CAMERON RAWSTHORNE and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 484
•27 July 2012
[2012] AATA 484
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1875
Re
CAMERON RAWSTHORNE
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 27 July 2012 Place Sydney The decision under review is affirmed.
..................[sgd]......................................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
MIGRATION – visa – cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501 of the Migration Act 1958 – Ministerial Direction [no.41] applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – other considerations including hardship likely to be experienced by person and others – decision under review affirmed
LEGISLATION
Migration Act 1958 s 501
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390SECONDARY MATERIALS
Direction [no.41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
27 July 2012
Mr Rawsthorne is a 45 year old UK citizen. He first came to Australia in February 1990, but returned to the UK between May and October 1991. Since October 1991, apart from a short absence in January 1996, he has lived in Australia. But for most of the past 10 years, since August 2002, he has been either in prison or on parole (for 11 months between August 2005 and July 2006). The first of his periods of imprisonment was the result of his arrest, and subsequent conviction in May 2004, for supplying and manufacturing amphetamines, and for apparently related driving and other offences. The current term of imprisonment was the result of arrest in 2006, and later conviction in May 2008, for conspiring to manufacture methylenedioxymethylamphetamine (“MDMA”).
From November 1995, until the Delegate’s 30 April 2012 cancellation decision that is the subject of these review proceedings, Mr Rawsthorne held a visa entitling him to reside permanently in Australia. Mr Rawsthorne’s 2004 and 2008 sentences provided grounds for the Minister to exercise the visa cancellation power conferred by s 501(2) of the Migration Act 1958. That section authorises the Minister to cancel a person’s visa on reasonable suspicion that they do not pass the “character test”. A person who has a “substantial criminal record” does not pass the “character test” defined in s 501(6) of the Migration Act. A person has a “substantial criminal record” if they have been sentenced to “a term of imprisonment of 12 months or more”: s 501(7)(c) of the Migration Act 1958. Each of Mr Rawsthorne’s 2004 and 2008 sentences was for a term of imprisonment greater than 12 months.
DIRECTION [41]
The exercise of the visa cancellation power by the Minister’s Delegate, and the Tribunal’s review of the Delegate’s decision, must comply with any written direction issued by the Minister under s 499(1) of the Migration Act. In this respect the statutory authority for the policy criteria determined by the Minister distinguish at least the manner of the exercise of the Tribunal’s function in matters of the present kind from the position that would otherwise apply in determining the “correct or preferable” decision for the purpose of discharging its review function consistently with s 43 of the Administrative Appeals Tribunal Act 1975: compare Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 585–589 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Minister’s currently applicable directions are set out in Direction [no.41] – Visa refusal and cancellation under s 501. Direction [41] is a 19 page document and has three sections. Part 1 is a Preliminary section. Part A of Part 2 of Direction [41] is concerned with the application of various aspects of the “character test”, and has no particular relevance to Mr Rawsthorne’s review application. Part B of Part 2 of Direction [41] provides a detailed 9 page prescription of the matters that are relevant in determining whether it is appropriate “in the specific circumstances of the case” to exercise the visa cancellation power.
There are some essentially formal provisions in the Preliminary part of Direction [41]. They include definitions linking various expressions to their corresponding meanings in the Migration Act 1958 and the Migration Regulations 1994. More substantively, clause 5 of Direction [41] describes the objective of the Migration Act as that of regulating “in the national interest, the coming into and presence in Australia of non-citizens”. Clause 5.1 continues with a statement that in order to safeguard the community and discharge its “duties and responsibilities to the Australian people” the Government seeks to protect that community from “unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”. Clause 5.1(3) of Direction [41] states that the Government is “especially mindful” to protect the safety of the community’s more vulnerable members.
Clause 5.2 of Direction [41] mandates that decision makers (other than the Minister) who exercise any of the visa refusal or cancellation powers conferred by s 501 of the Migration Act 1958 must consider both the nature of any harm that the person concerned may cause to the Australian community, and the risk of that harm occurring. The power must also be considered in the context of the length of the person’s residence in Australia, the extent to which that residence included the person’s minority, and any relevant international law obligations: clause 5.2(3).
The breadth of the considerations mandated by clauses 5.2(2) and (3) introduces a potential for tension between the declared protective objective of the Act, and the wider considerations that underlie the idea of “unacceptable risks of harm” from the conduct of non-citizens. That potential tension is recognised in clause 5.2(4) of Direction [41]. It states that “in some circumstances it may be appropriate” for the Australian community to accept more risk where the person concerned has, in effect, become part of the community as a result of having spent either their formative years, or a major portion of their life, in Australia. This tentative statement, whilst underscoring the basic distinction between citizens and non-citizens, implicitly recognises the idea of “community” and the need to consider the potential factual implications of the person’s residence in Australia, as well as their formal status.
Part B of Part 2 of Direction [41] requires decision makers to take directly relevant considerations into account. It then goes on to detail a range of relevant, and potentially relevant, considerations. In so doing it distinguishes between four “primary considerations”, and seven “other considerations”. These other considerations include matters such as the person’s family ties, age, health and hardship. The basic distinction between these two categories is that the “primary considerations” must be taken into account in every case. An additional distinction is that “generally” the “other considerations” should be given less weight than the primary considerations: see Part 2; Part B, clause 11(2). That broad qualification necessarily implies that in some circumstances the “other” considerations may be accorded more significance than the primary considerations and may be determinative against the exercise of the cancellation power. The occasions when “other considerations” may be determinative, notwithstanding the general requirement to accord greater weight to the primary considerations, are a matter for assessment in the light of the specific circumstances that apply to the particular visa holder.
The four primary considerations mandated by Direction [41] are:
(a)protection of the Australian community from “serious criminal or other harmful conduct, particularly crimes involving violence”;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time the person had been ordinarily resident in Australia before engaging in criminal activity, or other relevant conduct; and
(d)relevant international obligations, including those arising under the Convention on the Rights of the Child and others arising under various international refugee and non-refoulement obligations.
Three of the four primary considerations will necessarily arise, and require evaluation, in every case. But not every visa holder’s circumstances will require deliberation about the kinds of international obligations that are included in the fourth of the categories of primary considerations. That is the situation that applies in the present case. Mr Rawsthorne has no children within the Convention on the rights of the Child. Nor would his return to the UK require consideration of any other relevant international obligations.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Both clauses 5.2(2) and 10.1(2) of Direction [41] require, despite some differences in their wording, consideration of the nature and seriousness of the person’s “relevant” conduct, and the risk that the conduct may be repeated. Clause 10.1.1(2)(f) includes, amongst a range of offences that are required to be regarded as serious, the production or possession of commercial quantities of illicit drugs. In addition, the particular quality of the conduct – its “seriousness” – is to be assessed by having regard to the sentence imposed, the number, nature, frequency and recency of the offences. That regard should be informed by taking into account sentencing remarks, and any psychological assessments, pre-sentence and parole assessments, and any other sources of authoritative information or assessment.
Mr Rawsthorne does not dispute that the drug offences of which he has been convicted merit characterisation as serious. The Drug Misuse and Trafficking Act 1985 (NSW) provides for penalties of life imprisonment, and a standard non parole period of 15 years, for the manufacture or supply of a large commercial quantity of an illicit drug. If the offence involves a commercial quantity (as distinct from a large commercial quantity) the potentially applicable penalty is imprisonment for 20 years, and the standard non parole period is 10 years: see s 33 of the Drug Misuse and Trafficking Act1985 (NSW) and s 54A of the Crimes (Sentencing Procedures) Act 1999 (NSW).
The 21 May 2004 convictions and sentences involved three principal offences. One was the manufacture of a commercial quantity (that is, between 250 g and 1,000 g) of methylamphetamine. The others were the supply of methylamphetamine in January and August 2002. As a result of those convictions Mr Rawsthorne was sentenced to imprisonment for a period of 5 years and 3 months on the manufacturing charge, and terms of 2 years and 4 months on each of the supply charges. The practical effect of the combined sentences was that Mr Rawsthorne had a total non-parole period of three years from 30 August 2002 until 29 August 2005. The full term of his total sentence expired on 29 November 2007.
The 21 May 2004 convictions also involved some related drug and firearms offences. These were taken into account in the sentences imposed for the principal offences. In addition, there were seven driving offences, which included driving whilst disqualified and driving in a dangerous manner. At least some of these driving offences related to attempting to avoid arrest at a time when he was in possession of illicit drugs. These offences resulted in 6 month periods of imprisonment, to be served concurrently with the sentences for the principal offences. In addition there were cumulative periods of driving licence disqualification, until November 2012.
The sentencing judge’s remarks of 21 May 2004 describe Mr Rawsthorne’s drug manufacturing activities as a significant commercial operation. Part of the justification for that description was the $115,000 in cash, and the analytical purity of the methylamphetamine, found at Mr Rawsthorne’s premises. His evidence in these proceedings involve an admission that he was motivated by financial gain. Indeed, he said that although his initial manufacture of amphetamines was for his own use, it escalated into a commercial operation. His evidence was that by around 2000 he had acquired, amongst some people who were motivated to know about such things, a reputation for expertise in producing high quality amphetamines. The sentencing judge described Mr Rawsthorne’s conduct as “self indulgent drug supplying and taking with wanton disregard to the community and people outside his own immediate walk of life”. The judge regarded it as requiring significant punishment. On the principal charge of manufacturing, the judge took Mr Rawsthorne’s guilty plea into account and discounted the sentence from 6 years to 5 years and 3 months. He reduced the non parole period of Mr Rawsthorne’s sentences by about one third, after taking into account his good record in custody since August 2002, and his “strong prospect of rehabilitation”.
That description of Mr Rawsthorne having a strong prospect of rehabilitation as at May 2004 was based on facts that contrast with those underlying his May 2008 conviction. That conviction was for conspiring to manufacture a large commercial quantity of MDMA. Mr Rawsthorne joined the conspiracy soon after his release on parole in August 2005, after having spent 3 years in custody in relation to the sentences imposed in May 2004. His role in the 2005 / 2006 manufacturing conspiracy was to provide advice and technical knowledge. In the vernacular understood by the conspirators, he was to be the “cook” responsible for undertaking the manufacture of the drug. On 2 May 2008 Mr Rawsthorne was sentenced to imprisonment for 11 years and 3 months, for the conspiracy offence.
The sentencing judge’s remarks in May 2008 record the various activities of the conspirators in acquiring, or attempting to acquire, the ingredients, information equipment and premises required to produce the MDMA. Those activities continued on, without actually reaching fruition, until the arrest of the conspirators in mid July 2006. Mr Rawsthorne said he had substantially resiled from any participation in the conspiracy some months before his arrest – a claim that the sentencing judge described as “confirmed to an extent” by the evidence of the contents of the intercepted telephone conversations between the conspirators. The last recorded intercepted communication involving Mr Rawsthorne occurred in May 2006.
In sentencing Mr Rawsthorne in May 2008 the judge noted the potential life sentence that applied to convictions for manufacturing a commercial quantity of a prohibited drug. He described the offence as “one at the top of the tree of criminal activity”. He regarded Mr Rawsthorne’s culpability for participation in the offence as aggravated by five factors – (i) his prior record, (ii) the fact he was on parole at the time, (iii) that it involved a disregard for public safety, (iv) that it was planned and organised, and (v) that his participation was motivated by the prospect of financial gain. The judge found that the conspiracy involved an intention to manufacture substantially more than a “large commercial quantity” (that is, 1 kg) and that Mr Rawsthorne’s contemplated role as “cook” was essential to the enterprise. The judge indicated that he would have imposed a sentence of 25 years, but for discounts to take into account Mr Rawsthorne’s early guilty plea, and his co-operation with authorities (a matter the sentencing judge described as confidential but highly significant). Those discounts resulted in a non parole period of 5 years and 2 months (as against the standard non parole period of 15 years) and a total sentence of 11 years and 3 months (as against the maximum potential sentence of life imprisonment).
Comparison between the actual May 2008 sentence and non parole period, and those that could have been imposed, clearly indicates that the sentencing judge regarded Mr Rawsthorne’s personal circumstances, and specifically his contrition, remorse, acceptance of responsibility and co-operation, as very substantially in his favour. The judge accepted Mr Rawsthorne’s evidence as genuine. The judge described the extent of the sentencing discounts he applied as highly unusual, but appropriate in Mr Rawsthorne’s particular circumstances – a matter upon which he discreetly elaborated at pages 19 and 22 of the sentencing transcript.
Nevertheless, there is every justification for characterising Mr Rawsthorne’s conduct in relation to the manufacturing conspiracy as serious. It was obviously so regarded by the sentencing judge. Its nature, involving a commercial quantity of a prohibited drug, is required by clause 10.1.1(2)(f) of Direction [41] to be regarded as serious and taken into account on that basis. In addition the totality of his conduct, which includes at least the circumstances involved in his May 2004 convictions, merits characterisation as serious, in the light of the considerations referred to in clause 10.1.1(3) of Direction [41]. Mr Rawsthorne’s prohibited drug manufacturing activities took place over a period of years prior to his arrest in August 2002. His participation in the subsequent conspiracy occurred soon after his release from custody, and whilst he was on parole. Whilst that offence occurred now over 6 years ago, and his intervening conduct has reputedly been good, Mr Rawsthorne has been in custody since July 2006. The comparatively limited opportunities to re-offend, and the disincentives against doing so, whilst in custody reduce the extent to which the passage of time ameliorates the otherwise clearly established significance of his past conduct involving the manufacture of prohibited drugs for commercial gain.
RISK OF RE-OFFENDING
Clauses 5.2(2)(b) and 10.1(2)(b) of Direction [41] require, but clause 10.1.2 recognises the problematic nature of undertaking, a reliably informed assessment of the risk that a person may reoffend in a manner harmful to the Australian community. A person’s previous general conduct, and total criminal history have to be regarded as highly relevant to any assessment of the risk of a person re-offending. They are relevant because the nature and circumstances of past conduct, particularly the pressures and motivations that contributed to its occurrence, may provide a factual basis to apprehend, and evaluate, the risk of future similar conduct. Of course the evaluation of that risk must also include the extent of the person’s actual and prospective rehabilitation: see cl 10.1.2(2)(b).
Mr Rawsthorne has convictions for matters that occurred before August 2002. But the offences that occurred in 1996, 1999 and 2001 were all driving and licensing offences. None of them resulted in any term of imprisonment, although the significance of that observation is questionable in relation to his 1999 convictions. (This is because he failed to appear and it is not clear from the records whether he was in fact ever finally dealt with for these offences.) Prior to 1996 he had two convictions for the possession of cannabis, and four convictions for assault. Again none of these matters resulted in sentences of imprisonment. All of them were dealt with by fines, the largest of which was $500.
Mr Rawsthorne’s June 1996 convictions were for breaking and entering, and possession of a prohibited weapon. He explained that this occurred when he went to a house to buy amphetamines. It was being watched by the police. He was arrested and found to be in possession of a knife. He was fined $500 and given a 300 hour community service order. The significance of this matter is not so much in the offence itself, as in providing a clear point in time from which to mark the progression of Mr Rawsthorne’s amphetamine use. It is useful to provide the context in which, according to Mr Rawsthorne, that occurred.
Mr Rawsthorne’s return to the UK between May and October 1991 followed his marriage, was prompted by his desire to obtain a spouse visa, and preceded the birth of his son – in about November 1991. However the marriage broke up. Before his son had turned three, Mr Rawsthorne had established a relationship with another woman, and had become embroiled in a custody battle over his son. The breakdown of his marriage was contributed to by alcohol abuse. That abuse continued during at least the early part of his relationship with the other woman, who herself had drug and alcohol difficulties. In 1994, Mr Rawsthorne underwent rehabilitation treatment for his alcohol problems and thereafter was diagnosed as suffering from depression. Whilst on sickness benefits he became involved as a part time fitness instructor. That was an activity that motivated him, but it was difficult to earn enough money to make a living.
Mr Rawsthorne qualified as a painter and decorator in the UK before he came to Australia. He worked as a painter in his early years in Australia. The difficulties he had encountered in generating sufficient income from working as a fitness instructor eventually encouraged him to return to painting as an additional source of income. He secured contracts to work on a number of licensed hotel premises around Sydney. Whilst this was good work, it was very typically required to be carried out at night, outside normal trading hours. It was the pressure of this work, and the unusual and demanding hours involved, that led Mr Rawsthorne into using amphetamines. Initially it was just to function, to meet the demands of working. But eventually his amphetamine use took over his life.
It is difficult to extract from the history provided by Mr Rawsthorne, and the evidence of his friends SA and HV, an accurate timing for his progression from initial use of amphetamines to commercial production. His explanation of the circumstances of his June 1996 conviction establish that his amphetamine use had begun by that time. It may also have progressed to the stage of significantly disrupting his normal functioning. This possibility arises from the fact, recorded in the sentencing remarks in May 2004, that Mr Rawsthorne had apparently not worked since 1996. Mr Rawsthorne’s evidence in these proceedings conceded that he had not filed tax returns since 1996, but that he had continued to work as a painter, at least until about 1998.
The 1998 date is probably reasonably accurate because it provides the reference point for the beginning of Mr Rawsthorne’s friendship with HV. He met her when he was painting a hotel. They became friends, and eventually lived together for a period during at least 2000. HV recalled, as did another witness SA, that they were aware Mr Rawsthorne was using drugs during that period after 1998, and at least suspected that he was making them. This timing is also consistent with a NSW Corrective Services case note record of an interview with Mr Rawsthorne on 13 November 2002. The note attributes to Mr Rawsthorne admissions (which are denied in later case note records) that he had been working for a biker gang for about five years and, in that period, had not undertaken any lawful work.
Mr Rawsthorne recalls that around the year 2000 the legitimate pharmaceutical products that were one of the principal ingredients for his drug manufacturing activities were altered to include a component that was intended to preclude, or at least inhibit, their utility in the manufacture of prohibited drugs. However, Mr Rawsthorne acquired the technical and practical ability to overcome these difficulties. His account suggests that his repute was established prior to 2000, and that it subsequently grew. That suggestion is consistent with his admission, both in these proceedings and in a November 2004 interview with a prison psychologist, that the motivation for his prohibited drug manufacturing activities was financial gain. It is a suggestion that is also consistent with the remarks of the sentencing judge in May 2004.
The November 2004 interview, the results of a recidivism risk assessment test, and a review of Mr Rawsthorne’s psychology service file, were summarised in a psychological assessment summary dated 22 November 2004. The report noted that Mr Rawsthorne had been addressing his alcohol and drug issues, by attending courses and regular counselling. It noted the sentencing judge’s remarks that he had significant prospects for rehabilitation. It recorded that the recidivism assessment test had identified risk factors involving his past criminal history, alcohol/drug abuse and lack of leisure and recreational interests. It also reported that his choice of associates was an additional risk factor. Overall Mr Rawsthorne was regarded as having a “Low/Moderate” risk of recidivism.
The purpose of the November 2004 assessment summary referred to in the preceding paragraph was to assess Mr Rawsthorne’s suitability for a reclassification of his prison status, and consequential eligibility for work release, day release and weekend leave. He was in fact reclassified. He was granted work release, and worked at Flemington Markets from January 2005 until his release on parole in August 2005. On seven occasions prior to August 2005, he was granted weekend leave.
The NSW Probation and Parole Service prepared a Pre Release Report dated June 2005. The Report noted three incidents of breach of prison discipline, the last of which had occurred in March 2004 and had involved a reprimand and caution for abusive language to an officer. Mr Rawsthorne was recorded as having attended various educational courses, and been described as an eager and conscientious student. His work within the prison factory was recorded as excellent. His work release employer at Flemington Markets described him as one of their best workers, who was reliable and trustworthy. Mr Rawsthorne’s attempts to be accepted into a residential drug and alcohol rehabilitation program were noted. All of them had been rejected because of his criminal history.
The June 2005 Pre Release Report noted Mr Rawsthorne’s risk assessment and risk factors, substantially as they had been recorded in the November 2004 psychological assessment. It went on to record him as stating that he viewed his arrest and incarceration positively, because it had given him the time to reflect on the previously dysfunctional aspects of his life. The June 2005 Report described him as highly motivated to continue leading a lawful lifestyle, and confident of his ability to abstain from illicit substances. There were two further aspects of the report. Both of which are material. They concern Mr Rawsthorne’s relationship with JS, and his job prospects and intentions.
At least some of Mr Rawsthorne’s weekend leaves were spent with JS. She is described in a case note report of 15 September 2004 as his “partner”. In the June 2005 Pre Release Report she is described as his “ex-de-facto partner”. Whether either of these descriptions accurately described the nature of Mr Rawsthorne’s then relationship with JS is unclear, but potentially important to consider.
Case note reports earlier in February 2004 record Mr Rawsthorne’s intention to live with HV on his release from prison. A case note report of January 2005 attributes to JS surprise that Mr Rawsthorne had nominated her as the person with whom he wanted to live during his release on parole. There are then confusing case reports between 15 and 31 March 2005. The case note of 15 March 2005 records that Mr Rawsthorne had known JS for four years, but that his relationship with her did not commence until after his admission to custody (that is, in August 2002). The notes then variously record that (i) Mr Rawsthorne, following his return to prison after spending a day leave with JS, stated he had broken up with JS, and no longer wanted to live with her, (ii) JS said that they are “back together” and that she is happy to have him live with her, but had not fully made up her mind, and that (iii) JS only wanted him to stay with her temporarily, that Mr Rawsthorne “goes between” JS and an “ex girlfriend” whom she did not want hanging around. These concerns attributed to JS are repeated in later case notes in June 2005. Those notes identify HV as the “ex girlfriend”, the fact that she had been his “sponsor” for two periods of day leave, and that she wanted Mr Rawsthorne to live with her and her mother, rather than JS.
There are four puzzling aspects of the information in these case note records. The first is that Mr Rawsthorne claims to have commenced a relationship with JS only after he went into custody in 2002. The second is that JS appears to have been ambivalent, and indeed initially surprised, about the prospect of Mr Rawsthorne coming to live with her. The third aspect is that Mr Rawsthorne appears to have been unwilling to reside with HV – even though (i) the contemporaneous case notes suggest that was what she wanted, (ii) she had claimed to have been pregnant to him at the time of his arrest in August 2002 (a matter recorded in case notes dated 14 and 27 November 2002), (iii) he continued to see her after his release in 2005, and (iv) in May 2006 HV again made claims that she was pregnant to him. The final curious aspect of the information recorded in the March and June 2005 case notes concerns evidence Mr Rawsthorne gave in these proceedings. He said JS was a very heavy drug user.
I will return to Mr Rawsthorne’s involvement with JS later in these reasons. The presently important point to note, in relation to the state of affairs that existed at the time of Mr Rawsthorne’s release on parole in 2005, is that a case note of 14 June 2005 records concern about the dynamic between Mr Rawsthorne, JS and HV, and a warning given to him that his post release life would be difficult enough without the pressure of that conflict. The note attributes to Mr Rawsthorne an admission that “they’re [that is, the two women] both driving me crazy”.
Against this background the June 2005 Pre Release Report refers to the concerns the Parole Service had expressed to Mr Rawsthorne about the apparent “tumultuous” nature of the relationship with JS, and questioned its stability. Mr Rawsthorne reportedly acknowledged that stress and said he intended to get private rental accommodation instead, with the assistance of another friend.
The June 2005 Report discloses that Mr Rawsthorne’s employer at Flemington Markets had offered him permanent employment. But he said he intended to return to working in his trade as a painter and decorator.
The June 2005 Parole Service Report has a generally positive tone. It acknowledges Mr Rawsthorne’s creditable efforts during his imprisonment. It describes his presentation as highly motivated to continue leading a lawful lifestyle. That tone, and the contents of the Report, are similar to the evidence of rehabilitation that has been proffered in the present proceedings by Mr Rawsthorne and on his behalf. Both the motivations recorded in 2005, and those asserted now, contrast with the fact, recorded in the 2008 sentencing remarks, that Mr Rawsthorne joined the MDMA manufacturing conspiracy shortly after his release on parole. The significance of that contrast needs to be assessed.
One interpretation of the contrast is that Mr Rawsthorne’s June 2005 presentation to the Parole Service, as “highly motivated” to continue to lead a lawful lifestyle, was an appearance unmatched by real commitment, and subsidiary to his principal motivation for financial gain. That interpretation is consistent with his conduct in the period between 1996 and 2002 when, according to the account in the November 2004 Psychological Assessment Summary, he preferred, without the exigency of financial pressures, to pursue the commercial manufacture of prohibited drugs rather than his trade. As the June 2005 Report noted, Mr Rawsthorne had been deeply entrenched in the drug subculture for an extensive period of time.
Another interpretation is that the realities of release exposed Mr Rawsthorne to stresses with which he found difficulty coping – just as the June 2005 Report apprehended would be likely to occur. This view, which credits Mr Rawsthorne with at least an initial intention not to re-offend, is more likely to be correct, and appears to be consistent with the Parole Service case note records of contact with Mr Rawsthorne in the period after his release on parole.
Between August 2005 and April 2006 Mr Rawsthorne lived alone, but was seeing HV socially. He was unable to continue with his job at Flemington Markets – because he did not have a drivers licence, there was no available public transport at the time he was required to start work, and it was impractical for him to get to work any other way. Nor could he obtain work as a painter and decorator. Whenever he applied for such job, his licence disqualification made him unattractive to prospective employers. He did eventually secure some work as a part time kitchen installer. But he was not able to get full time employment. He was not eligible to resume working as a fitness instructor, because the qualification requirements had changed and he did not meet them. He eventually enrolled in appropriate fitness courses, but he was initially hampered by lack of finances, and an inability to obtain the necessary financial assistance from Centrelink. When he did complete the course he had to repeat part of it. By the end of May 2006 he had put his name on the website of a fitness gym organisation and had obtained some casual work. He was still waiting to hear about the results of undertaking a fitness instructor’s course.
The difficulties that Mr Rawsthorne encountered in trying to obtain regular employment during his release on parole would have been particularly stressful for him. Those difficulties do not appear to have completely abated by May 2006. Against the background of those ongoing difficulties, it is arguably to his credit if he was then nevertheless attempting to distance himself from significant further involvement in the manufacturing conspiracy some months before his re-arrest in July 2006. He said, in his evidence in these proceedings, that he applied for a transfer to Queensland, so that he could complete his parole there, but his application was rejected. This version of events is only partly corroborated by the contemporaneous case notes. A record dated 30 May 2006 notes that Mr Rawsthorne had a court hearing in August for the purpose of attempting to regain his licence. If that application was not successful he planned to move to Queensland. The case note continued with a report that he had been informed that a transfer of parole would take time to organise and that he should not expect immediate approval for any move to Queensland.
Mr Rawsthorne said in his evidence that, in attempting to resile from the conspiracy he had also arranged for himself and JS to move to a new address. But the fact that he moved in at all with JS, in April 2006 at about the time he claims to have been attempting to distance himself from the conspiracy, is a matter of some concern, in the light of his evidence that she was a heavy drug user, and both the obscure origin and the tumultuous nature of their past relationship: (I have referred to these matters in paragraphs 33 to 35 above). That concern is only heightened by evidence that he did use drugs with JS, during the period he was on parole. By mid July 2006 his relationship with JS had degenerated into violence and itself resulted in Mr Rawsthorne’s further conviction for malicious damage to property, in September 2006.
Furthermore, the case notes of April 2006 suggest that the change of address occurred in April 2006 and was prompted by a desire to move to less expensive accommodation. It is apparent from remarks made by the sentencing judge that Mr Rawsthorne still had some involvement with the other conspirators in May 2006 (there is a record of an intercepted communication on 11 May 2006). That appears to have occurred more than a month after Mr Rawsthorne moved to the new address, in early April 2006.
Consequently the precise timing and extent of Mr Rawsthorne’s change of heart in relation to participation in the manufacturing conspiracy is difficult to determine. On the other hand, the sentencing judge’s remarks some two years later in May 2008 are clearly based on an acceptance of Mr Rawsthorne’s then genuinely changed attitude in relation to his previous involvement with prohibited drugs. In particular, the sentencing judge was influenced by the fact that Mr Rawsthorne’s assistance to the authorities, after his arrest in July 2006, had been provided at some risk to his own personal safety, and had already resulted in a somewhat isolated period of incarceration, as a consequence of the need to take that risk into account. The very significant discount that the sentencing judge applied in 2008 necessarily bespeaks confidence in the genuineness of Mr Rawsthorne’s remorse and contrition, and a degree of courage in being prepared to act in a positive way to provide tangible evidence of that contrition.
A January 2009 report from the Department of Corrective Services to the Department of Immigration and Citizenship disclosed that (i) Mr Rawsthorne had completed Personal Fitness Trainer courses to the level of Certificate III, Certificate IV and Diploma in Fitness. He was commended by the prison services education staff for his commitment to his studies. He had been assessed as not requiring any intervention in relation to alcohol and other drugs, nor any ongoing psychological intervention. Most reports on his behaviour and attitude were positive, with occasional adverse reports that were “few and far between”.
This generally positive assessment of Mr Rawsthorne was repeated in a Probation and Parole Service Pre Release Report of 2 May 2012. This Report noted that Mr Rawsthorne had been in full time, work release, employment at a bakery in Revesby since October 2011. He had participated in five weekend leaves and three day leaves. He had not received any adverse reports concerned with either his day, weekend leave or his work release. All the work he had undertaken in the prison, in a variety of roles from clerk to tradesman had been reported to be of a high standard. The Report concluded that it supported his release on parole but characterised him as being suitable for “a medium/high level of intervention by this Service, commensurate with the assessed risk and identified criminongenic needs”. His parole release conditions included an obligation to seek treatment for drug and alcohol abuse and undergo psychological counselling and assessment, if directed to do so by the Parole Service.
The May 2012 Parole Service Report clearly conveys apprehensions about the risk of Mr Rawsthorne re-offending. It does not contain any specific assessment of the risk. An assessment of that kind was provided in these proceedings by a forensic psychologist, Mr W John Taylor. Mr Taylor had assessed Mr Rawsthorne in 2007. He gave evidence about that assessment. He also gave evidence about a later report of 26 June 2012, which he had prepared on the basis of a two and half hour clinical consultation with Mr Rawsthorne, and a review of various documents including the sentencing judge’s remarks of May 2008.
Mr Taylor’s evidence was measured and moderate. He conveyed a thorough understanding of the various test procedures he had carried out, and the significance and limitations of their interpretation. He described, in particular, three different tests directed towards an actuarial assessment of Mr Rawsthorne’s potential risk of reoffending. These assessments are “actuarial” in the sense that they report the history of reoffending that was experienced by a population of offenders who had achieved similar “scores” in the psychological tests involved. That comparison is then used to express, by comparison with the experience of the past offenders, the test subject’s potential risk of re-offending. According to two of these test measures (the Hare Psychopathy Checklist – PCL-R2 and the Self Appraisal Questionnaire) Mr Taylor assessed Mr Rawsthorne as having a low–moderate risk of recidivism. According to the third test measure (the Statistical Information on Recidivism Scale – Revised 1) Mr Taylor assessed Mr Rawsthorne as have a moderate risk of recidivism. These assessments were substantially the same as those in Mr Taylor’s 2007 report, save for Mr Rawsthorne’s “score” on the “PCL-R2” assessment, which indicated a marginally lower degree of risk.
Mr Taylor pointed out that these actuarial measures were essentially “objective” and “static”. They did not themselves take into account specific considerations relating to the particular person’s current and prospective circumstances. For that reason, in arriving at any ultimate assessment of a person’s risk of re-offending it was necessary to apply an interpretative process to the test result and to introduce an assessment that took into account clinical observations and insights directly relevant to the particular person. In that regard Mr Taylor drew on both the history he had obtained from Mr Rawsthorne, and a number of other psychological tests that he administered. Mr Taylor reported that those test results indicated that Mr Rawsthorne had some lack of insight, and was over confident in his judgments about himself and others. He had an above average predisposition to engage in substance abuse, and some inclination towards sensation seeking behaviour. In the past he had exhibited symptoms of a personality disorder and a substance abuse disorder, as well as chronic depression. But Mr Taylor also reported Mr Rawsthorne’s contemporary clinical presentation was not one of either depression or anxiety. He presented with good self esteem and self image. In addition, there was available research to suggest that although an antisocial personality disorder had a chronic course, it may become less evident, particularly in relation to criminal behaviour, as the individual enters their fourth decade. Mr Taylor thought that Mr Rawsthorne’s behaviour in his apparent attempts at rehabilitation, were consistent with this research, and with the Mr Rawsthorne’s psychometric test results. Those results indicated, in Mr Taylor’s opinion, essentially pro-social attitudes.
After taking into account the results of both the actuarial analyses, and the psychometric testing he administered, Mr Taylor assessed Mr Rawsthorne as having a low risk of re-offending. In arriving at that ultimate conclusion Mr Taylor noted Mr Rawsthorne’s educational achievements in prison (that is, the fitness training qualifications he had obtained), his expressed strong motivation to avoid substance abuse, his potential for employment, and the availability of support from HV with whom he had been “in a relationship for about 12 years”. His impression was that Mr Rawsthorne had made extensive and substantial efforts at rehabilitation.
Mr Taylor’s opinion presents a positive view of Mr Rawsthorne’s prospects of rehabilitation. That is consistent with Mr Rawsthorne’s conduct in prison, the essentially favourable Pre Release Report of May 2012, and the remarks of the sentencing judge in May 2008. It is also consistent with Mr Rawsthorne’s evidence in these proceedings. In that evidence Mr Rawsthorne drew a contrast between the situation that existed when he had been released on parole in August 2005, and his current situation. The principal contrast, as he claimed, was that in 2005 he had no new skills, no real plan, and had moved back into an area where he was known. The current situation was one where he had achieved new educational qualifications, had undertaken rehabilitation courses (the Getting Smart program provided by the prison education service), had established contact with his 19 year old son, and had developed a closer relationship with SA and, in particular, HV. He said HV was an observant Jehovah’s witness. He had been in love with her for many years. On his release he planned to live together with her and get married. He said that HV had a good relationship with his son and that he believed the relationship between the three of them would create a warm and supportive family unit. He contemplated that he and HV, who works as a physiotherapy assistant, might be able to join him in establishing an exercise therapy business.
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. But it is not sufficient to consider “the protection of the Australian community” (that is, the primary consideration identified in clause 10(1)(a) of Direction [41]) by a merely comparative characterisation of the risk of re-offending between “low” and “moderate” or “high”. The basic element that must be addressed in the required consideration is whether there is a risk that the person concerned may re-offend, and whether that risk is of such a magnitude that it should properly be taken into account in the exercise of the visa cancellation power, consistently with the requirements of Direction [41] and the protective objective of the Migration Act 1958. A finding that a risk has a low probability of occurring is in no sense inconsistent with a finding that the risk is “real” and “unacceptable” – in the sense of being materially informative for the purpose of an appropriate exercise of the visa cancellation power: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
When the matter is stated in that way, even a risk that has an apparently low probability of occurrence may be given effect to as a primary consideration favouring the exercise of the visa cancellation power, particularly having regard to the “seriousness and nature of the relevant conduct”: see Direction [41] clause 10.1(2)(a) and Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493. This approach is entirely consistent with the approach stated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 638:
Gravity of conduct engaged in and the risk of recidivism are elements in quantifying the seriousness of the threat to the Australian community or in determining whether the continued presence of the perpetrator is inimical to the existence or welfare of the Australian community. The risk of recidivism is not ascertained by reference to policy, of course. It is to be ascertained in the circumstances of each case. On the other hand, the comparative gravity of various kinds of offending conduct depends upon a perception of the best interests of Australia and of the way in which offending conduct adversely affects those interests. This is largely a matter of standards and values, upon which minds may differ, and it is an important factor in making a deportation decision.
In this context what former President Davies said in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132-133 remains apt:
… The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism … even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm…
I consider that there is a relevant and unacceptable risk of Mr Rawsthorne re-offending. Mr Taylor’s June 2012 report, and indeed the other actuarial risk assessments that have been conducted in 2004 and 2007, consistently report the apparent reality of that risk. Even though that risk has been variably characterised as “low” or “low/moderate”, those characterisations necessarily imply that the risk is real, and should be taken into account. In addition, the Pre Release Report of May 2012 suggests that an appropriate way of addressing the risk of reoffending is by regarding Mr Rawsthorne as appropriate for a “medium/high level of intervention … commensurate with the assessed risk”. This statement, though somewhat opaque as to its precise practical meaning, does indicate a concern that the risk of re-offending is sufficiently real to require a particular commitment towards providing ongoing assistance and supervision to Mr Rawsthorne. And in determining whether a risk that has been identified as “real” to that extent is one that is also “unacceptable” for the purpose of the principled exercise of the visa cancellation power, the nature of Mr Rawsthorne’s past offending, involving sustained participation in the manufacture of prohibited drugs, is a factor that points to the characterisation of the risk as “unacceptable”. Both the general terms of Direction [41] clause 10.1.1(2)(f), and the significant penalties to which I referred in paragraph 12 above, characterise Mr Rawsthorne’s past criminality as involving the risk of serious harm to which the protective objectives of the visa cancellation power apply. This is the case even where the risk of re-offending may appear to be low.
The potential availability of assistance from the Parole Service is a relevant consideration in assessing the probability of the risk of re-offending. But in that context it is also relevant to recognise (particularly having regard to Direction [41] clause 10.1.2(1) and 2(c)) that Mr Rawsthorne’s 2008 conviction related to a drug manufacturing conspiracy into which he entered shortly after being released from prison and whilst he was on parole. It is also relevant to reject, as an over simplification, Mr Rawsthorne’s contrast between his current situation, and that which confronted him at the time of his release on parole in August 2005. In August 2005 Mr Rawsthorne had both current employment at Flemington Markets, and plans to return to his trade. He had the support of JS (although that may in fact have been of uncertain utility – see paragraph 44). He also had the support of HV but, apparently even before he moved in with JS in about April 2006, that had been ineffectual in helping him avoid the risk of re-offending. His plans to re-establish himself in the community were hampered, as so far as the contemporaneous case note records reveal, by an unfolding series of difficulties. It became impractical to continue with his job at Flemington Markets. He could not get work in his trade as a painter and decorator, he was hampered and delayed in completing his fitness trainer’s qualifications. Even when he obtained them, he was only able to obtain casual work.
Similar uncertainties presently confront Mr Rawsthorne. He does not wish to continue to work in the bakery business where he was employed, after October 2011, on work release. His ability to return to work as a painter and decorator will likely face similar difficulties to those he encountered in 2005, at least in the short term. He has no proven ability to earn an income as a fitness trainer, and indeed his past experience has been limited to casual work that did not generate a sufficient income to enable him to support himself from that source alone. His professed rehabilitation, though more tangibly underscored by his subsequent educational achievements, and by his professed determination not to re-offend, has a degree of similarity to the sentiments noted in the June 2005 Pre Release Report, to which I have earlier referred.
At the time of his release in 2005, as the matters to which I have referred in paragraphs 34 to 36 above suggest, his relationship with HV was a source of personal stress. In the period of Mr Rawsthorne’s most recent incarceration, they profess to have established a more genuine and prospectively enduring and supportive relationship. Consistent with that appearance, he has no further involvement with JS. In addition, HV has become an observant Jehovah’s Witness. Mr Rawsthorne himself has sought out elders of that Church and now professes to have found a source of guidance in the religious principles of the Church and its adherence to biblical values.
These developments in HV and Mr Rawsthorne’s personal lives may prove to be very significant. But observable reality is that the relationship between Mr Rawsthorne and HV is not new, and despite the longevity of their friendship, it has not been a demonstrably stabilising influence in the past. HV and Mr Rawsthorne lived together for a period in 2000. That cohabitation ended, apparently as a result of a violent altercation, in early 2001. Police incident reports after that record episodes of further violence in July and November 2001. Another police incident report of 17 February 2002 effectively records a complaint by Mr Rawsthorne that HV was still coming to his house, despite the apprehended violence order that had been made against him following the November 2001 incident. Mr Rawsthorne is recorded in the February 2002 incident report as wanting HV to leave him alone.
This background, and the content of the police incident reports, suggests the unlikelihood that HV and Mr Rawsthorne have ever lived together successfully in any settled relationship.
I have earlier described the tension that existed between Mr Rawsthorne, JS and HV prior to his release on parole in August 2005. At the time of his re-arrest in July 2006, Mr Rawsthorne had chosen to live with JS, despite her heavy drug use and earlier anxieties about the nature of the relationship. Following Mr Rawsthorne’s July 2006 arrest, HV had no contact with him for several years. Of more recent times, particularly since Mr Rawsthorne has been entitled to weekend leave, he and HV have spent time together. But they are not now intimate, and precisely when and to what extent their relationship will develop into the warm and supportive family unit to which they profess to aspire, will depend, according to HV, partly on Mr Rawsthorne’s ability to re-establish himself in the community, and partly on his coming to share HV’s religious values. It will also depend on whether they can maintain their relationship rather more successfully than they have in the past.
It was put on behalf of Mr Rawsthorne that the past difficulties in his relationship with HV had been directly related to his drug taking, particularly in the period around 2000 and 2002. HV said she come to observe a greater patience and tolerance in Mr Rawsthorne. But that is an observation similar to one attributed to HV in a February 2004 case note report. I am inclined to think, partly because of the events relating to Mr Rawsthorne’s release on parole in 2005 and 2006 (to which I have referred in paragraphs 34 to 37 above) that this retrospective explanation for the past difficulties in their relationship involves an element of oversimplification. And whilst I accept the genuineness of their currently professed intention, to establish a committed and supportive relationship, that intention is as yet untested by the realities likely to confront them on Mr Rawsthorne’s release from prison. 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.
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.
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.
THE NATURE AND PERIOD OF AUSTRALIAN RESIDENCE
Mr Rawsthorne came to Australia when he was 23 years of age. He was a qualified tradesman. He worked here, married and obtained permanent residency in July 1991. Within three years of obtaining his permanent residency he had incurred convictions for possession of cannabis and assault. The available evidence does not permit any meaningful assessment of the significance that could properly be attributed to those matters, other than as consistent with relationship and behavioural problems (alcohol abuse) of which Mr Rawsthorne gave evidence. Within five years of obtaining his permanent residency he had become an amphetamine user and been convicted of two offences related to that use. None of those convictions resulted in custodial sentences.
Clauses 10(1)(b), 10(1)(c), 10.2 and 10.3 of Direction [41] require regard to be had, as primary considerations, to the length of the person’s Australian residence and particularly whether the person lived in Australia as a child. Clauses 10.2(1) and 10.3(1) suggest that a particular focus of this consideration is the extent of the person’s ties to the Australian community and, even more specifically, the extent to which those ties developed before the person engaged in “activity that bears negatively on their character”: clause 10.3(1). This focus appears to elaborate on the contemplation in clause 5.2(4) of Direction [41] that “in some circumstances” it may be appropriate for the Australian community to accept more risk where the person concerned has “in effect” become a part of the Australian community. It would seem to follow that the mere fact of the person’s Australian residence during their minority may, but need not necessarily, operate as a positive consideration against the exercise of the visa cancellation power. Conversely, if the person came to Australia as an adult, that factor could operate as a primary consideration favouring the exercise of the cancellation power: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [20]-[22].
Mr Rawsthorne has now lived in Australia for over 20 years. But all of that has been as an adult, almost half of it has been spent in custody (or on parole). A substantial portion of the period before he went into custody (from 1996 to 2002) involved sustained participation in the use, and then the manufacture, of prohibited drugs. His connections with the Australian community, and especially those he established before embarking upon relevant criminal conduct, are limited. His friendships with HV and SA have been enduring but they appeared to have begun when he was already engaged in criminal activity, and have not in the past been characterised by any real ties. Mr Rawsthorne’s relationship with JB, a man he met in the early 90s, is one of cordial and supportive friendship. But it does not involve any material ties. In recent years, apparently since about 2009, Mr Rawsthorne has re-established contact with his son. But beyond the bond of paternity, and the aspirations that underlie their more recent and limited interaction, they have no significant interdependency.
Mr Rawsthorne’s period of Australian residence does not establish any strong ties with the Australian community. None of his formative years was spent in Australia. His offending began within a short period after his arrival, although these early offences were not serious criminal matters, having regard to the penalties imposed. They may also have been contributed to by the relationship difficulties he encountered between about 1992 and his divorce in 1995. His more serious offences, involving prohibited drugs, did not occur until some years later, but they began within a few years after his visa renewal in November 1995. Those offences appear to have been a matter of deliberate conscious choice and were motivated by the prospect of commercial gain. These facts lead to the conclusion that the period and nature of Mr Rawsthorne’s Australian residence should be taken into account as primary considerations that favour cancellation of his visa. He embarked on a course of intentional illegality, motivated by the prospect of commercial gain, well within 10 years of his first arrival in Australia, and much less than 5 years after he had obtained his latest visa.
OTHER CONSIDERATIONS – GENERALLY
Mr Rawsthorne has no dependent children. His return to the UK would be likely to cause him some additional difficulties. After a substantial period of incarceration, he will likely have to overcome the practical difficulties of transition to normal community living. That transition will likely be comparatively more difficult in the UK than if he was to remain in Australia. That is because (i) he will not have the immediate emotional support of HV and his other current friends, (ii) he will likely not have the potential assistance of parole services, and (iii) he will be in a community with which he has had no direct involvement for many years. But at least some of the difficulties he is likely to encounter on return to the UK will be similar to those that will confront him in Australia – and especially if the matters to which I refer in paragraph 80 eventuate. On the other hand, the UK is the country where Mr Rawsthorne grew up, where he acquired his trade qualifications and where he still has family. He has maintained telephone contact with members of his family whilst he has been in prison.
Mr Rawsthorne is in good health and has no significant physical disabilities. He is intelligent and articulate. The motivations and effort he has applied towards his rehabilitation whilst in prison can be applied in the UK, although he is likely to be without the ongoing support that would otherwise be available to him whilst he was at liberty on parole in Australia. He may, in addition, be disadvantaged if his recently acquired Fitness and Training qualifications are not recognised in the UK. But there is no evidence to properly inform an assessment of the degree of difficulty, if any, that might involve.
These considerations suggest the desirability, from the perspective of Mr Rawsthorne’s individual best interests, of setting aside the visa cancellation decision. But the suggestion is rather marginal, given Mr Rawsthorne’s origin in the UK, his good health and intellectual and physical abilities.
OTHER CONSIDERATIONS – FAMILY TIES AND HARDSHIP
Mr Rawsthorne’s return to the UK will disrupt his relationship with his son and his relationship with HV. But he has no other ties to the Australian community that are significant considerations.
So far as Mr Rawsthorne’s son is concerned the fact is that their relationship is recent and limited. They had no contact until the son initiated it some two years ago. Their only contact since then has been prison visitation, telephonic and during prison leave. There is no evidence of any significant interdependency. The additional fact is that they have both been motivated to sustain their newly re-established relationship. No doubt it is a matter they both highly value, especially given the loss and regret that must be associated with the years when they were not known to each other. But the reality, perhaps somewhat harsh, is that Mr Rawsthorne’s removal to the UK need not terminate their existing relationship, despite the greater physical separation it will involve. The disappointment (to use an inadequate word) that they will both feel by being unable to live in close proximity is not a telling consideration against the cancellation of Mr Rawsthorne’s visa.
I have referred earlier in these reasons to the nature and duration of HV’s relationship with Mr Rawsthorne. It goes back to their meeting in about 1998, and included a period of cohabitation in 2000. That cohabitation ended in violence. In the years when Mr Rawsthorne asserted having had a relationship with JS, his parallel friendship with HV was the subject of tension – a tension remarked upon by the Parole Service prior to Mr Rawsthorne’s release on parole in 2005. HV had no contact with Mr Rawsthorne between 2006 and 2008. Since then she has visited him regularly and been very supportive of him. They aspire to marry. However, in her evidence in these proceedings, despite her fulsome expressions of love and support for Mr Rawsthorne, she made it clear that whether and when she lives with him in a married relationship, depends on his ability to re-establish himself and embrace her religious values.
HV has received some financial support from Mr Rawsthorne. As a result of his employment whilst in prison he has been able to contribute towards her expenses. Although HV has for some time been employed as a physiotherapy assistant, and has retained her employment whilst she has been rehabilitating, she has a chronic degenerative condition affecting her cervical spine. This has restricted her ability to work and she has been receiving a Disability Support Pension for the last several years. Financial stresses during 2010 resulted in her living in student accommodation for a time. She now has her own single bedroom Housing Commission unit, of which she is very proud, and envisages it will be a short term home for her with Mr Rawsthorne.
HV is distressed at the prospect of Mr Rawsthorne’s return to the UK. It is understandable that she would be affected by the disappointment of the expectations she has fostered, as a result of re-establishing her relationship with Mr Rawsthorne since 2008, and observing his efforts at rehabilitation. She has, as a result of the difficulty of dealing with the cancellation decision, and its potential consequences, suffered from anxiety and depression and began to experience some symptoms of an eating disorder from which she suffered in the past. She has returned to a psychologist for treatment. The psychologist’s report attributes HV’s current presentation of distress, depression and anxiety as having been precipitated by the visa cancellation decision, and likely to worsen if the decision is implemented.
I accept that HV will likely be adversely affected emotionally by upholding the visa cancellation decision. I accept also that the effects may impact on her mental health, by contributing to depression and anxiety. I have already referred to HV’s evidence that the future of their relationship depends on Mr Rawsthorne’s ability to re-establish himself and to embrace her religious values. They are both confident about those matters. Whilst I accept the genuineness of their current aspirations in that regard, the reality is that their past relationship, when they lived intimately together, was troubled, and sometimes violent. These considerations caution against too ready an acceptance of the proposition that HV and Mr Rawsthorne’s current optimism about the future of their relationship will necessarily become the reality.
There is another potential confounding consideration. The matters that contributed to the substantial sentencing discount Mr Rawsthorne received in 2008 may require him to assume a new identity, following his release from custody. Some steps have already been taken in that regard. What further steps, if any, may be involved has not yet been determined. That will depend upon some kind of further risk assessment being carried out by the relevant authorities. There is at least some potential that Mr Rawsthorne will have to assume a new identity, and move to a new location. If that was required, it is also possible that the same opportunity would be provided to HV, if she wished to join him. But HV has not committed herself to a decision of that kind. Whether and when she would join Mr Rawsthorne, if the contingency of relocation with a new identity arose and had to be addressed, would depend on the totality of the circumstances that then prevailed. One of the critical considerations for HV would be whether she would be able to find employment – having regard to both the limited job opportunities in the preferred employment for which she is qualified, and her reluctance to leave her current employment. Whilst these uncertainties exist, the potential remains for HV to be adversely affected, by the disappointment of her expectations about a future life with Mr Rawsthorne, whatever the outcome of the present proceedings.
There is a further consideration that Mr Rawsthorne has not previously been warned about the potential for his criminal conduct to attract the exercise of the visa cancellation power. The absence of a prior warning to a visa holder may be a relevant consideration that operates in their favour and against the exercise of the visa cancellation power. Conversely, if a person has reoffended after having been given a prior formal warning, that may be a factor in favour of visa cancellation. The element of relevance that connects these two opposing possibilities is most likely the inference that can be drawn about the risk of re-offending. The absence of a prior warning may, when combined with an assessment that a person otherwise has a low risk of re-offending, lead to a conclusion that the risk is further reduced by the person’s now demonstrable awareness of the additional potential consequences of re-offending. And where a person has re-offended after having been given a formal warning, that may justify a conclusion that the risk of re-offending is both real and unacceptable.
In the present case, where the relevant primary considerations favour cancellation, and where Mr Rawsthorne’s material offences involved significant commercial involvement with the manufacture (or intended manufacture) of illicit drugs, I regard the absence of prior formal warning as a consideration of little weight.
CONCLUSION ON “OTHER CONSIDERATIONS”
The other considerations permissibly relevant to the exercise of the visa cancellation power do not expose Mr Rawsthorne to the risk of significant hardship, disruption or disadvantage – in the sense in which those concepts are addressed in clause 11 of Direction [41]. Mr Rawsthorne’s ties to his son, and to HV, will be disrupted if he is required to return to the UK. But the limited, and comparatively recent, nature of the direct relationship with his son, is not a consideration that weighs significantly against the appropriateness of the exercise of the visa cancellation power, having regard to the views I have expressed about the primary considerations.
The disruption of HV’s relationship with Mr Rawsthorne is a more problematical matter to evaluate. The relationship has a long history, but the history includes violence and a lack of real close interaction for a substantial period (since at least August 2002). It is a relationship whose real quality and durability has not, for many years, been tested by the reality of a sustained period of ordinary shared daily living. The future of the relationship is unpredictable, given the uncertainties to which I have already referred above. For these reasons I do not consider it is appropriate to take the potential disruption of the relationship between HV and Mr Rawsthorne as a matter that weighs significantly against the exercise of the visa cancellation power.
DECISION
Mr Rawsthorne immersed himself in the drug culture for a significant period. His involvement extended to commercial manufacture of prohibited drugs. At least one of his principal motivations was financial gain. He persisted in that lifestyle despite having had qualifications, experience and ability that would have enabled him to earn a living from applying his trade. He participated in the manufacturing conspiracy during his release on parole. Expert risk assessments consistently suggest that he has a low, but nevertheless real, risk of reoffending. Such a risk is, in my opinion, unacceptable having regard to the nature of the offences Mr Rawsthorne has committed in the past. In a situation where (i) he came to Australia as an adult, (ii) began offending within a short period of years, (iii) his main offences (of participating in the manufacture of prohibited drugs) involved conduct that occurred over a period of years, and (iv) he has no dependent children, the primary considerations required to be taken into account by Direction [41] point to the appropriateness of exercising the power to cancel his visa. The weight I attach to those primary considerations is not outweighed by the potential hardship that the cancellation may cause to Mr Rawsthorne, his son or to HV.
The decision under review is affirmed.
I certify that the preceding 86 (eighty six) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member ....[sgd]....................................................................
Associate
Dated 27 July 2012
Dates of hearing 5 and 6 July 2012 Date final submissions received 11 July 2012 Solicitors for the Applicant Mr R W Killalea, KTG Lawyers Solicitors for the Respondent Mr A Markus, Australian Government Solicitor
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