The Minister's decision
35 As I have noted, the Minister received from his Department a detailed briefing note with various attachments. In part, the primary judge summarised the content of the brief (which the appellant does not challenge) at PJ [17]-[26]. It is convenient to set out a portion of that summary, which I adopt:
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 [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
...
[The Victorian Police reports] contain 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".
36 The Minister's Decision recorded that he "reasonably suspect[s] that Mr Lewer does not pass the character test" (at MD [16]) and then gave consideration to the meaning of national interest at s 501(3)(d) of the Act by reference to Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [86] (French, O'Loughlin and Whitlam JJ), Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 (Heerey, Lindgren and Emmett JJ) and Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [79] (Gaudron J). The Minister concluded at MD [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.
37 The appellant does not contend that the Minister erred in misunderstanding or misstating the meaning of national interest for the purposes of s 501(3) of the Act. Next the Minister divided his reasons into four sections: criminal conduct, criminal associations, risk to the Australian community and other considerations. The primary judge clearly and comprehensively summarised the Minister's reasons at PJ [42]-[79]. Although lengthy, I adopt his Honour's summary because the appellant's primary argument is that it was not reasonably open to the Minister to be satisfied that it is in the national interest to cancel his visa "based on slight material or speculation" and, as further refined in submissions, the argument is that the Minister's decision is jurisdictionally flawed as "it was neither rational nor reasonable for the Minister positively to find that the appellant had in fact committed any let alone all of the crimes of which he was 'suspected'… absent convictions". Those submissions require a detailed understanding of all the material considered by the Minister: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84] (Nettle and Gordon JJ).
38 His Honour's summary is:
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. [The] 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 [sic] 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 [sic] 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, [sic] 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.
(Original Emphasis.)
39 Save for two references to firearms offences in 1997 and 2016, the appellant does not submit that the Minister misunderstood the factual material that was before him. Nor does the appellant submit that this summary is inaccurate or incomplete.