FEDERAL COURT OF AUSTRALIA

Rawsthorne v Minister for Immigration and Citizenship [2012] FCA 1217

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

Introduction

1    The Administrative Appeals Tribunal (the ‘Tribunal’) decided that Mr Rawsthorne’s visa should be cancelled: Rawsthorne v Minister for Immigration and Citizenship [2012] AATA 484. He seeks judicial review of that decision in this Court. The visa which was cancelled was a permanent residency visa (a Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa, to be precise). The necessity for Mr Rawsthorne to hold a visa sprang from the fact of his not being an Australian citizen. He is, in fact, a citizen of the United Kingdom, having first arrived in Australia in February 1990. Since October 1991 he has lived in Australia (apart from a brief absence in January 1996).

2    The reason Mr Rawsthorne’s visa was cancelled relates to his criminal record. On 21 May 2004 he was convicted of the manufacture of a commercial quantity of methylamphetamine (that is, between 250 g and 1,000 g) and, in two instances, the supply of methylamphetamine. On the manufacture conviction he was sentenced to imprisonment for five years and three months and on each of the supply charges, two years and four months. The practical effect of these sentences was that he had a total non-parole period of three years from 30 August 2002 (when he was arrested) until 29 August 2005. The full term expired on 29 November 2007. There were a number of other minor offences of which he was convicted at the same time but these may be put aside for present purposes.

3    In August 2005, having spent three years in custody, Mr Rawsthorne was released on parole. Shortly after his release he took part in a conspiracy to manufacture a large commercial quantity of methylenedioxymethylamphetamine (‘MDMA’). His role in the conspiracy was to provide advice and technical knowledge; or, to put it another way, he was to be the ‘cook’. The conspiracy continued throughout 2005 and into 2006. Mr Rawsthorne’s involvement in it ended in approximately May 2006 according to certain telephone intercepts. The conspirators were arrested in mid-2006.

4    In May 2008 he was convicted in the District Court of New South Wales of conspiring to manufacture a large commercial quantity of MDMA and sentenced to 11 years and 3 months imprisonment. At his sentencing hearing, Mr Rawsthorne claimed to have resiled from the conspiracy before apprehension and the sentencing judge thought that was ‘confirmed to an extent’ by the telephone intercepts.

5    The maximum sentence to which Mr Rawsthorne could have been sentenced was life imprisonment. He obtained the benefit of a very substantial, and unusual, reduction for a number of reasons including, relevantly, significant co-operation with the authorities.

6    Mr Rawsthorne was granted parole on 31 July 2012. Prior to that time, however, he had been granted day release on various dates in 2011.

7    The power of the Minister to cancel a visa on ‘character grounds’ is conferred by s 501(2) of the Migration Act 1958 (Cth). It arises (a) if ‘the Minister reasonably suspects that the person does not pass the character test’ and (b) if ‘the person does not satisfy the Minister that the person passes the character test’. The power is discretionary; that is, once it has arisen (because the Minister so suspects but is not so satisfied) it may, but need not be, exercised. This flows from the language of s 501(2) (‘The Minister may cancel a visa…’) and the fact that, at least in the present context ‘may’ means ‘has the ability’ rather than ‘shall’ or ‘must’ (as it may in some other contexts).

8    The Minister did not personally cancel Mr Rawsthorne’s visa. This was done instead by one of his delegates. Section 496 permitted the Minister to delegate functions under the Act to delegates and this was done in Mr Rawsthorne’s case. The delegate decided to cancel Mr Rawsthorne’s visa on 30 April 2012, that is, after he commenced periodic day release but before he was finally granted parole. It was this decision which Mr Rawsthorne sought a review of by the Tribunal.

9    In both cases the decision-making process was constrained by the terms of the Act. On the issue of whether Mr Rawsthorne had failed the character test (and hence whether the power of cancellation under s 501(2) had been enlivened) both decisions were informed by s 501(6)(a) which provided that a person failed the character test if the person had ‘a substantial criminal record’ and s 501(7)(c) which made plain that that concept included being sentenced to a period of imprisonment, as Mr Rawsthorne certainly had been, of 12 months or more. There was no question, therefore, that the power was enlivened.

10    In both cases, too, the Act guided the way in which the discretion which thereby arose (under s 501(2)) was to be exercised. It did so indirectly. The Act confers very many discretions apart from that conferred by s 501(2). To aid consistency in administrative decision-making under the Act, s 499(1) permits the Minister to give written directions to a person having functions or powers under the Act ‘about…the performance of those functions or…the exercise of those powers’. Perhaps unsurprisingly, such a person ‘must comply with a direction under subsection (1)’: s 499(2A).

11    In the case of the power conferred by s 501(2) to cancel visas on character grounds, the Minister has formulated elaborate directions, well-known to this Court. They are entitled ‘Direction No. 41 – Visa Refusal and Cancellation Under s 501’ and the version relevant to this case was signed by the Minister on 3 June 2009.

12    The original delegate was bound by this directly. His decision is no longer relevant because, on review, the Tribunal’s decision took its place: s 43(6), Administrative Appeals Tribunal Act 1975 (Cth). The Minister’s direction under s 499 bound the Tribunal because it was exercising the powers and discretions conferred on the delegate by s 501(2) of the Act: s 43(1), Administrative Appeals Tribunal Act.

13    Mr Rawsthorne’s basic complaint is that the Tribunal mishandled Direction No 41 in its application to him.

First argument: misconstruction of clause 9(1)

14    It was submitted that the Tribunal had misunderstood and hence misapplied cl 9(1) in Direction 41. Before setting its material parts out, the basic structure of Direction 41 should be observed. It distinguished between ‘primary considerations’ which were to be taken into account in every case and ‘other considerations’ which could be taken into account ‘where relevant’: cl 9(1).

15    The former were, in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, mandatory considerations. The primary considerations were set out in cl 10(1) and included, by cl 10.1(2)(b), ‘the risk that the conduct may be repeated’ (which risk was further expanded upon in cl 10.1.2).

16    The Tribunal in its reasons traversed this mandatory issue. It had particular regard to three distinct matters. The first of those was Mr Rawsthorne’s apparent efforts towards rehabilitation; the second, his co-operation with law enforcement authorities; and, the third, the aspirations that Mr Rawsthorne and his current partner had for their future relationship.

17    As to the first point, the Tribunal reached a positive conclusion:

[54]    In totality there are good reasons to conclude that, as matters presently appear, Mr Rawsthorne has made significant efforts at rehabilitation and that those efforts have impressed both the relevant authorities, and Mr Taylor [a forensic psychologist]. There is a sound body of evidence to regard Mr Rawsthorne as having a low risk of offending.

18    As to the second matter, the Tribunal reasoned this way:

[65]    It was further put on Mr Rawsthorne’s behalf that his significant co-operation with law enforcement authorities, and a degree of associated notoriety, would make it difficult for him to establish, or re-establish, criminal associations related to the manufacture and supply of illicit drugs. This argument has some force, but it is also something of an over simplification. The force of the argument is that Mr Rawsthorne would likely attract a degree of distrust if he sought to return to involvement with the criminal associates with whom he had been in contact in 2005 and 2006. But the simplistic element in the contention is the idea that re-connection with former associates reflects the only “real” risk of Mr Rawsthorne re-offending. This is not the case. Mr Rawsthorne’s version of events is that his drug taking, and later manufacture, grew out of challenging personal circumstances and then a motive of financial gain. The risks associated with factors of these kinds are not limited to past associations, and the likely difficulty of re-establishing them.

19    As to the third matter, the Tribunal examined the nature of his relationship with a woman referred to as HV at [60]-[64] in some detail. It concluded (at [64]):

    For that reason, I do not regard the current relationship between HV and Mr Rawsthorne, or the attitudinal changes in Mr Rawsthorne that HV says have contributed to their current relationship, as providing a sufficient reason to depart from my earlier conclusion that there is a real, and unacceptable, risk that Mr Rawsthorne may re-offend.

20    Mr Rawsthorne could not – and, indeed, did not – suggest that the Tribunal had not had regard to these matters. Rather his argument was directed to the way the interrelationship between the three was managed. Particular attention was drawn to [66] which was in these terms:

[66]    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 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.

21    The submission was that the Tribunal had erred in not considering these factors cumulatively. Perhaps to unpick that submission a little, its gravamen was that it was not enough to conclude in isolation that each of those three matters did not suffice, it was necessary to consider also the implications of all three together.

22    I reject this argument. I do so principally because I do not think that the Tribunal approached the matter other than cumulatively. Mr Rawsthorne’s reading of [66] is not correct. But regardless I do not accept that the Tribunal was bound to deal with the matter cumulatively. Thus even if the Tribunal did not deal with the three matters cumulatively (which I do not accept) it would have committed no error. It was submitted on Mr Rawsthorne’s behalf that the cumulative requirement was implicitly required by cl 9(1) of Direction 41. It provides:

Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.

23    Stripped to its essentials, the argument must be that cl 9(1) is to be read as if its central part read ‘must take into account cumulatively the primary considerations…’. I do not see that such an implication is necessary or warranted.

24    It follows that the first argument must be rejected.

Second argument: failure to take into account a relevant consideration

25    The second argument related to the assistance Mr Rawsthorne had given to the authorities. He had given evidence as a Crown witness and, whilst in prison, had given yearly seminars to the police on criminal drug manufacture. The police had even provided a character reference for him in relation to these activities to the Minister’s delegate. It would seem that some of the drug manufacturing methods Mr Rawsthorne discussed with police were not previously known to them.

26    In this Court it was said on Mr Rawsthorne’s behalf that this material had significance from two different perspectives, both of which related to the risk of recidivism (a mandatory consideration under Direction 41). On the one hand, it provided material from which it might be inferred that he would never be able, as a matter of practical reality, to take up his former occupation as a manufacturer/supplier of amphetamines. This was because, having turned Crown’s evidence, no person in the criminal milieu would ever trust him again. From an instrumental perspective, therefore, his opportunities to reoffend (and hence also his capacity) were circumscribed. On the other hand, the fact that he had not only turned Crown’s evidence but actively provided more general assistance to the police on the mysteries of cooking was apt to signal a constitutional alteration in his personality from which it might reasonably be inferred that he no longer had any inclination to commit crimes. It was said that, whilst the Tribunal had addressed the first matter, the second had been overlooked.

27    The Tribunal dealt with the topic of recidivism at length at [21]-[66]. It gave extensive consideration to the risk of recidivism simpliciter when it analysed, in considerable detail, the evidence of Mr Taylor. This it did at [50]-[53]. It accepted Mr Taylor’s evidence that the risk of reoffending was low: [54]. In relation to his assistance to the Police, the Tribunal made the remarks at [65] that I have reproduced above at [18].

28    I see no good reason not to read the reference ‘cooperation with law enforcement authorities’ in that passage as including both the fact of his having turned Crown’s evidence and also assisting the police with their seminars.

29    The balance of [65] shows that the Tribunal did not consider the issue of co-operation with the authorities solely from the instrumental effect that co-operation would have on his ability to re-enter the criminal milieu. Rather it concluded his involvement in crime arose from challenging personal circumstances followed by a motive for personal gain. The Tribunal did not think that having cooperated with the authorities would stand in the way of Mr Rawsthorne’s return to crime if difficult personal circumstances were again to arise in the future.

30    Nevertheless, I do not think that it is possible to extract from [65] the proposition that the Tribunal considered the risk of recidivism from the perspective of asking what impact his co-operation with the authorities signalled in relation to his subjective propensity to reoffend. The Tribunal only considered his co-operation with the authorities from the viewpoint of asking whether it made his potential re-entry into the criminal world difficult.

31    On the other hand, it seems likely that the Tribunal did nevertheless take this matter into account, if not in [65]. It had before it the evidence of Mr Taylor who explicitly considered the matter and expressed the view that the risk of recidivism in the case of Mr Rawsthorne was low. Having reviewed that material the Tribunal said (at [54]):

In totality there are good reasons to conclude that, as matters presently appear, Mr Rawsthorne has made significant efforts at rehabilitation and that those efforts have impressed both the relevant authorities, and Mr Taylor. There is a sound body of evidence to regard Mr Rawsthorne as having a low risk of reoffending.

32    The most plausible reading of this is that the Tribunal took into account Mr Taylor’s reporting of Mr Rawsthorne’s change of attitude. In effect, the conclusion shows that Mr Rawsthrone successfully persuaded the Tribunal that he had a low-risk of reoffending. It accepted Mr Taylor’s evidence.

33    Even if that were not so, however, it would not justify the ground of review it is said to support, namely, a failure to take into account a relevant consideration (see Further Amended Originating Application for Review of a Migration Decision, Ground 1). A relevant consideration is one that must be taken into account having regard to the scope, purpose and ambit of the relevant statutory provisions: Peko Wallsend at 39-40 per Mason J. I can see nothing in Direction 41 which mandatorily requires that the Tribunal consider co-operation with the authorities as an aspect of the risk of recidivism divorced from the question of whether it also posed practical hurdles for taking up with crime again.

34    This ground is not made out.

Third argument: denial of procedural fairness

35    During the course of argument, Mr Rawsthorne successfully sought to amend his application to raise a fresh ground. In essence this was an argument, based on the matter just mentioned, that the Tribunal had denied him procedural fairness by failing to respond to a substantial, clearly articulated argument based on established facts (the argument being that Mr Rawsthorne’s participation in the seminars was of relevance beyond the impact it had on his criminal connections). Such a contention, if made good, would indeed constitute a breach of the rules of procedural fairness: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 356 [90] applying Dranichnikiov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394, 408; [2003] HCA 26 at [24], [95]. For reasons just given, however, that argument must be rejected: the Tribunal considered the argument and accepted it.

36    Since the Tribunal accepted that argument I do not think that quashing its decision to give it an opportunity to arrive at the same conclusion would be a useful endeavour. In any event, I do not accept that there was a denial of procedural fairness.

Disposition

37    The application should be dismissed with costs.

Associate:

Dated:    6 November 2012