Rawsthorne v Minister for Immigration & Citizenship [2013] FCAFC 39: Visas and Character Grounds

On Monday 22 April 2013, the full court of the Federal Court in the New South Wales General Division released their decision regarding the appeal on the cancellation of the visa on character grounds in the case of Rawsthorne v Minister for Immigration & Citizenship [2013] FCAFC 39.

Facts

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. 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). 

Mr Rawsthorne challenged the decision in the Administrative Appeals 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. This appeal is concerned with the exercise of the discretion to cancel a visa on character grounds.

Decision on Appeal

Section 501(2) of the Migration Act 1958 (Cth) 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 the definitions described above, their Honours determined that Mr Rawsthorne had a substantial criminal record and did not pass the character test.

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 had 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].

Their Honours concurred that

"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."

The appeal was dismissed with costs.

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