding. Further, the letter states that the author of the Notice did not rely upon these three documents, which were not in fact included in attachment 8, and that the Minister does not propose to rely upon them as part of considering cancellation. There is no issue between the parties about these matters, and I accept them as correct.
Background facts
As stated above, on 21 April 2019, the applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa (referred to as the “visa” in these reasons).
On 21 April 2019, officials at Melbourne Airport conducted an interview with the applicant, as well as a baggage search and phone examination. The applicant is recorded as having admitted that he was a “patched” member of the Outlaws motorcycle club, and had been since 2009 (see CB 30).
On 22 April 2022, the Department issued the Notice. The Notice relevantly advised that the Department held information which suggested that the applicant did not pass the character test by virtue of s 501(6). The Notice stated that documents included in attachment 8 contain information that:
appears to suggest that you do not pass the character test because the Minister reasonably suspects that you have been or [are] a member of a group or organisation, or have been or have an association with a group, organisation or person; and that group, organisation or person has been or is involved in criminal conduct.
The Notice stated that attachment 8 includes a file note dated 29 October 2021 (of his interview and search by officials at the airport), which “indicate[s] your association to the ‘Outlaws’ Outlaw Motorcycle Gang”.
The following is a brief description of the content of documents comprising attachment 8 to the Notice. The description is substantially based on an annexure to the Minister’s submissions. No issue was taken by the applicant with that summary of the documents.
(a)File Note re association to the Outlaws dated 29 October 2021 (CB 30-47): records admissions made by the applicant at Melbourne Airport about his membership of the Outlaws motorcycle club, and attaches photograph downloads showing the applicant’s connection with the club and other members.
(i)Some photographs show tattoos or t-shirts with the slogan “Outlaws 1%er” (CB 35-36, 41), while other photographs indicate the Outlaws’ branding to contain a “1%” and a raised middle finger (CB 44).
(ii)Other photographs depict a person in the presence of a person wearing an Outlaws t-shirt dressing in what appears to be Klu Klux Klan garb and possibly giving a Nazi salute (CB 45).
(b)Australian Outlaw Motorcycle Gang Identification Chart, ACIC (CB 48): This document identifies a number of gangs or clubs as being Australian Outlaw Motorcycle Gangs. The Outlaws appears in this chart, in the second row from the bottom of the page.
(c)Information on Organised Crime Groups from the ACIC, dated 12 April 2019 (CB 49-52): This document presents generalised information about OMCGs and the nature of their criminal activities. The following passages appear at CB 50:
Outlaw motorcycle gangs
Outlaw motorcycle gangs (OMCGs) are one of the most high-profile manifestations of organised crime, with an active presence in all Australian states and territories. They see themselves as the ‘one percenters’ who operate outside the law. Their criminal activities distinguish OMCGs from recreational motor cycle riding clubs, which are made up of people who get together solely to ride their motor cycles and socialise.
…
The most recent assessment of OMCGs identified that there are 39 ‘one percent’ OMCGs operating in Australia, with more than 4,690 patched members and 970 prospects.
The following chart identifies Australian motorcycle gangs.
Immediately following the above text is a hyperlink to a document described as “Outlaw motorcycle gang identification chart”. The Minister submits that it may be inferred that this chart is the same as the chart appearing at CB 48, referred to above. It is unnecessary to resolve whether or not that is the case.
(d)Information on Outlaw Motor Cycle Gangs Special Operation from the ACIC, dated 13 February 2017 (CB 53-54): This document describes the use of the ACIC coercive powers as having been effective in the collection of information and intelligence, and that these investigations have identified and attacked a range of OMCG criminal enterprises which had proved highly resilient to traditional law enforcement methods.
(e)Information on Violence from the ACIC, dated 2 May 2019 (CB 55-56): This document provides very high-level information on the use or threat of violence as part of organised criminal activity, and is not specific to OMCGs.
(f)Information on Organised Crime in Australia Report from the ACIC, dated 2017 (CB 57-103): This document describes itself as a “snapshot of serious and organised crime in Australia” (CB 60). The document refers to Task Force Morpheus focusing on the activities of OMCGs at CB 65, and refers to OMCGs in passing again at CB 76 (in connection with methylamphetamine importation) and at CB 85 (in connection with trafficking illicit firearms).
(g)Statistical Report from the Australian Institute of Criminology (AIC) Report dated August 2018 (CB 104-150): This report presents an estimate (commissioned at the request of the ACIC) of the taxpayer savings from cancelling or refusing the visas of 184 organised crime offenders between December 2014 and May 2018 (CB 110). Various comments are made throughout the report about the prolific serious offending of OMCG members and the consequential cost to the community. The report opines that OMCG members were nearly twice as likely as other organised crime offenders to belong to the “high offending” group which is associated with significant costs (CB 132, 134).
(h)Study of the criminal histories of Australian organised crime offenders from the AIC, dated January 2019 (CB 151-181): This is a study looking at trends in the criminal histories of Australian organised crime offenders, including the prevalence, incidence and severity of offending by age. It refers to OMCG members only in the context of previous Dutch and Danish studies (CB 153).
(i)Movement records (CB 182-185): This document records the movement history of the applicant and shows the applicant to have flown in and out of Melbourne Airport on a fairly regular basis since 1987.
(j)First arrival dates (CB 186): This document appears to show the applicant’s first arrival in Australia as 10 November 1987.
The Notice invited the applicant to comment on the information, and advised that, under s 501D of the Migration Act and r 2.53 of the Migration Regulations 1994 (Cth), the decision-maker must not consider any information or material submitted by the applicant to satisfy the decision-maker that he passes the character test unless it was received by the Department within 28 days after he was taken to have received the notice.
By letter dated 27 May 2022, the applicant’s then solicitors responded to the Notice, stating (among other things) that there was no evidence that the Outlaws have been, or are, involved in any criminal conduct (CB 194-214).
In the applicant’s affidavit, he states that, at the time of his interview with the ABF, in April 2019, he confirmed that he was a member of the Melbourne chapter of the “OUTLAWS AUSTRALIA” motorcycle gang. He states that this is no longer the case as his membership has ended. He states that he currently has no association with the club other than seeing some members socially.
Statutory provisions
By s 501(2) of the Migration Act, the Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. In Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 (Makasa) at [34]-[42], the High Court explained the stages of the decision-making process under s 501(2).
The character test is contained in s 501(6). Relevantly for present purposes, s 501(6)(b) provides that a person does not pass the character test if “the Minister reasonably suspects”:
(i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)that the group, organisation or person has been or is involved in criminal conduct.
The legislative history and construction of s 501(6)(b) were considered by Perry J in Roach v Minister for Immigration and Border Protection [2016] FCA 750 (Roach) at [135]-[148] and [169]-[171]. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [164], the Full Court (Griffiths, White and Bromwich JJ) expressed its agreement with the view expressed by Perry J in Roach at [169] that, in this particular statutory context, “involved” extends beyond “actively participating” to include its ordinary meaning of “concerned” in or “implicated” in the conduct.
The state of mind of reasonable suspicion, which is relevant for both s 501(2) and s 501(6)(b), was discussed by the High Court in George v Rockett (1990) 170 CLR 104 at 112-113 and 115, which was cited by the High Court in Makasa at [36] in the context of s 501 of the Migration Act.
The parties’ submissions
In the applicant’s outline of submissions, it is stated that the Minister admits in this litigation that the information set out in the Notice is all that he might consider under s 501(6)(b). In the course of the hearing, senior counsel for the Minister confirmed that his instructions were that it is not proposed to rely on any protected information or any additional documents for the purposes of considering whether the Minister has a reasonable suspicion under s 501(6)(b).
The applicant’s submissions can be summarised as follows:
(a)Unless expressly excluded, all statutes carry an implication that powers to be exercised thereunder must be exercised rationally and reasonably. On the material contained in and attached to the Notice, it is not possible for a rational or reasonable decision (in the legal sense) to be made to cancel the visa or, to put it another way, it is not possible for the Minister, lawfully, to hold a reasonable suspicion of the matters set out in s 501(6)(b).
(b)The material provided in the Notice does not contain any “criminal conduct” by the Outlaws. There is not even an allegation of it. Instead, it contains agglomerated information that certain law enforcement agencies consider “bikie gangs” to engage in serious organised criminal conduct. The Outlaws are identified as one such gang at CB 48. However, the information does not attribute to any particular gang, or even any collection of gangs, responsibility for any particular criminal conduct. The statistical report at CB 104-135 also does not set out information of any criminal conduct by the Outlaws.
The Minister’s submissions can be summarised as follows:
(a)The Minister accepts that, for the purposes of s 501(6)(b), the decision-maker must make “clear and definitive findings in respect of the relevant components or elements of s 501(6)(b)”: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [145]. However, the applicant’s arguments go beyond this principle.
(b)The Minister accepts that any suspicion that the Minister is to form under ss 501(2) and 501(6)(b) must be formed rationally and reasonably. However, this is a stringent standard of review, requiring “extreme” illogicality: see, eg, ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 (DAO16) at [30(5)]. If reasonable minds might differ with respect to the conclusions to be drawn from the evidence, a decision cannot be said to be illogical or irrational, simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]; DAO16 at [30(5)].
(c)In this case, it is rationally and reasonably open to the decision-maker to form a reasonable suspicion that the Outlaws is a group or organisation that has been or is involved in criminal conduct. In particular, the material in attachment 8 demonstrates that:
(i)OMCGs are involved in organised crime; and
(ii)the Outlaws is an OMCG.
In response to the above submissions, the applicant submits that the material does not establish that all OMCGs have been or are involved in criminal conduct. The applicant submits that, on a fair reading of the documents comprising attachment 8, they are merely saying that within the 39 groups identified as OMCGs, there are at least some that have been involved in criminal conduct.
The Minister does not put in issue the utility of appropriately tailored declaratory relief.
Consideration
The issue raised by the application may be stated as follows: whether it is rationally and reasonably open to the decision-maker, on the basis of the information contained in attachment 8 to the Notice, to form a reasonable suspicion that the Outlaws is a group or organisation that has been or is involved in criminal conduct within the meaning of s 501(6)(b).
The applicant contends that the answer to that question is “No” and seeks a declaration reflecting that answer. The applicant seeks that relief in circumstances where no decision has been made to cancel the applicant’s visa.
Although the Minister does not challenge the utility of the proceeding, during the course of the hearing I raised with both parties whether it was appropriate for the Court to grant declaratory relief in the circumstances, noting that declaratory relief is a discretionary remedy. I drew attention to the fact that no decision has been made to cancel the applicant’s visa, and contrasted this with the usual case concerning s 501 of the Migration Act, where a decision has been made to cancel, or refuse to grant, a visa.
The applicant’s counsel accepted that these discretionary considerations have force, and in most cases would lead to the Court adopting a “wait and see” approach, but submitted that this is an exceptional case because the legal argument was a “knockout blow”. Counsel further submitted that in the circumstances of this case it was efficient to decide the issue now.
Senior counsel for the Minister noted that in FUD18 v Minister for Home Affairs (2021) 285 FCR 505 (FUD18) the Full Court, in its discretion, declined to grant declaratory (and other) relief (see in particular [128]-[133]), but submitted that that case was distinguishable on the basis that, in that case, it was unclear what information would be before the Minister at the time when he came to make his decision (see [129]). In contrast, in the present case, as noted earlier in these reasons, the Minister confirmed that it is not proposed to rely on any protected information or any additional documents for the purposes of considering whether the Minister has a reasonable suspicion under s 501(6)(b).
In my view, as a matter of discretion, the Court should decline to grant declaratory relief in the circumstances of this case.
First, it may be the case that the Minister does not form a reasonable suspicion of the matters referred to in s 501(6)(b) or otherwise decides not to cancel the applicant’s visa. If so, the decision of this Court would be rendered academic. This was one of the reasons for refusing declaratory and other relief referred to by the Full Court in FUD18: see [39], [49] per Wigney J, [129] per Wheelahan and Lee JJ.
Secondly, if the Minister does form a reasonable suspicion of the matters referred to in s 501(6)(b) and decides to cancel the applicant’s visa, the applicant will have a process available to him to challenge that decision, namely bringing an application for judicial review in this Court. The availability of that process strongly militates against deciding this issue now: see FUD18 at [45]-[46], [49] per Wigney J.
Thirdly, deciding this issue now risks fragmentation of issues. For example, if the issue is not decided now and if a decision is made to cancel the applicant’s visa, that decision may well be challenged on a number of judicial review grounds, including legal unreasonableness or irrationality on the basis of insufficiency of material. The Court would then deal together with all the grounds. This would be more efficient that dealing now with the issue of legal unreasonableness or irrationality (based on insufficiency of material) and then, later, with other grounds.
Fourthly, I consider that the Court will be better placed to deal with the issue of legal unreasonableness or irrationality (based on insufficiency of material) with the benefit of a statement of reasons (should a decision be made to cancel the applicant’s visa). As things stand, the Court is being asked to decide the issue somewhat in the abstract, without a statement of reasons explaining how the material is considered by a decision-maker to support the formation of a reasonable suspicion of the matters referred to in s 501(6)(b).
I appreciate why the applicant, and his legal advisors, have chosen to commence a proceeding at this stage. I accept that, if a decision is made to cancel his visa, the applicant is likely to have to spend a considerable period of time in immigration detention while challenging that decision and that this would be extremely difficult at a personal level. However, it may be observed that this is true in many cases that come before the Court.
I am not persuaded by the submission that this is an exceptional case. I consider that there may well be other cases where, following receipt of a notice of intention to cancel a visa, the recipient of the notice could seek to argue that the material sought to be relied on is insufficient.
Having regard to these matters, I have decided that, as a matter of discretion, the Court should decline to grant declaratory relief in the circumstances of this case. In light of this, I consider it preferable not to express a view on the issue raised by the proceeding.
Conclusion
It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore make an order that the applicant pay the Minister’s costs of the proceeding, to be fixed as a lump sum. I will allow a short period of time in case either party wishes to seek a different costs order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 9 December 2022
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