FEDERAL COURT OF AUSTRALIA

Rawsthorne v Minister for Immigration & Citizenship [2013] FCAFC 39

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT

1    This appeal is concerned with the exercise of the discretion to cancel a visa on character grounds.

2    Cameron Rawsthorne, a British national, has a long criminal history. His most recent and most serious convictions relate to the manufacture and supply of commercial quantities of illicit drugs.

3    Until recently Mr Rawsthorne held a permanent residence visa. On 30 April 2012 the Minister, through his delegate, cancelled the visa on suspicion that Mr Rawsthorne did not pass the character test, a test set out in s 501(6) of the Migration Act 1958 (Cth) (“the Migration Act”). Mr Rawsthorne challenged the decision in the Administrative Appeals Tribunal (“the tribunal”), which affirmed the delegate’s decision. The tribunal’s decision was not amenable to appeal but it was amenable to review for jurisdictional error (see Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358 at [3]–[6]). Mr Rawsthorne applied for such a review, contending that the tribunal’s decision was attended by jurisdictional error. The primary judge dismissed his application. This is an appeal from that judgment.

4    Section 501(2) of the Migration Act confers a discretion on the Minister to cancel a visa if he reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy him that he or she does satisfy the test. Section 501(6) defines the circumstances in which a person does not pass the character test. One of those is that the person has a “substantial criminal record” as defined in subs (7). Section 501(7) defines “substantial criminal record” for the purpose of the character test to include being sentenced to a term of imprisonment of 12 months of more. By that definition (or any definition for that matter) Mr Rawsthorne has a substantial criminal record. He does not pass the character test. His last conviction followed from his participation in a conspiracy to manufacture a large commercial quantity of methylenedioxymethylamphethamine (‘”MDMA”) (popularly known as ecstasy). The offence was committed while he was on parole. It carried a maximum sentence of life imprisonment but Mr Rawsthorne was sentenced to a term of 11 years and three months. The substantial discount reflected, amongst other things, Mr Rawsthorne’s guilty plea and significant co-operation with the authorities.

5    Consequently, the Minister’s delegate had the power to cancel Mr Rawsthorne’s visa. But he had a discretion whether to do so. That much was not in issue either below or in this Court. The dispute concerns the manner in which the delegate exercised his discretion. More specifically, it concerns the way in which the tribunal construed certain clauses in a direction made under s 499(1) of the Migration Act: Direction No. 41 – Visa Refusal and Cancellation Under s 501 (“the Direction”), signed by the Minister on 3 June 2009. The Direction bound the delegate (Migration Act, s 499(2A)) and on review the tribunal because it was exercising the powers and discretions conferred on the delegate by s 501(2) (Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 43(1)).

6    Before the primary judge Mr Rawsthorne contended that the tribunal fell into jurisdictional error in the following respects:

(a)     By failing to take into account the following relevant considerations under Direction 41:

(i)    The cumulative effect of Mr Rawsthorne’s apparent efforts towards rehabilitation, his co-operation with law enforcement authorities and his and his partner’s aspirations for their future relationship; and

(ii)    Mr Rawsthorne’s significant co-operation with law enforcement authorities “per se”.

(b)    By “failing to accord natural justice, if not constructive failure to exercise jurisdiction, in failing to consider the full extent of [Mr Rawsthorne’s] co-operation with law enforcement authorities”.

7    The primary judge found against Mr Rawsthorne on each matter. First, his Honour held that the tribunal did approach the various factors cumulatively. In any case, he held that it would not have erred if it had not. Secondly, his Honour held that there was no reason to conclude that the tribunal had failed to consider Mr Rawsthorne’s significant co-operation with law enforcement authorities as alleged. Thirdly, he concluded that there was no foundation for the proposition that the tribunal had failed to consider the full extent of Mr Rawsthorne’s co-operation with the authorities.

8    The appeal does not challenge the second or third conclusions, only the first. By his notice of appeal Mr Rawsthorne contended that the primary judge erred in holding that the tribunal approached the various factors cumulatively and in observing that it was not bound to do so in any event. Mr Rawsthorne applied for leave to plead an additional ground not argued below. The ground reads:

The Tribunal erred in holding that:

“… the risk that he may offend in the future. The risk has to be recognised as a primary consideration that favours the cancellation of Mr Rawsthorne’s visa.”

9    The Minister objected to leave being granted, not because of any prejudice he might suffer but for other reasons, not least that the point had no merit. Leave to raise the additional ground should be granted but the appeal should be dismissed.

10    The alleged errors by the tribunal were said to arise from [66] of the tribunal’s reasons where the tribunal said:

For these reasons, I conclude that neither Mr Rawsthorne’s apparent efforts towards rehabilitation, nor his co-operation with law enforcement authorities, nor the aspirations that he and HV [his partner] have for their future relationship, justify regarding as insignificant, unreal or acceptable, the risk that he may re-offend in the future. That risk has to be recognised as a primary consideration that favours the cancellation of Mr Rawsthorne’s visa.

11    The error is said to be reflected in the use of the correlative conjunctions “neither” and “nor”. Mr Rawsthorne argued that because the tribunal used this mode of expression, it only had regard to each of these matters in isolation from the other and could not have considered them cumulatively. We agree with the primary judge that the paragraph should not be read in this way. We take this view for three reasons.

12    First, both Mr Rawsthorne’s co-operation with law enforcement authorities and the aspirations he shares with his partner for their future relationship bear on his efforts towards rehabilitation. The reference to his apparent efforts towards rehabilitation necessarily encapsulates these two matters.

13    Secondly, the statement in [66] is the culmination of a reasoning process. The tribunal’s decision must be read as a whole. When the decision is read as a whole, we are not satisfied that the tribunal merely considered each matter in isolation. The totality of these considerations informed its decision that the risk that Mr Rawsthorne might reoffend was low.

14    Thirdly, the way in which the tribunal expressed itself in [66] appears to reflect its attention to particular arguments put on Mr Rawsthorne’s behalf summarised in the two preceding paragraphs of the tribunal’s reasons.

15    Mr Rawsthorne’s argument is an example of the vice referred to by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

[T]he reasons of an administrative decision-maker are meant to inform, not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

Mr Rawsthorne submitted that this well-established principle did not apply in this case as the tribunal was constituted by a senior counsel. No authority was cited in support of the submission. There is authority for the proposition that the reasons of a legally qualified administrative decision-maker may warrant greater scrutiny than those of an administrative decision-maker without legal qualifications. Even so, that does not mean that the reasons are to be construed “in a manner destined to discern error where none truly is to be found”: Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (2012) 205 FCR 306 at [37]. This is clearly not a case, for example, where the tribunal failed to deal with Mr Rawsthorne’s submissions: contrast Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [57].

16    The first ground of appeal should therefore be dismissed.

17    The second ground should also be dismissed. The primary judge was correct in concluding that the tribunal was not obliged to consider the three matters (Mr Rawsthorne’s apparent efforts towards rehabilitation, his co-operation with law enforcement authorities and his and his partner’s aspirations for their future relationship) cumulatively.

18    Before going any further it is useful to refer to the relevant parts of the Direction.

19    The purpose of Direction 41 is to facilitate certain objectives listed in the preamble to the Direction. Paragraph 5.1 reads:

(1)    The objective of the [Migration] Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)    In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)    The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

20    Part A is concerned with the application of the character test. The exercise of the discretion is covered by Part B. It lists primary considerations which decision makers must take into account in every case and other considerations that should be taken into account where relevant.

21     The primary considerations are set out in para 10. Relevantly, they include:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; and

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct.

22    Under the heading “Protection of the Australian community” para 10.1 provides:

(1)    Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)    The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)    the seriousness and nature of the relevant conduct; and

(b)    the risk that the conduct may be repeated.

23    Paragraph 10.1.2 is entitled “The risk that the conduct may be repeated”. It provides:

(1)    The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)    The following factors are to be considered as particularly relevant to this assessment:

(a)    a recent history of convictions, which should be considered as indicating an increased risk of re-offending.

(b)    evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)    evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

24    Paragraph 11 contains the other considerations that must be considered where relevant. Paragraph 11(2) states that these considerations should generally be given less weight than the primary considerations. The first of these other considerations is “family ties and the nature and extent of any relationships”.

25    As we have already observed, both Mr Rawsthorne’s co-operation with the police and his relationship with HV were relevant to the question of his rehabilitation and therefore to the risk that he might re-offend, although his relationship was also relevant to the secondary consideration of family ties. How these matters were to be evaluated and the weight to be attributed to any one of them was a matter entirely for the tribunal. As the Full Court observed in Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [25], although the Direction expressly requires a decision-maker to take into account the primary considerations and the other considerations where relevant, “it is silent on the question of whether and, if so, to what extent the various primary and other considerations need to be weighed cumulatively”. The Direction does not require either expressly or by implication that the three matters raised by Mr Rawsthorne be considered cumulatively.

26    The additional ground of appeal attacks the tribunal’s finding in [66] of its decision that the risk that Mr Rawsthorne might re-offend has to be recognised as a primary consideration that favours the cancellation of Mr Rawsthorne’s visa.

27    This is an appeal by way of rehearing but that does not mean it is an opportunity to revisit the decision of the tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22] per Allsop J, Drummond and Mansfield JJ agreeing). As the High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28 (“Metwally”) and has reiterated on many occasions since:

[i]t is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during a hearing when he had an opportunity to do so.

28    Metwally did not involve an appeal by way of rehearing but this principle has been followed and applied in numerous cases that did. In Water Board v Moustakas (1988) 180 CLR 491 the High Court observed (at 497):

More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 ; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7–8 ; 65 ALR 656; O'Brien v Komesaroff (1982) 150 CLR 310 at 319 ; 41 ALR 255.

29    The present case does not involve a point that could have been met by calling evidence below. The application before the primary judge did not involve any challenge to the tribunal’s factual findings. In essence, the point is one of construction. In these circumstances, notwithstanding its apparent weakness, the better course is to permit Mr Rawsthorne to raise it.

30    Mr Rawsthorne’s argument was that, by observing that “the risk [of re-offending] has to be recognised as a primary consideration” favouring the cancellation of the visa, the tribunal wrongly elevated the consideration of risk to a primary consideration when it is not listed in the Direction as such. He relied on a statement by Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [18] that the factors identified in paras 10.1–10.4 are not primary considerations in themselves, although where relevant, they must be taken into account by decision-makers in the course of deliberating on the relevant primary considerations.

31    Mr Rawsthorne submitted that by elevating the risk of recidivism to the level of a primary consideration, “then it must get its own consideration in the ultimate analysis that is separate to the protection of the Australian community” and the tribunal must therefore have accorded it greater weight than the Direction authorised. As his counsel put it:

The way I would submit it operates is that if it’s a primary consideration then it has particular weight. If it’s not a primary consideration, then it has generally less weight.

32    We reject these arguments.

33    The protection of the Australian community is the first of four primary considerations. This consideration involves assessing the level of risk of harm to the community. That in turn requires an examination of the risk that the conduct may be repeated. In other words, considering the risk is part and parcel of considering whether the protection of the Australian community warrants the cancellation of the visa. It goes to the heart of the issue. There is nothing to indicate that the question of risk was given greater weight than the Direction required. At worst, the tribunal’s remark is an example of “loose language” or “unhappy phrasing” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). It does not bespeak jurisdictional error.

34    There is no reason to disturb the orders of the primary judge. The appeal should be dismissed with costs.

Associate:

Dated:    22 April 2013