Rawsthorne v Minister for Immigration and Citizenship

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.