Ground 2
89 Ground two of the application alleges as follows:
The Minister fell into error be making the decision to cancel the applicant's visa on the basis of allegations made by Victoria Police for which there was no evidence, or alternatively that [the decision] was not reasonably open on the materials provided by Victoria Police to the Minister.
90 In oral submissions counsel for Mr Lewer made it clear that this ground is advanced as a "no evidence" case (see e.g. transcript of the hearing (T) at T5.40, 6.22-23, 6.37, 9.01, 9.39, 10.13, 16.07, 16.12, 17.01, 18.17, 18.29-33). I proceed on that basis.
91 Mr Lewer notes that the Minister has "complete freedom" to determine the applicable national interest, and that the Minister said (at [21]) that "the matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it" and also "a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated." The Minister went on to find (at [121]) that:
…Mr LEWER poses a risk to the Australian community through reoffending or further engaging in other serious conduct including his said position as the sole person in charge of his criminal groups and his associations with offenders who have been convicted of, or are known by police for, serious offending.
92 Mr Lewer argues that the Minister's satisfaction that it is in the national interest to cancel his visa is based on:
(a) the risk he poses to the Australian community through reoffending or further engaging in other serious conduct;
(b) his involvement in sophisticated criminal drug importation and manufacturing enterprises;
(c) his leadership of criminal groups;
(d) his criminal associations;
(e) his convictions for firearm offences in 1997 and 2016; and
(f) his amassing substantial hidden wealth from criminal activities.
93 He contends, and it is plain from the Minister's reasons, that the Minister relied upon the Victoria Police reports in making the cancellation decision. He says, and I accept, that the Minister's reasons acknowledge that Mr Lewer has not been convicted for being involved in sophisticated criminal drug importation and manufacturing enterprises, nor has he been convicted of the majority of the criminal conduct in relation to which the Victoria Police reports state or suggest he has been involved.
94 Mr Lewer submits, and it is uncontentious, that if an administrative decision-maker makes a finding, which finding is a critical step towards the ultimate conclusion, and there is no evidence that is relevant and logically probative of that finding, that may constitute jurisdictional error in reaching the ultimate conclusion: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357 per Mason CJ with Brennan J agreeing and at 367-368 per Deane J. He argues that the Minister's consideration and exercise of the power to cancel a visa, which depends on an assessment and findings of fact for its exercise, requires that there be probative material on which those findings can be made; and the findings cannot properly be based on speculation or guesswork or on assumptions based on material incapable of supporting those assumptions, citing Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at [107] and [111] per Mortimer J, [113] per Moshinsky J and [131]-[132] per Wheelahan J.
95 In relation to the attachments to the first Victoria Police report, Mr Lewer describes them as:
(a) a copy of a generic article from the ACIC website about organised crime groups that does not refer to him;
(b) partially redacted movement records showing him travelling to the United Kingdom and Europe;
(c) a partially redacted internal departmental email requesting movement records relating to him;
(d) a series of newspaper articles that mention him, including an article from the Herald Sun dated 4 March 2014 which states that the drug importation charges against him had been withdrawn;
(e) a media article about Mr Voitin that makes no mention him;
(f) an email between the Department and the ATO in relation to his conviction for not filing tax returns, which resulted in an $800 fine;
(g) a citizenship status assessment relating to him;
(h) a copy of his most recent visa application;
(i) an ACIC brochure on "Illicit Firearms in Australia" that makes no reference to him; and
(j) an extract of the Drugs, Poisons and Controlled Substances (Precursor Supply) Regulations 2010 (Vic).
He says that the attachments provide no probative support for the Minister's findings nor the cancellation decision.
96 On his argument, the material in the Victoria Police reports is "vague [and] speculative", and although "directly about Mr Lewer" it is not capable of supporting the allegations made about him. He contends that most of the information in the reports is no more than speculation or guesswork, some of it does not even refer to Mr Lewer, and overall there is no evidence for the Minister's findings or the cancellation decision.
97 He takes issue with the Minister's contention that the no evidence ground must fail if there is a "skerrick" of evidence to support a finding made. He does not accept that the Victoria Police reports are "evidence"; he says that they are intelligence reports based on information either received or inferred by the police for the purpose of informing their operations, and they are not matters that could form a probative basis to prove or disprove the existence of the alleged facts.
98 Mr Lewer relies on various parts of the Minister's reasons.
99 First, Mr Lewer submits that there is no evidence for the Minister's findings (at [99]) that he was "convicted of further firearm offences in 1997 and 2016" and that his imprisonment for the 1995 firearms offences did not deter him from reoffending. Mr Lewer notes that the Departmental submission to the Minister said (at paragraph 89) that Mr Lewer was "convicted of firearm offences in 1995, 1997 and 2016". He points out that the Criminal History Check shows that in 1997 he was convicted of possess prescribed weapon and given a fine, and in 2016 he was convicted of possess/use/carry prohibited weapon without exemption/approval for which he was given a fine; neither of which conviction mentions a firearm. It is uncontroversial that he was convicted of firearms offences in 1995; but he argues that there is no evidence he was convicted of firearm offences in 1997 and 2016. Counsel for Mr Lewer also says he is instructed (although he put on no evidence to support) that the weapons relevant to the 1997 and 2016 convictions were a knife and a bow respectively.
100 Second, Mr Lewer contends there is no evidence for the (asserted) findings (at [77]-[78]) that he has "amassed substantial hidden wealth from criminal drug and other activity" which he has used to purchase "two multimillion dollar properties." He refers to paragraphs 6 and 7 of the first Victoria Police report which relevantly state that "[i]nvestigators have established that Gary Lewer has no known lawful means of income and has amassed substantial hidden wealth from criminal drug activity"; and that "[l]ong held intelligence holdings reveal Gary Lewer is known to hide large sums of cash." He says those statements are not evidence upon which the Minister could rely for the findings made nor for the cancellation decision; noting that the Minister did not have before him any other material, such as the primary intelligence holdings upon which the Victoria Police investigators relied in reaching the stated view.
101 Relatedly, Mr Lewer refers to the statements in paragraph 8 of the first Victoria Police report that both of the "multimillion dollar home[s]" "are linked to; fake companies, a fictitious person named 'Daniel James' and a solicitor John Voitin who is knowingly implicated in this fraudulent scheme."
102 In this regard he points to an attachment to the Minister's reasons, a newspaper article from The Age dated 31 July 2019 which carries the headline "Bikie lawyer's farm burnt out in suspicious Bellarine Peninsula blaze". The Minister said (at [96]):
The intelligence report states that Mr LEWER associated with solicitor John Voitin. I note the article in the Age on 31 July 2019, 'Bikie lawyer's farm burnt out in suspicious Bellarine Peninsula blaze' states that a suspicious fire razed the Bellarine Peninsula home of a high profile bikie lawyer, John Voitin, just weeks after vandals trashed his luxury property in Melbourne's inner east. The article further states that Mr Voitin was due to face a committal hearing at the Melbourne Magistrates Court on the following Monday (5 August 2019) on charges of false accounting after bikie taskforce police raided his former business in March 2018, as part of a major investigation into alleged money laundering on behalf of the Comanchero motorcycle gang.
103 Then, in the following paragraph which concluded the section of the Minister's reasons headed "[o]ther serious conduct and criminal associations", the Minister acknowledged (at [97]) that while "Mr Lewer has not been convicted of offences linked to the aforementioned covert operations", he was satisfied that "police intelligence holdings demonstrate that Mr Lewer has engaged in other serious conduct, through his involvement in sophisticated drug operations and violent conduct, and through his significant criminal associations."
104 Mr Lewer submits there was no evidence before the Minister of any link between Mr Lewer, Mr Voitin and the Comanchero motorcycle gang, and that the inclusion of the The Age article in the materials before the Minister does not establish any such link. On his argument, the article provides no support for the allegation in the Victoria Police report that he and Mr Voitin had a "close and dishonest association", nor that he amassed a substantial fortune from his criminal activities. He says the article is not evidence capable of supporting any finding by the Minister nor the cancellation decision.
105 Third, Mr Lewer points to the statements in paragraphs 34 to 37 of the first Victoria Police report that relate to the investigation into and prosecution of Mr Cousens which did not proceed as a result of the Chinese Ministry of Justice revoking its approval for two Chinese witnesses to give evidence against Mr Cousens in relation to charges of importing a large quantity of precursor chemicals. Mr Lewer also says there is no evidence for the statement that Mr Lewer had "a close and dishonest association" with Mr Voitin who had substantial business interests and contacts in Hong Kong. He notes that while the report said (at paragraph 38) that "it cannot be excluded" that Mr Lewer, through his association with Mr Voitin, "had the means and finances available to bribe an official in the Chinese Ministry of Justice", it confirmed there is "no direct evidence to support this belief". He says that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.
106 Fourth, Mr Lewer refers to the statements in paragraphs 11-13 of the first Victoria Police report which refer to Covert Drug Operation 2, as summarised above at [50]-[56]. In brief, the report states that: between those dates, Mr Lewer was under investigation in relation to the storage by Chemcyle of large quantities of precursor chemicals; investigators established that Mr Lewer was responsible for the importation of precursor chemicals for the purpose of supplying a network of organised crime associates who were manufacturing methylamphetamine; Mr Hutton imported chemicals under Mr Lewer's direction; and the profits were shared between Mr Lewer, Mr Hutton and Ms Hutton.
107 Mr Lewer submits that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision. Counsel for Mr Lewer says he is instructed (but put on no evidence as to this) that while Mr Hutton was charged in relation to the inappropriate storage of chemicals, that was not in relation to the sale of precursor chemicals for the purpose of illegal drug manufacturing. Mr Lewer argues that if the police had evidence of Mr Hutton or Chemcyle being involved in such activity there would be trading records, bills of lading, transport documents and the like which might provide a probative basis for the allegations in the report, but there was no such material before the Minister. He notes that the material before the Minister does not include any police witness statements that would ordinarily provide a probative basis for such allegations. Finally, Mr Lewer notes that while charges were laid against him in 2013 for possess substance to traffick (manufacture) in a drug of dependence, possess material to traffick (manufacture) in a drug of dependence and possess equipment to traffick (manufacture) in a drug of dependence, the charges were subsequently withdrawn.
108 Fifth, Mr Lewer points to paragraphs 14-16 of the first Victoria Police report which state that "[b]etween 29/04/2013 and 14/05/2013, investigators became aware of three Crime Stoppers reports disclosing large quantities of precursor chemicals being stored at a factory premises in Seaford and a residential dwelling in Frankston", and that subsequent investigations identified the chemicals as being connected to Mr Hutton. He notes that the Minister was not provided those Crime Stoppers reports nor any other probative material such as witness statements, photographs or CCTV footage which could have provided a basis for the allegations. He says that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.
109 Sixth, Mr Lewer says there is no evidence for the statements in paragraphs 17-19 of the first Victoria Police report. Those paragraphs said that Mr Hutton, Mr Frier and Heiko Kreuger were charged in relation to the seizure of "unprecedented quantities" of Schedule 1, Precursor Chemicals as specified in the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007 (Vic) from properties in Skye, Dandenong South and Airport West. The report then said:
Investigators identified Gary LEWER as being directly associated with HUTTON and FRIER. Gary LEWER was suspected of being associated with Kenneth WIGGETT through Vincent MENDEZ (deceased) and other persons, with KREUGER. Gary LEWER was to be charged but at a later time.
Mr Lewer submits that those paragraphs of the report are not evidence capable of supporting any related finding by the Minister nor the cancellation decision.
110 Seventh, Mr Lewer points to paragraph 21(b) of the first Victoria Police report which states that investigations with the Drug & Organised Crime Task Force, Serious & Organised Crime Branch, South Australia Police established that:
Late 2011 and 2012, South Australian Police investigations during Operation Dream establish that Rasim KASUMOVIC's brother, Yasmin KASUMOVICc, travelled from South Australia to Victoria to meet an unidentified person (Gary LEWER) to obtain nitroethane and nitromethane and that he would return to South Australia the following day.
He submits there is no evidence for the allegation that the unidentified person was Mr Lewer, nor how it is said that the police knew or believed it was Mr Lewer. Mr Lewer submits that there was no evidence before the Minister which linked him to the sale of nitroethane and nitromethane, and no evidence to support any related finding by the Minister nor the ultimate decision.
111 Eighth, Mr Lewer relies on parts of the Victoria Police reports which set out matters that police investigators "suspect" or "believe". By way of example, he refers to:
(a) paragraph 28(f), which states:
Given the association similarities with LEWER, SCHMIDT, MOKBEL, SPALIVIERO, GREGORIADES and Lei (Eric) ZHANG, investigators suspect it is highly likely LEWER had learned of Lei (Eric) ZHANG through his association with SCHMIDT and passed this information onto Shaun COUSENS to make contact with Lei (Erin) ZHANG.
(Emphasis added.);
and
(b) paragraph 30, which states:
Investigators believe that Gary LEWER and Shaun COUSENS had the opportunity to make substantial profits whether they sold the substance unmanufactured or manufactured into phenyl-2-propane (P2P) or methylamphetamine.
(Emphasis added.)
Mr Lewer contends that assertions of suspicion and belief by police investigators, without evidence to support that belief, are not evidence upon which the Minister was able to make any related finding nor the cancellation decision.
112 Ninth, Mr Lewer also relies on an article in The Age dated 5 March 2014 with the headline "Chinese man 'taught' Melbourne artist how to make drug ice, court told", which was attached to the Minister's reasons. The article primarily concerned Mr Cousens, but also referred to Mr Lewer in the following terms:
Mr Cousens, 42, applied for bail on Tuesday as his uncle Garry Lewer - former Mr Australia, Mr World and Mr Universe bodybuilder - had three charges issued against him last year withdrawn.
Mr Lewer, 58, had earlier been linked in court to Mr Cousens and other men charged over what police believe was the largest-ever seizure of precursor chemicals in Victoria.
He was charged with conspiring to possess sodium 3-0x0-phenylbutanoate with the intention of using it to traffic a drug of dependence.
He was also charged with conspiring with [sic] to possess equipment to use for the purposes of trafficking a drug of dependence and possessing equipment with the intention using it to traffick the same drug.
Patrick O'Halloran, of behalf of the Director of Public Prosecutions, told magistrate Gerard Lethbridge that three charges in total would be withdrawn.
(Emphasis added.)
113 Mr Lewer contends that the article is not evidence that he engaged in the alleged conduct; it is nothing more than a media report of a police allegation about someone who had a profile that may have been of interest to members of the public.
114 Tenth, Mr Lewer notes that paragraphs 31-33 of the first Victoria Police report state that: on 27 August 2013 Ms Hutton was interviewed and made a statement implicating her in conspiring with her husband and Mr Lewer in the importation and sale of precursor chemicals; Mr Lewer was subsequently charged with a number of offences related to Covert Drug Operation 2; Ms Hutton was placed in witness protection but against police advice she discontinued police assistance; on 21 February 2014 she was found hanging by the neck and died eight days later, which was after her statement was provided to solicitors acting for Mr Lewer at the time; and as a result of Ms Hutton's death the prosecution case against Mr Lewer could not proceed and all charges against him were withdrawn on 4 March 2014. He submits that there is no evidence to show that he possessed substances, material or equipment to manufacture and/or traffick a drug of dependence, nor that he had anything to do with the death of Ms Hutton, and there was no evidence before the Minister to make any related findings nor the cancellation decision.
115 Mr Lewer notes that the first Victoria Police report does not contain Ms Hutton's statement nor any other evidence that would support the allegations that Ms Hutton apparently made. He says that if such a statement exists it should have been before the Minister as evidence of the conduct alleged.
116 Eleventh, Mr Lewer relies on [109]-[110] of the Minister's reasons where he said:
I have had regard to the police intelligence that states that Mr LEWER has amassed substantial wealth despite not having a lawful means of income. I note that Mr LEWER was charged with Failure to furnish a prescribed form (Tax return) between 2011 and 2017 and was fined.
I consider financial crimes have a widespread impact on the revenue available to the government and are often linked to criminal activity, as indicated in the intelligence report.
117 Mr Lewer accepts that he was convicted for not filing tax returns from July 2010 to June 2016 and was fined $800. Counsel for Mr Lewer submits (but put on no evidence to support) that the income tax that had not been identified because of Mr Lewer's failure to file returns was approximately $6,000, which equates to roughly $1,000 per year for the relevant period. Having regard to those amounts, Mr Lewer submits there is no evidence to suggest that he was engaging in criminal activity, and was evading tax in order to fund the alleged criminal conduct.
118 Twelfth, Mr Lewer points to: (a) the ACIC Facts Sheet (referred to in the Ministers reasons at [112]) which states that organised crime groups pose a threat to the Australian community; and (b) the ACIC report on illicit firearms in Australia. He submits, and it must be accepted, that they are all general documents which do not relate directly to Mr Lewer, and they are not evidence that he has participated in any of the offending conduct alleged in the Victoria Police reports.
119 In summary he argues that there was no evidence before the Minister in support of various findings that are critical steps in the cancellation decision, and no evidence to support the cancellation decision.